ALJDEC

99F-R989007-BFS · Department of Building and Fire Safety · 1999-03-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 8, 1999 APPEARANCES: Octaviano Eduardo Viveros Ramirez, Complainant, in his own behalf No one appeared on behalf of the Respondent ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________

FINDINGS OF FACT On August 10, 1998, the Complainant and Respondent entered a contract whereby the Respondent agreed to sell to the Complainant a used manufactured home at Santa Grande Mobile Home Park in Phoenix, Arizona. The contract price was $15,900.00. The Complainant made a $1,500.00 down payment in cash evidenced by a receipt. The following week when the Complainant attempted to contact the Respondent he found the office closed. After subsequent telephone conversations with the Respondent’s employees and neither receiving possession of the manufactured home or having his down payment returned, the Complainant filed his complaint with the Department of Building and Fire Safety, Office of Manufactured Housing (Office). Office Investigator-Auditor, Donna Grant (Grant), reviewed the documentation submitted by the Complainant, verified the complaint, and required the Respondent to correct the condition. No money has been repaid by the Respondent to the Complainant. Conclusions of Law A.R.S. §41-2190 (A) provides in pertinent part that if a consumer is damaged by an act or omission of a licensed dealer or broker as part of a purchase or sale of a manufactured home which is a violation of A.R.S. §41- 2180, the consumer may file a claim with the Consumer Recovery Fund (Fund).

A.R.S. §41-2180 provides in pertinent part that a licensed dealer shall deposit earnest money received in conjunction with the sale of a manufactured home in a trust or escrow account. A.R.S. §41-2190(B) provides that a consumer who is damaged by the failure of the principal to perform a sales agreement or repairs under warranty may file a claim with the Fund. The claim shall be verified by the Office of Manufactured Housing (Office). The evidence does not show whether the $1,500.00 was deposited in an escrow account and a violation of A.R.S. §41-2180 is not established and no claim against the Fund can be sustained under A.R.S. §41-2190(A). The evidence establishes the right to claim from the Fund under A.R.S. §41- 2190(B), a failure to perform a sales agreement. In the instant case the Complainant’s down payment has not been returned, no sale has been concluded and the Complainant has not received possession of the home. Recommended Order In view of the foregoing, it is recommended commencing on the effective date of the Order entered in this matter that the Consumer Recovery Fund commence and finalize payment to the Complainant in the amount of One Thousand - Five Hundred ($1,500.00) Dollars; It is further recommended upon payment by the Consumer Recovery Fund to the Complainant of the amount recommended for damages, that the Class D- license number 7007, be suspended until such time that the licensee has repaid in full, plus interest at ten percent per year, the amount paid by the Consumer Recovery Fund. Done this day, March 9, 1999.

______________________________________ ALLEN REED Administrative Law Judge

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

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

By _______________________________

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