ALJDEC decisions subject to certification as final

21F-LTA2021004-ADH · Arizona State Department of Housing - LTA · 2021-09-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

SEALE YEAGER, et al.,

Petitioner,

VISTA DEL SOL VILLAS, et al.,

Respondent.

No. 21F-LTA2021004-ADH

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: April 12, 2021, with further hearing on June 1, 2021, and August 31, 2021

APPEARANCES:

April 12, 2021: Petitioner Seale Yeager appeared on her own behalf. Debra Bond, Mohave Woodson, Martin Ball, Mary Ann Johnson, John Bond, and Darlene Calvert appeared as witnesses for Petitioner. Scott Baluha, Esq. represented Respondent Vista Del Sol Villas. Brock Merchant and Michael Merchant appeared as witnesses for Respondent.

June 1, 2021: Petitioner Seale Yeager appeared on her own behalf. Martin Ball, Mary Ann Johnson, and John Bond appeared as witnesses for Petitioner. Scott Baluha, Esq. represented Respondent Vista Del Sol Villas. Brock Merchant and Michael Merchant appeared as witnesses for Respondent.

August 31, 2021: Petitioner Seale Yeager appeared on her own behalf. Martin Ball appeared as a witness for Petitioner. Scott Baluha, Esq. represented Respondent Vista Del Sol Villas. Brock Merchant and Michael Merchant appeared as witnesses for Respondent.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

Vista Del Sol Villas (“Respondent”) is a mobile home community located at 1630 East Coconino Street in Cottonwood, Arizona. Seale Yeager (“Petitioner”) rents Lot number 5 from Respondent.

On or about December 7, 2020, Petitioner filed a Petition with the Arizona Department of Housing (“Department”) alleging that Respondent violated the Arizona Mobile Home Residential Landlord and Tenant Act, Arizona Revised Statutes (“A.R.S.”) §§ 33-1401 through 33-1501 (“LTA”). Specifically, Petitioner alleged that Respondent violated A.R.S. §§ 33-1402, 33-1410, 33-1413 (A), (B), (H), 33-1432 (A)(4), (E), (F), 33-1434 (A) (1), (2), (3), (5), (6), (7), (B), 33-1436 (A), (B) (6), (C), (D), 33-1437 (B), 33-1452(D), (E)(3), (F), 33-1473(A), 33-1474, 33-1475, 33-1484 (B), 33-1491 (A) (1), (2), (3), 41-4061, and 41-4062 through various actions and failures, as outlined in the Petition for Hearing.

After Respondent filed a written answer, the Department referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

The hearing took place over the course of three hearing settings due to the inability to conclude the presentation of evidence in the allotted times. At hearing, Petitioner testified on her own behalf and called several witnesses, including Mohave Woodson, Darlene Calverton, Martin Ball, Mary Ann Johnson, and John Bond. Jon Bond did not actually provide any testimony. Petitioner’s Exhibits 7, 8, 16-24, 27, 28, 37-40, 43, and 44 were admitted into evidence.

At hearing, Counsel for Respondent argued that the scope of the hearing should be limited to one year preceding Petitioner’s filing of the Petition, as the limitations period for a tenant to file an administrative complaint under the LTA is one year after the alleged violations of the LTA by a landlord. Because Petitioner did not file her petition with the Department until December 7, 2020, any claims that she may have had for Respondent’s alleged violations of the LTA prior to December 7, 2019, are time-barred.

Petitioner entered into a rental agreement with Respondent and moved into the community on or about April 26, 2018. The rental agreement specified the following in pertinent part:

TERM- The term of this Agreement shall be one month. Upon expiration of this Agreement, tenancy shall be on a month-to-month basis on the same terms and conditions as set forth herein unless a new written Rental Agreement is executed . . .

Petitioner received copies of Respondent’s Rules and Regulations. Respondent’s Rules and Regulations notified Petitioner of the following in pertinent part:

. . . .

It is mandatory that any outside upgrades, refurbishing, painting, planting, etc. MUST be approved by Management. This is to assure that the aesthetics of the par[k] be harmonized and be kept pleasant for everyone living in the park.

