ALJDEC decisions subject to certification as final

07F-L067019-BFS · Department of Fire Building and Life Safety · 2007-04-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 19, 2007, at 9:00 a.m. APPEARANCES: The Petitioner appeared on his own behalf. The Respondents appeared through Dan Olsen the owner and manager of Trails Associates, L.L.C. and the owner of Trails West Mobile Home Community.

ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and, based upon the entire record; the following Findings of Fact, Conclusions of Law and Recommendation are made:

FINDINGS OF FACT 1. Petitioner is a resident of Trails West Mobile Home Park. On or about February 17, 2006, the petitioner entered into a written Rental Agreement with the Respondent. 2. The written Rental Agreement provides for a monthly sewer fee for $5.90, a minimum monthly water fee of $11.00, a trash collection fee of $9.00 and a monitored entry fee of $13.00. 3. On April 24, 2006, the Respondent issued a letter (Exhibit No. C-1) to the residents of Trails West which provides, in pertinent part, as follows:” Trash: Currently, Trails West charges $9.00 per month for twice a week trash collection service. Effective June 1, 2006, Trails West residents may temporarily stop trash collection service and charges for three months or more, provided water and sewer service are also stopped for the same period. This will be comparable to the City of Tucson’ policy, although the City charges $14 per month for service once a week.” 4. On or about January 9, 2007, the Petitioner filed the Complaint at issue alleging, in pertinent part, as follows: “33-1413.01(Defendant) The owners and managers of Trails West Mobile Home Community continually and repeatedly violate this section of the “Arizona Mobile Home Parks Residential Landlord Tenant Act” by overcharging some residents for trash collection by their failure to offer them suspension of this fee while they are away from the park.” 5. The Petitioner has previously filed a nearly identical Complaint alleging the same violation by the same Respondents. The previous matter was heard on April 7, 1998. A copy of prior Recommended Decision and Order and the Order of the Director adopting the recommendation is attached hereto and incorporated herein as Exhibit “A.” 6. The facts of this matter have changed little in the last eight (8) years. Again there was no dispute that while the Petitioner’s manufactured residence is located year round in Trails West Mobile Home Park that the Petitioner is usually traveling or living elsewhere from the first week in May through the middle of November of each year. 7. Again the Petitioner is very dissatisfied with being made to pay a monthly sewer, water and trash collection fee for those months that he is not actively living in his residence. 8. Again there was no dispute that the Petitioner raised the same questions prior to entering into his first written Rental Agreement with the Respondent and was informed that the Rental Agreement required minimum monthly charges for water, sewer and trash collection regardless of whether the Petitioner was physically present in his residence. 9. There was no dispute that the pertinent changes in the 2006 Rental Agreement was an increase in the trash collection fee from $5.10 to $9.00 per month and increase in the monitored entry fee from $10.30 to $13.00. 10. There was no dispute that the Petitioner was fully aware of the charges and of the results of the 1998 hearing. Despite his personal dissatisfaction with the charges, the Petitioner knowingly and voluntarily signed the Rental Agreement agreeing to pay minimum monthly charges for sewer, water and trash collection. 11. The Petitioner asserts that the Director has issued a ruling in a April 1, 2005, matter (Zeldon Gernhart, Petitioner, -vs- Quail Run Park, et al, Docket 05F-L045011-BFS) a copy of the Administrative Law Judge Decision, Order Granting Rehearing, Administrative Law Judge Decision Upon Review, Order Granting (2nd) Rehearing and Administrative Law Judge Decision (on rehearing) are attached hereto and incorporated herein as Exhibit No. “B.” 12. All of the above Administrative Law Judge Decisions were adopted without change by the Director. 13. The Petitioner asserts the Director’s ruling in 05F-L045011-BFS requires that Respondent provide seasonal visitors like the Petitioner the right to suspend the Respondent’s monthly fee for trash collection when they are not residing in the mobile home park. 14. The Recommended Order in Docket No. 05F-L045011-BFS provides, in pertinent part, as follows: “Based upon the foregoing it is recommended that the Director of the Department order that Respondents must allow seasonal visitors like Petitioner Mr. Gernhart to suspend Respondent’s monthly fee for trash collection when they are not residing in the park in accordance with A. J.; Waste Service’s rule quoted infre at Finding of Fact No. 23.” 15. Finding of Fact No. 23 provides as follows “ Mr. Gernhart had admitted into evidence A.J. Waste Services’ rules and regulations, which did not state its monthly rate for single family residences but provided in relevant part as follows: “If you are a SEASONAL VISTIOR any you are leaving for at least 1 month. 1. You must notify our office prior to leaving so we may obtain forwarding information and a required tentative re-start date. If your plans change, make sure you call and inform us. 2. You are permitted one (1) interruption of service, at no fee, per calendar year; otherwise there will be a $12.00 vacation hold fee. 3. Seasonal Visitors are also subject to our minimum service requirements as well (See Billing). The rules and regulations provided the following under “Billing”: “All customers are subject to a $10.00 suspension fee or a $15.00 re-instatement fee if your account is 60 days and over past due. We require a minimum of 3 month’s of service per calendar year; we do not offer temporary service at one time…” 16. Finding of Facts No. 18 through 22 of Docket No. 05F-L045011-BFS provide as follows: 18. The parties agreed that Quail Run Park did not allow seasonal residents to avoid charges for trash collection for the months they were absent from the park. 19. Mr. Miller testified that there was no municipal trash collection service where Quail Run Park is located. 20. The parties agreed that Quail Run Park’s contractor A.J. Waste Services charged single family residences $17.50 per month for trash collection. 21. Mr. Gernhart testified that he believes that A.J. Waste Services charged Quail Run Park $8.14 per unit per month for trash collection. 22. Mr. Miller testified that A.J. Waste Services charged Quail Run Park $52.50 per quarter per unit for trash collection.” 17. In the Quail Run Park case there was testimony that the Respondents were charging the residents more for trash pickup than the park was being charged and enough credible testimony and evidence was presented to support a finding that Quail Run Park had failed to pass along to the residence the right to suspend trash collection services provided by A.J. Waste Services. In the matter at issue there was no dispute that Respondent Trails West Mobile Home Community provides its own trash removal service for which it charges residence of the mobile home park the agreed upon sum of $9.00 per month. 18. Section 33-1413.01 of the Arizona Mobile Home Residential Landlord & Tenant Act specifically allows a landlord to charge for water, sewer, and trash removal. 19. There was no credible evidence that the Respondent’s charge for trash removal was more than the prevailing single family residential charge, fee or rate for trash removal levied by the political subdivision or provider or that the Respondent’s charge for trash removal was unconscionable. 20. The facts in this matter are not the same as the facts in Gernhart –v- Quail Run Park et al, (O5F-L045011-BFS) (attached hereto as Exhibit “B”) and the Director’s Order in the Gernhart matter is not found to have altered or overturned the Director’s 1998 Order in Case No. LTA 96-7/014, Docket No. 97F-L067014-BFS (Goldbaum –v- Trails West Mobile Home Park) involving these same parties and these same issues.

