ALJDEC

00F-L990025-BFS · Department of Building and Fire Safety · 2000-08-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

_____________________________________________________________________ HEARING: August 4, 2000, at 1:30 p.m. APPEARANCES: The Petitioners appeared through Roger Rouser. The Respondents appeared through their attorney, John Buric. ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. The Petitioners, Roger and Rita Rouser, were residents of the Respondent Mobile Home Park, San Pedro M H & RV Territory, at all times alleged in the complaint at issue and at the time of the hearing of this matter. 2. On May 22, 2000, the Petitioners filed a Petition for Hearing for alleged violations of the Arizona Mobile Home Parks Residential Landlord and Tenant Act. The Petitioners specifically allege violations, by the Respondents, of the provisions of A.R.S. §§33-1413 A (1), 33-1417 A&C (3), 33-1434 A (2) and (3), and 33-1436 B (5). 3. The Respondents, Bud and Lee Matson, Owners, and San Pedro M H & RV Territory, et al., are the owners and managers of a age 55 plus Mobile Home and RV park located in Benson, Arizona. 4. The first charge presented at hearing was the alleged violation of A.R.S. §33-1413 A (I). There was no dispute that during a homeowners’ meeting that took place on or about March 15, 2000, one of the Respondents presented a proposed rental increase to take effect on January 1, 2001. The proposal did contain a sentence that the proposed increase was due to an increase in taxes. 5. A.R.S. §33-1413(I) provides as follows: “In addition to any other rental provisions, the landlord is entitled to a rental increase effective at the expiration or renewal of any rental agreement or effective immediately if so provided in a written rental agreement to compensate him for actual costs of insurance, taxes and rate increases for utilities, which shall be substantiated by the landlord in writing to the tenant. “ 6. There was no dispute that the Respondents failed to provide any substantiation at the time of the proposal. However, there was also no dispute that the proposed rent increase for taxes was not to go into effect until January, 2001, and that as of the date of the filing of the complaint and of the date of the hearing no rent increase for taxes had been instituted. The Respondents are admonished that if there is a rent increase in January, 2001 for taxes that the actual cost for taxes must be substantiated by the landlord in writing to the tenants. 7. However, credible evidence, presented at hearing, established that the Respondents are no longer proposing a rent increase based upon taxes but are proposing a general rent increase as provided in A.R.S. §33-1413(G). Again, the Respondents are admonished that if such rent increase is placed into effect that the Respondents shall notify the tenants at least sixty days prior to the expiration or renewal of any such increase in charge. 8. The second charge presented at hearing was the alleged violations of A.R.S. §33-1417(A) and (C ). Again there was no dispute that the Respondents have allowed a dealer to install and display six model homes in the Mobile Home Park. However, there was no credible evidence presented to show that any of the Respondents had offered, solicited, paid, received, or required any form of compensation or benefit in connection with purchase, sale, rental, location or removal of the model homes, nor was there any credible evidence that the Petitioners have been damaged by the presence of the six model homes in the mobile home park. 9. The third charge presented at hearing concerns the Petitioners’ allegation that the Respondent has violated the provisions of A.R.S. §33- 1434 A (3) which provides as follows: “The Landlord shall: (3) Keep all common areas of the premises in a clean and safe condition.” 10. The Petitioner, Roger Rouser, testified that the adjoining unoccupied spaces next to his residence do not have any sort of ground cover and that, consequently, rain causes mud which then washes into the street. The Petitioner’s specific complaint is that the mud then turns to dust and that the Respondents have attempted to remove the dust with a blower which causes clouds of dust to settle on and around the Petitioner’s residence. 11. The Petitioners filed a complaint with the Arizona Department of Environmental Quality and that Department investigated the complaint and sent the Respondents a letter to make them aware of the complained of problem. 