ALJDEC

99F-C989181-BFS · Department of Building and Fire Safety · 1999-03-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

|JAMES AND PATRICIA EVANS, |(| | | |(|Case No.: 98-9/181 | |Complainants, |(| | | |(|Docket No.: 99F-C989181-BFS | |vs. |(| | | |(| | |PRESTIGE HOMES, INC., |(|Recommended | |License No. 1547, Class D-8, |(|Decision and Order | | |(| | |Respondent. |(| | | |(| | | |(| | | |(| |

HEARING: Tuesday, February 23rd, 1999; 9: 00 a.m. Appearances: The Complainants appeared and represented themselves. The Respondent appeared through Qualifying Party, Mr. Manuel E. Wilkey, and was represented by Ms. Eva Searcy, Corporate Secretary. Administrative Law Judge: Grant Winston

This matter came on for administrative hearing on Tuesday, February 23rd, 1999. Testimony was heard and other evidence admitted to record and, based on the record taken as a whole, the following Findings of Fact, Conclusions of Law, and Recommended Order are made.

FINDINGS OF FACT

1. The Complainants herein, James and Patricia Evans, a married couple, purchased a Redman Mobile Home from the Respondent. Respondent, Prestige Homes, is a licensed dealer in sales of Redman Homes. The purchase contract was executed in August of 1997.

2. This entire case and controversy boils down to the nature of the fireplace fixture in the Complainants’ mobile home. Complainants contend that they negotiated with Respondent for a Cherrywood fireplace, contracted and paid for a Cherrywood fireplace, but received only a Pinewood fireplace stained with a Cherry-colored stain. They contend that they should be given a Cherrywood fireplace or a sum of money equal to the price the Respondent charged them for the fireplace they received, but for which they have no use. Respondent contends that there was never an agreement to provide a fireplace constructed with actual Cherrywood, and there does not exist such a fireplace in the industry. Respondent contends that Complainants saw a model of the fireplace they would receive before the contract was executed, and received the fireplace for which they contracted.

3. The evidence shows that the Complainants entered into negotiations with the sales agent for the Respondent, Ms. Janie Perez, in February of 1997. The clear weight of the evidence, including the handwritten notes of Ms. Perez, proves that Ms. Perez, during the negotiations with the Complainants, represented to them that the fireplace being negotiated, and desired by the Complainants, was indeed a Cherrywood fireplace- - not a fireplace stained to simulate Cherrywood, but a fireplace of actual Cherrywood.

4. Originally, Ms. Perez told Complainants the price of the fireplace they wanted would be $1,050.00, but later told them she had been informed by her superiors that she would have to amend the price upward to $1,550.00, owing to the fact that the fireplace they desired was of Cherrywood.

5. The contract between the parties was executed on August 29th, 1997. In the body of the contract it is noted that the fireplace is to be “Cherry.” In the attached Exhibit A to the contract, itself signed by the parties, it is noted that the Complainants were to receive a “Cherrywood fireplace - wood burning.”

6. Following delivery of their new home, the Complainants noticed that the fireplace was not manufactured with Cherrywood, but appeared to be of Pine. They contacted the Respondent, and Ms. Perez conceded that she must have made a mistake, that her company does not offer a fireplace manufactured with actual Cherrywood. Respondent made offers to satisfy the Complainants that were not satisfactory to the Complainants.

7. Complainants filed the instant Complaint. An inspection of their home was conducted by the State of Arizona, Office of Manufactured Housing on November 5th, 1998. A Verified Complaint & Sign-Off Form issued, a part of which verifies the Complainants’ position in this hearing, and that the dealer (Respondent) was to correct this item of the complaint. This was not done, and the Department of Building and Fire Safety issued a Citation and Complaint in this case on January 4th, 1999. This hearing was noticed on January 20th, 1999.

8. Complainants were promised a Cherrywood fireplace from the Respondent. They negotiated for, contracted for, and paid for, a Cherrywood fireplace. That it is true there is no manufacture in the industry of a fireplace made of actual Cherrywood, does not alter these pertinent facts. Respondent should not contract to deliver products which it cannot deliver because they are not made.

Conclusions of Law

1. This hearing was held under authority of and pursuant to A.R.S. §41- 1092 and A.R.S. §41-2183.

2. Pursuant to Citation and Complaint issued in this matter by the Assistant Director of the Department of Building and Fire Safety, the Respondent is charged with violating A.R.S. §41-2186.1., 12., 19., and 20.

3. There is in the record taken as a whole a preponderance of credible evidence to conclude, and it is here concluded, that Respondent did violate A.R.S. §41-2186.1., 12., and 19., as set forth in the instant Citation and Complaint.

Recommended Order

In view of the foregoing it is recommended that the Respondent shall correct Item 21b. of the Verified Complaint & Sign-Off Form by refunding to the Complainants the sum of $1,550.00, the amount charged them for a Cherrywood fireplace they did not receive, and providing the Department of Building and Fire Safety with satisfactory proof of so doing, all on or before April 26th, 1999.

It is further recommended that in the event the Respondent fails to correct Item 21b. on or before April 26th, 1999, as indicated in the immediately preceding paragraph, then the Respondent’s Class D-8 License No. 1547, be suspended on that date and remain suspended until such time as the Department receives satisfactory proof that the item has been corrected as indicated.

Dated this 3rd, day of March, 1999.

OFFICE OF ADMINISTRATIVE HEARINGS

_________________________________ Grant Winston Administrative Law Judge

Original mailed this day of March, 1999, to:

N. Eric Borg, Director Department of Building and Fire Safety ATTN: Michelle Castaneda East Virginia , Suite 100 Phoenix, AZ 85004

Transmitted by:

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