ALJDEC

00F-2126-ROC · Registrar of Contractors · 2000-09-18

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Pursuant to due notice, this cause came on for a formal hearing on September 18, 2000, in Phoenix, Arizona, before Administrative Law Judge Neal H. Jordan, Office of Administrative Hearings.

APPEARANCES For Complainant: Anthony Lisa, pro se.

For Respondent: Mike Trailor, Division President, pro se.

FINDINGS OF FACT Based upon all the evidence of record, the following findings of fact are determined: Complainant purchased a new home to be constructed in that subdivision known as Las Piedras in Scottsdale. The Las Piedras subdivision was developed by another developer/contractor and completed according to the City of Scottsdale approvals and regulations. Respondent purchased unfinished lots and was not responsible for the development or construction of the streets, curbs and infrastructure. This subdivision is a custom desert neighborhood and intended to keep and maintain as much of the desert character as is possible. The streets within this subdivision do not have curbs but only narrow width concrete aprons along the lot lines, the intent of the development being to allow storm drainage to occur as naturally as possible and to spill into natural washes. As a consequence of this type of development, the adjacent lots have no curb protection against invading storm water which can and does cause erosion along lot lines and at driveways not paved in concrete. Complainant elected to have a granite driveway that was sealed with a Marloc material that stabilizes the granite for a period of time. When storms take place erosion occurs along the edge of the granite driveway causing the material to be deposited at the end of the cul de sac adjacent to Complainant’s home. Complainant maintains that Respondent should have foreseen this erosion as a problem and addressed it at the time of construction without added cost to him. Respondent asserts that Complainant opted for the granite driveway and by so doing accepted the fact it would be a homeowner maintenance item requiring work after each rain storm.

CONCLUSIONS OF LAW The Office of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to A.R.S. §41-1092 - 1092.12 (1998). The burden of proof, unless otherwise provided by law, is on the party asserting a claim, right, or entitlement in a contested case or appealable agency action. A.A.C. R2-19-119(B)((1); See also Utah Construction Company v. Berg, 68 Ariz. 285, 205 P.2d 367 (App. 1949). The standard of proof in such matters is that of the preponderance of evidence. A.A.C. R2- 19-119(A); See also Shelby School v. Arizona State Board of Education, 192 Ariz. 156, 962 P.2d 230 (App. 1998); Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). Complainant’s argument that at the time negotiations were ongoing concerning the new home’s options he was still residing in New York and that he was not aware of the rain storms occurring in the desert is not compelling. The streets and lack of curb edging were patently evident to the eye when Complainant was here selecting the lot on which to build his new home. The street elevations, its pitch and the location of Complainant’s lot were all there to see and investigate prior to selecting a home design and whether to opt for an natural driveway or a concrete one. Numerous other homes already completed within this subdivision did have concrete driveways, an observable situation obvious to one in Complainant’s place. It is understandable that Complainant, given the nature and character of this subdivision, would want a natural driveway. But in making that selection it is not something one can tryout and if it doesn’t work take it back and get a new and different one that may or not work better. To select a natural granite driveway it is presumed that Complainant made a knowledgeable selection with the full realization that by having such a driveway there will be times when homeowner maintenance will be required. To this extent it is not unlike the landscaping of the lot itself - maintenance is required in order for it to appear orderly and useful. Complainant states that, if it will solve the problem, he would require Respondent to install a full concrete driveway to relieve, if not eliminate the erosion problem, provided it is installed at no cost to him. If Complainant wanted a concrete driveway in the first instance it would have been an added cost he would have to bear with the cost of the house. To now require that Respondent provide him one without cost because Complainant doesn’t like the way the natural granite driveway performs would be entirely inequitable. When Complainant selected the natural granite driveway it is presumed he know or should have known that, given the street elevations, the pitch of the street in relation to his lot and the absence of curbs, erosion would tend to occur at the driveway edge and that maintenance would be required from time to time. The Citation and Complaint alleges that Respondent violated A.R.S. §32-1154 A (7), (23) and (3), namely Rule R4-9-108. The Complainant has failed to sustain the burden of proof necessary to establish by a fair preponderance of the evidence that Respondent has violated any of the provisions of the foregoing cited statute. This is true even though the Registrar of Contractors assigned inspector issued a Corrective Work Order directing Respondent to remedy the driveway problem. RECOMMENDED ORDER Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Citation and Complaint issued in Case No. 00-2126 be dismissed. ENTERED this day, September 18, 2000.

______________________________________ Neal H. Jordan Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2000, to:

Registrar of Contractors Michael P. Goldwater 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