ALJDEC

99F-A978012-BFS · Department of Building and Fire Safety · 1998-11-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 27, 1998 APPEARANCES: APPELLANT: Joseph and Germaine Delveaux; RESPONDENT: Edward Schieffer, on behalf of Patriot Mobile Homes, Inc.; RESPONDENT: Scott Reser, on behalf of Redman Homes, Inc.

ADMINISTRATIVE LAW JUDGE: Anthony Halas _____________________________________________________________________

In this matter, Appellants Joseph and Germaine Delveaux have appealed a “Not Verified” item in their home as addressed in the determination of the inspector of the Office of Manufactured Housing ( “OMH” ) of the Arizona Department of Building and Fire Safety ( “Department” ). Based on the evidence presented, the following Findings of Fact, Conclusions of Law and Recommended Decision are made to the Director of the Department:

FINDINGS OF FACT

1. On or about January 29, 1998, Appellants Joseph and Germaine Delveaux purchased a home manufactured by Redman Homes, Inc., from the dealer, Schieffer Decker, Inc. dba Patriot Mobile Homes, Inc., which arranged for the manufactured home to be installed in February, 1998. 2. On April 16, 1998, Appellants filed a consumer complaint with OMH, which listed certain items they asserted required correction. Of those, the only one relevant to this proceeding is their assertion that the dining room window in their manufactured home was smaller than had been agreed upon by the parties, and should have been the same size as the window they had observed and approved in the model home displayed by the dealer. 3. After receiving written responses addressing the size of the window and presenting the respective positions of the manufacturer and the dealer, Gary Grounds, the OMH Complaint Program Manager, in a letter dated May 13, 1998, advised Appellants that , “…the following determination has been made regarding item #1: ADMINISTRATIVE REVIEW 1.) Dining room window smaller than what we agreed on (45 ¼ x expected): NOT VERIFIED. This item is not listed as part of the purchase agreement of January 15, 1998, or the two build orders.”

4. An inspection was conducted on May 28, 1998, by OMH inspector Dennis Butzen, and he determined that certain of the items originally complained of were verified for correction by either the manufacturer or the dealer, which was accomplished, to Appellants’ satisfaction, with regard to those items so verified. 5. However, the VERIFIED COMPLAINT & SIGN-OFF FORM issued by OMH on May 29, 1998, further determined and confirmed that the size of the dining room window was “NOT VERIFIED by administrative review” and therefore not subject to correction. That form advised Appellants of their right to request a hearing, which right they timely perfected. 6. As a result, the Assistant Director of the Department issued Notice of Hearing on September 2, 1998, setting the matter for hearing on the issue of the determination by OMH that item 1 was NOT VERIFIED. 7. At the hearing on October 27, 1998, Appellant Joseph Delveaux testified, as did Scott Reser, service manager and representative for the manufacturer (Redman Homes, Inc. ( “Redman” )), and Edward Schieffer, as president and representative for the dealer (Patriot Mobile Homes, Inc. ( “Patriot” )). 8. On the basis of that testimony, and the evidence of record, it is undisputed that when Appellants first toured (in approximately the first week in January, 1998) the “New Moon Model 5558” home manufactured by Redman, as displayed by and on the premises of Patriot, they observed, and liked, the size of the dining room window in that model, which window was 45” x 58”. However, after negotiating the purchase of that model, which included a number of changes, which they thought included the window size, Appellants were dissatisfied to find, upon their first opportunity in late January, 1998, to observe their new home as built to order, that the dining room window was smaller, at only 30” x 58” . 9. It is also found to be undisputed that the Model no. 5558 displayed by Patriot and toured by Appellants in early January, 1998, was Redman’s 1997 model, while the actual home purchased by and built for Appellants was Redman’s 1998 Model no. 5558, which included certain design changes, one of which was to reduce the size of the particular dining room window at issue. 10. It is further undisputed, and therefore found, that neither Patriot’s salesman, David Macaluso, nor anyone else dealing with Appellants on behalf of the dealer, notified them of the window design change, at any time before they first observed and became aware of the smaller window in their new home, or that they had toured a 1997 model, different in any way from the 1998 model actually purchased. 11. A fair inference to be made based on the evidence, and therefore so found, is that the dealer and its agents were simply and reasonably unaware of this particular design change from the 1997 to 1998 models. 12. However, the evidence is more ambiguous and less certain whether Appellants knew or should have known either that the model they toured was a 1997. There is simply no evidence that any information was available or provided to them that the display model was a 1997, although it is presumed, and found, that the dealer’s agents were so aware. 13. Then, while Appellants also deny that any information was provided that they were purchasing a 1998 model, it is found that such information was reasonably available, given administrative notice of certain documents contained in the file, one of which was originally submitted as an attachment to the May 5, 1998 letter by Mr. Schieffer (for Patriot) to OMH. That document consists of a floor plan of Model 5558 (with Model C522 photocopied onto the same page), with hand-written annotations, apparently by salesman Macaluso, describing modifications or changes desired by Appellants. As confirmed by Exhibit 1, marked and admitted at hearing, it is apparent that the floor plan is part of Redman’s “New Moon 1998 Single-Section Homes” sales brochure (emphasis added).

