ALJDEC

01F-C001260-BFS · Department of Building and Fire Safety · 2002-01-15

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 27, 2001, adjourned and reconvened on November 26, 2001. APPEARANCES: Appellants : On day one of the hearing, Donna M. Killoughey, Esq., represented Scott and Millie Kramer. The Kramers represented themselves on the second day of the hearing.[1] Victor Solesky, a partner in Johnny Lee’s Mobile Home Service, testified for the Kramers. Respondent : Christopher T. Rapp, Esq. of the firm Ryan Woodrow & Rapp, P.L.C. appeared for Complete Mobile Home Service, Inc. Bill Whited, Qualifying Party, and Kathy Jones, Owner, testified for Complete Mobile Home Service, Inc. ADMINISTRATIVE LAW JUDGE: Gary B. Strickland _____________________________________________________________________ This consolidated matter[2] convened on two occasions as scheduled. The matter was prolonged primarily for two reasons: (1) an unfortunate occurrence in the life of the Kramers’ counsel necessitating withdrawal of counsel, and (2) an observance of a collateral disciplinary hearing under the jurisdiction of the Registrar of Contractors[3] with consideration for a possibility that the Decision and Order in this matter might become obviated by developments in the companion case. The issue presented concerns whether Respondent herein has violated the statutes or rules that govern the activity of those persons and entities licensed under the authority of the Department of Building and Fire Safety. The matter has been heard and the parties have submitted post-hearing memoranda as invited so to do.[4] Having heard the testimony of the witnesses and having read and considered the entire record, the undersigned Administrative Law Judge makes Findings of Fact, renders Conclusions of Law, and issues the following Recommended Decision to the Director of the Department of Building and Fire Safety.

FINDINGS OF FACT 1. Respondent, Complete Mobile Home Service, Inc., is in the business of manufacturing homes for sale. Complete Mobile Home Service, Inc. holds a Class 1-10G license issued by the Department of Building and Fire Safety. 2. Appellants Scott and Millie Kramer (hereafter also, “the Kramers”) reside at 1536 North 103rd Street, Mesa, Arizona, in a manufactured home they contracted to have installed on site by Complete Mobile Home Service, Inc. 3. According to its contract with the Kramers, Complete Mobile Home Service, Inc. was subcontracted with Respondent Ronald Clyde Mayo, dba Mayo’s Concrete Works on all dates relevant herein, to perform certain concrete “flat work” around the exterior of the home once it was installed. The work included walkways and a driveway, both of which were substantially completed before July 27, 2000, the date upon which the Kramers moved into the home. 4. Mayo holds Arizona Registrar of Contractors License No. 111529, Class C-09 (Concrete), issued on February 26, 1996. 5. On September 15, 2000, the Kramers filed a complaint with the Registrar of Contractors, under Title 32 of the Arizona Revised Statutes, alleging poor installation of the concrete by Mayo; specifically, that the concrete was poured too high (relative to the height of the interior floor of the home); that there was no expansion joint between the home and the concrete; and that there was cracking, pitting, unevenness, and gaps. 6. After a hearing on the issues entertained therein, the Registrar issued an Order on July 23, 2001 directing Mayo to accomplish appropriate corrective action on an expansion joint located between the manufactured home and Mayo’s previously installed concrete flatwork, as well as to eliminate areas of the concrete surface that was enabling water infiltration into the home. 7. A “compliance hearing” was thereafter conducted to determine whether Mayo had made the corrections as directed. In short, the Registrar has ordered Mayo to take further action relative the concrete and the questionable expansion joint.

8. At the hearing of this matter before the Department of Building and Fire Safety, Mr. and Mrs. Kramer appeared and testified. The Kramers offered Exhibits 1 through 9; the exhibits each were received. Complete Mobile Home Service, Inc. appeared and witnesses testified on its behalf. The licensee offered Exhibits A through H, which exhibits were marked and admitted.[5]

9. Appellants have filed multiple complaints with the Department concerning their consternation over the work that has been performed by the Department’s licensee and the licensee’s subcontractor. A first “Verified Complaint and Sign-Off“ was issued by the Department subsequent to a January 22, 2001 inspection.[6] The second “Verified Complaint and Sign- Off“ was issued by the Department subsequent to a March 8, 2001 inspection.[7]

10. Both “Verified Complaint and Sign-Off Forms“ resulted in the verification of deficiency in workmanship concerning several items.

11. The two complaints were consolidated by Order for hearing together before this Administrative Law Judge.

12. At the hearing,[8] Appellants gave testimony of concern essentially[9] over the following issues: (1) that exposed pipes were yet to be covered; (2) that two vents need to be replaced; (3) that a gas water heater door required repair; (4) that there was damage to the awnings that was somehow the fault of the installer; (5) that proper permit application for installation of the subject awnings was not obtained by Complete Mobile Home Service, Inc.; and (6) that the concrete patio was improperly installed.

13. The testimony of Appellants’ witness Victor Solesky and Complete Mobile Home Service, Inc. Qualifying Party Bill Whited confirmed that the pipes have been covered with an insulation material, thereby rendering the issue moot.

