ALJDEC - Licensing

2024A-07049-CHC-ROC · Registrar of Contractors · 2025-07-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Victoria Sarkiewicz and

Matthew Sarkiewicz,

COMPLAINANTS,

v.

Keith Eugene Michaud

DBA: Michaud Construction,

License No. ROC 109906,

RESPONDENT.

No. 2024A-07049-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 7, 2025, with further hearing on March 14, 2025, and June 10, 2025; the record closed on June 24, 2025

APPEARANCES: Dennis Rosen, Esq. represented Complainants Victoria and Matthew Sarkiewicz, who were present. Corey Larson, Esq. represented Respondent Keith Eugene Michaud, doing business as Michaud Construction, who was present. Arizona Registrar of Contractors Investigator Miles Crosby appeared as a witness, as did Ranel Cox and Stephen Klingler.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

EXHIBITS ADMITTED INTO EVIDENCE: Administrative Notice was taken of the Agency Record; Complainants Victoria and Matthew Sarkiewicz’s Exhibits 2, 3, 4, 5, 6, 7, 8, 10, 11, 12, 13 14, 15, 16, 16 a, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 39, 40, 41, and 42; Respondent Keith Eugene Michaud, doing business as Michaud Construction’s Exhibit B

FINDINGS OF FACT

Keith Eugene Michaud, doing business as Michaud Construction (“Respondent”), is the holder of License Number 109906 issued by the Arizona Registrar of Contractors (“Registrar”).

On or about August 14, 2022, Victoria and Matthew Sarkiewicz (“Complainants”) contracted for the construction of their home. Ranel Cox is the owner of Four R Development, LLC, the developer, and Respondent was the general contractor for the construction of the home.

On or about June 21, 2024, the Registrar received a Complaint against Respondent from Complainants alleging poor work with respect to the project.

The Registrar assigned the Complaint to Investigator Mike Springer. After a September 18, 2024 Jobsite Inspection, at which both parties were present, Investigator Springer issued a Written Directive to Respondent dated September 20, 2024, 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 October 8th, 2024.

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

Complaint Item: 1 - Driveway poured by Samaniego. 2 days after we began to notice pitting on entire surface.

Investigator’s Observation: Driveway has widespread spalling over most areas. Unaffected areas are at the sections just before the garage doors. Minimal spalling at sidewalks, these are acceptable.

Complaint Item: 5 - Water, dust and air come in 5 of our windows and one sliding door.

Investigator’s Observation: Videos from Complainant show excessive water filling the tracks of 4 windows when raining. Two front windows are out of square by 1/8". Pella window website states 1/8" exceeds guidelines.

Complaint Item: 7 - Roof coating blistering on most of the roof.

Investigator’s Observation: Coating is not blistering but there are ridges in the underlayment which indicate the underlayment is not laying flat on the substrate leaving a void in between.

Complaint Item: 8 - At the edges of the roof/parapet wall the coating is not all the way up

Investigator’s Observation: Several areas where roof coating does not go up to flashing.

Complaint Item: 9 - Stucco is already cracking/crumbling in multiple areas.

Investigator’s Observation: Stucco is crumbling around flashing at corners of parapets.

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Complaint Item: 2 - Septic leach bed not on our property. Still no resolution.

Investigator’s Observation: Leach field appears to be on neighboring lot. The ROC does not regulate property disputes. This would be a civil matter to be handled by the two property owners.

Complaint Item: 3 - Asphalt cracking, damage also done concrete installer

Investigator’s Observation: Complainant states concrete truck cracked asphalt, while possible I cannot verify this was the cause.

Complaint Item: 4 - Property floods from surrounding properties when it rains.

Investigator’s Observation: Complainants lot is located at the bottom of a hill in a cul-desac.

Water comes from surrounding lots onto Complainant's property. This is not a direct result of of workmanship on Complainant's home.

Complaint Item: 6 - Pooling on roof damaged drywall underneath.

