ALJDEC

01F-R012012-BFS · Department of Building and Fire Safety · 2001-12-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 4, 2001 at 9:00 a.m. APPEARANCES: Complainant Elva J. Ehler appeared on her own behalf; Respondent Radiant Manufactured Homes did not appear. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

Complainant Mrs. Ehler presented evidence and testimony and, based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order. FINDINGS OF FACT The Assistant Director of the Office of Administration of the Department of Building and Fire Safety has issued License No. 7442, Class D-8B, to Respondent Radiant Manufactured Homes, a broker of manufactured or mobile homes. Mrs. Ehler was interested in purchasing a used manufactured or mobile home. She contacted Respondent’s principal or employee Mike or Matt Madrid to broker a sale. Mr. Madrid told Mrs. Ehler that he had found a home in a certain park that was for sale. He requested that she give him a $1,500.00 down payment in cash, which she did. On June 5, 2001, Mr. Madrid gave Mrs. Ehler Receipt No. 121926 for $1,500.00 in cash for “Down Payment #185 Three Fountains.” On June 6, 2001, Mrs. Ehler gave Mr. Madrid cashier’s check no. [number redacted], issued by Credit Union West, for $500.00, made payable to Mr. Madrid personally. Mr. Madrid’s Receipt No. 121927 for this amount also indicates that it was part of the down payment for #185 in Three Fountains. Mrs. Ehler subsequently was denied access to the Three Fountains trailer court and the sale could not be consummated. On June 15, 2001, Mr. Madrid found a second used manufactured or mobile home for Mrs. Ehler. But she did not want to live in the park in which the home was located and could not move it. In July, 2001, Mr. Madrid found a third used manufactured or mobile home in a park that Mrs. Ehler approved. He requested additional money for a down payment and, on July 3, 2001, she gave him cashier’s check no. [number redacted], issued by Arizona Central Credit Union, made payable to Mr. Madrid, for $450.00. Receipt No. 121943 that he gave her on that same date showed this amount. On July 23, 2001, Mr. Madrid requested and Mrs. Ehler paid $60.00 for a “tenant search,” which he memorialized on Receipt No. 620382. Mr. Madrid told Mrs. Ehler that she had been approved for the third trailer park, but she was not. Respondent never brokered a sale of a manufactured or mobile home that was consummated. Respondent did not return any of Mrs. Ehler’s money. The Department of Building and Fire Safety subsequently received Mrs. Ehler’s claim to the Consumer Recovery Fund for $2,450.00. On August 30, 2001, Investigator/Auditor Donna Grant of the Department of Building and Fire Safety verified Mrs. Ehler’s complaint. On October 17, 2001, the Department sent copies of the notice of this hearing by certified mail to Matthew Madrid, Qualifying Party of Radiant Manufactured Homes, at 11361 N. 99th Ave Suite #202, Peoria, AZ 85345, Respondent’s last address of record. Although the beginning of the duly noticed hearing was delayed fifteen minutes to allow Respondent additional travel time, it neither appeared through a duly authorized representative or attorney, contacted the Office of Administrative Hearings to request a continuance or that the time scheduled for the hearing to begin be delayed, nor presented any evidence at the hearing to controvert Complainant’s verified complaint and claim to the Consumer Recovery Fund under A.R.S. § 41-2190.A and .B. CONCLUSIONS OF LAW Complainant bears the burden of proof and must establish Respondent’s statutory violations and her right to a payout from the Consumer Recovery Fund by a preponderance of the evidence.[1] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[2] 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.”[3] The evidence establishes that Respondent violated A.R.S. § 41-2180.A or .I by failing to deposit Complainant’s down payments into an escrow or trust account established for that purpose or, if such deposits were made, by failing to hold such funds until the sale transaction had been consummated. The evidence also establishes that Respondent violated A.R.S. § 41-2180.L by using Complainant’s down payments for a purpose other than a sales transaction. Complainant has been damaged by Respondent’s violation of A.R.S. § 41-2180 in the amount of $2,450.00. The Department has verified Complainant’s claim in this amount and, therefore, her claim 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 be considered as evidence of lack of good character and reputation and furnish grounds for denial of the license.[4] RECOMMENDED ORDER In view of the foregoing, it is recommended that $2,450.00 be paid to Complainant from the Consumer Recovery Fund under A.R.S. § 41-2190.A. It is further recommended that, pursuant to A.R.S. § 41-2190.D, Respondent’s License No. 7442 Class D-8B be suspended until it has repaid $2,450.00 to the Consumer’s Recovery Fund, plus interest at a rate of 10% annually. Done this day, December 13, 2001 (amended).

______________________________________ Diane Mihalsky Administrative Law Judge

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

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

By ___________________________

----------------------- [1] See A.A.C. R2-19-119; see also Culpepper v. State, 187 Ariz. 431, 438, 930 P.2d 508, 515 (App. 1996).

[2] Morris K. Udall, Arizona Law of Evidence § 5 (1960).

[3] Black’s Law Dictionary at page 1064 (6th ed. 1990). [4] See A.R.S. § 41-2175.E.

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