. . . .

Vista Del Sol Villa will make every effort to supply ample and sufficient utilities, but their failure to do so shall not be an excuse for the non-payment of rent, nor shall Vista Del Sol Villa owners or Management be held liable for any loss sustained because of such failures.

. . . .

TENANT RESPONSIBILITIES AND MAINTENANCE

. . . .

E. Any and all pruning of trees, bushes or shrubs will be done by management only, unless express permission is granted by management.

. . . .

H. Irrigation days are set by the Management, and are subject to change.

. . .

MISCELLANEOUS

. . . .

D. Mobile Home Parks of necessity, contain extensive underground facilities. ANY DIGGING MUST HAVE PRIOR APPROVAL FROM MANAGEMENT.

Emphasis in original.

Petitioner alleged the following violations by Respondent that occurred between December 7, 2019, and December 7, 2020:

Lack of indoor water and failure to provide notification of such;

Irrigation/ditch water was not turned on during the scheduled days and times;

Respondent threatened Petitioner with terminating her lease;

Petitioner had approval for her chickens;

Respondent accused Petitioner of cutting down trees on the property without permission;

Respondent did not address the sewer smell emanating from Petitioner’s neighbor’s lot;

Respondent did not remove bags of yard waste from Mohave Woodson’s curb;

Respondent’s property manager’s dog was on Petitioner’s property while unleashed;

Respondent “started leaving Chrissy’s light on with the curtains open at night until June 19th. Just more harassment because the light shone into my bedroom;”

Respondent did not repair the skirting on a unit owned by Respondent on Lot 3;

Respondent blew mulberry seeds over her lot during maintenance;

Some residents are paying an old lease amount and some residents are paying a new lease amount; and

A new lease was not issued 90 days before Petitioner’s lease terminated and the new amount was “too high.”

Mohave Woodson’s Testimony

Mohave Woodson testified that she has been a resident of the community for nine years, that there was no notification that the “inside water was being turned off,” that her bagged waste consisting of leaves was not timely removed, and that she has been harassed by Mike Merchant, the manager of Respondent. However, Ms. Woodson acknowledged that she did not provide any written notice to Respondent regarding the lack of the untimely removal of the bags of waste and she did not provide any specific times or examples of harassment.

Mary Ann Johnson’s Testimony

Mary Ann Johnson testified that she has resided on Lot 4 of Vista Del Sol Villas since February 28, 2018. Ms. Johnson testified regarding harassment and threats of eviction, as well as foul language from Respondent’s representatives, however, did not provide any specific times or examples of such. Ms. Johnson further testified regarding a “squirrel issue” under “Donna’s house.” Ms. Johnson asserted that it took Respondent too long to address the squirrel problem. Ms. Johnson also testified that the irrigation water is “not on when it is supposed to be” and that she asked Respondent to trim the trees around her lot because the branches were hanging onto her roof.

Martin Ball’s Testimony

Martin Ball testified that he has resided on Lot 3 in the community for at least nine years. Mr. Ball testified that he spent hours removing a tree trunk from the property, that he was threatened with eviction for doing so, that the ditch water is not consistently available, that Respondent does not consistently trim trees, and that he has been harassed by Respondent. Mr. Ball acknowledged that he did not have permission to remove bushes. Mr. Ball testified that the water leak on Lot 4 was caused by the connection “being pierced by the old swamp cooler line” and that he repaired it and it has not leaked since. Mr. Ball did not provide any details regarding alleged harassment by Respondent.

Petitioner’s Testimony

Petitioner testified that she did not sign a new lease on March 1, 2020, as the rent was “too high” and she never received a copy of the new lease. Petitioner testified that she continues to pay the original rent amount because notices regarding any increase were sent to her improperly. Petitioner further testified that the skirting on Lot 3 has not been repaired since the “squirrel problem.” Petitioner also testified that she notified Respondent on April 4, 2020, regarding a sewer smell emanating from Lot 4, and Respondent did not respond. Petitioner testified that Michael Merchant’s dog was on her driveway on May 21, 2020.

