ALJDEC - Licensing

2023A-10180-CHC-ROC · Registrar of Contractors · 2025-04-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Michael Schumacher,

COMPLAINANT,

Unique Walls Plus LLC

License No. ROC 336072,

RESPONDENT.

No. 2023A-08870-CHC-ROC

No. 2023A-10180-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 26, 2024; November 26, 2024; December 5 and 13, 2024; and February 13, 2025. The record was held open until March 21, 2025.

APPEARANCES:

For Complainant: Edwinus van Vianen.

For Respondent: Mark Molique.

For the Registrar of Contractors: Aaron King.

ADMINISTRATIVE LAW JUDGE: Samuel Fox

EXHIBITS ADMITTED INTO EVIDENCE: Administrative notice was taken of (1) the Notice of Hearing Packet in 2023A-08870-CHC-ROC (Com. Not. of Hr’g Pkt.) and (2) the Notice of Hearing Packet in 2023A-10180-CHC-ROC (Res. Not. of Hr’g Pkt.) as submitted by the Registrar of Contractors (Registrar). Complainant’s Exhibits 1 through 50, except for Exhibits 6 and bates Complainant 095–096. Respondent’s Exhibits A though WW.

_____________________________________________________________________

FINDINGS OF FACT

Unique Walls Plus LLC (Respondent) was the holder of License No. 336072 issued by the Registrar on December 23, 2021.

2023A-10180-CHC-ROC: Residential Project

On or about August 5, 2022, James Schumacher (Complainant’s Father) entered into a contract with Respondent for the Residential Project, which included, among other things, building footers for layout of the home, installing concrete foundation, and installing Insulated Concrete Form walls (ICF).

On or about September 6, 2023, Complainant filed a Licensed Complaint Form with the Registrar, claiming poor work.

The Registrar assigned the complaint to Investigator King, who issued a Jobsite Inspection Notice on September 11, 2023, scheduling the inspection for September 29, 2023.

Investigator King conducted the jobsite inspection on September 29, 2023, and Respondent was present. Following the inspection, Investigator King issued a Written Directive From the Registrar to Respondent on October 3, 2023, that provided as follows:

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

Complaint Item: #1- Concrete walls were significantly out of square and out of plumb, requiring significant labor and materials to correct.

Investigator’s Observation: Confirmed. The Complainant had a third party framer construct framing on the interior of the structure and snap new lines. The lines show that the walls constructed are off. One measured off by over 2 inches in just a few feet. Also, the Complainant used a plumb bob to show that the walls are off vertically. The plumb bob was connected to framing and touched the edge of the wall top. There was several inches of gap by the bottom of the wall showing that the complaint item is verified. The walls are out of square and out of plumb. The Respondent will correct by the appropriate means.

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

Complaint Item: #2- Gravel base incorrectly compacted, causing cracking and buckling to concrete slab.

Investigator’s Observation: The complainant was unable to show that the gravel base was incorrectly compacted, or that it caused damage to the concrete slab. The slab itself however does have cracks that are outside of workmanship standards. Cracks in excess of 3/32” width or 1/8” vertical displacement or compound cracks in excess of 1/16” in width are not acceptable. I measured several random cracks and documented with pictures showing them measuring 1/8”. There were also vertical displacement from one side of the concrete over the other. This vertical displacement was 1/8” or greater. Concrete should not deteriorate to the extent that the aggregate is exposed or the aesthetics are destroyed under normal use and weather conditions. There are several areas in which the cracks have areas around them in which the top section of concrete has removed in chunks. The Respondent will correct by the appropriate means.

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

The Written Directive required Respondent to notify Investigator King of Respondent’s compliance with the directive prior to 5:00 p.m. on October 20, 2023.

On November 8, 2023, Investigator King issued a Compliance Inspection Notice, setting the inspection for November 17, 2023. On November 17, 2023, Investigator King determined that the issues had not been corrected.

