Tag Archives: D. Kim Lough

SMACNA Arizona

Op-Ed: New ROC regulatory philosophy triggers need for self-audits

D. Kim Lough is a partner with the law firm of Jennings, Haug & Cunningham. He represents the construction industry, including owners, contractors and subcontractors in complex construction litigation, employment discrimination and other civil and administrative law. He can be contacted at: DKL@JHC-Law.com.

D. Kim Lough is a partner with the law firm of Jennings, Haug & Cunningham. He represents the construction industry, including owners, contractors and subcontractors in complex construction litigation, employment discrimination and other civil and administrative law. He can be contacted at: DKL@JHC-Law.com.

By D. Kim Lough, construction lawyer with Jennings, Haug & Cunningham

Contractors throughout Arizona are being blindsided by a new administrative oversight role undertaken by the Registrar of Contractors (ROC). The Registrar’s new prosecutorial philosophy toward investigating complaints against licensed contractors places contractors at risk of losing their license for minimal technical violations which may occur even when the contractor is unaware an issue exists. This sea-change warrants a self-audit of your business practices.

License Display Requirements
Contractors should make sure that their license number is prominently displayed as required by A.R.S. §32-1124(B):
•    Posted in a conspicuous place on premises where work is being performed;
•    Placed on written bids submitted by the company;
•    Placed on all broadcasts, publications, internet and billboard advertisings;
•    Displayed on letterhead and other documents used to correspond with customers or potential customers.

License number display requires it be preceded with “ROC,” and posting be visible in the following:
•    Any and all job sites
•    Every page of the company web site
•    Included in all email signature blocks sent by the company
•    Displayed on all contracts, invoices and company correspondence
Failure to display your license number in compliance with this statute is ground for disciplinary action, including license suspension.

Written Contract Form Requirements
Contract agreements with property owners must include the following minimum requirements of A.R.S. §32-1158(B):
•    Contractor name, business address and license number;
•    Property owner’s name and mailing address, and the job site address or legal description;
•    Date parties entered into contract;
•    Estimated date of completion of all work to be performed under the contract;
•    Description of work to be performed under the contract;
•    Total dollar amount to be paid to the contractor by the owner for all work under the contract, including all applicable taxes (the total dollar amount may be changed by change order executed in accordance with the contract);
•    Dollar amount of any progress payment and the stage of construction at which the contractor will be entitled to collect progress payments during the course of construction under the contract (incorporation of prompt pay statutes);
•    Upon signing the contract, the owner “shall be provided a legible copy of all documents signed and written and signed receipt” for any amount paid to the contractor;
•    The following legend must be prominently displayed in the written contract in at least a 10-point bold type:

“The owner has the right to file a written complaint with the Registrar for an alleged violation of §32-1154, Subsection A. Complaints may be filed with the Arizona Registrar of Contractors at 1700 West Washington Street, Suite 105, Phoenix, Arizona 85007-2812 (602)542-1525 (www.azroc.gov). Complaints, if any, must be filed not more than two years following substantial completion of the work.”

The statutes do not distinguish between commercial and residential construction with regard to the minimum elements of the contract. Therefore, a technical violation may exist if any of the above information is not included, even when dealing with a sophisticated owner.

The ROC also appears to be looking more closely into what a contractor does when its license is temporarily suspended. This can happen if there is a failure to timely renew a license bond. For example, the ROC has revoked a contractor’s license for performing work during a temporary administrative suspension of its license for lack of a bond.

Being diligent in ensuring your business practices comply with these statutes is more critical than ever. If there is a temporary lapse in your license, you will best avoid action by the ROC by refraining from bidding work, executing contracts or performing work until the suspension is lifted. Be sure to check with the ROC web site and your surety to ensure your mailing address is correct for sending renewal notices, and mark these renewal dates on your calendar.

A self-audit of these items is highly recommended. Legal counsel review of contract forms will best ensure compliance with the new statute.

Lisa Borowsky, partner, Davis Miles McGuire Gardner, PLLC

2013 Top Lawyers list: Construction litigation

Az Business magazine’s 2013 top lawyer list was created after the editorial department asked Arizona law firms to nominate their two best attorneys from 16 different categories for consideration. Those nominees were put on a ballot and were voted on by their peers in the legal community and the readers of Az Business magazine to determine the exclusive 2013 Az Business Magazine Top Lawyers list.

