ALJDEC

01F-R012028-BFS · Department of Building and Fire Safety · 2002-04-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: Monday, April 15th, 2002; 9:00 a.m. APPEARANCES: The complainant, William Thomas, appeared and represented himself. The respondent, Timberlake Homes, Inc., failed to appear. ADMINISTRATIVE LAW JUDGE: Grant Winston. _____________________________________________________________________

The administrative hearing of this matter was held in the Office of Administrative Hearings, Tucson, Arizona. Testimony was heard and other evidence admitted to the record, and, based on the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made. FINDINGS OF FACT 1. The respondent herein, Timberlake Homes, Inc., was at all times material hereto, a mobile home dealer, licensed by and doing business in the State of Arizona, holding Class D-8 License number 7225. 2. Complainant, William J. Thomas, purchased a new manufactured home from respondent in April of 2000. The home was installed on June 16th, 2000.

3. The complainant noticed several defects in the home after it was installed. He filed an administrative complaint against this respondent in February of 2001 (OMH Complaint File #2001-350). 4. The complaint was assigned to Office of Manufactured Housing Inspector Dennis Butzen, who inspected the home pursuant to the filing of the complaint on March 28th, and again on June 5th, 2001. He verified several of the items complainant had listed in his complaint. Among those items verified to be corrected by the dealer was the item in question in this recovery fund hearing, the poorly installed carpet. 5. In his Verified Complaint and Sign-Off Form of his March 28th, 2001 inspection, Inspector Butzen included the following verification: “Carpet poorly installed throughout the house: VERIFIED. DEALER ACCEPTS to replace carpet throughout home.” Items ##20 and 30, noting humps and holes or dents in the floor, relate to the poor carpet installation, and respondent was likewise ordered to correct these conditions. 6. As suggested by the inspector’s verification, the respondent was present at the inspection, agreed that the carpet was defectively installed, and agreed to replace it. 7. As of the second inspection, June 5th, 2001, the carpet had not been replaced. This initial delay was understood by the respondent owing to the fact that other corrections needed to be performed by respondent before laying the carpet. 8. During the second inspection, the carpet was pulled up and the problems of items ##20 and 30 then were seen to be caused by the poor carpet installation. At areas there was no padding installed under the carpet. The pile direction was not uniform throughout. There were humps and depressions in the floor caused by the poor carpet installation, and the seams were highly visible at places. 9. Respondent never did return and replace the carpet. Respondent then went out of business, and complainant has been left with recourse to only the recovery fund. 10. Respondent produced into evidence three written estimates for the installation of carpet in his home, consistent with the inspector’s verification of that needed work. The high estimate was from Wagon Wheel Flooring in the sum of $4,293.10. The middle estimate was from Lovingfoss Flooring Supply in the sum of $4,172.99. The low estimate was from The Design Center by Ortiz in the sum of $4,004.46. 11. Complainant seeks recovery from the fund in the amount of the high estimate. He seeks that amount of recovery, as opposed to the sum of the low bid, because he says he will have to pay two men to move his furniture in order for the carpet to be laid, and move it back when the job is done. He testified the carpet installers do not move furniture. That may be true; however, complainant produced no bids or estimates or any substantial evidence of how much this would cost, only his own testimony that it should be added to the recovery fund amount by way of awarding the high estimate. CONCLUSIONS OF LAW 1. This administrative hearing was held under authority of and pursuant to A.R.S. §§41-2190.C. and 41-1092. 2. The notice of hearing in this case provides that the complainant seeks recovery from the fund in the amount of $4,293.10 (the high bid), and cites A.R.S. §41-2190.A., B., and D. 3. A.R.S. §41-2190.A. provides that a person who purchases his manufactured home from a licensed dealer for use as a residence, and is damaged as a result of an act or omission of that dealer, which constitutes a violation of A.R.S. §41-2180 or rules adopted pursuant thereto, is entitled to file a claim in the OMH for payment from the consumer recovery fund. The claim must be verified by the OMH. The claim was verified as found hereinabove. 4. A.R.S. §41-2188.D. limits the recovery from the fund to actual or compensatory damages. 5. Pursuant to A.R.S. §41-2190.D. the board shall pay from the recovery fund whatever sum the administrative law judge finds payable upon the claim. It is concluded that the complainant provided sufficient evidence to uphold an award to him from the recovery fund in the amount of the low bid from The Design Center by Ortiz, in the sum of $4,004.46. The remainder of complainant’s evidence of actual damages was too speculative to provide an adequate basis to conclude he incurred additional damages or in what amount they might be. . . . . . .

ORDER In view of the foregoing, it is hereby ordered that the complainant’s claim for recovery from the consumer recovery fund is granted, but in the amount of $4,004.46. The Office of Manufactured Housing shall pay the complainant that amount. It is further ordered, pursuant to A.R.S. §41-2190.D., that Class D-8 License number 7225 is hereby suspended until such time as the licensee has repaid in full, plus interest at the rate of 10% per year, the amount paid from the consumer recovery fund on the licensee’s account. Done this day, April 30th, 2002.

________________________________ GRANT WINSTON Administrative Law Judge

Original transmitted by mail this ____ day of May, 2002, to:

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

By _______________________________ -----------------------

Office of Administrative Hearings 100 N. Stone Ave., Suite 704 Tucson, Arizona 85701 (520) 628-5488