ALJDEC - Licensing

2023A-14498-CHC-ROC · Registrar of Contractors · 2024-06-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

David R. Woker,

COMPLAINANT

Alsi Construction and Development LLC

License No. ROC 345924,

RESPONDENT

No. 2023A-14498-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 29, 2024

APPEARANCES: Complainant David R. Woker appeared via Google Meet on his own behalf. Rigoberto Sierra Jr. appeared via Google Meet on behalf of Respondent Alsi Construction and Development LLC. Registrar of Contractors Investigator Mark Nipp appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

EXHIBITS ADMITTED INTO EVIDENCE: Complainant’s Exhibits 1-2 were admitted into evidence.

_____________________________________________________________________

FINDINGS OF FACT

Alsi Construction and Development LLC, (Respondent) is the holder of License No. 345924 issued by the Arizona Registrar of Contractors (Registrar).

On or about October 24, 2023, David Woker (Complainant) agreed to have Respondent construct an office in his RV garage at his home in Mesa, Arizona. The contracted amount was $19,431.00, and Complainant paid $13,601.70 as a down payment, with the remaining balance to be paid once the railing was installed.

On or about December 21, 2023, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to project.

The Registrar assigned the complaint to Investigator Mark Nipp. The jobsite inspection was performed on February 6, 2024.

Investigator Nipp then issued a Written Directive on or about February 8, 2024, which provided in pertinent part as follows:

After investigation, the Registrar determined that you failed to meet the requirements of A.R.S. § 32-1154(A), and now issues this Directive requiring you to take appropriate corrective action. Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a citation, discipline of your license, and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on Monday, February 26, 2024.

. . .

DIRECTIVE REQUIREMENTS

You are directed to remedy the following violations by the appropriate means:

Compliance Item #1: Abandonment – Contract was signed October 25 with oral commitment that work would be completed 3 days after starting. Work started on October 30. They again worked November 3rd. They texted they would be back to finish Nov 8th. No one showed up. They then texted they would be back Nov 14th and again no one showed up. No response to calls or texts until Nov 28 when they said they were waiting for special track saw to complete the steps and beams and they were waiting for the railing to come in from City Post. I called City Post and they have never heard of Alsi construction or Rigoberto Sierra. On Nov 28th I texted listing the 4 major things that still needed to be accomplished. On Dec 6th Rigo texted me and said, "I will be totally honest with you we spent more money than projected and are working to earn money to finish the project. Dec 11 I texted them to ask when they would finish the project. Again no response. Work area is a mess and no clean up as stated in the contract.

Investigator’s Observation: Verified

The Complainant explained the project was the addition of an upstairs office inside an RV garage, allowing for vehicle storage underneath the office. The entire office structure was added to include load bearing posts, stairs, and the addition of electrical circuits.

I saw the project was incomplete with only rough framing and ceiling drywall completed. The Respondent began working on this project in October 2023, over 3 months ago.

I saw there were contactor tools and unused materials in the area. I noted that the Complainant’s personal belongings were still covered in plastic. I saw construction debris throughout the work area. It appears the Respondent has not worked diligently to complete this project and has abandoned it.

Additionally, the Complainant said he did not think the Respondent obtained a building permit for this project.

I conducted a records search with the City of Mesa and did not locate a building permit for this project (see 20240206_Mesa E-Permit Online Portal-Permit Search_2023-14498).

International Residential Code (IRC), Section 105.1 requires an owner or their agent, who intends to construct, enlarge, alter, repair, move, demolish, or change the occupancy of a building or structure, to obtain a building permit prior to beginning construction. International Residential Code (IRC), Section 105.2 lists specific types of construction projects that do not require a building permit. I reviewed International Residential Code (IRC), Section 105.2 and did not locate an exempted construction project matching the description of this project scope.

The respondent should correct by appropriate means, pursuant to the contract, applicable building codes, and within the scope of their license.

Reference Picture(s) 2-3

Governing Rule: A.R.S. § 32-1154(A)(1) Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.

Governing Rule: A.R.S. § 32-1154(A)(3); Violation of any rule adopted by the registrar; Namely R4-9-108(B); in part, A contractor shall perform all work in accordance with any applicable building codes and professional industry standards...a contractor shall use such skills, prudence, and diligence in performing and completing tasks...

Governing Rule: A.R.S. § 32-1154 (A)(2)(b): Departure from or disregard of: (b) A building code; Namely International Residential Code (IRC), Section 105.1.

Compliance Item #2: Poor Workmanship - Ceiling was to be textured to match existing walls. Spray on texture was used instead. Poor tape job on the sheetrock with tape showing under the spray on texture.

Investigator’s Observation: Verified

I saw there were multiple visible seam lines in the dry walled ceiling. The seam lines were visible from a normal standing position without the aid of an additional light source.

