ALJDEC

99F-0526-ROC · Registrar of Contractors · 1999-04-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 2, 1999 APPEARANCES: Holly Gerken, Esq., on behalf of the Complainant Aaron Kizer, Esq., on behalf of the Respondent ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________ Findings of Fact The home at issue was built by the Respondent for Mercy Housing which sold it to the Complainants as a consequence of a relocation by the City of Phoenix (City). The home was built on an “in fill” lot with the lots around it already developed. The plans for the home were provided by the City. No formal inspection was required or had been done of the grade and drainage of the backyard. The Respondent and others including various inspectors on behalf of the City viewed the backyard and considered it satisfactory. The front yard was landscaped with some grass, ground cover, plants and gravel, by the Respondent. The home passed final inspection in September, 1997, and the Complainants moved in. During the next six months, after significant rainfalls, the backyard retained water several inches deep for extended periods of time. Water might be standing for up to three days. There was no specific evidence of the amount or intensity of rainfall at the Complainant’s home from the time the Complainants moved into the home to the present. It is noted that in 1998, a weather condition termed El Nino was present which resulted in higher than average rainfall in the Phoenix area. The Complainant added some rocks, landscaping at the south fence, a chain link fence, a small tree, some trenches for irrigation and drainage, and some two by four forms in the backyard. The evidence did not show these additions significantly influenced drainage or the lack thereof. However, it cannot be concluded that in view of the rather minimal variations in the level of the pertinent areas around the house (one to possibly three inches) that movement of dirt from the walls, the house, or anywhere else did not impact on the drainage. A concrete and stone walkway was added by the Complainant. It runs along the south side of the patio and appears to be in front of the gate to the front yard. Exhibit 4-#97 shows this concrete and walk area in front of the gate is higher than the surrounding area and acts as a dam which keeps the water behind it. It cannot be determined if this also keeps water from flowing out through the openings provided under the block wall (Exhibit 1 photo 4). According to Exhibit B, the front yard was landscaped after the grading and is three to four inches above grade height. The evidence was that the front landscaping was done as an accommodation to the Complainant. In May, 1998, the Respondent had gutters installed to direct water from the roof to the front of the home. On August 13, 1998, the Complainants filed their complaint with the Registrar of Contractors (Registrar). On September 17, 1998, Inspector Phil Coscia (Coscia) of the Registrar’s Office inspected Complainant’s home. The Complainants showed Coscia photographs of the condition of the backyard after a rain sometime prior to the gutters having been installed. Coscia was not aware that the photographs he was shown depicted the pre- gutter installation condition of the back yard and issued a Corrective Work Order (CWO) for the Respondent to ensure the back and side yards drain away from the house. Exhibit 6, a survey (revised April 19, 1999) submitted by the Complainant shows the elevation at the north side of the house has a minimal slope (approximately an inch) toward the front yard but there is no apparent obstruction caused by grading. The gravel driveway at the front of the house may impede some of the flow but the evidence did not establish this. The area immediately behind the home (east side) is also an inch lower than the north side and some water will presumably flow in that direction and to the south side of the house which has some spots which may be a half inch lower than the east end. Based on exhibits 6 and 4-#97, the area which shows a potential for any continuing problems is the southwest portion of the backyard. Any such problem will most likely be aggravated by the condition described in paragraph 8 of these findings. The evidence did not establish the continuation of the problem as it existed prior to the installation of the gutters. Although the Complainant, Mrs. Fresquez, testified regarding the issue, her testimony was somewhat general and lacked clarity. She could not specifically recall when the last ponding occurred but claimed it had occurred three times since May, 1998. No competent evidence of significant ponding since the installation of the gutters was submitted. Conclusions of Law The Citation and Complaint allege violation of A.R.S.§32-1154(A)(3) violation of any rule specifically A.A.C. R4-9-108, workmanship standards, (A)(7) wrongful or fraudulent acts with substantial injury, and (A)(23) failure to take appropriate corrective action. The evidence failed to establish that the Complainants are continuing to have water retention problems which exceed the standard set forth in the Registrar’s Minimum Workmanship Standards, 6th Edition, June 1994. The evidence did not establish unsatisfactory workmanship under any other established applicable standard. The height difference between the low curb and the top of the slab was not shown to be relevant to the drainage issue and is therefore not relevant to the conclusion. Although the evidence did not establish the fact, it tended to show that minimal changes in the backyard could alter water flow. The Complainants made certain changes in the backyard including what appears to be a significant change with respect to the concrete and stone walkway on the south side including the area in front of the gate and part of the fence. Coscia testified he did not believe the Respondent needed to take additional corrective action even though he had issued a CWO. The reason for this is that Coscia thought the photos he relied on in issuing the CWO were taken after the gutters had been installed on the home. This was not the case, and Coscia was of the opinion that some landscaping by the addition of grass would tend to alleviate potential problems. The current condition of the backyard is such that it will get muddy (it consists primarily of dirt) and possibly have some water retention after any significant rainfall. It has not been established that since the installation of the gutters the condition is or would be unacceptable or is solely attributable to the Respondent. The evidence also suggests that the addition of grass, the turning of the soil, some landscaping, minimal grading or some modifications of the drainage (in combination or alone), may help to avoid potential problems. Under the facts of this case, it is not unreasonable to expect the Complainants to accomplish this. The Complainants have failed to meet their burden of proof by a preponderance of the evidence. Recommended Order In view of the foregoing, it is recommended that the Citation and Complaint upon which it is based, be dismissed. Done this day, April 23, 1999.

______________________________________ ALLEN REED Administrative Law Judge

Original transmitted by mail this ____ day of April, 1999, to:

Michael P. Goldwater, Director Registrar of Contractors ATTN: Joyce Armijo 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

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