ALJDEC

01F-C012136-BFS · Department of Building and Fire Safety · 2002-02-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 17, 2002; at 1:30 p.m. APPEARANCES: The Complainant appeared on her own behalf. The Respondent appeared through its authorized representative, Scott Baumgardner. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. Respondent is the holder of License No. 7479, Class D-8 issued by the Department of Building and Fire Safety. 2. The Complainant purchased a manufactured residence. Shortly after moving into the manufactured residence, the Complainant began noticing several areas of unsatisfactory workmanship and filed a formal complaint, against the Respondent, with the Arizona Department of Building and Fire Safety, Office of Manufactured Housing. 3. Pursuant to the filing of the formal complaint, an assigned agency inspector conducted an on-site inspection and verified portions of the formal complaint. 4. The only item which was presented as an issue at the hearing was verified item No. 31 which provides as follows: “Vinyl not what we ordered: VERIFIED DEALER TO CORRECT. Linoleum not ordered by dealer for dining room.” 5. Credible evidence, presented at hearing, established that the Respondent has made several different attempts to install vinyl in the Complainant’s dining room and that the Complainant has denied the Respondent access to perform the directed work on basis that (1) the Complainant is unwilling to accept a seam in the dining area, and (2) that Complainant wants the Respondent to pay the Complainant’s husband for installing new vinyl flooring throughout her residence. 6. Credible evidence established that verified item No. 31 does not require the Respondent to pay for the installation of vinyl floor covering throughout the residence. Verified item No. 31 is limited to the dining room. 7. Credible evidence established that a seam in the vinyl flooring where the new flooring meets the old flooring would be within applicable industry and workmanship standards. 8. The Respondent shall extend one final offer to properly install the vinyl in the dining room as required by verified item No.31. The Complainant is admonished that any unreasonable denial of access to her residence shall be treated as the substantial equivalence of compliance. 9. The remaining items of the verified complaint were shown to have been corrected to within minimum applicable tolerances. CONCLUSIONS OF LAW 1. A.R.S. § 41-2186(7) subjects a licensee’s License to sanction for a departure from or disregard of any code or any rule adopted by the board. 2. A.R.S. § 41-2186(12) subjects a licensee’s License to sanction for a failure to respond relative to a verified complaint after notice of such complaint. 3. A.R.S. § 41-2186(20) subjects a licensee’s License to sanction if the licensee fails to manufacture or install, in a workmanlike manner, all subassemblies, units and accessory structures which are suitable for their intended purpose. 4. The credible evidence of record established violations, by the Respondent, of the provisions of A.R.S. § 41-2186(7)(12) and (20). . . . . . . RECOMMENDED ORDER In view of the foregoing, it is recommended that the Respondent’s Class D-8 License (No. 7479) be suspended for a period of 15 days commencing on March 1, 2002. It is further recommended that if the Respondent properly accomplishes the proper correction of verified item No.31 as set forth above in Findings of Fact Nos. 6, 7 and 8 inclusive, or if the Complainant unreasonably denies access to the Respondent then the above provided License suspension shall not take place and that Case No. 01-2/136 shall be closed. Done this day, February 5, 2002.

________________________________ M. Douglas Administrative Law Judge

Original transmitted by mail this ____ day of February, 2002, 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