ALJDEC decisions subject to certification as final

20F-LTA2020002-ADH · Arizona State Department of Housing - LTA · 2020-08-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Kelly Gentsch,

Petitioner,

vs.

Rock House River Ranch, LLC, et al.

Respondent.

No. 20F-LTA2020002-ADH

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 12, 2020 at 1:00 PM.

APPEARANCES: Kelly Gentsch (“Petitioner”) appeared on her own behalf with Michael Gentsch as a witness. Trevor Fish, Esq. appeared on behalf of Rock House River Ranch, LLC (“Respondent”) with Carole Mace as a witness. Jael Mace observed.

ADMINISTRATIVE LAW JUDGE: Jenna Clark.

_____________________________________________________________________

Having heard the evidence and testimony and having considered the record in this matter, the undersigned Administrative Law Judge hereby makes the following Findings of Fact and Conclusions of Law and issues the following Recommended Order to the Director of the Arizona Department of Housing (“Department”).

Findings of Fact

Background and Procedure

Respondent is a Recreational Vehicle (“RV”) and Mobile Home Park (“Park”) located at 5728 N. AZ Hwy 288 Globe, Arizona 85001.

On December 31, 2019, the Department received a Complaint and Petition for Hearing (“Complaint and Petition”) by Petitioner, who alleged that Respondent committed 10 violations of the Arizona Mobile Home Residential Landlord and Tenant Act (“LTA”). Specifically, Petitioner alleged that Respondent violated Arizona Revised Statute (“Ariz. Rev. Stat.”) §§ 33-1407(B), 33-1407(C), 33-1413, 33-1452(I), 33-1452(J), 33-1452(F), 33-1472(I), 33-1476, 33-1482, and 33-1491.

On January 07, 2020, the Department issued a Notice of Petition to Respondent, whereby Respondent was instructed to provide a written response no later than January 27, 2020.

On January 27, 2020, Respondent submitted its Answer to the Department. In its Answer, Respondent denied all of Petitioner’s allegations.

On January 29, 2020, the Department provided Petitioner with a copy of Respondent’s Answer, whereby Petitioner was instructed to provide a written response by February 28, 2020.

On February 21, 2020, the Department received Petitioner’s Response and Request for Hearing.

On February 24, 2020, the Department referred this matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing on April 03, 2020. Per the March 04, 2020, Notice of Hearing the issue(s) to be determined are whether the Department has cause to discipline Respondent’s license based on Petitioner’s alleged statutory violations.

Hearing Evidence

Petitioner testified on her own behalf, called Michael Gentsch as a witness, and submitted 10 exhibits into the record. Respondent called Carol Mace, Park manager, as a witness and submitted 19 exhibits into the record. The Notice of Hearing and the Department’s agency file were also admitted into the record as their own exhibits. The substantive facts are as follows:

From 1981 until 2004, Petitioner was married to Christopher Mercer. From that marriage Petitioner had 3 children.

In 2006, Petitioner married Michael Gentsch.

Prior to July 2019, Mercer Trust owned the Park.

On July 24, 2018, Petitioner executed a rental agreement with Mercer Trust to lease space #11 through July 31, 2019. Petitioner’s rental agreement specifically provided that her landlord will rent Park space #11 for placement of her mobile home “while Tenant occupies the space(s).”

Mr. Mercer and Mr. Gentsch also had existing leases at the Park with Mercer Trust, for Park spaces #41-43 and #13 respectively, with the exact aforementioned contract language.

In April of 2019, Petitioner moved into Mr. Mercer’s RV, located on Park spaces #41-43 because her home at space #11 became inhabitable. At that time, Petitioner and Mr. Mercer entered into an informal rental agreement whereby she agreed to pay him half of the rent to stay there. Although Petitioner sometimes gave her share of Mr. Mercer’s rent directly to Mercer Trust, neither Petitioner, nor Mr. Mercer, nor Mercer Trust entered into a sub/lease agreement. Petitioner was never formally listed as an “occupant” for Park spaces #41-43.

On or about August 14, 2019, Respondent purchased the Park. At that time, all existing Park lease agreements, assets, and debts were transferred in the sale from Mercer Trust to Respondent.

On September 02, 2019, Mr. Mercer registered his 1981 Santa Fe Travel Trailer with Respondent.

On November 21, 2019, Mr. Mercer passed away. Petitioner did not immediately vacate Park spaces #41-43, in part, because her children, who had inherited Mr. Mercer’s trailer, granted her permission to use the trailer as her primary residence. None of Mr. Mercer’s and Petitioner’s children entered into a lease agreement with Respondent, either individually, collectively, or on behalf of Petitioner, for Park spaces #41-43 after Mr. Mercer passed away.

