ALJDEC decisions subject to certification as final

08F-M0524-ROC · Registrar of Contractors · 2008-10-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 15, 2008 APPEARANCES: Attorney Nancy McDade for Complainant; Attorney Monty Greek for Respondent ADMINISTRATIVE LAW JUDGE: Thomas Shedden _____________________________________________________________________ The issue presented is whether Respondent Montevina Estate Homes LLC (License No. 169152) is subject to discipline for acts or omissions in violation of A.R.S. § 32-1154(A). Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order: FINDINGS OF FACT Complainant is Foothills Community Association (“Foothills”). Respondent, Montevina Estate Homes LLC (“Montevina”) is the holder of License No. 169152, a Class B- contracting license issued by the Registrar of Contractors (“ROC”). Mr. Jason Kush is Montevina’s vice-president.

In August 2005, Foothills executed an easement allowing Montevina to install a portion of a sanitary sewer line across Foothills’ property near the intersection of Liberty Lane and Briarwood Terrace in Phoenix. See Exhibit I. Montevina hired Donavan Construction to install the sewer line. The sewer line crosses part of a wash that is on Foothills’ property and joins the existing City of Phoenix sewer line in the wash. Donovan also installed a manhole at the junction. The wash is about three miles long, and runs roughly parallel along Liberty Lane in the area at issue; the wash is about or 40 feet wide where the sewer line crosses. On September 6, 2007 Foothills filed Complaint No. M08-0524 alleging that the sewer and manhole installation had damaged the flow in the wash. See Compliant, in administrative record. The Complaint also alleged Montevina damaged landscaping, but at the start of the hearing the parties agreed that the landscaping was not an issue requiring resolution at this hearing. The sewer line crosses the wash relatively close to where the wash enters a culvert that goes under Briarwood Terrace. Foothills alleges that water ponds in this culvert due to the installation of the sewer line and manhole. Montevina does not dispute that the ponding occurs, but Montevina asserts that it is not the cause of this ponding. ROC assigned Inspector Geoff Galgan to investigate. On November 14, 2007 Inspector Galgan conducted a job-site inspection; Jocelyn Ross, Jeff Reynolds and attorney Jeff Corben were at the inspection representing Foothills; Jason Kush and attorney Leo Pruett were present representing Montevina. On November 29, 2007, Inspector Galgan issued a letter to the parties stating that the Complaint would be closed. Inspector Galgan did find that there was a high spot in the wash that could be causing a blockage, but the high spot extends beyond the area in which the sewer line was installed and the grade where Montevina backfilled the wash was in the same plane as this high spot. Consequently, Inspector Galgan concluded that Montevina was not required to take any corrective action. On April 16, 2008 ROC issued Citation and Complaint No. M08-0524 alleging that Montevina may have violated A.R.S. § 32-1154(A)(7) and (A)(3) (R4-9- 108). The matter was not resolved and Foothills requested a hearing. On July 3, 2008, ROC issued a Notice of Hearing setting the matter for 9:00 a.m. September 15, 2008 at which time the hearing was convened. Foothills presented the testimony of Michael Stephens, Ms. Ross, Mr. Reynolds and Ms. Regis Salazar; Montevina presented the testimony of Mr. Kush; and Inspector Galgan testified. Foothills had 11 exhibits entered into evidence (A through K) and Montevina had 14 exhibits admitted into evidence (1 through 14). Some of the exhibits have text or other notations on them; that text is given no weight independent of any witness testimony about the text. Inspector Galgan’s Testimony Inspector Galgan provided credible testimony that was consistent with his letter of November 29, 2007. Inspector Galgan found that the area in the wash that is higher than the culvert (and potentially causing a flow obstruction) was present before Montevina installed the sewer line and manhole. Inspector Galgan found that Montevina had returned the wash to the same grade that existed before the sewer line was installed and that the high-point/obstruction extended beyond the area that Montevina disturbed. Inspector Galgan’s opinion was based on his observations at the site, his experience related to installation of sewers and manholes, and his understanding of the amount of disturbance that would be required to install an 8-inch sewer line. Inspector Galgan did not issue a corrective work order to Montevina because Montevina had not violated any rules. Mr. Stephen’s Testimony During the time that the sewer line and manhole were installed, Mr. Stephens owned a home that is adjacent to the wash. Mr. Stephens testified that he has no experience in construction and he observed the work at issue only in passing in the mornings and on his return home in the evenings; his observations were typically limited to a quick look. Mr. Stephens testified that Montevina did not remove any dirt from the wash, but merely spread that dirt in the wash. This testimony is given no appreciable weight based on Mr. Stephens’ acknowledgement that he did not observe most of the work that was done and because Mr. Kush provided credible testimony that the excess dirt was removed from the site. According to Mr. Stephens, there was no ponding of water at the culvert until after Montevina completed the work at issue. Mr. Stephens acknowledged that the sewer line installation was “inconvenient” for him because several trees on Foothills’ property that gave him shade were removed. Ms. Ross’s Testimony Ms. Ross is employed by Rossmar & Graham and is the manager for the Foothills Community Association, a position she has held for about a year and a half to two years. Rossmar & Graham provides management services to associations such as Foothills. Ms. Ross testified that the culvert at Briarwood Terrace is the only culvert at which ponding occurs