ALJDEC decisions subject to certification as final

12F-L1213002-BFS · Department of Fire Building and Life Safety · 2013-03-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 30, 2013 held open until March 8, 2013

APPEARANCES: Petitioners Philip Steinberg, Bonnie Neace, Loretta Pittsley; Arthur Chick, Petitioners’ Authorized Agent, Michael Parham, Respondent’s Attorney; Chip Jordan, Respondent’s representative. Also present: Jeannine Chick, Lorraine Steinberg, Sari Meto, Janet Breese, Donna Eldridge, Janice Wyatt, Charlotte Hockman, Barbara Yale, Phillip J. Yale, Gene Parkinson, Dale Neace, J.J. Wachter, Kristy Coe, Francis Coe, Sharon Swanson, Noyl Stein, Diane George, Charles, George, Duane Scott, Robert Vewly.

ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang _____________________________________________________________________

FINDINGS OF FACT 1. Petitioners are tenants of Respondent’s Mobile Home Park (“the Park”). On October 17, 2012, Petitioners submitted a petition to the Arizona Department of Fire, Building and Life Safety alleging violations by the Park of A.R.S. § 33-1452(G) and A.R.S. § 33-1491(A)(3). 2. The matter was set for hearing at the Office of Administrative Hearings, an independent agency conducting hearings in contested matters arising out of State regulation. At the hearing, the parties agreed to the admission of the Park’s Rules and Regulations. (Exhibit A). They also agreed that there were no significant factual disputes and the parties’ positions could be stated in closing briefs. A briefing schedule was set up. Petitioners’ initial closing brief was submitted on February 27, 2013, and the Park’s initial closing brief was submitted on February 28, 2013. Both parties submitted their responsive briefs on March 8, 2013. Background 3. In January 2012, Petitioners passed out flyers in the Park notifying the other tenants that a resident’s meeting would take place on February 6, 2012. 4. On January 27, and 28, 2012, the Park cited the Petitioners for violation of Rule VII(L) of the Park’s Rules and Regulations. 5. Rule VII(L) states as follows: No soliciting of any kind is permitted in park, including but not limited to, delivery of advertising material, or peddling on a door-to-door basis, etc. 1.) Soliciting for the purpose [of] selling or attempting to sell, and delivering immediately upon sale, the goods, wares, products, merchandise or other personal property that the person is carrying or otherwise transporting or for the purposes of canvassing or soliciting for a charitable, religious, personal, political or educational purpose or to solicit money or anything of value within the Resort is strictly prohibited. If you are solicited in the Resort, please notify the Resort office at once.