Lisa Borowsky
Davis Miles McGuire Gardner, PLLC
480-733-6800
www.davismiles.com
The former Scottsdale City Council member’s areas of expertise include HOA, complex civil litigation, real estate, and general business law.

John Condrey
Gordon & Rees LLP
602-794-2460
www.gordonrees.com
For more than 20 years, Condrey has representwd general contractors, architects, engineers, developers and owners in matters including negligence claims, default terminations, delay and disruption claims, project development, land use, and other types of construction disputes.

Andy Kvesic
Ryley Carlock & Applewhite
602-440-4854
www.rcalaw.com
Kvesic represents clients in the construction industry litigating construction defect claims and mechanics’ liens rights.  Super Lawyers magazine recently recognized him as a 2012 Southwest Rising Star.

D. Kim Lough
Jennings, Haug & Cunningham, LLP
602-234-7824
www.jhc-law.com
Lough devotes a substantial majority of his practice to litigation. He has extensive trial experience in complex construction, employment discrimination and other civil and administrative cases.

Matthew B. Meaker
Sacks Tierney P.A.
480-425-2620
www.sackstierney.com
Meaker has been a business litigator since 2003, with his practice emphasizing providing legal advice to clients on all facets of commercial law and development issues.

William Nebeker
Koeller, Nebeker, Carlson & Haluck, LLP
602-256-0000
www.knchlaw.com
Nebeker practices in the area of insurance litigation defense with an emphasis on personal injury and construction defect litigation.

Kevin P. Nelson
Tiffany & Bosco, P.A.
602-255-6028
www.tblaw.com
Nelson practices extensively in all areas of risk management related to the construction, real estate and mortgage industries.

Kevin E. O’Malley
Gallagher & Kennedy, P.A.
602-530-8430
www.gknet.com
O’Malley is head of the firm’s litigation department.  His practice covers a variety of civil litigation areas.

William J. Simon
Tiffany & Bosco, P.A.
602-255-6004
www.tblaw.com
Simon concentrates in construction related issues, both transactional and litigation. He also practices in insurance and commercial litigation and governmental administrative matters.

David C. Tierney
Sacks Tierney P.A.
480-425-2620
www.sackstierney.com
From 2003-2013, Tierney has been named to The Best Lawyers in America for arbitration, commercial litigation, construction litigation, mediation, and real estate litigation.

Denise J. Wachholz
Renaud Cook Drury Mesaros, PA
602-256-3073
www.rcdmlaw.com
Wachholz is her firm’s chair for the Construction Litigation Practice Group, which focuses on proceedings involving architects, engineers, and other design professionals; contractors, subcontractors, and project managers; and material and equipment suppliers.

Mark Worischeck
Sanders & Parks, P.C.
602-532-5795
www.sandersandparks.com
Worischeck’s practice emphasizes complex civil litigation, primarily in the areas of insurance coverage and insurance bad faith, aviation, construction litigation, directors and officers’ liability, professional liability defense and products liability.

legal

Jennings, Haug & Cunningham attorneys earn honors

Eight attorneys from Jennings, Haug & Cunningham were named to The Best Lawyers in America 2013 list, a peer-review ranking publication for the legal profession, in the areas of Construction Law, Construction Litigation, Environmental Law, Personal Injury Defense, Arbitration, and Mediation.  In addition, the firm was again recognized with top honors, being named a 2013 Best Law Firm in America by the same survey.

The firm’s Best Lawyers in America include:

* Mark E. Barker was recognized for the fifth consecutive year for his work in construction law, and construction litigation.

* James Csontos was recognized for the third consecutive year for his practice in construction law, and construction litigation.

* Jack Cunningham was recognized for the first time this year, for his work as defense counsel in personal injury litigation.

* Karen Gaylord was named to the list for the fifth consecutive year for her work in environmental law.

* William F. Haug, was recognized for the sixth consecutive year for his practice in construction law, construction litigation, mediation and arbitration.

* D. Kim Lough was recognized for the sixth consecutive year in construction law, and construction litigation.

* Edward Rubacha was recognized for the second consecutive for his work in construction law, and construction litigation.

* Chad Schexnayder was named to the list for the third consecutive year in construction litigation.

Best Lawyers compiles its lists of outstanding attorneys by conducting exhaustive peer-review surveys in which thousands of leading lawyers confidentially evaluate their professional peers. The current, 18th edition of The Best Lawyers in America (2012) is based on more than 3.9 million detailed evaluations of lawyers by other lawyers.