ALJDEC decisions subject to certification as final

08F-S0119-ROC · Registrar of Contractors · 2009-07-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 16, 2009 at 9:00 a.m. The matter was held open until June 23, 2009. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its authorized representative, Michael McClean. ADMINISTRATIVE LAW JUDGE: M. Douglas

The following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. The Respondent is the holder of a Class B- license issued by the Registrar of Contractors. 2. This is a residential matter where the Complainant purchased a new home constructed by the Respondent. . 3. There was no dispute that a portion of the block wall surrounding the Complainant’s residence was blown over during a storm. 4. Credible testimony and evidence established that the Complainant contacted the Respondent and demanded that the Respondent correct the block wall. 5. When the Respondent refused to comply with the Complainant’s demand to correct the block wall, the Complainant filed a formal Complaint against the Respondent with the Registrar of Contractors. 6. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection. The Inspector moved to close the Complaint on the following basis: The two-year period for the filing of a complaint begins with the date of occupancy or tendered for occupance, whichever occurs first. Based on the information given us in the complaint that the act was committed more than two years prior to the date of filing the complaint, we must decline to take action in this matter. Therefore, we are closing this complaint. 7. The Complainant disagreed with the Inspector’s decision and requested an administrative hearing. 8. Credible testimony and evidence established that the Complainant began his occupation of his residence on February 20, 2003. 9. Credible testimony and evidence established that the last time the Respondent worked on the block wall was during the month of March, 2004. 10. There was no dispute that the Complaint at issue was filed on August 1, 2008. 11. Credible testimony and evidence established that the Complainant altered the block wall by adding several courses of block to the block wall during 2006. 12. There was no credible evidence of any act or admission by the Respondent which would preclude or estop it from asserting the applicable statute of limitations as a defense in this matter. 13. The complaint at issue concerns an act which was committed, if at all, more than two years prior to the date of the filing of Complaint. CONCLUSIONS OF LAW A.R.S. § 32-1155 A provides, in pertinent part, as follow: 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 which is cause for suspension of a license… The act(s) giving rise to the instant Complaint consisted of allegedly defective work on a block wall which must have necessarily have been committed, if at all, during or prior to the month of March, 2004. The Complaint at issue was filed more than two years thereafter and the Complainant’s right of action before the Registrar of Contractors is effectively barred by the provisions of the applicable statute of limitations. RECOMMENDed order In view of the foregoing, it is recommended that 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, July 7, 2009.

______________________________________ M. Douglas 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 ___________________________ -----------------------

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