ALJDEC decisions subject to certification as final

2020A-03154-CHC-ROC · Registrar of Contractors · 2020-11-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Daniel L. Rash Sr.

COMPLAINANT

Curtis Robert Hough

License No. 183179,

RESPONDENT

No. 2020A-03154-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 10, 2020

APPEARANCES: Complainant Daniel L. Rash Sr. appeared on his own behalf. Respondent Curtis Robert Hough did not appear.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Curtis Robert Hough (Respondent) is the holder of License No. 183179 issued by the Arizona Registrar of Contractors (Registrar).

On or about April 15, 2020, Daniel L. Rash St. (Complainant) entered into an agreement with Respondent for a wall and concrete work.

On or about June 29, 2020, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Cliff Corlett. After a jobsite inspection, Investigator Corlett issued a written directive to Respondent that provided as follows:

After investigation, the Registrar has verified that your work fails to meet minimum workmanship standards. A.R.S. § 32-1154(A)(3); A.A.C. R4-9-108. 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 in writing of your compliance with this Directive prior to 5:00 p.m. on or before August 19, 2020.

. . . .

DIRECTIVE REQUIREMENTS

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

Compliance Item: 5 - BOTTOM TIE WIRE NOT PUT BACK ON SOUTH

GATE.

Investigator’s Observation: Respondent took down existing chain link fencing to install concrete wall. Respondent re-installed the chain link fence to meet new concrete wall.

RESPONDENT SHOULD PROPERLY FASTEN THE FENCING TO THE UPPER/LOWER FENCE WIRE AS NEEDED.

. . . .

Compliance Item: 6 - TOP TIE WIRE NOT PUT BACK @ SOUTH GATE.

Investigator’s Observation: Respondent took down existing chain link fencing to install concrete wall. Respondent re-installed the chain link fence to meet new concrete wall.

RESPONDENT SHOULD PROPERLY FASTEN THE FENCING TO THE UPPER/LOWER FENCE WIRE AS NEEDED.

. . . .

Compliance Item: 7 - EAST WALL NOT FINISHED. THEY DIDN’T CLEAN

UP.

Investigator’s Observation: "East wall" finish was damaged when forms were stripped and control joint concrete spalled.

RESPONDENT SHOULD PROPERLY REPAIR THE SPALLED CONCRETE OF "EAST" REAR WALL.

. . . .

Compliance Item: 12 - BROKE EXISTING DRIVEWAY, TRIED TO PATCH.

Investigator’s Observation: The WSLC states that (concrete) corners chipped or broken during construction are unacceptable at time of completion.

RESPONDENT SHOULD MAKE PROPER REPAIRS.

Following the issuance of the written directive, Respondent offered Complainant a financial settlement, but the parties were unable to agree on terms. Respondent informed Investigator Corlett that he believed the repairs would cost approximately $500.00 and he had offered Complainant $2000.00, but Complainant requested that Respondent forego the remaining $5300.00 owing on the contract.

After the deadline in the directive expired, Investigator Corlett was notified no corrective work had been performed.

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(A); and A.R.S. § 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 November 10, 2020. The Registrar mailed copies of the Notice of Hearing to Respondent at his address and email address of record.

On or about October 28, 2020, the Office of Administrative Hearings issued an order to the parties indicating the hearing would be held via Google Meet. That order was sent to Respondent at his email address of record.

A hearing was held on November 10, 2020. Complainant testified on his own behalf. Respondent did not appear telephonically or by videoconference and did not request that the hearing be continued. Although the start of the hearing was delayed 15 minutes, Respondent did not appear personal or through counsel. Consequently, Respondent did not present any evidence to defend its license.

Investigator Corlett testified that Respondent had sold his business and had moved out of the area.

Complainant testified that Respondent was already doing another project for Complainant when they entered into the agreement for the project at issue. Complainant stated that Respondent did not clean up during the project. Complainant also asserted that it would cost over $7000.00 to repair the work done by Respondent.

Administrative notice is taken of Respondent’s prior License record on November 30, 2020. Such prior License record reflects that Respondent’s License No. 183179 was first issued on March 9, 2003, and is active. Such prior License record also reflects that there were no other open or prior complaints against Respondent’s license.

CONCLUSIONS OF LAW

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

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “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).

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 A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A).

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 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 No. 183179 for a period of ten 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 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)(5), unless Respondent tenders payment of any outstanding prior civil penalty.

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 40 days from the date of that certification.

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-137160-45720000Done this day, November 30, 2020.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000