ALJDEC

99F-A989011-BFS · Department of Building and Fire Safety · 1999-07-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 17, 1999. APPEARANCES: APPELLANT: by Linda Glidewell, on her own behalf. RESPONDENTS (Manufacturer and Dealer): by Edmund Richardson, Esq.

ADMINISTRATIVE LAW JUDGE: Anthony Halas _____________________________________________________________________ In this matter, Appellant Linda Glidewell has appealed certain of the “Not Verified” items 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). Based on the evidence presented, the following Findings of Fact, Conclusions of Law and Recommended Decision are made to the Director of OMH: // // //

FINDINGS OF FACT

1. On or about June 5, 1998, Appellant Linda Glidewell (Glidewell) purchased a home manufactured by Homes by Oakwood Inc. (License No. 6564, Class M-9C), from the dealer, Oakwood Mobile Homes, Inc., dba Oakwood Homes - Apache Junction (License No. 6446, Class D-8). The home was installed on or about July 29, 1998. 2. On February 1, 1999, Appellant Glidewell filed a consumer complaint with OMH, which listed 11 items she asserted required correction.

3. An inspection was conducted on March 18, 1999, by OMH inspector Dennis Butzen, and in his VERIFIED COMPLAINT & SIGN OFF FORM, he determined that certain of the items originally complained of had been CORRECTED (Items 2, and 3), or were VERIFIED for correction by either the manufacturer (Items 5, 6, 9a, b, c, d, and 15) or the dealer (Items 7, 12, 13, and 14), or were NOT VERIFIED (Items 1a, b, 4, 8, 9e, 10, and 11). 4. In correspondence filed with OMH, Appellant confirmed her request for appeal of the VERIFIED COMPLAINT & SIGN-OFF FORM, and identified as the basis for that appeal particular concerns with NOT VERIFIED Items 8, “Home was to be hooked up to natural gas” and 10, “I ordered home [with] an extra window in the living room” 5. Findings 1 through 4 are premised on administrative notice taken of documents maintained in the file of OMH, copies of which were provided the undersigned administrative law judge of the Office of Administrative Hearings by the Department. 6. Hearing was therefore duly noticed, and was convened as scheduled, at which time Appellant Linda Glidewell appeared and testified, and presented the testimony of her daughter Barbara Glidewell, and offered exhibits (Exhibits A and B), which were marked and admitted, to be given the weight deemed appropriate by the undersigned, relative to the respective relevance and probative value of each Exhibit. 7. The manufacturer and the dealer, related entities within the same corporate structure, were represented by Edmund Richardson, Esq. Respondents offered the testimony of Moe Ugarte and Walt Norris, and offered 2 exhibits (Exhibits 1 and 2), which were marked and admitted, without objection. 8. The essence of Glidewell’s position is that the manufactured home delivered and installed was not the home she had ordered, but that if only the correct build order could be produced, for which the dealer had refused her request, it would show the housing was ordered with the standard electric water heater rather than the gas water heater installed, and with the two optional living room windows rather than the one included as standard. 9. Glidewell explained that the housing was to include an electric hot water heater as standard, since although she originally wanted the optional gas water heater, she chose not to spend the extra $400.00 for that option. 10. Nonetheless, Glidewell stated that she was advised by the dealer’s representatives that gas was available on site, although it was not. 11. Glidewell described two meetings with the dealer’s salesmen, Jeff, and Mike Krycho (Krycho). The first meeting was on or about June 5, 1998, when she signed the initial CONTRACT TO PURCHASE AND DEPOSIT AGREEMENT (Exhibit 1). 12. Then, about a week later, after she made hand-written notes on a file-folder (Exhibit B) regarding various options, Glidewell and her daughter met with Krycho, during which meeting she made additional annotations on the file-folder regarding the availability of those options.

