ALJDEC decisions subject to certification as final

19F-LTA1919003-ADH · Arizona State Department of Housing - LTA · 2019-06-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 31, 2019, at 8:30 a.m. APPEARANCES: Christine Petrulla (“Petitioner”) appeared on her own behalf; Rancho Mirage (“Respondent”) was represented by James J. Parks, Esq., Jaffe, Raitt, Heuer & Weiss.[1] ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure 1. Respondent is an age-restricted mobile home park located at 2400 E. Baseline Ave. in Apache Junction, Arizona that only rents to tenants who are over 55 years old. Some of the tenants are seasonal residents who live elsewhere during the summer months. 2. Petitioner and her husband, AeDee Latten, II, own a manufactured home in and are year-round residents of Respondent’s mobile home park. 3. On or about February 19, 2019, 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. § 33-1491(A)(1) by retaliating against Petitioner after she made complaints to a government agency that was charged with responsibility for enforcement of a building or housing code of a violation applicable to the premises that materially affected her health and safety. 4. After Respondent filed a written answer to Petitioner’s petition, denying any violation of the LTA, the Department referred the matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing. 5. A hearing was held on May 31, 2019. Petitioner submitted three exhibits, cross-examined Marta Alegria, Respondent’s current community manager, and Jodi Munroe, who had worked for HUD for 15 years, both of whom she had subpoenaed to attend the hearing, presented the testimony of Mr. Latten, her husband, and testified on her own behalf. Respondent submitted five exhibits and presented the testimony of Melanie Briggs, Respondent’s former community manager who currently is the regional vice president of Sun, Respondent’s parent organization. Evidence Presented at the Hearing 6. Petitioner and Mr. Latten moved into Respondent Mobile Home Park in 2014. Petitioner and Mr. Latten occupy Space 87 of the park. Petitioner has medical conditions that disable her and cause her to be very sensitive. She also has PTSD that excessive noise makes worse. Mr. Latten retired as a major with the armed forces and, then, became a school teacher. He retired from being a school teacher early to look after Petitioner. 7. Spaces are not large in Respondent Mobile Home Park and, like most mobile home parks, homes are close together. The February 18, 2015 14/30 Day Notice 8. On or about February 18, 2015, Petitioner and Mr. Latten’s next-door neighbors at Space 86 were having a card party on their patio during the afternoon. Petitioner was trying to rest and thought that the neighbors were being too loud. 9. Petitioner called Ms. Briggs, who at that time was the community manager, to make a complaint about the noise. 10. Ms. Briggs testified that she always investigates complaints. Ms. Briggs testified went to Space 86 and stopped at the front side and listened, but did not hear any noise. Ms. Briggs testified that she knocked at the door of the home at Space 86 and spoke to Mary Anne Isaacson. Ms. Briggs testified that Ms. Isaacson had visitors and that her dog barked a couple of times, then calmed down. Ms. Briggs testified that she told Ms. Isaacson that she had received a complaint about noise coming from Ms. Isaacson’s home and that, although Ms. Briggs did not hear excessive noise, she urged Ms. Isaacson to be considerate of her neighbors. 11. Ms. Briggs returned to her office. She then received a call from Ms. Isaacson reporting that Petitioner had her radio in the window blasting noise into the neighborhood. 12. Ms. Briggs testified that she walked back to the street side of Space 86 and heard a radio blaring, “You’re going to Hell,” and so on. She walked back to Petitioner’s space and saw that she had put her radio in the window, against the screen facing the patio, and had turned it up as loud as it would go on a religious station. 13. Petitioner testified that, when she complained, Ms. Briggs told her that she had moved to “party central” and that she would have to get used to it. 14. Ms. Briggs denied telling Petitioner that she could not made legitimate complaints about excessive noise. Ms. Briggs testified that she went back to the office and called Respondent’s regional vice president and attorney, who agreed that Petitioner’s conduct warranted a Notice of Noncompliance with the Rental Agreement informing Petitioner that if she failed to remedy the breach with 14 days, her right to occupancy would terminate in 30 days and she would have to vacate the premises (“14/30 Day Notice”). 15. On February 18, 2015, Ms. Briggs on behalf of Respondent hand-delivered and sent via certified mail a 14/30 Day Notice to Petitioner and Mr. Latten, informing them of their breach of the rental agreement, in relevant part as follows: Disturbing the quiet enjoyment of other residents by playing music at such a volume as to be heard from other homes. Please keep your music at a level [conducive] to community living so as not to infringe on [others’] quiet enjoyment of their homes per Rancho Mirage community guidelines, resident’s Section 6 B.[2]

