ALJDEC

00F-C990025-BFS · Department of Building and Fire Safety · 1999-10-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 21, 1999 at 1:30 p.m. APPEARANCES: Complainant appeared on his own behalf; Respondent Schult Homes Corporation appeared through Mary Webb, its Customer Service Manager; Respondent Luxton Corporation dba Arizona Mobile Homes appeared through its attorney, Scott Butler, Esq. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

The parties presented evidence and testimony on the issues of whether either of the Respondents violated A.R.S. § 41-2186 with respect to (1) the effectiveness of the air conditioning and heating system and (2) the stability of the floor in a certain area of Complainant’s manufactured home. Based upon the entire record, the undersigned makes the following Findings of Fact, Conclusions of Law and Recommended Order. FINDINGS OF FACT Procedural Background The Assistant Director of the Office of Administration of the Department of Building and Fire Safety (“Department”) has issued License No. 5719, Class M-9E, to Respondent Schult Homes Corporation (“Schult”), a master manufacturer. The Assistant Director has issued License No. 6658, Class D-8, to Respondent Luxton Corporation dba Arizona Mobile Homes, a master dealer (“Luxton”). On or about January 17, 1998, Complainant and his wife entered into a contract to purchase from Respondent Luxton a triple-wide Marlette manufactured home that had been manufactured by Respondent Schult in April 1997. Respondent Luxton had been using the triple-wide Marlette manufactured home as a lot model to show prospective customers. The model had not been hooked up to electricity and no air conditioner had been installed in it. Complainant and his wife paid $84,552.90 for the lot model, approximately $12,000.00 less than they would have paid for the same model of manufactured home specially ordered. As part of the sale agreement, Respondent Luxton agreed to install a 5-ton, 10-seer air conditioner on the manufactured home. Normally, a 4-ton unit was installed in that particular unit but Complainant wanted a slightly over-sized unit for greater efficiency. Respondent Luxton hired Roger Hubbell of Golden Valley Heating and Cooling, a licensed air conditioning contractor that specializes in manufactured homes, to install the upgraded air conditioner. On or about February 14, 1998, Mr. Hubbell installed a 5-ton Innertherm air conditioner, which is designed for use in manufactured homes, at a cost to Respondent Luxton of $1,797.00. Complainant subsequently made a complaint to the Office of Manufactured Housing, which alleged among other things that the “[a]ir flow through floor registers is very weak making heating and cooling very costly” and that a floor joist was loose in the master bedroom just in front of the windows. The complaint was assigned to Inspector Richard Davis to investigate. The February 10, 1999 Inspection and the February 25, 1999 Verified Complaint Based Thereon

On February 10, 1999, Inspector Davis inspected the manufactured home. On February 25, 1999, on behalf of the Department Inspector Davis verified Complainant’s complaint No. 1, concerning the air flow against the manufacturer, Respondent Schult, noting that the “manufacturer has previously relocated the connection of the flex ducting for the bedroom floor registers from the side of the main duct to the end of the main duct.” At the February 10, 1999 inspection, Inspector Davis also noted in complaint item #10 that, although Respondent Luxton had installed a 5-ton air conditioner, it had installed a furnace blower designed for use with a 2- to 4-ton unit. Mr. Hubbell replaced the blower with a blower designed for use with a 5- ton air conditioner during the February 10, 1999 inspection. Inspector Davis also verified that there was a loose floor joist in the master bedroom and ordered the installer “to tighten the floor joist lag bolts per setup manual.” The installer subsequently tightened the floor joist lag bolts. The May 20, 1999 Inspection and the May 27, 1999 Verified Complaint Based Thereon

On April 1, 1999, Complainant wrote a letter to the Department’s Complaint Program Manager, Gary Grounds, expressing dissatisfaction with the complaint procedure, in relevant part as follows: Regarding your letter I received on March 26, 1999 alleging I would not allow corrections on my heating and A/C duct system[,][1] Schult Homes Service Tech. was not there to make “corrections” he was simply going to undo previous work and leave it as they found it originally. According to them doing so would leave me in worse shape than I am now, with less air flow through my registers. Nobody is able to find me any answers as to what needs to be done to repair. Your inspector Mr. Davis has little or no knowledge of item[] #1 heating A/C . . . . [H]e cannot or would not tell me who tests for proper air flow or the procedures [for] doing so. Schult Homes contends there is no problem; however I have had (2) separate heating and air conditioning contractors tell me my air circulation through my registers is very inadequate. . . . .

I would like a reinspection of my circulation system among other things and would like someone who is knowledgeable in this area and could tell me I do or do not have a legitimate complaint and if I do what repairs need to be done to remedy the situation. Several things have been done under my house by Schult Homes . . . and an independent contractor including running a new network of ducts but so far they have been unable to give me any measurable increase in air flow.

