ALJDEC

01F-R012022-BFS · Department of Building and Fire Safety · 2002-02-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 5, 2002. APPEARANCES: Complainant Curtis Ives appeared on his own behalf. Respondent failed to appear. No one appeared to represent the interests of the Consumer Recovery Fund. ADMINISTRATIVE LAW JUDGE: Constantino Flores. _____________________________________________________________________ The question presented by this case is whether Complainant Curtis Ives is entitled to receive payment from the Consumer Recovery Fund, and, if so, in what amount. Based on the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order: FINDINGS OF FACT Respondent Schieffer Decker, Inc., doing business as Patriot Mobile Homes, Inc., (“Patriot”) is the holder of a Class D-8 license (No. 6102) issued by the Department of Building and Fire Safety (the “Department”). Edward Schieffer is the qualifying party. On December 28, 2001, the Department issued a Notice of Hearing setting this matter for hearing on February 5, 2002 at 1:30 p.m., at the Office of Administrative Hearings in Phoenix, Arizona. The Department sent a copy of the Notice of Hearing to Mr. Schieffer by certified mail. The Notice of Hearing advises the parties to this case as follows: “The Complainant seeks payment in the amount of $10,213.28 from the Consumer Recovery Fund under Arizona Revised Statutes, Sections 41-2190.A. and .B. Pursuant to Arizona Revised Statutes, Section 41-2190.D. the hearing may result in a decision granting a claim from the Consumer Recovery Fund and suspending the Respondent’s license.” Patriot did not appear for the hearing, nor did Patriot advise the Office of Administrative Hearings of any reason that would establish cause for its failure to appear. The Administrative Law Judge delayed the start of the hearing for approximately fifteen (15) minutes so as to allow added time for Patriot to appear, however, when Patriot still failed to appear, the Administrative Law Judge convened the hearing and proceeded in Patriot’s absence. On May 15, 2000, Complainant Curtis Ives entered into a sales agreement with Patriot to purchase a manufactured home for approximately $69,148.00. During the walk-through inspection performed on August 4, 2000, numerous items in the home were noted to be defective, not installed, installed improperly, and/or damaged. Pursuant to the Complaint with the Department filed by Mr. Ives, on February 9, 2001, Dennis Butzen, a Department inspector conducted and inspection of Mr. Ives home. As a result of Inspector Butzen’s findings, the Department issued a “Verified Complaint and Sign-Off Form” in which it itemized each of Mr. Ives’ complaints (55 in all), and stated whether those items were VERIFIED (i.e., subject to correction by the manufacturer or dealer) or NOT VERIFIED (i.e., not subject to correction). Relevant to this proceeding are the following findings of Inspector Butzen: LIVING ROOM 1) Cracks in wall above door and around door frames: VERIFIED. DEALER TO CORRECT.

2) Door damaged: VERIFIED. DEALER TO CORRECT. Door weather-stripping and jamb are damaged since delivery.

4) Cracks and holes above windows: VERIFIED. DEALER TO CORRECT. Window corners and ceiling wall joints.

5) Cracks down adjoining wall: VERIFIED. DEALER TO CORRECT. Crack of wall marriage line beam to right of window and corner.

7) No screens on windows: VERIFIED. DEALER TO CORRECT. Left living room window missing screen.

KITCHEN

9) Cracks: VERIFIED. DEALER TO CORRECT. Chip in drawer face next to stove.

10) Cracks: VERIFIED. DEALER TO CORRECT. Wall crack to right of range hood above cabinet.

11) Texturing above door (ceiling): VERIFIED. DEALER TO CORRECT. Ceiling wall joint cracks.

12) Holes in wall where curtains are supposed to be: VERIFIED. DEALER TO CORRECT.

15) No screen on window: VERIFIED. DEALER TO CORRECT.

16) Floor tile damaged in walkway to dining room carpet line: VERIFIED. DEALER TO CORRECT. Linoleum is scratched, there is a cut 6” from dining room.

DINING ROOM

18) No screen on window: VERIFIED. DEALER TO CORRECT.

19) a. Cracks in upper corners of window. VERIFIED. DEALER TO CORRECT. Top and bottom window corners.

b. Holes in wall: VERIFIED. DEALER TO CORRECT. From drapery rods.

