ALJDEC

00F-C990218-BFS · Department of Building and Fire Safety · 2000-02-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: Thursday, February 10th, 2000; 9:00 a.m. APPEARANCES: The Appellant/Complainant, Mr. Kenneth L. Thompson, appeared in his own behalf. The Respondent, Schult Homes Corporation, was represented by Ms. Mary Webb, Schult Service Manager, and the Respondent Mission View Homes, was represented by Mr. Mark Brill, Qualifying Party. ADMINISTRATIVE LAW JUDGE: Grant Winston _____________________________________________________________________

These matters were brought on for administrative hearing before the Office of Administrative Hearings, Tucson, on February 10th, 2000, at 9:00 a.m. 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 Appellant/Complainant in these consolidated cases is Mr. Kenneth L. Thompson. Mr. Thompson purchased a new manufactured home from the Respondent dealer Mission View Homes (also known as Country Club Homes) on July 1st, 1999. Respondent Schult Homes was the manufacturer of the home Mr. Thompson purchased. The purchase price was $70,510.00. The home had been previously installed on the lot on or about April of 1998. 2. Mr. Thompson noticed some problems with the home, including his perceived problem with the air conditioner’s function. 3. Mr. Thompson attempted to have these issues resolved informally with Respondent Mission View Homes. On July 1st, 1999, Mr. Thompson signed his sworn, notarized statement to the effect that he would pay $1,500.00 to Country Club Homes by July 15th, 1999, upon the correction of the problem with the eaves and the air conditioning to his satisfaction. This document was made an addendum to the parties’ purchase contract. Mr. Thompson was not satisfied with the corrective measures taken to the air conditioning, even to the date of this hearing, thus he has not paid Mission View the stated $1,500.00. 4. Mr. Thompson filed a complaint with the Office of Manufactured Housing on August 25th, 1999. The Department assigned the complaint to Mr. Dennis Butzen, Inspector. 5. Inspector Butzen conducted a job-site inspection on September 29th, 1999. Mr. Butzen issued a Verified Complaint and Sign-Off Form (the Form), which stated his findings as to twelve items of complaint. The Form was served on the Respondents September 30th, 1999. 6. Respondents corrected all verified items on the Form except two. Item 3, which was dealing with cabinet, pantry and vanity doors which were warped or discolored or not properly closing, was assigned to Respondent Schult Homes for correction, but was not corrected. Subpart b of item 12, which was a verification of a need for touch up painting of master bedroom retreat walls, was assigned to Respondent Mission View Homes, but was not corrected. 7. After thirty days, these verified items not having being corrected, a Citation and Complaint issued for those items. This was Case No. 99- 0/218. Mr. Thompson is denominated as Complainant in that case. 8. One item of Mr. Thompson’s complaint given attention at the job-site inspection by Inspector Butzen was item 1, “Faulty air conditioner.” Inspector Butzen made a finding of “NOT VERIFIED” as to this item. Mr. Thompson appealed against that finding, and a Notice of Hearing was issued on December 6th, 1999, as to it. That is case number 99-0/011. Mr. Thompson is denominated Appellant in that case. 9. These two cases were ordered consolidated, and were noticed to be heard by the Office of Administrative Hearings (OAH) together, on February 10th, 2000. 10. At the call of the case, Mr. Thompson stated on the record that the two outstanding issues of case number 99-0/218, Items 3 and 12b, described above, had been corrected to his satisfaction, and he was withdrawing his complaint as to them. Therefore, evidence was heard only as to the appeal of Mr. Thompson of the NOT VERIFIED finding of his allegation of a problem with the air conditioner, which is Case No. AAA 99-0/011. 11. Mr. Thompson produced very little in the way of evidence to support his claim regarding the air conditioning. As a matter of fact, the only evidence he did produce was his own testimony. Mr. Thompson testified that the air conditioning was faulty, in that it would not adequately cool his house in the summer, would cool some parts of the home while not cooling others, and would make excessive noise while in operation. He also testified that just as the unit would not adequately cool in the summer, it did not adequately heat in the winter. This was the entire direct evidence of Mr. Thompson. 12. Mr. Thompson did offer some hearsay. He testified that Kelly Air Conditioning employees have visited his home at least five times and that these persons told him the air conditioning unit was faulty, and that the design was a poor design. He further testified that two witnesses besides himself heard these statements made by the Kelly people. However, Mr. Thompson failed to produce any of these witnesses at the hearing. 13. Mr. Thompson testified that he had written documents bearing statements of what others had said about the air conditioning unit, but he failed to bring these to the hearing. 14. Mr. Paul Matthews of Kelly Air Conditioning testified. Although Mr. Matthews has never been to Mr. Thompson’s house, he has extensive knowledge in the heating and air conditioning industry, and is familiar with the relations had between Mr. Thompson and his business concerning the subject unit. Mr. Matthews testified that for the size of Mr. Thompson’s house, 28’x56’, the unit, a 4-ton unit, is an appropriate size. He testified that Kelly had changed out the factory installed blower with an upgraded blower to help air flow. He testified that he had dispatched the technicians from Kelly to Mr. Thompson’s house, and they had found nothing defective with the unit, and observed the duct work to be intact and unobstructed, and air flowing freely. 15. Mr. Matthews also testified that he suggested to Mr. Thompson a larger blower, but the suggestion was rejected because a larger blower would create even more noise. He also testified that it was suggested to Mr. Thompson that a new outdoor heating and air conditioning unit be installed to replace his existing unit. However, Mr. Thompson rejected this idea as it would mean additional cost to him of $3,476.28. Mr. Thompson corroborated this portion of Mr. Matthews’s testimony. 16. Inspector Butzen testified. He did inspect the heating and air conditioning unit, and found nothing wrong or defective with the unit. The system was properly functioning when he inspected, and he viewed the ductwork and saw it to be unobstructed. His recommendation was that the adjustments mentioned in the homeowner’s manual (which is an evidentiary exhibit to the hearing) be made in order to promote better air flow. 17. The preponderance of evidence does not weigh in the favor of Mr. Thompson. Possibly there is something faulty in the unit, but Mr. Thompson failed to produce evidence to prove so. On the contrary, most of the evidence in this case is to prove that the air conditioner in his home is an appropriate size, is functioning appropriately, and with free air flow.

CONCLUSIONS OF LAW

1. This hearing was held under authority of and pursuant to A.R.S. §§41- 1092, and 41-2183. 2. As to consolidated case number 99-0/218, it is concluded, as found by the evidence that the verified corrections on the Form were corrected prior to hearing to the satisfaction of the Complainant, Mr. Thompson. Thus that case was mooted by the time of the hearing. 3. As to consolidated case number AAA 99-9/011, Appellant Mr. Thompson failed to produce a preponderance of evidence to demonstrate that the Inspector’s “NOT VERIFIED” finding as to the item of a faulty air conditioner was incorrect. As found, the greater weight of evidence demonstrates facts that the air conditioner is a proper-sized unit and is functioning properly.

RECOMMENDED ORDER

Wherefore, it is hereby recommended as follows: That Case Number 99-0/218 be closed, and That Case Number AAA 99-0/011 be dismissed. Done this day, February 17th, 2000.

______________________________________ Grant Winston Administrative Law Judge

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

N. Eric Borg, Director Department of Building and Fire Safety ATTN: Michelle M. Castaneda E. Virginia, Suite 100 Phoenix, AZ v85004

By _______________________________

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