ALJDEC - Licensing
2023A-05842-CHC-ROC · Registrar of Contractors · 2024-04-23
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Carrie Alexander ,
COMPLAINANT
v.
M & K ENTERPRIZE LLC
License No. ROC 342027,
RESPONDENT
No. 2023A-05842-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: April 15, 2024
APPEARANCES: Carrie Alexander appeared on her own behalf. Respondent failed to appear.
ADMINISTRATIVE LAW JUDGE: Amy M. Haley
EXHIBITS ADMITTED INTO EVIDENCE: Administrative Notice was taken of the Notice of Hearing packet and all of its documents contained therein.
_____________________________________________________________________
FINDINGS OF FACT
M&K Enterprize LLC (Respondent) is the holder of License No. 342027 issued by the Arizona Registrar of Contractors (Registrar).
On or about April 1, 2023, Carrie Alexander (Complainant) entered into a contract with Respondent for remodeling her primary residence.
On or about May 23, 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 Mike Springer. After a jobsite inspection, Investigator Springer 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 January 23rd, 2024.
RESTRICTIONS
• You may not perform or hire other contractors to perform work that is outside the scope of your license.
• If your license is currently suspended for administrative reasons, or is inactive, expired, or cancelled, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the suspension of your license(s) has been lifted or your license(s) has been reactivated.
DIRECTIVE REQUIREMENTS
You are directed to remedy the following violations by the appropriate means:
Compliance Item: 1 - Master bathroom not complete
Investigator’s Observation: Master bathroom is missing new window. Shower floor tile does not drain, leaves puddle. Shower door missing.
. . . . .
Compliance Item: 2 - Missing vanity, toilet, flooring, painting shower sliding door, window and mirror
Investigator’s Observation: This is the hall bathroom, missing shower doors. . Other items complete.
. . . . .
Compliance Item: 3 - Master bedroom not completed
Investigator’s Observation: Window in master bedroom poorly installed. Not finished. Other items complete.
. . . . .
Compliance Item: 5 - Hallway needs flooring ,water heater door, doors for closets and lights
Investigator’s Observation: Water heater closet door not installed.
. . . . .
Compliance Item: 6 - The new addition the roof is lifted off the concrete beams and sitting on the new frame work
Investigator’s Observation: Addition seems to be pushing old support beam up. Approx 1/2" is unsupported.
. . . . .
Compliance Item: 8 - The hole house needs flooring done, concrete is showing thru the house with nails and debri
Investigator’s Observation: Flooring has been completed in 99% of existing home. Pieces are missing in kitchen and addition not complete.
. . . . .
Compliance Item: 9 - The new addition is not done correctly or up to code Investigator’s Observation: Addition is in framing stage. No permit or plans on site. Respondent must provide permit and demonstrate that all required inspections have been passed.
. . . . .
Compliance Item: 10 - All the light fixtures and outlets through the home are showing with wires
Investigator’s Observation: Outlets in existing home have been completed. However, one outlet in bedroom has a hard wired light to outside that cannot be turned off. Complainant states Respondent was using his own employees for electrical and plumbing. Out of scope.
Governing Rule: Knowingly contracting beyond the scope of the
license or licenses of the licensee.
. . . . .
Compliance Item: 11 - My daughter's room is not completed it needs a ceiling fan flooring and new window
Investigator’s Observation: Window not installed in this room, other items completed.
. . . . .
Compliance Item: 12 - My son's room needs new window ,ceiling fan, flooring ,paint and shelving in closet
Investigator’s Observation: Window not replaced in this room. Other items complete.
. . . . .
Compliance Item: 17 - The contractor has over $60,000 and has not completed anything he says he has all of my material but never brings it and does not show me any receipts for the material when I ask him I ask for blueprints and permits and he denies me those; My house is still looking like it's in demolition mode and I have my three children living there my 60- yearold aunt we all feel uncomfortable and unsafe in this living environment; There is no good communication on the contractors end he starts something and never finishes. When confronted about are money or when he's going to finish a project he gets agitated and changes the subject.
Investigator’s Observation: Last work day at home was just after 11-25-23. There is a document stating that Respondent has transferred the job to his son Michael Bejarano JR. I cannot find this individual in our system as a licensed contractor. Additionally, the document does not meet the ROC requirements for contract. Complaint will remain against original Respondent. Respondent is not licensed for this work and only holds a CR-10 Drywall license.
Governing Rule: Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.
. . . . .
