ALJDEC

00F-C990119-BFS · Department of Building and Fire Safety · 2000-01-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 3, 2000 APPEARANCES: Complainant/Appellant Richard Ross appeared, representing himself. Respondent Jentra Limited Co. dba Metro Factory Outlet was represented through Diana J. DiSilvestro. ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn _____________________________________________________________________ Evidence and testimony were presented regarding repair compliance and an appeal of two items at Complainant’s residence, and based upon review of the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. Respondent Jentra Limited Company dba Metro Factory Outlet holds a Class D-12 license [License No. 6978] issued by the Arizona Department of Building and Fire Safety. 2. In July 1998, Complainant Ross entered into a contract with Respondent to purchase a double-wide residence, manufactured by Cavco [Cavco Industries LLC, License No. 7098]. 3. After the September 1998 installation of the home, Complainant Ross was not satisfied with some items and workmanship and filed a complaint with the Department of Building and Fire Safety (Department) regarding the work.

4. Following an inspection in April 1999, the Department’s Inspector issued a Verified Complaint and Sign-Off Form to the parties involved on May 4, 1999 [in BFS Complaint File No. 99-0506]. The verified complaint dealt with 51 items: some of which the dealer was to remedy, some of which the manufacturer was to remedy, and some of which were not verified. 5. Following an inspection in July 1999, the Department’s Inspector issued a Verified Complaint and Sign-Off Form to the parties involved on July 23, 1999 [in BFS Complaint File No. 99-0506]. The verified complaint dealt with items 52 through 70: some of which the dealer was to remedy, some of which the manufacturer was to remedy, and some of which were not verified. 6. An administrative hearing was held July 26, 1999. Complainant Ross appeared. Respondent Jentra/Metro failed to appear. Respondent Cavco appeared. Pursuant to the testimony and evidence presented at that hearing, the administrative law judge made Findings and Conclusions dated July 28, 1999, and recommended that the Verified Complaint be amended to now verify several items, including the snack bar. The administrative law judge further recommended that there be no extension of time for the Respondents to complete the items already verified by the Department’s Inspector [on May 4, 1999 and on July 23, 1999], but that the matters determined therein could be consolidated for a compliance hearing in due course. Recommended Decision of Administrative Law Judge, No. 99F-A989015- BFS, July 28, 1999. 7. On August 18, 1999, the Department issued its ORDER in the matter, indicating the verification of Item 19 (the snack bar), and giving the two licensees thirty days from the effective date of that ORDER to correct the items, without delaying any required actions on previously verified items. Further, that Director’s ORDER indicated that compliance on these items could be consolidated in due course with the existing items. 8. On September 30, 1999, the Department issued its Citation and Complaint [BFS Case No. 99-0/199] against Respondent Jentra Limited Company dba Metro Factory Outlet, regarding compliance with the Department’s ORDER of August 18, 1999. The Citation and Complaint alleges violations of Arizona Revised Statutes (A.R.S.) §§41-2186.1, 41-2186.12, 41-2186.19, and 41-2186.20. Respondent was directed to file a written verified answer to the complaint within ten days. The Citation indicates that a failure to answer would be deemed to be an admission by Respondent of the allegations in that Citation and Complaint pursuant to A.R.S. §41-2181. 9. A re-inspection was conducted on October 21, 1999. The Department’s Inspector verified item number 19: incorrect snack bar ; this was noted as “CORRECTED BY DEALER”. The Department’s Inspector further verified item numbers 55 and 56: french doors having nail marks, not closing properly, jamb needing screws filled flush and jamb needs to be painted with semi-gloss paint. This was noted as Verified, and “DEALER TO CORRECT.” Item 56 is specifically noted to be “Same as item #55.” 10. On November 16, 1999, Department issued its Notice of Hearing in Case No. 99-0/199 [Docket No. 00F-C990119-BFS]. The Notice of Hearing for Case No. 99-0/199 indicates that the issue is the uncorrected items 19, 39 and 55; further stating that item 56 was dismissed as not verified, and is now an appeal item. 11. On November 16, 1999, Department issued its Notice of Hearing in Case No. AAA 99-0/008 [Docket No. 00F-A990008-BFS]. The Notice of Hearing for Case No. AAA 99-0/008 indicates that the issue is an appeal of the April 28, 1999 “not verified” determination of item 56. 12. These two matters were noticed to the dealer, Respondent Jentra, but were not noticed to the manufacturer Cavco. 13. At the hearing in these consolidated matters, two items remained at issue. The french doors [originally noted as items 55 and 56] and the snack bar [originally noted as item 19]. 14. Complainant Ross testified that the snack bar issue remaining was not the original issue (of the snack bar originally installed being the wrong snack bar), but was the fact that the new snack bar still remained incomplete. Complainant Ross testified that the dealer and manufacturer had worked out the situation of it originally being the incorrect bar, and that the incorrect bar had been taken out, and the new bar was not quite finished to be installed; and that the molding still needed to be put on and a drawer needed to be fixed. Complainant Ross testified that he had conversations with Cavco, which told him that the parts were shipped to Respondent Jentra/Metro location in Show Low, and that no one has called to schedule a time to get this completed. 15. Respondent indicated that it was unaware that the snack bar had not been completed, but that since Cavco was putting it in, Cavco needed to complete that as the manufacturer. Respondent indicated that it usually did not get involved with the actual installation but only sends work orders to the factory/manufacturer. 16. Complainant Ross testified regarding the continued problems with the doors not closing properly that he was experiencing, and the damage to the doors caused by the attempts to fix the problems with the doors. Complainant Ross provided a video he made of the french doors, pointing out problems, the door not being closed properly and the damage. Complainant Ross testified that Respondent, or the persons sent to fix it, had essentially said, it was the best they could do as to fixing it. Complainant Ross testified that it has been attempted to be fixed so many times that the frame, jamb and lock area are mangled and they want a new door. 17. Respondent first indicated that the doors were not verified for the dealer to take care of, and that it was not their item, but the manufacturer’s item. However, on direct inquiry from the tribunal regarding the Inspector’s October 1999 verification indicating it was the dealer’s item, Respondent then indicated that it understood that a person had been dispatched to do the fill and painting sometime before October 1999, and that Complainant would not allow it to be finished. Respondent’s representative believed that the door looked like most mobile home doors and that she believed the door to be “functional.” /// /// APPLICABLE LAW 1. A.R.S. §41-2186 generally provides, in the following relevant portions, that a holder of a license or a person listed on a license shall not commit the following acts or omissions: 1. Failure in any material respect to comply with the provisions of this article or article 2 of this chapter. xxx 12. Failure to respond relative to a verified complaint after notice of such complaint. xxx 19. Failure to provide all agreed on goods and services.

