ALJDEC decisions subject to certification as final

08F-A088019-BFS-rhg · Department of Fire Building and Life Safety · 2009-01-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 7, 2009

APPEARANCES: Jana Shea, Complainant; Brent Wilde, Bronco Home Sales President; Mike Edwards, Cavco representative; Caleb Shea, Complainant's son; Russ Winters, Cavco witness; Norman Ball, Cavco witness; Dennis Butzen, Cavco witness

ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang _____________________________________________________________________ FINDINGS OF FACT 1. Complainants purchased a Cavco Industries Durango Division ("Cavco") manufactured home from Bronco Home Sales, Inc. They set up the home in January 2006 and moved into the home in September 2006. At some point, the Complainants filed a complaint against the Respondents with the Department of Fire, Building and Life Safety ("FBLS"). On January 17, 2008, Dennis Butzen, a FBLS Inspector conducted a job site inspection on the home. The Complainants appealed the items that he did not verify. 2. Item 1 of the complaint alleged that the home had a mold problem. Mr. Butzen did not verify the item. Although the home had mold, the condensation in the home was found to be the cause of the mold. Keeping condensation down is the responsibility of the home owner, and it is not considered the responsibility of the manufacturer or the dealer if the home develops mold because the home owner's actions in allowing excessive condensation in the home caused the mold to grow. 3. When the matter came to hearing, the Complainant submitted evidence that the home had mold problems. She denied that the home had too much condensation. She said that she understood the issue of condensation and knew how to take care of it. She said that she vented the home in the winter to keep condensation down. She said she was insulted that the Respondents' representatives and Mr. Butzen acted like she didn't know about condensation. She was offended that Mr. Edwards, the Cavco representative, gave her written information on condensation. She also said that she didn't care about condensation because the issue was mold. She said that the Respondents were focusing on condensation, which was not the problem, that they should be focusing on the real problem, which was the mold. 4. Cavco offered numerous photos showing extensive moisture in the home. Some photos showed that the walls were dripping with moisture. The dryer vent was detached, which may have been a cause of the moisture, but regardless of the cause, the Complainants had not controlled it. 5. The evidence established that there was significant condensation in the home, and that the condensation was the cause of the mold. The evidence also established that the Complainant did not understand that condensation was causing the mold and that it was her responsibility to ensure that the home did not have so much condensation. Since the Complainant's actions or failure to act caused the mold, it was not established that the Respondents should be responsible for that item of the complaint. 6. Item 2 of the complaint alleged that the exterior laundry room door does not seal properly. Complainant testified that it was easier to heat the home since she taped around the door. She offered a photo of the taped door, but she offered no evidence that light could be seen around the door when the tape was not there. Mr. Butzen did not verify that item of the complaint because, he said, he inspected it and could not detect any light coming through it. 7. Complainant offered a photo of the door (Photo 20) showing that there are reveals around the edges of the door. Mr. Butzen testified that it is the weather-stripping that seals the door and it is not inappropriate for there to be reveals around the door. 8. Item 3 of the complaint was corrected. 9. Item 4 of the complaint alleged that a window was not opening correctly. The item was verified and a Cavco employee repaired it. However, the Complainant alleged that the windows of the home do not open and close correctly. Since the evidence clearly established that the home was kept overly humid in cold weather, it is likely that this is the cause of any remaining malfunction in the windows. For this reason, the Complainant was unable to establish that there was any current problem with the function of the windows for which the Respondents should be held responsible. Although the problem may exist, the evidence established that it is most likely the fault of the Complainant's actions. 10. Item of 5 of the complaint was repaired, but the Complainant offered a photo (Exhibit 3) showing that some paint is peeling in the clerestory windowsill. Complainant stated that the drywall is peeling there, but it appears to be paint that has peeled on a surface that is block or wood. Russ Winters, a Cavco service technician, testified that he went to the home on February 7, 2008 to do the repairs that were verified in the complaint. He said that the clerestory windows had foil over them. He said that one of the children stated that they were covered to darken the room so the children could play video games. He noticed that there was a lot of moisture on the windows. He painted over about 6 cracks in that area. The evidence was not clear that the area was included in the complaint. And it was not clear that the peeling paint was due to any failing by the Respondents rather than excessive moisture in the home. However, since repairs were being done in that area, it would be appropriate to order that the area be painted. 