ALJDEC

01F-C001255-BFS-com · Department of Building and Fire Safety · 2001-11-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

On October 30, 2001, a compliance hearing was held to determine if the Respondent substantially complied with the terms and conditions of the previously entered Order of the Director of the Department of Building & Fire Safety (“Department”). David Richardson (“Complainant”) appeared on his own behalf. Attorney Eric Anderson represented 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 Order.

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. 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 Respondent failed to correct (within 30 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. On June 19, 2001, a disciplinary hearing was held in this matter. Prior to the hearing, the Respondent corrected some of the aforementioned VERIFIED items. On June 28, 2001, the undersigned Administrative Law Judge concluded that the preponderance of the evidence showed that the Respondent’s Class D-12 License No. 5853 should be disciplined. The undersigned Administrative Law Judge found that the Respondent failed to correct VERIFIED items 30, 33 and 44 of the Verified Complaint & Sign-off Form.

5. On June 28, 2001, the undersigned Administrative Law Judge recommended that the Respondent’s Class D-12 License No. 5853 be suspended until the Director received proof that the Respondent 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.

6. On July 13, 2001, the Department’s Director issued an Order (“Order”) adopting the undersigned Administrative Law Judge’s Recommended Decision.

7. At the compliance hearing in this matter, the Complainant testified that VERIFIED item 33 has been satisfactorily corrected.

8. At the compliance hearing in this matter, the Complainant testified that the Respondent painted approximately six feet of the Home’s baseboard at the Home’s marriage point. The Complainant testified that the Respondent did a good job painting the baseboard at the marriage point.[1]

9. On October 10, 2001, Inspector Butzen re-inspected the Home. Inspector Butzen determined that the Respondent corrected VERIFIED items 33 and 44. See Respondent’s Exhibit D. However, Inspector Butzen found that VERIFIED item 30 (i.e., security lights) required additional corrective work. Id.

10. The Complainant testified that two of the Home’s four outside security lights do not function properly. The Respondent hired Decker Drywall, Inc. to correct the security lights. See Respondent’s Exhibits A, B & C. Decker Drywall, Inc. made repeated attempts to correct the security lights. However, the Complainant testified that the security lights still do not work.

11. Mr. Willard speculated that the security lights may simply need new light bulbs. Mr. Willard agreed to send Decker Drywall, Inc. to the Home to determine the problem with the security lights.

12. Tim Condon is employed with Decker Drywall, Inc. On October 30, 2001, Mr. Condon visited the Home. On October 31, 2001, the undersigned Administrative Law Judge received a facsimile letter from Decker Drywall, Inc., stating the following: All exterior dawn to dusk/ motion sensor lights working correctly. See Decker Drywall, Inc. letter, dated October 30, 2001. This letter was signed by Mr. Condon and the Complainant.

CONCLUSIONS OF LAW 1. The Complainants have 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 Complainants have the burden of showing that the Respondent has not substantially complied with the terms and conditions of the Director’s Order issued on July 13, 2001. The undersigned Administrative Law Judge concludes that the Complainants have not met this burden. The undersigned Administrative Law Judge concludes that the Respondent has substantially complied[2] with the Director’s Order.

RECOMMENDED ORDER Based upon the foregoing, the undersigned Administrative Law Judge recommends that the Director lift the suspension of the Respondent’s Class D-12 License No. 5853 because the Respondent has substantially complied with the Director’s July 13, 2001 Order.

Done this day, November 1, 2001.

______________________________________ Casey J. Newcomb Administrative Law Judge

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

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

By ___________________________

----------------------- [1] The Complainant testified that Inspector Butzen misstated the true problem with the baseboard. The Complainant testified that the baseboard throughout the Home contains two different colors and textures. The Complainant testified that he wants all of the baseboard to match (not just at the marriage point). Unfortunately, the Complainant failed to file an appeal or request a rehearing regarding this issue. Accordingly, in this compliance hearing, the undersigned Administrative Law Judge can only determine if the Respondent complied with the Director’s final Order. That Order only pertains to the baseboard marriage point. [2] The Respondent complied with the Director’s Order regarding the completion of the above referenced VERIFIED items. The undersigned Administrative Law Judge is mindful of the fact that the Respondent failed to timely correct these VERIFIED items. However, the Respondent was properly disciplined for its failure (to timely correct the security lights) via the suspension of its license.

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