ALJDEC - Licensing

2023A-06746-CHC-ROC · Registrar of Contractors · 2023-11-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Dustin Wyman,

COMPLAINANT

Bjelde Construction, LLC

License No. ROC 260364,

RESPONDENT

No. 2022A-10260-CHC-ROC

No. 2023A-06746-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 27, 2023

APPEARANCES: Complainant Dustin Wyman appeared on his own behalf. Nils Bjelde, Owner and Qualifying Party, appeared on behalf of Respondent Bjelde Construction, LLC, which was represented by Robert Porter.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

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 May 13, 2021, Dustin Wyman (Complainant) entered into a contract with Respondent for, among other things, an addition and bath remodel. The contract did not include the estimated date of completion or the signature of the contractor.

On or about November 7, 2022, the Registrar received a complaint against Respondent from Complainant alleging abandonment and poor work with respect to the project.

The Registrar assigned the complaint to Investigator John Smith. On or about January 3, 2023, following a jobsite inspection, Investigator Smith 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 January 31, 2023.

. . . .

DIRECTIVE REQUIREMENTS

You are directed to complete work per contract, and to remedy the following violations by the appropriate means:

Complaint Item 2: “When construction was started in 2022, they cut into the side of the house, however, they did not seal it up. Because of this, there has been a lot of water damage. There is water damage on the ceiling, floor, and walls, and there is mold exposure.;”

Investigator’s Observations: Verified.

The respondent confirmed rain did get into the house during construction. The respondent acknowledged responsibility for all moisture damage, including but not limited to, the drywall, the framing, and the pre-existing flooring. . . .

Complaint Item 3: “The original contract called for a server room with a 220 circuit, closet, exhaust fan, ethernet cable runs, an outside walk deck with railing, an outside door, and two 6x6 windows that were switched to two 5x6' windows. In addition, the contract calls out for two ceiling fans, but only one was installed. The owner (Nils) does not believe we are getting credit for any of this. ;”

Investigator’s Observations: Verified.

The respondent confirmed that several items listed are not as specified in the contract. Both parties acknowledged verbal agreements for some changes. Currently there are no written/signed Change Orders for these specific items. . . .

Complaint Item 5: “Along with the mini split AC unit. We are not installing the mini split unit based on recommendations from Precision Air HVAC and Kevin Brown from Bjelde. They both said our 5-ton unit would handle it. According to Nils, we are not getting credit for the this.;”

Investigator’s Observations: Verified.

There is a Change Order specifying that a mini-split HVAC unit will be installed in lieu of extending the pre-existing HVAC ducts. There are conversations between the parties about eliminating the mini-split along with not extending the pre-existing ducts.

Currently:

• The pre-existing HVAC ducts have not been extended.

• No mini-split HVAC unit has been installed.

• There is no signed Change Order specifying the elimination of the mini-split along with not extending the pre-existing ducts. . . .

Complaint Item 8: “We purchased an $800 tub from Bjelde. One of the nights it was raining, we had so much water pouring through the ceiling that we used the tub to capture the water. In order to prevent more floor damage, We used Flex seal with tape. This ultimately ruined the bath tub. We had no other option because we went through 60+ towles and could not dry them fast enough.”

Investigator’s Observations: Verified.

A new non-installed tub for a bathroom remodel project is currently in the family room area. As explained by the complainant: To prevent further water damage caused by the rain water intrusion, the complainant sealed the tub openings with a Flex-Seal product and used the tub to catch water. The respondent stated that he accepts responsibility for the condition of the tub. The respondent also stated they will have the tub clean/repaired as needed, if it is determined the tub is not repairable, the respondent will replace the tub. . . .

Complaint Item 10: “The first two inspections were rubber-stamped. The inspector was told that they would drill into the foundation and put rebar with epoxy. The inspection was approved before the cocreate was poured. After it was poured I was told that the foundation could not be drilled because it was posttension, however, that is not what was told to the inspector. So there is no rebar or epoxy.; A different inspector came out to verify the framing and electrical. It failed because the architect's drawings and the framing did not match. Nils specifically told me that he would have an "Addendum" stamped by engineering. I trusted him that this would be ok; according to the Pinal County inspector, the Glu beam did not match the drawing and that they needed to be resubmitted to Pinal County.”

