ALJDEC

02F-L002010-BFS · Department of Building and Fire Safety · 2002-04-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 9, 2002; at 9:00 a.m. APPEARANCES: The Petitioner appeared on his own behalf. The Respondent appeared through their attorney, Jim Freisch. 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. Petitioner is a resident of Quail Ridge Estates. There was no dispute that the Petitioner was a resident of Quail Ridge Estates at all times alleged in the complaint at issue. 2. Respondent Quail Ridge Estates is a “Mobile Home Park” as defined by statute. 3. On or about February 5, 2002, the Petitioner filed a petition for hearing of violations of the Arizona Mobile Home Parks Residential Landlord and Tenant Act at Quail Ridge Estates. 4. The Petitioner alleged as follows: “In a new lease, effective 2-1-2002, the park owner is attempting to show television programming as a utility, thereby forcing me to pay for a service I do not want or need. The following provisions of the Landlord and Tenant Act have been violated: 33-1413.01, 33-1434.B, and 33-1432.E.” 5. On or about February 12, 2002, the Respondents, by and through their attorney of record, filed a written response wherein the Respondents state, in part, as follows: “Respondents affirmatively allege that on November 1, 2001 all of the residents of Quail Ridge Estates were sent a letter enclosing the Lease Agreement, Statement of Policy, Rules and Regulations, Pet Rules, the CPI rental increase notice and a record of the last three years rental rates. In that notice, the residents were notified that an additional $11.00 fee would be added to the rent for increased operational expenses.” 6. Credible testimony, presented at hearing, established that Quail Ridge Estates has provided basic cable television services to its residents since at least 1993 and that the residents have experienced repeated problems with the basic service that has been provided. 7. Because of the repeated problems and the residents’ expressed dissatisfaction, the Respondents then solicited bids from alternative cable television providers and ultimately secured an acceptable bid from Aurora Digital Communications. The Respondents then submitted the matter to a vote of the mobile home park’s residents. 8. Credible evidence established that 107 votes were cast with 98 votes supporting a change to Aurora Digital Communication. The majority of the votes cast (67) selected Package Three (extended service) for $10.90 a month. 9. The Respondent’s then entered into a service agreement with Aurora Digital Communication for service for all of the residents of the mobile home park. 10. The Petitioner had previously had a satellite television system installed in his residence and feels that he is being charged for a duplication of a service that he already has. 11. Credible testimony established that the Petitioner has resided in the mobile home park since approximately 1993 and that during that period of time the Respondents have always furnished basic cable television services to all of the residents of the mobile park regardless of whether residents chose to utilize the service. 12. There was no dispute that on October 11, 2001 the Respondent’s mailed a letter to all of the residents wherein the Respondents state, in pertinent part, as follows: “Upon termination of PCTV (People’s Choice Television) service, QRE (Quail Ridge Estates) will no longer be participating in programming costs. The cost of programming will be paid by each household, through rent, as an increase in utility expenses.” 13. The petitioner notified the Respondents of his dissatisfaction with the Respondents’ proposed action. 14. After being notified of the Petitioner’s dissatisfaction the Respondents reconsidered their action and on November 1, 2001 issued a correction letter wherein the Respondents state, in pertinent part, as follows: “The following page has the August, 2001 CPI - U.S. City Average increase of 2.7% x $312.00 = $8.42; $8.42 + $312.00 = $320.42. Rounding this to the nearest dollar = $320.00. Due to increased operation expenses, an additional $11.00 fee will be added to the rent this year. Therefore, in accordance with our Statement of Policy and Lease Agreement dated February 2001, effective February 1, 2002, the homesite lease rate will be increased to $331.00 per month.” 15. Credible testimony and evidence established that on November 1, 2001, the Respondents gave written notice to the Petitioner and the other residents of the mobile home park that there would be a rent increase of $19.42 effective on February 1, 2002. 16. The parties were in sharp dispute as to whether cable television should be classified as a “utility.” There was no credible evidence presented by either party as to whether cable television is or should be a utility. The term “utility” is not defined in the Mobile Home Parks Residential Landlord & Tenant Act. However, In view of the terms of the Respondents’ 2002 lease agreement and the Respondents’ letter of correction, the dispute as to whether cable television is or is not a utility is found to be moot. . . .

CONCLUSIONS OF LAW 1. A.R.S. §33-1413.01 provides, in pertinent part, as follows: “Utility charges; waste, garbage and rubbish removal charges: A.) If a landlord charges separately for gas, water or electricity there shall be a separate meter for every user… B.) If the landlord separately charges for utilities, the landlord shall not charge more than the prevailing basic service single family residential rate charge by the serving utility or provider. D.) A landlord may charge separately for removal of waste, garbage, rubbish, refuse and trash and for sewer services.” The credible evidence of record is insufficient, and fails, to support a finding that the Respondents have violated the provisions of A.R.S. § 33- 14-13.01. 2. A.R.S. § 33-1432(E) provides as follows: “The landlord or any person authorized to enter into a rental agreement on his behalf shall post in a conspicuous place a copy of the current utility rates unless the tenant is charged directly by utility company.” The credible evidence of record is insufficient, and fails, to support a finding that the Respondents have violated the provisions of A.R.S. § 33-1432(E). 3. A.R.S. § 33-1434(B) provides, in pertinent part as follows: “A mobile home park landlord shall not impose any conditions of rental or occupancy which restricts the mobile home owner in his choice of a seller of fuel, furnishings, goods, services or mobile homes connected with the rental or occupancy of a mobile home space unless such condition is necessary to protect the health, safety, aesthetic value or welfare of mobile home residents in the park.” The credible evidence of record is insufficient, and fails, to support a finding that the Respondents have violated the provisions of A.R.S § 33-1434(B). The Petitioner has the burden of demonstrating by a preponderance of the evidence that the Respondents have violated the charged sections of the Mobile Home Parks Residential Landlord & Tenant Act. See Culpepper v. State of Arizona, 187 Ariz. 431, 437-38, 930 P.2d 508 (Ariz. App. 1996). Proof by a “preponderance of the evidence” means that it is sufficient to persuade the finder of fact that the proposition is “more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). 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 (rev. 6th ed. 1990). 4. The Petitioner has failed to sustain his burden of proof to establish that the Respondents have violated the applicable charged sections of the Mobile Home Parks Residential Landlord & Tenant Act. Therefore, the credible evidence of record does not sufficiently sustain a finding of violations by Respondents of the provisions of A.R.S. §§ 33-1413.01, 33- 1432(E) and 33-1434(B), as charged in the petition at issue. RECOMMENDED ORDER In view of the foregoing, it is recommended that this petition be denied and that Case No. LTA 00-2/010, together with the petition upon which it is based, be dismissed. Done this day, April 19, 2002.

________________________________ M. Douglas Administrative Law Judge

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

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

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

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