ALJDEC decisions subject to certification as final

18F-A1819002-ADH · Arizona State Department of Housing · 2018-11-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 24, 2018 APPEARANCES: Appellant Sheila Jackman appeared on behalf of herself. Assistant Attorney General Valerie Marciano appeared on behalf of the Arizona Department of Housing. ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson _____________________________________________________________________ FINDINGS OF FACT 1. On July 25, 2018, the Arizona State Department of Housing (“Department”) issued a Notice of Hearing setting the above-captioned matter for hearing for 8:30 a.m. on September 7, 2018.[1] 2. The Notice of Hearing provides that Appellants[2] filed a complaint alleging issues in connection with a new manufactured home against Cavco Industries (“Cavco”), The Home Outlet/Factory Expo Home Center (“Home Outlet”) and Gleeson Mobile Home Service (“Gleeson”). The Notice of Hearing also provides that the Department did not verify the complaint issues alleged by Appellant Sheila Jackman. 3. In December of 2016, Ms. Jackman purchased a manufactured home (“MH”) which was installed on April 27, 2017 by a licensed installer. 4. On or about November 29, 2017, Ms. Jackman filed a consumer complaint with the Department against Cavco, Home Outlet, and Gleeson alleging deficiencies in the MH. Ms. Jackman alleged that the fire sprinkler system, located in the attic of Ms. Jackman’s home, was not installed correctly. 5. On or about November 30, 2017, the Department issued a notice of complaint to Cavco, Home Outlet, and Gleeson. 6. On or about December 7, 2017, Cavco, Home Outlet, and Gleeson provided responses to the notice and complaint. Cavco requested a verification inspection. 7. On or about January 9, 2018, the Department issued a notice to all parties advising that a verification inspection of all issues alleged in the complaint was scheduled for Thursday, January 25, 2018. 8. On January 25, 2018, a Department inspector went to Ms. Jackman’s home to perform a verification inspection. However, Ms. Jackman did not provide access to her attic. Ms. Jackman provide pictures of a sprinkler system. Because the Department’s inspector could not access the sprinkler system, the Department’s inspector was unable to verify any the allegations made in the complaint. 9. On or about February 14, 2018, the Department issued a report of the verification to all parties. The Department notified Ms. Jackman that none of the complaint items were verified. 10. Ms. Jackman file a timely appeal to the Department’s report. 11. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing. 12. A hearing was held on October 24, 2018. 13. At hearing, Appellant Sheila Jackman testified that it would cost her approximately $7,000 to create access to her attic. Ms. Jackman testified that she would not pay the cost required to open her attic. Ms. Jackman testified to the effect that she would be willing to withdraw her complaint if she received a certification from Cavco regarding the freeze failure of the fire sprinkler system. Ms. Jackman provided no direct evidence that the free protection system was not installed or working properly. Ms. Jackman alleged that she had experienced problems with Cavco regarding other construction issues in the home and that she is not sure whether the freeze protection system was installed correctly. 14. The Department’s contended that it had no evidence that the freeze protection system was installed incorrectly or was somehow defective. The Department contended that its inspector did not verify the items listed in the complaint because Ms. Jackman did not provide its inspector with access to her attic to investigate the fire sprinkler system. 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. 3. 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). 4. 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). 5. 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. 6. 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). 7. Appellants bear the burden of proof with respect to all complaint items. Appellant presented no evidence to establish that the Department’s determination was improper with regard to the items that it did not verify. 8. The undisputed credible testimony and evidence established that Ms. Jackman did not allow the Department’s inspector to access her attic to investigate the items listed on her complaint. Although Ms. Jackman contended that she should not be required to bear the cost of opening her attic, Ms. Jackman provided no legal authority to support her position. Therefore, as to these items, the Administrative Law Judge concludes that the Department’s determination not to verify the items listed in Ms. Jackman’s complaint must be upheld. RECOMMENDED DECISION Based upon the foregoing considerations, the undersigned Administrative Law Judge hereby recommends that within 30 days of the effective date of the Department’s Order, the Department shall schedule a new verification inspection and provide notice of the inspection date to Ms. Jackman. It is further recommended that if Ms. Jackman fails to provide access to her attic access to allow the inspector to investigate the complaint after the effective date of this Order, then this matter shall be closed. 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 5 days from the date of the certification.

Done this day, November 13, 2018.

/s/ Velva Moses-Thompson Administrative Law Judge

Transmitted electronically to:

Carol Ditmore, Arizona Department of Housing ----------------------- [1] The matter was continued to October 24, 2018. [2] At hearing, Appellant Sheila Jackman clarified that she was the Appellant and Mark Schmidt filed the appeal on her behalf.

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Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826