On December 8, 2023, the Registrar issued a Citation against Respondent, finding cause to charge Respondent with violations of A.R.S. § 32-1154(A)(3), specifically R4-9-108(A), and A.R.S. § 32-1154(A)(22).

Respondent submitted an Answer to the Citation on December 22, 2023. Respondent’s Answer stated the work did meet workmanship standards and that it did not fail to comply with the Directive without valid justification, specifically it stated that Complainant accepted the work and that the work was modified.

The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

On January 11, 2024, the Registrar issued a Notice of Hearing on Contested Case setting the hearing for February 26, 2024, at 1:00 PM.

On January 23, 2024, Respondent requested 2023A-10180-CHC-ROC be consolidated with 2023A-08870-CHC-ROC.

2023A-08870-CHC-ROC: Commercial Project

On or about January 9, 2023, Complainant’s Father entered into a verbal contract with Respondent. The scope of the agreement was contested: it included hourly labor to dig, install concrete, and an indeterminate portion of the rough grade.

On or about August 14, 2023, Complainant filed a Licensed Complaint Form with the Registrar, claiming abandonment and poor work.

The Registrar assigned the complaint to Investigator King, who issued a Jobsite Inspection Notice on August 14, 2023, scheduling the inspection for August 31, 2023.

Investigator King conducted the jobsite inspection on August 31, 2023, and Respondent was present. Following the inspection, Investigator King issued a Written Directive From the Registrar to Respondent on September 12, 2023, that provided as follows:

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

Complaint Item: #2- Poor quality curb work,

Investigator’s Observation: The curbs width and shape had excessive variance due to poor workmanship. The curbs themselves have an unsightly finish which are not within minimum workmanship standards. Additionally, the shape and size of the curbs are not constructed according to the stamped and approved plans for the project. The Respondent will correct by appropriate means.

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

Complaint Item: #3- not conforming to the supplied drainage plan.;

Investigator’s Observation: The Respondent and Complainant agreed that the plans used were different than the stamped and approved plans on site for the project. The Respondent on site confirmed they had been working on a separate set of plans that differentiated from the stamped plans and therefore the supplied drainage on site was incorrect. The Respondent will correct by appropriate means.

Governing Rule: Workmanship rule: ARS §32-1154 (A) (2), Departure from or disregard of: (a) 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.

Complaint Item: #4- Failure to complete rough grade.;

Investigator’s Observation: The Respondent and Complainant agreed that the plans used were different than the stamped and approved plans on site for the project. Due to this, the rough grade was incorrect. The grade does not align with what the stamped and approved plans require and the Respondent will correct by the appropriate means.

The Written Directive required Respondent to notify Investigator King of Respondent’s compliance with the directive prior to 5:00 p.m. on September 28, 2023.

Respondent did not do any corrective work during the Directive period.

On October 4, 2023, the Registrar issued a Citation against Respondent, finding cause to charge Respondent with violations of A.R.S. § 32-1154(A)(2)(a); A.R.S. § 32-1154(A)(3), specifically R4-9-108(A); and A.R.S. § 32-1154(A)(22).

Respondent submitted an Answer to the Citation on October 17, 2023. Respondent’s Answer stated that Complainant’s Father and his company were acting as the general contractor and were responsible for providing materials. Complainant’s Father provided Respondent with the incorrect plans and would not provide the correct materials, so Respondent worked with what he was able to get.

The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

On October 27, 2023, the Registrar issued a Notice of Hearing on Contested Case setting the hearing for December 15, 2023, at 1:00 PM.

On January 31, 2024, the Tribunal consolidated matters 2023A-10180-CHC-ROC and 2023A-08870-CHC-ROC and set a consolidated hearing for March 27, 2024, at 9:00 AM.

Consolidated Hearing

The parties submitted several stipulated motions to continue. On June 12, 2024, the matter was set for hearing on August 26, 2024. The hearing did not conclude on that date and was set for several further hearings. The hearing was held both in-person and virtually on August 26, 2024; November 26, 2024; December 5 and 13, 2024; and February 13, 2025.

