ALJDEC decisions subject to certification as final

08F-M0919-ROC · Registrar of Contractors · 2008-11-13

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 28, 2008.

APPEARANCES: >The Complainant appeared in his own behalf. >The Respondent appeared through Larry Dwight Camomile, its qualifying party and a member of the LLC entity.

ADMINISTRATIVE LAW JUDGE: Robert I. Worth _____________________________________________________________________

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. Pursuant to a written proposal, accepted by Complainant and ripening into a contract, Respondent agreed to and did perform landscaping work on Complainant’s property. The agreed cost price for such work of approximately $14,000.00 was fully paid by Complainant to Respondent.

2. The contractual scope of work for Respondent consisted of providing and installing certain designated plantings, shaping some dirt provided by the homeowner for decorative mounds along the boundary walls, irrigation, curbing, a concrete patio extension, a garbage can pad, boulders and applying decorative granite rock over the existing ground surface in the rear and along both sides of the property.

3. Complainant had become the owner and occupant of a new residence purchased from and constructed by Brown Family Communities (no relation to the named Complainant herein), as the project’s general contractor. Soon after Complainant’s occupancy, a realistic problem was experienced with the ability of the lot to adequately drain water from the rear of the home, along both sides and out to the street in front, as intended and required. Although it was shown that the Complainant’s lot, as well as all others in the subdivision, had passed applicable local inspections by the municipal building authority, the demonstrated excessive flooding or ponding conditions on portions of the property reflected an improper and unacceptable result.

4. The excessive water collection condition on the ground surface was further shown to have been traceable, at least in large part, to the incorrect placement of a drainage block too high above the ground surface in a wall constructed by the general contractor between the rear and the front of the property. Such wall was shown to be effectively blocking or impeding the flow of water being directed from the rear towards the front and the street, especially on the East side of the property.

5. The high placement by the project’s general contractor of the drain block in the wall dividing the front from the rear of the property was visible and reasonably noticeable at the time of Respondent’s landscaping work and should have prompted Respondent, as an experienced specialty contractor either to undertake and accomplish remedial measures on its own, to cease continuing with its landscaping

work and to expressly advise Complainant of the need for correction, or to obtain an advance written disclaimer of responsibility if Respondent’s work products, the intended plantings, were adversely impacted. Respondent did none of those things.

6. The excessive flooding or ponding condition was additionally aggravated by the placement of a mound by the general contractor on the front-facing side of the East perpendicular wall and also by at least one of Complainant’s neighbors who appeared to have been over-watering on the adjacent lot. Respondent’s contract obligation had included the providing and planting of 49 individual items of trees and shrubs. The ongoing flooding and water ponding ultimately resulted in the loss of approximately such plantings, representing most all of the trees and shrubs that had been planted by Respondent on the East side.

7. The general contractor had subsequently recognized its primary responsibility for the drainage block placement deficiency and caused the enlargement of the opening around and below the drainage block in the wall so as to enable improved drainage at the ground surface level, also removing the mounded dirt in front of the wall that further impeded the flow of drainage water. The general contractor had additionally transmitted a monetary payment of $250.00 to Complainant for five citrus trees in the East side yard that had died because of the excessive ponding water condition. The neighbor was also shown to have curtailed the amount of watering on the adjacent lot.

8. It was not disputed that, aside from a few decorative elevated mounds of dirt against the dividing wall and away from the intended drainage flow, the work of Respondent in all other ground surface areas consisted only of furnishing and applying porous granite rock materials over the existing grade without altering such grade as finalized by the general contractor. The mounding of dirt was not shown to have had any adverse impact upon the water ponding issue.

9. Following the filing by Complainant of the within complaint and a jobsite visit after the above-described generally beneficial actions had been taken by the project’s general contractor and by the neighbor, the Registrar’s assigned Inspector declined to issue any Corrective Work Order against Respondent based upon his inability to conclude that any remaining ground surface problems leading to any excessive ponding were attributable to any lack of workmanship or any improper grading on the part of Respondent. The Inspector had concluded that the flow of drainage water was not being impeded by the decorative porous granite rock placement. However, no consideration was apparently given to the fact that Complainant did not receive the benefit of part of his contractual bargain with Respondent due to the avoidable loss of planted materials that never should have been installed by Respondent without assuring that the drainage block corrections and mound elimination work had been accomplished by others.

10. Having been effectively relieved of any determined obligation to perform corrective work, Respondent did not undertake to perform any remedial measures on the jobsite. However, Complainant was shown to have subsequently initiated the performance, through another contractor, of additional work so as to further improve the drainage capabilities along the East side of the property. Such actions on the part of Complainant to mitigate his potential damages from ongoing flooding conditions adversely affecting the features placed on the property as well as the foundation of his residential structure are found to have been prudent under all the circumstances. The credible evidence revealed that Complainant incurred costs for having the successor contractor create a swale to better channel the draining water flow at a cost price of $1,270.00, some substantial part of which sum was attributable to moving aside and replacing the decorative granite rock materials.

