ALJDEC

01F-C001195-BFS · Department of Building and Fire Safety · 2001-06-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 23, 2001

APPEARANCES: Complainant appeared on his own behalf; Respondent was represented by its Regional Service Manager, Joreen Beaver and its Quality Manager, Phil Cabrera.

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

This case concerns kitchen and master bathroom cabinets inside Complainant’s manufactured home built by Respondent Palm Harbor Homes, Inc. 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). FINDINGS OF FACT 1. In 1999, Complainant bought one of Respondent’s manufactured homes. In July 2000, Complainant filed a complaint with the Office of Manufactured Housing (“OMH”), Arizona Department of Building and Fire Safety (“the Department”), that contained many complaint items. The home was inspected in August 2000, and complaint items were verified for both the dealer and the Respondent manufacturer to correct. 2. In January 2001, Complainant notified the OMH that several items were left uncorrected. A re-verification inspection was performed and three items remained uncorrected: warped cabinet doors in the kitchen, excess glue around shower doors, and warped/out-of-plumb cabinet doors in the master bathroom. Therefore, on February 20, 2001, the Department issued a Citation and Complaint against Respondent, alleging that Respondent did not perform the corrective work as ordered in the verified complaint. 3. At the hearing in this matter, Complainant testified that the excess glue item had been corrected. He also stated that Respondent had attempted to correct the cabinet doors by bending the hinges with a screwdriver. That did not correct the warped doors, and put scratches in the cabinet face. Complainant also complained that the master bathroom cabinet doors are not hung level and the doors are mismatched in color because Respondent replaced a warped door with a new door of slightly different color. 4. Respondent’s representatives testified that the mismatched doors are due to the fact that the original product is no longer available. Thus, Respondent got “as close as possible” to the door color. They also testified that the scratches have been filled-in with putty and sealed. As far as Respondent is concerned, the corrections have been made and there is nothing more to do. 5. It should be noted that a pre-hearing inspection was scheduled for May 14, 2001, but was canceled at Complainant’s request. Thus, only the testimony of the parties is in evidence. 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, Complainant bears 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). Complainant has met that burden. 2. This tribunal finds the testimony of Complainant to be more credible and persuasive than that of Respondent’s representatives. Thus, the evidence shows that the cabinets are still not hung properly, that the scratches need to be properly repaired, and that the mismatched doors need correction. 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, state 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 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 a home in a workmanlike manner. The evidence supports the conclusion that Respondent violated that provision by failing to properly repair the cabinets in the kitchen and master bathroom. The framing of those cabinets must be plumb and the doors hung level. There must be no unsightly defects in the surface of the wood. Furthermore, the door color must match enough as to not be readily noticeable. If the only way to properly correct these items is to replace the framing, hinges, or all cabinet doors, then Respondent must do so. It is no excuse that a product is no longer available. Respondent must perform whatever work is required to bring the cabinets up to minimum workmanship standards. Right now, they do not meet those standards. 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 an opportunity to correct the cabinets. If Respondent does not do so, the Department should suspend Respondent’s license until it has completed the repairs.

. . .

RECOMMENDED ORDER IT IS RECOMMENDED that Respondent’s Class M-9E license 5137 be suspended beginning on August 1, 2001, until Respondent has repaired or caused to be repaired at Respondent’s expense the cabinets as described above. IT IS FURTHER RECOMMENDED that if Respondent completes the above corrections on or before August 1, 2001, the license suspension shall not take place and Citation and Complaint 00-1/195 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 12th day of June 2001.

OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Eric A. Bryant Administrative Law Judge

Original mailed this ___ day of June 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