ALJDEC - Licensing

2023A-03828-CHC-ROC · Registrar of Contractors · 2023-10-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Gregory Capelo ,

COMPLAINANT

v.

Bjelde Construction LLC

License No. ROC 260364,

RESPONDENT

No. 2023A-03828-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 22, 2023

APPEARANCES: Gary Smith, Esq., represented Complainant Gregory Capelo. Robert Porter, Esq., represented Bjelde Construction LLC.

ADMINISTRATIVE LAW JUDGE: Brian Del Vecchio

FINDINGS OF FACT

Bjelde Construction LLC (Respondent) is the holder of License No. 260364 issued by the Arizona Registrar of Contractors (Registrar).

On or about March 4, 2022, Gregory Capelo (Complainant) entered into a contract with Respondent for, among other things, a kitchen remodel, demolition of a bar, and installation of a pantry.

Sometime in October of 2022 Respondent’s crew began work on Complainant’s kitchen.

On February 8, 2023, granite was installed per the terms of the contract.

On or about February 10, 2023, pantry shelving work began.

On or about February 23, 2023, Complainant requested work be halted and a meeting needed to be held.

On March 1, 2023, Respondent’s production manager met with Complainant to discuss the issues associated with the project.

On March 7, 2023, Complainant’s counsel sent Respondent a Notice of Claim – Notice to Preserve – Settlement Proposal letter. Complainant offered to settle the matter by seeking termination of the contract and a refund for improper work completed to date in the amount of $34,000.00 in exchange for reciprocal general releases.

On March 30, 2023, Respondent’s counsel replied to Complainant’s settlement offer in a letter entitled Notice of Claim – Notice to Preserve. The letter argued the Complainant’s issues were “of their own making.”

On or about April 4, 2023, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Albert Bernal. After a jobsite inspection, Investigator Bernal issued a written directive to Respondent that provided 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 June 6th 2023.

. . . .

DIRECTIVE REQUIREMENTS

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

Complaint Item: 2 - Breach of contract- Much of the work has been performed by non- licensed contractors. The contract specifies that ALL work will be performed by a licensed contractor

Investigator’s Observation: The Respondent is required by law to use only licensed contractors, the homeowners may request the license numbers for the personnel who show up to do the work. If the person is not able to present a valid license number, then the homeowner is not required to allow access.

Governing Rule: 32-1154(A)(3)

Complaint Item: 5 - No permits obtained as required by the City of Mesa

Investigator’s Observation: Permit issue was addressed in complaint item # 7

Governing Rule: 32-1154(A)(2)(b) 32-1154(A)(2)(b) Departure from or disregard of a building code of this state

Complaint Item: 6 - Bjelde initially mislead us when we signed the contract, by telling us that no permits were required for their work of adding several new electrical outlets and switches, adding new circuit breakers to the outside control panel, running new electrical lines through the house, creating new plumbing connections and penetrating the concrete foundation slab.

Investigator’s Observation: Permit issue was addressed in complaint item # 7

Governing Rule: 32-1154(A)(2)(b) 32-1154(A)(2)(b) Departure from or disregard of a building code of this state

Complaint Item: 7 - We’ve since learned that Mesa does requires permit for new electrical switch and outlet installation, AC Circuit Breaker installation in the control panel, slab foundation penetration, plumbing installation and plumbing modification. All of which has been performed by Bjelde.; Failure to have any of the plumbing, electrical and concrete slab penetration work inspected by a city inspector.;

Investigator’s Observation: It was stated by the Complainant that the work listed in this complaint item was performed by the Respondent. Respondent is to obtain building permit from local code jurisdiction governing authority and obtain required inspections and approvals.

Governing Rule: 32-1154(A)(2)(b) Departure from or disregard of a building code of this state and 32-1154(A)(3)

Complaint Item: 8 - Use of unlicensed sub-contractors to perform the plumbing work.

Use of unlicensed sub-contractors to perform painting work.

Use of unlicensed sub-contractors used for all of the drywall work.

Use of unlicensed sub-contractors used for cabinet installation and finishing work.

The concrete slab penetration work was performed by a non-licensed subcontractor

Investigator’s Observation: The Respondent is required by law to use only licensed contractors, the homeowners may request the license numbers for the personnel who show up to do the work. If the person is not able to present a valid license number, then the homeowner is not required to allow access.

No names of unlicensed entities were provided.

Governing Rule: 32-1154(A)(3).

