ALJDEC decisions subject to certification as final

07F-G0323-ROC · Registrar of Contractors · 2007-12-20

STATE OF ARIZONA OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 12, 2007

APPEARANCES: Andrew M. Berry appeared on his own behalf; Respondent was represented by Kim Roser, Litigation Manager, who was accompanied by Chuck Meyer, General Manager, Customer Relations and Special Operations, and Toby Loughrige, Senior Manager, Customer Relations and Special Operations.

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant Andrew Berry brings this action regarding workmanship on a home built and sold to him by Respondent Del Webb Communities, Inc. On the date noted above, this tribunal held a hearing at the start of which the parties resolved certain issues and raised a preliminary, potentially dispositive issue that required this tribunal’s ruling before the case could proceed. The issue was resolved when this tribunal heard evidence and testimony as noted below and made the ruling described below. Pre-Hearing Motion to Dismiss At the start of the hearing, Respondent raised an issue as to whether or not the Registrar of Contractors (ROC) and this tribunal have authority to hear this matter in light of the two-year complaint deadline imposed by Arizona Revised Statutes (A.R.S.) § 32-1155(A). This tribunal took testimony and evidence on that issue during a pre-hearing evidentiary hearing and finds the following facts: Respondent built and sold to Complainant the house that is the subject of this complaint. Complainant and Respondent closed escrow on the home on December 31, 2002. In early December 2004, Complainant filed with the ROC complaint number 05-1091, which was filed against Respondent and alleged three workmanship items as violations. The complaint was assigned to ROC Inspector Bud Combs who attempted to set up an onsite meeting and inspection. However, Complainant is a catastrophe response insurance adjuster and was called out of state before the meeting could take place. He anticipated that he would be gone for some time and he discussed this with Inspector Combs. In February 2005, Inspector Combs sent to both parties a postcard-sized form (RC-C-018A) stating that the complaint was being closed. It did not explain what that term meant or what Complainant’s rights were with regard to that file closure. Complainant credibly testified that Inspector Combs verbally told him that he could re- open the complaint “when he got back in town.” Complainant was gone for quite some time. He testified that he came back to the Phoenix metro area in the summer of 2006. He contacted the ROC about his complaint against Respondent and was advised to file a new complaint to re-open the matter. He did so on August 23, 2006. The new complaint simply incorporates by reference complaint 05-1091. The ROC numbered the new complaint G07-0323 and processed it. After a number of attempts to schedule an onsite inspection,[1] ROC Inspector Jim Dimond performed an inspection on March 1, 2007. On March 6, 2007, Inspector Dimond sent the parties a form letter (RC- C-07) stating that the ROC was taking no action on the complaint because of the two-year complaint period. Complainant then requested a hearing, indicating that he had been advised that he could re-open the 05-1091 complaint when he returned and had been advised to file the G07-0323 complaint as a mechanism for re-opening the closed complaint. Complainant credibly testified at the hearing that at no time was he advised of the two-year deadline, nor was he advised that he could not re- open his complaint after a certain amount of time. Complainant’s testimony in this regard is credible and no evidence to the contrary was submitted.

