ALJDEC decisions subject to certification as final

2012A-76-ROC-res · Registrar of Contractors · 2013-05-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 16, 2013, at 8:00 a.m. The record in this matter was held open until April 19, 2013. APPEARANCES: Bonnie C. Parker (hereinafter “Complainant”) appeared on her own behalf. Damage Control Builders LLC dba D C Restoration (hereinafter “DC Restoration,” “Respondent,” or “DC”) appeared through its attorney Donald O. Fuller, Esq., Fuller & Stowell P.C. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT The Order Denying Request for Mediation/Order Denying Motion to Dismiss/Order Setting Administrative Hearing provided, in relevant part, as follows: On or about June 21, 2012, the Registrar received an Order Vacating Hearing from the Office of Administrative Hearings providing that at the hearing, the parties crafted a Settlement Agreement and did not need to continue with the formal hearing process. Attached to the Order Vacating Hearing was a copy of the Settlement Agreement.

On or about August 16, 2012, Complainant submitted written correspondence in this matter with the Registrar requesting “Mediation or Settlement Conference” to resolve this matter. The Registrar treated this submission as a Request for Mediation and/or a Settlement Conference.

On or about August 16, 2012, Respondent filed a Motion to Dismiss this matter with the Registrar.

On or about September 10, 2012, and September 12, 2012, Complainant submitted written correspondence in this matter with the Registrar objecting to Respondent’s Motion to Dismiss.

Upon review and consideration of Complainant’s Request, Respondent’s Motion, and Complainant’s Responses thereto, as well as the entire file in this matter, and with good cause appearing, IT IS ORDERED that Complainant’s Request for Mediation/Settlement Conference be DENIED.

IT IS FURTHER ORDERED that Respondent’s Motion to Dismiss be DENIED.

IT IS FURTHER ORDERED that an administrative hearing be scheduled in the expedited course of docketing in the Tucson area. At the administrative hearing, the parties may offer evidence and testimony as to whether or not Respondent has violated the provision of A.R.S. § 32-1154(A) as set forth in the Registrar’s March 14, 2012 Citation and Complaint. The parties may also offer evidence and testimony as to whether or not Respondent has complied with the terms of the parties’ Settlement Agreement.

DC Restoration is the holder of License No. KB-2.237464-D issued by the Registrar of Contractors. This is a residential matter where DC Restoration performed smoke remediation work at Complainant’s residence located at 4702 E. 27th Street, Tucson, Arizona. Complainant was dissatisfied with DC Restoration’s workmanship and filed a formal Complaint against DC Restoration with the Registrar of Contractors. Pursuant to the filing of the formal Complaint, an assigned Registrar Inspector, Mike Nieves (hereinafter “Inspector Nieves”), conducted an onsite inspection. Inspector Nieves issued a written Corrective Work Order on January 24, 2012, directing DC Restoration to perform designated corrective work on Complainant’s residence. The Corrective Work Order provided, in relevant part, as follows: Contractor to correct the following by appropriate means:

2a. The workmanship was very poor: Per the respondent the project has not been completed.

4. DC was to roll the paint, but instead DC spray painted the plaster walls: Kitchen cabinets were spray painted.

9. DC said they had to use oil base paint on the wood doors because there was something yellowish that they could not cover with primer or paint and oil base paint was necessary. I was not told what brand was used: Specify brand.

11. Walls, doors, cupboards were bumpy & rough. Old paint was showing through, the kitchen had not been primed; semi gloss paint was not used in kitchen or bathroom. The paint began coming off the kitchen cupboards and the bathroom was ugly to say the least: Needs to be properly corrected.

18. Again, same problems with the kitchen as the first time. The cupboard doors and drawers were saturated with a lot [of] paint remover & [scraped]. They were in bad condition. The entire kitchen paint is unacceptable, incomplete and even the pipes were sprayed under the kitchen sink: Needs to be properly corrected.

19. The kitchen cupboards began to bubble and peel again: Needs to be properly corrected.

33b. Doors are not hung correctly: Needs to be properly corrected.

