ALJDEC

00F-L990019-BFS · Department of Building and Fire Safety · 2000-04-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 17, 2000

APPEARANCES: Petitioners were represented by George R. Guerra, Lynn Shalaby, and Marie Davis; Respondents were represented by Jerold L. Miles and Bill Flaherty.

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Petitioner George Guerra and other residents (“Petitioners”) of the Oak Park Mobile Home Park (“Oak Park”) in Payson, Arizona bring this action against the owners of Oak Park, Respondents Jerold Miles and Bill Flaherty, and the park managers, Loren and Monte Perkins. Petitioners allege several violations of the Arizona Mobile Home Parks Residential Landlord and Tenant Act (“the Act”), under Arizona Revised Statutes (A.R.S.) §§ 33-1401 through 1491. The parties presented evidence and testimony at the hearing and, based upon the entire record, this Administrative Law Judge, acting as Mobile Home Parks Hearing Officer under A.R.S. § 41-2198 through 41- 2198.04, makes the following Findings of Fact, Conclusions of Law, and Order. FINDINGS OF FACT 1. Petitioners constitute just under one-third of the residents of Oak Park, but bring this action on behalf of all the residents. Three of the Petitioners—George Guerra, Lynn Shalaby, and Marie Davis—appeared and testified at the hearing. Respondents Jerold Miles and Bill Flaherty also testified (hereinafter “Respondents” refers to the owners, not the park managers). 2. The petition alleges five violations of the Act: (a) Respondents provided only 60 days notice when they increased rent beginning March 1, 2000; (b) Respondents do not maintain the common areas of Oak Park by keeping it clean and safe; (c) Respondents did not make copies of the most current version of the Act available to all tenants; (d) Respondents do not provide an emergency telephone number by which tenants can reach them when the park is unattended; and (e) Respondents did not inform the tenants about the mobile home relocation fund when they increased the rent. 3. At the hearing, the testimony showed that Respondents have provided a reliable emergency number in response to the petition, thereby correcting any problems regarding allegation (d). Further, it was noted that Respondents have begun providing the August 6, 1999, booklet containing the provisions of the Act, taking care of allegation (c). Petitioners agreed that these were minor points and that they were satisfied with Respondents’ actions on those points, as long as Respondents maintained compliance. Respondents asserted that they would do so. 4. Regarding allegation (e), not much evidence was introduced. That allegation is addressed below in Conclusion of Law 5. 5. The hearing in this matter focused on allegations (a) and (b). As to allegation (a), Respondents do not dispute that they gave only 60 days notice for the rental increase. Regarding allegation (b), Petitioners presented testimonial evidence about the lack of regular maintenance at the park; specifically, a twisted clothesline, dirty laundry room, debris in the common areas of the park, poor lighting at night, unsafe wiring for cable and telephones, and a torn-up road. Respondents stated that they were waiting to fix the road after the snow stopped and that they were willing to take care of any other maintenance items that are called to their attention, but that they have not been informed in writing about several of these items. 6. There is clearly a communication problem at Oak Park. Much of the discussion at the hearing focused on the poor communication between Petitioners and Respondent owners. This is because Petitioners have lost faith in the park managers and feel that they are not responsive to them. Respondents themselves can do only so much with that problem. Rather, it is primarily the responsibility of the park managers, as the onsite representatives for the owners, to be responsive to the tenants. This has not been happening with Petitioners and so they have started communicating directly with the owners, bypassing the park managers. Respondents must take this communication problem between Petitioners and the park managers seriously, as it may lead to future violations of the statutes by Respondents. CONCLUSIONS OF LAW Jurisdiction 1. The Arizona Department of Building and Fire Safety referred this case to the Arizona Office of Administrative Hearings pursuant to A.R.S. §§ 41-2198 and 41-2198.01(D). This Office has jurisdiction to hear and decide the petition pursuant to A.R.S. §§ 41-1092.02, 41-2198, and 41- 2198.02. Discussion 2. This case is governed by the Arizona Mobile Home Parks Residential Landlord and Tenant Act (“the Act”), Arizona Revised Statutes Title 33, Chapter 11 (A.R.S. §§ 33-1401 through 33-1491). Five of the Act’s provisions have been cited by Petitioners. 