ALJDEC

01F-0226-ROC · Registrar of Contractors · 2001-02-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

On February 1, 2001, a hearing was held to determine if the Respondent had violated provisions of A.R.S. §32-1154(A). Hugh Thompson, Jr. appeared on behalf of the Complainant. Attorney Dennis Wilenchik represented the Respondent. Evidence and testimony were presented. Based upon a review of the entire record, the undersigned Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Decision.

Background 1. The Complainant is the homeowners’ association for a planned community called The Legends at Tempe located in Tempe, Arizona. On or about July 25, 2000, the Complainant filed a complaint with the Registrar of Contractors against Legend Development, L.L.C. However, Legend Development, L.L.C.’s Class B- contractor’s license was suspended April 10, 1998 and canceled December 2, 1998.

2. Legend Development II, L.L.C. was the developer for The Legends at Tempe. This developer has never held a residential contracting license. Legend Development II, L.L.C. hired MMMB Construction, L.L.C. as the general contractor responsible for constructing The Legends at Tempe. MMMB Construction, L.L.C. is the holder of Class B- License Number 124982. On April 25, 2000, this license was suspended for lack of

a qualifying party. However, MMMB Construction, L.L.C. was properly licensed during the construction of The Legends at Tempe. Accordingly, the parties in this dispute agreed that MMMB Construction, L.L.C. should be the proper Respondent in this matter.

3. The records of the Registrar of Contractors show that Mr. Dan James McDowell and Mr. Larry Edmond Brandon were officers or members with both Legend Development, L.L.C. and MMMB Construction, L.L.C. Both Mr. McDowell and Mr. Brandon appeared for the hearing in this matter.

FINDINGS OF FACT 1. The Complainant is the homeowners’ association for a planned community called The Legends at Tempe which is located in Tempe, Arizona. Legend Development II, L.L.C. was the developer for The Legends at Tempe. MMMB Construction, L.L.C. (the “Respondent” ) was the general contractor hired by Legend Development II, L.L.C. to build The Legends at Tempe (the “Site”).

2. Mr. Hugh L. Thompson, Jr. is the Complainant’s Vice President. Mr. Thompson identified four problems at the Site. These items include the following: a. Locate and uncover a drywell near the Site’s pool; b. Install catch basins and connect drywells adjacent to Units 110 and 129; c. Correct the street drainage and ponding problems located between Unit 117 and the Vaughn Street Gate; and d. Install 8” PVC pipe beneath the Vaughn Street entrance driveway. See Complainant’s Complaint.

A. Drywell 3. Mr. John E. Burger was the Complainant’s President during the year 2000. Mr. Burger testified that the Complainant cannot locate a drywell near the Site’s pool. Mr. Burger conceded that the Complainant, the Respondent and the City of Tempe all believe that the drywell was installed near the Site’s pool. However, Mr. Burger testified that the drywell cannot be located. Mr. Burger testified that the Complainant agreed to utilize a metal detector to locate the drywell. However, Mr. Burger conceded that the Complainant never obtained a metal detector to locate the drywell.

4. The Grading and Drainage Plans (the “Plans”) for the Site show that the Respondent was required to install seven drywells at the Site. See Complainant’s Exhibit 1. These seven drywells include the drywell that is supposed to be located near the Site’s pool. All seven drywells are MaxWell Plus or MaxWell IV drywells. Each drywell is approximately five feet in diameter and fifteen feet deep.

5. The standard MaxWell IV drywell combines a large capacity settling basin in its upper section with a carefully designed and constructed drainage assembly below it. See Respondent’s Exhibit G. The purpose of the settling basin is to catch trash and silt carried by the incoming surface water. Id. The drainage section then returns (or percolates) the cleaned water to the surrounding permeable soils. Id. The MaxWell Plus drywell is a high volume system that incorporates a pre-treatment interceptor. Id. Both types of the MaxWell drywell require regular inspections and maintenance. See Respondent’s Exhibits G.

6. Philip R. LeBlanc is the Vice President for McGuckin Drilling, Inc. (“McGuckin”). See Respondent’s Exhibit A. In August of 1997, the Respondent and McGuckin entered into a Subcontract for McGuckin to install (2) two MaxWell Plus and (1) one MaxWell IV drywells at the Site. See Respondent’s Exhibit B. McGuckin was required to install the drywells pursuant to the Plans. Id. McGuckin subsequently installed four more MaxWell IV drywells at the Site. See Respondent’s Exhibit A. Accordingly, McGuckin installed the seven drywells required pursuant to the Plans.

