ALJDEC

01F-C001320-BFS · Department of Building and Fire Safety · 2001-09-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: Thursday, September 13th, 2001; 9:00 a.m. APPEARANCES: The complainants, Howard and Doris Brooke, appeared and represented themselves. The respondent, Cavco Industries-Litchfield Division, was represented by Scott Chambers, Litchfield Division Operations Manager. ADMINISTRATIVE LAW JUDGE: Grant Winston. _____________________________________________________________________

This matter was brought on for administrative hearing in the Office of Administrative Hearings, Tucson. Testimony was heard and other evidence admitted to record and, based on the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made. FINDINGS OF FACT 1. The complainants in this case purchased a new manufactured home from the respondent on or about December 29th, 1999. 2. The home was installed on the complainants’ lot in Whetstone, Arizona, on or about January 17th, 2000, by U.S. Mobile Home Transport. 3. The complainants filed the instant complaint against the respondent in the Department of Building and Fire Safety, Office of Manufactured Housing, on January 31st, 2001. The complainants had several items to their complaint. 4. Respondents corrected most of the items in the complaint, but two items remained outstanding at the time of the inspection by Mr. Dennis Butzen, Inspector with the Office of Manufactured Housing. 5. Inspector Butzen issued a Verified Complaint and Sign-Off Form after his second inspection of the home conducted on May 23rd, 2001. In it he re- verified two items the respondent was to correct: Item 9b “Ridge in master bedroom floor. . . . ridge remains visible.” And item 20 “Linoleum cut. . . . .Linoleum still curling.” Subsequent to the issuance of the Verified Complaint and Sign-Off Form, on June 7th, 2001, Inspector Butzen issued a written correction to the wording of Item 9b, to state that the verified problem is: “Ridge in utility room floor . . . . .Bowed joist 6 feet from kitchen entry remains visible.” Inspector Butzen ordered the respondent to correct this. 6. The complainants testified that the linoleum problem has been corrected by the respondent and is no longer in issue. The only remaining issue was the item 9b, to do with the ridge in the utility room. 7. The complainants testified that the ridge remains, and the root of the problem is that the house sets in a depression, and with the monsoons and rains water goes under the house, and causes the jacks to drop, thus creating the ridge in the utility room. 8. The complainants produced evidence in the form of photographs showing the depression in the lot, and the ridge in the utility room. 9. Respondent produced testimony from its Operations Manager, Mr. Scott Chambers, who testified credibly that the respondent had returned to the site and had corrected the ridge in the utility room floor to within acceptable industry standards. This was done on June 12th, 2001. Respondent contracted with Owen-Pierce Company to make the correction, and they did. 10. While it does appear that the respondent discharged its responsibility to make the correction to the ridge line in the utility room, it also appears that the problem has returned. However, the root of the problem, as the complainants’ evidence tends to show, does not appear to be with the manufacturer’s efforts to correct the ridge line or with the manufacture of the house. 11. The problem causing the reappearance of the ridge line in the utility room appears to be caused by the depression on the lot, and/or with the installation of the home on the lot. This is not the responsibility of this respondent. CONCLUSIONS OF LAW 1. This hearing was held under authority of and pursuant to A.R.S. §§41- 1092 and 41-2183. 2. The complainants in this matter have brought the complaint and therefore must bear the burden of proving by a preponderance of evidence (more than 50%) that the allegations contained therein are true. A.A.C. R2-19- 119. See also: Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (Ct. App. 1996); Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985) (the standard of proof is that of the “preponderance of evidence”). 3. While the complainants have shown that they are in fact experiencing a persistent problem with the ridge line in the utility room, they have failed to meet the burden of proving that the respondent failed to make the correction ordered by the inspector, or that any further correction is the responsibility of this respondent. RECOMMENDED ORDER In view of the foregoing, it is hereby recommended that case number 00-1/320 be closed. Done this day, September 28th, 2001.

_________________________________ Grant Winston Administrative Law Judge

Original transmitted by mail this ____ day of September, 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 100 N. Stone Ave., Suite 704 Tucson, Arizona 85701 (520) 628-5488