ALJDEC

01F-A012003(2)-BFS · Department of Building and Fire Safety · 2001-10-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 17, 2001. APPEARANCES: Complainant Jesus Villa represented himself. Respondent CAVCO industries was represented by Mike Edwards. Respondent AZM was represented by Bob Riddle. No representative appeared for Respondent Arizona Manufactured Homes Sales. ADMINISTRATIVE LAW JUDGE: Gregory L. Hanchett _____________________________________________________________________ In this matter, Complainant seeks review of the Department of Building and Fire Safety’s (hereinafter “Department”) determination regarding item number 21 of the Department’s verified complaint, relating to the floor of the home which sticks out at the base of the bay window wall. The Department determined that the inspector’s original finding of “verified” should be changed to “corrected.” At the hearing in this matter, Respondent Arizona Manufactured Homes Sales failed to appear, though having been duly noticed regarding the hearing and the fact that it was a named Respondent. Furthermore, pursuant to the stipulation of the parties, Respondent AZM was dismissed out of this proceeding as the parties agreed that Respondent AZM would in no event have any liability for the issue involved in item 21 of the complaint. Based on the evidence and arguments adduced at the hearing, the following findings of fact, conclusions of law, and recommended decision are made. FINDINGS OF FACT 1. Complainant purchased a manufactured home through Respondent Arizona Manufactured Homes. Respondent CAVCO manufactured the home. Respondent AZM completed the site preparation and installed the home on March 14, 2000. 2. Several problems with the home compelled Complainant to file a complaint with the Department on February 2, 2001. 3. On April 2, 2001, a BFS inspector, Mr. Dennis Butzen, completed an onsite inspection of the premises. Several of the items listed in Complainant’s complaint were verified and each of the respondents was directed to repair items for which they were responsible. 4. Item number 21 related to a corner of the floor of the home which sticks out from underneath the base of the wall of the bay window (hereinafter referred to as the “corner”)of the home. 5. As a result of the inspection, the inspector initially verified Item 21, telling Respondent CAVCO that it was required to correct the deficiency. The verified complaint also ordered CAVCO to provide to the “DAPIA,” [1]an approved construction schematic which would show the whether the corner was designed to be constructed on the home. 6. On April 10, 2001, CAVCO answered the response and provided the “DAPIA.” The schematic itself consists of two pages and shows the method of building and the existence of the corner. According to CAVCO’s representative, this corner is actually a standard feature designed into the manufactured home. It originally was designed into the unit as an exterior plant shelf. It is constructed so as not to allow any transmission of the outside elements into the interior of the home. While it is possible to remove the corner during the manufacturing of a specific home, it is not removed unless the manufacturer is notified by the retailer that the corner is to be removed. Furthermore, the removal of the corner incurs additional expense in the manufacturing process which is passed along to the consumer. 7. Based on the “DAPIA, ” the Department changed the verified status of item 21 to “Corrected by Manufacturer” in a letter dated May 17, 2001. 8. The department’s changing of the status of item 21 precipitated Complainant’s appeal in this matter. 9. At the hearing, CAVCO’s representative testified that the purchase order it received from the retailer had no provision for the manufacturer to cut off the corner. CAVCO further introduced the actual order received from the retailer. There is no provision in the order calling for the manufacturer to cut off the corner. 10. Complainant testified at the hearing that he was induced by the respondent dealer to purchase this particular home under the guise that the corner would be removed. Complainant backed-up this assertion by placing into evidence a floor plan which he received from the respondent dealer (Exhibit #3) which does not show the corner. Complainant’s testimony, which the undersigned finds to be credible, was uncontested at the hearing.

11. Complainant did not present any evidence to show that the method of construction of the corner was defective or that it deviated or failed to comport with either a construction blueprint, plan, or standard or some applicable safety regulation. There was simply no evidence adduced to show that the construction of the corner did not comport with applicable workmanship standards. 12. There was ample evidence to show that the respondent retailer may have induced Complainant’s purchase of the home with a promise that the corner would be removed. CONCLUSONS OF LAW 1. The Complainant has the burden of proof, and the standard of proof on all issues is by a preponderance of the evidence. Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). 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). It "is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not." Black's Law Dictionary, 1182 (6th ed. 1990). 2. Arizona Revised Statute §41-2186 (6) provides that it is grounds for sanctioning a license if a licensee commits a wrongful act. Arizona Revised Statute §41-2186 (19) permits the Department to sanction a license where a licensee fails to provide all agreed upon goods and services. Arizona Revised Statute §41-2186 (20) permits the Director to sanction a license of a licensee where the licensee fails to manufacture in a workmanlike manner all subassemblies, units and accessory structures . 3. Arizona Administrative Code R4-34-104 (A) requires that all work shall be performed in a workmanlike manner. Arizona Administrative Code R4- 34-104 (B) further requires that all work be performed in accordance with any applicable building codes and professional industry standards. 4. In this case, Complainant has failed to show that Respondent CAVCO failed to follow requirements for the construction of this mobile home unit in building the corner. Furthermore, there is no evidence to suggest that the corner as constructed did not comport with applicable building schematics or was not built in a workmanlike manner. Therefore, there is insufficient evidence to sustain Complainant’s appeal against Respondent CAVCO. 5. There is, however, ample evidence to sustain Complainant’s complaint regarding Item #21 against the respondent dealer. Here, the uncontroverted evidence shows that the sales agreement between Complainant and Respondent Arizona Manufactured Homes called for the corner to be removed so that the floor would be flush with the bay window wall. It may simply have been an error on the part of the respondent dealer. Nevertheless, such conduct, if verified, would plainly violate §41-2186 (19) and necessitate corrective work on the part of the respondent dealer. 6. Despite the fact that there was ample evidence introduced in the hearing to sustain the Item #21 complaint against the dealer, the undersigned is highly concerned about the fact that the original verification of item #21 did not suggest that the respondent dealer might have any liability for the issue. The undersigned is unwilling to attach liability to respondent dealer for the correction of item #21 without first requiring that the matter be verified through the normal complaint verification process. Hence, it is appropriate to recommend to the Director that this matter be returned to the agency for the purpose of allowing a Department inspector to determine if item #21 of the complaint should be verified against the respondent dealer. RECOMMENDED DECISION Based on the forgoing, it is recommended to the Director that the determination of the agency that item #21 not be verified against Respondent CAVCO be affirmed. It is further recommended that this matter be returned to the agency for the purpose of allowing a Department inspector to conduct an investigation to determine if item #21 should be verified against the respondent dealer. If the inspector determines that the item should be verified against the respondent dealer, then a verified complaint should issue against the dealer with respect to item #21 and the respondent dealer should be ordered to correct the matter. In the event that either the Complainant or the respondent dealer is dissatisfied with the inspector’s determination regarding item #21, then each side should be accorded the opportunity to pursue an administrative appeal of the determination within statutorily prescribed time limits. Done this day, October 3, 2001.

______________________________________ Gregory L. Hanchett Administrative Law Judge Original transmitted by mail this ____ day of ____________, 2001, to:

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

By ___________________________

----------------------- [1] The undersigned does not recall either of the parties explaining at the hearing what the letters in the acronym “DAPIA” stand for. Hence, the undersigned cannot elucidate any further regarding the acronym “DAPIA.”

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