ALJDEC decisions subject to certification as final

09F-A0185-ROC · Registrar of Contractors · 2009-11-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 28, 2009 at 1:15 p.m. APPEARANCES: Complainant Richard J. Boudreau appeared telephonically on his own behalf; Respondent Greseth Builders Inc. appeared through Timothy J. Greseth, its President-Treasurer. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure On November 18, 1994, the Registrar of Contractors issued License No. ROC052057, Class B- for residential general contracting to Respondent Greseth Builders Inc., a corporation. On November 12, 2008, the Registrar received a complaint from Complainant Richard J. Boudreau against Respondent’s license, which alleged that the berm at the rear of Complainant’s lot was eroding and that Respondent refused to pay to repair the berm. The Registrar referred the complaint to Respondent for its immediate attention. The Registrar’s Inspector Cliff Frandsen performed a jobsite inspection and, on December 3, 2008, notified that parties that he had determined to close the complaint for the following reasons: The soil erosion is occurring on the owner’s property on top of the berm. This bare soil is unprotected and washes down behind the rocks on the berm. Landscape fabric on the berm would not prevent this migration. The homeowner is responsible for erosion control on his property. The area on top of the berm should be landscaped to prevent erosion.

On December 22, 2008, the Registrar received Complainant’s request that a citation be issued against Respondent’s license. On May 20, 2009, the Registrar issued a Citation and Complaint against Respondent’s license, charging A.R.S. § 32-1154(A)(7) and (3) (namely A.A.C. R4-9-108). Respondent timely answered the complaint, denying any statutory violations. The Registrar referred the matter to the Office of Administrative Hearings, an independent agency, to schedule and to conduct a fair hearing. The Registrar issued a Notice of Hearing on September 11, 2009, setting a hearing on October 28, 2009 at 1:15 p.m. On September 29, 2009, the Registrar received Complainant’s request to continue the hearing because would be out of state in October and November 2009. The Office of Administrative Hearings requested additional information and, on September 30, 2009, received Complainant’s explanation that he was presently at his Hawaii home and was undergoing cancer treatment. On October 2, 2009, Administrative Law (“ALJ”) Judge Brian E. Smith denied the motion to continue the hearing for failing to state good cause under A.A.C. R2-19-110. ALJ Smith allowed Complainant to appear telephonically. A hearing was held October 28, 2009 before the undersigned ALJ. Complainant testified on his own behalf and submitted 13 exhibits. Respondent presented the testimony of its President Tim Greseth and submitted 16 exhibits. Inspector Frandsen also testified. Additional Evidence Complainant’s house is located at the bottom of a hill. The hill is owned by a governmental entity. Complainant purchased his house from T & L Investments. T & L Investments had purchased the lot on which Complainant’s house is built, as well as lots on both side of Complainant’s lot, from developer Yavapai Hills, Inc. Yavapai Hills Inc. had constructed a drainage ditch and a berm along the back of Complainant’s lot and the lots on either side of it to control water runoff from the hill. Respondent constructed Complainant’s house. The berm runs along the back property line and constitutes a drainage easement. To ensure that water drained away from all sides of Complainant’s house, Respondent removed soil from the backyard. After Respondent removed the soil, the berm was 4’ or 5’ above Complainant’s and his neighbors’ backyards. To prevent erosion, Respondent placed rip rap along the berm, which is one of the erosion control measures allowed by the City of Prescott. Complainant submitted photographs of his house after the 2008 monsoons, which showed some silt or dust in front of the berm, in the “lawn drain,” and in the street in front of Complainant’s house. Complainant testified that he felt it necessary to have the rip rap removed, to place landscape cloth on the top and side of the berm, and to replace the rip rap to control erosion. After Respondent refused to do this work, Complainant paid Favio Garcia $3,130.00 to do this work. Complainant submitted a copy of his personal check to Mr. Garcia in this amount dated June 18, 2009. Complainant testified that his neighbors had used Mr. Garcia to correct the erosion problems on their lots. Complainant requested that the Registrar order Respondent to pay him restitution in the amount that he had paid Mr. Garcia. The Registrar’s record does not show any contractor’s license having been issued to Mr. Garcia. Complainant submitted Mr. Garcia’s business card, which showed “Amigo’s Landscaping,” “ROC # 228943.” According to the Registrar’s record, License No. ROC228943 was suspended for nonrenewal on March 1, 2009. Mr. Garcia is not listed on the license. Complainant submitted excerpts from the City of Prescott’s General Development Standards, which requires certain measures for site stabilization after soil is disturbed. Complainant argued that these standards required Respondent to place fabric on top of the berm and under the rip rap. Inspector Frandsen testified that he had performed a prehearing inspection on October 27, 2009. He did not see any evidence that Respondent had violated any part of A.R.S. § 32-1154(A). Inspector Frandsen testified that he had seen evidence that Complainant had hired “an unlicensed contractor” to remove the rip rap, place fabric, and replace the rip rap. There was “no logical reason” for this work to have been done. Inspector Frandsen testified that, in his opinion, the former condition of the berm did not present potential for excessive erosion; “small particles will always follow gravity.” There is always a “bit of erosion” from any lot; it is the homeowner’s responsibility. Inspector Frandsen testified that the berm was “an established feature of the landscape” that was designed by the developer to be a “catch basin” to retain and redirect water away from the subdivision. Mr. Greseth testified that an engineer must have approved the berm when Yavapai Hills Inc. had constructed it for the City of Prescott to approve subdivision sales. Respondent could not take measures that would change the water flow or absorption rate on the drainage easement. Mr. Greseth testified that he spoken to both Randy Pluimer, the Head Building Inspector for the City of Prescott, and Richard Maslin, the Development Services Manager for the City of Prescott. Both told him that Respondent had complied with industry standards and the City of Prescott’s requirements for installation of the banked berm. Mr. Greseth pointed out that many of the City of Prescott General Development Standards that Complainant had submitted related to subdivisions, not to individual lots. Moreover, the standards provided that “[i]ndividual lot owners shall be responsible for the maintenance of driveway culverts and smaller cross lot drainage within, through and over their property, which shall be within dedicated drainage easements shown on the final plat.” CONCLUSIONS OF LAW The matter lies within the Registrar’s jurisdiction.[1] Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence.[2] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[3] A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”[4] The City of Prescott, not the Registrar, is responsible for enforcing the General Development Standards. Apparently, the City of Prescott approved sale of lots in the subdivision and issued a Certificate of Occupancy for Complainant’s house. Complainant has not established that Respondent violated the City of Prescott’s Development Standards in its modification of the drainage berm behind Complainant’s house. Complainant also has not established that the drainage berm did not comply with applicable workmanship standards or created an unreasonable risk of erosion. Complainant has not borne his burden to establish that Respondent violated A.R.S. § 32-1154(A)(7)[5] or (3).[6] Complainant therefore also has not established that the observed erosion should be Respondent’s responsibility rather than his own. RECOMMENDED ORDER In view of the foregoing, on the effective date of the Registrar’s final order, it is recommended that the Registrar dismiss Case No. A09-0185 against Respondent Greseth Builders Inc.’s License No. ROC052057, Class B-. If the Director of the Office of Administrative Hearings certifies this Administrative Law Judge Decision, the effective date of the order will be forty days from the date of certification. Done this day, November 10, 2009.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] See A.R.S. § 32-1101 et seq. [2] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [3] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [4] Black’s Law Dictionary at page 1220 (8th ed. 1999). [5] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[t]he doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured.” [6] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[v]iolation of any rule adopted by the registrar.” The rule violated here was A.A.C. R4-9-108, which requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.”

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