ALJDEC decisions subject to certification as final

07F-C067278-BFS · Department of Fire Building and Life Safety · 2007-07-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 26 and June 19, 2007 APPEARANCES: On April 26, 2007, Brian Kinney, Complainant; Loretta Kinney, Complainant’s wife; Michael Onken, High Country Manufactured Homes Inc President; Barbara Holloway, Redman Homes, Inc. Service Manager; Kevin Jordan and William Nowlan, Redman Homes, Inc. witnesses; Valerie Onken, observer. On June 19, 2007, Cliff Blanden, Redman Homes, Inc. representative ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang _____________________________________________________________________

FINDINGS OF FACT 1. The Kinneys purchased a home from High Country Manufactured Homes, Inc. (“High Country”) that was manufactured by Redman Homes, Inc. (“Redman”). After the home was installed, the Kinney’s filed a complaint with the Department of Fire, Building and Life Safety (the “Department”). Upon investigation, the Department Inspector verified several of the items of complaint and designated the responsibility for repairing them between the two Respondents. 2. The Respondents repair or replaced most items, but three of them were still not repaired so the Kinney’s requested a hearing on those items. According to the Notice of Hearing, the remaining items were Items 2 and 4, assigned to High Country, and Item 33, assigned to Redman. 3. At the hearing, the Complainant, Mr Kinney, stated that Item 2 had been resolved. As for Item 4, he argued that it should have been assigned to Redman, not High Country. Item 4 of the Complaint states: Hardi-panel is damaged several places on exterior of home: VERIFIED. DEALER TO CORRECT. Family room right window cracked bottom right corner. 4. According to the Complainant, all of the issues with the hardi- panel had been repaired by Redman by the time of the hearing. Redman’s service technician, Kevin Jordan, testified that the Department often assigns repair of hardi-panel to the dealers because they can get cracked during the move. He stated that the damage to the hardi-panel in this case would be properly repaired by filling the crack with wood fill. He also stated that gaps at the base of the hardi-panel would be properly repaired by using a wider trim piece at the bottom. However, Redman did not have legal notice that Item 4 could be its responsibility. Nevertheless, Redman’s Service Manager testified that Redman would voluntarily repair that item. 5. Item 33 of the Complaint pertains to a linoleum cut in the floor of the computer room. Mr. Kinney testified, however, that the reason he was dissatisfied was that there was a linoleum bar between the living room carpet and the computer room, which caused that doorway to look different than the other doors in the home. Mr. Jordan testified that he did it that way because the carpet was too short to roll it under. It was not established that any further repairs are necessary to the computer room doorway floor. A linoleum bar is an acceptable transition between rooms and the aesthetics of having it the same as other doorways is very minor. 6. Mr. Kinney also testified about the tile on the backsplash of the computer desk. This was Item 35 of the Complaint, and, though it was verified, Redman received no notice of that issue. A review of the file revealed that Mr. Kinney requested a hearing on the issue of Item 33, but then added text referring to the tile. Redman agreed to repair the desk tile. Therefore, the matter should be considered affirmed at this point. 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 Building and Fire 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. That statute 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, Item 2 was settled prior to hearing. Items 4 and were voluntarily accepted by Redman; however, Redman had not yet had an opportunity to affect repairs because they were unaware of those issues prior to hearing. Finally, the Complainant did not offer sufficient evidence to establish by a preponderance of the evidence that Item 33 was inappropriately repaired. 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 dismiss this Complaint. Complainant should be allowed to submit another request for hearing against Redman Homes, Inc., however, if Items 4 and 35 are not repaired. Done this day, July 3, 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 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