Complaint Item: 9 - Bjelde's job foreman informed us the HVAC work still to be done will be completed using non-licensed individuals.;

The repeated use of a non-supervised apprentice and non-licensed sub-contractors has resulted in sub-standard work.

Investigator’s Observation: The Respondent is required by law to use only licensed contractors, the homeowners may request the license numbers for the personnel who show up to do the work. If the person is not able to present a valid license number, then the homeowner is not required to allow access.

No names of unlicensed entities were provided

HVAC work may need permit as well.

Governing Rule: 32-1154(A)(3)

Complaint Item: 10 - The apprentices and non-licensed individuals Bjelde has used for the plumbing and cabinetry installation have performed ALL of their work completely unsupervised- never was an experienced person present as they performed their work to oversee it.

Investigator’s Observation: The Respondent is required by law to use only licensed contractors, the homeowners may request the license numbers for the personnel who show up to do the work. If the person is not able to present a valid license number, then the homeowner is not required to allow access.

No names of unlicensed entities were provided

Governing Rule: 32-1154(A)(3)

Complaint Item: 12 - Misuse of the subcontractor status as described in Registrar of Contractors Substantive Policy Statement: 102.;

Kitchen Cabinets Don’t Match. Contractor said we’re getting ProCraft brand cabinets. What we received was a mixture of ProCraft & Highland brands causing them not to match-- even on the same wall. Kitchen cabinetry has mismatched exterior paint colors. Some kitchen cabinetry sides are brown and others are white.

Investigator’s Observation: Verified. Kitchen cabinets as installed do not appeared match or to be the same brand. Respondent is aware of the issue and agree to correct it.

Respondent shall correct by the appropriate means.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards

Complaint Item: 13 - Kitchen cabinet interiors are different colors.;

Investigator’s Observation: Complaint item was addressed in complaint # 12

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards

Complaint Item: 17 - Kitchen cabinet doors are missing glass.;

Investigator’s Observation: Complaint item was addressed in complaint # 12

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards

Complaint Item: 20 - The microwave cabinet was to have crown molding but now can’t due to the way the walls were framed and the microwave cabinet was installed.

Investigator’s Observation: Verified. No crown molding was installed on the microwave cabinet. Respondent is aware of the issue and agreed to correct it

Respondent shall correct by the appropriate means.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards

Complaint Item: 21- The microwave cabinet wall bull nose corners and edges are dented, bent and uneven from the contractor’s attempt to force the cabinet into the small space they built.

Investigator’s Observation: I noted that various areas around the cabinet wall were dented (drywall). Respondent is aware of the issue and agreed to correct it

Respondent shall correct by the appropriate means.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards

Complaint Item: 22 - Kitchen walls left with open holes requiring drywall Work.

Investigator’s Observation: Verified. I noted that there were various holes on the drywall between kitchen cabinets. Respondent is aware of the issue and agreed to correct it

Respondent shall correct by the appropriate means.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards

Complaint Item: 23 - Missing tile back splash- as of 3/1/23 Bjelde still hadn’t ordered the materials for the back splash.;

Investigator’s Observation: I noted that there was no backsplash installed in the kitchen. Respondent shall complete project per original contract agreement, properly executed change orders, verbal agreements.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards

Complaint Item: 24 - Failure to Provide the Custom Range Hood we paid for.;

Investigator’s Observation: No hood range was installed. Correct as per parties agreement.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards

Complaint Item: 25 - The linen cabinet near the master bedroom was incorrectly measured twice requiring reordering of the materials and it still isn't right. As of this date Bjelde has failed to provide the correct materials or start construction on this linen closet.

Investigator’s Observation: I noted that the linen cabinet was not complete.

Respondent is aware of the issue and agreed to correct it

Respondent shall complete project per original contract agreement, properly executed change orders, verbal agreements.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards

Complaint Item: 26- Another hallway cabinet is missing its finishing trim and baseboard.

Investigator’s Observation: I observed that the cabinet in the hallway was not complete. Missing trim and baseboard. I gap at the bottom were the baseboard was missing was readily visible from a standing position. Respondent is aware of the issue and agreed to correct it

Respondent shall correct by the appropriate means.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards

Complaint Item: 27 - The pantry door frame molding was incorrectly installed.

There is an unequal space between molding and door frame at the top of the door as compared to the sides.

Investigator’s Observation: I noted that the door casing was installed uneven.

