ALJDEC

99F-L989010-BFS · Department of Building and Fire Safety · 1999-02-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 5, 1999 APPEARANCES: Petitioners Donald and Estelle Schrader appeared personally. Jack and Susan Kantor appeared personally and on behalf of Cactus Wren Mobile Home Park. Carl and Kathy Uebel, and Jean Vogel did not appear at 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 house. 4. The rental agreement provided, among other things, that water and sewer are supplied by the landlord. 5. Petitioners’ home is serviced by a septic system. 6. Water service in Cactus Wren does not have individual water meters to each home. 7. The water supply to Petitioners’ home consists of a main pipe with a valve which leads to a hose bib with a valve. The pipe continues to a juncture point with one pipe, containing a shut off valve, supplying water to the other side of a block wall, and another line, without a shut off valve, supplying water to Petitioners’ home. The main water line valve, located between the ground surface and the hose bib, is the only shut off valve for the line supplying water to Petitioners’ house. 8. With the main valve open, water will run into Petitioners’ home unless stopped inside by interior valves. 9. The weight of credible and reliable evidence of record supports a finding that Petitioners had knowledge that the landlord used the hose bib and the line going under the block wall for watering landscaping. Such uses required opening the main valve which also controlled the supply of water into Petitioners’ home. 10. Petitioners were absent from their home in Cactus Wren for most of September and the first week of October in 1998. 11. When Petitioners left their home in September, they intentionally left at least one water faucet open in their home. Petitioners left the interior valve open to avoid the possibility of a pipe bursting while they were away from their home. 12. Sometime in the middle of September, 1998, personnel at Cactus Wren discovered a steady leak coming from Petitioners’ home into the septic tank servicing their home. Affluent was seeping above the ground as a result of the leak having flooded the septic system over a period of time. 13. At the time the leak was discovered, Cactus Wren was unable to contact the Petitioners. Due to the health hazard of affluent seeping through the ground surface, and to mitigate any further damage, Cactus Wren hired a contractor to pump Petitioners’ 1,500 gallon septic tank and adjacent dry well for the sum of $492.00. 14. Petitioners do not dispute that excessive water entered the septic system through their open interior water faucet causing the flooding. They argue that they had a right to leave the valve open to protect their pipes from bursting. Their argument is unpersuasive. It was not foreseeable that Petitioners’ pipes would break while they were away from their home. Mr. Schrader had actual notice, as a result of his examination of the water supply system to his house, that only the exterior valve controlled not only the water supply into his home, but that it also controlled water supplied for landscaping. If the exterior main valve was opened for landscaping uses, and that Petitioners had left an interior valve open during an extended absence from their home, it is deemed foreseeable that water would pass through Petitioners’ faucet and fill the septic system. 15. There is credible evidence of record to establish that the water bill for Cactus Wren more than doubled for the time period that the flooding occurred at Petitioners’ septic tank and dry well. It is determined that flooding at another neighbor’s property during the same time also contributed to the increased water usage at the park during that period. 16. Cactus Wren sent Petitioners an itemized bill for the cleanup of their septic tank and dry well, and one-half of the amount of water use overage. The bill included a charge in the amount of $492.00 for the cleanup and the sum of $250.00 for the water overage. 17. On or about October 23, 1998, Cactus Wren issued a Notice of Termination to Petitioners for their failure to pay the outstanding debt.

18. On or about October 28, Petitioners tendered two checks to Cactus Wren totaling the sum of $742.00 under protest to satisfy the bill. 19. 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 to pass on those expenses to park tenants, incurred to clean up the flooding and water overage resulting from the failure of the Petitioners to close all water valves in their home.

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 intentionally leaving their interior faucet open resulting in the flooding of the septic tank and dry well 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 the septic tank and dry well servicing Petitioners’ home resulting in the seepage of affluent from the septic system was the direct result of Petitioners’ failure to close all interior valves. 3. Since Petitioners were not home when the flooding of the 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 not only for the reason that Petitioners refused to pay Respondents for the cleanup expense and water overage but also because of Petitioners’ restated position that they could leave interior valves open when they went on vacation from their home. 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 DECISION

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