ROC Workmanship Standards for Licensed Contractors (June 2009) states, Visible seam lines are not acceptable. Contractor should repair nail pops, seam lines and other hairline cracks one time within first year of occupancy.

The respondent should correct by appropriate means, pursuant to the contract, applicable building codes, and within the scope of their license.

Reference Picture(s) 4-10

Governing Rule: A.R.S. § 32-1154(A)(3); Violation of any rule adopted by the registrar; Namely R 4-9-108(a): A contractor shall perform work in a professional and workmanlike manner.

Compliance Item #3: (a) Laminated board used to make stair tread and risers not cut straight leaving gaps in the step. (b) Cuts for outside perimeter of the sheetrock jagged. (c) Stringer for stairs have nails protruding and hammer marks on the outside. (d) Beams not covered with laminated plywood as they stated they would as they are waiting for "special track saw" to cut it. (e) Edge of plywood floor of mezzanine protrudes over the edge.

Investigator’s Observation: Verified

(a). I saw there were curved/out-of-square cuts visible on stair treads with multiple gaps and overlaps (P11-15, 56-59).

(b). I saw the edge of the ceiling structure had not been finished and the drywall was jagged and rough (P25-27).

(c). I saw there were hammer marks on the stair stringer. The staircase is meant to be left with rough framing and either painted/stained. There are no finish materials to be installed over the rough framing (P28-30).

(d). The Complainant explained he meant wood posts instead of beams. I saw there were nine (9) 4x4 posts that had not been covered with laminated plywood (P31-34). I reviewed the contract and noted line 3 under scope of work stated, “Provide and install 9 4x4 posts with covers (Column’s).

(e). I saw the plywood decking (floor of upper level office) extended beyond the framing. I also noted the plywood decking was not square with the framing. I saw nails that did not go into framing. (P35-41).

(f). I saw that the stairs did not appear to be properly attached to the structure (P16-18, 22-24). Although this item is not specifically listed in the Complainant’s allegations, this item represents a significant safety issue and is directly related to the Complainant’s listed concerns. In fact, it is such a safety concern, I refused to use the stairs and opted to utilize the Complainant’s ladder to access the upper level and advised the Complainant to do the same. After more careful inspection I noted the following:

(1). The Simpson H2.5 Hurricane Clips are mounted sideways and being used as joist hangers (to attach the stringers to the joists) (P16). The Simpson H2.5 is designed for the truss/top plate or a stud/top plate connection, as shown below. It is not designed to be mounted horizontally as seen in JSI Photo #16 (Images below taken directly from Simpson’s website, strongtie.com). . . .

(2). There are no appropriate hangers of any kind on the stair stringers (P16-18, 22-24).

(3). The Stringers are essentially attached with screws into the end grain of the stringers (P16-18, 22-24).

The respondent should correct by appropriate means, pursuant to the contract, applicable building codes, and within the scope of their license.

Reference Picture(s) 11-24, 56-59

Governing Rule: A.R.S. § 32-1154(A)(3); Violation of any rule adopted by the registrar; Namely R 4-9-108(a): A contractor shall perform work in a professional and workmanlike manner.

Governing Rule: A.R.S. § 32-1154 (A)(2)(b): Departure from or disregard of: (b) A building code. Namely International Residential

Code (IRC), Section 105.1.

Compliance Item #5: 3 of the 6 can lights not installed.

Investigator’s Observation: Verified

I saw there were three can lights installed and three additional holes for can lights that did not have lights installed. I reviewed the contract and this was included work.

The respondent should correct by appropriate means, pursuant to the contract, applicable building codes, and within the scope of their license.

Reference Picture(s) 45

Governing Rule: A.R.S. § 32-1154(A)(1) Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.

Compliance Item #6: Northeast section of the ceiling is unlevel and varies by 1 inch in a 1 foot length. (Combined with Compliance Item #8 - Floor is uneven and varies by 1⁄4 to 5/8 inch in 1 foot length multiple times.). (Combined with Compliance Item #9 - Floor has multiple nails protruding 1⁄4 inch or more above floor height.).

Investigator’s Observation: Verified

The Complainant explained that the upper level floor would be finished in a laminate flooring.

I used the Complainant’s six foot level and noted that the floor (ceiling) is not level.

I could not verify the Complainant’s assertion that the floor was out-of-level one inch in one foot because the plywood decking was so uneven that an accurate measurement would not have been possible.

I saw multiple areas where the height of adjacent plywood decking was different by more than 1/16 inch. This condition is pervasive throughout the project.

ROC Workmanship Standards for Licensed Contractors (June 2009) states, Unevenness of floor should not exceed 3/16" in 48". Floors should be level within 1/2" in any 12'.