16. Petitioner wrote on the 14/30 Day Notice that she signed that she was “[t]rying to drown them out with prayer channel.”[3] Petitioner stated that her neighbors should have received a 14/30 Day Notice as well for their loud party. Petitioner denied placing the radio in the window and turning it to face the screen and her neighbor’s carport. She testified that she only turned the radio on loud enough to drown out her neighbors’ noise. 17. Petitioner and Mr. Latten were not evicted and, over the next four years, she did not receive any more 14/30 Day Notices from Respondent. Respondent’s April 27, 2016 Attorney’s Letter 18. Petitioner did not dispute that she called the Apache Junction Police Department (“AJPD”) to complain that her neighbors were making excessive noise and violating the Pinal County Noise Ordinance. Complainant also did not dispute that she continued to complain to Respondent about her neighbors. 19. Ms. Briggs testified that none of Petitioner’s calls to AJPD resulted in anyone being arrested, cited, charged with, or convicted of any violation or crime.

20. Ms. Briggs testified that the Pinal County Noise Ordinance did not apply to Respondent because it is located in an incorporated area and the Pinal County Noise Ordinance only applies in unincorporated areas of Pinal County.[4] 21. Petitioner testified that AJPD officers told her that she should call police about her neighbors making too much noise. Petitioner submitted AJPD Report No. [number redacted], regarding a complaint/inquiry that Complainant made on April 29, 2019, whose narrative provided in relevant part: In ref to park manager telling RP that the Noise Ordinance does not apply to the park due to it being a private park. . . . .

RP req documentation and speak to officer in ref to noise law in the park.

4/25/2019 5:00:16 PM, Performed By; SABO, Chris

R/P had questions about whether or not the residents of the park were subject to state law and city code in regards to noise violations. The manager of the Park had been telling the residents that the Park is exempt from State law and City Noise Ordinances because it is private property.

The R/P was advised that the manager was wrong as all persons are subject to state law and city ordinances regardless of the status of the property resided upon.[5]

22. Ms. Briggs testified that at least three of Petitioner’s neighbors, including Ms. Isaacson, moved out of the park to avoid dealing with Petitioner and her complaints to AJPD. 23. On April 27, 2016, Respondent’s local attorney, Melissa A. Parham of Williams, Zinman & Parham PC, sent a letter to Complainant and Mr. Latten that stated in relevant part as follows: I am writing to you regarding complaints you have made to Park management about your neighbors. Your unfounded, false complaints and your harassment of your neighbors must cease immediately.

Within the past few months, you have made numerous complaints to management about neighboring tenants. Your primary complaint has been that your neighbors are excessively noisy and have loud parties that disturb you. When you have complained, however, the Park has sent employees to your neighbors’ homes to investigate, only to determine that your complaints are unfounded and false. Notably, you behaved similarly in 2014, at which time you repeatedly called the police regarding noise that the same neighbors were allegedly making. At that time, the police visited the Park numerous times but did not issue any citations, warnings, or arrests. Your claims constitute harassment of your neighbors and your false claims must cease immediately.

Where your neighboring tenants are not actually violating the Park’s Community Guidelines or disturbing the peaceful enjoyment of the Park by other residents, the Park cannot take any action against them. In order to take action against a tenant, the Park must have verified information that the tenant has violated the Park rules. Speculation or untrue accusations made by another tenant are not sufficient.

