ALJDEC decisions subject to certification as final

11F-A1112002-BFS · Department of Fire Building and Life Safety · 2012-01-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 12, 2012, at 8:00 a.m. APPEARANCES: The Complainant appeared on his own behalf. Respondent JK & K Services LLC (“JK&K”) appeared through its authorized representative, James Kirts. Respondent 5 Star Manufactured Home Installations LLC (“5 Star”) appeared through its authorized representative, Mike Gaudette. Respondent Castle Homes Inc. (“Castle”), 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. Credible testimony and evidence established that the Complainant purchased the manufactured residence at issue on May 13, 2008. 2. There was no dispute that Respondent Castle was responsible for arranging for the required Cochise County permit, the delivery of the new home to the installation site, and the installation of the manufactured residence, including all site improvements. 3. There was no dispute that the Complainant’s manufactured residence was installed at 1907 E. via Ocotillo, Douglas, Arizona on June 18, 2008. 4. There was no dispute that Respondent 5 Star was the installer of the manufactured residence. 5. There was no dispute that Respondent JK&K was responsible for the construction of the block stem wall for the residence. 6. Credible testimony and evidence established that B & M Excavating and Hauling Inc. (“B&M”) was contracted to perform all excavation and site preparation for the Complainant’s residence. 7. There was no dispute that the installation of the Complainant’s residence was inspected by the local building authority on July 7, 2008, and that all work passed inspection. 8. Undisputed credible testimony and evidence established that the Complainant filed the Complaint at issue with the Department on June 28, 2011. 9. The Department then issued written notification of the Complaint to all of the Respondents. 10. All Respondents other than Castle filed a written response. 11. Credible testimony and evidence established that Castle is no longer functioning as a business entity. 12. The Department conducted a Verification Inspection of the Complainant’s residence on August 10, 2011, and on August 18, 2011, issued its written findings to all of the parties. 13. Undisputed credible testimony and evidence established that portions of the Complainant’s Complaint were verified that the Respondent’s residence has suffered problems associated with the settling of the residence. 14. On September 15, 2011, the Department issued the parties a written determination that, after review, the Department was unable to provide any further assistance to the Complainant on the basis that the Complaint at issue had been filed beyond the time period provided by applicable statute. 15. The Complainant disagreed with the Department’s determination and requested and administrative hearing. 16. The credible testimony and evidence of record is insufficient and fails to support a finding that the Complainant filed the Complaint at issue within twelve (12) months of the date the Complainant’s manufactured residence was installed. CONCLUSIONS OF LAW 1. The Complainant bears the burden of proof and the standard of proof on all issues is by a preponderance of the evidence. A.A.C. R2-19-119. 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. Credible testimony and evidence supported findings which establish that the Complaint at issue was filed with the Department nearly three (3) years after the Complainant’s manufactured residence was installed. 4. Pursuant to A.R.S. § 41-2182.04 (D) a consumer may file a complaint with the Office of Manufactured Housing for non cosmetic matters if the complaint is filed within the twelve (12) month period prescribed by A.R.S. § 41-2153 (B) (9). 5. A.R.S. § 41-2153 (B) (9) provides as follows: B. The deputy director shall: 9. Verify written complaints filed with the office by purchasers within one year from the date of purchase or installation of units. Complaints shall be accepted from consumers which allege violations by any dealer, broker, salesperson, installer or manufacturer of this chapter or the rules adopted pursuant to this chapter. 6. The Complainant’s failure to provide any credible evidence in support of his contention that the Complaint at issue was filed with the Department within the twelve (12) months provided by statute warrants the dismissal of the matter at issue. RECOMMENDed order In view of the foregoing, it is recommended that the Department’s determination be affirmed and that 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, January 26, 2012. /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