3. A.R.S. §§ 33-1432(H) requires that landlords make available to tenants the current version of the Act as published in booklet form by the Arizona Secretary of State. A.R.S. § 33-1452(E) requires that landlords provide an emergency number so that tenants can reach someone when a park is unattended. These provisions were the bases of allegations (c) and (d), respectively. As noted above, Respondents have corrected any problems with these requirements. 4. Next, landlords who increase rent during any consecutive twelve month period more than ten percent plus the current metropolitan Phoenix consumer price index are required by A.R.S. § 33-1476.04(B) to notify affected tenants about the mobile home relocation fund established in A.R.S. § 3-1476.02. Petitioners claim in allegation (e) that Respondents failed to do this. However, Petitioners did not show that this provision is applicable to them; there is no information in the record about the current metropolitan Phoenix consumer price index. Furthermore, Petitioners have not shown that anyone was harmed by the alleged lack of notice. 5. Another of Petitioners’ allegations is based on A.R.S. § 33- 1434(A), which requires landlords to keep park premises and common areas clean and safe. The Petitioners who appeared at the hearing testified about various conditions at the park, including the items mentioned above in Finding of Fact 5. Respondents expressed a willingness to fix any items brought to their attention, but said that some of the complaints had not been sent to them in writing. Contrary to Respondents position, Respondents’ obligation to keep the park safe and clean is not contingent upon Petitioners written notification of items. Making sure that the park is clean and safe should be one of the primary duties of an onsite manager. Verbal notification to the manager about any conditions that need to be fixed should be sufficient. The statutes require written notification to the landlord only if the tenant is claiming breach of the lease and the tenant intends to terminate the lease. A.R.S. § 33-1471. In Petitioners’ particular circumstances, however, since they have lost faith in the park managers, written notification to Respondents seems to be the best course of action. Respondents have credibly stated that they will be responsive to written requests from Petitioners. 6. Finally, Respondents have admitted that they did not comply with A.R.S. § 33-1432(F), as stated in allegation (a), because they gave only 60 days notice of the rent increase, not the required 90 day notice. Therefore, instead of being effective as of March 1, 2000, the $55 monthly rental increase should not have been effective until April 1, 2000. This means that Respondents owe credits to any tenants who paid the increased amount for March 2000. This should be a credit of the difference to any continuing tenants who paid the increased March 2000 rent and a refund of the difference to any tenants who no longer reside at Oak Park. 7. To bring these actions, petitioners are required to pay the State a $50 filing fee. A.R.S. § 41-2198.01(A). If a petitioner prevails, the landlord must reimburse the petitioner. This Administrative Law Judge finds that Petitioners have prevailed. Respondents shall pay Petitioners $50 for the filing fee.

. . . ORDER Based on the above findings and conclusions, IT IS ORDERED that Respondents give credits to current tenants who paid the increased rent for March 2000. Each credit shall be equal to the difference between the former monthly rent and the increased monthly rent, presumably $55. Respondents shall send refunds of the difference to any tenants that paid the increased March 2000 rent, but who no longer live at Oak Park. The credits or refunds shall be given no later than June 30, 2000. IT IS FURTHER ORDERED that Respondents shall keep the park clean and safe, and shall specifically address the items listed in Finding of Fact 5 by no later than June 30, 2000. IT IS FURTHER ORDERED that Respondents shall pay Petitioners the $50 filing fee no later than June 30, 2000.

Done this 9th day of May 2000.

OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Eric A. Bryant Administrative Law Judge

Original Decision and Order mailed this ___ day of May 2000, for distribution to the parties, to:

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

By ___________________________ -----------------------

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