Investigator’s Observation: Ponding evidence can be seen under the A/C unit as dirt is collecting here. Complainant states it lasts 72 hours. Standards allow 48 hours of ponding, I cannot verify the time it remains.

Complaint Item: 10 - of our counter tops. Most were there when we moved in, and one was created when the painters put a ladder on our counter

Investigator’s Observation: ROC Standards state "Scratches in marble should be reported to the contractor within 10 days after move-in." Home has been occupied almost 2 years. In a previous complaint (2023- 08394) Investigator Houston verified two areas on the side of the island. The cracks in this new complaint are on top of the island and would need to be reported in the 10 day timeframe.

Additionally, I cannot verify if the painter damaged the island or if the scratch or crack was existing.

All errors in original.

After the October 8, 2024 deadline for compliance with the Written Directive, Investigator Springer ascertained that Respondent had not complied with the Written Directive. Thereafter, Investigator Springer forwarded the Complaint to the Registrar’s Legal Department. 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), and A.R.S. § 32-1154(A)(22).

Respondent timely filed a written Answer to the Citation and the matter was referred to the Office of Administrative Hearing, an independent State agency, for an administrative hearing.

Investigator Miles Crosby’s Testimony

Investigator Miles Crosby appeared at hearing in lieu of Investigator Springer due to Investigator Springer’s unavailability. Investigator Crosby testified consistently with the findings contained in Investigator Springer’s Jobsite Inspection notes and the Written Directive. Investigator Crosby testified regarding the Written Directive requirements and the specific photographs contained in the Agency Record depicting the referenced deficiencies, specifically photographs 1, 5, 18, 19, 20, 21, 22, 23, 33, 34, 35, 36, and 38.

Investigator Crosby testified that the Registrar received an email from Respondent on October 23, 2024, regarding denial of access. However, at that point the Citation had already been issued as the Written Directive’s deadline for compliance was October 8, 2024.

Victoria Sarkiewicz’s Testimony

Victoria Sarkiewicz testified regarding the condition of the driveway and referenced multiple photographs. Mrs. Sarkiewicz also testified regarding several emails and texts, many of which pre-dated the filed Complaint in this matter.

Mrs. Sarkiewicz testified regarding videos that depict water seeping into the kitchen windows, as well as a window track in the “band room,” and a bedroom.

Mrs. Sarkiewicz also testified regarding the roof and referenced several photographs during her testimony, asserting that the underlayment was “bubbling up” and that there was “pooling” at the HVAC area. Mrs. Sarkiewicz testified that Respondent had previously repaired the roof and underlayment, however, the repairs were left for two and a half months during monsoon season, prior to the coating being applied.

Mrs. Sarkiewicz testified regarding the stucco issues and communications with Respondent and the Registrar, most of which pre-dated the instant filed Complaint.

Mrs. Sarkiewicz testified that the first communication she received regarding the Written Directive, a phone call from Ranel Cox, was on October 14, 2024, after the deadline for compliance with the Written Directive. Mrs. Sarkiewicz emailed Investigator Springer on October 15, 2024, inquiring as to whether Complainants were required, at that point, to allow Respondent to perform corrective work. Investigator Springer responded that Complainants were not required to provide access to Respondent to perform work after the deadline expired.

Mrs. Sarkiewicz testified regarding communications with Respondent and Respondent’s subcontractors asserting that Complainants cooperated and allowed Respondent access to perform repairs.

Ranel Cox’s Testimony

Ranel Cox testified that he was the developer of the property and that Respondent was the general contractor for the construction of the home. Mr. Cox testified that he believed all repairs had been completed and that all issues had been resolved. However, thereafter, Complainants filed additional complaints and Mr. Sarkiewicz told him that [Complainants] “will never go away” and that the two year timeframe for the filing of a complaint with the Registrar “will start over every time [Respondent] makes repairs.”

