ALJDEC

99F-L989009-BFS · Department of Building and Fire Safety · 1999-02-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 5, 1999. APPEARANCES: Petitioners appeared personally. Respondents Jack and Susan Kantor appeared personally and on behalf of Cactus Wren Mobile Home Park. Carl and Kathy Uebel, and Jean Vogel did not attend the hearing. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________

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. Cactus Wren Mobile Home Park (“Cactus Wren”) is located in Mesa, Arizona. 2. Cactus Wren is owned by Jack and Susan Kantor, and Carl and Kathy Uebel as partners. 3. The Petitioners and Cactus Wren entered into a written Rental Agreement dated September 1, 1996, for the rental of a lot in the park for Petitioners’ manufactured housing. 4. The rental agreement provides, among other things, that water and sewer are provided by the landlord. 5. The homes in Cactus Wren are serviced by septic systems. 6. Water service in Cactus Wren does not have individual water meters to each home. 7. The water supply pipe to Petitioners’ home has a valve located outside their residence. The valve not only controls the flow of water to Petitioners’ residence but also controls the water supply to a hose bib with a separate valve. If the valve is opened, water is supplied to both the residence and to the hose bib. The only other valves beyond that one inside Petitioners’ home are located at fixtures. 8. In March of 1998, Petitioners left their home for an extended trip. Petitioners closed the outside water valve but did not close the supply valve to their toilet. 9. In early October of 1998, the sewer and dry wells providing service to Petitioners’ residence were found to be overflowing. Park personnel observed affluent percolating out and onto the ground surface. 10. Cactus Wren was unable to contact the Petitioners concerning the flooding. 11. In order to mitigate the health hazard caused by the flooding, Cactus Wren caused the septic system and dry well servicing Petitioners’ home to be pumped clean at a total cost of $917.50. 12. It is determined that the cause of the flooding was the introduction of water into Petitioners’ home when the exterior valve was opened to allow water to be supplied to the hose bib when individuals watered exterior landscaping. Sometime after the exterior valve was opened, which use for landscaping is deemed appropriate, the toilet tank stopper seal broke. Since Petitioners had not closed the supply valve to the toilet tank, water was introduced into the toilet when their toilet tank stopper failed resulting in a continuous flow of water through the toilet into the septic system whenever the exterior valve was opened. 13. It is determined that the closing of the toilet tank supply valve would have provided an adequate backup to the introduction of water into the toilet and septic system when the toilet stopper failed. 14. There is credible evidence of record to establish that the water bill for Cactus Wren more than doubled for the period that the flooding occurred at Petitioners’ septic tank and dry well. It is further determined that flooding at another neighbor’s property during the same period of time also contributed to the increased water usage at the park. 15. Under all the circumstances, Petitioners are found to be responsible for the sum of $250.00, which represents one-half of the monthly increase in water usage, due to the failure of their toilet’s tank stopper and their failure to close the supply valve to the toilet tank. 16. On or about November 17, 1998, Cactus Wren sent Petitioners a Notice of Termination due to their failure to reimburse Cactus Wren the sum of $1,132.50 incurred for the clean up of the septic tank and dry tank, and the water overage resulting from the flooding. 17. On or about December 2, 1998, Petitioners tendered to one of Cactus Wren’s owners, Jack Kantor, the sum of $1,132.50 under protest. 18. It is determined that Cactus Wren had good cause to issue the Notice of Termination to Petitioners. While Cactus Wren is under a contractual obligation to provide water and sewer service to Petitioners, it is not reasonable to expect Cactus Wren to either absorb the expenses or pass those expenses to all park tenants incurred to clean up the flooding and water overage resulting from the failure of Petitioners’ toilet tank to stop water entering into the septic system. . . .

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CONCLUSIONS OF LAW

1. The evidence of record is adequate to establish that the Petitioners violated the provisions of A.R.S. § 33-1451 (A)(4) by failing to close their toilet tank supply valve while on an extended vacation which resulted in the flooding of their septic tank and dry well and the seepage of affluent on the ground surface as described in the above Findings of Fact. 2. Petitioners’ noncompliance with A.R.S. § 33-1451 (A)(4) materially affected the public health and safety. The flooding of Petitioners’ septic tank and dry wells resulting in the seepage of affluent from the septic system was the direct result of Petitioners’ failure to close their toilet tank supply valve and the failure of their toilet tank stopper. 3. Since Petitioners were not home when the flooding of their septic system was discovered, Respondents had the authority to address the emergency health hazard caused by the seepage of affluent to the ground surface and to remedy the hazard. A.R.S. § 33-1477. 4. Respondents had the statutory authority to submit an itemized bill to Petitioners for the actual and reasonable cost incurred by Respondents necessary to abate the health hazard caused by Petitioners. Ibid. 5. Respondents had the authority pursuant to A.R.S. § 33-1476 to initiate the process of terminating the parties’ written rental agreement due to Petitioners initial refusal to pay Respondents for the cleanup expense and water overage. 6. There is insufficient evidence of record to establish that Respondents have retaliated against Petitioners in violation of A.R.S. § 33-1491. 7. Petitioners have failed to meet their burden of proving the allegations made against Respondents by a preponderance of the evidence. Therefore, the Petitioners’ petition in this matter should be dismissed. RECOMMENDED ORDER

In view of the foregoing, it is recommended that Petitioners’ Petition in this matter be dismissed.

Done this day, February 25, 1999.

______________________________________ BRIAN BRENDAN TULLY Administrative Law Judge

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

Department of Building & Fire Safety Mr. N. Eric Borg, Director E. Virginia, Suite 100 Phoenix, AZ 85004 ATTN: Michelle M. Castaneda

By ___________________________

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