ALJDEC

02F-L002013-BFS(4) · Department of Building and Fire Safety · 2002-05-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: Friday, May 10th, 2002; 1:30 p.m. APPEARANCES: Petitioner Debra Nevarez, represented herself, and the other petitioners appeared but deferred to her representation. The respondents were represented by Dwight Connely, attorney-at-law. ADMINISTRATIVE LAW JUDGE: Grant Winston. _____________________________________________________________________

The administrative hearing of this matter was held in the Office of Administrative Hearings, Tucson, Arizona, to consider petitioners’ petition against the respondents which included numerous complaints over the respondents’ management of the mobile home park. Testimony was heard and other evidence admitted to the record, and, based on the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made. FINDINGS OF FACT 1. The petitioners herein are residents of Parklane Mobile Estates (PME), a mobile home residential community located in Tucson, Arizona. 2. The respondents herein are the owners and managers of PME. 3. The present petition against the respondents was filed in the Arizona Department of Building and Fire Safety (DBFS) on March 20th, 2002, by petitioner Debra Nevarez. Respondents filed their response to the petition, through counsel, on April 3rd, 2002. Subsequently, additional petitioners joined in the petition. 4. Notice of the administrative hearing of the petition issued from the DBFS, over the signature of DBFS Assistant Director Daniel A. Gray, on April 4th, 2002, scheduling the hearing in the Office of Administrative Hearings, Tucson, for May 10th, 2002, at 1:30 p.m. The hearing was convened when scheduled and concluded that afternoon. 5. At the beginning of the hearing, the administrative law judge inquired of the parties whether there had been any movement of the issues’ statuses since the filing of the petition, and whether any of the issues could be resolved by stipulation and agreements without need for the presentation of evidence. The parties manifested an abundance of good faith by their willingness to resolve as many of their differences amicably as were possible. Findings of Fact ##6 ( 10, infra, are the parties’ agreements to settle those issues raised by the petition. They were knowingly and voluntarily entered into on the record of the hearing, and are a fair and just resolution of these items. 6. Item #1 of the petition takes issue with the respondents’ policy of requiring, in some instances, residents to have two awnings on their home. Petitioners contended such a requirement was a substantial and costly modification that most pre-existing residents could not afford. Item #1 was settled between the parties on the record by way of respondents adopting the following policy: PME’s two-awning requirement shall apply only to new residents and new owners of homes already on site, and then only if the subject lot size will accommodate the two awnings. “New,” for purposes of this agreement means after May 10th, 2002, the date of the administrative hearing. 7. Item #2 of the petition takes issue with the respondents’ procedure for crediting interest earned from the residents’ security deposits. Item #2 was settled between the parties on the record by way of respondents’ explanation that the crediting will appear on the July billing statement, and the adoption of the following policy: all residents shall receive notice of the appropriate crediting of the interest earned on their security deposit on this year’s July billing, and on the January billing in succeeding years. 8. Item #3 of the petition takes issue with PME management’s providing the residents with an outdated Landlord/Tenant Act booklet. Respondents conceded this had occurred. Item #3 was settled between the parties on the record by way of respondents’ proof that the new up-to-date booklets have been received by respondents, and that same shall be forthwith distributed by PME management to all residents. 9. Item #4 of the petition raised the issue of respondents’ failure to post the utility rates in a conspicuous place. Item #4 was settled between the parties on the record by way of the parties’ agreement that the rates now have been posted in a conspicuous place. 10. Item #5 of the petition raised the issue of PME management’s failure to post, in a conspicuous place, proof of PME manager’s completion and compliance with the educational program requirements. Item #5 was settled between the parties by the agreement that the respondent shall post the proof in the glass encased box next to the park office. 11. Item #6 of the petition was not amenable to agreed settlement, and the parties presented evidence on this issue. Basically, the complaint in this particular is that the respondents were distributing to the residents new rental agreements with material terms thereof left blank, and were requiring the residents to sign the new agreements with the blanks not filled. 12. The evidence proved that Item #6 was a complaint without merit, but was filed not maliciously, but as a result of petitioners’ lack of understanding. The evidence proved that in fact PME management did give entirely blank new rental agreements to some residents, but only for their preliminary review, not with the direction to sign and return them as alleged in the complaint. In fact, the evidence showed that PME management, when entering into a new rental agreement with an existing or new resident requires, as a matter of policy, that management and the tenant or prospective tenant sit down over an entirely blank document, review the terms, fill the blanks appropriately, and only then sign. In fact, if management is presented with a would-be rental agreement which has any blank filled already, management will dishonor that copy and require a new beginning with a new entirely blank agreement, and proceed as stated above. 13. Additional, unnumbered items of complaint were listed in the petition. Facts relative to those items are found infra at Findings of Fact ##14 ( . 14. As to the annual rental agreement, the petitioners complained of the provision whereby the resident waives right to trial by jury. The evidence through testimony of one of the residents and petitioner Joseph A. Yount, demonstrated that this complaint was again founded on a lack of understanding of the import of this rental agreement term. It was misunderstood that this jury trial waiver was a universal waiver of the resident’s right to a jury trial in any legal proceeding which may enter his or her life. However, the waiver, as stated in paragraph #11 of the agreement, applies only to actions arising out of the rental agreement itself and no other. Thus, for example, if a resident is cited by the local police for speeding, his or her right to a jury trial in defense against that traffic citation is in no way infringed by this waiver. 15. The petition claims that the PME’s grounds violate the federal Americans With Disabilities Act. This issue was resolved on the record as a matter of law. See: Conclusions of Law, infra. 16. The petition argues that the residents should have 90 days to consider the new rental agreement and consult with legal authorities. This demand was proven to be unworkable. It would be managerially impossible for PME to make an offer of residency to an individual, and then hold open the space for that person for 90 days. Petitioners’ witness Mr. Yount conceded that he knew of no law or rule that required the giving of 90 days, and further conceded that from management’s standpoint such would be probably unworkable. This demand was without reason, and beyond any practicability. . . .

