ALJDEC decisions subject to certification as final

06F-L056021-BFS-rem · Department of Fire Building and Life Safety · 2008-12-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 2, 2008 at 9:00 a.m. and November 3, 2008 at 1:30 p.m.; the record was held open until December 1, 2008 to allow the parties’ attorneys to submit written closing arguments. APPEARANCES: Petitioner Edward Lenarth appeared through Ingeborg E. Cox, Esq., Law Office of Ingeborg E. Cox; Respondent Vista Rio River Resort and its Manager Rick Glade appeared through Duncan J. Stoutner, Esq., Norling, Kolsrud, Sifferman & Davis, P.L.C. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure 1. Respondent Vista Del Rio River Resort is a mobile home park in Arizona that is located on the Colorado River, across from California. Respondent Rick Glade is the manager of the park. 2. Petitioner Edward Lenarth is a tenant of the park. 3. On January 9, 2006, Mr. Lenarth filed a Petition for Hearing by the Mobile Home Parks Administrative Law Judge, which alleged the following violations of the Arizona Mobile Home Residential Landlord and Tenant Act (“the Act”): 3.1 A.R.S. § 33-1434(A)(1), (2), (3), and (5): “Manager doesn’t keep his office or mobile home he owns neat or clean, diesel fuel tanks on the ground and junk and rubbish where kids could be hurt. Old trucks and tractors parked where he feels, and large area which is a junk yard and not fenced in. Manager told me his office is not part of the park.” 3.2 A.R.S. § 33-1436(6): “On November 26, 2005, I never got a lease to sign because the memorandum he had given me to read first was to change the pitch of my roof 4-12 pitch with dimensional shingles. I told him I can’t sign this because you have me under direst [sic] and this isn’t legal. He then told me change your roof or no 5 year lease this is a package. So, he put me on month to month not even a year lease. I have a lifetime fireproof tile roof.” 3.3 A.R.S. § 33-1437(A), (B), and (C): “Manager has not been to school in Arizona when I looked for his certificate it was not posted. I asked to see it and he told me it was none of my business.” 3.4 A.R.S. § 33-1452(A)(5) and (6): “Evading the obligations of the landlord. Also refers to 33-1436 last three lines of D-6 making permanent changes to my Home.” 4. To make the complaint, Mr. Lenarth was required to pay a $50 filing fee.[1] 5. Respondents filed a written answer to Mr. Lenarth’s complaint. 6. The Department of Fire, Building and Life Safety (“the Department”) referred the dispute to the Office of Administrative Hearings and issued a Notice of Hearing that charged Respondents with violations of the statutes listed in Mr. Lenarth’s complaint. 7. After several continuances of the hearing date, Mr. Lenarth moved to strike Respondents’ answer under A.R.S. § 41- 2198.01(E) as untimely. On May 12, 2006, the Honorable Eric A. Bryant, the Administrative Law Judge (“ALJ”) who had been assigned to the case, ordered that the parties submit legal memoranda and held oral argument on the issue. 8. On May 17, 2006, ALJ Bryant conducted a limited evidentiary hearing on the issue of the timeliness of Respondents’ written answer to the complaint. 9. On July 28, 2006, ALJ Bryant found Respondents in default under A.R.S. § 41-2198.01(E) because they had failed to timely answer the complaint and, therefore, that as a matter of law they would be deemed to have admitted all of Mr. Lenarth’s complaint allegations. 10. On August 11, 2006, based on Mr. Lenarth’s complaint allegations and Respondents’ deemed admissions, ALJ Bryant recommended that the Director of the Department of Fire, Building and Life Safety find that Respondents had violated the following provisions of the Act: 1. A.R.S. §§ 33-1436(B)(6) and 33-1452(E)(6) because Respondents required Mr. Lenarth, who was an existing tenant, to make permanent improvements to his home as a condition of renewing the rental agreement; 2. A.R.S. § 33-1434 because Mr. Glade failed to keep his home and office space clean; and 3. A.R.S. § 33-1437 because Mr. Glade failed to complete the required education and failed to post a certificate of completion in a conspicuous place. 11. As remedies, ALJ Bryant recommended that Respondents be ordered to keep the office and manager’s home clean, to have Mr. Glade complete required education and post his certificate of completion in a conspicuous place, and to renew Mr. Lenarth’s lease without requiring permanent improvements “consistent with renewals or leases offered to other tenants at that time . . . .” 12. ALJ Bryant also found that Mr. Lenarth was the prevailing party and ordered that Respondents pay Mr. Lenarth’s attorneys fees under the Rental Agreement and A.R.S. § 41- 2198.02(A) and reimburse Mr. Lenarth’s $50 filing fee under A.R.S. § 41-2198.01(A). 13. On August 29, 2006, the Director of the Department accepted ALJ Bryant’s decision, to become effective on October 8, 2006. 14. Respondents requested rehearing, which the Director of the Department denied. 15. Respondents then appealed the decision to Maricopa County Superior Court, where it was given Case No. LC2006-000796-001 DT and assigned to the Honorable Margaret H. Downie. Judge Downie ordered briefing and oral argument on the propriety of the Director’s decision. 16. On October 16, 2007, Case No. LC2006-000796-001 DT, the Honorable Judge Downie reversed the Director of the Department’s final decision, reasoning as follows: The law prefers resolution of actions on their merits rather than by default, and “any doubts should be resolved in favor of the party seeking to set aside the default judgment.” Hirsch v. National Van Lines, Inc., 136 Ariz. 304, 308, 666 P.2d 49, 53 (1983). When the refusal to set aside a judgment is harsh rather than fair and equitable, an appellate court can “look over the shoulder” of the original trier of fact and appropriately substitute its judgment. Ulibarri v. Gerstenberger, 178 Ariz. 151, 871 P.2d 698 (App. 1993). In the case at bar, the refusal to consider the case on the merits was unduly harsh and an abuse of discretion. The lack of demonstrable prejudice is significant. Moreover, this is not a case where plaintiffs ignored agency proceedings or clearly flouted directives. It is also noteworthy that everyone continued to litigate the matter on the merits for approximately 3½ months after the “tardy” response.

