ALJDEC decisions subject to certification as final

08F-A088020-BFS · Department of Fire Building and Life Safety · 2008-09-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 26, 2008 APPEARANCES: Craig Cress, Complainant; Phil Signor, CMH Manufacturing West, Inc. representative; Rick Busbee, Busbee’s Mobile Home’s representative; Josh Wendt, Sunrise Home Service’s representative ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang _____________________________________________________________________ Craig Cress appealed the findings of a Verified Complaint and Sign- Off Form. At hearing, he did not establish by the weight of the evidence that the items are in need of correction or repair. Therefore, it is recommended that the appeal be dismissed. FINDINGS OF FACT 1. Craig Cress purchased a CMH Manufacturing West, Inc., ("CMH") mobile home from Busbee's Mobile Home Sales, Inc., ("Busbee"), which was installed by Sunrise Home Service ("Sunrise"). Mr. Cress filed a complaint with the Department of Fire, Building and Life Safety ("Department"). The Department issued a Verified Complaint and Sign-Off Form, which Mr. Cress appealed regarding items 2 and 5. Prior to hearing, he requested to add items 4 and 7. At hearing, the Respondents agreed to waive any objections to adding items 4 and 7 to the issues to be heard at hearing. 2. At the hearing, Mr. Cress testified that, regarding item 2, the air conditioner for the home is too bigSW. As a former worker in the industry with education in the field, Mr. Cress offered into evidence varying estimates of the proper sized air conditioner for his home. Based on these, he argued that the home has a 3 ton air conditioner, but he thinks it should have a 2 ton air conditioner. 3. Busbee's representative testified that it relies on its subcontractor of 23 years to establish the proper size of the air conditioner. They warranty the units. Additionally, the calculations offered by Mr. Cress do not apply to mobile homes, whereas, Busbee offered Exhibit C, which is a guideline specifically for mobile homes, and it shows that Mr. Cress has the proper sized air conditioner. 4. Regarding item 4, connection of the dryer vent, Mr. Cress testified that the dryer vent was improperly hooked up. However, he also stated that he corrected it himself. Additionally, he changed it again when he converted his dryer to a gas dryer. When Busbee learned of the complaint, it sent someone to his home to inspect the problem, but they found that, in its current state, the dryer vent meets code requirements. 5. Regarding item 5, the sewage cleanouts, Mr. Cress appealed the item because he objected to their location in his driveway. The item was verified by the Department but only to the extent that the caps needed to be more accessible. Busbee changed the caps, but Mr. Cress wants the sewer lines to be moved. He asked at hearing why they were located there. Busbee's representative testified that the moving of lot lines by the developer caused them to start the line in one direction during the installation. However, the line meets code requirements and it has passed all inspections. Busbee paid Sunrise to do the work. Sunrise's representative confirmed Busbee's statement. 6. Regarding item 6, the location of the hose bib, Mr. Cress testified that it is not in the location he preferred. However, Mr. Cress had no documentation to support his statements. Sunrise's representative testified that the hose bib was placed in the most logical place. Mr. Cress stated that he wanted the hose bib located under the carport, but Sunrise's representative stated that this could interfere with parking cars. 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 weight of the evidence established that the items of appeal were appropriately evaluated in the Verified Complaint and Sign-Off Form, and there is no basis for granting the appeal. The air conditioner was not established to be too large. The dryer vent has been changed by Mr. Cress and there is no reason to change it at this point. The sewer line meets code; it was not shown to be inappropriate. Finally, the hose bib is in an appropriate location and there is no documentation showing that the party who installed it agreed to install it at any particular location. Therefore, it is recommended that the Director of the Department of Fire, Building and Life Safety dismiss this appeal. 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 appeal in its entirety.

Done this day, September 8, 2008 OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Dorinda M. Lang Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2008, to:

Department of Fire Building and Life Safety 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