ALJDEC decisions subject to certification as final

2021A-02806-CHC-ROC · Registrar of Contractors · 2022-04-13

-54864001

001

-137160-45720000 IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Gene Alan Elmblad,

COMPLAINANT,

Arcal Construction, LLC

License No. ROC 317916,

RESPONDENT.

No. 2021A-02806-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 24, 2022

APPEARANCES: Complainant Gene Alan Elmblad appeared on behalf of himself. Donald Martin Albers appeared on behalf of Arcal Construction, LLC.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

1. Respondent Arcal Construction, LLC (Arcal) holds license number 317916 issued by the Arizona Registrar of Contractors (ROC).

2. Donald Martin Albers is Arcal’s qualifying party.

3. On April 25, 2019, Complainant Gene Alan Elmblad hired Respondent Arcal Construction, LLC (Arcal) to repair the upper deck of his garage.

4. Arcal started work on June 14, 2019. Arcal stopped work in or around May of 2020.

5. On June 21, 2021, the ROC received a complaint from Mr. Elmblad alleging poor workmanship on the part of Arcal.

6. On September 21, 2021, ROC Investigator Robert McQuien conducted a job-site inspection.

7. On September 24, 2021, the ROC issued a Directive to Arcal. The Directive provided, in relevant 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 October 14, 2021.

RESTRICTIONS

• You may not perform or hire other contractors to perform work that is outside the scope of your license.

• If your license is currently suspended for administrative reasons1, or is inactive, expired, or cancelled, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the suspension of your license(s) has been lifted or your license(s) has been reactivated.

DIRECTIVE REQUIREMENTS

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

Compliance Item: 1 - After stuccoing was completed, numerous cracks appeared in the front and rear of the house. Repairs were made in May of 2021. The color didn’t match and now there are visible light colored lines on the front and rear of the house. Investigator’s Observation: Lines are highly visible where cracks were sealed. CONTRACTOR TAKE CORRECTIVE ACTION.

Governing Rule: Violation of any rule adopted by the Registrar;

Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 2 - After completing the repairs to the upper deck, water is still leaking into the garage.

Investigator’s Observation: Underside of roof deck has visible water penetration damage, visible from inside the garage. CONTRACTOR TAKE CORRECTIVE ACTION.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

8. On November 5, 2021, Investigator McQuien conducted a compliance job-site inspection. Investigator McQuein observed discoloration in the stucco work. However, Investigator McQuien did not observe any leaks.

9. On November 6, 2021, Mr. Elmblad plugged the drains and caused water to pile at the top of the deck. The upper deck leaked. Mr. Elmblad recorded the leak and sent the video by e-mail to Investigator McQuien.

10. After reviewing the video, Investigator McQuien recommended that the case be sent to legal for the issuance of a Citation against Arcal’s license.

11. On November 10, 2021, the ROC issued a Citation against Arcal’s

license for alleged violations of Arizona Revised Statutes (A.R.S.) § 32-1154(A)(3), (A)(22), and Arizona Administrative Code (A.A.C.) R4-9-108(a).

12. Arcal filed a timely answer to the Citation.

13. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.

14. A hearing was held on March 24, 2022.

15. At hearing, Mr. Elmblad testified on behalf of himself. Investigator McQuien testified regarding his investigation of the complaint. Mr. Albers testified on behalf of Arcal.

16. At hearing, Mr. Elmblad withdrew his complaint regarding the stucco.

17. Investigator McQuien testified to the effect that Arcal repaired

Mr. Elmblad’s roof within acceptable standards. Investigator McQuien explained that during his inspection, a rooftop patio was being installed across the street from

Mr. Elmblad’s home. The contractor used a roll on type of fabric material. Mr. Elmblad believed that his upper deck should have been repaired the same way. Investigator McQuien explained that he had no direct knowledge that Mr. Elmblad plugged his drains. See id.

18. Mr. Elmblad and Mr. Albers both testified that Mr. Elmblad plugged the drains in his home and caused water to pile on the roof deck. According to Mr. Albers, Mr. Elmblad told him that he caused 2 inches of water to pile up on the roof deck. At hearing, Mr. Elmblad asserted that he only allowed 1 and a 1⁄2 inches to pile up on the roof deck.

CONCLUSIONS OF LAW

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

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.

3. The Administrative Law Judge may consider ROC’s administrative record. See Ariz. Admin. Code § R4-9-118.

4. 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).

5. Construction is not a perfect art and, generally, homeowners are required to allow contractors access to attempt to complete and correct their work before the Registrar will suspend or revoke the contractor’s license.

6. The preponderance of the evidence shows that Respondent repaired the

upper deck in compliance with minimum workmanship standards. The preponderance of the evidence shows Mr. Elmblad caused a leak when he plugged the drains in his own home. This Tribunal concludes that the preponderance of the evidence of record is insufficient and fails to support a conclusion that Respondent violated the charged provisions of A.R.S. §§ 32-1154(A)(3), namely, A.A.C. R4-9-108, and A.R.S. 32-1154(A)(22).

RECOMMENDed order

In view of the foregoing, it is recommended that this matter be dismissed.

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 is forty days after the date of that certification.

Done this day, April 13, 2022.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

By Miranda Alvarez

Legal Secretary