FINACT2019A-01319-LDA-ROC.pdf
2019A-01319-ROC · Registrar of Contractors · 2019-06-04
REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA
Arizona Registrar of Contractors, Case No. 2019-01319 COMPLAINANT, Docket No. 2019A-01319-LDA-ROC v. Stevenson's Remodel and Home Repair LLC FINAL ADMINISTRATIVE DECISION License No. ROC 203069, AND ORDER RESPONDENT.
Under A.R.S. § 41-1092.08(B), the Registrar may review and accept, modify, or reject an
administrative law judge’s written decision. If the Registrar modifies or rejects that decision, then the
Registrar must provide written justification setting forth the reasons for the modification or rejection.
REGISTRAR’S ACCEPTANCE
In this case, a hearing was held, and the administrative law judge issued a written decision. See
Administrative Law Judge Decision, attached. The Registrar reviewed that decision and hereby accepts
it.
CONCLUSION
Because the Registrar has accepted the administrative law judge’s decision, that decision is the
final administrative decision in this case and becomes effective on July 14, 2019.
FINAL NOTE
On page 2, line 4, replace “January 15, 2019” with “January 24, 2019.” On page 2, line 9, replace
“March 19, 2019” with “March 15, 2019.” On page 2, line 10, replace “May 21, 2019” with “March 21,
2019.”
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of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 Dated June 4, 2019.
Registrar of Contractors /s/ Joseph Citelli Joseph Citelli Chief Counsel Chief of Legal Department and Recovery Fund Copy mailed via USPS First Class mail June 4, 2019 to: Respondent Stevenson's Remodel and Home Repair LLC 5324 E Polk St Phoenix, AZ 85008-6724
Complainant Arizona Registrar of Contractors 1700 W Washington St Ste 105 Phoenix, AZ 85007 AND copy electronically mailed this same date to: Respondent at email address on record with the Registrar Office of Administrative Hearings Jenna Clark, Administrative Law Judge
Office of the Attorney General Thomas Raine, Assistant Attorney General Case No. 2019-01319 / SA
of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 RECEIVED 5.9.2019 ROC LEGAL
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Arizona Registrar of Contractors, No. 2019A-01319-ROC COMPLAINANT, ADMINISTRATIVE LAW JUDGE -vs- DECISION Stevenson's Remodel and Home Repair LLC, ROC License: ROC 203069 RESPONDENT.
HEARING: May 01, 2019 at 1:00 PM. APPEARANCES: Assistant Attorney General Thomas Raine, Esq., appeared on behalf of the Arizona Registrar of Contractors (“ROC”) with Bonny Allan as a witness. Steven Gregory Dietmeyer appeared on behalf of Stevenson’s Remodel and Home Repair LLC (“Respondent”) with Geoff Erber, Joan Faith, Misty Rhoades, and Diane Nowak as witnesses. ADMINISTRATIVE LAW JUDGE: Jenna Clark.
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Having heard the evidence and testimony and having considered the record in
this matter, the undersigned Administrative Law Judge hereby makes the following
Findings of Fact and Conclusions of Law and issues the following RECOMMENDED
ORDER to the Director of the ROC.
