ALJDEC

01F-C001182-BFS · Department of Building and Fire Safety · 2001-04-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

On April 3, 2001, a hearing was held to determine if the Respondent had violated provisions of A.R.S. §41-2186. Susan Fiano (“Complainant”) appeared on her own behalf. The Respondent (or a representative) failed to appear. The record was kept open until approximately 9:50 a.m. to allow for the appearance of the Respondent or the receipt of any information which would constitute good cause for the Respondent’s absence or delay. No such information was received from or on the behalf of the Respondent. Based upon the entire record, the undersigned Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Decision.

FINDINGS OF FACT 1. The Respondent (or a representative) failed to appear for the hearing scheduled on April 3, 2001, at 9:00 a.m. at the Office of Administrative Hearings located at 1400 West Washington Street, Suite 101, Phoenix, Arizona. The Notice of Hearing correctly stated the date, time and place of this hearing. The Notice of Hearing was sent by certified mail to the Respondent at P.O. Box 465, Overgaard, Arizona 85933. The undersigned Administrative Law Judge finds that the Respondent was properly noticed for this disciplinary hearing.

2. On or about March 10, 2000, the Complainant and the Respondent entered into a contract (“Contract”) requiring the Respondent to deliver and install a Karsten K5 manufactured home (“Home”) at the Complainant’s property. See Complainant’s Exhibit 1.

3. On May 15, 2000, the Respondent delivered the Home. The Complainant testified that the Respondent damaged the Home during its delivery. The Complainant testified that the Respondent also failed to obtain the appropriate permits to install the Home. The Complainant testified that the Respondent attempted to install the Home on an easement. The Complainant testified that the Respondent was not legally permitted to install the Home on the easement. The Complainant testified that the Respondent had to clear additional land on her property to relocate the Home.

4. The Complainant testified that the Respondent failed to properly install the Home on her property. The Complainant testified that the Respondent failed to install a septic tank, a water holding tank and electrical lines for the Home. The Complainant testified that the Respondent failed to provide, install or construct a two car garage, a front porch, a rear patio, a sidewalk and a 5-ton 12 SEER air conditioner for the Home. The Complainant testified that all of these items were listed in the Contract. See Complainant’s Exhibit 1. On September 20, 2000, the Complainant filed a Complaint with the Department of Building, Fire and Safety (the “Department”).

5. The Karsten Company of New Mexico, L.L.C. (“Karsten”) is the manufacturer of the Home. On November 20, 2000, Karsten removed the Home from the Complainant’s property. The Complainant testified that the National Bank of Arizona paid out approximately $80,000 to the Respondent for the purchase, delivery and installation of the Home. The Complainant testified that Karsten removed the Home because the Respondent had failed to pay Karsten.

6. Mr. Dennis Butzen is an Inspector for the Department. On November 27, 2000, Inspector Butzen inspected the Home. However, the Home had already been removed by Karsten. Inspector Butzen verified that the Respondent failed to provide or install several items pursuant to the Contract. These items included the following: 1. Setup; 2. (a) Septic; (b) Water; (c) Electric. 3. Two-car garage - 24x24; 4. Front porch; 5. Concrete; 6. Patio - rear; and 7. 5 ton 12 SEER air conditioner.

See Verified Complaint & Sign-off Form, dated November 29, 2000. Inspector Butzen ordered the Respondent to correct the verified items within 30 days. See 30-day Notice, dated November 29, 2000.

7. The Complainant testified that the Respondent never corrected the verified items listed in the Verified Complaint & Sign-off Form.

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. The undersigned Administrative Law Judge concludes that the preponderance of the evidence shows that the Respondent’s Class D-8 License No. 7332 should be disciplined pursuant to A.R.S. §41-2186(1). The Respondent failed to comply with provisions of Article 2, Chapter 16, Title of the Arizona Revised Statutes. The Respondent failed to correct any of the verified items in the Verified Complaint & Sign-off Form in violation of A.R.S. § 41-2153(C).

3. The undersigned Administrative Law Judge concludes that the preponderance of the evidence shows that the Respondent’s Class D-8 License No. 7332 should be disciplined pursuant to A.R.S. §41-2186(12). The Respondent failed to correct any of the verified items in the Verified Complaint & Sign-off Form.

4. The undersigned Administrative Law Judge concludes that the preponderance of the evidence shows that the Respondent’s Class D-8 License No. 7332 should be disciplined pursuant to A.R.S. §41-2186(19) & (20). The Respondent failed to properly deliver and install the Home. The Respondent also failed to provide, construct or install the Home’s air conditioner, front porch, rear patio, garage, septic tank, water holding tank, electrical lines and sidewalk.

5. The undersigned Administrative Law Judge concludes that grounds exist to revoke the Respondent’s Class D-8 License No. 7332 pursuant to A.R.S. §41-2186.

RECOMMENDED DECISION Based upon the foregoing, the undersigned Administrative Law Judge recommends that the Respondent’s Class D-8 License No. 7332 be revoked. Done this day, April 4, 2001.

______________________________________ Casey J. Newcomb Administrative Law Judge

Original transmitted by mail this ____ day of April, 2001, 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 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826