ALJDEC decisions subject to certification as final

20F-P19-013-BTR-RES · Board of Technical Registration · 2020-10-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of:

GERALD CLARK,

Architect

Registration No. 32055;

And

CLARK ARCHITECTS, INC.,

Unregistered Firm;

Respondents.

No. 20F-P19-013-BTR-RES

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 31, 2020, and October 1, 2020

APPEARANCES: Thar Arizona State Board of Technical Registration was represented by Assistant Attorney General Scott Donald. Respondents did not appear.

ADMINISTRATIVE LAW JUDGE: Jenna Clark and Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Gerald Clark (Respondent) held Professional Architect Registration No. 32055 issued by the Arizona State Board of Technical Registration (Board). Respondent held this registration at all times relevant to this matter.

Clark Architects, Inc. (Respondent Firm) previously held Professional Architectural Firm Registration No. 18420, which expired on May 4, 2016. At no time relevant to the instant matter was Respondent Firm registered with the Board.

At all times relevant to this matter, Respondent was the sole shareholder, officer, director, president, and statutory agent for Respondent Firm.

On or around October 13, 2016, Respondent, through Respondent Firm, entered into a contract with a client (Client) regarding “Reconstruction and Development of Royal Property” (Contract). The Contract was executed on or about February 7, 2017.

On or about February 15, 2017, Client paid Respondent Firm pursuant to the Contract for, in part, design development, construction documents, structural engineering, electrical engineering, and fire protection.

On or about March 22, 2018, Respondent, through Respondent Firm, contracted with Jedidiah Noble, registered Professional Engineer, Civil No. 49118, through Civil Works Engineering, LLC (Civil Works) for civil engineering services related to the Contract for a main fire line and erosion control plan for a total payment of $3000.00 (CW Contract).

On or about March 13, 2018, Civil Works invoiced Respondent for a retainer in the amount of $1500.00. No payment was received.

On or about April 3, 2018, Civil Works invoiced Respondent for the balance of owed fees. No payment was received.

Between April 23, 2018, and August 27, 2018, Mr. Noble emailed Respondent at least five times inquiring about the status of the unpaid invoices.

On or about September 5, 2018, the Board received a complaint from Mr. Noble regarding Respondent and Respondent Firm’s failure to pay for professional services as due.

Board staff contacted Respondent and, on or about October 24, 2018, staff received a letter from Respondent addressing the allegations raised in the complaint. In his letter, Respondent confirmed that Respondent Firm received the February 15, 2017 payment from Client. Respondent indicated he wrote a check in July 2018 to pay $1500.00 to Mr. Noble, but “it did not get mailed immediately and unfortunately our firm went through a serious account theft/forgery/counterfeit situation.” The check was written on a National Bank of Arizona account for Respondent Firm and signed by Respondent as “authorized signature.”

The investigation materials were provided to a Registered Architect acting as an Enforcement Advisory Committee member for the Board to review for evaluation; and on November 30, 2018, she submitted a report (Report) to the Board finding evidence that Respondent failed to timely pay a collaborating professional as required under Arizona statute.

On or about March 26, 2019, the Board considered the investigation materials, including the Report, and voted to offer Respondent and Respondent Firm a consent agreement for provision of professional services through an unregistered firm with the matter to proceed to a hearing if no consent was entered within 30 days.

Respondent and Respondent Firm did not enter such consent.

Neither Respondent nor Respondent Firm appeared at the hearing. At the time of the hearing, counsel for the Board represented that he had knowledge that Respondent was aware of the date and time of the hearing.

CONCLUSIONS OF LAW

The Board is the duly constituted authority for the regulation and control of the practices of architecture, including the unregistered practice.

A.R.S. § 32-121 provides, in pertinent part, as follows:

Except as otherwise provided in this section, a person or firm desiring to practice any board-regulated profession or occupation shall first secure a certificate or registration and shall comply with all the conditions prescribed in this chapter.

A.R.S. § 32-141(A) provides, in pertinent part, as follows:

A firm shall not engage in the practice of any board-regulated profession or occupation unless the firm is registered with the board and the professional services are conducted under the full authority and responsible charge of a principal of the firm, who is also a registrant.

