ALJDEC - Licensing
2023A-12393-CHC-ROC · Registrar of Contractors · 2024-03-03
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Jarod Eagles ,
COMPLAINANT
v.
Bjelde Construction LLC
License No. ROC 260364,
RESPONDENT
No. 2023A-12393-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: February 12, 2024. 9:00 A.M.
APPEARANCES: Complainant Jarod Eagles appeared on his own behalf; Lyle Bjelde, Owner, appeared on behalf of Respondent
ADMINISTRATIVE LAW JUDGE: Roger A. Geddes
EXHIBITS ADMITTED INTO EVIDENCE: Complainant’s Exhibit Nos. 1 - 3; none submitted by Respondent
_____________________________________________________________________
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 30, 2023, Jarod Eagles (Complainant) filed a Complaint against Respondent with the Registrar alleging abandonment in connection with construction of a guest house by Respondent at a residence in Mesa, Arizona (“project”).
3. The Registrar performed an inspection of the project on November 17, 2023, and made the following notes:
Jobsite General Notes:
This investigation was regarding the construction of a new guest house at the Complainant’s residence. At this investigation the Complainant stated that the Respondent had 14 months to do the work and he didn’t do anything. The Complainant then hired another contractor to start the work (Work described on complaint item below). The work started approximately a week prior to this JSI. The Complainant communicated to me that he has pictures and video of what it looked like before this job-site inspection.
The Complainant said that both parties met on Monday at 5:00 PM and the Respondent said to him that he wanted to pay him his money back ($37,500.00) so the Complaint asked when? and the Respondent replied that didn’t have the money at the moment. The complainant said that the conversation was friendly, but it did nothing good for him since the Respondent didn’t have the money, or there were not timelines established by the Respondent to start the work.
Complaint Item: 1 - Timelines established within the written agreement have not been met;
Investigator’s Observation: This complaint item refers to the construction of a new guest house that was contracted between the two parties, but the work was not started by the Respondent. A the time of this inspection the Complainant communicated to me that he had hired another contractor to start the work since Bjelde Construction LLC did not started any of the site work that was contracted to do. At this investigation I noted that the sewer line was trenched and exposed in the front of the house, and also noted that there were footings dug and forms installed in the backyard of the residence.
Governing Rule: ARS §32-1154 (A)(1) Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.
Complaint Item: 2 - No communication with all attempts to reach out to the company determine status of project ;
Investigator’s Observation: The allegation does not implicate
workmanship issue
Governing Rule: N/A
Complaint Item: 3 - initial office building that is listed on ROC license and
company website is now abandoned
Investigator’s Observation: The allegation does not implicate
workmanship issue
Governing Rule: N/A
4. No Directive was issued. The Registrar then issued a Citation to Respondent, dated December 4, 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);
5. The Registrar issued a Notice of Hearing that set a hearing for February 12, 2024, at 9:00 A.M.
6. At the February 12, 2024, hearing, Complainant testified on his own behalf; Respondent presented the testimony of Lyle Bjelde. Albert Bernal, the Registrar Investigator (Investigator) testified on behalf of the Registrar. The Tribunal admitted Complainant’s Exhibit Nos. 1 - 3.
7. The Investigator testified on behalf of the Registrar consistently with his job notes. He testified he was advised that Respondent did no work and that Respondent’s license was revoked.
8. As herein relevant to the Citation, Complainant Jarod Eagles testified that no work was performed on the project. He further stated he hired a new contractor who completed the project in 60 days.
9. As herein relevant to the Citation, Lyle Bjelde, owner of Respondent, testified that he had wanted to but was unable to attend the job site inspection. He also stated that architectural and permitting paid a major role in the delay. He further stated he broke his ankle which prevented him from visiting projects and he lost some other project managers.
10. Pursuant to Arizona Administrative Code Rule 4-9-117, administrative notice is taken of the Registrar’s public website which reflects the subject license was first issued on December 31, 2009, and was revoked as of December 7, 2023. The site also reflects 12 open cases, 11 disciplined cases, and 2 resolved/settled cases.
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 his right to prosecute his 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.
...
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 commence the project and there was no evidence presented of a valid legal excuse for failing to do so. Testimony regarding permit difficulties without supporting documentation was insufficient to show a valid legal excuse.
7. Accordingly, the Tribunal finds that Complainant has established that Respondent’s license should be disciplined for a violation of § 32-1154(A)(1).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of this Order, Bjelde Construction LLC’s, License Number 260364 is 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, March 4, 2024
/s/ Roger Geddes
Administrative Law Judge
Transmitted electronically to:
Tom Cole, Director
c/o Gregory Johndrow, Investigator
Registrar of Contractors
1700 W. Washington St., Ste. 105
Phoenix, AZ 85007
Bjelde Construction LLC
[email redacted]
Jarod Eagles
[email redacted]
By: OAH Staff