20. Failure to manufacture or install in a workmanlike manner all subassemblies, units and accessory structures which are suitable for their intended purpose.

A.R.S. §41-2186 further provides that the Department’s Office of Administration may temporarily suspend a license, permanently revoke a license, impose an administrative penalty or place a license on probation for the failures or actions. CONCLUSIONS OF LAW 1. The evidence and credible testimony showed that Respondent Jentra/Metro has failed to complete the Dealer verified item of the snack bar item. Respondent was determined to be responsible for the correction of this item. Therefore, Respondent was responsible to assure that the appropriate bar was installed, completely and correctly. If additional work orders are required to be sent to assure completion, then Respondent is responsible for this per its testimony. As to the snack bar, it has been demonstrated that Respondent has failed to complete the repair and/or install the snack bar in a workmanlike manner. This is a violation of A.R.S. §41-2186.1 and §41-2186.19. 2. The evidence and credible testimony showed that Respondent Jentra/Metro has failed to complete the Dealer verified item of the french doors. Respondent was determined to be responsible for the correction of this item. Therefore, Respondent was responsible to assure that the appropriate french doors were installed correctly and work properly. The video evidence at the hearing showed that there has been damage to the frame, jamb and doors in the attempts to make the doors work properly, and further shows that the door does not close properly. Contrary to the assertions at the hearing, Dealer Respondent is responsible for this item. It is the conclusion of the undersigned that further repairs will not suffice to make these doors work properly, and that the french doors should be replaced. As to the french doors, it has been demonstrated that Respondent has failed to complete appropriate repair and/or provide properly working french doors in a workmanlike manner. This is a violation of A.R.S. §41-2186.1, §41-2186.12 and §41-2186.19. 3. Respondent’s failure to correct these two verified items, as Ordered by the Department, is a further violation of A.R.S. §41-2186.1. 4. Based on the evidence and the record, the Department’s Citation and Complaint is upheld. RECOMMENDED ORDER 1. In view of the foregoing, it is recommended that commencing on the effective date of this ORDER, that the Respondent Jentra Limited Company dba Metro Factory Outlet’s Class D-12 license be actively suspended unless the Department receives written notification from the parties that Respondent has ensured and achieved proper completion of the snack bar work and has replaced and installed the french doors, both in accordance with plans and in accordance with statutory and regulatory standards. 2. It is further recommended that if written notification is received, before the effective date of Department’s ORDER, that no suspension of Respondent’s license occur, and the Department’s Citation and Complaint No. 99-0/119 and Case Nos. 99-0/199 [Docket No. 00F-C990119-BFS] and Case No. AAA 99-0/008 [Docket No. 00F-A990008-BFS] be closed. 3. It is further recommended, in addition to the foregoing indefinite license suspension, if any, that Respondent’s license be placed on a period of 120 days disciplinary probation. This period of probation shall commence on the effective date of this ORDER or on the date on which notice of Respondent’s compliance with the terms of the ORDER is filed with Department, whichever is later. RECOMMENDED and DATED this day, January 24, 2000.

______________________________________ Kay A. Abramsohn Administrative Law Judge

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

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

By ___________________________ -----------------------

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 PH(602) 542-9826/ FAX 542-9827