ALJDEC decisions subject to certification as final

18F-LTA1819004-ADH · Arizona State Department of Housing - LTA · 2019-01-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 3, 2019, at 9:00 a.m. APPEARANCES: Koren M. Bautista (“Petitioner”) appeared on her own behalf; Country Club Park Mobile Home & RV (“Respondent”) appeared through Trevor Fish, Esq., Evans, Dove & Nelson, ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure 1. Respondent is an age-restricted mobile home park for persons over 55 located at 1855 West Wickenburg Way, Wickenburg, Arizona 85390. Respondent is recommended by the Wickenburg Chamber of Commerce and prides itself on providing upscale amenities and well-kept grounds to its tenants. 2. Petitioner moved into Space 100 in Respondent’s park on or about March 1, 2018.[1] At that time, Petitioner received a copy of Respondent’s Rules and Regulations.[2] 3. On or about October 4, 2018, Petitioner 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, Petitioner alleged that Respondent violated A.R.S. §§ 33-1410, 33-1412, 33- 1413, 33-1434, 33-1451, 13-1452, and 33-1471 by failing to enforce park rules and statutes against other tenants, especially Michael Stettler, who moved into Space 101, becoming Petitioner’s next-door neighbor. The gravamen of Petitioner’s petition was that Respondent failed to protect her right to quiet enjoyment. Petitioner attached to her petition a copy of her call for service to Wickenburg Police Department (“WPD”) on July 11 and 12, 2018, regarding Mr. Stettler’s alleged aggression toward her, peeping over her fence, screaming and pounding walls, and allowing his dog to run around the park off leash. 4. After Respondent filed a written answer denying any violation of the LTA, the Department referred the matter to the Office of Administrative Hearings, an independent state agency, for a consolidated evidentiary hearing. 5. A hearing was held on January 3, 2019. Petitioner appeared and testified on her own behalf. Respondent submitted eighteen exhibits and presented the testimony of three witnesses: (1) Charles Keith, the managing member of the entity that owns the park, which oversees its management; (2) Mary (“Melissa”) Karnes, one of the on-site managers; and (3) Ernest Karnes, Mrs. Karnes’ husband, who is the other on- site manager. Mr. Stettler also testified, although he was not called by either party. Evidence Presented at the Hearing 6. Mr. Stettler moved into space 101 at Respondent’s park on or about March 1, 2018. Mr. Stettler has a comfort/therapy dog named Sammy. Petitioner also has comfort/therapy animals. 7. On or about July 11, 2018, Petitioner filed a Resident Objection Form with Respondent, complaining that Mr. Stettler was yelling loudly and that his dog was off-leash. 8. On July 12, 2018, Respondent issued to courtesy notice to Mr. Stettler, advising him to comply with Respondent’s bylaws, which prohibited loud parties, excessive volume, pounding on walls, or any other excessive noises that could be heard outside his home and having his dog off-leash. The courtesy notice gave Mr. Stettler seven days to cure the violation.[3] 9. On or about August 2, 2018, Petitioner filed another Resident Objection Form against Mr. Stettler with Respondent, alleging that he continued to get drunk and make excessive noise.[4] Respondent provided Mr. Stettler with a 14-day notice, stating that if he did not cure his violations of Respondent’s rules with seven days, he would be evicted.[5] 10. Mr. Keith testified that both Petitioner and Mr. Stettler are good tenants. They pay their rent on time and take care of their spaces. Mr. Keith testified that he and his brother, Peter, are hands- on and that residents have access both to Mr. Keith and his brother and to Mr. and Mrs. Karnes, the on- site managers. Mr. Keith testified that his and his brother’s company manage more than 2,000 spaces in several states. 11. Mr. Keith testified he and his brother spoke to Petitioner and Mr. Stettler on the telephone and then his brother Peter drove out to Wickenburg to speak at length to Mr. Stettler and to Petitioner. Mr. Keith testified that a lot of what Petitioner was complaining about had happened in the past. Although Petitioner continued to complain about Mr. Stettler, she continued to complain of past violations. It appeared that Mr. Settler had cured his violations of park rules. 12. Mr. Keith testified that he and Peter tried to mediate the dispute between Petitioner and Mr. Stettler, without success. 13. On August 20, 2018, and September 17, 2018, Petitioner filed Resident Objections Forms with Respondent against Mr. Stettler.[6] On September 18, 2018, Mr. Stettler filed a 4-page Resident Objection Form against Petitioner with Respondent, stating that she was trespassing on his property, yelling at him, photographing him, and continually calling the police on him.[7] 14. On or about September 28, 2018, Joy Dutcher, the owner of the unit on Lot 102, the neighbor on the other side of Mr. Stettler, filed a Resident Objection Form against Petitioner with Respondent, in relevant part as follows. I feel that the ongoing problems with space #100 has caused me to be uncomfortable in my own house. I am tired of the whole mess that is going on. It has escalated beyond the point that I am feeling harassed and it is affecting my life and also affecting my employment. She has come to my work and tried to talk to me about personal stuff and I told her that I want no part of this. I think her harassment against [Mr. Stettler] is “stalking.” [Mr. Stettler] does not cause problems. This has to STOP. I feel that space #100 should move.[8]