14. The Department’s Inspector had verified on March 8, 2001 that two of the vents on the home were too small. Unrebutted testimony was given at the hearing, both by Mr. Solesky and Mr. Whited, that the subject vents have been replaced on or about September 24, 2001. The issue is now moot.

15. The Kramers’ complaint about a gas water heater door not closing properly was likewise rendered moot by both Mr. Solesky’s and Mr. Whited’s unrebutted assertion that the problem has been repaired by the insertion of a rubber strip and other accommodations.

16. The expressed concern over the awnings, that they had not been installed properly, was determined “not verified” by the Department’s Inspector on both of the “Verified Complaint and Sign-Off Forms“ that are the subject herein. The Department had determined that the awnings had been subjected to wind damage subsequent to installation and that the Kramers had received third-party insurance compensation therefor. Appellants have not proven otherwise.

17. The allegation concerning whether Complete Mobile Home Service, Inc. had made proper application for a Maricopa County permit for installation of the awnings exceeds the scope of the hearing, as the issue was not raised previous to the second day of the hearing. Furthermore, the assertions of the Appellants herein do not prove that the Respondent has violated any rule or statute in this regard.

18. Appellants’ expert, Mr. Solesky, who does not possess an I-10-G license and is not a licensed contractor, testified that the concrete still remains excessive in height in relation to the home. Further, Appellants assert that the concrete is gapped and manifests surface pits. Mr. Whited testified that the problem may be due to some settling, which is normal for a manufactured home. However, the sum and substance on this issue is that the Kramers have properly raised the alleged deficiency before the Registrar of Contractors, and within that jurisdiction the subcontractor has been admonished and directed to perform properly the work for which it had contracted.

19. The weight and sufficiency of the evidence fails to preponderate that Respondent is responsible for verified deficiencies before the Department, on any or all of the concerns that Appellants have raised by the two complaints herein.

CONCLUSIONS OF LAW 1. The burden of proof generally at an administrative hearing falls to the party asserting a claim, right or entitlement or seeking to impose a penalty.[10] Further, the standard of proof is that of the “preponderance of the evidence”.[11] Proof by a preponderance means that the evidence is sufficient to persuade the finder of fact that the proposition is “…more likely true than not.”[12] The evidence taken as a whole must convince the decision maker that the party who bears the overall burden of persuasion, in this case the Appellants, is more probably correct on the issue(s) in dispute. Observing these standards, Appellants have failed to carry their burden of demonstration, by a preponderance of the evidence, that Respondent has violated statute, regulation or general principle of law under the facts of this record. 2. The evidence of record has failed to establish that Respondent Complete Mobile Home Service, Inc. has violated that which is set forth at A.R.S ( 41-2186. Appellant failed to present credible and competent evidence of Respondents’ alleged deficiency in workmanship or the doing of any wrongful act in the transfer and installation of this manufactured home. 3. It is concluded, as a matter of law, that the weight and sufficiency of all of the evidence of record fails to establish that Respondent has violated any relevant Title 41 provision or that the Department improperly failed to verify any of Appellants’ complaints herein. RECOMMENDED ORDER In view of the foregoing, IT IS RECOMMENDED that Complaint Nos. 01F- A001024-BFS and 01F-C001260-BFS be dismissed.

Done this 15th day of January in the year 2002. OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Gary B. Strickland Administrative Law Judge

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

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

By ___________________________

----------------------- [1] Ms. Killoughey had to withdraw her representation due to a familial exigency of tragic proportions. [2] Identified by docket numbers 01F-A001024-BFS and 01F-C001260-BFS. [3] Docket No. 01F-M0348-Registrar of Contractors-com. [4] Those aspects of the memorandum submitted by the Kramers that fall outside the scope of the evidence presented at the hearing are herein disregarded, albeit the Kramers have been provided every benefit of doubt given their unrepresented status. [5] The record consists of (1) the testimony and evidence offered on the record, memorialized by recordation; (2) written argument submitted by the parties; and (3) the documents contained within the Department’s case file, the contents of which the Administrative Law Judge has taken administrative notice. [6] Hearing Exhibit D. [7] Hearing Exhibit E. [8] Appellants’ attempt at interjection of new issues in their written memorandum is not here considered. Appellants were warned that their “argument” would be restricted to the evidence that had been submitted by the parties at the hearing. [9] The word “essentially” is used advisedly. The Kramers’ presentation was riddled with various expressions of concern articulated in somewhat inconsistent and patchwork fashion. While their frustration is manifest, it is yet their responsibility and burden to present a cognizable case. [10] Culpepper v. Arizona Board of Nursing, 187 Ariz. 431, 930 P.2d 508 (App. 1997); See also Ariz. Admin. Code R2-19-119 (B). [11] Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985); See also Ariz. Admin. Code R2-19-119 (A). [12] In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). See also, J. Livermore, R. Bartels, & A. Hameroff, LAW OF EVIDENCE ( 301.1(4th ed. 2000) (One party bears the overall burden of persuasion on each fact material to the party’s claims and defenses. Further, the party with the burden of persuasion on a particular fact is required to satisfy the burden of production of enough qualitative evidence sufficient to support a finding of the existence of the fact, following a reasonable person standard.)

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