In December of 2019, Respondent would not accept rent from Petitioner for Park spaces #41-43.

On December 13, 2019, Petitioner agreed to tear down her trailer at space #11. Petitioner did not execute another lease agreement with Respondent for a different space.

Beginning December 13, 2019, the Park experienced days-long waves of electrical blackouts. On December 14, 2019, during an inspection of the Park’s main utility box, lines, and meters around the Park, Respondent discovered Petitioner’s use and possession of Park spaces #41-43. Due to the unsafe state of the meter for Park spaces #41-43, Respondent’s electrician refused to service it while the premises was occupied. On December 21, 2019, Petitioner purchased a generator which she used at Park spaces #41-31 through March 03, 2020, when electricity was restored to the home. It was not until December 23, 2019, however, that Respondent learned that Park spaces #41-43 did not have electricity, whereby Respondent began electrical repairs for those Park spaces.

On December 27, 2019, Respondent served Petitioner with a 5-Day Notice to Vacate.

On an unknown date, Petitioner filed a civil action against Respondent’s agent for alleged harassment. On April 06, 2020, the matter was dismissed without prejudice.

On April 18, 2020, Respondent served Petitioner with another 5-Day Notice to Vacate.

On April 18, 2020, Petitioner was served with 10/20 Day Notice of Noncompliance of the Arizona Mobile Home Parks Residential Landlord and Tenant Act Materially Affecting Health and Safety (“10/20 Day Notice”). Although the addition(s) at Park spaces #41-43 had passed inspection when they were originally completed in 2008, the 10/20 Day Notice advised Petitioner that they had not been approved and were a fire hazard. Petitioner was instructed to clear the enclosures from around the electrical meters and remove the additions.

On May 01, 2020, Respondent commenced eviction proceedings against Petitioner in Globe Regional Justice Court. On May 12, 2020, judgment was entered against Petitioner.

On May 04, 2020, Petitioner filed a civil action against Respondent for alleged harassment.

On May 22, 2020, an eviction judgment was entered against Petitioner, and her harassment suit was dismissed.

On May 28, 2020, Petitioner vacated Park spaces #41-43 and moved in with Mr. Gentsch at Park space #13.

On June 01, 2020, a Writ of Restitution for $3,226.01 was entered against Petitioner for her occupancy of Park spaces #41-43.

As of the date of the hearing, Petitioner had not appealed her eviction or writ. Neither judgement had been set aside.

In closing, Petitioner argued that at the expiration of Mr. Mercer’s 2018/19 lease agreement, Respondent was obligated to issue a renewal to her because she occupied Park spaces #41-43 at that time. Petitioner further argued that she had been Mr. Mercer’s co-tenant, and upon his death she had become the sole occupant and tenant of Park spaces #41-43. Petitioner opined that she had wrongfully been evicted from Park spaces #41-43, and accused Respondent of harassing her over the course of 6 months.

In closing, Respondent motioned for Summary Judgment based on the following arguments: (i) the Department, and therefore the Tribunal, has no jurisdiction in this matter because Mr. Mercer’s trailer was an RV and therefore excluded from the Mobile Home Act under Ariz. Rev. Stat. § 33-1407(B); (ii) no approved tenancy existed between Petitioner and Respondent as required by Ariz. Rev. Stat. § 33-1407(C); and (iii) no valid rental agreement was executed between the parties, thereby creating a landlord-tenant relationship as required by Ariz. Rev. Stat. § 33-1413. Respondent argued that its attempts to evict Petitioner did not constitute harassment, that it was not legally obligated to offer her a new lease for another Park space after she voluntarily vacated Park space #11, and that the “rolling blackouts” the Park experienced in December 2019 were not caused by or ignored by Respondent.

CONCLUSIONS OF LAW

The Department has jurisdiction to determine whether Respondent violated the LTA, as alleged in Petitioner’s petition. The matter was properly brought before OAH for adjudication.

Petitioner bears the burden of proof to establish the violation(s) by a preponderance of the evidence. Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not. 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.”

Ariz. Rev. Stat. § 33-1407(B) provides, in pertinent part, that “[t]his chapter does not apply to ... recreational vehicles or travel trailers.”

Ariz. Rev. Stat. § 33-1407(C) provides, in pertinent part, that “[t]his chapter does not apply to “a mobile home that has not been occupied for residential purposes by one or more persons in its current location with the approval of the landlord since being titled to the mobile home's present owner.”

Ariz. Rev. Stat. § 33-1413(A) provides, in pertinent part, that “[a] the beginning of the tenancy, a signed, written rental agreement must be executed by the landlord or designated agent and a tenant.”

