ALJDEC

02F-L002015-BFS · Department of Building and Fire Safety · 2002-09-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: Thursday, August 22nd, 2002; 1:30 p.m. APPEARANCES: Petitioners Pat Seybert, Wayne and Bobbie Hughes, Gerald Marko, Carol Leasure, and R.R. Bihlmayer, appeared and represented themselves. Respondent Landis Mitchell appeared as agent for respondent Valley High Investors. ADMINISTRATIVE LAW JUDGE: Grant Winston. _____________________________________________________________________

The administrative hearing of this matter was held 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. Petitioners in this case are residents of Valley High Mobile Home Park, located in Benson, Arizona. 2. Petitioners filed the instant petition against respondents on or about June 21st, 2002, complaining about several conditions in the park. 3. Respondents filed their written answer to the petition on July 2nd, 2002. 4. Notice of the administrative hearing was issued from the Arizona Department of Building and Fire Safety on July 16th, 2002, scheduling the hearing for August 22nd, 2002, at 1:30 p.m. in the Office of Administrative Hearings, Tucson. The hearing was duly held as scheduled and noticed. 5. At the hearing the petitioners who appeared and testified presented evidence on seven issues in their petition: (1) the cracked swimming pool; (2) electrical hook-ups for the mobile homes; (3) a grace period for late tender of rent payments; (4) failure to post the name, address and telephone number of management; (5) forbidden use of common bulletin board for personal news items; (6) failure to distribute copies of the park’s statements of policy, and (7) failure to post information regarding education of managers. 6. The biggest issue for the petitioners by far is the cracked swimming pool. The park has had this swimming pool for several years now, at least as far back as 1998. Some of the petitioners were induced to take up residence at the park in large part because of the presence of the swimming pool. A few residents have health problems for which swimming is a form of therapy. 7. The swimming pool would customarily be drained by management annually during the off-season and refilled for the summer. The pool was drained by the landlords in 2001, but they chose not to refill the pool when the 2002 season arrived. This was because the pool had a considerable crack in its bottom, and the landlords were fearful lest filling the pool would result in huge amounts of water leaking into the surrounding ground. 8. The landlords sought and obtained an estimate from a licensed swimming pool contractor for the cost of repairing the pool. The estimate they received told them that the repairs would cost several thousands of dollars. The landlords were disinclined to pay this amount of money to repair the pool. They considered whether the swimming pool was even worth keeping. In an effort to defray the cost of repairing the pool, the landlords polled the residents of the park, asking them how many used the pool, and how many would be willing to pay an annual fee of $200.00 to receive a “pool card” entitling them to the use of the swimming pool. Not surprisingly, only approximately 5% of those polled favorably responded to the idea of the pool fee assessment. Discouraged, management abandoned the idea of the pool fee and failed to take any other effort to repair the pool. That was the status of the swimming pool at the time of the hearing. 9. At the hearing the respondent Valley High Investors’ agent, respondent Mr. Landis Mitchell, testified. His evidence was that the landlords have the unwritten management policy of willingness to make “ordinary” repairs, but resist making “extraordinary” repairs. Mr. Mitchell agreed that a broken toilet bowl in a common area restroom would exemplify an “ordinary” repair, but the costly swimming pool repair would belong to the category of an “extraordinary” repair. 10. Petitioners claimed that the electrical hookups were not up to code, but could produce no evidence to support that claim in the form of applicable code sections or testimony from any witness who works as enforcer of the code. Respondents’ testimony was by Mr. Mitchell. He testified that he had no knowledge of the hookups being out of code. There is insufficient evidence to find that the electrical hookups violate any applicable code. 11. Petitioners failed to produce any substantial, credible evidence of the landlords exacting a late rent payment fee without allowing a five-day grace period. No petitioner could testify that these landlords actually imposed such a fee on him or her. Respondents’ testimony was that no such imposition is made, and that in fact the landlords allow a 10-day grace period. 12. Petitioners asserted in their petition that there is no posting of management’s names, addresses or telephone numbers in accordance with A.R.S. §33-1902.A.1. Respondents’ evidence did not deny this assertion, but added that this information is imparted to each resident at the time he or she signs the rental agreement with the landlords, pursuant to A.R.S. §33-1432.A.1. ( 3. 13. Petitioners’ claim that the landlords disallow the use of the park’s common bulletin board for posting of personal news or information was unsupported by any substantial, credible evidence of one instance of this practice. Respondents’ evidence denied this assertion, and Mr. Mitchell testified that such posting of personal information from the residents is allowed by the landlords. 14. Petitioners offered credible testimony that the landlords had failed to supply the residents with copies of the park’s statements of policy, as claimed in the petition. Respondents' evidence did not dispel this evidence. Therefore, it is found that respondents failed to provide residents with copies of their statement of policy 15. Petitioners asserted and testified at hearing that management had failed to post the education of the managers. Respondents’ testimony was that they “were looking into that.” Additionally, respondents’ answer to the petition makes it clear that they were ignorant of the requirement of this education and the posting of its having been accomplished. Thus it is found that this information had not been posted, just as petitioners claimed. CONCLUSIONS OF LAW 1. This administrative hearing was held under authority of and in accordance with A.R.S. §41-2198 and A.R.S. §41-1092. 