[Footnote omitted.] Judge Downie also remanded the matter back to the Department “with instructions to convene an administrative hearing to consider the substantive merits of Lenarth’s petition.” 17. The Department referred the case back to the Office of Administrative Hearings, where it was assigned to the undersigned Administrative Law Judge. On February 4, 2008, the Department issued a Notice of Hearing on the remanded case, charging “several violations of the Arizona Mobile Home Residential Landlord and Tenant Act, A.R.S. §§ 33-1401, et seq.” 18. A hearing was commenced on June 2, 2008, at which Mr. Lenarth testified, presented Mr. Glade’s testimony on cross- examination, and had admitted into evidence eighteen exhibits, including subparts. Respondents had admitted into evidence three exhibits. 19. During the afternoon of June 2, 2008 Mr. Lenarth testified that all he wanted was a lease dating back to the expiration of his initial lease on the same terms as had been given to other tenants. He had never wanted to go to court. Mr. Glade had provoked him and he had provoked right back. He and Mr. Glade were like “two little boys in a play pen.” They had “a lot in common.” 20. The parties requested a recess to discuss settlement and represented to the Administrative Law Judge that they had reached a settlement in principle. Because the parties were both represented by counsel, the Administrative Law Judge did not require them to memorialize their agreement on the record. 21. At the parties’ attorneys’ request, to allow them to finalize their settlement agreement, the Administrative Law Judge set three status conferences. At each status conference, the parties’ attorneys informed the Administrative Law Judge that Respondents had not responded to Mr. Lenarth’s attorney’s draft settlement agreement. 22. On September 10, 2008, the Administrative Law Judge set a further hearing, to allow her to hear the remainder of the parties’ evidence and to make a recommendation to the Director of the Department on the merits. The further hearing was continued once at Mr. Lenarth’s request. 23. A further hearing was held on November 3, 2008. Mr. Lenarth testified and had admitted 23 recent photographs of the mobile home park. Mr. Glade testified and had admitted into evidence seven additional exhibits. 24. Because the parties’ attorneys did not have time at the conclusion of their presentation of evidence to make closing argument, the Administrative Law Judge held the record open until December 1, 2008 to allow the parties’ attorneys to submit brief written closing arguments, rather than scheduling a further hearing date. Hearing Evidence 25. Mr. Lenarth signed a five-year written Rental Agreement on December 2, 2000. The 5-Year Option of the Rental Agreement provided in relevant part as follows: The base rent shall be Two Hundred Dollars ($200.00) per month and this base rent shall remain in effect until the anniversary date of this Lease. On each anniversary of this Lease, the then current base rent shall be adjusted based upon one hundred percent (100%) of the annual increase in the Consumer Price Index (CPI), utilizing the “urban wage earner and clerical workers” index as of the month five (5) months prior to Resident’s anniversary month. In no event shall the annual increase in the base rent be less than five percent (5%) or more than ten percent (10%) of the previous year’s base rent.

26. Paragraph 23 of the Rental Agreement provided: In any action arising out of Resident’s tenancy, this Agreement, or the provisions of the Mobilehome Residency Law, the prevailing party shall be entitled to reasonable attorneys’ fees and costs. A party shall be deemed a prevailing party if the judgment is rendered in his or her favor or where the litigation is dismissed in his or her favor prior to or during the trial, unless the parties otherwise agree in the settlement or compromise.

