Vacate

08F-T0276-ROC · Registrar of Contractors · 2008-06-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

This matter has been referred to the Office of Administrative Hearings from the Arizona Registrar of Contractors, where Notice of Hearing is pending. On May 27th, 2008, counsel for Respondent filed a motion to dismiss the Citation and Complaint issued by the Registrar citing as ground A.R.S. 32-1155.A., a statute creating a two-year limitation on the period of fling these Complaints, to begin after the work complained of was performed. The motion includes attached copies of the work orders for the installation of an air conditioning system and/or an evaporative cooler. These units were installed in Complainant’s home in late 2000, and/or at the latest very early 2002. The Complaint was filed in the Registrar of Contractors’ office on August 29th, 2007. Thus Respondent argues dismissal is proper as the Complaint is barred by the limiting statute. Complainant filed a response to the motion to dismiss. Her Complaint alleges that the units were undersized. She does not deny that the installations occurred much longer than two years before the filing of her Complaint in 2007. She does point out that the Respondent’s technicians made a service call to her home in 2006, and serviced the units. However, neither her Complaint nor her response to the motion mentions any “act which is cause for suspension or revocation” of Respondent’s license (A.R.S. 32-1155.A) connected to the service call. She continues to complain about the size of the units that were installed from five-and-one- half to six-and-one-half years before the filing of the Complaint. The Registrar of Contractors Inspector assigned to this case, Mr. Greg Koeneman, inspected the jobs site pursuant to the Complaint, and issued a RC-C-007 Letter to the parties setting forth his opinion that the statute of limitations was a jurisdictional bar for the facts recited by the Respondent in the motion to dismiss. The Inspector was correct. The uncontested facts and A.R.S. 32-1155.A. create a jurisdictional bar to this Complaint. The lack of jurisdiction removes any discretion from the assigned Administrative Law Judge. The matter must be vacated from the OAH docket and remanded to the Registrar of Contractors for its further action. Wherefore, and in accordance with A.A.C. R2-19-111.4, it is hereby ordered vacating this matter from the OAH docket and remanding same to the Registrar of Contractors for its further action. Done this day, June 5th, 2008.

________________________________ Grant Winston Administrative Law Judge

Copy mailed this ____ day of ______________, 2008 to:

Fidelis V. Garcia, Director Registrar of Contractors 3838 N. Central Ave. Phoenix, AZ 85012

Carol Brinkman 2908 E. 21st. Street Tucson, AZ 85716

Michael Hornisher, Esq. 2455 E. Speedway Ste 104 Tucson, AZ 85719

By ___________________________ -----------------------

Office of Administrative Hearings 100 North Stone Ave., Suite 704 Tucson, Arizona 85701 (520) 628-5488