ALJDEC

01F-R012016-BFS · Department of Building and Fire Safety · 2001-12-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

On December 5, 2001, a hearing was held to determine if the Complainant is entitled to payment from the Consumer Recovery Fund. Irma A. Ruiz-Paz appeared on her own behalf. The Respondent failed to appear. The record was kept open until approximately 9:30 a.m. to allow for the appearance of the Respondent or the receipt of any information which would constitute good cause for the Respondent’s absence or delay. No such information was received from or on the behalf of the Respondent. Based upon the entire record, the undersigned Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Decision.

FINDINGS OF FACT 1. On or about September 19, 2001, the Complainant filed a Consumer Recovery Fund Claim Form with the Department of Building and Fire Safety (“Department”).

2. Mr. Dennis Butzen is an Inspector for the Department. On October 1, 2001, Inspector Butzen inspected the Complainant’s mobile home (“Home”). Inspector Butzen verified that the Home was missing a deck, an awning and an air conditioner. See Verified Complaint & Sign-Off Form. Inspector Butzen noted that these items were included in the contract between the Complainant and Respondent.

3. At the hearing in this matter, the Complainant provided an invoice for the installation of an air conditioner at her Home. See Complainant’s Exhibit 1. The Complainant paid $6,100.00 to Fresno Air Conditioning and Heating, Inc. for a 3.5 ton Amana air conditioner. Id.

4. At the hearing in this matter, the Complainant submitted three estimates for the installation of the awning and deck. See Complainant’s Exhibits 2, 3 & 4. Mesa Awning Company, Inc. provided the lowest estimate at $3,366.00[1]. See Complainant’s Exhibit 4.

5. The Respondent failed to appear for the hearing scheduled in this matter on December 5, 2001, at 9:00 a.m. at the Office of Administrative Hearings, located at 1400 West Washington Street, Suite 101, Phoenix, Arizona. The Notice of Hearing correctly states the date, time and place of this hearing. The Notice of Hearing was sent by certified mail to Lynn Augustson, Qualifying Party, Fiesta Mobile Homes, 1530 N. Country Club Drive #7, Mesa, Arizona 85201. The undersigned Administrative Law Judge finds that the Respondent received proper notice of this hearing.

CONCLUSIONS OF LAW 1. The Complainant has the burden of proof, and the standard of proof on all issues is by a preponderance of the evidence. Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). 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). It "is evidence which is of greater weight or more convincing than the 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, 1182 (6th ed. 1990).

2. The undersigned Administrative Law Judge concludes that the Respondent has violated A.R.S. §41-2186(12) for failing to respond to a verified complaint after notice of such complaint.

3. The undersigned Administrative Law Judge concludes that the Respondent has violated A.R.S. §41-2186(19) by failing to provide the goods and services pursuant to the contract between the Complainant and Respondent.

4. The undersigned Administrative Law Judge concludes that the Appellant is entitled to recovery from the Consumer Recovery Fund pursuant to A.R.S. §41-2190(B) because the Respondent failed to install the air conditioner, the awning and the deck at the Home pursuant to the terms of the contract between the Complainant and Respondent. The undersigned Administrative Law Judge further concludes that the Complainant is entitled to the amount of $9,466.00 (i.e., $6,100.00 for the air conditioner plus $3,366.00 for the awning and deck). The undersigned Administrative Law Judge concludes that this amount represents the Complainant’s actual or compensatory damages caused by the Respondent. A.R.S. §41-2188(D).

RECOMMENDED DECISION It is recommended that the Board of Manufactured Housing shall pay the Complainant the sum of $9,466.00 from the Consumer Recovery Fund.

It is further recommended that the Respondent’s Class D-8 License No. 7162 be suspended until such time that the Respondent has repaid in full, plus interest at a rate of ten percent per year, the amount paid to the Complainant from the Consumer Recovery Fund.

Done this day, December 5, 2001.

______________________________________ Casey J. Newcomb Administrative Law Judge

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

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

By ___________________________

----------------------- [1] Mesa Awning Co., Inc. also provided a discounted estimate of $2,829.32. However, the discounted estimate was provided almost three months ago on September 13, 2001. It is not clear if Mesa Awning, Co., Inc. is still offering the discount. Accordingly, the undersigned Administrative Law Judge will only consider the non-discounted estimate.

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