12. There was no credible evidence presented to establish that the Arizona Department of Environmental Quality found the Respondents to have committed any type of violation of any applicable statute nor was there any credible evidence presented to show that the Respondents had violated any provisions of the Arizona Mobile Home Parks Residential Landlord & Tenant Act by failing to install ground cover on unoccupied spaces in the mobile home park nor was there sufficient credible evidence presented to establish that the Respondents had failed to keep the common areas of the mobile home park in a safe and clean condition. 13. Credible evidence, presented at hearing, established that the local authorities, the City of Benson, inspected the Respondent mobile home park on a regular basis and have found the mobile home park to be within applicable standards. 14. The fourth charge presented at hearing was that the Respondents have violated the provisions of A.R.S. §33-1436 B (5) which provides as follows: “The size and other specifications of mobile homes allowed in the mobile home park including whether the mobile home must be new or used and whether it must be set at ground level or above ground level.” 15. The Petitioners testified that all of the six model homes present in the mobile home park have been there longer than two years and are now in excess of two years of age and no longer can comply with the mobile home park’s statement of policy which provides for a two year maximum age for manufactured residences placed in the “new” section of the mobile home park, where the Petitioners live, at the time of rental and installation. 16. Credible testimony, presented at hearing, established that while the model homes have never been occupied that they were new when they were installed. Accordingly, the model homes are not found to be in violation of the Respondents’ statement of policy.. 17. In addition to the enumerated items of their complaint, the Petitioners alleged that the Respondents had retaliated against them for filing the complaint at issue. 18. There was no dispute that after the complaint was filed that the Respondents sent the Petitioners a letter directing the Petitioners to remove exposed rebar from the low block marking wall around the Petitioners’ residence. 19. The Petitioners had installed the low block wall as a marking device to delineate their living space. The Petitioners installed the rebar to shore up a low block wall so that the bricks would stay in place. 20. Credible testimony established that an RV tenant had complained upon the danger of the exposed rebar to the Respondents and asked that the condition be corrected. The Respondents then sent a written demand to the Petitioners to correct or remove the exposed rebar. 21. There was no credible evidence presented to establish that there was any connection, or even any correlation, between the filing of the petition and the issuance of the letter. The Petitioners failed to present any credible evidence that the Respondents have engaged in a pattern of harassment or retribution in violation of the Act. CONCLUSIONS OF LAW 1. This administrative hearing was held under authority of and pursuant to A.R.S. §41-1092, and the Arizona Mobile Home Parks Residential Landlord and Tenant Act. A.R.S. §33-1401 et seq. (the “Act”). 2. Subject matter jurisdiction vests in the Department of Building and Fire Safety under authority of A.R.S. §§33-1406 and 33-1408. 3. “In interpreting a statute we must determine and give effect to the legislative intent behind the statute….To determine the legislative intent we examine the policy behind the statute and the evil sought to be remedied….We also consider the context of the statute, the language used, the subject matter, the historical background, and effects and consequences of the statute.”. Ross v. Navroe, 165 Ariz. 286, 798 P.2d 286 (1990). 4. The burden of proof at an administrative hearing is generally upon the Complainant (Petitioners). Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367(1949). Further, the standard of proof at hearing is a “ preponderance of the evidence.” Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). 5. In this case the credible testimony and evidence of record fails to support any finding or conclusion that the Respondents have violated the provisions of the Act. Consequently, the Petitioners have failed to sustain his burden of proof in any of the above allegations. RECOMMENDED ORDER In view of the foregoing, it is recommended that Complaint Number LTA 99-0/025, together with the petition upon which it is based, be dismissed. Done this day, August 24, 2000.

________________________________ M. Douglas Administrative Law Judge

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

N. Eric Borg, Director Department of Building and Fire Safety ATTN: S. Gail Hinckley East Virginia, Suite 100 Phoenix, AZ 85004

By _______________________________ -----------------------

Office of Administrative Hearings 100 N. Stone Ave., Suite 704 Tucson, Arizona 85701 (520) 628-5488