ALJDEC decisions subject to certification as final

18F-LTA1819003-ADH · Arizona State Department of Housing - LTA · 2019-03-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 19, 2019 APPEARANCES: Carolyn Taylor (“Petitioner”) appeared on her own behalf. Fountain East Mobile Home Community (“Respondent”) was represented by Douglas N. Nelson, Esq., Evans, Dove & Nelson, Fish & Grier, PLC. ADMINISTRATIVE LAW JUDGE: Kay Abramsohn _____________________________________________________________________

FINDINGS OF FACT 1. Respondent is a mobile home community located at 303 S. Recker Rd., Mesa, Arizona 85206. 2. On or about September 17, 2018, Petitioner filed a Petition with the Arizona Department of Housing (“Department”) alleging that Respondent violated the Arizona Mobile Home Parks Residential Landlord and Tenant Act, A.R.S. §§ 33-1401 through 33-1501 (“LTA”). Specifically, Petitioner alleged that Respondent violated Arizona Revised Statutes (“A.R.S.”) §§ 33-1409(9), 33-1411(B), 33-1432(A), 33- 1434, 33-1437, 33-1452(D), and 33-1452(F) through various actions and failures. 3. The Department assigned Case No. LTA 18-19/003 to Petitioner’s Petition. 4. After Respondent filed a written answer, the Department referred the matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing. On or about May 22, 2018, the Department sent a Notice of Hearing to the parties. 5. Petitioner submitted one exhibit with 52 pages and presented her own testimony. Respondent submitted eleven exhibits and presented the testimony of Mr. J.P. “Pani” Loelu, the current manager.[1] 6. On June 12, 2014, Petitioner signed her month-to- month initial lease agreement with Respondent. See Exhibit 1 at 9-17. The terms of the lease indicate that Petitioner has received copies of the park’s Rules and Regulations. The lease disclosed the monthly rent, noted that there would be utility, trash removal, and sewer charges.[2] Allegation #1 7. Petitioner alleged that the ownership and emergency contact information was not posted, in violation of A.R.S. §§ 33-1432(A) 33-1452(F).[3] 8. At hearing, Petitioner conceded this issue. Allegation #2 9. Petitioner alleged that the manager certification of completion of required educational seminars was not completed and posted within 6 months, in violation of A.R.S. § 33-1409(9) and 33-1437.[4] 10. At hearing, Mr. Loelu indicated that his employer required that he take the classes offered by Manufactured Housing Communities of Arizona, that he was not employed until February 2018 and, therefore, missed taking the January 2018 class with the result that he could not take the class until it was next offered. Mr. Loelu completed the program in December 2018 and the certificate was posted sometime in January 2019. See Exhibit D and Exhibit L-1. 11. At hearing, Petitioner conceded this issue. Allegation #3 12. Petitioner alleged that a visitor’s car was towed at 11:00 p.m., and she believed that this was not within the restricted “overnight” hours from 11:00 p.m. to 5:00 a.m., but there had not been any 30-day notification of changes in the rules mailed or hand delivered to the residents by Respondent; she alleged violation of A.R.S. § 33-1452(D) arguing that changes to the rules had to be issued appropriately and that the changes were made without notification.

13. At hearing, Mr. Loelu testified that the particular referenced tow was made due to the car being parked on the sidewalk and not as to the time of day. Mr. Loelu indicated that there was no change in the park’s Rules and Regulations and that the President of the Resident Association had coordinated the residents’ requests to change the overnight time period to 2:00 a.m. to 5:00 a.m. and the President herself had posted the changes. See Exhibit L-2. Respondent has no issue with the parking restricted- hour changes the residents had agreed upon and indicated that Respondent will abide by those hours with respect to cars’ restrictions. Allegation #4 14. Petitioner alleged that a Southwest Gas bill had not been paid from April to June which resulted in the clubhouse, laundry, etc. being “shut down” for ten (10) days in July 2018, specifically, over July 4th. Petitioner alleged a violation of A.R.S. § 33-1434. Her concern was that there was a lack of solid management practices in paying bills.[5] 15. In the clubhouse, the kitchen stove is gas-powered. 16. At hearing, Mr. Loelu testified about the gas lines being out of commission to spaces #195, 196, 197, 198 and 199, while repairs were being made to the lines, and that typically an outage lasted only one or two days.[6] He also indicated that lines were being tested for one or two days and another time for three days when the repair work on the ancillary lines required the main gas line to be shut down.[7] Mr. Loelu noted that the clubhouse was open and available for use during those times and only the stove was affected. Allegation #5 17. Petitioner alleged that the manager did not live on the premises and that multiple other people lived there, including children, in violation of A.R.S. § 33-1452(A)(3). She noted that there were a lot of visitors and that she did not see his vehicle parked there at night.[8] 18. At hearing, Mr. Loelu testified that he does live onsite, that they have two vehicles, and that, often, his wife would be driving his vehicle. He noted that family comes to visit and that those family members live elsewhere and not in any of the homes onsite. He further noted that, as a manager, one of the exceptions to the rules would be if he had children, they could live there. Allegation #6 19. Petitioner alleged that the trimming of the palm trees had been completed and that the residents were in jeopardy of being hit by flying debris; she alleged violation of A.R.S. § 33-1434. She provided a copy of the $13,000.00 bill (stamped, paid June 28, 2018) for the tree trimming, showing that the trees were trimmed but not skinned. See Exhibit 1 at 5.

