ALJDEC

98F-3191-ROC · Registrar of Contractors · 1998-12-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 28, 1998 APPEARANCES: David Kish, Complainant, in his own behalf No one appeared on behalf of the Respondent ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________

FINDINGS OF FACT This matter came on for hearing on the date and time set forth in the Notice of Hearing. The Respondent failed to appear and no good cause was shown for said failure. On or about October 1, 1995, the Complainant purchased and moved into the home which had been built by the Respondent. In November, 1996, the Complainant experienced a plumbing problem whereby the sewer line backed up. The Complainant had the line cleared by Southwest Sewer and Drain, Inc. at a cost of $107.19. The Complainant contacted the Respondent regarding the sewer back up problem and was told not to worry. In October, 1997, the sewer line at the Complainant’s home backed up again. The clean out cost $107.50. The Complainant again called the Respondent who said he would contact the subcontractor to check out the problem. The Complainant was not contacted by the Respondent or the subcontractor. In March of 1998, the Complainant had the third sewer line back up. A camera was used to determine the nature of the problem and it found a belly in the sewer line. The cost for the camera procedure was $175.00. The Complainant received an estimate of $13,000.00 to replace the sewer line. He found this excessive and obtained a second estimate to simply replace that portion of the line which formed the 20 foot belly. It was also noted that a back flow prevention device was not operating properly. In early April, 1998, the Complainant had the faulty portion of the sewer line replaced. This required digging up the front yard of the house as well as part of the driveway. The cost for this replacement was $3,164.00. After replacement of the faulty pipe, the Complainant spent another $919.74 to repair the damage which the excavation of the pipe had caused to the landscaping and driveway. The Complainant filed his complaint with the Registrar of Contractors (Registrar) on June 3, 1998, seeking restitution of the costs related to the faulty sewer line which was installed in his home, including costs to clear the line on three occasions, cost for the camera diagnosis of the problem, costs for excavation and replacement of the line and for restoration of the landscaping. CONCLUSIONS OF LAW The Citation and Complaint allege violation of A.R.S. §32-1154(A)(3), violation of any rule, specifically/AAC R4-9-108 workmanship, and (A)(7), a wrongful or fraudulent act. A.R.S. §32-1155(A) provides in pertinent part that: “Upon 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, the registrar after investigation may issue a citation…”.

The facts of the case speak for themselves with respect to the nature of the case and the costs to the Complainant. Irrespective of the fact that the Complainant’s evidence is not rebutted, it is clear that the Complainant occupied the home in October 1995 and filed his complaint in June of 1998. This is a period of over two years and a half years. Understandably, the nature of the defects were not readily observable and their discovery was dependent on manifestations of the problems reflected in the findings of fact. The Opinion of the Attorney General No. I79-119 states in pertinent part that: “Therefore, a homeowner’s complaint is timely if filed within two years of occupancy or discovery of defect whichever event first occurred.”

In this case the Complainant was given notice of potential problems a little after a year after occupancy. After having the line cleaned and after the Respondent told the Complainant not to worry, no further action was taken by the Complainant until October, 1997. Again the Complainant had the line cleaned and spoke with the Respondent but nothing else was done. During the course of the hearing, the Complainant acknowledged he was not aware of the right to file a complaint with the Registrar until after the third back up of the system in March, 1998, and the replacement of a portion of the pipe in April, 1998. In view of the above, it must be concluded that the complaint was not timely filed and the statute of limitations prevents any further action in this matter by the Registrar. This conclusion should not be construed as a determination of any rights which may or may not be available to the Complainant by way of a civil action. RECOMMENDED ORDER In view of the foregoing, it is recommended that the Citation and Complaint upon which it was based be dismissed. Done this day, December 29, 1998.

_________________________________ ALLEN REED Administrative Law Judge

Original transmitted by mail this ____ day of December, 1998, to:

Michael P. Goldwater, Director Registrar of Contractors ATTN: Joyce Armijo 800 West Washington, 6th Floor Phoenix, AZ 85007

By _______________________________

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Office of Administrative Hearings 1700 West Washington, Suite 602 Phoenix, Arizona 85007 (602) 542-9826