On May 20, 1999, Inspector Davis performed a second inspection and, on May 27, 1999, on behalf of the Department issued a second verified complaint and sign-off form, which included the following: NOTES: There was a misunderstanding regarding the previous work performed and the assignment of item #1 and item #10. Somehow the Manufacturer thought the complainant had refused to let the Manufacturer make corrections to the circulation system. The idea was to find out if the corrections previously made to the circulation system, (item #1) and the addition of the large capacity blower to the furnace would increase the air flow; according to the complainant it did not because the blower runs at low speed when the furance [sic] is on. The complainant called the A/C subcontractor who installed the blower and had the blower put on high speed in an effort to heat the home.

1. Air flow through the floor registers is very weak making heating and cooling very costly. VERIFIED - DEALER TO CORRECT. . . . .

During the reinspection of the under floor it was noted that the heat cross over flex duct from the furnace in the “A” half of the “C” half has been split and (4) four extra 10” . . . duct was attached. This attachment is leaking air and the floor duct is not properly sealed at the attaching point, and the cross over floor duct has no boot installed. There is a (6”) six inch hole in this floor ducting. There is air flow in the ground and in the floor cavity around the furnace. . . . .

6. There is an apparent floor weakness or vibration in the floor system in the master bed room between the bed and the rear wall when someone walks through the area. VERIFIED - MANUFACTURER TO CORRECT. This was originally thought to be a loose floor joist but the floor lags were checked and found to be tight so the re- assignment is to the Manufacturer.

10. Purchased and installed 5-ton air conditioner, furnace blower indicates for use with 2 to 4 ton air conditioner units – CORRECTED BY DEALER, larger capacity blower installed.

NOTE: If needed the Complainant and the Dealer together may file a complaint against the air conditioning sub contractor with the Registrar of Contractors to obtain corrections.

