ALJDEC

99F-C989131-BFS-com · Department of Building and Fire Safety · 1999-04-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 14, 1999 APPEARANCES: Jody Hanson on his own behalf; Respondent did not appear at the hearing ADMINISTRATIVE LAW JUDGE: Lewis D. Kowal _____________________________________________________________________ FINDINGS OF FACT The scope of this hearing is to determine whether Respondent complied with the Order issued by the Director of the Department of Building and Fire Safety (“Department”) on February 16, 1999, adopting the Recommended Decision of Administrative Law Judge Casey J. Newcomb dated February 9, 1999. The above-mentioned Recommended Decision incorporated the settlement agreement reached between Complainant and Respondent providing that the Respondent re-level Complainant’s home by February 15, 1999. The Recommended Decision also provided that with respect to the buckling of the floor in the hall, kitchen, master bedroom and living room of Complainant’s home, “the Complainant shall have the opportunity to request another disciplinary hearing if the re-leveling of the home does not correct those items”.

Complainant credibly testified that on February 15, 1999, Johnny Lee of Johnny Lee Mobile Home Services inspected Complainant’s home at the request of Respondent. As a result of that inspection, Mr. Lee concluded that Complainant’s home was level. According to Complainant, Mr. Lee opined that the causation of the buckling of the floors in the home is that the floor joists are warped. Mr. Lee represented to Complainant that he did not have the authority to perform remedial work with respect to the floor joists and stated that it was the manufacturer’s responsibility. As a result of the inspection, Complainant contacted Gloria Roe, Respondent’s representative, who then contacted CAVCO, the manufacturer, to inquire as to whether it would address the floor joist problem at Complainant’s home. Complainant was informed by Ms. Roe that CAVCO would not perform any remedial work unless directed to do so by the Department. Ms. Roe also represented to Complainant that Respondent would not perform such work as it believes it to be CAVCO’s responsibility. The evidence of record establishes that the buckling of the floors, item 4 of the Verified Complainant, was verified by the Department to be the Respondent’s responsibility. The evidence of record also establishes that Complainant complained to the Department about the buckling of the floors and that the issue as to whether the house is level was raised by the Department’s investigator during an inspection of the home conducted in the presence of Complainant, Respondent, and a representative of CAVCO. Complainant wants the buckling of the floors to be corrected and, based on the evidence presented at this compliance hearing, the issues to be determined at an evidentiary hearing are: a) what is the cause of the buckling of the floors and; b) who is responsible for correcting that item. 9. Although the buckling of the floors was not verified by the Department to be the responsibility of CAVCO, the evidence of record in this proceeding established that because the Respondent is claiming it to be CAVCO’s responsibility, CAVCO appears to be a necessary and indispensable party to this proceeding and is presently not a party. CONCLUSIONS OF LAW Pursuant to A.A.C. R2-19-102, the Administrative Law Judge may look to the Arizona Rule of Civil Procedure for guidance. Rule 19 of the Arizona Rules of Civil Procedure provides for joinder of a person as a party if “in that person’s absence complete relief cannot be accorded among those already parties”. It appears that CAVCO is a necessary and indispensable party that should be brought before the Department in this proceeding so as to ensure Complainant a full and fair hearing on the issue of the buckling of the floors. The reason for this approach is to preserve the integrity of the administrative hearing process and ensure that Complainant is not exposed to the possibility of appearing in two different administrative proceedings, one involving Respondent, the other involving CAVCO. In such a situation it could be determined independently that neither CAVCO nor the Respondent is responsible for the item in question when the evidence of record establishes that those are the only two parties that could be considered responsible. The facts established at the hearing demonstrate that vacating this matter in accordance with A.A.C. R29-111 will further administrative convenience and expedite resolution of the issues with respect to all necessary parties and be of judicial economy in that there will be one hearing instead of two or possibly more hearings on this issue. It is determined that this matter cannot fairly proceed without having both Respondent and CAVCO before this tribunal. RECOMMENDED ORDER The Administrative Law Judge has no alternative but to vacate this matter from the docket of the Office of Administrative Hearings and remand it to the Department, to verify item 4 of the Verified Complaint against both Respondent and CAVCO so the necessary and indispensable parties are properly joined and this matter can proceed to a hearing on the merits. If the Department does not verify CAVCO on item 4 of the Verified Complaint, such action would effectively bar Complainant from obtaining relief, especially if it proceeds only against Respondent and it is determined that Respondent is not liable for that item. That result would be inconsistent with the mission statement and responsibilities of the Office of Administrative Hearings. It is further recommended that after taking the above-recommended action, the Department issue a Notice of Hearing concerning item 4 of the Verified Complaint against both Respondent and CAVCO so Complainant can have a full and fair hearing on the merits with all necessary and indispensable parties. Done this day, April 20, 1999

______________________________________ Lewis D. Kowal Administrative Law Judge

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

Department of Building & Fire Safety N. Eric Borg, Director E. Virginia, Suite 100 Phoenix, AZ 85004

ATTN: Michelle M. Castaneda

By ___________________________

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

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