ALJDEC decisions subject to certification as final

13F-C1313019-BFS · Department of Fire Building and Life Safety · 2013-06-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 6, 2013, at 8:00 a.m. APPEARANCES: Frank Barone and Jane Brady (hereinafter “Complainants” or “Mr. Barone” or “Ms. Brady”) appeared through Frank Barone. Hancock Home Center LLC (hereinafter “Hancock”) appeared through its authorized representative, Erick Frederick Hancock. 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 Hancock is the holder of License No. 8415, Class D-12 issued by the Department of Fire, Building and Life Safety (hereinafter the “Department”). Complainants purchased a new manufactured home from Hancock on July 28, 2011. Complainants’ home was installed on September 9, 2011. The walk-through on Complainants’ home was performed on October 21, 2011. On or about April 18, 2012, Complainants filed a formal Complaint against Hancock with the Department alleging various workmanship issues with their new home. Pursuant to the filing of the formal Complaint, an assigned Department Inspector conducted an onsite inspection at Complainants’ home on or about May 14, 2012. The Department Inspector verified portions of the Complaint. On May 24, 2012, the Department served noticed, by first class mail, to Hancock that the verified portions of the Complaint were to be satisfied as specified by the Department. On or about November 7, 2012, the Department re-inspected Complainants’ residence to verify the status of previously reported items, and to inspect newly reported items. The Department verified sixteen items of the Complaint during the November 7, 2012, inspection. On or about February 20, 2013, the Department conducted an additional re- inspection of Complainants’ residence for item numbers 40, 74, 100, 105, 115, 117, 122, 125, 130, 157, 158, 159, 175, 176, 177, and 180 of the Complaint. The February 20, 2013, re-inspection of the sixteen items from the November 7, 2012 Inspection was limited to a confirmation as to whether the performance of the repairs performed by Hancock on Complainants’ home had properly satisfied the complaint items. The Department determined that Hancock had failed to satisfy item numbers and 180, as assigned to Hancock in the Verified Complaint & Sign-Off Form. On or about March 25, 2013, the Department issued a Citation and Complaint alleging that Hancock’s failure to satisfy item numbers 40[1] and 180[2] of the Verified Complaint & Sign-Off Form was in violation of A.R.S. §§ 41- 2153(B)(9), 41-2153(10), 41-2186(19), and 41-2186(20). The Notice of Hearing provided, in relevant part, as follows: On or about April 4, 2013, [Hancock] replied to the Citation and Complaint disputing the Department’s determination of items 40 and 180.

On or about April 19, 2013, Complainants filed their disagreement with regard to the adequate repair of item number 177,[3] which had been reported as “repaired by dealer,” on the attached Verified Complaint and Sign-Off Form.

Mr. Barone testified that one of Hancock’s employees damaged the linoleum in Complainants’ kitchen area by dragging a ladder across the floor. Mr. Barone stated that Hancock had not corrected the damaged linoleum despite the fact that it was listed as a verified item on the Verified Complaint and Sign-Off Form. Mr. Barone testified that the color of the touch-up paint applied to the exterior of his residence was not the same color as the exterior of his residence and that the exterior of Complainants’ residence appeared to be striped. Mr. Barone stated that the paint stripes on his residence had faded and were not as prominent as they were originally but were still very visible. Mr. Barone testified that Hancock had not corrected the unacceptable striping despite the fact that it was listed as a verified item on the Verified Complaint and Sign-Off Form. Mr. Barone testified that “since day one” Complainants’ roof has had problems with loose shingles. Mr. Barone acknowledged that Hancock had performed corrective work on his roof. Mr. Barone stated that shingles on his roof continue to lift despite Hancock’s repair attempts. Mr. Barone testified that one shingle was currently lifting on his roof. Mr. Barone stated that the shingles “keep coming off the roof whenever the wind blows.” Ms. Brady testified that she agreed with Mr. Barone’s testimony. Ms. Brady stated that she personally observed one of Hancock’s workers drag a ladder across her linoleum floor causing the scrape on the floor. Ms. Brady’s testimony that she personally observed one of Hancock’s workers inadvertently damage the linoleum in Complainants’ kitchen area is found to be credible. Eric Frederick Hancock (hereinafter “Mr. Hancock”) testified that the scrape on Complainants’ linoleum floor is approximately sixteen inches long. Mr. Hancock stated that the scrape on Complainants’ floor could not have been caused by one of Hancock’s workers because of the amount of time that it took Complainants to report the problem. Mr. Hancock testified that the scrape is very uniform from “one end to the other.” Mr. Hancock stated that the ladders used by Hancock’s workers have protective covers on them to keep damage from happening. Mr. Hancock testified that the scrape on the linoleum should not have been verified by the Department because the damage to the linoleum was not reported at the walk-through. Mr. Hancock stated that the damage to Complainants’ linoleum was a cosmetic issue that was not reported within one hundred and twenty days. Mr. Hancock testified that he believed that the touch-up paint applied to the exterior of Complainants’ residence would blend in over time. Mr. Hancock stated that the striping on the exterior of Complainants’ home is not obvious. Mr. Hancock testified that you have to “get up really close” to see the paint striping. Mr. Hancock testified that Hancock was willing to perform the directed corrective work on the exterior painting if it was provided reasonable access to Complainants’ residence. Mr. Hancock testified that Hancock had repeatedly tried to gain access to Complainants’ residence to correct the exterior painting on the residence. Mr. Hancock testified that Complainants had been “very difficult to deal with.” Mr. Hancock produced a recording[4] of two messages left on his telephone by Complainants. Both recorded messages were played at the hearing. The first recorded message consisted of a complaint about the residence being made by Ms. Brady with Mr. Barone yelling obscenities in the background. The second recording consisted of a complaint being made by Ms. Brady with Mr. Barone speaking obscenities in the background. Mr. Hancock testified that Complainants yelled at him at the jobsite and spoke to him on the telephone in the same manner as the recorded messages. Mr. Hancock stated that he was offended by Complainants’ behavior. Mr. Hancock’s testimony regarding Complainants’ behavior at the jobsite is found to be credible. Mr. Hancock testified that Hancock has had workers perform corrective work on Complainants’ roof more than five times and that Hancock had fully complied with verified Complaint and Sign-Off Form. Mr. Hancock stated that Hancock has checked nearly every shingle on Complainants’ roof. Mr. Hancock testified that Complainants live in a “high-wind” area and that the requirement for the performance of normal homeowner maintenance on the roof should be expected. Mr. Hancock testified that Complainants’ roof is in excellent condition. CONCLUSIONS OF LAW The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). The Department is reasonably presumed to have certain expertise, experience, and knowledge with respect to those matters the law provides it authority to inspect, since verification after inspection is a threshold determination by the assigned Department Inspector that then allows the Department to issue an appropriate order pursuant to A.R.S. § 41- 2153(B)(10). A.R.S. § 41-2153(B)(9) and (10) provides as follows: The deputy director shall: 9. Verify written complaints filed with the office by purchasers within one year from the date of purchase or installation of units. Complaints shall be accepted from consumers which allege violations by any dealer, broker, salesperson, installer or manufacturer of this chapter or the rules adopted pursuant to this chapter. 10. Upon verification of a complaint pursuant to paragraph 9 of this subsection, serve notice to the dealer, broker, salesperson, installer or manufacturer that such verified complaint shall be satisfied as specified by the office.