7. Mr. Rod Whitt is the Engineering Manager for the Construction Department (the “Department”) for the City of Tempe. He is not an engineer. Mr. Whitt has held his current position for 12 years. Mr. Whitt testified that his Department is responsible for inspecting new developments in the City of Tempe to determine if a contractor has substantially complied with the development’s grading & drainage plans and city permits. Mr. Whitt testified that his job is to supervise the engineering inspectors who conduct field inspections at the developments. Mr. Whitt testified that the engineering inspectors are not engineers.

8. Mr. Whitt testified that the primary purpose of a field inspection is to verify that the water draining from a development does not flow into a neighbor’s property or “into the right away.” Mr. Whitt testified that the City of Tempe will not allow large quantities of water to flow from a development into the surrounding public streets. Mr. Whitt testified that Tom Scanlon was the engineering inspector who inspected the Site. Mr. Whitt testified that Mr. Scanlon’s inspection included the verification of the installation of the seven drywells installed at the Site. Mr. Whitt testified that Mr. Scanlon would have noted in his report if a drywell was missing at the Site. Mr. Whitt testified that Mr. Scanlon did not include in his report that a drywell was missing. Mr. Whitt testified that it is his opinion that all seven of the drywells were installed at the Site.

B. Catch Basins and Piping 9. Mr. Berger testified that the Respondent was supposed to install two catch basins behind the houses located on Lots 10 and 29[1]. Mr. Berger testified that the two catch basins are shown in the Plans for the Site. See Complainant’s Exhibit 1. A catch basin is a 24” by 36” rectangular concrete box with a grated lid that allows water to drop into the concrete box. The box is about two to three feet deep. Mr. Berger testified that the Respondent was also supposed to connect (with underground piping) the two catch basins to two drywells located in the street[2] in front of Units 110 and 129.

10. Mr. Burger testified that the catch basins (and connector piping) are supposed to be located on private property. Mr. Burger testified that Ellen Palmer is the owner of Unit 110. Ms. Palmer did not appear for the hearing in this matter. The owner of Unit 129 also did not appear for the hearing in this matter.

11. Mr. Burger testified that the homeowners at the Site are not supposed to obstruct the flow of water in their lots pursuant to Provision 3.22 of the Site’s CC&Rs. Mr. Burger testified that the Complainant sent a letter to the homeowners reminding them that they cannot obstruct the flow of water in their yards. Mr. Burger testified that the Complainant “has no control over what people do in their backyard, and if they change the drainage and it results in damage, it is their own individual responsibility and liability, not the [Complainant’s].” See Complainant’s Exhibit 8.

12. Mr. Whitt testified that it is unknown to him if Mr. Scanlon inspected the catch basins at the Site. Mr. Whitt testified that it was not the responsibility of his Department to inspect the Site for the catch basins. Mr. Whitt testified that his Department approved the drainage system at the Site based on the certified drainage drawings submitted to the Department by the Site’s engineer (i.e., Mr. Jonathan Johns, P.E.). Mr. Whitt testified that it is the duty of the engineer to verify if the catch basins were installed at the Site. Mr. Whitt testified that the engineer’s certified drainage drawings showed that the Site’s drainage system was in substantial compliance with the Plans for the Site. Accordingly, Mr. Whitt testified that the City of Tempe issued a Letter of Acceptance regarding the drainage at the Site.

13. Mr. Whitt testified that the catch basins are an important component of the drainage system at the Site. Contrary to his prior testimony, Mr. Whitt conceded that Mr. Scanlon should have verified if the catch basins were installed behind Units 110 and 129. Mr. Whitt testified that Mr. Scanlon should have noted in his report that the catch basins were missing.

14. Mr. Whitt testified that he walked through the Site on June 12, 2000. Mr. Whitt testified that he inspected the backyard of either Unit 110 or 129. Mr. Whitt testified that he did not ask the homeowner if there was a catch basin in the homeowner’s backyard. Mr. Whitt testified that he never removed any soil to determine if the catch basin had been covered by the homeowner. Mr. Whitt testified that he was not able to locate the catch basins in the backyards of Units 110 and 129.

15. Mr. Whitt testified that he used a mirror to reflect light down into the drywells located in the street in front of Units 110 and 129. Mr. Whitt testified that he could not locate where the piping from the catch basins (allegedly located behind Units 110 and 129) connected to the drywells. However, Mr. Whitt conceded that he could not say for certain if the catch basins (and connector piping) were missing.

