ALJDEC decisions subject to certification as final

08F-A088021-BFS · Department of Fire Building and Life Safety · 2008-07-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 2, 2008 APPEARANCES: Wayne and Anne Emerick appeared on their own behalf; Mr. Phil Cabrera and Mr. Jonathan Leon appeared for Palm Harbor Homes; no one appeared for Leisure Home Sales, LLC ADMINISTRATIVE LAW JUDGE: Thomas Shedden _____________________________________________________________________ Wayne and Anne Emerick filed a Complaint with the Office of Manufactured Housing and evidence was presented on the whether or not discipline should be imposed on Respondents. FINDINGS OF FACT On May 16, 2008 the Department of Fire, Building and Life Safety issued a Notice of Hearing setting this matter for 1:30 p.m. July 2, 2008.

At the scheduled hearing time no one appeared for Leisure Home Sales, Inc. After a 15 minute grace period, the Administrative Law Judge convened the hearing in Leisure Home Sales, Inc.’s absence. Mr. and Ms. Emerick appeared and testified; Mr. Phil Cabrera and Mr. Jonathan Leon appeared and testified for Palm Harbor Homes (“PHH”). The Emericks had 1 exhibit admitted into evidence (7 photographs) and the administrative record was accepted into evidence. The Notice of Hearing gave the issue as: “Appellant filed a consumer complaint with the Office of Manufactured Housing on October 2, 2007. On April 1, 2008, a verification inspection was conducted by the Department. The Appellant is appealing items 11, 15a and 15b of the attached Verified Complainant and Sign-Off Form.” Two Verified Complaint forms were issued in this matter. The first Verified Complaint form listed Items 1 through 17 and was the subject of an inspection that occurred February 5, 2008. The second Verified Complaint form listed Items 8a, 8b, 8c, 15a, and 15b and was the subject of the April 1st verification inspection referenced in the Notice of Hearing, which was a re-inspection. The Emericks testified that Items 15a and 15b had been resolved and evidence was taken only on Item 11. Item 11 of the first Verified Complaint reads: “The wall in the Master Bedroom that separates the kitchen has a sinking look: VERIFIED MANUFACTURER. To check level of wall on kitchen side of marriage line at Master bedroom.” In the Emerick’s initial complaint, Item 11 was listed as number 3b. On March 11, 2008 Mr. and Ms. Emerick signed the first Verified Complaint and initialed at Item 11. The Verified Complaint, just above the area signed by the Emericks, reads: “SIGNATURE BELOW INDICATES TAT ALL ITEMS INITIALED ABOVE HAVE BEEN COMPLETED.” In a letter dated March 14, 2008 the Department informed the Emericks that the matter was being closed because the Emericks had signed-off on the first Verified Complaint showing that the required repairs had been completed. In a letter dated March 16, 2008 the Emericks requested that the matter be reopened for Items 8a, 8b, 8c, and 15. According to the Emerick’s March 16th letter, Item 11 had not been repaired and the Emericks had no confidence that PHH’s technicians could make the required repair. In a letter dated March 20, 2008, the Department re-opened the matter and set a re-inspection for April 1, 2008. The Re-Inspection Report, dated April 2, 2008, includes Items 8, 15a, and 15b, but not Item 11. Mr. Cabrera provided credible testimony that Item 11 was not addressed during the re-inspection. Mr. Emerick testified that Inspector Butzen was vague with respect to Item and he told the Emericks that they would need to request a hearing to have Item 11 addressed. Mr. and Ms. Emerick testified that they initialed the first Verified Complaint because they thought it was only an indication that work had been undertaken, not that the work had been properly completed. This testimony strains belief because the Verified Complaints clearly state that by initialing and signing the Emericks were agreeing the work had been completed. Mr. Cabrera testified that there were two components to Item 11. One item was taken care of by a PHH technician making adjustments through the roof and the other was to be fixed using a standard technique by which a compound is used to “float” the wall out. Ms. Emerick testified that she told the PHH technician not to fix the wall that is the subject of Item 11 because she heard the technicians discussing the matter and she felt that they did not know how to accomplish that fix. See also letter dated March 16, 2007. Ms. Emerick testified that they have made measurements that show the wall is crooked but did not have these at the hearing. The Emericks did submit photographs showing the area near the refrigerator in the kitchen and another area, but these are not dispositive because the photographs do not provide a clear reference (e.g. a level or plumb line) from which the extent of any problem can be determined. In the photograph of the refrigerator area, very little of the wall can be seen and no conclusions can be drawn about the wall. Although it does appear that the cabinets are not plumb relative to the refrigerator, the photograph is not helpful because the refrigerator has been pulled out away from the cabinets and, based on the location of its feet relative to the grout line in the tile, the refrigerator has been twisted such that the photograph does not provide a clear perspective. The other photographs show a wall with a hutch against it. It is clear the there is less room between the hutch and wall at the top than at the bottom, but the hutch is actually two pieces and it is not clear from the photograph whether the top piece is leaning in toward the wall or if the wall is sloping out. CONCLUSIONS OF LAW The Department has authority to sanction mobile home manufacturers and dealers. See A.R.S. § 41-2181. The burden of proof at an administrative hearing falls to the party asserting a claim, right or entitlement. The standard of proof on all issues in this matter is by a preponderance of the evidence. See A.A.C. R2- 19-119. A preponderance of the evidence is “[e]vidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (6th ed. 1990). The evidence presented does not show that the wall in the Master Bedroom that separates the kitchen requires any additional repairs. The preponderance of evidence does not show that discipline should be imposed on PHH because there is insufficient evidence to show that PHH has committed any violations of applicable law or rule. The preponderance of evidence does not show that discipline should be imposed on Leisure Home Sales because there is insufficient evidence to show that Leisure Home Sales has committed any violations of applicable law or rule. Because the preponderance of evidence does not support a finding that discipline should be imposed on either Respondent, the Emerick’s Complaint should be dismissed.

RECOMMENDED ORDER IT IS ORDERED that the Wayne and Anne Emerick’s Complaint is dismissed. Done this day, July 8, 2008

______________________________________ Thomas Shedden Administrative Law Judge

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

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

By ___________________________

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