I saw multiple nails that had not been fully driven home and protruded from the plywood decking by as much as 1⁄2 inch. This condition is pervasive throughout the project.

After inspecting the condition of the upper level sub-floor, I noted that installation of a laminate flooring over it would not be possible.

The respondent should correct by appropriate means, pursuant to the contract, applicable building codes, and within the scope of their license.

Reference Picture(s) 48-55

Governing Rule: A.R.S. § 32-1154(A)(3); Violation of any rule adopted by the registrar; Namely R 4-9-108(a): A contractor shall perform work in a professional and workmanlike manner.

Compliance Item #7: Sheetrock around 4x4 support posts is broken and/or chipped.

Investigator’s Observation: Verified

I saw that the drywall at the top of the 4x4 posts (lower level) was cracked and poorly finished. I noted the cracked area appeared to be loose. I saw excessive lumps and irregular/inconsistent texture.

ROC Workmanship Standards for Licensed Contractors (June 2009) states, loose panels (sections) and cracks are not acceptable.

The respondent should correct by appropriate means, pursuant to the contract, applicable building codes, and within the scope of their license.

Reference Picture(s) 46-47

Governing Rule: A.R.S. § 32-1154(A)(3); Violation of any rule adopted by the registrar; Namely R 4-9-108(a): A contractor shall perform work in a professional and workmanlike manner...

(All errors contained in the original)

On March 12, 2024, Investigator Nipp conducted a Compliance Jobsite Inspection. Investigator Nipp noted the following in pertinent part:

Compliance Jobsite General Notes:

The Respondent was not present at the Compliance Jobsite Inspection.

Compliance Findings:

The project was unchanged and no corrective work had been completed. Please see CJSI Pictures 2-6...

On March 21, 2024, the Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(1); A.R.S. § 32-1154(A)(2)(b); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a) and (b); and A.R.S. § 32-1154(A)(22).

On or about April 4, 2024, Respondent submitted an Answer to the Registrar.

On or about April 18, 2024, a Notice of Hearing was issued setting a hearing on May 29, 2024, at the Office of Administrative Hearings, an independent state agency.

At hearing, Investigator Nipp testified as to the Registrar’s involvement and the above timeline and findings from his inspections.

Investigator Nipp testified that he left a voicemail message for Respondent on March 11, 2024 to follow up on the corrective work, however he never received a return call.

Complainant testified on his own behalf and confirmed that to date, no corrective work had been performed, nor had the project been finished.

Further, Complainant testified that he had zero contact with Mr. Sierra once he had left the project. Complainant also testified that he hired a structural engineer who stated that the structure as currently built was not capable of supporting loads.

Mr. Sierra testified that he ran out of money to complete the project and lost some workers as well. Further, he testified that there were no other ongoing projects to provide Respondent with extra money to finish the project. Mr. Sierra testified that Complainant did not want a permit, but that he should have known better.

In addition, Mr. Sierra testified that he tried to reach a financial settlement with Complainant, however, the parties were unable to agree as to a proper amount.

Finally, Mr. Sierra testified that he committed a lot of mistakes, but did not want his license revoked because he would not be able to provide for his family.

Administrative notice was taken of Respondent’s prior License record on June 13, 2024. Such prior License record reflected that Respondent’s License No. 345924 was first issued on June 28, 2023, and reflected that there were two open cases, one of which was the present case.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazzano v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “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).

The preponderance of the evidence demonstrated that Respondent simply walked off of the job without completing the same despite being paid a significant amount of the contract price. Therefore, Complainant established that Respondent did not abandoned the project in violation of A.R.S. § 32-1154(A)(1).

The preponderance of the evidence demonstrative that Respondent’s work was contrary to the International Building Code for the failure to obtain a permit, as well as the incorrect installation of the Hurricane Clips. Therefore, Complainant established that was in violation of A.R.S. § 32-1154(A)(2)(b).

The preponderance of the evidence established that Respondent’s work which was completed, was not in conformity with the Registrar’s standards. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A).

The preponderance of the evidence demonstrated that Respondent did not obtain a permit for the project, and thus, Complainant established that Respondent was in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(B).

The evidence established Respondent failed to complete the corrective work following the Directive being issued. Both Investigator Nipp and Complainant testified that no corrective work had been completed, and Mr. Sierra did not dispute the same. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License No. 345924 for a period of five days.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 32-1154(E).

It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(7), unless Respondent tenders payment of any outstanding prior civil penalty.

Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision by the Office of Administrative Hearings.

. . .

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 forty (40) days from the date of that certification.

Done this day, June 13, 2024.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Tom Cole, Director

Registrar of Contractors

David R Woker

[email redacted]

Alsi Construction and Development LLC

[email redacted]

By: OAH Staff