15. On October 8, 2018, Mr. Stettler filed a Resident Objection Form against Petitioner, stating that she was videotaping him and yelling at him.[9] 16. On October 8, 2018, Connie L. Thomas, the resident of space 46, sent a letter to Respondent, in relevant part as follows: I helped Mike Stettler and his dog Sammy move into space 101 last spring. Sammy is a very well mannered, no-aggressive dog. I mentioned to Mike that he needed to have Sammy on a leash whenever he was out of his yard and have not seen him off leash since. I see them around the park often. . . Mike on bike and Sammy in tow.. get a kick out of all the poopie bags tied to his leash. I am the go to pet setter in the park and a good judge of animals behaviors…. Sammy is a sweetheart as well as his master.[10]

Mr. Keith testified that Respondent did not solicit Ms. Thomas’ letter, although Mr. Stettler may have. 17. Mr. Keith testified that Petitioner had called the WPD more than 30 times about Mr. Stettler and that Mr. Stettler had called WPD twice about Petitioner. 18. On December 18, 2018, Ms. Dutcher wrote a letter to Respondent’s management about Petitioner, in relevant part as follows: Yesterday 12-17-18 the police were here AGAIN. [Petitioner] was yelling at [Mr. Stettler] about his dog barking. Sammi barks on several different occasions. When [Mr. Stettler] starts to get on his bicycle is “1” of those times. [Mr. Stettler] has lived here for 8-9 months. He rides his bike a lot. Sammi barks several times when [Mr. Stettler] first gets on his bike. This is part of an Australian Shepherd’s breed. Sammi “herds.” Why was a call made yesterday and not any other time that Mike gets on his bike. Mike is on a public street. This is Bull____!!

Somethings needs to be done about [Petitioner]!!

