ALJDEC

99F-C978229-BFS · Department of Building and Fire Safety · 1999-03-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 19, 1999 APPEARANCES: Edward Brewer on his own behalf; Respondent did not appear at the hearing ADMINISTRATIVE LAW JUDGE: Lewis D. Kowal _____________________________________________________________________

FINDINGS OF FACT 1. On approximately October 9, 1997, Edward Brewer (“Complainant”) purchased a double wide manufactured home (“the Home”) from Mountain Brook Homes, Inc. (“Respondent”). Subsequently, Complainant began experiencing problems with the Home. Complainant notified Respondent of those problems and requested that Respondent correct them. 2. One of the above-mentioned problems was that the Home was not level. All other problems complained of by Complainant that have been verified by an inspector with the Arizona Department of Building and Fire Safety (“Department”) result from the Home not being level and were items addressed at the hearing of this matter. 3. During the hearing, Complainant contended that there were items other than those that were identified in the Notice of Hearing issued in this matter that were not corrected and are Respondent’s responsibility. The Administrative Law Judge did not provide an opportunity for the Complainant to address those items during the hearing as they were determined to be outside the scope of the hearing. 4. Credible evidence was presented that established that the following items were deficient, as follows: e) The Home is not level. The Home is not placed properly upon piers. The marriage line is uneven in that one side of the Home is higher in elevation than the other side. All doors within the Home do not close properly. f) Cracks exist under all of the windows and throughout the Home. g) All three bedroom doors and the master bedroom closet door have cracks and gaps at the top and sides between the doors and the frames. Those doors need to be finished, reframed and rehung. h) The door to the master bathroom has rough edges and gaps between the door and the frame. That door needs to refinished and rehung. i) Large gaps exist in the stemwall. j) Gaps exist around the trim at the corners of the Home. The trim at those areas is not square. k) The right window in the family room is out of square and requires straightening. 5. On November 26, 1997, Complainant notified Respondent that the Home was not level. Respondent arranged for that item to be repaired and some work was done to correct that problem. When Respondent’s corrective work was completed, Complainant informed Respondent that the Home was still not level. After such work, Complainant credibly testified that the condition worsened. Subsequently, Respondent represented that certain items such as the cracks throughout the Home would be corrected and also represented that additional work would be taken to level the Home. Despite the representations Respondent made to Complainant, Respondent did not accomplish such work other than as mentioned above. 6. Complainant credibly testified that a representative of the manufacturer of the Home inspected the Home and confirmed that the Home was not set right and is not level. 7. The evidence established that all of the items complained of by Complainant result from the Home not being level. 8. Complainant presented credible evidence that on Thanksgiving of this past year, while eating dinner he heard a loud pop and noticed that a portion of a beam in the kitchen wall had moved forward away from the wall, leaving a large crack. At that time, Complainant also noticed that the front door had moved approximately ¾ of an inch and cannot be locked. 9. It is uncontroverted that the items set forth above in paragraph 8 did not exist prior to Thanksgiving of 1998, the items were not mentioned in the Complaint filed by Complainant and were not verified by the Department’s inspector as they did not exist at that time. 10. It is determined that because the items mentioned above in paragraph 8 result from the condition of the Home not being level, the Complaint is amended to conform to the evidence presented during the hearing regarding those items. Under the circumstances, it is appropriate to deem the items verified for purposes of having them considered to be within the scope of this hearing. To hold otherwise, would be contrary to the spirit and intent of the Department’s statutory scheme, particularly where, as in this case, the evidence of record reveals that the Respondent has not acted appropriately to correct certain deficiencies. Such inaction has caused Complainant to experience further problems at the Home. It is therefore determined that the laws were not enacted so as to allow a noncompliant Respondent to reap a benefit by failing to correct deficiencies at the expense of a purchaser of a manufactured home. 11. The evidence of record established that the Respondent has not taken appropriate corrective action to the items that are the subject of this hearing and has not taken appropriate action to address those problems. 12. Respondent did not present any evidence to refute or rebut the evidence presented by the Complainant as set forth above. CONCLUSIONS OF LAW The evidence of record established that Respondent is in violation of A.R.S. §§41-2186 (1), (12), (19), and (20). RECOMMENDED ORDER Based on the above, and considering the seriousness of the items that Respondent should have corrected, the duration of time in which the items have remained uncorrected and the apparent disregard by Respondent to address those items, Respondent’s Class D-8 licensed issued by the Department shall be revoked on the effective date of the Order entered in this matter. Done this day, March 3, 1999

______________________________________ Lewis D. Kowal 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