ALJDEC

99F-R989013-BFS · Department of Building and Fire Safety · 1999-04-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

On April 26, 1999, a hearing was held to determine if the Complainant is entitled to payment from the Consumer Recovery Fund. Louis Carrano (the “Complainant”) appeared telephonically on his own behalf. The Respondent failed to appear. The record was kept open until approximately 9:40 a.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. The Complainant is 56 years old and disabled. He currently resides with his daughter, Frances Parquette.

2. Earlena J. Lawrence is the qualifying party for Golden East Home Sales, Inc. (the “Respondent”). Paul Scutter is a salesperson for the Respondent.

3. In January of 1999, the Complainant was interested in purchasing a mobile home located at the Sierra Estates at 9431 E. Corral Bell Rd., Mesa, Arizona. This mobile home was owned by Heather Sagle.

4. The Complainant contacted the Respondent through an advertisement in the Arizona Republic. On or about January 13, 1999, the Complainant, his daughter and Mr. Scutter had a meeting regarding the purchase of the aforementioned mobile home. The Complainant desired to purchase Ms. Sagle’s mobile home for $35,000.00.

5. Mr. Scutter requested $4,000.00 from the Complainant as a down payment for the purchase of the mobile home. However, the Complainant only gave Mr. Scutter a $1,000 check for the down payment. Mr. Scutter told the Complainant that he would submit the Complainant’s offer to Ms. Sagle within 48 hours. Mr. Scutter also told the Complainant that the $1,000.00 check would be placed in a trust account. Mr. Scutter also promised that he would cash the $1,000.00 check only if Ms. Sagle had accepted the Complainant’s offer.

6. The Complainant testified that he signed numerous documents during his meeting with Mr. Scutter on January 13, 1999, regarding the sale of the mobile home. However, the Complainant testified that Mr. Scutter took all of these documents with him at the end of their meeting. The Complainant testified that Mr. Scutter said that he had to retain the documents so that he could input the information (from the documents) into his computer. Mr. Scutter promised that he would provide a copy of the documents to the Complainant. The Complainant never received a copy of the documents pertaining to the sale of the mobile home.

7. On or about January 15, 1999, the Complainant telephoned Mr. Scutter regarding the status of his offer to purchase the mobile home. The Complainant testified that Mr. Scutter stated that he did not know the status of the Complainant’s offer to purchase the mobile home. Mr. Scutter also stated that he did not know what had happened to the Complainant’s $1,000.00 check.

8. Mr. Scutter was supposed to deposit the Complainant’s $1,000.00 check in a trust account at Bank One. However, the Complainant testified that he telephoned Bank One and learned that no such trust account existed.

9. On or about January 20, 1999, the Complainant telephoned Earlena Lawrence, the Respondent’s qualifying party. The Complainant testified that Ms. Lawrence told him to come to the Respondent’s office to receive a $1,000.00 refund. The Complainant testified that he went to the Respondent’s office and received a $1,000.00 check from Ms. Lawrence. Unfortunately, the Respondent’s check for $1,000.00 bounced because of insufficient funds.

10. On or about January 21, 1999, the Complainant telephoned Ms. Lawrence again. The Complainant testified that Ms. Lawrence once again told him to come to the Respondent’s office for his refund check. The Complainant went to the Respondent’s office but found that the Respondent had abandoned the office.

11. The Complainant has not been able to contact the Respondent since January of 1999. The Complainant testified that he contacted Ms. Sagle who stated that Mr. Scutter never submitted the Complainant’s offer to her. The Complainant was never able to purchase the mobile home.

12. Ms. Parquette, the Complainant’s daughter, testified that she was present at the meeting with Mr. Scutter on January 13, 1999. Ms. Parquette confirmed the Complainant’s account of what transpired between the Complainant and the Respondent in January of 1999.

13. In February of 1999, the Complainant filed a claim application for payment from the Consumer Recovery Fund. On or about March 9, 1999, the Department’s Inspector, Donna Grant, verified that the Respondent was obligated to refund the $1,000.00 to the Complainant.

14. The Respondent failed to appear for the hearing scheduled on April 26, 1999, at 9:00 a.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 Earlena J. Lawrence, the Respondent’s qualifying party, at 2702 E. University, STE #2, Mesa, Arizona 85213. 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 present any evidence supporting its position.

3. The undersigned Administrative Law Judge concludes that the Respondent has violated A.R.S. §41-2180(A) by not depositing the Complainant’s $1,000.00 in a trust account. Accordingly, the undersigned Administrative Law Judge concludes that the Respondent’s violation of A.R.S. §41-2180(A) has damaged the Complainant within the meaning of A.R.S. § 41-2190(A).

4. The undersigned Administrative Law Judge further concludes that the Respondent’s failure to submit the Complainant’s offer to Ms. Sagle was a failure to perform a sales agreement that caused damage to the Complainant within the meeting of A.R.S. §41-2190(B).

5. The Notice of Hearing provides that the Complainant seeks recovery from the Consumer Recovery Fund in the amount of $1,000.00 pursuant to A.R.S. §41-2190(A) & (B). The undersigned Administrative Law Judge concludes that both A.R.S. §41-2190(A) and 41-2190(B) are applicable in this case.

6. The Complainant’s claim for $1,000.00 represents actual or compensatory damages that have been verified by the Department.

RECOMMENDED DECISION

It is recommended that the Board of Manufactured Housing shall pay the Complainant the sum of $1,000.00 from the Consumer Recovery Fund.

It is further recommended that the Respondent’s Class D-12 License No. 6684 shall be suspended until such time that the Respondent has repaid in full, plus interest at a rate of ten percent per year, the amount paid to the Complainant from the Consumer Recovery Fund. Done this day, April 30, 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