ALJDEC - Licensing
2022A-10056-CHC-ROC · Registrar of Contractors · 2023-09-13
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Anne Voreios,
COMPLAINANT,
v.
Schmidt Carpentry LLC,
License No. ROC 293496,
RESPONDENT.
No. 2022A-10056-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: August 24, 2023.
APPEARANCES: Anne Voreios represented herself. Chuck Schmidt represented Schmidt Carpentry LLC.
ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn
___________________________________________________________________
FINDINGS OF FACT
Respondent is the holder of License No. 293496, CR-7 Carpentry, issued by the Arizona Registrar of Contractors (Registrar, or ROC) in July 2014.
On November 1, 2022, the Registrar received Complainant’s Licensed Complaint Form (Complaint) indicating that, as to Respondent’s work, a window was leaking, there was resultant damages in the kitchen, and she was seeking reimbursement for clean-up and to rebuild.
Complainant contracted with Respondent to frame her new home build. At that time, she provided to them the sizes of the windows she wanted and their locations. Complainant was satisfied with the framing.
However, during the COVID material supply issues, Complainant was unable to obtain the originally planned windows and later obtained a different grouping of windows (Windows2) that did not match the original specifications Complainant had provided to Respondent for the framing.
Subsequent to the framing, Complainant requested that Respondent provide labor only for siding installation and the Windows2 installation; Respondent provided a bid estimate. In order to make these new materials “work” for the home build, Complainant reoriented some of the windows and the locations.
At hearing, Complainant argued that Respondent had, in fact, “seen” the Windows2 sizes when they helped her store them after those windows arrived until their use, implying Respondent should have known how to install them correctly. At hearing, Respondent agreed they helped her move the Windows2 to a storage area at that time but indicated that they did not assess or measure the Windows2 at that time.
Complainant made adjustments to the locations for installation and in some instances, or at least one, Complainant requested that one particular kitchen window be installed in an orientation other than as was manufactured to be installed (here, horizontally rather than vertically). Respondent recalled having brought to her attention at that time that such discrepancies could affect the integrity of the installation but indicated that Complainant insisted on the Windows2 being installed as she wanted.
After installation, Complainant called Respondent to come out and recaulk the/some windows and to address siding issues (rattling, etc). Respondent addressed the siding and removed and reinstalled the Kitchen window. Complainant later again called Respondent out due to leaks and upon removal of the kitchen window, Respondent found that the window itself had retained water. At hearing, Respondent indicated that the water was coming into the window through the weep holes that, in a correct orientation, would have been the “side” weep holes; on Complainant’s insistence, Respondent again reinstalled the window.
After receiving the Complaint, Registrar’s Investigator Jason Simpson conducted a jobsite inspection on March 29, 2023 and, thereafter, issued a Written Directive (Directive) verifying that three specific complaint issues had been verified as needing corrective work.
The April 6, 2023 Directive noted the following three items to be corrected:
Complaint Item 1: “Window leaks”
Investigator’s Observation: This allegation is verified as the responsibility of the respondent. Verified window leaking into residence. Weep holes on the side of window not at the bottom. Respondent should
fix by appropriate means.
Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.
Complaint Item 2: “Kitchen damages from water, seeking reimbursement for cleanup and rebuilding it”
Investigator’s Observation: This allegation is verified as the responsibility of the respondent. Verified damage to inside kitchen was caused by leak in above window. Respondent to repair by appropriate
means.
Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.
Complaint Item 3: “Siding not installed properly loose panels.”
Investigator’s Observation: This allegation is verified as the responsibility of the respondent. Verified allegation of loose panels. Respondent should make proper repairs per manufacture instructions.
Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.
The Registrar set forth April 24, 2023 as the deadline for Respondent’s compliance with the Directive.
On May 24, 2023, Investigator Simpson conducted a compliance inspection and determined that the Directive items had not been corrected; he forwarded the Complaint to ROC legal department for legal citation against Respondent.
