ALJDEC - Licensing
2023A-08305-CHC-ROC · Registrar of Contractors · 2024-03-31
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Jason Comeau ,
COMPLAINANT
v.
Bjelde Construction LLC
License No. ROC 260364,
RESPONDENT
No. 2023A-08305-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: March 12, 2024, 9:00 A.M.
APPEARANCES: Wesley Cox, Esq., appeared on behalf of Complainant; no appearance was made by Respondent
ADMINISTRATIVE LAW JUDGE: Roger Geddes
EXHIBITS ADMITTED INTO EVIDENCE: Complainant’s Exhibit Nos.1-19
_____________________________________________________________________
FINDINGS OF FACT
Background and Procedure
1. Bjelde Construction, LLC (Respondent), is the holder of License Number 260364 issued by the Registrar of Contractors (Registrar).
2. On or about July 21, 2023, Jason Comeau (Complainant) filed a Complaint against Respondent with the Registrar alleging abandonment and poor work in connection with the construction of a room addition by Respondent at a residence in Phoenix, Arizona (“project”).
3. After the Complaint was closed and then re-opened following an August 15, 2023, initial job site inspection, the Registrar performed another job site inspection of the project on October 2, 2023. Thereafter, it issued a Written Directive, dated October 13, 2023, directing Respondent to remedy the following violations by October 30, 2023, by appropriate means:
Compliance Item: 2 - Framers left holes in our roof that flooded the house and destroyed the floor boards in our kitchen and living room and required replacement;
Investigator’s Observation: At the jobsite Inspection, I observed the same piece of plywood covering the hole in the ceiling which was there at the 1st inspection on August 17th, 2023. Contractor stated he wanted to repair that at the same time they were hanging drywall in the new addition.
Governing Rule: ARS 32-1154(A)(3) Poor work – A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 3 - Work was stopped and Bjelde has seemingly abandoned the work site. The last work completed was 05/23/23 and no work has been done since. Without explanation.
Investigator’s Observation: Some progress has been made since the first Jobsite Inspection on August 15, 2023: All plumbing complete, sewer hook up, patched and repaired framing for new windows, gas line run to new addition. However, it has been 21 months since the start of this project.
Governing Rule: ARS 32-1154(A)(3) Poor work – A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 4 - Demolition was started on January 31, 2022 and our contract states that construction would only take 3-4 months, barring unavoidable delays. This has not been the case as our project remains unfinished.
Investigator’s Observation: 10/13/23: Spoke with the Complainant this morning 8:51am. He states that no one from Bjelde Construction has been back to his property since the latest Jobsite Inspection on October 2nd, 2023.
Governing Rule: ARS 32-1154(A)(3) Poor work – A contractor shall perform all work in a professional and workmanlike manner
4. After being informed that no corrective work was performed, the Registrar then issued a Citation to Respondent, dated December 14, 2023, for the alleged violation of the following:
a. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108(a) for failure to perform all work in a professional and workmanlike manner);
b. A.R.S. § 32-1154(A)(22) (failure to perform corrective action without a valid justification).
5. The Registrar issued a Notice of Hearing that set a hearing after a continuance for March 12, 2023, at 9:00 A. M.
6. At the March 12, 2023 hearing, Complainant testified on his own behalf; no witnesses testified on behalf of Respondent. Todd Anderson, the Registrar Investigator (Investigator) testified on behalf of the Registrar. The Tribunal received and admitted Complainant’s Exhibit Nos. 1-19; Respondent did not submit any exhibits.
7. Although the commencement of the hearing was delayed approximately 15 minutes, Respondent did not appear at any time during the hearing through an authorized officer, member, manager, employee, attorney, or any other person. Consequently, Respondent did not present any evidence at the hearing to defend against the imposition of potential disciplinary action against its license.
8. The Investigator testified on behalf of the Registrar consistently with his job inspection notes. He stated he confirmed that the contract was entered into in January 2022, but that the project was far from completed. He stated he received a call from Respondent at the expiration of the Directive deadline who informed him he was still recuperating from an injury.
