ALJDEC

01F-A012001(2)-BFS · Department of Building and Fire Safety · 2001-09-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 10, 2001 APPEARANCES: Appellant William J. Thomas appeared on his own behalf. Mike Edwards appeared on behalf of Respondent Cavco Industries LLC, dba Cavco Industries Durango Division. Respondent Timbercreek Homes failed to appear. ADMINISTRATIVE LAW JUDGE: Daniel G. Martin _____________________________________________________________________

William J. Thomas appealed the determination of an inspector for the Office of Manufactured Housing, Arizona Department of Building and Fire Safety, that either no action was required or that sufficient corrective action had been taken with respect to certain alleged deficiencies in the construction of Mr. Thomas’ home by Respondent Cavco Industries, LLC. Based on the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order:

FINDINGS OF FACT Some time prior to May 23, 2000 (the record is unclear as to precisely when), Appellant William J. Thomas purchased a home manufactured by Respondent Cavco Industries LLC, dba Cavco Industries Durango Division (“Cavco”). Master Mobile Installers (“Master Mobile”) installed Mr. Thomas’ home on his property in Concho, Arizona on June 16, 2000. Mr. Thomas moved in shortly thereafter, on or about June 20, 2000. On April 23, 2001, Mr. Thomas filed a complaint with the Office of Manufactured Housing (“OMH”) against Cavco and Timbercreek Homes, Inc. (“Timbercreek”), the dealership from which Mr. Thomas had purchased his home. Mr. Thomas’ April 23, 2001 complaint supplemented a previous complaint that he had filed with the OMH against the same parties by adding five (5) new items.[1] On June 5, 2001, OMH Inspector Dennis Butzen conducted an inspection of Mr. Thomas’ home during which he inspected the supplemental complaint items raised by Mr. Thomas in his April 23, 2001 complaint. On June 6, 2001, as a result of Inspector Butzen’s inspection, OMH issued a “Verified Complaint and Sign-Off Form” in which it itemized each of Mr. Thomas’ supplemental complaint items, and stated whether those items were VERIFIED (i.e., subject to correction by the manufacturer or dealer) or NOT VERIFIED (i.e., not subject to correction). Relevant to this proceeding are the following specific items: 44.) Tile cracked at entranceway: NOT VERIFIED. Cosmetic item not reported within cosmetic complaint period. 45.) Master bathtub pulling away from wall: CORRECTED BY MANUFACTURER. Trim on tub surround was caulked. 47.) Kitchen tile grout cracking behind sink: NOT VERIFIED. Cosmetic item not reported within cosmetic complaint period. 48.) House has moved and has cracked the exterior cinder blocks: NOT VERIFIED. Home is set on 4” full concrete slab. The “cosmetic complaint period” referenced in OMH’s Verified Complaint and Sign-Off Form is the one hundred twenty (120) day period prescribed by A.R.S. § 41-2182 for the filing of complaints concerning cosmetic items. The Administrative Law Judge finds that item no. 44 (cracked entrance tile) and item no. 47 (kitchen tile grout cracking behind sink) are cosmetic items subject to the 120 day complaint period established by A.R.S. § 41-2182. Pursuant to A.R.S. § 41-2182, the last day upon which Mr. Thomas could have filed a complaint with OMH regarding cosmetic items was October 16, 2000 (i.e., 120 days after the June 16, 2000 installation of his home). Mr. Thomas’ complaint regarding the cracked entrance tile and the kitchen tile grout, filed on April 23, 2001, falls outside the statutorily- prescribed period for filing complaints concerning cosmetic items. Regarding item no. 45 (master bathtub pulling away from wall), the evidence demonstrated that Cavco properly repaired this deficiency. Regarding item no. 48 (house has moved and has cracked the exterior cinder blocks), Mr. Thomas testified that following the placement of his home on his lot, a cinder block skirting (consisting of three courses of block) was installed at his home. Mr. Thomas did not identify the party that installed the skirting; however, it was not Cavco. According to Mr. Thomas, his house “came out of level” approximately 2-3 months after installation (i.e., between August and September 2000), and again on several occasions thereafter. On each of these occasions, Master Mobile re-leveled Mr. Thomas’ home. The last such re-leveling occurred on or about June 5, 2001. Mr. Thomas alleges that the shifting of his home has caused the cinder block skirting on the kitchen side of the house to bend, which in turn has caused cracking along the grout line between the second and third courses of block. However, Mr. Thomas did not present any substantial evidence at hearing to establish the nature of the cracking in his cinder block skirting, or any substantial evidence that would establish a causal connection between that cracking and the alleged movement of his home. CONCLUSIONS OF LAW A.R.S. § 41-2186(20) grants OMH the authority to take disciplinary action against a licensee who fails to manufacture or install subassemblies, units or accessory structures in a workmanlike manner. A.R.S. § 41-2153(B)(9) requires OMH to verify written complaints filed within a year of purchase. OMH is reasonably presumed to have certain expertise, experience and knowledge with respect to those matters the law provides it authority to inspect, since verification upon inspection is a threshold determination by the inspector which then allows OMH to issue an appropriate order pursuant to A.R.S. § 41-2153(B)(10). In this case, OMH, through its inspector, Mr. Butzen, determined that three of the items about which Mr. Thomas had complained (nos. 44, 47 and 48) were NOT VERIFIED, and that one item (no. 45) had been adequately corrected. Mr. Thomas bears the burden to prove, by a preponderance of the evidence, that these determinations were improper. See Arizona Administrative Code Rule R2-19-119. 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). Preliminarily, the Administrative Law Judge concludes that as to item no. 44 (cracked entrance tile) and item no. 47 (kitchen tile grout cracking behind sink), A.R.S. § 41-2182 bars Mr. Thomas’ complaint because the items at issue are cosmetic in nature and Mr. Thomas failed to file his complaint within the 120 day period established in that statute. Therefore, OMH’s NOT VERIFIED determinations as to these items should be upheld. As to item no. 45 (master bathtub pulling away from wall), the evidence demonstrated that Cavco properly repaired this deficiency. Therefore, this item is determined to be NOT VERIFIED. As to item no. 48 (house has moved and has cracked the exterior cinder blocks), the Administrative Law Judge acknowledges Mr. Thomas’ testimony that cracking has occurred in the cinder block skirting. However, the Administrative Law Judge concludes that Mr. Thomas failed to demonstrate, by a preponderance of the evidence, that the cracking constitutes a workmanship violation because Mr. Thomas failed to present any substantial evidence regarding the nature of the cracking, and further failed to present any substantial evidence that would establish a causal connection between that cracking and the alleged movement of his home. Therefore, OMH’s NOT VERIFIED determination for this item should be upheld. RECOMMENDED ORDER Based on the foregoing, the Administrative Law Judge makes the following recommended Order: Item nos. 44, 45, 47 and 48 of Mr. Thomas’ April 23, 2001 complaint are NOT VERIFIED. Done this day, October 1, 2001.

______________________________________ Daniel G. Martin Administrative Law Judge

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

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

By ___________________________ ----------------------- [1] The deficiencies alleged by Mr. Thomas in his initial complaint are the subject of separate proceedings, and are not considered in this decision.

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