ALJDEC

02F-L002009(3)-BFS · Department of Building and Fire Safety · 2002-04-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 26, 2002. APPEARANCES: The Petitioner, Rance Nethken, appeared personally. The Respondents were represented by their attorney, Thomas E. Koniuszy, Esq. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ 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. Pursuant to the Notice of Hearing issued by the Arizona Department of Building and Fire Safety (“Department”), this matter came on for a consolidated hearing on the Petitioner’s complaint filed with the Department alleging that the Respondents violated the provisions of A.R.S. §§ 33-09(11), 33-1412, 33-1432(G) and (H), 33-1476(H) and 33- 1476.01 of the Arizona Mobile Home Parks Residential Landlord and Tenant Act. 2. The Respondents are regulated by the Department. 3. On October 6, 2000, the Petitioner purchased a Conseco Finance repossessed manufactured home from Bullhead Homes. Petitioner purchased a 1997 Cavco 24' X 44' manufactured home. The serial number of the home is CAVAZLP977353XU. 4. On or about October 24, 2000, Petitioner entered into a written rental agreement with Hacienda Solano Mobile Home Park Partners, an Arizona limited partnership, doing business as Hacienda Solano Mobile Home Park. 5. In paragraph 1 of the rental agreement the Petitioner acknowledged in writing that he had received a current copy of the Arizona Mobile Home Park Residential Landlord/Tenant Act, a current copy of the Rules and Regulations for the park, and a copy of the park’s Statement of Policy. 6. The rental agreement identified Lot 142 at 15606 S. Gilbert Road, Chandler, Arizona as the space the Petitioner rented. That was the location of the Petitioner’s home at the time he purchased it from Bullhead Homes. The space was originally rented by Jessie and Julia Heady with the home located on the space until January 2000, when the Headys went bankrupt and the home was repossessed by Conselo Finance. After repossessing the home, Conselo Finance continued to make the rental payments to the park until the Petitioner took over the rental payment in November 2000. 7. There is credible evidence that the Petitioner was informed by park personnel of the expansion of S. Gilbert Road by the adjoining Town of Gilbert at the time he viewed the park and subsequently signed the rental agreement. There were stakes and markers visible in the roadway and right of way. 8. On or about January 30, 2002, the Petitioner filed a Petition for Hearing by the Mobile Home Parks Administrative Law Judge with the Department. 9. Petitioner’s contention that Respondent’s failed to timely notify him in writing of a changed circumstance, that being the widening of S. Gilbert Road, is unsupported by the evidence. The widening of S. Gilbert Road is not a change in use of the park. Petitioner was told of the impending work and evidence of it was evident by exposed markers and stakes. 10. The Respondents are found to have had nothing to do with the Petitioner’s purchase of his home from Bullhead Homes. Although the home was physically located on Lot 142 of the park, there is no evidence that Petitioner contacted the park prior to the sale of the home. He subsequently contacted the park concerning renting the lot upon which his newly purchased home was located. There is no evidence that Petitioner could not have made arrangements to move his newly purchased home from the park to another location. 11. Petitioner’s claim that Respondents acts or omissions have caused him difficulty in selling his home is not supported by the evidence of record. Resale of homes located within the home are slow. Petitioner expressed a strong desire to move to the Prescott area but expressed frustration that he cannot move because he cannot sell his house. Unless he is generally unsatisfied with his home, it would seem that he has the option to remove his house from the park and relocated it wherever he desires, subject to any contractual obligations he may have with the park under the rental agreement.

CONCLUSIONS OF LAW

1. The Department has jurisdiction over the Respondents and the subject matter of this case. 2. Pursuant to the provisions of A.A.C. R2-19-119(B)(1), the Petitioner has the burden of proof in this matter. The standard of proof is a preponderance of the evidence. 3. The evidence of record is adequate to support a conclusion that the Petitioner failed to sustain the required burden in this matter. 4. The evidence of record is adequate to establish that Respondents did not violate the provisions of A.R.S. §§ 33-09(11), 33-1412, 1432(G) and (H), 33-1476(H) and 33-1476.01. On the contrary, it is concluded that the Respondents complied with the provisions of Arizona Mobile Home Parks Residential Landlord and Tenant Act when and where applicable. 5. The Petitioner’s complaint in this matter should be dismissed.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that the Petitioner’s complaint in this matter be dismissed. Done this day, April 12, 2002

______________________________________ Brian Brendan Tully Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2002, to:

Department of Building and Fire Safety - LTA N. Eric Borg, Director Attn.: S. Gail Hinkley East Virginia, Suite 100 Phoenix, AZ 85004

By ___________________________

-----------------------

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