10. Item 6 of the complaint alleged that there was a plumbing pipe problem. The item was not verified. Complainant offered no evidence on this issue. Therefore, it was not established that the Respondents are responsible for any issues regarding plumbing pipe problems. 11. The Complainants submitted a letter to FBLS dated April 10, 2008. Since it was not stamped as received but it was forwarded to the Office of Administrative Hearings in the FBLS file, it must be assumed that it was filed that day. The letter requested a hearing regarding the items in the complaint. It also alleged additional problems with the home, ostensibly adding them to the complaint. The items included a tile edge of a counter in a bathroom that is slipping off and an uneven area in the floor at the entry door. The letter alleged that there are new cracks in the walls and windows, but Ms. Shea offered no evidence of them. 12. Mr. Butzen did not testify about the new items, apparently because he did not have an opportunity to do another inspection after they were added to the complaint. 13. Complainant offered Exhibit 5 showing that the counter tile is indeed dropping below the edge of the bathroom counter. It appears that the tile popped off and is hanging loose. No other evidence was offered regarding that issue. The evidence established that the Respondent Cavco should be ordered to repair the tile. However, since the item was not on the original complaint, it should not be considered a violation unless Cavco fails to make the repair. 14. Complainant offered Exhibits 7, 8, and 9 showing that the floor has a hump at the front door area. Mr. Winters testified that he fixed it as much as possible when he made his service call in February 2008. Although no measurements were available, the photos show that three nickels could be stacked at either end of a long level and it could touch the floor around the center. The width of three nickels is approximately 3/16ths of an inch, but the length of the level was not established. The photos and evidence offered by Complainant did not establish that the variance in the floor level was unsightly or that it interfered with living in the home. Therefore, it was not established that the hump in the floor, although it exists, was beyond an acceptable tolerance. 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. The 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. Pursuant to A.R.S. § 41-2182 et seq., the outside time limit for filing a complaint with FBLS is one year from the date of move-in, which, in this case, would be in September 2007. Even in cases where repairs have failed or have been incorrect following notification in the walk-through, the statute limits complaints to one year of installation, which would be in January 2007 in this case. Complainants attempted to add additional items to the complaint by the letter dated April 10, 2008 regarding the bathroom counter tile, the hump in the floor, and cracks in the walls and windows. To the extent that the Complainants’ attempted to add items to the complaint, those items constituted an untimely complaint and are not within the jurisdiction of FBLS by dint of Arizona law. Therefore, it would be inappropriate to consider those items at this time. 4. In this case, the Complainants have not established that the mold in the home is the responsibility of the Respondents as it has been allowed to grow through their own negligence in controlling the moisture level of the home. 5. The Complainants have not established that Respondents are responsible for any further repairs on the interior or exterior laundry doors, plumbing problems, the windows, new cracks in walls or windows, the bathroom counter tile, or the hump in the floor. 6. The Complainants have established that a small area by the clerestory window should be repainted. RECOMMENDED DECISION Based on the foregoing considerations, the undersigned Administrative Law Judge hereby recommends that the Director of the Department of Fire, Building and Life Safety issue an order to the appropriate Respondent directing them to paint the small area of peeled paint shown in Exhibit 5. Once the Department has received verification that the area has been painted, the complaint shall be closed. No further disciplinary action is recommended.

Done this day, January 21, 2009

OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Dorinda M. Lang Administrative Law Judge

. . . . . . . . . . . . . . . . . .

Original transmitted by mail this ____ day of ____________, 2009, to:

Department of Building and Fire Safety - LTA Robert Barger ATTN: Debra Blake 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