ALJDEC

99F-C989173-BFS · Department of Building and Fire Safety · 1999-02-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 19, 1999 APPEARANCES: Carol Kellerhals on her own behalf; Gloria Roe on behalf of the Respondent ADMINISTRATIVE LAW JUDGE: Lewis D. Kowal _____________________________________________________________________ FINDINGS OF FACT 1. Carol Kellerhals (“Complainant”) purchased a manufactured home (the “Home”) from Mountain view Homes, Inc. (“Respondent”) in March, 1997. Subsequently, Complainant experienced numerous problems with the Home and reported them to Respondent for repairs. 2. The items addressed below are the items Complainant complained about to the Arizona Department of Building and Fire Safety (the “Department”) that were verified by an inspector for the Department and are the subject of the instant hearing. 3. The items complained of by Complainant at the hearing were: a) Medical bills incurred by Complainant’s mother as a result of an injury that occurred involving the wood skirting and metal flashing on the southeast corner of the Home that was not attached; b) The termite pre-treatment has not been performed;

c) Anti-tilt bracket was not installed when stove was leveled d) Carpet on the right side of the archway was short and repairs made were not proper; e) Phone wire in kitchen buried under linoleum repair made by manufacturer; f) Area between skirting and metal flashing around the Home requires additional silicone caulking; and g) Holes around faucet on south side by the back door of the Home was repaired but no done properly. 4. Respondent arranged for Paul Valdez, Superintendent of Granite Builders formerly known as RDS, the general contractor that set the Home, to correct the wood skirting and metal flashing problem.. During the hearing, Complainant acknowledged that this item has been corrected. However, Complainant claimed that she is entitled to reimbursement in the sum of $18.00 for medical expenses incurred by her mother from a fall whereupon she was injured as a result of the condition of the skirting and metal flashing not having been attached to the Home. 5. With respect to the item mentioned above in paragraph 4, , Respondent had no knowledge of the incident prior to the hearing and contended that it was outside the scope of the hearing. 6. It is determined that that item is not appropriately brought before this tribunal and is outside the scope of the hearing. However, nothing herein shall preclude Complainant from exercising any rights she may have with respect to that claim. 7. Complaint contended that the Home has not had a termite pre-treatment as required by the contract entered into between Complainant and Respondent with respect to the purchase of the Home. The Home was set on Complainant’s lot on August 1997, and Complainant maintains that such pre- treatment work should have been previously accomplished and requested that it be done. 8. Respondent agreed that the pre-treatment needs to be performed but maintained that Complainant is in the process of having her sewer system installed. The contractor that performs termite pre-treatment for Respondent advised Respondent that, with respect to the Home, the pre- treatment should occur after the sewer work is completed, because such work will interfere with the chemical barrier placed on that site and compromise the effectiveness of the pre-treatment. 9. If Respondent causes a termite pre-treatment to be performed prior to the sewer work being completed at the Home, the pre-treatment will not be as effective if the soil was not disturbed. However, Complainant is entitled to a pre-treatment. Because Complainant insists on having the pre-treatment performed now, it is determined that should such work be accomplished, Complainant bears the responsibility that she may be compromising with the effectiveness of the pre-treatment and affecting the warranty provisions that accompany such work. 10. Respondent obligated itself to arrange for the termite pre-treatment, therefore, it should have either inquired as to the purchaser’s intent regarding the sewer system or arranged for the pre-treatment to occur as it normally does in the ordinary course of installation. It is determined that Respondent is obligated to have the termite pre-treatment performed in accordance with Complainant’s wishes. 11. The stove at the Home was not level and the inspector of the Department determined that item to be Respondent’s responsibility. During the hearing, the evidence presented established that this item has been corrected. However, Complainant maintained that Respondent did not install an anti-tilt bracket to the stove although requested to do so. Complainant purchased the stove from Respondent and Respondent installed it. Although the anti-tilt bracket is not specifically addressed in the verified complaint, it is determined to be an ancillary portion of item number four therein and should be addressed by the Respondent. During the hearing, Respondent represented that it would install the anti-tilt bracket to the stove. 12. The carpeting located in the archway of the living room was clipped short and repaired. Complainant credibly testified that the patchwork performed by Respondent’s subcontractor to correct that item is visible and not done properly. Although Respondent contended that the patchwork was performed properly, no credible evidence was presented to support that contention. Respondent requested that a further inspection be performed by the Department’s inspector to determine the adequacy of the repair. It is determined that prior to the hearing, Respondent had adequate time to request such an inspection and there is no evidence presented that Respondent made such a request. Therefore, this Administrative Law Judge determines that it is untimely to make such a request during the hearing and denies the request.. 13. Complainant initially complained that the flooring behind the door in the kitchen buckled and the telephone wire has been cut through the linoleum at wall to kitchen. During the hearing, Complainant credibly testified that the Home’s manufacturer, Cavco, has replaced the linoleum in that area. However, the wire is under the linoleum and Complainant is unable to use that wire. 14. It is uncontroverted that Complainant did not notify Respondent that Cavco was replacing the linoleum. Respondent requested that this item, like the carpet patchwork, be the subject of a reinspection by an inspector with the Department. For the same reasons as set forth above regarding the carpet patchwork, that request is denied. 15. After installation of the carpeting in the hall of the Home, Complainant noticed purple stains. Respondent arranged for Mr. Valdez to address this problem. Mr. Valdez was able to remove all but one purple stain. The remaining stain is noticeable and Complainant wants it repaired. 16. Respondent offered to send out the same subcontractor that performed the patchwork to the carpeting and Complainant refused access to that contractor based upon her dissatisfaction with the repair already performed by that subcontractor. 17. Complainant presented credible evidence that there are gaps and voids around the Home where silicon caulking was performed by Respondent. Respondent addressed this problem by having such work performed. However, after that work there still exists voids and gaps around the Home where additional silicone caulking was installed between the skirting and metal flashing.. During the hearing, Respondent represented that , to the extent that there are voids, Respondent will install additional caulking. 18. Complainant credibly testified that the area around the faucet on the south side of the Home by the back door was not sanded prior to being painted and is rough. According to Complainant, it is still obvious that there are screw holes there. Respondent requested that this item as well as the carpet patchwork mentioned above be the subject of a reinspection by an inspector for the Department. For the same reasons as set forth above with respect to the carpet patchwork, that request is denied. During the hearing, Respondent indicated that it would be willing to have the screw holes again refilled and repainted but asserted that, at some point in time, it is a maintenance item that is Complainant’s responsibility. 19. Other than the items addressed above, all other items that were set forth in the Notice of Hearing have either been corrected to the satisfaction of Complainant or Complainant decided not to pursue them at this hearing. 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 Respondent’s Class D-12 license issued by the Department shall be suspended on the effective date of the Order entered in this matter until Respondent performs appropriate corrective work with respect to all of the items addressed above in the Findings of Fact except the wiring in the kitchen of the Home and the Department receives written proof of Respondent’s compliance with the Order entered in this matter. If prior to the effective date of the Order entered in this matter, the Respondent complies with the Order entered in this matter, then no suspension shall take place and this matter shall be considered closed. Done this day, March 4, 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 1700 West Washington, Suite 602 Phoenix, Arizona 85007 (602) 542-9826