27. The Rules and Regulations that Mr. Lenarth testified he had received when he signed the initial Rental agreement and which he had admitted into evidence at the hearing do not require any roofline on tenants’ homes. Respondents did not offer into evidence any other rules and regulations. 28. The Rules and Regulations also provided that Respondents would provide trash containers “throughout the park,” that tenants were expected to place their trash in the containers, that a tenants’ and their guests’ vehicles be parked on their own rented or designated spaces, that rented spaces be maintained, and that mobile home installations must be skirted within 60 days. 29. Since December 2000, Mr. Lenarth has rented Space No. 15 in the park. His mobile home is a single-wide model that was manufactured in 1979. 30. It is expensive to move a mobile home, costing approximately $5,000.00. The Roof and Lease Issues 31. On August 20, 2005, Respondents sent a letter to Mr. Lenarth and his wife, in relevant part as follows: The letter is to notify you of your up and coming expiration date of 11-30-05. This letter is providing you with notice of this space rental increase. We are able to offer another five (5) year lease term at the rental amount of $274.00. . . .

As a condition of this renewal, and an effort to upgrade the Park the existing mobilehome currently on the space will need to be upgraded. The minimum roof requirements allowed will be a 4:12 roof pitch with dimensional shingles. This condition must be met by the expiration of your existing lease period. . . .

If you choose to vacate the space, please provide a minimum of sixty days (60) notice in writing, per your executed rental agreement.

32. Mr. Lenarth testified that he understood the last paragraph of Respondent’s August 20, 2005 letter to be a threat: If he did not modify his home’s roof, he would be evicted. 33. As of the hearing dates in this matter, Respondents had not attempted to evict Mr. Lenarth. Mr. Glade denied any intent to evict Mr. Lenarth. 34. Mr. Lenarth testified that the existing roof on his home is a fire-retardant, wind-resistant roof that was installed in California. It has a 50-year warranty that transfers with ownership, which will be voided if the roof is modified. He called his insurance agent and she told him that his insurance policy would be void if he modified the roof and a loss occurred. 35. Mr. Lenarth also testified that he went to the La Paz County Park Planning Commission and was told that no permit would be issued for installation of a new roof because his 1979 model did not have 2”x4” construction and would not support the additional weight. 36. Mr. Lenarth testified that he asked licensed contractors to provide a bid to modify the roof on his home. The lowest bid was $9,500. 37. Mr. Lenarth had admitted into evidence Respondents’ invoice, which indicated that his monthly space rent for November 2005 was $249.00. 38. Mr. Glade testified that, on November 26, 2005, Mr. Lenarth came to the office and was offered a five-year lease, on the condition that he modify his home’s roof. Mr. Glade testified that Mr. Lenarth was “hostile and incoherent.” He was handed the lease, but threw it down and “stormed out.” 39. On November 26, 2005, Respondents sent another letter to Mr. Lenarth and his wife, as follows: On August 20, 2005 a notice was mailed along with your monthly statement notifying you of your up and coming lease expiration on November 31, 2005. A new long-term rental agreement was offered and needed to be executed within 30 days of that notice. On November 26, 2005, you came in to the office at the park and indicated that you will not be renewing the lease offered. Failure on your part to execute a new lease puts you in a month- to-month hold over tenancy. Your new rental amount according to this term effective on the March 1st 2006 statement will be $305.00. This letter will serve as your 90-day notice of rental amount increase.

40. On November 28, 2006, Respondents informed Mr. Lenarth and his wife that, in 90 days, their rent would be $350/month. Respondents further provided that, “[i]f you choose to vacate the space, please provide a minimum of sixty days (60) notice in writing, as per your original rental agreement. In addition, you may be eligible to apply to the mobile home relocation fund as per the Arizona revised statutes.” 41. Mr. Glade testified that Mr. Lenarth was never given a written lease that set forth the terms of his tenancy if he chose not to modify his roof because he never made a written request, which Mr. Glade understood to be required by the Act. 42. Mr. Glade acknowledged that, when Mr. Lenarth filed his complaint with the Department and in his testimony at the hearing, he had expressed his desire for a written lease. 43. Mr. Glade testified that Respondents took the position that, because Mr. Lenarth’s lease had expired, they could offer as an alternative benefit and improvement the option of updating his home. This would improve the Park and increase the value of Mr. Lenarth’s home. Therefore, Respondents had offered tenants a five-year lease on the condition that they update their roofs. 44. Respondents had admitted into evidence the park’s Statements of Policy. Paragraph 5 of the Statements of Policy stated as follows: All homes coming into the Park must have written landlords approval and consent prior to moving into the Park. All homes shall be approved solely on the basis of aesthetics and compatibility, and solely at the landlord’s discretion. . . . All homes in spaces 11-58 are to be . . . no more than 15 years of age, as to the current calendar year. The roof shall be a non reflective nominal 4:12 pitched roof and approved exterior siding or as approved by the landlord, solely at landlord’s discretion. All homes in spaces 60-110 shall be minimum 20’ wide and length relative to the set backs as landlord permits or as required by any governmental agency, and new to the current calendar year with a composition architectural shingle 4:12 pitched roof and approved exterior siding or as approved by the landlord, solely at the landlords discretion. . . .

