ALJDEC decisions subject to certification as final

18F-LTA1818004-ADH · Arizona State Department of Housing - LTA · 2018-09-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

SHIRLEY AND CHARLES BRYFOGLE,

Petitioners,

vs,

CAROUSEL RANCH MOBILE HOME PARK, LLC,

Respondent.

__________________________________

SALLY J. SELLS, ET AL.,

Petitioners,

vs.

CAROUSEL RANCH MOBILE HOME PARK, LLC,

Respondent.

__________________________________

SHIRLEY AND CHARLES BRYFOGLE,

Petitioners,

vs,

CAROUSEL RANCH MOBILE HOME PARK, LLC,

Respondent.

Nos. 18F-LTA1818001-ADH,

18F-LTA1818002-ADH, and

18F-LTA1818004-ADH

(Consolidated)

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 23, 2018, at 9:00 a.m.

APPEARANCES: Charles Bryfogle appeared on behalf of himself and his wife Shirley Bryfogle (“Petitioners”); Sally J. Sells (”Ms. Sells”) failed to appear; Carousel Ranch Mobile Home Park, LLC (“Respondent”) was represented by Douglas N. Nelson, Esq., Evans, Dove & Nelson, P.L.C.

ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

Respondent is a mobile home park located at 4315 N. Flowing Wells Rd., Tucson, Arizona 85705.

Petitioners and Ms. Sells live in Respondent mobile home park. Petitioners are seasonal visitors who live in British Columbia during the summer.

On or about February 7, 2018, Petitioners filed a Petition with the Arizona Department of Housing (“the Department”) alleging that Respondent violated the Arizona Mobile Home Parks Residential Landlord and Tenant Act, A.R.S. §§ 33-1401 through 33-1501 (“the LTA”). Specifically, Petitioners alleged that Respondent violated A.R.S. §§ 33-1412(B), 33-1404(A), 33-1408(D), 33-1413.01(B) and (D), 33-1412(E), 33-1432(F), and 33-1411(B) by charging $15.00 per month for trash collection and by failing to provide adequate notice of the charge to tenants. The Department assigned Case No. LTA 18-18/001 to Petitioners’ first petition (“Case No. 001”):

On or about February 7, 2018, Ms. Sells filed a Petition with the Department alleging that Respondent violated A.R.S. § 33-1412(B) by refusing another tenant’s request that all the tenants in the park be given one-year lease agreements and by fomenting dissension in the park and treating tenants with disrespect. The Department assigned Case No. LTA 18-18/002 to Ms. Sells’ petition (“Case No. 002”).

On or about February 14, 2018, Petitioners filed a second petition with the Department alleging that Respondent had violated A.R.S. §§ 33-1403, 33-1412(B), and 33-1471 and Petitioners’ right to quiet enjoyment in the community’s facilities by keeping the community’s pool and clubhouse open only between the hours of 9:00 a.m. and 5:00 p.m. The Department assigned Case No. LTA 18-18/004 to Petitioners’ second petition (“Case No. 004”).

After Respondent filed a written answer in all three cases denying any violation of the LTA, the Department referred the matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for a consolidated evidentiary hearing. On or about May 22, 2018, the Department sent Notices of Hearing to Petitioners and Ms. Sells to the addresses on their petitions, setting a hearing on July 9, 2018.

On or about June 29, 2018, Petitioner Mr. Bryfogle requested that the hearing be continued. Because the other parties did not oppose the request, the Administrative Law Judge (“ALJ”) issued an order continuing the consolidated hearing to August 23, 2018, at 9:00 a.m. Staff at OAH mailed the order to Petitioners and to Ms. Sells at the addresses on their petitions.

A hearing was held on August 23, 2018. Petitioners appeared on their own behalf. Respondent was represented by its attorney, Douglas N. Nelsen, and appeared through Neal T. Haney, a principal of Respondent’s management company, NTH Management.

Ms. Sells did not appear. Ms. Sells did not request to appear telephonically at the hearing and did not request that the hearing again be continued. Ms. Sells did not present any evidence to prosecute her petition.

Petitioner Mr. Bryfogle stated that she had told him that because she had guests, she did not intend to appear. Mr. Bryfogle stated that he wished to prosecute Ms. Sells’ petition, but Respondent’s attorney objected to Mr. Bryfogle’s representation of Ms. Sells. The ALJ noted that representing another in OAH was considered to be the practice of law. The ALJ consulted Ariz. R. S. Ct. 31(d) and did not find any exception for matters referred by the Department for alleged violations of the LTA that would allow a mobile home park tenants’ association board member or another tenant to represent a tenant who has filed a petition with the Department at OAH.

Petitioners submitted ten exhibits and presented the testimony of Mr. Bryfogle. Respondent submitted ten exhibits and presented the testimony of Mr. Haney.