Petitioners’ Initial Closing Brief 6. Petitioners hired John A. Shannon, Jr., to file their closing briefs. Their initial closing brief argued that Petitioners were not soliciting because they were not trying to obtain any commercial profit or to sell anything. They also argue that, by citing them, the Park has interfered with the tenants’ rights to meet, which is a violation of A.R.S. § 33-1452(G). 7. Petitioners argued that when a Petitioner was distributing notice of the tenant’s meeting, she was having a “meeting” with another tenant, which would also be a violation of A.R.S. § 33-1452(G). 8. Petitioners argued that in adopting a rule against solicitation, the Park has improperly attempted to evade its obligations not to interfere with tenants’ organizations. 9. Petitioners argued that issuing Petitioners the notices of violation was a violation of A.R.S. § 33-1410, the obligation of landlords to act in good faith. 10. Petitioners allege that citing them for notifying tenants of tenants’ meetings suppresses the ability of the tenants to form a tenants’ organization, especially when citations can eventually lead to termination of the rental agreement. 11. Petitioners requested an injunction against the Park and requested a hearing to establish the injunction. 12. Petitioners addressed some other issues from the Park’s Answer that are no longer at issue. Park’s Initial Closing Brief 13. The Park’s Initial Closing Brief noted case law[1] that supported landlord’s rules against soliciting in a jurisdiction that, unlike Arizona, had enacted a statute that specifically allowed tenants and non-residents to come onto the landlord’s property to solicit tenants. The Park stated that the court focused on the landlord’s purpose in promoting a quiet and peaceful use of the community. 14. The Park argued that handing out notices of the tenants’ meeting door to door was solicitation because the definition of solicit is defined as asking for money, help or other things. 15. The Park argued that the Park is private property and, as such, is not required to permit solicitations on its property[2]. Therefore, the Park argued, the rule is valid. 16. The Park denied the implication that the citations, or warning notices, were threats of eviction in retaliation for joining a tenant union, which is prohibited under A.R.S. § 33-1491(A)(3). The Park noted that A.R.S. § 33-1491(B) allows a presumption of retaliation when the threat coincides with the act of joining a tenant union. The Park argued neither took place, the tenants had not joined a union and the warning notices were not threats of eviction. Petitioners’ Final Brief 17. Petitioners’ final brief critiqued the Park’s initial brief and re-asserted some previously-made arguments. It also commented on the case of All Parks Alliance for Change v. Uniprop MHC’s Income Fund, 732 N.W.2d 189 (Minn. 2007) (“Uniprop”). In that case, the federal appeals court reviewed the trial court’s conclusion that a landlord could restrict the distribution of leaflets on his property to certain hours of the day and certain days of the week as long as it was reasonable, out of respect for a Minnesota law that forbade bans against noncommercial free speech in mobile home parks. The law itself allowed parks to make reasonable limits as to the time, place and manner of that free speech. The trial court had expanded the hours in which tenants were allowed to solicit and canvass in order to comport with its idea of a reasonable limitation. The appeals court affirmed the trial court’s ruling. 18. Petitioners argued that the appeals court did not hold that the mobile home parks landlord could restrict leafleting altogether, as the Park is attempting to do in this case. They argued that Uniprop supports the idea that social policy should forbid the Park from completely restricting tenants from voting for officers of a tenant’s right organization[3]. 19. Petitioners drew an analogy between the Minnesota law and A.R.S. § 33-1452(G), which concerns the allowance of tenant’s meeting in the “park community or recreational hall.” The analogy utilized A.R.S. § 33- 1452(A)(5) (allowing rules and regulations as long as, among other things, they are not made for the purpose of evading landlord obligations) and A.R.S. § 33-1410 (imposing an obligation of good faith in performing all duties imposed by that article). Petitioners argued that the above statutes “contemplate that tenants should be able to assert their collective rights, as tenants, and that right should not, in good faith, be unreasonably restricted”. Petitioners generally argued that the Park’s issuance of violation notices was the ultimate in bad faith. They noted again that the violation notices can accumulate to the point where the Park can evict them, and therefore, they argued, constitute retaliation. 20. Petitioners requested an injunction under A.R.S. § 33-1471(B) against the Park, which would prohibit it from issuing violation notices for any future distributions of tenant’s right organization voting notices. Park’s Final Brief 21. In its final brief, the Park argued that it must adopt and enforce reasonable rules and regulations under A.R.S. § 33-1452(A), while tenants are charged with the duty of allowing their neighbors the peaceful enjoyment of the premises under A.R.S. § 33-1451(A)(5). 22. The Park argued that Rule VII(L) was reasonably related to the purpose of ensuring for tenants their right of quiet enjoyment of their property and that this is a legitimate purpose under A.R.S. § 33- 1452(A)(2) and is valid[4]. 23. The Park argued that issuing a legitimate warning notice is not a retaliatory threat and the notices were given for solicitation, not for joining and tenant’s union. Therefore, the Park argued, the petition’s allegation of retaliation under A.R.S. § 33-1491 is not supported. 24. The Park argued that there is no law supporting Petitioners’ request for an injunction, that A.R.S. § 33-1452(G) does not protect solicitors, and that there is no issue involving the Park’s good faith. 25. The Park requested that the matter be dismissed with Respondent’s awarded their attorney’s fees. 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, condominium documents 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 petition 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. Petitioners have the burden of proof and the standard of proof on all issues is by a preponderance of the evidence. See A.R.S. § 41- 1092.07(G); A.A.C. R2-19-119. 5. Petitioners have alleged in their petition violations of A.R.S. § 33-1452(G) and A.R.S. § 33-1491(A)(3). 6. A.R.S. § 33-1452(G) states 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.

7. A.R.S. § 33-1491(A) states as follows:

A. Except as provided in this section, a landlord shall not retaliate by increasing rent or decreasing services or by bringing or threatening to bring an action for eviction after any of the following: 1. The tenant has complained to a governmental agency charged with responsibility for enforcement of a building or housing code of a violation applicable to the premises materially affecting health and safety. 2. The tenant has complained to the landlord of a violation under this chapter. 3. The tenant has organized or become a member of a tenant's union or similar organization. 4. The tenant has filed an action against the landlord in the appropriate court or with the appropriate hearing officer.

