ALJDEC decisions subject to certification as final

05F-A0259-ROC-com · Registrar of Contractors · 2007-09-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 11, 2007 APPEARANCES: Leona Brewer, Complainant; Al Setter and Scott Setter, on behalf of Respondent. ADMINISTRATIVE LAW JUDGE: Michael K. Carroll _____________________________________________________________________

On June 7, 2007, the Registrar of Contractors (“ROC”) set this matter for a Compliance Hearing to determine if Respondent had complied with an Order requiring it to correct “the drainage problems on Complainant’s premises including, without limitation, those related to the dry creek bed and surrounding areas.” FINDINGS OF FACT AND CONCLUSIONS OF LAW Findings of Fact: (1) On September 8, 2006, the ROC issued an Order adopting the Recommended Order in an Administrative Law Judge Decision, dated July 19, 2006. That Order required to Respondent to correct drainage problems in Complainant’s yard. (2) On November 28, 2006, the ROC received a letter from Respondent in which it provided details of the action taken to correct the drainage problems in Complainant’s yard. Exhibit C89. (3) On December 14, 2006, the ROC received a letter from Complainant in which she disputed Respondent’s claim that the drainage problem had been corrected. Exhibit C90. (4) On January 29, 2007, ROC Inspector John Prince performed a compliance inspection. After the inspection, the inspector issued a report in which he indicated that Respondent had attempted to correct the drainage problems, but that it had been unsuccessful. Exhibit C91 (5) On February 21, 2007, the inspector conducted a second compliance test. At the instruction of his supervisor, the inspector ran water in Complainant’s backyard until it pooled. When he returned two days later to see if the water was still standing, it was not. Although the inspector acknowledged that the drainage met the workmanship standards for site work established by the ROC,[1] the inspector concluded that the drainage was not adequate and that Respondent had not complied with the ROC’s Order. Exhibits R20-R22. (6) Complainant testified that she is no longer living at the residence, and was not present during rain storms to determine the extent of the existing drainage problems. She also testified that, during the four years she lived in the house, there was never any flooding into the house as a result of the drainage problems. (7) David West, a civil engineer whose company was responsible for engineering the master drainage plan for the residential development in which Complainant’s house was built, testified that Complainant’s house was on one of the earliest lots developed for that subdivision. He testified that the grades for the early lots met the minimum requirements for drainage, but that determination was made before the block walls separating the lots had been constructed. He also said that the lots were tiered and that there was a five-foot easement on the side of each of the lots which was specifically dedicated for water drainage from the adjoining lot. After the initial homes were built, the developers discovered that the early lots, although meeting the minimum requirements for slope, did not “leave a lot of room for error.” Lots purchased after Complainant’s lot was purchased were finished with steeper grades to facilitate drainage. He said that Complainant’s lot is one of the more “challenging” lots in the subdivision as far as drainage was concerned. (8) Al Setter, who represented Respondent, testified that Respondent performed three “major reworks” to address the drainage problems on Complainant’s lot. After the ROC issued its Order, Respondent adjusted problem areas in and around the drainage “swale” that was specifically designed by the subdivision developer to move excess water through the side and rear yards and into another drainage swale at the front of each lot. After completing the corrective work, Respondent surveyed the yard and determined that there was adequate slope in the swale to insure that the water would flow freely. He acknowledged that the drainage was slow. However, he stated that, if the swale were kept free of silt and debris, there was a positive flow of water. Conclusions of Law: The only issue in this case is whether or not Respondent substantially complied with the ROC’s Order, of September 8, 2006, requiring it to correct drainage problems in Complainant’s yard. Workmanship standards for licensed contractors, published by the ROC, provide: Grades should be established to insure proper drainage away from the structure. No standing water should remain in the yard more than 48 hours after a rain, unless requirements specify retention of storm water in yard.

Workmanship Standards for Licensed Contractors, February, 2004, at page 41. The inspector testified that he allowed the water to pond in Complainant’s yard, and that, when he returned to the yard 48 hours later, the water was gone. Additionally, there was testimony presented at the hearing which suggested that drainage problems experienced by Complainant were primarily attributable to the developer of Complainant’s residential subdivision. Finally, Respondent presented evidence that survey readings it had taken after the corrective work was completed established that the drainage swale in Complainant’s yard had sufficient slope to maintain a positive flow of water from the high point of the yard to the termination point at the front of Complainant’s lot. That evidence was not disputed. RECOMMENDED ORDER Respondent has substantially complied with the terms and conditions of the Decision and Order, issued on July 25, 2006. It is recommended that the disciplinary sanction imposed against Respondent be rescinded. Done this day, September 18, 2007.

______________________________________ Michael K. Carroll Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2007, to:

Fidelis V. Garcia, Director Registrar of Contractors Legal Department 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

----------------------- [1] There was also testimonial and documentary evidence presented at the hearing which established that the ROC standard for water drainage was consistent with the Prescott Valley Building Code. Exhibit R57.

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