ALJDEC

01F-A012019(2)-BFS · Department of Building and Fire Safety · 2002-03-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: Tuesday, March 5th, 2002; 9:00 a.m. APPEARANCES: The appellant, Ms. Kathleen Carbajal Beltran, represented herself. The appellant Palm Harbor, Homes, Inc., was represented by Mr. Travis Bott, Senior Regional Service Manager. The appellant Mountain West Manufactured Homes failed to appear. ADMINISTRATIVE LAW JUDGE: Grant Winston. _____________________________________________________________________ The administrative hearing of these matters was held in the Office of Administrative Hearings, Tucson, Arizona. Testimony was heard and other evidence admitted to the record, and, based on the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made. FINDINGS OF FACT 1. The respondents herein, Mountain West Manufactured Homes, and Palm Harbor Homes, Inc., are and during all times material hereto were, licensed by the Department of Building and Fire Safety, holding Class D- License number 7339 and Class M-9E License number 5137, respectively. 2. Appellant purchased a manufactured home from the respondent Mountain West Manufactured Homes (MWMH) in May of 2001. The manufacturer of the home was respondent Palm Harbor Homes, Inc. (PHH). 3. Appellant negotiated the purchase of the land on which the home would rest with Mountain West Realty, specifically a Ms. Sheila Engwall. Ms. Engwall made certain promises to appellant during the negotiations which induced appellant to make the purchase of the manufactured home she did in fact purchase. 4. Ms. Engwall promised that if the appellant would purchase a particular PHH, a demo model at a home show, that she, Ms. Engwall, and her husband, would clear the land, fence the perimeter of the land, and install the skirting around the home. 5. Appellant purchased the land and the manufactured home Ms. Engwall had induced her to purchase with her promises. Appellant moved into her new home in June of 2001. 6. The Engwalls never did come to clear the land. Eventually appellant’s husband performed that chore himself. Mr. Engwall did install the skirting, but with the first monsoon storm, it blew off. Mr. Engwall returned and merely picked up the pieces, some of which had been cracked in the storm, and reattached them. Appellant was unhappy with the skirting installation service of the Engwalls. The Engwalls never did fence the perimeter of the land. 7. Appellant filed the instant complaint with the Office of Manufactured Housing on July 27th, 2001. 8. Inspector Dennis Butzen performed a job-site inspection as a result of the complaint, and issued a Verified Complaint and Sign-Off Form. The inspector did not verify the complaint about the skirting as that item was not in the contract between the appellant and respondent MWMH. The inspector noted that the homeowner (appellant) had already corrected the clearing of the land. Apparently the inspector declined to pass judgment on the issue of the perimeter fence, but appellant continued to complain that that was a legitimate complaint as it was in the land purchase contract with the Engwalls. Appellant refused to sign the sign- off form, and appealed against the inspector’s decisions. 9. At the hearing the appellant produced no evidence against these respondents. Her complaint was with Mountain West Realty and the Engwalls. She did produce evidence of the land purchase agreement between her and the Engwalls wherein they contracted in writing to clear the land and build the fence around the land. She expressly testified that she had no complaint to make against either MWMH or PHH. 10. A manufacturer and a seller of a manufactured home ordinarily are not liable for defects other than those of the manufactured home itself. These respondents never agreed to or undertook the extraordinary measures of clearing or fencing land, or installing skirting. CONCLUSIONS OF LAW 1. This administrative hearing was held under authority of and pursuant to A.R.S. §41-2183 and A.R.S. §41-1092. 2. The appellant has brought this appeal and therefore must bear the burden of proving by a preponderance of evidence (more than 50%) that the allegations contained therein are true. A.A.C. R2-19-119. See also: Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (Ct. App. 1996); Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985) (the standard of proof is that of the “preponderance of evidence”). 3. The facts clearly demonstrate in support of the inspector’s not verified items, and against any conclusion of wrongdoing by these appellants. Appellant’s complaint is obviously with the realtor, and, assuming arguendo that the Engwalls are guilty of breach of contact or fraud as realtors, it is the Arizona Department of Real Estate and not this agency which has jurisdiction to discipline licensed realtors. See: A.R.S. §32-2153.A. RECOMMENDED ORDER In view of the foregoing it is hereby recommended that the appeal in this case, AAA 01-2/019, be dismissed. Done this day, March 20th, 2002.

_________________________________ Grant Winston Administrative Law Judge

Original transmitted by mail this ____ day of March, 2002, 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