ALJDEC

99F-A989016-BFS · Department of Building and Fire Safety · 1999-08-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 25, 1999 APPEARANCES: Complainant: Richard Malko. Respondent : Schult Homes Corporation (the Manufacturer of Complainant’s mobile home) was represented by Mary Webb, Service Manager, Richard Schultis, Field Service Supervisor, and Roger VanZyl, Acting General Manager. Busbee Mobile Homes, Inc. (the Seller) was represented by Tim Busbee, President. Sunrise Home Service (the Installer) was represented by Roger Wendt, President. ADMINISTRATIVE LAW JUDGE: Gary B. Strickland _____________________________________________________________________

Complainant, Richard Malko, appeals from a Department of Building and Fire Safety, Office of Manufactured Housing, rendering of a “Not Verified” determination upon Mr. Malko’s complaint concerning alleged deficiencies to his manufactured home. The complaint was dismissed by the Office of Manufactured Housing as having been submitted beyond the 12 months within which one is allowed to complain pursuant to statute. FINDINGS OF FACT

1. Complainant signed a “New Home Purchase Contract”, on December 16, 1997, for the purchase of a home manufactured by Schult Homes Corporation. The contract was executed on January 24, 1998. 2. The home was purchased through Busbee’s Mobile Home Sales, Inc. and installed by Sunrise Home Service. 3. A “set-up” for the installation of the home was conducted by Sunrise Home Service on March 10 or 11, 1998 and installed on March 11, 1998 (Insignia AZ231538). 4. The Malkos moved into the home on April 25, 1998. 5. On April 14, 1999, Complainant filed a complaint with the Office of Manufactured Housing setting forth dissatisfaction with the home in four particulars: a) Floors out of level more than ½”; b) Plumbing main waste going up hill; plumbing vent not to code; c) Frame is out of level per factory rep.; d) Schult has voided warranty on home. 6. The complaint was dismissed by the Office of Manufactured Housing on May 26, 1999 with the exception that the inspector had verified a structural defect in the joist under the kitchen and directed the manufacturer, Schult Homes Corporation, to correct the deficiency. The allegations were dismissed as the complaint had not been submitted to the Office of Manufactured Housing within 12 months of the purchase of the home. No explanation has been given concerning the Office of Manufactured Housing’s reasons for verification of a fifth item of complaint while dismissing the original four items on timeliness grounds. Respondent Schult Homes Corporation’s representatives stated at the hearing that the concern may have had something to do with Housing and Urban Development (“HUD”) requirements. 7. At the hearing, Respondent Schult Homes agreed to correct any deficiency in the flooring due to a defective joist in the kitchen.

CONCLUSIONS OF LAW

1. This matter is within the jurisdiction of the Office of Administrative Hearings pursuant to A.R.S ( 41-1092.08. 2. The issue presented concerns whether the Office of Manufactured Housing properly dismissed Complainant’s allegations as to deficiencies in the subject manufactured home. The matter was properly dismissed. 3. The Office of Manufactured Housing is required to verify the written complaint of a consumer if the consumer files the complaint within one year (12 months) from the date of purchase of the home or the date of the installation of the home. A.R.S ( 41-2153 (B) (9). Complainant purchased this home on January 24, 1998; the home was installed on March 11, 1998. Complainant then submitted his allegations of deficiencies on April 14, 1999, in excess of 12 months from the terminus a quo established by the statute. 4. The burden of proof generally at an administrative hearing falls to the Complainant. Culpepper v. Arizona Board of Nursing, 187 Ariz. 431, 930 P.2d 508 (App. 1997). Further, the standard of proof is that of the “preponderance of the evidence”. Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). Applying these standards, it is clear that Complainant has failed his burden of demonstration that his complaint before the Office of Manufactured Housing was dismissed as untimely filed in violation of applicable law. However, Respondent Schult Homes Corporation has agreed to correct the structural defect in the joist under the kitchen, as it had been directed to do by the Office of Manufactured Housing on the “Verified Complaint and Sign-Off Form.” Respondent Schult Homes should be given 30 days from this decision in which to make the proper corrections.

RECOMMENDED ORDER

Based upon the foregoing, IT IS RECOMMENDED that the Citation and Complaint be dismissed as to the original four items of complaint. IT IS FURTHER RECOMMENDED that Respondent Schult Homes Corporation be ordered to make the necessary corrections to the structural defect in the floor joist under the kitchen within 30 days of this decision, in accordance with applicable law.

Done this day, August 30, 1999.

______________________________________ Gary B. Strickland Administrative Law Judge

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

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

By ___________________________

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