ALJDEC - Licensing

2023A-08883-CHC-ROC · Registrar of Contractors · 2024-03-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Valerie Lim

COMPLAINANT,

v.

Bjelde Construction LLC

License No. ROC 260364,

RESPONDENT.

No. 2023A-08883-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 27, 2024

APPEARANCES: Complainant Valerie Lim represented herself (Complainant). Lyle Nils Bjelde represented Respondent Bjelde Construction, LLC (Respondent).

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

EXHIBITS ADMITTED INTO EVIDENCE: None.

_____________________________________________________________________

FINDINGS OF FACT

1. Respondent agreed to remodel Complainant’s residence for the amount of $31,420.76.

2. Complainant paid Respondent $28,110.36 for the remodeling work.

3. On or about April 5, 2023, Respondent started work under the contract.

4. On or about June 15, 2023, Respondent stopped work.

5. On or about August 3, 2023, Complainant filed a complaint with the Arizona Registrar of Contractors (Registrar) alleging abandonment and poor workmanship on the part of Respondent.

6. On or about August 4, 2023, the Registrar assigned the complaint to Registrar Investigator Steve Avila.

7. Investigator Avila delayed in conducted a job-site inspection because Complaint agreed to allow Respondent the opportunity to correct its work. After Investigator Avila was notified that the work had not been corrected, Investigator Avila scheduled a job-site inspection for November 1, 2023.

8. Investigator Avila conducted a job-site inspection on November 1, 2023.

9. On November 15, 2023, the Registrar issued a Directive to Respondent directing Respondent to correct the following complaint item, by appropriate means, no later than December 4, 2023. The November 15, 2023 provided, in relevant part, as follows:

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

Compliance Item: 1 - initial Contract signed 4/29/2023 - estimated time to complete work was 8-10 weeks (we are 14 months in at this point). Builder claimed that the estimate was not valid until after on site work began, we are far beyond that timeline at this point.;

Per contract - Form and pour reinforced concrete footings and slab 13’x13’ to match house floor level.

Remedy requested - slab redone with rebar added across plane, slab poured on top of existing patio concrete, rebar not run through whole slab, only sides. ;

Per Contract - Frame exterior walls with 2”x6” lumber. Install headers for patio door and window.

Remedy Requested - tear down and rebuild frame. Lumber has been exposed fully to elements for almost 2 full months and holes in plywood and wood deformities have emerged due to improper care. Additionally request a 3rd party inspection to be paid for to confirm what additional damage has resulted to attic space, roof, or house exterior due to being open and fully exposed to the elements during the height of summer and monsoon season. ;

Per Contract- Install 1⁄2” OSB sheathing and Tyvek house wrap on exterior walls. Remedy requested - actually install Tyvek and protect structure from more damage than has already occurred. ;

Per Contract - Install a 6’x6’8” sliding patio door and a 4’x4’ sliding window. Both to have Low-E glass. Remedy requested - Color matched doors and windows be installed per communication. ;

Per Contract - Install stucco system on exterior walls to match existing texture. Remedy requested - Stucco house at appropriate time during construction process.;

Per Contract - Apply quality primer and paint to new exterior walls to match existing color.

Remedy requested - Paint interior at appropriate time during construction process.;

Per Contract - Remove the window and door on back wall and haul away. Remedy Requested - Remove structures, and replace as per blueprint. ; Per Contract - Frame in the window opening.

Remedy Requested - Frame in existing window per blueprint. ;

Per Contract - Install a 6’x6’8” single glass French door and hardware where door was removed. (AMENDED TO BE SLIDING GLASS DOOR)

Remedy Requested - Install color matched sliding glass door per amended agreement. ;

Per Contract - Install four new outlets in each wall of office. Remedy Requested - Verify all outlets are installed correctly;

Per Contract - Connect to HVAC trunkline and install flex duct to new office. Install vent cover.

Remedy Requested- Verify HVAC installed correctly, verify no damage in attic. ; Per Contract - Install a ceiling fan in center of office ceiling. Fan allowance: $200.00 Remedy Requested - Install fan per contract. ;

Per Contract - Install new light fixture on outside wall next to patio door. Fixture allowance: $100.00

Remedy Requested - Install light per contract. ;

Per Contract - Install spray foam insulation in ceiling and new walls.

