ALJDEC - Licensing
2023A-03941-CHC-ROC · Registrar of Contractors · 2023-10-10
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Kacey Overlund
COMPLAINANT
v.
Bjelde Construction LLC
License No. ROC 260364,
RESPONDENT.
No. 2023A-03941-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: September 19, 2023
APPEARANCES: Jason Ebe, Esq. appeared on behalf of Complainant Kacey Overlund. Bob Porter, Esq. appeared on behalf of Bjelde Construction, LLC.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
On or about July 21, 2022, Complainant Kacey Overlund entered into a home remodeling contract with Respondent Bjelde Construction, LLC, for the amount of $53,600.00. Complainant paid Respondent $37,500.00 under the contract.
On or about December 12, 2022, Respondent started work.
On or about February 13, 2023, Respondent stopped work.
On or about April 3, 2023, Complainant filed a complaint with the Arizona Registrar of Contractors, (Registrar or ROC), alleging abandonment and poor workmanship on the part of Respondent.
On May 9, 2023, Registrar Investigator Doug Barrett conducted a job-site inspection.
On May 9, 2023, the Registrar issued a Directive to Respondent to correct complaint items 1 through 7, by appropriate means no later than 5:00 p.m. on June 2, 2023.
On June 2, 2023, the day that the Directive was set to expire, Respondent contacted Complainant for the first time since the Directive was issued. Respondent asked Complainant if it could bring a drywaller to review areas designated by the Registrar the following week. Complainant subsequently sent Respondent’s June 2, 2023 email to Investigator Barrett. Complainant also called Investigator Barrett and asked if she was required to allow Respondent to come the following week with the drywaller. Investigator Barrett told Complainant and informed her that she did not have to work with Respondent. Complainant did not allow Respondent to make repairs the following week.
On June 8, 2023, Investigator Barrett conducted a compliance job-site inspection. Complainant and Kevin Brown (on behalf of Respondent) were present at the compliance job-site inspection. Mr. Brown and Complainant agreed that no work had been performed.
On June 23, 2023, the Registrar issued a Citation to Respondent alleging that Respondent violated Arizona Revised Statutes (A.R.S.) §§ 32-1154(A)(3), (A)(22), and Arizona Administrative Code (A.A.C.) R4-9-108(A).
Respondent filed a timely response to the Citation.
The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
A hearing was held on September 19, 2023.
At hearing, Complainant testified on behalf of herself. Investigator Barrett testified consistently with his job-site inspection notes and the Directive. Respondent presented the testimony of its owner, Lyle Nills Bjelde.
Complainant explained that Respondent performed poor work when it remodeled her home.
Mr. Bjelde stated that his employees told him that they attempted to contact Complainant during the time period for compliance under the Directive, However, Respondent provided no eyewitness testimony or written evidence to establish that Respondent tried to contact Complainant during the time period for compliance under the Directive, outside of the June 2, 2023 e-mail.
CONCLUSIONS OF LAW
1. This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat.
section 32-1154(A).
2. 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. 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).
4. The Administrative Law Judge may consider the Registrar’s administrative record. See Ariz. Admin. Code § R4-9-118.
5. The preponderance of the evidence shows that Respondent did not perform
the work in a professional and workmanlike manner in violation of A.A.C. R4-9-108(a), and thereby of Ariz. Rev. Stat. section 32-1154(A)(3).
6. The preponderance of the evidence shows that Respondent failed to comply with the Registrar’s Directive without valid justification, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(22). Respondent failed to establish that Complainant denied Respondent reasonable access to her hone to correct the items listed in the Directive during the time period for compliance. Investigator Barrett agreed at hearing that Respondent’s email to Complainant on the day that the Directive expired to schedule a time to review work did not constitute a valid attempt to timely correct the Directive items.
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend License No. 260364 issued to Bjelde Construction, LLC, for three 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. section 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. section 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, October 10, 2023.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
[email redacted]
Doug Barrett
[email redacted]
Bjelde Construction LLC
415 S. 48th Street Suite# 111
[email redacted]
By: OAH Staff
Kacey Overlund
[email redacted]
Jason Ebe, Esq.
Snell & Wilmer LLP
[email redacted]
Robert Porter, Esq.
Porter Law Firm 1819 E Morten Ave Ste. 160 Phoenix, AZ 85020-7600