ALJDEC decisions subject to certification as final

2013A-1970-ROC · Registrar of Contractors · 2016-01-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 7, 2016 APPEARANCES: Complainant David Hinchliffe appeared on his own behalf. Cadiente Construction LLC dba Service Master Restoration by Cadiente was represented by Garron Cadiente, its qualifying party. ADMINISTRATIVE LAW JUDGE: Harriet Turney _____________________________________________________________________ A hearing was convened to determine whether Respondent violated state law as alleged by Complainant and as cited by the Registrar of Contractors (Registrar). Evidence and testimony were presented, and based on the entire record, the following Findings of Fact, Conclusions of Law, and Recommended Order are made: FINDINGS OF FACT 1. Complainant David J Hinchliffe is the owner/occupant of a residence located at 2515 S. Mariposa Road, Apache Junction, Arizona 85119. 2. Respondent Cadiente Construction LLC dba, Service Master Restoration by Cadiente holds Arizona Contractor License Nos. 264008, 299178. 3. On or about January 13, 2013, Complainant signed a Mitigation Work Authorization authorizing Respondent to perform emergency services at his residence arising from a broken water pipe in the attic resulting in water damage. On about January 15, 2013, he signed an Authorization for Repairs and Payment. On or about February 2, 2013, he signed a Reconstruction Work Authorization. All work was to be performed by Respondent. 4. On or about April 12, 2013, Complainant filed a Complaint against Respondent with the Registrar alleging poor workmanship. Enumerated in the complaint were “personal property improperly handled, designated, inventoried”; restoration work failed County inspections on two occasions”; Anti-microbial remediation not completed as required”; “Payment for work or services not done invoiced as being done and received”; and “Travelers’s [sic] representative recommended I contact State’s ROC.” In order to resolve the complaint, Complainant wanted Respondent to adhere to the scope provided by the Travelers’ adjuster. 5. The Registrar assigned Investigator Beau Cruz to investigate the complaint. 6. On or about May 6, 2013, Complainant submitted a 33 page fax to Investigator Cruz which, according to Complainant, contained “the obtainable supportive documentation” requested by Investigator Cruz. The submission included “Travelers Scope,” a 22 page document which, among other things, listed the application of a microbial agent as part of the repairs to the breakfast area/room, the kitchen, the living room, the living room closet, the coat closet, the master bath, the master closet, the hallway, the linen closet, and carpet. 7. Complainant stated as follows regarding the application of an anti- microbial agent: Lack of supervision/scope to properly apply anti-microbial agent to affected areas. (Note: When sheetrock installation started after Demo, I called travelers questioning the anti-microbial application. Servicemaster told A. Grizzle’s (author of scope) supervisor that the Demo man (Austin Gardner “didn’t remember doing it, but he was sure that he had”. A week after, (Ted) Servicemaster offered homeowner to come out, remove batts and spray ceiling areas. The following week, Servicemaster called and said it Was Done. [All errors in the original.]

8. Investigator Cruz scheduled a jobsite inspection for May 23, 2013, which both the Complainant and Respondent attended. Investigator Cruz substantiated some but not all of the workmanship issues. His jobsite inspection notes revealed that reconstruction/remodeling was still in process, and that during the inspection process Complainant was evasive or vague in his responses as to the exact basis of his complaint and what he wanted Respondent to do. Regarding what appeared to be Complainant’s main concern on the issue of the application of an anti-microbial agent, Investigator Cruz explained to Complainant that he was not qualified to test surfaces for the presence of an anti-microbial agent. Investigator Cruz noted that Respondent offered several times to apply the anti-microbial agent in a gas/vapor state, but that Complainant was evasive in his response to the Respondent, questioning how he could be sure the agent reached all the spaces above and on the walls. In Investigator Cruz’s opinion, Complainant would not be satisfied unless Respondent removed all sheetrock and insulation that had been installed and the anti- microbial agent reapplied, but he noted that Complainant was evasive with vague answers even when presented with this proposal. 9. On May 30, 2013, Investigator Cruz issued a written directive to Respondent to correct by appropriate means and per scope as detailed in insurance scope the following: Master Bathroom Complaint Items: 1. Ceiling and wall not properly removed; 2. Unpainted areas by light switch. Hall Bathroom Complaint Items: 1. No paint above doorway; 2. No sheetrock above doorway; 3. Ceiling perimeter has plaster spaces; 4. Screw fasteners missing along left bottom wall; 5. Front corner not sanded; 6. Visible tap along door frame; 7. Sheetrock cut-outs to large—faucet, light fixture, gray water drain

Living Room Closet:

1. Un-sanded texture upper corners; 2. Exposed paper around doorway; 3. Inner door molding not sanded on top.

Living Room:

1. Uneven painting/overspray walls ceilings; 2. Overspray ceiling perimeter; 3. Visible Phillips screws in sheetrock (garage side) not covered with mud/texture/paint; 4. Trowel marks front wall light switch; 5. Light switch outlet over cut by front door; 6. Trowel marks north living room wall; 7. Uneven butting/joining of sheetrock on ceilings (valley); 8. Crack in sheetrock/texturing ceiling east to west by ceiling outlet; 9. Trowel marks on east wall; 10. Loose electrical fixtures.

