ALJDEC decisions subject to certification as final

07F-C067244-BFS · Department of Fire Building and Life Safety · 2007-03-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 12, 2007 APPEARANCES: Albert G. Powell, Complainant ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang _____________________________________________________________________ In a hearing to determine if the Respondent complied with a Verified Complaint and Sign-Off Form, the Complainant established that the carpeting in his home was not installed in a workmanlike manner. Therefore, it is recommended that the Respondent’s license be suspended until the carpet is installed correctly, specifically in a manner that shows no humps in the carpet or damage to the walls, a uniform color throughout the home, and without an unreasonable number of seams. FINDINGS OF FACT 1. On March 23, 2005, the Complainant entered a purchase contract with the Respondent. After the Complainant’s manufactured home was installed in June 2005, he filed a complaint with the Department of Fire, Building, and Life Safety (the “Department”) Office of Manufactured Housing on June 6, 2006 regarding various items. On or about November 1, 2006, the Department issued a Verified Complaint and Sign-Off Form ordering the Respondent, in item 1 of the document, to correct the carpeting job in the home, to wit: Where carpet is joined together at marriage, carpet is separating/hump/gaps/piling has come out: VERIFIED. DEALER TO CORRECT. One (1) spot in center of archway and on the left corner living room side left side of archway facint (sic) kitchen. 2. The Respondent attempted to correct the carpet but the Complainant was not satisfied. On December 18, 2006, Complainant requested that the Department issue the Respondent a Citation and Complaint regarding item 1 of the Verified Complaint and Sign-Off Form. A hearing was set to consider Respondent’s potential liability for the carpeting at the Office of Administrative Hearings, an independent agency authorized to conduct hearings in contested matters arising out of State legislation. 3. Complainant appeared at hearing, but the Respondent did not appear. Complainant testified and offered exhibits to show that the carpet still has a hump in it. The carpet was also installed in a way that scuffed the paint in the home, left many visible seams, and did not meet the wall or door frame in some areas. Although the Respondent has relayed the carpet three times, the photographs show that it is still not up to reasonable workmanship standards. 4. Complainant also testified and offered evidence that the Respondent, though willing to install new carpet in the living room and hallway, would not guarantee that the color would match the other rooms of the home. Complainant finds this unacceptable because it would be very visible if the bedroom carpets did not match the rest of the house. 5. Complainant asked that the Respondent be ordered to take out the carpet he has now, remove the hump at the marriage line, and replace all of the carpet and linoleum bars in the home. He also argued that the Respondent should be required to warrant the work for one year because installers can disappear. He said one of them was already talking about moving to Oregon when he was at the Complainant’s house. CONCLUSIONS OF LAW 1. This administrative hearing was held under authority of and pursuant to A.R.S. § 41-2153(B)(9) and A.R.S. § 41-2181. According to A.R.S. § 41-2181, the Department of Fire, Building and Life Safety is empowered to revoke or suspend the license of any licensed manufacturer, dealer, broker, salesperson or installer for any violation of A.R.S. § 41- 2186. It provides that it is a violation subject to disciplinary action for a licensee to fail to provide all agreed-upon goods and services or to fail to manufacture or install in a workmanlike manner all subassemblies, units and accessory structures. A.R.S. § 41-2186(19) and (20). 2. The burden of proof at an administrative hearing is generally upon the Complainant. Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). Further, the standard of proof at hearing is a “preponderance of the evidence”. Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). 3. In this case, the Complainant offered sufficient evidence to establish by a preponderance of the evidence that the Respondent failed to install and repair the carpet in a workmanlike manner. The Office of Manufactured Housing verified the Complaint and the item to be corrected were clear to the Respondent. The weight of the evidence has established that the Respondent has not complied with the applicable statutes and should have its license disciplined. Respondent should be required to install new carpet so that it looks new, without a hump in it, without an unreasonable number of seams showing, lying flush against the walls and door frames, and matching throughout the home. Additionally, it is highly inappropriate for workmen to scuff walls and doors while installing carpet and not repair the damage before considering the work to be finished. RECOMMENDED DECISION Based upon the foregoing considerations, the undersigned Administrative Law Judge hereby recommends that the Director of the Department of Fire, Building and Life Safety suspend Respondent’s license commencing on the effective day of his Order, until the Director receives written confirmation that the Respondent has removed the hump in the floor, installed new carpet and linoleum strips throughout the home and painted the areas scuffed by the workmen with matching paint. Upon completion of the suspension, if any, further disciplinary action is not recommended. Done this day, March 28, 2007 OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Dorinda M. Lang Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2007, to:

Department of Fire Building and Life Safety Robert Barger, Director ATTN: Joyce Kesterman 1110 West Washington Avenue, Suite 100 Phoenix, Arizona 85007

By ___________________________ -----------------------

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