ALJDEC

99F-A989009-BFS · Department of Building and Fire Safety · 1999-05-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 26, 1999. APPEARANCES: APPELLANTS: Did not appear; RESPONDENT Cavco Ind. LLC: by Scott Roseburgh, Service Manager and authorized representative; RESPONDENT Investment Corp. of America - Phoenix, dba Homes of America: by Edmund Richardson, Esq.

ADMINISTRATIVE LAW JUDGE: Anthony Halas _____________________________________________________________________ In this matter, Appellants Janice and Edward Liller filed Notice of Appeal of certain of the “Not Verified” items as addressed in the VERIFIED COMPLAINT & SIGN-OFF FORM issued by the inspector of the Office of Manufactured Housing (OMH), Arizona Department of Building and Fire Safety (Department). On the basis of their appeal, hearing was duly scheduled and convened, and the following Findings of Fact, Conclusions of Law and Recommended Decision are now made to the Director of OMH: FINDINGS OF FACT 1. At the time and place set for hearing in this matter, Appellants Janice and Edward Liller did not appear, nor did anyone on their behalf. 2. Respondent manufacturer Cavco Ind. LLC appeared through its Service Manager and authorized representative, Scott Roseburgh. 3. Respondent dealer Investment Corp. of America - Phoenix dba Homes of America was represented by counsel, Edmund Richardson, who moved to dismiss the appeal on the basis that Appellants had failed to sustain their burden of proof. 4. Mr. Richardson also moved for the imposition of sanctions and/or attorney fees, given Appellants’ failure to appear and present any evidence. 5. Administrative notice is taken of correspondence authored by Mr. and Mrs. Liller, dated May 19, 1999, filed with the Department of Building and Fire Safety on May 21, 1999, and a copy of which was provided to the undersigned and both Respondents for the first time at hearing on May 26, 1999. In that letter, as relevant to this proceeding, the Lillers confirmed that they would not be attending the hearing as they feel it would be to no avail.

CONCLUSIONS OF LAW 1. The burden of proving the allegations made in their Notice of Appeal is on Appellants, by a preponderance of the substantial evidence. No evidence having been presented in this case, that burden has not been met, and Respondent’s motion to dismiss should be granted. 2. Within the limited authority of the undersigned to address sanctions and/or attorney fees for Appellants’ failure to appear, Respondent’s motion is denied: while Appellants’ correspondence of May 19, 1999 to the Department did not provide actual notice to either Respondent that Appellants would not appear at hearing, it is found that the letter was sufficient in providing timely constructive notice to all concerned that Appellants did not intend to pursue their appeal. RECOMMENDED ORDER In view of the foregoing, IT IS RECOMMENDED that Appellants’ Notice of Appeal in Case No. AAA 98-9/009 be dismissed. Done this day, May 26, 1999.

______________________________________ Anthony Halas Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 1999, to:

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

By ___________________________

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826