ALJDEC

01F-A012009(2)-BFS · Department of Building and Fire Safety · 2001-11-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 15 and November 1, 2001 APPEARANCES: The Appellant appeared in his own behalf Jeff Cantrell, Engineering Manager, appeared on behalf of the Respondent, Palm Harbor Homes, Inc. Terry Allred, appeared on behalf of Respondent Allred Inc. ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________ Findings of Fact 1. The Appellant, is a resident of Cottonwood, Arizona. His home was manufactured by the Respondent, Palm Harbor Homes, Inc. (Palm Harbor). The home was sold to the Appellant, by the Respondent dealer, Allred, Inc. (Allred), in August of 2000. 2. The home was set up and a five ton air conditioning unit was installed by the Allred. 3. The Appellant is an electrician by education and employment. He has an Associate Degree in industrial electricity and electronics from Central Arizona College and currently does electrical instrumentation work for the Phoenix Cement Co. (electrical controls, computers and field equipment). 4. The Appellant experienced various electrical problems with lights and fans not functioning properly in the home. He testified this was because a three way switch had a disconnected neutral line and the electrical system for the hallway, bathroom, utility room and family room was not according to the electrical diagram because only one circuit was used when three circuits were indicated. 5. In approximately November, 2000, Palm Harbor investigated the alleged condition but apparently found no problem. There was no further elaboration on this issue. 6. On March 3, 2001 the Appellant sustained an electrical shock when he attempted to use a two receptacle outlet under the trailer which was marked as having a ground fault interrupter (GFI). The outlet is for heat tape for the water line which goes into the home and does not have a GFI. According to the Code of Federal Regulations, 24 CFR §3280(a)(7)(b)(4), the heat tape receptacle should not be on a GFI protected branch circuit. The outlet is only 10 and half inches from the edge of the manufactured home and should be three feet from the edge. 7. On April 2, 2001, the Appellant filed a complaint with the Department of Building and Fire Safety (Department), alleging numerous defects (approximately 18) with the electrical system of the home. 8. On July 18, 2001, Department Inspector Dennis Butzen (Butzen) performed an inspection of the home. He determined that approximately 15 items were “not verified”. 9. The Appellant filed an Appealable Agency Action on 11 of the “not verified” items. The parties stipulated that one item, No. 16 on the Verified Complaint and Sign Off Form, is no longer at issue. 10. The remaining appealed “non verified” items are: K. A laundry room countertop with no electric receptacle. L. A master bath outlet with a 15 ampere electric outlet. M. Only a single outside outlet. N. The wire gauge for the air conditioning conductors should be American Wire Gauge 6 (AWG) rather than AWG 8 (this is a dealer item). O. Heat tape outlet is too close to the side of the home. P. The 100 amp panel is insufficient for electrical needs. Q. Excess outlets on a circuit. R. Excessive voltage drops on three circuits. Conclusions of Law A.R.S.§41-1092, provides in pertinent part: “3. ‘Appealable Agency Action’ means an action that determines the legal rights, duties or privileges of a party and that is not preceded by an opportunity for an administrative hearing….”

