ALJDEC

99F-R989014-BFS · Department of Building and Fire Safety · 1999-04-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 29, 1999 at 9:00 a.m. APPEARANCES: Complainant appeared on her own behalf; Respondent did not appear. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

Complainant presented evidence and testimony and, based upon the entire record, the undersigned makes the following Findings of Fact, Conclusions of Law and Recommended Order. FINDINGS OF FACT The Assistant Director of the Office of Administration of the Department of Building and Fire Safety has issued License No. 6684, Class D-12, to Respondent Golden East Home Sales, Inc., a combination dealer. Complainant was looking to purchase a home. She and her daughter found a manufactured home for sale in Tempe, called the number displayed in the window, and set an appointment with Respondent’s salesman Don Dean. On January 21, 1999, Complainant gave Respondent her personal check no. 3966, payable to Respondent, in the amount of $300.00 as a down payment on the manufactured home in Tempe. After Respondent cashed Complainant’s check and Complainant’s daughter failed to pass the credit check that was necessary to purchase the manufactured home, Complainant requested a refund from Respondent. Respondent’s qualifying party Earlena Lawrence told Complainant a check would be mailed. When no check arrived, Complainant made a telephone call to Mrs. Lawrence and was assured that the check was “in the mail.” When no check arrived, Complainant again contacted Mrs. Lawrence and was told Respondent would issue another check. Complainant eventually received Respondent’s check number 3308 for $300.00, dated February 11, 1999 and signed by Mrs. Lawrence. When Complainant attempted to deposit the check into her bank acount, however, the check was returned to her marked “insufficient funds.” When Complainant again attempted to contact Respondent, the telephone had been disconnected. Respondent has not returned Complainant’s $300.00 down payment. After Complainant made this complaint against Respondent, Donna Grant of the Department of Building and Fire Safety verified it on March 12, 1999. On March 18, 1999, the Department sent copies of the notice of this hearing to Complainant and to Mrs. Lawrence at Golden East Home Sale, Inc., 2702 East University Suite #2, Mesa, Arizona 85213, the same address shown on the salesman’s business card and the last address of record for Respondent. Although the beginning of the duly noticed hearing was delayed fifteen minutes to allow Respondent additional travel time, it neither appeared through a duly authorized representative or attorney, contacted the Office of Administrative Hearings to request a continuance or that the time scheduled for the hearing to begin be delayed, nor presented any evidence at the hearing to dispute Complainant’s verified complaint and claim to the Consumer Recovery Fund under A.R.S. § 41-2190(A). CONCLUSIONS OF LAW In this administrative proceeding, Complainant bears the burden of proof and must establish a statutory violation by a preponderance of the evidence. See A.A.C. R2-19-119; see also Culpepper v. State, 187 Ariz. 431, 438, 930 P.2d 508, 515 (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). A preponderance of the evidence is “evidence which is of greater weight or more convincing than 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 at page 1064 (6th ed. 1990). The evidence establishes that Respondent violated A.R.S. § 41-2180(A) or (I) by failing to deposit Complainant’s down payment into an escrow or trust account established for that purpose or, if such deposit was made, by failing to hold such funds until the sale transaction had been consummated. The evidence also establishes that Respondent violated A.R.S. § 41-2180(L) by using Complainant’s earnest money for a purpose other than the sales transaction. Complainant has been damaged by Respondent’s violation of A.R.S. § 41-2180 in the amount of $300.00. The Department has verified Complainant’s claim and, therefore, her claim to the Consumer Recover Fund should be granted and Respondent’s license should be suspended under A.R.S. § 41-2190. If in the future Respondent’s qualifying party or any other person listed on Respondent’s license applies to the Department of Building and Fire Safety for another license, this suspension may be considered as evidence of lack of good character and reputation and furnish grounds for denial of the license. See A.R.S. § 41-2175(E). The purpose of the hearing was to allow Complainant to present evidence on his claim to the Consumer Recovery Fund and to assess whether Respondent’s license should be penalized as a result of the claim. Although the evidence suggests that Respondent used Complainant’s earnest money deposit for its own purposes and may be guilty of fraud, theft, or conversion, a criminal prosecution lies beyond the scope of the jurisdiction of the Department of Building and Fire Safety and, therefore, cannot be included in the undersigned’s recommendation. However, Complainant’s assertion of this claim does not preclude her from making a criminal complaint against Respondent or its qualifying party to the Attorney General or another governmental entity having appropriate jurisdiction. See A.R.S. § 41- 2180(M). RECOMMENDED ORDER In view of the foregoing, it is recommended that $300.00 be paid to Complainant from the Consumer Recovery Fund under A.R.S. § 41-2190(A). It is further recommended that, pursuant to A.R.S. § 41-2190(D), Respondent’s License No. 6684, Class D-12 be suspended until it has repaid $300.00 to the Consumer’s Recovery Fund, plus interest at a rate of 10% annually. Done this day, April 29, 1999.

______________________________________ Diane Mihalsky Administrative Law Judge

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

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

By ___________________________

-----------------------

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