ALJDEC

99F-T0616-ROC · Registrar of Contractors · 1999-07-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

|DAVID A. AND JANET L. METHOT, |§| | | |§|CASE NO.: t99-0616 | |Complainants, |§| | | |§|DOCKET NO.:99f-t0616-roc | |-v- |§| | | |§| | |License No. 107990, Class B- of |§|RECOMMENDED | |Shirley Christine Van Someren and|§|DECISION AND ORDER | | |§| | |Roy Lee Van Someren d.b.a. VAN |§| | |SOMEREN CONSTRUCTION (PTR.), |§| | | |§| | |Respondent. |§| | | |§| |

HEARING: June 30, 1999, at 8:30 a.m. APPEARANCES: The Complainants appeared through David Methot. The Respondent appeared through Shirley Van Someren. ADMINISTRATIVE LAW JUDGE: M. Douglas

This matter came on for hearing on June 30, 1999. The Complainants appeared through David Methot and the Respondent appeared through Shirley Van Someren. 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. Respondent is the holder of a Class B- License issued by the Registrar of Contractors.

2. This is a residential matter where the Respondent constructed a new residence for the Complainants. 3. As their occupancy neared the two year limit for filing complaints, the Complainants became increasingly dissatisfied with the Respondent’s workmanship and failure to correct its work despite a request that it do so.

4. The Complainants filed a formal complaint, against the Respondent, with the Registrar of Contractors on March 1, 1999.

5. Pursuant to the filing of the formal complaint, an assigned Agency Inspector conducted an on-site inspection and issued a written corrective work order directing the Respondent to perform designated corrective work on the Complainant’s residence.

6. At the job-inspection, and at the onset and during the hearing, the Respondent repeatedly moved to dismiss the complaint at issue based upon the expiration of the applicable statute of limitations prior to the filing of the instant complaint.

7. Credible evidence, presented at hearing, established that the Respondent completed its construction work on the Complainants’ residence by February 17, 1996.

8. Credible evidence established that the Complainants actually occupied the residence on March 1, 1996.

9. Credible evidence established that the Complainants closed on the residence on March 24, 1996.

10. There was no dispute that the Complainants signed and mailed their formal complaint on February 26, 1999 (a Friday), and that it was received by the Registrar of Contractors on March 1, 1999 (a Monday).

11. The fact that the Complainants may have sent a letter to the Registrar of Contractors prior to the filing of their formal complaint is found to have no effect on the statute of limitations.

12. The date on which the applicable 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. The revised and presently applicable general rule, 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.AG. I-79-119 (April 25, 2979), starts the two years on the “date of occupancy of the structure or discovery of the defect, whichever first occurs.” The prior “close of escrow” date test was expressly discarded.

13. Credible evidence established that the Complainants began their occupancy of their residence on March 1, 1996 and mailed their complaint on February 26, 1999 and that their Complaint was accepted and stamped in, by the Registrar of Contractors, on March 1, 1999.

14. Based upon the foregoing, it is found that the Complainants filed their complaint prior to the expiration of the applicable statute of limitations and that the Respondent’s Motion to Dismiss should be denied.

15. Pursuant to the filing of the formal complaint, an assigned agency inspector conducted an on-site inspection and issued a written corrective work order directing the Respondent to perform designated corrective work on the Complainants’ residence.

16. The Respondent declined to comply with the terms of the corrective work order based on its assertion that the applicable statute of limitations had expired.

17. Credible evidence, presented at hearing, established that the following items constitute unacceptable workmanship and require proper corrective action by the Respondent:

r) There are several, unacceptable, stucco voids on the exterior of the residence. The Respondent shall cause the exterior stucco voids to be properly corrected and touched-up.

s) There are cracked floor tiles in the hall bath, dining/den area, and kitchen. The Respondent shall properly replace the three cracked floor tile.

t) There is a shrinkage crack in the tile grout in the kitchen area. The Respondent shall properly correct the crack in the tile grout.

u) There is a void in the concrete in the side of the step at the storage area in the garage near the west door. The Respondent shall properly correct the void in the concrete.

v) Undisputed evidence established that there is a 50 CFM exhaust fan in the master bedroom rather than a 80 CFM fan as set forth in applicable plans and specifications. The Respondent shall properly remove the 50 CFM fan and replace it with a specified 80 CFM fan.

w) The rough-in box for the hall bath exhaust fan is bent. The Respondent shall properly repair or replace the rough-box for the exhaust fan in the hall bath.

24. Notice is taken of the Respondent’s prior License record with the Registrar of Contractors.

CONCLUSIONS OF LAW

1. The credible evidence of record established violations by the Respondent of the provisions of A.R.S. (32-1154 (A) (23) and (3); namely, Rule R4-9- 108.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that the Respondent’s Class B- License shall be suspended until the Registrar of Contractors receives proof that the Respondent has properly caused the accomplishment of the corrective action set forth above in Findings of Fact Nos. 17(a) through 17(f), inclusive.

It is further recommended that if the Respondent properly accomplishes the above described corrective action, on or before the effective date of this Order, then the above provided License suspension shall not take place and Citation No.T99-0616 shall be closed.

Dated this 9th day of July, 1999.

OFFICE OF ADMINISTRATIVE HEARINGS

_________________________________ M. DOUGLAS Administrative Law Judge

Original mailed this day of July, 1999 to:

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

Transmitted by: -----------------------