FINDINGS OF FACT
BACKGROUND AND PROCEDURE
1. Administrative Notice is taken that the ROC issued License No. 203069 to Respondent on January 10, 2005, for general residential B-3 remodeling and repair contracting.1 Respondent’s license is active and renewed through January 31, 2021.2 Steven Gregory Dietmeyer is listed on the license as the Qualifying Party/Member.3 See https://roc.az.gov/contractor-search?Id=a0Yt000000ACU1FEAX. 2 Id. Id. Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 RECEIVED 5.9.2019 ROC LEGAL
The address of record for the license is 5324 E Polk St. Phoenix, AZ 85008-6724.4 The license currently has a $9,000.00 surety bond issued by Western Surety Company effective June 16, 2017.5 2. On or about January 15, 2019, Respondent submitted an application for renewal of its license to the ROC. Mr. Dietmeyer is the signatory on the application. Included with the application was a felony conviction disclosure.6 3. On March 11, 2019, the ROC issued a NOTICE OF RENEWAL DENIAL7 to Respondent under Arizona Revised Statutes (ARIZ. REV. STAT.) § 32-1101 et seq. 4. The ROC received Respondent appealed on March 19, 2019.8 5. On May 21, 2019, the ROC issued a NOTICE OF HEARING setting the above-captioned matter for hearing on May 01, 2019, at the Office of Administrative Hearings (“OAH”) regarding the denial of Respondent’s license renewal application. HEARING EVIDENCE
6. Assistant Attorney General Thomas Raine, Esq., appeared on behalf of
the ROC with Bonny Allan as a witness, and submitted five exhibits. Steven Dietmeyer
appeared on behalf of Respondent with Geoff Erber, Joan Faith, Misty Rhoades, and
Diane Nowak as witnesses, and submitted twenty exhibits. The ROC’s electronic hearing file and NOTICE OF HEARING were also admitted into the record. Bonny Allan’s testimony 7. Ms. Allan testified that she is the Assistant Chief Counsel for the ROC. Per Ms. Allan, Respondent’s license renewal application was denied because Respondent failed to establish requisite good character and reputation due to the felony conviction of its Qualifying Party and signatory Mr. Dietmeyer. 8. Ms. Allan testified that once the ROC received Mr. Dietmeyer’s felony disclosure it was forwarded for further investigation, and the results were presented to
Id. Id. See ROC Exhibit 3; see also Hearing File at page 74. See ROC Exhibit 1. 8 See ROC Exhibit 4; see also Hearing File at pages 68-69. RECEIVED 5.9.2019 ROC LEGAL
the Good Character Committee (“GCC”) (e.g. the Chief of ROC’s Legal Department, Chief of ROC’s Licensing Department, and Assistant Director of ROC’s Compliance Department). 9. In total, the GCC reviewed Respondent’s license renewal application, Mr. Dietmeyer’s criminal conviction records9, and Mr. Dietmeyer’s letters of recommendation10. 10. Ms. Allan testified that when Respondent was originally licensed in 2004 that Mr. Dietmeyer did not have a felony conviction on his record.11 However, when the ROC received Respondent’s renewal application on January 22, 2019, Mr. Dietmeyer disclosed that he had been convicted of a felony on May 25, 2018.12 Specifically, Mr. Dietmeyer provided notice that he had been convicted of Aggravated Assault, an undesignated class 6 Felony, in violation of ARIZ. REV. STAT. § 13-1204, which may be reduced to a misdemeanor offense upon the successful completion of his probation
period on May 25, 2021.13 Mr. Dietmeyer was sentenced to ninety (90) days in jail, and
is subject to eight conditions for his supervised probation, and was required to pay
$855.00 in fines and fees.14
11. Ms. Allan testified that the GCC also reviewed the underlying conduct which resulted in Mr. Dietmeyer’s criminal conviction. Per the file, during the late evening hours on July 14, 2017, Mr. Dietmeyer struck his live-in girlfriend (“Victim”) in the leg with a wooden baseball bat, punched her twice in the eye and once on the side of the head with a closed fist, closed his arm around her neck, and sat on top of her to prevent her from leaving their home. Mr. Dietmeyer told Victim they were both “going to die” and punched her when she refused to open a gun safe. Victim was able to text a neighbor to call 9-1-1, and eventually escaped the home to meet responding officers.
See ROC Exhibit 3; see also Hearing File at pages 76-96. See ROC Exhibit 5; see also Hearing File at pages 97-112. See ROC Exhibit 2. See ROC Exhibit 3. Id. 14 Id. RECEIVED 5.9.2019 ROC LEGAL
On the morning of July 15, 2017, Mr. Dietmeyer was stopped in his vehicle by police on suspicion of DUI. When questioned, Mr. Dietmeyer admitted to striking Victim with his hands, but denied hitting her with an object or preventing her from leaving. Per Mr. Dietmeyer, he had attempted suicide after Victim left their home the prior evening. 12. Ms. Allan testified that ten letters of recommendation15 were submitted to the Court in support of Mr. Dietmeyer; three of which were submitted along with Respondent’s renewal application16, including a letter from Victim17 on Mr. Dietmeyer’s behalf. All letters were reviewed and considered by the GCC. Many of the letters praised the craftsmanship and quality of Mr. Dietmeyer’s work and his exemplary professional reputation. Other letters acknowledged his unfortunate upbringing and struggles with alcohol. Nearly all of the letters, including Victim’s, asked the ROC for leniency and reconsideration regarding the ROC’s denial of Respondent’s license renewal application.
