ALJDEC

99F-R989022-BFS · Department of Building and Fire Safety · 1999-07-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 21, 1999 APPEARANCES: Complainant appeared on his own behalf and Respondent failed to appear. No one appeared to represent the interest of the Consumer Recovery Fund. ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

Evidence and testimony were presented and, based upon the entire record in this matter, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

1. Complainant is a “consumer” as defined by A.R.S. § 41-2142 and is entitled to receive payment from the Consumer Recovery Fund for damages as a result of Respondent’s acts or omissions. 2. Respondent was the holder of Class D-8 dealer’s license number 6899 issued by the Arizona Department of Building and Fire Safety (“Department”). 3. Notice was taken of the prior order of Department in case number 98F-C978284-BFS. That case involved a complaint filed by Complainant against Respondent, alleging certain violations of the applicable provisions of the law referable to manufactured housing. The Director of Department issued his order in that matter on September 22, 1998. 4. A review of the salient points contained in the Order issued in the above-described license disciplinary action revealed the following: a. Complainant purchased a repossessed manufactured home from Respondent. As part of said contract, Respondent had agreed to provide and install awnings for the carport and patio area in compliance with the applicable rules and regulations of the mobile home park. b. The Decision and Order entered in case number 98F-C978284-BFS revealed that a number of the items on the filed complaint had been verified and Respondent was required by the Order entered in that prior matter to accomplish appropriate and effective remedial work on specified uncorrected verified items of the complaint. The Order further determined that Respondent violated the provisions of A.R.S. § 41-2186(19) and (20). Moreover, Respondent’s Class D-8 license was to be suspended on the effective date of that Order until Department received written proof that Respondent had complied with all terms and conditions contained therein. c. The installation of the awnings was one of the issues that Respondent was required to accomplish. 5. The aforementioned awnings were not installed by Respondent within the applicable time period allowed in the prior disciplinary Order of the Director of Department. Moreover, on November 17, 1998 Complainant was advised via letter from Department that Respondent was no longer licensed with that Agency and that his only recourse for the remedial work required in the prior Decision and Order of the Agency would be to file a claim with the Consumer Recovery Fund. Thus, Complainant filed the instant claim for a payout from said fund. 6. Although there are other items listed in the above-described prior license disciplinary Order that Respondent failed to complete, Complainant averred at the outset of the hearing that he was only seeking a payout for the awnings and the $90.00 cost for the required building permit fee. In this regard, Complainant submitted four (4) bids from licensed contractors for the awnings. 7. The bids submitted by Complainant ranged from a low bid of $2,632.00 to a high bid of $3,593.00. 8. Uncontroverted evidence of record presented at the instant hearing established that Complainant had, in fact, paid the original written contract between the parties in full and that the payments received by Respondent included payment for the awnings. It is important to note that there was some issue regarding Respondent’s attempt, via oral modification, to increase the cost of the written contract, but Complainant never agreed to this amendment to the contract and nothing in this regard was ever placed into a signed written agreement. 9. The cost of the low bid submitted by Complainant for the awnings and the cost for the permit were not shown to be unreasonable. Therefore, based upon all of the credible evidence of record presented herein, it is adjudicated and determined that a proper and reasonable amount payable as damages from the Consumer Recovery Fund to Complainant is the total sum of $2,722.00, representing the combined total of the lowest submitted bid for the awning installation and the cost for the necessary permit for the project.

CONCLUSIONS OF LAW

1. Under the facts and circumstances of this case, it is concluded that Department is empowered to determine and award proper payment to Complainant from the Consumer Recovery Fund pursuant to A.R.S. § 41-2190 (A) and A.R.S. § 41-2190 (B). 2. The prior decision of Department in case number 98F-C978284-BFS conclusively establishes that Respondent’s failure to provide awnings for Complainant’s home constitutes a violation of the applicable provisions of A.R.S. § 41-2180 and therefore, Complainant is entitled to a payout from the Consumer Recovery Fund in the amount of his actual damages. 3. The within record supports an award to Complainant from the Consumer Recovery Fund in the amount of $2,722.00 pursuant to A.R.S. § 41- 2190 (D) and further supports the entry of an Order suspending Respondent’s Class D-8 license until Respondent has repaid the Consumer Recovery Fund the sum of $2,722.00 plus statutory interest.

RECOMMENDED ORDER

In view of the foregoing, it is recommended on the effective date of the Order entered in this matter that the Arizona Department of Building and Fire Safety shall commence and finalize payment procedures from the Consumer Recovery Fund to Complainant in the amount of $2,722.00. It is further recommended that Respondent’s Class D-8 license shall be suspended until Respondent has repaid the Consumer Recovery Fund the sum of $2,722.00, which was paid from Respondent’s account, plus statutory interest.

Done this day, July 28, 1999.

______________________________________ MARK A. SILVER Administrative Law Judge

Original transmitted by mail this ____ day of July, 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