Petitioner admittedly removed bushes from her lot that lined the perimeter of the community. Petitioner submitted into evidence several photographs of the bushes.

Petitioner further testified that the irrigation water is inconsistent and “goes off whenever,” as well as the city water which Petitioner testified is “turned off in the middle of the day when she showers and is cooking.”

Petitioner also testified that management scattered mulberry seeds over her property and did not “pick up apricot pits.”

On cross examination, Petitioner admitted that she never provided written notification to Respondent regarding the skirting issue on Lot 3. Petitioner also testified regarding the sewer smell from Lot 4, that she believes it was caused by a water leak. Petitioner acknowledged that if the leak were above ground, it was the tenant’s responsibility, as Respondent is only responsible for underground leaks. Petitioner acknowledged that the leak was attributable to the utility connection to the mobile home which is above ground, and therefore, is the tenant’s responsibility.

Petitioner further acknowledged that she did not provide Respondent with any written notification of a loose dog on her property.

Petitioner also acknowledged that she did not provide any written notification to Respondent of her complaint regarding the bags of waste on Ms. Woodson’s lot.

Regarding one of the more contentious issues in Petitioner’s petition, specifically the removal of the bushes, Petitioner acknowledged that Respondent owns the lot and the landscaping and that Petitioner did not have permission to remove any of the bushes.

Petitioner testified that on December 1, 2020, she had no water from 11:30 a.m. to 2:30 p.m., however, did not attempt to contact Respondent either in writing or verbally.

Brock Merchant’s Testimony

Brock Merchant is one of Respondent’s managers. Mr. Merchant testified regarding the irrigation/ditch water, that the ditch association allocates certain days and times for the availability of the ditch water and that Respondent has no control over the days that are allocated. Mr. Merchant testified that there were three or four days during the year that ditch water was scheduled to be available when it was actually not available, but that Respondent has no control over the availability of the ditch water. Mr. Merchant testified that when Respondent is made aware that ditch water is not available on a scheduled date, Respondent’s representative informs residents verbally by walking around the community.

Mr. Merchant explained that the inside water is under the control of the city. Mr. Merchant testified that in December 2020, the city’s main water line burst and the city water was unavailable for two hours. Mr. Merchant explained that the water line burst because the city was attempting to adjust water pressure to new subdivisions within city limits. The city addressed the issue immediately and Respondent’s representative notified tenants who were home by going door to door to inform them of the situation.

Mr. Merchant testified that Respondent attempted to evict Petitioner in July 2020, after she removed the bushes on her lot, as well as lots 4 and 6, ultimately removing seven or eight bushes. Mr. Merchant explained that those bushes were present on the property for 28 years, span 750 feet, and that it was Respondent’s responsibility to maintain them. In the past, Respondent has permitted individual tenants to trim the bushes on their respective property, but never remove them. Mr. Merchant asserted that the eviction action against Petitioner was dismissed because Respondent had incorrectly filed it.

Regarding the sewer smell, Mr. Merchant testified that when the issue was first brought to his attention, he investigated and did not smell anything. When the issue was brought to his attention a few months later, there was a strong odor. However, the odor was not emanating from the sewer, but rather it was coming from underneath a mobile home. The tenant in that home told Mr. Merchant that she hired Mr. Ball to make the necessary repairs. There were no further complaints concerning an odor. Mr. Merchant explained that Respondent does not have responsibility for any of the mobile homes, and that the tenants are responsible for the utility “hook up” to the mobile home.

Mr. Merchant testified that Respondent did not receive any notification regarding bags of waste on the curb in front of Ms. Woodson’s unit or a skirting issue on Lot 3.

Regarding the mulberry seeds, Mr. Merchant testified that a maintenance individual was responsible for this issue and that Respondent deducted $20.00 from Petitioner’s rent as compensation, and it was no longer an issue.

Regarding the new leases and the rent increase, Mr. Merchant testified that the new leases contained a rent increase and that all but a few of the 55 tenants signed the new lease. Petitioner refused to sign the new lease insisting that she was “locked into a four year lease.” However, Petitioner’s lease was a month to month lease. Mr. Merchant testified that a copy of Respondent’s new rules and regulations was hand-delivered to Petitioner.

