ALJDEC

00F-L990022-BFS-com · Department of Building and Fire Safety · 2000-08-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

On August 25, 2000, a compliance hearing was held in this matter to determine if the Respondents had substantially complied with the terms and conditions of the previously issued Order of the Director of the Department of Building and Fire Safety (“BFS” or “Department”). John Donaldson and Elizabeth Donaldson (the “Petitioners”) appeared on their own behalf. The Respondents were represented by Attorney Ingeborg Cox. Evidence and testimony were presented. Based upon the entire record, the undersigned Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Decision & Order.

FINDINGS OF FACT

1. On May 23, 2000, a hearing was held in this matter. On May 25, 2000, Administrative Law Judge Allen Reed issued a Decision. On June 1, 2000, the Director of the Department of Building and Safety (the “Department”) adopted Administrative Law Judge Reed’s Decision.

2. Administrative Law Judge Allen Reed concluded that the real issue in this case is whether the Petitioners have the right to sublet their home in accordance with A.R.S. § 33-1454. See Reed’s Decision, page 4. Administrative Law Judge Reed concluded that the Respondents’ Rules and Regulations did not prohibit the Petitioners from subletting their home. Id. at page 5. Administrative Law Judge Reed concluded that the Petitioners are entitled to sublet their home under the same qualifying conditions or standards which were in existence or which were considered by the Respondent when the home was subleased in November of 1997. Id. at pages 5-6.

3. The applicable statute in effect in 1997 provided that a tenant may sublet his home “upon written agreement with the park management.” A.R.S. §33-1454. The rental agreement in effect in 1997 between the parties provided that the Petitioners cannot sublet their home absent written agreement from the Respondents. See Respondents’ Exhibit A, paragraph 9. The Rules and Regulations in effect in 1997 stated that the Petitioners could sublease their home. See Petitioners’ Exhibit 1, paragraph 7. The Rules and Regulations in effect in 1997 are silent regarding the requirement of consent by the Respondents. Id. However, the undersigned Administrative Law Judge finds that the aforementioned cited statute and rental agreement must be read in conjunction with the Rules and Regulations. Accordingly, the undersigned Administrative Law Judge finds that the Petitioners must obtain written consent from the Respondents prior to subletting their home.

4. Administrative Law Judge Reed concluded that the Respondents cannot arbitrarily withhold approval to sublet from the Petitioners. See Reed’s Decision, page 5. Administrative Law Judge Reed concluded that the Respondents must establish reasonable criteria for considering an application to sublet the Petitioners’ home. Id. Administrative Law Judge Reed refused to establish these criteria. Id. Instead, Administrative Law Judge Reed concluded that this was the proper function of the Respondents and their counsel. Id.

5. Attorney Cox stated that the Respondents have established two criteria in considering an application for subletting a home. These two criteria are in addition to any criteria set forth in applicable statutory law, the rental agreement and the Rules and Regulations. Attorney Cox stated that the Respondents require that a prospective applicant must submit to a criminal background and credit check. The undersigned Administrative Law Judge finds that these two criteria are reasonable within the spirit and intent of Administrative Law Judge Reed’s Decision.

6. The Petitioners testified that they have submitted at least two prospective applicants to the Respondents to sublease their home. Attorney Cox stated that neither applicant passed the credit check. The Petitioners testified that they demanded copies of the rejected applicants’ credit reports. Attorney Cox stated that the Respondents cannot provide this information pursuant to federal law. Attorney Cox stated that the rejected applicants are entitled to this information from the credit reporting institutions.

CONCLUSIONS OF LAW

1. The Petitioners have the burden of proof, and the standard of proof on all issues is by a preponderance of the evidence. Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). A "preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not." Morris K. Udall, Arizona Law of Evidence, §5 (1960). 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 (6th ed. 1990).

2. The Petitioners have the burden of proving that the Respondents have not substantially complied with the terms and conditions of the Director’s Order issued on June 1, 2000.

3. The undersigned Administrative Law Judge concludes that the preponderance of the evidence shows that the Respondents have complied with the Director’s June 1, 2000 Order. The Respondents have established reasonable criteria for considering applicants for the subletting of the Petitioners’ home.

ORDER

Based upon the foregoing, the undersigned Administrative Law Judge orders that the Petitioners’ compliance appeal be dismissed.

Done this day, September 6, 2000.

______________________________________ Casey J. Newcomb Administrative Law Judge

Original transmitted by mail this ____ day of September, 2000, to:

N. Eric Borg Department of Building and Fire Safety ATTN: Michelle M. Castaneda East 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