ALJDEC decisions subject to certification as final

09F-2395-ROC · Registrar of Contractors · 2009-08-04

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 4, 2009.

APPEARANCES: >The Complainant was represented by its attorney Richard A. Alcorn, Esq. >The Respondent was represented by its attorney, Guy W. Bluff, Esq.

ADMINISTRATIVE LAW JUDGE: Robert I. Worth _____________________________________________________________________

Based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made.

FINDINGS OF FACT

1. At the outset of the scheduled hearing, counsel for Respondent as a preliminary matter and prior to the introduction of any evidence or testimony on the merits effectively moved to dismiss the within Citation and Complaint based upon the express provisions of the applicable Statute of Limitations contained in A.R.S. §32-1155. Oral argument in support of and in opposition to the granting of Respondent’s Motion was presented to the tribunal.

2. Since only the Registrar of Contractors is empowered to dismiss any pending disciplinary action and since the undersigned Administrative Law Judge has been persuaded that a granting of Respondent’s aforesaid Motion is fully warranted under all the circumstances, the scheduled hearing was thereupon recessed so as to enable the preparation and submission of the within decision and recommendation to the forwarding agency for appropriate further action.

3. It was not disputed that the formal written administrative complaint in this action was formally filed by Complainant with the Registrar of Contractors on October 23, 2008.

4. As set forth in the filed complaint, Respondent, as a subcontractor, had agreed to and did perform stucco work for Complainant who was serving as the general contractor on several separate projects. In this administrative disciplinary action, Complainant seeks to recover the costs or back-charges purportedly incurred as a result of the necessity to subsequently undertake and complete remedial measures on the Respondent’s prior stucco installation work.

5. It appeared, as confirmed by an express stipulation between the parties at the hearing, that the last of Respondent’s stucco installations on the various projects had been completed no later than very late 2005 or very early 2006. This time frame was substantially earlier than two years prior to the date on which the within formal complaint was filed with the Registrar. Consequently, a determination is warranted that that any allegedly deficient or wrongful actions by or attributable to Respondent, would have been committed prior to, but in no event later than very early in 2006, a point in time that was well over two years before the instant complaint was filed.

8. It was not demonstrated that, during the intervening time period, any actions or courses of conduct on the part of or attributable to Respondent took place that would

tend to impact upon or to induce a delay in Complainant’s decision to file the within administrative complaint. Therefore, no valid reason is determined to exist for any finding that the applicable period of limitations should be elongated or that Respondent should be estopped or precluded from asserting this available affirmative defense to the within Citation and Complaint.

9. At the administrative hearing, Respondent has appropriately asserted the expiration of the applicable Statute of Limitations time period as an affirmative defense hereunder. It is found and determined that the operation of the applicable statutory provisions effectively bars the pursuit at this time by Complainant of any administrative remedies before this tribunal based upon the allegedly wrongful actions of Respondent and also statutorily prevents the Registrar of Contractors from properly entertaining the underlying filed complaint in this matter.

10. Nothing in the decision and recommended ruling on Respondent’s Motion to Dismiss is intend to impact upon the potential existence, if any, of other available remedies for Complainant before a civil tribunal of competent jurisdiction. Stated alternatively, any dismissal of the instant administrative complaint is intended to be and shall be wholly without prejudice to initiating and pursuing possible rights and remedies against Respondent in another, more appropriate civil forum.

CONCLUSIONS OF LAW

1. The express provisions of A.R.S.§32-1155(A), as in effect at the time of the agreed and performed work by Respondent,[1] provide for 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….” (Emphasis added).

2. The above-referenced code section of the State’s Contracting Laws, like any Statute of Limitations, is a statute of repose enacted as a matter of public policy in Arizona to fix a time within which administrative disciplinary complaints must be filed. Ross vs. Ross, 96 Ariz. 249, 393 P.2d 933 (1964); 1 Wood on Limitations, 4th Ed., Sec. 4. Such statute must be strictly construed and runs from the date of completion of the work which is the subject of the complaint or the date of occupancy of the structure, whichever is earlier, and not from the date of discovery of the alleged wrong. Lyon vs. Great American Insurance Company, Ariz. App. 596, 422 P. 2d 724 (1967).

3. The allegedly wrongful acts or substandard construction giving rise to any and all construction-related complaints were committed, if at all, on, prior to or shortly after the date of completion of Respondent’s original stucco work. Under the effectively undisputed facts of this case, it was adequately demonstrated that the statutory time period would and did commence well over two years before the subsequent filing of any formal complaint with the Registrar. Consequently, the provisions of A.R.S.§32- 1155(A) would effectively bar or preclude the pursuit of any administrative action before or through the Registrar of Contractors with respect to such complaint items.

4. The determination that the within filed complaint as to all matters in issue was not timely and formally filed provides a sufficient basis for the sustaining of Respondent’s Motion to Dismiss the Citation and Complaint based upon the expiration of the applicable period of limitations. ……. …….

RECOMMENDED ORDER

In view of the foregoing, it is recommended that the Motion by or on behalf of Respondent to Dismiss this matter based upon the expiration of the applicable period of limitation be GRANTED and that the entire Citation and Complaint in Case Number 09-2395 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 forty (40) days from the date of that certification.

Dated: August 7, 2009. OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Robert I. Worth Administrative Law Judge

Original transmitted on _____________________

by: _____________________________ , to:

William A Mundell, Director Registrar of Contractors Legal Department 3838 North Central Avenue (Suite 400) Phoenix, AZ 85012 - 1906 ----------------------- [1] The provisions of a relatively recent statutory amendment to the above- cited statutory provision becoming effective on September 19, 2007 would appear not only to be inapplicable to construction work previously performed but also to render the commencement date for the running of the statutory time period unchanged under the facts of this case.

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