ALJDEC decisions subject to certification as final

08F-L078019-BFS · Department of Fire Building and Life Safety · 2008-03-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 21, 2008 APPEARANCES: Robert and Mary Lou Hagen, Petitioners; Mike Parham, Respondent’s Attorney; Geff Gunsalus, Respondent’s witness; Gerry Adcock, witness; Ron Feinstein, Barbara Hartenberg, Arthur Chick, Jerry Cossman, observers ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang _____________________________________________________________________ The Petitioners filed a petition with the Department of Fire, Building and Life Safety claiming that the Respondent violated a portion of the Mobile Home Parks Residential Landlord and Tenant Act. However, they were not able to establish any violation by the Respondent at hearing. Therefore, it is recommended that the petition be denied and dismissed. FINDINGS OF FACT 1. Petitioners are tenants of the Respondent’s mobile home park (the “Park”). For financial and other reasons, they determined that they wanted their daughter, Mary Henry (“Mary”), to move in and care for them. Mary and Robert Hagen applied to the Park for acceptance of Mary as a Park resident (Exhibit C). The application was dated December 10, 2007 but marked as received on December 12, 2007. The application included Mary’s date of birth, Social Security Number, and her previous address. Mary also initialed and answered “No” to questions as to whether she’d ever been evicted, convicted of a crime, or answered the previous questions untruthfully. 2. After receiving the application, Geff Gunsalus, the off-site property manager, utilized an on-line investigating service called Merchant’s Credit to conduct a background check. Through it, he learned that Mary had, in fact, been evicted from a home in 2004 (Exhibits D and E). Mr. Gunsalus denied Mary’s application based on the eviction, and the fact that Mary had not been truthful on the application. After turning down the application, Mr. Gunsalus received Mary’s criminal record and learned that she also had a misdemeanor conviction in 2007 (Exhibit F). Mary’s name, date of birth and signatures from the application matched the court records. It was established that Mary was untruthful on all three of the application’s initialed questions. According to the rules of the Park, Mr. Gunsalus would have had to turn down anyone whose application was like Mary’s. 3. The Hagens asked Mr. Gunsalus to reconsider. They provided doctors’ prescriptions for a live-in caregiver. But Mr. Gunsalus still denied the application. When he learned that Mary had moved in to the Hagens’ home anyway, he issued them an eviction notice stating that if Mary did not leave the home in 14 days, the Hagens must move out. 4. The Hagens filed a petition with the Department of Fire, Building and Life Safety against the Park (the “Petition”). In it, they alleged that A.R.S. § 33-1413.03 allows them to have a caregiver. The Park responded alleging, in part, that the Petitioners’ doctors’ notes do not satisfy the requirements of the caregiver statute, that the application was denied in part for containing false statements and that the request for caregiver status was a pretext for having an unqualified relative reside in the home. 5. The Petitioners served a subpoena for the attendance of Geff Gunsalus at hearing and for the production of the documents that caused the rejection of Mary’s application. Unfortunately, the subpoena was served on someone at the Park and it did not reach the Park’s attorney. After seeing the subpoena for the first time at hearing, Mr. Parham stated that he would have objected to it had he seen it. Nevertheless, Mr. Gunsalus was present at the hearing and did testify. Further, the documents requested were produced at hearing and Mary Lou Hagen had the opportunity to review them prior to their admission as evidence. Robert Hagen appeared by telephone, so he did not have the opportunity to review the documents. Other than the fact that they had not been produced earlier, there was no objection to their admission. Further, the documents were to be produced on or before February 14, 2007, and the Hagens took no action prior to hearing to inform the Administrative Law Judge or the Park’s attorney that they had not been produced. Finally, Mary Lou Hagen confirmed at hearing that Exhibits D, E, and F were accurate by confirming Mary’s previous address and stating that Mary had some misdemeanor convictions. At most, an earlier production of the documents would only have served to prepare her to deny their legitimacy. 6. At hearing, Mary Lou Hagen affirmed that the address of the eviction had, indeed, been an address where Mary had resided. She also stated that Mary had told her that she had some misdemeanor convictions, though Mary Lou Hagen did not know what they were for. She argued that the caregiver statute allows the Hagens to have a caregiver without applying as a resident and they had only applied for Mary because they were not aware of the caregiver statute at the time. She stated that she has doctors’ prescriptions for 24 hour care. And, since she read the Park’s response to the Petition, she has since obtained more detailed treatment plans from the doctors (Exhibits 17, 18, and 18A). She also argued that A.R.S. § 33- 1409(26) applies in this case. 7. Petitioners offered the testimony of Gerry Adcock, a document retrieval specialist. He said he could not find any evidence that Mary had been evicted or convicted. He said he flew to Stockton, California and found no record of an eviction. He stated that there were 60 Mary Henry’s in the Los Angeles County area that have been brought to trial. He found that there was no correlation between any of them and Mary. He said that he researched on-line databases and found no eviction or conviction that he could confirm without more information. However, he admitted that the documents he looks at do not have dates of birth or addresses on them and he did not ask Mary about any of the information. He stated that he did further research and found that three other residents in the Park have criminal convictions but he did not know if the convictions occurred after the parties had already become residents. 8. Robert Hagen testified that he needs a caregiver. He stated that Mr. Gunsalus has not been nice to the Hagens and has made the situation difficult for them all the way through. He said that Mr. Gunsalus harasses the Petitioners and he has filed more eviction notices. 