Investigator’s Observations: Verified.

All deviations from the contract, and from the approved plans, need to be approved by the property owner and specified on signed Change Orders. All deviations from the approved plans need to be submitted to, and approved by, the local Building official. . . .

Complaint Item 13: “We had a change order to upgrade one of the two bathrooms. We were told to pick out all of the tile, toilets, sinks, flooring, and all other items for the bathroom. That was several months ago. Bjelde has had $84,053 of out money for over a year. Neither bathroom has been started,”

Investigator’s Observations: Verified.

The contract states: “Estimated time of completion after start date is: 10 to 12 weeks” 10 to 12 weeks equals 70 to 84 days. As stated in the submitted complaint form, the start date was: 5/3/2022 5/3/2022 plus 10 to 12 weeks equals 7/12/2022 to 7/26/2022 The date of the ROC jobsite inspection, 12/16/2022, is 227 days past the start date. The date of the ROC jobsite inspection, 12/16/2022, is 143 to 157 past the estimated date of completion. As of the date of the ROC jobsite inspection, 12/16/2022, the project is not complete. . . .

Complaint Item 14: “and the framing inspection has failed due to the lack of engineering drawings that were paid for.”

Investigator’s Observations: Verified.

Complaint Item 16: “According to the original "Portal" timeframe, they have missed every deadline. Concrete, framing, electrical, roofing, etc. ;”

Investigator’s Observations: Verified.

Complaint Item 19: “Per the original contract, the work was supposed to be completed from 6-8 weeks after approval.; The updated contract stated 10-12 weeks, it is far past that time frame.”

Investigator’s Observations: Verified.

As of the date of the ROC jobsite inspection, 12/16/2022, the project is not complete. . . .

ADDITIONAL VIOLATIONS

In addition to the allegations in the complaint, the following violations were verified:

Warning Letter: Elements of a Contract.

Investigator’s Observations: The respondent’s contract is missing the following information:

• An estimated date of completion

o The contract states “Estimated time of completion after start date is: 10-12 weeks”

o The contract does not indicate when the start date will be

• A signature of the contractor

Governing Rule: A.R.S. § 32-1154(A)(12), Namely A.R.S. § 32-1158(A) Minimum Elements of a Contract.

Any contract in an amount of more than one thousand dollars entered into between a contractor and the homeowner of a property to be improved shall contain in writing at least the following information:

1: The name of the contractor and the contractor's business address and license number.

2: The name and mailing address of the owner and the jobsite address or legal description.

3: The date the parties entered into the contract.

4: The estimated date of completion of all work to be performed under the contract.

5: A description of the work to be performed under the contract.

6: The total dollar amount to be paid to the contractor by the owner for all work to be performed under the contract, including all applicable taxes.

7: The dollar amount of any advance deposit paid or scheduled to be paid to the contractor by the owner.

8: The dollar amount of any progress payment and the stage of construction at which the contractor will be entitled to collect progress payments during the course of construction under the contract.

9a: That the property owner has the right to file a written complaint with the registrar for an alleged violation of section 32-1154, subsection A.

9b: The contract shall contain the registrar's telephone number and website address and shall state that complaints must be made within the applicable time period as set forth in section 32-1155, subsection A.

9c: The information in this paragraph must be prominently displayed in the contract in at least ten point bold type...

9d: ...and the contract shall be signed by the property owner and the contractor or the contractor's designated representative.

REQUIRED CORRECTIVE ACTION: The respondent is to submit a copy of a current contract form that complies with A.R.S. § 32-1158

Warning Letter: Display of License.