When you signed your lease, you agreed to abide by the Park’s Community Guidelines (the “Guidelines”). Section 4(B) of the Guidelines states, in relevant part, “The submission of an unjustified complaint, acts of harassment . . . may be considered a material violation of the terms of tenancy and can result in the issuance of a legal Violation or Termination notice.” Additionally, Section 6(D) of the Guidelines states that “language or conduct that . . . harasses . . . or interferes with the peaceful enjoyment of the Community by others” is prohibited, as is “the filing or reporting of an unjustified, annoying or frivolous complaint.”

Your repeated calls to Park management about your neighbors constitute harassment of your neighbors, in violation of the Guidelines. Additionally, as Park management has never found your neighbors to be excessively noisy or disturbing, you have repeatedly reported unjustified, annoying, and frivolous complaints against your neighbors. This conduct is unacceptable and must stop immediately. Notably, no other tenants have made noise complaints about your neighbors.

If you make another complaint regarding your neighbors that is determined to be unfounded or frivolous, the Park intends to serve you with a notice termination your tenancy. This is a very serious matter, and your refusal to comply with the Guidelines could ultimately result in your loss of your mobile home.[6]

24. Ms. Briggs testified that Respondent’s attorney wrote the letter after AJPD told Respondent that it could not continue to allow Petitioner to make numerous calls to AJPD about her neighbors. Ms. Briggs testified that she gathered the police reports of all Petitioner’s calls to AJPD and provided them to Respondent’s local attorney. Ms. Briggs testified that the intent of the April 27, 2016 letter was to maintain peace in the park by stopping Petitioner from calling police if her neighbors were just playing cards and there was no violation of applicable codes. 25. Petitioner testified that she did not see the April 27, 2016 letter until after she filed the petition with the Department. Petitioner stated that the letter threatened to evict her if she called the police, in violation of A.R.S. § 33-1491(A). 26. Petitioner continued to call AJPD and Respondent with complaints about her neighbors making what she considered to be excessive noise. Petitioner did not receive a 14/30 Day Notice after she made any of her complaints to AJPD or Respondent about her neighbors and was not evicted from the park. Petitioner’s 2018 Complaint about Neighbor’s Dog 27. On or about September 20, 2018, Petitioner and Mr. Latten filed a Resident Communication Form with Respondent, making the following complaint about her neighbor: Dog barking continuously. Marlene’s son’s dog. She is in #9. The son is well aware of this nuisance and he keeps bringing his dog who has been barking continuously since he arrived today.

Resolution: According to Officer Sheahan – Code ALJ Municipal Code Public Nuisance . . . .[7]

Petitioner testified that Ms. Briggs unethically added the dog to her neighbor’s lease to resolve the issue. 28. Ms. Briggs testified that, after she received Petitioner’s and Mr. Latten’s complaint, she drove her golf cart over to her neighbor’s house. She sat outside in the golf cart for approximately 20 minutes. Ms. Briggs testified that the dog was not barking incessantly, only when someone came by the house. Ms. Briggs testified that Petitioner had called animal control, which came out and determined that the dog did not violate applicable nuisance law. 29. On or about September 24, 2018, Ms. Briggs wrote the following letter to Petitioner’s neighbor, Marlene Unger: This letter is in response to a written complaint we received regarding your son’s barking dog. [Petitioner] called me last Thursday to complain and I was on the phone with her for at least ten minutes. I could hear the dog in the background the entire time. This is not acceptable.

Our rules state that residents must not allow visiting animals in the community. We were trying to be kind and allow you to “dog sit” if necessary, by letting you add the dog to your lease via a Pet Agreement. If the dog continues to be a problem, we will have no option but to revoke that privilege and enforce the original rules.[8]

