ALJDEC decisions subject to certification as final

12F-L1213003-BFS · Department of Fire Building and Life Safety · 2013-03-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 9, 2013 and January 25, 2013, held open until March 1, 2013

APPEARANCES: On January 9, 2013, Reyna Marin, Lourdes Ramirez Quijano, Mercedes Garcia, Juan Garcia Gomez, Juana Marin, Claudia Ochoa, Petitioners; Ingeborg Cox, Attorney for Respondent; Frank Lee, Respondent’s Manager; Elba Nunez, Raquel Ramirez, Cecilia Sanchez, Yedinka Lopez, witnesses; Elizabeth Cintron, Interpreter. On January 25, 2013, Reyna Marin, Lourdes Ramirez Quijano, Mercedes Garcia, Juan Garcia Gomez, Juana Marin, Petitioners; Ingeborg Cox, Attorney for Respondent; Frank Lee, Respondent’s Manager; Elba Nunez, Yedinka Lopez, witnesses; Gabriela Contreras, Interpreter.

ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang _____________________________________________________________________ Having heard the evidence and testimony in this matter and having considered the entire record, the undersigned Administrative Law Judge hereby makes the following Findings of Fact and Conclusions of Law and issues the following Order. FINDINGS OF FACT 1. The Petitioners[1] in this matter reside at Respondent’s mobile home park (“Park”). They filed a petition with the Department of Fire, Building and Life Safety (“Department”) on or about October 23, 2012. The petition alleged that the Park violated specific provisions of the Mobile Home Park Landlord Tenant Act (“Act”) as follows:

• Before moving in, the landlord only provided me with the Park’s rules, not a concsise (sic) written summary of the Mobile Home Parks Residential Landlord Tenant Act -- [A.R.S.] § 33-1432(G)

• Landlord is using the excuse of late charges to charge me a great amount of money -- [A.R.S.] § 33-1414(C)

• Landlord denied and becomes bothered when a tenant asks for the Park’s owner name, address and phone number -- [A.R.S.] § 33-1452(F)

• September 2011, landlord knocked my door, entered my mobile home, sat down in my living room and asked me to give him my rent contract -- [A.R.S.] § 33-1453

• Mobile Home Park’s pool for tenants has two bathrooms, men and women. As a woman I entered woman’s room and noticed the bathroom is in very unhealthy and unsanitary conditions, to this day it remains that way. The laundermat (sic) for tenants is the same, it has accumulated garbage, dust, cobwebs, grime and so forth.-- [A.R.S.] § 33-1434

