FINACT2019A-02729-NPC-ROC-FinalAgencyAction-6583.pdf

2019A-02729-NPC-ROC · Registrar of Contractors · 2019-11-05

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Copper Creek Mechanical LLC, Case No. 2019-02729

COMPLAINANT, Docket No. 2019A-02729-NPC-ROC v.

Wm A Clark Construction Inc, FINAL ADMINISTRATIVE DECISION AND License No. ROC 080678, ORDER RESPONDENT.

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 of each finding of fact or conclusion of law. REGISTRAR’S ACCEPTANCE 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 accepts it. CONCLUSION AND ORDER Because the Registrar has accepted the administrative law judge’s decision, that decision is the final administrative decision in this case and becomes effective on December 8, 2019. FINAL NOTES On page 1, line 13, replace “May 7, 2019” with “May 23, 2019.”

Dated October 29, 2019. By: /s/ Joseph Citelli Joseph Citelli Chief Counsel Chief of Legal and Recovery Fund Arizona Registrar of Contractors

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St.– Ste. 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 Toll Free (877)692-9762 Lg131 8/19 Copy mailed via USPS First Class mail October 29, 2019 to: Respondent Wm A Clark Construction Inc 7550 E McDonald Dr Ste 11 Scottsdale, AZ 85250 Complainant Copper Creek Mechanical LLC 1471 S Ironwood Dr Gilbert, AZ 85296

Copy sent electronically this same date to:

Office of Administrative Hearings Kay A. Abramsohn, Administrative Law Judge Respondent at email address on record with the Registrar Complainant at email address on record with the Registrar

Case No. 2019-02729 / DE

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St.– Ste. 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 Toll Free (877)692-9762 Lg131 8/19 RECEIVED 10.15.2019 ROC LEGAL

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Copper Creek Mechanical LLC, No. 2019A-02729-NPC-ROC COMPLAINANT v. ADMINISTRATIVE LAW JUDGE Wm A Clark Construction Inc, DECISION ROC License: ROC 080678 RESPONDENT

HEARING: September 20, 2019 APPEARANCES: Chad Wold for Complainant Copper Creek Mechanical LLC. William A. Clark for Respondent WM A Clark Construction, Inc. ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn _____________________________________________________________________ FINDINGS OF FACT 1. On May 7, 2019, Complainant filed a Non-Payment Complainant Form against Respondent with the Arizona Registrar of Contractors (“Registrar”) alleging that Respondent had failed to pay Complainant on three invoices: #1330 for $1,753.00, #1507 for $739.50, and #1516 for $9,307.50, resulting in a total amount due of $11,800.00. Complainant attached the subject invoices.

2. On June 4, 2019, Complainant alerted the Registrar to a revised

complaint form, alleging a new “Principal Amount Due” of $3,442.50 on Invoice #1330

for $803.00, #1507 for $739.50, and #1516 for $1,900.00. On the attached invoice

#1330, Complainant noted that $950.00 payment had been applied, and on attached

invoice #1516, Complainant noted that $7,407.50 payment had been applied.

3. Respondent filed its response, indicating that it had cancelled checks

demonstrating payments, even overpayments, in regard to the alleged nonpayment of

the invoices.

4. There was some confusion as to the invoices, and on June 11, 2019, the

Registrar closed the complaint.

5. On July 2, 2019, Complainant apparently renewed the complaint by again

supplying the three subject invoices to the Registrar.

Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 RECEIVED 10.15.2019 ROC LEGAL

6. Respondent sent two responses to the Registrar, one on July 9, 2019 (copied/resent on July 12, 2019) and one on July 15, 2019. Respondent indicated that the “revisions” on the invoices continued to be wrong and unsupported, as Respondent

had cancelled checks to demonstrate payment in full. Respondent asked that a

hearing date be set. In its email dated July 15, 2019, Respondent detailed its accounts

as to the payments on the invoices.

7. On July 17, 2019, the Registrar issued a formal Citation charging

Respondent with a possible violation of A.R.S. § 32-1154(A)(10) for the alleged failure

by Respondent to pay monies in excess of $750.00 when due for materials or services

rendered in connection with Respondent’s operations as a contractor.

8. Respondent filed its answer on August 1, 2019.

9. The matter was referred to the Office of Administrative Hearings for an

evidentiary hearing.

10. The parties contracted with each other in connection with several

projects, having an ongoing relationship. There is no dispute that Respondent

performed construction work for Complainant.

11. At hearing, Complainant’s position was that there were invoice balances going back farther than the complained-of invoices, but also acknowledged that they had only listed three “unpaid” invoices on the complaint and that the others, older invoices, were beyond the two-year limitation period.1 According to Complainant, it had applied the current payments it had received on these at-issue invoices to older invoices (i.e., invoices not set forth on the complaint). 12. Respondent argued that it was not responsible for the manner in which Complainant applied the current payments to invoices in Complainant’s accounting system and argued, with documentary support, payment had been made to more than cover the invoices for the work performed. 13. Respondent’s documentation of cancelled checks and itemization of payments demonstrated that it has paid the amounts due on the at-issue invoices. CONCLUSIONS OF LAW RECEIVED 10.15.2019 ROC LEGAL

1. The Registrar of Contractors has jurisdiction over this matter pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.

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. Therefore, to

warrant such sanctions by the Registrar, a complainant must demonstrate by a

preponderance of the evidence that a respondent violated any one of the statutory

sections cited by the Registrar. Therefore, Complainant has the burden to demonstrate

a violation by Respondent of the contracting laws.

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. Emphasis added here.2 5. The evidence established that Complainant was paid on the at-issue invoices. Therefore, Complainant did not establish that Respondent violated A.R.S. § 32-1154(A)(10) regarding the three at-issue invoices and, further, grounds do not exist to impose discipline against Respondent’s license. RECOMMENDED ORDER

See A.R.S. § 32-1154(A), which provides for a two-year limitation period. A.R.S. § 32-1154(A)(10) has recently been amended; the quoted language herein is the statute in effect at the time of the alleged violation. RECEIVED 10.15.2019 ROC LEGAL

Based on the foregoing, it is recommended that the Registrar dismiss Complainant’s Complaint and close Case No. 2019-02729. 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

five (5) days from the date of the certification.

Done this day, October 10, 2019.

/s/ Kay A. Abramsohn Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors