ALJDEC

02F-L002003-BFS · Department of Building and Fire Safety · 2001-12-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 16, 2001

APPEARANCES: Mary Sergent appeared on behalf of herself and other Petitioners; Grant Stoaks and Charles Irion appeared on behalf of Respondent Ponderosa Trailer Park, LLC; Park Managers Sam and Marie Hines did not appear.

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Petitioners Mary N. Sergent, Donald R. Shook, Mildred F. Meyer, and Bob Duckworth, residents of Ponderosa Mobile Home and RV Resort (hereinafter “Ponderosa”) in Lakeside, Arizona bring this action against the owner of Ponderosa -- Respondent Ponderosa Trailer Park, LLC -- and the park managers, Sam and Marie Hines (hereinafter “park managers”). Petitioners allege violation of the Arizona Mobile Home Parks Residential Landlord and Tenant Act (“the Act”), under Arizona Revised Statutes (A.R.S.) §§ 33-1401 through 33-1491. The parties presented evidence and testimony at the hearing. 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. In July 2001, Petitioners and other residents of Ponderosa formed a tenant’s association called the “Ponderosa AAMHO Charter Park” (hereinafter “the association”). Petitioners are officers of the association. They immediately proposed a meeting with park management, to be held in the “Clubhouse.” 2. The Clubhouse is a multipurpose facility that is open for use by all residents. It has a large room with tables and chairs that is used for socializing and other activities. It contains a computer by which residents can access the Internet. It also has a kitchen. Many different types of activities occur in the Clubhouse, and it is kept open to all residents during waking hours. No one is allowed to exclude others from the Clubhouse. 3. Grant Stoaks and Charles Irion are co-Managing Members of Iron Granite, LLC. Iron Granite, LLC, is the Managing Member of Ponderosa Trailer Park, LLC. Thus, Stoaks and Irion will be referred to as the “owners” of Ponderosa. 4. The owners suggested that the meeting proposed by the association be held in the park office, not the Clubhouse. This provoked a series of letters back and forth between the association and Stoaks. These letters were submitted by Petitioners and provide good evidence for each party’s position. The letters show that there was some tension between the parties, but they generally treated each other with respect. 5. Petitioners thought that the association was being excluded from using the Clubhouse for its meetings. On the other hand, the owners repeatedly mentioned that they wanted the association to meet elsewhere in order to “keep the clubhouse open for activities” and they offered use of a ramada instead. These were the general positions maintained by the parties throughout several weeks of discussion. Because the situation was not getting resolved, Petitioners filed their petition in early September 2001, alleging that the owners and park managers were illegally denying the association the use of the Clubhouse. 6. On September 8, 2001, the park managers hand-delivered a September 4, 2001, letter by Stoaks to four residents, including Petitioners Sergent and Meyer (hereinafter this document will be referred to as “the September 4 letter”). The September 4 letter states the following: This is notification to you and your group to cease your threatening and intimidation [sic] behavior towards [sic] the manager, Marie Hines. The confrontation initiated by you and your group that took place in the office on September 4, 2001 was unacceptable and must not re-occur.

Your participation in the event is in violation of the Landlord Tenant Act Section 13-1203 [sic]. You and your group are verbally threatening and using intimidation tactics thus causing harm to our manager and interfering with our business. A copy of this notice is being placed in you [sic] file. Any re- occurrence of this behavior will cause us to terminate your tendency [sic] under Section 33-1476 Paragraph D sub-section 4 and Section 33-1485.

The September 4 letter was based on an encounter that occurred in the park office between the four residents and park manager Marie Hines. Sergent testified at the hearing that the residents had questions for Hines and were attempting to get them answered. She testified that the residents were acting reasonably and did not raise their voices or threaten Hines in any manner. Stoaks testified at the hearing that he believed, after talking to Hines and another person who was present, that criminal conduct had occurred in the form of “threatening and intimidation.” However, his actions belie that belief because he did not notify the police. When questioned at the hearing, the most he could say was that the four residents had used “threatening tones” of voice against Hines. Again, however, Sergent denied this. This tribunal finds Sergent’s testimony to be credible. Thus, the evidence does not show that any illegal conduct occurred at the meeting nor did Stoaks cite any park rule that was violated. Even if true, which this tribunal does not find, the conduct of the four residents was, at worst, merely rude. So the owners’ threat to terminate the tenancy should the conduct re-occur was without a legitimate basis. 7. On September 8, 2001, Sergent sent a copy of the September 4 letter to be added to the petition. She alleged that the September 4 letter constituted a retaliatory action that is prohibited by statute. 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”), found at Arizona Revised Statutes Title 33, Chapter 11 (A.R.S. §§ 33-1401 through 33-1491). Two of the Act’s provisions are alleged to have been violated. 3. A.R.S. § 33-1452(F) requires that “[t]he landlord shall not prohibit meetings of tenants with or without invited visiting speakers in the mobile home park relating to mobile home living and affairs in the park community or recreational hall if such meetings are held at reasonable hours and when the facility is not otherwise in use.” At the hearing in this matter, it became clear that the parties misunderstood each other regarding use of the Clubhouse for tenant meetings. On the one hand, the owners cannot prohibit the association from using the Clubhouse as long as it is during reasonable hours and when not otherwise in use. On the other hand, the association cannot exclude anyone from the Clubhouse during its meetings. The owners wrongly assumed that the association intended to “close the doors” to the Clubhouse during the meeting and exclude others from using it for Internet access or other activities. It was clarified at the hearing that the association has no such intent. Both parties understand that the owners cannot prohibit the association from holding meetings in the Clubhouse as long as it is done just as any other activity being held there. 4. The evidence does not show that the owners violated A.R.S. § 33- 1452(F). Rather, it shows that there was a misunderstanding as to how the Clubhouse was going to be used by the association. 5. A.R.S. § 33-1491(A) prohibits a landlord from “threatening to bring an action for eviction” after, among other things, the tenant has filed a petition alleging violations of the Act. If the landlord does threaten such action within six months of the filing of the petition, there is a presumption that the landlord’s conduct was retaliatory and improper. A.R.S. § 33-1491(B). This tribunal concludes that the last sentence of the September 4 letter is a threat to evict, albeit a very tenuous one. As such, it raises the presumption that it is a retaliatory action. Respondents did not dispel that presumption at the hearing. Therefore, Respondents have violated A.R.S. § 33-1491. 6. A.R.S. § 41-2198.02 provides that, upon finding a violation, this tribunal may order Respondents to abide by the statutes or levy a civil penalty. In this matter, no civil penalty is warranted. After a good deal of discussion at the hearing, the owners understand their responsibilities for abiding by the statutes. 7. To bring these actions, Petitioners were 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 for the fee. A.R.S. § 41- 2198.02(A). This Administrative Law Judge finds that Petitioners have prevailed because they have shown a violation of the Act. Respondents shall pay Petitioners $50 for the filing fee. ORDER Based on the above findings and conclusions, IT IS ORDERED that Respondents shall pay Petitioners $50.00 no later than January 31, 2002.

Done this 5th day of December 2001.

OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Eric A. Bryant Administrative Law Judge

Original mailed this ___ day of December 2001, to:

N. Eric Borg, Director ATTN: Shawna Blank Arizona Department of Building and Fire Safety East Virginia, Suite 100 Phoenix, AZ 85004

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

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