16. Mr. Whitt testified that he sent a letter to the Respondent and Mr. Jonathan L. Johns, P.E., the Site’s Engineer, regarding his concerns about the drywell (near the pool), the catch basins and the connector piping. Mr. Whitt testified that he received a copy of a letter sent by Mr. Johns to the Respondent. See Respondent’s Exhibit C. Mr. Whitt testified that Mr. Johns seemed more concerned about the overall drainage at the Site. Id. Mr. Whitt testified that Mr. Johns did not express concerns over the missing drywell, catch basins and connector piping. Id.

17. On September 30, 1997, the City Engineer for the City of Tempe approved the Plans for the Site. See Respondent’s Exhibit F. The City of Tempe approved the Site’s completed drainage system on May 21, 1998. See Respondent’s Exhibit D. The City of Tempe certified the Site on December 16, 1998. Id. On August 23, 1999, the City of Tempe approved the Offsites (Storm Water Storage/Disposal and/or Flood Protection Measures) for the Site. See Respondent’s Exhibit E.

18. Mr. Jonathan Johns, P.E., is a registered professional engineer licensed with the Arizona Board of Technical Registration. Mr. Johns is the President of High Desert Engineering, Inc. Mr. Johns has over 20 years of experience in civil engineering. He is an expert in developing grading and drainage plans. Mr. Johns certified the Plans for the Site. Mr. Johns testified that the City of Tempe approved the Plans for the Site prior to the construction of the Site. Mr. Johns testified that the City of Tempe also certified the Site after the Site was constructed. Mr. Johns testified that it is the duty of the City of Tempe to inspect the Site’s drainage system including all drywells and catch basins. Mr. Johns testified that he believes that the catch basins (and connector piping) are located in the backyards of Unit 110 and 129 because the City of Tempe should have inspected the catch basins and connector piping prior to certifying the Site.

19. Mr. Johns testified that only Units 110 and 129 have catch basins connected to drywells. Mr. Johns testified that the catch basins (and connector piping) were not included in the initial plans for the Site. Mr. Johns testified that the catch basins (and connector piping) were included in the Plans at the request of the City of Tempe. Mr. Johns testified that the catch basins (and connector piping) have no effect on the drainage flows at the Site. Mr. Johns testified that the catch basins (and connector piping) were designed only for the percolation of water at Units 110 and 129. Mr. Johns testified that the catch basins (and connector piping) were never designed to benefit the other homeowners at the Site.

20. Mr. Johns testified that the catch basins were supposed to be located near the bottom of the retention areas located in the backyards of Units 110 and 129. Mr. Johns testified that he visited the Site in June of 2000. Mr. Johns testified that he observed that the homeowners for Units 110 and 129 have filled in the retention areas in their backyards. See Complainant’s Exhibit 3 (picture). Mr. Johns testified that the homeowners have also planted trees and laid concrete in the retention areas. Mr. Johns testified that the catch basins could possibly be covered by one to two feet of soil and concrete. Mr. Johns testified that he has received no complaints from the individual homeowners at Units 110 and 129 about flooding. 21. Mr. Johns testified that the boundary lines for the individual lots were slightly changed during the initial construction phase at the Site so the catch basins may possibly be located in the backyards of Units 111 and 130. Mr. Johns testified that it would require substantial excavation in the backyards of Units 110, 111, 129 and 130 to locate the catch basins. Mr. Johns testified that it would be economically wasteful to excavate for (or to install) the catch basins because they are not necessary for proper drainage at the Site. Mr. Johns testified that the excavation may also void any warranty with McGuckin.

22. Mr. Johns visually inspected the drywells in the street in front of Units 110 and 129. Mr. Johns testified that that he could not determine if the piping from the catch basins was connected to the drywells. Mr. Johns testified that he would have to crawl down into the drywell to positively determine if the connector piping was installed. Mr. Johns testified that the Site’s drainage system is still in substantial compliance with the Plans for the Site even without the catch basins and connector piping.

23. Mr. Dan McDowell testified that the Respondent contracted with McGuckin to install the drywells and the catch basins (with connector piping). However, on April 19, 2000, Mr. LeBlanc wrote a letter to the Respondent regarding the catch basins (and connector piping). See Complainant’s Exhibit 4. Mr. LeBlanc wrote the following: Our Contract with Legend Development, from which you selectively referenced, clearly states that the scope of our work was ‘Furnish all

Material and Equipment required to complete per the attached quote (2) two MaxWell Plus Drywells and (1) one MaxWell Type IV drywell, per City of Tempe approved Grading Plans.’ As you can see, the attached quote is specifically for MaxWell drywells only. There is no

mention of other drainage structures such as catch basins and piping. See Complainant’s Exhibit 4 (emphasis added).