13. Ms. Allan also testified that Mr. Dietmeyer included proof that he had
completed twenty-six (26) court-ordered domestic violence diversion treatment therapy
sessions as of March 15, 2018,18 has been undergoing treatment for anxiety since
August 2017,19 and also completed ten (10) court-ordered volunteer hours as of October 21, 2018.20 14. Ultimately, the GCC determined that Mr. Dietmeyer had not established his good character and reputation as he is still on probation for his felony conviction. Ms. Allan noted that Respondent may submit a new application once Mr. Dietmeyer’s probation is complete. Steven Dietmeyer’s testimony
See ROC Exhibit 5; see also Hearing File at pages 104-111. See ROC Exhibit 5; see also Hearing File at pages 97 and 99. See ROC Exhibit 5; see also Hearing File at page 98. See ROC Exhibit 5 see also Hearing File at page 101. See ROC Exhibit 5 see also Hearing File at page 102. 20 See ROC Exhibit 5 see also Hearing File at page 103. RECEIVED 5.9.2019 ROC LEGAL
15. Mr. Dietmeyer admitted that he plead guilty to, and was convicted of, felony Aggravated Assault. Mr. Dietmeyer testified that in the time since he has completed a rehabilitation program, started attending church, actively participates in a 12-step program to cease his alcohol use, has sought counseling and is taking medication for his anxiety. Mr. Dietmeyer further testified that he has completed his court-ordered volunteer community service hours, has paid all related court fines and fees, and serves as a youth mentor for a nonprofit organization. 16. Mr. Dietmeyer agrees that he is not scheduled to be discharged from probation until May 25, 2021, but that he hopes it will happen sooner. Once discharged from probation, Mr. Dietmeyer expects that his felony will be reduced to a misdemeanor. 17. Although Mr. Dietmeyer agrees that he was represented by counsel during his plea negotiations and sentencing, he denied all factual allegations
underlying his felony conviction save the noted strike to the side of Victim’s head. Mr.
Dietmeyer, however, had no explanation for officer’s notations of Victim’s visible
injuries on July 15, 2017.
18. Mr. Dietmeyer testified that he is a person of good character and has respected personal and professional reputations in his community. 19. Mr. Dietmeyer opined that he would lose his business and be thrust into financial disarray if he was forced to wait six or more months to reapply to renew his contracting license with the ROC. Respondent witnesses’ testimony 20. Geoff Erber testified that he has had a professional relationship with Mr. Dietmeyer for the past seven years. Per Mr. Erber, Mr. Dietmeyer does not advertise and all of his business is through referrals. Mr. Erber testified that Mr. Dietmeyer has a “stellar” professional reputation, and that Mr. Dietmeyer has not had an alcoholic beverage since July 14, 2017. Mr. Erber testified that Mr. Dietmeyer took an unfortunate situation and turned his life around for the better. RECEIVED 5.9.2019 ROC LEGAL
21. Joan Faith testified that she has been Mr. Dietmeyer’s client since 2015, and that as a property manager she frequently refers Mr. Dietmeyer to tenants because he does good work. Per Ms. Faith, she chose to continue working with Mr. Dietmeyer
after his criminal conviction because she had never “seen that side of him” prior, and
Mr. Dietmeyer apologized for any inconvenience his legal woes may have caused her
or her business.
22. Misty Rhoades testified that she and Mr. Dietmeyer have been friends for
the last eleven years and attend church together. Per Ms. Rhoades, she has always
known Mr. Dietmeyer to be reliable, fair, honest, and a general good influence. She has
referred multiple people to Mr. Dietmeyer and testified that she would not have done so
if she believed him to be of poor moral character.
23. Diane Nowak testified that she is Mr. Dietmeyer’s landlord and has been
a client of his since 2013. Ms. Nowak testified that she is currently using him on a
remodeling project. Per Ms. Nowak, Mr. Dietmeyer apologized to her as a woman for
the underlying conduct resulting in his conviction. Ms. Nowak testified that she has, and
will continue to, refer Mr. Dietmeyer for construction projects.
