ALJDEC decisions subject to certification as final

08F-C089019-BFS · Department of Fire Building and Life Safety · 2008-11-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 12th, 2008; 9:00 a.m. APPEARANCES: Complainant, Mr. John Payton, represented himself. Respondent, Desert Gardens Mobile Homes, was represented by Mr. Richard Oldham, owner. ADMINISTRATIVE LAW JUDGE: Grant Winston _____________________________________________________________________ The administrative hearing of this matter was held in the Office of Administrative Hearings, Tucson. Testimony was heard and other evidence admitted to the record and, based on the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made. FINDINGS OF FACT 1. Respondent, Desert Gardens Mobile Homes, is, and during all time material hereto was, a licensed dealer and installer of manufactured homes possessing Class I-10C License number 5249, and Class D-12 License number 5470, issued by the Arizona Department of Fire, Building and Life Safety, Office of Manufactured Housing. 2. Complainant, Mr. John Payton, purchased his manufactured home from Respondent on November 21st, 2006. The home was manufactured and installed in December, 2006. 3. Following installation, Complainant had several items he wished to see corrected. Respondent returned and made efforts to correct the items. Not being satisfied with the corrections, Complainant filed the instant Complaint with the Office of Manufactured Housing on or about May 9th, 2008. Along with the allegations Complainant made in the Complaint he insisted that someone other than the Respondent make the corrections, alleging that Respondent had damaged his property during earlier correction efforts. 4. An assigned agency Inspector conducted an inspection of the home in the presence of all parties on July 1st, 2008, and as a result of his findings issued a Verified Complaint and Sign-Off Form. The Form indicates the Inspector’s findings that most of the Complaint items had been properly corrected by the Respondent, accepted by the Complainant, or not verified by the Inspector. 5. This administrative hearing was held pursuant to Notice of Hearing issued by the Deputy Director of the Department of Fire, Building and Life Safety, Mr. John Stahmer, on September 12th, 2008. The Notice directed that the hearing be held regarding the Complaint and Sign-Off Form’s Item Number 7, subsections (a) ( (e). This item is the Inspector’s directions to the R4spondent to correct the carpet installation. In sum, Item 7, states that in specific rooms and areas the carpet is loose and needs to be stretched. 6. At the hearing there was no disagreement that Item 7 needs to be properly corrected, the only issue was who was to perform the corrections. Respondent’s owner, Mr. Richard Oldham, testified that his crew is ready, willing and able to perform the corrections, but that Complaint has refused access, thereby making performance impossible. Complainant agreed that he has not allowed Respondent to make the ordered corrections, but testified that Respondent has proven itself not competent to make the corrections. Complainant insists that no one other than a carpet contractor licensed by and in good standing with the Arizona Registrar of Contractors make the corrections listed at Item 7. 7. Based on the parties’ past relationship, and its current acrimonious condition, it is not advisable that this Respondent return to the Complainant’s home and make the corrections.

CONCLUSIONS OF LAW 1. This administrative hearing was held under authority of and pursuant to A.R.S. 41-1091, and A.R.S. 41-2181. 2. The Arizona Department of Fire, Building and Life Safety, Office of Manufactured Housing has jurisdiction to license and regulate Respondent, and order verified items to be properly corrected. A.R.S. 41-2153.B.9, 10; A.R.S. 41-2186.19 and 20. 3. The greater weight of evidence, including that of Complainant and Respondent, prove that Respondent is responsible for properly correcting the carpeting conditions listed by the assigned Inspector in Item No. 7 of the Verified Complaint and Sign-Off Form. 4. Complainant cites for the record no law requiring the Department of Fire Building and Life Safety, Office of Manufactured Housing, to defer to licensing by the Arizona Registrar of Contractors when ordering corrections to be made to items listed in a Verified Complaint and Sign-Off Form. This Respondent is legally qualified as an installer licensed by the Department of Fire Building and Life Safety, to make the needed carpet corrections. However, as found it would b imprudent to order these two parties to try to work together. RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law it is hereby recommended that the Director of the Department of Fire, Building and Life Safety suspend Desert Gardens Mobile Homes’ Class D-12 License number 5470, effective 35 days after the date of the Director’s final order in this matter, unless prior thereto Desert Gardens Mobile Homes provides written notification that it has caused another properly licensed Arizona manufactured homes installer to correct the Verified Complaint and Sign-Off Items 7(a) ( 7(e) in a proper and workmanlike manner. It is further recommended hat if the Director receives such written within the time allowed, Desert Gardens Mobile Homes’ license shall not be suspended and Citation and Complaint No. 08-9/019 shall be closed. Complainant is advised that any unreasonable denial of access to the Respondent of the Respondent’s proper agents or employees to perform the required corrective work may be treated as compliance by the Respondent and may result in the case being closed without discipline, and the Complaint may be denied access to the Consumer Recovery Fund , even if otherwise eligible. Done this day, November 20th, 2008.

______________________________________ Grant Winston Administrative Law Judge

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

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

By ___________________________

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Office of Administrative Hearings 100 N. Stone Ave., Suite 704 Tucson, AZ 85701 520-628-5488 Fax: 520-628-5575 www.azoah.com