Compliance Item: 21 - Fix hole under sink in kitchen
Investigator’s Observation: Hole is fixed but sink leaks at trap.
. . . . .
Compliance Item: 22 - New lights in kitchen
Investigator’s Observation: Light missing over sink.
. . . . .
Compliance Item: 23 - New cuberts and extend them
Investigator’s Observation: Kitchen cabinets have been installed, South side of cabinets has fallen off and baseboards are missing in kitchen.
. . . . .
Compliance Item: 24 - New vent over oven
Investigator’s Observation: Venting for oven is incomplete.
. . . . .
Compliance Item: 27 - Sliding door is suppose to be taken out and replaced with an arch walkway.
Investigator’s Observation: Existing sliding door from kitchen to addition remain is place. Pic 10
. . . . .
Compliance Item: 30 - Fix hole in drywall first bathroom and fix fan.
Investigator’s Observation: Exhaust fan not functioning correctly, water and mildew appearing right next to fan, unclear where fan exhausts.
. . . . .
Compliance Item: 31 - Still hasnt shown us permits/plans receipts for material that he supposedly bought with abandoned the job on 5/3/23.
Investigator’s Observation: No permit or plans on site. Respondent must obtain or provide proof of permit and provide evidence of approved inspections.
. . . . .
All errors contained in original.
After the deadline in the directive expired, Investigator Springer was notified no corrective work had been performed.
The Registrar issued a Citation against Respondent, charging possible violations of Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(A); Ariz. Rev. Stat. § 32-1154(A)(12), namely Ariz. Rev. Stat. § 32-1158; Ariz. Rev. Stat. § 32-1154(A)(16), and Ariz. Rev. Stat. § 32-1154(A)(22).
The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.
The Registrar issued a Notice of Hearing, setting a hearing at 1:00 p.m. on April 15, 2024. The Registrar mailed copies of the Notice of Hearing to Respondent at its address and email address of record. A Google Meet order from the Office of Administrative Hearings advised the parties of how to connect to the hearing via Google Meet. The hearing was held via Google Meet on April 15, 2024.
Respondent did not request that the hearing be continued. Although the start of the hearing was delayed 15 minutes, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license.
Investigator Springer testified consistently with his written directive. Investigator Springer further testified that the Registrar originally received a Complaint on May 23, 2023, but that the Complaint was closed because the parties had reached an agreement. The Complaint was re-opened on November 17, 2023, because a resolution was ultimately not reached. Further, Investigator Springer testified that Respondent’s contract was missing contract elements #4 and #9. Lastly, Investigator Springer advised that Respondent only held a CR10 Drywall License. In order to complete some of the work Respondent was performing, Respondent would have been required to hold some kind of “B” License to act as a general contractor. Therefore, Respondent was operating outside the scope of its license.
Complainant testified that the original contract was to remodel her home and that her family had been displaced from the home during the construction.
Brittany Armenta, Complainant’s niece, testified on behalf of Complainant. Ms. Armenta testified that she felt taken advantage of and that Respondent would work whenever he wanted to, but expected payment every week.
Administrative notice is taken of Respondent’s prior License record on April 16, 2024. Such prior License record reflects that Respondent’s License No. 342027 was first issued on December 2, 2022, and is currently revoked as of September 15, 2023. Such prior License record also reflects that there were no other open complaints and one prior disciplined case that resulted in the revocation of Respondent’s license.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction.
The Notice of Hearing that the Registrar mailed to Respondent at its address and email address of record was reasonable, and Respondent is deemed to have received notice of the hearing.
Respondent’s revoked license does not deprive Complainant of her right to prosecute her Complaint or prevent the Registrar from determining the merits of the Complaint.
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 evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(A).
The evidence established that Respondent’s contract failed to contain the estimated date of completion of all work to be performed under the contract and that the property owner has the right to file a written complaint with the registrar for an alleged violation of section 32-1154, subsection A, in violation of Ariz. Rev. Stat. § 32-1154(A)(12), namely Ariz. Rev. Stat. § 32-1158.
The evidence established that Respondent knowingly contracted beyond the scope of its license, in violation of Ariz. Rev. Stat. § 32-1154(A)(16).
The evidence established that Respondent did not attempt to complete the corrective work following the Directive being issued. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of Ariz. Rev. Stat. § 32-1154(A)(22).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall revoke Respondent’s License No. 342027.
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. § 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. § 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, April 23, 2024.
/s/ Amy M. Haley
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
By: OAH Staff