ALJDEC - Licensing

2023A-00154-CHC-ROC · Registrar of Contractors · 2023-07-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Ronald D. Ryan,

COMPLAINANT,

v.

Dixon Construction Company, LLC

License No. ROC 336278,

RESPONDENT.

No. 2023A-00154-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 7, 2023

APPEARANCES: Dennis Sever, Esq. represented Complainant Ronald Ryan who was present. Keith Dixon appeared on behalf of Respondent Dixon Construction Company, LLC. Arizona Registrar of Contractors Investigator Steven Avila appeared as a witness. William Carman and Adara Blount appeared as witnesses, as well.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

Dixon Construction Company, LLC (“Respondent”) is the holder of License Number 336278 issued by the Arizona Registrar of Contractors (“Registrar”). Keith Bernard Dixon, Jr. is Respondent’s Qualifying Party and owner.

On or about June 1, 2022, Ronald Ryan (“Complainant”) contracted with Respondent for the remodel of his home. The contract price was $121,976.94. There was one written change order in the amount of $4,000.00. Complainant paid $94,000.00 toward the contract price and change order. The completion date for the project was August 26, 2022.

On or about January 3, 2023, the Registrar received a Complaint against Respondent from Complainant alleging abandonment and poor work with respect to the project.

The Registrar assigned the Complaint to Investigator Steven Avila. After a February 17, 2023 Jobsite Inspection, at which both parties were present, Investigator Avila issued a Written Directive to Respondent 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 3/27/2023.

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

Compliance Item: 1 - The amount that I have paid to date includes $94,000/ Cash and roughly $10,000/ Materials that the contractor agreed to pay me back. I have already file a non-formal complaint on 12/7/2022 that I was directed to do by the ROC to start the process. It has now been closed by the ROC who claimed that I needed to submit this formal complaint.

Poor Workmanship

Incomplete projects

Bathrooms unfinished

Kitchen Unfinished Scheduled post but never adhered to.

Floors Unfinished

Damaged interior and exterior doors, fireplace, tiles, flooring

Materials promised to be ordered but never ordered... then asked me to pay for said materials

Permits were never pulled

Jobsite left in shambles and trash never removed

Cut off all communications at or around 11-21-2022 after repeated attempts by us to reestablish a line of communication

Final completion date was to be on or before thanksgiving

Complete abandonment per phone conversation on 11-22-2022

Investigator’s Observation: At the time of the inspection the project remained in an incomplete status. There were multiple areas throughout the residence to include but not limited to incomplete bathrooms, kitchen, fireplace and flooring. Due to the project being in an incomplete status no directive is to be issued at this time in regards to specific poor workmanship, which can be inspected at the time of completion. Registrar will also not get involved in any of the financial disputes regarding monies rendered for materials nor monies owed by either party. Allegation for incomplete project has been verified. Respondent shall complete project per original contract agreement, properly executed change orders, verbal agreements, local building codes and manufacturers installation instructions.

After the expiration of the deadline in the Written Directive, Investigator Avila ascertained from both parties that no corrective work had been performed by Respondent.

Investigator Avila 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).

Investigator Steven Avila’s Testimony

Investigator Avila testified consistently with the findings contained in his Jobsite Inspection Notes and the Written Directive. Investigator Avila testified that Respondent did not request an extension of the Written Directive. Instead, Keith Dixon, Respondent’s owner, indicated that because there was an issue with the kitchen cabinets, he believed that Respondent could not perform all of the corrective work, and therefore, chose not to address any of the required corrective work.

Investigator Avila further testified that while the atmosphere at the Jobsite Inspection was “tense,” there was no police involvement, there were no altercations, there was no aggressive behavior, and there was no evidence of a hostile work environment. Investigator Avila testified that he was at the jobsite for over an hour and did not have to separate the parties, and there were no derogatory comments made by either party. Investigator Avila testified that Mr. Dixon did not mention at any time during the period of the Written Directive that Complainant would not allow Respondent on the property, and Complainant did not state that he would not allow Respondent on the property.