CONCLUSIONS OF LAW 1. The ROC has jurisdiction over this matter pursuant to ARIZ. REV. STAT. §§ 32-1101 et seq. and 32-1154(A). The matter was properly brought before the Office of Administrative Hearings pursuant to ARIZ. REV. STAT. §§ 41-1092 et seq. 2. The ROC may resolve contractual disputes if such resolution in ancillary to its regulatory mission and may penalize a contractor’s license by ordering payment of restitution if a proven statutory violation was not remedied by corrective action.21 3. The purpose of the ROC’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors.22 4. Respondent bears the burden of persuasion to establish that the ROC’s denial of its application was unlawful or otherwise incorrect by a preponderance of the
See ARIZ. REV. STAT. § 32-1156.01; Sunpower of Arizona v. Arizona Registrar of Contractors, 166 Ariz. 437, 441, 803 P.2d 430, 434 (App. 1990). 22 See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995). RECEIVED 5.9.2019 ROC LEGAL
evidence.23 Respondent bears the burden to establish factors in mitigation of the denial by the same evidentiary standard.24 5. “A preponderance of the evidence is such proof as convinces the trier of
fact that the contention is more probably true than not.”25 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.”26
6. ARIZ. REV. STAT. § 32-1122(C) holds, in pertinent part, as qualifications to
renew a license that “[e]ach person who is named on a license shall be of good
character and reputation. Lack of good character and reputation may be established by
showing that a person has engaged in contracting without a license or committed any
act that, if committed or done by a licensed contractor, would be grounds for
suspension or revocation of a contractor’s license.”
7. ARIZ. REV. STAT. § 32-1154(A)(7) includes among the grounds for
suspension, revocation, or other disciplinary action against a contractor’s license, “[c]onviction of a felony.” 8. ARIZ. REV. STAT. § 1-211(B) holds that “[s]tatutes shall be liberally construed to affect their objects and to promote justice.” 9. When construing statutes, the primary goal is to fulfil the intent of the legislature. If the language of the statue is clear, that language is determinative.27 The
ARIZ. REV. STAT. § 41-1092.07(G)(1); ARIZ. ADMIN. CODE R2-19-119(A); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). See ARIZ. ADMIN. CODE R2-19-119(B)(2). MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960). BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999). 27 Backus v. Arizona, 220 Ariz. 101, 203 P.3d 499 (2009). RECEIVED 5.9.2019 ROC LEGAL
tribunal may not read into statutes words the legislature did not include.28 Statutes should be interpreted to provide a fair and sensible result.29 10. Here, the ROC argues that its denial of Respondent’s renewal application
was neither arbitrary nor capricious, but is substantially related to its duty to protect the
public. Respondent argues, overall, that although Mr. Dietmeyer is currently on
probation for a felony conviction, he has rehabilitated himself to the fullest extent
possible, anticipates that the felony will be reduced to a misdemeanor once his
probation is discharged at or under six months from the date of the hearing, and has
evinced Mr. Dietmeyer’s good moral character and reputation through the presentation
of his witnesses and the conduct he has displayed since his conviction.
11. The issue presented in this case is whether Mr. Dietmeyer evinced good
character and reputation sufficient to satisfy the ROC’s interest in protecting the public
from licensees. This Tribunal finds that he has. Although the record reflects that Mr.
Dietmeyer has not taken full responsibility for his actions the night of July 14, 2017, it is
clear that Mr. Dietmeyer has taken significant applaudable actions to atone for the
underlying conduct that resulted in his felony conviction and that his community still
holds him in high regard. The ROC surely has a legitimate interest in protecting the public, but the record here does not establish that Mr. Dietmeyer poses a threat of any significance. 12. Based on a review of the credible and relevant evidence in this matter, the Tribunal holds that Respondent has sustained its burden of proof. 13. The ROC shall grant Stevenson's Remodel and Home Repair LLC’s renewal application for ROC License No. 203069 prior to its expiration. RECOMMENDED ORDER Based on the foregoing, IT IS RECOMMENDED that the March 11, 2019, denial of Stevenson's Remodel and Home Repair LLC’s renewal application for ROC License No. 203069 be reversed. See Home Builders of Central Arizona v. Scottsdale, 187 Ariz. 479, 930 P.2d 993 (1997). 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."). RECEIVED 5.9.2019 ROC LEGAL
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 days from the date of that certification.
Done this day, May 09, 2019.
/s/ Jenna Clark Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director Registrar of Contractors