33g. Kitchen not finished, cupboard doors & drawers are MIA: needs to be properly completed.

33h. Registers not replaced: Need to be reinstalled.

No Action is required on the following:

1. DC Restoration painted my house Dec 2010. The painting was being done due to smoke damage in the house. There was a slight odor of tar and discolored smoke areas on the walls. The house had been cleaned before the painting began[.]

2b. The house was contaminated with an extreme toxic out gassing: I could not detect any excessive odors.

3. DC did not use an odor & stain blocking primer: I could not determine if odor and staining blocking primer was used.

5. DC continued to spray paint during very cold wet weather and into the night without bringing in lamps: I could not determine if this was not done.

6. DC did not allow the plaster walls to sufficiently dry before continuing to spray because they had “a big job in Green Valley”: I could not determine if this was not done.

7. I requested DC to place heaters in the house. DC placed one heater in living room & one in a bedroom: I could not determine if this was not done.

8. DC removed the seals from the registers and turned on the heating system. The heating and cooling may also be contaminated: I could not determine if system is contaminated.

10. After lst Painting the house was left with flashing, chalking, and inconsistent application of paint and color tones: I could not determine if this was not done.

12. DC denies all issues, they don’t see anything wrong: I lack jurisdiction.

13. Behr Paint Representative confirms existing ongoing issues in house & doubts that Behr Paint was used exclusively. He also comments on the obnoxious odor. He said Behr paint does not smell like the existing noxious odor: I lack jurisdiction.

14. Behr Representative marks numerous areas for DC that has been done improperly: I lack jurisdiction.

15. VOC[1] is suspected along with fumes that get worse as the temperature gets [higher]: I could not detect an odor at time of inspection.

16. DC decides to repaint and “do it right this time”: I lack jurisdiction.

17. Kilz odorless oil base is used for the primer. The kiln is not allowed to dry before the “Enso” no VOC, latex paint is applied: I could not determine if this was not done.

20. The fuming toxic odor was contained for approximately seven days, but returned with a vengeance: I could not detect an odor at time of inspection.

21. Dunn Edwards come to house, confirms the odor and that it does become stronger when the AC unit is running. They take samples of the Enso paint for testing. * (see report #1): I could not detect an odor at time of inspection.

22. Farmers’ agrees to air testing. Environmental Analytics (doing the test) told us that the results are based on OSHA standards. There are no standards for home air quality & at what may be acceptable for an industrial setting may not be acceptable or apply to residential. The equipment used is made for industrial testing: I could not detect an odor at time of inspection.

23. Low levels of acetone are found. Based on the findings, Farmers’ is not willing to do further testing: I lack jurisdiction.

24. DC tells Farmers’ that my house is livable even though I am unable to be inside for more than 5-20 minutes which DC & Farmers’ are both aware of. They are also aware of the unlivable conditions within the house: Properly complete project.

25. Based on DC’s statement of livability inside the home Farmers’ closed my claim: I lack jurisdiction.

26. DC may have used Acetone or other solvent to thin paint or for other purposes. We would never know: I could not determine if acetone was used.

27. John McDougall inspects home, finds it not habitable in current condition. 4’ (see report #2): I could not determine if house is habitable.

28. High levels of VOC are detected in home by Dr. Mark Sneller. * (see 3 reports #3-4-5): I could not determine if VOCs are not within acceptable standards.

29. Environmental Strategies, Ken Goodman, visits the home, Confirms odor & VOC issue. Recommends an air testing with a more detailed capability to pin point what & where the problems lie to be remedied.* (see report It 6): I lack jurisdiction.

30. DC owner, Derec comes to my home. After I showed him through the house and he saw and smelled everything; Derec said DC wasn’t going to do anything because I had signed off on the products that were used: I lack jurisdiction.

31. I have not paid DC Restoration because my home is totally uninhabitable and my health has been compromised due to the toxicity of the house: I could not determine the toxicity of the home.

