ALJDEC decisions subject to certification as final

12F-A1212006-BFS · Department of Fire Building and Life Safety · 2012-08-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 8, 2012 APPEARANCES: Joseph and Christina Pace appeared personally. Desert Sky Mobile Home Service, L.L.C. was represented by its authorized representative, Roger Geiger. Palm Harbor Homes, Inc. and Cal-Am Properties, Inc., doing business as Cal-Am Homes, did not appear. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order: FINDINGS OF FACT 1. On or about August 10, 2008, Joseph and Christina Pace (“Appellants”) purchased a manufactured home from Cal-Am Properties, Inc, doing business as Cal-Am Homes (“Cal-Am”). Appellants’ home was manufactured by Palm Harbor Homes, Inc. (“Palm Harbor”). 2. On or about August 21, 2008, Appellants’ home was installed by Desert Sky Mobile Home Service, L.L.C. (“Desert Sky”). 3. On May 3, 2012, Appellants filed a consumer complaint with the Arizona Department of Fire, Building and Life Safety (“Department”) against Palm Harbor, Cal-Am, and Desert Sky alleging deficiencies in their home. 4. By letter dated May 22, 2012, the Department informed Appellants that their consumer complaint was filed well beyond the one-year statutory limitation and, therefore, the Department could not assist them. In support of the Department’s decision, the letter cited the applicable statutes of limitation. 5. By letter dated June 2, 2012, Appellants appealed the Department’s decision. The issue at hearing is whether Appellants’ consumer complaint is time-barred. 6. The Department forwarded this matter to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 7. On June 29, 2012, the Department issued a Notice of Hearing that advised the parties of the time, date, and location of the formal hearing. The Notice of Hearing was sent to the parties at their respective addresses with the Department. 8. The commencement of the scheduled hearing was delayed 15 minutes to allow for the late arrival of authorized representatives for Palm Harbor and Cal-Am. After the delay, the Administrative Law Judge conducted the hearing in their absences. 9. The evidence of record established that Appellants’ consumer complaint was filed with the Department more than three years from the date of the original installation of Appellants’ home. Therefore, Appellants’ consumer complaint is time-barred with respect to the Department’s jurisdiction to discipline Palm Harbor, Cal-Am, or Desert Sky in this matter. CONCLUSIONS OF LAW 1. The issue in this matter is whether the Arizona State Legislature has granted the Department jurisdiction to consider the Appellants’ consumer complaint. 2. It was not disputed that Appellants filed their consumer complaint 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 extends it more than three years from the purchase date or the installation date, whichever is later. A.R.S. § 41-2182.04 allows 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 instant consumer 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 Appellants’ consumer complaint was not filed within the time periods allowed by the applicable law. Therefore, the Department does not have jurisdiction to consider Appellants’ concerns. This opinion does not concern any other legal avenues that may be available to Appellants and it makes no representations as to Appellants’ options outside of the consumer complaint process offered by the Department. However, based on the evidence and the applicable law, Appellants’ consumer 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 Appellants’ consumer 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, August 27, 2012.

/s/ Brian Brendan Tully 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