45. Mr. Lenarth testified that he had never seen the Statements of Policy before the hearing on remand. They were not prominently posted at the park. 46. Space No. 15 is near the entrance, in the “old section” of the park. Mr. Glade testified that the tenants of Space Nos. 1-10 were not required to modify their roofs because these spaces were the oldest spaces in the park and located on the highway. As these spaces were vacated, they would not be rented to new tenants and would be converted to a commercial use. The Park now has 110 spaces, with the new sections being at lower elevations, nearer the river. 47. Mr. Glade testified that one other tenant had not modified his roof and, as a result, was not given a new lease but, instead, became a month-to-month tenant at a higher monthly rate. All of the other tenants had modified their roofs, some even before their leases expired. 48. Mr. Glade testified that the park is a resort. Most of the tenants come from California or larger cities in Arizona on weekends, for recreation on the river. In contrast, Mr. Lenarth lives at the park full-time at least half the year. 49. Mr. Lenarth testified that tenants who had been offered a 5- year lease because they had modified their roofs told him at the time of the hearing dates that they were paying $286/month for the rent on their spaces. 50. Mr. Lenarth has sent a check for $286 every month to Respondents for his rent via certified mail, which costs $4. But they have refused to claim the mail and have not cashed the checks, which he has kept. Mr. Glade’s Compliance with Education Requirements 51. Mr. Glade became the manager of the Vista Del Rio River Resort park in 1999. He admitted that he did not comply with A.R.S. § 33-1437, which required him to “complete at least six hours of educational programs” within six months of his employment. 52. Respondents had admitted into evidence a photograph of a Certificate of Attendance that was posted in his office, evidencing that Mr. Glade had “Attended Six (6) Hours of Educational Programs on Manufactured Housing Issues” on January 13, 2006. 53. Respondents also had admitted into evidence a copy of another Certificate of Attendance, which evidenced that Mr. Glade had “Attended Six (6) Hours of Educational Programs on Manufactured Housing Issues” on September 19, 2008. 54. Mr. Glade explained his second failure to comply with A.R.S. § 33-1437, which requires him to complete “at least six additional hours of education programs every two years,” because the Park is in a remote location and classes are not regularly offered at a convenient location. The Other Issues 55. In 2001, Respondents had required Mr. Lenarth, as a condition of continued tenancy, to install hardwood siding on his home. He had complied, at a cost of $1,500. He had admitted into evidence photographs of other homes at Respondents’ park, which he testified were owned by Mr. Glade or his mother, that lacked hardwood siding. 56. On January 8, 2006, Respondents sent a letter to Mr. Lenarth and his wife, charging parking violations and threatening to evict him, in relevant part as follows: It has been noted that you and your visitors car and/or cars were parked in the street or in front of other sites on 11/22/05 and 1/2/06 and several other occasions. . . .

Therefore, this has now been documented as your first and second breach of your rental agreement. Please note per the Mobile Home Parks Residential Landlord & Tenant Act any breach by a tenant three times within a 12 month period is subject to termination.

57. Mr. Lenarth testified that the alleged violation had occurred when his son’s girlfriend pulled her car out to allow another guest to leave the family’s New Year celebrations. 58. Mr. Lenarth also had admitted into evidence numerous photographs, which he testified evidenced Respondents’ failure to maintain the common areas, maintenance yard, and office at the Park. 59. Mr. Glade testified that some of these areas belonged to adjacent landowners. The maintenance yard was fenced and posted “No trespassing.” 60. Mr. Lenarth also had admitted into evidence at the first hearing date photographs of overflowing trash receptacles. He testified that, in 2000, there were ten tenants in the park and three trash receptacles. In 2008, there were 47 tenants, but still only 3 trash receptacles. 61. Mr. Lenarth testified that he was unable to offer into evidence photographs of the overflowing trash receptacles at the second hearing date because they had just been emptied when he took photographs of conditions at the park just before the second hearing date. 62. Mr. Glade testified that there were 3 4-yard dumpsters at the park. The dumpsters were emptied twice a week. Mr. Lenarth had taken the first set of photographs on May 31, 2008, which was Memorial Day weekend, when tenants at the park had many guests. 63. Mr. Lenarth also testified that Mr. Glade and his family did not comply with the park’s parking regulations, and had admitted into evidence photographs of vehicles that Mr. Lenarth testified were owned by Mr. Glade or his family and were parked illegally. 64. Mr. Glade testified that he and his family did not own some vehicles pictured in Mr. Lenarth’s photographs. Some of the vehicles were recreational or water vehicles used in leisure activities at the resort. CONCLUSIONS OF LAW This matter lies with the Department’s jurisdiction.[2] Mr. Lenarth bears the burden of proof and must establish Respondents’ violations of the Act by a preponderance of the evidence.[3] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[4] A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”[5] Respondents’ Statutory Right to Require Mr. Lenarth to Modify his Mobile Home’s Roof as a Condition of a Long-Term Lease and Lower Rent

