ALJDEC decisions subject to certification as final

17F-A1718006-ADH · Arizona State Department of Housing · 2018-02-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

David A. James,

Appellant,

vs,

Champion Home Builders Inc.,

License #8438, Class M-9E,

Homes Direct of Arizona LLC,

License #8493, Class D-12,

Blount's Manufactured Housing Contractors,

License #7409, Class I-10G,

Respondents.

No. 17F-A1718006-ADH

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 2, 2018, at 9:00 a.m.

APPEARANCES: David A. James (“Appellant”) appeared on his own behalf; Champion Home Builders Inc. (“Champion”) appeared through its employee, John Yurcaba, III; Homes Direct of Arizona LLC (“Homes Direct”) appeared through its employee, Greg McClanahan; Blount’s Manufactured Housing Contractors (“Blount’s”) appeared through its owner, Tami Blount.

ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

_____________________________________________________________________

FINDINGS OF FACT

Champion holds License #8438, Class M-9E issued by the Arizona Department of Housing (“Department”). Homes Direct holds License #8493, Class D-12 issued by the Department. Blount’s holds License #7409, Class I-10G issued by the Department.

Sometime in March 2017, Appellant purchased from dealer Homes Direct a manufactured home that had been manufactured by Champion. In May 2017, Blount’s performed some work to install the home.

The manufactured home sat on Homes Direct’s lot for two months after Appellant purchased it because the land where he intended to place the home was in a remote location and Appellant needed time to get engineering studies for drainage.

Appellant acted as general contractor for some aspects of the installation of the manufactured home, including excavation, backfill, septic tank, HVAC, and stucco.

On or about August 22, 2017, Appellant filed a consumer complaint with the Department. In the complaint, Appellant alleged numerous deficiencies in the home that he believed were attributable to Champion, Homes Direct, or Blount’s.

On or about October 5 2017, a verification inspection of the consumer complaint was conducted by the Department. On or about October 23, 2017, the Department issued a Verified Complaint and Sign-Off Form (“Verified Complaint”) in which it itemized each of Appellants’ complaints (26 in all), and stated whether those items were VERIFIED (i.e., subject to correction by the manufacturer, dealer, or installer) or NOT VERIFIED (i.e., not subject to correction). Relevant to this proceeding, the Department made the following findings:

1.) Walked off job – took building permit – failed to schedule required inspections. NOT VERIFIED. Statement.

. . . .

8.) Failure to prove additional reinforcements for future patio cover: NOT VERIFIED. Unable to access in order to confirm whether home and stem wall as installed/constructed meets requirements. E-mail of August 29, 2017, Robert A. Gray of Hardline Concrete stated “when the block skirting was installed at David James home we installed extra tie down on the back wall and grouted those cells solid.”

. . . .

13.) Lack of accounting from Blount’s Construction. No list of completed items with charges and payments: NOT VERIFIED. Copies of invoice 5269 appears to state charges and credits for work agreed to perform.

. . . .

15.) Front hose [bib] installed against house resulting in it being buried in the stucco: NOT VERIFIED. Complainant had home stuccoed after Installer installed valve. Stucco company encased the valve in stucco during installation.

16.) Shut-off for house does not shut off hose [bib]: NOT VERIFIED. Unable to confirm there was a specific request by consumer.

On or about November 20, 2017, Appellants appealed the Department’s determination regarding the above findings on the Verified Complaint and Sign-Off Form. The Department referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

A hearing was held on February 2, 2018. Appellant testified on his own behalf and presented the testimony of Ian James, Appellant’s wife’s cousin who has been involved in the project from the beginning. Mrs. Blount testified on Blount’s behalf and submitted five exhibits. Appellant’s remaining disputes were with Blount’s and, although Champion’s and Homes Direct’s representatives attended the hearing, they did not testify or offer any other evidence.

Mr. Ian James testified that he went to the county and got the permit number and arranged the final inspection.

Mrs. Blount testified that the excavation, backfill, septic tank, HVAC, and stucco that Appellant performed all required inspection by the county. After Blount’s relationship with Appellant deteriorated because of his rudeness and threats, she had to communicate with Appellant through Homes Direct and Mr. McClanahan. The last time that she was in the house, Champion was performing work on the flooring. She never received notice of the final inspection, but called the inspector and faxed the documents to him and received a final certificate of inspection the next day.

Appellant acknowledged that the manufactured home passed the final inspection.

Mr. Ian James testified that he has been working with Appellant since Day 1. Mr. Ian James testified that Appellant has no contract with Blount’s and that Blount’s keeps sending bills and has placed a lien on the property. Mr. Ian James testified that Blount’s has committed fraud by billing for things that it did not do. Mr. Ian James did not provide any specifics or billings. Mr. Ian James testified that he had requested an accounting, but that Blount’s had not provided one.

Mrs. Blount testified that Blount’s has taken many things off its invoice and that Appellant was not charged for these items. Mrs. Blount testified that Blount’s sent invoice after invoice to Appellant with explanations. It provided its final invoice to the Department’s inspector. Mrs. Blount testified that Appellant still has paid Blount’s for its work.

Mr. Ian James testified that that he requested that Blount’s provide an explanation for an additional charge for reinforcement in the stem wall for an awning. Mr. Ian James testified that the inspector said that the reinforcement was not necessary, but that the inspector did crawl under the manufactured home and should have been able to see whether the cells in the cinder stem wall were filled or not. Mr. Ian James testified that the reinforcement was supposed to be every 2’ or 4’. Mr. Ian James testified that he crawled under the manufactured home and saw that several areas that should have been but were not grouted.

Mrs. Blount testified that the block wall was skirting, not a stem wall. Blount’s submitted an email from Robert A. Gray of Hard-Line Construction, Inc., who had installed the skirting, stating that “[w]hen the block skirting was installed at [Appellant’s] home we installed extra tie down on the back wall and grouted those cells solid.” Mrs. Blount testified that the Pinal County inspector inspected the skirting and it passed inspection.

Appellant testified that his stucco guy agrees that nos. 15 and 16 on the verification form should have been verified against Blount’s. Appellant testified that if Blount’s removes the stucco to expose the hose bib and install a shut-off valve, he will pay to replace the stucco.

CONCLUSIONS OF LAW

A.R.S. § 41-4004(A)(9) requires the Department to verify written complaints filed within one year of purchase or installation. The Department is reasonably presumed to have certain expertise, experience, and knowledge with respect to those matters the law provides it authority to inspect, because verification upon inspection is a threshold determination by the inspector which then allows the Department to issue an appropriate order pursuant to A.R.S. § 41-4004(A)(10).

Appellant bears the burden to prove, by a preponderance of the evidence, that Blount’s is responsible for the deficiencies alleged in his appeal and therefore is responsible for the correction of those deficiencies. See A.R.S. § 41-1092.07(G) 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).

In this case, the Administrative Law Judge concludes that Appellants failed to meet his burden of proof as to the only complaint items on which he submitted evidence, Item Nos. 1, 8, 13, and 15. Therefore, as to these items, the Administrative Law Judge concludes that the Department’s determination not to verify these items must be upheld.

RECOMMENDED ORDER

Based upon the foregoing, Appellant’s appeal is dismissed.

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, February 8, 2018.

/s/ Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Carol Ditmore, Director

Arizona Department of Housing