20. At hearing, Petitioner conceded this issue, stating that the work was “finished last week.” Allegation #7 21. Petitioner alleged that her lease did not contain a list of the rent amounts and increases over the previous last three years in violation of A.R.S. § 33-1432. Petitioner had recently signed her third lease; the second lease was signed on June 30, 2017.[9] 22. At hearing, Respondent noted that A.R.S. § 33- 1432(A)(4) only required such information to be included in initial leases for prospective tenants and was not required to be included in renewal leases. Respondent believed that there was a separate statement provided to prospective tenants as to prior rents and increases.[10] Respondent questioned why Petitioner would have waited until 2018 to raise an issue as to a 2014 lease form. Respondent noted that the lease form itself had also changed since 2014. CONCLUSIONS OF LAW 1. The Department has jurisdiction to determine whether Respondent violated the LTA in the actions or inactions alleged in Petitioner’s Petition.[11] 2. Petitioner beard the burden of proof to establish that Respondent violated the LTA in the manner alleged in the Petitions, and that standard is by a preponderance of the evidence.[12] Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.[13] 3. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.[14] 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.”[15] Allegation #3 4. Petitioner has failed to demonstrate that, under its authority to promulgate rules and to make any changes to the park’s Rule and Regulations, Respondent had made any changes to the overnight parking restriction hours. The hearing record demonstrated the Residents Association had requested Respondent to agree to different “overnight” hours and Respondent had deferred to that request. Therefore, Petitioner did not establish that Respondent violated the LTA in this regard. Allegation #4 5. Petitioner has failed to demonstrate that Respondent failed to pay its bills with regard to the gas utility. The hearing record demonstrated that the outages were as to repairs and testing of new gas lines, that the clubhouse was not “shut down” for ten days, and that only the kitchen stove was affected while the new main gas line was being tested. Therefore, Petitioner did not establish that Respondent violated the LTA in this regard. Allegation #5 6. Petitioner has failed to demonstrate with any credible evidence that Me. Loelu does not live onsite in the community. Mr. Loelu credibly testified under oath that he and his wife live onsite in the community. Therefore, Petitioner did not establish that Respondent or Mr. Loelu is in violation of the LTA in this regard. Allegation #7 7. Petitioner has failed to demonstrate with any supporting evidence that the lease agreement itself was required to contain within it a list or chart of three years of rent and increases. While Petitioner’s 2014 lease does not contain a list of the previous three years’ rent and increases, A.R.S. § 33-1432(A)(4) only requires that the landlord “disclose” to a prospective tenant “on an initial rental agreement, a written statement” that shows rent and increases as to “basic space rent” over the three years. There simply is no information available as to 2014 and, in 2017, at the time of her “second” lease, such a statement was not required. Petitioner had no further information regarding the basic space rent and any increases over the years. Therefore, Petitioner did not establish that Respondent or Mr. Loelu is in violation of the LTA in this regard. RECOMMENDED ORDER Based on the foregoing, it is recommended the Director of the Department of Housing dismiss Petitioner’s Petition against Respondent. 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, March 11, 2019.

/s/ Kay Abramsohn Administrative Law Judge

Transmitted electronically to:

Carol Ditmore, Director Arizona Department of Housing ----------------------- [1] Mr. Loelu has been the manager since February of 2018. [2] See Respondent’s Exhibit 1. [3] A.R.S. § 33-1409 is an incorrect citation as to the allegation. [4] Throughout the rest of the Petition, the citations are not necessarily accurate. [5] At hearing, she complained that the menu for the July 4th event could have been changed had they been notified that the gas stove would be out of commission on that day. [6] The repair work was done on 198 and 199 while those spaces were empty; old lines were removed and new lines were put in place. [7] The main gas line being out did affect the gas to the clubhouse stove.

[8] At hearing, she argued that the manager’s address should be on this driver’s license. [9] The hearing record does not contain a copy of the third lease, but does contain a copy of the second lease. See Exhibit B. [10] At hearing, Petitioner noted that she had no way to prove or disprove there had been a separate statement given to her in 2014 and stated that she had provided all the information she had from 2014. [11] See A.R.S. §§ 41-4061 et seq. [12] See A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [13] See A.A.C. R2-19-119(B)(2). [14] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [15] Black’s Law Dictionary at page 1220 (8th ed. 1999).

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Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826