Neither of the Respondents corrected the air flow through the floor registers or the apparent floor weakness to Complainant’s satisfaction and he requested a hearing on these items of verified complaint. 15. On July 26, 1999, the Department issued a Citation and Complaint against Respondent Schult for failing to correct Item #6 (the perceived floor weakness) and against Respondent Luxton for failing to correct Item #1 (the perceived inadequate air flow). Additional Evidence Presented at Hearing With Respect to Air Flow from Floor Registers Complainant lives in Golden Valley, which is just outside Kingman, where it gets relatively hot in the summer and cool in the winter. Complainant testified that he upgraded the air conditioner because he wanted an efficient heating, ventilation, and air conditioning system. In the winter, however, even after the gas heater runs for 10 or 12 hours, the temperature does not rise above 68° in the three bedrooms and two bathrooms. In the summer, even if the electric air conditioner runs 10 or hours, the temperature in the three bedrooms and two bathrooms does not fall below 81° or 82°. A piece of toilet paper placed on the register will not blow off. The most comfortable room in the house is the utility room, which is located right next to the heater and air conditioner. The larger blower and various adjustments that both Respondents made to the duct work underneath the manufactured home have not made the air flow adequate. Even at the highest blower speed, the home is warm in the summer and cool in the winter. If Complainant closes all the registers except one, the air flow increases only 10% or 15%. Complainant has tried adjusting the air registers but the house remains uncomfortable. In addition, the house is drafty when neither the heater nor the air conditioner is operating. Complainant personally has gone underneath the home 12’ or 15’ and has observed openings in the duct system, which are covered by tape. Respondent Luxton sent out air conditioning contractor Advantage Air to inspect the manufactured home. Advantage Air suggested rerouting the whole duct system, at a cost of $3,000.00 or $4,000.00. Respondent Luxton did not authorize the work. Complainant himself hired Economy Heating/Cooling, another air conditioning and heating contractor, to inspect the home. Economy Heating/Cooling measured the air flow and found it to be insufficient. Respondent Schult Homes informed Complainant that, if an independent contractor repaired or altered the duct work, Schult Homes’ factory warranty would be voided. Roger Hubbell of Golden Valley Heating and Cooling testified at the hearing that the air conditioner and heater were both functioning according to design but that the temperatures Complainant reported indicated a problem somewhere in the system. The 2 x 6 walls and insulation are adequate and, although a 5-ton air conditioner is ½- to ¾-ton oversized for Complainant’s 1,940-square-foot house, it should not cause a problem. Mr. Hubbell also does not believe the problem concerns the air intake or return. When Mr. Hubbell went out to inspect Complainant’s residence for Respondent Luxton, he found good air flow in the kitchen, but too little air flow in the three bedrooms and two bathrooms. Mr. Hubbell shut down some of the vents and rerouted some of the air flow without putting in another “box,” which increased air flow somewhat but not enough to make the flow adequate. Following the second inspection, Respondent Luxton ordered Mr. Hubbell to return the duct work to meet factory specifications, which he did, except for the duct leading to the kitchen, which was originally a 12” duct and was replaced with a 9” duct to increase air flow to the rest of the house. Mr. Hubbell taped up the ductwork where he could reach it. He noticed leaks on the top of the ductwork, where he could not make repairs because this area was inaccessible. Mr. Hubbell had never seen a problem with air flow like the one he observed in Complainant’s home. Since he became involved in this matter, he has researched the problem and talked to other contractors who specialize in heating and air conditioning systems on manufactured homes, which frequently have low air flow. Mr. Hubbell testified that some contractors install a box (a “collector box,” “V-box,” or “distributor”) next to the heater, which costs approximately $1,500.00 and generally improves air flow. Both Respondents offered this amount to Complainant at the hearing to settle his claim based on inadequate air flow, but he declined the offer of settlement. Joel Benson, who works for Respondent Schult Homes as a service representative, testified he had made 3 or 4 service calls to check Complainant’s home. He could find no leaks and, in his opinion, the air flow was adequate. Mr. Benson did find modifications to the system, including those made by Mr. Hubbell. Mr. Benson moved some of the duct work and believes it is presently close to its original condition. Respondent Schult Homes’ field supervisor Rick Schultis also testified that the air flow in Complainant’s house meets the manufacturer’s standards. Respondent Luxton offered into evidence Respondent Schult Homes’ May 21, 1997 internal memorandum, whose authenticity it did not dispute, regarding complaints of cooling problems in triple-wide manufactured homes having loop duct systems. The memorandum suggested various measures that could be taken to improve air flow, including replacing the registers in rooms with too much air with smaller registers for balance, closing off registers, adding registers, replacing 12” crossover ducts with 9” crossover ducts, checking crossover duct locations for air loss due to poor connections, and making sure that the home has the largest blower available and that the blower is set on the highest speed. With Respect to Floor Weakness or Vibration Complainant testified that, when someone walks by, the floor in an approximately 4’-square area shakes where a large dresser or vanity has been placed between the two windows in the master bedroom, causing the various bottled toiletries and knickknacks on the vanity to vibrate. If the vanity is moved, the problem disappears. Complainant has also observed similar floor weakness or vibration in the family room. Respondent Schult Homes’ service representative Mr. Benson testified that manufactured homes are constructed on 4 steel I-beams that run the length of the home and the home is installed on piers beneath the outside I-beams. Two x 6 floor joists are laid perpendicularly to the 4 steel I-beams. The perceived problem with floor weakness is actually caused by the location of the vanity dresser, a large, heavy piece of furniture, exactly between two of the steel I-beams. Infield piers cannot be used to reinforce this area because houses settle at different rates. CONCLUSIONS OF LAW In this administrative proceeding, Complainant bears the burden of proof and must establish statutory violations by a preponderance of the evidence. See A.A.C. R2-19-119; see also Culpepper v. State, 187 Ariz. 431, 438, 930 P.2d 508, 515 (App. 1996). “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). A preponderance of the evidence is “evidence which is of greater weight or more convincing than evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary at page 1064 (6th ed. 1990). Complainant did not establish that either Respondent violated any statute with respect to the perceived floor weakness or vibration in the master bedroom or family room. This perceived defect appears and reappears as furniture is moved. Respondent Schult Homes credibly explained that the problem is due to the nature of a manufactured home, not any deficiency in workmanship or materials. Complainant did establish that the heating and air conditioning system in his home is not fit for its intended purpose due to inadequate air flow. The evidence established that air flow was inadequate after Mr. Hubbell modified the duct work on behalf of Respondent Luxton and after he restored it to the manufacturer’s specifications. Respondent Schult Homes is potentially responsible because the ductwork is installed at the factory and the evidence established that the triple-wide homes Schult Homes manufactured frequently had problems with respect to air flow. Respondent Luxton is potentially responsible for the inadequate air flow because it undertook to modify the factory-installed duct work, which may have changed the system. The inadequacy of the air flow has been verified against both Respondents. Both Respondents came prepared to defend against Complainant’s complaint about inadequate air flow and produced evidence with respect to this issue at the hearing. Complainant therefore has established that, with respect to the inadequate air flow, both Respondent Schult Homes and Respondent Luxton violated A.R.S. § 41-2186.1, .19, and .20. RECOMMENDED ORDER In view of the foregoing, it is recommended that the Assistant Director suspend Respondent Schult Homes Corporation’s License No. 5719, Class M-9E, and Respondent Luxton Corporation, dba Arizona Mobile Homes’ License No. 6658, Class D-8, effective January 3, 2000, unless prior thereto the Assistant Director receives written proof that Respondents have performed appropriate corrective action to cause air flow from the heater or air conditioner in Complainant’s manufactured home to be adequate. If such written proof is timely received, it is recommended that no license suspension be imposed and that the entire citation and complaint against both Respondents in Case No. 99-0/025 be dismissed. Done this day, October 29, 1999.

______________________________________ Diane Mihalsky Administrative Law Judge

Original transmitted by mail this ____ day of November, 1999, to:

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

By ___________________________

----------------------- [1] The file provided to the Office of Administrative Hearings does not include any letter to this effect.

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