ALJDEC

01F-C001254-BFS · Department of Building and Fire Safety · 2001-07-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 3, 2001. APPEARANCES: Jon and Anneke Wagner, Complainants; Carmen Chenal, Respondent’s attorney; Marcel French, Respondent’s qualifying party; and Jeff Kirschler, observer. ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang. _____________________________________________________________________ Complainants have established that the Respondent violated the provisions of A.R.S. § 41-2186 and A.A.C. R4-34-802 and 803 by failing to properly install the Complainants home and failing to make appropriate repairs when necessary. Therefore, it is recommended that Respondent’s license be suspended until the Department of Building and Fire Safety receives Respondent’s statement that the home has been properly re- installed and the roof, carpet, concrete and threshold have been properly repaired. FINDINGS OF FACT 1. Complainants, Jon and Anneke Wagner contracted with Award Homes, Inc. for the purchase and installation of a manufactured home. Specifically, the contract stated that Award Homes would provide the digout, trenching and backfill, delivery to site, block level and set with up to 50 feet of utility hookups, and installation of a walkway and concrete slabs. Shortly after the installation date of October 26, 1999, the concrete began to crack. Later it began to tilt toward the home. Then in October 2000, heavy rains ran beneath the concrete and flooded the crawl space causing more sinking and damage to the concrete. On October 23, 2000, the Wagners filed a complaint with the Department of Building and Fire Safety with more details of problems with the home following on November 5, 2000. 2. Following an inspection by the Department of Building and Fire Safety Inspector, both the manufacturer and the dealer (Respondent) were found to be responsible for many verified items. Respondent disputes its responsibility for any of the items that are currently not corrected. Concrete 3. Complainant offered proof of the flooding and other damage to the home. Mr. Wagner argued that the reason for the flooding was that the ground was not sufficiently compacted at installation and the heavy rains caused extensive settling and allowed a small river of water to find its way under the concrete to the crawl space. Respondent contends that the sinking concrete is due to flooding over all of Complainants’ property, an act of God and not his responsibility. It contends that compacting the soil beneath the home was not listed in the contract and therefore Respondent was not required to do it. Respondent questioned whether rains as heavy as those that flooded the home were foreseeable in Arizona. Complainants argue that Respondent was responsible for installing the home and should have done so in a way that is safe and useable. Both parties had the same arguments regarding the other damage from the flooding. The sealant at the skirting appears to have been ruined by the movement of the concrete as well. Carpet 4. There were two areas of bulging under the carpet. Respondent sent an employee to repair them but the employee stated that he was not a furniture mover and if the Complainant did not move the furniture he would not be able to correct it. Complainant responded that he is not a furniture mover either and the carpet should have been flat when they moved into the home so the employee or the Respondent should move it. The employee then attempted to fix the carpet without moving the furniture and was not successful. Respondent contends that the Complainant was responsible to move the furniture so it should be excused from correcting the problem. Roof 5. The Department of Building and Fire Safety Inspector found the Respondent responsible for correcting the loose tiles creating crevasses in the roof. Respondent refuses stating that the manufacturer is the one that made the roof. Other roof repair items were considered to be the responsibility of the manufacturer but this one was along the marriage line. Complainant argues that Respondent is responsible for it because the Respondent put the marriage line together. Threshold 6. A piece of wood at the threshold was installed incorrectly and attempts to correct it have failed. Respondent denies responsibility and claims that the wood was broken by the Complainant moving heavy things over it. Complainant denies moving anything over it and says that it was only repaired once by nailing it to the floor and the nails pulled through the wood (because it is actually synthetic wood). They want it repaired properly. CONCLUSIONS OF LAW 1. This administrative hearing was held under authority of and pursuant to A.R.S. § 41-1092, and A.R.S. § 41-2181. According to the applicable law, the Department of Building and Fire Safety is empowered to revoke or suspend the license of any licensed manufacturer, dealer, broker, salesperson or installer for any violation of A.R.S. § 41-2186. 2. The Arizona Revised Statutes at § 41-2186(7), (19), and (20) provides that it is a violation of the statute to do a wrongful or fraudulent act in relation to this chapter of the statute, to fail to provide all agreed on goods and services, or to fail to install in a workmanlike manner all subassemblies, units and accessories which are suitable for their intended purpose. 3. Pursuant to A.A.C. R4-34-803(B)(1)(d), the installer of the home is responsible to “compact all fill and backfill within 6 feet of the perimeter of the unit to prevent displacement”. The installer is also responsible for joining the marriage line of a home in accordance with the manufacturers instructions. A.A.C. R4-34-802(D). 4. In this case, the Complainant has established that the home was improperly installed causing failure of the concrete and flooding of the home. Respondent also failed to comply with the applicable statute and rules by failing to repair the roof at the marriage line, failing to complete the installation of the carpet by removing the bulges and failing to provide a properly installed threshold. Respondent’s argument that the rain is an act of God does not excuse it from its duty to install the home to withstand such flooding and drain properly. Respondent’s argument that the manufacturer is responsible for the roof does not excuse it from joining the marriage line at the roof properly. Respondent’s argument that the Complainant would not move the furniture does not excuse it from properly installing the carpet and therefore does not excuse it from correcting the bulges. Finally, Respondent’s argument that the Complainant broke the threshold by its action is rejected. A threshold must withstand some traffic in the home, and attempted repairs that fail do not satisfy the requirement that the home be installed in a workmanlike manner. RECOMMENDED DECISION Based upon the foregoing considerations, it is recommended that, on the effective day of this order, the Respondent’s license shall be suspended until the Department of Building and Fire Safety receives Respondent’s written statement that Respondent has repaired the installation of the home, including a properly compacted site and compacted backfill, repaired the tile crevasses in the roof, repaired all of the bulges in the carpet (moving the furniture if necessary), and repaired the threshold according to manufacturer’s instructions for installing a synthetic wood threshold. Respondent’s statement of completion may be disputed by the Complainant. In that case, it is recommended that the Department order a compliance inspection and proceed accordingly.

Done this day, July 10, 2001. OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Dorinda M. Lang Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2001, 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