ALJDEC

00F-L990023-BFS · Department of Building and Fire Safety · 2000-06-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 19, 2000 APPEARANCES: Petitioners were represented by Andy Jacobson, the President of their homeowners association and their designated representative. Respondents were represented by Michael A. Parham, Esq. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ Having heard the testimony of the witnesses and having read and considered the entire record in this matter, the undersigned Administrative Law Judge makes the following Findings of Fact and Conclusions of Law and submits the following Recommended Decision to the Director of the Arizona Department of Building and Fire Safety. FINDINGS OF FACT Petitioners are residents of Brentwood West Mobile Home Park, (“Brentwood”) located in Mesa, Arizona. Petitioners filed the instant complaint on April 28, 2000, alleging that Respondents have been overcharging the residents of Brentwood for solid waste services since November 1998. It was undisputed that since November 1998, the City of Mesa has assessed and continues to assess Brentwood $7.30 per month per occupied mobile home space for once weekly refuse removal. It was further undisputed that Brentwood charges its residents $14.75 per month for this service. However, Brentwood claims that its overall costs for this service exceed the $7.30 rate, due to billing, administrative, operating, and maintenance expenses it incurs. Brentwood further claims that the $14.75 rate is the legal ceiling for what it may assess its residents. Administrative notice was taken of the documents in the case file. One such document is a letter dated January 26, 2000, from Kari Kent, Solid Waste Management Director for the City of Mesa, addressed to Ms. Karen Hennen, manager of Brentwood. The letter states in full:

It has come to my attention from your residents that they are being assessed a monthly fee of $14.75 for Mesa solid waste services. According to the City of Mesa’s solid waste rate ordinances, this rate applies to Mesa customers who reside in an individually deeded lot or parcel which can be purchased or sold separately receiving twice per week garbage and recycling services. The City of Mesa, which may be unlike other communities, does have a separate rate for mobile home and recreational vehicle development customers. For once per week garbage collection the monthly rate is $7.30 per occupied space and $12.40 for once per week garbage and once per week recycling service. Brentwood West is currently being assessed by the City of Mesa $7.30 per month per occupied unit that is reported into our Solid Waste Offices. Although the Arizona Landlord and Tenant Act does state that ‘the landlord shall not charge more than the prevailing basic service single family residential rate’, please recognize that this rate is for twice per week collection service which your customers are not provided with at this time. I hope that you take Mesa’s unique fee structure into consideration when charging your residents the solid waste fee. (Emphasis added.)

Respondents offered no evidence to rebut the information contained in this document. Another document in the case file, of which administrative notice was taken, is the One Year Rental Agreement between Brentwood and Mr. Jacobson, dated November 30, 1999. Pursuant to the rental agreement, page 1, paragraph 2(d), the “[l]andlord may at any time, increase rents to compensate Landlord for increases in Landlord’s costs of insurance, taxes or utility rate increases as provided in A.R.S. §33-1413.” Nowhere in the rental agreement does it provide for an adjustment to the charge for refuse removal associated with additional related and non-related expenses the landlord may incur. A copy of Brentwood’s Statements of Policy, which expires on December 31, 2000, is also contained in the case file. Paragraph 3 of this document states:

“rentals are established by the Landlord to cover all costs of operation of the community and to return to Landlord what Landlord considers to be an acceptable return on investment. Rentals may be adjusted at the time of renewal of rental agreements upon not less than ninety (90) days prior written notice by the Landlord. Rent changes will be determined by several factors including, but not limited to: current and/or projected market value, changes necessary to provide Landlord with an acceptable rate of return on Landlord’s investment, inflation, changes in operating costs, capital expenditures, and other items. In addition, Landlord may at any time increase rental to compensate Landlord for increases in Landlord’s costs of insurance, taxes, and/or utility rate increases as provided in A.R.S. §33-1413. (Emphasis added.)

The undersigned Administrative Law Judge finds that Brentwood could have considered its operating expenses when establishing its rental rates, as opposed to recouping its costs associated with its operations from its residents by more than doubling the charge for refuse removal. Brentwood never provided notice to its residents that the additional charge of $7.45 per month was what it considered to be, in essence, an administrative fee. Respondent’s counsel made an oral motion to dismiss this matter with respect to the residents of Brentwood that were not present at the hearing. The undersigned Administrative Law Judge took the motion under advisement. Having considered said motion, Respondent’s motion to dismiss is denied in the interest of administrative efficiency and economy, as the complaint was filed on behalf of the residents of Brentwood collectively, and furthermore, all of the residents are affected by the outcome of this matter. In closing and in Respondent’s motion for summary judgment (which was denied), Respondent argued that a one year statute of limitations should apply to this action, thereby precluding any potential recovery by Petitioners from extending beyond April 28, 1999, one year prior to the date upon which the complaint was filed. Respondent argues that Petitioner’s claim of Respondent’s liability arises as a result of A.R.S. §33-1413.01(D). Pursuant to A.R.S. §12-541(5), “there shall be commenced and prosecuted within one year after the cause of action accrues…upon a liability created by statute…” The statutory language of A.R.S. §33- 1413.01(D) is permissive, not mandatory. The language contained in the One Year Rental Agreement and the Statements of Policy was chosen by Respondent and not mandated by law. These documents created the liability that is the subject of this proceeding. Other than Respondent’s characterization that the refuse removal assessment is a liability created by statute, Respondent fails to present sufficient legal authority in support of that position. Therefore, contrary to Respondent’s contention, Petitioners’ cause of action is not created by statute, and thus the one year statute of limitations does not apply. CONCLUSIONS OF LAW Petitioners bear 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). Pursuant to A.R.S. §33-1413.01(D): “a landlord may charge separately for removal of waste, garbage, rubbish, refuse and trash and for sewer services. Any charges for removal or sewer services may not exceed the prevailing single family residential charge, fee or rate for these services levied by the political subdivision or provider.” (Emphasis added.)

The undersigned Administrative Law Judge concludes that the rate levied on Brentwood by the City of Mesa has, during the relevant time period, been and currently is $7.30 per month per occupied unit. Therefore, it is determined that the residents of Brentwood should have been assessed $7.30, and not $14.75 by Brentwood. Because there has been no evidence offered to show that the additional charge of $7.45 per month was included In the rental agreement or that notice was provided, the additional amount of $7.45 per month per occupied unit has been wrongly assessed to the residents of Brentwood. See Cactus Wren Partners v. Arizona Department of Building and Fire Safety, et al., 177 Ariz. 559, 869 P.2d 1212 (1993). The undersigned Administrative Law Judge concludes, based upon the evidence of record, that Brentwood has been improperly overcharging its residents for refuse removal in the amount of $7.45 per month since November 1998. RECOMMENDED ORDER In view of the foregoing, Brentwood should immediately charge its residents no more than $7.30 per month for refuse removal and Brentwood should reimburse its residents the amount it collected for refuse removal in excess of $7.30 per month from November 1998 through the present. Done this day, June 28, 2000.

______________________________________ Sondra J. Vanella Administrative Law Judge

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

N. Eric Borg, Director 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