ALJDEC decisions subject to certification as final

07F-L067022-BFS · Department of Fire Building and Life Safety · 2007-05-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 30th, 2007; 9:00 a.m. APPEARANCES: Petitioner Ms. Cheryl Strickland represented herself. Respondents Mr. Russell Downing, Owner, Ms. Jo Ann Gutierrez, Park Manager, and Mr. Randy Johnson, Valley Vitas Management Co., represented themselves.

ADMINISTRATIVE LAW JUDGE: Grant Winston _____________________________________________________________________ The administrative hearing of this matter was held in the Office of Administrative Hearings, Tucson. 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. Petitioner, Ms. Cheryl Strickland, resides in her mobile home at the Respondent Copper Country Mobile Home Park in Tucson, Arizona. 2. The current owner of the Respondent MHP, Mr. Russell Downing, did not become the owner until late February, 2004. Some of the allegations and facts offered to support them deal with times when the previous owners still owned the MHP. 3. Petitioner filed the instant Petition with the Department of Fire, Building and Life Safety on or about January 31st, 2007. The Petition contains several separate alleged violations of the Arizona Mobile Home Parks Residential Landlord and Tenant Act. A hearing on the Petition was conducted by the Office of Administrative Hearings as set forth hereinabove. 4. The first allegation is that a request for a four-year rental agreement was denied. The evidence proved that while this may have occurred during the tenure of the previous Park owners, there is no evidence to find that these Respondents have denied offering a four-year rental agreement when requested. There was evidence that some tenants, after being given a lease, unilaterally altered material provisions thereof before returning the lease to the Park manager, and these changes were unacceptable to the management. However, there is no evidence that a four-year rental agreement is being refused anyone by the Respondents. 5. Petitioner raised several allegations concerning the Respondents’ failure to maintain the premises in a fit and habitable condition.

6. Petitioner alleged that the Respondents do not maintain the recreational room dedicated to the tenants’ use in a clean and sanitary condition. The greater weight of evidence proved that this is true. There is some credible evidence that the Respondents do clean the recreational room occasionally, but the effort falls short. Credible evidence from the Petitioner proved unsanitary conditions in the kitchen area, and infestation by rodents or other pests. Respondents admitted that they have had no contract with a professional exterminator to treat the recreational hall on a regular basis to prevent pest infestation.

7. There is insufficient evidence to support the allegation of “stove & refrig. leak.” 8. Petitioner alleged that Respondents have failed to heat the pool despite a prior agreement with the prior owners. The pool has passed all safety inspections, and a heated pool is not a requirement of a fit and habitable premises. 9. Petitioner testified about poor road conditions, but that was not included by her as a part of her Petition, so cannot be considered. 10. Petitioner alleged lack of lighting around the recreational hall, and the greater weight of evidence prove that the access areas to the recreational hall used by tenants and guests is very dark at night. The Respondents must improve the evening lighting of the outside of the recreational hall to make access to and use of it safe for residents and guests. 11. Petitioner alleged that Respondent has failed to remove a number of dead trees or dead tree limbs in the park. Respondents’ position is that these trees are located on the lots personally used by individual tenants and are therefore, according to the written park rules, the responsibility of those residents to remove. The written rules covering landscape on the several lots allocate responsibility for their maintenance to the resident, but give all rights of control to the Respondents. Respondent Mr. Downing owns the lots. They are part of the park premises. He is responsible for removing the dead trees and limbs, even on the lots accommodating the residents’ mobile homes. 12. Petitioner alleges that the Respondent has failed to enforce rules against speeding through the park streets. The evidence proved that Respondent has installed speed humps on the streets and does send notices warning against speeding. Of course, Petitioner would like to see more done, but the evidence as a whole proved that Respondents have taken reasonable measures to assure against speeding. 13. Petitioner alleges that the mailboxes are inaccessible to handicapped residents. Petitioner is not herself handicapped so this has not affected her. Also, while the mailboxes do sit atop a concrete slab raised approximately four inches form the surrounding surface, the evidence proved that Respondents have made arrangements with the U.S.P.S. for personal delivery of all mail to any person unable to reach his or her box. There is insufficient evidence to conclude that this arrangement has not been satisfactory as a whole. 14. Petitioner alleges that the recreational hall is not made available to tenants without charge. The evidence proved only that the Respondents ask for a refundable damage deposit, and reasonable access is provided to the residents. 15. There is insufficient evidence to find that Respondents failed to disclose written rental agreements, or names and addresses of park owners or employees. There was insufficient evidence to find or even clarify what would be the violation alleged by “collecting rent fees or process not availabel [sic] or consistent.” The evidence proved that Respondent does have established and reasonable hours for the on-site park manager to be available to the tenants, including telephonically. 16. Petitioner alleged that Respondents do not enforce the rules fairly and consistently. There is some evidence of laundry being hung outside a home to dry, and a dog running loose, but there is insufficient evidence to find a violation as alleged. There certainly is no evidence of systematic disregard or unequal application of these rules, and there is credible evidence that when a violation is reported the Respondents do take action. Petitioner alleged “too many cars.” The evidence proved that Respondent has taken reasonable steps to enforce parking rules, and has had four cars towed from the park in the last year. 17. Petitioner alleged that Respondent prohibits tenants meeting, or intimidates them from meeting. The evidence from Petitioners included testimony of the prior owner prohibiting Hispanic tenants from meeting or trying to intimidate them, but there no evidence that the current owners or manager do so. Indeed, the current park manager is a Hispanic woman, Ms. Jo Ann Gutierrez. She testified that she does not and has not ever prevented any tenants from meeting, including her fellow Hispanics. 18. Petitioner alleged that the Respondents charge a park entrance fee. The evidence proved that Respondents charge tenants upon moving into the park $100.00 which they refer to as an “Administrative Fee.” It is non-refundable. It is included as part of the rental agreement that is not for a four-year term, but for a term to be written into the blank provided at the time the lease is signed. The non-refundable fee is not included as part of the four-year lease. CONCLUSIONS OF LAW 1. This administrative hearing was held under authority of an pursuant to A.R.S. 41-2198, and A.R.S. 41-1092, and the Arizona Mobile Home Parks Residential Landlord and Tenants Act, A.R.S. 33-1401, et seq.