32. DC & [I] met with Environmental Strategies. Derec (DC) told me to use money from the funds I am holding for DC and pay for new air testing, However, if all testing comes back within OSHA standards, I will be financially responsible. This is obviously unacceptable since I did not destroy my home and OSHA standards do not apply to residential. A small amount of anything could be deadly to a small dwelling and a person who has become severely sensitize[d], My doctor has told me to “stay out of the house ”: I lack jurisdiction.

33a. To date the house is not put back together. In addition to poisonous air: I could not determine if poisonous air is present.

33c. Hole in the ceiling: Not the [responsibility] of the respondent.

33d. No bathroom sink: Removed by the complainant.

33e. Broken curtain rods: I could not determine if this was caused by the actions of the respondent.

33f. Kitchen sink damaged: I could not determine if this was caused by the actions of the respondent.

33g. Kitchen not finished, cupboard doors & drawers are MIA: needs to be properly completed.

33h. Registers not replaced: Need to be reinstalled.

33i. Light fixtures damaged need to be replaced: I could not determine if this was caused by the actions of the respondent. 33j. There are chips in the cook top of the stove: I could not determine if this was caused by the actions of the respondent. 33k. Heating and cooling units may be contaminated with VOC: I could not determine if this was caused by the actions of the respondent.

33l. The inside of the refrigerator smells like the house and the food inside the refrigerator tastes like the house smell[s]: I could not determine if this was caused by the actions of the respondent.

