ALJDEC decisions subject to certification as final

08F-L078018-BFS · Department of Fire Building and Life Safety · 2009-04-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 2, and November 17, 2008 and April 22, 2009. APPEARANCES: Petitioners Ms. Linda Poppen and Ms. Lynn Ruybalid represented themselves. Others among the several Petitioners passively attended the hearing on one or more days, and some gave testimony as witnesses. Respondent Terra Vista Mobile Home Park was represented by Mr. Randy Johnson, owner Valley Vista Management’s Area Supervisor. ADMINISTRATIVE LAW JUDGE: Grant Winston _____________________________________________________________________ The administrative hearing of this matter was held in the Office of Administrative Hearings. Testimony was heard and other evidence admitted to the record. Based on the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made. FINDINGS OF FACT 1. The several Petitioners in this matter filed the instant Petition against Respondents on March 19, 2008, alleging numerous violations of the Arizona Mobile Home Parks Residential Landlord and Tenant Act, A.R.S. § 33-1401, et sequitur (the Act). Respondents filed an Answer to the Petition on April 4, 2008. 2. Notice of an administrative hearing was issued by the Arizona Department of Building and Fire Safety on April 24, 2008. This administrative hearing was held over the course of three days and several witnesses testified. 3. Petitioners called some 17 witnesses, some of whom testified twice or thrice. Respondent’s Property Supervisor Mr. Randy Johnson also testified. 4. The record as a whole proved that the current property management of the Respondent mobile home park has been on the job only for about two years. Prior to then different management operated the park. Most of the problems, complaints and animosity coming from the Petitioners was proved by the evidence to have been generated prior to the advent of the current management. Many of those problems and situations had been discontinued by the current management. The current management is manifestly making an honest and earnest effort to rectify many of the abuses of its predecessors. 5. During the course of the hearing the parties worked diligently together to attempt a reconciliation of their outstanding differences. Many of the Petitioners achieved a settlement with the Respondents on most of the issues, but other Petitioners did not wish to be a party to those agreements. The Petitioners who did achieve settlements with the Respondents offered their agreements into the record as documentary evidence. 6. One particular issue was raised by Petitioner Linda Poppen. Ms. Poppen was required by the Respondent to cut a tree on a lot she rents, but does not own. This cost her $240.00. She is seeking restitution from the park for that cost, contending that the applicable statute in the Act requires the park to maintain the premises. Other residents are being asked by park management to trim the landscaping in the rented areas owned by the park. 7. Respondent had been requiring that in-home caregivers be over 35 years of age. Respondent has agreed to terminate this requirement. 8. Respondents’ lease had required tenants to waive rights under the Act. 9. Respondents’ lease had assessed a late penalty for rent payments received after the fifth day of the month. 10. The park had been refusing to pay interest on the refund of security deposits. Current Respondents no longer assess deposits and have agreed to refund existing deposit moneys with interest. 11. The park had not been maintaining the common areas and park-owned areas, and had been passing on the expense of doing so to the residents. This includes landscaping and removal of junk items. 12. There is insufficient evidence to find that Respondents were requiring homeowners to repaint their homes with restricted color choices. 13. There is insufficient evidence to find that Respondents were violating the Act’s utility charge rules or requiring homeowners to make permanent improvements, or interfering with home sales. 14. There is some substantial evidence that Respondents had tried to rework lease agreements in new rules and regulations for the park.

15. There is insufficient evidence to find that Respondents are impermissibly charging entrance and exit fees. 16. The Respondent’s statement of policy does contain a “no right of first refusal” provision allowing the owner to sell the community to a buyer of the Respondent’s choice. However, the Respondents are not requiring the Petitioners to use a particular sales agent if they choose to sell their home. 17. Respondents do allow the residents to display a “For Sale” sign on their home. 18. Respondents do have a provision in their “Standards of Living” allowing it to enter a “home site” for health, safety or maintenance reasons. Home site is not defined to include entry into a home owned by a resident, and appears to mean the lot. 19. There is insufficient evidence to find that Respondents have refused to deduct costs of necessary repairs from the tenants’ rent. 20. There was insufficient evidence of any retaliatory conduct by the Respondents. CONCLUSIONS OF LAW 1. This administrative hearing was held under authority of and pursuant to A.R.S. Title 33, Chapter 11, Articles 1 through 5, and A.R.S. § 41-1092, et seq. 2. Petitioners have alleged dozens of violations of the Act in this case. 3. The greater weight of evidence proved that Respondent had violated numerous provisions of the Act, but some of these violations had been corrected and are not being repeated at this time. They are listed in the order of the Petition. (1) A.R.S. § 13-1413.03, requiring caregivers to be over 18 years of age, not 35 (but this has been corrected); (2) § 33-1414.A.1, waiving rights under the Act, and this language must be deleted from all park leases and rules and regulations; (3) A.R.S. § 33-1414.C. requiring no late fees until the 6th day of the month (this has been corrected); (4) A.R.S. § 33-1431.B., C. and G, requiring interest to be paid on refunded deposits (this has been corrected, but Respondents must properly reimburse the affected tenants); (5) A.R.S. § 33-1432.A.2, forcing residents to perform landscaping of the common areas or areas owned by the Respondents. Respondent must reimburse Ms. Poppen and other affected tenants who were forced to pay for landscaping of the common areas or rented space owned by Respondents; (6) A.R.S. § 33-1452.E.2 prohibiting certain kinds of entrance and exit fees. Respondent must cease such assessments if it has not done so already. These do not include fees for services actually rendered or pursuant to a written agreement; (7) A.R.S. § 33-1477 prohibiting Respondents from charging more than actual cost or maintenance repair that was the tenant’s responsibility (but this has been rectified now).

RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that a civil penalty of $150.00 be assessed against Respondents for each of the four violations of the Act concluded to have occurred and not been completely corrected in the Conclusions of Law, pursuant to A.R.S. § 41-2198.02.A, for a total of $600.00. It is further recommended that Respondents reimburse the Petitioners the $50.00 filing fee pursuant to A.R.S. § 41-2198.02.A. It is further recommended in consideration of the Respondents’ good faith effort to bring the park into full compliance, and rectify the violations of prior management, that in the event the Director or the Assistant Director receives written verification that Respondent has complied with the statutes it was concluded to have violated and reimbursed the filing fee to Petitioners on or before the effective date of this Order (40 days after the date of service appearing in the Director’s or Assistant Director’s certificate of service on the Order), then the above-provided civil penalties shall be rescinded. 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, April 29, 2009.

______________________________________ Grant Winston Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2009, to:

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

By ___________________________

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Office of Administrative Hearings 100 N. Stone Avenue, Suite 704 Tucson, AZ 85701 (520) 628-5488 Fax: (520) 628-5575 www.azoah.com