ALJDEC - Licensing
2023A-12478-CHC-ROC · Registrar of Contractors · 2024-03-27
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Lisa Frost ,
COMPLAINANT
v.
Bjelde Construction LLC
License No. ROC 260364,
RESPONDENT
No. 2023A-12478-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: March 7, 2024, 9:00 A.M.
APPEARANCES: Complainant Lisa Frost appeared on her own behalf; Nils Bjelde, principal owner, appeared on behalf of Respondent
ADMINISTRATIVE LAW JUDGE: Roger Geddes
EXHIBITS ADMITTED INTO EVIDENCE: None submitted
_____________________________________________________________________
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 November 28, 2023, Lisa Frost (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 Phoenix, Arizona (“project”).
3. The Registrar performed an inspection of the project on December 14, 2023, and confirmed the following:
Complaint Item: 1- We have been under contract since May 12 2021, the project did not get started until April 13 2023. The project was estimated to take 10-12 weeks. It has now been 32 weeks +.;
Investigator’s Observation: The ROC does not require the project to be completed by the completion date, and only requires an estimated completion date be listed in the contract. However, if a completion date is listed in the contract, this could be a breach of contract violation, which could be pursued in a civil venue.
Governing Rule: N/A
Complaint Item: 2- Nils Bjelde is the owner of Bjelde Construction LLC, and informed us that he does not have our funds allocated for our project. He does not have any of the $105,000.00 dollars that we have paid according to the contract. He explained he does not have the funds to move forward on our project.;
Investigator’s Observation: Verified. The Complainant alleges abandonment. The Respondent’s Contractor’s license is revoked as of this jobsite inspection. I observed the addition to the Complainant’s residence appears to be in the rough framing stage and is not dried in. The underground plumbing and top out appears to be complete. Rough electrical, insulation, nor interior finishes, exterior finishes, roofing, interior and exterior doors and windows have been installed or have been delivered to the jobsite. Additionally a full bathroom inside the residence was demolished down to the studs and is nonfunctional.
Governing Rule: Workmanship 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: 3- Nils Bjelde has also let us know that his bond/insurance will no longer be in effect or is no longer in effect and that he is currently at risk of losing his license through the ROC.
Investigator’s Observation: The complaint item is statement of a conversation between the Respondent and Complainant. The Investigator would have no firsthand knowledge of this.
Governing Rule: N/A.
4. Thereafter, considering that Respondent’s license had at that time been revoked, the Registrar then issued a Citation to Respondent, dated December 19, 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)(3) (violation of Arizona Administrative Code Rule 4-9-108 for failure to perform work in a professional and workmanlike manner);
5. The Registrar issued a Notice of Hearing that set a hearing for March 7, 2023, at 9:00 A. M.
6. At the March 7, 2023 hearing, Complainant testified on her own behalf; Respondent presented the testimony of Nils Bjelde, Principal Owner. Robert Di Alto, the Registrar Investigator (Investigator) testified on behalf of the Registrar. Neither party submitted exhibits.
7. The Investigator testified on behalf of the Registrar consistently with his job inspection notes. He stated he observed the project to be only in the framing stages and that he became aware that Respondent’s license had been revoked. He stated he cited Respondent for poor work due to the lack of diligence in proceeding with the work.
8. As herein relevant to the Citation, Lisa Frost testified that she committed funds for the construction of a suite for her retirement years but that the project was constantly delayed. She stated she was asked to pay another $35,000.00 which she did but little progress was made.
9. As herein relevant to the Citation, Nils Bjelde testified on behalf of Respondent that everything Complainant testified to was true. He stated he was not actively involved in the project but he was told permitting took over a year. He also stated framing was not properly done, but his involvement was limited when he broke his ankle.
10. 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 its right to prosecute its 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.
...
3. Violation of any rule adopted by the registrar.
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6. With regard to the “violation of any rule adopted by the registrar” under A.R.S. § 32-1154(A)(3) referenced in the Citation, the rule allegedly violated in this case is Arizona Administrative Code Rule 4-9-108(A) which requires that “[a] contractor shall perform all work in a professional and workmanlike manner.”
7. 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 installation as required, and there was no evidence presented of a legal excuse for failing to do so.
8. A.R.S. § 32-1154(A)(3). Complainant has failed to present sufficient evidence to establish that Respondent failed to perform all work in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3). The Investigator testified this alleged violation was due to delay on the project. However, the Tribunal does not believe that delay in a project and ultimate abandonment were intended to also constitute a failure to perform work in a professional and workmanlike manner.
9. 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 continues to 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, 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]
Lisa Frost
2825 E. Winchcomb Dr.
Phoenix, AZ 85032
[email redacted]
Bjelde Construction, LLC
P.O. Box 50962
Tempe, AZ 85208
[email redacted]
By: OAH Staff