ALJDEC decisions subject to certification as final
2020A-05494-CHC-ROC · Registrar of Contractors · 2021-05-13
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Nathan Cooper,
COMPLAINANT
v.
Dickinson Enterprises LLC,
License No. ROC 327382,
RESPONDENT
No. 2020A-05494-CHC-ROC
ADMINISTRATIVE LAW JUDGE
DECISION
HEARING: April 26, 2021
APPEARANCES: Nathan Cooper on his own behalf; Mark Dickinson for Respondent
ADMINISTRATIVE LAW JUDGE: Thomas Shedden
FINDINGS OF FACT
On March 23, 2021, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Contested Case setting the above-captioned matter for hearing on April 26, 2021 at the Office of Administrative Hearing.
Through its Notice of Hearing, ROC alleges that Respondent Dickinson Enterprises LLC may have violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22).
Respondent holds license No. 327382 issued by ROC. Mark Dickinson is Respondent’s qualifying party and a member of the LLC. Mr. Dickinson appeared and testified for Respondent.
Complainant is Nathan Cooper, who appeared and testified.
ROC investigator Michael Wiskow also testified.
In September 2020, Complainant and Respondent entered a contract that called for Respondent to install a concrete pad and sidewalk at Complainant’s house.
On or about November 20, 2020, Complainant filed with ROC a complaint against Respondent alleging poor work on Respondent’s part.
On December 29, 2020, ROC’s Mr. Wiskow conducted a jobsite inspection at which time he identified what were in his opinion workmanship deficiencies.
On December 29, 2020, ROC issued to Respondent a Directive that provides in part:
.... You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on January 29, 2021.
***
You are directed to remedy the following violations by the appropriate means:
Compliance Item: 1 - Concrete not level /consistent.
Investigator’s Observation: The concrete surface is wavy. The surface is full of grinding marks.
Contractor should make concrete surface level and consistent.
Contractor should make repairs by appropriate means.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 4 - Concrete not smooth or consistent finish.
Investigator’s Observation: The concrete finish is part exposed aggregate from the grinding the contractor did and part trowel finish. Neither finish is acceptable. There should be a broom finish per contract.
Contractor should make repairs by appropriate means.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 5 - Concrete not sloped to drains.
Investigator’s Observation: The drains in the slab are 1/4 inch higher than the concrete around them. Also, the concrete slopes away from the drains in the overall slab.
The drains should be the lowest spot in the affected slab.
Contractor should make repairs by appropriate means.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 6 - Damage to walls/property from concrete splash.
Investigator’s Observation: There is evidence of concrete splashing on the walls around the slab as well as some personal property. The concrete should be cleaned off.
Contractor should make repairs by appropriate means.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 7 - No control joints in any of the concrete.
Investigator’s Observation: There are no control joints in the large pad.
The control joints in the sidewalk are not deep enough. Control joints should be sawn in to meet minimum workmanship standards.
Contractor should make repairs by appropriate means.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a
professional and workmanlike manner.
ITEMS NOT REQUIRING CORRECTION
The following complaint items require no action by the Respondent:
Compliance Item: 2 - Cracks in concrete
Investigator’s Observation: There were several cracks in the concrete. None exceeded the minimum standard.
Governing Rule: n/a
Compliance Item: 3 - No expansion joints in any of the concrete.
Investigator’s Observation: There are no expansion joints in the concrete. Expansion joints are not required in a slab this size.
Governing Rule: n/a
Compliance Item: 8 - Chips in concrete surface.
Investigator’s Observation: See allegation #1
Governing Rule: n/a
Compliance Item: 9 - No broom finish as noted in contract
Investigator’s Observation: See allegation #4
Governing Rule: n/a
Compliance Item: 10 - Tool marks in concrete
Investigator’s Observation: See allegation #4
Governing Rule: n/a
Compliance Item: 11 - Edge of concrete not rounded of finished
Investigator’s Observation: See allegation #4
Governing Rule: n/a
Compliance Item: 12 - Water pools on concrete.