Mr. Cox testified that Respondent replaced Complainants’ roof in an effort to “make [them] happy,” and that he was not aware until after the fact that Complainant paid the roofing subcontractor directly to upgrade the color of the roof.

Mr. Cox testified that similarly, he found out the day after the second concrete pour for the driveway that Complainants contracted with and paid directly the concrete subcontractor to enlarge the area, however, enlarging the area should have been approved by the engineers prior to the pour. Mr. Cox testified that Respondent had entirely removed the first concrete driveway for Complainants in order to “make [them] happy.” Mr. Cox explained that without knowledge or approval from Respondent, Mr. Sarkiewicz increased the PSI level of the concrete which resulted in increased cracking, because a lower PSI is actually more pliable. Mr. Cox testified that the day after the concrete pour he spoke with the concrete subcontractor and was informed that Mr. Sarkiewicz directed him to hand trowel the concrete once again. The concrete subcontractor advised Mr. Sarkiewicz that the concrete was too dry and that hand troweling “will cause issues” because after the brushing is completed, the concrete should not be touched. This is the “pitting” that is the subject of Complainants’ Complaint.

Regarding the windows, Mr. Cox testified that Respondent had previously replaced the windows for Complainants “to try to make them happy.” Mr. Cox testified that two window experts opined that there was “nothing wrong” with the windows. Mr. Cox asserted that the window manufacturer, Pella, “always tells people” that windows are incorrectly installed because Pella does not want to incur any responsibility. Mr. Cox testified that the windows were installed by Pella certified installers and that it is common to experience water in the tracks which escapes through the weep holes.

Regarding the roof, Mr. Cox testified that the visible ridges are the seams, and that seams are “normal,” as there is “no way” to install the roof without overlapping seams.

Regarding the edges of the roof/parapet wall coating, Mr. Cox acknowledged that the area “could be touched up.”

Mr. Cox testified that he has been “dealing with” Mr. Sarkiewicz for two and a half years and that they “know each other very well” and have seen each other “hundreds of times.” Mr. Cox asserted that Mr. Sarkiewicz is “home all the time” because he “doesn’t work” and that their standard practice is to “go and knock on the door,” however, at some point, Mr. Sarkiewicz “decided not to answer the door.” Mr. Cox testified that Respondent has made “dozens of repairs” and has “gone out of the way to make them happy.” Mr. Cox testified that Complainants demanded payment of $50,000.00, however, Mr. Cox asserted that Respondent would not pay that amount and would “fix the house forever.” Mr. Cox expressed frustration, stating that he does “not know what else he can do” and that no house is perfect, yet this house is “beautiful.”

Mr. Cox disagreed with the Registrar’s Written Directive as the investigator did not read Respondent’s expert’s report. Mr. Cox further testified that by the time the Written Directive had issued, Respondent had discovered that Complainants had contracted directly with the concrete and roofing subcontractors for upgrades and additional and/or different work, and therefore Respondent believed that these items became Complainants’ responsibility thereafter.

Stephen Klingler’s Testimony

Stephen Klingler, Respondent’s expert witness, testified regarding his background, qualifications, and experience in the construction industry. On December 12, 2024, Mr. Klingler inspected the work performed by Respondent and issued a report dated January 6, 2025, documenting his findings.

Mr. Klinger testified that the “construction was good,” the walls were straight, the drywall finish was consistent, and the roof was “one of the cleanest roofs he has seen.”

Regarding the driveway, Mr. Klingler testified that the original driveway was removed and replaced, therefore, he inspected the second driveway installation. Mr. Klingler testified that he did not observe any pitting or spalling. Mr. Klingler explained that if concrete is hand troweled after the concrete has hard set, the spreading of the material will not be even, resulting in small pockets. Mr. Klingler did not observe any structural issues with the driveway and opined that the finish is consistent. Mr. Klingler asserted that the issues with the concrete are aesthetic and were the result of Complainants paying the concrete subcontractor separately to work on the concrete when it was too dry. Mr. Klingler testified that Respondent did not violate any Registrar standards as there were only “very minor finish issues” and there is no Registrar standard for this.