Regarding the curbs on the Commercial Project, Investigator King testified that the curbs Respondent built were not uniform in depth and thicknesses; accordingly, they were not built in conformity with the plans or completed in a professional and workmanlike manner. Investigator King stated that he was told Respondent used the wrong forms, resulting in the poor curbing outcome.

Regarding the drainage and rough grade on the Commercial Project, Investigator King testified that the drainage and rough grade were not done according to the stamped and approved plans. He stated that the parties agreed that Complainant provided the wrong plans to Respondent, which is what Respondent used for work. However, he testified that Respondent should have known the plans were not final because they were not stamped and approved, and he should have used the stamped and approved plans.

Regarding the concrete on the Residential Project, Investigator King testified that he saw vertical displacement and cracking in the slab. He testified that it exceeded the maximum allowable deviation from the applicable standards. Investigator King testified that Respondent did some work on the slab and that where he did work, it may have passed the compliance inspection, but overall, Respondent did not satisfy the Directive because he did not correct all of the identified issues, specifically the vertical lift.

Regarding the walls on the Residential Project, Investigator King testified that the walls were out of square and out of plumb. He testified that both exceeded the maximum allowable deviation from the applicable standards. Investigator King testified that Complainant told him that the wall framing was done by a third party. Investigator King testified that although he did not recall whether the trusses and roof sheathing had been installed, it appeared from the photographs taken during the compliance inspection that they were in place.

Investigator King testified that a licensee is supposed to know the correct way to do work. He stated that the licensee was responsible for ensuring that their work was completed in a professional and workmanlike manner, regardless of whether they were provided directions or materials which would result in deviation from those standards. Investigator King also testified that without a change order, a contractor should abide by the original agreement and plans.

Investigator King testified that Respondent did not correct the work as required by the Directive for the Commercial Project or the Residential Project.

Complainant’s Father testified for Complainant. He testified that he hired Respondent to do work on both the Commercial and Residential Projects. He asked Complainant to manage portions of the project and file the complaint.

Regarding the Commercial Project, Complainant’s Father testified that Respondent worked off of the wrong plans, which explicitly stated that they were “preliminary” or were not to be used for construction purposes. He testified that Respondent should have gotten the correct plans from the City of Maricopa prior to starting work on the project. He had provided Respondent with a copy of non-final plans on or about October 19, 2022, which he requested Respondent print, and a copy of the correct plans on or about March 19, 2023. He testified that Respondent never told him about what the correct forms would be or cost; he did not consent to use materials that would result in poor work; he did not tell Respondent to deviate from the plans; and Respondent recommended the materials that were used as forms.

Regarding the Residential Project, Complainant’s Father testified in support of Investigator King’s findings.

Complainant testified consistently with Complainant’s Father and in support of Investigator King’s findings. He testified that Respondent was responsible for but did not do the grading work. He testified that he did not have first-hand knowledge for a substantial portion of the work. He entered the Commercial Project around the time that Respondent’s work was deemed deficient by Complainant.

Andrew Eiler, the contractor who corrected the Commercial Project work, testified for Complainant. He testified in support of Investigator King’s findings. He testified that the grading needed to be done before the curbs were placed.

Louis Ochoa, who worked on the Residential Project, testified for both Complainant and Respondent regarding the Residential Project. He testified that the walls were out of square, out of plumb, and built incorrectly in other ways too. He testified that the framing was bolted into the walls.

Jorge Mendoza, the Qualifying Party for Respondent, testified for Respondent.

Regarding the Commercial Project, Jorge Mendoza testified that he was hired only as hourly labor. He testified that he completed the work based on the plans Complainant’s Father provided, which he was instructed to use, and with the materials Complainant’s Father provided. He stated that the rough grade was not part of his agreement, and he was not paid for that work. He testified that he thought the grading would be done after the curbs were set. He testified that he had a conversation with Complainant’s Father about the appropriate materials for curb forms, but Complainant’s Father decided to use the cheaper materials, even after Respondent warned him that it may result in inferior curbs. He testified that around the time he finished building the concrete forms, Complainant’s Father was still deciding how to address the drainage.

