ALJDEC - Licensing
2023A-12920-CHC-ROC · Registrar of Contractors · 2024-03-20
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Larry J Whitesell ,
COMPLAINANT
v.
Bjelde Construction LLC
License No. ROC 260364,
RESPONDENT
No. 2023A-12920-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: March 11, 2024
APPEARANCES: Larry J. Whitesell, Complainant, represented himself. Nils Bjelde, member, represented Respondent.
ADMINISTRATIVE LAW JUDGE: Greg Hanchett
EXHIBITS ADMITTED INTO EVIDENCE: Complainant’s Exhibits 1 through 5 as well as the administrative record attached to the notice of hearing submitted to the Office of Administrative Hearings.
Complainant has alleged that Respondent violated A.R.S §§ 32-1154 A1, A10 & A.C.C. R4-9-108(a), and ARS § 32-1154 (A)(22). At the hearing in this matter, ROC Inspector Robert Di Alto, Complainant Larry Whitesell, Respondent’s representative Nils Bjelde, and Edward Scheidell all testified under oath. For the reasons that follow, this tribunal finds that Complainant has sustained his burden of proof and has demonstrated that Respondent violated the alleged statutes and that sanctions against the Respondent’s license are warranted.
FINDINGS OF FACT
1. At all times material to this case, Respondent has been a licensed Arizona contractor holding license number 260364 issued by the Arizona Registrar of Contractors (ROC).
2. Complainant and Respondent entered into a contract in August, 2022 for work to be performed at Complainant’s home located in a residential zoning area in Phoenix, Arizona. The agreed upon price for the project was $113,798.00. Complainant paid $34,439.60 to Respondent on the contract.
3. Included in the work called for by the contract was an agreement for Respondent to complete an electrical service panel upgrade to Complainant's home. The panel upgrade was approved by Arizona Public Service and a permit issued by the city of Phoenix on October 28, 2022 for the installation of that panel. Exhibit 5. Complainant paid half of the cost for performing the upgrade to the panel. Despite this, Respondent never installed the upgraded panel. Respondent’s representative conceded these points during the hearing.
4. In addition, the contract included Respondent building a casita / pool house at Complainant’s residence. To accomplish this, permits had to be obtained and engineering plans for the casita / pool house had to be submitted to the city of Phoenix in order to obtain the permits. Complainant also paid Respondent a down payment for this work.
5. Complainant’s ability to have the casita / pool house built with all the accoutrements he desired was hampered because of city zoning codes in place at the time the project began which prevented obtaining permits to install those accoutrements. Complainant was also aware that the city of Phoenix was contemplating changing its zoning regulations to allow the accoutrements to be permitted and installed in a residential zoning area.
6. As a result, Complainant asked Respondent to hold off on submitting the engineered plans to the city of Phoenix to obtain the additional permits until such time as the city of Phoenix had amended its planning and zoning code requirements to allow permitting of the accoutrements. Approximately 3 weeks after Complainant asked Respondent to hold off on submitting the plans to the city, the city changed the city code to allow for permitting of the additional accoutrements.
7. Immediately after the code change, Complainant instructed Respondent to move forward with submitting the plans to the city. Respondent, however, never submitted the plans to the city.
8. As a result of Respondent’s failure to complete the electrical panel upgrade and to proceed with getting the plans submitted to the city or to get the permits from the city, Complainant filed the instant complaint with the ROC. The ROC assigned inspector Robert Di Alto to investigate the complaint.
9. Di Alto noticed a job inspection date for December 4th, 2023 at 10:30 AM. Respondent could not be there but Respondent’s representative, Edward Scheidell, was present.
10. As a result of the inspection, Di Alto issued a corrective work order to the Respondent on December 5th, 2023. In the directive, Di Alto sustained two of Complainant’s four complaints.
11. In Complaint Item 1, Di Alto noted that the electrical service panel upgrade had been approved and permitted but had not been installed even though Complainant had paid half of the estimated costs. In Complaint Item 2, Di Alto found Respondent had been paid a deposit to prepare the architectural engineering plans that were submitted to the city at Phoenix and that after the plans have been returned for corrections, Respondent never resubmitted them to the city of Phoenix for approval. Di Alto also noted that no work had been performed on the project and the building permits had not been approved or issued as of the time of the inspection on December 4th.
12. In the corrective work order, Respondent was given until. December 22, 2023 to undertake the corrective actions prescribed in the December 5th directive. Despite the directives, Respondent undertook no corrective action and made no efforts to make alternative arrangements to have the work completed.
CONCLUSIONS OF LAW
1. This matter lies within the Registrar’s jurisdiction. A.R.S. § 32-1101 et seq.
2. Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazzano v. Superior Court, 74 Ariz. 369, 372 (1952). “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960).
3. The evidence established preponderantly that Respondent submitted a bid for
Complainant’s project and accepted down payment for both the electrical panel upgrade and the casita / pool house project but did not perform the work. Accordingly, Complainant established that Respondent abandoned the contract and failed to complete the project in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(1) and A.R.S. § 32-1154(A)(3) namely A.A.C. R4-9-108(A) or (B).
4. The evidence also established that Respondent did not attempt to undertake the corrective work following the December 5, 2022 directive being issued. 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).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License No. 260364 for a period of two (2) days. It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 32-1154(E). 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 final order in this matter, 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 A.R.S. § 32-1101(A)(5), unless Respondent tenders payment of any outstanding prior civil penalty.
Done this day, March 22, 2024.
/s/ Greg Hanchett
Chief Administrative Law Judge
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.
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole
Registrar of Contractors
c/o Legal Department
1700 W. Washington Street, Suite 105
Phoenix, AZ 85007
[email redacted]
Larry J Whitesell
7120 N 20th St
Phoenix, AZ 85020
[email redacted]
/ / /
Bjelde Construction LLC
PO Box 50962
Tempe, AZ 85208
[email redacted]
By: OAH Staff