ALJDEC

99F-O989255-BFS · Department of Building and Fire Safety · 1999-04-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

On April 26, 1999, at 1:30 p.m., a hearing was held to determine if the Respondent had violated provisions of the A.R.S. §41-2186. Assistant Attorney General Victoria M. Mangiapane represented the Department of Building & Fire Safety (the “Department”). The Respondent failed to appear. The record was kept open until approximately 2:30 p.m. to allow for the appearance of the Respondent or the receipt of any information which would constitute good cause for the Respondent’s absence or delay. No such information was received from or on the behalf of the Respondent. Based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Decision are made.

FINDINGS OF FACT

1. On or about September 16, 1998, Administrative Law Judge Allen Reed recommended that the Respondent’s license be suspended until the Respondent performed corrective work on several verified items in the manufactured home at issue in that case. See Recommended Decision, dated September 16, 1998 (98F-C978284-BFS).

2. On or about September 22, 1998, the Department’s Director adopted Administrative Law Judge Allen Reed’s aforementioned Recommended Decision. See Order, dated September 22, 1998 (98F-C978284-BFS).

3. Carla Anderson is an Investigator and Auditor for the Department. Ms. Anderson testified that the Respondent never complied with the Director’s Order, dated September 22, 1998. Ms. Anderson testified that the Respondent’s Class D-8 License No. 6899 was suspended on November 9, 1998 because the Respondent failed to comply with the Director’s Order.

4. Ms. Anderson testified that subsequently she anonymously received a copy of an issue of the Manufactured Homes Guide, dated January 29 - February 26, 1999. See Complainant’s Exhibit 2. Ms. Anderson testified that the Respondent advertised the sale of several manufactured homes in this issue of the Manufactured Homes Guide. Id. Ms. Anderson testified that this issue was published after the suspension of the Respondent’s license.

5. On or about February 26, 1999, the Department issued a Citation and Complaint against the Respondent alleging that the Respondent was in violation of A.R.S. §41-2186(1), (6) & (11) for acting as a licensee while its license was suspended. See Citation and Complaint, dated February 26, 1999.

6. On or about March 3, 1999, Ronald Rushton, the Respondent’s qualifying party, filed an Answer stating that he was unaware that his license was under suspension.

7. Ms. Anderson testified that on or about March 18, 1999, she telephoned the Respondent using the Respondent’s phone number of record. Ms. Anderson testified that an individual named “Charlie” answered the phone. Ms. Anderson testified that Charlie tried to sell her a manufactured home.

8. The Respondent failed to appear for the hearing scheduled on April 26, 1999, at 1:30 p.m. at the Office of Administrative Hearings located at 1400 West Washington Street, Suite 101, Phoenix, Arizona. The Notice of Hearing correctly states the date, time and place of this hearing. The Notice of Hearing was properly sent by certified mail to the Respondent at 5829 N. 7th Street, Suite 2A, Phoenix, Arizona 85014.

9. The undersigned Administrative Law Judge finds that the Respondent wrongfully acted in the capacity of a broker/dealer of manufactured homes while its license was suspended.

CONCLUSIONS OF LAW

1. The Complainant has the burden of proof, and the standard of proof on all issues is by a preponderance of the evidence. Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). A "preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not." Morris K. Udall, Arizona Law of Evidence, §5 (1960). It "is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not." Black's Law Dictionary, 1182 (6th ed. 1990).

2. The Respondent has failed to appear and present evidence supporting its position.

3. The undersigned Administrative Law Judge concludes that the preponderance of the evidence shows that the Respondent has violated A.R.S. §41-2186(1),(6) & (11) as set forth in Findings of Fact ##1-4, 7 & 9.

4. The undersigned Administrative Law Judge concludes that grounds do exist to revoke the Respondent’s license pursuant to A.R.S. §41-2186(1),(6) & (11).

5. The Department has the authority to issue an administrative penalty against the Respondent in an amount not to exceed $1,000.00 for each violation of A.R.S. §41-2186. See A.R.S. §41-2193(F). The undersigned Administrative Law Judge concludes that an administrative penalty of $1,000.00 should be imposed against the Respondent.

RECOMMENDED DECISION

Based upon the foregoing, the undersigned Administrative Law Judge recommends that commencing on the effective date of the Order entered in this matter that the Respondent’s Class D-8 License No. 6899 be revoked. It is further recommended that the Respondent pay an administrative penalty of $1,000.00 to the Department on or before 30 days after the effective date of the Order entered in this matter.

Done this day, April 28, 1999.

______________________________________ Casey J. Newcomb Administrative Law Judge

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

N. Eric Borg, Director Department of Building & Fire Safety 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