ALJDEC decisions subject to certification as final

23F-REC2022019-ADH · Arizona State Department of Housing · 2023-06-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Patrick Allen,

Complainant

vs.

Randy Instine LLC,

LICENSE NO. 8418, CLASS D-12,

Respondent.

No. 23F-REC2022019-ADH

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 22, 2023

APPEARANCES: Complainant Patrick Allen appeared on his own behalf. Respondent failed to appear.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

Complainants filed claims with the Department’s Consumer Recovery Fund (“the Fund”) pursuant to A.R.S. § 41-4043(A). The Department verified the amounts of the claims pursuant to A.R.S. § 41-4043(B). The Department referred the claims to OAH for an evidentiary hearing pursuant to A.R.S. § 41-4043(C).

On or about April 19, 2023, the Department issued a Notice of Hearing Re: Consumer Recovery Fund, setting a hearing on May 22, 2023, at 9:00 a.m. The Notice of Hearing alleged that Complainant was seeking an award of $47,500.00 from the Fund.

Although the start of the duly noticed hearing was delayed fifteen minutes to allow Respondent additional time, Respondent did not appear, personally or through an attorney, and did not contact OAH to request that the start of the hearing be further delayed. Consequently, Respondent did not present any evidence to challenge the amounts that the Fund should reimburse the Complainant.

Hearing Evidence

Complainant testified that he entered into a contract in September 2020 to have Respondent install a Champion Mobile Home and to add an exterior wooden patio deck with a wood cover.

Complainant testified Respondent and his subcontractor had assured Complainant that all materials were purchased, however this was not the case. Further, as this construction was during the COVID-19 pandemic, there was a shortage of lumber leading to a significant price increase.

Complainant testified that the parties then agreed to modify the contract such that a stem wall would be built and a concrete patio would be installed with an aluminum awning.

Complainant testified that while this was started, the stem wall was now failing. Further, there were also other items which were failing such as the septic cleanout.

Complainant testified that he received an e-mail from Respondent in October 2021, that he was terminating the contract.

Based upon this, Complainant then filed a Complaint on or about November 23, 2021. The Department of Housing issued its report on April 20, 2022, and verified that the concrete patio was not finished, the patio cover was not finished, and the patio retaining wall was cracking.

Complainant then submitted three bids to the Department. One was for $32,050, one was for $99,750.00 and one was for $98,560.00. Complainant testified that based upon his discussion with the Department’s investigator, Jeff Jacobs, he decided to seek $47,500.00 from the Fund.

Finally, Complainant stated his home still had problems as the belly band was now pulling away do to the stem wall sinking causing the house to become un-level.

CONCLUSIONS OF LAW

The Department has subject-matter jurisdiction in this matter pursuant to A.R.S. §§ 41-4041, 41-4042, and 41-4043.

The Notice of Hearing that the Department mailed to Respondent at his e-mail address of record, was reasonable and Respondent is deemed to have received notice of the hearing.

Complainants bear the burden to establish the amounts of the payouts that they are entitled to recover from the Fund by a preponderance of the evidence. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is “[t]he 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.”

A.R.S. § 41-4043 provides in relevant part as follows:

A. If any consumer who is buying or selling the consumer's home uses the services of a licensed dealer of manufactured homes, mobile homes or factory-built buildings designed for use as residential buildings and is damaged as a result of an act or omission by a licensed dealer of manufactured homes, mobile homes or factory-built buildings designed for use as residential buildings that constitutes a violation of section 41-4030, or rules adopted pursuant to that section, and the sale is subject to section 41-4030, subsection C, that consumer may file a claim with the department for payment from the consumer recovery fund. The claim shall be verified by the department.

. . . .

C. On verification of the claim for payment, the director shall provide for a hearing pursuant to chapter 6, article 10 of this title.

D. The director shall pay from the consumer recovery fund whatever sum the administrative law judge finds payable on the claim. A decision granting a claim shall include an order suspending the license of the licensee on whose account the claim was filed. The license shall remain suspended until the licensee has repaid in full, plus interest at the rate of ten percent per year, the amount paid from the consumer recovery fund on the licensee's account.

. . . .

G. The consumer recovery fund has a claim against the licensee on whose account a claim was granted or any other person who caused or contributed to a claim paid by the consumer recovery fund for the amount paid plus costs, necessary expenses and reasonable attorney fees.

H. The director is subrogated to the claim of the consumer recovery fund against the bond and other assets of the licensee. The director shall deposit any amount recovered into the consumer recovery fund.

The Complainant accepted the Department’s calculation and was willing to accept the verified amount of the payout from the Fund that the Department proposed. Therefore, a preponderance of the evidence supports payouts from the Fund to the Complainants in the amount of $47,500.00.

ORDER

Based upon the foregoing, IT IS ORDERED that on the effective date of the final Order in this matter, the Department shall pay the Complainant the amount of $47,500.00 from the Consumer Recovery Fund:

IT IS FURTHER ORDERED that Respondent is hereby notified that the Department’s Consumer Recovery Fund also has a claim against the Respondent for the Department’s costs, necessary expenses, and reasonable attorney’s fees incurred as a result of this matter.

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 forty (40) days from the date of that certification.

-54864001

001

-137160-45720000Done this day, June 7, 2023.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Joan Serviss, Director

Arizona Department of Housing

Randy Instine

3401 N. Valley View Drive

Prescott Valley, AZ 86314

[email redacted]

Patrick Allen

1065 N. Cool Water Lane

Dewey, AZ 86327

[email redacted]

By: OAH Staff