Investigator’s Observations: The flowing documents do not include the respondent’s ROC number:

• Document titled “Bjelde Wiring Instructions”

• Invoices

• Change Orders

Governing Rule: A.R.S. § 32-1154(A)(12) Namely A.R.S. § 32-1124(B) Display of License

REQUIRED CORRECTIVE ACTION: The respondent is to submit documented compliance with A.R.S. § 32-1124.

Following the issuance of the written directive, Respondent performed some corrective work on the project.

On or about February 10, 2023, Investigator Smith conducted a compliance jobsite inspection. At that time, he noted that none of the items in the written directive had been fully completed, Respondent had not submitted revised documents to the Registrar, and the revised plans had not been approved by the local building official.

Investigator Smith then forwarded the matter to the Legal Department for issuance of a citation.

On or about February 15, 2023, the Registrar issued a Citation against Respondent, charging possible violations of Ariz. Rev. Stat. § 32-1154(A)(2)(a) and (b); Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(A) and (B); Ariz. Rev. Stat. § 32-1154(A)(8); Ariz. Rev. Stat. § 32-1154(A)(12), namely Ariz. Rev. Stat. § 32-1124(B), and Ariz. Rev. Stat. § 32-1158; and Ariz. Rev. Stat. § 32-1154(A)(22).

Because Respondent had started working on the project more following the complaint process, Complainant believed he could continue to work with Respondent on the project.

On or about March 23, 2023, Complainant executed a change order for exterior work including fascia, gutter, pavers, and drainage.

On or about June 14, 2023, the Registrar received a second complaint against Respondent from Complainant alleging abandonment and poor work with respect to the project.

The Registrar assigned the complaint to Investigator John Smith. On or about July 19, 2023, following a jobsite inspection, Investigator Smith issued a written directive to Respondent that provided as follows:

DIRECTIVE REQUIREMENTS

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

Complaint Item 1: “The paint was not finished within 3 weeks of the original contract, "Wrong paint was used" I have pictures of labels of the paint and the request for paint by the owner (Me). The house was painted with Flat shein, and the requested Shein was Semigloss. I have asked this to be correct, but no action has taken place.;”

Investigator’s Observations: Verified.

The house is painted with flat paint. The respondent acknowledged the agreement was for semi-gloss paint. . . .

Complaint Item 2: “The pavers are not finished or started. I paid $9,427 for a cut saw in concrete with a tube to allow backyard flooding to run to the street. The Cut Saw portion has been completed, but the pavers have not been started. The owner will no longer speak with me. The project has been abandoned.;”

Investigator’s Observations: Verified.

Change order dated 5/23/2023 includes: “Belguard Pavers standard native at prescribed area in rear yard @ $4,115.00.” The respondent acknowledged the pavers have not been started and still need to be completed. . . .

Complaint Item 3: “The rear fascia gutter was never installed. This was part of the $9,427 written change order. The owner will no longer speak with me. The project has been abandoned.;”

Investigator’s Observations: Verified.

Change order dated 5/23/2023 includes: “Rear (south) fascia gutter installed with 2 down spouts @ $1,212.00.” The respondent acknowledged this work has not been started and still needs to be completed. . . .

Complaint Item 6: “My yard is full of weeds, and the grass is dead (Due to a severed irrigation system and rocks). This is due to the debris left in the yard for so long, and I was unable to water manually because of all the trash in the yard, Reference ROC 260364 complaint. When digging the footing for the concrete, they did not remove the dirt, rocks, and excess concrete. To this day, the yard is unable to grow grass due to the rocks in the yard. I asked my gardener if there was a way around this, he stated that he would not put his lawn mower in the yard because the rocks would ruin his equipment. The primary complaint here is the concrete people severed my irrigation system, so automatic sprinklers no longer function. I would like this repaired. Even if the sprinkler system is repaired, I still cannot grow grass again due to the aforementioned ROC complaint. I have managed to keep all my trees alive by watering them with a hose, I also purchase a hose sprinkler attachment to compensate, but there is no way to maintain the grass with debris in the yard. I have before and after pictures of the project.;”

Investigator’s Observations: Verified.

The respondent acknowledged the irrigation line was cut during construction. There is visible construction debris in the back yard. . . .