A.R.S. § 32-106.02(A) provides, in pertinent part, as follows:

A. The board may initiate a hearing pursuant to title 41, chapter 6, article 10 on receipt of a complaint that a person who is not exempt from this chapter and is not registered or certified under this chapter is practicing, offering to practice or by implication purporting to be qualified to practice any board regulated profession or occupation. The board shall give notice of the hearing by mailing a copy of the complaint to the person’s last known address by certified mail return receipt requested.

B. If after the hearing the board determines that based on the evidence the person committed a violation under section 32-145, it, in addition to any other sanction, action or remedy, shall issue an order that imposes a civil penalty of no more than two thousand dollars per violation.

A.R.S. § 32-145 provides, in pertinent part, as follows:

Any person who commits any of the following acts is guilty of a class 2 misdemeanor:

1. Practices, offers to practice or by any implication holds himself out as qualified to practice any board regulated profession or occupation if the person is not registered or certified as provided by this chapter.

A.R.S. § 32-101(B)(7) defines “architectural practice,” in pertinent part, as follows:

any professional service or creative work requiring architectural education, training and experience, and the application of the mathematical and physical sciences and the principles of architecture and architectural engineering to such professional services or creative work as consultation, evaluation, design and review of construction for conformance with contract documents and design, in connection with any building, planning or site development. A person shall be deemed to practice or offer to practice architecture who in any manner represents that the person is an architect or is able to perform any architectural service or other services recognized by educational authorities as architecture.

A.R.S. § 32-101(B)(27) provides “person,” in pertinent part, as “any individual, firm, partnership, corporation, association or other organization.”

A.R.S. § 32-128(C) provides, in pertinent part, as follows:

C. The board may take disciplinary action against the holder of a certificate or registration under this chapter who is charged with the commission of any of the following acts:

. . . .

4. Violation of this chapter or board rules.

5. Failing to pay a collaborating registered professional within seven calendar days after the registrant receives payment from a client unless specified otherwise contractually between the prime professional and the collaborating registered professional. For the purposes of this paragraph, "collaborating registered professional" means a registered professional with whom the prime professional has a contract to perform professional services.

A.A.C. R4-30-301(4) provides, in pertinent part, as follows:

A registrant shall comply with state, municipal, and county laws, codes, ordinances, and regulations pertaining to the registrant’s area of practice.

Respondent Firm

The conduct and circumstances in the Findings of Fact above constitute a violation by Respondent Firm of A.R.S. § 32-106.02 through A.R.S. § 32-121 with respect to the Contract.

The conduct and circumstances in the Findings of Fact above constitute a violation by Respondent Firm of A.R.S. § 32-106.02 through A.R.S. § 32-121 with respect to the CW Contract.

Respondent

The conduct and circumstances in the Findings of Fact above constitute violations by Respondent of A.R.S. § 32-128(C)(4) and (5) and A.A.C. R4-30-301(4) with respect to the Contract.

The conduct and circumstances in the Findings of Fact above constitute violations by Respondent of A.R.S. § 32-128(C)(4) and (5) and A.A.C. R4-30-301(4) with respect to the CW Contract.

The Board is authorized to impose a civil penalty of no more than $2000.00 per violation.

Given that Respondent Firm continued to act as a professional firm with an expired license, the Administrative Law Judge finds that a civil penalty of $2000.00 is appropriate.

Given that Respondent failed to pay a collaborating registered professional within seven calendar days after receiving payment from the Client, the Administrative Law Judge finds that revocation of Respondent’s license is appropriate.

RECOMMENDED ORDER

IT IS ORDERED that the Board revoke Respondent’s Professional Architect Registration No. 32055 issued by the Board and require Respondent to pay the costs and fees incurred by the Board during the investigation and prosecution of this matter.

IT IS FURTHER ORDERED that the Board require Respondent Firm to pay the sum of $2000.00 as a civil penalty pursuant to A.R.S. § 32-106.02(B).

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 five days from the date of that certification.

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-137160-45720000Done this day, October 20, 2020.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Melissa Cornelius, Executive Director

Board of Technical Registration

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-137160-45720000