30. Ms. Briggs testified that the Resident Communication Form was a new form at the time and that she was not familiar with the form. Ms. Briggs testified that, normally, she would not identify a complaining tenant to the subject of the complaint, but that the September 24, 2018 letter was written well after the September 20, 2018 complaint. Ms. Briggs testified that she was trying to take action on Petitioner’s behalf. Other Evidence 31. Mr. Latten testified that the Park is a hostile environment for Petitioner and that it breaks his heart to see his wife suffer. He and Petitioner just want to enjoy their home. Mr. Latten testified that, when Petitioner goes to the community pool, other residents make snide comments and look at Petitioner, saying, “That’s the one.” They have not gone to the pool since Ms. Briggs left the Park because they’re afraid what will happen. 32. Mr. Latten testified that, at a management meeting was held at the community center in February 2019, to discuss the applicable noise ordinance. Other residents of the park called Petitioner a “liar” and “the problem.” Mr. Latten testified that current management are telling people that they had to comply with the applicable noise ordinance. Mr. Latten acknowledged that management “stuck to their guns” and told the tenants who occupied Space #10 that they would have the leave the park if they continued to make excessive noise. 33. Petitioner testified that she does not trust Ms. Briggs to file 14/30 Day Notices against her neighbors when she makes valid complaints. 34. Mr. Latten testified that he and his wife have tried to sell their home, without success. Mr. Latten acknowledged that, at one point, Respondent offered to buy their home since they were so unhappy. 35. On October 29, 2018, Petitioner and Mr. Latten signed a contract with Respondent to sell their home for $92,000.00.[9] Petitioner testified that, because she and Mr. Latten cannot pack or move, they would need at least $150,000 to be made whole. She would also like to be compensated for the mental anguish that she feels Ms. Briggs and Respondent have caused her to suffer. 36. Ms. Briggs testified that she talked to Petitioner numerous times about her various noise complaints. Petitioner can go months without making a complaint but, then, Petitioner starts making complaints again, especially after seasonal residents start returning in the fall. Ms. Briggs denied ever making a face at Petitioner. She noted that, even when she found one of Petitioner’s complaints against one of her neighbors to be valid, Petitioner claimed mistreatment. Ms. Briggs testified that, although she has tried, she cannot please Petitioner. 37. Mr. Latten acknowledged that Respondent suggested mediation, but that Petitioner refused to engage in mediation unless Ms. Briggs was terminated. Instead of going to mediation, Petitioner elected to go to hearing. 38. Petitioner alleged that she had a grievance under the federal Fair Housing Act and stated that she would file a complaint with the appropriate federal agency. 39. Respondent’s attorney stated that it had spent over $20,000.00 defending against Petitioner’s various complaints. Respondent’s attorney request an award of $7,500 in attorney’s fees under A.R.S. § 33- 1408(C) and (D) against Petitioner so she would have “some skin in the game.” Respondent’s attorney represented that his client would waive collection of attorney’s fees if Petitioner would agree to settle her various claims and to move out of the Park. CONCLUSIONS OF LAW 1. The Department has jurisdiction to determine whether Respondent violated the LTA by violating A.R.S. § 33-1491(A), as alleged in Petitioner’s petition.[10] 2. Petitioner bears the burden of proof to establish the violation by a preponderance of the evidence.[11] Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.[12] 3. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.[13] 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.”[14] 4. A.R.S. § 33-1491(A) provides in relevant part as follows: Except as provided in this section, a landlord shall not retaliate by increasing rent or decreasing services or by bringing or threatening to bring an action for eviction after any of the following:

1. The tenant has complained to a governmental agency charged with responsibility for enforcement of a building or housing code of a violation applicable to the premises materially affecting health and safety.

