ALJDEC

99F-M1567-ROC · Registrar of Contractors · 2000-01-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 29, 1999 APPEARANCES: Complainants appeared on their own behalf and Respondent appeared through its owner and qualifying party, Darrin Carnahan. ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

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

FINDINGS OF FACT

1. At the outset of the scheduled hearing, the caption in this matter was amended to reflect Mike Chriss, Shauna Chriss’ husband, as Co- Complainant. 2. Pursuant to contract, personnel who are now affiliated with Respondent were involved in the sale transaction that provided Complainants with new tile and a flooring contractor to install said tile. Although Respondent was not a licensed contractor at the time of the sale transaction but was merely engaged in the retail business of selling flooring materials, as authorized by A.R.S. § 32-1154 (20), the conduct of such personnel may provide a valid basis for disciplinary proceedings against Respondent since any proved misconduct would reflect adversely upon the good character requirement for licensure and/or renewal as set forth in A.R.S. § 32-1122 (D). 3. Complainants contend that Respondent is responsible for certain deficiencies in the tile installation in their home and these issues are discussed in the findings below. 4. The following salient facts were adduced at the hearing and are important to note: a. In 1997 Complainants’ new home was being constructed by their general contractor. As part of the new home construction project, Complainants agreed to be fully responsible for the installation of specified flooring materials in their home, including ceramic tile. b. On or about June 14, 1997, Complainants received a proposal and contract from Respondent, indicating a total price for floor covering materials and installation of same. The document in question showed that the installation price for the tile was $1,535.25 and that same was to be performed by someone other than Respondent. Respondent was not licensed to install ceramic tile at the time of this agreement and was therefore, recommending licensed installers to Complainants. c. It was undisputed that Respondent ultimately selected the licensed tile installer for the job and paid the installer for the installation. d. The tile installation was completed on June 22, 1997. Nevertheless, Complainants were not totally satisfied with the workmanship on the tile installation and contacted Respondent regarding their complaints. Respondent, in turn contacted the licensed installer to cause him to get together with Complainants for the purpose of determining what issues concerned Complainants. e. Complainants took occupancy of their new home on July 1, 1997. On or about July 11, 1997, Complainants paid Respondent on the floor covering proposal and contract but held back $1,540.25 for the tile installation based on their dissatisfaction with the installation work. f. On or about September 6, 1997, the licensed installer returned to Complainants’ home and performed specified remedial work to replace several hollow tiles, re-design the tile installation adjacent to an Arcadia door, and added some small sections of tile in certain areas wherein the tile installation meets the wall. Complainants believed the licensed installer was going to return to their home in November 1997 to perform further remedial work but he never returned. g. Although Respondent had paid the installer for the installation, for some unexplained reason it failed to make any effort to contact Complainants referable to the unpaid portion of their bill. h. Apparently Complainants became of the mindset that since they had not paid for the installation and Respondent was not contacting them seeking payment that perhaps they would just live with their perceived deficiencies in the tile installation work. There was no contact whatsoever between the parties from September 1997 until June 1999 when Complainants decided that they could not live with the perceived deficiencies in the tile installation. i. On June 25, 1999, Complainants filed the instant complaint with the Registrar of Contractors indicating “grout lines not as per contract, cracked tiles, excessive hollow spots under tile, and didn’t grout properly at baseboards.” j. The assigned inspector for the Registrar of Contractors reviewed the filed complaint and based on his determination that Complainants had filed their complaint beyond the two (2) years statute of limitations, he refused to conduct a jobsite inspection and recommended that the complaint should be closed. k. Complainants disagreed with the Registrar’s inspector and requested an administrative hearing to resolve the issues of the complaint. l. Respondent filed a motion to dismiss citing, among other arguments, that the complaint was filed beyond the applicable statute of limitations. Respondent’s motion to dismiss was duly denied by this Tribunal due to the need to conduct a formal hearing to determine the facts surrounding the motion and the complaint. The denial of Respondent’s motion specifically provided that the issues in the motion could be raised again at the time of the administrative hearing. 5. Complainants contend that the applicable statute of limitations should be calculated from the date of occupancy of their home or the date that occupancy was tendered, whichever occurs first. Complainants further contend that the date (July 11, 1997) they made the partial payment to Respondent should be deemed to be the date occupancy was tendered. Either way, they believe that the June 25, 1999 filing was within the applicable two years allowed for filing a complaint with the Registrar of Contractors regarding the tile installation. 6. The assigned inspector for the Registrar of Contractors appeared at the instant hearing and indicated that although the Registrar of Contractors generally applies the statute of limitations test for new home construction based on two years from the date of occupancy, that said test does not apply when a homeowner is acting in the capacity of their own general contractor. He further opined that since Complainants, not their general contractor, hired Respondent that the two year period of time for filing a complaint with the Registrar of Contractors would commence from the date of completion of the tile installation. 7. Complainants contend that the tile installation was not completed on June 22, 1997 since their were perceived deficiencies in the installation and that until these deficiencies were corrected the job remained incomplete. On the contrary, construction work, such as that at issue herein, is not a perfect science and it is not uncommon in the industry to have corrections, repairs, or replacements of resultant poor workmanship prior or subsequent to completion of a specified project, in order to bring the final work product up to appropriate industry standards. Thus, the mere fact that there may be punch-list work to perform does not, in and of itself, change the date that the installation was initially completed. It is only the actual corrective work performed that would carry a different two year statute of limitations from the date that the unrepaired work was installed. 8. The instant record was inadequate to support a finding that any of the specific work performed by the licensed installer on September 6, 1997 failed or was otherwise indicative of substandard workmanship . Thus, Complainants failed to sustain the requisite burden of proof necessary to show that any of their current tile complaints specifically involved failures in the specific tile repairs performed in September 1997.

9. Under all of the facts and circumstances presented herein, and with due consideration for the applicable law discussed in the following conclusions of law, it is held and determined that the instant complaint is barred by the statute of limitations.

CONCLUSIONS OF LAW

1. A.R.S. § 32-1155 (A) provides for the “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…” This section, like any statute of limitation, is a statute enacted as a matter of public policy in Arizona to fix a time within which complaints must be filed. 2. The date on which the statute of limitations commences to run may vary according to the parties involved, notwithstanding the fact that the date of commission of any act remains unchanged. Although the general rule in this regard, derived from the language of the Court of Appeals in Lyon v. Great American Insurance Company, 4 Ariz. App. 596, 422 P.2d 724 (1967), and confirmed in Op. Assistant Attorney General. No. I-79-119 (April 25, 1979), provides that the time to file a complaint runs from the date of occupancy of the structure or discovery of the defect, whichever first occurs, this rule does not apply to general contractors or any owner/builder acting in the capacity of a general contractor. For a general contractor or an owner/builder the statute of limitations begins to run from the date of completion of the work. 3. It is well established that the mere making of repairs by a contractor does not operate to extend or otherwise affect the statute of limitation period, except that the individual repair itself may properly serve as the subject matter of a complaint filed with the Registrar of Contractors if filed within two years following the completion of any deficient repair. This rule regarding deficient repairs would not serve to allow in any claims regarding unrepaired locations if the work on the unrepaired locations was completed outside of the two year period calculated from the date of repair completion. . . . . . . RECOMMENDED ORDER

Based on the foregoing, it is hereby recommended that this Citation, together with the Complaint upon which it is based, be dismissed.

Done this day, January 6, 2000.

______________________________________ MARK A. SILVER Administrative Law Judge

Original transmitted by mail this ____ day of January, 2000, 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 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826