24. Mr. LeBlanc further wrote the following: Dan, you know that these other structures were not part of our scope of work. You in fact told me yesterday, and I quote, ‘I had my landscaper install the piping, but he apparently forgot to connect to the drywells and he must have forgotten the catch basins too.’ Please Dan, don’t threaten us with ‘corrections of deficient construction’ legalese. Our attorney concurs that our contract is very clear and if your catch basins and piping were not installed, then it clearly was not our omission. See Complainant’s Exhibit 4. C. Ponding 25. Mr. Burger testified that there is excessive ponding in the street (or driveway) in front of Unit 117. See Complainant’s Exhibit 2 (pictures). Mr. Burger testified that the water is not properly draining from the street in front of Unit 117.

26. Mr. Johns viewed the pictures of the ponding in the street (or driveway) in front of Unit 117. See Complainant’s Exhibit 2. Mr. Johns testified that the driveway in front of Unit 117 was designed as a retention area for water. Mr. Johns testified that the water is supposed to drain or flow down the driveway in front of Unit 117. Mr. Johns testified that the driveway in front of Unit 117 appears to be working as designed.

27. Mr. Johns testified that there are two drywells in the driveway that runs in front of Unit 117. Mr. Johns testified that the drywells are primarily used for percolation (and not retention). Mr. Johns testified that the majority of the water will flow to the second drywell. However, Mr. Johns testified that the first drywell will assist the second drywell in a major storm. Mr. Johns testified that the placement of the first drywell one foot off center is not significant. Mr. Johns testified that the second drywell may need to have its rim adjusted. Mr. Johns testified that McGuckin should handle this adjustment pursuant to its warranty.

28. Mr. Johns testified that the driveway in front of Unit 117 is designed as a retention area. Mr. Johns testified that this retention area is part of an elaborate system of retention areas designed for drainage at the Site. Mr. Johns testified that the two drywells located in the driveway will function together to percolate the water from a 100 year storm. Mr. Johns testified that the Site is designed to carry excess water to the surrounding public streets if a greater than 100 year storm should hit the Site.

29. Mr. Johns testified that the purpose of a drywell is to percolate water in a retention area. Mr. Johns testified that a drywell returns water to the surrounding soil. Mr. Johns testified that a drywell is not designed to retain water. Mr. Johns testified that the drywells at the Site are not necessary for the drainage of water at the Site. Mr. Johns testified that the Site is elaborately designed to move or carry water through the Site. Unfortunately, Mr. Johns testified that the homeowners at the Site have blocked (by improper landscaping) this elaborate drainage system. Mr. Johns testified that the Complainant should be primarily concerned about the actions of these homeowners. D. PVC Drainage Pipe 30. Mr. Thompson testified that the Respondent failed to install an 8 inch PVC drainage pipe beneath the Vaughn Street entrance driveway.

31. Mr. Whitt viewed the Plans for the Site. See Complainant’s Exhibit 1. Mr. Whitt testified that the Plans show that there is supposed to be a drainage pipe that passes under the Vaughn Street gate. Mr. Whitt testified that he found no PVC drainage pipe under the Vaughn Street gate. Mr. Whitt testified that the purpose of this drainage pipe is to equalize the water level between retention basins.

32. Mr. Johns testified that he believed that the 8” PVC drainage pipe was initially installed by the Respondent. Mr. Johns testified that the 8” PVC pipe is designed to allow equalization or flow of the drainage around the Site. Mr. Johns testified that the 8” PVC pipe was located in the “right of way” at the Vaughn Street entrance driveway. Mr. Johns testified that it was his understanding that a utility company disturbed the area where the 8” PVC drainage pipe was located. Mr. Johns testified that the City of Tempe should replace the 8” PVC drainage pipe. Mr. Johns testified that any excess water caused by the absence of this drainage pipe will flow out into the public street. Mr. Johns testified that the Site will not be affected by the loss of this drainage pipe.

CONCLUSIONS OF LAW 1. The Complainant has the burden of proof, and the standard of proof on all issues is by a preponderance of the evidence. Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). A "preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not." Morris K. Udall, Arizona Law of Evidence, §5 (1960). It "is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not." Black's Law Dictionary, 1182 (6th ed. 1990).