Kitchen Dining Area

1. Un-sanded textured areas on kitchen ceiling drop; 2. Overspray along ceiling perimeter; 3. Trowel marks on pony (vertical and horizontal; 4. Trowel marks on south wall; 5. Loose outlets; 6. Texture overspray on pony baseboard; 7. Crooked lower window casing (right side).

10. No corrective action was ordered in connection with the application of an anti-microbial agent. Investigator Cruz stated, “This investigator was not present during the application of the anti-microbial agent, to witness if application was improperly finished or applied, nor to witness supervision protocol of respondent.” 11. On February 12, 2014, Investigator Cruz performed a compliance inspection at Complainant’s home. At that time, he found that Respondent had performed all corrective work on the items contained in the directive. 12. On August 11, 2015, the Registrar issued a Citation against Respondent, charging a possible violation of A.R.S. § 32-1154(A)(2), and A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3). 13. Complainant testified that Respondent failed to pull necessary permits. He testified regarding missing, damaged and discarded personal property, and about Respondent’s failure to return his property when requested. He explained that Travelers prepaid storage of his belongings for four months but that when he requested that they be returned, Respondent held them hostage until he paid his final bill. 14. Complainant’s biggest issue with Respondent was its failure to apply an anti-microbial agent contrary to the scope established by Travelers. Attached to Complainant’s Complaint of April 12, 2013 is a “Tape Lift Summary Report” from JRM Environmental, dated March 26, 2013. Complainant is listed as the client and recipient of the report which identified Mycelial Fragments, 25%, and Aspergillus/Penicillium Like, 75%, on the sample that had been analyzed. No information about the sample (such as size, composition, location from which it was taken, when it was taken, how it was stored, packaged or delivered, etc.) was set forth in the report. At the hearing, Complainant submitted a report from IAS Laboratories dated April 14, 2014.[1] The report provided a material analysis of an unidentified sample or samples in which neither Ammonical-N nor Chloride was detected. In a statement faxed to Investigator Cruz dated “May 3, 2014/May, 12,” to which this report was attached, Complainant explained that these chemicals are included in Sanimaster 6, the anti-microbial that Garron Cadiente told him was used in the residence. Complainant stated: The enclosed laboratory report did not detect the ammonium chloride necessary to complete this molecular structure in an area required by the Scope to be sprayed. Therefore, SaniMaster6 [sic] was not sprayed in the area of the kitchen when it was required. Mr. Cadiente did reduce his final invoice by several hundred dollars instead of doing what he agreed to do.