Regarding the Residential Project, Jorge Mendoza testified that he came onto the project to string out the outline of the house with Complainant’s Father. He testified that the outline was done properly per plan, and he was certain of that fact because the alignment was correct at that time: following the lines, corners, and curves of the home, he ended up at the starting point, which would not be the case if the layout were improperly done. He returned after the footers were dug and the pad was prepared by someone else. He testified that when he returned, the outline markers he created had been removed. He testified that he told Complainant’s Father that the footers had been dug incorrectly, but that he was told to proceed with laying the footing system. He testified that Complainant’s Father told him not to put control joints in the concrete, and he told Complainant’s Father that would likely result in stress cracking. According to Respondent, Complainant’s Father said that would be okay because the concrete would be covered.

Francisco Maldonado, a concrete contractor, testified for Respondent. He testified that when he shows up on a site to pour a foundation slab, if the pad was already prepared, he assumes that it was done properly.

John Ybarra, a general contractor, testified for Respondent. He testified that a homeowner acting as a general contractor has the responsibility of a general contractor. He testified that contractors must comply with the plans, even if instructed to deviate from them. He testified how to correct ICF wall installation for out of square or out of plumb walls: (1) shave down the wall, (2) shim the wall, or (3) fur out the wall. He testified that the final, stamped and approved, plans should be on site and used.

The critical first-hand witnesses, Complainant’s Father and, to a lesser extent, Mr. Mendoza, had credibility issues with their testimony, specifically combativeness and evasiveness. The testimony by these witnesses was considered marginally diminished in evidentiary value.

Administrative notice was taken of Respondent’s prior License record on April 10, 2025. According to that record, Respondent’s License No. 336072 was active, and there were only the two open complaints at issue in this matter against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. Respondent bears the burden of proof to establish an affirmative defense by a preponderance of the evidence.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”

To maintain a license in good standing, a licensee has an obligation to live in accordance with the rules governing their license. For example, a licensee of the Registrar of Contractors has an obligation not to commit a felony. A licensee cannot simply disclaim their status as a licensee or their obligations thereunder.

Respondent argued that Respondent was working as hourly labor, not as a licensed contractor, which Respondent posited meant discipline would be inappropriate. Respondent’s argument is unpersuasive. Respondent was licensed at the time of the work, and it maintained the obligations of a licensee to perform in a professional and workmanlike manner.

Contracts, change orders, and specific wavers protect both parties to an agreement. They ensure that the service-providing contractor has a record of work agreed to, a basis for deviating from the original agreement, and specific proof to demonstrate that the counter-party agreed to accept work that does not conform to industry standards. They also ensure that the service-receiving individual(s) consents to all of the work being done, the amount charged for the service(s), and that they receive the quality of work to which they agreed. Without a proper contract, a service-providing contractor’s responsibility defaults to meeting industry standards.

A contractor accepts the surface upon which they work. Prior to performing work, a contractor should inspect the surface for flaws or defects that would affect the work to be performed; if the surface is unacceptable, the contractor should call the defect to the owner’s attention so that the owner can choose to pay for corrective work or for the contractor to request a specific warranty disclaimer.

Respondent argued that the rough grade was not part of the original agreement, and Complainant argued that the rough grade was part of the original agreement. No contract was created to establish the parameters of the work to be done, and both individuals with first-hand knowledge of the agreement had credibility issues on this topic. A preponderance of the evidence established that Complainant’s Father, Complainant, and Respondent discussed Respondent completing some amount of the rough grade in or around July 2023. The record did not establish what exactly Respondent agreed to nor whether Respondent agreed to complete all of the rough grade and drainage.

Respondent argued that it should not be held responsible for deviations from plans or standards because Complainant’s Father was the owner and general contractor, who directed Respondent to deviate from plans and workmanship standards and then accepted the work. Respondent’s argument is unpersuasive. Licensed contractors are responsible for meeting the minimum standards of their profession, even when more than one contractor may be held responsible for the work (such as a general contractor being held responsible for subcontractors) or when a superior on the project directs a deviation from plans or standards.