Remedy Requested - Install foam insulation per contract. ;

Per Contract - Install 1⁄2” drywall where needed on interior walls and ceiling. Finish and texture to match existing. Remedy Requested - Install drywall and texture walls per contract. ;

Per Contract - Install luxury vinyl plank flooring for new office floor. (Note - this should have been tile, we always communicated tile was to be installed, but I did not catch this error prior to signing)

Remedy Requested - Tile be installed in new space. Homeowners have selected tile, will need to verify if style is still available in necessary quantities due to extended length of time between initial contract signing and work abandonment. ;

Per Contract - Install baseboard and door trim where needed. Remedy Requested - Install matching trim and baseboards to match the rest of the home interior. ;

Per Contract - Apply quality primer and paint to all interior walls, ceiling, French door and trim work of remodeled areas.

Remedy Requested - Prime and paint interior walls per contract. Homeowners have already selected paint color. ;

Per Contract - Daily clean up and haul away all debris.

Remedy Requested - Garbage and dangerous debris that has been sitting in my yard for months needs to be removed, and thorough checks for various nails or other items that can injure occupants and pets is removed.

Investigator’s Observation: At the time of the inspection the addition to the home had not been completed. The Complainant stated that the last time the respondent was onsite was approximately September of 2023 when some doors were delivered damaged and had to be returned. Respondent stated at the Jobsite inspection that the doors had still not been re-ordered since the time of return. The contract was signed 4/26/2023 with a completion timeline of 8-10 weeks. At the time of the inspection the timeline had grown to approximately 27 weeks and at the time of this paperwork the timeline would be at 29 weeks.

Remaining items per the scope of the contract noted at the inspection are: Exterior door not installed on the addition. New door not installed between the existing residence and the addition. Stucco Flooring (tile) Paint (interior and exterior) Baseboards Finish electrical (interior and exterior) Attic installations Hvac The list is tentative as the respondent should complete the project as per all contractual obligations. Obtain all needed permits and pass all required inspections. Allegation for an incomplete project in which the respondent has not shown a diligent effort to complete the project has been verified.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(b): A contractor shall perform all work in accordance with any applicable building codes and professional industry standards. For work to be performed in accordance with professional industry standards, a contractor shall use such skills, prudence, and diligence in performing and completing tasks undertaken that the completed work meets the standards of a similarly licensed contractor possessing ordinary skill and capacity.

.................................................

10. Respondent failed to comply with the Directive by December 4, 2023.

11. On or about December 13, 2023, the Registrar issued a Citation to Respondent alleging that Respondent violated Arizona Revised Statutes (A.R.S.) §§ 32-1154(A)(3) and (22); Arizona Administrative Code (A.A.C.) R9-4-108(A).

12. Respondent filed a timely response to the Citation.

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

14. On February 27, 2024, a hearing was held.

15. At hearing, Complainant testified on behalf of herself. Lyle Nils Bjelde testified on behalf of Respondent. Investigator Avila testified regarding his investigation of the complaint.

16. Investigator Avila testified consistently with his job-site inspection notes. Complainant explained that Respondent performed poor work under the contract.

Mr. Bjelde did not dispute the findings of Investigator Avila.

17. Pursuant to A.A.C. R9-4-117, administrative notice is taken of Respondent’s license history on the Registrar’s public website on March 18, 2024. Respondent’s License No. ROC 260364 was revoked on December 7, 2023.

CONCLUSIONS OF LAW

The Registrar has jurisdiction over this matter, pursuant to Ariz. Rev. Stat.

section 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of Ariz. Rev. Stat. section 32-1154.

The revoked status of Respondent’s license does not deprive Complainant

of his right to prosecute the Complaint or prevent the Registrar from determining the merits of Complainant’s complaint. This matter lies within the Registrar’s jurisdiction.

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).

The preponderance of the evidence shows that Respondent did not perform

the work in a professional and workmanlike manner, which is a violation of A.A.C. R4-9-108(A), and thereby of A.R.S. § 32-1154(A)(3).

5. 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).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the order in this matter, License No. 260364 of Bjelde Construction LLC is revoked.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty.

It is further recommended that 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, March 18, 2024.

/s/ Velva Moses-Thompson

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Valerie Lim

[email redacted]

Bjelde Construction LLC

[email redacted]

By: OAH Staff