ALJDEC decisions subject to certification as final

11F-R1112001-BFS · Department of Fire Building and Life Safety · 2011-11-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 16, 2011, at 8:00 a.m. APPEARANCES: The Complainants appeared through Blanca Cruz. The Respondent 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. The Respondent is the holder of a Class D-12 (No. 8203) License issued by the Department of Fire, Building and Life Safety. 2. The Complainants purchased a manufactured home from the Respondent, Castle Homes Inc. There was no dispute that the manufactured home was installed on January 15, 2011. 3. There was no dispute that the Complainants’ sales contract included delivery, set-up, utility hook-ups, and skirting. (See file.) 4. The Complainants filed a complaint against the Respondent with the Department of Fire, Building and Life Safety, which the Department verified regarding Complaint Item Nos. 1a, 1b, 2, 3, 4a, 4b, 6b, 8, 9,10a, 10b,13,14,15,16,17, 18c, 18d, 18e, 18f, 18g and18h. 5. On August 18, 2011, the Department issued a letter to the Complainants advising them that “Due to the fact that the dealer, Castle Homes inc. is no longer in operation, the only recourse you appear to have is to file against the Consumer Recovery Fund”. 6. The Complainants then filed a claim with the Department of Fire, Building and Life Safety’s Consumer Recovery Fund. 7. The Complainants 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. 8. The Complainants are requesting reimbursement of $5,423.80 that they were required to pay a properly licensed roofing contractor for corrective work on their roof. 9. There was no dispute that Item Nos. 1a, 1b and 2 of the Verified Complaint necessitated proper corrective action on the Complainants’ roof. 10. The Complainants also are requesting payment in the total amount of $10,211.85 for necessary corrective action on Item Nos. 3, 4a, 4b, 6b, 8, 9, 10a, 10b, 13, 14, 15, 16, 17, 18c, 18d, 18e, 18f, 18g and 18h of the Verified Complaint. 11. Credible testimony and evidence, presented at hearing, established that the sum of $10, 211.85, is a reasonable and justifiable amount for the proper correction of the items set forth in the Verified Complaint. 12. Credible testimony and evidence, presented at hearing, established that the submitted bids for proper correction of the items set forth in the Verified Complaint were prepared by properly license contractors. 13. The Complainants are found to be entitled to payment from the Consumer Recovery Fund in the total sum of $15, 635.65 (consisting of $5,423.80 for the correction of their roof as per Item Nos. 1a, 1b and 2 of the Verified Complaint and the sum of $10,211.85 for the proper correction of the remaining items set forth in the Verified Complaint) for their actual damages in this matter. CONCLUSIONS OF LAW 1. This administrative hearing was held under authority of and pursuant to A.R.S. §§ 41-1092 et seq. 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. A.R.S. § 41-2190(A) states as follows:

If any consumer who is buying or selling the consumer’s home uses the services of a licensed dealer or broker of manufactured homes, 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 licensed 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 recovery fund. The claim shall be verified by the office.

4. The Consumer Recovery Fund is required to award a pay-out to claimants in 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. In addition, 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). 5. 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 (D). 6. Credible testimony and evidence supported findings which establish that the Complainants paid $5,423.80 to have their roof properly corrected as per the Verified Complaint and that the sum of $10,211.85 is necessary to pay for the proper correction of the remaining items of the Verified Complaint, in accordance with A.R.S. § 41-2190 (A), Complainants are entitled to payment from the Consumer Recovery Fund in the total amount of $15,635.65 for their actual damages in this matter. RECOMMENDED ORDER Based upon the foregoing considerations, the undersigned Administrative Law Judge hereby finds that the amount owing to the Complainants from the Consumer Recovery Fund is $15, 635.65. Additionally, it is ordered that the Respondent’s license shall 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. The 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. In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order is five days from the date of the certification by the Director of the Office of Administrative Hearings. Done this day, November 16, 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