ALJDEC decisions subject to certification as final

2010A-1219719-ROC · Registrar of Contractors · 2011-01-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 21, 2010 APPEARANCES: Ralph D. Moore appeared personally. Another Block Company, L.L.C. was represented by its authorized representative, Jason Lee. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order: FINDINGS OF FACT 1. Another Block Company, L.L.C. (“Respondent”) is the holder of License No. 197371, a Class K-31 contracting license issued by the Registrar of Contractors (“Registrar”). 2. On February 24, 2010, Ralph D. Moore (“Complainant”) filed a written Complaint with the Registrar alleging deficient workmanship by Respondent in the construction of block walls at Complainant’s residence in Lake Havasu City, Arizona. 3. The Registrar initially designated Complainant’s Complaint as Case No. L10-0121, but later re-designated the Complaint as Case No. 2010- 1219719. 4. Complainant’s Complaint listed the following Complaint item: All weep pipes, in retaining walls, were not backfilled correctly with 1 cubic foot of 1 inch gravel as per residential masonry retaining wall design from Lake Havasu City Building Dept. specifications. Screens were not installed.

5. The Registrar issued a Citation and Complaint charging Respondent with violating the provisions of A.R.S. § 32-1154(A) (2) and (3), namely A.A.C. R4-9-108. 6. The Registrar forwarded Case No. 2010-1219719 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 7. Complainant hired Respondent to construct retaining/fence walls surrounding his residence. 8. Complainant’s Complaint states that the parties contracted on June 20, 2006. 9. Initially, Respondent was going to construct the entire wall in one phase. However, during construction the parties agreed that Respondent would construct all but approximately 50 feet of the freestanding wall (“Phase One”) in order to provide access to Complainant’s property when Complainant decided to construct a swimming pool. The parties agreed that upon completion of Phase One, Complainant would pay Respondent for that scope of work. The parties further agreed that Respondent would complete the remaining 50 feet of freestanding wall (“Phase Two”) for $5,000.00 whenever Complainant constructed his swimming pool. 10. According to Complainant’s Complaint, Respondent completed the Phase One work on August 16, 2006. 11. In August 2008, Respondent completed the Phase Two scope of work after Complainant completed the construction of his swimming pool. Complainant paid Respondent the sum of $5,000.00 for the Phase Two scope of work. 12. Complainant controlled the timing of his pool’s construction, which was completed approximately two years following Respondent’s completion of the Phase One work. 13. The Phase One and Phase Two work constitute two separate agreements. 14. The Registrar lacks jurisdiction over Complainant’s Complaint item, which pertains to the Phase One work, due to Complainant’s failure to timely file a complaint with the Registrar within two years from the completion of the Phase One Work.[1] 15. Complainant’s contention that the entire project was not completed until he paid Respondent on September 3, 2008, for the Phase Two work is not persuasive. Complainant had the full use and enjoyment of the Phase One work for approximately two years prior to Respondent performing and completing the Phase Two work. During those approximately two years, Complainant never complained about any of the Phase One work. CONCLUSIONS OF LAW 1. Pursuant to A.A.C. R2-19-119(B), Complainant has the burden of proof in this matter. The standard of proof is preponderance of the evidence. A.A.C. R2-19-119(A). 2. Pursuant to A.R.S. § 32-1155(A), the Registrar lacks jurisdiction in this matter.[2] Complainant filed his Complaint pertaining to Respondent’s Phase One work more than two years from the date of completion of such work. Respondent’s subsequent performance of the Phase Two work did not extend the two-year requirement for the Phase One work. Therefore, the Citation and Complaint in Case No. 2010- 1219719 should be dismissed. RECOMMENDED ORDER The Citation and Complaint in Case No. 2010-1219719 shall be dismissed on the effective date of the Order entered in this matter. 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 40 days from the date of that certification.

Done this day, January 7, 2011.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Respondent’s Phase Two work is within the Registrar’s two-year jurisdiction. However, Complainant did not allege any deficiencies in Respondent’s Phase Two work. [2] Notwithstanding this conclusion of law, Complainant may be able to seek redress of his dispute against Respondent in a civil court of competent jurisdiction.

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