ALJDEC

01F-C001276(1)-BFS · Department of Building and Fire Safety · 2001-10-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 17, 2001. APPEARANCES: COMPLAINANT: Doris Inman. CAVCO INDUSTRIES, L.L.C.: by Scott Chambers, authorized representative. MOUNTAINVIEW HOMES, INC.: by Jack Willard, authorized representative.

ADMINISTRATIVE LAW JUDGE: Anthony Halas. _____________________________________________________________________ Hearing in this matter was convened on October 17, 2001, after Respondent Dealer’s timely answer to the CITATION AND COMPLAINT issued by the Department of Building and Fire Safety on April 19, 2001. On consideration of the testimony and evidence taken, and the record as a whole, the following Findings of Fact, Conclusions of Law, and Recommended Decision are made:

FINDINGS OF FACT 1. In late 1999, Appellant Doris Inman (Inman) contracted to purchase a manufactured home, Serial No. CAVAZL200-6074XU, from Respondent dealer Mountainview Homes, Inc., License No. 5853, Class D-12 (Mountainview Homes). The home was manufactured by Respondent manufacturer Cavco Industries, L.L.C. dba Cavco Industries Litchfield Division, License No. 7099, Class M-9E (Cavco). 2. The home was manufactured on or about February 15, 2000, and installed on or about February 29, 2000, on Complainant’s property at 31559 North Felix Road, in Queen Creek, Arizona[1]. 3. Subsequently, Inman filed Complaint No. 00-1/276 with the Department of Building and Fire Safety (Department) and an inspection was conducted on February 13, 2001, by Inspector Dennis Butzen of the Department’s Office of Manufactured Housing (OMH). The inspector then issued a VERIFIED COMPLAINT & SIGN OFF FORM, and with regard to Item No. 20, the inspector determined:

20.) Wallpaper/color change in master bath: VERIFIED. MANUFACTURER TO CORRECT. Per data compliance certificate, home off line of [sic] 2- 15-00. Dealer fax to manufacturer: 2-2-00, with color change of master bath panel to “Acclaim” with “Florence” border. Home came with “Pixie” panel, and “Florence” border.

4. On February 21, 2001, the program manager for OMH issued correspondence to the parties which revised Item No. 20 to read:

20.) Wallpaper/color change in master bath: VERIFIED. MANUFACTURER/ DEALER TO CORRECT. The MANUFACTURER to provide Acclaim panels w/ Florence border. Dealer to install.

5. When the issue was not resolved, Item No. 20 (as revised) became the subject matter of a CITATION AND COMPLAINT issued by the Department on April 19, 2001, which alleged that Respondent dealer and Respondent manufacturer did not satisfy the item as assigned by OMH, in violation of A.R.S. § 41-2186.1, .12, .19, and .20. On Respondent dealer’s timely answer, the matter was set for hearing. 6. At hearing, Complainant Inman testified, and offered Exhibits 1, 2, and 3. Respondents’ objections to her Exhibit 2 were deemed to go to the weight rather than admissibility. The dealer’s representative, Jack Willard (Willard), appeared and testified, and offered Exhibits 5 and 6. Respondent manufacturer’s representative, Scott Chambers (Chambers) appeared and testified, and offered Exhibit 4. All exhibits were marked and admitted. 7. Complainant Inman’s position is essentially this: sometime after signing the contract with the dealer but before the home was manufactured, she became dissatisfied with her initial choice of wall panels and borders for the master bathroom, believing the choices of color and pattern clashed (see Exhibit 1). She therefore met with the dealer’s salesman, Randy Rubottom (Rubottom), and provided him an “annotated” order form (see Exhibit 2), with which he then left the room with assurances to her he would fax the change to the manufacturer. This form specified “Acclaim” with “Florence” border, but the home was delivered with “Pixie” panels instead (although with the Florence border, as she intended all along). 8. Ms. Inman had no knowledge or documentation to verify whether Rubottom had successfully placed the change with the manufacturer at any time before (or after) the home came “off-line” from the manufacturing process. She also stated that because the home was “all wrapped up” for a number of days after it was manufactured and delivered to her property, she could not get in and did not immediately notice the master bath panels were not of her choice, which is why she did not include any reference to the panels in completing the manufacturer’s “5 DAY REPORTING REQUIREMENT” form (Exhibit 4). 9. Willard, the general manager for Respondent dealer, Mountainview Homes, referenced Exhibit 5, representing the order form the dealer sent to the manufacturer, to show that it called for Pixie panels (and Florence borders) for the master bath. He also referenced Exhibit 6 as the manufacturer’s order confirmation, dated February 2 and faxed from the manufacturer to the dealer on February 3, 2000. He testified to state that his file on Ms. Inman’s home contained no information or documentation verifying that the master bath panels had been changed to Acclaim, or that any such change had been made before the home came off-line from the manufacturer.

