ALJDEC - Licensing

2023A-13013-CHC-ROC · Registrar of Contractors · 2024-06-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Keith Kepler

COMPLAINANT,

v.

Mark Steven Construction LLC

License No. ROC 251568,

RESPONDENT.

No. 2023A-13013-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 29, 2024

APPEARANCES: Complainant Keith Kepler represented himself. Mark Olea represented Respondent Mark Steven Construction, LLC

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

EXHIBITS ADMITTED INTO EVIDENCE: Complainant’s Exhibits 1 through 15 and Respondent’s Exhibits 1 through 13.

_____________________________________________________________________

FINDINGS OF FACT

Respondent holds license number 251568 issued by the Arizona Registrar of Contractors (Registrar or ROC).

Mark Olea is Respondent’s qualifying party.

On April 18, 2024, the ROC issued a Notice of Hearing setting the above-captioned matter for hearing on May 29, 2024 at the Office of Administrative Hearings in Phoenix, Arizona.

A hearing was held on Mary 29, 2024.

At hearing, Complainant testified on behalf of himself. Mr. Olea testified on behalf of Respondent.

On or about June 28, 2023, Complainant and Respondent entered into construction contract wherein Respondent would remodel Complainant’s home for the amount of $88,735.42. Complainant paid the contract in full.

Through the contract, Complainant agreed to pay Respondent to install bamboo flooring in his home.

On or about July 5, 2023, Respondent started work.

On or about October 10, 2023, Respondent stopped work.

On or about November 11, 2023, Complainant filed a complaint with the ROC alleging abandonment and poor workmanship.

On December 13, 2023, Investigator Chester conducted a job-site inspection. Investigator Chester substantiated complaint items 1 through 5 as work that was not performed in accordance with professional industry standards.

On December 21, 2023, the ROC issued a Directive to Respondent directing Respondent to correct complaint items 1 through 5, by appropriate means, no later than January 19, 2024. The Directive provided, in relevant part, as follows:

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

Complaint Item 1: Disbonded Flooring (Family Room)

Investigator’s Observation: Verified. The Respondent will need to correct this by the appropriate means.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item 2: Exposed Wall Outlet Kitchen Backsplash (side)

Investigator’s Observation: Verified. The Respondent will need to correct this by the appropriate means.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item 3: Kitchen Cabinet nail prostitution on decorative panel

Investigator’s Observation: Verified. The Respondent will need to correct this by the appropriate means.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item 4: Interior door sanded but not repainted

Investigator’s Observation: Verified. The Respondent will need to correct this by the appropriate means.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item 5: Kitchen and family room ceilings texture does not match (smooth vs rough). Investigator’s Observation: Verified. The Respondent will need to correct this by the appropriate means.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

On February 20, 2024, Investigator Chester conducted a job-site inspection. Investigator Chester concluded that Respondent had corrected all of the remaining complaint items with the exception of complaint Items 1 and 3. Investigator Chester found that Respondent performed no work on the disbanded flooring in the living room and that marking and chips remained on the cabinet facing.

On February 29, 2024, the ROC issued a Citation against Respondent’s license. Through the Citation, the ROC alleged that Respondent violated Arizona Revised Statutes (A.R.S.) § 32-1154 (A)(3) and (22); Arizona Administrative Code (A.A.C.) R4-9-108(C).

Mr. Brown filed a timely answer on behalf of Respondent.

At hearing, Complainant explained that Respondent performed poor work when remodeling his home. Complainant alleged that his floor was damaged when one of Respondent’s workers caused a pipe to burst in his home. Mr. Brown asserted that Respondent’s workers did not cause a pipe burse. Rather, Mr. Brown stated that

Complainant had a broken pipe underneath his home that resulted in Complainant needing his floor patched. Mr. Brown stated that he explained to Complainant that there was no guarantee that the patch work would be effective. However, there was no evidence presented at hearing that Respondent advised Complainant in writing that the patch work might not be effective.

Investigator Chester testified consistently with his job-site and compliance job-site inspection notes at the hearing.

Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on June 18, 2024. Such prior License record reflects that Respondent’s License No. ROC 2251568 was issued on December 22, 2018, and is currently active. Such prior License record shows that the ROC has never imposed discipline on Respondent’s license. Respondent’s lack of disciplinary history is considered a mitigating factor in the imposition of penalties.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

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.

3. The Administrative Law Judge may consider ROC’s administrative record. See Ariz. Admin. Code § R4-9-118.

4. 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).

5. The preponderance of the evidence shows that the issues found

by Investigator Chester in his job-site inspections demonstrate that Respondent failed to perform work in accordance with professional industry standards, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(3), namely A.A.C. R4-9-108(C).

6. The preponderance of the evidence shows that Respondent corrected complaint items 2, 4, and 5.

7. The preponderance of the evidence shows that Respondent failed to

correct complaint items 1 and 3 listed in the Registrar’s Directive without valid justification, which is a violation of Ariz. Rev. Stat. section 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 ROC License: No. 251568, held by Mark Steven Construction, LLC for two days.

It is further recommended that the Registrar require Respondent to pay the sum of $250.00 as a civil penalty pursuant to Ariz. Rev. Stat. section 32-1154(E).

It is further recommended that 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 18, 2024.

/s/ Velva Moses-Thompson

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Mark Steven Construction LLC

[email redacted]

Keith Kepler

[email redacted]

By: OAH Staff