FINACT2019A-05450-NPC-ROC-FinalAgencyAction-6814.pdf

2019A-05450-NPC-ROC · Registrar of Contractors · 2020-02-21

REGISTRAR OF CONTRACTORS OF T}IE STATE OF ARIZONA

Oncall Staffmg and Skilled Trades, CaseNo. 2019-05450 COMPLAINANT, Docket No. 2019A-05450-NPC-ROC

SDC Energy LLC, FINAL AD]VtrMSTRATT!'E License Nos. ROC 280177, 280176,280178 DECISION AND ORDER RESPONDENT. i0 Under A.R.S. $ 41-1092.08(8), the Registrar may review and accept, modify, or reject an administrative law judge's written decision. If the Registrar modifies or rejects that t2 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 t7 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 March 31, 2020. FTNAL NOTE On page 1, tines 27 and29, replace "Complainant" with "Respondent." Dated February 20, 2020. By: ls/ h itelli Josep citelli, Chief Counsel Chief of Legal and Recovery Fund

I of 2 REGISTR.AR OF CONTRACTORS 1700 W. Washi.ngron SL- Ste. 105 - Phoeoilq AZ E5007-2812 Telephole (602)542- I 525 T oll Frce (877 )692-91 62 Lglll3/19 I Copy mailed via USPS First Class mail Februarv 20- 2020 to:

a"rpooU"o, SDC Energy LLC PO Box 2748 Carefree, A285377

Complainant OnCall Staffing and Skilled Trades 4920 E McDowell Rd Ste. 103 Phoenix, AZ 85008

Copy sent electronically this same date to: l1 Oflice of Administrative Hearings Tammy Eigenheer, Administrative Law Judge Respondent at email address on record with the Registrar Corirplainant at email address on record wirh the Registrar l4 Case No. 2019-05450

of2 REGISTRAR OF CONTRACTORS 1700 W. WashingroD St.- Ste. 105 - Phoedrq M 85001-2812 TelephoDe (602)542-l 525 T oll F rc. (871)692-91 62 Lgl3l3/19 RECEIVED 2111120 LEGAL

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

OnCall Staffing and Skilled Trades, No. 201 9A-05450-NPC-ROC COMPLAINANT ADMINISTRATIVE LAW JUDGE SDC Energy LLC, DECISION ROC License: ROC 280177, 280176, 280178 RESPONDENT

HEARING: Janua ry 24,2O2O I APPEARANCES: George Sideris, Vice President, appeared on behalf of Complainant OnCall Staffing and Skilled Trades. Mark Nabity, Project Manager, appeared on behalf of Respondent SDC Energy LLC. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

FINDINGS OF FACT 1. SDC Energy LLC (Respondent) is the holder of License Nos. 280177, 280176, and 280178 issued by the Registrar of Contractors (Registrar). 2. On or about October 28, 2019, OnCall Staffing and Skilled Trades (Complainant) filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the sum of $13,126.70 for skilled laborers provided to Respondent. 3. The partles were unable to resolve their differences, and Complainant requested an administrative hearing. The Registrar then issued a Citalion for Alleged Violation of A.R.S. S 32-1154(AX10). 4. George Sideris, Complainant's Vice President, testified that, as of the date of the hearing, the total due to Complainant was $13,126.70. Mr. Sideris stated that Complainant's contract with customers explicitly states that the contractor has the care, custody, and control of the job site. Mr. Sideris also indicated that Complainant had a two-year history of slow or late payments, but that he was encouraged by a staff member to give Complainant another chance. RECEIVEO 211t20 LEGAL

5. Megan Kennedy, Complainant's Operations Manager, testified that Respondent never raised any workmanship issues with the workers provided by Complainant until Complainant pursued collections efforts. Ms. Kennedy also stated that Complainant has a guarantee provision in its contracts and that Complainant never exercised that option. Ms. Kennedy indicated that Respondent stopped responding to her communication efforts when she informed Respondent that Complainant would have to take things to the next level. 6. Joseph Dumas, Respondent's Field Supervisor, testified that Respondent was required to spend three months doing corrective work on one of the four projects after the worker from Complainant failed to perform his work properly. Mr. Dumas asserted that Respondent was unable to check the work until the power was turned on, so he did not know that all of the work done the worker provided by Complainant on the "ballroom project" had to be redone. 7. Aleksander Lipowicz, Respondent's Lead Foreman, testified that a supervisor cannot watch electricians all the time and cannot check all their work. Mr. Lipowicz stated that he observed one of the electricians from Complainant made some errors and "called him out on them" and then continued to use the same electrician. 8. Mark Nabity, Respondent's Project Manager, testified that the level of electrician purportedly provided by Complainant should be able to do the work required without being "babysat." Mr. Nabity stated that, despite the unqualified workers they had gotten from Complainant, Respondent kept getting workers from Complainant because there were no electricians available in the valley. Mr. Nabity also asserted that after the electricians from Complainant performed poor work, Respondent would have to pay a different electrician to take three times as long to fix the work. 9. Respondent intimated that because it had to pay "four times" for the same work, it did not have funds available to pay the amount due to Complainant. Respondent also noted that on at least one of the projects, it had not been paid in full. CONCLUSIONS OF LAW

2 RECEIVED 2t11t20 LEGAL

1. 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. R2-19-1 '19.

2. A preponderance of the evidence is "such proof as convinces the trier of fact that the contention is more probably true than not." MoRRls K. UDALL, ARzoNA LAW oFEvrDENcES5(1960).

3. A.R.S. S 32-1154(AX10) includes among the grounds for suspension, revocation, or other dlsciplinary action against a contractor's license, [flailure by a licensee or agent or official of a licensee to pay monies in I excess of $750 when due for materials or services rendered in connection with the licensee's operations as a contractor unless the licensee proves that the licensee lacks the capacity to pay and has not received sufficient monies as payment for the particular construction work project or operation for which the services or materials were rendered or purchased.

4. Respondent did not make any complaints regarding the quality of the workers provided until demands for payment were escalated. Further, Respondent's assertion that it was forced to accept substandard electricians because there were no electricians available in the valley, but then it would take a different electrician three times as long to conect the work done were not credible. Therefore, the evidence established that Respondent owed Complainant a total of $ 13,126.70 for skilled laborers provided to Respondent. 5. Respondent failed to establish by a preponderance of the evidence that it lacked the ability to pay Complainant for the skilled laborers supplied or had not received sufficient monies as payment for the four construction projects at issue to pay Complainant. 6. Therefore, Complainant established that Respondent violated A.R.S. S 32- 1 154(A)(10) by failing to pay Complainant $13,126.70 for services rendered in connection

with Respondent's contracting business. 7. Based upon Respondent's violation of the provisions of A.R.S. $ 32- 1 154(A)(10), grounds exist to impose discipline against Respondent's license RECOMMENDED ORDER

RECEIVED 211n0 LEGAL

Based on the foregoing, it is recommended that the Registrar suspend Complainant's License No: 280177, 280176, and 280178 issued by the Registrar until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $13,126.70 in certified funds. It is further recommended that when and if the Registrar receives and accepts Respondent's evidence that it has paid Complainant $13,126.70 in certified funds, the Registrar may close the Complaint in Case No. 2019-05450. ln the event of ceftification of this Administrative Law Judge Decision by the Director of the Office of Administrative Heaings, the effective date of the Order will be 40 s days from the date of the ceftification. Done this day, February 10,2O2O.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to: 't6 Jeffrey Fleetham, Director Registrar of Contractors '18