ALJDEC

01F-R001020-BFS · Department of Building and Fire Safety · 2001-03-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 19, 2001 APPEARANCES: COMPLAINANT: Frank Coleman, on his own behalf. RESPONDENT: Did not appear.

ADMINISTRATIVE LAW JUDGE: Anthony Halas _____________________________________________________________________ Hearing in this matter convened on March 19, 2001, as duly noticed, to consider Complainant’s Consumer Recovery Fund claim pursuant to A.R.S. § 41-2190. On the basis of the testimony and evidence presented, and the entire record, the following Findings of Fact, Conclusions of Law, and Order are made to the Director of the Department:

FINDINGS OF FACT 1. Complainant Frank Coleman (Coleman) is a “consumer” as defined by statute and is entitled to receive payment from the Consumer Recovery Fund for damages as a result of the Respondent’s acts or omissions. 2. Respondent Patriot Mobile Homes, Inc. is the holder of License No. 6102, Class D-8, issued by the Department of Building and Fire Safety. 3. Complainant Coleman previously filed a complaint relative to deficiencies in the manufactured housing he had purchased from Respondent. It is uncontroverted that Respondent has failed to comply with the VERIFIED COMPLAINT & SIGN OFF FORM issued by the Department after inspection of the home. 4. Subsequently, Complainant filed a claim seeking payment of $40,000.00 from the Consumer Recovery Fund pursuant to A.R.S. § 41-2190. 5. By Notice of Hearing issued on February 5, 2001, the Department duly scheduled hearing on Complainant’s claim for recovery. 6. At hearing, Complainant Coleman appeared and testified, and offered Exhibits 1 through 4 to confirm costs to repair certain of the items as numbered and verified for correction by the Department’s inspector. The Exhibits were marked and admitted. 7. On the basis of the credible testimony of Complainant, and the material and probative documentary evidence he submitted, the following cost estimates for performing corrective action are found to be reasonable and appropriate:

EXHIBIT 1

A. The sum of $2552.00 for: Items 8 (skirting is bowing), and Item 80 (skirting has no access panel);

B. The sum of $1500.00 for: Item 22A (caulking instead of tape and mud in corners), and Item 30 (massive crack and hump at marriage line), and Item 37B (no texture on sides of wall at front of furnace), and Item 48 (poor sheetrock joint at linen closet), and Item 67 (not textured or painted behind stove or above hood), and Item 73 (poor sheetrock joint at pantry), and Item 79 (guest bath texture is missing);

C. The sum of $60.00 for Item 81 (front door stairs are too low); D. The sum of $400.00 for: Item 74 (trim missing above pantry, cove missing, nails in stile);

E. The sum of $680.00 for: Item 63 (See and feel marriage line (in living room)).

F. Tax: $254.00

Total for Exhibit 1: $5446.00

EXHIBIT 2

G. The sum of $245.00 for: Item 76 (air conditioning duct is filled with trash throughout house, duct is restricted at front door crossover).

Total for Exhibit 2: $245.00

OUT-OF-POCKET (Paid for by Complainant)

H. The sum of $75.00 for: Item 78 (master bath has no toilet paper holder or rack installed).

Total for Out-of-Pocket: $75.00 ________

J. GRAND TOTAL: $5766.00

8. Therefore, based on the material and probative evidence presented at hearing, it is found that a proper and reasonable amount payable to Complainant from the Consumer Recovery Fund is the total sum of $5766.00.

CONCLUSIONS OF LAW 1. The convening of the hearing in this matter was delayed 20 minutes to allow Respondent, through its authorized representative, to make an appearance, and although the record then remained open for more than an hour after the scheduled start of the hearing, no such appearance was made to dispute Complainant’s verified complaint or his claim to the Consumer Recovery Fund, nor was any information provided to explain the absence of Respondent’s representative, or to request a continuance. 2. Reference to the Notice of Hearing issued by the Department on May 11, 1999, confirms that it was issued by certified mail to : EDWARD SCHIEFFER Qualifying Party PATRIOT MOBILE HOMES, INC. 8610 E. Apache Trail Mesa, AZ 85207

This is the last known address Respondent has provided the Department, and there is no indication that Respondent did not receive the Notice, so it is found and concluded herein that the notice and opportunity to be heard required by the demands of due process have been fully and fairly met. 3. In this administrative proceeding, Complainant Coleman bears the burden of proof such that he must establish his right to a recovery from the Fund pursuant to A.R.S. § 41-2190.B, by a “preponderance” of the evidence. See A.A.C. R2-19-119; see also Culpepper v. State, 187 Ariz. 431, 438, 930 P.2d 508, 515 (App. 1996). 4. “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). A preponderance of the evidence is “evidence which is of greater weight or more convincing than 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 page 1064 (6th ed. 1990). 5. In this matter, it is concluded that a preponderance of the evidence establishes that Complainant Coleman has been damaged in the amount of $5766.00 by the failure of Respondent to perform pursuant to contractual purchase agreement, under A.R.S. § 41-2180.B. The Department has verified Complainant’s original complaint and, therefore, his claim arising from that complaint to the Consumer Recover Fund should be granted and Respondent’s license should be suspended under A.R.S. § 41-2190. If in the future Respondent’s qualifying party or any other person listed on Respondent’s license applies to the Department of Building and Fire Safety for another license, this suspension may and should be considered as evidence of lack of good character and reputation and furnish grounds for denial of the license. See A.R.S. § 41-2175.E.

ORDER In light of the foregoing, IT IS ORDERED that $5766.00 be paid to Complainant Frank Coleman from the Consumer Recovery Fund pursuant to A.R.S. § 41-2190.B. IT IS FURTHER ORDERED that, pursuant to A.R.S. § 41-2190.D, Respondent’s License No. 6102, Class D-8 be suspended until it has repaid $5766.00 to the Consumer’s Recovery Fund, plus interest at a rate of 10% annually. Done this day, March 30, 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: Michelle M. Castaneda East Virginia, Suite 100 Phoenix, AZ 85004

By ___________________________ -----------------------

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