ALJDEC

99F-O989327-BFS · Department of Building and Fire Safety · 1999-08-20

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Pursuant to notice, a formal hearing was held in this case on August 17, 1999, in Phoenix, Arizona, before Neal H. Jordan, Administrative Law Judge of the Office of Administrative Hearings. APPEARANCES For Complainant: Assistant Attorney General, Patti Shelton For Respondent: Sidney A. Dando, pro se

FINDINGS OF FACT

Based upon all the evidence of record, the following findings of fact are determined: The Department of Building and Fire Safety (“BFS”) issued an administrative Amended Citation and Complaint (the “Complaint”), dated May 17, 1999, alleging in Count One thereof that Respondent by certain conduct acted beyond the scope of his license in violation of A.R.S. §41-2186 (1), (6) and (21). At all relevant time material to the allegations contained in the Complaint, Respondent was the holder of License No. M-9A, Class 6900, issued on April 17, 1997, which authorized him to conduct the business of a “Manufacturer of Factory Built Buildings”, and was the only license then held by Respondent. To act as a dealer/broker and/or installer of such buildings, separate licenses must be applied for and issued by BFS. It is uncontroverted that on or about October 18, 1998, Respondent entered into a purchase agreement directly with one W. J. Lyon, a consumer, for the purchase and installation of a modular unit manufactured by Respondent, accepting the sum of $16,184.00 as earnest money deposit against a contract price of $64,736.00. See Complainant’s Ex. 5. This modular log home unit was to be installed on land owned by W. J. Lyon in Arizona. At the time the foregoing purchase and installation agreement was entered into with W. J. Lyon, Respondent did not possess a dealer/broker or an installer license issued by BFS. By an application dated May 7, 1999 in the business name of American Home Sales, a D-10 dealer/broker license was issued on June 22, 1999, with one Gurule Dorisamia listed as the owner and qualifying party.[1] Likewise, by an application dated May 7, 1999, it appears from Complainant’s Exhibit 4 that an installer license has been issued to Respondent. It is an established fact that both of these licenses were issued subsequent to the date of the purchase agreement with W. J. Lyon.

CONCLUSIONS OF LAW

1. The Office of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to A.R.S. §41-1092-1092.12 (1998). The Complainants have brought this complaint and accordingly bear the burden of proving by a preponderance of the evidence that the allegations contained therein are true. Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). A.R.S. §41-2186 provides that the license held by a manufacturer may be suspended or permanently revoked, placed on probation or have imposed against the licensee an administrative penalty, if the licensee has been found to be guilty of or to have committed the acts or omissions specified as follows: (1) Failure in any material respect to comply with the provisions of this article or article 2 of this chapter.

(6) The doing of a wrongful or fraudulent act by a licensee which relates to this article or article 2 of this chapter.

4) Failure of the licensee to work only within the scope of the license held.

The failure of Respondent to work only with the scope of his M-9A, Class 6900, license by contracting to sell and install a modular unit to W. J. Lyon is a violation of A.R.S. §41-2186.21. The conclusion is supported by the finding that at the time in question, Respondent did not hold any other relevant license for this express purpose. Further, the violation of paragraph (21), as aforesaid, is perforce a violation of paragraphs (1) and (6), it have been concluded as a matter of law that Respondent’s conduct was in violation of Title 41, Chapter 16, Article 4.

RECOMMENDED ORDER

In view of the foregoing Findings of Fact and Conclusions of law, it is RECOMMENDED that Respondent’s License No. M-9A, Class 6900, be placed on probation for a period of two (2) years from the effective date of the Order. It is further recommended, in addition to the above disciplinary order, that Respondent pay the sum of $500.00 to the Department of Building and Fire Safety by way of an administrative penalty pursuant to A.R.S. §41-2186. The failure by Respondent to pay the entire amount of the administrative penalty on or before 30 days following the effective date of the Order entered in this matter, shall be cause for a finding of further violations of A.R.S. §41-2186. DONE AND ENTERED this day, August 20, 1999.

______________________________________ Neal H. Jordan 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 ___________________________

----------------------- [1] This application indicates a name change listing the name of Western Log Modular and it is uncertain in what business name the license was issued.

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