ALJDEC decisions subject to certification as final

2014A-2732-ROC · Registrar of Contractors · 2015-09-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 23, 2015, at 8:00 a.m. APPEARANCES: Sander Zandbergen (hereinafter “Complainant” or “Mr. Zandbergen”) appeared on his own behalf. Dean Everett Collier dba Creative Home Innovations Company, License No. 278196 (hereinafter “Respondent” or “Mr. Collier”) appeared on his own behalf. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

The hearing was convened to determine whether Respondent violated the charged provisions A.R.S. § 32-1154(A)(3) as alleged by Complainant and as cited by the Registrar of Contractors (hereinafter “Registrar”). Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT Respondent is the holder of License No. CR61.278196-D issued by the Registrar. Respondent’s License No. CR61.278196-D License was voluntarily cancelled on April 16, 2015. This is a residential matter in which on or about April 28, 2014, Complainant contracted with Respondent for the removal of acoustic (“popcorn”) ceiling material and the re-texture of the ceiling at his residence at 1349 E. Fort Lowell Road, Unit C (hereinafter the “residence”). Respondent removed the acoustic ceiling material and installed new ceiling texture on or about April 30, 2014, and Complainant paid Respondent the agreed-upon amount of $40 per hour for a total of $568.42. Shortly after Respondent completed its construction work at Complainant’s residence, Complainant discovered that the acoustic ceiling material contained Asbestos and that his residence had been contaminated with Asbestos. Complainant contacted Respondent and requested that Respondent pay to resolve the Asbestos contamination that Respondent caused in the residence. Respondent denied any responsibility for the Asbestos problem. On or about July 3, 2014, Complainant filed a Complaint against Respondent with the Registrar. Pursuant to the filing of the formal Complaint, an assigned agency Investigator conducted an onsite inspection of Complainant’s residence. On December 17, 2014, a written Directive was issued by the Registrar. The written Directive provided, in relevant part, as follows: After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see A.A.C. R4-9-108). You are hereby directed to remedy the following violations by the appropriate means:

1. Complaint of: “contractor did not test for asbestos”, contractor failed to test for asbestos, contractor is in violation of OSHA 1926.1101 regarding asbestos removal and testing. 2. Complaint of: “contractor failed to follow industry standards for acoustic ceiling removal”, jobsite found contractor is in violation of OSHA 1926.1101 removal of asbestos and Pima County air pollution code 17 and failed to obtain required permit and inspection. 3. Complaint of: “texture on ceiling poorly done”, jobsite found areas of uneven texture, contractor to correct by appropriate means.

Respondent failed to comply with the written Directive. After Respondent failed to comply with the Registrar’s written Directive, Complainant requested the Registrar to issue a Citation against Respondent’s license. On May 21, 2015, the Registrar issued a Citation for Alleged Violations of A.R.S. § 32-1154 and rules adopted by the Registrar. That Citation contained the following charge: Charge 1: A violation of Rule 4-9-108, titled ‘Minimum construction Standards,’ in the Arizona Administrative Code, and thereby of A.R.S. § 32-1154(A)(3).[1]

Mr. Zandbergen testified that the Respondent failed to test for Asbestos and failed to take any precautions when Respondent removed the acoustic material in his residence. Mr. Zandbergen stated that his residence was contaminated with Asbestos and that he was required to spend thousands of dollars to resolve the Asbestos contamination caused by Respondent. Mr. Zandbergen said that Respondent has made no effort to resolve the Asbestos contamination, despite the written Directive issued by the Registrar. The assigned Registrar Investigator, Frank Grochocki (hereinafter “Investigator Grochocki”), testified that he had performed the onsite inspection and that he had prepared the written Directive. Investigator Grochocki stated that no compliance inspection was performed because Respondent had taken no corrective action in response to the written Directive. Investigator Grochocki testified that Respondent acknowledged that he had failed to test for Asbestos before removing the acoustic ceiling in Complainant’s residence. Investigator Grochocki said that it was Respondent’s responsibility as a licensed contractor to do so before performing any work. Investigator Grochocki said that Respondent had disregarded and departed from OSHA and Pima County code requirements. Investigator Grochocki said that Respondent had failed to perform his construction work at Complainant’s residence in accordance with professional workmanlike standards. Investigator Grochocki opined that Respondent did not comply with the Registrar’s Directive. Investigator Grochocki’s testimony is found to be credible. Mr. Collier testified that he did not have a contract with Complainant. Mr. Collier said he was working as an hourly employee for Complainant rather than as a licensed contractor. Mr. Collier acknowledged that he did not test the acoustic material for asbestos and that he did not obtain a permit for the construction project. Mr. Collier stated that most homeowners do not want to know if they have Asbestos in their residence as the cost of the removal of the Asbestos would prevent them from performing remodeling projects on their residences. Mr. Collier asserted that he had not been permitted to present his side of the story at the onsite inspection. Mr. Collier stated that he was no longer contracting and that he was now living in the State of Washington with his parents. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1154(A). The canceled status of Respondent’s Class No. CR61.278196-D License does not deprive Complainant of his right to prosecute his complaint against Respondent or prevent the Registrar from determining the merits of Complainant’s Complaint. See A.R.S. § 32-1154(C). 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. 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). Complainant established by a preponderance of the evidence that Respondent failed to obtain a required permit to remove the acoustic ceiling material in Complainant’s residence and that Respondent failed to test the acoustic ceiling materials in Complainant’s residence for asbestos before Respondent removed the acoustic ceiling material. Complainant established that Respondent failure to comply with applicable OSHA and code requirements and caused Asbestos contamination in Complainant’s residence. Complainant established that the new ceiling texture installed by Respondent contained areas of uneven texture. Complainant established that Respondent failed to comply with the Registrar’s written Directive. Complainant established that Respondent’s work at Complainant’s residence failed to comply with applicable workmanship standards. This Tribunal concludes that Respondent violated the charged provisions of A.R.S. § 32-1154(A)(3), namely, A.A.C. R4-9-108. RECOMMENDed order In view of the foregoing, it is recommended that Respondent’s License No. CR61.278196-D License be revoked. 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 five days from the date of the certification. Done this day, September 23, 2015.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] 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. 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.

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