ALJDEC

01F-R012014-BFS · Department of Building and Fire Safety · 2001-12-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 26, 2001

APPEARANCES: Complainants appeared on their own behalf; no one appeared on behalf of Respondent; nor did anyone appear on behalf of the Consumer Recovery Fund.

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainants Barry and Penny Britton seek an award from the Consumer Recovery Fund (“Fund”), administered by the Board of Manufactured Housing (“Board”) of the Arizona Department of Building and Fire Safety (“Department”). Their claim is for damages that they allege were caused by Respondent Radiant Manufactured Homes. Complainants appeared at the appointed time and place for hearing. As noted above, Respondent did not appear. Neither did anyone appear on behalf of the Fund. Therefore, Complainants’ evidence is uncontested. Complainants presented evidence and testimony. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Order of payment from the Fund. FINDINGS OF FACT 1. In July 2001, Complainants entered into a contract with Respondent to purchase a 1970 model mobile home. Over a period of several weeks, Complainants paid a total of $5,625.00 toward the purchase. They sought to finance the remainder of the purchase price. 2. During the period in which Complainants were putting more money toward the purchase, Respondent’s representatives lied to Complainants and told them that the financing was being approved. This was false, as Complainants later found out, because the lender never approves any financing for models earlier than 1972. The evidence shows that Respondent lied to Complainants to induce them to pay more money toward the purchase. 3. In early September 2001, Complainants learned of information that caused them to want to re-negotiate the purchase price. Respondent’s representative, Mike Madrid agreed to do so. After negotiations, Respondent had agreed to lower the purchase price and refund much of the down payments that had been made. When Complainants had trouble contacting Mike or anyone else at Respondent’s office, and did not receive the refund check as planned, they decided to get out of the deal. Mike Madrid agreed, on September 7, 2001, to cancel the contract and refund $5,625.00 to Complainants. 4. Respondent never refunded any money to Complainants. By September 17, 2001, Respondent’s office telephone was no longer in service and Complainants could not contact Respondent. 5. Complainants filed a complaint with the Department’s Office of Manufactured Housing (OMH), along with supporting documentation. About a week later, they filed a Consumer Recovery Fund Claim form seeking an award of $5,625.00. 6. On September 27, 2001, the Department sent a letter to Complainants stating that the claim and accompanying documents had been reviewed and the Department was sending the case to be set for hearing with this tribunal. Although it is not clear, it seems that this letter is the verification of the claim that the OMH is required to do under A.R.S. § 41- 2190. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon the person who brings the action. Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949); Arizona Administrative Code (A.A.C.), OAH Rule R2-19-119(B). Further, the standard of proof at hearing is by preponderance of the evidence. Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985); A.A.C. R2-19- 119(A). Therefore, Complainants bear the burden of showing, by a preponderance of the evidence, that they meet the requirements for a payable claim. Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996). Complainants have met the burden. 2. Arizona Revised Statutes (A.R.S.) § 41-2190(B), relating to administration of the Fund, provides the following: If any consumer of manufactured homes, mobile homes or factory- built buildings designed for use as residential buildings is damaged by the failure of the principal to perform a sales agreement or to perform repairs under a warranty, the consumer may file a claim with the office for payment from the consumer recovery fund. The claim shall be verified by the office.

Furthermore, A.R.S. § 41-2190(D) provides that the Board “shall pay from the consumer recovery fund whatever sum the administrative law judge finds payable upon the claim. . . .” 3. In this case, the uncontested evidence shows that Complainants were damaged by Respondent’s lies and failure to perform the agreement. Therefore, the claim is eligible for payment from the Fund. The amount of $5,625.00 is undisputed. 4. The evidence of record supports an award to Complainants in the amount of $5,625.00, all of which shall be chargeable against Respondent and any other persons on the license as set forth in A.R.S. § 41-2190(D).

. . .

ORDER In view of the foregoing, IT IS ORDERED that the Board of Manufactured Housing, Arizona Department of Building and Fire Safety make payment from the Consumer Recovery Fund to Complainants in the amount of $5,625.00. IT IS FURTHER ORDERED, pursuant to A.R.S. § 41-2190(D), that license 7442, Class D-8B, held by Radiant Manufactured Homes is hereby suspended until the licensee has repaid in full, plus interest at the rate of ten per cent per year, the amount paid from the consumer recovery fund on the licensee’s account.

Done this 6th day of December 2001.

OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Eric A. Bryant Administrative Law Judge

Original mailed this ___ day of December 2001, to:

N. Eric Borg, Director ATTN: Shawna Blank Arizona Department of Building and Fire Safety 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