13. Based on those meetings, Glidewell asserts that the housing was to be built to her specifications to include the standard electric water heater and the two optional living room windows. 14. Glidewell referenced the PRODUCTION CONFIRMATION - CUSTOMER AND MODEL INFORMATION (Exhibit A) (previously submitted by Respondents in reply to a request by OMH for additional information) to contend it was not the true “build order”. She asserted that her reading of certain dates and other information contained therein confirmed that it could not be the build order her manufactured housing was built from. 15. Respondents argued to the contrary, asserting the PRODUCTION CONFIRMATION was a copy of the actual build order. 16. Close consideration by the undersigned of that document (Exhibit A) finds it to be an apparent photocopy of a poorly-printed original, such that certain lines are found to be simply illegible, in whole or part, including the “Confirmed date” alleged by Appellant to indicate a date in May, 1998, or a date prior to her ever having seen the housing. 17. Other information on page 1 in Exhibit A is read, and therefore found, by the undersigned to confirm the housing was to be built with both a gas water heater and furnace, as it was delivered. 18. The entry in Exhibit A with regard to the optional two living room windows is found to be sufficiently illegible so as to be inconclusive, and therefore not probative of either party’s assertions; i.e., the entry on page 2 of Exhibit A, annotated in some unknown individual’s hand-writing as “optional windows” simply cannot be read with sufficient certainty or reliability to be considered persuasive of the inferences urged by either party. 19. Glidewell confirmed her signature on Exhibit 1, the CONTRACT TO PURCHASE AND DEPOSIT AGREEMENT dated June 5, 1999, and completed in hand- written entries, and Exhibit 2, a similar CONTRACT TO PURCHASE AND DEPOSIT AGREEMENT, dated July 13, 1998, and completed in typewriting. She conceded that neither of those documents, nor any other documents in her possession (since Respondent had refused her prior request for such information), specified that the housing would be built with the two optional windows, or be hooked up to natural gas. She also asserted that installation slips signed by “Richard” contained that information. 20. Barbara Glidewell testified to describe her knowledge of her mother’s intended options, and her own recollection of the meeting with Krycho on about June 13, 1998, explaining that the three of them had discussed the two optional windows in the living room, in order to make it “light and airy”. 21. Walt Norris (Norris), Respondent dealer’s sales manager, testified that the CONTRACT TO PURCHASE AND DEPOSIT AGREEMENT forms of Exhibits 1 and 2 were used to confirm options ordered by the purchaser, and if the form did not have a particular option listed, then that option wasn’t ordered. 22. Norris explained that the PRODUCTION CONFIRMATION - CUSTOMER AND MODEL INFORMATION form (Exhibit A) was used as the “build order” between the dealer and the manufacturer, to itemize the “package” of options contained in the contract. He read Exhibit A to include a gas water heater and the single standard living room window, although he conceded difficulty in deciphering certain parts of that document. 23. Norris stated that he thought a copy of the PRODUCTION CONFIRMATION information would be given to the buyer on request, but he conceded that he began employment with the dealer in November, 1998, so was unaware of any such request Glidewell might have made in June, 1998. 24. Moe Ugarte (Ugarte), the regional service manager for 5 years for Respondents' parent corporation, Oakwood Homes Corporation, testified that the contract and build order forms contained all information for the manufacturer to build the housing to the customer’s specifications, and if those forms did not include a particular item, it would not be included in the housing built. 25. Ugarte stated that company policy was, and had been when Glidewell purchased her home, that the buyer would be provided a copy of the production papers, such as the build order, if requested. 26. Both Norris and Ugarte stated that “Richard Switzer” was not an employee of either the dealer or manufacturer, but was a contractor for the dealer who would install the housing on the buyer’s site.

27. On June 21, 1999, subsequent to hearing, Glidewell filed a motion to reopen the record to allow her to subpoena Respondents' employment records in order to allow her to prove that “Richard Switzer” (Switzer) [an individual referenced in testimony, but not subject to any subpoena request, and not in attendance at hearing] was an employee of the dealer, which she asserted would show that Respondents' witnesses were not honest. 28. Respondents’ counsel was provided the opportunity to respond to Appellant’s motion to reopen, but no response was received within the time allotted. 29. Consideration of the record causes the undersigned to find that Switzer worked for Respondent dealer as a subcontract installer rather than as an employee, although Appellant may reasonably have viewed him as the dealer’s employee or agent based on his implicit or explicit representations to her. 30. It is further found that whether his employment status was that of an employee or contract labor presents a distinction without a difference, at least relative to the issues and evidence presented in this matter, and any determination to be made regarding witness credibility. 31. For that reason, Appellant Glidewell’s motion to reopen is found to be moot, and is denied.

CONCLUSIONS OF LAW

1. Appellant has 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 Appellant is deemed credible in asserting her intent to purchase her manufactured housing with the electric water heater and the two optional living room windows, it must nevertheless be concluded by the undersigned that she has not sustained her burden, by a preponderance, of demonstrating that the inspector’s determination to NOT VERIFY Items 8 and 10 was improper, or otherwise contrary to the probative evidence. It would appear to the undersigned that for whatever reason, Glidewell’s intended choices - at least those two at issue herein - were either not clearly communicated to, or understood by, the dealer’s representatives, and were therefore not included in the specifications from which the manufacturer built her home. 3. However, without further probative evidence to confirm Glidewell’s intent, that intent alone is insufficient to sustain her burden of proof. 4. On the basis of the findings above, the undersigned concludes that Appellant’s post-hearing motion to reopen is moot, and is therefore denied. 5. Finally, while not compelling in terms of the findings and conclusions above, or the recommended decision below, the undersigned further accepts as credible Appellant’s assertion that sometime in June, 1998, she requested, but was refused by the dealer’s representative Krycho, a copy of the build order, or its equivalent. In light of the testimony by Norris and Ugarte that such information is readily available upon request, Respondent manufacturer and dealer may wish to promulgate that policy more clearly to its representatives.

RECOMMENDED DECISION

On the basis of the foregoing, IT IS RECOMMENDED that the Department’s decision to NOT VERIFY items 8 and 10 be upheld. Done this day, July 21, 1999.

______________________________________ Anthony Halas Administrative Law Judge

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

Department of Building & Fire Safety Mr. 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