ALJDEC decisions subject to certification as final

12F-R1212001-BFS · Department of Fire Building and Life Safety · 2012-05-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 30, 2012, at 8:00 a.m. APPEARANCES: Complainants appeared through Blanca Cruz. Respondent failed to appear. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Order are made: FINDINGS OF FACT 1. Respondent is the holder of License No. 8203, Class D-12, issued by the Department of Fire, Building and Life Safety. 2. Undisputed credible testimony and evidence established that Complainants purchased a manufactured residence from Respondent, and that the Complainants’ manufactured residence was installed on January 15, 2012. 3. There was no dispute that the HVAC system for Complainants’ manufactured residence failed to function, and that Complainants promptly notified Respondent of the problems with the HVAC system in their manufactured residence. 4. When Respondent failed to resolve the problems with the HVAC system, Complainants filed a formal complaint against Respondent with the Department of Fire, Building and Life Safety (“Department”). 5. Pursuant to the filing of the formal complaint, an assigned Agency Inspector performed an onsite inspection on December 21, 2011, and verified that the HVAC system in Complainants’ manufactured residence was not operational, and issued a Verified Complaint & Sign-Off Form requiring Respondent to properly correct Complainants’ HVAC system. 6. Undisputed credible testimony and evidence established that Respondent failed to respond to the Verified Complaint & Sign-Off Form, and that Complainants’ HVAC system is still inoperable. 7. On February 17, 2012, Complainants filed a Consumer Recovery Fund Claim Form with the Department seeking $6,406.00 from the Consumer Recovery Fund for Complainants’ claimed actual or compensatory damages in this matter. 8. At the hearing Complainants presented copies of two written estimates from licensed HVAC contractors for the proper correction of their HVAC system. 9. The lowest bid from a properly licensed contractor for proper correction of Complainants’ HVAC system was from G.R.A.S.P. Heating and Cooling Inc in the sum of $5,681.00. 10. Complainants testified that they were willing to accept the sum of $5,681.00, from the Consumer Protection Fund as payment in full for their actual damages in this matter. 11. Undisputed credible testimony and evidence established that the lowest bid from a properly licensed contractor in the sum of $5,681.00 for the proper correction of Complainants’ HVAC system is reasonable and justified under the circumstances. CONCLUSIONS OF LAW 1. Pursuant to A.R.S. § 41-2190(B), a manufactured home buyer may file a claim with the Consumer Recovery Fund for damages incurred by the failure of Respondent to perform a sales agreement or to perform repairs under a warranty. 2. Complainants are limited to payment from the Consumer Recovery Fund actual or compensatory damages, including costs but excluding interest or attorney fees. A.R.S. § 41-2188(D). 3. The Consumer Recovery Fund is required to pay for damages in accordance with the amount found owing by the Administrative Law Judge, and the decision issued by the Administrative Law Judge shall include an Order suspending the license of the account against whom the claim was filed. A.R.S. § 41-2190(D). That statute also provides that the license shall remain on suspension until the licensee has repaid in full, plus 10% interest per year, the amount paid on its account from the fund. 4. Complainants bear the burden of showing by a preponderance of the evidence, that the claim is payable and that the amounts sought are reasonable. See A.A.C R2-19-119. 5. A preponderance of the evidence is “evidence which is of greater weight or more convincing than 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 at page 1182 (6th ed. 1990). 6. In this case, the uncontested evidence shows that Complainants were damaged by Respondent’s failure to comply with the terms of the Verified Complaint & Sign Form issued in this matter. 7. Complainants met their burden and established by a preponderance of the evidence that they are entitled to $5,681.00 from the Department’s Consumer Recovery Fund for Complainants’ actual or compensatory damages in this matter. order In view of the foregoing, it is Ordered that the Department shall commence and finalize payment to Complainants in the amount of $5,681.00 from the Consumer Recovery Fund and, pursuant to A.R.S. § 41-2190(D), that License No. 8203, Class D-12 of Castle Homes, Inc., be suspended until the full amount of the pay-out with applicable statutory interest per year is fully reimbursed to the Consumer Recovery Fund. 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, May 9, 2012.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

Gene Palma, Director Department of Fire Building and Life Safety fety -----------------------

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