Regarding the windows, Mr. Klingler testified that he did not water test the windows. Mr. Klingler testified that water in the tracks of windows is common, as windows are weatherproof, not waterproof, and that the photos provided by Complainant do not depict anything “out of the ordinary.” Mr. Klingler explained that windows have a weep mechanism allowing water to drain from the tracks. Mr. Klingler asserted that because there was no evidence of water staining on the windowsill, the “window is doing its job,” and the water accumulation is not excessive, as it is has not spilled over the window frame. Mr. Klinger testified that there is no evidence of water intrusion and any hairline cracks are due to the meeting of dissimilar materials and expansion and contraction.

Mr. Klingler testified that he measured the windows and that they are plumb and square. Mr. Klingler testified about the photos contained in his report that depict his measuring of the windows. Mr. Klingler testified that the window installer was present when the measurements were taken. Mr. Klingler explained that the correct way to measure the windows is to do so diagonally. Mr. Klingler utilized a tape measure and a level, and determined that all windows measured were within 1/8 inch and were square. Mr. Klingler explained that if the windows were not square, they would not open and close properly and they would not lock properly.

Mr. Klingler testified that the Registrar’s investigator solely utilized a square, and that while this is an appropriate tool, alone it is not enough, as diagonal measurements are required. Mr. Klingler testified that the square was not set correctly, as the homeowner was holding the square in the photo provided in the Agency Record.

Mr. Klinger was shown a February 3, 2025 email to Mr. Sarkiewicz written by Pella Support, the manufacturer of the windows. The email indicated the following:

Per My Technician that went out on 01/30/2025, he found that many of the units in the home are not installed properly. A majority of the windows are either out of level or have a dip in the center, which is causing water to pool up with no way for it to drain from the windows. The jambs on the doors and windows are bowed and out of plumb. Also, some of the weep holes have been covered by the stucco or paint. Plus many windows have stucco that is cracking around the edges that could be related to an install issue. The recommendation would be to have the windows leveled and weep holes cleaned out by the installer or builder, to ensure proper water evacuation.

Regarding the email, Mr. Klingler testified that he only found one weep hole that was blocked and that it can be cleaned out. Mr. Klingler acknowledged that his Report differs from the Registrar’s investigator’s findings, as well as Pella’s findings.

Regarding the patio roof coating, Mr. Klingler testified that the lines in the roof are not ridging. Mr. Klingler explained that the rolled material of the roof is installed in an overlapping manner and that such installation creates a “bump.” Mr. Klingler testified that this lapping is required by code, and that it must be a two inch minimum overlap for every sixteen to eighteen inches in order to have a three ply roof. Mr. Klingler did not observe any blistering or ridges.

Mr. Klingler testified that the largest area of the main roof drains from left to right and that this is “one of the cleanest roofs he’s seen in a long time.” Mr. Klingler testified that there is no corrective work that could or should have been done, as there was no debris, and no restrictions of drainage, the coating was “good,” and “bumps” are to be expected because the material overlaps. Mr. Klinger further testified that there is a 48 hour rule in which water is to dissipate, and when shown a photo of standing water on the roof, Mr. Klingler testified that it was “not significant” as it was only an eighth of an inch deep.

Regarding Written Directive Item Number 8, Mr. Klingler testified that the coating meets the stucco and “looks good from the surface,” however, “some areas could have been done better.” Mr. Klingler explained that using a mirror to look at the coating from underneath, the coating “does not go all the way up” and that Respondent “could have put more coating in hard to see places.” Mr. Klinger testified that this is a “minor” issue to address, and was easy to miss “unless you use a mirror or get on your hands and knees, you can’t see it.”