Respondents are correct that one of the statutes cited in Mr. Lenarth’s complaint, A.R.S. § 33-1436(B)(6),[6] prohibits a landlord from promulgating statements of policy that require tenants, as a condition of rental, to make permanent improvements to their mobile home spaces,[7] as opposed to their mobile homes. A.R.S. § 33-1436(B)(6) does not apply to this proceeding. Respondents are not correct, however, that they may through promulgation of new statements of policy require existing tenants, as a condition of continued tenancy, a written long-term lease, or favorable lease terms, to make permanent improvements to their mobile homes, no matter how expensive, ill-advised, or impossible to perform. A.R.S. § 33-1452(D) provides that “[a] rule or regulation adopted after the tenant enters into the rental agreement is enforceable against the tenant only if it does not work a substantial modification of the rental agreement.” A.R.S. § 33-1452(E)(6) prohibits a person who operates a mobile home park from taking certain actions, including the following: Notwithstanding § 33-1436, subsection C,[8] require an existing tenant to furnish permanent improvements which cannot be removed without damage thereto or to the mobile home space by a tenant at the expiration of the rental agreement. If the landlord includes any requirements for permanent improvements in the rules or statements of policy, these requirements shall not apply to any mobile home already existing in the mobile home park.

[Footnote and emphases added.] The word “or” in A.R.S. § 33-1452(E)(6) is “[a] disjunctive particle used to express an alternative or to give a choice of one among two or more things.”[9] “In applying a statute, . . . its words are to be given their ordinary meaning unless the legislature has offered its own definition of the words or it appears from the context that a special meaning was intended.”[10] The legislature in A.R.S. § 33-1452(E)(6) has prohibited a landlord from amending its statements of policy or rules to require an existing tenant to make permanent improvements to his mobile home space or to his mobile home as a condition of continued tenancy. The Act thus prohibits a landlord’s refusal to provide a long-term lease. The Act also prohibits a landlord from arbitrarily and substantially increasing a tenant’s rent as a penalty for not making substantial permanent improvements to his mobile home. Respondents raised Mr. Lenarth’s rent from $249.00 in October 2005 to $305.00 in March 2005 and from $305.00 to $350.00 in November 2006. In November, 2005, Respondents did not give notice to Mr. Lenarth of his potential eligibility for relocation assistance if he could not pay the substantially increased rent, as required by applicable statute,[11] although they did give such notice in November 2006. This violation was not charged and, in any event, the decision in this case renders moot Respondent’s violation of A.R.S. § 33-1476.04(B). It is noted for the record. Statutory Requirements for Tenants Requesting Long-Term Leases Nor are Respondents correct in their assertion that they are not required to offer a long-term written lease to Mr. Lenarth unless he makes a written demand for such lease, instead of filing a complaint to the Department and making numerous verbal demands throughout the course of this litigation. A.R.S. § 33-1413(H) provides that, “[o]n expiration of a written rental agreement for a specified term . . . , tenancy is on a month-to-month basis unless . . . the tenant requests a new written rental agreement.” A.R.S. § 33-1413(K), upon which Respondents rely for their position that Mr. Lenarth must ask for a long-term written lease in a special writing directed to them alone before they are required to provide one, states that, “[n]otwithstanding subsection . . . H of this section, the tenant may demand in writing and the landlord shall offer a long-term . . . renewal rental agreement . . . .” [Emphases added.] The word “may” ordinarily is permissive or directory; the word “shall” ordinarily is mandatory. “Where both mandatory and directory verbs are used in the same paragraph of a statute, it is fair to infer that the legislature acknowledged the difference and intended each verb to carry its ordinary meaning.”[12] Respondents admit that Mr. Lenarth’s complaint to the Department was in writing but apparently suggest that he was required to use some magic words of address to make his demand effective under the statute. Moreover, under the ordinary meaning of the language that the legislature used in A.R.S. § 33-1413(H) and (K), Respondents were required to provide a written lease to Mr. Lenarth as soon as he demanded one, whether orally or in writing, which Respondents admit was on November 26, 2005, four days before his previous five-year lease expired. Persons whose transactions are governed by state statutes are presumed to know the law.[13] “As a matter of public policy, all persons are charged with knowledge of law pertaining to their transactions . . . .”[14] Because Respondents are presumed to know the law’s requirements, Mr. Glade’s claimed confusion about the law’s requirements does not excuse his failure to meet them.[15] Mr. Glade’s Failure to Complete Required Educational Programs and Other Violations

