ALJDEC - Licensing
2023A-11501-CHC-ROC · Registrar of Contractors · 2024-03-27
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Kevin Hartfield ,
COMPLAINANT
v.
Bjelde Construction LLC
License No. ROC 260364,
RESPONDENT
No. 2023A-11501-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: March 7, 2024, 1:00 P.M.
APPEARANCES: Complainant Kevin Hartfield appeared on his own behalf; Lyle Nils Bjelde appeared on behalf of Respondent
ADMINISTRATIVE LAW JUDGE: Roger Geddes
EXHIBITS ADMITTED INTO EVIDENCE: Complainant’s Exhibit Nos. 1 - 2
_____________________________________________________________________
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 October 4, 2023, Kevin Hartfield (Complainant), filed a Complaint against Respondent with the Registrar alleging abandonment in connection with the construction of an addition by Respondent at a residence in Queen Creek, Arizona (“project”).
3. The Registrar performed an inspection of the project on November 6, 2023, and issued a Written Directive, dated November 16, 2023, directing Respondent to correct 37 violations by December 8, 2023, by appropriate means.
4. After being informed that no corrective work was performed and in view of Respondent’s revoked license status, 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)(1) (abandonment of a contract or refusal to perform without legal excuse);
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 for March 7, 2023, at 1:00 P. M.
6. At the March 7, 2023 hearing, Complainant testified on his own behalf and presented the testimony of Megan Hartfield; Respondent presented the testimony of Lyle Nils Bjelde, Principal Owner. Patricia Schuette, the Registrar Investigator (Investigator) testified on behalf of the Registrar. The Tribunal received and admitted Complainant’s Exhibit numbers 1 - 2; Respondent did not submit any exhibits.
7. The Investigator testified on behalf of the Registrar consistently with her job inspection notes. She stated she issued a Directive with regard to 37 complaint items with a due date of December 8, 2023, but that she was informed no corrective work had been performed and that Respondent’s license was in a revoked status.
8. As herein relevant to the Citation, Kevin Hartfield testified that it has been over a year since he signed the contract for a room addition. He stated only demolition had been done with no progress on the addition. He further stated that he did not end up working with the individual he thought he would be working with.
9. As herein relevant to the Citation, Megan Hartfield testified on behalf of Complainant that she was part of entire process from the beginning. She stated that they paid about 45% of the funds but that only demolition was done. She further stated that communication with Respondent then ended.
10. As herein relevant to the Citation, Lyle Nils Bjelde testified on behalf of Respondent that he was basically in agreement with what had been stated to this point at the hearing. He stated he ran into some hardships and was unable to finish the project.
11. 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 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(C) (“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 . . .”).
5. 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:
1. Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.
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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.....
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6. A.R.S. § 32-1154(A)(1). Complainant has presented sufficient evidence to establish that Respondent abandoned the contract or refused to perform without legal excuse in violation of A.R.S. § 32-1154(A)(1). There was no dispute that Respondent did not fully complete the project as required and there was no evidence presented of a legal excuse for failing to do so.
7. 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.
8. Accordingly, the Tribunal finds that Complainant has established that Respondent’s license should be disciplined for a violation of § 32-1154(A)(1) 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 continues 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 27, 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]
Kevin Hartfield
[email redacted]
Bjelde Construction, LLC
P.O. Box 50962
Tempe, AZ 85208
[email redacted]
By: OAH Staff