ALJDEC

99F-C989124-BFS · Department of Building and Fire Safety · 1999-01-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 8, 1999 APPEARANCES: Randall an Felicia Clark, Complainants, in their own behalf Brent Wild, President and owner, on behalf of the corporate Respondent ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________ Findings of Fact 1. The Complainants purchased their manufactured home from the Respondent in October,1997. 2. The home was manufactured by Cavco Industries (Cavco). 3. Cavco obtained and supplied the carpeting for the home. 4. The Respondent had the carpeting installed throughout the home except the kitchen and bathrooms. 5. Shortly after moving into the home, the Complainants noted a number of problems including the fact that the carpet was pulling up (delaminating or otherwise separating from the backing). Except for the carpet issue, all other issues which were noticed for the instant hearing are no longer at issue. 6. The evidence is clear that the separation of the carpet throughout the home is because of a failure of the adhesive. A carpet sample brought to the hearing, coupled with photographic evidence and the testimony of the Complainants and Respondent showed the problem was due to a carpet manufacturing defect. 7. The Complainants notified the Respondent who informed Cavco regarding the carpet problem. Cavco did not acknowledge the problem as their responsibility.

8. The Complainants subsequently filed their complaint with the agency and on September 17, 1998, Inspector Dennis Butzen (Butzen) performed an inspection. Butzen verified the carpet complaint and assigned the responsibility for correction to the Respondent dealer. 9. The Respondent did not correct the carpet because the defective carpet had been obtained and supplied by Cavco.

Conclusions of Law The Citation and Complaint alleges in pertinent part that the Respondent is in violation of A.R.S. §41-2186.1, .12, .19 and .20. These portions of the statute concern themselves with failure to comply with the identified articles of the chapter, failure to respond to the verified complaint, failure to provide all goods and services and failure to install in a workmanlike manner.

1. The violation is not proven against the Respondent because the evidence shows the Respondent was only responsible for the installation of the carpet and did not provide or supply the carpet. According to the evidence the carpet was provided by the manufacturer of the home, Cavco. There was no evidence that at the time of installation the Respondent’s agent (installer), knew or should have known the carpet was defective. Under these facts no legal theory was presented which would support sustaining a violation against the Respondent.

2. The findings and conclusions in this case are made to the extent necessary to conclude this case and are solely applicable to the instant parties and as between them, the Respondent is not in violation of the cited statutes for the reasons stated. Nothing in this Recommended Order should be construed as a binding finding or conclusion with respect to Cavco since the manufacturer was not a party to these proceedings.

Recommended Order In view of the foregoing it is recommended that the Citation and Complaint be dismissed.

Done this 12th day of January, 1999.

_________________________________ Allen Reed Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 1998, to:

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

By _______________________________

-----------------------

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