FAMILY ROOM

21) b. Cracks, north side: VERIFIED. DEALER TO CORRECT. At window corners and ceiling wall joints.

BEDROOMS ON EAST SIDE OF HOME

24) a. Cracks in doorway: VERIFIED. DEALER TO CORRECT. Bedroom #2.

b. Wall: VERIFIED. DEALER TO CORRECT. Bedroom #2 bottom of beam and ceiling wall joints.

25) Cracks in ceiling near closet: VERIFIED. DEALER TO CORRECT. Bedroom #2 wall beam joint; wall and corner to right of closet; ceiling wall joints; right corner inside closet.

27) Cracks at bottom of window: VERIFIED. DEALER TO CORRECT. Both windows, bottom corners.

MASTER BEDROOM

30) Cracks around window (bottom): VERIFIED. DEALER TO CORRECT. Top and bottom window corners.

31) Holes in wall above window where stolen curtains hung: VERIFIED. DEALER TO CORRECT.

33) Crack from ceiling to floor in west corner: VERIFIED. DEALER TO COORECT.

34) Bathroom door needs painting around frame (bottom): VERIFIED. DEALER TO CORRECT. Bottom of door casings.

MASTER BATH

38) Crack on wall by toilet: VERIFIED. DEALER TO CORRECT. Right corner.

GUEST BATH

45) Door jamb separating: VERIFIED. DEALER TO CORRECT. Casing miters need filled.

EXTERIOR OF HOME

46) b. Damaged exterior: VERIFIED. DEALER TO CORRECT. Fascia is broken at northeast corner; hole in siding left of family room windows.

48) Window screens missing from many windows: VERIFIED. DEALER TO CORRECT. Master bath and one (1) family room window.

MISCELLANEOUS

49) a. Carpet seams separating in family room: VERIFIED. DEALER TO CORRECT. Seam is overlapped/loose - family room at hall.

b. Living room: VERIFIED. DEALER TO CORRECT. Carpet is short to wall at entry linoleum, quarter round trim is between carpet and wall.

54) Master bedroom - ceiling wall joints (closet) cracked: VERIFIED. DEALER TO CORRECT.

55) Furnace compartment not finished out: VERIFIED. DEALER TO CORRECT. After furnace was removed for heat pump installation.

8) By letter dated February 15, 2001, the Department informed Mr. Ives that since Patriot was no longer in business as it pertained to the Department, Mr. Ives’ only recourse in regards to the repair of the items contained in Paragraph No. 7 of the Findings of Fact (“Paragraph No. 7”) was payment from the Consumer Recovery Fund (the “Fund”). 9) At hearing, in support of his claim for payment from the Fund, Mr. Ives presented two estimates to repair the items mentioned in Paragraph No. 7. The Administrative Law Judge admitted both estimates, but concludes that the lower and more detailed estimate, in the amount of $10,213.28, from S & A Construction, is more credible. CONCLUSIONS OF LAW A.R.S. § 41-2190(B) states: “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.” Mr. Ives is a “consumer” as that term is used in A.R.S. § 41-2190(B). See A.R.S. § 41-2142(7). A.R.S. § 41-2190(D) states: “The board [of manufactured housing] shall pay from the consumer recovery fund whatever sum the administrative law judge finds payable upon the claim. A decision granting a claim shall include an order suspending the license of the licensee upon whose account the claim was filed. Such a license shall remain on suspension 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.” The evidence of record established that Patriot failed to perform its contractual agreement with Mr. Ives, and that the Department verified Mr. Ives’ claim against Patriot arising from the failure to perform in the amount of $10,213.28. The evidence of record supports a payment to Mr. Ives from the Fund in the amount of $10,213.28. By operation of law (A.R.S. § 41-2190(D)), Patriot’s Class D-8 license must be suspended until such time that Patriot has repaid in full, plus interest at ten percent per year, the amount paid to Mr. Ives from the Fund.

RECOMMENDED ORDER In view of the foregoing, it is recommended that on the effective date of the Order entered n this matter, the Board of Manufactured Housing shall pay to Mr. Ives from the Fund the amount of $10,213.28. Done this day, February 8, 2002

______________________________________ Constantino Flores Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2002, 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