ALJDEC

98F-C978120-BFS · Department of Building and Fire Safety · 1998-04-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 17, 1998

APPEARANCES: Stuart and Peggy Cole appeared representing themselves.

James L. Fann, qualifying party and President, represented Respondent.

ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn _____________________________________________________________________

Evidence and testimony were presented, and based upon review of the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. Complainants purchased a mobile home in January 1997. 2. The mobile home park where they were placing the home had agreed to rent the space to Complainants, but there was a verbal agreement that a porch and covered carport would be in place by June 1, 1997. 3. Complainants secured a contractor and advised Respondent of that bid on the porch and carport for $3,500.00. 4. The contract for the purchase of the home states: “price also includes porch and carport installed by buyer and his agents or subs.” 5. The contract has a specific line detail of $3,500 allowance for “carport”; this allowance was then included in the price to be financed for the home. However, no specific amount or allowance was included on a porch. 6. The contractor which Complainants had secured did not begin the job, due to a disagreement with Respondent, which was insisting on several things, such as Registrar licensure, workmen’s compensation and liability insurance. 7. Respondent subsequently secured a contractor for bidding on the project, a porch and a carport. The Contractor’s bid was eventually accepted by Respondent, but only as to the carport, and Respondent paid the contractor $5,032.50 for the installed carport. This amount was over the $3,500 (carport) allowance included in the contract. 8. The bid amount for the porch was $1,092.50. 9. Complainants filed their complaint with the Department of Building and Fire Safety (Department). After an October 2, 1997 jobsite inspection, the Department’s Inspector verified certain items for either Respondent, Manufacturer or Installer to correct. The Department issued its Verified Complaint and Sign-Off Form to the parties. While some items on the verified complaint were taken care of or resolved, Complainants were not satisfied with the repairs undertaken by Respondent. 10. On December 31, 1997, Department issued its Citation and Complaint against Respondent regarding the verified complainant items. The Citation and Complaint recites the alleged violations of Arizona Revised Statutes (A.R.S.) §41-2186.1, .12, .19, and .20. 11. Respondent filed its response to the Citation. On Item 24, Respondent indicated that it had no responsibility for the provision of the porch, but had provided the carport due to the contract including the $3,500 allowance for the carport. On items 15 and 18, Respondent indicated that they were associated with the drywall, and that Respondent did not believe it was responsible for these problems, even at the site built home, due to Complainants having waived a soil investigation/compaction report. 12. On February 4, 1998, Department issued its Notice of Hearing in the matter, stating that items 15 [drywall cracks], 18 [finish nails and paint molding] and 24 [front porch] remained uncorrected. 13. At the hearing, Complainants argued that the Respondent was to have provided the porch and the carport per the contract allowance, and believed that by Respondent’s having had its contractor bid on the porch and carport, that Respondent was going to provide both a porch and carport per the contract. Complainants also argued that Respondent had not leveled the house, but had said that it would level the house at 6 months and at 12 months and fix cracks. Complainants stated that the cracks were fixed, but that finish nails need to be corrected and painted on the molding. 14. Respondent argued that it had gone beyond the contract allowance in helping out Complainants in meeting the park requirements, but that it has no additional responsibility for a porch per the contract. Respondent indicated that it had made service calls to the home, and that the home had been leveled on January 5, 1998. Respondent was under the impression, based on his employee time records, that the cracks and the painting repairs were done. 15. With respect to these items argued at the hearing, the Department’s verified complaint had determined that Respondent needed to correct drywall cracks near the windows, finish nails at the molding and the painting of the molding. Additionally, per the verified complaint item number 24 that no porch and carport was provided, but noting that carport was then under construction, determined that Respondent was to correct this complaint. APPLICABLE LAW 1. A.R.S. §41-2186 generally provides, in the following relevant portions, that a holder of a license or a person listed on a license shall not commit the following acts or omissions: 1. Failure in any material respect to comply with the provisions of this article or article 2 of this chapter. xxx 12. Failure to respond relative to a verified complaint after notice of such complaint. xxx 19. Failure to provide all agreed on goods and services. 20. Failure to manufacture or install in a workmanlike manner all subassemblies, units and accessory structures which are suitable for their intended purpose.

A.R.S. §41-2186 further provides that the Department’s Office of Administration may temporarily suspend a license, permanently revoke a license, impose an administrative penalty or place a license on probation for the failures or actions. A.R.S. §41-2181.A requires that a licensee respond within ten days to a departmental Citation and Complaint. Subsection B further provides a failure to timely respond to the Department’s Citation and Complaint shall be deemed an admission of the complaint, and the Department may proceed to suspend or revoke the license without a hearing. CONCLUSIONS OF LAW 1. The evidence and credible testimony showed that Respondent has not yet corrected the finish nails and the painting of the molding. This is a violation of A.R.S. §41-2186.19 and §41-2186.20. 2. The evidence and testimony showed that Respondent did respond to the verified complaint, and believed that the matters were appropriately handled. Therefore, no violation of A.R.S. §41-2186.12 is found. 3. The purchase contract and the testimony shows that Respondent was not responsible for the installation of the porch or carport for Complainants, but that Complainants were. Therefore, when Respondent included the $3,500 allowance in the purchase contract, Respondent’s only liability would be to cover up to $3,500 per that project (of porch and carport) or as stated, of the carport. Complainants would be responsible for any other higher costs of the project. Had Complainants come to Respondent with a suitable contractor, Respondent would have been responsible only up to $3,500 for the project. Respondent’s securing a suitable contractor was in assistance of Complainants’ own responsibility with the mobile home park, and the contractor’s installation of the $5,032.50 carport, has satisfied and more than exhausted the Respondent’s liability on this item. Therefore, it is determined that the verified item number 24 is incorrect, and Respondent made no failure as to the installation of a porch. No violation is found as to this item. 4. Based on the evidence and the record, the Department’s Citation and Complaint is upheld as to item 18, but not item 24. RECOMMENDED ORDER 1. In view of the foregoing, it is recommended that commencing on the effective date of this ORDER, that the Respondent’s Class D-8 license be actively suspended unless the Department receives written notification from the parties that Respondent has completed the work indicated in Conclusion No. 1 above: the finish nails and painting of molding. These repairs are to be done in accordance with statutory and regulatory standards, and according to proper workmanship standards. 2. It is further recommended that if written notification is received, before the effective date of Department’s ORDER, that no suspension of Respondent’s license occur, and the Department’s Citation and Complaint No. 97-8/120 be closed. RECOMMENDED and DATED this day, April 6, 1998.

______________________________________ Kay A. Abramsohn Administrative Law Judge

Original transmitted by mail this ____ day of April, 1998, to:

Mr. N. Eric Borg, Director Department of Building & Fire Safety East Virginia, Suite 100 Phoenix, AZ 85004

ATTN: S. Gail Hinckley

By ___________________________ -----------------------

Office of Administrative Hearings 1700 West Washington, Suite 602 Phoenix, Arizona 85007 PH (602) 542-9826 / FAX 542-9827