14. Administrative notice is also taken of Purchase Agreement No. 1621, signed by Appellants and Mr. Macaluso, and dated January 15, 1998, which memorializes the sale of “MAKE AND MODEL: Redman New Moon, YEAR: 98 (emphasis added), and the Redman Invoice dated January 26, 1998, which also lists the model year as 1998. 15. There is no doubt in the mind of the undersigned that Appellants at all times desired and intended that their home have the larger dining room window they had first viewed, and that such was not an insignificant factor in their choice. 16. However, even accepting Mr. Delveaux’s credible testimony that he and his wife were unaware that their salesman was referencing 1998 model information, or that the purchase agreement and invoice indicated a 1998 model, rather than 1997, there is simply no basis to find (nor even an allegation made) that the dealer somehow acted improperly to hide from Appellants, or make it difficult for them to ascertain, what model year home they had toured, or purchased, or to somehow otherwise intentionally thwart Appellant’s choice of dining room window, particularly given the evidence as a whole which makes it readily apparent that both the dealer and the Delveaux’s worked closely in their joint attempt to sell and buy a mutually-satisfactory home. That evidence renders reasonable the inference that had the dealer been made aware of Appellants’ desire, the appropriate change order would have been negotiated. 17. It is therefore found that Appellants have failed to demonstrate that the smaller dining room window as installed should be verified as subject to any correction in size as the responsibility of the dealer, Patriot Homes, Inc. 18. With regard to the manufacturer, Redman Homes, Inc., it is found that it had no notice from the dealer or the Delveaux’s, through a formal change order or any other more informal communication, that it should install the larger dining room window of its 1997 model on the 1998 model ordered by Appellants, with its smaller window now standard. Neither its own “specifications sheet” (nor that completed by the dealer), nor its Invoice included among the many other documented changes any change from the window size it deemed standard on that particular model. For that reason, it could not be expected to make any such change in window size while manufacturing Appellants’ home to order. 19. There is a certain irony in such a result, in that it was the manufacturer whose changed design - without actual notice to Appellants - reduced the larger window as appreciated by the Delveaux’s in their tour of the 1997 model to the smaller one standard on the 1998 model. However, perhaps in anticipation of the difficulties of providing such actual notice to all potential buyers whenever it makes a design change, the manufacturer chose to provide the following language in its 1998 New Moon (including Model No. 5558) sales brochure (Exhibit 1): Interior and exterior features and specifications may vary from those shown according to regional and local preferences and requirements. Subject to change without notice.

20. Because it is found that such notice of possible design changes, albeit in general rather than specific terms, was reasonably available to Appellants at the time they negotiated to purchase their manufactured home, it is therefore found that Appellants have failed to demonstrate that the smaller dining room window as installed should be verified as subject to any correction in size as the responsibility of the manufacturer, Redman Homes, Inc.

CONCLUSIONS OF LAW

1. Appellants have the burden of proof, and the standard of proof on all issues is by a preponderance. Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). That term is defined as “such proof as convinces the trier of fact that the contention is more probably true than not.” Udall, Arizona Law of Evidence, § 5 (1960). 2. In this matter, while Appellants are deemed credible in both the nature of their complaint and their testimony, it must nevertheless be concluded that they have failed to sustain their burden, by a preponderance, of demonstrating their contractual entitlement to the larger dining room window as a term for which either the dealer of manufacturer is liable, and therefore, they did not prove that the Department’s determination to NOT VERIFY that item should be reversed.

RECOMMENDED ORDER

On the basis of the foregoing, the undersigned Administrative Law Judge recommends that the Department’s administrative decision to NOT VERIFY the first item of Appellants’ Complaint be upheld, and the appeal be dismissed. Done this day, November 13, 1998.

_________________________________ Anthony Halas Administrative Law Judge

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

Mr. N. Eric Borg, Director, Director Department of Building & Fire Safety E. Virginia, Suite 100 Phoenix, AZ 85004 ATTN: Michelle M. Castaneda

By _______________________________

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