VACATE - was Order document type - moved during audit 8/25/08 - cjv

99F-C989102-BFS · Department of Building and Fire Safety · 1999-01-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

A hearing was commenced in this action on the date and time scheduled, at which all the parties appeared. Prior to the parties’ presentation of evidence, the undersigned explained the nature of and relief available in a contested licensing proceeding. The Arizona legislature, in creating the Department of Building and Fire Safety, did not authorize it to award money damages or to rescind a contract of sale for a manufactured residence, which relief must be obtained, if at all, through a civil court action. The legislature has empowered the Director of the Department of Building and Fire Safety to impose a broad range of disciplinary penalties for licensees’ violations of A.R.S. § 41-2186, however, and the possible loss of a licensee’s license and livelihood may be a more powerful incentive for a licensee to take appropriate corrective action than the possible imposition of civil damages. Complainants nonetheless informed the undersigned that the sole remedies they sought were rescission of the sale contract and an award of any other consequential damages to which they might be entitled. Since Respondents allegedly had not fully and adequately corrected the verified items within the time allowed by the Assistant Director (less the last three days, when Complainants were unavailable), Complainants were not willing to allow Respondents any further opportunity to correct the verified items. In addition, Complainants wished to seek rescission or damages for alleged problems with the site of the residence, which were not included on the verified complaint because the Department’s inspector allegedly had told Complainants that the Department lacked jurisdiction to remedy the matters complained of. Since the undersigned could not recommend that the Director rescind the contract and Complainants did not care about sanctions being imposed against Respondents’ licenses or wish to afford Respondents any additional opportunity to take corrective action, Complainants elected to withdraw their administrative complaint. In view of the foregoing, it is recommended that the Director dismiss the Citation and Complaint against all three Respondents, without prejudice to Complainants’ asserting in a court of competent jurisdiction any civil claims they may have against Respondents arising out of Complainants’ purchase of the manufactured residence at issue. Done this day, January 21, 1999.

______________________________________ Diane Mihalsky Administrative Law Judge

Copy mailed this ____ day of January, 1999, to:

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

By ___________________________

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