ALJDEC

00F-A990026-BFS · Department of Building and Fire Safety · 2000-07-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 20, 2000 APPEARANCES: Max Hatch, Complainant in his own behalf Felix Castro, Service Manager, on behalf of the Respondent Palm Harbor Homes, Inc. No one appeared on behalf of the Respondent, Northern Arizona Enterprises, L.L.C., dba Mr. Doublewide ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________

Findings of Fact 1. The Complainant purchased his home from the Respondent Northern Arizona Enterprises L.L.C. (Mr. Doublewide) in approximately May, 1999. The home was manufactured by the Respondent Palm Harbor Homes, Inc. (Palm Harbor). 2. The home was set up in Chino Valley, Arizona which is at an elevation of approximately 4,500 feet above sea level. 3. According to the Complainant, the furnace for the home is rated at 72,000 BTU’s. The specifications for the furnace for the Complainant’s home provide that the furnace has a 77,000 BTU capacity. 4. No problems with the furnace are noted until the temperature is below 20 degrees Fahrenheit (F). In early January, 2000, the low temperature at night in Chino Valley was often below 20 degrees and according to the Complainant was as low as 5 degrees below zero. At these times the furnace will not adequately heat the master bedroom and bathroom, and the den, raising the temperature to only 65 degrees F. These rooms are the most remote from the furnace. According to the Complainant, there is a seven degree differential between the temperature at the thermostat on the wall between the utility room and living room, and the three referenced rooms. 5. Attempts to locate the cause of the problem were unsuccessful. Palm Harbor checked for leaks, the trunk lines, cross over flanges, and floor registers. No obstructions or leaks were found. Some portions of the ductwork could not be satisfactorily checked because it is insulated and enclosed in plastic. The Complainant filed his complaint with the Department of Building and Fire Safety-Office of Manufactured Housing (Department). 6. On April 18, 2000, Department Inspector Vern Fass (Fass) performed an inspection at the Complainant’s home. The outside temperature at the time of the inspection was approximately 65 degrees F. The portion of the Complainant’s complaint concerned with inadequate heating was not verified. 7. The furnace has an orifice for either natural gas or propane. According to the manufacturer’s specifications, different size orifices are used at different altitudes. The Complainant uses propane and the evidence indicates, but is not certain, that the orifice which is used with the Complainant’s furnace is for sea level. It is unknown what effect, if any, the wrong sized orifice would have on the temperature problem. The portion of the complaint which asserted that the furnace had the wrong size orifice was also not verified by Fass. 8. The Complainant filed this Appealable Agency Action based on the failure to verify the complaints regarding the adequacy of the furnace and the appropriate size of the orifice. . . . . . . Conclusions of Law A.R.S. §41-1092(3), provides in pertinent part that an Appealable Agency Action is an action that determines the legal rights, duties or privileges of a party and is not preceded by an opportunity for an administrative hearing. 1. In the instant case, the Department’s failure to verify the complaint regarding the furnace, would be a final determination which would be dispositive of the Complainant’s potential right to have corrective work done on those particular furnace issues. The decision is therefore within the purview of the statute as an Appealable Agency Action. 2. The determination of an agency inspector who is charged with making evaluations relating to an area in which the inspector is presumed to have some expertise, should not be readily discounted. Absent evidence to the contrary, it is generally presumed that such an inspector meets certain minimum qualifications by experience and training regarding those things he or she is required to inspect. It is also presumed that the inspector performed the inspection in a sufficiently thorough manner and was impartial in making conclusions. Since the inspector was not subpoenaed and therefore did not testify, the exact reason the failure to verify, is unknown. 3. In this case, the Complainant testified credibly that during the coldest nights in Chino Valley, the temperature variation in the house was seven degrees and the warmest it would get in the identified rooms, was 65 degrees F. The Complainant did not present any evidence of the acceptable standards under the cited conditions, either for temperature variation in the home or for acceptable minimum warm temperatures. 4. According to the Complainant, the outside temperature was 65 F. when the inspection was done. This is hardly the environment which would show whether the furnace would work throughout the house within an acceptable standard at the colder temperatures which were described by the Complainant. However, the fact is that the complained of cold period lasts at most a few weeks in the middle of winter and then it is coldest at night. The inspector cannot be expected to anticipate the coldest time and then be required to perform an inspection in the middle of the night.

5. It is incumbent on the Complainant to present competent evidence to show that the inspector’s decision was most likely incorrect or otherwise defective. The Complainant therefore has the burden of proof. To meet the burden, the Complainant must first show the acceptable standard of performance under specified conditions, and then that the complained of item failed to meet that standard. Unless a condition is so obvious that no reasonable person could dispute that it fails to meet some minimal or accepted standard, the Administrative Law Judge (ALJ), can only rule on the evidence to determine whether a standard has or has not been met and if the agency decision was appropriate. The proper function of the ALJ is to decide a case based on the evidence. The ALJ is not an expert witness in the case and cannot create an artificial heating standard if the evidence of an actual standard was not presented as part of the hearing. 6. Although the likely discomfort of 65 F. in the den, master bedroom and bathroom for a few weeks of nighttime temperatures below 20 F., is acknowledged, it is insufficient evidence to conclude as a matter of law, that the agency decision to not verify the complaint, was improper. The same conclusion is made regarding the variation of 7 degrees F from one part of the house to the other, and whether the appropriate size orifice was installed. 7. Initially the ALJ had considered keeping the record open to require another inspection. However, for the reasons stated above, it is concluded that such an action is not appropriate under the facts of the case. The Complainant had sufficient time to obtain competent evidence of an applicable standard, to show the decision of the Department was in error. The Complainant having failed to present such evidence, this ALJ does not consider it advisable to keep the record open and wait for a sufficiently cold period in order to require the agency to perform another inspection to determine if its initial decision was correct. Absent keeping the record open for another inspection, there is insufficient evidence to conclude the agency decision was in error and should be reversed. 8. Based on the evidence of record, the Complainant failed to meet his burden of proof. Recommended Order In view of the foregoing, it is recommended that the decision by the Department to not verify the complaint in this case be affirmed, and the appeal of said decision by the Complainant be denied. Done this day, July 31, 2000.

________________________________ Allen Reed Administrative Law Judge

Original transmitted by mail this ____ day of July, 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 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826