Sec. 1210.18. Resolution of disputes

(a) Any homeowner, retailer, manufacturer, installer, mechanic, or lending entity may file a complaint with the Department of State seeking resolution of an allegation that a substantial defect exists in the delivered condition, installation, service or construction of a manufactured home. Any such complaint shall be in writing, shall be submitted on a form provided by or otherwise acceptable to the Department of State; and shall specify the name and address of each complaining party, the nature of the substantial defect alleged to exist, the name and address of the manufacturer, the retailer, and the installer of such manufactured home and, if applicable, the name and address of each mechanic who serviced the manufactured home.

(b) A complaint relating to the delivered condition, installation, service or construction of a manufactured home shall be filed with the Department of State within one year and 10 days after the date of the service, installation, or issuance of a certificate of occupancy, or the expiration of any applicable provision of a contract or warranty, whichever is later.

(c) The Department of State shall review the complaint to determine whether the complaint, on its face, does or does not allege the existence of a substantial defect in the delivered condition, installation, service, or construction of a manufactured home. A determination by the Department of State pursuant to this subdivision shall not be deemed to constitute a finding on the merits of the complaint, but shall merely be a determination whether the complaint, on its face, does or does not allege the existence of a substantial defect.

(d) If the Department of State determines that a complaint, on its face, fails to allege the existence of a substantial defect, the Department of State shall notify the complaining party of such determination. The complaining party may thereafter file a new complaint, provided that such new complaint is filed within the time period specified in subdivision (b) of this section.

(e) If the Department of State determines that the complaint, on its face, does allege the existence of a substantial defect, the Department of State shall notify the complaining party and each responding party of such determination, and the Department of State shall provide each responding party with a copy of the complaint. Each responding party shall, within 30 days after receipt of such notice and copy of the complaint, file a written response to the complaint with the Department of State, and provide a copy of such response to the complaining party.

(f) The Department of State shall be permitted, but not required, to attempt to resolve any complaint on an informal basis. Such informal complaint resolution process may be commenced at any time after the complaint is filed, and may be continued at any time and from time to time thereafter. During the course of such informal complaint resolution process, one or more employees of the Department of State may participate in telephone calls to or from, or meetings with, any party or parties, with or without the participation by or presence of the other party or parties, and the Department of State may conduct such other investigation into the merits of the complaint as the Department of State may deem appropriate. No administrative law judge who may subsequently hear the matter shall participate in any such telephone call or meeting or any such investigation. At any time during the informal complaint resolution process, the Department of State may propose a manner in which the complaint may be resolved, in whole or in part. If the complaining party and each responding party agree in writing to accept such proposed resolution, the Secretary of State or his or her designee shall make a consent order reflecting such resolution. Any such consent order shall be final and binding when issued.

(g) If the Department of State elects not to attempt to resolve the complaint on an informal basis, or if any attempts to resolve the complaint on an informal basis are unsuccessful, in whole or in part, the Department of State shall resolve the complaint by administrative hearing conducted by the Department of State's Office of Administrative Hearings pursuant to the State Administrative Procedure Act and Part 400 of this Title. The decision resolving the complaint following an administrative hearing shall be made by the administrative law judge who conducted the hearing, shall be in writing, and shall provide the reasons for the decision. If the complaining party prevails, in whole or in part, the decision of the administrative law judge shall:

(1) direct compensation to the complaining party in such amount as the administrative law judge shall determine to be appropriate, which amount shall include, but shall not necessarily be limited to:

(i) filing fees, recording fees, inspection fees, and other required costs that the complaining party would not have incurred had the manufactured home met applicable standards; and

(ii) the cost of conforming repairs or replacements; and

(2) apportion liability between two or more parties, where appropriate. If appropriate, a portion of liability may be attributed to the complaining party, in which case the compensation awarded to the complaining party shall be adjusted accordingly.

The amount of compensation awarded to a complaining party shall not be limited by the amount(s) in the deposit account(s) evidenced by the acceptable deposit account control agreement(s), the amount(s) of the acceptable letter(s) of credit, or the amount(s) of the acceptable surety bond(s) provided by the responding party or parties determined to be liable. A copy of the decision of the administrative law judge shall be provided to each complaining party and each responding party. The decision of the administrative law judge shall be final and binding when issued unless an appeal is taken pursuant to subdivision (h) of this section.

