ALJDEC decisions subject to certification as final
2017A-4556-CHC-ROC · Registrar of Contractors · 2018-02-05
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
John A. Kupferschmidt,
COMPLAINANT,
v.
Jeffrey Troy Ohmsatte dba,
Ohmsatte Flooring Installations ,
License No: 176331
RESPONDENT.
No. 2017A-4556-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: January 16, 2018
APPEARANCES: Complainant John A. Kupferschmidt appeared on behalf of himself. Jeff Ohmsatte appeared on behalf of Respondent Jeffrey Troy Ohmsatte dba,
Ohmsatte Flooring Installations.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
On November 21, 2017, the Registrar of Contractors, (hereinafter “Registrar”), issued a Notice of Hearing setting the above-captioned matter for hearing on January 16, 2018, by the Office of Administrative Hearings in Phoenix, Arizona.
Respondent Jeffrey Troy Ohmsatte dba, (hereinafter “Mr. Ohmsatte”), holds license 176331 issued by the Registrar.
3. The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and Complaint.
4. Through the Citation, the Registrar alleges that Mr. Ohmsatte may have violated A.A.C. Rule 4-9-108 and Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22). The Citation shows that if the Administrative Law Judge finds that any of the alleged charges are valid, the Registrar may suspend or revoke Mr. Ohmsatte’s license.
5. On or about July 8, 2017, Complainant John A. Kupferschmidt (Mr. Kupferschmidt”) and Respondent Jeffrey Troy Ohmsatte Ohmsatte dba, Ohmsatte Flooring Installations entered into an agreement wherein Mr. Ohmsatte agreed to install new hardwood flooring in Mr. Kupferschmidt’s home.
6. In or about August of 2017, Mr. Ohmsatte began work under the contract.
7. On or about September 6, 2017, the Registrar received a complaint from Mr. Kupferschmidt alleging poor workmanship on the part of Mr. Ohmsatte.
8. On or about September 12, 2017, Mr. Ohmsatte filed a civil lawsuit against
Kupferschmidt for breach of contract with regard to the July 8, 2017 construction agreement.
9. The Registrar assigned investigator Chris Allison to the complaint.
10. On or about September 29, 2017, Investigator Allison conducted an initial on-site job site inspection.
11. On or about October 2, 2017, Investigator Allison issued a Directive. The October 2, 2017 Directive provides, 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 must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 prior to October 30, 2017. You are hereby directed to remedy the following violations by the appropriate means:
Item 1 – Upstairs carpet
The Respondent agreed to re-stretch the carpet. Correct by appropriate means.
Item 2 – Subfloor
The subfloor was not leveled to within manufactured specifications prior to the installation of the floating floor. Correct by appropriate means.
Item 3 – Floor Joints
Butt joints of floor were not per manufactured specifications. Correct by appropriate means.
Item 4 – Flooring Pattern
The floating flooring was not installed in an appropriate pattern to achieve a pattern repeat and color mix. Correct by appropriate means.
Item 5 – Floor finish molding at Exterior Doors
The finish molding at the exterior door was not installed. Respondent agreed to correct. Correct by appropriate means.
Item 6 – Base Trim
The base trim was installed poorly with incorrect miters or no miters at all. Some pieces were damaged. Correct by appropriate means.
Item 7 – T-Molding at doorways
The T-Molding in the doorways are not centered in the casing. Correct by appropriate means.
Item 8 – T-Molding Track
T-Molding track was not used. Correct by appropriate means.
Item 9 – Vanity Kick Plate
The bathroom vanity kick plate was damaged during the installation of the trim. Respondent agreed to correct. Correct by appropriate means.
Item 10 – Marks on Flooring
There are Sharpie marks of the floating flooring. Correct by appropriate means.
The Respondent agreed to install the carpet in the storage area under the stairs as long as there was enough left over carpet.
12. Mr. Ohmsatte did not correct the items listed in the Directive by October 30, 2017.
13. Mr. Ohmsatte filed a timely response to the Citation and Complaint. The Citation and Complaint provides, in relevant part, as follows:
I have tried to please the Kupferschmidt’s and was told by John that they will never be satisfied with what I do to fix the situation which I know is unfair. The problems they are worried about is also unfair. He is not a floor inspector and neither is the R.O.C. This needs to be dealt with by a professional inspector which should be paid by the Kupferschmidts.
We did try in our time period to fix the issues but John and his wife made it hard to do so.
14. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
15. At hearing, Mr. Kupferschmidt testified that Mr. Ohmsatte continuously failed to show for scheduled appointments to make repairs. Mr. Kupferschmidt stated that on October 20, 2017, Mr. Ohmsatte came to his home to repair the floor. However, Mr. Ohmsatee only wanted to repair a portion of the floor instead of removing all of the floor.
16. Mr. Ohmsatte testified that when he went to MR. Kupferschmidts home to repair the floor, Mr. Kupferschmidts kicked him out after he refused to remove the entire floor.
17. Mr. Ohmsatte initially testified that he could not recall whether he went to Mr. Kupferschmidtsh home on October 27, 2017 to make repairs. Later, Mr. Ohmsatte testified that he did go to his home on October 27, 2017, but Mr. Kupferschmidt did not let him in.
18. Mr. Kupferschmidt testified that he was at his home all day on October 27, 2017, but Mr. Ohmsatte never came.
19. Mr. Kupferschmidt also testified that M. Ohmsatte scheduled an appointment for October 20th and another date during the directive but did not show up.
20. Mr. Ohmsatte had admitted a judgment from small claims court in which Mr. Kupferschmidt was ordered to pay him for the work completed.
21. Mr. Ohmsatte testified that Mr. Kupferschmidts continuously refused him access to his home.
22. Mr. Kupferschmidts testified that he never denied Mr. Ohmsatte access. However, Mr. Kupferschmidt testified that he did not trust Mr. Ohmsatte
because he performed poor work in his home.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-
1154(A).
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).
The preponderance of the evidence does not show that Mr. Ohmsatte violated Ariz. Rev. Stat. section 32-1154(A)(22) by failing to comply with the Directive because Mr. Kupferschmidt did not allow Mr. Ohmsatte access to correct the work.
Mr. Kupferschmidt insisted that Mr. Ohmsatte repair his floor by removing the entire floor. Mr. Mr. Kupferschmidt did not allow Mr. Ohmsatte to correct the items the items by the means which Mr. Ohmsatte determined to be most appropriate.
5. The preponderance of the evidence established that Complainant denied Respondent reasonable access to his residence to comply with the terms of the written Directive issued in this matter. This Tribunal concludes that the preponderance of the evidence of record is insufficient and fails to support a conclusion that Respondent violated the charged provisions of A.R.S. §§ 32-1154(A)(3), namely, A.A.C. R4-9-108, and A.R.S. 32-1154(A)(22).
RECOMMENDed order
In view of the foregoing, it is recommended that this matter 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 is forty days after the date of that certification.
Done this day, February 5, 2018
Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors