ALJDEC - Licensing
2023A-12336-CHC-ROC · Registrar of Contractors · 2024-04-16
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Marvin Smith ,
COMPLAINANT
v.
Bjelde Construction LLC
License No. ROC 260364,
RESPONDENT
No. 2023A-12336-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: March 28, 2024
APPEARANCES: Marvin Smith appeared on his own behalf. Lyle Nils Bjelde appeared on behalf of Respondent.
ADMINISTRATIVE LAW JUDGE: Amy M. Haley
EXHIBITS ADMITTED INTO EVIDENCE: Administrative Notice was taken of the Notice of Hearing packet and all of its documents contained therein.
_____________________________________________________________________
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 November 20, 2022, Marvin Smith (“Complainant”) entered into a contract for the construction of a new casita on his property.
On or about November 22, 2022, Complainant tendered $30,000.00 as a deposit on the project.
On or about October 25, 2023 Complainant filed a Complaint against Respondent alleging abandonment with respect to the project.
The Registrar assigned the Complaint to Investigator Patricia Shuette.
A jobsite inspection was originally scheduled for December 20, 2023, but was ultimately cancelled.
The Registrar issued a Citation against Respondent, charging a possible violation of Ariz. Rev. Stat. § 32-1154(A)(1).
Investigator Shuette testified that on or about November 1, 2023, she sent a complaint allegation letter to Respondent. This letter was returned by the Post Office on November 9, 2023.
Investigator Shuette testified that she then scheduled a jobsite inspection for December 20, 2023.
She further testified that on December 19, 2023, she received both text messages and emails from Respondent stating that Respondent had intentions of refunding the Complainant and that it was best to cancel the jobsite inspection as no work had been performed.
Investigator Shuette further testified that Respondent advised that one of its licenses was revoked and another was suspended. Given the information Respondent provided, Investigator Shuette testified that she cancelled the December 20, 2023 jobsite inspection.
Complainant testified that he had given Respondent a deposit of $30,000.00 on November 22, 2022 and that he had entered into the contract with Respondent approximately 2-3 days prior to that date. He further testified that construction on the project was expected to begin within 6-9 months. Complainant further stated that he had a separate contract for all architectural work on the project and that all of those invoices were paid. He further stated that he paid separately for the permits. Complainant testified that the $30,000.00 down payment made to Respondent was solely for the construction work that never occurred.
Complainant further testified that sometime after filing his Complaint, he learned that Respondent’s license had been revoked.
Lyle Nils Bjelde, qualifying party, testified on behalf of Respondent. Mr. Bjelde testified that the project had been in the architectural and permitting phase for an extensive period of time and that the permit was ultimately issued on August 29, 2023. Mr. Bjelde further testified that he was unable to start work after the issuance of the permit because he was injured and he did not have a crew that could work on the project. He testified that he might have been cleared by November 2023 to start on the project, but never communicated with Complainant about it. Mr. Bjelde testified he could not recall when his license became revoked.
Administrative notice is taken of Respondent’s License records on March 28, 2024. Such prior License record reflects Respondent’s License No. 260364 was first issued on December 31, 2009 and had been revoked. Such prior License record also reflects that there were 10 other open complaints, 12 prior disciplined complaints and 2 prior resolved/settled complaints against Respondent’s license.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction.
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 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.”
Respondent’s revoked license does not deprive Complainant of his right to prosecute his Complaint or prevent the Registrar from determining the merits of the Complaint.
The evidence established that Respondent abandoned the contract without legal excuse for the abandonment in violation of Ariz. Rev. Stat. § 32-1154(A)(1).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall revoke Respondent’s License No. 260364.
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 (30) 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)(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, April 16, 2024.
/s/ Amy M. Haley
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
Bjelde Construction LLC
PO Box 50962
Tempe, AZ 85208
[email redacted]
Marvin Smith
21108 E Saddle Way
Queen Creek, AZ 85142-6511
[email redacted]
By: OAH Staff