ALJDEC

01F-C012088-BFS · Department of Building and Fire Safety · 2001-12-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 6, 2001 APPEARANCES: Complainants Richard and Vicki Allen appeared on their own behalf. Respondent Palm Harbor Homes, Inc. was represented by its Service Zone Manager, Felix Castro. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________

The issue presented by this matter is whether Respondent Palm Harbor Homes, Inc. is subject to discipline for acts or omissions in violation of A.R.S. § 41-2186. Based on the evidence of record, the Administrative Law Judge renders the following Findings of Fact, Conclusions of Law and Recommended Order to the Director of the Department of Building and Fire Safety: FINDINGS OF FACT Complainants Richard and Vicki Allen (the “Allens”) purchased a mobile home manufactured by Respondent Palm Harbor Homes, Inc. (“Palm Harbor”). The home was installed toward the beginning of May 2000. On May 30, 2000, after the Allens had already moved into their home, the Allens notified Palm Harbor of several deficient items. Palm Harbor did not rectify those items. Consequently, in or about May 2001, the Allens filed a complaint consisting of eleven deficient items with the Office of Manufactured Housing of the Department of Building and Fire Safety (the “Department”). As part of the complaint verification process, pursuant to A.R.S. §41- 2153(B)(9) and (10), on June 5, 2001, an inspection was conducted by Department Inspector Richard Davis, in order to verify the items enumerated in the complaint. Inspector Davis verified several of the originally specified items of the complaint as being valid and in need of remedial action. In response to the complaint filed by the Allens, Palm Harbor corrected all but verified complaint item number 2 to the Allens’ satisfaction. The Allens’ unresolved verified complaint involved their carpeting. The verified complaint specifies, “carpet seams throughout are coming apart; carpet backing nylon string coming up through carpet.” On or about September 8 and 9, 2001, Palm Harbor replaced the carpet throughout the Allens’ home. However, the Allens were dissatisfied with the replacement carpet. Consequently, on September 10, 2001, the Department issued a Citation and Complaint advising Palm Harbor that it did not satisfy item number 2 as assigned in the Verified Complaint and Sign- off Form. On October 15, 2001, the Department issued a Notice of Hearing advising the parties that a hearing would be conducted on December 6, 2001 before the Office of Administrative Hearings regarding verified complaint item number referenced in the Department’s September 10, 2001 Citation and Complaint.

At hearing, the Allens credibly testified that discoloration of the replacement carpet is evident throughout the home, such that it is streaked “like a zebra”. The Allens also credibly testified that damage to the baseboards throughout the home occurred as a result of the removal and replacement of the carpet.

At hearing, Felix Castro, Palm Harbor’s representative, testified that after the carpet replacement, a Palm Harbor representative contacted the Allens to inquire as to their satisfaction with the replacement carpet. Mrs. Allen informed Palm Harbor’s representative that the Allens were not satisfied and complained specifically about the baseboard damage. Mrs. Allen hung up on the representative. Palm Harbor never followed up with the Allens regarding their dissatisfaction with the replacement carpet and the damage to the baseboards.

CONCLUSIONS OF LAW The Office of Manufactured Housing within the Department of Building and Fire Safety is charged with the statutory duty pursuant to A.R.S. §41- 2153(B)(9) and (10) to investigate timely filed valid complaints by purchasers of manufactured home units, and to formally notify responsible licensees of the duty to satisfy all verified complaint items. A.R.S. §41-2153(C) provides that the failure of a license holder to respond to the Department’s notification within a specified time period constitutes grounds for the imposition of disciplinary penalties pursuant to A.R.S. §41- 2186. In this case, Palm Harbor did respond to the Department’s notification, however did not do so effectively. The replacement carpet may have remedied the original deficiency, nonetheless it gave rise to additional deficiencies, namely discoloration and damaged baseboards. Palm Harbor failed to rectify such deficiencies. A specific duty is imposed upon a licensee pursuant to A.R.S. §41-2186(12) to require that any response be appropriate and effective in addressing a confirmed problem. As mentioned above, Palm Harbor’s response was ineffective in addressing the Allens’ complaint. Palm Harbor replaced the original defective carpet with defective replacement carpet. Pursuant to A.R.S. § 41-2186(19), the failure to provide all agreed on goods and services by the licensee constitutes grounds for discipline. In this case, Palm Harbor failed to provide appropriate carpeting to the Allens. Additionally, the terms of A.R.S. §41-2186(20) set forth as grounds for disciplinary action, the failure by a licensee to manufacture or install any unit in a workmanlike manner. The evidence of record established that Palm Harbor failed to install the carpeting in the Allens’ home in a workmanlike manner. The provisions of A.R.S. §41-2186 authorize the Department to impose disciplinary penalties against a licensee such as suspension or revocation of a license. The Administrative Law Judge concludes that the facts of this case warrant the imposition of a provisional temporary license suspension conditioned upon Palm Harbor’s replacement of the replacement carpeting and the accomplishment of remedial work to the baseboards.

RECOMMENDED ORDER In view of the foregoing, it is recommended that commencing on the effective date of the Order entered in this matter, that the Class M-9E License Number 5137 of Palm Harbor be temporarily suspended unless or until the Department receives written proof that Palm Harbor has caused the replacement of the Allens’ carpet and the accomplishment of appropriate corrective work to the baseboards. It is further recommended that in the event the above-mentioned corrective work is accomplished on or before the aforementioned deadline date, that no suspension of Palm Harbor’s license shall take place and this matter be closed.

Done this day, December 20, 2001.

______________________________________ Sondra J. Vanella Administrative Law Judge

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

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

By ___________________________

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