A.R.S. § 41-2186(1) subjects a licensee’s License to sanction for a failure in any material respect to comply with the provisions of this article or Article 2 of this chapter. A.R.S. § 41-2186(19) subjects a licensee’s License to sanction for a failure to provide all agreed on goods and services. A.R.S. § 41-2186(20) subjects a licensee’s License to sanction if the licensee fails to manufacture or install, in a workmanlike manner, all subassemblies, units and accessory structures which are suitable for their intended purpose. Pursuant to the filing of the formal Complaint, an assigned Department Inspector conducted repeated inspections of Complainants’ residence and verified item No. 40 (touch-up paint does not blend in), Item No. 177 (shingles on roof not properly installed), and Item No. 180 (scrape on linoleum in kitchen area). An assigned Department Inspector conducted a verification re-inspection on February 20, 2013. The Department Inspector re-verified that Item No. 40 and Item No. 180 had not been corrected by Hancock. The Department Inspector verified that that the shingles on Complainants’ roof (Item No. 177) had been properly corrected by Hancock. Complainants disagree with the Department Inspector’s determination regarding the correction of their roof and appealed Item No. 177. Complainants failed to meet their burden to establish by a preponderance of the evidence that the shingles on Complainants’ roof had not been properly corrected by Hancock as verified by the Department’s Inspector. Credible testimony and evidence established that Complainants’ linoleum was damaged by one of Hancock’s employees. Hancock shall properly correct the damaged linoleum. Credible testimony established that the touch-up paint applied to the exterior of Complainants’ residence by Hancock does not blend in with the exterior of Complainants’ residence. Hancock shall properly correct the touch-up paint on the exterior of Complainants’ residence. The credible evidence of record established violations by Hancock of A.R.S. §§ 41-2186(1), 41-2186(19) and 41-2186(20). RECOMMENDed order In view of the foregoing, it is recommended that, commencing on the effective date of the Department’s final Order, License No. 8415, Class D- of Hancock shall be suspended until the Department receives, and accepts, written confirmation that Hancock has repaired in a proper and workmanlike manner Item No. 40 (touch-up paint does not blend in), and Item No. 180 (scrape on linoleum in kitchen area) of the Verified Complaint and Sign-Off Form. It is further recommended that Hancock’s license shall not be suspended if, prior to the effective date of the final Order in this matter, the Director of the Department receives, and accepts, written notification that Hancock has repaired in a proper and workmanlike manner, or otherwise settled to Complainants’ satisfaction, Item No. 40 (touch-up paint does not blend in) and Item No. 180 (scrape on linoleum in kitchen area) of the Verified Complaint and Sign-Off Form. Upon such Departmental acceptance this Citation, together with the Complaint that it is based upon, shall be dismissed. It is further recommended that Hancock’s license shall not be suspended if Hancock is denied reasonable access to Complainants’ residence to perform corrective work. If reasonable access is denied, this Citation, together with the Complaint that it is based upon, shall be dismissed. It is further recommended that any repetition of verbal abuse from Complainants as demonstrated on the recorded messages be treated as a denial of access.

In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be the date of that certification

Done this day, June 20, 2013.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

Gene Palma, Director Department of Fire Building and Life Safety

----------------------- [1] Item No. 40 is listed as on the Verified Complaint and Sign-Off Form as: “Touch up paint does not blend in. [2] Item No. 180 is listed on the Verified Complaint and Sign-Off Form as: “There is a scrape on the floor due to workers trying to fix ceiling.” [3] Item No. 177 is listed on the Verified Complaint & Sign-Off Form as: “Shingles on roof not properly installed.” [4] See Exhibit No. R-K (A DVD-Rom with the recorded telephone messages).

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