Complainant also submitted an object that he said was part of his house that was not treated with an anti-microbial.[2] 15. Complainant did not identify any items from directive that remained unresolved. He could not say with which items he was still having issues. He had no response when asked what work he directed Respondent to do after he took over as General Contractor on the project. 16. Investigator Cruz testified regarding his inspections of Complainant’s residence. He explained that the Registrar does not perform inspections for the absence or presence of anti-microbial agents. He said at the time of the jobsite inspection in May 2013, there was no mention of the walls being treated by the anti-microbial, only the attic. Regarding the IAS report, Investigator Cruz pointed out that it lacked specificity, such as time, condition, or relative humidity, or from where in the house the sample was taken, and that the report indicated only that the listed chemicals were not detected inside or outside. He described the test “vague at best.” 17. Investigator Cruz testified that in his opinion that Respondent was in total compliance with the directive. 18. Garron Cadiente testified that Complainant assumed the role of the general contractor on this project. He assumed that Complainant pulled necessary permits. 19. Cadiente testified that he holds certifications in mold, restoration and drywall. He explained that the insurance adjuster was a “cat” adjuster, that is, an adjuster from out of state sent in because of mini-cat (mini-catastrophic) conditions; in this case, arising from freezing weather conditions. Cadiente indicated that the scope prepared by the adjuster was subject to modification depending on actual conditions. He explained that whether and to what extent the application of an anti-microbial agent is required depends on the type of water causing the damage. He said there are three types: clean (drinkable), gray (such as water from a dishwasher or fish tank), and black water (such as sewage or ground water). He testified that the water causing the damage at Complainant’s residence from a frozen overhead pipe was clean water. Cadiente witnessed the spraying of the affected ceiling but not the spraying of other areas of the house. He did not admit that the other areas were not sprayed, but because he had not personally witnessed it, Respondent ended up backing out the charges ($475.38) for the anti-microbial application. 20. Cadiente said that Complainant accrued storage fees for his personal property in excess of the amount prepaid by the carrier when Complainant took over the project and delays ensued. He explained that it is Respondent’s policy to request final payment upon packing back a customer’s property. When Complainant refused to pay, Respondent returned the property without payment. 21. One of the attachments to Complainant’s May 6, 2013 submission to Investigator Cruz was a Building Permit issued on February 11, 2013, to Complainant as owner/agent. The type of permit is Building/Owner- Builder/Residential. The proposed use was stated as “RESTORATION WORK FOLLOWING BROKEN PLUMBING (FREEZE).” 22. Administrative notice is taken of Respondent’s licenses as reflected on the Registrar’s public website on January 21, 2016. Said license record reflects that Respondent’s License No. 264008 was first issued on March 30, 2010, was suspended for lack of bond from September 20, 2012 through October 23, 2012, and is current. It has one open matter and has had no prior complaints resulting in discipline. Respondent’s License No. 299178 was first issued on June 9, 2015. It is current and has had no prior complaints resulting in discipline. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction.[3] 2. Complainant bears the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence.[4] 3. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[5] A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”[6] 4. Complainant established by a preponderance of the evidence that Respondent violated A.R.S. § 32-1154(A)(3),[7] namely A.A.C. R4-9- 108,[8] because its workmanship in various areas of Complainant’s residence did not comply with the Registrar’s standards in the specific respects identified in the May 30, 2013 directive. However, as a matter of policy, the Registrar allows licensed contractors to attempt to repair their work before their licenses are disciplined. 5. Investigator Cruz credibly testified that all the deficiencies identified in the directive had been appropriately corrected when he conducted a Compliance Inspection on February 2, 2014, and that there was total compliance at the time of his prehearing inspection on January 6, 2016. Therefore, although it appears that Respondent did not comply until after the date contained in the directive, Complainant did not establish that Respondent failed to perform appropriate corrective work to comply with May 30, 2013 Directive. Therefore, Complainant did not establish that Respondent violated A.R.S. § 32-1154(A)(22).[9] 6. Complainant obtained a building permit for the restoration work on his residence. He provided no evidence as to what other permits were required or should have been obtained by Respondent. Complainant did not establish that Respondent failed to pull required permits in violation of A.R.S. §32-1154(A)(2).[10] 7. There is conflicting evidence regarding whether Respondent applied an anti-microbial agent to all required areas. The document from Travelers attached to Complainant’s May 6, 2013 submission to the Registrar, by its language, sets the scope of the work to be done, including the application of an anti-microbial agent. Cadiente’s testimony suggested that, as between him and the adjuster, he had the unilateral authority to depart from the scope based on his certifications and the type of water causing the damage. This may be true but it begs the question whether any anti-microbial agent was applied. Complainant’s allegation is that it was not. He offered the reports from IAS and JRM Environmental, and the sample from his residence to prove that no anti-microbial agent had been applied. However, Complainant did not call representatives from either testing facility to explain the reports. The reports, themselves, are so vague as to be without probative value. The sample from his residence had no intrinsic evidentiary value bearing on the issue. Garron Cadiente testified that he witnessed the spraying of the ceiling. There is evidence in the record that an employee of Respondent was sure he had sprayed, although he did not specifically remember doing so. The evidence on both sides is weak but it was Complainant’s burden to prove that the anti-microbial agent was not applied and he has failed to meet that burden. Therefore, Complainant has failed to met his burden of proof that Respondent departed or disregarded the scope set by the insurance carrier for application of an anti- microbial in violation of A.R.S. § 32-1154(A)(2). RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order in this matter, Complainant David J Hinchliffe’s complaint in Case No. 2013-1970 against Respondent Cadiente Construction LLC dba Service Master Restoration by Cadiente License Nos. 264008 and 299178 shall be dismissed. In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be five days from the date of that certification. Done this day, January 21, 2016.

/s/ Harriet Turney Administrative Law Judge ----------------------- [1] Exhibit 4. [2] Exhibit 6 [3] See A.R.S. § 32-1154(A). [4] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [5] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [6] Black’s Law Dictionary at page 1220 (8th ed. 1999). [7] A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” [8] A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” [9] A.R.S. § 32-1154(A)(22) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure 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.” [10] A.R.S. § 32-1154(A)(2) includes among the ground for suspension, revocation or other disciplinary action against a contractor’s license, “[d]eparture 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 that 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.”

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826