ALJDEC - Licensing
2023A-09882-CHC-ROC · Registrar of Contractors · 2024-02-02
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Porfirio Sandoval,
COMPLAINANT,
v.
Bjelde Construction, LLC
License No. ROC 260364,
RESPONDENT.
No. 2023A-09882-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: January 26, 2024
APPEARANCES: Complainant Porfirio Sandoval appeared on his own behalf with his fiancé, Katrina Stahl. Lyle Nils Bjelde appeared on behalf of Respondent Bjelde Construction, LLC.
ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella
EXHIBITS ADMITTED INTO EVIDENCE: Complainant Porfirio Sandoval’s Exhibit 1 (contract)
FINDINGS OF FACT
Bjelde Construction, LLC (“Respondent”) is the holder of License Number 260364 issued by the Arizona Registrar of Contractors (“Registrar”). Lyle Nils Bjelde is Respondent’s Qualifying Party and Member.
On or about June 16, 2022, Porfirio Sandoval (“Complainant”) contracted with Respondent for Respondent to construct an addition to Complainant’s home and re-roof the entire home. The contract price was $85,996.00. Complainant paid Respondent a deposit in the amount of $25,000.00. On or about July 18, 2023, Complainant paid Respondent an additional $17,000.00.
In or about September 2023, the Registrar received a Complaint against Respondent from Complainant alleging that Respondent had abandoned the project.
The Registrar assigned the Complaint to Investigator Steve Klein. After an October 10, 2023 Jobsite Inspection, Investigator Klein issued a Written Directive to Respondent dated October 11, 2023, 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 October 27, 2023.
You are directed to remedy the following violations by the appropriate means:
Complaint #1 I think the construction company breached the contract by exceeding the time of the project. I gave them 26,000 down and then 17,000 to start which they haven't started. I don't trust them so therefore I don't want to keep doing business with Bjelde Construction
Inspector’s Observation: Plans completed, permit purchased but the work on site has not started.
• Respondent shall complete project per original contract agreement, plans, specifications, properly executed change orders, local building codes and manufacturer’s installation instructions.
All errors in original.
Following the deadline set forth in the Written Directive, it was ascertained that Respondent had not performed any work as required by the Written Directive. Consequently, a Compliance Inspection was not performed.
Thereafter, Investigator Klein forwarded the Complaint to the Registrar’s Legal Department for the issuance of a Citation. The Registrar issued a Citation against Respondent charging possible violations of A.R.S. §§ 32-1154(A)(1), 32-1154(A)(3), namely A.A.C. R4-9-108(a), and 32-1154(A)(22).
Complainant testified that he paid additional monies for the permit and plans for the project which pursuant to the terms of the parties’ contract was to be completed within thee (3) months from the start of construction. However, Respondent never commenced work on the project. Complainant expressed his frustration that is compounded by the fact that the addition was to be constructed for his two children who both have autism.
Katrina Stahl, Complainant’s fiancé, testified that in January 2023, she began to call Respondent twice weekly, and that she continued to do so for approximately four or five months with no response.
Mr. Bjelde testified that he did not meet Complainant until 2023, as one of Respondent’s sales people “sold the project” to Complainant. Mr. Bjelde testified that it took longer to obtain the permit for the project due to delays caused by COVID.
The permit was obtained on March 13, 2023. Notwithstanding such, it was not until June 2023, that Mr. Bjelde met Complainant and reviewed the project. It was then that Mr. Bjelde requested the additional $17,000.00 from Complainant that was paid in July 2023. Mr. Bjelde asserted that no work was performed on the project once the permit was issued because his “project manager was inundated with projects.”
Mr. Bjelde asserted that after Complainant paid the additional $17,000.00, Complainant cancelled the contract, stating that he did not want Respondent to start work. Thirteen (13) months had elapsed since the execution of the parties’ contract and no work had been performed despite Complainant having paid for the permit, plans, and $42,000.00 to Respondent. Mr. Bjelde testified that he did not refund the monies paid by Complainant because Complainant filed the instant Complaint with the Registrar and because he believed Complainant was not entitled to a refund under the terms of the parties’ contract. Mr. Bjelde asserted that the project “was just delayed” and that he was “surprised [Complainant] did not want him to start.”
Administrative notice is taken of Respondent’s prior License record on January 31, 2024. Such prior License record reflects that Respondent’s License Number 260364 was first issued on December 31, 2009, and is revoked. Such prior License record also reflects that there are thirteen (13) open complaints, two (2) resolved/settled complaints, and ten (10) complaints resulting in discipline 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 violation(s) 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 contracted with Complainant to construct an addition to Complainant’s home and re-roof the entire home, Respondent accepted a deposit in the amount of $25,000.00, requested an additional payment of $17,000.00, and yet failed to perform any work on the project notwithstanding the fact that over thirteen (13) months had elapsed between the execution of the contract and when Complainant decided he had no faith that Respondent would actually perform the work, and therefore, cancelled the contract. The Administrative Law Judge concludes based on the evidence presented at hearing, that Respondent abandoned the project without legal excuse, having been paid to perform its scope of work and failing to do so within any semblance of a reasonable period of time. Therefore, the credible evidence of record established that Respondent violated A.R.S. § 32-1154(A)(1).
The credible, substantial, and probative evidence established that Respondent failed to perform any work on the project despite the passage of over a year and being paid $42,000.00. Therefore, Complainant established that Respondent did not complete the project in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a).
The evidence established that Respondent did not complete the required work following the Written Directive being issued, and that valid justification for such failure did not exist. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a Written Directive from the Registrar in violation of A.R.S. § 32-1154(A)(22).
Upon consideration of all of the egregious facts and circumstances presented by this case, the Administrative Law Judge concludes that the Registrar should revoke Respondent’s license.
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of the Order, Respondent’s License Number 260364 shall be revoked.
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, February 2, 2024.
/s/ Sondra J. Vanella
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
Bjelde Construction, LLC
[email redacted]
Porfirio Sandoval
[email redacted]
By: OAH Staff