ALJDEC decisions subject to certification as final

2017A-4255-NPC-ROC · Registrar of Contractors · 2017-12-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Sssong Investments Corp.,

COMPLAINANT,

v.

Stertz Construction LLC,

License No: 291858,

RESPONDENT.

No. 2017A-4253-NPC-ROC

No. 2017A-4254-NPC-ROC

No. 2017A-4255-NPC-ROC

No. 2017A-4257-NPC-ROC

No. 2017A-4258-NPC-ROC

No. 2017A-4259-NPC-ROC

Consolidated Administrative Law Judge Decision

_____________________________________________________________________

HEARING: December 8. 2017

APPEARANCES: Damien Meyer, Esq. represented Sssong Investment Corp. (Complainant) Stertz Construction LLC (Respondent) was represented by Richard Paul Sterz, its qualifying party and representative.

ADMINISTRATIVE LAW JUDGE: Suzanne Marwil

FINDINGS OF FACT

Respondent is the holder of License No. 291858 issued by the Registrar of Contractors (Registrar). Respondent voluntarily cancelled this license on November 29, 2017 while it was suspended until compliance. Respondent’s license is the subject of ten open complaints as well as two settled or withdrawn complaints and has been disciplined by the Register five times.

Complainant filed six complaints against Respondent with the Registrar alleging that Respondent had failed to pay invoices from Complainant from six different jobs. The invoice were from the Patton job ($1,772.00), the Flagg job ($7,044.00), the McCausland job ($11,450.00), the Summons job ($10,558.00), the Hush job ($11,650.00) and the Corbett Brewery job ($16,187.50).

The parties were unable to resolve their differences, and Complainant requested an administrative hearing. The Registrar then issued formal Citations in each case charging Respondent with a possible violation of A.R.S. § 32-1154(A)(10).

Carol Murray, Complainant’s office manager, testified the total amount Respondent owed Complainant for the six unpaid projects was $66,651.50. She noted that Complainant had done the work specified in the invoices, but Respondent had failed to pay anything toward the invoices.

Richard “Rick” Sterz testified on behalf of Respondent. He acknowledged that Complainant had invoiced Respondent for $66,651.50 relative to the six jobs that were the subject of the complaints and that this amount was due and owing to Complainant. He indicated that he had voluntarily cancelled Respondent’s license because Respondent was out of business. He repeatedly refused to answer questions and stated that Respondent intended to file bankruptcy on December 11, 2017 and that Respondent would include the amount it owed to Complainant as a claim within the bankruptcy.

CONCLUSIONS OF LAW

Respondent’s voluntarily cancelled license does not deprive Complainant of its right to prosecute its complaints or prevent the Registrar from determining the merits of the complaints. See A.R.S. § 32-1154(D).

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).

A.R.S. § 32-1154(A)(10) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license,

[f]ailure by a licensee . . . to pay monies in excess of seven hundred fifty dollars when due for materials or services rendered in connection with the licensee’s operations as a contractor when the licensee has the capacity to pay or, if the licensee lacks the capacity to pay, when the licensee has received sufficient monies as payment for the particular construction work project or operation for which the services or materials were rendered or purchased.

The evidence established Respondent owed the invoiced total of $66,651.50 to Complainant.

Respondent admitted that it failed to pay Complainant $66,651.50 that was due and owing to Complainant as shown in the invoices it sent Respondent for each of the jobs at issue.

Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(10) by failing to pay Complainant $66,651.50 for services rendered in connection with Respondent’s contracting business.

Based upon Respondent’s violation of the provisions of A.R.S. § 32-1154(A)(10), grounds exist to impose discipline against Respondent’s license.

RECOMMENDed order

Based on the foregoing, it is recommended that the Registrar suspend Respondent’s License 291858 issued by the Registrar until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $66,651.50 in certified funds.

It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $66,651.50 in certified funds, the Registrar may close the Complaint in Case Nos. 2017-4253, 2017-4254, 2017-4255, 2017-4257, 2017-4258 and 2017-4259.

In the event of certification of this 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 the certification.

Done this day, December 11, 2017.

/s/ Suzanne Marwil

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors