ALJDEC

00F-A990022-BFS · Department of Building and Fire Safety · 2000-05-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 18, 2000 APPEARANCES: Appellants: Mary Mason, Homeowner, appeared at the hearing pro se; Subpoenaed Witness C.W. Wilson, Owner of Copper State Contractors. Respondent : Barbara Holloway, Qualifying Party/Service Manager, represented Fleetwood Homes of Arizona, Inc.; Subpoenaed Witness, Richard A. Davis, Inspector, Department of Building and Fire Safety; Phil Falls, Field Operations Supervisor. Respondent : Tom Gawrych, Vice President, represented Imperial Home Sales; Witness Joey Ojinaga, Service Manager Imperial Home Sales. ADMINISTRATIVE LAW JUDGE: Gary B. Strickland _____________________________________________________________________ Evidence and testimony having been received at the hearing and based upon the entire record, the undersigned Administrative Law Judge issues the following Findings of Fact, Conclusions of Law and Recommended Order.

FINDINGS OF FACT 1. Respondent, Fleetwood Homes of Arizona, Inc., is in the business of manufacturing homes for sale. Fleetwood Homes holds a Class M- 9E license issued by the Department of Building and Fire Safety. Respondent Imperial Home Sales, Inc. enjoys privileges attaching to a Class D-8 license.

2. Appellants purchased a manufactured home constructed by Fleetwood and purchased through Imperial Home Sales in June of 1999. The purchase price totaled approximately $73,000.00.

3. Subsequent to purchase and installation, Appellants asserted deficiencies in the structure and filed a complaint with the Department of Building and Fire Safety (hereafter, “the Department”) on December 29, 1999. Pursuant thereto, an Inspector with the Department conducted an inspection of the home on February 10, 2000. As a result of the inspection, the Department’s Inspector verified one of the eight enumerated deficiencies found in the complaint and issued a Verified Complaint & Sign- Off February 18, 2000 denoting the necessary corrections.

4. On March 28, 2000, the Department issued a Citation and Complaint wherein was challenged by the Appellants the Inspector’s failure to verify complaint item numbers 2, 3, 5, and 6, identified within the Verified Complaint & Sign-Off Form issued on February 18, 2000.

5. At the hearing, Appellants stipulated that items 3 (“ceilings cracked and separating from the walls) and 7 (fireplace deficiencies) had been satisfactorily repaired.

6. Appellants’ concerns go primarily to allegations of abnormal floor movement (item 2) and failure properly to ground the home (item 6). The Inspector testified that he observed no abnormal vibration in the floors and that the condition of the floors was not abnormal. The Inspector further testified that he has not observed evidence that the home has not been properly grounded.

7. Leave having been granted, Appellants submitted into the record a Citizens Utilities Company, Electric Division, “Customer Trouble Order”, Exhibit 7, and a bill for services rendered Appellants by Trademark Electrical Corporation on May 22, 2000, Exhibit 8. These documents evince that the neutral bar was not grounded to the grounding bar at the time of the original installation.

8. The weight and sufficiency of the evidence establishes that Respondent Fleetwood Homes has made the necessary corrections pursuant to the Department’s Verified Complaint & Sign-off Form directives. Appellants stipulate that Fleetwood Homes of Arizona has made repairs to the fireplace, a verified complaint, and has repaired the ceiling crack(s), an unverified complaint. Other issues, save one, raised by Appellants in their complaint and presented at the hearing have either previously been corrected, not adequately shown to be a deficiency which falls below the accepted and required standards, or matters upon which Appellants have failed to sustain the requisite burden of proof. However, Appellants have demonstrated that complaint number 6, as noted on the Verified Complaint & Sign-off Form, should have been verified as requiring action.

CONCLUSIONS OF LAW 1. The burden of proof generally at an administrative hearing falls to the Appellant. Utah Construction Company v. Berg, 205 P. 2d 367, Ariz. 285 (Ariz. 1949). Further, the standard of proof is that of the “preponderance of the evidence”. Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985).

2. The evidence of record has established that Appellants’ allegations regarding Respondents’ failure properly to ground the home, complaint item number 6, should have been verified by the Office of Manufactured Housing in accordance with A.R.S. ( 41-2153 (B) (9). Appellants failed to present credible and competent evidence in support of its allegations that the Inspector improperly determined not to verify items numbered 2, 3 and 5 of the complaint.

3. It is concluded, as a matter of law, that the weight and sufficiency of all of the evidence of record supports Appellants’ allegation identified as item number 6 on the Verified Complaint & Sign-off Form. The weight and sufficiency of the evidence does not support Appellants’ allegations relating to items numbered 2, 3 and 5.

RECOMMENDED ORDER In view of the foregoing, IT IS RECOMMENDED that the Director verify item number 6 of the complaint filed in this matter.

Set forth this 31st day of May in the year 2000.

______________________________________ Gary B. Strickland Administrative Law Judge

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

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

By ___________________________

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