ALJDEC

00F-L990023-BFS-rhg · Department of Building and Fire Safety · 2000-10-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 3, 2000 APPEARANCES: Andy Jacobson on behalf of Petitioners; Michael Parham, Esq. on behalf of Respondents ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ The undersigned Administrative Law Judge presided over the initial hearing of this matter and issued the Recommended Decision. A request for re-hearing was made by Respondents and granted by the Director of the Arizona Department of Building and Fire Safety. Administrative Law Judge Lewis D. Kowal presided over the re-hearing of this matter. During the re- hearing, the parties requested that Administrative Law Judge Kowal listen to the tapes of the initial hearing and review the record of the initial hearing. In light of the above mentioned request of the parties and the fact that credibility of the witnesses is not at issue, it is determined that in order to facilitate administrative convenience and continuity, it is more appropriate for the undersigned Administrative Law Judge to issue the Recommended Decision in this matter. The undersigned Administrative Law Judge has reviewed the record of the re-hearing of this matter as well as of the initial hearing and 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. A.R.S. §33-1413.01(D) provides “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.) A.R.S. §33-1413.01(D) dictates what Brentwood may charge its residents. Therefore, the controlling issue in this case hinges on the prevailing single family residential rate for refuse removal that is levied by the City of Mesa. The prevailing single family residential rate that is levied by the City of Mesa for once a week refuse removal is $14.75 per month. This is the amount that Brentwood charges its residents. The City of Mesa assesses Brentwood a commercial rate of $7.30 per month per occupied mobile home space for once a week refuse removal. The evidence of record established that although the rate that Brentwood is charging is residents ($14.75) is not the rate it is actually paying to the City of Mesa for refuse removal ($7.30), Brentwood charges the prevailing single family residential rate of $14.75 to its residents for refuse removal. The evidence of record demonstrated that the $7.30 rate is unavailable to the individual residents of Brentwood, as it is a commercial rate, only available to the actual mobile home development. Consequently, the operator of Brentwood is permitted to take advantage of the lower rate due its status as a commercial entity.

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). The undersigned Administrative Law Judge concludes that the language in A.R.S. §33-1413.01(D) allows a landlord (Brentwood) to charge its residents up to and including the prevailing single family residential rate even if its costs for such services are significantly less. In this case, Brentwood is not required to charge the lesser commercial rate it actually pays for refuse removal rather than the prevailing single family residential rate, despite the seeming inequity to its residents. Essentially Petitioners argue that there is an inconsistency between what a landlord can charge under A.R.S. §33-1413.01(D) and what the landlord actually pays to the city providing the service (here, Mesa). Despite the appearance of inconsistency which Petitioners assert is inequitable, the Arizona State Legislature has determined that a landlord may charge up to and including the prevailing single family residential rate, regardless of what the landlord actually pays for such services to political subdivisions such as the City of Mesa. The undersigned Administrative Law Judge is persuaded by the cogent legal arguments presented by Brentwood at the re-hearing, and concludes upon reconsideration of this matter that the above quoted statute allows Brentwood to charge the amount of $14.75 per month to its residents because that is the prevailing single family residential rate levied by the City of Mesa. Based upon the evidence of record, it is determined that Brentwood has not been improperly charging its residents for refuse removal in the amount of $14.75 per month since November 1998. Petitioners were afforded the opportunity at the re-hearing of this matter to present legal authority to establish that all of the residents of Brentwood can be considered parties to this matter, but failed to do so. Upon reconsideration, the undersigned Administrative Law Judge determines that the proper Petitioners to this proceeding are only those residents who actually signed the original complaint filed in this matter. RECOMMENDED ORDER In view of the foregoing, it is recommended that no action be required of Brentwood concerning this matter, and that this complaint be dismissed.

Done this day, October 19, 2000.

______________________________________ Sondra J. Vanella Administrative Law Judge

Original transmitted by mail this ____ day of October, 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