ALJDEC (decisions subject to certification as fin)

02F-L002015-BFS-COM · Department of Building and Fire Safety · 2002-12-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: Wednesday, December 11th, 2002; 1:30 p.m. APPEARANCES: Petitioners Mr. Larry Anderson, Mr. Richard Bihlmeyer, and Mr. J.W. Hughes, appeared and represented themselves. Respondent Mr. Landis Mitchell, appeared and represented respondents. ADMINISTRATIVE LAW JUDGE: Grant Winston. _____________________________________________________________________ This matter was brought on for administrative hearing in the Office of Administrative Hearings, Tucson, Arizona. 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. This matter was brought to administrative hearing pursuant to amended notice from the Arizona Department of Building and Fire Safety, issued to the parties on November 18th, 2002. Pursuant to that notice the hearing was a compliance hearing, purposed “to determine whether the terms and conditions of the Recommended Decision of the Administrative Law Judge issued on September 23, 2002, by the Director of the Department of Building and Fire Safety have been met.” There was also to be “reconsideration of the appropriateness of the disciplinary penalty imposed or that may be imposed as a result of the hearing.” 2. The prior decision and order of the director of the department, referenced in the notice, and to which respondents were ordered to comply, touches upon four subjects: (1) repair or elimination of a swimming pool and payment of a civil penalty relative thereto; (2) payment of a civil penalty for failure to provide residents with the park’s statements of policy; (3) payment of a civil penalty for failure to have the park’s managers meet the appropriate education requirements and posting of same, and (4) reimbursement of the petitioner’s, Ms. Seybert’s, filing fee. 3. Repair or elimination of the pool and payment of all civil penalties were to have been concluded on or before the effective date of the director’s order, which was 40 days after the date of service appearing on the director’s order. That date was September 23rd, 2002, and 40 days thereafter was Saturday, November 2nd, 2002. Allowing for the next business day would give respondents until November 4th, 2002, to have complied with the director’s order in all particulars. 4. The agency record in this case as well as the evidence adduced at the compliance hearing show that respondents have made some efforts to comply with the order, but have failed to completely do so in some material respects. 5. Respondents did tender a check to the department for payment of the civil penalties and reimbursement of the filing fee within the time frame allowed. However, confusion on respondents’ part led them to issue a single check to the department for payment of the penalties and reimbursement of Ms. Seybert’s filing fee. Thus, new, separate checks had to be issued, an action which was taken beyond the time frame allowed. However, this it is found was a result of an honest mistake, and respondents, it is found, did substantially comply with the deadline for payment of the civil penalties and reimbursement of Ms. Seybert. 6. However, the evidence shows that respondents failed to appropriately repair or eliminate the swimming pool at the park, not only within the time frame allowed by the decision and order, but even unto the day of the compliance hearing. 7. Respondents did begin to repair the swimming pool within and even before the time period allowed. They filled the pool and checked for leaks. They discovered that the pool was leaking approximately 2,000 gallons of water per day, or 60,000 gallons per month. Respondents drained the pool October 1st, 2002, and commenced repairs. Three weeks later the pool was refilled to check how well the repairs would perform. It was then discovered that the pool still leaked about 250 gallons per day, or approximately 7,500 gallons per month. Respondents admit that this amount of leakage is still unacceptable. 8. By that time cooler weather had arrived, and hardly any residents were using the pool. Therefore, respondents determined to shut down the pool, and with the arrival of warmer weather next season, then reach their decision of whether to complete repairs or do away with the swimming pool altogether. That was the status of the pool at the time of the compliance hearing. 9. Based on these facts it can only be found that respondents materially failed, without justification, to comply with the director’s order to repair or eliminate the swimming pool within 40 days after the date of service of that order. Respondents were afforded by the terms of the order ample time to take a decision on which manner of compliance to observe with regard to the pool: its repair or its elimination, and to fully act on that decision. The order did not give respondents the discretion to comply or fail to comply based on the number of residents they saw using the pool. Nor did the order give respondents until next spring to decide whether they would repair or eliminate the pool. Respondents were obliged by the director’s order to make their decision on which mode of compliance they would pursue, and appropriately pursue that mode to its end, all by November 2nd, 2002. The pool still has not been eliminated or repaired. 10. Respondents are working to comply with the education requirements for their managers, but have had some delay in doing so due to circumstances beyond their control. They have notified the residents of the park’s current statements of policy, and those are being revised now, and will be distributed at the first of the year with the new lease agreements. CONCLUSIONS OF LAW 1. This administrative hearing was held under authority of and in accordance with A.R.S. §§41-2198 and 41-1092. 2. A preponderance of credible evidence established that respondents have failed to comply with the director’s order relative to the swimming pool. The previous order concluded respondents had acted in bad faith by their actions relative to the swimming pool (See: A.R.S. §33-1410). This conclusion was borne in mind when assessing the civil penalty for violating the law prohibiting the landlord’s keeping of swimming pools in disrepair. The civil penalty assessed was $1,000.00, with the condition of its being reduced to $300.00 should respondents correct the swimming pool by appropriate means within 40 days after the date of service appearing on the director’s order. 3. Respondents having still failed to correct the swimming pool condition ought now to be made to bear the full brunt of the director’s assessment, and pay the additional $700.00 of the originally provided civil penalty. 4. In addition, respondents should either appropriately repair or eliminate the swimming pool on or before the effective date of this order (40 days after the date of service appearing on the director’s or assistant director’s order). 5. Respondents are admonished that the final order of the director “is enforceable through contempt of court proceedings.” A.R.S. §41- 2198.02.B. RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended as follows: 1) Respondents shall be assessed the balance of the full amount of the original civil penalty assessed by the director in this case for keeping a swimming pool in disrepair, i.e,. an additional $700.00; 2) Respondents shall appropriately repair or eliminate the swimming pool, and 3) Respondents shall comply with paragraphs (1) and (2) on or before the effective date of this order as set forth in Conclusion of Law #4 hereinabove. Done this day, December 24th, 2002.

________________________________ GRANT WINSTON Administrative Law Judge

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

N. Eric Borg, Director Department of Building and Fire Safety-LTA ATTN: S. Gail Hinckley 1110 W. Washington, Suite 100 Phoenix, AZ 85007

By ____________________________ -----------------------