ALJDEC decisions subject to certification as final

2014A-3551-ROC · Registrar of Contractors · 2015-10-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 30, 2015, at 1:00 p.m. APPEARANCES: Linda Huffstetler-Dearing and Don Borham (“Ms. Huffstetler-Dearing,” “Mr. Borham,” or, collectively, “Complainants”) appeared through Mr. Borham; Joseph Vincent Wik dba J Wik Excavating and Engineering (“Mr. Wik” or “Respondent”) appeared on his own behalf. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure 1. On June 10, 1992, the Arizona Registrar of Contractors (“the Registrar”) issued License Nos. A.093800-C for commercial general engineering contracting and B-4.093791-R for residential general engineering contracting to Respondent. 2. On September 5, 2014, Ms. Huffstetler-Dearing filed a complaint with the Registrar about the gray water discharge line that Respondent had constructed at her residence at 17099 South Country Club Drive, Sahuarita, Arizona 85629. 3. The Registrar assigned the complaint to its Investigator Mike Nieves for investigation. Investigator Nieves performed a jobsite inspection and on November 19, 2014, issued a directive that required Respondent to correct certain deficiencies in the gray water line on or before 5:00 p.m. on December 4, 2014. The November 19, 2014 directive provided in relevant part as follows: Santa Cruz County Health Department follows the Arizona Department of Environmental Quality [“ADEQ”] rules for Reclaimed Gray Water which at R18-9-711A. A Type 1 Reclaimed Water General Permit allows private residential direct reuse of gray water for a flow of less than 400 gallons per day.

1. Workmanship on gray water discharge line was defective work. Respondent advised that he did install the gray water line after the septic system was given a final and approved inspection on 02/11/2014. The system needs to be made to function correctly.

4. Respondent performed certain repairs to comply with the November 19, 2014 directive. Complainants were dissatisfied with the repairs and requested a hearing on the adequacy of the repairs. 5. On June 4, 2015, the Registrar issued a Citation, charging possible cause to suspend or revoke Respondent’s contractor’s licenses under A.A.C. Rule 4-9-108[2] and A.R.S. § 32-1154(A)(3).[3] Respondent filed a timely written answer to the Citation, denying that any cause existed to suspend or revoke his license. 6. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. 7. An evidentiary hearing was held on September 30, 2015. Inspector Nieves testified. Mr. Borham testified on Complainants’ behalf and submitted nine exhibits. Mr. Wik testified on Respondent’s behalf and submitted three exhibits. Hearing Evidence 8. Complainants’ residence is on a septic system. Sometime around 2014, Complainants constructed two substantial additions on the east and west sides of their existing residence. Respondent installed the modifications to the existing septic system that the substantial additions required. Complainants also wanted a gray water line to discharge into land that they owned around the residence instead of the septic system water from their clothes washer, showers, bathtubs, whirlpool tubs, and bathroom sinks. 9. Page P1 of the plans showed the plumbing for the additions, including a “new ABS grey water line slope to daylight or grey water tank,” a new 500-gallon gray water tank, and a “new 4” ABS grey water sewer line slope to existing septic tank cleanouts as shown.”[4] 10. Complainants discussed their desire that the gray water line discharge onto the line to daylight rather than the gray water tank with Mr. Wik. On or about February 13, 2014, Mr. Wik drew a line on page P1 of the plans from the gray water line to the east, with the notation, “[a]pproximately 100’.”[5] Mr. Wik also noted the 2 way clean out shown on the plan. Mr. Borham and Ms. Huffstetler signed below Mr. Wik’s notation, with the date February 13, 2014. 11. Page P1 of the plans does not show any valves for the gray water line. No other writing exists to commemorate the parties’ agreement. Mr. Wik testified that Respondent did not undertake to install any valves in the gray water line. 12. Investigator Nieves testified that when he performed the initial jobsite inspection, the gray water line was capped and did not function as intended. Complainants informed him that because toilet paper and feces had been discharged from the end of the gray water line, Respondent had capped the line. 13. Inspector Nieves testified that he talked to personnel at the Santa Cruz County Health Department and was informed that the county does not inspect or regulate gray water lines. Instead, it defers to ADEQ. Inspector Nieves reviewed ADEQ’s administrative regulation A.A.C. R18-9-711(A)(6), which provides in relevant part as follows: A type 1 Reclaimed Water General Permit allows private residential direct reuse of gray water for a flow of less than 400 gallons per day. . . . .

6. The gray water system is constructed so that if blockage, plugging, or backup of the system occurs, gray water can be directed into the sewage collection system or on-site wastewater treatment and disposal system, as applicable. The gray water system may include a means of filtration to reduce plugging and extend system lifetime . . . .[6]

14. Investigator Nieves testified that he performed a compliance inspection on January 6, 2015. At that time, the water coming out of the end of the gray water line was clear and did not have any toilet paper or feces in it. Inspector Nieves testified that he could not tell whether or not Respondent had complied with the November 19, 2014 directive. 15. Mr. Wik testified that after Mr. Borham stated that black water was coming out of the gray water line, he checked the line and discovered that the filter was 80% clogged, which was causing the line to back up. Mr. Wik testified that the filter is underneath 6- 8” of dirt and that after the septic system passed the county’s final inspection, he left the filter out to show the homeowners its location. Mr. Wik testified that homeowners are also responsible for cleaning the baffle screen. Mr. Wik testified that Mr. Borham said he was cleaning out the filter, but he was not. 16. Mr. Wik testified that at the settlement conference, Mr. Borham said that the filter was too deep and that he could not access it.

