ALJDEC - Licensing
2023A-13010-CHC-ROC · Registrar of Contractors · 2024-09-06
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Ronnie L. Miertschin,
COMPLAINANT,
v.
Dickinson Enterprises, LLC
License No. ROC 336029, 327382 & 189166,
RESPONDENT.
No. 2023A-13010-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: August 21, 2024
APPEARANCES: Complainant Ronnie L. Miertschin appeared on his own behalf. Mark Dickinson appeared on behalf of Respondent Dickinson Enterprises, LLC. Arizona Registrar of Contractors Investigator John Chester appeared as a witness.
ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella
EXHIBITS ADMITTED INTO EVIDENCE: Administrative Notice was taken of the Agency Record. Complainant Ronnie L. Miertschin’s Exhibit pages 23-49, and 82; Respondent Dickinson Enterprises, LLC’s Photographic Exhibits
FINDINGS OF FACT
Dickinson Enterprises, LLC (“Respondent”) is the holder of License Numbers 336029, 327382, and 189166 issued by the Arizona Registrar of Contractors (“Registrar”).
In or about January 2022, Ronnie L. Miertschin (“Complainant”) contracted with Respondent for the installation of a block wall fence at his home.
On or about November 10, 2023, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.
The Registrar assigned the Complaint to Investigator John Chester. After a March 21, 2024 Jobsite Inspection, Investigator Chester issued a Written Directive to Respondent dated March 28, 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 Friday, April 26, 2024.
You are directed to remedy the following violations by the appropriate means:
Complaint Item 1: Crooked, out-of-plumb, out-of-level masonry walls
Investigator’s Observation: At the time of inspection areas of the wall were within tolerance of level but there were multiple blocks that had become loose and no longer laid level, respondent would need to fix by appropriate means.
Complaint Item 2: Uneven surface of masonry walls
Investigator’s Observation: Verified blocks that were pushed out of line of the wall and creating uneven surface, respondent will need to correct by appropriate means.
Complaint Item 3: Voids in mortar joints
Investigator’s Observation: Verified. The Respondent will need to correct this by the appropriate means.
Complaint Item 4: Cracks in mortar joints (stair step)
Investigator’s Observation: Verified. The Respondent will need to correct this by the appropriate means.
Complaint Item 5: Mortar joints not straight, plumb or varies in thickness.
Investigator’s Observation: At time of inspection there were multiple areas that the mortar was both too thin and too thick, Respondent will need to fix by appropriate means per original contract agreement, properly executed change orders, verbal agreements, local building codes and manufacturers installation instructions.
Complaint Item 6: Metal reinforcement (rebar, duo-wire, etc.)
Investigator’s Observation: At the time of inspection verified lack of rebar in multiple areas of block wall, respondent will need to fix by appropriate means per original contract agreement, properly executed change orders, verbal agreements, local building codes and manufacturers installation instructions.
All errors and emphasis in original.
The deadline for compliance with the Written Directive was extended to June 6, 2024, in order to allow additional time for Respondent to obtain the proper permit.
After the extended deadline in the Written Directive expired, Investigator Chester ascertained that Respondent had not complied with the Written Directive. Investigator Chester checked the permit status and found that the permit was terminated on May 29, 2024, due to the plans not being submitted to the permit office.
Thereafter, Investigator Chester forwarded the matter 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(c), and A.R.S. § 32-1154(A)(22).
Investigator Chester testified consistently with his findings contained in the Written Directive and the Jobsite Inspection Notes. During his testimony, Investigator Chester referenced the numerous photographs he took at the Jobsite Inspection. Investigator Chester testified that Respondent needed to obtain a permit in order to comply with the Written Directive because corrective work could not be performed without a valid permit. Investigator Chester further testified that the plans submitted by Respondent show where rebar was to be located. However, wherever Investigator Chester looked at the tops that were opened, there was no rebar installed.
Complainant testified that Respondent initially applied for a permit for the project on January 19, 2022, and submitted the details on January 26, 2022. On January 28, 2024, the permit was denied. Respondent ordered the block, dug and installed rebar, and poured foundation, all prior to obtaining a permit.
Mark Dickinson, owner of Respondent, showed several photographs during the hearing, some consisting of roots from vegetation that he blamed for certain issues with the block wall. Mr. Dickinson also testified that the first attempt at obtaining a permit failed because it included electrical, and that Respondent did not attempt to obtain a permit without electrical because Complainant wanted electrical included. Mr. Dickinson testified that Respondent attempted to make repairs, however, Complainant would not allow Respondent to do so.
Administrative notice is taken of Respondent’s prior License record on September 5, 2024. Such prior License record reflects that Respondent’s License Number 336029, a CR-31 Specialty Dual Masonry license, was first issued on December 21, 2021, and is active. Such prior License record also reflects that there are no open complaints (notwithstanding this one), zero resolved/settled complaints, and no discipline against this license. Such prior License record reflects that Respondent’s License Number 327382, a CR-61 Specialty Dual Carpentry, Remodeling and Repairs license, was first issued on January 13, 2020, and is active. Such prior License record also reflects that there are no open complaints (notwithstanding this one), zero resolved/settled complaints, and one complaint resulting in discipline against Respondent’s license. Such prior License record reflects that Respondent’s License Number 189166, a CR-34 Specialty Dual Painting and Wall Covering license, was first issued on October 2, 2003, and is active. Such prior License record also reflects that there are no open complaints (notwithstanding this one), zero resolved/settled complaints, and no discipline against this 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 and probative evidence established that Respondent’s work was not in conformity with the Registrar’s standards and/or professional industry standards. Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(c).
The evidence established that Respondent did not complete the required corrective work following the Written Directive being issued. Respondent was required to obtain a proper permit for the project prior to completing the corrective work. The deadline for compliance with the Written Directive was extended in order to afford Respondent an opportunity to do so. Respondent failed to obtain to require permit and Respondent did not establish valid justification 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 Numbers 336029, 327382, and 189166 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, September 6, 2024.
/s/ Sondra J. Vanella
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
Joey Chester
[email redacted]
Dickinson Enterprises, LLC
[email redacted]
Ronnie Miertschin
[email redacted]
By: OAH Staff