Evidence Presented at the Hearing

Petitioners’ Leases

On or about December 14, 2016, Petitioners signed their first lease agreement with Respondent for a lease term between January 2017, and December 31, 2017. On that date, Petitioners also signed an Acknowledgement of Receipt of Respondent’s Rules and Regulations and disclosure of utility rates for all utilities charged by Respondent.

On or about December 22, 2017, Petitioners signed their second lease agreement with Respondent for a lease term between January 1, 2018, and December 31, 2021. On that date, Petitioners also signed an Acknowledgement of Receipt of Respondent’s Rules and Regulations and disclosure of utility rates for all utilities charged by Respondent.

Case No. 001 ($15 Trash Collection Fee)

The first lease agreement, which Petitioners signed on December 14, 2016, provided that the cost of trash collection was included in the base rent charges.

On or about September 25, 2017, Respondent sent a letter notifying tenants that it would begin charging a $15.00/month trash fee to collect tenants’ garbage in January 2018.

Mr. Haney testified that Respondent sent the September 25, 2017 letter to all tenants at their address of record on the tenant ledger by certified mail. Mr. Haney testified that Respondent also posts utility rates in its office.

Mr. Bryfogle testified that because Petitioners were still in British Columbia on September 25, 2017, Petitioners did not receive the September 25, 2017 letter.

The second lease agreement, which Petitioners signed on December 22, 2017, provided that Respondent would charge Petitioners for trash collection “as billed on monthly utility billings.”

Petitioners wrote several letter to Respondent requesting that it provide the basis of the $15.00/month trash fee and its actual costs for trash collection. Respondent did not provide this information.

Mr. Bryfogle testified that Petitioners called the private company that provides trash collection services to Respondent and learned that it charges Respondent between $300.00 and $400.00 a month for trash collection services. Mr. Bryfogle testified that Respondent has 100 tenants, which means that it pays only $3.00 - $4.00 each month for trash collection services for each tenant. If the Department allowed Respondent to charge $15.00/month for trash collection, Mr. Bryfogle argued that it would constitute unjust enrichment.

Mr. Bryfogle testified that Respondent does not provide tenants with trash containers for each lot but, instead, provides two large dumpsters that all the tenants must use.

Respondent submitted a printout from the City of Tucson’s website that stated that the City charges between $15.00 and $16.75 for residential trash collection.

According to the City of Tucson’s website, most households in Tucson have their own trash containers that they use for curbside pickup. Some residents of Tucson have alley pickup and place their trash in large containers that receive trash from up to 3 households.

Case No. 004 (Failure to Open Pool and Clubhouse for Extended Hours)

Respondent mobile home community has a pool and clubhouse for tenants’ use.

The Rules and Regulations that were in effect when Petitioners signed both leases provided that “[b]asic rental rates include the use of all park social and recreational facilities. Please check with the Office if you wish to reserve the Clubhouse for private functions.”

The Rules and Regulations that were in effect when Petitioners signed both leases also provided as follows:

Special rules pertaining to the pool, clubhouse, and the equipment and facilities therein are posted at those locations. Those special rules constitute a part of these Rules and Regulations, and violations of them will be treated as a violation of these rules and Regulations. In addition to those rules posted, please shower before entering pool or spa, no wet bathing suits in clubhouse.

Mr. Haney testified that for many years before Petitioners signed their first lease on December 14, 2016, Respondent had kept the pool and clubhouse open from 9:00 a.m. to 5:00 p.m. The hours are posted at the pool and in the clubhouse.

Mr. Haney testified that the limited hours are the result of vandalism and vagrants at the pool and clubhouse.

Mr. Bryfogle testified that that the limited hours interfere with tenants’ rights to quiet enjoyment of amenities whose cost is included in rent. Mr. Bryfogle testified that most mobile home parks in the Tucson are keep their clubhouses open from as early as 5:30 a.m. to as late as 10:00 p.m. and their pools open from as early as 7:00 a.m. to as late as 10:00 p.m., or allow 24 access to the pool.

Mr. Bryfogle also testified that residents cannot shower before they enter the pool because they cannot enter the clubhouse. Mr. Bryfogle acknowledged that tenants have access to a shower in their own mobile homes.

Mr. Bryfogle suggested that Respondent be required to provide keys to tenants or to install an entry pad at the pool and clubhouse to allow tenants unlimited access to the amenities.

Mr. Haney testified that in the past, Respondent had provided keys, but then had to change the locks repeatedly because tenants had copied the keys and provided the keys to unauthorized persons. If Respondent provides keys to tenants, it loses all control over the clubhouse and pool.

Mr. Haney testified that a manager or maintenance person opens the pool and clubhouse. If the pool and clubhouse are not open when a tenant wishes to use them, the tenant may call the manager and the manager will open the facility. Mr. Haney testified that if the manager is not available, tenants can contact him and that he will cause the pool or clubhouse to be opened. Mr. Haney testified that Petitioners had never called Respondent’s manager or him to request that the pool or the clubhouse be opened. Mr. Haney testified that no other tenants had complained about limited access to the pool or clubhouse.

