ALJDEC

98F-C978237-BFS · Department of Building and Fire Safety · 1998-08-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 3, 1998 APPEARANCES: Complainant appeared on his own behalf and Respondent was represented by its attorney, Michael Parham. ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

1. Prior to commencement of the instant hearing, Respondent filed a motion for summary judgment based on a statute of limitation bar to the instant action. Complainant filed opposition to said motion. Although the motion was not granted initially by this Tribunal, the parties were advised that the issue of the installation date of the deck attached to Complainant’s home would be treated as a threshold issue at the instant hearing and that following the presentation of evidence and testimony on said issue, Respondent would have the opportunity to renew its motion for summary judgment. Accordingly, Respondent’s motion was ultimately decided based on the findings shown below. 2. The following salient facts were adduced at the hearing and are important to note: a. Complainant purchased his new manufactured home in March 1994.

b. Complainant moved into his home on or about September 1994. c. On October 15, 1994, Complainant dates and mails a “punch-list” referable to numerous deficiencies discovered in the home. The cover letter for said “punch-list” makes reference to, among other items, the fact that the carpet for the deck was not installed in a timely manner. Moreover, the actual “punch- list” sets forth several deficiencies in the deck. Thus, it is reasonable to conclude that the deck is in place on the date of said “punch-list.” d. The weight of the evidence of record was sufficient to support a finding that the deck construction was commenced in September 1994 and was completed by Respondent on October 5, 1994. e. The instant complaint, which sets forth alleged construction deficiencies in the deck, was not filed with the Arizona Office of Building and Fire Safety until October 18, 1995. f. There was no evidence of repair to the foundation of the deck between the dates of October 15, 1994 and October 18, 1995. 3. Evidence of record established that Complainant filed the instant complaint one year and thirteen days from the date the deck was completed and as consequence thereof, Respondent renewed its motion for summary judgment based on these facts.

CONCLUSIONS OF LAW

1. A.R.S. § 41-2153B (9) provides, in pertinent part, that “the assistant director shall verify written complaints filed with the office by purchasers within one year from the date of purchase or installation of units.” This statute, like any other statute of limitation was enacted as a matter of public policy in Arizona to fix a time within which complaints must be filed. Such statute must be strictly construed and run from the date of purchase or installation of the work which is the subject of the complaint and not from the discovery of the alleged wrong. 2. A.R.S. § 41-2142 (1) defines the term “accessory structure” to include “porch.” A.R.S. § 41-2142 (18) b defines, in pertinent part, the term “installation” as “placing accessory structures on foundation systems.” The deck in question was shown to have been placed on the foundation system over one year prior to the date that Complainant filed the instant complaint. 3. The instant action is barred by the applicable Statute of Limitations and therefore, Respondent’s motion for summary judgment should be granted. RECOMMENDED ORDER

In view of the foregoing, it is recommended that the motion for summary judgment be granted and that Case no. 97-8/237 be dismissed.

Done this day, August 19, 1998.

_________________________________ MARK A. SILVER Administrative Law Judge

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

N. Eric Borg, Director Department of Building & Fire Safety ATTN: Michelle M. Castaneda E. Virginia, Suite 100 Phoenix, AZ 85004

By _______________________________

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