ALJDEC

01F-C001192-BFS · Department of Building and Fire Safety · 2001-10-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 28, 2001

APPEARANCES: Complainants appeared on their own behalf; Respondent was represented by Coordinator Butch Mitcham.

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

This case concerns a complaint about the noise level of the blower for the air conditioning/heating unit in Complainants’ manufactured home built by Cavco Industries, LLC and sold to Complainants by Respondent AAA Homes. The parties presented evidence and testimony at the hearing and, based upon the entire record, the Administrative Law Judge makes following Findings of Fact, Conclusions of Law, and Recommended Order finding Respondent in violation of A.R.S. § 41-2186(12) and (20) and ordering corrective work.

FINDINGS OF FACT 1. In 1999, Complainants bought a manufactured home from Respondent. The home was set up in December 1999. The record given to this tribunal is incomplete and, therefore, events that occurred before February 2001 can only be surmised. At some point in the year 2000, Complainants filed a complaint with the Office of Manufactured Housing (“OMH”), Arizona Department of Building and Fire Safety (“the Department”), that contained several complaint items. The home was inspected in December 2000, and complaint item number two was verified for Respondent to correct. That complaint item concerned a noisy blower for the air conditioning in the house. 2. As described by Complainants at the hearing, the blower is in a “closet” that is between the kitchen and living area where the television is located. The blower is loud enough to cause Complainants’ to raise their voices in order to have a conversation in those rooms and to have to turn the television volume up high when the blower is on. The Department Inspector apparently found the noise level to be excessive and verified the complaint. The Department issued a Citation and Complaint in February 2001, requiring Respondent to explain what steps had been taken to correct the noisy blower. The Citation and Complaint is the earliest document in the file provided to this tribunal. 3. Respondent notified the Department that in January 2001 the furnace company, Nordyne, had changed the blower motor in Complainants’ house. Complainants did not sign off on the complaint. 4. In March 2001, another inspection was performed. The Inspector again verified the complaint, stating that there was a problem with a latch on the blower. He also stated: “Noise from current blower motor considered marginally quieter than original motor.” It is not clear from the inspection report whether the Inspector verified the complaint because of the latch or because he still thought that the blower was too noisy. The Inspector was not a witness at the hearing, and this tribunal took testimony from the parties as to the Inspector’s position on that issue. Based on that testimony and the totality of the evidence of record, this tribunal finds that the noise level is still too high. 5. In May 2001, the Department issued a Notice of Hearing stating that “verified complaint item number 2 remain [sic] uncorrected.” 6. Mike Edwards, Service Manager with Cavco, testified at the hearing about possible alternatives to correct the problem. Both Cavco and Respondent are willing to continue to work on the problem to resolve the complaint. Various ideas were discussed at the hearing. This Administrative Law Judge urged the parties to continue to try to resolve the problem, informed the parties that his recommendation would be to correct the item by sometime in December 2001, and informed the parties that they could request a compliance hearing if they could not reach a satisfactory solution. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon the Complainant. Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). Further, the standard of proof at hearing is by preponderance of the evidence. Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). Therefore, Complainants bear the burden of showing, by a preponderance of the evidence, that Respondent has violated any provision of the governing statutes. Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996). Complainants have met that burden. 2. This tribunal finds that the noise from the blower is too loud and is unreasonable. Thus, the evidence shows that correction is necessary. 3. The Assistant Director of the Department is empowered under A.R.S. § 41-2186 to suspend, revoke, place on probation, or impose an administrative penalty on any license held by a manufacturer who violates the provisions in 41-2186. 3. The Citation and Complaint issued by the Department in this matter alleges a violation of A.R.S. § 41-2186(1). That provision states that it is a violation for a licensee to fail to comply with any of the statutes in Articles 2 or 4 of Title 41, Chapter 16 (A.R.S. §§ 41-2151 through 41-2156 and §§ 41-2171 through 41-2196). The Citation and Complaint does not, however, specify any particular statute within those Articles that Respondent is alleged to have violated. Without such specificity, this tribunal can make no conclusion concerning that allegation. 4. The Citation and Complaint issued by the Department in this matter alleges violation of A.R.S. § 41-2186(12). That provision makes it a violation if the licensee fails to respond to a verified complaint after being notified by the Department. A.R.S. § 41-2153(C) requires a response by the licensee within 30 days of notification. Respondent did respond to the Department’s notice of items to correct. However, the response was not effective. 5. The Citation and Complaint issued by the Department in this matter alleges violation of A.R.S. § 41-2186(19). That provision makes it a violation for a licensee to fail to provide all agreed upon goods and services. There is no evidence that Respondent failed to provide a service that was agreed upon. Instead, the evidence focused on the quality of the goods and services provided, something that is addressed in the next paragraph. 6. The Citation and Complaint issued by the Department in this matter alleges violation of A.R.S. § 41-2186(20). That provision states that it is a violation to fail to manufacture or install in a workmanlike manner. The evidence supports the conclusion that Respondent violated that provision by failing to provide a reasonably quiet blower for the air conditioning unit. 7. The evidence shows violation of A.R.S. § 41-2186(12) and (20). 8. Considering all the circumstances of this case, the appropriate remedy is to allow Respondent further opportunity to correct the problem. If Respondent does not do so, the Department should suspend Respondent’s license until it has completed the correction.

. . .

RECOMMENDED ORDER IT IS RECOMMENDED that Respondent’s Class D-12 license 7078 be suspended beginning on December 15, 2001, until Respondent has repaired or caused to be repaired the noisy blower as described above. IT IS FURTHER RECOMMENDED that if Respondent completes the above corrections on or before December 15, 2001, the license suspension shall not take place and Citation and Complaint 00-1/192 shall be closed. If Complainant fails to provide access, cooperate, or perform the actions necessary for Respondent to make the corrections within the time provided above, Respondent shall be released from complying with this Order, the suspension shall not take place, and the complaint shall be closed.

Done this 10th day of October 2001.

OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Eric A. Bryant Administrative Law Judge

Original mailed this ___ day of October 2001, to:

N. Eric Borg, Director Arizona 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