ALJDEC

98F-C978193-BFS · Department of Building and Fire Safety · 1998-05-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 21, 1998; 1:30 P.M.; Phoenix, Arizona and Telephonic APPEARANCES: Complainant: Beverly A. Majors Respondent: Michael L. Holdsworth, Esq. ADMINISTRATIVE LAW JUDGE: George A. Schade, Jr. _____________________________________________________________________

Based upon the evidence presented at the hearing, Administrative Law Judge George A. Schade, Jr. submits this Recommended Decision and Order to the Director of the Arizona Department of Building and Fire Safety (“Director”). FINDINGS OF FACT PROCEDURAL HISTORY AND FACTS 1. On February 24, 1998, the Assistant Director issued Citation and Complaint No. 97-8/193 to Respondent Dewey Levie Financial Group, Inc. doing business as Levie Homes (“Levie”) alleging violations of Arizona Revised Statutes (“A.R.S.”) §§ 41-2186.1, - .12, - .19, and - .20. The violations resulted from Levie’s failure to satisfy, timely and in workmanlike manner, Items Number 10 and 20, as assigned in a Verified Complaint and Sign-off Form, following an inspection completed on November 18, 1997, and mailed to Levie on November 26, 1997. 2. Levie holds License No. 6417, Class D-12, issued by the Department. Levie is a licensed manufactured housing dealer, and in this capacity sold a mobile home to Complainant Mrs. Beverly A. Majors in November, 1996.

