ALJDEC

00F-A990020-BFS · Department of Building and Fire Safety · 2000-04-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: Wednesday, April 5th, 2000; 9:00 a.m. APPEARANCES: The Complainants, Mss. Michelina and Caroline Ragano, appeared and represented themselves. Respondent Schult Homes Corporation was represented by Mr. Richard Schultis, Field Service Supervisor. Respondent El Dorado Homes was represented by Mr. William Dietrich, owner and General Manager. Respondent Williams American West Mobile Homes Services failed to appear or be represented. ADMINISTRATIVE LAW JUDGE: Grant Winston _____________________________________________________________________ This action was brought on for administrative hearing before the Office of Administrative Hearings, April 5th, 2000. Testimony was heard and other evidence admitted to record, and, based on the entire record, the following Findings of Fact, Conclusions of Law, and Recommended Order are made.

FINDINGS OF FACT

1. The Appellants herein, Michelina and Caroline Ragano, mother and daughter respectively, purchased a manufactured home from Respondent dealer El Dorado Homes on February 11th, 1999. The home was delivered and installed on Appellant’s lot at the Trails West subdivision in Tucson, Arizona, on February 17th, 1999, by Respondent Williams American West Mobile Home Service. (None of the Appellant’s issues at the hearing touched or concerned the installation of the home, and no evidence of record showed any wrongdoing on the part of that Respondent. Such being the case, although Respondent American West Mobile Home Service failed to appear, it remains the case that there is no evidence against its license.) The manufacturer of the Appellant’s home is Respondent Schult Homes Corporation. 2. Although the home was installed in February of 1999, Appellant did not move into their home until August of 1999. 3. Upon taking possession, Appellants found themselves dissatisfied with several aspects of their home. They filed the instant Complaint with the Department of Building and Fire Safety, Office of Manufactured Housing, on or about September 9th, 1999, listing numerically 45 separate items of complaint, with attachments. A number of addenda were filed by Appellants, adding to the number of items of their original complaint. 4. Mr. Dennis Butzen, Inspector for the Department’s Office of Manufactured Housing, conducted an inspection of the premises in his official capacity on January 18th, 2000. The Appellants were present as were Messrs. Schultis and Dietrich. Many items of the complaint were not verified by Mr. Butzen. Many items were verified and corrected by the Respondents prior to hearing. As a matter of fact, by the time of the hearing Appellants had only two items remaining to comprise this appeal. Identifying those items as they are enumerated in the Verified Complaint and Sign-off Form, they are #76 and #92. 5. Item #76, and Inspector Butzen’s finding as to it are: “Carpeting looks worn in the traffic areas: NOT VERIFIED.” Item # 92 and Inspector Butzen’s finding as to it are: “Cabinet delivered for desk area does not match any other kitchen cabinets: NOT VERIFIED.” 6. As to the complaint about worn carpet, the Appellants produced no evidence that would tend to disturb the finding made by Mr. Butzen. What little evidence there is as to the condition of the carpet supports Mr. Butzen’s finding, or tends to prove a condition of the carpet which was not a complaint of the Appellants, and for which Mr. Butzen was not asked to conduct an inspection. 7. The photographic evidence of the carpet reveals a condition of the carpet that is natural in such high traffic areas as they depict, and that is a mere flattening down of the pile. Carpet fibers do flatten somewhat after being tread upon. But the photos do not show carpet that is worn. 8. Appellants produced a report by Arizona Technical Floor Covering Inspections, reporting on an inspection of their carpet conducted by one of its inspectors on February 24th, 2000. Appellants called especial attention to the portions of the report indicating that the carpet’s stretch was found not to be as taut as it should be, especially at the high traffic areas, and that this could contribute to the crushing in question. Appellants had never complained to the Office of Manufactured Housing about loose carpet. Their complaint was worn carpet. 9. Respondent Schult Homes had admitted into the record evidence from the carpet manufacturer that their independent inspection agency found no defect in the carpet’s manufacture. 10. As to the complaint about the cabinet for the desk area not matching other kitchen cabinets, again the evidence does not support the Appellant’s appeal. 11. Appellants contracted with Respondent El Dorado in the purchase of their home for a variation, a special item, regarding the cabinetry in their home. According to the documentary evidence of the contract terms, written by Respondent El Dorado Homes’ sales agent, the Appellants were to receive “cabinets in place of desk, no opening if possible.” And, “eliminate desk, replace [with] cabinets, no opening on top.” Appellants paid an additional $200.00 for this special order. They supplied Respondent with a basic, rough drawing of the cabinets they wished. 12. It is hereby found that the cabinets Respondent provided the Appellants were in substantial compliance with the contract, and were not defective in any way. There is some evidence of a less than identical match in color, but these are wood cabinets, and whatever “mismatch” there may be seems to inhere in the natural variation of wood color. The only other mismatch it seems may be in the drawer sizes as compared to those of the other cabinets. But it must be remembered this was a special order, replacing a desk area with cabinets that were not originally supposed to be there. Again there is substantial compliance by the Respondent relative to the cabinets. Appellants gave testimony that the cabinets are contrary to the verbal agreement reached between them and Respondent’s agent. However, the contract speaks for itself, and its terms outweigh in evidence one party’s hearsay in the form of disputed verbal agreements that were not made part of the contract.

CONCLUSIONS OF LAW

1. This hearing was held under authority of and pursuant to A.R.S. §§41- 1092 and 41-2183. 2. The preponderance of evidence of record, as found herein-above, demonstrate that the Inspector’s “NOT VERIFIED” findings as to Items #76 and #92, were proper, and no violation of the laws pertaining to these licensees can be concluded to have occurred, including any violations of A.R.S. §41-2186, for which grounds would exist for disciplinary action.

RECOMMENDED ORDER

Wherefore, it is hereby recommended that Case Number AAA 99-0/020, be dismissed. Done this day, April 19th, 2000.

______________________________________ GRANT WINSTON Administrative Law Judge

Original transmitted by mail this ____ day of April, 2000, to:

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

By _______________________________

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Office of Administrative Hearings 100 N. Stone Ave., Suite 704 Tucson, Arizona 85701 (520) 628-5488