ALJDEC decisions subject to certification as final

08F-R089019-BFS-res · Department of Fire Building and Life Safety · 2009-02-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 9, 2009 APPEARANCES: Deborah and Dennis Fagan on their own behalf; House Mart Factory Outlet, LLC did not appear at the hearing ADMINISTRATIVE LAW JUDGE: Lewis D. Kowal _____________________________________________________________________ FINDINGS OF FACT 1. At all times relevant to this matter House Mart Factory Outlet, LLC (“Respondent”) was a licensed retailer of manufactured homes in the State of Arizona, holding a Class D-8 License, No. 7731. 2. On February 9, 2008, Complainants Deborah and Dennis Fagan (“Fagans”) purchased a manufactured home (“Home”) from Respondent. Pursuant to the purchase contract for the Home executed by the Fagans and Respondent, the purchase price of the Home was $162,000.00. 3. Mrs. Fagan testified that the Fagans entered into the above-mentioned purchase contract with Respondent whereby Respondent agreed to deliver and arrange for the installation of the Home and perform other work. 4. Although the Home was delivered to the Fagans, certain work was not properly performed and required corrective action. The Fagans filed a complaint against Respondent with the Department of Fire, Building and Life Safety Department (“Department”). 5. Of the items set forth in the complaint that the Department verified were Respondent’s responsibility to correct were the following that relate to the instant matter: Item 1 ( the air conditioning contractor, Sunland Distributing, Inc., was not paid by Respondent and had placed a lien on the Home); Item 33 ( the marriage line walls throughout the Home were splotched, painted over soot); Item 34 (Interior close up trim work ); Item 40 (termiticide was disturbed and needed to be done after block wall was re-built); and Item 41( Trim Out, Inc. was not paid by Respondent and had filed a lien on the Home in the amount of $2,895.00). 6. Because Respondent had not corrected the above-mentioned verified items, the Fagans contacted the Department, which recommended that they file a Consumer Recovery Fund Claim. 7. On November 10, 2008, the Fagans filed a Consumer Recovery Fund Claim Form with the Department seeking recovery of $6,910.00 from the Consumer Recovery Fund for actual or compensatory damages. The testimony presented by the Fagans revealed that there is a typographical error in the Notice of Hearing and although the Notice of Hearing indicates that the Fagans are seeking $8,910.00 from the Consumer Recovery Fund, the actual amount the Fagans are seeking is $6,910.00 consisting of three verified items, namely, items numbered 1, 40 and 41. 8. The Fagans submitted a copy of an estimate from Adieux Termite & Pest Control dated November 3, 2008 (Exhibit 2) for full treatment of exterior and interior perimeter base of the Home with termiticide in the amount of $275.00. 9. The Fagans also submitted copies of the lien that Sunland Distributing, Inc. placed against the Home in the amount of $3,740.00 and submitted a copy of the lien that Trim Out, Inc. placed against the Home in the amount of $2,895.00. 10. The Fagans represented that they are seeking the sum of $6,910.00 consisting of the amount of the Sunland Distributing, Inc. lien, $2,895.00, the amount of the Trim Out, Inc. lien, and $275.00, the bid from Adieux Termite & Pest Control. 11. A hearing was set with the Office of Administrative Hearings for February 9, 2009. Commencement of the hearing was delayed fifteen minutes in order to allow the Respondent an opportunity to appear. However, no one appeared on Respondent’s behalf and the hearing proceeded without Respondent’s participation. 12. Respondent did not present any evidence to refute or rebut the evidence presented by the Fagans. CONCLUSIONS OF LAW 1. Pursuant to A.R.S. § 41-2190(B), a manufactured home buyer may file a claim with the Consumer Recovery Fund for damages incurred by the failure of Respondent to perform a sales agreement or to perform repairs under a warranty. 2. The Fagans are limited to receive from the Consumer Recovery Fund actual or compensatory damages, including costs but excluding interest or attorney fees. A.R.S. § 41-2188(D). 3. The Consumer Recovery Fund is required to pay for damages in accordance with the amount found owing by the Administrative Law Judge, and the decision issued by the Administrative Law Judge shall include an order suspending the license of the account against whom the claim was filed. A.R.S. § 41-2190(D). That statute also provides that the license shall remain on suspension until the licensee has repaid in full, plus 10% interest per year, the amount paid on its account from the fund. 4. The Fagans bear the burden of showing by a preponderance of the evidence, that their claim is payable and that the amount sought is reasonable. See A.A.C R2-19-119. 5. A preponderance of the evidence is “evidence which is of greater weight or more convincing than 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 at page 1182 (6th ed. 1990). 6. In this case, the uncontested evidence shows that the Fagans were damaged by Respondent’s failure to pay the sum of $2,895.00 to Trim Out, Inc. and Respondent’s failure to pay the sum of $3,740.00 to Sunland Distributors Inc. and by Respondent not correcting the disturbance of the termiticide as set forth above. 7. The weight of the evidence of record established that the amount the Fagans are seeking from the Consumer Recovery Fund to reimburse them for the damages caused by Respondent is a reasonable amount. 8. The Fagans met their burden of proving by a preponderance of the evidence that they are entitled to the sum of $6,910.00 from the Department’s Consumer Recovery Fund for actual and compensatory damages caused by Respondent. ORDER Based on the above, on the effective date of the Order entered in this matter the Department shall commence and finalize payment to the Fagans in the amount of $6,910.00 from the Consumer Recovery Fund and, pursuant to A.R.S. § 41-2190(D), Respondent’s license is suspended on the effective date of the Order entered in this matter until the full amount of the pay-out with 10% interest per year is reimbursed to the Consumer Recovery Fund. Done this day, February 26, 2009.

______________________________________ Lewis D. Kowal Administrative Law Judge

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

Department of Building and Fire Safety - LTA Robert Barger, Director 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