3. On March 2, 1998, and on March 12, 1998, Levie answered the Citation and Complaint. Levie claimed Item No. 20 had been complied with on December 4, 1997, and Item No. 10 had been corrected on March 3, 1998. 4. On March 27, 1998, the Department’s Assistant Director issued a Notice of Hearing. Under the authority of A.R.S. § 41-1092.01, the hearing was assigned to the Office of Administrative Hearings. 5. On May 13, 1998, Levie filed a Motion to Vacate Hearing with a request that the hearing be held by telephonic means, if the motion was denied. The Office of Administrative Hearings scheduled a telephonic conference with the parties for May 19, 1998, at 2:00 P. M. Only Levie appeared at this conference. 6. On May 19, 1998, the Administrative Law Judge denied Levie’s motion to vacate the hearing but granted the request to hold the hearing by telephonic means. Between May 19, 1998, and May 21, 1998, the Office of Administrative Hearings called Mrs. Majors five times to inform her of the telephonic hearing. No answer was received. 7. On May 21, 1998, a hearing was held. Mrs. Majors and her daughter appeared personally, and Levie and its witnesses appeared by telephonic means. Both parties presented testimony. Mrs. Majors submitted two exhibits. The Administrative Law Judge took official notice of the entire contents of the file the Department provided to the Office of Administrative Hearings. ITEM NUMBER 10: THE CARPETING 8. The carpet installed in Mrs. Majors’ home was loose in the guest bathroom and Bedroom No. 2. This complaint was verified during the November 18, 1997, inspection. 9. Levie repaired the carpet on March 3, 1998. The carpet was supposed to have been repaired by Mr. Troy Cuppy, the carpet installer subcontractor, in December, 1997. Mr. Cuppy was not truthful with Levie’s employees regarding Mr. Cuppy having repaired the carpet. When Levie learned Mr. Cuppy had not repaired Mrs. Majors’ carpet as stated to Levie previously, Levie had Mr. Cuppy make the necessary repairs forthwith. 10. Mrs. Majors is satisfied with the repairs done. ITEM NUMBER 20: THE CONTRACT AND FACTORY ORDER 11. Mrs. Majors complained she had not been given a complete copy of her contract and of the factory order. This complaint was verified during the November 18, 1997, inspection. 12. Mrs. Majors’ contract to purchase her mobile home was a standard purchase contract form in triplicate, with inserted carbon papers. 13. On December 2, 1997, Levie sent Mrs. Majors by certified mail a copy of the front page of her contract and a copy of the factory order in Levie’s possession. Mrs. Majors received this letter on December 4, 1997. 14. On May 7, 1998, Levie’s attorney hand-delivered to Mrs. Majors another copy of the front page of the contract and of the factory order in Levie’s possession. 15. Mrs. Majors testified Levie had not given her a copy of the contract’s back page. Not having a copy of the back page was the basis of her complaint. 16. During the hearing, Mr. Dewey J. Levie faxed to the Office of Administrative Hearings a copy of the back page of the contract. This document was received, marked and admitted into evidence as Complainant’s Exhibit No. 2. 17. The Administrative Law Judge directed Mr. Levie to mail, that same afternoon, to Mrs. Majors the best available copy of the back page of the contract. Mr. Levie indicated he would comply with this directive. Mr. Levie invited Mrs. Majors to visit his office to examine the original back page of the contract. 18. According to Mr. Levie, Levie’s salesperson gave Mrs. Majors a copy of the front and back pages of the contract when she executed the contract in November, 1996. Mrs. Majors testified she did not receive such copies. 19. The contract states (on the front page), immediately above Mrs. Majors’ signature, that she “acknowledge receipt of a copy of this order and that I…have read and understand the back of this agreement.” 20. On January 27, 1998, Mrs. Majors obtained from Cavco Industries, Inc. (“Cavco”), the manufacturer, a copy of what Mrs. Majors considered to be the complete factory order. A copy of this document was admitted as Complainant’s Exhibit No. 1. 21. The document Cavco gave Mrs. Majors looks like the same document and contains the same basic information contained in the copy Levie sent her on December 2, 1997, which Levie deemed to be the factory order. The exceptions are that Cavco’s copy was typed and contains more specific information such as name plate and serial number, and abbreviations are written out. 22. According to Levie, the document Cavco gave to Mrs. Majors is a factory invoice, and not a factory order. CONCLUSIONS OF LAW 1. In these administrative cases, the complainant has the burden of proof, and the standard of proof on all issues is by a preponderance of the evidence. See, Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996), rev. denied (1997). 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). It “is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” BLACK’S LAW DICTIONARY 1182 (6th ed. 1990). 2. The preponderance of the evidence does not establish Levie violated the following subsections of A.R.S. § 41-2186: a. § 41-2186.1: “Failure in any material respect to comply with the provisions of [articles 2 and 4],” specifically, A.R.S. § 41-2153(C), by not responding to the verified complaint within thirty days. b. § 41-2186.12: “Failure to respond relative to a verified complaint after notice of such complaint.” c. § 41-2186.19: “Failure to provide all agreed on goods and services.” d. § 41-2186.20: “Failure to manufacture or install in a workmanlike manner all subassemblies, units and accessory structures which are suitable for their intended purpose.” The preponderance of the evidence does not establish that Levie failed to comply with the provisions of the manufactured housing statutes in a “material respect,” or that it failed “to respond relative to a verified complaint after notice of such complaint.” Levie gave Mrs. Majors on December 2, 1997, a copy of the front page of the contract and a copy of the factory order in its possession. Levie made arrangements to repair the carpeting in early December, 1997. Unfortunately, it learned several weeks later that its carpet subcontractor had not been truthful. Upon learning of this situation, Levie made immediate arrangements to repair Mrs. Majors’ carpet, and such was done on March 3, 1998. The carpet was repaired to Mrs. Majors’ satisfaction. According to Levie, it gave Mrs. Majors a copy of the entire contract when she purchased the home in November, 1996. Mrs. Majors disputed that testimony. But the contract states the signer has received a copy of the entire contract. Further, the contract was for a $47,960.00 purchase. Both parties in a transaction of this nature - the purchase of a manufactured home - and of this amount, can be reasonably concluded, exchanged copies of the complete contract on the day of the original purchase. Regarding the factory order, Levie gave Mrs. Majors, on December 2, 1997, what it had in its possession. Viewing the evidence in its entirety, it cannot be concluded that Levie failed to act in a material respect regarding giving Mrs. Majors copies of these documents. RECOMMENDED ORDER It is recommended that the Director impose no sanctions on Levie. SUBMITTED this 26th day of May, 1998.

George A. Schade, Jr. Administrative Law Judge

The original Recommended Decision and Order of the Administrative Law Judge was mailed on May 26, 1998, for distribution to the parties, to:

N. Eric Borg, Director Arizona Department of Building and Fire Safety East Virginia, Suite 100 Phoenix, Arizona 85004

George A. Schade, Jr.

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