Investigator Avila testified that there appeared no reason why Respondent could not have performed all work required by the Written Directive in a timely manner, with the possible exception of the kitchen cabinets. Investigator Avila testified that Respondent had not performed any work on the project since November 2022.

Regarding the permits for the project, Investigator Avila testified that the provisions of the parties’ contract requires that Respondent obtain the proper permits for the project and that the framing and trenching required permits.

Investigator Avila estimated that the project was approximately seventy percent completed and that Complainant paid seventy-five percent of the contract price.

Complainant’s Testimony

Complainant testified that he purchased and owns the property that is the subject of this Complaint. Complainant is a licensed general contractor specializing in structural and architectural steel. Prior to becoming a licensed general contractor, Complainant owned Clear Bottom Pools, a “start-up pool company” that performed cleaning, remodeling, and new pool construction.

Complainant testified that he hired Respondent to remodel the interior of his home based on the recommendation of his realtor.

Complainant testified that Respondent provided him an estimate for the project on May 23, 2022, in the amount of $123,976.93. According to the terms of the contract, Respondent was responsible for obtaining the permits for the project: “As a General Contractor, Dixon [C]onstruction Company LLC is required to handle the permit process . . .” “The Contractor shall obtain and pay for the building permit and other permits and governmental fees, licenses, and inspections necessary for proper execution and completion of the work. The Contractor shall provide the Owner with copies of all permits, licenses, and inspection approvals. Complainant testified that a permit was required for the electrical work and that Respondent did not obtain the required permit. Complainant testified that he informed Respondent that the electrical permit “was a must,” however, the other permits were “up to Respondent” as the plumbing and roofing contractors hired by Complainant obtained the proper permits for their respective scopes of work.

Complainant testified that in addition to the $94,000.00 he paid to Respondent, he began to also purchase materials for the project because Respondent was not doing so. Complainant testified that Mr. Dixon asked Complainant to purchase the materials and proposed that Respondent would credit Complainant for the price of the materials purchased by Complainant. Mr. Dixon proposed a new contract price on September 23, 2022, in the amount of $106,454.07. Complainant did not agree to the proposed new contract amount.

Respondent also changed the completion date for the project from August 26, 2022, to September 30, 2022, and then to October 23, 2022. Complainant was living in an Airbnb during the course of the project, however, could not extend the stay beyond the end of November 2022, and Respondent did not return to the project after the beginning of November 2022, notwithstanding that Complainant sent several emails to Mr. Dixon, and Complainant offered to hire a third party liaison. Respondent did not respond to Complainant’s communications. In the third week of November 2022, Mr. Dixon told Complainant that Respondent would not be returning to the project.

Complainant testified that Respondent’s tile installer caused damage to the home due to the fact that he did not install a shower liner in either bathroom, resulting in water damage. Complainant informed Mr. Dixon of this issue and requested that the tile installer not return to the project due to the damage caused by his deficient work.

After the filing of the Complaint and toward the end of the Written Directive period, the parties attempted to resolve the matter, however, those negotiations were unsuccessful.

Complainant testified that he hired Armstrong Innovations (“Armstrong”) to install the kitchen cabinets. Armstrong installed the cabinets as ordered, without modifications.

Complainant testified that toward the end of Respondent’s time on site, the parties’ relationship was strained and tense. Complainant testified that he instructed Respondent to focus on other areas of the project aside from the kitchen, however, Respondent would not send “a guy out just to do a toilet or a light.”

William Carman’s Testimony

William Carman, Respondent’s Project Manager, testified that toward the end of Respondent’s time on the project, the relationship with Complainant was “very hostile” and that when Respondent could not install the kitchen cabinets due to “measurements and layout,” Complainant “lashed out” and “took it out on them.” Mr. Carman asserted that Complainant became “confrontational,” “verbally abusive,” “cussed,” and used “harsh and vulgar language.” Mr. Carman did not provide and specific examples of such behavior.