Ariz. Rev. Stat. § 33-1452(I) provides, in pertinent part, that “[a]ny improvements made by a tenant such as plants, vines, edgings, gravel, stone or other additions made for the benefit of the tenancy may be removed by the tenant.”

Ariz. Rev. Stat. § 33-1452(J) provides that “[i]f a tenant dies, any surviving joint tenant or cotenant continues as tenant with the same rights, privileges and liabilities as if the surviving tenant were the original tenant, with the additional right to terminate the rental agreement by giving sixty days' written notice to the landlord within sixty days after the death of the tenant.”

Ariz. Rev. Stat. § 33-1452(F)(1) provides that a person who owns or operates a mobile home park shall not “[d]eny rental unless the mobile home does not meet the requirements of the rules and regulations of the landlord and the statements of policy prescribed pursuant to section 33-1436 or the park resident or prospective resident cannot conform to park rules and regulations.”

Ariz. Rev. Stat. § 33-1472(A) provides, in pertinent part, that “[i]f the landlord fails to deliver physical possession of the mobile home space to the tenant as provided in section 33-1433, rent abates until possession is delivered.”

Ariz. Rev. Stat. § 33-1476(A) provides, in pertinent part, that ‘[t]he landlord shall specify the reason or reasons for the termination or nonrenewal of any tenancy in the mobile home park.”

Ariz. Rev. Stat. § 33-1482 provides, in pertinent part, that “[a] landlord may not recover or take possession of the mobile home space by action or otherwise, including willful diminution of services to the tenant by interrupting or causing the interruption of electric, gas, water or other essential service to the tenant.”

Ariz. Rev. Stat. § 33-1491 provides, in pertinent part, that “[a] landlord shall not retaliate by increasing rent or decreasing services or by bringing or threatening to bring an action for eviction.”

The crux of the issue in this matter is not whether Petitioner had permission to stay in Mr. Mercer’s trailer from April through November of 2019, it is whether Petitioner had a valid landlord-tenant relationship with Respondent at the time of Mr. Mercer’s passing which would lawfully permit her to reside in and maintain Park spaces #41-43.

In the case at bar, the material facts in the record are clear. The aforementioned alleged violations either do not pertain to this matter, as they are inapplicable, or sufficient evidence has not been presented to establish they occurred by a preponderance of the evidence.

Here, Petitioner had no lawful authority to occupy or possess Park spaces #41-43 after Mr. Mercer passed. While she clearly had permission from her children to use and occupy his trailer, that is a completely separate and distinct issue from where the trailer itself was located. Mr. Mercer had a valid lease with Mercer Trust for Park spaces #41-43 that was transferred to Respondent in August of 2019. Because no sub-lease agreement existed between Mr. Mercer, Mercer Trust, and Petitioner at the time Respondent purchased the Park, Petitioner cannot be said to have been a tenant of Park spaces #41-43 at the time Mr. Mercer passed away. Moreover, the record clearly establishes that Petitioner was not a surviving spouse of Mr. Mercer, and that her children had not entered into sub/lease agreements with Respondent on her behalf or for her benefit, for Park spaces #41-43. No landlord-tenant relationship ever existed between Petitioner and Respondent.

The record also clearly establishes that Respondent was not responsible for the loss of electricity Petitioner experienced at the Park, and that it took swift action to remediate Petitioner’s loss as soon as it was provided notice. The record further establishes that Respondent’s efforts to evict Petitioner from Park spaces #41-43 were not retaliatory or harassing in nature, but rather lawful steps taken to reclaim property it owned that was unlawfully occupied by Petitioner.

Most, notably, the record establishes that Park spaces #41-43 were occupied by Mr. Mercer’s park model RV, which is an excluded type of manufactured residence from the Mobile Home Act.

Therefore, because Petitioner has failed to sustain her burden of proof in this matter, the undersigned has no alternative than to conclude that her petition is dismissed. The Department has no grounds to discipline Respondent based on alleged violations of Ariz. Rev. Stat. §§ 33-1407(B), 33-1407(C), 33-1413, 33-1452(I), 33-1452(J), 33-1452(F), 33-1472(I), 33-1476, 33-1482, and 33-1491.

Recommended Order

Based on the foregoing,

IT IS ORDERED that the Director of the Department dismiss Petitioner’s Complaint and Petition against Respondent.

IT IS FURTHER ORDERED that Respondent is not required to reimburse Petitioner’s $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, August 27, 2020.

/s/ Jenna Clark

Administrative Law Judge

Transmitted electronically to:

Carol Ditmore, Director

Arizona Department of Housing