ALJDEC

01F-C001255-BFS · Department of Building and Fire Safety · 2001-06-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

On June 19, 2001, a hearing was held to determine if the Respondent had violated provisions of A.R.S. §41-2186. David Richardson (“Complainant”) appeared on his own behalf. Jack Willard and Joel Thormodsgard appeared on behalf of the Respondent. Evidence and testimony were presented. 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. In early December of 1999, the Complainant purchased a Cavco Industries manufactured home “Home” from the Respondent. On December 7, 1999, Arizona Mobile Home Service & Movers installed the Home at the Complainant’s property. See Verified Complaint & Sign-off Form. Mr. Jack Willard is the Respondent’s Manager. Mr. Joel Thormodsgard is the Respondent’s Service Manager.

2. The Complainant subsequently filed a Complaint with the Department of Building and Fire Safety, Office of Manufactured Housing (the “Department”). Mr. Dennis Butzen is an Inspector for the Department. On January 16, 2001, Inspector Butzen inspected the Home. Inspector Butzen “VERIFIED” that the Respondent was responsible for correcting 21 items. See Verified Complaint & Sign-off Form. Inspector Butzen ordered the Respondent to correct the “VERIFIED” items within 30 days. See 30-day Notice, dated January 17, 2001.

3. The Complainant testified that the Respondent failed to correct (within days) “VERIFIED” items 19, 23, 25, 26, 30 33, 39, 40 and 44 of the Verified Complaint & Sign-off Form. These items are: 19. Flexible duct under house on ground; 23. Paint splash on side of house; 25. Molding missing on floor in family room; 26. Molding missing above sliding glass door (east); 30. Four (4) outside security light boxes each hanging by a wire; 33. Door trim on west outside door separating; 39. Sliding glass door in family room (east) continues to leak; 40. Insulation in walls adjacent to sliding glass door (east) must be checked for formation of mold; and 44. Baseboards on floor installed at marriage point are clearly two different colors. See Verified Complaint & Sign-off Form.

4. The Complainant testified that the Respondent has recently tried very hard to correct the aforementioned “VERIFIED” items. However, the Complainant testified that the following items still require corrective work:

19. Flexible duct under house on ground; 30. Four (4) outside security light boxes each hanging by a wire; 33. Door trim on west outside door separating; 39. Sliding glass door in family room (east) continues to leak; and 44. Baseboards on floor installed at marriage point are clearly two different colors.

5. The Complainant expressed concern that the flexible duct lying on the ground (item #19) might be restricting air flow in the Home. The Complainant provided no expert testimony or letters to support his claim. However, the Respondent submitted a letter from Mr. John Lamborn of JP Lamborn Co., the manufacturer of the flexible duct. See Respondent’s Exhibit B. Mr. Lamborn wrote that the “Mobile-Home Flex Type MH-25” is “specifically designed for mobile home applications.” Id. Mr. Lamborn further wrote that: In the 15 years we have manufactured Type MH-25, we have seen no jacket deterioration due to direct exposure to the earth (soil) in

mobile home applications. Id. Mr. Lamborn did not mention any air flow problems associated with the Mobile-Home Flex Type MH-25. Id.

6. The Complainant testified that the four outside security lights (item #30) do not function. Mr. Thormodsgard testified that Cavco Industries failed to provide power to the four security lights. Mr. Thormodsgard testified that a wire was unhooked in a switch box in the Home. Mr. Thormodsgard testified that the security lights will soon be corrected.

7. The Complainant testified that the door trim on the west outside door (item #33) has been corrected. However, the Complainant testified that the paint is blistering on top of the door casing. Mr. Thormodsgard testified that the Respondent’s painter must have overlooked the blistering paint. Mr. Thormodsgard testified that the blistering paint will soon be corrected.

8. The Complainant testified that the Respondent has performed extensive repair work to correct the leak in the sliding glass door (item #39) in the Home’s family room. The Complainant testified that he can only assume that the leak is fixed. However, the Complainant testified that the replaced stucco above the sliding glass door is too smooth. Mr. Thormodsgard testified that on June 18, 2001, the Respondent’s painter repainted and added texture to the area above the sliding glass door.

9. The Complainant testified that the Home’s baseboards are two different colors and textures (item #44). Mr. Thormodsgard testified that the Respondent will correct this item.

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-12 License No. 5853 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 (within 30 days) to correct several of the “VERIFIED” items in the Verified Complaint & Sign- off Form, in violation of A.R.S. § 41-2153(C). The Respondent still has not corrected “VERIFIED” items 30, 33 and 44 of the Verified Complaint & Sign-off Form.

3. The undersigned Administrative Law Judge concludes that the preponderance of the evidence shows that the Respondent’s Class D-12 License No. 5853 should be disciplined pursuant to A.R.S. §41-2186(12). The Respondent failed to correct “VERIFIED” items 30, 33 and 44 of the Verified Complaint & Sign-off Form.

RECOMMENDED DECISION Based upon the foregoing, the undersigned Administrative Law Judge recommends that commencing on the effective date of this Order that the Respondent’s Class D-12 License No. 5853 be suspended until the Director receives proof that the Respondent has corrected the following “VERIFIED” items: 30. Four (4) outside security light boxes; 33. Blistered paint on west outside door; and 44. Baseboards on floor installed at marriage point are clearly two different colors.

It is further recommended that if the Respondent corrects the aforementioned “VERIFIED” items on or before this Order’s effective date, then no license suspension shall be imposed. The undersigned Administrative Law Judge further recommends that the Respondent’s Class D-12 License No. 5853 be placed on disciplinary probation for a period of twenty (20) days commencing on the effective date of this Order. The disciplinary probation shall be imposed even if the Respondent properly corrects the aforementioned “VERIFIED” items.

Done this day, June 28, 2001.

______________________________________ Casey J. Newcomb Administrative Law Judge

Original transmitted by mail this ____ day of June, 2001, to:

N. Eric Borg, Director Department of Building and Fire Safety ATTN: Shawna Blank East Virginia, Suite 100 Phoenix, AZ 85004

By ___________________________

-----------------------

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826