ALJDEC

99F-R989016-BFS · Department of Building and Fire Safety · 1999-06-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 4, 1999 APPEARANCES: Jerry and Sharon Larrick, Complainants, in their own behalf No one appeared on behalf of the Respondent ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________

Findings of Fact The Complainants purchased their manufactured home from the Respondent in June of 1998. Shortly thereafter, the home was delivered and set up on the Complainants’ property about 20 miles east of Showlow, Arizona. After being set up, some drywall repairs and painting were done. Other problems such as loose linoleum were corrected by the manufacturer. Subsequently, the Complainants noticed drywall cracks from the marriage line at various places and rooms throughout the home. Attempts to have the Respondent dealer correct the condition were unsuccessful and in approximately December, 1998, the Complainants learned the Respondent was no longer in business. The Complainants filed their complaint with the Department of Building and Fire Safety-Office of Manufactured Housing (Department), and on March 10, 1999, an inspection was done by Department Inspector Dennis Butzen (Butzen). Butzen verified numerous cracks in the ceiling and walls throughout the house (24 separate items, some items subdivided, in every room plus the hallway). On March 22, 1999, the Complainants obtained two estimates to repair the various cracks and paint the repaired areas. According to the Complainants, they could not get other drywall repair businesses to come to the home and give an estimate. The estimate from Del’s Drywall Repair is in the amount of $775.00. The estimate from RA Drywall was $2,150.00. No explanation was available for the difference in the price of the two estimates. The Complainants submitted a claim of $1,500 to the Consumer Recovery Fund (Fund) and the matter was set for hearing. The claim of $1,500.00 is based on the Complainants’ estimate of a balance between the two estimates. 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). 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. A.R.S. §§41-2190(A) and 41-2180 do not pertain to this case. The Complainants’ right to payment from the Fund is established by the evidence and satisfies the requirements of A.R.S. §41-2190(B). The Complainants attempt to average the two bids to submit their claim of $1,500.00 is not accepted. The evidence did not show that the lower bid was not in good faith or otherwise would not properly address the work which is required to be done. Absent a showing that the bid will not properly accomplish the work addressed by the verified complaint, it is presumed the lower bid is appropriate. For this reason the claim is reduced to the amount of $775.00. 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 Complainants in the amount of Seven Hundred Seventy-Five ($775.00) Dollars; It is further recommended upon payment by the Consumer Recovery Fund to Complainants of the amount recommended for damages, that the Class D-8 license number 6567, be suspended until such time that the licensee has repaid in full, plus interest at ten percent per year, the amount paid to the Complainants by the Consumer Recovery Fund. Done this day, June 4, 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 ___________________________ -----------------------

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