ALJDEC decisions subject to certification as final

2014A-39-ROC · Registrar of Contractors · 2015-11-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

ORAL ARGUMENT: November 9, 2015 APPEARANCES: John Stomploy, Esq. appeared telephonically on behalf of Complainant. Eric Hawkins, Esq. appeared telephonically on behalf of Respondent. ADMINISTRATIVE LAW JUDGE: Suzanne Marwil

FINDINGS OF FACT 1. Hearing in this matter was originally set for October 1, 2015, and then continued to November 9, 2015. 2. On October 29, 2015, Respondent filed a motion to dismiss alleging that the Complainant’s complaint with the Registrar of Contractors was filed outside the two year statute of limitations provided for in A.R.S. § 32-1155. Because the motion was potentially dispositive, oral argument was held in lieu of hearing. 3. At oral argument, both Respondent and Complainant agreed that the last date that work was performed on Complainant’s project was December 23, 2011 and that the Complainant filed her complaint with the Registrar of Contractors on December 23, 2013. CONCLUSIONS OF LAW 1. A.R.S. §32-1155(A) provides: On the filing of a written complaint with the registrar charging a licensee with the commission, within two years before the date of filing the complaint, of an act that is cause for suspension or revocation of a license, the registrar after investigation, in its sole discretion, may issue a citation directing the licensee, within ten days after service of the citation on the licensee, to appear by filing with the registrar the licensee's written answer to the citation and complaint showing cause, if any, why the licensee's license should not be suspended or revoked. Service of citation on the licensee shall be fully effected by personal service or by mailing a true copy thereof, together with a true copy of the complaint, by registered mail in a sealed envelope with postage prepaid and addressed to the licensee at the licensee's latest address of record in the registrar's office. Service of the citation and complaint shall be complete at the time of personal service or five days after deposit in the mail. The two-year period prescribed by this subsection shall commence on the earlier of the close of escrow or actual occupancy for new home or other new building construction and otherwise shall commence on completion of the specific project.

Emphasis added. 2. Complainant argued that her complaint should be construed as timely in that it was filed on the second anniversary of the date work was completed. The statute does not address anniversaries, but instead specifies “within two years before the date of filing the complaint.” 3. Complainant next contended that statute of limitations are to be construed in such a way as to permit hearings on the merits. Complainant did not offer any authority in support of this proposition. 4. Lastly, Complainant inferred that the fact that the Registrar of Contractors investigated Complainant’s complaint and issued a Citation for possible violations of the workmanship standards means that it was timely filed. The applicability of the statute of limitations is a legal issue. Investigators for the Registrar of Contractors do not decide legal matters. In addition, the Citation notes that the Registrar of Contractors is not taking a position regarding the possible violations that may be found by the Administrative Law Judge. As such, nothing in the record establishes that the Registrar concluded that Complainant’s complaint was timely filed. 5. Moreover, the Registrar’s of Contractor’s file reflects that Respondent’s former counsel, Arthur Weiss, only raised the statute of limitations issue in his Written Answer to the Citation received May 26, 2015, which was after the Citation was issued. Mr. Weiss argued: Pursuant to the clear and unambiguous language of A.R.S. §32-1155(A), complaints to the Registrar must relate to the commission of an act that occurred within two years prior to the filing of the complaint. In this matter the complaint was filed on December 23, 2013. Respondent asserts that in the two year period prior to that date he performed no services, was never at Complainant's home and was never contacted by Complainant regarding any defects in workmanship.

6. Some courts have found in other contexts that when a statute or rule requires the counting of days backwards from an event, the date of the event should not be counted. See e.g. Equitable General Ins. Co. v. Helm, 128 Ariz. 6 (1981) (in interpreting Ariz. R. Civ. Pro. 42(f)(1)(C) which permits a change of judge as a matter as a matter of right if filed 20 or more days before the date of trial as “excluding the date set for trial and including the date of filing of the notice”); see also Ariz. Civ. Pro. 6(a) (“In computing the time allowed by these rules . . . , the day of the act, event or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included). Under this view, the complaint may have been timely filed. 7. In the Tribunal’s view however, the language of the statute itself shows that to be timely filed, a complaint must relate to work performed within the last two years before the complaint was filed. The complaint was filed on December 23, 2013, but the last work on the project was admittedly on December 23, 2011, one day beyond the two-year period specified in A.R.S. § 32-1155(A). Because the complaint was filed outside the two year window provided by statute, it is time-barred. RECOMMENDED ORDER In view of the foregoing, it is recommended that complaint in this matter be dismissed as not timely filed and that this matter be dismissed with prejudice. In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of these Orders will be 40 days from the date of the certification. Done this day, November 13, 2015.

/s/ Suzanne Marwil Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors -----------------------

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