CONCLUSIONS OF LAW 1. The Petitioner has the burden of demonstrating by a preponderance of the evidence that the Respondents have violated the charged sections of the Mobile Home Parks Residential Landlord and Tenant Act. See Culpepper v. State of Arizona, 187 Ariz. 431, 437-38, 930 P.2d 508 (Ariz. App. 1996). Proof by “preponderance of the evidence” means that it is sufficient to persuade the finder of fact that the proposition is “more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). It “is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (rev. 6th ed. 1990). 2. The Petitioner failed to sustain his burden of proof to establish that Respondents have violated the applicable charged sections of the State’s Mobile Home Parks Residential landlord and Tenant Act. 3. The credible evidence on record failed to establish any violations, by the Respondents, of the Arizona Mobile Home Parks Residential Landlord and Tenant Act as charged.

RECOMMENDed order In view of the foregoing, it is recommended that Case No. LTA 06-7/019 (Docket Number 07F-L067019-BFS, together with the Complaint upon which it is based, be dismissed. In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be 40 days from the date of the certification.

Done this day, April 4, 2007.

______________________________________ M. Douglas Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2007, to:

Department of Fire Building and Life Safety Robert Barger ATTN: Joyce Kesterman 1110 West Washington Avenue, Suite 100 Phoenix, Arizona 85007

By ___________________________

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