ALJDEC decisions subject to certification as final

2018A-04980-ROC · Registrar of Contractors · 2019-04-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 28, 2019 APPEARANCES: David Williams appeared on behalf of Complainant Yavapai County Development Services. Darryl Lay, President, appeared on behalf of Respondent Plumber Plus Inc. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT Plumber Plus Inc. (Respondent) is the holder of License Nos. 176706 and 176705 issued by the Arizona Registrar of Contractors (Registrar). On or about Wednesday, September 5, 2018, the Yavapai County Development Services (Complainant) received a complaint about sewage being pumped into a bar ditch. The Environmental Unit Manager, Suzanne Ehrlich, searched records for the parcel and found the approval documents for an Evapotranspiration Bed from 1987. Ms. Ehrlich went to the address to further investigate. Upon arrival, Ms. Ehrlich identified two men on the site, one of which was known to her as Darryl Lay, a licensed contractor known to work on onsite wastewater systems. Ms. Ehrlich observed a submersible pump in an excavation with water. The pump was connected to a hose that extended into the roadside bar ditch. The pump was on and the hose was discharging water. Ms. Ehrlich noted that the excavation had exposed material that she believed met the Arizona Department of Environmental Quality definition of aggregate, a disposal trench media; 4-inch perforated PVC pipe; PVC liner often used to line Evapotranspiration beds; sand; a damaged chamber; and liquid accumulating in the excavation. Ms. Ehrlich reported the liquid had a distinct odor of sewage effluent. Ms. Ehrlich spoke to Mr. Lay about the work and Mr. Lay reported that he was pumping rainwater from the excavation site that was in preparation for the construction of a new wastewater treatment system. Mr. Lay stated that the home was occupied and the septic tanks had been pumped on Friday, August 31, 2018. Ms. Ehrlich asked that Mr. Lay open the septic tanks to determine if they were discharging to the Evapotranspiration Bed and discovered that the tanks were full to the discharge level. Ms. Ehrlich determined the liquid in the excavation appeared to be from the tank and contained incompletely treated sewage effluent. Ms. Ehrlich directed Mr. Lay to turn off the pump and disinfect the bar ditch to the extent of the discharge with either a bleach solution or, preferably, with lime, as it would leave a white powder residue that would clearly indicate that the area had been treated to eliminate disease causing organisms. Ms. Ehrlich also asked Mr. Lay to cap the outlet from the tank to the Evapotranspiration Bed to prevent further discharge. Ms. Ehrlich made a complaint to the Yavapai County Sheriff’s Office about the discharge after she returned to her office. On September 5, 2018, Deputy Raul Martinez responded to the report. Upon arriving, Deputy Martinez spoke to Mr. Lay who explained that a ditch was dug around a leech field of a septic system. The ditch had filled with water after recent rains and he needed to pump the water out to fill the ditch. Mr. Lay acknowledged speaking to Ms. Ehrlich who mentioned the smell of waste water and suggested that he cap the piping and coat the culverts with lime. Deputy Martinez observed the ditch and a faint smell, which he noted could have been waste water or the leech fields that had been dug out. Deputy Martinez noted that the piping had been capped and the possibly contaminated water in the culverts were covered in lime per Ms. Ehrlich’s suggestion. No criminal charges were brought against Respondent with respect to the incident. On or about October 18, 2018, the Registrar received a Complaint against Respondent from Complainant alleging unlicensed contracting by Respondent.

The Registrar assigned the complaint to Investigator Jim Dimond. Upon investigation, Investigator Dimond determined that the matter had been corrected and was no further discharge was being released. Investigator Dimond also discovered the statutes and rules that were applicable to the issue and forwarded the issue to the Legal Department. The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108; and A.R.S. § 32-1154(A)(11). Ms. Ehrlich testified as to her observations of the incident as described above. Ms. Ehrlich stated that she believed the discharge was effluent, which constituted a public health risk of exposure to e. coli, salmonella, cholera, dysentery, and/or hepatitis. Mr. Lay testified that the septic tanks were scheduled to be pumped out the week before a four day weekend. Mr. Lay stated that the rain over the weekend filled the ditch and, because everyone was worried about mosquitoes, he was pumping out the water from the ditch. Mr. Lay denied that there was a significant amount of effluent in the water he was pumping out of the ditch. Mr. Lay stated he complied with Ms. Ehrlich’s suggestions that he cap the piping and put lime down well beyond the water in the bar ditch. Administrative notice is taken of Respondent’s prior License record on April 17, 2019. Such prior License record reflects that Respondent’s License No. 176705 was first issued on July 13, 2002, and was suspended on November 16, 2018, for lack of bond. Such prior License record also reflects that there were no open complaints and no resolved/settled complaints against Respondent’s license. Such prior License record reflects that Respondent’s License No. 176706 was first issued on July 13, 2002, and was suspended on November 16, 2018, for lack of bond. Such prior License record also reflects that there were no other open complaints and no resolved/settled complaints against Respondent’s license.

CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1101 et seq. 2. Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “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). 3. The Registrar does not expect or demand perfection of its licensees. While there may have been some small amount of sewage in the water that was being pumped out of the ditch, that was the result of Respondent’s belief that the tanks had been pumped out the week prior. Without doubt, Respondent could have, and should have, checked to ensure that the tanks were pumped prior to beginning pump the water out of the ditch. However, the failure to do so was not so egregious as to constitute a workmanship violation. Therefore, Complainant failed to establish that Respondent’s work was not in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.[1] 4. A.A.C. R18-9-A309(A)(3) provides that “A person shall not bypass or release sewage or partially treated sewage that has not completed the treatment process from an on-site wastewater treatment facility.” 5. A.R.S. § 49-141(A) provides, in pertinent part, as follows: A. The director may take action under this section to abate environmental nuisances. As used in this section, an environmental nuisance is the creation or maintenance of a condition in the soil, air or water that causes or threatens to cause harm to the public health or the environment and that is not otherwise subject to regulation under this title. Subject to this limitation, the following conditions may constitute environmental nuisances: . . . . 3. Sewage, human excreta, wastewater, garbage or other organic wastes deposited, stored, discharged or exposed so as to be a potential instrument or medium in the transmission of disease to or between any person or persons.

6. Again, while there may have been some small amount of sewage in the water that was being pumped out of the ditch, that was the result of Respondent’s belief that the tanks had been pumped out the week prior. Such an accidental discharge may constitute a technical violation of the statutes cited, but it is also noted that Respondent promptly responded to Ms. Ehrlich’s suggestions to cap the piping and treat the area where the discharge went in the bar ditch. Thus, the evidence established that Respondent discharged some amount of raw sewage in violation of A.A.C. R18-9-A309(A)(3) and A.R.S. § 49-141(A), and thereby a violation of A.R.S. § 32-1154(A)(11).[2] However, such a discharge does not constitute a cause for discipline. RECOMMENDED ORDER It is recommended that on the effective date of the Registrar’s final order in this matter, the Registrar close Complainant Yavapai County Development Services’s complaint in Case No. 2018-04980 against Respondent Plumber Plus Inc.’s License Nos. 176706 and 176705. 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 40 days from the date of that certification. Done this day, April 17, 2019.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] 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.” 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.” [2] A.R.S. § 32-1154(A)(11) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure of a contractor to comply with any safety or labor laws or codes of the federal government, this state or political subdivisions of this state.”

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Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826