ALJDEC decisions subject to certification as final

12F-L1212004-BFS · Department of Fire Building and Life Safety · 2012-08-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 9, 2012. APPEARANCES: Darrell Claiborne, Sr. appeared telephonically. Betty Flynn Stoner, John Ralston, Di Miller, Susana DeLara, and Jose Gomez did not appear. Gateway Mobile Home Park was represented by its authorized representative, Robert Myers. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order: FINDINGS OF FACT 1. Darrell Claiborne, Sr. (“Petitioner”) is the owner of a manufactured home and a tenant of the Gateway Mobile Home Park (“Respondent”). Petitioner has been Respondent’s tenant for more than five years. 2. On or about March 5, 2012, Petitioner, together with Betty Flynn Stoner, John Ralston, Di Miller, Susana DeLara, and Jose Gomez, filed a Petition with the Arizona Department of Fire, Building and Life Safety (“Department”) that alleged that Respondent had violated the Arizona Mobile Home Parks Residential Landlord Tenant Act (“LTA”) in the following ways: 33-1432(G) Landlord must provide each tenant with a written summary of the [LTA][;] 33-1413.03(B) Utility charge may not exceed the single-family residential rate charged by the utility provider[;] 33-1413.01(A) If utility is metered, the landlord must have individual meters at each space, must make periodic readings, and provide billing[;] 33-1434(A)(7) If landlord has scheduled a shutdown of utility, he must inform tenants[;] 33- 1452(G) Landlord cannot prohibit meetings of tenants to discuss issues related to the mobile home lifestyle.

3. The Department forwarded the Petition to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 4. On May 24, 2012, the Department issued a Notice of Hearing that advised all parties of the time, date, and location of the formal hearing. The Notice of Hearing was sent to the parties at their addresses of record with the Department. The tribunal subsequently issued an order continuing the hearing to August 9, 2012, at 1:00 p.m. The order granting the continuance was sent to the parties at their addresses of record. 5. The commencement of the scheduled hearing was delayed 15 minutes to allow for the late arrival of Ms. Stoner, Mr. Ralston, Ms. Miller, Ms. DeLara, and Mr. Gomez. After the delay, the Administrative Law Judge conducted the hearing with Petitioner and Respondent’s authorized representative, Robert Myers, in attendance. Issue: “Landlord must provide each tenant with a copy of the [LTA]” 6. At the hearing, Petitioner failed to present credible evidence to establish that Respondent failed to provide any prospective tenant with a summary of the LTA.[1] Issue: “Utility charge may not exceed the single-family residential rate” 7. In May or June of 2007, Respondent’s previous owner, Charles T. Blanchette, gave Respondent’s tenants written notice of new charges for water usage supplied by the Town of Payson. Included in the notice was a charge of $6.50 per space for Respondent to have the water meters read each month. The notice further advised the tenants that “the park is willing to eliminate the $6.50 monthly meter reading service fee and simply allocate the water bill it receives each month to spaces pro-rata.” 8. Respondent has been charging tenants $6.50 per month for reading the tenants’ water meters since the notice. There is no evidence that the tenants ever elected to eliminate the $6.50 monthly meter reading service fee in favor of each space sharing the total water bill on a pro-rata basis. 9. At the hearing, Petitioner testified that he never received the notice regarding the water charges. However, Petitioner was a tenant at the time the notice was issued and has been a tenant since then. Petitioner has known that Respondent’s past owner and its current owner were charging the fee for water meter reading services. 10. Petitioner failed to present any credible evidence to establish the Town of Payson’s “prevailing basic service single family residential rate”[2] for water, including whether that rate includes a charge for water meter reading. Issue: “If utility is metered, the landlord must have individual meters at each space, must make periodic readings, and provide billing”

11. Petitioner failed to present credible evidence to establish that any of Respondent’s spaces do not have individual water meters. 12. The weight of credible evidence established that Respondent makes periodic readings of the tenants’ water meters and provides tenants with bills for their water usage. Issue: “If landlord has scheduled a shut down of utility, he must inform tenants” 13. At the hearing, Petitioner failed to present any credible evidence that Respondent does not notify tenants if there is going to be a shut down of a utility. Issue: “Landlord cannot prohibit meetings of tenants to discuss issues related to the mobile home lifestyle”

