ALJDEC (decisions subject to certification as fin)

03F-L023004-BFS · Department of Building and Fire Safety · 2003-02-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: Thursday, February 13th, 2003; 1:30 p.m. APPEARANCES: Petitioners appeared and represented themselves. Respondents were represented by Mr. Michael A. Parham, attorney-at-law. 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 herein are mobile home residents who reside in the respondent Valley High Mobile Home Park, located in Benson, Arizona. 2. The parties have a long and contentious history between them, and this is not the first of the residents’ complaint against respondents. See: Seybert, et al. v. Mitchell, et al., 02F-L002015-BFS and 02F- L002015-BFS-COM (2002). 3. In this case petitioners have brought several items of complaint to the director of the Department of Building and Fire Safety. Testimony and other evidence on these issues were given to the record in the administrative hearing held on February 13th, 2003. It appears from the whole record that most of these complaint items, while once meritorious, have been satisfactorily addressed by respondents since the filing of this petition. It also appeared from the evidence that management has now received professional training relative to the running of a mobile home park in Arizona (their lack of which is one of the complaint items), and based on that training have now a greater understanding of what they are expected to do as owners and operators of their mobile home park. 4. At the same time, however, it also appears from the evidence that the impetus which moved the respondents to obtain this training and deeper appreciation of their legal obligations as mobile home park operators, as well as to belatedly comply with the laws appertaining thereto, was the filing of this very petition. 5. On the one hand respondents’ bringing themselves into compliance with the laws is commendable, and a mobile home park operator should not be discouraged from taking measures to correct derelict conditions in the park after they have been called to his or her attention. On the other hand, residents of a mobile home park have a right to expect that their landlords will heed the law and voluntarily and assiduously comply with its requirements, without forcing the residents to repeatedly expend time and money filing petitions with the department just to compel the owners to do that which the law says they must do. With these general findings in mind, particular findings as to the complaint items shall now be made. 6. Petitioners complained that neither rental agreements nor rules and regulations of the park were given to those who had recently established residency, and that rent increase notices were not given to everyone. The evidence shows that while in the past rental agreements and rules and regulations were not given or were given only sporadically, it is found that now respondents do routinely give the agreements and rules and regulations to all tenants as they are required to do. 7. Petitioners complained that the respondents were not properly charging them for their utility consumption in the park, i.e. gas and electricity. The evidence demonstrated that while in the past respondents were using formulae to calculate the bill to residents which were rather unique and unconventional, it is found that since the February, 2003 billing, respondents are charging rates tied to the local utilities’ charges. That is, respondents charge a basic monthly rate plus the commodity charge based on amount of usage. It is also found that in the past, by use of the old computation, respondents actually were charging residents less money than they are now charging residents using the basic rates plus commodity formulae. 8. Petitioners complained that respondents are not posting electrical rates, and copies of the Arizona Mobile Home Parks Residential Landlord and Tenant Act booklets were not given to anyone. Again, the evidence proves that while this was true in the past, respondents now post the electrical rates in conspicuous place, and they have distributed and made available copies of the act to all residents. 9. Petitioners complained that respondents had failed to maintain a fit premise. The evidence shows that sometimes the grass would be around six inches high before being cut, but would be cut. There were some leaves on the ground, but they would be removed. Tree branches on one vacant lot were scraping a resident’s (Mr. Hughes’s) home. An electrical junction box was open, but the evidence was equal on the question whether the box was or was not conducting electricity. One security light located at an area used by management only is not functioning. One petitioner complained of an open sewer line next to her home, but there is insufficient evidence to find that this is the case. There were complaints as to the condition of gas utility fixtures on the premises. Complaint was made that a gas “nipple” was not covered. This is true, but it is now covered. Respondents had the Arizona Corporation Commission perform testing at the site, and the tests verified that there is no dangerous condition being caused by any gas leak. 10. Petitioners complained about the lack of any statement of policy. It is found by stipulation of the parties that this allegation was true up to very early 2003, but now the respondents have provided the statement of policy. 11. Petitioners complained about the educational requirements for park managers not being satisfied by respondents. It is found by stipulation of the parties that this allegation was true, but as of January, 2003, the managers did attend the required education by a certified trainer in the area of mobile home park management in Arizona. 12. Petitioners complained that respondents have not included in the rules and regulations emergency numbers to call when the park is left unattended. It is found by stipulation of the parties that this allegation is true, and that only 9-1-1 was posted. Respondents stated on the record that they intend to correct this remission before the end of February, 2003. 13. Petitioners complained that the respondents have failed to supply proper lighting for the park. It is found that the evidence on this issue did not concern any essential service. 14. Petitioners complained of retaliatory conduct, but there is insufficient evidence to find in favor of this allegation. 15. All other allegations contained in the petition are found to be unsupported by any substantial and credible evidence. CONCLUSIONS OF LAW 1. This administrative hearing was held under authority of and pursuant to A.R.S. §41-1092, and the Arizona Mobile Home Parks Residential Landlord and Tenant Act, A.R.S. §33-1401, et seq., the Act. 2. Subject matter jurisdiction is vested in the Department of Building and Fire Safety. A.R.S. §§33-1406, 33-1408. 3. Respondents were, but are no longer, in violation of A.R.S. §33- 1413.A. and D. (provision of lease agreements, rules and regulations). 4. Respondents were, but are no longer, in violation of A.R.S. §33- 1413.01 (method of assessing utility charges). 5. Respondents were, but are no longer, in violation of A.R.S. §33- 1432.G. and H. (providing copies of the Act). 6. Respondents are in violation of A.R.S. §33-1434 in failing to maintain a fit premise by neglecting to cut the branch offending Mr. Hughes’s property. Respondents must trim this tree so it no longer interferes with the Hughes’s property. 7. Respondents were, but are no longer, violating A.R.S. §33-1436 (no statement of policy). 8. Respondents were, but are no longer, violating A.R.S. §33-1437 (education requirements for park managers). 9. Respondents are violating A.R.S. §33-1452.E. (failure to provide emergency numbers in rules and regulations). Based on the evidence, this deficiency should be corrected before the effective date of this order. If so, respondents ought to so notify the director of the Department of Building and Fire Safety, in writing. Should this condition not be corrected before the effective date of this order, petitioners can file a petition seeking a compliance hearing. 10. Respondents were not and are not now violating A.R.S. §33-1474 (essential services). The evidence did not address any essential service as meant by that statute. 11. Respondents were not and are not now violating A.R.S. §33-1491 (retaliatory conduct). 12. Petitioners’ allegations of violating A.R.S. §33-1901 are without the subject matter jurisdiction of the Act and this hearing. RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended as follows: For the violations that existed but have now been corrected, a civil penalty in the amount of $100.00 shall be paid by respondents to the department; Respondent shall reimburse petitioners the filing fee in this case, $50.00, pursuant to A.R.S. §41-2198.02; The civil penalty shall be paid to the department and reimbursement of the filing fee tendered to petitioners, and the violation of A.R.S. §33- 1434 shall be corrected, on or before the effective date of this order (40 days after the date of service appearing on the director’s or the assistant director’s certificate of service on the order). . . . . . . Done this day, February 28th, 2003.

______________________________________ Grant Winston Administrative Law Judge

Original transmitted by mail this ____ day of March, 2003, to:

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

By __________________________ -----------------------

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