2. The matter was set for hearing at the Office of Administrative Hearings, an independent agency authorized to conduct hearings in contested matters arising out of State regulation. Petitioners Rocio Cruz, Juana Juarez, Jose Pina, Patricia Puido, Michelle Shook, Deborah Rivera, Denice Fierro, Ernesto Caro, Gomersindo Pondera, Maria Doiantes, Nallely Rios, Kaila Acevedo, Larym Manuel de la Cruz, Samuel Nunez Arciniega, Gloria Cervantes, Obed Barrera, and Juan Rubio did not appear. Therefore, the petition should be dismissed as to these petitioners. 3. Regarding the first allegation, Petitioner Reyna Marin testified that she was not given a summary of the Act. In its Response to Petition Filed by Reyna Marin received by the Department on November 14, 2012 contained a copy of an acknowledgement by Reyna Marin that she had been given a concise written copy of the Act. Therefore, Petitioners were unable to establish a violation of A.R.S. § 33-1432(G). 4. Regarding Petitioners’ second allegation, Petitioner Reyna Marin and others alleged that their accounts had not been credited properly. The matter was continued to a later date to allow the two parties to do an accounting. Upon their return, the only remaining issue was asserted by Petitioner Reyna Marin alone. It regards whether the Park has the authority to impose late fees against a tenant when the tenant has paid all past due utilities and base rent but has not paid for all past due late fees. The record was held open to allow Petitioner Reyna Marin and the Park to file closing briefs on that issue. After being granted one extension, Petitioner Reyna Marin did not submit a brief. Her request to extend the filing deadline further on the grounds that she did not understand the time limit was denied. The Park submitted its closing brief on March 1, 2013. Based on the legal reasoning stated in the Conclusions of Law, Petitioners have not established a violation of the Act for charging tenants late fees in any manner that the Park has charged late fees. 5. Regarding Petitioners’ third allegation, Petitioners complained that they were not given the name, address and phone number of the landlord. It was established at hearing that the first page of the Park’s lease agreement contains the name and address of the landlord, which is a corporation. The first page of the Park’s lease agreement also contains a telephone number to call in case of an emergency. No argument was proposed at hearing that would establish that it is a violation to become annoyed when someone asks for something that was already given to them in the lease agreement. Therefore, Petitioners have not established that the Park violated A.R.S. § 33-1452(F). 6. Regarding Petitioner Reyna Marin’s fourth allegation, that the Park manager, Frank Lee, came into her home without an invitation, Petitioner Reyna Marin testified about the circumstances of that day in September 2011, as did her daughter. Petitioner Reyna Marin also testified that her husband was home that day working in the kitchen and that her husband and the Park manager were on good terms. Mr. Lee testified that he did not remember doing such a thing and it is not his practice to go to people’s homes to talk about late rent payments. Although Petitioner Reyna Marin and her daughter did not open the door for Mr. Lee, it appears from the facts that it is likely Mr. Lee was granted admittance by Petitioner Reyna Marin’s husband. Therefore, Petitioners did not establish that the Park violated A.R.S. § 33-1453. 7. Regarding the final allegation that the women’s bathroom and laundromat are filthy, Petitioners submitted Exhibit C, photos of the laundromat that showed a broken machine, some dust, and some missing linoleum tiles. Park Manager Frank Lee testified that the Park pays a company named “Dadson” to maintain the laundromat. He stated that he would notify Dadson of the broken machine. The Park denied any other violation. Exhibit C shows missing linoleum tiles in front of the dryers that appear to pose a trip hazard. It is not evident from the photos that the laundromat is dirty. However, based on the out-of-order dryer and the missing linoleum, Petitioners have established a violation of A.R.S. § 33- 1434. 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. 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. A.R.S. § 33-1432(G) provides that the Park is required to provide prospective tenants a concise written summary of the Act. The greater weight of the evidence in this matter established that the Park met their duties regarding Petitioners in this matter. 6. A.R.S. § 1414(C) provides that the Park may charge a penalty of $5.00 per day for late payment of the rent beginning on the sixth day after the rent is due. Petitioner Reyna Marin argued that the penalty should stop accruing if she pays all of her overdue base rent and utilities. The Park’s Initial Lease Agreement with Petitioner Reyna Marin was included with the petition in the case file. It states on page 2, numbered paragraph 3, that a late charge of $5.00 per day starts on the 8th day of the month (8 days after rent is due) and continues “until all balances owing are paid in full”. Nothing in the aforementioned law or the lease agreement provides that late charges will stop accruing when the base rent and utilities have been paid. Therefore, Petitioner has not established a violation of the Act in this regard. 7. A.R.S. § 33-1452(F) provides that the Park must give its tenants and emergency telephone number, and A.R.S. § 33-1453 provides that the landlord has not right of access to a tenant-owned mobile home. Petitioners did not establish a violation of these provisions of the law because the evidence offered in support of the allegations did not outweigh the evidence against finding a violation. 8. A.R.S. § 33-1434 states as follows: A. The landlord shall: 1. Comply with the requirements of all applicable city, county and state codes materially affecting health and safety. 2. Make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition. 3. Keep all common areas of the premises in a clean and safe condition. 4. Maintain in good and safe working order and condition all swimming pool, shower, bathhouse, electrical, plumbing and sanitary facilities, including the recreational hall or meeting facilities supplied or required to be supplied or maintained by him. 5. Provide for removal of garbage, rubbish, and other waste incidental to the occupancy of the mobile home space. 6. Furnish outlets for electric, water and sewer services. The landlord shall also furnish a prospective tenant with information concerning the type, size and power rating of all electrical, water and sewer connections. 7. 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. B. A mobile home park landlord shall not impose any conditions of rental or occupancy which restrict the mobile home owner in his choice of a seller of fuel, furnishings, goods, services or mobile homes connected with the rental or occupancy of a mobile home space unless such condition is necessary to protect the health, safety, aesthetic value or welfare of mobile home residents in the park. However, the landlord may impose reasonable conditions relating to central gas, oil, electricity, or water meter systems in the park.

9. It was not disputed that the Park provides the laundromat for use by the tenants. The evidence offered by Petitioner Reyna Marin established that one of the dryers is out of order and linoleum is missing on the floor, which the greater weight of the evidence has established to pose a trip hazard. This was a violation of the above-noted statute because the laundromat is a common area that is not in a safe condition and because it is a sanitary facility that is not in working order. Therefore, the Park should be required to repair the dryer to working order and the Park should be required to repair or replace the missing linoleum in such a manner that it no longer poses a trip hazard. ORDER In view of the foregoing, it is hereby ordered that Respondent repair the broken machine in the Park’s laundromat and that Respondent repair or replace the missing linoleum in the Park’s laundromat so that it is no longer a trip hazard. All other allegations in the petition are dismissed. Done this day, March 8, 2013.

/s/ Dorinda M. Lang Administrative Law Judge

Transmitted electronically to:

Gene Palma, Director Department of Fire Building and Life Safety ----------------------- [1] Petitioner Juan Garcia Gomez has moved out of the Park since he signed the petition.

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