A.A.C. R2-19-119 provides that the party asserting the claim, right or entitlement has the burden of proof. A.A.C. R4-34-601 (December 31, 1999) provides that a manufacturer shall build manufactured homes according to the standards and regulations in R4-34-102(C) and (D). A.A.C. R4-34-102 (December 31, 1999) does not have the referenced subsections (C) or (D) but does incorporate federal Housing and Urban Development (HUD) standards in 24 CFR 3280 as well as the National Electric Code (NFPA), 1999 Edition. The Notice of hearing provides that the Appellant is appealing the “not verified” determination for items 1, 2, 3, 5, 8, 13, 14, 15, 16, 17, and 18 1. In the instant case, the Department’s failure to verify the various items in the complaint would constitute a final determination which would be dispositive of the Appellant’s potential right to have corrective work done on those particular issues. The decision is therefore within the purview of the statute as an Appealable Agency Action. 2. The determination of a Department inspector who is charged with making evaluations relating to an area in which the inspector is presumed to have some expertise, should not be readily discounted. Absent evidence to the contrary, it is generally presumed that such an inspector meets certain minimum qualifications by experience and training regarding those things he or she is required to inspect. It is also presumed that the inspector performed the inspection in a sufficiently thorough manner and was impartial in making conclusions. 3. It is apparent that the area addressed in this case is technical and required extensive explanation during the hearing. Much of the technical evidence was provided by the Appellant although some was provided by Department personnel and the Respondent Palm Harbor. Palm Harbor submitted that the Administrative Law Judge’s (ALJ’s) reliance on the Appellant’s testimony was akin to allowing a party to referee their own soccer match. The analogy is not on point because the Respondent had ample opportunity in light of the evidence which was presented on the first day of the hearing, to obtain witnesses on the second day of hearing (approximately two weeks later), with expertise to present contrary evidence (their own referee under the Respondent’s analogy). Although an Administrative Law Judge (ALJ) should have some subject matter training in the area being heard (see A.R.S.§41-1092.01(C)(7)), the ALJ cannot be an expert in all technical areas that may be heard (the instant case is an example). Nor is the ALJ an unsworn witness who decides issues based on personal knowledge rather than the competent evidence of record. The Anglo-American adversarial process (including the administrative hearing), relies on the presentation of evidence on the record. If the evidence has an adequate foundation and it is not beyond the realm of reasonability or contrary to common knowledge, it is generally admissible and accepted in the administrative setting (A.R.S.§41-1062). Under this system, there is the potential that a party may fail to present material and probative evidence on an issue which could cause a matter to be decided differently than it is. However, a matter can only be decided based on things which are known (competent evidence of record), and not things which could have been or should have been of record. 4. The Appellant’s testimony regarding his education and employment history was credible on its face and was not impeached. The Appellant’s methodology and interpretation of various relevant portions of the Code of Federal Regulations (CFR) and National Electrical Code (NEC) were not seriously challenged or shown to be inherently suspect. In light of this, the most competent evidence of record on a number of the issues, is the evidence presented by the Appellant. 5. Understandably the fact that the Respondent has been building manufactured homes for years and presumably has engineers (including electrical engineers) who are familiar with the HUD and NEC requirements, is taken into account, as is the presumed expertise of the Department. It is these very considerations which place the burden of proof on the Appellant. Under A.A.C R2-19-119 and Culpepper v. State, 187 Ariz. 431 (App. 1996), the burden of proof is on the party asserting the claim and it is by a preponderance of the evidence. Implied in the term “evidence” is the understanding that the evidence is competent (substantial, reliable and probative, A.R.S.§41-1062(A)(1)). Although the Respondent and the Department may be entitled to certain presumptions, absent specific evidence to the contrary, those presumptions did not withstand the Appellant’s credible evidentiary presentation on certain issues to be discussed. 6. The Respondent dealer, Allred, accepted item 10(D) as listed in the Findings of Fact, and asserted it would do what was necessary to correct the condition. Although the item was not verified by Butzen, the fact that the dealer voluntarily chose to settle the issue as a matter of record, constitutes an enforceable agreement which has the same consequence as verification of the item as part of a verified complaint. 7. The parties stipulated to the dismissal of Item 16 of the Verified Complaint. 8. The evidence and law as presented in this case is that the applicable HUD standards rely on the 1993 National Electric Code (NEC), even though the NEC has been updated since then. Under the 1997 HUD standards set forth in 24 CFR 3280.801(b), if there is a conflict with the HUD standard and the NEC standard, the HUD standard shall apply. 9. The remaining appealable items are set forth in the Findings of Fact paragraph 10 (A-H) and are discussed in the following paragraphs. 10. Item A, (#1 of the Verified Complaint), the fact that there is no receptacle at the laundry room countertop is problematical. 24 CFR §3280.806(d)(4) (4-1-97 Edition) provides that countertop spaces under wall mounted cabinets require a receptacle. Under §3280.806(d)(7), laundry areas shall have an outlet within 6 feet of the intended location of appliances. The interpretation and application of the two provisions (d)(4) and (d)(7), in this case, were rendered unnecessary by the Appellant when he agreed to dismiss the appeal on that issue. 11. Item B, (#2 in the Verified Complaint), the master bath outlet is a 15 ampere circuit. According to 24 CFR 3280.806(a)(3), this is an acceptable standard. Any contrary NEC standard is not controlling. 12. Item C, (#3 in the Verified Complaint), the single outside outlet is all that is required under 24 CFR 3280.806(d)(8). The contrary NEC standard (an outlet front and back) was not shown to apply. 13. Item D, (#5 in the Verified Complaint), the Respondent dealer agreed to do the necessary air conditioning wiring with AWG 6. 14. Item E (# 8 in the Verified Complaint), the Respondent manufacturer’s argument that the HUD standard is contrary to and preempts the NEC standard is not accepted. The NEC standard 550-8(g) requires an underside heat tape outlet to be at least three feet from the outside edge of the home and within two feet of the water inlet. The cited HUD standard, 24 CFR 3280.604(a)(4)(iii) provides that the heat tape receptacle outlet shall be within two feet of the water supply inlet. This is the same distance from the water inlet as the as the NEC standard. The Respondent urges that the HUD standard of two feet from the water supply inlet, precludes the NEC three feet from the edge standard. The fact is that the two standards are not in conflict because they do not address the same thing. Generally, if a requirement in the law is not in conflict with the standard set by the preempting authority, the requirement is valid and enforceable. In this case the Department has chosen to incorporate both the HUD and NEC standards. The HUD standards prevail in areas of conflict with NEC standards. However, if there is no conflict, then NEC standards apply to the facts at issue. Based on the two standards, the distance of the heat tape outlet should be three feet from the edge of the home and still within two feet from the water supply inlet. 15. Item F (#13 in the Verified Complaint), the evidence showed that the current maximum draw on the panel is approximately 99 amps. According to the Complainant, this restricts him in adding circuits to the system. The Respondent countered that it had met design criteria. In addition the Respondent pointed out that it had suggested that the air conditioning be placed on an independent circuit but that this was not done (the dealer was responsible for the connecting the air conditioning). In any event the evidence is insufficient to disturb the “not verified” determination by Butzen. 16. Item G (#14 in the Verified Complaint), the evidence was that the back bedroom circuit should have 8 rather than 10 receptacles. According to the Appellant, this is based on NEC 220-3(c)(6) which provides for 180 volt amps per outlet. NEC 210-21(b)(2) provides that the maximum cord and plug connected load in amperes for a 15 amp circuit, is 12 amps. Based on the math presented by the Appellant, the maximum amps (12), is multiplied by the voltage (120) and divided by the volt amperes per outlet (180) which gives the appropriate number of outlets for a circuit (12X120=1440 divided by 180=8). The Respondent cited NEC 210-52 which provides that receptacles shall be installed so that no point along the floor line is more than 6 feet from an outlet. This evidence was not shown to be relevant to the issue. NEC 550-7 was also referenced by the Respondent but it refers to branch circuits rather than receptacles. The Appellant’s evidence and methodology were not contested and absent any substantial evidence to the contrary, the Appellant’s presentation on the issue must be accepted. 17. Item H (#’s 15, 17 and 18 in the Verified Complaint), these items all refer to power drops in three different circuits. According to the Appellant, he tested the three circuits using a voltmeter and ammeter and turning on a hair dryer and space heater. The Appellant testified that Item 15 of the Verified Complaint is a 130 foot electrical circuit, the length of which directly diminishes the voltage in the circuit. The Appellant also testified the circuit identified in Item 15 of the Verified Complaint shows a drop of up to 8% when the hair dryer is turned on. Item 17 of the Verified Complaint consists of four receptacles and showed a drop of 5% to 7% when the hair dryer was turned on. The circuit identified in Item 18 of the Verified Complaint consists of seven receptacles and showed a drop of 3.6% to 7.6%. To support his argument that the measured voltage drops were excessive, the Appellant cited NEC 210-19 Fine Print Note (FPN) which provides that: “ Conductors for branch circuits as defined in Article 100, sized to prevent a voltage drop exceeding 3 percent at the farthest outlet of power, heating, and lighting loads, or combinations of such loads and where the maximum total voltage drop on both feeders and branch circuits to the farthest outlet does not exceed 5%, will provide reasonable efficiency in operation.

