ALJDEC

99F-R989015-BFS · Department of Building and Fire Safety · 1999-06-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 4, 1999 APPEARANCES: Ted B. Bowen, Attorney at Law, on behalf of the Complainant No one appeared on behalf of the Respondent ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________

Findings of Fact In late 1998, the Complainant entered into a contract with the Respondent to purchase a 63 foot by 28 foot, 1997 Fleetwood manufactured home for $38,000.00 (including tax). The Complainant paid a total deposit of $2,000.00 by checks of $500.00 on December 3, 1998 and $1,500.00 on December 11, 1998. The Respondent failed to deliver the home to the Complainant and is no longer licensed by the Department of Building and Fire Safety-Office of Manufactured Housing (Department). In February, 1999, the Complainant purchased a new Oakwood manufactured home with 1556 square feet for $56,918.00 (excluding tax). The Complainant filed a complaint with the Department and was informed that since the Respondent was no longer licensed the only recourse was to file a claim with the Consumer Recovery Fund (Fund). On April 2, 1999, Department Investigator/Auditor Carla Anderson (Anderson) issued a Complaint Verification and verified the Complainant’s claim for the $2,000.00 down payment. Anderson did not verify the Complainant’s claim in the amount of $23,137.90 for the higher cost (including ancillary costs) of the home ultimately purchased by the Complainant. Conclusions of Law The Notice of Hearing sets forth the amount of $24,189.30, as the amount of the Complainant’s claim. 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). A.R.S. §41-2190(C) provides that upon verification of a claim the assistant director shall set the matter for hearing. A.R.S. §41-2190(D) provides that the Board of Manufactured Housing shall pay from the Fund the amount found payable upon the claim by the Administrative Law Judge. The evidence fully supports the Complainant’s claim for recovery of his deposit of $2,000.00, which claim has been verified by the Department. The Administrative Law Judge does not have jurisdiction of the remainder of the Complainant’s claim representing the difference in the original contract price with the Respondent and the actual purchase price plus ancillary costs of another manufactured home from another dealer because that portion of the claim was not verified and the statute expressly provides that claims shall be verified and that verified claims shall be set for hearing. 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 Two Thousand ($2,000.00) Dollars; It is further recommended upon payment by the Consumer Recovery Fund to Complainant of the amount recommended for damages, that the Class D-8 license number 7034, be suspended until such time that the licensee has repaid in full, plus interest at ten percent per year, the amount paid to the Complainant by the Consumer Recovery Fund. Done this day, June 8, 1999.

______________________________________ ALLEN REED Administrative Law Judge

Original transmitted by mail this ____ day of June, 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