Mr. Carman contended that Respondent was in an “uncomfortable position” and he advised Mr. Dixon that he could not work with Complainant. However, Mr. Carman acknowledged that Complainant never physically or verbally threatened him or any of Respondent’s workers.

Mr. Carman testified that Complainant would “re-arrange the schedule and change the scope of work” without Respondent’s knowledge. Respondent did not provide any evidence to corroborate this allegation, and in fact, Complainant’s evidence established that it was Respondent that changed the scheduled, as Respondent continually changed the completion date for the project.

Mr. Carman contended that Home Depot and Complainant were responsible for the layout of the kitchen and the appliances were “oversized.” Mr. Carman testified that the cabinets could not be adjusted and therefore, they could not be correctly installed.

Adara Blount’s Testimony

Adara Blount, Mr. Dixon’s wife, testified that she was present for the Jobsite Inspection. Ms. Blount characterized the interactions between Complainant and Respondent as “cold” and that Complainant was “a bit irritated.” Ms. Blount testified that she sensed “ill will” toward Mr. Dixon and the tile installer. Ms. Blount testified that Complainant stated that Mr. Carman and the tile installer were not allowed back to the project.

Keith Dixon’s Testimony

Mr. Dixon testified that he “was going to finish everything but the kitchen,” that he “understands the Written Directive,” and that “things could have been done,” but he “was under the impression that per the contract, he could not agree to remove the kitchen and do other items.”

Mr. Dixon testified that he “showed up two days before the Written Directive expired and could not settle it.” Mr. Dixon acknowledged that Respondent was required to complete the project by March 27, 2023, and did not do so.

Mr. Dixon testified that he “attempted to pull the electrical permit on the panel but did not perform the electrical work.” Mr. Dixon asserted that the Written Directive required Respondent to complete its scope of work, however, Respondent did not have a city approved permit in order to complete the electrical work. Respondent did not follow up on the permit and did not request an extension of the deadline in the Written Directive.

Regarding Respondent’s tile subcontractor, Mr. Dixon acknowledged that Respondent could have utilized another tile subcontractor for the required corrective work, however, testified that he could not find one within the period of the Written Directive. Further, Mr. Dixon contended that “whoever performed the work as going to fix the work.” Again, Respondent did not request an extension of the deadline in the Written Directive, nor did Respondent demonstrate any efforts to obtain a replacement tile subcontractor. Furthermore, Respondent made no effort to perform the other required corrective work that had nothing to do with the kitchen cabinets or the tile.

Administrative notice is taken of Respondent’s prior License record on July 13, 2023. Such prior License record reflects that Respondent’s License No. 336278 was first issued on January 12, 2022, and is active. Such prior License record also reflects that there is only the instant open complaint, no resolved/settled complaints, and no disciplined complaints and 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. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”

The credible evidence of record established that Respondent failed to complete its contracted scope of work, failed to perform is contracted scope of work in the time required by the contract and any subsequent agreements thereto, and failed to obtain the required electrical permit that it was contractually obligated to obtain. Therefore, Complainant 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).

The credible evidence of record established that Respondent did not complete the corrective work following the Written Directive being issued and Mr. Dixon acknowledged such. Further, Respondent failed to establish by a preponderance of the evidence that valid justification existed for such failure. Therefore, Complainant 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).

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 336278 for a period of seven (7) days.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 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 14, 2023.

/s/ Sondra J. Vanella

Administrative Law Judge

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

Martín Quezada, Director

Registrar of Contractors

[email redacted]

Dixon Construction Company, LLC

[email redacted]

Dennis A. Sever

LAW OFFICE OF DENNIS A. SEVER, PLLC

[email redacted]

Ronald D. Ryan

[email redacted]

Steven Avila

[email redacted]

By: OAH Staff