17. Mr. Wik called the Administrative Law Judge’s attention to ADEQ’s regulation A.A.C. R18-9-A313(B), which provides in relevant part as follows: Operation and maintenance. In addition to operation and maintenance requirements in the general permit or specified in the operation and maintenance manual, the permittee shall ensure that the following tasks are performed, as applicable: . . . .

2. Clean, backwash, or replace effluent filters according to the manufacturer’s instruction, and manage residues to protect human health and the environment;

3. Inspect and clean the effluent baffle screen and pump tank, and properly dispose of cleaning residue . . . .[7]

Mr. Wik testified that by failing to clean the filter, Mr. Borham violated applicable regulation. 18. Mr. Wik testified that to comply with the Registrar’s November 19, 2014 directive, his son Gary Wik installed a check valve in the gray water line that could be opened and closed. Mr. Wik testified that when the valve was open, gray water was only allowed to flow in one direction, toward the end of the line and daylight. Mr. Wik testified that when the valve was closed, gray water flowed into the septic system. 19. Mr. Wik testified that applicable code requires the property owner to be able to access the valve from the surface. Mr. Wik testified that he is able to reach the check valve from the surface. 20. Mr. Borham testified that because the area where the gray water line discharges is near the driveway for the house, which is steep, Complainants must be able to close the gray water line to avoid discharging water near the driveway that will turn to ice in the winter. Mr. Borham explained that the clothes washer discharged 40- gallons into the gray water line every time it was used. 21. Mr. Borham testified that the valve was 36” deep in the ground and that it did not have a key that allowed it to be shut off. In addition, a salesman at Ferguson Waterworks, a plumbing supply house, had informed him that Respondent should have installed a brass valve, which was significantly more expensive than the PVC valve it had installed.[8] 22. Mr. Wik testified that he could reach the valve to turn it on and off. 23. Mr. Borham testified that Mr. Wik had orally promised to install an integrated system, which means the gray water can be directed to daylight or into the septic system. 24. Mr. Wik testified that both a cap and the valve allowed the gray water to be directed into the septic system if Complainants desired. Mr. Wik denied agreeing to to install an integrated system before the Registrar issued the November 19, 2014 directive. 25. Mr. Borham testified that county personnel had told him that if he capped the line in the winter to keep gray water from flowing toward the driveway, the county would cite him when he uncapped the gray water line in the spring time. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction.[9] 2. Complainants bear the burden of proof to establish cause to discipline Respondent’s licenses by a preponderance of the evidence.[10] Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.[11] 3. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[12] 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.”[13] 4. The unnamed Ferguson Waterworks salesman’s statement that Respondent should have installed a brass valve and the unnamed county employee’s statement that Mr. Borham would be cited if he uncapped the gray water line in the spring are hearsay.[14] Although hearsay may be admitted in an administrative hearing,[15] it should not be relied upon if it is not the kind of evidence that reasonable persons would rely upon in serious matters.[16] 5. The plan did not show any valves and Mr. Wik credibly testified that Respondent did not undertake to install any valves. No regulation requires that any valve be installed. After Respondent’s installation of the PVC valve, the gray water system appears to function as intended. A reasonable person would not rely upon Mr. Borham’s testimony about what the salesman at Ferguson Waterworks told him to decide whether or not Respondent’s contractor’s license should be suspended or revoked. 6. Investigator Nieves and Mr. Wik credibly testified that the Santa Cruz County Health Department does not regulate gray water lines. A reasonable person would not rely upon Mr. Borham’s testimony about what an employee at the Santa Cruz County Health Department told him to decide whether or not Respondent’s contractor’s license should be suspended or revoked. 7. As noted above, the gray water line seems to function as intended. Complainants did not submit any plan, written contract, or governmental regulation that requires a different construction. Therefore, Complainants did not establish that Respondent’s construction of or repairs to the gray water line furnishes cause to discipline Respondent’s license under A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the order in this matter, Complainants’ complaint against License Nos. A.093800-C and B-4.093791-R of Respondent Joseph Vincent Wik dba J Wik Excavating and Engineering shall be dismissed. 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 five days from the date of that certification. Done this day, October 16, 2015.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] Because Mr. Borham lives at and has an ownership interest in the residence where Mr. Wik performed the construction work at issue and came prepared to represent Complainants, the Administrative Law Judge amended the Registrar’s caption to add Mr. Borham as a party complainant.

[2] A.A.C. R4-9-108 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.” [3] A.R.S. § 32-1154(A)(3) 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.” [4] Respondent’s Exhibit B. [5] Id. [6] Respondent’s Exhibit C. [7] Respondent’s Exhibit A. [8] See Complainants’ Exhibits 3 (specifications for brass and PVC valves) (price quotation), and 5 (cutaway view of brass valve). [9] See A.R.S. § 32-1154(A). [10] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [11] See A.A.C. R2-19-119(B)(2). [12] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [13] Black’s Law Dictionary at page 1220 (8th ed. 1999). [14] See Ariz. R. Evid. 801(c) (“‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”). [15] See A.R.S. § 41-1092.07(F)(1). [16] See Plowman v. Arizona State Liquor Board, 152 Ariz. 331, 337, 732 P.2d 222, 228 (App. 1986) (citing Begay v. Arizona Department of Economic Security, 128 Ariz. 407, 626 P.2d 137 (App. 1981)).

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