Respondents admit that Mr. Glade violated A.R.S. § 33-1437(A)[16] by failing to complete six hours educational programs until January, 2006, possibly as a result of Mr. Lenarth’s complaint to the Department and some seven years after Mr. Glade should have undergone such programs pursuant to the statute. Respondents also admit that Mr. Glade again violated A.R.S. § 33-1437(A) when he failed to complete an additional six hours of educational programs until September 2008, nine months after he should have completed such programs pursuant to the statute. A.R.S. § 33-1437(C) required the Department to issue an order to show cause to require a landlord to produce proof of having completed required educational program and to assess a civil penalty if the landlord does not produce proof of compliance with statutory educational requirements. Because these requirements were not met in this case, the order does not assess a civil penalty or any additional penalty for Respondents’ admitted violations of A.R.S. § 33-1437(A). The admitted violations are noted for the record. Mr. Lenarth has not established that Respondents violated the Act in their maintenance of the park or in any manner other than specifically found above. Requested Award of Attorney’s Fees and Costs Mr. Lenarth has requested an award of his costs under A.R.S. § 41- 2198.02(A) and attorney’s fees under A.R.S. §§ 41-2198.02(A) and 33-1408(C) and the expired five-year lease. Under the Rental Agreement and A.R.S. § 41-2198.02 As noted above, paragraph 23 of the Rental Agreement provided that, “[i]n any action arising out of the resident’s tenancy, this Agreement, or the provisions of the Mobilehome Residency Law, the prevailing party shall be entitled to reasonable attorneys’ fees and costs. . . .” Under the common law, the legal positions of a landlord and tenant during a holdover period are the same as during the period of the lease, unless the lease expressly and unambiguously disclaims any of these rights and responsibilities.[17] If the Act does not specifically provide otherwise, the common law of property and contracts supplements the Act’s provisions.[18] The legislature has authorized the Administrative Law Judge to order any party to abide by the Act or the contract that governs the dispute.[19] Mr. Lenarth was not the prevailing party in ALJ Bryant’s decision because Judge Downie reversed that decision. Her order of remand did not award attorney’s fees to either party. Mr. Lenarth is the prevailing party on remand on the central and most significant issue on remand, on which the bulk of the evidence was presented at hearing and most of the legal argument made, which is Mr. Lenarth’s entitlement to a long-term lease on the same terms as other tenants who modified their roofs. He therefore has established that he is entitled to an award for the attorney’s fees that he incurred prosecuting his claim after Judge Downey’s remand under the Rental Agreement. Under A.R.S. §§ 33-1408(C) and 41-2198.02(A) A.R.S. § 33-1408(C) provides as follows: In any contested action arising out of an agreement entered into pursuant to this chapter or for violation of any provisions of this chapter, the court may award the successful party reasonable attorney’s fees. The award of reasonable attorney’s fees shall be made to mitigate the burden of the expense of litigation to establish a just claim or a just defense. . . . Reasonable attorney’s fees shall be awarded by the court upon clear and convincing evidence that the claim or defense constitutes harassment, is groundless and is not made in good faith. In making such award, the court may consider such evidence as it deems appropriate and shall receive such evidence during trial on the merits of the cause, or separately, regarding the amount of such fees as it deems in the best interest of the parties.