9. As herein relevant to the Citation, Jason Comeau testified that demolition started in July 2022 but the work stopped and there was no communication regarding the delay. He stated his last attempt at communicating with Respondent was on October 18, 2023, but he did not reach him. He further testified that the last time work was done was on August 2023, and that he estimated that only between 50 and 75 per cent of the work was done.
10. Pursuant to Arizona Administrative Code Rule 4-9-117, administrative notice is taken of the Registrar’s public website which reflects Respondent was first issued the subject license on December 31, 2009, and has been in revoked status since December 7, 2023. The site also reflects 11 Open cases, 12 Disciplined cases, and 2 Resolved/Settled cases as of this date.
CONCLUSIONS OF LAW
1. The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.
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 preponderance of the evidence. See Arizona Administrative Code Rule 2-19-119.
3. To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” BLACK’S LAW DICTIONARY 1182 (Rev. 6th ed. 1990).
4. The copy of the Notice of Hearing and the Minute Entry - Granting Continuance sent to Respondent at its address of record were reasonable and Respondent is deemed to have received such notices. A.R.S. §§ 41-1092.4 and 41-1092.05(D).
5. The revoked status of Respondent’s license does not deprive Complainant of the right to prosecute a complaint against Respondent or prevent the Registrar from determining the merits of Complainant’s complaint. See A.R.S. § 32-1154(D) (“The expiration, cancellation, suspension or revocation of a license . . . shall not deprive the registrar of jurisdiction to proceed with any investigation of or action or disciplinary proceeding against such license, or to render a decision suspending or revoking such a license . . .”).
6. A.R.S. § 32-1154(A) includes in pertinent part among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, any of the following acts:
3. Violation of any rule adopted by the registrar.
...
22. Failure to take appropriate corrective action to comply with his chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar.....
...
7. With regard to the “violation of any rule adopted by the registrar” under A.R.S. § 32-1154(A)(3) referenced in the Citation, the rule allegedly violated in this case are Arizona Administrative Code Rule 4-9-108(a) which requires that “[a] contractor shall perform all work in a professional and workmanlike manner.”
8. A.R.S. § 32-1154(A)(3). Complainant has presented sufficient evidence to establish that Respondent failed to perform all work in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3). There was no dispute as to the existence of the Directive items.
9. A.R.S. § 32-1154(A)(22). Complainant has presented sufficient evidence to establish that Respondent failed to take corrective action without a valid justification in violation of A.R.S. § 32-1154(A)(22). There was no evidence presented of a valid justification for failing to do so.
10. Accordingly, the Tribunal finds that Complainant has established that Respondent’s license should be disciplined for a violation of § 32-1154(A)(3) and § 32-1154(A)(22).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of this Order, Bjelde Construction, LLC’s, License Number 260364 shall be revoked or continue to be revoked.
IT IS FURTHER RECOMMENDED that pursuant to A.R.S. § 32-1154(E), Respondent must pay to the Registrar a civil penalty of $500.00 in certified funds on or before 30 days from the effective date of this Order.
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 continue Respondent’s revoked license status, 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)(5), unless Respondent tenders payment of the 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, March 31, 2024.
/s/ Roger Geddes
Administrative Law Judge
Transmitted electronically to:
Tom Cole, Director
Registrar of Contractors
c/o Legal Department
1700 W. Washington Street, Suite 105
Phoenix, AZ 85007
[email redacted]
Bjelde Construction LLC, Respondent
415 S. 48th St. Ste. 111
Tempe, AZ 85281
[email redacted]
Jason Comeau, Complainant
4128 E. McKinley St.
Phoenix, AZ 85008
[email redacted]
Richard C. Gramlich, Esq.
Wesley M. Cox, Esq.
Tiffany & Bosco PA, Counsel for Complainant
17th Fl. Camelback Esplanade II
2525 E. Camelback Rd.
Phoenix, AZ 85016-4237
[email redacted]
[email redacted]
By: OAH Staff