ALJDEC

01F-A012023-BFS · Department of Building and Fire Safety · 2002-04-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 28, 2002. APPEARANCES: Bonnie Blakley appeared on her own behalf. City-Wide was represented by Larry Turner. ADMINISTRATIVE LAW JUDGE: Gregory L. Hanchett _____________________________________________________________________ In this matter, Complainant Blakley (hereinafter Complainant) appeals the determination of the Building and Fire Safety (hereinafter BFS) that her complaint against Respondent City-Wide (hereinafter City-Wide) should not be verified. BFS based this determination on the Complainant’s inability to present a sales agreement or receipt from Respondent. Based on the evidence adduced at the hearing, the following findings of fact, conclusions of law, and recommended decision are made. FINDINGS OF FACT 1. Complainant testified that on November 18, 2001, she meet with Larry Turner, the president of City-Wide, and Hunter Turner, Larry’s son and a City-Wide salesman, to look at mobile homes. Hunter Turner represented himself to Complainant as the person who would set up the financing through City-Wide for the purchase of the mobile home. 2. On November 24, 2001, Complainant gave a down payment check to Larry Turner for $5,000 for the purchase of a 1979 repossessed mobile home located in the Carefree Manor Mobile Home Park . Complainant and City-Wide then entered into a sales agreement whereby Complainant would purchase that repossessed mobile home from City-Wide. Larry Turner candidly admitted that City-Wide and Complainant had entered into a sales agreement that was memorialized in a written sales agreement document. 3. Approximately one week after the sales agreement for the mobile home had been entered into, Larry Turner contacted Complainant and advised her that while she had been approved for credit for the purchase of the home, her application to lease space from the Carefree Manor Mobile Home Park had been rejected. Complainant and Larry Turner then met later that day and Turner gave Complainant her down payment check back. Larry Turner also told Complainant that he did not know what to do at that point and that he would have to think about it. 4. Hunter Turner then contacted Complainant a few days later and indicated that he had worked out an arrangement whereby Complainant could be approved for a lot in Carefree Manor. Hunter Turner also indicated that he had a few other mobile home parks that he would like Complainant to look at. At no time did any representative of City-Wide ever indicate that City- Wide would no longer be doing business with Complainant. Indeed, Hunter Turner continued to work with Complainant to find her a lot upon which to place the mobile home. 5. Hunter Turner then showed Complainant some lots in the Shadow Hills Mobile Home Park. Complainant decided that she liked one of the lots in the Shadow Hills Park that Hunter Turner had shown her. On December 3, 2001, Complainant gave Hunter Turner a check for $5,000.00 to purchase the mobile home and have it placed at Shadow Hills. Turner told Complainant that he was not sure whether the check should be made out to Larry Turner or to City-Wide. At Hunter Turner’s urging, Complainant left the “pay to the order” portion of the check blank and told Hunter that he could fill in either Larry Turner’s name or that of City-Wide. In addition, Hunter Turner gave Complainant the key to the mobile home. 6. Shadow Hills approved Complainant’s lot lease. Work was then begun to have the mobile home transferred to Shadow Hills. According to Complainant, she observed that things were done to ready the mobile home for transport to Shadow Hills. 7. Unbeknownst to either Complainant or Larry Turner, Hunter Turner made the check payable to himself. He then cashed the check. 8. On December 7, 2001, Hunter contacted Complainant and indicated there was some problem in the transfer of the mobile home. He indicated he would go to the new park on the following day to look into the problem and then contact Complainant. Complainant did not hear back form Hunter when she had expected to. Complainant then began calling respondent’s telephone number only to learn that those numbers had been disconnected. 9. After that point, Hunter Turner essentially disappeared. In the meantime, Larry Turner apparently decided to close up his business in Arizona. He testified that he gave Hunter the sales documents relating to Complainant. Larry Turner also indicated that he closed his business on December 4, 2001, the day after Complainant had given Hunter Turner the check for the down payment on the mobile home. Larry Turner also very poignantly and candidly stated that Hunter Turner took advantage of the situation and under color of City Wide, took Complainant’s down payment check. Larry Turner also very honestly conceded that Complainant was never advised at any point that Hunter Turner was not working for City-Wide or that City-Wide was closing down. CONCLUSIONS 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 the doing of a wrongful or fraudulent act by a licensee which relates to A.R.S. Title 41, chapter 16, Article 2 or Article 4 is grounds for disciplining a licensee.

3. Arizona Revised Statute §41-2186 (19) provides that the failure to provide all agreed on goods and services is grounds for disciplining a licensee. 4. In this case, the Department refused to verify the complaint due to the alleged absence of any documentation to show a sales agreement between City-Wide and Complainant. The sales agreement existed, however, as demonstrated not only by the testimony of the Complainant, but also the testimony of Larry Turner. Furthermore, City-Wide is liable to Complainant for the conduct of Hunter Turner under principles of apparent authority and would be obligated to provide the mobile home to Complainant or damages or restitution of the $5,000.00 down payment in the event of City-Wide’s inability to provide the mobile home. City-Wide’s failure to provide the mobile home therefore is both wrongful and constitutes a failure to provide agreed upon goods and services. Accordingly, the complaint in this matter should have been verified. RECOMMENDED DECISION Based on the foregoing, it is recommended that the Director of the Department of Building and Fire Safety verify the complaint in this matter.

Done this day, April 12, 2002.

______________________________________ Gregory L. Hanchett Administrative Law Judge

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