ALJDEC decisions subject to certification as final

18F-LTA1819009-ADH · Arizona State Department of Housing - LTA · 2019-08-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 15, 2019 APPEARANCES: Petitioners James Stenson and Barbara Stenson appeared on their own behalf. Scott Baluha appeared on behalf of Respondent S.C. Townhouse Mobile Estates, et al. ADMINISTRATIVE LAW JUDGE: Antara Nath Rivera _____________________________________________________________________ FINDINGS OF FACT 1. Respondent is a mobile home park in the state of Arizona. Petitioners are tenants of the park. 2. On or about November 29, 2018, Petitioners filed a Petition For Hearing By The Mobile Home Parks Administrative Law Judge (Petition) in which they alleged a violation of the Arizona Mobile Home Residential Landlord Tenant Act, A.R.S. § 33-1434 (Act). Exhibit 3 3. In its answer, Respondent denied all claims in the petition. 4. Petitioners alleged that Respondent violated the Act when Respondent failed to maintain fit premises. In their Petition, Petitioners alleged that they notified Respondent of issues regarding a sinking electrical box located on their property. The electrical box began sinking due to flooding on their property as well as the property behind them. Petitioners stated that the flooding also caused damage to the foundation of their mobile home. 5. Additionally, Petitioners indicated that while Respondent acknowledged that the issue had to be rectified, Respondent blamed Petitioners for the flooding. According to the Petition, Respondent refused to communicate with Petitioners to address or fix any issues. 6. At hearing, Petitioners testified that they resided on lot #162 for ten years. On or about October 23, 2018, there was a heavy rainfall. After that rainfall, Petitioners experienced flooding on their property. Petitioners documented this by taking photographs of their flooded property. Exhibit 2 7. Petitioners stated that they did not experience any flooding until Respondent altered the landscape, on the neighboring lot, when it laid additional rocks. Petitioners stated that this alteration caused the water to flow on to their property instead of away from their property. Petitioners testified that the flooding caused the electrical box on their property to sink. Petitioners stated that they addressed these issues with Hank Senseman Jr., the son of the president of S.C. Townhouse Mobile Estates, who informed them that he would fix the issues if Petitioners dropped the case. 8. Petitioners stated that on or about November 6, 2018, they, themselves, repaired the damage to their foundation caused by the flood. Petitioners stated that they made numerous attempts to resolve the issues with Respondent to no avail. Petitioners stated that they contacted Dave Shrek (Mr. Shrek), an employee of Respondent, and contacted the city of Peoria, to discuss how the issues could be resolved. 9. Petitioners testified that on or about December 24, 2018, Respondent began to dig a trench between the properties of Petitioners and their neighbor. Petitioners stated that Respondent never completed the trench. 10. At hearing, Respondent’s witness, Cynthia Scott (Ms. Scott), Respondent’s park manager, testified that Petitioner brought her attention to the safety issue regarding the electrical box sometime in June 2018. Ms. Scott testified that she brought it to Henry Senseman’s (Mr. Senseman) attention on or about October 13, 2018. 11. At hearing, Mr. Senseman, president of the S.C. Townhouse Mobile Estates, testified. He acknowledged that even though APS came out to the property, after the flood, and said that there was no problem with the electrical box, he dug a trench around it for the safety of the community. Additionally, he stated that he did this to avoid damage to the electrical box. He further testified that the rocks were added by Respondent as Petitioners testified. 12. Mr. Senseman argued that Petitioners caused the flooding because Petitioners built a concrete patio in the backyard and sidewalks on the sides of the home. During their testimony, Petitioners acknowledged that they made these upgrades only after consulting with Mr. Shrek. Petitioners also testified that Mr. Senseman complimented Petitioners on the concrete patio and sidewalk. 13. Mr. Senseman argued that the property had not flooded in the 40 years he owned the mobile home park until Petitioner put in the concrete. Respondent did not provide any expert testimony to validate this argument and testified that it was his opinion that the cause of the flooding was the concrete. 14. Mr. Senseman further testified that Mr. Shrek works for Respondent and obtains consent for projects on the property depending on the circumstances. Mr. Senseman did not recall whether Mr. Shrek sought consent from Respondent for Petitioners’ concrete work. CONCLUSIONS OF LAW 1. The Arizona Department of Housing (Department) referred this case to the Arizona Office of Administrative Hearings, and this office has jurisdiction to hear and decide the petition pursuant to A.R.S. § 41- 4061 et seq. 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. §§ 33-1434). 3. Here, Petitioner alleged violations of the Act related to the failure to maintain fit premises. 4. A.R.S. § 33-1434 provides, in pertinent part, 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 the landlord. . . . . 7. (B) A mobile home park landlord shall not impose any conditions of rental or occupancy that restrict the mobile home owner in the mobile home owner's 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.

Emphasis added.

5. The uncontroverted evidence established that, on or about June 2018, Respondent was aware of issues with the electrical box. Respondent was also aware of flooding that occurred on Petitioners’ property on October 23, 2018. 6. Furthermore, Respondent laid additional rocks, on the property adjacent to lot #162, which caused flooding to Petitioners’ lot. This action resulted in the change in water flow towards Petitioners’ lot, thus causing damage to Petitioners’ foundation. 7. Petitioners presented sufficient evidence to establish that Respondent was in violation of the Act when it disregarded the issues and failed to maintain fit premises. By Mr. Senseman’s own admission, he dug a trench around the electrical box for the safety of the community after Petitioner brought it to Respondent’s attention. Moreover, Mr. Senseman began to dig a trench, on or about December 2018, but never finished it. These actions illustrated Respondent’s knowledge and understanding to maintain fit premises. 8. Thus, the Administrative Law Judge concludes that the preponderance of the evidence established Respondent failed to maintain fit premises for Petitioners. ORDER IT IS ORDERED that Petitioners’ claim against Respondent be upheld for failing to maintain fit premises, in violation of A.R.S. § 33-1434. IT IS FURTHER ORDERED that Petitioner’s claim against Respondent be upheld with respect to Respondent’s completion of the trench. IT IS FURTHER ORDERED that Respondent be required to reimburse to Petitioners their $50.00 filing fee. 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, July 31, 2019.

/s/ Antara Nath Rivera Administrative Law Judge

Transmitted electronically to:

Carol Ditmore, Arizona Department of Housing

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