ALJDEC - Licensing

2023A-00690-CHC-ROC · Registrar of Contractors · 2023-08-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Ronnie and Brenda Miertschin,

COMPLAINANTS,

Dickinson Enterprises, LLC

License No. ROC 327382,

RESPONDENT.

No. 2023A-00690-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 31, 2023

APPEARANCES: Complainants Ronnie and Brenda Miertschin appeared on their own behalf. Mark Dickinson appeared on behalf of Respondent Dickinson Enterprises, LLC. Greg Conn and June Nelson appeared as witnesses.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

Dickinson Enterprises, LLC (“Respondent”) is the holder of License Number 327382 issued by the Arizona Registrar of Contractors (“Registrar”). Mark Dickinson is Respondent’s Qualifying Party and sole Member.

On or about January 11, 2022, Ronnie and Brenda Miertschin (“Complainants”) contracted with Respondent for the construction of a block wall with iron work and a gate. Pursuant to the parties’ contract, Respondent’s scope of work included: “Drainage blocks installed in every wall panel 3 blocks per, the blocks will be designed so that animals may not get thru, preferably English style . . .” All errors in original.

The Registrar received a Complaint against Respondent from Complainants alleging poor work with respect to the project.

The Registrar assigned the Complaint to Investigator Joey Chester. After a January 31, 2023 Jobsite Inspection, on February 3, 2023, Investigator Chester 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 February 23, 2023.

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

Complaint Item: Contractor indicated in Scope of Work (SOW), drainage blocks (English Style Figure 8) would be install in every wall panel (3 drainage blocks per panel). The drainage blocks were not installed.

Investigator’s Observation: At time of inspection blocks were installed with pipe drainage and not English style as listed in contract. Respondent shall complete project per original contract agreement, properly executed change orders, verbal agreements, local building codes and manufacturers installation instructions.

All errors in original.

On February 14, 2023, Investigator Chester issued an Amended Written Directive to Respondent that provided as follows:

the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on March 6, 2023. If the respondent is not able to acquire the permit by this date, they will need to reach out to the investigator prior to the date for mentioned to request an extension.

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

Complaint Item: Provide Wall Permit required for the work performed

Investigator’s Observation: No permit was provided by respondent at time of inspection. Respondent will need to provide investigator with Permit for wall.

All errors in original.

On March 7, 2023, Investigator Chester issued a second Amended Written Directive to Respondent extending the deadline date for compliance as follows:

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

Complaint Item: Provide Wall Permit required for the work performed

Investigator’s Observation: No permit was provided by respondent at time of inspection. Respondent will need to provide investigator with Permit for wall.

All errors in original.

After the final deadline in the second Amended Written Directive expired, Investigator Chester ascertained that Respondent had not complied with the Written Directive requirements. Consequently, Investigator Chester 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).

On June 26, 2023, Investigator Chester issued a letter providing notice to the parties and the Tribunal of his unavailability to testify at the scheduled hearing. Neither party requested a continuance of the hearing in order for Investigator Chester to attend and provide testimony. Further, at the time set for hearing, neither party requested a continuance. Therefore, the matter proceeded to hearing without the benefit of Investigator Chester’s testimony. However, Administrative Notice was taken of the Agency Record and Complainants submitted numerous exhibits that were admitted into evidence.

Mr. Miertschin testified extensively about the project and the history of Respondent’s failed attempts at obtaining a permit due to Respondent’s failure to submit revised plans. Mr. Miertschin further testified that Respondent failed to comply with the Written Directives in that drainage blocks have not been installed and a permit has not been obtained.

Greg Conn, a licensed masonry contractor, inspected the wall constructed by Respondent at Complainants’ request. Mr. Conn confirmed that the block wall lacks proper drainage.

Mr. Dickinson testified that he would be “glad to go back and cut holes to code” for drainage. Mr. Dickinson asserted that Complainants asked him to leave the project, however, acknowledged that this was prior to the filing of the instant Complaint, and that there was no denial of access after the Written Directives were issued. Mr. Dickinson requested additional time to obtain the permit and perform the required corrective work.

June Nelson, an employee of Respondent, testified regarding Respondent’s attempts to procure a permit for the project. Ms. Nelson explained that initially, Respondent submitted the permit including future electrical work for a spa, and the permit application was denied multiple times due to the electrical portion. Eventually, in June 2023, Respondent canceled the permit application, and decided to “start over” with a new application. However, as of the hearing date, the required permit had not been issued and notwithstanding such, Respondent performed work on the project.

Administrative notice is taken of Respondent’s prior License record on August 1, 2023. Such prior License record reflects that Respondent’s License Number 327382 was first issued on January 13, 2020, and is active. Such prior License record also reflects that there are no open complaints, one disciplined complaint, and no resolved/settled complaints 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 preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”

The evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Respondent constructed the wall without drainage, and moreover, constructed the wall without obtaining the required permit. 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).

The evidence established that Respondent did not complete the corrective work following the Written Directives being issued, notwithstanding the extension of time for compliance. Respondent acknowledged that the permit has not yet been obtained and the drainage has not been corrected. Respondent did not establish valid justification for such failure. Therefore, Complainants 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 327382 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, August 7, 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]

Joey Chester

[email redacted]

Dickinson Enterprises, LLC

[email redacted]

Ronnie and Brenda Miertschin

[email redacted]

By: OAH Staff