ALJDEC decisions subject to certification as final

07F-T1215-ROC · Registrar of Contractors · 2008-05-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 7, 2008, at 1:30 p.m. APPEARANCES: The Complainants appeared through Byron Hays. The Respondent appeared through its authorized representative, David Parker. ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and, based upon the entire record; the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. Respondent is the holder of a Class C-8 License issued by the Registrar of Contractors. 2. This is a residential matter where in June, 2000, the Respondent installed a new wood floor in the Complainants’ residence. 3. The Complainants became increasingly dissatisfied with the appearance of the wood floor in their dining area and notified the Respondent of their concerns. 4. In late 2002, the Respondent inspected the wood floor and found that a portion of the wood floor had been installed over a depression in the substrate. Although the applicable two year statute of limitations had run the Respondent found the wood floor in the dining area of the Complainants’ residence had not been properly installed and agreed to correct the areas of the dining area floor that was unsatisfactory. 5. Credible testimony and evidence, presented at hearing, established the Respondent ordered over sixty (60) square feet of replacement flooring and in March 2003, the Respondent removed and replaced approximately thirty five (35) square feet of wood flooring in the Complainant’s dining area. 6. Credible testimony and evidence, presented at hearing, established the Complainants observed that their flooring continued to deteriorate and notified the Respondent of their concerns in late 2006. 7. There was no dispute that in December 2006, the Respondent performed corrective work on approximately three to four (3 to 4) square feet of wood flooring in the Complainants’ dining area. 8. The Complainants were dissatisfied with the appearance of their floor and on March 30, 2007, filed a formal Complaint, against the Respondent, with the Registrar of Contractors. 9. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection and issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainants’ residence. 10. The Corrective Work Order provides, in pertinent part, as follows: “1. David Parker of L & L Carpet agreed to correct/groom the bedroom carpet seams by appropriate means. 2. Section 42-1155A of the Arizona Revised Statutes provides, among other things, “Upon the filing of a written complaint with the Registrar of charging a licensee with the commission, within two years prior to the date of filing the complaint, of an act which is cause for suspension or revocation of a license… The two year period for filing of a complaint begins with the date of occupancy or tendered for occupance, whichever occurs first. Both parties agree that the wood flooring at the “eating area” near the kitchen was repaired during the past two years (12/06) and is now loose and lifting. Correct by appropriate means. The remaining defects and areas with defects are beyond this agency’s two year jurisdiction.” 11. The Respondent performed corrective action on the Complainants’ carpet and declined to perform further work on the Complainants’ wood floor. 12. On June 18, 2007, the Complainants filed a request for an administrative hearing which provides, in pertinent part, as follows: “On June 13, 2007, Mr. Parker arrived at my house at 3:14 p.m. and left at approximately 3:30 p.m. He trimmed the carpet in the bedroom. The two highly visible seams at the door entrance were left untouched. (This new carpet was installed by L & L in May 2006). The wood floor which was clearly marked in the eating area was left untouched. Mr. Parker stated: “These floors are 6 years old. Solid hardwood maple floors should last many years to come, especially with a price tag of over $14,000.00 plus.” 13. Credible testimony and evidence, presented at hearing, established the Complainants’ carpet has been corrected to within applicable industry and workmanship standards. 14. The credible testimony and evidence or record failed to disclose any conduct on the part of the Respondent which would preclude or estop its assertion of the statute of limitations as a defense in this matter. 15. Credible testimony and evidence, presented at hearing, established the only construction work performed by the Respondent on the Complainants’ wood floor within two (2) years of the filing of the Complaint at issue was the repair of approximately three to four (3 to 4) square feet of wood flooring. 16. Credible testimony and evidence, presented at hearing, established the approximately three to four (3 to 4) foot area of the wood floor in the dining area that was repaired by the Respondent during the month of December, 2006, is within applicable industry and workmanship standards. CONCLUSIONS OF LAW 1. A.R.S. Section 32-1155A provides, in pertinent part, as follows: “Upon the filing of a compliant 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 upon a licensee…” 2. This section like any other statute of limitation is a statute of repose, enacted as a matter of public policy in Arizona to fix a time within which complaints must be filed. Ross v. Ross, 96 Ariz. 249, 393 P. 2d (1964); I wood on Limitations. 4th Ed., Sec. 4. Such statutes must be strictly construed and commences to run form the date of the occupancy of the work which is the subject of the filed complaint. Op. Atty. Gen. No. I79-119 (April 25, 1979). 3. The Respondent’s work on the Complainants’ wood floor which occurred during the years 2000 and 2003 was performed more than two years prior to the filing of the instant Complaint and the Complainants’ right of action before the Registrar of Contractors for this work is effectively barred by the provisions of the applicable statute of limitations which has been timely, and affirmatively, asserted by the Respondent. 4. Credible evidence, presented at hearing, supported a finding that construction work performed by the Respondent on the Complainants’ wood floor during December 2006, is within applicable industry and workmanship standards. 5. The Complainants have the burden of demonstrating by a preponderance of the evidence that the Respondent violated the charged sections of the State’s Contracting laws. See Culpepper v. State of Arizona, 187 Ariz. 431, 437-38, 930 P.2d 508 (Ariz. App. 1996). 6. Proof by “preponderance of the evidence” means that it 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, 654 (9th Cir. BAP (Ariz.) 1994). 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). 7. The Complainants failed to sustain their burden of proof to establish that the Respondent violated the applicable charged sections of the State’s Contracting laws. Therefore, the evidence of record does not sufficiently sustain a finding of violations by the Respondent of the provisions of A.R.S. §32-1154A, as charged in the Citation. RECOMMENDed order In view of the foregoing, it is recommended this matter be dismissed. In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the order will be 40 days from the date of the certification. Done this day, May 16, 2008.

______________________________________ M. Douglas Administrative Law Judge

Original transmitted by mail this ____ Day of ____________, 2008, to:

Registrar of Contractors Fidelis V. Garcia 3838 N. Central Ave., Ste. 400 Phoenix, AZ 85012-1906

By ___________________________ -----------------------

Office of Administrative Hearings 100 N. Stone Avenue, Suite 704 Tucson, AZ 85701 (520) 628-5488 Fax: (520) 628-5575 www.azoah.com