Mr. Glade demonstrated a cavalier attitude about compliance with the Act’s requirements and appears to be at least partially motivated in his defense of this action to remove Mr. Lenarth from the park so that Mr. Glade can transform it from a place for retired tenants to live seasonally on fixed incomes to a resort for more well-heeled and active tenants’ weekend and holiday recreation. Nonetheless, clear and convincing evidence does not establish that Mr. Glade’s defense constitutes harassment, is groundless, or not made in good faith. The first part of A.R.S. § 33-1408(C) also allows a court to award the successful party in a contested action to mitigate the financial burden of establishing a just claim or defense, regardless of the successful party’s opponent’s motivation. The Act defines an “action” as “includ[ing] recoupment, counterclaim, setoff, suit in equity, and any other proceeding in which rights are determined . . . .”[20] This statutory definition distinguishes Mr. Lenarth’s claim under the Act from claims for attorneys’ fees under other statutes.[21] Under this statutory definition, an administrative proceeding is an “action.” In 1984, the Legislature added subsection (C) to A.R.S. § 33-1408, which authorized an award of attorneys fees to a party who prevailed on a claim made under the Act.[22] In 1986, the legislature adopted A.R.S. § 41-2198, which required an Administrative Law Judge to adjudicate most claims under the Act.[23] “When the legislature adds a new statute to an existing statutory scheme, and the later statute does not expressly repeal a former statute, then the former and the new statutes should be construed so as to give effect to each, if possible.”[24] The statutes must be harmonized if possible and a statute should not be construed as having been repealed by implication if such a construction can be avoided.[25] “[I]n Arizona, statutes are to be liberally construed to effect their objects and to promote justice.”[26] If the legislature’s failure when it enacted A.R.S. § 41-2198 to amend A.R.S. § 33-1408(C) to explicitly allow an administrative law judge to award attorney’s fees is construed as intending to limit the claims for which fees are available, then such fees are not available for the vast majority of claims adjudicated under the Act after 1987.[27] This construction effectively would repeal A.R.S. § 33-1408(C) in most claims made under the Act, which must be initially adjudicated in an administrative forum under A.R.S. § 41-2198. The legislature did not express any intent in its enactment of A.R.S. § 41-2198 to restrict the remedies available under the Act and did not expressly limit the application of A.R.S. § 33-1408(C).[28] Such a limiting construction would not effectuate the objectives of the Act.[29] This decision therefore does not adopt such a construction. Mr. Lenarth therefore has established that he is entitled to an award for the attorney’s fees that he incurred prosecuting his claim after Judge Downey’s remand under A.R.S. §§ 41-2198.02(A) and 33-1408(C). ORDER Based on the foregoing, IT IS ORDERED that Respondents shall provide Mr. Lenath with a long- term lease whose rent and other provisions are the same as provided to tenants who modified their mobile home’s roofs, retroactively effective to December 1, 2005. IT IS FURTHER ORDERED that Respondents shall pay Mr. Lenarth’s $50.00 filing fee within 20 days from the effective date of the final decision in this matter. IT IS FURTHER ORDERED that Mr. Lenarth is awarded his reasonable attorney’s fees and costs for his prosecution of this claim after the superior court’s remand. Mr. Lenarth shall file a statement of attorney’s fees and costs incurred within 20 days of effective date of the final decision in this matter. Respondents may object to Mr. Lenarth’s statement within 10 days. If the Director of the Office of Administrative Hearings certifies this Administrative Law Judge Decision, the effective date of the order will be forty days from the date of certification. Done this day, December 11, 2008.

______________________________________ Diane Mihalsky Administrative Law Judge

Original transmitted by mail this ____ day of December, 2008, to:

Department of Fire Building and Life Safety Robert Barger, Director ATTN: Debra Blake 1110 W. Washington St., Suite 100 Phoenix, Arizona 85007

By ___________________________ ----------------------- [1] A.R.S. § 41-2198.02(A). [2] See A.R.S. § 41-2198. [3] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119; see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [4] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [5] Black’s Law Dictionary at page 1220 (8th ed. 1999). [6] This statute provides that the statements of policy shall be attached to the rental agreement and shall include certain terms, including:

The improvements required as a condition of tenancy. If consistent with the rental agreement, the statement of policy may require improvements that the tenant will be required to furnish, install and maintain to the mobile home space being rented and that constitute permanent improvements that cannot be removed at the expiration of the rental agreement including the estimated cost of each permanent improvement. Any change in a statement of policy regarding permanent improvements does not apply to an existing tenant or to any renewal of a rental agreement by an existing tenant. [Emphasis added.]

[7] A.R.S. § 33-1409(16) defines “mobile home space” as “a parcel of land for rent which has been designed to accommodate a mobile home and provide the required sewer and utility connections.” [8] This statute requires that, “[a]t lease sixty days before the expiration of a statement of policy, the landlord shall notify all the tenants of any new statement of policy.” [9] Rutledge v. Arizona Board of Regents, 147 Ariz. 534, 556-57, 711 P.2d 1207, 1229-30 (App. 1985) (emphasis in original). [10] Mid Kansas Federal Savings and Loan Ass’n of Wichita v. Dynamic Development Corp., 167 Ariz. 122, 128, 804 P.2d 1310, 1316 (1991). [11] A.R.S. § 33-1476.04 concerns “Relocations due to rent increase; mobile home relocation fund; applicability” and provides in relevant part as follows:

A. A tenant is eligible for payment from the mobile home relocation fund if all of the following conditions are met:

1. The tenant resides in a mobile home that is owned by the tenant and that is located in a mobile home park.

2. A rent increase will be effective at the expiration or renewal of the tenant’s rental agreement.

3. The rent increase either singly or in combination during any consecutive twelve month period is more than a total of ten per cent plus the current increase in the consumer price index over the most recent one year period before the date of the notice of the rent increase. . . .

