ALJDEC decisions subject to certification as final

11F-A1112001-BFS · Department of Fire Building and Life Safety · 2011-11-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 14, 2011, at 8:00 a.m. APPEARANCES: The Petitioner appeared on his own behalf. New CHB INCL (FN) dba Champion Home Builders Inc. (“Champion Home”) appeared through its authorized representative, Barbara Holloway. Alta Cima Corp., dba Factory Expo Home Center (“Home Center”) appeared through its authorized representative, Ly Sarsam. Lyon & Son Mobile Home Service Inc., (“Lyon”) failed to appear. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

Evidence and testimony were presented, and the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT 1. On September 8, 2011, the Petitioner disputed the assigned agency Inspector’s determination not to verify item numbers 1, 2, 3, 4, 5, 6, and 8 of the Complaint at issue. 2. On September 8, 2011, the Petitioner then filed an appeal of the Verified Complaint & Sign-Off Form for item numbers 1, 2, 3, 4, 5, 6, and 8, which were not verified by the assigned agency inspector as being in need of correction or remediation. 3. Credible testimony and evidence established that the manufacturer, Champion Home, properly corrected the unsatisfactory installation of the soffits vent in full satisfaction of item number 9 of the Verified Complaint. 4. The Petitioner asserts that he was defrauded by the manufacturer in that the proper amount of insulation could not have been installed in the attic area of his residence. 5. There was no dispute that the Petitioner paid an additional $298.99 for the R-40 insulation package for his residence. 6. Credible testimony and evidence established that Champion Home installed the R-40 insulation package in the Petitioner’s residence in accordance with all applicable workmanship and industry standards. 7. There was no dispute that when the Petitioner expressed his dissatisfaction with the amount of insulation in the roof of his new residence, Respondent Champion Home returned the additional money that the Petitioner had paid for the installation of additional insulating material in the attic of residence. 8. There was no dispute that the Petitioner accepted and cashed the check from Champion Home for the sum of $298.99 but refused to sign a release form and continued with his appeal of the Verified Complaint. 9. The credible evidence of record is insufficient and fails to support a finding that item numbers 1, 2, 3, 4, 5, 6, and 8 of the Verified Complaint require corrective action by any of the named Respondents in this matter. 10. Credible testimony and evidence established that Respondent Champion Home has fully complied with the terms of the Verified Complaint issued in this matter.

CONCLUSIONS OF LAW 1. The Petitioner has the burden of demonstrating by a preponderance of the evidence that item numbers 1, 2, 3, 4, 5, 6, and 8 of the Verified Complaint required corrective action by any of the named Respondents in this matter. See Culpepper v. State of Arizona, 187 Ariz. 431, 437-38, 930 P.2d 508 (Ariz. App. 1996). 2. Proof by “preponderance of the evidence” means that it is sufficient to persuade the finder of fact that the proposition is “more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). It “is evidence 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 (rev. 6th ed. 1990). 3. The Petitioner failed to sustain his burden of proof to establish that item numbers 1, 2, 3, 4, 5, 6 and 8 of the Verified Complaint required any corrective action by any of the named Respondents in this matter. RECOMMENDed order In view of the foregoing, it is recommended this matter be dismissed. In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be 40 days from the date of the certification. Done this day, November 29, 2011.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

Gene Palma, Director Department of Fire Building and Life Safety -----------------------

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