CONCLUSIONS OF LAW

The Notice of Hearing that the Department mailed to Ms. Sells and the order continuing the hearing that OAH mailed to Ms. Sells at the address that she provided on her Petition were reasonable, and it appears that she actually received the notice of the continued hearing.

The Department has jurisdiction to determine whether Respondent violated the LTA in the ways alleged in Petitioners’ two petitions and Ms. Sells’ petition.

Petitioners and Ms. Sells bear the burden of proof to establish that Respondent violated the LTA in the manner alleged in their respective petitions by a preponderance of the evidence. Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not. A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

Case No. 001 ($15.00 Trash Collection Fee)

A.R.S. § 33-1413(G) provides as follows:

Notwithstanding any provision of this article to the contrary, upon the expiration or renewal of any rental agreement, the landlord may increase or decrease the total rent or change payment arrangements. The landlord shall notify the tenant in writing by first class or certified mail or by personal delivery at least ninety days prior to the expiration or renewal of any rental agreement of any such increase or change. Nothing in this subsection requires a landlord to provide cause for any change in rent if the landlord complies with notice requirements.

(Emphasis added.) A.R.S. § 33-1413.01(D) provides as follows:

A landlord may charge separately for removal of waste, garbage, rubbish, refuse and trash and for sewer services. Any charges for removal or sewer services may not exceed the prevailing single family residential charge, fee or rate for these services levied by the political subdivision or provider.

(Emphasis added.) “A cardinal rule of statutory interpretation is to give full effect to each statutory word or phrase so that no part is rendered void, superfluous, contradictory or insignificant.”

Petitioners have not cited any statute that makes Respondent’s actual cost for trash collection services a factor in the amount that it may charge tenants for this service under the LTA. Respondent established that the prevailing single family residential charge for trash collection in Tucson is between $15.00 and $16.75/month.

A.R.S. § 33-1432(F) provides that “[e]ach tenant shall be notified, in writing, of any rent increase at least ninety days prior to the increase by first class or certified mail or by personal delivery.” A.R.S. § 33-1412(B) provides in relevant part that “[i]f notice is mailed by registered or certified mail, the tenant or landlord is deemed to have received such notice on the date the notice is actually received by him or five days after the date the notice is mailed, whichever occurs first.” Respondent complied with both of these statutory requirements for notice of the $15.00/month trash collection fee. In addition, Petitioners received actual notice of and agreed to pay the fee when they signed the second lease on December 22, 2017.

Therefore, Petitioners did not establish in Case No. 001 that Respondent violated the LTA by charging Petitioners a $15.00/month trash collection fee.

/ / / /

/ / / /

Case No. 002 (Ms. Sells’ Petition)

Ms. Sells did not appear at the duly noticed continued hearing or present any evidence to prosecute her petition or to establish that Respondent violated the LTA in any respect.

Case No. 004 (Failure to Open Pool and Clubhouse for Extended Hours)

A.R.S. § 33-1403 provides that supplementary principles of law are applicable to claims filed under the LTA and provides as follows:

Unless displaced by the provisions 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.

The LTA does not require a landlord to provide amenities such as a pool or clubhouse to tenants. If, as in this case, the rules and regulations provide that access to such amenities shall be included among the services provided in exchange for rent, the LTA does not specify how access to amenities shall be provided. Mr. Haney testified credibly that Respondent does not allow unrestricted access to the pool and clubhouse because, in the past, the pool and clubhouse have been vandalized and used by vagrants. Mr. Haney testified credibly that if a tenant requests access to the pool and clubhouse before or after posted hours, either he or the manager will provide such access. Petitioners did not allege or establish that they were ever denied reasonable access to use the pool or clubhouse.

Therefore, Petitioners did not establish in Case No. 004 that Respondent violated the LTA by keeping the pool and clubhouse open during the regular hours of between 9:00 a.m. and 5:00 p.m.

RECOMMENDED ORDER

Case No. 001

Based on the foregoing, it is recommended the Director of the Department of Housing dismiss Petitioners Shirley and Charles Bryfogle’s Petition in Case No. LTA 18-18/001 (OAH Case No. 18F-LTA1818001-ADH) against Respondent Carousel Ranch Mobile Home Park, LLC.

Case No. 002

Based on the foregoing, it is recommended the Director of the Department of Housing dismiss Petitioner Sally J. Sells et al.’s Petition in Case No. LTA 18-18/002 (OAH Case No. 18F-LTA1818002-ADH) against Respondent Carousel Ranch Mobile Home Park, LLC.

Case No. 001

Based on the foregoing, it is recommended the Director of the Department of Housing dismiss Petitioners Shirley and Charles Bryfogle’s petition in Case No. LTA 18-18/004 (OAH Case No. 18F-LTA1818004-ADH) against Respondent Carousel Ranch Mobile Home Park, LLC.

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 will be five days from the date of that certification.

Done this day, September 6, 2018.

/s/ Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Carol Ditmore, Director

Arizona Department of Housing