(h) Any party may appeal the decision of the administrative law judge to the Secretary of State within 30 calendar days of such party's receipt of a copy of the decision. Such an appeal shall be made by filing with the Secretary of State, and serving on the other party or parties, a written memorandum of appeal stating the appellant's arguments and setting forth specifically the questions of procedure, fact, law or policy to which exceptions are taken, identifying the part or parts of the administrative law judge's decision and order to which objection is made, specifically designating the portions of the record relied upon, and stating the grounds for exceptions. A party upon whom an adverse party has served a memorandum of appeal may, within 30 calendar days after such service, file and serve a memorandum in opposition to appeal, a memorandum of cross- appeal, or both. A party upon whom an adverse party has served a memorandum of cross-appeal may, within 15 calendar days of such service, file and serve a memorandum in opposition to cross-appeal. The failure of any party to serve a memorandum in opposition to appeal or memorandum in opposition to cross-appeal shall not be deemed a waiver or admission. The record on appeal shall consist of the complaint, the response or responses to the complaint, evidentiary exhibits from the hearing, the transcript of the hearing, the memorandum of appeal, the memorandum or memoranda in opposition to appeal, any memorandum or memoranda of cross-appeal, and any memorandum or memoranda in opposition to cross-appeal. The Secretary of State or his or her designee may, in his or her discretion, stay the effective date of the decision of the administrative law judge pending the appeal. The Secretary of State or his or her designee may, in his or her discretion, direct that there shall be oral argument on the appeal. Unless so directed, there shall be no oral argument. The Secretary of State or his or her designee shall, based solely on the record on appeal (and oral argument, if any) make a written decision and order which shall:

(1) confirm the decision of the administrative law judge;

(2) supersede the decision of the administrative law judge; or

(3) remand the matter to the administrative judge for additional proceedings.

Any decision and order superseding the decision of the administrative law judge shall include a statement as to why the Secretary of State, or his or her designee, has not confirmed the decision of the administrative law judge. A decision and order of the Secretary of State, or his or her designee, which confirms the decision of the administrative law judge or supersedes the decision of the administrative law judge shall be final and binding unless a party makes a timely application for judicial review pursuant to article 78 of the Civil Practice Law and Rules.

(i) If any party has filed an appeal from the decision of the administrative law judge, such party or any other party may apply to the Secretary of State, or to his or her designee, for an order staying such decision pending determination of the appeal. The application for a stay shall be in writing, shall be based upon evidence and other matter contained in the record on appeal, and shall be served on each other party. Any party served with an application for stay pending appeal may, within five days after such party receives such application, file and serve papers in opposition to such application. The Secretary of State or his or her designee shall promptly rule on the application.

(j) Any party aggrieved by a decision and order of the Secretary of State, or his or her designee, which confirms the decision of the administrative law judge or supersedes the decision of the administrative law judge may seek judicial review of such decision and order pursuant to article 78 of the Civil Practice Law and Rules.

(k) Each person or business entity who applies for, receives, or retains any certification under article 21-B, and each person or business entity who applies for, receives, or retains a renewal of any such certification, shall be deemed to agree:

(1) to submit to the jurisdiction of the Department of State in connection with the resolution of complaints and disputes pursuant to this section;

(2) to accept service of any notice, complaint, or other paper or document to be given or provided by the Department of State pursuant to this section, or any other provision of this Part, or any provision of Part 400 of this Title, by first class mail, by certified mail (return receipt requested), or in any manner authorized by the Civil Practice Law and Rules for service of a summons; and

(3) to be bound by any consent order, decision, or final decision and order made pursuant to this section (subject, however, to the right to seek administrative or judicial review as provided in this section). Such agreements shall survive any renewal, extension, suspension, revocation, or expiration of such certification.

(l) Each person or business entity who, at any time on or after July 1, 2006, engages in any activity which requires certification as a manufacturer, retailer, installer, or mechanic under article 21-B, shall be deemed to have made the agreements set forth in subdivision (k) of this section, without regard to whether such person or entity does or does not apply for or obtain such certification. Nothing in this subdivision shall excuse any person or business entity required to be certified from the obligation of obtaining such certification.

(m) Any notice, complaint, or other paper or document to be given or provided by the Department of State to any complaining party or responding party pursuant to this section or pursuant to any provision of Part 400 of this Title may be given or provided by first class mail addressed to the party at the address of such party last known to the Department of State, by certified mail (return receipt requested) addressed to the party at the address of such party last known to the Department of State, or in any manner authorized by the Civil Practice Law and Rules for service of a summons.

(n) Nothing in this section shall preclude any party from requesting the Department of State to attempt to resolve a dispute on an informal basis prior to the filing of a complaint under this section, and nothing in this section shall preclude the Department of State from attempting to resolve a dispute on an informal basis prior to the filing of a complaint under this section; provided, however, that:

(1) the Department of State shall have no obligation to make any such attempt; and

(2) the period of time, as set forth in subdivision (b) of this section, within which a complaint must be filed shall not be extended by reason of any party making any such request or by reason of the Department of State making any such attempt.

During the course of any such informal pre-complaint dispute resolution process, one or more employees of the Department of State may participate in telephone calls to or from, or meetings with, any party or parties, with or without the participation by or presence of the other party or parties, and the Department of State may conduct such other investigation into the merits of the dispute as the Department of State may deem appropriate; however, no administrative law judge who may subsequently hear the matter shall participate in any such telephone call or meeting or any such investigation.