ALJDEC

99F-C989123-BFS · Department of Building and Fire Safety · 1999-01-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 8, 1999 APPEARANCES: Thomas Caslake and Carla Caslake appeared on their own behalf; Tom Cady appeared on behalf of Cady and Associates, Inc. ADMINISTRATIVE LAW JUDGE: Lewis D. Kowal _____________________________________________________________________ FINDINGS OF FACT 1. At the commencement of the hearing, the parties stipulated that the only remaining item in dispute was item number 17 of the Verified Complaint issued in this matter, namely, that no warranty papers were issued for the pump and pressure tank. 2. In January , 1998, Thomas and Carla Caslake (“Complainants”) purchased a manufactured mobile home (the “Home”) and land from Cady and Associates, Inc. dba Crossroads Mobile Homes (“Respondent”). 3. Subsequent to the above-mentioned purchase, Complainants experienced certain problems at the Home that required repairs. Complainants also had a disagreement with Respondent as to whether the contract entered into between the parties required Respondent to provide a pump and pressure tank. 4. Ultimately, the parties resolved the above-mentioned contractual dispute and Respondent agreed to, and did in fact, provide Complainants with a pump and pressure tank. 5. It is undisputed that a subcontractor for the Respondent installed a pump and pressure tank at the Home. That subcontractor opened and removed those items from cartons that were delivered to the Home. Upon installation of the pump and pressure tank, the subcontractor disposed of the cartons. 6. During the hearing, Respondent acknowledged that Complainants should have manufacturer’s warranty documents for the pump and pressure tank and credibly testified that the warranty documents are included in the original cartons and are not separately provided by the manufacturer. Therefore, Respondent contended that the Complainants could and should obtain the warranty documents from either the manufacturer or the dealer from whom Respondent obtained the pump and pressure tank. 7. Respondent presented a letter at the hearing authored by the vice- president of the dealer from whom Respondent obtained the pump and pressure tank. That letter represents that the dealer will honor the manufacturer’s warranty under certain conditions That letter was recently obtained by the Respondent and was not provided to Complainants prior to this hearing. 8. It is undisputed that Respondent provided a fax copy of a warranty document regarding the pump to Complainants in December , 1998. 9. Complainants were not satisfied with the copy of the warranty document and still requested that original warranty document concerning the pump and pressure tank be provided. To date, Respondent has not provided Complainants with original warranty documents for the pump and pressure tank. Subsequent to the installation of the pump and pressure tank at the Home, the business relationship between the parties deteriorated. This is evident not only by the manner in which the parties have dealt with each other, but also by the fact that the Complainants have obtained a restraining order in Peoria Justice Court against Tom Cady, the president of the Respondent. Pursuant to that Order, Mr. Cady is not allowed on or near Complainants’ property is not to contact them except through the mail. Although the above-mentioned restraining order complicates matters, it does not relieve Respondent from fulfilling his legal obligations to Complainants. Respondent provided the pump and pressure tank to Complainants and caused it to be installed by its subcontractor. As such, the warranty documents at issue were in the control of Respondent’s agent , who should have provided them to Complainants. Therefore, it is determined that Respondent should have provided the pump and pressure tank warranty documents to Complainants and is still responsible for doing so. CONCLUSIONS OF LAW The conduct of Respondent as set forth above violated the provisions of A.R.S. §41-2186 (1), (12), and (19). The evidence of record did not establish that Respondent violated the provisions of A.R.S. §41-2186 (20). RECOMMENDED ORDER Respondent’s Class D-8 license issued by the Arizona Department of Building and Fire Safety shall be suspended until Respondent causes its subcontractor to obtain the serial numbers of Complainants’ pump and pressure tank at the Home and Respondent is to take appropriate action to ensure that the Complainants receive by mail original warranty documents for those items. In the event that Respondent complies with the above, then no license suspension shall occur. In addition to the above suspension, if any, Respondent shall pay a civil penalty in the amount of $150.00 to the Department of Building and Fire Safety within 30 days of the effective date of the Order entered in this matter. Done this day, January 20, 1999.

_________________________________ Lewis D. Kowal Administrative Law Judge

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

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

By _______________________________

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Office of Administrative Hearings 1700 West Washington, Suite 602 Phoenix, Arizona 85007 (602) 542-9826