Respondent argued that it relied on Complainant to provide the work surface in a proper condition; however, no waivers were provided for any portion of the project.

Respondent argued that according to the Workmanship Standards for Licensed Contractors, March 2024, for concrete, Respondent was not responsible for settling or heaving. That section states as follows:

This section applies to standard steel troweled or light broom finishes. Specialty finishes are not included.

Settling or heaving of soils under concrete caused by alteration of grades by owner or owner’s agent, which create excessive ponding or moisture adjacent to concrete foundations, walks, drives, slabs, or patios, should not be considered the contractor’s responsibility providing the contractor has met all the conditions called for in the contract, plans, specifications, and all code requirements.

The contractor should be responsible to correct or ensure correction of settling or heaving if compaction is not according to the licensed soils engineer’s report or if no alterations have been made by owner or owner’s agent.

All concrete should be placed in compliance with applicable codes and standards. This will apply to design strengths, testing, dimensions, frost lines, and reinforcement along with items not specifically contained in the codes, such as proper placement in a good and workmanlike manner to achieve appearance and function of the finished product.

Respondent’s argument was unpersuasive, and the practices of another contractor do not set the standard. Without a waiver, a contractor accepts, and is responsible for, the condition of the surface.

Both parties failed to protect themselves by using a written contract, representing their mutual understanding of the agreement on these projects.

Neglect, modification, or abnormal use of the contractor’s work are affirmative defenses to allegations that the contractor failed to “perform work in a professional and workmanlike manner or in accordance with any applicable building codes and professional industry standards.” To establish the defense, a contractor must demonstrate that the neglect, modification, or abnormal use could have been material to creating the alleged deficiency of workmanship or industry standards or materially impact the work or cost required to correct the deficiency. Subsequent work that has a de minimis impact on the issues alleged is not sufficient to establish the affirmative defense.

The preponderance of the evidence established that Respondent departed from or disregarded plans or specifications in violation of A.R.S. § 32-1154(A)(2)(a), specifically regarding Commercial Project Compliance Items 3 and 4; however, because the terms of the agreement related to those items were unclear, the record did not establish specific and measurable deviations.

The preponderance of the evidence established that Respondent failed to perform all work in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A), specifically regarding Residential Project Compliance Items 1 and 2 and Commercial Project Compliance Items 1.

The preponderance of the evidence 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) for all issues except for the corrected cracks on the Residential Project concrete.

Regarding the Commercial Project, Respondent failed to prove an affirmative defense, but Respondent introduced mitigating evidence. Respondent had an obligation to do the work according to the final plans and in a professional and workmanlike manner. On the other hand, Complainant’s Father caused significant confusion: he did not clearly establish the scope of work; he initially provided the incorrect plans; he failed to keep the appropriate plans on the site; and he failed to provide appropriate materials for a labor-only agreement.

Regarding the walls on the Residential Project, Respondent established that its work was modified by a preponderance of the evidence. At the time of the inspection, framing (one of the possible corrections) was already done, trusses were in place, and roof sheathing had been installed. To correct the walls, Respondent would have had to engage in a substantial amount of work outside of the scope of the corrections. Accordingly, Respondent’s license will not be disciplined for the walls.

Regarding the concrete on the Residential Project, Respondent failed to establish an affirmative defense. Respondent accepted the condition of the ground when it poured the concrete; without a waiver, Respondent is responsible.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend for 6 days Respondent’s License No. 336072.

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, April 10, 2025.

/s/ Samuel Fox

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Tom Cole, Director

Registrar of Contractors

Michael Schumacher

[email redacted]

Aaron King

[email redacted]

Mark Molique

Molique Law, PLLC

[email redacted]

Edwinus M. van Vianen

Fitzgibbons Law Office, P.L.C.

[email redacted]

By: OAH Staff