ALJDEC decisions subject to certification as final

19F-LTA1819002-ADH · Arizona State Department of Housing - LTA · 2019-08-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 2, 2019 APPEARANCES: Petitioner Higinia Tapia appeared, representing herself with the assistance of Spanish Interpreter Gabriela Contreras and her son, Roberto Herrera. Assistant Attorney General Valerie Marciano represented the Arizona Department of Housing. Melissa Parham, Esq., represented Respondent Catalina Village Mobile Home Park. ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn _____________________________________________________________________ FINDINGS OF FACT 1. Respondent Catalina Village Mobile Home Park (“Park”) is a mobile home community (“Park”) located at 1001 North 43rd Avenue in Phoenix, Arizona, 85009. 2. On or about August 3, 2018, Petitioner filed a Petition with the Arizona Department of Housing (“Department”).[1] Petitioner alleged that Respondent violated “rule 14,” which she indicated stated as follows: [R]esident shall maintain the premises in a clean and neat, safe and undamaged condition, and shall keep premises in as good condition as when he took possession and comply with all applicable provisions of city, county, and state codes. The Petition further indicated that, in May 2017, the park manager refused to repair the height of the trailer and that she was having issues with the water tubing and the air conditioner. The Petition indicated that “when [I] moved there the trailer was not mounted the appropriate way. It was [too] low…”[2] She also indicated that the trailer had “tipped over to one side again” and “is falling over again to the ground and the inside walls are cracking.” 3. Petitioner purchased the trailer in 2008; she has lived in the trailer for over ten years. The rental agreement provided with the Petition indicates that Petitioner pays a space rental fee. The rental agreement contains a provision #14 that states as follows: [R]esident shall maintain the Premises in a clean, neat, safe and undamaged condition, and shall keep premises in as good condition as when he took possession and comply with all applicable provisions of city, county, and state codes. 4. The Petition contains no allegation of a violation of any provision of the Arizona Mobile Home Parks Residential Landlord and Tenant Act (“LTA”), found at A.R.S. §§ 33-1401 through 33-1501. 5. Park filed a written answer to the Petition, arguing that there were no allegations of violations of the LTA and that there was no breach of any lease agreement between Petitioner and Park.[3] Park specified that Park had no obligation to re-level Petitioner’s trailer. Park’s position was that Petitioner has failed to state a claim over which the Department or Tribunal has any jurisdiction and that there can be no relief granted through the Department or by the Tribunal. 6. On November 5, 2018, the Department issued its Order To Dismiss, dismissing the case without prejudice, based on the failure of the Petition to allege a violation by Park of the LTA. 7. When Petitioner filed an appeal of the Order To Dismiss, the Department referred the matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an administrative hearing. The Department sent a Notice of Hearing dated February 12, 2019, to the parties.[4] 8. At hearing, Petitioner essentially argued that the home has tipped over to one side and along with water damage and cracked walls, she is suffering continued health issues due to the damage. Petitioner submitted photographs, Exhibits A through E, which were admitted to the hearing record. Petitioner requested payment for damage to her trailer and damages for her pain and suffering. 9. At hearing, Park argued that the Petition has not raised any claim that alleges a violation of the LTA and that the Department appropriately dismissed the matter. 10. At hearing, the Department argued that, pursuant to A.R.S. § 41-4062, the matter was appropriately dismissed. 11. The issue for determination by the Tribunal is whether the Department’s action to dismiss the Petition was appropriate and in conformity with the applicable law. CONCLUSIONS OF LAW 1. A.R.S. § 41-4062(A) provides that a person who is subject to the LTA, may file a petition with the Department “concerning violations” of the LTA (found at A.R.S. §§ 33-1401 through 33-1501.) Once the Department receives a petition, it must provide notice to the park for a response to the petition, including any reasons why the petition should be dismissed. 2. The Department has jurisdiction to determine whether Respondent violated the LTA based on the allegations contained in Petitioner’s Petition.[5] A.R.S. § 41-4062(D) provides that the Department shall promptly review filed petitions and, “if justified,” refer the petition to the Tribunal for an administrative hearing on the allegations. 3. The hearing record failed to evidence any allegation within the Petition of a violation of LTA by Park. Therefore, the hearing record demonstrates that the Department appropriately dismissed Petitioner’s Petition as failing to make a claim regarding a violation of the LTA.

4. Petitioner bears the burden of proof to establish that the Department inappropriately dismissed the Petition; the standard is by a preponderance of the evidence.[6] 5. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.[7] 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.”[8] 6. In this case, the Administrative Law Judge concludes that Petitioner has failed to demonstrate that the Department acted inappropriately or not in compliance with statute when the Department dismissed the Petition. Whether Petitioner has any other avenue for redress of her stated issues is not known. Therefore, the Department’s Order To Dismiss shall be upheld and Petitioner’s appeal shall be dismissed. RECOMMENDED ORDER IT IS ORDERED 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, August 21, 2019.

/s/ Kay Abramsohn Administrative Law Judge

Transmitted electronically to:

Carol Ditmore, Director Arizona Department of Housing ----------------------- [1] See Exhibit 1. [2] The hearing record appears to indicate that Petitioner purchased a trailer and had it moved to Park; she made statements that would lead one to presume that was the case, such as: the “ground” not having been ready and the “land” needing to have “blocks and towers to protect the trailer.” No party provided or presented supporting evidence in this regard. [3] See Exhibit 3 (Response) and Exhibit 4 (Motion to Dismiss). [4] The Department’s Exhibits were admitted to the hearing record. [5] See A.R.S. §§ 41-4061 et seq. [6] See A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, Ariz. 369, 372, 249 P.2d 837 (1952). [7] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [8] 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