TESTIMONY FROM JUNE 13, 2012

Inspector Nieves testified that he conducted a prehearing inspection at Complainant’s residence on June 6, 2012, and observed that the Corrective Work Order had not been fully complied with at that time. Inspector Nieves stated that he could detect an odor in Complainant’s residence that “seemed like a combination of chemical smells.” Inspector Nieves testified that he could not tell if the odor was excessive. Inspector Nieves acknowledged that the Corrective Work Order did not require DC Restoration to remediate the odor in Complainant’s residence. Dr. Mark Robert Sneller (hereinafter “Dr. Sneller”) testified that he is a scientist and owner of Aero-Allergen Research. Dr. Sneller stated that he had tested Complainant’s residence for VOC levels on several different occasions. Dr. Sneller testified that on June 12, 2012, he found the VOC level in Complainant’s residence to be 7 to 15 parts per million. Dr. Sneller stated that the average home has a background VOC level of .3 to .5 parts per million. Dr. Sneller testified that there was a significant amount of “out-gassing” in Complainant’s residence. Dr. Sneller stated that there was still a source present in Complainant’s residence to cause the high VOC levels. Dr. Sneller acknowledged that he did not know exactly what the source was. Dr Sneller opined that further testing should be performed by an environmental/industrial hygienist to determine the source of the high VOC levels. Dr. Sneller’s testimony is found to be credible. Aniko Selmeczi (hereinafter “Ms. Selmeczi”) testified that she is Complainant’s friend. Ms. Selmeczi stated that she had been in Complainant’s residence on numerous occasions. Ms. Selmeczi testified that she could smell a strong chemical odor in Complainant’s residence. Ms. Selmeczi stated that the odor in Complainant’s residence smelled like acetone. Dr. Farshad Shirazi (hereinafter “Dr. Shirazi”) testified that he is a medical toxicologist. Dr. Shirazi stated that he had recommended that Complainant refrain from prolonged exposure or living in her residence until the source of the odor in her residence was eliminated. Bryck Edward Guibor (hereinafter “Mr. Guibor”) testified that he is a licensed general contractor.[2] Mr. Guibor stated that he is also a certified home inspector. Mr. Guibor testified that he had been in Complainant’s residence several times and that an odor was present that smelled like fresh paint or “some sort of chemical smell.” Mr. Guibor stated that he was present during the home inspection that occurred on June 12, 2012. Mr. Guibor testified that he had reviewed the Farmers Insurance Description of Work[3] for repair of the smoke damage in Complainant’s residence. Mr. Guibor stated that the scope of work provided that DC Restoration needed to clean the duct work from soot and smell. Mr. Guibor testified that DC Restoration was to use a HEPA Vac System throughout the residence to prevent the smell from spreading through the house. Mr. Guibor stated that the scope of work indicated that there were two different odors in the house, one being soot and the other being an unidentified odor or smell. Mr. Guibor testified that DC Restoration repainted the interior of Complainant’s residence to seal in the odor of the soot and the second unidentified odor. Mr. Guibor stated that on June 12, 2012, the paint was still “tacky” despite the fact it had been applied months earlier. Mr. Guibor testified that DC Restoration failed to fully address the odor that was present in Complainant’s residence. Mr. Guibor stated that there is an odor in Complainant’s residence that needs to be addressed. Mr. Guibor opined that the insurance company needs to address the fact that the odor present in Complainant’s residence was not eliminated by the painting work performed by DC Restoration. Mr. Guibor stated that the odor was such that Complainant could not live in her residence. Mr. Guibor testified that he observed on June 12, 2012, that all of the items set forth in the Corrective Work Order had been addressed by DC Restoration. Mr. Guibor stated that the odor that was required to be removed in the original Farmers Insurance estimate of work had not been addressed and that there was still an odor in Complainant’s residence. Mr. Guibor opined that the odor in Complainant’s residence was from cleaning fluids, probably mixed with the paint to dilute it so that it provided better coverage. Mr. Guibor testified that he believed that DC Restoration had used acetone, thinner, or solvent in the paint to allow the paint to provide more coverage. Mr. Guibor stated that there is a chemical odor from the paint and thinning material utilized in Complainant’s residence. Mr. Guibor testified that the tackiness of the paint indicated that there is a real problem in Complainant’s residence. Mr. Guibor’s testimony is found to be credible. Sondra Ray Klock (hereinafter “Ms. Klock”) testified that she is Complainant’s sister. Ms. Klock testified that the odor in Complainant’s residence is “overpowering.” Ms. Klock testified that Complainant has not been able to live in Complainant’s residence due to the strong odor. DC Restoration’s general manager for its Tucson office, Michael Dominguez (hereinafter “Mr. Dominguez”), testified that no testing was performed on Complainant’s walls prior to painting because testing was not in the scope of work authorized by Complainant’s insurance company. Mr. Dominguez stated that the purpose of the painting was to seal in the odors caused by the smoke damage in Complainant’s residence. Mr. Dominguez acknowledged that there was an odor in Complainant’s residence. Mr. Dominguez testified that he did not consider the odor to be excessive. Mr. Dominguez testified that he was not able to provide Complainant with a guarantee that the odor in Complainant’s residence