ALJDEC

01F-A012022-BFS(1) · Department of Building and Fire Safety · 2002-05-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 14th, and April 19th, 2002. APPEARANCES: The petitioner, Mr. Don Dudgeon, represented himself. Respondent Cavco Industries, LLC, doing business as Cavco Industries Litchfield Division, was represented by Mr. Scott Chambers, Operations Manager. Respondent Arizona Mobile Home Brokers, Inc., d.b.a. Fitzgerald Factory Home Outlet, was represented by Ms. Joy Leslie Little, attorney-at- law. ADMINISTRATIVE LAW JUDGE: Grant Winston. _____________________________________________________________________ The administrative hearing of this matter 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, Cavco Industries, LLC, doing business as Cavco Industries Litchfield Division (hereinafter Cavco), and Arizona Mobile Homes Brokers, Inc., doing business as Fitzgerald Factory Home Outlet (hereinafter Fitzgerald), are, and were during all times material hereto, licensees of the Department of Building and Fire Safety. Cavco holds Class M-9E License number 7099, and Fitzgerald holds Class D-8 License number 5758. 2. Appellant, Mr. Don Dudgeon, purchased his new manufactured home from Fitzgerald on April 28th, 2001. The home was manufactured by Cavco. The home was installed on appellant’s lot in the summer of that year, but work incidental thereto continued intermittently for an extended period. 3. Appellant filed the instant complaint with the Department of Building and Fire Safety’s (hereinafter department) Office of Manufactured Housing (hereinafter OMH) on November 23rd, 2001. He complained that the home he received was not the home he had purchased, that the installation of the home was faulty, that his property had been damaged by the “contractors,” and that he has incurred “misc[ellaneous] expenses.” 4. Pursuant to the filing of the complaint, the OMH assigned the complaint to Inspector Dennis Butzen for inspection. Inspector Butzen conducted an on-site administrative review of appellant’s complaint on January 9th, 2002, and issued his Verified Complaint and Sign-Off Form on January 10th, 2002. In his report the inspector concluded unfavorably to practically all of the items in the complaint that were raised by appellant. One item, the allegation that the land slopes toward the house, was found by the inspector to have been corrected by the appellant. All other items were found not to be verified, and some were additionally concluded by the inspector to be issues beyond the statutory authority of the OMH to address. 5. Appellant filed his appeal against the inspector’s findings and conclusions on January 28th, 2002. A Notice of Hearing was issued by the department on February 7th, 2002, scheduling and noticing this appeal to be heard in the Office of Administrative Hearings (hereinafter OAH) on March 14th, 2002, at 1:30 p.m. The hearing was convened as noticed, but due to the amount of evidence the parties wished to offer, the hearing had to be recessed at the end of the first day. The hearing, after due notice given to all parties, resumed and concluded the second day, April 19th, 2002. The administrative record was held open for the parties to file a post-hearing memorandum and reply memorandum, in lieu of closing arguments. The administrative record closed on May 8th, 2002. 6. Pursuant to the Notice of Hearing, the administrative hearing concerned itself with those items listed in the notice. They were all of appellant’s complaint items; ##1 ( 9, #10a. and b., and ##11 ( 16. 7. During day one of the hearing, the appellant stipulated to dismissal of items ##11 and 12, conceding, as was concluded by Inspector Butzen, that there is no statutory authority for the department to address those issues, and #16. During day two of the hearing appellant stipulated to dismissal of item #7 of the complaint. 8. Items ##1 and 14 of the complaint are that the land slopes toward the house. Inspector Butzen found that this problem had been corrected by the appellant. Appellant admitted that corrections had been made. Mr. James C. Kirts, a general contractor licensed by the Arizona Registrar of Contractors, testified. He had performed site work on the lot. He saw the lot just four days previous to the administrative hearing. He swore that there were no problems with the site, and he did not believe that water would now run into the house. Appellant failed to present any substantial evidence to support a finding in his favor as to items ##1 and 14. 9. Item #2 of the complaint is that the tie-downs on his home do not meet FHA standards. Appellant produced no evidence to support this claim. It was his mere suspicion created by an unsubstantiated statement from someone unknown that the tie-downs are inadequate. There is no evidence to support a finding in appellant’s favor as to Item #2. 10. Items ##3, 4, 5 and 6 are resolved by the parties’ agreement. Appellant complains that he was supposed to have received but did not receive dual paned windows (Item #3), single unit tubs/showers without seams that need caulking (Item #4), a front overhang (Item #5), and eaves to the front roof (Item #6). As to the various optional items offered by Fitzgerald on its Cavco homes, appellant produced as evidence sundry pieces of paper bearing printed and handwritten lists of items and signatures and dates of the parties or their agent. There is also in the record the final purchase order, and the document drawn up by appellant as to what was demanded by him as a condition precedent to his closing on the house. All the evidence fails to show that appellant, at the close of the deal, had ordered these items. 11. There is evidence that he was shown these items, that these items were available, and that these items were discussed between he and Fitzgerald’s sales agent. There is even evidence in the form of notes signed by the parties that appellant early on had wanted some of these items. But, the final sales documents do not support his contention. There is even an integration clause in the final sales contract, disavowing any other agreements not included within the four corners of that document. 12. Appellant argues that all the documents evince some nefarious and sinister plot by Fitzgerald to switch the agreement to something other than what was agreed. He notes his belief in closing memorandum, page 3, that he believes that “the signature he signed on April 11th, 2001[sic] is the original signature that has been lifted and then copied and pasted on subsequent order forms without Appellant’s knowledge.” His belief is unsupported by substantial evidence. 13. Appellant did not support a finding in his favor as to items ##3, 4 and 6. As to item #5, it is found that appellant did receive a front overhang. 14. Item #8 is the complaint for lack of termite protection. This was not verified by the inspector and there is no evidence in the record to support a finding other than the inspector’s; that is, that the protection was not a part of the contract. 15. Item #9 is a complaint that the hitches from under the crawl space were not removed. There is simply no evidence to support this item, or why respondents are obliged to remove hitches. 16. Item #10a. and b. are appellant’s complaint that there is no laminate backsplash around the kitchen countertops and in the bathrooms. This was not verified as not being on manufacturer’s order. It is true that these items were not on the manufacturer’s order and appellant did not support the complaint as to these items with any substantial contrary evidence. 17. Items ##13 and 15 complain that the manufactured home as installed failed inspections by the OMH. The inspector noted that the unit was approved by the OMH’s Tucson office on July 26th, 2001. Appellant produced two witnesses to prove his position on these two items. Messrs. Smathers and Vandermark are state inspectors for OMH. They conducted the inspections in question. Their testimonies corroborate the finding of Inspector Butzen, and contradict the appellant’s position. CONCLUSIONS OF LAW 1. This administrative hearing was held under authority of and pursuant to A.R.S. §41-2181.C., and A.R.S. §41-1092. 2. By way of agreement and stipulation by the appellant, items ##7, 11, 12 and 16 should be dismissed. 3. The appellant has brought this complaint and therefore must bear the burden of proving by a preponderance of the 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”). 4. There is insufficient evidence, and in some cases no evidence, to support findings in favor of appellant’s complaint items not stipulated to be dismissed. Therefore, no conclusion can be reached that the appellants violated any provision of Arizona Revised Statutes Title 41, Chapter 16, or rules adopted pursuant thereto. RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the inspector’s Verified Complaint and Sign-Off Form be upheld, and that that Case Number AAA 01-2/022 be dismissed. Done this day, May 23rd, 2002.

_________________________________ Grant Winston Administrative Law Judge

Original transmitted by mail this ____ day of May, 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