ALJDEC decisions subject to certification as final

2019A-05450-NPC-ROC · Registrar of Contractors · 2020-02-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

OnCall Staffing and Skilled Trades,

COMPLAINANT

SDC Energy LLC,

ROC License: ROC 280177, 280176, 280178

RESPONDENT

No. 2019A-05450-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 24, 2020

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

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FINDINGS OF FACT

SDC Energy LLC (Respondent) is the holder of License Nos. 280177, 280176, and 280178 issued by the Registrar of Contractors (Registrar).

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.

The parties were unable to resolve their differences, and Complainant requested an administrative hearing. The Registrar then issued a Citation for Alleged Violation of A.R.S. § 32-1154(A)(10).

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.

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.

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.

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.

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.

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

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.

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).

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 or agent or official of a licensee to pay monies in 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.

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 correct 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.

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.

Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(10) by failing to pay Complainant $13,126.70 for services rendered in connection with Respondent’s contracting business.

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 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.

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.

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-137160-45720000Done this day, February 10, 2020.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

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-137160-45720000