5. The limitations period for a tenant to file an administrative complaint under the LTA is one year after the landlord violated the requirements of the LTA.[15] Because Petitioner did not file her petition with the Department until February 1, 2019, any claim that she may have had for Respondent’s alleged violation of the LTA based on Respondent’s February 18, 2015 14/30 Day Notice or April 27, 2016 attorney’s letter is time-barred. 6. Even if Petitioner’s various complaints were still actionable, she has not established that Respondent ever threatened to evict her based on her exercise of her right to make valid complaints “to a governmental agency charged with responsibility for enforcement of a building or housing code of a violation applicable to the premises material affecting health and safety.” “In applying a statute, . . . its words are to be given their ordinary meaning unless the legislature has offered its own definition of the words or it appears from the context that a special meaning was intended.”[16] The municipal noise ordinance is not a building or housing code. 7. Even if the municipal noise ordinance were a building or housing code, on February 18, 2015 Petitioner received a 14/30 Day Notice for her own violation, not for reporting another’s violation. Even if Petitioner had timely asserted her claim, Respondent’s February 18, 2015 14/30 Day Notice to Petitioner did not violate A.R.S. § 33- 1491(A)(1). 8. Moreover, none of Petitioner’s numerous calls to AJPD resulted in anyone being arrested, charged, or convicted. The AJPD’s decision not to cite Petitioner for her excessive use of police resources to serve her personal agenda does not make her numerous complaints to AJPD against her neighbors valid or protected by the LTA. Even if Petitioner had timely asserted the claim, Respondent’s attorney’s April 26, 2016 letter did not violate A.R.S. § 33-1491(A)(1). 9. Unfortunately, although Petitioner and her husband may sincerely believe that she has been treated unjustly by Respondent, as well as by most of their neighbors, the real problems appears to be Petitioner’s hypersensitivity to sound, inability to recognize anyone else’s rights or points of view, and strong desire to profit from her unhappiness. The close confines of an age-restricted mobile home park appear to be utterly unsuited to Petitioner’s preferred lifestyle, but she refuses to move unless Respondent pay her an exorbitant amount to which she is not entitled. 10. A.R.S. § 33-1408 provides in relevant part as follows: C. In any contested action arising out of an agreement entered into pursuant to this chapter or for violation of any provisions of this chapter, the court may award the successful party reasonable attorney's fees. The award of reasonable attorney's fees shall be made to mitigate the burden of the expense of litigation to establish a just claim or a just defense. . . .

D. Treble damages may be awarded by the court in any contested action arising under this chapter upon clear and convincing evidence that the claim or defense constitutes harassment, is groundless and is not made in good faith. . . .

(Emphasis added.) 11. OAH and the Department are both part of the executive branch of government in Arizona. Under longstanding common law, an administrative hearing before OAH on a petition that a person has filed with a referring state agency is not an ”action” and OAH is not a “court” under the statutes contained Title 12 that authorize an award of attorney’s fees.[17] The Administrative Law Judge concludes that the same analysis of similar language in A.R.S. § 33-1408(C) and (D) precludes her from awarding Respondent its attorney’s fees for defending against Petitioner’s petition. RECOMMENDED ORDER Based on the foregoing, it is recommended the Director of the Department of Housing dismiss Petitioner Christine Petrulla’s Petition in Case No. LTA 19-19/003 (OAH Case No. 19F-LTA1919003-ADH) against Respondent Rancho Mirage. 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, June 17, 2019.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Carol Ditmore, Director Arizona Department of Housing ----------------------- [1] Mr. Parks’ firm is located in Southfield, Michigan. He was admitted Pro Hac Vice to represent Respondent in this matter. [2] Respondent’s Exhibit C. [3] Id. [4] See Respondent’s Exhibit E. [5] Petitioner’s Exhibit 22. [6] Respondent’s Exhibit A. [7] Petitioner’s Exhibit 21 [8] Petitioner’s Exhibit 20. [9] Respondent’s Exhibit D. [10] See A.R.S. §§ 41-4061 et seq. [11] 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). [12] See A.A.C. R2-19-119(B)(2). [13] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [14] Black’s Law Dictionary at page 1220 (8th ed. 1999). [15] See Guertin v. Dixon, 177 Ariz. 40, 44-45, 864 P.2d 1072, 1076-77 (App. 1993) (citing A.R.S. § 12-541(3)). [16] Mid Kansas Federal Savings and Loan Ass’n of Wichita v. Dynamic Development Corp., 167 Ariz. 122, 128, 804 P.2d 1310, 1316 (1991). [17] See Semple v. Tri-City Drywall, Inc., 172 Ariz. 608, 611-612, 838 P.2d 1369, 1372-73 (App. 1992) (application for award of attorney’s fees under A.R.S. § 12-341.01(A) in administrative hearing before Arizona Registrar of Contractors).

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