Complaint Item 7: “The hot tub has not been moved into its correct location and wired back up. The hot tub has been sitting in the middle of my yard unable for 2 years because this project has dragged out so long; it was supposed to be 10-12 weeks. This was started in the summer of 2021, and it is now the summer of 2023. The hot tub cannot be moved until the house is repainted; reference the complaint above "paint not finished".;”

Investigator’s Observations: Verified.

The hot tub is not yet moved or installed. The respondent acknowledged this still needs to be completed. . . .

Complaint Item 8: “The air vent is missing downstairs when the painter started painting the ceiling. The air vent needs to be restored or replaced, it is missing.;”

Investigator’s Observations: Verified.

One air diffuser is missing from the main floor ceiling. The respondent acknowledged this was removed and not replaced. . . .

Complaint Item 9: “The original contract called for ethernet cable to be run from the downstairs to the upstairs room where the cable modem and firewall router are. Tony started this process from Bjelde Construction. I provided my own CAT6a ethernet cable and gave it to Tony. He started to wire from the wall in the expansion room be did not finish running the wire upstairs. The total length was 150', and about 100' coiled up in the downstairs kitchen still needs to go upstairs. The drywall has already been covered where the ethernet is sitting. To fix this issue, a new hole must be cut to access the excess ethernet cable and fished upstairs through the attic and into the network room.;”

Investigator’s Observations: Verified.

The respondent confirmed:

• The Ethernet cable was to be run from the main floor addition to an upstairs front bedroom.

• That currently the Ethernet cable runs from the main floor addition to inside the kitchen ceiling, on the main floor.

• This work still needs to be completed. . . .

Complaint Item 10: “Stucco cracks have not been repaired. Part of the paint change order includes stucco repair and paint. The stuck was never repaired, there was an attempt to repair it, but they put some glue in the crack and did not repair the stucco. There are still several cracks in the stucco around the house.;”

Investigator’s Observations: Verified.

There are some visible stucco patches, and chipped flaking stucco near the roof of the addition. The respondent confirmed this wall all be corrected as part of the prep work for the repainting of the house. . . .

Complaint Item 13: “Nils has abandoned the project altogether. He has pulled Tony off the project. As of 6/13/2023, Tony came to collect his tools and excess wood and stated that he was no longer allowed to work on this project, and that it was nice knowing you.”

Investigator’s Observations: Verified.

The respondent acknowledged they stopped working on the project, stating a reason of lack of payment. Based on documentation provided to date, the respondent is not due any additional payments until the project is complete.

Reference Pictures: all . . . .

Complaint Item 14: “The hall bath has been entirely demolished and abandoned. However, this is covered in the first Reference ROC 260364 complaint of finishing the bathrooms. The hall bath needs to be finished; Masterbath is agreed as a no-go.”

Investigator’s Observations: Work specific to the upstairs bathrooms is part of Complaint 2022-10260; therefore, will not be addressed as part of this complaint.

Following the issuance of the written directive, Respondent performed some corrective work on the project.

On or about August 28, 2023, Investigator Smith conducted a compliance jobsite inspection. At that time, he noted that items 1 and 10 in the written directive had been fully completed, but items 2, 3, 6, 7, 8, 9, and 13 had not been corrected.

Investigator Smith then forwarded the matter to the Legal Department for issuance of a citation.

On or about September 1, 2023, the Registrar issued a Citation against Respondent, charging possible violations of Ariz. Rev. Stat. § 32-1154(A)(1); Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(A); and Ariz. Rev. Stat. § 32-1154(A)(22).

The two matters were consolidated for hearing and the hearing convened on October 27, 2023.

Investigator Smith testified regarding his observations during the investigation. Investigator Smith acknowledged that Complainant had stated he would not let Respondent back on the property, but indicated that Complainant confirmed to him that he would Respondent back to perform the corrective work required in the written directives. Investigator Smith stated that Respondent argued it was not required to perform any more work on the project until additional payments had been made. Investigator Smith testified that during his review of the contract, Respondent was not owed any more money until the work had been completed on the project.