9. Mr. Gunsalus then testified as to his processing of the application and the actions he took as noted above. He also noted that, pursuant to the Park rules, Exhibit A), all residents must apply and meet the requirements for residency before living at the Park. He said that he has no complaints about Mary or the Hagens, but the application for residency is required, even for caregivers. In response to the Hagens’ Petition that he had refused their rent check, he stated that an eviction notice had been served and he could not accept rent or it would reinstate the lease. He did agree, however, to defer enforcement of the eviction until the case was over. He said Mary has been allowed to continue to live at the home out of compassion but it sets a dangerous precedent. 10. Robert Hagen closed by stating that she only wants Mary there long enough to move as the Hagens are selling their home. She said that Mary has moved now and only lives there in the daytime. 11. Mary Lou Hagen closed by stating that Mary is a caregiver only, and if the house doesn’t close, she should be allowed to live there as a caregiver without being subject to a background check. She stated that the Hagens need time to move. She also said the situation has been hard on their health. 12. Mr. Parham closed by stating that the caregiver statute does not take away the Park’s right to enforce its rules and lease agreements, including having all residents apply and meet Park criteria for residency. He said Mary lied on the application and had an eviction and a conviction. A landlord has the right to reject an application for lying and failing a background check. Anyone with that application would have been denied. Finally, he stated that the Petitioners have been hurt in this case, but not by the Park. Their daughter has mistreated them by filing a false application. CONCLUSIONS OF LAW 1. Pursuant to A.R.S. § 41-2198.01(A), “A person who is subject to title 33, chapter 11 or a party to a rental agreement entered into pursuant to title 33, chapter 11 may petition the department for a hearing concerning violations of the Arizona mobile home parks residential landlord and tenant act by filing a petition with the department and paying a fifty dollar filing fee…” 2. Pursuant to A.R.S. § 41-2198.02(A), “The administrative law judge may order any party to abide by the statute or contract provision at issue and may levy a civil penalty on the basis of each violation…” 3. Pursuant to A.R.S. § 41-2198.02(B), “The order issued by the administrative law judge is binding on the parties unless a rehearing is granted pursuant to § 41-2198.04 based on a petitioner setting forth the reasons for the request for rehearing, in which case the order issued at the conclusion of the rehearing is binding on the parties. The order issued by the administrative law judge is enforceable through contempt of court proceedings.” 4. Pursuant to A.R.S. § 33-1403, “Unless displaced by the provision of this chapter, the principles of law and equity, including the law relating to capacity to contract, mutuality of obligations, principal and agent, real property, public health, safety and fire prevention, estoppel, fraud, misrepresentation, duress, coercion, mistake, bankruptcy or other validating or invalidating cause supplement its provisions.” 5. Pursuant to A.R.S. § 33-1413.03, a mobile home park resident may have a temporary live-in caregiver pursuant to a physician’s treatment plan. The caregiver may have no rights of tenancy and the agreement to render care does not modify any term or condition of the rental agreement. The caregiver must comply with the rules and regulations of the mobile home park. 6. The Park rules and regulations require all new residents to register with the Park and meet the current eligibility requirements of the Park. (Exhibit A, paragraph 4.) A resident is defined as a person entitled to live at the Park under a rental agreement. (Exhibit 4, paragraph 1.) The rules also state that other persons may reside in the home on a permanent basis. A.R.S. § 33-1409(26) defines a rental agreement to include the lease and the adopted rules. Therefore, Mary was entitled under the rental agreement (the rules) to reside permanently in the home. (Exhibit A, paragraph 1.) This would make her a resident or tenant who was required to submit an application. 7. The caregiver statute refers to a caregiver as someone who is entitled to reside in the home on a temporary basis. A question arises as to whether the caregiver, as a temporary resident, is included in the rental agreement as a permanent resident. The issue revolves around the intended definition of “permanent” residence in the rules. The rules in Exhibit A, paragraph 16, provide for guests to reside at the Park for 14 days per year. A caregiver would not fit the definition of a guest in that case, and, arguably, the only remaining provision refers to those who live at the home for a longer period, thus labeling them “permanent” by comparison. Nothing in the lease suggests that a permanent resident is required to live at the home permanently in order to be permitted to stay under the rules. Therefore, a caregiver would be considered a permanent resident under the lease though she may be considered a temporary resident under the statute. The distinction has no legal relevance to the rules except to clarify that the caregiver is not merely a guest, and its purpose in the statute appears to be to distinguish the caregiver from the lessees as well as the guests. 8. Even though she may have been a caregiver, Mary planned to be a Park resident in that she would be living at the Park, not as a guest. As such, the rules required her to apply. Therefore, Petitioners’ argument that Mary was not required to apply for residency is not supported by the applicable statute. 9. Because Mary was properly screened and denied residency, the Park did not violate the applicable statutes by denying her application. Further, when she moved into the home anyway, the Park was entitled to evict the Petitioners. Therefore, this Petition should be denied and dismissed. RECOMMENDED DECISION Based upon the foregoing considerations, the undersigned Administrative Law Judge hereby recommends that this Petition be denied and dismissed.

Done this day, March 5, 2008

OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Dorinda M. Lang Administrative Law Judge

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

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

By ___________________________ -----------------------

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826