14. At the hearing, Petitioner failed to present any credible evidence that Respondent prohibited any meetings of tenants as alleged in the Petition. CONCLUSIONS OF LAW 1. The Department has subject matter jurisdiction over the Petition in this matter. 2. Pursuant to A.A.C. R2-19-119(B), Petitioner has the burden of proof in this matter. The standard of proof is by a preponderance of the evidence. A.A.C. R2-19-119(A). 3. Proof by a preponderance of the evidence “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 at 1182 (6th ed. 1990). 4. Petitioner failed to sustain his burden of establishing that Respondent violated the provisions of A.R.S. §33-1432(G), which provides as follows: Before entering into a rental agreement, the landlord or any person authorized to enter into the rental agreement shall provide to the prospective tenant a concise written summary of the Arizona mobile home parks residential landlord and tenant act that is approved by the director of the department of fire, building and life safety annually by November 1 and that includes any legislative changes made in the preceding year. The director of the department of fire, building and life safety shall post the approved summary on the department's web site. The landlord shall provide the summary to the tenant at no cost to the tenant. The summary shall include information regarding where a complete copy of the act may be obtained or reviewed, including listing the secretary of state's web site. This subsection does not apply to renewal of rental agreements. The secretary of state shall post the act on the secretary of state's web site.

At the hearing, Petitioner failed to establish that Respondent failed to provide any prospective tenant a concise written summary of the LTA approved by the Department’s Director. 5. Petitioner failed to sustain his burden or establishing that Respondent violated the provisions of A.R.S. §33-1413.01(B), which provides as follows: If the landlord separately charges for utilities, the landlord shall not charge more than the prevailing basic service single family residential rate charged by the serving utility or provider.

Petitioner failed to establish the prevailing basic service single- family residential rate charged by the Town of Payson and whether or not a fee for reading a water meter was included in that rate. Therefore, Petitioner did not sustain his burden of proving that Respondent charged tenants more than the prevailing basic service single-family residential rate charged by the Town of Payson. 6. Petitioner failed to sustain his burden of establishing that Respondent violated the provisions of A.R.S. § 33-1413.01(A), which provides as follows: If a landlord charges separately for gas, water or electricity there shall be a separate meter for every user. For each billing period the cost of the charges for the period shall be separately stated, along with the opening and the closing meter readings and the dates of the meter readings. Each bill shall show the computation of the charge generally in accordance with the serving utility company billing format for individual service supplied through a single service meter.

Petitioner failed to present any credible evidence that Respondent was not compliant with the requirements of the statute. 7. Petitioner failed to sustain his burden of establishing that Respondent violated the provisions of A.R.S. § 33-1434(A)(7), which provides as follows: Provide a statement of proposed interruption of utility service to the tenants within a reasonable time frame except in the case of an interruption caused by an emergency. An emergency does not include any failure or refusal on the part of the landlord to fulfill his duties and obligations as specified in this section. A statement of proposed interruption of utility service may be provided by posting an announcement of the period of the interruption in a conspicuous place within the mobile home park or by individual delivery to each tenant.

At the hearing, Petitioner failed to present any credible evidence that Respondent failed to advise any tenants of any utility shut down. 8. Petitioner failed to sustain his burden of establishing that Respondent violated the provisions of A.R.S. § 33-1452(G), which provides as follows: The landlord shall not prohibit meetings of tenants with or without invited visiting speakers in the mobile home park relating to mobile home living and affairs in the park community or recreational hall if such meetings are held at reasonable hours and when the facility is not otherwise in use.

Petitioner failed to present any credible evidence that Respondent prohibited meetings of tenants at the park. 9. Petitioner’s failure to sustain his burden of proof in this matter warrants the dismissal of the Petition. RECOMMENDED ORDER In view of the foregoing, it is recommended that the Petition in this matter be denied and dismissed in its entirety.

In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effect date of the Order will be the date of the certification. Done this day, August 28, 2012.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

Gene Palma, Director Department of Fire Building and Life Safety ----------------------- [1] A.R.S. § 33-1432(A)(G) does not apply the renewal of rental agreements between Respondent and tenants. [2] See A.R.S. § 33-1413.01(B).

-----------------------

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