ALJDEC decisions subject to certification as final: to cjv on 5-24/ka

12F-A1212005-BFS · Department of Fire Building and Life Safety · 2012-05-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: Convened and concluded on May 16, 2012. APPEARANCES: Appellant Michael P. Hunyadi (“Appellant”) appeared telephonically, representing himself. Sam Baird, General Manager, represented Respondent CMH Manufacturing West, Inc. (“CMH”). ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn _____________________________________________________________________ On appeal from the decision to close Appellant’s complaint based on the statutory time limitation, the Appellant did not demonstrate any exceptions to the time limitation. Therefore, it is recommended that Appellant’s appeal be denied and dismissed in its entirety. FINDINGS OF FACT 1. In December 2007, Appellant purchased a mobile home from mobile home dealer Kingman Quality Homes, LLC, ("Kingman"); the home was manufactured by Clayton Homes, Inc., ("Clayton"). The home was installed on February 1, 2008.[1] 2. On February 8, 2012, the Department of Fire, Building and Life Safety ("FBLS") received a written complaint from Appellant regarding “roof tiles” (i.e., shingles); the complaint is dated February 6, 2012. In the complaint, Appellant stated that, after a shingle had blown off and Aloha Roofing (“Aloha”) had come to make a repair in January 2012, Aloha had informed him that the roof was installed incorrectly by the manufacturer because it was “not nailed in seams of tiles.”[2] Appellant also complained that the roofing that had been installed was the “incorrect” roofing for the windspeeds that exist in the locale. Appellant complained that the “GAF” roofing was guaranteed for ten years and that it was only four years old. Appellant indicated that, when the FBLS Inspector had come out,[3] the Inspector had been told the roof was fixed, but that this was not the case, and Appellant’s complaint requested that there be an inspection. Appellant argued that the manufacturer “must give me the proper roof installed correctly.” 3. FBLS requested that the manufacturer, CMH, respond to the complaint.[4] On February 22, 2012, FBLS received an undated response from Schult Homes of Buckeye (“Schult”), indicating that it had built the home according to the U.S. Department of Housing and Urban Development (“HUD”) code for the area in which the home was located, within wind zone 1, and that it had used a 20lb. roof load material.[5] Schult Homes also indicated to FBLS that it would send someone out to inspect the roofing issue. 4. Gene Kostrzewski, from Schult, inspected the roof on February 24, 2012.[6] On March 6, 2012, FBLS received an undated letter from Mr. Kostrzewski, which stated that there were no defects or nonconformance issues with the roof, but that there was evidence of wind damage and the repairer Appellant had hired had nailed through the shingles in two areas.[7] Mr. Kostrzewski further indicated that the home was now out of warranty and he requested that the case be closed. 5. Following the February 2012 Schult inspection, Appellant wrote to FBLS stating that Mr. Kostrzewski had admitted that the shingles were not nailed in the seam, but had told him that it did not matter.[8] Appellant argued that Schult was not to be believed and argued that the “professional roofer who said the improper installation being one problem is correct.” Appellant further argued that, no matter the “shingle laws,” the shingles on his roof were not the proper shingles for the wind speed in his locale. Appellant argued that Kingman had given him the wrong shingles “to save themselves money” and that Kingman had been to his home three times in the first year and had nailed the shingles down, ruining the roof.