Investigator’s Observation: See allegation #5
Governing Rule: n/a
Compliance Item: 13 - Hole in concrete surface.
Investigator’s Observation: See allegation #4
Governing Rule: n/a
Respondent began making repairs, and through a letter to Mr. Wiskow dated January 29, 2021, Respondent requested additional time to complete the required repairs, but ROC did not extend the deadline.
On February 12, 2021, Mr. Wiskow conducted a compliance jobsite inspection, at which time he determined that Respondent had not made the repairs that ROC ordered it to make.
ROC issued to Respondent a Citation dated February 17, 2021, through which ROC alleges that Respondent may have violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22).
On March 2, 2021, Respondent filed an answer describing its efforts to make corrections and Mr. Dickinson’s remorse about the situation.
At the hearing, Mr. Wiskow provided his opinion that the work at issue probably could not be repaired, but rather would need to be replaced.
Mr. Dickinson acknowledged that Respondent’s work was deficient and expressed his remorse.
Mr. Dickinson was of the opinion however that at least some of the work, for example, the columns that are buried three feet deep, would not require replacement, and he testified that Respondent could make the drains work better and that it could cut in the required control joints.
Mr. Dickinson testified to the effect that he believed that Respondent could make these required corrections, but he acknowledged that he did not have plan to do so as of the hearing date, and he suggested that if necessary he might hire another contractor with more expertise to complete the work.
There is no dispute that a broom-finish cannot be achieved because the concrete has set up and hardened.
Mr. Dickinson had offered to have the side of Complainant’s house repainted, but Complainant declined that offer.
CONCLUSIONS OF LAW
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.
“At a hearing on an agency action to suspend, revoke, terminate or modify on its own initiative material conditions of a license or permit, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(2).
“At a hearing on an agency's imposition of fees or penalties or any agency compliance order, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(3).
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).
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.").
“Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).
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).
The Administrative Law Judge may consider ROC’s administrative record. See Ariz. Admin. Code § R4-9-118.
Ariz. Rev. Stat. section 32-1154(A) provides in part:
The holder of a license or any person listed on a license pursuant to this chapter shall 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. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held.
Ariz. Admin. Code section R49108(A) provides that “A contractor shall perform all work in a professional and workmanlike manner.”
Ariz. Rev. Stat. section 32-1154(E) provides that ROC may impose a civil penalty of not to exceed five hundred dollars on a contractor for each violation of Ariz. Rev. Stat. section 32-1154(A)(22).
The preponderance of the evidence shows that Respondent’s work did not meet the minimum standards and that Respondent violated Ariz. Admin. Code section R4-9-108(A), which is also a violation of Ariz. Rev. Stat. section 32-1154(A)(3).
The preponderance of the evidence shows that Respondent did not comply with ROC’s Directive within the time ordered, which is a violation of subsection 32-1154(A)(22).
Because Respondent has violated the applicable statutes as charged, ROC has authority to discipline its license.
Considering the facts and circumstances of this matter, particularly Respondent’s good faith efforts to correct the deficiencies and Mr. Dickinson’s acceptance of responsibility for those deficiencies, Respondent’s license should be suspended for two days for its violation of section 32-1154(A)(3) and it should be assessed a civil penalty of $200 for its violation of section 32-1154(A)(22).
RECOMMENDED ORDER
IT IS RECOMMENDED that the Registrar suspend Respondent Dickinson Enterprises LLC’s license number 327382 for two days;
IT IS FURTHER RECOMMENDED that the Registrar assess against Respondent Dickinson Enterprises LLC a civil penalty of $200.00.
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.
-54864001
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
001
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
-137160-45720000Done this day, May 13, 2021.
/s/ Thomas Shedden
Thomas Shedden
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors
-54864001
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
001
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
-137160-45720000