ALJDEC decisions subject to certification as final

08F-1867-ROC · Registrar of Contractors · 2008-12-11

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 9, 2008 APPEARANCES: Complainant appeared on his own behalf; Qualifying Party Bonifacio Alaniz appeared for Respondent. ADMINISTRATIVE LAW JUDGE: Michael G. Wales _____________________________________________________________________ Evidence and testimony were presented and, based on the entire record in this matter, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT 1. This matter convened for hearing at the time, date and place set forth in the Registrar of Contractors’ Notice of Hearing dated November 4, 2008. 2. Complainant Milford Cunningham (“Complainant”) is the owner and occupant of a residence located at 7035 E. Juniper Village Drive in Apache Junction, Arizona. 3. Respondent Courtesy Tile, LLC (“Respondent”) is an Arizona limited liability company which holds Arizona Contractor’s License No. 169459, Class C-48 (Residential Ceramic, Plastic and Metal Tile) issued by the Registrar of Contractors on October 25, 2001. Bonifacio Alaniz is a member of the limited liability company and is the qualifying party for the license. 4. Complainant filed a complaint with the Registrar of Contractors on December 29, 2007, wherein he alleged that Respondent had failed to install a plastic underlayment as agreed prior to the installation of slate tiles in December, 2004 on Complainant’s view deck, and, as a result, later in the same month, after a rain, a white residue was emitted from the grout and/or underlaying cement. Complainant alleged that the white residue appears after rains and stains the slate tile. 5. On February 27, 2008 Registrar of Contractors Inspector Beau Cruz issued a letter to the Complainant and Respondent opining that Complainant’s complaint was filed beyond the two (2) year statute of limitations for Registrar of Contractors disciplinary matters. 6. On March 9, 2008. Complainant sent correspondence to the Registrar of Contractors disputing Inspector Cruz’ opinion that the complaint was filed outside of the statute of limitations and requesting a formal citation and complaint be issued. 7. On July 10, 2008, the Registrar issued a CITATION AND COMPLAINT in Case No. 08-1867 charging Respondent with possible violations of A.R.S. § 32-1154A (7) and (3)(namely, A.A.C. R4-9-108). 8. The matter was set for the instant hearing before the Office of Administrative Hearings, an independent state agency. 9. From the evidence presented by Complainant at the hearing, the following salient facts are important to note: a. On or about June, 2004 Complainant purchased a newly constructed home and moved into the home. As a part of the sales agreement Complainant had the seller hire Respondent to remove and replace slate tile on a leaking 2000 square foot view deck. b. The removal and replacement work began and commenced in December 2004. c. Respondent failed to place a plastic sheet under the cement during the installation, despite agreeing to do so in his contract with the seller. d. Respondent removed and replaced approximately 200 square feet of tile on the view deck in January, 2007, at the request of the roofer, to address a possible water leak in connection with roofing work done by another contractor. Complainant testified that he does not allege any workmanship issues, or problems arising from, the January, 2007 repair by Respondent. 10. Respondent testified that the plastic underlayment was not necessary when the 2000 square feet of tile was laid in December, 2004, as the roof was hot-mopped and already water-proofed.

CONCLUSIONS OF LAW 1. Prior to September 19, 2007 Registrar of Contractors Complaints were required to be filed within two years from the earlier of occupancy or discovery of the defect. On September 19, 2007, A.R.S. § 32-1155(A) was revised. Pursuant to the revised A.R.S. § 32-1155(A), Complaints filed after September 19, 2007 are time barred if filed more than two (2) years after the earliest of one of three triggering events. The statute states: “The two year period prescribed by this section shall commence on the earlier of the close of escrow or actual occupancy for a new home or other new building construction and otherwise shall commence on completion of the specific project. In the case at hand, occupancy occurred in June, 2004; the specific project was completed in December, 2004; and the complaint was filed on December 29, 2007, therefore the instant complaint is barred by the statute of limitations and must be dismissed. [1]

RECOMMENDED ORDER Based on the foregoing, the Administrative Law Judge makes the following Recommended Order: It is recommended that no discipline be imposed against Courtesy Tile’s license (No. 169459), and that the Citation issued in Case Number 08- 1867, together with the Complaint upon which it is based, 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 40 days from the date of that certification. .

Done this day, December 11, 2008.

Office of Administrative Hearings

__________________________ Michael G. Wales Administrative Law Judge

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

Registrar of Contractors Armando Contreras 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________

----------------------- [1] Complainant’s assertion that Respondent performed repair work in January, 2007 (more than 2 years after the work was completed) to 200 square feet of the view deck is insufficient to trigger the running of a new two year statute of limitations as Complainant testified that he has no complaints of deficient workmanship as to any of the repair work performed by Respondent at the request of the roofer in January, 2007.

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