Rancho Peñasquitos man fights with city over concrete spill

On April 12, 2007, I did some concrete work in the backyard of my Rancho Peñasquitos home with the help of my wife, son-in-law, and two close friends. I rented a cement mixer in Poway, which my friend towed home with his truck. I took careful precautions, and when a small amount of cement spilled onto the road, I had tools ready for proper cleanup. After finishing the concrete work, all the tools and equipment were cleaned in a dirt hole in my front yard. I have worked with concrete for contractors and friends and neighbors, so I am well aware of how to manage the job properly, including the environmental concerns.

On April 19, 2007, I was outside chatting with my next-door neighbor, who had helped on my backyard project, when a storm water code compliance officer named Diana Flores stopped at my home, saying that she had noticed what appeared to be concrete residue in the gutter in front of three homes and mine. She took samples and pictures, and she asked us if we knew of anyone who had done work recently. I responded that we had the week before. My first mistake.

Flores said that she thought the residue might have come from my residence and that there would be an investigation. My neighbor and I assured her that concrete residue could not have come from my project. We explained how we had taken every reasonable precaution to avoid spills. She asked me to sign paperwork — which I did, mistake number two — and then asked if I would clean the residue that was left in the gutter, as she had no equipment with her to do the cleanup. I again assured her there was no way the mess had come from me, but I would not mind doing the cleanup. Not worried about an investigation, as I knew a proper one would find me innocent, I promptly put the matter out of my mind. Silly me.

On March 14, 2009, almost two years later, I received a legal-sized envelope with a “Civil Penalty Notice and Order” informing me that I was the responsible party for a “discharge of construction waste” and that the civil fine and administrative costs totaled $1547.80, due April 9. If I had questions, I could call the administrative hearing coordinator. I called the number, asking when the investigation had been done and how the City had concluded that I was the responsible party. I was told that I could request arbitration but that the bill would increase the longer I delayed payment. It sounded like a warning to pay the fine immediately or risk paying increasing administrative costs if I held off while I appealed. Of course, the fact that the City had waited almost two years to investigate and assess my fine didn’t matter.

I spoke to an attorney, and he said that he could help, but he would need a $5000 retainer to start. As I couldn’t afford that, I decided to attend the arbitration on my own. I felt confident that if someone unbiased listened to the witnesses and me, they would find me not guilty. Mistake number three.

I have lived in my house since August 1978, and I know most of my neighbors. Before attending the hearing, I asked 10 or 12 of them if they had been questioned by the Storm Water Department. Not one had been contacted or knew anything about the matter. I also discovered that runoff flows past my house from 18 houses above mine, any of which could have done the concrete work.

On May 5, my wife and I arrived at the offices of the Storm Water Department on Chesapeake Drive in Kearny Mesa for our nine o’clock hearing. One friend who had helped me with the concrete project came as a witness. Nancy T. Beardsley was the administrative hearing officer. Diana Flores and her supervisor, Antonius Evans, represented the Storm Water Department.

We listened to Flores’s testimony. One of the pictures she took was of the spot on the asphalt where the small amount of concrete, approximately one foot by two, had spilled. She had done a pH test that showed that the substance was alkaline, which concrete is. She stated that this proved I had spilled concrete in the street and therefore that I had contaminated the storm water drain system. If you spill concrete on the street and clean it up properly, yes, there will still be some evidence. If you do it improperly, by using a hose to wash it down the gutter, then there will be no evidence. While questioning Flores and Evans about their investigation, we discovered that the samples Flores had taken from the gutter had been lost and had never been tested, so there was no physical evidence that the residue in the gutter was concrete. Having the opportunity then to tell my side of the situation, I left feeling comfortable that the error would be resolved and justice would be served. Mistake number four.

On May 22, 2009, I received a certified letter stating that I had lost and now owed $1800.15, as the cost of the hearing had been $252.35. My only further appeal would be to the Superior Court through a writ of mandate. I had 90 days to file the writ. The letter demanded that I pay the fine immediately. I was shocked and dismayed at how the hearing officer had found that I had done something I did not do. She acknowledged that a white “trail” in the gutter had originated from a property up the hill from my house and that there was no evidence that I had hosed down the spilled concrete. Despite these things, and even though Flores’s samples had been lost, the hearing officer had concluded that the material in the gutter was concrete and that it had come from my house.

The general invoice they sent to me was dated May 20, 2009, with a payment due date of June 6, 2009. I called the administrative hearing coordinator, Mary Randell-Jones, to tell her of my intention to file a writ and to ask if the payment due date could be extended to the 90 days I was given to file my appeal. She informed me she would have to get approval from the city attorney’s office. I decided to ask for some assistance from my city council representative, Sherri Lightner. I spoke with her aide, Steve Heverly, who stated that he would call the Storm Water Department. Amazingly, Mary Randell-Jones called me the next day and apologized for not getting back to me sooner. She said that they would hold the payment for 90 days. Imagine my surprise when I received a certified letter, dated June 19, 2009, from the City Treasurer Collection Program. “Collection Notice / Protect Your Credit! This Account Has Been Referred for Collection. Balance Due: $1981.35.” Here we go again.

I have now been told that to file a writ of mandate I need an attorney, and even if I win my appeal, it will only erase the original arbitration and I will still have to go through another arbitration or pay the bill and take the City to Small Claims Court. I am still working on finding help to assist in proving my innocence.