and that this ponding did not occur prior to the time the sewer line and manhole were installed. After it rains, Foothills pumps out the culvert at a cost of somewhere between $276.00 and $350.00. Ms. Ross requested that Landmark Land Management LLC provide an estimate as to the cost to allow the wash to flow without ponding. The estimate calls for re-grading a section of the wash about 100 feet long at a cost of $11,137.09. See Exhibit H. An estimate from W.E. Landscape Group, obtained before Ms. Ross started at Foothills, calls for re-grading the wash “from culvert to culvert” at a cost of $17,100.00. See Exhibit 11. Mr. Reynolds’ Testimony Mr. Reynolds is employed by Rossmar & Graham as a Master Community Manager. He was previously the assistant community manager for Foothills. While at Foothills, Mr. Reynolds had responded complaints about water in the culvert at Briarwood Terrace and he had arranged to have that water pumped. According to Mr. Reynolds this was the only culvert that required pumping. Other than this pumping, Mr. Reynolds was unaware of Foothills having ever performed any maintenance work on the culverts through which the wash runs. Ms. Salazar’s Testimony Ms. Salazar is employed by Rossmar & Graham; she has held positions in administrative services and was an assistant manager for Foothills. Ms. Salazar testified that she contacted the City of Phoenix to get the as- built plans for the sewer line and had tried to locate other documents related to the installation of the sewer line. Ms. Salazar has observed the area at issue, but had no personal knowledge of what conditions were like before the sewer was installed. Mr. Kush’s Testimony Mr. Kush’s father owns Montevina; Mr. Kush has been vice-president of development since 2006. Mr. Kush now holds a contractor’s license issued by ROC, but at the time the sewer was installed that license had not been issued. The sewer line and manhole installation took five days and Mr. Kush was on- site for at least part of each day. The sewer line at issue serves a nine home development built by Montevina. Because the area is along the mountainside, connecting to the existing sewer line required running the new sewer line for about a mile and a half. The initially proposed point of connection, which was in the street, was found to be unacceptable because excavation revealed an unmarked Salt River Project line. Consequently the connection was made in the wash. The connection required City of Phoenix approval and inspection. Mr. Bill Strickland the City’s inspector was on-site each day. Montevina did not do the actual work but hired Donavan Construction to install the sewer and manhole. The sewer line is 8-inch clay pipe. To install the sewer, Donavan scraped the rocks that line the wash to the sides; dug a trench about four feet wide; installed the pipe; backfilled with clean sand and dirt; and returned the rocks to the wash. The wash was then returned, as nearly as possible, to the grade that existed prior to the trenching. This was done by matching the existing, undisturbed areas of the wash on each side of the excavation. The native soils from the trench were too rocky for use as backfill so that soil was trucked offsite and spread on the grounds of a near-by church that wanted fill material. Culverts require regular maintenance. CONCLUSIONS OF LAW Foothills has the burden of proof to show that the alleged violations occurred. The standard of proof on all issues in this matter is by a preponderance of the evidence. See A.A.C. R2-19-119. A preponderance of the evidence is “[e]vidence 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). “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). Foothills has not met the burden of proof. Inspector Galgan found that the high spot causing the blockage was present before Montevina installed the sewer line and that Montevina returned the wash to the existing grade. Consequently, Inspector Galgan concluded that Montevina was not responsible for the blockage. Inspector Galgan’s findings are bolstered by the two “repair” estimates that Foothills obtained, each of which shows that to allow unobstructed flow in the wash would require re-grading an area substantially larger than the 4 foot wide excavation required for the sewer line installation. Foothills presents no substantial evidence to rebut Inspector Galgan’s findings, but argues that Inspector Galgan’s opinion was not valid because he had been misled about the amount of soil removed during construction. This argument is not supported by the evidence of record and misrepresents Inspector Galgan’s testimony. The evidence shows that Inspector Galgan was aware of the approximate volume of soil excavated and his opinion was based on his own observations and his experience with similar projects. The preponderance of evidence does not show that Montevina violated A.R.S. § 32-1154(A)(7) because Montevina did not commit any wrongful or fraudulent act. The preponderance of evidence does not show that Montevina violated A.R.S. § 32-1154(A)(3) because Montevina did not violate the workmanship standards. Because Foothills has not met the burden of proof to show that Montevina violated A.R.S. § 32-1154(A)(3) or A.R.S. § 32-1154(A)(7), discipline against Montevina is not warranted. RECOMMENDED ORDER

IT IS ORDERED that that no discipline be imposed against Montevina’s license, and that the Citation issued in Case Number M08-0524, together with the Complaint upon which it is based, be dismissed. In the event of certification of the Administrative Law Judge’s Decision and Order by the Director of the Office of Administrative Hearings, then the effective date of the order shall be 40 days from the date of that certification. Done this day, October 1, 2008

______________________________________ Thomas Shedden Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2008, to:

Armando Contreras, Director Registrar of Contractors 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________ -----------------------

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