11. In addition to the aforesaid remedial work arranged for by Complainant, the evidence further demonstrated that Complainant’s losses of the plantings installed on

the East side where the excessive flooding existed had totaled 18 identified items, five of which were the subjects of a monetary reimbursement from the general contractor. Complainant will incur added costs to replace the flood-damaged plantings, projected to be in the sum of $1,840.00, including planting labor. Reducing such total anticipated costs by the $250.00 given to Complainant by the general contractor, the net plantings loss for Complainant appeared to be $1,590.00. When added to the $1,270.00 expenses for necessary East side yard work further correcting and improving the still-remaining drainage problems, the overall costs for Complainant to more fully rectify the drainage and to replace the damaged planting materials appeared to be an aggregate combined expense total of $2,860.00. No portion of the above-described incurred or to be incurred expenses was shown to be attributable to any act or omission of Complainant in his use of the property.

12. The fact that Respondent had performed work over the finish grading by the general contractor should not and does not make Respondent an insurer against any and all future undesirable effects or conditions taking place on the surface or subsurface nor does such subsequent work serve to relieve the general contractor of its responsibilities. Especially where it was shown that Respondent’s work over the then-existing grade did not alter such grade in any way but merely consisted of the placement of porous materials on top of the graded surface, no finding of any sole and absolute liability on the part of Respondent is warranted.

13. Notwithstanding a justifiable observation and determination that the primary and dominant responsibility for the excessive flooding or ponding condition must be held to fall upon the project’s general contractor, with respect to the obligations owed to Complainant, who was and still is faced with expenses incurred or to be incurred to rectify the remaining drainage problems and to replace the already-paid-for plantings and decorative rock, a resort to a comparative or shared fault analysis appears fully

appropriate. Under all the facts and circumstances, it is found and determined that the proper share of responsibility for Respondent to Complainant should be no greater than one-fourth (25%) of the total of Complainant’s past and probable future expenses.

14. The Respondent’s proceeding with its landscaping work without either correcting or at least giving notice and awaiting others to correct a visible impediment to drainage through the East side yard reflects adversely upon Respondent’s workmanship. Additionally, by failing to so correct or to notify Complainant of the avoidable future flooding condition and loss of the installed plantings, Respondent is found to have committed a wrongful act resulting in damage to the homeowner, within the meaning and intent of another contracting law provision charged herein to have been violated by Respondent.

15. Although it is not a proper function of either the Office of Administrative Hearings or the Registrar of Contractors to adjudicate and award money damages which must be recovered, if at all, through pursuit of a civil court action, the Registrar is empowered by statute to impose reasonable conditions which may serve to reduce or eliminate any otherwise appropriate disciplinary penalties for proven violations of the State’s contracting laws. Whenever the performance of further corrective or remedial measures on a jobsite by the original contractor is no longer warranted or desired, the inclusion of a condition in the nature of restitution, total or partial, is fully appropriate and equitably justified. Such authorization to provide for restitution from a contractor to a prevailing party in an administrative action has been legally upheld in Sunpower of Arizona v. Arizona State Registrar of Contractors, 166 Ariz. 437, 803 P.2d 430 (1990), and subsequently was expressly confirmed by the statutory enactment of A.R.S. §32-1156.01. In this way, a Complainant in an administrative action who has sustained the burden of proving contracting law violations does not have to await the outcome of protracted civil litigation in order to recover at least a portion of a demonstrated loss

and, of equal or perhaps greater significance, a licensed contractor/Respondent is given the means to control, to some extent, the severity of any otherwise appropriate disciplinary penalty.

16. Under all the facts and circumstances of this case, it is found and determined that a reasonable condition in the Order to be issued by the Registrar should consist of the payment by Respondent to Complainant of partial restitution in the amount of 25% of the demonstrated past and future expenses incurred or to be incurred by Complainant to rectify the drainage problem and to replace the damaged plantings that were not covered by the prior reimbursement from the general contractor. Pursuant to the comparative or shared fault expense analysis in the prior Findings of Fact, the quantum of partial restitution for Respondent to remit to Complainant would be in the amount of $715.00.

CONCLUSIONS OF LAW

1. At these administrative hearings, the complaining party generally has the burden of proof, Vazzano v. Superior Court, 74 Ariz. 369, 249 P.2d 837 (1952) 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 (1996). See also Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (1985); Utah Construction Company v. Berg, 68 Ariz. 285, 205 P. 2d 367, (1949); Rule R2-19-119, A.A.C. 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 credible evidence of record sufficiently supports a conclusion the Respondent has violated the provisions of A.R.S.§32- 1154(A)(7) and (3); namely, Rule R4-9-108, A.A.C. However, no violation by Respondent of the provisions of A.R.S.§32-1154(A)(2) was sufficiently proven hereunder.

RECOMMENDED ORDER

In view of the foregoing, it is recommended commencing of the date of the Registrar’s Order that Respondent’s Class K-21 license be suspended until the Registrar receives written proof that Complainant has paid or tended to Complainant the sum of $715.00.

It is further recommended that is written proof is filed with the Registrar on or before this Order’s effective date that Respondent has transmitted the above-described monetary payment to Complainant, then no license suspension shall be imposed and the entire Citation and Complaint in Case Number M08-0919 shall be closed.

In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be forty (40) days from the date of that certification.

Dated: November 13, 2008. OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Robert I. Worth Administrative Law Judge

Original transmitted on _____________________

by: _____________________________ , to:

Armando Contreras, Director Registrar of Contractors 3838 North Central Avenue (Suite 400) Phoenix, AZ 85012 - 1906 -----------------------

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