ALJDEC decisions subject to certification as final

08F-3275-ROC · Registrar of Contractors · 2009-04-16

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 14, 2009 APPEARANCES: Complainant appeared on his own behalf; Respondent The Ryland Group was represented by attorney Judith Downs; Respondent Paramount Windows appeared through authorized employee Howard Hiebert. ADMINISTRATIVE LAW JUDGE: Michael G. Wales _____________________________________________________________________ Evidence and testimony were presented and, based upon the entire record in this matter, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT 1. At hearing, Respondent The Ryland Home Group, Inc. (“Respondent Ryland”) expressly renewed its previously filed motion for a dismissal of Complainant’s complaint, as filed, based upon the expiration of the applicable two-year Statute of Limitations period set forth in A.R.S. § 32-1155(A). 2. Joining with Respondent Ryland’s Motion, Respondent Paramount Windows Corporation (“Respondent Paramount”) orally moved to dismiss Complainant’s complaint as well. 3. Oral argument in support of and in opposition to the granting of Respondents’ Motions, as well as some testimonial and documentary evidence relating to the issues posed by the motion, were presented to the tribunal. On the issue of the statute of limitations, the facts that follow were demonstrated at the hearing. 4. Respondent Ryland is the holder of License No. 059839, a Class B- contracting license issued by the Registrar of Contractors (“Registrar”). 5. Respondent Paramount is the holder of License No. 107306, a Class C-65 contracting license issued by the Registrar. 6. Respondent Ryland constructed a home at 8422 W. Hilton Ave (the subject property) in Tolleson, Arizona and sold the newly-constructed home to its first occupants, Hugo and Gabriela Ponce, on October 7, 2002. Respondent Paramount had manufactured the windows for the home. No evidence was presented to indicate that Respondent Ryland performed any further work on the home after October 7, 2002. 7. Complainant James Reed (“Complainant”) purchased the home at 8422 W. Hilton Ave from Mr. and Mrs. Ponce on October 31, 2005. 8. Shortly after purchasing the home, Complainant observed moisture problems at or near the windows. 9. On February 13, 2006, responding to Complainant’s moisture concerns, Respondent Paramount replaced the seals in the windows for Complainant. No further work was done on the home by Respondent Paramount after February 13, 2006. 10. Complainant continued to observe moisture problems at or near the windows. 11. On March 4, 2008, Complainant filed a Complaint against Respondent Ryland alleging “poor workmanship causing mold in the home.” The Registrar designated the complaint as Case No. 08-3275. 12. On March 4, 2008 Complainant filed a separate Complaint against Respondent Paramount alleging “poor workmanship on windows/installation.” The Registrar designated that complaint as Case No. 08-2873.

CONCLUSIONS OF LAW 1. At these administrative hearings, the complaining party generally has the burden of proof, Vazzano v. Superior Court, 74 Ariz. 369, 249 P.2d 837 (1952) and the standard of proof on all issues is by a preponderance of the evidence. Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (1996). See also Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (1985); Utah Construction Company v. Berg, 68 Ariz. 285, 205 P. 2d 367, (1949); Rule R2-19-119, A.A.C. 2. 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). 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 (6th ed. 1990). 3. A.R.S. § 32-1155(A) (effective until September 19, 2007) stated: 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 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. (Emphasis added). 4. A.R.S. § 32-1155(A) (effective September 19, 2007) added a clarification of the triggering event for the commencement of the statute of limitations and states: 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 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… The two year period prescribed by this subsection shall commence on the earlier of the close of escrow or actual occupancy for new home or other new building construction and otherwise shall commence on completion of the specific project. (Emphasis added). 5. Under either application of A.R.S. § 32-1155(A), it is determined that the complaints filed by Complainant on March 4, 2008 were untimely. The grounds for Respondents’ Motions to Dismiss are valid and a granting of the Motions by the Registrar is appropriate and fully warranted hereunder.

RECOMMENDED ORDER Respondents’ Motions to Dismiss, based upon the expiration of the two-year time period set forth in the applicable Statute of Limitations provided under A.R.S. § 32-1155(A), are granted.

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.

Done this day, April 16, 2009.

Office of Administrative Hearings

__________________________ Michael G. Wales Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2009, to:

William A. Mundell, Director Registrar of Contractors c/o Legal Department 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________

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