FINACT2013A-3271-ROC.pdf
2013A-3271-ROC · Registrar of Contractors · 2014-09-29
BEFORE THE REGISTRAR OF CONTRACTORS
OF THE STATE OF ARIZONA
IN THE MATTER OF THE CIVIL PENALTY ) ) CASE NO: 2013-3271 CITATION ISSUED TO: ) Joe Peterson ) DOCKET NO. 2013A-3271-ROC ) RESPONDENT ) ORDER ) The Registrar adopts the Administrative Law Judge’s attached Recommended Order with the exception of Conclusions of Law numbers 2, 3 and 4, which are rejected. Conclusion of Law number 2 is substituted with the following: “2. Respondent first asserts that the ROC may not bring this action due to A.R.S. § 32- 1166.02, which states: A [Cease and Desist Order and Civil Penalty Citation] shall be issued by the registrar within ninety days after actual discovery of the offense by this state or the political subdivision having jurisdiction. The evidence shows that while Cruz filed her complaint on July 8, 2013, the ROC did not “actually discover” Respondent’s violation until March 13, 2014. The Cease & Desist Order and Civil Citation was issued March 14, 2014, the day after the ROC “actually discovered” Respondent’s violation. Thus, Respondent’s defense based on A.R.S. § 32-1166.02 has no merit.”
Justification: Conclusions of Law numbers 2, 3, and 4 must be rejected because the ALJ
assumed, without analysis or authority, that the ROC “actually discovered” Respondent’s violation on the
date that the victims filed their complaint as opposed to the date the ROC “actually discovered”
Respondent’s violation.
The legislature set the bounds within in which the ROC must take action pursuant to A.R.S. § 32-
1166: “ninety days after actual discovery of the offense. . .” A.R.S. § 32-1166.02. The ALJ’s
interpretation improperly allows the ROC to exceed the authority granted by the legislature, thus
Conclusions of Law numbers 3 and 4 must be rejected.
The ROC does not “actually discover” a violation of A.R.S. § 32-1166 until it becomes actually
of 4 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – PHOENIX, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 aware the violation has occurred. The words of [a] statute must be given their ordinary common meaning unless it appears from the
context or otherwise that a different meaning is intended.” Martinez v. Indus. Comm'n of Arizona, 175
Ariz. 319, 322, 856 P.2d 1197, 1200 (Ct. App. 1993). When interpreting a statute, courts look first to the
plain language because that is “the best and most reliable index of a statute's meaning.” State v. Williams,
175 Ariz. 98, 100, 854 P.2d 131, 133 (1993). When the language of a statute is clear and unambiguous, a
court should not look beyond the language, but rather “simply apply it without using other means of
construction, assuming that the legislature has said what it means.” Hughes v. Jorgenson, 203 Ariz. 71, ¶
11, 50 P.3d 821, 823 (2002), (internal quotations omitted).
A.R.S. § 32-1166.02 provides: “A citation under § 32-1166 shall be issued by the registrar within
ninety days after actual discovery of the offense by this state or the political subdivision having
jurisdiction.” A.R.S. § 32-1166.02. The plain language of the statute requires that the ROC actually
discover a violation before the time period in § 32-1166.02 begins to run; there is simply nothing
ambiguous or unclear about the statute. See City of Tucson v. Clear Channel Outdoor, Inc., 218 Ariz.
172, 177-80, 181 P.3d 219, 224-27 (Ct. App. 2008) (“The plain language, ‘after discovering,’ is clear and
unambiguous. Nothing within the text of the statute suggests any legislative intent other than to begin the
limitations period upon actual discovery of a violation.”).
The ALJ made no findings of fact relevant to the date the ROC discovered Respondent’s
violation, other than the date that the victims filed their complaint. The ALJ made no findings regarding
the contents of the victims’ complaint and whether that content alone caused the ROC to “actually
discover” Respondent’s violation. Thus, it appears that the ALJ assumed that the ROC “actually
discovered” Respondent’s violation on the date that the victims filed their complaint. The ALJ did not
provide his analysis or any authority for this conclusion; however, the ALJ’s interpretation appears to be
based on the discovery rule.1 In so far as the ALJ’s decision is premised on the discovery rule, it is
incorrect. Case law interpreting similarly phrased statutes makes clear that a statute that requires action
1Because the courtroom’s audio recorder failed thirty three minutes into the hearing, the ROC is forced to guess at the ALJ’s reasoning. after “actual discovery” alone, is triggered only by actual discovery, and does not incorporate a
“reasonable diligence” requirement. See City of Tucson v. Clear Channel Outdoor, Inc., 218 Ariz. 172,
177-80, 181 P.3d 219, 224-27 (Ct. App. 2008) (plain language of statute requiring action by city “within
two years after discovering the violation” did not include “reasonable diligence” requirement because court “presume[d] that if the legislature had meant for a “knew or should have known” standard to apply . . . it would have included such language in the text of the statute.”). The ALJ’s interpretation is inconsistent with the plain language of the statute as well as case law interpreting similar provisions, and is therefore rejected. Respondent is therefore ordered to remit payment of civil penalty to: Registrar of Contractors P.O. Box 6748 Phoenix, AZ 85005-6748 IT IS SO ORDERED this 16th day of September, 2014. REGISTRAR OF CONTRACTORS /s/ Marc A. D’Amore Marc A. D’Amore Chief of the Legal Department
Copy mailed via USPS First Class mail this 16th day of September, 2014 to:
Respondent Joe Peterson 10921 W. Vista Ln. Glendale, AZ 85307-1637
And
Judith Cruz 5625 N. 47th Ave. Glendale, AZ 85301-6224
of 4 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – PHOENIX, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 AND copy electronically mailed this same date to:
Registrar’s Counsel Seth Hargraves, Esq., Assistant Attorney General
Office of Administrative Hearings Eric Bryant, Administrative Law Judge Case No. 2013-3271/mkc