ALJDEC decisions subject to certification as final

08F-1828-ROC · Registrar of Contractors · 2009-02-03

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 29, 2009.

APPEARANCES: >The Complainants appeared in their own behalf. >The Respondent was represented by its attorney, Michael D. Curran, Esq.

ADMINISTRATIVE LAW JUDGE: Robert I. Worth _____________________________________________________________________

Based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made.

FINDINGS OF FACT

1. At the outset of the scheduled hearing, a requested amendment to the filed Complaint, the issued Citation, and the case caption was permitted by the Administrative Law Judge so as to reflect that Javier Vega, who is the brother of the originally named Complainant, Salvador Vega, and shares ownership in the subject property, was and is an additional named Co-Complainant in this administrative action.

2. As a preliminary matter, prior to the introduction of any evidence or testimony on the merits, counsel for Respondent made a Motion to Dismiss the within

Citation and Complaint based upon the express provisions of the applicable Statute of Limitations contained in A.R.S. §32-1155. Oral arguments in support of and in opposition to the granting of Respondent’s Motion were presented to the tribunal. Since only the Registrar of Contractors is empowered to dismiss any pending disciplinary action and since the undersigned Administrative Law Judge has been persuaded that a granting of Respondent’s aforesaid Motion is fully warranted under all the circumstances, the scheduled hearing was thereupon recessed so as to enable the preparation and submission of the within Decision and Recommended Order to the forwarding agency for appropriate further action.

3. It was not disputed that the formal written administrative complaint in this action was filed with the Registrar of Contractors by one of the Co-Complainants on January 17, 2008.

4. As set forth in the filed complaint, certain well drilling work on Complainants’ property was performed by Respondent pursuant to an agreement between the parties in early February 1997, the last of such work being completed on March 16, 1997. The agreed total cost price of $5,780.00 was stated to have been fully paid to Respondent by Complainants.

5. The completed drilling work was the subject of a written report required to be filed and recorded with the Arizona Department of Water Resources with respect to all well drilling work. Such report was duly filed by Respondent on March 17, 1997, one day after the performance of the last jobsite work. It appeared, therefore, that any allegedly deficient or wrongful actions by or attributable to Respondent, including the report filing, would have been committed prior to, but in no event later than March 17, 1997, a point in time that was almost eleven years before the within complaint was filed. ……. …….

6. The contractual undertaking by Respondent encompassed only the drilling of a well with perforated casing and did not include the energizing of any electrical system, any other related electrical work or any pump selection and installation work.

7. For a much prolonged time duration, Complainants took no further steps to apply for a building permit or otherwise to make arrangements for any structure to be built on the subject property. It was not until late 2005 that a building permit was applied for, and electric service was first obtained in early 2006. Some time afterwards, after various efforts were made to utilize the well, Complainants subsequently discovered the existence of a condition presently claimed to be deficient and substandard, allegedly attributable to the prior drilling work by Respondent. It was uncontroverted that Respondent performed no further work on the installed well after 1997.

8. It was not demonstrated that, during the intervening time period, any actions or course of conduct on the part of or attributable to Respondent took place that would tend to impact upon or to induce a delay in Complainants’ decision to file the within administrative complaint. In fact, almost two more years elapsed after the time of discovery or reasonable discovery of a potential problem with the well in early 2006 before any such formal complaint filing. Therefore, no valid reason is determined to exist for any finding that the applicable period of limitations should be elongated or that Respondent should be estopped or precluded from asserting this available affirmative defense to the within Citation and Complaint.

9. In its formal answer to the issued Citation and again at the administrative hearing Respondent has asserted the expiration of the applicable Statute of Limitations time period as an affirmative defense hereunder. It is found and determined that the operation of the applicable statutory provisions effectively bars the pursuit at this time by Complainants of any administrative remedies before this tribunal based upon the

1997 allegedly wrongful actions of Respondent and also prevents the Registrar of Contractors from entertaining the underlying filed complaint in this matter.

10. Nothing in the decision and recommended ruling on Respondent’s Motion to Dismiss is intend to impact upon the potential existence, if any, of available civil remedies for Complainants or upon their pursuit of possibly available remedies before another administrative tribunal at the present time.

CONCLUSIONS OF LAW

1. The express provisions of A.R.S.§32-1155(A), as in effect at the time of the agreed and performed work by Respondent,[1] provide for 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 which is cause for suspension or revocation of a license….” (Emphasis added).

2. The above-referenced code section of the State’s Contracting Laws, like any Statute of Limitations, 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 vs. Ross, 96 Ariz. 249, 393 P.2d 933 (1964); 1 Wood on Limitations, 4th Ed., Sec. 4. Such statute must be strictly construed and runs from the date of completion of the work which is the subject of the complaint or the date of occupancy of the structure and not from the date of discovery of the alleged wrong. Lyon vs. Great American Insurance Company, 4 Ariz. App. 596, 422 P. 2d 724 (1967). ……. ……. 3. The allegedly wrongful acts or substandard construction giving rise to any and all well drilling complaints or the filing of any required reports were committed, if at all, on, prior to or shortly after the date of completion of such drilling work. Consequently, it was adequately demonstrated that the statutory time period would commence and did commence many years before the subsequent filing of any formal complaint with the Registrar and further that the provisions of A.R.S.§32-1155(A) would effectively bar or preclude any administrative action before or through the Registrar of Contractors with respect to such complaint items.

4. The determination that the within filed complaint as to all matters in issue was not timely asserted and formally filed provides a sufficient basis for the sustaining of Respondent’s Motion to Dismiss the Citation and Complaint based upon the expiration of the applicable period of limitations.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that the Motion by or on behalf of Respondent to Dismiss this matter based upon the expiration of the applicable period of limitation be GRANTED and that the entire Citation and Complaint in Case Number 08-1828 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 forty (40) days from the date of that certification.

Dated: February 3, 2009. OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Robert I. Worth Administrative Law Judge

Original transmitted on _____________________

by: _____________________________ , to:

Armando Contreras, Director Registrar of Contractors 3838 North Central Avenue (Suite 400) Phoenix, AZ 85012 - 1906 ----------------------- [1] The provisions of a recently effective statutory amendment to the above- cited statutory provision becoming effective on September 19, 2007 would appear not only to be inapplicable to construction work previously performed but also to render the March 17, 1997 commencement date for the running of the statutory time period unchanged under the facts of this case.

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