ALJDEC decisions subject to certification as final

12F-L1213002-BFS-res · Department of Fire Building and Life Safety · 2014-01-31

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 2, 2014

APPEARANCES: Petitioners appeared and were represented by attorney John A. Shannon, Jr.; Respondent was represented by attorney Michael Parham.

WITNESSES: None

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

This matter was set after the Arizona Department of Fire, Building and Life Safety (“Department”) granted a rehearing requested by Petitioners. Petitioners Philip Steinberg, Loretta Pittsley, and Bonnie Neace bring this tenant action against Respondent Cotton Lane RV Resort alleging violation of the Arizona Mobile Home Parks Residential Landlord and Tenant Act (“the Act”), under “A.R.S.” §§ 33-1401 through 33-1491. Namely, Petitioners allege an invalid enforcement of park rules and interference with their right to organize as tenants. Respondent denies the allegation. At the rehearing held on January 2, 2014, the parties agreed that there was no need to present testimony. Respondent stipulated to the facts as alleged in the petition filed with the Department on October 17, 2012. In addition, the parties stipulated to Exhibit A (park rules), Exhibit B (“Notice of Residents Meeting” flyer), Exhibit C, (three notices of violation), Exhibit D (Petitioner Steinberg’s rental agreement), and Exhibit E (OAH hearings information pamphlet). Based upon the entire record, this Administrative Law Judge—acting under the authority of A.R.S. §§ 41-2198—makes the following Findings of Fact, Conclusions of Law, and Order finding that Respondent has interfered with Petitioners’ rights and cannot enforce its rule against the activity at issue here. FINDINGS OF FACT 1. Respondent is a mobile home park in the State of Arizona. Petitioners are tenants of the park. 2. Petitioners state the following facts in their petition, which Respondent has stipulated to: a. On or about January 27, 2012, Philip Steinberg and Loretta Pittsley were cited by Mr. Chip Jordan, General Manager, for violation of Cotton Lane RV Resort rule VII(L). “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,[sic] etc”.

b. On or about January 28, 2012, Bonnie Neace was cited by Charlotte Hockman, Office Manager, for violation of Resort rule VII(L).

c. On January 26, 2012, Philip Steinberg and Loretta Pittsley were passing out, door-to-door, “Notice of Residents Meeting”. Ms. Bonnie Neace was doing the same on January 28, 2012.

The Notice of Residents Meeting is an open letter to residents of the park from Philip Steinberg, calling attention to a forthcoming “meeting open to all residents of Cotton Lane” to be held for the purpose of “election of officers for our park within the framework of AAMHO.”[1] 3. Park Rule VII(L) states the following: 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 selling [sic] 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.

4. Petitioners argue that their conduct was not within Park Rule VII(L) and that their conduct is protected by the Act. 5. Respondent argues that Petitioners’ conduct was within Park Rule VII(L)’s prohibited activity and that the rule is valid and enforceable. CONCLUSIONS OF LAW 1. The Department referred this case to the Arizona Office of Administrative Hearings pursuant to A.R.S. §§ 41-2198 and 41-2198.01(E). This Office has jurisdiction to hear and decide the petition pursuant to A.R.S. §§ 41-1092.02, 41-2198, and 41-2198.02. 2. This case is governed by the Arizona Mobile Home Parks Residential Landlord and Tenant Act found at Arizona Revised Statutes Title 33, Chapter 11 (A.R.S. §§ 33-1401 through 33-1491). Here, Petitioners allege violation of the Act due to Respondent’s issuance of the three notices of violation for passing out, door-to-door, the Notice of Residents Meeting. The Administrative Law Judge finds merit to the allegations for two reasons. 3. First, Petitioners’ conduct did not fall within the plain meaning of Park Rule VII(L). Although confusingly drafted and awkwardly stated,[2] Park Rule VII(L) clearly prohibits “soliciting.” That word, or a form of it, is used four times in the rule. A common, dictionary definition of “solicit” means “to make petition to;” “to approach with a request or plea.”[3] Thus, soliciting or solicitation is the act of requesting something from someone. Here, Petitioners were not soliciting; the Notice of Residents Meeting was not requesting anything, but was informing park residents about an upcoming tenants meeting. Petitioners were informing the park residents about the details of the meeting, not making requests from park residents. Therefore, the actions of Petitioners that form the bases of the notices of violation were not solicitations and were not prohibited by Park Rule VII(L). 4. Second, Petitioners’ actions were protected activity under the Act. Under the Act as it existed in 2012, landlords were prohibited from interfering with tenants’ rights to organize and meet 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.[4]