. . . Arizona Revised Statutes § 32-1155(A) imposes a two-year deadline for filing complaints against contractors.[2] This period usually begins at about the date that escrow closes, which in this case was December 31, 2002. Thus, complaint 05-1091 was within the two-year period and complaint G07-0323 was not. This tribunal finds, and so informed the parties at the hearing, that in this unique and unusual situation the two-year deadline cannot be used to bar the complaint in this matter, because the complaint consists of the 05-1091 complaint, which was timely made, and Complainant was not informed that there was a limit to his ability to re-open his complaint. Thus, the G07-0323 complaint is merely the vehicle used to re-open the 05-1091 complaint; it was not an original complaint. If it had been an original complaint, or contained new items, it would have been barred by the two year statutory deadline. So, Complainant is not barred from bringing the substance of complaint 05-1091 to hearing, and neither this tribunal nor the ROC is precluded from issuing a decision. Respondent’s motion to dismiss was, thus, denied. However, Complainant must bear the responsibility for the extremely long period during which the complaint sat idle. To recognize the awkward position that this long period put Respondent in, this tribunal limited the scope of the evidence to the condition of the complaint items up through the year 2005. Therefore, Complainant was required to show a violation by Respondent prior to December 31, 2005. Pre-Hearing Resolutions Once the above rulings were made (denial of dismissal and limitation on scope of hearing), the parties discussed amongst themselves the merits of the three complaint items: (1) retaining wall, (2) windows, and (3) countertops. The parties then reached settlement as to items (2) and (3). Thus, the hearing went forward as to item (1) only. Hearing After the above events, the formal hearing began and the parties submitted testimony from ROC Inspector Jim Dimond, Complainant Andrew Berry, and Respondent’s Senior Manager Toby Loughrige, and presented documentary evidence, including the ROC complaint file for this matter (G07- 0323), the complaint form filed by Complainant designated 05-1091, and Complainant’s Exhibits A, B, and C (photographs). Having considered the evidence and testimony and, based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order finding no violation by Respondent. FINDINGS OF FACT 1. Respondent Del Webb Communities, Inc. is the holder of a class B general residential contractor license (No. 065341) issued by the Registrar of Contractors. That license authorizes Respondent to perform general residential construction of a structure or appurtenance, except for certain specialty contracting such as electrical, plumbing, swimming pools, etc.[3] 2. Respondent built Complainant’s house. Item (1) in the complaint at issue concerns an allegation that the retaining walls and block fencing on the property are deteriorating. In support of his allegation, Complainant submitted photographs of the retaining wall and fence as Exhibits A and B. These photographs show a small portion of the fence just above the grade line and a small portion of the retaining wall just below the grade line. Complainant testified that he believed, but was not sure, that these photos were taken in the summer of 2004. His level of certainty was not high, and this tribunal cannot find by a preponderance that the photographs were taken in 2004. Thus, these photographic exhibits, to the extent they might show a violation, do not support Complainant’s allegation because they cannot be said to show the condition of the wall during the relevant time period: prior to the end of the year 2005. 3. Complainant did not submit any other evidence that shows a violation prior to the end of 2005 with regard to the retaining wall. He testified about the condition of the wall, but he admitted that he has no expertise in the standards for retaining walls. He testified that he “feels” the wall was not built correctly, but it is incumbent on Complainant to provide objective proof for this conclusion. He testified that his conclusion was based on a conversation he had with workmen who came out to the property, but he did not provide sufficient information as to when that occurred, who the workmen were, and why their opinions carry weight. The conversation is hearsay and Complainant has not provided sufficient information for this tribunal to find that it is reliable hearsay. Thus, it cannot serve as proof of his claim. 4. ROC Inspector Jim Dimond testified about his inspection in March 2007. However, his testimony was not related to the relevant time period of 2003-2005 and, in any event, Inspector Dimond concluded that Respondent was not the cause of any deterioration the wall may be experiencing. He testified that had he issued a Corrective Work Order in this case, he would not have ordered correction of the retaining wall because he concluded that the neighbor’s watering habits were the likely cause of any problems. 5. Finally, Toby Loughrige, Respondent’s Senior Manager for Customer testified that he had inspected the site in the fall of 2006; however, this inspection did not relate to the relevant time period of 2003-2005. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[4] Further, the standard of proof at hearing is by preponderance of the evidence.[5] Therefore, Complainant bears the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint.[6] Complainant has not met that burden. 2. The evidence does not show that the retaining wall built by Respondent was improperly built such that a violation of Respondent’s statutory duties occurred. Indeed, there is no persuasive evidence showing any workmanship problem with the wall prior to the end of the year 2005. 3. Complainant has failed to prove a violation of statute by Respondent. RECOMMENDED ORDER Based on the foregoing, it is hereby recommended that the Citation and Complaint against Respondent Del Webb Communities, Inc. in case G07- 0323 (and by incorporation 05-1091) be dismissed.

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 35 days from the date of that certification.

Done this 20th day of December 2007.

Office of Administrative Hearings

______________________________ Eric A. Bryant Administrative Law Judge

Original mailed this ___ day of December 2007, to:

Fidelis V. Garcia Registrar of Contractors Legal Department 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________ ----------------------- [1] Some of the postponements of the inspection were not requested by Complainant. [2] A.R.S. § 32-1155(A) provides in part: Upon the filing of a written complaint with the registrar charging a licensee with the commission, within two years prior to the date of filing the complaint, of an act that is cause for suspension or revocation of a license, the registrar after investigation may issue a citation or upon written request of the complainant may issue a citation directing the licensee, within ten days after service of the citation upon the licensee, to appear by filing with the registrar the licensee's written answer to the citation and complaint showing cause, if any, why the licensee's license should not be suspended or revoked.

[3] See, Arizona Revised Statutes (A.R.S.) § 32-1102 and Arizona Administrative Code (A.A.C.) R4-9-103 for a description of license classifications. [4] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [5] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [6] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

-----------------------

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826