Complainant testified that the original contract with Respondent included the office addition and one bathroom remodel, but they executed a change order to add the master bathroom remodel. Complainant stated that after the first complaint was filed, “things started moving” so he executed an additional change order for outside work. When Respondent stopped working on the project, Complainant filed the second complaint. Complainant indicated that, at that time, the parties agreed Respondent would not perform any work on the master bathroom remodel and no work had been started in that room and the money already paid toward that part of the project would pay for the remaining work to be performed under the contract. Complainant denied that he refused to pick out the color or style of pavers he wanted to be installed, but rather, he was never given options from which to choose. Complainant also stated he never denied Respondent access to the property to perform the corrective work, but admitted he did not feel comfortable with Nils Bjelde being on the property any longer.

Mr. Bjelde testified that Complainant refused to let Respondent work on the interior of the house until the exterior of the house was complete. Mr. Bjelde asserted that Respondent completed the entire addition. Mr. Bjelde denied that the parties agreed to remove the master bathroom remodel from the project and that Respondent would not take the final draw.

Administrative notice is taken of Respondent’s prior License record on November 16, 2023. Such prior License record reflects that Respondent’s License No. 260364 was first issued on December 31, 2009, and is active. Such prior License record also reflects that there were 16 open complaints and two prior 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 submitted a bid for Complainant’s project and stopped working on the project without legal excuse. While Respondent asserted that it was owed additional money and that was required to be paid before any additional work would be done, nothing in the contract provided that payment was required at that time. Accordingly, Complainant established that Respondent abandoned the contract and failed to complete the project in violation of Ariz. Rev. Stat. § 32-1154(A)(1).

The evidence established that Respondent did not complete the project in accordance with the plans without Complainant’s consent and with the applicable building code in a manner that was prejudicial to Complainant. Nothing in evidence suggests that the local building code approved the revised plans or that Respondent performed the work in accordance with approved plans. Therefore, Complainant established that Respondent departed from or disregarded the plans and applicable building code in violation of Ariz. Rev. Stat. § 32-1154(A)(2)(a) or (b).

The evidence established that Respondent’s work was not in conformity with the Registrar’s standards. As outlined in the written directives, there were numerous items that were not in compliance with the Registrar’s standards and required correction. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(A) and (B).

The evidence established that Respondent did not complete the scope of work in the contract and indicated it would require more money to complete the project. Therefore, Complainant established that Respondent failed to complete the project for the price stated in the contract in violation of Ariz. Rev. Stat. § 32-1154(A)(8).

The evidence established that Respondent’s invoices failed to include Respondent’s ROC license number as required by Ariz. Rev. Stat. § 32-1124(B). Therefore, Complainant established that Respondent failed to comply with the Registrar’s statute in violation of Ariz. Rev. Stat. § 32-1154(A)(12).

The evidence established that Respondent’s contract failed to include the required elements of a contract set forth in Ariz. Rev. Stat. § 32-1158(A). Therefore, Complainant established that Respondent failed to comply with the Registrar’s statute in violation of Ariz. Rev. Stat. § 32-1154(A)(12).

The evidence established that Respondent did not complete the corrective work following the written directives being issued. 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 ten (10) 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.

It is further recommended that, on or before thirty (30) days after the effective date of the final order, Respondent shall provide a sample contract to the Registrar to demonstrate that it has amended its contracts to include the nine terms required by Ariz. Rev. Stat. § 32-1158(A). If Respondent fails to establish to the Registrar that it has brought its contracts into compliance with Ariz. Rev. Stat. § 32-1158(A) within thirty days, its contractor’s license shall be suspended until it demonstrates that it has done so.

Pursuant to Ariz. Rev. Stat. § 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, November 16, 2023.

/s/ Tammy L. Eigenheer

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Dustin Wyman

[email redacted]

John Smith

[email redacted]

Robert S. Porter

PORTER LAW FIRM

[email redacted]

By: OAH Staff