2. Subject matter jurisdiction is vested in the Department of Fire, Building and Life Safety. A.R.S Title 41, Chapter 16, Article 5. 3. The preponderance of evidence proved that these Respondents were and are in violation of A.R.S. 33-1434.A.2, 3 and 4, by (1) failing to keep the recreational hall clean and sanitary, (2) failing to maintain proper exterior lighting outside the recreational hall, and (3) failing to remove dead trees on the premises. Although the rules try to shift responsibility to the individual tenant for landscaping of the space accommodating the tenant’s mobile home, it is legally impermissible when the applicable statute provides otherwise. The statute requires the landlord to keep the premises fit and habitable, and A.R.S. 33-1409.22 defines premises to include the park area owned by the landlord. The tenant only rents the space, and the mobile home is the tenant’s “dwelling unit “ which is defined to exclude the real property used to accommodate it. A.R.S. 33-1409.8. 4. Respondent therefore is legally liable to cleaned and keep clean the recreational hall (including ridding it and keeping it free of rodents and other pests); improving the exterior lighting around the recreational hall, and removing the dead trees and limbs on the park premises, including the individual spaces which are owned by the Respondent and only rented by the tenants. 5. A.R.S. 33-1452.E.2 prohibits the required payment of an entrance fee such as Respondents’ so-called “Administration Fee” unless it is for services actually rendered or “pursuant to a written agreement.” Those residents who entered into a non-four-year lease agreed to the fee in writing as part of the lease. Petitioner’s evidence did not make clear whether only they or every tenant are required to pay the fee. Respondents are prohibited form requiring this fee except in the exceptional circumstance statutorily provided. RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law it is hereby recommended as follows: For the violations of A.R.S. 33-1434.A.2, 3 and 4, a civil penalty in the amount of $100.00 for each violation shall be paid by Respondents to the Department, pursuant to A.R.S. 41-2198.02.A, for a total of $300.00. Respondent shall pay Petitioner $50.00, an amount representing her filing fee paid to the Department to process her Petition, pursuant to A.R.S. 41-2198.02.A. The foregoing civil penalty and filing fee reimbursement shall be paid to the Department and tendered to the Petitioner on or before the effective date of this Order (40 days after the date of service shown by the Director’s or Assistant Director’s certificate of service on the Order). In the event of certification of the Administrative Law Judge’s Decision and Order by the Director of the Office of Administrative Hearings, then the effective date of the Order shall be 40 days after the date of that certification. Done this day, May 7th, 2007.

______________________________________ Grant Winston 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 N. Stone Ave., Suite 704 Tucson, Arizona 85701 (520) 628-5488