B. A landlord who increases rent as prescribed by subsection A of this section shall give written notice of the applicability of this section to all affected tenants.

[12] Matter of Guardianship of Cruz, 154 Ariz. 184, 185, 741 P.2d 317, 318 (App. 1987). [13] See Lugo v. Moore, 11 Ariz. App. 85, 90, 462 P.2d 102, 107 (1969). In that case, the Court of Appeals noted:

Lugo urges that the Department is estopped to deny the validity of the transfer to him. We cannot agree. He is presumed to know the law. There is an indication in the record that the 1967 Act had been distributed to him as a license holder prior to the time in question. It is possible that knowledgeable advice was not given to him in connection with the new law because it had been in effect such a short period of time. Unfortunately he was bound by the law, new though it was.

Id.; accord Conway v. State Consolidated Publishing Co., 57 Ariz. 162, 171, 112 P.2d 218 (1941). [14] Turner v. State Employees Retirement System, 485 So. 2d 765 (Ala. App. 1986). [15] See Newman v. Fidelity Savings and Loan Ass’n, 14 Ariz. 354, 359, 128 P. 53 (1912). [16] This statute requires that, “[w]ithin six months after employment as a park manager, a park manager shall complete at least six hours of educational programs and shall complete at least six additional hours of educational programs every two years.” [17] See Restatement (Second) of Property § 14.7 cmt. b (1977). Arizona courts generally follow the Restatement of the Law in the absence of Arizona authority on an issue. See Campbell v. Westdahl, 148 Ariz. 432, 436, 715 P.2d 288, 292 (App. 1985) (additional citations omitted). [18] See A.R.S. § 33-1403. [19] See A.R.S. § 41-2198.02(A). [20] A.R.S. § 33-1409(1) (emphasis added). [21] Cf. Semple v. Tri-City Drywall, Inc., 172 Ariz. 608, 611, 838 P.2d 1369, 1372 (App. 1992). In that case, the Court of Appeals determined that a prevailing party to an administrative action before the Registrar of Contractors was not entitled to attorney’s fees under A.R.S. § 12-341.01 because an administrative proceeding was not an action under the definitions in Black’s Law Dictionary and Webster’s Ninth New Collegiate Dictionary. In addition, A.R.S. § 12-341.01 is contained in Arizona Revised Statutes Title 12, which relates to courts and civil proceedings, in contrast to A.R.S. § 33-1408(C), which is contained in Title 33, which relates to property. [22] See Laws 1984, Ch. 68, § 1, eff. April 10, 1984. [23] See Laws 1986, Ch. 355, § 5, eff. July 1, 1987. This statute formerly was § 41-811 and was renumbered as § 41-2198 by Laws 1988, Ch. 208, §§ 10, 11. [24] Alexander v. Fund Manager, 166 Ariz. 589, 593, 804 P.2d 122, 126 (App. 1990) (citation omitted). [25] See id. [26] Mendelsohn v. Superior Court, 76 Ariz. 163, 169, 261 P.2d 983, 987 (1953). [27] Under this construction, attorney’s fees after 1987 would be available only in the initial adjudication of claims involving rental increases under A.R.S. § 33-1413(G) or (I), which are excluded from the administrative law judge’s jurisdiction. See A.R.S. § 41-2198.03(A). [28] Cf. State v. Moerman, 182 Ariz. 255, 260, 895 P.2d 1018, 1023 (App. 1995). In that case, the Court of Appeals stated:

In construing a statute, our primary purpose is to “determine and give effect to the legislative intent behind the statute” State v. Korzep, 165 Ariz. 490, 493, 799 P.2d 831, 834 (1990). There also is a presumption that the legislature does not include in statutes provisions which are redundant, void, inert, trivial, superfluous, or contradictory. See State v. Deddens, 112 Ariz. 425, 429, 542 P.2d 1124, 1128 (1975); see also State v. Edwards, 103 Ariz. 487, 489, 446 P.2d 1, 3 (1968). We must examine the statute as a whole and give harmonious effect to all its sections. State v. Ball, 157 Ariz. 382, 384, 758 P.2d 653, 655 (App. 1988) (emphasis added).

[29] See Cactus Wren Partners v. Arizona Department of Building and Fire Safety, 177 Ariz. 559, 563, 869 P.2d 1212, 1216 (App. 1993) (“[A]s a practical matter, the Department’s objective of administering compliance with the Act is furthered by inclusion of its hearing officer function. This purpose would be less easily met if matters relating to the Act were left to the judicial process.”).

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