ALJDEC decisions subject to certification as final

12F-L1213001-BFS · Department of Fire Building and Life Safety · 2013-02-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: APPEARANCES: ADMINISTRATIVE LAW JUDGE: Brian B. Tully _____________________________________________________________________ FINDINGS OF FACT 1. Ranchero RV & Mobile Home Park (“Respondent”) is an age 55 plus manufactured home community located in Show Low, Arizona. The park is located in the White Mountains in a high altitude, hilly area. 2. In 2011, Vincent and Vera Cedola (“Petitioners”) purchased a 1992 Cavco manufactured home that had been located on Lot 90 of Respondent’s park for approximately 20 years. 3. On or about July 19, 2011, Petitioners entered into a written “12 Month Rental Agreement” with Respondent for the rental of Lot 90. 4. On October 2, 2012, Petitioners filed a “Petition for Hearing by the Mobile Home Parks Administrative Law Judge” with the Department of Fire, Building, and Life Safety (“Department”) alleging the following violations by Respondent of the Arizona Mobile Home Residential Landlord and Tenant Act: A.R.S. § 33-1413(D)(1), (2), and (3), A.R.S. § 33-1432(A)(2) and (4), A.R.S. § 33-1432(G) and (H), A.R.S. § 33-1434 (A) (1) and (2), A.R.S. § 33-1437(A), (B), and (C), A.R.S. § 33- 1452(A)(1), A.R.S. § 33-1452(E)(6), A.R.S. § 33-1452(F), and A.R.S. § 33-2122(A)(1) and (2). 5. The Department forwarded Petitioner’s Petition to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 6. Although Petitioners’ Petition originally alleged that Respondent violated statutory requirements pertaining to their rental agreement, the park’s rules and regulations, educational requirements for park managers, and disclosure, Petitioners did not prosecute those allegations at the hearing because those issues have been addressed or are in the process of being addressed between the parties. 7. At the hearing, Petitioners acknowledged that the remaining issue to be addressed was the allegation that Respondent failed to maintain Petitioners’ premises in a fit and habitable condition, as required by the provisions of A.R.S. § 33-1434(A)(2). In their Petition, Petitioners explained this issue as follows: We are herewith reporting two extreme safety violations by the landlord based on his uncorrected, severe rain and snow-melt drainage problems, both off-site runoff and on site runoff from the hillside above and immediately adjacent to our house. The long term avoidance of drainage control has created major erosion of dirt, rocks, small landslides and other debris, all coming to rest and damaging the skirting of our house. And, the on-site precipitation caused erosion is continuous, so far covering most of the skirting to and rocks piled against it than it had before. There are three areas of the hill that are actual landslides with mud, rocks and tree limbs that is much more than just erosion. At the top of the main landslide is a huge boulder and another one in the middle of the hill that have large fractures in them that makes them easily vulnerable to split and fall. This alone is more than worrisome because if they do break during one of our torrential monsoon storms it could be disastrous. With its blunt force in conjunction with gushing water and mud, they could move this house off its pylons. Additionally, in the same area, Space 92 has a shed sitting 2-3 feet from the edge of the rim, which if the erosion is not contained could send it tumbling down crashing into our house.

8. Petitioners’ house and rental space is bounded on the north and west sides by hilly terrain. 9. In a letter dated July 9, 2012, to Respondent’s owner, Petitioners wrote that when they purchased their home in July 2011, that they had “noticed at the time that there were signs of erosion of the hill on the left side of the house.” Petitioners viewed some debris around the air conditioner and skirting. However, when Petitioners returned to the residence on June 30, 2012, they observed what they believed to be extensive damage to their property caused by the spring snowmelt. 10. After receiving Petitioners’ initial complaint regarding the soil erosion, Respondent had the property inspected by three engineers. The engineers determined that the hillside adjacent to Petitioners’ house was stable. Only one engineer made recommendations to Respondent for any remedial work. 11. Based upon an engineer’s recommendations, Respondent caused a complete drainage ditch reconstruction on the hill behind Petitioners’ home. A new trench was constructed to divert water away from Petitioners’ property. The trench was completed pursuant to the engineer’s recommendation. 12. Respondent paid $1,500.00 for the remedial work recommended by the engineer. 13. Although not required by any of the engineers who looked at the hill, Respondent caused two small brick retaining walls to be constructed around Petitioners’ air conditioning unit and electrical meter. Respondent also caused a small narrow trench and stone barriers to be installed to protect the north side of the house, and a culvert to be cleaned out. 14. Petitioners have insisted that Respondent install a barrier constructed of chain link fencing and a railroad tie wall behind their home to control erosion. Petitioners obtained an estimate in the amount of $5,180.00 for that scope of work. However, Petitioners did not obtain any engineering supporting that scope of work as being necessary for erosion control. 15. Petitioners also expressed concern to Respondent about an outbuilding shed belonging to the tenant at the top of the hill behind Petitioners’ house being too close to the edge of the hill. Petitioners were concerned that erosion could cause the shed to slide down the hill into Petitioners’ home. Respondent contacted the neighbor about relocating the shed. The neighbor had no objection to the shed being relocated by Respondent. 16. The evidence of record supports a finding that Respondent made all repairs suggested by the engineer necessary to keep Petitioners’ premises in a fit and habitable condition. 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), Petitioners have 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. A.R.S. § 33-1434(A)(1) requires a landlord to “[c]omply with the requirements of all applicable city, county and state codes materially affecting health and safety.” Petitioners failed to sustain their burden of proving that this statutory provision was violated by Respondent as alleged in the Petition. The evidence of record does not support this charged violation. 5. A.R.S. § 33-1434(A)(2) requires a landlord to “[m]ake all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition.” Petitioners failed to sustain their burden of proving that this statutory provision was violated by Respondent as alleged in the Petition. Petitioners contend that Respondent must undertake the construction of a wall barrier behind their home to make their property fit and habitable. However, Petitioners failed to present any engineering as evidence to support their position. On the contrary, Respondent hired three engineers to inspect the hillside behind and adjacent to Petitioners’ home. Only one engineer made recommendations for remedial work. Respondent had the recommended remedial work performed pursuant to the engineer’s direction. Therefore, it is concluded that the credible evidence of record supports the conclusion that Respondent complied with the statute by making the repairs recommended by an engineer necessary to put and keep Petitioners’ premises in a fit and habitable condition. 6. Petitioners failed to sustain their burden of proving that Respondent violated the provisions of A.R.S. § 33-1413(D)(1) and (2), A.R.S. § 33- 1432(A)(1) and (2), A.R.S. § 33-1432(G) and (H), A.R.S. § 33-1437(A), (B), and (C), A.R.S. § 33-1452(A)(1), A.R.S. 33-1452(E)(6), A.R.S. § 33-1452(F), and A.R.S. § 33-2122(A)(1) and (2) as alleged in their Petition. 7. The evidence of record supports the dismissal of Petitioners’ Petition. ORDER Based upon the foregoing, IT IS ORDERED that Petitioners’ Petition be dismissed.

In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order shall be five (5) days from the date of the certification. Done this day, February 4, 2013.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

Gene Palma, Director Department of Fire Building and Life Safety -----------------------

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