would dissipate. Mr. Dominguez stated that the odor “was out of control.” Mr. Dominguez testified that a company identified as Belfor[4] had performed cleaning work at Complainant’s residence prior to the painting work performed by DC Restoration. Mr. Dominguez opined that Belfor used chemicals to wipe down walls, ceilings, and floors to dissipate or mask the smell of the smoke in Complainant’s residence. Mr. Dominguez testified that he provided the estimate[5] for the remedial work at Complainant’s residence. Mr. Dominguez stated that the estimate was for “sealing and painting throughout the house to eliminate the smoke odor.” Mr. Dominguez testified that all of the items set forth in the Corrective Work Order that required corrective action by DC Restoration had been fully corrected. Mr. Dominguez stated that the only item at issue was the odor in Complainant’s residence. Mr. Dominguez testified that the elimination of the odor in Complainant’s residence was not required by the Corrective Work Order. Mr. Dominguez testified that if the odor was caused by DC Restoration, then “we would be responsible to take care of that.” Mr. Dominguez stated that if the source of the odor was not related to any work performed by DC Restoration, then it would not be DC Restoration’s responsibility to correct it. Mr. Dominguez testified that DC Restoration utilized Dunn Edwards paint in Complainant’s residence. Mr. Dominguez opined that the odor in Complainant’s residence was not coming from the Dunn Edwards paint. Complainant testified that she did not know if the Corrective Work Order had been complied with. Complainant testified that her residence was damaged during a new roof installation. Complainant stated that a tar kettle overheated and caused smoke and soot damage to her residence. Complainant testified that she had been living with her sister for a year and a half because she could not live in her residence due to the strong odor. Complainant testified that “you could not be able to stay in the house for even four hours let alone twenty-four hours.” Complainant acknowledged that DC Restoration had suggested that Complainant have additional testing performed at her residence and provided her with the name of Environmental Strategies as a company that could perform the additional testing. Complainant stated that she had not created the problem and it should not be her responsibility to “scramble around and try to figure out how to scrounge up funds to go do it.” Aaron Christopher Guritz (hereinafter “Mr. Guritz”) testified that he is an employee of DC Restoration. Mr. Guritz stated that he ensured that all of items that the Corrective Work Order required DC Restoration to correct were properly corrected. Mr. Guritz testified that he performed a walk- through with Complainant when the corrective work was completed. Mr. Guritz stated that Complainant was “OK” with all of the repairs that had been made. Mr. Guritz testified that Complainant’s cabinets had been repeatedly painted with an oil-based paint within a few days of the June 12, 2012 inspection and that oil-based paint takes several days to dry. Mr. Guritz stated that DC Restoration performed work above the work required by the Corrective Work Order. Derek Bradshaw (hereinafter “Mr. Bradshaw”) testified that he is the owner of DC Restoration. Mr. Bradshaw stated that DC Restoration completed all of the repairs required by the Corrective Work Order. Mr. Bradshaw opined that the scope of work provided by Complainant’s insurance company was inadequate and that the source of the odor was not something that could be sealed or covered up by simply painting over it. Mr. Bradshaw stated that he was concerned that the odor was inside or behind the wall and that that painting would not eliminate the odor. On June 13, 2012, the parties entered into a Settlement Agreement wherein DC Restoration agreed to contact Complainant’s insurance company and seek approval to have an industrial hygienist determine the cause of the odor in Complainant’s residence. DC Restoration agreed to seek to have Complainant’s claim with her insurance company re-opened if the industrial hygienist determined that the cause of the odor was not addressed in the scope of work originally provided by the insurance company. DC Restoration agreed that if it was determined that the odor was from anything caused by DC Restoration, DC Restoration would resolve the odor problem. Complainant agreed to provide the industrial hygienist with access to her residence and agreed that if it was determined that the odor was not caused by DC Restoration, she would pay it for the previous work. Communications broke down between the parties and Complainant filed a request for mediation or settlement conference and Respondent filed a motion to dismiss. The matter was then set for an additional day of administrative hearing. TESTIMONY OF APRIL 16, 2013 Complainant testified that she was concerned about the qualifications of the industrial hygienist selected by DC Restoration and that she did not believe that he was unbiased. Complainant stated that the industrial hygienist had canceled one scheduled inspection date due to illness. Complainant testified that the industrial hygienist and DC Restoration had failed to respond to her numerous attempts to contact them. Complainant acknowledged that she had denied access to the industrial hygienist on July 20, 2012, because she believed it was not hot enough for the “out-gassing’ to be properly detected. Complainant stated that she believed that it should be at least 100 degrees inside her residence to properly test for out-gassing. Brandon Lesley White (hereinafter “Mr. White”) testified that he is an environmental hygienist. Mr. White testified that he believed that Complainant wanted to specify the method of testing to guarantee a result that