ALJDEC decisions subject to certification as final

08F-R089026-BFS · Department of Fire Building and Life Safety · 2008-11-24

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 24, 2008 APPEARANCES: Complainants appeared on their own behalf; Respondent failed to appear. ADMINISTRATIVE LAW JUDGE: Michael G. Wales _____________________________________________________________________ The administrative hearing of this matter was held in the Office of Administrative Hearings, Phoenix, on November 24, 2008, at 1:30 p.m. 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 House Mart Factory Outlet, LLC was, at all times material hereto, a licensed retailer of manufactured homes in the State of Arizona, holding a Class D-8 License, No. 7731. 2. Complainants, Larry and Cathie Romine, filed this action seeking recovery from the Consumer Recovery Fund in the amount of $74,446.00. 3. Complainants purchased a manufactured home from Respondent pursuant to written sales agreement in January, 2008. Respondent was paid $95,880.16 by Complainants’ lender, and $7,072.40 by Complainants, for the home.

4. On August 26, 2008, the Department of Fire, Building and Life Safety (“Department”) notified Complainants that Respondent was out of business. The Department also notified Complainants that R.W.G. Enterprises, Inc., (“RWG”) a wholesaler of manufactured homes which, pursuant to contract with Respondent, had paid the manufacturer for the home, had not been paid by Respondent and was withholding the Manufacturer’s Statement of Origin from Complainants until RWG was paid its costs of $74,446.00. 5. On September 4, 2008, Complainants filed a Complainant and a Consumer Recovery Fund Claim Form with the Department and, on October 6, 2008, the Department verified the complaint as follows: “ 1) Floyd Pirak of R.W.G. Enterprises, Inc. informed me that House Mart was no longer in business and House Mart, Randy Quesenberry, didn’t pay for our home and that R.W.G. Enterprises did pay and that R.W.G. Enterprises holds the MCOs on our home. VERIFIED. DEALER TO CORRECT.”

6. The evidence of record supports the contention that as a direct and proximate result of Respondent’s failure to pay the $74,446.00 cost of Complainants' home to either the manufacturer of Complainants’ home, or to wholesaler R.W.G. Enterprises, Inc., Complainants have incurred the cost of $74,446.00 to obtain the Manufacturer’s Statements of Origin necessary for the home to be titled. The $74,446.00 sought is a reasonable and necessary amount to obtain the Manufacturer’s Statements of Origin for the home to be titled.

CONCLUSIONS OF LAW 1. This administrative hearing was held under authority of and pursuant to A.R.S. §§41-2190.C. and A.R.S. 41-1092. 2. The preponderance of evidence at the administrative hearing proved that Complainants suffered monetary damages resulting from Respondent’s failure to pay the $74,446.00 cost of Complainants home, said monetary damages which are compensable within the statutory scheme of the Consumer Recovery Fund, set forth in A.R.S. § 41-2190, et. sec., in the amount of $74,446.00.

RECOMMENDED ORDER In view of the foregoing findings of Fact and Conclusions of Law it is hereby ordered that the Department of Fire, Building and Life Safety, Office of Manufactured Housing, commence and finalize payment to Complainants from the Consumer Recovery Fund in the amount of $74,446.00 in damages. It is further ordered, in accordance with A.R.S. § 41-2190.D, that the Respondent’s Class D-8 License, No. 7731, be suspended until the licensee has repaid in full, plus interest at the rate of ten per cent per year, the amount paid from the Consumer Recovery Fund on the licensee’s account.

Done this day, November 24, 2008.

Office of Administrative Hearings

__________________________ Michael G. Wales 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 ___________________________ -----------------------

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