ALJDEC

01F-R012013-BFS · Department of Building and Fire Safety · 2001-12-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 26, 2001. APPEARANCES: The Complainant appeared personally. The Respondent did not appear. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ The commencement of the scheduled hearing was delayed for 15 minutes to allow for the late arrival of the Respondent. No appearance was made by Respondent. Evidence and testimony were presented and, based upon the entire record, the following Findings of Facts, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT

1. This matter came on for hearing the Complainant’s claim for an administrative payout in the amount of $2,425.00 from the Consumer Recovery Fund for damages caused by the Respondent. 2. Respondent is the holder of License Number 7442, a Class D-8B license, issued by the Arizona Department of Building and Fire Safety. 3. On or about July 28, 2001, Complainant entered into a written agreement with Respondent for the purchase of a 1977 Royaton Dover manufactured house. 4. The purchase price for the house was $28,000.00. 5. On July 28, 2001, Complainant paid Respondent a down payment in the amount of $1,500.00. 6. On August 3, 2001, Complainant paid an additional down payment in the amount of $500.00 to Respondent. 7. On or about August 18, 2001, Complainant borrowed the sum of $450.00 from Carol Brown and Alice Hoben. Complainant used those borrowed funds to pay Respondent for closing costs and document preparation fees. 8. Despite repeated requests from Complainant, Respondent has failed to consummate this transaction. 9. Although Complainant testified that he repaid Ms. Brown and Ms. Hoben the borrowed amount of $450.00, there is no other testimonial or documentary evidence to establish that those funds have been repaid. 10. Complainant filed a complaint with the Department against Respondent because he has paid or caused to be paid the total sum of $2,425.00 to Respondent but the latter has failed to consummate the transaction or return those funds. 11. The Department verified Complainant’s complaint. 12. Complainant subsequently filed a claim for an administrative payout from the Consumer Recovery Fund in the amount of $2,425.00. 13. Complainant’s Consumer Recovery Fund claim was verified by the Department as evidenced by the Department setting the matter for hearing before the Office of Administrative Hearings. 14. Notice of the hearing on Complainant’s claim for an administrative payout from the Consumer Recovery Fund was sent via certified U.S. mail by the Department to Respondent at its address of record on file with the Department. 15. It is found based upon the entire record in this matter that the sum of $2,425.00 represents a proper and reasonable amount payable to remedy the aforesaid damages caused by Respondent. Absent written releases from Ms. Brown and Ms. Hoben being sent to the Department and/or the Board of Manufactured Housing prior to the disbursement of the administrative payout confirming the repayment of their loan to Complainant, a separate check in the amount of $425.00 should be disbursed from the Consumer Recover Fund naming them together with Complainant as joint payees.

CONCLUSIONS OF LAW

1. Pursuant to the provisions of A.R.S. § 41-2188, the Consumer Recovery Fund is administered by the Board of Manufactured Housing, which is established pursuant to A.R.S. § 41-2143. 2. A.R.S. § 41-2188(D) provides that recovery from the Consumer Recovery Fund is limited to actual or compensatory damages. The evidence of record establishes that Complainant has been damaged by Respondent in the amount of $2,425.00. 3. Pursuant to the provisions of A.R.S. § 41-2190(D), it is concluded that the Board shall pay to Complainant the sum of $2,425.00 from the Consumer Recovery Fund if he submits written releases from Ms. Brown and Ms. Haben to the Department and/or Board prior to the disbursement of those funds. If those releases have not been received, then the Board shall release the sum of $2,000.00 to Complainant and the separate sum of $425.00 jointly to Complainant, Ms. Brown and Ms. Haben.

RECOMMENDED ORDER

In view of the foregoing, it is recommended commencing on the effective date of the entered Order in this matter that the Board of Manufactured Housing commence and finalize payment procedures from the Consumer Recovery Fund to Complainant in the amount of $2,425.00 if he submits written releases from Ms. Brown and Ms. Haben to the Department and/or Board prior to the disbursement of those funds. If those releases have not been received, then the Board shall release the sum of $2,000.00 to Complainant and the separate sum of $425.00 jointly to Complainant, Ms. Brown and Ms. Haben. Done this day, December 5, 2001

______________________________________ Brian Brendan Tully Administrative Law Judge

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

Department of Building and Fire Safety N. Eric Borg, Director 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