2. Pursuant to the Notice of Hearing from the Arizona Department of Building and Fire Safety, petitioners had alleged in their complaint, and evidence was heard at the hearing, regarding possible violations by the respondents of several sections of the Arizona Mobile Home Parks Residential Landlord and Tenant Act. They are: A.R.S. §§33-1413.A-D., -.1413.01.A-C., -1414.A.4., -.1415., -.1434.A. and B., -.1435., -.1436.B., -.1437.A. and B., -.1452.A.-G., -.1471., -.1475., -1484., -.1491., -.1902., -.1903., -.1905, and 41-2155. 3. A preponderance of credible evidence proved that respondents/landlords had willfully violated A.R.S. §33-1434.A.2., 3. and 4. by leaving the swimming pool in a state of continuous disrepair for several months preceding the administrative hearing. Notwithstanding the respondents’ position that they undertake responsibility to repair only “ordinary” items, the statute mandates that all landlords “shall. . . . make all repairs,” and “shall. . . .maintain in good and safe working order and condition all swimming pool . . . . facilities.” A.R.S. §33-1434.A.2. and 4. (Emphases added.) This law means quite clearly that landlords have no discretion about making repairs; they shall make repairs. It also means that landlords cannot pick and choose which repairs they will or will not make; they shall make all repairs. Repairs are the landlord’s, not the tenant’s responsibility. The respondents/landlords in this case violated A.R.S. §33-1413.A.2., 3. and 4. 4. Therefore, respondents should be ordered to correct the unsatisfactory condition of the swimming pool by appropriate means. They must either repair the swimming pool or eliminate the swimming pool (for example, remove the swimming pool, fill the hole and landscape over the area), but they cannot continue to have a swimming pool in disrepair. Nor can they look to the residents to pay the cost of correcting the situation. If respondents repair the pool, the cost of doing so must be borne by them and them alone. Respondents may also totally eliminate the pool. The petitioners, notwithstanding the fact that some of them were attracted by the pool and at least in part chose to move to the park because of it, and some use it as a mode of physical therapy, have no legal right to an expectation of a swimming pool in perpetuity. 5. A.R.S. §33-1410 imposes an obligation of good faith in the performance of all duties imposed by the act. The respondents violation of the plain language of the statute relating to maintenance in general and maintenance of swimming pools in particular, coupled with respondents’ attempt to coerce money from the residents in order to pay the cost of repairs respondents were and are legally obligated to make, sufficiently evidenced bad faith on respondents’ part to conclude a breach of that duty occurred. This breach should be taken into account in consideration of the amount of a civil penalty to be assessed for this violation. 6. There is insufficient evidence to conclude that respondents violated A.R.S. §33-1902.A.1. (failure to post names address and phone numbers of property owner with the county assessor) as alleged in the petition. There is no notice of a possible violation of A.R.S. §33-1432.A.1.—3. 7. There is insufficient evidence to conclude that respondents were prohibiting residents from using a common area bulletin board to post personal items of interest. 8. The evidence supports the conclusions here reached that respondents did violate A.R.S. §33-1436.A. and B. in failing to provide residents a copy of the park’s statements of policy. 9. Petitioners produced substantial credible evidence to conclude, and it is here concluded, that respondents violated A.R.S. §33-1437.A. and B., by failing to produce proof of completion of the management’s educational requirements, and posting of same. 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 a civil penalty in the amount of $1,000.00 for the violation, in bad faith, of its duty to make repairs to the swimming pool (A.R.S. §§33-1432.A.2., 3. and 4., and 33-1410); 2) Respondents shall correct by appropriate means the condition of the swimming pool and submit written proof of having done so to the Director of the Department of Building and Fire Safety, 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 certificate of service appearing on the order); 3) In the event respondent’s do correct the swimming pool condition by appropriate means and submit the written proof of having done so as set forth in (2) above, then the civil penalty assessed for that violation shall be reduced form $1,000.00 to $300.00; 4) Respondents shall be assessed a civil penalty in the amount of $100.00 for their failure to provide residents with the statements of policy (A.R.S. §33-1436.A. – B.); 5) Respondents shall be assessed a civil penalty in the amount of $100.00 for their violation of the manager’s education requirements and posting of such information (A.R.S. §33-1437.B.); 6) All civil penalties assessed herein shall be paid to the department by respondent on or before the effective date of this order (see: (2) above); 7) Respondents shall reimburse petitioners the amount of the filing fee expended to bring this administrative complaint, $50.00, pursuant to A.R.S. §41-2198.02. Done this day, September 10th, 2002.

_________________________________ Grant Winston Administrative Law Judge

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

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

By _______________________________

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