ALJDEC decisions subject to certification as final

12F-A1212001-BFS · Department of Fire Building and Life Safety · 2012-03-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 28, 2012

APPEARANCES: William Nickens, Petitioner; Barbara Holloway, Champion Home Builders, Inc. representative; Jose Pena, J.P. Mobile Home Installer L.C. representative; Melody Quigley, Daniel Leonesio, and Roger Buzick, witnesses

ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang _____________________________________________________________________ Having heard the evidence and testimony presented in this matter and having read and considered the record in this matter, the undersigned Administrative Law Judge hereby makes the following Findings of Fact and Conclusions of Law and issues the following Recommended Decision to the Director of the Department of Fire, Building and Life Safety. FINDINGS OF FACT 1. Petitioner purchased a home built by Champion Home Builders, Inc., through Champion Home Center of Gila Valley in 2007 or 2008. J. P. Mobile Home Installer L.C. installed the home between April and September 2008, and re-leveled it around February or March 2009. 2. After trying to have some items of complaint fixed through the Respondents, Petitioner filed a complaint with the Department of Fire, Building and Life Safety (“the Department”) on October 6 or 7, 2011. He did not file the complaint earlier because he did not know about the availability of the complaint process through the Department until about May of 2011. 3. On December 13, 2011, the Department issued a letter to Petitioner informing him that the Department was unable to assist him. In support of the Department’s decision, the letter cited the applicable statutes of limitation and the fact that the dealer and installer are no longer licensed by the Department. 4. Petitioner appealed. The issue at hearing was whether Petitioner’s complaint is time-barred. CONCLUSIONS OF LAW 1. The issue in this matter is whether the Arizona State Legislature has granted the Department jurisdiction to consider the Petitioner’s complaint. 2. It was not disputed that Petitioner filed his complaint a little over three years from the latter of the purchase date and installation date. 3. None of the applicable statutes that confer jurisdiction on the Department extend it more than three years from the purchase date or the installation date, whichever is later. A.R.S. § 41-2182.04 allows 12 months from the later date by reference to A.R.S. § 41-2153(B)(9). A.R.S. § 41-2179(E) requires that claims against the licensee’s surety or cash bond be initiated within two years; in the case of an oral agreement, that may be extended to three years. See A.R.S. § 12-543. In cases of fraud or mistake (regarding the terms of an oral contract), the time limit might arguably be extended, but no fraud, mistake or oral contract was alleged in the Petitioner’s complaint. Finally, claims to the Department’s Recovery Fund must be filed within two years of the later date. A.R.S. § 41- 2190(J). Time limits for filing cosmetic complaints are even shorter. A.R.S. §§ 41- 2182.01, 41-2182.02. 4. Based on the evidence in this matter, the Petitioner’s complaint was not filed within the time periods allowed by the applicable law. Therefore, the Department does not have jurisdiction to consider the Petitioner’s concerns. This opinion does not concern any other legal avenues that may be available to the Petitioner and it makes no representations as to Petitioner’s options outside of the complaint process offered by the Department. However, based on the evidence and the applicable law, Petitioner’s complaint must be dismissed by the Department for lack of jurisdiction. RECOMMENDED DECISION Based upon the foregoing considerations, the undersigned Administrative Law Judge hereby recommends that the Petitioner’s complaint be dismissed as untimely.

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 the date of certification. Done this day, March 2, 2012.

/s/ Dorinda M. Lang 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