The Registrar issued a Citation on June 6, 2023, charging Respondent’s license with possible violations of: ARIZ. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108; ARIZ. Rev. Stat. § 32-1154(A)(12), namely ARIZ. Rev. Stat. § 32-1158; and, Ariz. Rev. Stat. § 32-1154(A)(22).
Ariz. Rev. Stat. § 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.”
Ariz. Admin. Code 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.”
Ariz. Rev. Stat. § 32-1154(A)(12) includes among the grounds for disciplinary action a failure in any material respect to comply with this chapter. Here, Ariz. Rev. Stat. § 32-1158 was cited regarding elements of a written contract.
Ariz. Rev. Stat. § 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.”
On June 20, 2023, Respondent filed an Answer to the Citation, setting forth the chronology of events and specifying the efforts to resolve the matter with addressing the leak and the siding.
At hearing, Complainant testified regarding the chronology of events, starting with July 28, 2022 when there was a “flooding” of water in the kitchen after which she had it dried out and then attempted to have Respondent address the matters. Complainant argued her kitchen was still not intact and that there remained siding issues. However, Complainant also acknowledged that she had not answered Respondent’s two emails after the Directive.
At hearing, Respondent indicated he had reached out to Complainant two times and that he had also, prior to the Directive, gone back to address her issues. Respondent noted that siding-rattling issues are common and that he had addressed it, and could again address it, with small finish nails. Respondent argued that he cannot stop the window from acquiring water because the weep holes are in the incorrect position due to the orientation. While Respondent indicated he could try to drill new weep holes, he also indicated that he could not guarantee it would solve the window retaining-water issue.
Since the hearing session in August 2023, neither party has notified the Tribunal that the matter was resolved informally between the parties prior to the date of this recommended decision.
Administrative notice is taken today of Respondent’s license record with the Registrar, which reflects that there are no open complaints.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat. § 32-1101 et seq.
Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code R2-19-119.
In this case, Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See Ariz. Rev. Stat. § 41-1092.07(G)(2); Ariz. Admin. Code R2-19-119(A) and Ariz. Admin. Code Section R2-19-119(B)(1); see also Vazzano 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).
A preponderance of the evidence is:
The 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.
Black’s Law Dictionary 1373 (10th ed. 2014).
5. Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.").
6. “Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).
7. The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995).
8. Construction is not a perfect art and, normally, contractors must be allowed an opportunity to correct poor workmanship before their licenses may be suspended or revoked as a result of a failure to comply with workmanship standards.
9. Following the issuance of the Directive mandating correction of items regarding workmanship, Investigator Simpson found workmanship contracting violation issues still existed at the time of the May 2023 compliance inspection; he noted that these same workmanship issues remained uncorrected.
10. Therefore, the Administrative Law Judge concludes that the Investigator-determined workmanship issues existed and, thus, Respondent was in violation of Ariz. Rev. Stat. § 32-1154(A)(3), specifically Ariz. Admin. Code R4-9-108 for failure to perform all work in a professional and workmanlike manner.
11. The Administrative Law Judge further concludes the hearing record demonstrated that Complainant essentially prevented Respondent from make corrections through Complainant not responding to Respondent after the Directive to allow him access to make the corrections. Therefore, there is no violation of Ariz. Rev. Stat. § 32-1154(A)(22) for failure to take appropriate corrective action.
RECOMMENDED ORDER
Based on the foregoing, the Administrative Law Judge recommends that the Registrar suspend Respondent’s ROC License 293496 for one day.
Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision by the Office of Administrative Hearings.
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 forty (40) days from the date of that certification.
Done this day, September 13, 2023.
/s/ Kay A. Abramsohn
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Cindy Casaus
Registrar of Contractors
c/o Legal Department
[email redacted]
Jason Simpson
ROC Investigator
[email redacted]
Schmidt Carpentry LLC
PO Box 247
Valley Farms, AZ 85191
[email redacted]
Anne Voreios
151 W Superstition Blvd #693
Apache Junction, AZ 85120
[email redacted]
By: OAH Staff