ALJDEC - Licensing
2022A-11659-CHC-ROC · Registrar of Contractors · 2023-06-15
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Vanessa Helms ,
COMPLAINANT,
v.
M & K ENTERPRIZE LLC,
License No. ROC 342027,
RESPONDENT.
No. 2022A-11659-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: May 24, 2023
APPEARANCES: Vanessa and Skyler Helms (Complainant) represented themselves. Michael Bejaranao, Jr. represented M & K ENTERPRIZE LLC
(Respondent).
ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn
_____________________________________________________________________
FINDINGS OF FACT
Respondent’s license, ROC 342027, Specialty Dual CR-10 Drywall, was issued by the Arizona Registrar of Contractors (Registrar) in December of 2002. The Qualifying Party is Michael Bejarano, Sr.
Invoices were produced to lay tile and grout in Complainant’s home and in the master shower; each is dated June 7, 2022. The record contains three invoices, two of which show a change order and differences in totals.
Respondent’s work began on June 28, 2022 and ended on July 29, 2022.
Complainant filed an ROC Licensed Complaint regarding dissatisfaction with the work and alleging abandonment of the contract.
On January 23, 2023, Investigator Michael Springer conducted a job-site investigation regarding the Complaint. Investigator Springer divided the Complainant issues into nine items for review, and he proceeded to verify Items 4, 5, 7, and 9.
On January 26, 2023, the Registrar issued a Directive. The Directive provided that corrections were to be completed no later than February 27, 2023.
The Registrar’s Directive called for the following to be corrected:
Compliance Item: 4 - missing grout along baseboards
Investigator’s Observation: Grout is missing along edges of walls
throughout the home.
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 - master shower not complete with tile
Investigator’s Observation: Tile is incomplete at shower door edges,
clear silicone was used around edges and is poorly done.
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 - stained stucco on the outside of the home w/ grout
mix
Investigator’s Observation: Grout is splattered onto back patio stucco
wall. Since respondent was the only one working with grout, it is more likely
than not caused by his work.
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: 9 - tall cabinets stained w/ grout
Investigator’s Observation: Grout is smeared onto tall cabinet laundry
room.
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.
8. Investigator Springer confirmed with Complainant that there had been no compliance efforts and referred the matter to the ROC Legal for Citation.
9. On February 22, 2023, the Registrar issued a Citation against Respondent’s license. Through the Citation, the Registrar charged that Respondent may have violated the following provisions:
a. Ariz. Rev. Stat. § 32-1154(3) (specifically, Ariz. Admin. Code R4-9-108(a), in violation of any rule adopted by the registrar.
b. Ariz. Rev. Stat. § 32-1154(A)(12) (specifically Ariz. Rev. Stat. § 32-1158), in failure in any material respect to comply with this chapter;
c. Ariz. Rev. Stat. § 32-1154(A)(16), knowingly contracting beyond the scope of the license or licenses of the licensee; and,
d. Ariz. Rev. Stat. § 32-1154(A)(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.
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If the matter proceeds to a hearing and the administrative law judge determines that any of the charges listed above are supported by a preponderance of the evidence, then Respondent’s license(s) may be subject to suspension or revocation, and Respondent may be subject to other penalties provided by law, including civil penalties under Ariz. Rev. Stat. §§ 32-1154(E) and (F).
10. The Citation further indicates that if the Administrative Law Judge finds that the alleged charges are valid, the Registrar may suspend or revoke Respondent’s license.
11. Respondent filed a timely answer to the Citation with an explanation of the allegations and circumstances.
12. The matter was referred to the Office of Administrative Hearings (OAH) for an evidentiary hearing.
13. At hearing, the parties revisited the challenges of the project and the progression of the work.
14. Complainant discussed the nature of the project and “Chris” being the supervisor of the project. Complainant explained that Respondent’s work was not finished to Complainant’s satisfaction. Regarding the Directive, Complainant indicated that she never heard from Respondent.
15. Respondent explained that some work on the project was done out of order causing some of the deficiencies and that certain items have just a minimum amount of work to make the corrections. Respondent noted that Complainant did not want them back to the job and, at that time, kept referring them to go back through “Chris.”
16. Respondent pushed Complainant for a final walk through and worked on cleaning up their work for two or three days in late July, wanting to finish up the work for Complainant “to get it done right for them.” Respondent indicated that their last day on the job site was July 29, 2022. Respondent texted again on August 1, 2022 about a walk through and final payment. Respondent went to the walk through at their requested/scheduled time and no one else showed up; Respondent put the key in the lock box and left.
17. Complainant admitted that she had not responded to Respondent’s text on July 30, 2022 regarding a final walk through. On August 4, 2022, Complainant texted that she would get back to Respondent; on August 5, 2022, Complainant texted about her overall issues, stated her concerns about poor work, and indicated that she would pay Respondent only $5,000.00 of the final payment and would retain $2,400.00 to get things fixed at the home.
18. On August 5, 2022, Respondent texted that he would forward the text to his son who would get back to Complainant.
19. Administrative notice is taken of Respondent’s License record, which reflects that this matter is the only open complaint against his license record.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat.
section 32-1154(A).
The burden of proof at an administrative hearing falls to the party
asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119.
A preponderance of the evidence is “such proof as convinces the trier of
fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960).
4. The Administrative Law Judge may consider the Registrar’s administrative record. See Ariz. Admin. Code § R4-9-118.
5. The preponderance of the evidence demonstrates that Complainant did not want Respondent to come back to the property to do any more work at the time of the work in June and July 2022 as she was totally dissatisfied with how Respondent’s work proceeded. Complainant had told them to go through Chris, then did not respond to the walk through request prior to the time Respondent had set it and, lastly, withheld monies owed to Respondent under the contract. However, the evidence does not clearly demonstrate reliable facts with regard to the Directive time-period.
6. The preponderance of the evidence demonstrates that Respondent did not complete the contracted work to workmanship, directed, standards, and failed to comply with the Registrar’s Directive without valid justification. The evidence demonstrates violations as charged: of Ariz. Rev. Stat. § 32-1154(3) (specifically, Ariz. Admin. Code section R4-9-108(a); and Ariz. Rev. Stat. § 32-1154(A)(22).
7. The preponderance of the evidence demonstrates that Respondent performed contracting work beyond the scope of the license in violation of Ariz. Rev. Stat. § 32-1154(A)(16).
8. The preponderance of the evidence demonstrates that the invoices of record did not comport with the written contract requirements set forth in Ariz. Rev. Stat. § 32-1158, resulting in violation of Ariz. Rev. Stat. § 32-1154(A)(12).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License No. 342027 two days.
It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to Ariz. Rev. Stat. section 32-1154(E).
It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty 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 Ariz. Rev. Stat. section 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, June 15, 2023.
/s/ Kay A. Abramsohn
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Registrar of Contractors
c/o Legal Department
[email redacted]
M & K ENTERPRIZE LLC
[email redacted]
Vanessa Helms
[email redacted]
Mike Springer
[email redacted]
By: OAH Staff