6. By letter dated March 7, 2012, FBLS notified Appellant that FBLS did not have the authority to intervene in this matter. FBLS informed Appellant that A.R.S. § 41-2182.04(D) required that complaints regarding (a) failures to repair or replace items within a warranty period or (b) repairs not in compliance with adopted codes or workmanship standards, must have been filed within the 12-month period specified in A.R.S. § 41- 2153(9). 7. FBLS received Appellant’s appeal on March 14, 2012. Appellant argued that the roof was the wrong type of roof for the location, that the roof was not installed correctly by Clayton, and that the shingles were nailed incorrectly (during repair) by Kingman. Appellant also raised concerns about a door and a washing machine. These concerns were raised in a prior complaint to FBLS, but they were not mentioned in Appellant’s February 6, 2012 complaint. 8. In response to the appeal, FBLS issued a Notice of Hearing, setting an administrative hearing with the Office of Administrative Hearings, an independent State agency that is authorized to conduct hearings in contested matters arising out of State regulation. 9. At the hearing, Appellant argued that his complaint should be allowed because the roof was installed with a warranty and the incorrect installation and the incorrect repairs were done within the warranty period. Appellant argued that the roof should have been repaired properly within the warranty period. Appellant argued that he could not have brought this complaint before this year because he only found out in January 2012 about the incorrect installation by CMH and incorrect repairs by Kingman.[9] Appellant argued that the FBLS Inspector had not gone up onto the roof but had simply trusted the word of the Kingman workers that the roof was repaired.[10] Appellant argued that Kingman ruined his roof during the warranty period by nailing the shingles to make the repair(s). Appellant argued that no one other than Kingman (in May 2008) and Oasis (in January 2012) had ever repaired the roof. 10. Appellant argued that because Kingman had done the incorrect repairs but had since filed bankruptcy, CMH should now be responsible for fixing the roof problems. 11. At hearing, CMH argued that the case should be dismissed because the complaint raised the same issues that had been raised in the prior complaint, which was dismissed through an administrative hearing, and because the February 2012 complaint was untimely. CMH argued that Mr. Kostrzewski found no defects in the roof, only wind damage, and that whichever company Appellant had called to repair the wind damage had likely performed the repairs of which Appellant now complains. 12. Although, the hearing record contains multiple references to, but inconsistent dates regarding, a previous complaint and its associated process, that previous complaint is not a part of this record and is not being reconsidered in this matter. The dates associated with the previous complaint were not clearly specified during this matter, with the exception that Appellant included with the February 2012 complaint a copy of a May 14, 2008 repair statement and included with his March 2012 appeal copies of three repair statements from 2008: March 19, 2008; May 14, 2008; and, May 15, 2008.[11] During the hearing, Appellant sometimes referred to 2007 dates; however, those date references were likely erroneous, based on the purchase date of the home and the installation date of the home that Appellant had designated on this complaint, which were December 7, 2007 and February 1, 2008, respectively. 13. The Administrative Record contains a copy of a March 3, 2009 Administrative Law Judge Decision in Docket No. 08F-A0890003-BFS as well as a copy of a FBLS Final Order dated March 24, 2009.[12] Additionally, the Administrative Record contains a copy of a FBLS Order Denying Request for Review or Rehearing dated September 2, 2009. CONCLUSIONS OF LAW 1. This administrative hearing was held under authority of and pursuant to A.R.S. § 41-2153(B)(9) and A.R.S. § 41-2181. According to A.R.S. § 41-2181, the Department of Fire, Building and Life Safety is empowered to revoke or suspend the license of any licensed manufacturer, dealer, broker, salesperson or installer for any violation of A.R.S. § 41- 2186. The statute provides that it is a violation subject to disciplinary action for a licensee to fail to provide all agreed-upon goods and services or to fail to manufacture or install in a workmanlike manner all subassemblies, units and accessory structures. A.R.S. § 41-2186(19) and (20). 2. Complaints filed with the Department of Fire, Building and Life Safety are limited by statute to a time period that is generally no longer than one year from the date of installation of the home. See A.R.S. §§ 41- 2181, 41-2182.04 and 41-2153(9). Installation is defined by A.R.S. § 41- 2142(18) to include three activities, the first of which is connection of the home to the on-site utility terminals or repairing the utility connections and the second of which is placing the home on foundation systems or repairing the foundation systems.[13] Thus, the Administrative Law Judge concludes that the one-year time period began to run from the February 1, 2008 placement and connection of Appellant’s home. 3. The burden of proof at an administrative hearing is generally upon the Appellant. Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). Further, the standard of proof at hearing is a “preponderance of the evidence”. Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). 4. In this case, the Appellant failed to establish that his February 6, 2012 written complaint was filed within the statutory one-year time period from installation as set forth in A.R.S. §§ 41-2182.04(D) and 41-2153(9). Appellant offered no legal support for any known exception to the one-year limitation period. Therefore, the Administrative Law Judge concludes that there is no basis for a finding that Appellant’s February 6, 2012 complaint was timely or that it should be allowed. Consequently, Appellant’s appeal should be denied and Appellant’s February 6, 2012 complaint should be dismissed in its entirety. RECOMMENDED DECISION IT IS ORDERED that Appellant’s appeal shall be denied and Appellant’s untimely complaint shall be dismissed in its entirety. Done this day, June 5, 2012.

/s/ Kay A. Abramsohn Administrative Law Judge

Transmitted electronically to:

Gene Palma, Director Department of Fire, Building and Life Safety ----------------------- [1] See Administrative Record, Appellant’s February 6, 2012 complaint. [2] However, at hearing, Appellant testified that “Oasis Roofing” was the roofing company that had told him the roofing was installed incorrectly. On April 30, 2012, the Tribunal received from Appellant some pre-hearing documents; these documents include a copy of a January 24, 2012 repair statement from Aloha Specialty Roofing. [3] The date of such inspection was not specified in the complaint. A FBLS inspector had been out to the home, after its installation, due to a previous complaint. [4] See Administrative Record. Clayton Homes had become Schult Homes; however, the company is now known as CMH Manufacturing West, Inc. [5] See Administrative Record. [6] See Administrative Record, Appellant’s letter dated February 27, 2012.

[7] Mr. Kostrzewski’s letter noted that a similar complaint from Appellant had been heard and dismissed. Mr. Kostrzewski included copies of some documents from a prior matter. [8] See Administrative Record, Appellant’s letter dated February 27, 2012.

[9] Appellant did acknowledge that the first time he had any problem with the roof since the 2008 repairs was this year. [10] At hearing, Appellant first stated October 2007, then immediately corrected himself and stated 2008, but then again immediately corrected himself, stating 2007. However, based on the hearing record, the date of the FBLS inspection appears to have been in October of 2008, after the May 2008 repairs and due to the filing of a complaint with FBLS. [11] The May 14, 2008 repair statement indicates that the repair was the nailing down of 22 shingles. On April 30, 2012, the Tribunal received from Appellant some pre-hearing documents that also contain a copy of an April 17, 2008 repair statement. [12] Schult had included this information with its March 6, 2012 response, to FBLS, to the current complaint. [13] The third parameter of “installation” is providing ground anchoring for the home or repairing the ground anchoring.

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