ALJDEC

99F-R989017-BFS · Department of Building and Fire Safety · 1999-06-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 10, 1999. APPEARANCES: Kenneth Emerson, Complainant, appeared on his own behalf. Arizona Select Homes, Inc., Respondent and holder of class D-8 license number 7034, failed to appear.

ADMINISTRATIVE LAW JUDGE: Kip M. Micuda _____________________________________________________________________ The hearing in this matter was held for the purpose of determining whether Plaintiff is entitled to recover damages from the Consumer Recovery Fund (“Fund”). Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law, and Recommended Decision are made:

FINDINGS OF FACT 1. During the fall of 1998, Kenneth Emerson, Complainant, purchased from Arizona Select Homes, Inc., Respondent, a dealer in mobile homes and holder of class D-8 license number 7034, a 1985 Cavco mobile home to be located at 442 S. 96th Place, Mesa, Arizona. As part of the purchase agreement, Respondent was obliged to build a third bedroom onto the residence, repair the roof, and cover the carport. 2. The instant matter arises out of Complainant’s complaint that Respondent failed to fully perform under the purchase agreement and failed to perform certain repairs by failing to build a third bedroom onto the residence, failing to repair the roof, and failing to cover the carport. Indeed, Complainant’s testimony during the hearing in this matter substantiate his allegations in the complaint against Respondent. 3. On February 11, 1999, Dennis Butzen, Inspector for Office of Manufactured Housing, verified that Respondent failed to build a third bedroom onto the residence, repair the roof, and cover the carport. The Verified Complaint ordered that Respondent correct these deficiencies. 4. The preponderance of the evidence establishes that Respondent failed to correct the foregoing deficiencies. 5. As a result Respondent’s failure to undertake corrective measures, Complainant filed a claim against the Fund. 6. Also during the hearing in this matter, Complainant offered an estimate to have the corrective measures undertaken. The single estimate is for $14,313.08 from HomeCraft, Inc. (“HomeCraft”). The preponderance of the evidence establishes that HomeCraft actually inspected Complainant’s residence and included in its estimate only that work that the corrections require. The preponderance of the evidence establishes also that Complainant attempted to contact 15 other contractors to solicit estimates for the corrections, but that only HomeCraft acknowledged that it performed work or construction on mobile homes. This Judge finds that the estimate from HomeCraft is reasonable and that it stands as the amount of damages Respondent’s failure to fully perform under the purchase agreement and make repairs caused Complainant. 7. Finally, the record evidences that Respondent was given fair and adequate notice of the hearing in this matter. Respondent’s failure to appear supports an inference that its failure is willful.

APPLICABLE LAW Arizona Revised Statutes (“A.R.S.”) §41-2190 provides, in part, the following: A. If any consumer who is buying or selling his home utilizes the services of a licensed dealer or broker of manufactured homes, mobile homes or factory-built buildings designed for use as residential buildings and is damaged as a result of an act or omission by a licensed dealer or broker of manufactured homes, mobile homes or factory-built buildings designed for use as residential buildings which constitutes a violation of §41-2180, or rules adopted pursuant to that section, that consumer may file a claim with the office for payment from the consumer recovery fund. The claim shall be verified by the office. B. If any consumer of manufactured homes, mobile homes or factory-built buildings designed for use as residential buildings is damaged as by the failure of the principal to perform a sales agreement or to perform repairs under a warranty, the consumer may file a claim with the office for payment from the consumer recovery fund. The claim shall be verified by the office. xxx D. The board shall pay from the consumer recovery fund whatever sum the administrative law judge finds payable upon the claim. A decision granting a claim shall include an order suspending the license of the licensee upon whose account the claim is filed. Such a license shall remain suspended until the licensee has repaid in full, plus interest at the rate of ten per cent per year, the amount paid from the consumer recovery fund on his account.

CONCLUSIONS OF LAW 1. The Department has jurisdiction over this matter under §41-2171, et seq. 2. To justify a payout from the Fund, Complainant must demonstrate by a preponderance of the evidence that he is entitled to recovery. Cf. Culpepper v. State of Arizona, 187 Ariz. 431, 437-38, 930 P.2d 508 (Ariz. App. 1996). Proof by “preponderance of the evidence” means that the evidence is sufficient to persuade the finder of fact that the proposition is “more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). 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 (rev. 6th ed. 1990). 3. Because Respondent failed to appear during the hearing, the allegations contained in the Verified Complainant are deemed admitted. 4. Moreover, Complainant sustains his burden of demonstrating by a preponderance of the evidence that Respondent failed to fully perform under the purchase agreement and failed to perform certain repairs; Respondent’s actions and omissions outlined in paragraphs 2 through 5 of the Finding of Fact above constitute a proper basis for Complainant’s claim against the Fund, in the amount of $14,313.08, under A.R.S. §41-2190(B). Section 41- 2190(A) fails to provide a basis for Complainant’s claim since the record is void of evidence that Respondent’s actions and omissions constitute a violation of §41-2180, or rules adopted under that section.

RECOMMENDED DECISION In view of the foregoing, it is recommended to the Department that it pay Complainant from the Consumer Recovery Fund the sum of $14,313.08, under A.R.S. §41-2190(D). In conjunction with such a decision, Respondent’s license as a mobile home dealer, class D-8 number 7034, must be suspended until Respondent repays in full, plus interest at the rate of ten per cent per year, the amount paid from the Fund on its account. Done this day, June 14, 1999.

______________________________________ Kip M. Micuda Administrative Law Judge

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

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

By ___________________________

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