would be favorable to her position. Mr. White stated that he was fully qualified as an environmental hygienist and that he would be completely unbiased with respect in reporting the results of any tests that were performed at Complainant’s residence. Mr. White’s testimony is found to be credible. Jacque Martinez (hereinafter “Ms. Martinez”) testified that she is an employee of DC Restoration. Ms. Martinez testified that she had voluminous email correspondence with Complainant attempting to schedule the agreed- upon testing. Ms. Martinez testified that the delay in performing the agreed-upon testing was due to Complainant. Ms. Martinez played a telephone recording of Complainant requesting that the testing be delayed. In the telephone message Complainant suggested that the parities delay the testing until the summer of 2013. Ms. Martinez’s testimony is found to be credible. There was no credible evidence that DC Restoration failed to comply with the terms of the parties’ Settlement Agreement. Administrative notice is taken of DC Restoration’s prior license record as reflected on the Registrar of Contractors’ public website on May 1, 2013. Such prior license record reflects that License No. KB-2.237464-D of DC Restoration is current. License No. KB-2.237464-D of DC Restoration was suspended for lack of bond from September 24, 2011, through September 28, 2011. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119. 2. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). 3. There is a strong chemical odor present in Complainant’s residence. The remediation of the odor is set forth in the insurance company’s estimate of work to be performed at Complainant’s residence. DC Restoration was aware that there was an odor problem in Complainant’s residence before it began work on Complainant’s residence. The remediation of the odor has not been accomplished by DC Restoration. This Tribunal concludes that DC Restoration violated the charged provisions of A.R.S. § 32-1154(A)(2)[6] and A.R.S. § 32-1154(A)(3),[7] namely, A.A.C. R4-9-108.[8] 4. Complainant retained a home inspector to perform an onsite inspection at her residence prior to the June 13, 2012 hearing date. Mr. Guibor testified that he observed on June 12, 2012, that all of the items set forth in the Corrective Work Order had been addressed by DC Restoration. DC Restoration’s employee, Mr. Guritz stated that all of items that required corrective action in the Corrective Work Order were properly corrected by DC Restoration. This Tribunal concludes that Complainant failed to prove by a preponderance of the evidence that DC Restoration violated the charged provision of A.R.S. § 32-1154(A)(23).[9] RECOMMENDed order In view of the foregoing, it is recommended that commencing on the effective date of the Registrar’s Order, License No. KB-2.237464-D of DC Restoration shall be suspended until the Registrar of Contractors receives and accepts written proof of the following: • DC Restoration has fully remediated the odor problem in Complainant’s residence, or • DC Restoration was denied reasonable access to Complainant’s residence to perform corrective work necessary to remediate the odor in Complainant’s residence, or • DC Restoration has caused an industrial hygienist, at DC Restoration’s sole expense, to perform environmental tests at Complainant’s residence and that the results of the tests confirm that the odor problem in Complainant’s residence is being caused by a source that could not have been remediated by DC Restoration within the scope of work provided by Complainant’s insurance company, or • DC Restoration’s selected industrial hygienist was denied reasonable access to Complainant’s residence to perform environmental tests to determine the source of the odor in Complainant’s residence. It is further recommended that if on or before the effective date of this Order, DC Restoration has provided acceptable proof that is has fully accomplished one of the above-described actions, then the above provided License suspension shall not take place and this matter shall be closed. In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be 40 days from the date of the certification. Done this day, May 3, 2013.

/s/ M. Douglas Administrative Law Judge Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Volatile Organic Compounds (footnote added). [2] Guibor Enterprises, ROC License No. B.065926-R. [3] See Exhibit No. C-19 (Farmers Insurance Description of Work). [4] Belfor Property Restoration, ROC License No. KB-1.187007-D. [5] See Exhibit No. R-3 (DC Restoration estimate). [6] A.R.S. § 32-1154(A)(2) includes among the grounds for disciplinary action against a contractor’s license, departure from or disregard of plans or specifications or any building codes of the state or any political subdivision of the state in any material respect which is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code. [7] A.R.S. § 32-1154(A)(3) includes among the grounds for disciplinary action against a contractor’s license, violation of any rule adopted by the registrar. [8] A.A.C. R4-9-108 provides, in pertinent part, as follows:

A. A contractor shall perform all work in a professional and workmanlike manner.

B. A contractor shall perform all work in accordance with any applicable building codes and professional industry standards.

C. All work performed by a contractor in a county, city, or town that has not adopted building codes or where any adopted building codes do not contain specific provisions applicable to that aspect of construction work shall be performed in accordance with professional industry standards.

[9] A.R.S. § 32-1154(A)(23) includes among the grounds for disciplinary action against a contractor’s license, failure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held.

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