ALJDEC decisions subject to certification as final

2021A-03614-CHC-ROC · Registrar of Contractors · 2022-01-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

David J Walter,

COMPLAINANT

Water Fighters LLC

DBA: Water Fighters,

License No. ROC 324471,

RESPONDENT

No. 2021A-03614-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 4, 2022

APPEARANCES: Complainant David J. Walker appeared on his own behalf. Respondent Water Fighters LLC, doing business as Water Fighters was represented by Taylor Tondevold.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Water Fighters LLC, doing business as Water Fighters (Respondent) is the holder of License No. 324471 issued by the Arizona Registrar of Contractors (Registrar).

On or about July 21, 2021, David J. Walter (Complainant) had water leaking into his home during a severe storm. Complainant contacted Respondent, the first water restoration company that came up in his search.

On or about July 12, 2021, Complainant was provided with an Authorization to Perform Services and Direction of Payment (Authorization) from Respondent, which provided, in pertinent part, as follows:

The undersigned Customer, being the building owner, owner’s representative, or resident, authorizes the Provider identified below to perform any and all necessary cleaning and/or restoration services on customer’s property located at the property address above, and, with respect to items that need to be cleaned at a remote location, to remove and clean such items as necessary.

The Authorization included Respondent’s license number but did not include any specific scope of work, pricing, or payment schedule, or a statement that Complainant had the right to file a complaint with the Registrar.

On or about July 30, 2021, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator David Fagerburg. After a jobsite inspection, Investigator Fagerburg issued a written directive to Respondent that provided as follows:

After investigation, the Registrar determined that you failed to meet the requirements of A.R.S. § 32-1154(A), and now issues this Directive requiring you to take appropriate corrective action. Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a citation, discipline of your license, and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on Monday October 18, 2021.

. . . .

DIRECTIVE REQUIREMENTS

You are directed to remedy the following violations by the appropriate means:

Compliant Item 3: Moisture in wall cavities were not properly dried out (no holes drilled or cut for air circulation in cavities)... 14 fans and 4 dehumidifiers used to blow and dry out air in the house.

Investigator’s Observation: The respondent is to complete the water remediation project at the family room wall near the sliding glass door, bedroom 1 ceiling above the window and the wall below the window including the floor covering, master bedroom ceiling above the window, the wall below the window and between the window and the sliding glass door and the garage ceiling and wall at the southwest corner by appropriate means.

Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Compliant Item 1: Other than pics of Thermal Imaging, there was no documentation of moisture measurements or monitoring documented

Investigator’s Observation: After this jobsite investigation, the respondent provided all related documentation including the moisture monitoring report and a copy has been provided to the complainant.

Governing Rule: No Action

Compliant Item 2: Told to e-sign contract prior to starting emergency work (yet no scope of work was described or dollar amount discussed)

Investigator’s Observation: The respondent acknowledged that there is no scope of work described or dollar amount discussed.

Governing Rule: ARS §32-1158 (A) Minimum elements of a contract

Compliant Item 4: We now have concerns of mold growth over those nine days, and potential health issues from mold.

Investigator’s Observation: I am unable to verify whether or not there may be potential health issues from mold growth over those nine days.

Governing Rule: No Action

Compliant Item 5: Exorbitantly high invoice for the set up, running and decontaminating 17 fans (only 14 used) and 4 dehumidifiers.

Investigator’s Observation: I informed both parties that the ROC does not have authority over how much a contractor charges for their services.

Governing Rule: No Action

Following the issuance of the written directive, Respondent did not perform any additional work on the project. After the deadline in the directive expired, Investigator Fagerburg was notified no corrective work had been performed.

The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108; A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158; and A.R.S. § 32-1154(A)(22).

Investigator Fagerburg testified that proper water remediation in this situation would require Respondent to cut away part of the drywall to allow the air to circulate through the interior of the wall and possibly pull up some carpet to prevent the formation of mold. Investigator Fagerburg acknowledged that the Registrar did not have a license type for water remediation. Investigator Fagerburg agreed that the work Respondent performed for Complainant did not require a license from the Registrar.

Complainant testified that on night of July 12, 2021, he experienced a leak in his home after a severe storm. Complainant contacted Respondent to perform water remediation services. Complainant stated that he understood Respondent would “restore [the home] to living condition.”

Cesar Ontiveros, Respondent’s Owner and Qualifying Party, testified that Respondent was not hired by Complainant to perform any construction work on the project. Mr. Ontiveros asserted, rather, that Respondent was only hired to perform the first phase of the water restoration. Mr. Ontiveros described the process used as a “dry in place” method in which Respondent did not open the walls or tear up carpet to minimize the cost to the homeowner in case the insurance company denied the claim and homeowner would have to pay for the services out of pocket as occurred to Complainant in this case. Mr. Ontiveros described this process as including thermal imaging, dehumidifiers, and fans. Mr. Ontiveros indicated that many homeowners appreciate the attempts Respondent made to minimize costs.

Administrative notice is taken of Respondent’s prior License record on January 24, 2022. Such prior License record reflects that Respondent’s License No. 324471 was first issued on May 4, 2019, and is active. Such prior License record also reflects that there were no other open or prior complaints against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “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).

Respondent’s argument that it was not contracted to perform any construction work was undercut by the testimony of Investigator Fagerburg who testified that to properly conduct water remediation in this instance would require cutting open the drywall and tearing up some carpet. Further, the terms of the contract, while extremely vague, allowed that Respondent was authorized to perform “any and all necessary . . . restoration services” to address the problem. While Respondent did not perform any construction work on the project, to properly conduct the work contracted for, Respondent should have performed construction work. Accordingly, the failure to do so was not in conformity with the Registrar’s standards. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A).

The evidence established that Respondent’s contract failed to include the required elements of a contract set forth in A.R.S. § 32-1158(A). Therefore, Complainant established that Respondent failed to comply with the Registrar’s statute in violation of A.R.S. § 32-1154(A)(12).

The evidence established that Respondent did not attempt to complete the corrective work following the Directive being issued. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License No. 324471 for a period of five days.

It is further recommended that, on or before thirty days after the effective date of the final order, Respondent shall provide a sample contract to the Registrar to demonstrate that it has amended its contracts to include the nine terms required by A.R.S. § 32-1158(A). If Respondent fails to establish to the Registrar that it has brought its contracts into compliance with A.R.S. § 32-1158(A) within thirty days, its contractor’s license shall be suspended until it demonstrates that it has done so.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 32-1154(E).

It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(5), unless Respondent tenders payment of any outstanding prior civil penalty.

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 40 days from the date of that certification.

-54864001

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-137160-45720000Done this day, January 24, 2022.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

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-137160-45720000