ALJDEC decisions subject to certification as final

08F-R089020-BFS · Department of Fire Building and Life Safety · 2008-11-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 10, 2008 APPEARANCES: Robert D. Wheeler, Complainant ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang _____________________________________________________________________ Robert Wheeler, the Complainant, contracted to purchase a manufactured home through Respondent, Advantage Manufactured Homes, Inc. Following a complaint in which the Complainant ultimately established that his porch should be replaced and in which the Respondent’s license was revoked, Complainant filed a Consumer Recovery Fund claim with the Department of Fire, Building and Life Safety. The evidence at hearing established that Respondent’s failure to perform the sales agreement was a violation of A.R.S. § 41-2190(B) entitling the Complainant to reimbursement for his damages from the Department of Fire, Building and Life Safety’s Consumer Recovery Fund. The evidence also established that Complainant’s damages totaled $11,442.88. In accordance with A.R.S. § 41-2190(D), it is ordered that Complainant be issued a pay-out from the fund in the amount of $11,442.88 and that Respondent’s license be suspended until that amount plus 10% interest per year is repaid in full to the fund on behalf of Respondent’s account. Respondent is also hereby notified that the Department of Fire, Building and Life Safety’s Consumer Recovery Fund now has a claim against it for all of the Department’s costs, necessary expenses and reasonable attorney’s fees incurred as a result of this matter.

FINDINGS OF FACT 1. In December 2005, Robert Wheeler, the Complainant, entered into a contract with Advantage Manufactured Homes, Inc. (“Advantage”), the Respondent, to purchase a manufactured home. The home was installed in April or May 2006 and Complainant moved into the home in September 2006, but some contract items were not completed. Advantage subsequently lost its license with the Department of Fire, Building and Life Safety (“the Department”) and did not complete the agreed-upon items. 2. Complainant filed a complaint with the Department regarding several items in January 2008. After inspecting the property, a Department inspector did not verify the portion of Complainant’s complaint in which he submitted that the contracted concrete entry at the front door with an awning was not installed. Complainant appealed that finding and, following a hearing, Administrative Law Judge Eric Bryant found that the item should have been verified. He also recommended that Advantage’s dealer’s license be revoked. On August 6, 2008, Judge Bryant’s recommendation was certified as final, making it the final agency decision in the matter. 3. Since Advantage’s license was revoked, Complainant filed a claim with the Department’s Consumer Recovery Fund. He appeared at hearing and relayed the facts of the situation. Although notice of the hearing was sent to the Respondent’s address of record, no one appeared on its behalf. Complainant is requesting a pay-out of $13,282.50 from the fund. 4. Complainant submitted three bids from contractors for the proper completion of the porch, one for $13,282.50, one for $11,442.88, and one for $14,688.70. Complainant explained that he requested a pay-out of $13,282.50 because he wants to hire the contractor who has helped him with this problem. CONCLUSIONS OF LAW 1. This administrative hearing was held under authority of and pursuant to A.R.S. §§ 41-1092 and 41-2190(C). 2. Subject-matter jurisdiction vests in the Department of Fire, Building and Life Safety under authority of A.R.S. §§ 41-2188 and 41-2190. 3. Pursuant to A.R.S. § 41-2190(A), “[i]f any consumer who is buying or selling the consumer’s home uses the services of a licensed dealer or broker of manufactured home, mobile homes or factory-built buildings designed for use as residential buildings and is damaged as a result of an act or omission by a license dealer or broker of manufactured homes, mobile homes or factory-built buildings designed for use as residential buildings which constitutes a violation of § 41-2180, or rules adopted pursuant to that section, that consumer may file a claim with the office (the Office of Manufactured Housing under the Department of Fire, Building and Life Safety) for payment from the consumer recover fund. The claim shall be verified by the office.” (Clarification added.) 4. Pursuant to A.R.S. § 41-2190(B), “[i]f any consumer of manufactured homes, mobile homes or factory-built buildings designed for use as residential buildings is damaged by the failure of a principal to perform the sales agreement or to perform repairs under a warranty, the consumer may file a claim with the office for payment from the consumer recovery fund. The claim shall be verified by the office.” 5. The fund shall pay for the damages in accordance with the amount found owing by the Administrative Law Judge, and the decision shall include an order suspending the license of the account against whom the claim was filed. The license shall remain on suspension until the licensee has repaid in full, plus 10% interest per year, all of the amount paid on its account from the fund. A.R.S. § 41-2190(D). The Consumer Recovery Fund also has a claim against the licensee for all costs, necessary expenses and reasonable attorney fees incurred by it on the licensee’s account. A.R.S. § 41-2190(G). 6. “Recovery from the consumer recovery fund is limited to actual or compensatory damages, including costs but excluding interest or attorney fees.” A.R.S. § 41-2188(B). 7. Complainant established that he suffered $11,442.88 in damages due to the failure of Respondent to perform the sales agreement. Although Complainant may prefer to hire another contractor, he offered no legal basis for ordering the higher pay-out. Therefore, in accordance with A.R.S. § 41-2190(B) he is entitled to reimbursement from the fund in the amount of $11,442.88. DECISION Based upon the foregoing considerations, the undersigned Administrative Law Judge hereby finds that the amount owing from the Consumer Recovery Fund is $11.442.88. Additionally, it is ordered that Respondent’s license be suspended until the full amount of the pay-out with 10% interest per year is reimbursed to the fund on behalf of its account. Respondent is hereby notified that the Department of Fire, Building and Life Safety’s Consumer Recovery Fund now has a claim against it for the Department’s costs, necessary expenses and reasonable attorney’s fees incurred as a result of this matter. Done this day, November 25, 2008 OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Dorinda M. Lang 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 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826