2. The Registrar of Contractors charged the Respondent with the possible violation of A.R.S. §32-1154(A)(7) & (3)(namely Rule R4-9-108). Rule R4-9- 108 requires, in part, that the Respondent perform all work in a professional and workmanlike manner and in accordance with any applicable building codes and professional industry standards.

3. A.R.S. §32-1154(A)(7) states that a holder of a license shall not commit the following: The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured.

A. Drywell 4. The undersigned Administrative Law Judge concludes that the preponderance of the evidence shows that the Respondent has not violated A.R.S. §32-1154(A)(3) & (7) regarding the drywell located by the Site’s pool. The evidence shows that McGuckin installed the drywell near the Site’s pool over three years ago. It is the duty of the Complainant to locate and maintain the drywells at the Site.

B. Catch Basins and Connector Piping 5. The undersigned Administrative Law Judge concludes that the preponderance of the evidence shows that the Respondent has not violated A.R.S. §32-1154(A)(3) & (7) regarding the catch basins and connector piping. The evidence shows that no one has been able to determine conclusively if the catch basins (and connector piping) have been installed in the yards behind Units 110 and 129. However, the City of Tempe approved the drainage system at the Site on May 21, 1998. The City of Tempe also certified the Site on December 16, 1998. The catch basins (and connector piping) are part of the Site’s drainage system. It can only be assumed that the Inspector for the City of Tempe verified the installation of the catch basins and connector piping prior to certifying the Site.

6. The Respondent hired McGuckin to install the catch basins and connector piping behind Units 110 and 129. McGuckin denied that the catch basins and connector piping were within the scope of its contract with the Respondent. This evidence would support the Complainant’s argument that the Respondent never installed the catch basins and connector piping behind Units 110 and 129. However, assuming that the catch basins were never installed, the Complainant must still show that it has been substantially injured by the Respondent’s actions. Mr. Johns testified that the catch basins were designed solely for the benefit of the homeowners who reside at Units 110 and 129. Those homeowners failed to appear for the hearing in this matter to testify that they have been substantially injured by the omission of the catch basins.

7. Mr. Johns testified that the catch basins have no effect on the drainage for the entire Site. Accordingly, the undersigned Administrative Law Judge concludes that the Complainant cannot be substantially injured by the omission of the catch basins and connector piping. More importantly, Mr. Johns testified that it would be economically wasteful to search for (or to install) the catch basins behind Units 110 and 129. The undersigned Administrative Law Judge refuses to recommend that the Respondent be required to tear up a homeowner’s private property to search for (or to install) catch basins that have little or no effect on the drainage at the Site. This is especially true considering that the homeowners for Units 110 and 129 are not parties in this matter.

C. Ponding 8. The undersigned Administrative Law Judge concludes that the preponderance of the evidence shows that the Respondent has not violated A.R.S. §32-1154(A)(3) & (7) regarding the ponding in the driveway in front of Unit 117. Mr. Jonathan Johns is the only expert (on grading and drainage) to testify at the hearing in this matter. Mr. Johns testified that the driveway in front of Unit 117 is working as designed. The Complainant repeatedly argued that the Site is susceptible to flooding in a 100 year storm. However, the Complainant provided no expert evidence on this issue. The undersigned Administrative Law Judge cannot rely on pure speculation in the face of expert testimony to the contrary. D. PVC Drainage Pipe 9. The undersigned Administrative Law Judge concludes that the preponderance of the evidence shows that the Respondent has not violated A.R.S. §32-1154(A)(3) & (7) regarding the PVC drainage pipe at the Vaughn Street driveway entrance. The evidence shows that a utility company probably destroyed this drainage pipe. Furthermore, Mr. Johns testified that this missing drainage pipe will not affect the Site because any excess water will spill out to the public street.

10. The undersigned Administrative Law Judge concludes that grounds do not exist to discipline the Respondent’s Class B- license pursuant to A.R.S. §32-1154.

RECOMMENDED DECISION Based upon the foregoing, the undersigned Administrative Law Judge recommends that the entire Citation and Complaint in Case Number 01-0226 be dismissed.

Done this day, February 21, 2001.

______________________________________ Casey J. Newcomb Administrative Law Judge

Original transmitted by mail this ____ day of February, 2001, to:

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

By ___________________________

----------------------- [1] For purposes of this Recommended Decision, Lots 10, 11, 29 and 30 are the same as Units 110, 111, 129 and 130, respectively. [2] A street inside of a planned community is actually called a driveway. For purposes of this Recommended Decision, the streets outside of the planned community shall be called public streets.

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826