10. Willard noted that Complainant’s Exhibit 1, the order form Ms. Inman had annotated, was not dated, or to be found in the dealer’s file, although he confirmed a conversation with Rubottom in which the salesman told Willard he had placed the change with the manufacturer. 11. Nonetheless, Willard credibly described the dealer’s willingness to try to comply with Ms. Inman’s desired choices for the master bath - and the Department’s verified Item No. 20 - but did not think the dealer should be responsible for the greater time and expense necessary to install the Acclaim panels if the manufacturer was only responsible for the low cost of providing the Acclaim panel and Florence border materials. [2] 12. Chambers, the operations manager for Respondent Cavco, the manufacturer, referenced Exhibit 4, the 5 DAY REPORTING REQUIREMENT form that Ms. Inman had completed and dated February 29, 2000, and returned to the manufacturer, without mention of any dissatisfaction on her part regarding the master bath panels or borders (although, consistent with her testimony, her completion of the form did indicate she had been locked out for an unspecified time). 13. Chambers explained that the manufacturer did not install borders as part of the manufacturing process, but had originally confirmed it would ship the border material loose (as noted in the manufacturer’s order confirmation (Exhibit 5)) after the home had come off the manufacturer’s line (on February 15, 2001, according to his records). 14. Chambers also credibly expressed the manufacturer’s interest in satisfying Ms. Inman, stating that Cavco had already and remained willing to provide the Acclaim panel and Florence border materials to the dealer without charge, to comply with the Department’s verified Item No. 20, despite that his file indicated that the manufacturer had never received any change order document or other information specifying Acclaim panels until well after the home was off-line.

CONCLUSIONS OF LAW 1. Under applicable statutes and rules, it is well-settled that in the event that verified items of complaint are not timely and effectively rectified, and should such be so determined by the hearing tribunal, the license-holder responsible for corrective action may be subject to sanctions pursuant to A.R.S. § 41-2181. 2. The burden of proving, by a preponderance of the evidence, that the verified items are not rectified is on the home-owner, as the complaining party. 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”, Udall, Arizona Law of Evidence, §5 (1960), or, “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, at 1182, (6th ed. 1990). 3. In this matter, it is concluded by the undersigned that a preponderance of the evidence, and reasonable inferences arising therefrom, prove that Complainant Inman has demonstrated that, prior to manufacture of the home, Respondent dealer Mountainview Homes, through its salesman, failed to reasonably effectuate to the manufacturer her timely-expressed intent to change the master bath wall panels from Pixie to Acclaim, and that the dealer has not yet corrected verified Item No. 20, as revised (although the dealer’s failure to install was reasonably premised on its good-faith defense to that directive by the Department, subject to hearing). 4. It is further concluded that Respondent manufacturer Cavco has complied with its responsibility pursuant to Item No. 20 (as revised) by providing to the dealer Acclaim panels with Florence borders.

RECOMMENDED DECISION Based upon the foregoing, IT IS RECOMMENDED that, commencing on the effective date of the Order issued in this matter, the Class D-12 License No. 5853 of Respondent dealer Mountainview Homes, Inc. shall be suspended until such time as the Office receives written proof that the Respondent dealer has accomplished appropriate and effective installation pursuant to Item No. 20 from the VERIFIED COMPLAINT & SIGN OFF FORM of February 13, 2001, as revised February 21, 2001. IT IS FURTHER RECOMMENDED that if Respondent manufacturer accomplishes the above described corrective work on or before the effective date of the Order entered in this matter, then the aforementioned suspension shall not take place and the CITATION AND COMPLAINT upon which it is based shall be closed; IT IS FURTHER RECOMMENDED that Complainant be required to grant reasonable access for Respondent dealer to perform the installation work required by the Order entered in this matter or Respondent shall be relieved of any further obligations under said Order. Done this day, October 26, 2001.

______________________________________ Anthony Halas 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 ___________________________

----------------------- [1] These dates are as indicated by the Department’s inspector in the VERIFIED COMPLAINT & SIGN OFF FORM issued on February 13, 2001, and are consistent with the testimony presented by the parties. [2] Willard explained that installing the panel and border material was fairly labor-intensive (more so than wallpapering), since fixtures, cabinets, etc. would all have to be removed and then replaced.

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