ALJDEC decisions subject to certification as final

17F-A1718001-ADH · Arizona State Department of Housing · 2017-12-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the matter of:

Matthew Mott and Joan Anteau,

Appellants,

Vs.

Raymundo Uribe Miranda,

dba Precision Mobile Home Installation,

License #8282, Class I-10G

Respondent.

No. 17F-A1718001-ADH

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 15, 2017

APPEARANCES: Matthew Mott appeared on behalf of Appellants. Respondent Raymundo Uribe Miranda doing business as Precision Mobile Home Installation did not appear at the hearing.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Raymundo Uribe Miranda doing business as Precision Mobile Home Installation (Respondent) is the holder of a class I-10G Master Installer’s license (No. 8282) issued by the Arizona Department of Housing (Department). That license authorizes Respondent to perform installation of manufactured homes, mobile homes, and residential, single-family factory-built-buildings. See A.A.C. R4-34-204(A)(3).

On or about March 10, 2016, Matthew Mott and Joan Anteau (Complainants) entered into a contract with Respondent that called for Respondent to relocate Complainants’ 1978 double-wide mobile home from a mobile home park in Tucson to another mobile home park in Tucson, approximately 15 miles away. This entailed tearing down at the old site, transporting the home to the new location, and fully installing the home at the new location. The contract price was $10,800.00.

Respondent removed and relocated Complainants’ mobile home to the new mobile home park during May 2016. During the move, multiple people observed the air conditioning unit bouncing up and down as the mobile home was driven over speed bumps and the curb.

Upon moving into the mobile home at the new location, Complainants turned on the air conditioning unit. It worked for a few minutes before it started blowing hot air and stopped working. Complainants contacted Twin Lakes Air of Tucson (Twin Lakes) to inspect the unit for a service fee of $85.00. Upon inspection, Twin Lakes determined that during the move the air conditioning unit had been bounced so much that the particles inside the condenser unit had circulated throughout the system and that replacement condensers were no longer manufactured. Twin Lakes recommended that the entire unit be replaced. Twin Lakes provided Complainants a quote for a new unit. In the meantime, Twin Lakes charged the refrigerant in the system at a cost of $170.00. After checking around, Complainants hired a contractor willing to replace the unit for $7,000.00.

Complainants spoke to Respondent regarding the air conditioning unit. Respondent denied hitting anything during the move and denied any responsibility for the damage.

On or about April 3, 2017, Appellants filed a consumer complaint with the Department.

On or about April 24, 2017, Respondent submitted his response to Appellants’ complaint, denying that the issues identified were caused by Respondent.

Complainants filed a claim with Contractors Bonding and Insurance Company (CBIC), Respondent’s bond company, for the damage to the air conditioning unit. On or about June 1, 2017, CBIC suggested that the parties allow the Department to conduct an investigation and make a decision concerning the claim and the parties would then abide by the Department’s findings.

On or about June 11, 2017, Complainants agreed to CBIC’s proposal.

On or about June 15, 2017, Appellants filed a response in which they disputed Respondent’s statements.

On or about August 24, 2017, the Department issued a letter to Complainants stating, “After careful review and consideration, the Department has determined the issue regarding the condition of the A/C unit on your home prior to and after the relocation of your home, would not be an issue the Department would be able to verify, therefore, no additional steps will be taken by the Department.”

On or about September 17, 2017, the Department received Appellants’ appeal of the Department’s closure of their complaint and requested the matter be scheduled for hearing.

During the hearing in this matter, Complainants presented evidence that the air conditioning unit was inspected on or about January 8, 2016, and was found to need only a new switch. Complainants included photographs taken of their mobile home approximately two weeks before it was moved showing the air conditioning unit was connected to the home and in clean, working order.

Complainants also presented statements from Gregory Reynolds and Patricia Bunch regarding their observations of the move of Complainants’ mobile home including how the air conditioning unit was not properly secured and was bouncing up and down as the unit was moved through the mobile home park.

Complainants submitted evidence that the total cost to Complainants resulting from the damage to the air conditioning unit was $7,255.00.

The Department did not present any evidence related to the reason it refused to investigate the complaint or make a determination as to the complaint.

CONCLUSIONS OF LAW

Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. A.A.C. R2-19-119.

A preponderance of the evidence is:

The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.

Black’s Law Dictionary 1373 (10th ed. 2014).

The Department is empowered to revoke or suspend the license of any licensed manufacturer, dealer, broker, salesperson or installer for any violation of A.R.S. § 41-4039. Among the grounds for discipline is the failure to install in a workmanlike manner all units and accessory structures that are suitable for their intended purpose. A.R.S. § 41-4039(21).

As to the Department’s determination that it would be unable to determine the cause of the damage to the air conditioning unit and the resulting closing of the complaint in this matter, the Administrative Law Judge finds that nothing in statute would preclude the Department from obtaining and reviewing the information presented at the hearing and making a determination as to whether Respondent was responsible to the damage as alleged. As such, the Department’s closing of the complaint was improper.

As to the underlying matter raised in the complaint, the preponderance of the evidence shows that Respondent violated A.R.S. § 41-4039(21) when he failed to properly secure the air conditioning unit during the move which resulted in the need to replace the unit at a total cost to Complainants of $7,255.00.

ORDER

Based upon the foregoing considerations, the undersigned Administrative Law Judge hereby recommends that the complaint in this matter be sustained to the extent that, beginning on the effective date of the final decision in this matter, Respondent’s license be suspended until the Department receives confirmation that Complainants have been reimbursed the total of $7,255.00 in certified funds. At that time, the license suspension shall cease, with no lingering penalties assessed against it.

It is further recommended that if Respondent accomplishes the above-described condition on or before the effective date of the final decision entered in this matter, then the aforementioned license suspension shall not take place.

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 will be five days from the date of that certification.

Done this day, December 5, 2017

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Carol Ditmore

Arizona Department of Housing