ALJDEC

00F-C990275-BFS · Department of Building and Fire Safety · 2001-01-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 9, 2001; at 8:30 a.m. APPEARANCES: The Complainant appeared through his attorney, Robert Wolkin. The Respondent appeared through its attorney, Elizabeth Wilson. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________ Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. Respondent is the holder of a Class D-12 (No. 4423) License issued by the Department of Building and Fire Safety. 2. The Complainant purchased a manufactured residence from the Licensee and the home was installed on September 23, 1998. 3. Shortly after moving into the manufactured residence, the Complainant began noticing several areas of unsatisfactory workmanship. 4. The Complainant was dissatisfied with the Respondent’s workmanship and failure to correct its work to his satisfaction despite repeated requests that it do so. The Complainant then filed a formal complaint, against the Respondent, with the Arizona Department of Building and Fire Safety, Office of Manufactured Housing. 5. Pursuant to the filing of the formal complaint, an assigned agency inspector conducted an on-site inspection and verified portions of the formal complaint. 6. Credible evidence, presented at hearing, established that the Respondent has failed to comply with the terms and conditions of the verified complaint. 7. The following items of the Verified Complaint were shown to fail to comply with applicable minimum industry standards and to require proper corrective action by the Respondent: h. No work has been performed on the carpet. The verified complaint establishes that the hall-carpet is stapled to a tack strip and has a hole in it. The master bedroom doorway has a gap in a seam. The carpet in the master bedroom closet is loose from the seam tape. The carpet in the master bath has a hole and is loose at the tack strip. The carpet in the utility and guest bath doorways is loose. The carpet in bedroom #3 is loose from the seaming tape. The Respondent shall properly repair or replace the carpet in the residence. i. The linoleum in the residence has not been corrected. The verified complaint establishes that the kitchen cut is not sealed and that the utility cut is not sealed at the register. The Respondent shall properly repair or replace the kitchen linoleum. j. The Respondent has performed corrective action on the interior drywall related items but the parties are in sharp dispute as to whether the repairs have been performed to within applicable industry standards. Photographic evidence, produced at hearing, established that further corrective action is required. The Respondent shall properly complete the interior drywall repairs in the residence. All repairs are to comply with applicable industry workmanship standards. 11. The remaining items of the verified complaint were shown to have been corrected to within minimum applicable tolerances. 12. The Department of Building and Fire Safety does not specify exact methods of repair nor does it allow a Complainant/Homeowner to specify specific methods of repair. Instead the Department verifies an item that must be corrected and the decision as to the method of corrective action, whether repair or replacement, is left up to the Licensee/Respondent which makes such decisions at its peril. Again, all corrective action must correct the verified item to within applicable workmanship standards. 13. Applicable industry workmanship standards are an objective standard utilized by the Department of Building and Fire Safety as an objective standard utilized in all cases regardless of the identity of the parties. It is not the individual standard of the Homeowner/Complainant nor is it the individual standard of the Licensee/ Respondent. Applicable industry workmanship standards are an objective standard utilized by the Department of Building and Fire Safety as an objective standard that is utilized in all matters regardless of the identities of the parties involved. CONCLUSIONS OF LAW 1. A.R.S. §41-2186(7) subjects a licensee’s License to sanction for a departure from or disregard of any code or any rule adopted by the board. 2. A.R.S. §41-2186(12) subjects a licensee’s License to sanction for a failure to respond relative to a verified complaint after notice of such complaint. 3. A.R.S. §41-2186(20) subjects a licensee’s License to sanction if the licensee fails to manufacture or install, in a workmanlike manner, all subassemblies, units and accessory structures which are suitable for their intended purpose. 4. The credible evidence of record established violations, by the Respondent, of the provisions of A.R.S. §41-2186. RECOMMENDED ORDER In view of the foregoing, it is recommended that the Respondent’s Class D-12 License (No. 4423) be suspended for a period of 30 days commencing on March 1, 2001. It is further recommended that if the Respondent properly accomplishes the proper correction of the items set forth above in Finding of Fact Nos. 7(a) through 7(c), inclusive, then the above provided License suspension shall not take place and that Citation No. 99-0/275 (Docket Number 00F-C990275-BFS) shall be closed. Dated this 23rd day of January, 2001.

OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ M. Douglas Administrative Law Judge

Original transmitted by mail this ____ day of January, 2001, to:

N. Eric Borg, Director Department of Building and Fire Safety ATTN: S. Gail Hinckley East Virginia, Suite 100 Phoenix, AZ 85004

By _______________________________

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