Regarding the complaint concerning the stucco cracking at the parapets, Mr. Klingler testified that the stucco is “performing well” and that the hairline cracks are within standards. Mr. Klingler explained that stucco will crack at corners because corners are weak points. Mr. Klingler referenced Photo 35 contained in the Agency Record when he explained that there is a separation between metal and cementitious material because they are dissimilar materials. Mr. Klingler further explained that the stucco terminates at the flashing, and that the photograph depicts the termination of the stucco, not cracking, that the stucco is performing as intended and there is no crumbling of stucco. Because stucco shrinks as it cures, it is common for separation where in contact with metal. Mr. Klingler testified that he inspected all corners of the parapets and there is no violation of any standards and that nothing needs to be remediated.

Administrative notice is taken of Respondent’s prior License record on July 8, 2025. Such prior License record reflects that Respondent’s License Number 109906 was first issued on October 24, 1995, and is active. Such prior License record also reflects that there is only the instant open Complaint, no resolved/settled complaints, and no complaints resulting in discipline against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Complainants bear the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. A party asserting an affirmative defense has the burden of establishing the affirmative defense.

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

A.R.S. § 32-1154(A) provides:

The holder of a license or any person named on a license pursuant to this chapter may not commit any of the following acts or omissions:

. . . .

3. Violation of any rule adopted by the registrar.

. . . .

22. Failure 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. . . .

A.A.C. R49108(A) provides that “[a] contractor shall perform all work in a professional and workmanlike manner.”

The Registrar neither demands nor expects perfection from a licensee on the licensee’s first attempt at work. A licensee must be given a reasonable opportunity to remediate workmanship issues prior to the imposition of discipline against its license. In an administrative hearing, however, Respondent is responsible to establish a lack of opportunity or the preclusion from doing so.

Construction work, such as that at issue herein, is not a perfect science and it is not uncommon in the industry to have corrections, repairs, or replacements of resultant poor workmanship prior or subsequent to completion of a specified project, in order to bring the final work product up to appropriate industry standards. In this regard, a contractor should be given a reasonable opportunity to complete necessary remedial work. In this case, the evidence established that Respondent has performed extensive remedial work, including a complete replacement of the driveway, the roof, and windows, in order to satisfy Complainants.

Regarding the Registrar’s charge of poor workmanship, the credible evidence of record established that not all of Respondent’s work was in conformity with the Registrar’s standards. The evidence, including Respondent’s admission, established that the coating is not all the way up to the edges of the roof/parapet wall. The probative evidence of record further established that water filled the tracks of four windows. Therefore, Complainants established that Respondent did not complete the project in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A), in regard to those two items of Complaint only. Complainants’ Complaint mentions five windows and a sliding glass door. However, the sliding glass door was not addressed at hearing. Regarding the other items of Complaint, Complainants did not establish a violation of the charged statute with regard to the driveway, the roof, the stucco, or the sliding glass door.

The evidence established that Respondent did not complete all of the corrective work following the Written Directive being issued and failed to establish any affirmative defense to establish valid justification for such failure with regard to the windows and the coating on the roof/parapet wall. Therefore, Complainants established that Respondent failed to take appropriate corrective action, with regard to those two items of Complaint only, 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 Number 109906 for a period of one (1) day.

It is further recommended that the Registrar require Respondent to pay the sum of $200.00 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 (30) 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)(7), unless Respondent tenders payment of any outstanding prior civil penalty.

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, July 9, 2025.

/s/ Sondra J. Vanella

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Dennis A. Rosen

Law Offices of Dennis A. Rosen

[email redacted]

Victoria Sarkiewicz

[email redacted]

Corey B. Larson

Waterfall, Economidis, Caldwell, Henshaw and Villamana, P.C.

[email redacted]

[email redacted]

Keith Eugene Michaud

DBA: Michaud Construction

[email redacted]

Mike Springer

[email redacted]

By: OAH Staff