ALJDEC

01F-A012002(1)-BFS · Department of Building and Fire Safety · 2001-09-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 21, 2001; at 11:00 a.m. APPEARANCES: The Complainants appeared through Patricia Riley. Respondent Redman Homes, Inc., License No. 5120, Class M-9E (herein after “Redman”) appeared through its authorized representative, Scott Riser. Respondent Apache Trailer Sales, Inc. d.b.a. Mission View Homes, License No. 4423, Class D-12 (herein after “Apache”), and P&G Mobile Home Serves, License No. 5841, Class I-10G (herein after “P&G”) failed to appear. 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. The Complainants purchased a manufactured residence on June 1, 2000, and the home was installed on June 22, 2000. 2. After moving into the manufactured residence, the Complainants began noticing several areas of unsatisfactory workmanship by Respondent Redman. 3. The Complainants were dissatisfied with the Respondent’s workmanship and failure to correct its work despite repeated requests that it do so. The Complainants then filed a formal complaint, against the Respondent, with the Arizona Department of Building and Fire Safety, Office of Manufactured Housing. The formal complaint was filed on May 21, 2001. 4. Pursuant to the filing of the formal complaint on June 14, 2001, an assigned agency inspector conducted an on-site inspection and verified items 1 and 9 of the formal complaint. 5. The assigned inspector found item no. 5 (Windows should be larger) to be “not verified” based on the fact that it was not on the order for the residence. The Complainants testified that someone from Apache had promised them larger windows. However, credible evidence, presented at hearing, established that a change in window size would have to be on the order form to have the larger windows installed. 6. There was no credible evidence presented to show that the parties purchase agreement contained any provision for the installation of larger windows in the residence. 7. The assigned agency inspector found that item nos. 2, 3, 4, 5, 6, 7, 8, 10, 11, 13, 14, 15a, 15b, 16, 17, 18a, 19, 20, 21, 22, 23, 24, 25, 26, 27a, 27b, 28, 29a, 29b, 31, 32, 35, 36, 37, 38, 39, 40 and 41 were cosmetic items that were not reported within the cosmetic complaint period. 8. The Complainants disagreed with the assigned inspector’s findings and requested a formal hearing. 9. There was no dispute that the formal complaint in this matter was filed over 300 days after the date of installation. 10. There was no credible evidence presented to establish that any of the disputed items involved the homes structural, electrical, plumbing, mechanical or gas system. 11. Credible evidence, presented at hearing, established that a “walk through” inspection was conducted on June 23, 2000 and that the walk through inspection check list provided, in pertinent part, as follows: “The filing period for cosmetic, superficial or minor matters is one hundred twenty days from the installation date of the home or the designated cosmetic complaint date prescribed by § 41-2182.01.” 12. Credible evidence, presented at hearing, supported findings that the assigned inspector’s actions in not verifying portions of the formal complaint based upon the fact that the non verified items addressed cosmetic items not reported within the applicable cosmetic complaint period were correct and should be affirmed. 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. A.R.S. § 41-2182(A) provides, in pertinent part, as follows: “a purchaser of a new manufactured home shall file a complaint concerning cosmetic, superficial or minor matters relating to the manufactured home no more than one hundred twenty days after the date of installation or the designated cosmetic complaint date prescribed in § 41-2182.01.” 5. A.R.S. § 41-2182.01 provides, in pertinent part, as follows: “At the time of execution of the purchase contract a purchaser of a new manufactured home may designate the beginning date for the one hundred twenty day cosmetic complaint period. (B) The purchaser may not take possession of the home or move into the home before the designated beginning date for the cosmetic complaint period unless the dealer consents in writing.” 6. The credible evidence of record failed to establish any violations, by the named Respondents, of the charged provisions of A.R.S. § 41-2186. RECOMMENDED ORDER In view of the foregoing, it is recommended that Case No. AAA 01- 2102, together with complaint (Complaint File #2001-520(RILEY)) upon which it is based, should be dismissed. Done this day, October 12, 2001.

________________________________ M. Douglas Administrative Law Judge

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

N. Eric Borg, Director Department of Building and Fire Safety ATTN: Shawna Blank 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