ALJDEC

00F-C990236-BFS · Department of Building and Fire Safety · 2000-04-10

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Pursuant to due notice, this cause came on for a formal hearing on April 6, 2000, in Phoenix, Arizona, before Administrative Law Judge Neal H. Jordan of the Office of Administrative Hearings.

APPEARANCES For Complainant: George Bickmore, pro se.

For Respondent: Guy Williams, Qualifying Party for Oakcrest Homes

FINDINGS OF FACT Based upon all the evidence of record, the following findings of fact are determined: On January 28, 1999, a manufactured home purchased by Complainants from Schult Homes Corporation was installed for Respondent, Oakcrest Homes, the dealer, by Future Builders, a contractor/installer employed by Respondent. That installation was deficient in a number of respects for which Complainants filed a complaint with the Department of Building and Fire Safety, Office of Manufactured Housing (“Department”). The Department conducted an onsite inspection on October 19, 1999 and verified six complaint items requiring that the manufacturer and the dealer, Oakcrest Homes, to make corrections or repairs as required. The Department issued an administrative citation and complaint on December 22, 1999 in the name of Complainant against Respondent, Oakcrest Homes, based upon the verified complaint, and alleging Respondent failed to satisfy one item of the complaint after a duly filed 30 day notice issued pursuant to A.R.S. §41-2153(C). Included as part of the purchase package for the manufactured home was the provision that an add-on structure would be constructed for a garage and workshop. This add-on structure was to be attached to the manufactured home with a roof installation the same as on the manufactured home. All items on the verified complaint have been properly attended to with the exception of item number 25 relating to the roof installation on the add-on structure itself and where this structure conjoins the manufactured home. The evidence supports the finding that the roof installation in the subject areas was installed incorrectly and is below acceptable minimum standards of workmanship for roof installations. The shingles were nailed or stapled through the exposed shingle surfaces rather than under each course. The ridge cap was inappropriately installed and nailed. Respondent, Oakcrest Homes, admittedly hired Future Builders to perform all of the work in question and accordingly bears the responsibility for the workmanship of Future Builders. Complainants admitted to hiring an unlicensed person to reinstall roof shingles that had blown off during a wind storm but denied that this person touched or in any manner performed work on the roof area that is the subject of this complaint. Respondent, Oakcrest Homes, suggests that it was not possible to determine whether it was its contractor, Future Builders, or the unlicensed person that caused the roof area in question to be installed in a poor and unworkmanlike manner. Complainants have filed a complaint with the Registrar of Contractors against Future Builders which has resulted in an order in their favor. Future Builders contractors license with the Registrar of Contractors has since been revoked and Complainants are presently waiting the decision on the filing of a claim with the Registrar of Contractors Recovery Fund.

CONCLUSIONS OF LAW The Office of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to A.R.S. §41-1092 - 1092.12 (1998). 2. The burden of proof, unless otherwise provided by law, is on the party asserting a claim, right, or entitlement in a contested case or appealable agency action. A.A.C. R2-19-119(B)(1); See also Utah Construction Company v. Berg, 68 Ariz. 285, 205 P.2d 367 (App. 1949). The standard of proof in such matters is that of the preponderance of evidence. A.A.C. R2-19-119(A); See also Shelby School v. Arizona State Board of Education, 192 Ariz. 156, 962 P.2d 230 (App. 1998); Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996); A.R.S. §41-2153(C) states clearly that if Respondent, as a dealer, salesperson or installer fails to respond to a 30 day notice served pursuant to A.R.S. §41-2153(B)(10), as was the instant notice, then such failure is grounds for disciplinary action pursuant to A.R.S. §41-2186. A.R.S. §41-2186 provides that the license of Respondent may be temporarily suspended or permanently revoked, have imposed an administrative penalty or have the license placed on probation if Respondent is found guilty of or commits any of 21 specified prohibited acts. In this case Respondent is found to have violated A.R.S. §41-2186(1), (12), (19) and (20). Such conduct is found to be without bona fide excuse or defense and is to be considered when determining appropriate discipline to be imposed upon this Respondent’s license. The credibility of the testimony of George Bickmore, a complainant herein, is found to be credible when weighing the evidence of record to determine whether the poor workmanship was a result of the unlicensed person hired by Complainants or that of Future Builders. The balance of this evidence favors Complainants version of the events, particularly in light of the decision against Future Builders before the Registrar of Contractors. However, it would be unconscionable for an order to be issued requiring Respondent, Oakcrest Homes, to correct or repair the roof in question and to permit Complainants to receive a payment from the Registrar of Contractors Recovery Fund for the same repairs thereby allowing Complainants to recover twice for the same claim. Since the Respondent, Oakcrest Homes, as the hiring authority, bears the ultimate responsibility for the quality of the work of Future Builders, it must also bear the responsibility for any repairs necessitated by the poor workmanship of Future Builders. In the interest of fairness and justice, since Respondent, Oakcrest Homes, does bear that responsibility it is appropriate and more expeditious that it be required to effectuate any and all necessary repairs and corrections to the roof and that Complainants, upon having the roof properly repaired, withdraw their claim to the Registrar of Contractors Recovery Fund.

RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED, that License No. 7085, a Class D-8 license, issued to Respondent, Oakcrest Homes, shall be suspended on the effective date of the Order entered in this matter. It is further RECOMMENDED that if the Department of Building and Fire Safety, Office of Manufactured Housing, receives credible written proof that Respondent has accomplished appropriate and effective remedial work in a timely manner on the item set forth in the verified complaint issued in this matter and as delineated in Findings of Fact, then the above license suspension shall not take place. It is further RECOMMENDED, that to the extent possible the Department inform the Registrar of Contractors Recovery Fund of this order and that any payment therefrom should be withheld pending the completion of repairs by Respondent, Oakcrest Homes, failing which, then full payment, if warranted, may then be made to Complainants.

ENTERED this day, April 10, 2000.

______________________________________ Neal H. Jordan 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 ___________________________

-----------------------

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