ALJDEC decisions subject to certification as final

08F-M0276-ROC · Registrar of Contractors · 2008-12-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 11, 2008

APPEARANCES: Complainants appeared through Co-Complainant, Michael Collins (“Michael”) and Respondent appeared through its president and qualifying party, Kohn Cullimore (“Cullimore”). ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

FINDINGS OF FACT

1. Respondent was the countertop contractor retained by another subcontractor that was working on Complainants’ new home construction. Complainants allege certain deficiencies in the work performed and/or materials provided by Respondent and same are discussed in the findings below.

2. The following salient facts were adduced at the hearing and are important to note:

a. Michael is a general contractor and currently works for Home Depot, in their kitchen and bath remodel department. He testified to what he believes are numerous aspects of Respondent’s work which constitute substandard and unacceptable workmanship, including inadequate support of the countertop due to cutting out the sides of cabinets under the cook-top, use of particle board for the substrate, instead of plywood, inconsistent caulk lines, caulk lines that are too wide, chips in the cut lines, a large gap in the bullnose that was filled with a caulk type material, backsplash not set plumb, an area of backsplash not level, and uneven polish of the countertop surface. b. The Registrar of Contractors’ inspector assigned to this matter appeared at the hearing and presented testimony. After conducting a jobsite inspection, he issued a Registrar of Contractors’ form RC-C-007 form, indicating that he found the Complaint to have been filed beyond the two (2) years jurisdiction of the Registrar of Contractors. c. The inspector testified that Complainants had, in fact, filed basically the same Complaint against Respondent named herein in July 2005. The previous Complaint was closed, due to the failure of Complainants to request a hearing after the issuance of a Registrar of Contractors’ form RC- C-007 form on that Complaint. The instant Complaint was filed on August 22, 2007 and therefore, past the two (2) years permitted by statute and applicable law, for filing of Complaints with the Registrar of Contractors.

d. The inspector indicated that he discussed the statute of limitation issue with his immediate supervisor and they both agreed that the statute of limitation prevented the Registrar of Contractors from issuing anything other than the Registrar of Contractors’ form RC-C-007 form, indicating that the matter should be closed, unless Complainants made a timely request for hearing. e. After receiving the Registrar of Contractors’ form RC-C-007 form in the instant matter, Complainants requested a hearing. f. When it came time for Respondent to present its defense in this matter, Cullimore reiterated the testimony of the inspector, basically indicating that the instant Complaint was barred by the applicable statute of limitation regarding the filing of Complaints with the Registrar of Contractors. In addition, he disagreed with Complainants’ contention that there were any areas of Respondent’s work that were not capable of meeting minimum industry standards for acceptable workmanship.

3. Based on the facts presented herein, as well as the conclusions of law set forth below, it is determined and held that this Complaint was filed beyond the two year period in which Complainants may be filed with the Registrar of Contractors and thus, the matter should be dismissed.

CONCLUSIONS OF LAW

1. A.R.S. § 32-1155 (A) provides for the “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…” This section, like any statute of limitation, is a statute enacted as a matter of public policy in Arizona to fix a time within which complaints must be filed.

2. Although A.R.S. §32-1154 (A) was amended, effective September 19, 2007, the prior statute is found to apply to the instant matter, based on the date the work was performed, as well as the date of the filing of the instant Complaint.

3. Considering the law that was in effect at the time the work in question was performed, it is held that the date on which the statute of limitations commences to run may vary according to the parties involved, notwithstanding the fact that the date of commission of any act remains unchanged. The general rule in this regard, derived from the language of the Court of Appeals in Lyon v. Great American Insurance Company, 4 Ariz. App. 596, 422 P.2d 724 (1967), and confirmed in Op. Assistant Attorney General. No. I-79-119 (April 25, 1979) provides that the time to file a complaint with the Registrar of Contractors runs from the date of occupancy of the structure or discovery of the defect, whichever first occurs.

4. Clearly, by filing the first Complaint against Respondent, regarding the completed countertop installation, in July 2005, before Complainants took occupancy of their new home, it is established that the defects complained of in the instant Complaint were discovered in July 2005, prior to any occupancy of the home by Complainants. Therefore, any similar Complaint filed by Complainants against Respondent after July 2007 must necessarily be viewed as being beyond the time allowed for filing Complaints with the Registrar of Contractors. Thus, the instant Complaint should be dismissed.

RECOMMENDED ORDER

In view of the foregoing it is recommended that this Citation (no. M08-0276), 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 in this matter will be forty (40) days from the date of that certification.

Done this day, December 16, 2008.

______________________________________ Mark A. Silver 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 ___________________________

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