8. Regarding the alleged violation of A.R.S. § 33-1452(G), Petitioners have not established that the Park has prohibited meetings in the park community or recreational hall. Petitioners have not established that they are having a meeting when they talk to other residents in the course of distributing notices door-to-door. If one could create a protected meeting by going to door-to-door, it would render the prohibition of commercial (and non-commercial) solicitation void. Petitioners have not made this argument, most likely because it shows the weakness of that claim. In the context of A.R.S. § 33-1452(G), the term meeting must have the connotation of a pre-arranged conference or it would quickly conflict with A.R.S. § 33-1451(A)(5), which prohibits tenants from disturbing their neighbors. 9. Petitioners have not established that passing out flyers and talking to tenants door-to-door is not solicitation. The plain meaning and common understanding of the word “solicitation” is to ask for something from someone. It is not limited to commercial solicitations, as is clearly noted by the use of the word in the Uniprop case cited by both parties. 10. Petitioners did not establish their claim or implication that the prohibition of solicitation is an unreasonable bar to their ability to establish a tenant’s organization. They have the option of mailing or posting their information. Any argument that this does not garner sufficient interest would merely bolster the defense that allowing door-to- door solicitation disturbs the quiet enjoyment of the other tenants because such an argument implies that Petitioners want to rely on in-person pressure to promote their cause. Clearly, in-person pressure to do something is a disturbance for someone quietly enjoying their property. Other arguments against mailing or posting notices would likely rest on mere convenience, which should not outweigh the rights of the tenants not to be disturbed in their homes. 11. It is noted that, pursuant to A.R.S. § 33-1452, tenants receive copies of the rules prior to moving in or before they go into effect. Therefore, one surmises that tenants are aware of the rule against solicitation and either do not object to it or, perhaps in some cases, chose to move into the Park because of it. There was no evidence at hearing that Park tenants want the Petitioners to ring their doorbells any more than they would want anyone else coming to their home and interrupting them in their quiet enjoyment. For this reason, the Park’s argument that the rule is reasonably related to the goal of protecting the quiet enjoyment of tenants’ home was well established. 12. Regarding Petitioners’ allegation that the Park violated A.R.S. § 33-1491(A), this was not established either. Arguably, Petitioners have organized a tenant’s union, which means that one element of the statute has been established. However, Petitioners must establish a causal connection between the fact that they are forming a tenant’s union and the alleged threat involved in issuing a violation notice. The causal connection has not been established because Petitioners were violating a valid Park rule and the Park was obligated to enforce that rule against all tenants equally under A.R.S. § 33-1452(A)(3). 13. The Administrative Law Judge will not consider Petitioners’ other allegations against the Park because they were not included in the petition. 14. Since Petitioners have not established that basis for the petition, the petition should be dismissed in its entirety. Petitioners’ request for a hearing is denied because Petitioners agreed to waive it and because it is not necessary because the facts in this case were not in dispute. Likewise, Petitioners did not establish any legal basis for the imposition of an injunction against the Park. 15. The Park has requested an award of attorney’s fees in this matter. Because Petitioners have failed to establish any basis for the petition, the Park should be allowed 30 days after the order in this matter becomes final to submit an affidavit of the amount of attorney’s fees requested and a summary of the Park’s legal position on the propriety of awarding attorney’s fees in matters such as this. ORDER Based upon the foregoing considerations, the petition in this matter is dismissed in its entirety. Within 30 days after the Order in this matter becomes final, the Park shall submit its affidavit and legal reasoning in support of its request for attorney’s fees.

Done this day, March 14, 2013.

/s/ Dorinda M. Lang Administrative Law Judge

Transmitted electronically to:

Gene Palma, Director Department of Fire Building and Life Safety ----------------------- [1] All Parks Alliance for Change v. Uniprop MHC’s Income Fund, 732 N.W.2d 189 (Minn. 2007). [2] Citing Fiesta Mall Venture v. Mecham Recall Committee, 159 Ariz. 371, 767 P.2d 719 (App. 1988). [3] It is noted that this is not an exact recitation of the issues presented in this matter. [4] Which states that rules must be reasonably related to their purpose.

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