18. The evidence did not clearly show that the testing done by the Appellant was specifically related to the matters addressed in the cited FPN. It is noted that the Respondent did not challenge the Appellant’s methodology or test results regarding the voltage drops in the various circuits. Absent evidence to the contrary, or some information tending to show the Appellant’s results are not reliable, the ALJ cannot arbitrarily disregard the evidence. However, the cited FPN provision does not categorically set a standard for allowable voltage drops in electrical circuits. The standard addresses the performance of conductors and not circuits, and the language of the suggested standard is not mandatory because it states that the referenced voltage drop limitations of 3% and 5%, “…will provide reasonable efficiency in operation”. This indicates a desired result but not necessarily a required result. Absent reliable evidence which more directly addresses voltage requirements for electrical circuits, (in the context of what are permissible voltage drops under various conditions or variables), plus language that addresses any voltage variations in mandatory terms to show that there is a minimum standard, this ALJ cannot conclude that the Appellant has proven that the various circuits in the referenced items fail to meet a controlling standard. The issue has been difficult and the Appellant’s presentation has been meritorious. However, the technical nature of the subject matter requires evidence which will not cause one to ponder about whether the Appellant satisfied the burden of proof. For the reasons stated above, it cannot be concluded that the “not verified” determinations on Items 15, 17 and 18 of the Verified Complaint should be altered.

Recommended Order In view of the foregoing it is recommended that the Appellant’s appeal of items 5, 8, and 14 of the Verified Complaint be granted. It is further recommended that the referenced item 5 be Verified as to Respondent Allred, Inc. and items 8 and 14 be verified as to Respondent Palm Harbor Homes, Inc. It is further recommended that the appeal be denied as to the remaining items 1, 2, 3, 13, 15, 16, 17, and 18 which are listed as “not verified” in the Verified Complaint, and the Department’s decision on those items be affirmed. Done this day, November 15, 2001

______________________________________ Allen Reed 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 ___________________________

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