ALJDEC - Licensing

2024A-06070-CHC-ROC · Registrar of Contractors · 2025-02-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Willie Madison,

COMPLAINANT

v.

Kustum Digz LLC

DBA: El Torna Hauling Service

License No. ROC 332036,

RESPONDENT

No. 2024A-06070-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 21, 2025 at 1:00pm

APPEARANCES: Willie Madison, Complainant; Mike Springer, Arizona Registrar of Contractors Investigator.

ADMINISTRATIVE LAW JUDGE: Nicole Robinson

EXHIBITS ADMITTED INTO EVIDENCE: Registrar of Contractors Notice of Hearing Packet (“Packet”).

FINDINGS OF FACT

Kustum Digz, LLC; DBA: El Torna Hauling Service (“Respondent”) is the holder of License No. ROC 332036 issued by the Arizona Registrar of Contractors (“Registrar”).

Willie Madison (“Complainant”) owns a nine-unit apartment complex in Tucson, Arizona. The parking lot of the complex needed to be repaved and fixed due to crumbling asphalt and grass coming through the lot in some spaces. On or about August 28, 2023, Complainant entered into a contract with Respondent for a parking lot project which included new asphalt and paving at his apartment complex. The total amount of the project was $16,500.00 in which Complainant paid in full. The work on the lot started on August 28, 2023 and work stopped on August 29, 2023.

On or about May 28, 2024, the Registrar received a Complaint against Respondent from Complainant alleging job abandonment with respect to the project.

The Registrar assigned the complaint to Investigator Mike Springer. On October 4, 2024, Investigator Springer conducted a jobsite inspection with Complainant present. On October 7, 2024, after the 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 October 23rd, 2024.

. . . .

DIRECTIVE REQUIREMENTS

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

Complaint Item: 1 – paving work was 50% completed. Payment was made in full

Investigator’s Observation: Large area was paved where vehicles park, Large open dirt area is left. Complainant states paving was supposed to continue over old driveway and edge to edge of property line. Area near North end is poorly finished and falling apart already. Respondent is not licensed for this type of 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. A.R.S. § 32-1154(A)(3) - R4-9-108(a) Workmanship

All errors in original.

Following the issuance of the Written Directive, Respondent made no attempt to remedy the items in the Written Directive. On October 24, 2024, after the deadline in the Written Directive expired, Complainant notified Investigator Springer that no corrective work had been performed.

On November 6, 2024, 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 1:00PM on January 21, 2025. The Registrar mailed copies of the Notice of Hearing to Respondent at its address and email address of record. On December 11, 2024, a Google Meet order from the Office of Administrative Hearings advised the parties on how to connect to the hearing via Google Meet. The hearing was held via Google Meet on January 21, 2025.

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.

Hearing Evidence

Investigator Springer testified that Respondent only performed half of the contracted work and then abandoned the project. In addition, Investigator Springer testified that Respondent was working out of the scope of his license because he needed an R-13 Asphalt Paving License to perform this project. Respondent’s ROC License No. 332036 is an R-2 Excavating, Grading and Oil Surfacing license which did not qualify this contractor to perform work on this project. Investigator Springer testified that for Respondent to assist Complainant with the completion of the work, Respondent would have needed to find a licensed contractor and have that new, properly licensed contractor work with the homeowner. Respondent is not permitted to subcontract this work.

Also, Investigator Springer testified to Respondent’s contract missing key elements that do not comply with the law. In particular, the elements that were missing included: the estimated date of completion, a description of the work to be performed, and information regarding the customer’s right to file a complaint that should include Registrar contact information.

Complainant testified that he was willing to work with Respondent, but he only worked approximately two days and never came back to the project. Complainant reached out to Respondent to complete the work with no success. Complainant further testified that the worksite was left with trash left behind and in an unprofessional state, which affected his tenants.

On November 22, 2024, in Respondent’s late Answer to the Citation, Maurice Gant stated in part, “I did start this job and didn’t have enough to finish it.”

Administrative notice is taken of Respondent’s prior License record on January 21, 2025. Such prior License record reflects that Respondent’s License No. ROC 332036 was first issued on January 26, 2021, and on October 3, 2024, the license was suspended. Such prior License record also reflected that there were two open complaints and three cases that resulted in discipline against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

The copies of the Notice of Hearing that the Registrar mailed to Respondent at its address and email address of record were reasonable and Respondent is deemed to have received notice of the hearing.

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. A preponderance of the evidence means ‘proof which leads the [trier of fact] to find that the existence of the contested fact is more probable than its nonexistence.’

Respondent’s suspended license does not deprive Complainant of his right to prosecute his complaint or prevent the Registrar from determining the merits of the complaint.

In this case, the work performed by Respondent was only partially completed and left in an unprofessional state. Respondent abandoned this project and that fact is uncontested. As such, 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 include the required elements of a contract set forth in Ariz. Rev. Stat. § 32-1158(A). Therefore, Complainant established that Respondent failed to comply with the Registrar’s statute in violation of Ariz. Rev. Stat. § 32-1154(A)(12).

In addition, the evidence established that Respondent entered into a contract for a residential asphalt and paving project which is clearly not permitted work under an R-2 license. Therefore, Complainant established that Respondent knowingly contracted beyond the scope of its license in violation of Ariz. Rev. Stat. § 32-1154(A)(16).

Lastly, 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 suspend Respondent’s License No. ROC 332036 for a period of five 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. § 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)(5), unless Respondent tenders payment of any outstanding prior civil penalty.

It is Further Recommended that, on or before thirty (30) days after the effective date of the final order, Respondent shall provide a sample contract to the Registrar to demonstrate that it has amended its contracts to include the nine terms required by Ariz. Rev. Stat. § 32-1158(A). If Respondent fails to establish to the Registrar that it has brought its contracts into compliance with Ariz. Rev. Stat. § 32-1158(A) within thirty days, its contractor’s license shall be suspended until it demonstrates that it has done so.

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, February 10, 2025.

/s/ Nicole Robinson

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

c/o Legal Department

1700 W. Washington Street, Suite 105

Phoenix, AZ 85007

[email redacted]

Willie Madison

1660 N. Paseo Dorado

Tucson, AZ 85715

[email redacted]

Kustum Digz LLC

DBA: El Torna Hauling Services

3542 S. Chesin Dr.

Tucson, AZ 85730

[email redacted]

Mike Springer

[email redacted]

By: OAH Staff