As a necessary implication of that prohibition, landlords would be prohibited from preventing tenants from informing other tenants about such meetings. For the statute to restrict landlords from preventing tenant meetings but allow landlords to prohibit informing tenants about such meetings, as suggested by Respondent, would be absurd. The Administrative Law Judge will not read the statute in such a way as to make it absurd. Thus, the 2012 statute above also bars a landlord, by necessary implication, from prohibiting the act of informing tenants about tenant meetings. Because that is what Petitioners were doing in this instance, informing other tenants about a meeting, Respondent’s issuance of the notices of violation are a violation of the Act. 5. For these reasons, the notices of violation issued by Respondent to Petitioners are invalid. Respondent must rescind them. Filing Fee Reimbursement 6. To bring this action, Petitioners were required to pay the State a filing fee.[5] If a petitioner prevails, the landlord must reimburse the petitioner for the fee.[6] Here, Petitioners have prevailed. Therefore, reimbursement is ordered. ORDER UPON REHEARING Based on the above, IT IS ORDERED that Respondent shall rescind the three notices of violation issued to Petitioners Philip Steinberg, Loretta Pittsley, and Bonnie Neace and maintain compliance with statutory obligations at all times, especially the obligation to allow tenants to associate, organize, and meet as required in A.R.S. § 33-1452(G). IT IS FURTHER ORDERED that Respondent shall reimburse Petitioners the filing fee. Pursuant to A.R.S. § 41-2198.02(B), this Order is binding on the parties and is a final order.

Done this day, January 31, 2014.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

John A. Shannon, Esq. The Law Offices of John Shannon Attorney for Petitioners [email redacted]

Michael A. Parham, Esq. Williams, Zinman & Parham, PC Attorneys for Respondent [email redacted]

Gene Palma, Director Department of Fire Building and Life Safety ----------------------- [1] Exhibit B. [2] For example, the rule starts with a clear, simple statement, then adds an indented (and thus emphasized) paragraph “1.)” without a paragraph “2)” that seems to expand or restate the first clear sentence. [3] Merriam-Webster’s Collegiate Dictionary 1187 (11th ed. 2004). [4] A.R.S. § 33-1452(G)(2012). The statute has since been amended to read as follows:

The landlord shall not prohibit or adopt a rule that prohibits tenants or a tenant association from meeting with permission of the tenant in the tenant's mobile home, assembling at common facilities or areas within the park or meeting with or without invited visiting speakers in the mobile home park to discuss issues relating to mobile home living and affairs including the forming of a tenant association. Such meetings shall be allowed in common facilities if such meetings are held during normal operating hours of the common facility and when the facility is not otherwise in use. The tenant or tenant association shall be allowed to post notice of a meeting on a bulletin board in the mobile home park used for similar notice and shall be allowed to include notice of a meeting in a park newsletter. Meeting notices and meetings prescribed in this subsection shall not constitute a solicitation. For the purposes of this subsection, "common facilities" means a recreation hall, clubhouse, community center and any outdoor common area meeting location that is utilized by the tenants. A.R.S. § 33-1452(G)(2013)(emphasis added).

Thus, under current law, the notices of violation at issue here would be clearly prohibited. [5] A.R.S. § 41-2198.01(A). [6] A.R.S. § 41-2198.02(A).

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