17. The petition complained that the new rental agreement does not state that it supersedes previous rental agreements. This issue is resolved by operation of law. See: Conclusions of Law, infra. 18. The petition complained that the respondents were requiring, as a condition of receiving a new parking validation sticker, that residents must execute a new rental agreement on or before April 1st. This issue was settled on the record by agreement between the parties that respondents shall provide parking validation stickers to any and all residents without requiring as a condition precedent that a resident execute a new rental agreement. 19. The petition contained some questions rather than actual complaint items, which were answered on the record to the satisfaction of the petitioners. 20. Petitioners filed an addendum to their complaint on April 12th, 2002, in which they complained of PME management’s move to evict two residents wrongfully. They were Mr. Etheridge and Ms. Frantz. During the hearing these issues were settled by stipulation that the issues are now moot. Due to a burglary of the PME office, record of these two residents’ payment of rent was lost, thereby giving the appearance to management that the residents had not paid their rent. This circumstance precipitated the instigation of eviction notices to the two affected residents. It was stipulated on the record that the management has now learned that the two residents did in fact timely pay their rent, and any further process toward their eviction was dropped. Respondents did agree to take whatever measures they could to double check for accurate rent payment information. CONCLUSIONS OF LAW 1. This administrative hearing was held under authority of and pursuant to A.R.S. §41-1092. 2. This petition was brought under the Arizona Mobile Home Parks Residential Landlord and Tenant Act. A.R.S. §33-1401, et seq. 3. The settlement between the parties of the items found in the above Findings of Fact (##6 ( 10, and 18) are fair and just, and were knowingly and voluntarily entered into by the parties. A general policy of law favors the settlement of differences between adversaries in a civil proceeding, and parties should be free to adjust their differences and the involved tribunal ought to give force and effect to such settlements when not unconscionable. 4. The Arizona Department of Building and Fire Safety, under the Landlord Tenant Act, is not conferred with subject matter jurisdiction to hear disputes involving the Americans With Disabilities Act. 42 U.S.C.A. 12182(a) et seq. 5. It is axiomatic in contract law that a subsequent contract between the same parties concerning the same subject matter voids any previous such contract by operation of law. This is known as merger. See: Clark v. Compania Ganadera de Cananea, S.A., 94 Ariz. 391, 385 P.2d 691 (App. 1963). Thus it is neither a necessity nor a requirement for such to be an expressly stated provision of the parties’ rental agreement. RECOMMENDED ORDER Wherefore, it is hereby recommended that the Director of the Department of Building and Fire Safety approve the parties’ settlement of the particular items of the petition which they settled on the record, as found hereinabove. It is further recommended that the remaining items of the petition, those that were not settled, be dismissed. Done this day, May 24th, 2002.

_________________________________ Grant Winston Administrative Law Judge

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

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

By _______________________________

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