19. Petitioner testified that she had a special relationship with the Chief of WPD and that he has an “open-door” policy, at least where she is concerned. Petitioner testified that she made a complaint against a WPD officer who did not follow regulations in his interaction with Petitioner. Petitioner testified that she was only doing what the Chief told her to do when she filed complaints against Mr. Stettler and the petition against Respondent for its alleged failure to act on her complaints. 20. Mr. Keith testified that he spoke at length to Mr. Stettler and that Mr. Stettler said that he had filed suit in civil court against Petitioner for allegedly pulling up his rose bush. Mr. Stettler testified that he had a witness who had testified to Petitioner’s alleged vandalism, that a trial had been held and the court had taken the matter under advisement, but that no judgment had been issued as of the date of the hearing. 21. Mr. Keith testified that he learned on December 20, 2018, that both Mr. Stettler and Petitioner had been charged with criminal harassment but that neither charge has been adjudicated. 22. Petitioner testified that she had obtained an order of protection against Mr. Stettler. 23. Mr. Keith testified that, in the past, he has evicted tenants for rules violations, especially for non- payment of rent. Mr. Keith testified that the criminal charges provide cause to evict both Petitioner and Mr. Stettler, but that Respondent is awaiting the outcome of the civil suit or the criminal charges before issuing a notice of termination against either or both tenants. 24. Respondent submitted photographs that showed the good condition of the park, its monuments, and its streets. Mr. and Mrs. Karnes testified that they are available during office hours and available to take tenant complaints about emergencies 24 hours a day. Mr. Karnes works to maintain the park. It also employs maintenance and landscaping contractors. 25. Complainant did not make any complaints about the condition of the park, only its alleged failure to act on her complaints against Mr. Stettler. Complainant felt that Ms. Dutcher and Ms. Thomas were ganging up on her and were part of a gang mentality at Respondent’s mobile home park and that Respondent should do something to protect her feelings. 26. Mr. Stettler brought his therapy/comfort dog, Sammy, to the hearing. Sammy appeared to sleep throughout the hearing. CONCLUSIONS OF LAW 1. The Department has jurisdiction to determine whether Respondent violated the LTA in the ways alleged in Petitioner’s petition.[11] 2. Petitioner bears the burden of proof to establish that Respondent violated the LTA in the manner alleged in her petition 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] 4. Mr. Stettler and Petitioner have made various complaints against each other and other tenants in Respondent’s park have become involved in their dispute. Mr. Stettler’s and Petitioner’s dispute has become the subject of at least one civil lawsuit and two criminal prosecutions. Respondent issued a notice of violation to Mr. Stettler the day after Petitioner’s first complaint and, when Petitioner continued to complain, issued a notice of termination. Respondent subsequently appropriately conducted an investigation and determined that Mr. Stettler had cured Petitioner’s items of complaint. Respondent is a mobile home park, not a police, investigative, or security agency. Although Petitioner’s ongoing dispute with Mr. Stettler is unfortunate, it does not appear that there is anything more that Respondent can or should do at this time, pending the outcome of the civil and criminal complaints. 5. A.R.S. § 1410 provides that “[e]very duty under this chapter and every act which must be performed as a condition precedent to the exercise of a right or remedy under this chapter imposes an obligation of good faith in its performance or enforcement.” Petitioner did not establish that Respondent failed to perform in good faith any duty that it owed her under the LTA. 6. A.R.S. § 33-1412 concerns notice. In a “he said,” “she said” situation such as this one, Respondent appropriately provided a courtesy notice of violation and notice of termination to Mr. Stettler and notice of its investigations to Mr. Stettler and Petitioner. Petitioner did not establish that Respondent violated A.R.S. § 33- 1412. 7. A.R.S. § 33-1413 requires landlords to include certain terms in their rental agreements with tenants. Petitioner did not allege or prove that Respondent omitted any of these terms from her rental agreement. 8. A.R.S. § 33-1434 requires landlords to maintain fit premises by performing physical maintenance and ensuring that plumbing, electrical, and mechanical systems perform as intended. Petitioner did not allege or prove that Respondent failed to maintain fit premises at the park. 9. A.R.S. § 33-1451(A)(5) provides that a tenant of a mobile home park must “[c]onduct himself and require other persons on the premises with the tenant's consent to conduct themselves in a manner that will not disturb the tenant's neighbors' peaceful enjoyment of the premises.” Although Petitioner alleges that Mr. Stettler disturbed her right to quiet enjoyment, he and other tenants accused her of cursing, yelling, and disturbing their quiet enjoyment. On the evidence that was presented at the hearing, the Administrative Law Judge cannot resolve the issue of who was disturbing whom, especially since Petitioner seems to have embarked on a concerted mission against Mr. Stettler. Respondent’s decision to wait until WPD resolved the competing criminal complaints before evicting Petitioner and/or Mr. Stettler does not appear unreasonable. Petitioner did not establish that Respondent violated A.R.S. § 33-1451. 10. A.R.S. § 33-1452 required Respondent to adopt rules and regulations to protect the convenience, safety, and welfare of its tenants. Respondent submitted its rules and regulated. Petitioner did not allege or prove that Respondent’s rules and regulations were inadequate. Although she alleged that Respondent unfairly or unevenly enforced the rules and regulations because it found that Mr. Stettler had cured his violations, she did not prove such unfair or uneven enforcement. 11. A.R.S. § 33-1471 allows a tenant to terminate a rental agreement after providing written notice to a landlord of its material violations of the LTA. Because Petitioner did not allege or establish that she provided any written notice to Respondent of material violations of the LTA, she did not establish that Respondent violated A.R.S. § 33- 1471. RECOMMENDED ORDER Based on the foregoing, it is recommended the Director of the Department of Housing dismiss Petitioner Koren W. Bautista’s Petition in Case No. LTA 18-19/004 (OAH Case No. 18F-LTA1819004-ADH) against Respondent Country Club Park Mobile Home/RV. 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, January 16, 2019.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Carol Ditmore, Director Arizona Department of Housing ----------------------- [1] See Exhibit A (Petitioner’s Rental Agreement). [2] See Exhibit B. [3] See Respondent’s Exhibit C. [4] See Exhibit E. [5] See Exhibit D. [6] See Exhibits E and F. [7] See Exhibit J. [8] Exhibit K. [9] See Exhibit L. [10] Exhibit I. [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