ALJDEC

01F-R012015-BFS · Department of Building and Fire Safety · 2001-12-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 28, 2001. APPEARANCES: COMPLAINANT: Thomas Barnes. RESPONDENT: did not appear.

ADMINISTRATIVE LAW JUDGE: Anthony Halas. _____________________________________________________________________ Hearing in this matter convened on November 28, 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 Thomas Barnes (Barnes) is a “consumer” as defined by statute and is entitled to receive payment from the Consumer Recovery Fund for damages as a result of Respondent’s acts or omissions. 2. Respondent Discount Mobile Homes, Inc., dba Discount Homes, is the holder of License No. 6443, Class D-8, issued by the Department of Building and Fire Safety. 3. Complainant Barnes 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 any of the items verified for the dealer to correct in the VERIFIED COMPLAINT & SIGN OFF FORM issued by the Department after inspection of the home. 4. Subsequently, Complainant filed a claim seeking payment of $6667.81 from the Consumer Recovery Fund pursuant to A.R.S. § 41-2190. 5. By Notice of Hearing issued on October 17, 2001, the Department duly scheduled hearing on Complainant’s claim for recovery. 6. At hearing, Complainant Barnes appeared and testified, and offered Exhibits 1 through 3 to document bids by licensed contractors to repair the items as numbered and verified by the Department’s inspector for correction by the dealer. The exhibits were marked and admitted. 7. Barnes explained that in each instance, the three bidding contractors were provided a copy of the VERIFIED COMPLAINT & SIGN OFF FORM issued by the department itemizing just what the dealer was required to correct, and each bidding contractor’s representative inspected the home before providing its written bid. 8. Barnes further explained that each contractor’s bid added together similar repair items throughout the house, such as drywall, paint, and carpet, rather than by verifying (and repeating) similar items room by room, as the Department’s inspector had done, such that each bid contained many fewer items than the 25 or so the Department had verified for correction by the dealer. In any event, Barnes testified that the end result was that in each instance, the bid addressed only those items the dealer was responsible to correct based on the VERIFIED COMPLAINT & SIGN OFF FORM. 9. Barnes stated that although the bid by TDK Custom Construction for $6667.81 (Exhibit 1) was the highest of the three submitted, he believed that company’s representative had most thoroughly inspected the house and considered the nature and extent of the repairs necessary. Barnes noted that the TDK bid was only slightly higher than the Arcbilt Development, Inc. bid for $6573.31 (Exhibit 2), such that the consistency between the two bids provided a degree of reliability in the bidding. 10. For the same reason, Barnes was concerned that the significantly lesser bid by Cornerstone Contractors for $5441.58 (Exhibit 3), had either missed necessary repairs, or would result in lower quality work. 11. On the basis of the credible testimony of Complainant Barnes, and the evidence he submitted, the undersigned finds the bid by TDK Custom Construction in the amount of $6667.81 to be a reasonable and appropriate estimate of the cost to correct the deficiencies for which Respondent Discount Mobile Homes Inc. is responsible. 12. 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 $6667.81.

CONCLUSIONS OF LAW 1. The convening of the hearing in this matter was delayed 20 minutes to allow Respondent Discount Mobile Homes, Inc. 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 October 17, 2001, confirms that it was issued by certified mail to : JEFFREY GETZ QUALIFYING PARTY DISCOUNT MOBILE HOMES, INC. P.O.B. 37277 PHOENIX, AZ 85069-7277

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 Barnes 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 Barnes has been damaged in the amount of $6667.81 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 in that amount to the Consumer Recover Fund should be granted and Respondent’s license should be and remain suspended under A.R.S. § 41-2190 until that sum is repaid with interest. 6. 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 $6667.81 be paid to Complainant Thomas Barnes 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. 6443, Class D-8 be suspended until it has repaid $6667.81 to the Consumer’s Recovery Fund, plus interest at a rate of 10% annually. Done this day, December 13, 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: 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