The reveal was inconsistent around the door. Respondent is aware of the issue and agreed to correct it.

Respondent shall correct by the appropriate means.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards

Complaint Item: 28 - The wall below the kitchen sink has been left open exposing the outside wall.

Investigator’s Observation: I noted the back side of the cabinet under the sink was open making the inside of the exterior wall visible. I observed that the insulation and drywall were removed from the area as well. Respondent is aware of the issue and agreed to correct it.

Repair cabinet panel and inside of exterior wall.

Respondent shall correct by the appropriate means.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards

Complaint Item: 29 - The insulation between the outside wall in the area of the wall underneath the kitchen sink was removed by Bjelde and never replaced.

Investigator’s Observation: This complaint item was addressed in complaint item #28

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards

Complaint Item: 30 - An AC outlet under the kitchen sink has been left open exposing live wiring. It’s a live outlet!

Investigator’s Observation: Verified. I noted that the electrical outlet was left exposed and it did not have cover plate.

Respondent shall correct by the appropriate means.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards

Complaint Item: 31 - The added problem has to do with the installation of a reverse osmosis system that was installed by the contractor. It was installed incorrectly and is not filtering water as it should

Investigator’s Observation: I was shown the filtration system installation and I was unable to prove or disprove complaint item. However, in the spirit of good customer relations the Respondent agreed to check the reverse osmosis system.

Governing Rule: N/A

All errors in original.

After the deadline in the directive expired, Investigator Bernal was notified no corrective work had been performed.

The Registrar issued a Citation against Respondent, charging possible violations of Ariz. Rev. Stat. § 32-1154(A)(2)(b); Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(A); and Ariz. Rev. Stat. § 32-1154(A)(22).

At hearing, Complainant’s exhibits 1 through 13 were admitted. Complainant testified on his own behalf. Lyle Nils Bjelda testified on behalf of Respondent.

Investigator Bernal testified consistently with his Jobsite Investigation Notes and Written Directive.

Complainant testified he contracted with Respondent to install new cabinetry and to move and modify plumbing and electrical. The contract estimated date of completion was 8 to 10 weeks. As the project progressed, Complainant noticed the cabinets being installed came from different manufacturers and, as a result, the colors and textures of cabinets did not match. Cabinets which were side by side were off white and brilliant white. Some cabinets with glass doors were mounted next to one another but some had brown interiors and some had white interiors. Complainant testified none of the items in Investigator Bernal’s written directive were ever corrected.

Mr. Bjelda testified he was the license holder and owner of Respondent for more than 10 years. Mr. Bjelda testified he believed Complainant’s March 30, 2023, settlement offer letter was Complainant’s termination of the contract and therefore stopped all work on the project. On the Written Directive deadline, June 6, 2023, Respondent met with Complainant at his home and offered to have a third-party contractor do the corrective work. The third-party contractor walked the entire project and offered to remedy the issues and confirmed he was capable of said repairs. After the third-party contractor left, Complainant declined to allow the third-party contractor to complete the repairs.

Administrative notice is taken of Respondent’s prior License record on October 10, 2023. Respondent’s License No. 260364 was first issued on December 31, 2009, and is currently active. Respondent’s License record also reflects that there were six open complaints and two resolved/settled complaints against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”

The evidence established that Respondent did not complete the project in accordance with the applicable building code in a manner that was prejudicial to Complainant. Respondent failed to obtain the required building codes prior to performing the work on the project. Therefore, Complainant established that Respondent departed from or disregarded applicable building code in violation of A.R.S. § 32-1154(A)(2)(b).

The evidence established that Respondent’s work 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 Ariz. Rev. Stat. § 32-1154(A)(2)(b), Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(A).

The evidence established that Respondent did not attempt to complete the corrective work following the Directive being issued. Respondent admitted no corrective work was performed pursuant to the Written Directive. Respondent waited until the Written Directive deadline had expired to attempt to remedy the verified complaint items. Respondent made no effort to obtain an extension from the Registrar or seek alternative timely remedies. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of Ariz. Rev. Stat. § 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. 260364 for a period of seven days.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to Ariz. Rev. Stat. § 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 Ariz. Rev. Stat. § 32-1101(A)(5), 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, October 12, 2023.

/s/ Brian Del Vecchio

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Gregory Capelo

[email redacted]

Bjelde Construction LLC

[email redacted]

By: OAH Staff