FINACT2017A-4253-NPC-ROC.pdf

2017A-4257-NPC-ROC · Registrar of Contractors · 2018-01-11

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Case Nos. 2017-4253 Sssong Investments, Corp., [account number redacted] COMPLAINANT, [account number redacted] v. 2017-4259

Stertz Construction, LLC, Docket Nos. 2017A-4253-NPC-ROC License No. 291858, 2017A-4254-NPC-ROC 2017A-4255-NPC-ROC RESPONDENT. 2017A-4257-NPC-ROC 2017A-4258-NPC-ROC 2017A-4259-NPC-ROC FINAL ADMINISTRATIVE DECISION AND ORDER CONSOLIDATED

Under A.R.S. § 41-1092.08(B), the Registrar may review and accept, modify, or reject an

administrative law judge’s written decision. If the Registrar modifies or rejects that decision, then the

Registrar must provide written justification setting forth the reasons for the modification or rejection.

REGISTRAR’S REJECTION

In this case, a hearing was held, and the administrative law judge issued a written decision. See

Administrative Law Judge Decision, attached. The Registrar reviewed that decision and hereby rejects it.

JUSTIFICATION

On December 12, 2017, five days after the administrative hearing, Respondent filed a Petition for

Chapter 7 Bankruptcy in the U.S. Bankruptcy Court, District of Arizona in Case No. 4:17-bk-14640-

SHG. In accordance with 11 U.S.C. § 362(A), the filing of this Petition provides for an automatic stay of

proceedings and matters pending against Respondent.

CONCLUSION

In view of the foregoing, and with good cause appearing, IT IS ORDERED that Case Nos. 2017-

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 4253, 2017-4254, 2017-4255, 2017-4257, 2017-4258, and 2017-4259 be closed due to bankruptcy. These

cases may be reopened if Complainant obtains an Order granting Complainant relief from the automatic

stay from the U.S. Bankruptcy Court. If Complainant submits a proper Order granting relief from the

automatic stay, signed by a U.S. Bankruptcy Court Judge, the Registrar may then reopen these cases and

schedule a new hearing.

Dated this 10th day of January, 2018.

Registrar of Contractors /s/ Nicole Sornsin ----------------------------------------------------------- Nicole Sornsin Assistant Director, Legal and Recovery Fund Copy mailed via USPS First Class mail this 10th day of January, 2018 to: Respondent Stertz Construction LLC 3125 E 2nd St Tucson, AZ 85716-4209 Complainant Sssong Investments Corp. 2702 S Alvernon Way Tucson, AZ 85713-5361 Patrick A. Clisham, Esq. Engelman Berger PC 3636 N Central Ave Ste 700 Phoenix, AZ 85012-1936 Copy sent electronically this same date to: Office of Administrative Hearings Suzanne Marwil, Administrative Law Judge Respondent at email address on record with the Registrar Complainant at email address on record with the Registrar Complainant’s counsel at email address on record with the Registrar

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 Received IN THE OFFICE OF ADMINISTRATIVE HEARINGS 12/11/2017 ROC Legal

Sssong Investments Corp., No. 2017A-4253-NPC-ROC No. 2017A-4254-NPC-ROC COMPLAINANT, No. 2017A-4255-NPC-ROC No. 2017A-4257-NPC-ROC v. No. 2017A-4258-NPC-ROC No. 2017A-4259-NPC-ROC Stertz Construction LLC, License No: 291858, Consolidated Administrative Law Judge RESPONDENT. 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 1. 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.1 2. 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). 3. 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).

Administrative notice is taken of Respondent’s license history on the Registrar’s website, which was reviewed at hearing.

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826 Received 12/11/2017 4. ROC Carol Murray, Complainant’s office manager, testified the total Legal 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. 5. 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 1. 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). 2. 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. 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). 4. 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.

Received 12/11/2017 5. The evidence established Respondent owed the invoicedROC Legal total of $66,651.50 to Complainant. 6. 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. 7. 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. 8. 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