ALJDEC decisions subject to certification as final

17F-A1718004-ADH · Arizona State Department of Housing · 2018-03-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

James & Jasmine Bruce,

Appellant,

vs,

Cavco Industries Litchfield Division,

License #8022, Class M-9E,

Five Star Home Center,

License #8456, Class D-12,

Top Notch Enterprises,

License # 8537 Class I-10G,

Respondents.

No. 17F-A1718004-ADH

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 12, 2018

APPEARANCES: Scott Chambers appeared on behalf of Cavco.

Joe Pena appeared on behalf of Top Notch. No one appeared on behalf of Five Star.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

1. On December 19, 2017, the Arizona State Department of Housing (“Housing”) issued a Notice of Hearing setting the above-captioned matter for hearing for 9:00 a.m. on February 12, 2018.

2. The Notice of Hearing provides that the Department issued a Verified Complaint & Sign-Off From in response to a complaint filed by Appellants against Respondent Five Star Home Center (“Five Star”). The Notice of Hearing also provides that the parties appealed several of the Department’s determinations regarding the complaint items.

3. Five Star did not appear at the schedule hearing time and the Administrative Law Judge convened the hearing in Five Star’s absence.

4. In 2016, Appellants James and Jasmine Bruce (“Appellants”) purchased a manufactured home (“MH”) from Five Star. The MH was manufactured by Cavco Industries Litchfield Division (“Cavco”). Respondent Top Notch Enterprises (“Top Notch”) installed the MH.

5. On or about February 21, 2017, Appellants filed a consumer complaint with the Arizona Department of Housing (“Department”) against Five Star alleging deficiencies in the MH.

6. On or about June 16, 2017, the Department conducted a verification inspection of the consumer complaint.

7. On or about August 28, 2017, the Department conducted a verification re-inspection to address issues that it missed during the initial verification inspection.

8. On or about September 19, 2017, the Department issued a Verified Complaint & Sign-Off form which contained the findings from the consumer complaint verification inspections. The Verified Complaint & Sign-Off form provides, in relevant part, as follows:

6.) Carpet and tile are lifting: VERIFIED DEALER. Carpet in Master Bedroom and #4 Bedroom is loose

22.) Carpet in Master Bedroom is loose in areas: VERIFIED DEALER. Same as item number 6.

61.) Carpet in rooms is needing to be re-stretched. Tripped several times on this: VERIFIED DEALER. Same As item number 6.

9. The information in the Administrative Record shows that Mr. Bruce nor his wife signed and initialed items 6, 22, and 61 as having been satisfactorily repaired.

10. Appellants appealed the Department’s determination regarding items 7, 29, 30 and 59. Appellants informed the Department of the items it disputed in an electronic mail message (“e-mail”) sent on October 18, 2017.

11. Respondent Cavco Industries Litchfield Division (“Cavco”) appealed the Department’s determination regarding certain items verified to Cavco. See Administrative Record.

12. Respondent Five Star Home Center (“Five Star”) appealed certain items verified to Five Star. See Administrative Record.

13. On or about October 18, 2017, Five Star submitted information to the Department stating that Five Star had completed the items verified to it in the Verified Complaint & Sign-Off form.

. 14. On or about October 18, 2017, Cavco submitted information to the Department stating that Cavco had completed the items verified to it in the Verified Complaint & Sign-Off form.

15. A hearing was held on February 12, 2018.

16. At hearing, Appellant James Bruce (“Mr. Bruce”) testified that the carpet and the flooring in the kitchen underneath the refrigerator need to be repaired.

Mr. Bruce testified that Cavco appropriately corrected all of the items that he and his wife believed Cavco was required to repair. Mr. Bruce testified that Five Star did not correct all of the items assigned to it.

CONCLUSIONS OF LAW

1. This administrative hearing was held under authority of and pursuant to A.R.S. § 41-4031 and A.R.S. § 41-1092 et seq.

2. According to A.R.S. § 41-4039, the Department of Housing is empowered

to revoke or suspend the license of any licensed manufacturer, dealer, broker, salesperson or installer for any violation of that statute. Before a violation may be found, the Department’s Office of Manufactured Housing must verify the items in the complaint and notify the Respondents that they are responsible to correct the verified items. A.R.S. § 41-4004 (A)(9) and (10). The Respondents then have 30 days from being notified of the verified items in which to file an answer. A.R.S. § 41-4000(B).

3. 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. Ariz. Admin. Code § R2-19-119.

4. 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).

5. Appellants bear the burden of proof with respect to all items 7, 29, 30 and 59. The preponderance of the evidence does not show that the department erred when it did not verify items 7, 29, 30 and 59. Appellant presented no evidence to establish that the Department’s determination was improper with regard to the items that it did not verify.

6. The undisputed credible testimony and evidence established hat Cavco corrected all items verified and assigned to it in the Verified Complaint. This Tribunal concludes that Cavco fully complied with the terms and conditions of the Verified Complaint and Sign-Off Form issued in this matter.

7. The preponderance of the evidence shows that Top Notch completed the verified items which were assigned to it in the complaint. This Tribunal concludes that Top Notch fully complied with the terms and conditions of the Verified Complaint and Sign-Off Form issued in this matter.

8. The undisputed credible testimony and evidence established that Five Star failed to correct items 6, 22 and 61. This Tribunal concludes that Five Star failed to fully comply with the terms and conditions of the Verified Complaint and Sign-Off Form issued in this matter.

RECOMMENDED DECISION

Based upon the foregoing considerations, the undersigned Administrative Law Judge hereby recommends that this appeal be sustained in part and denied in part. Items 6, 22, and 61 should be verified. In all other respects, the appeal is denied.

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, March 5, 2018.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Carol Ditmore,

Arizona Department of Housing