ALJDEC

01F-C012104-BFS · Department of Building and Fire Safety · 2002-01-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 21, 2001. APPEARANCES: Lynn Spencer and Scott Felsot appeared on their own behalf. Respondent failed to appear. ADMINISTRATIVE LAW JUDGE: Gregory L. Hanchett _____________________________________________________________________ In this matter, Complainants Spencer and Felsot allege that Respondent Sun Burst Homes, LLC, failed to correct verified items of poor workmanship. Based on the evidence adduced at the hearing, the following findings of fact, conclusions of law, and recommended decision are made. FINDINGS OF FACT 1. Complainants purchased a mobile home through Respondent. Respondent was responsible for installing the home on Complainants’ lot. 2. Almost from the outset of occupancy, Complainants noted several workmanship problems with the home. 3. Although Respondent attempted to correct some of the problems, the attempts were half-hearted and incomplete. Often times, Complainants’ concerns and request for repairs would go unheeded. 4. As a result of the workmanship problems that Complainants encountered, as well as Respondent’s lackadaisical approach to repair of the workmanship issues, Complainants filed a complaint with the Department of Building and Fire Safety Office of Manufactured Housing. The Department’s inspector verified several items of the complaint, some of which were fixed and some which were not. 5. Items 7, 11, 12, 14, 18, and 20 became the focus of the instant case. Item 11 has been resolved to the satisfaction of the Complainants. The remaining items have yet to be repaired despite the passage of several months. Item 7 relates to a problem with the cross-ventilation under the home. The testimony adduced at the hearing demonstrated that adequate cross-ventilation is necessary in order to prevent moisture build-up under the home which can result in damage to the mobile home. The evidence adduced at the hearing through both testimony and photographs show not only that the ventilation is inadequate, but also that the holes which were cut into the skirting of the home were poorly cut, leaving errant cut marks which have disfigured the siding. The uncontradicted testimony was that the ventilation issue has not been resolved. Complainants have demonstrated by a preponderance of the evidence that Respondent failed to correct verified item number 7. 6. The evidence adduced also shows that Respondent had failed to correct the condition that is causing the toilets in the home to back up: the waste pipes which are set an incorrect slope (they actually slope up instead of down such that clogging of the waste line is inevitable). Despite the fact that Complainants have complained about this from the very first day they moved into the home almost one year ago, Respondent has dome nothing to resolve the issue. Thus, Complainants have shown that Respondent has failed to correct verified item number 12. 7. Complainants have also demonstrated by a preponderance of the evidence that Respondent has failed to repair the carpeting that was not secured beneath the baseboard in bedroom number 3. This condition has also existed since the Complainants moved in almost one year ago. 8. Item 18, the drop in the marriage line, has been repaired. The repair, however, was done in an unprofessional and unworkmanlike manner. In effecting the repair, Respondent removed a pier from one location under the floor and placed it under the marriage line. The removal of the pier has negatively impacted the integrity of the floor support with the result that a squeak has developed in the floor. 9. Item 20 has also been corrected, but again the correction has been obtained by removing the load on a pier that was supporting the bathroom, with the result that a squeak has also developed in that spot. The photographic evidence shows that the support pier is carrying no load from the home, an improper condition. 10. Respondent’s cavalier attitude to the plight of the Complainants and their legitimate and reasonable request for repairs, as demonstrated through the testimony of both Spencer and Felsot, merits an aggravated disposition in this case in the form of an additional administrative penalty pursuant to A.R.S. § 42-2193 (F). CONCLUSIONS OF LAW 1. The complainant has 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. Arizona Revised Statutes § 41-2186 (20) grants the Office of Manufactured Housing the authority to take disciplinary action against a licensee who fails to install subassemblies , units, or accessory structures in a workmanlike manner. 3. Complainants have demonstrated by a preponderance of the evidence that Items 7, 12, 14, 18, and 20 of the verified complaint were properly verified by the Department. Further, Complainants have demonstrated that Respondent has failed to correct the workmanship deficiencies noted in Items 7, 12, 14, 18, and 20 of the verified complaint. RECOMMENDED DECISION Based on the foregoing, it is recommended to the Director that the Respondent’s license Class D-8 number 7439 be suspended on the effective date of the final order in this matter unless, on or before that date, written verification is provided to the Department that all of the deficiencies noted in Items 7, 12, and 14 of the verified complaint have been corrected in a workmanlike manner, that the pier that was removed has been replaced in a workmanlike manner, and the pier under the bathroom has been adjusted in a workmanlike manner so as to remove the squeak in the bathroom floor. In addition, it is further recommended that Respondent be ordered to pay an administrative penalty in the amount of $750.00 on or before the effective date of the final order entered in this matter. Done this day, January 9, 2002

______________________________________ Gregory L. Hanchett 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 ___________________________

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