Michael Merchant’s Testimony

Michael Merchant is also a manager for Respondent and is responsible for the maintenance of the community. Mr. Merchant testified that Respondent did not receive any notice concerning the skirting on Lot 3, nor any indication of a squirrel issue until the tenant on Lot 3 moved out of the unit. Mr. Merchant testified that the skirting was opened in order to remedy the squirrel issue as Respondent hired a professional trapper. The skirting was removed for approximately a week and a half. There have been no complaints since then.

Mr. Merchant testified that in April 2020, Respondent received notification of a sewer smell. When he investigated, he did not perceive an odor, however, he observed some standing water in the rear of the lot. There was water dripping from the sewer connection to the mobile home. Upon inspecting for a second time, in July 2020, Mr. Merchant could detect an odor. Petitioner had informed Brock Merchant that the owner of the home had hired Mr. Ball to perform the repair. Mr. Merchant believed the issue had been resolved at that point and Respondent has not received any further complaints regarding an odor.

Mr. Merchant testified that the bags of waste on Ms. Woodson’s curb were supposed to contain only leaves, however, they contained dog feces and other items that leaked through the bags and therefore, they could not be brought for mulching.

Regarding the complaint of a loose dog, Mr. Merchant testified that his dog was in his pick-up truck and jumped out of the truck while he was performing some maintenance at the property. Mr. Merchant testified that the dog did not interact with anyone, did not bark, did not growl, and he immediately brought the dog home.

Mr. Merchant testified that the entire side of the mobile home community is lined with Pyracantha bushes, approximately 400 yards. Petitioner removed about 75 to 80 feet of the bushes, approximately ten bushes, spanning her property and the properties on either side of her lot. Mr. Merchant testified that Petitioner and others cut the bushes to the ground, dug the roots out, poured gasoline on the pile and burned it. Mr. Merchant testified that he video recorded Petitioner removing the bushes from Lots 5 and 6 as she did not obtain permission for such removal. Another tenant called him to advise him that Petitioner was pouring gasoline and burning piles of wood and leaves within the city limits, resulting in piles of ash and stumps. Mr. Merchant asserted that Petitioner could have started a fire within the community and did not have permission to burn.

Regarding the incident when the city shut the inside water off for a short period of time, Mr. Merchant’s testimony was consistent with the testimony of Brock Merchant.

Mr. Merchant provided general information concerning the Cottonwood Ditch Association. Mr. Merchant testified that there were some days that irrigation was supposed to be available but was not due to the ditch association shutting off access due to a thunderstorm, a clog, or a necessary repair. Mr. Merchant explained that Respondent has no control over the ditch association and its actions. The only control Respondent has is when Respondent turns the pump in the community on and off. However, sometimes the community pump automatically shuts off if the water level is too low in order to prevent the motor from burning out, or if a pipe breaks. Mr. Merchant clarified that Respondent has never intentionally shut off the irrigation system as that would impact all lots within the community.

Mr. Merchant has provided Petitioner on three occasions, the rules and regulations governing the community and has explained to her the consequences for violations. Mr. Merchant testified that Petitioner has chickens and he has explained to her that city ordinance prohibits chickens in a mobile home park. Mr. Merchant explained to Petitioner that if she continues to keep the chickens she could be evicted. Mr. Merchant testified that Petitioner becomes combative with him and calls the police if he approaches her door. Mr. Merchant testified that Petitioner has received violation/eviction notices concerning her chickens, raised planters, the cutting of an electric line, and the removal and burning of the bushes.

CONCLUSIONS OF LAW

The Department has jurisdiction to determine whether Respondent violated the LTA in the actions or inactions alleged in Petitioner’s Petition.

Petitioner bears the burden of proof to establish that Respondent violated the LTA in the manner alleged in the Petition, and that standard is 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.”

Petitioner alleged numerous statutory violations by Respondent based upon the complaints outlined in Petitioner’s Petition. Specifically, Petitioner alleged the following violations by Respondent: A.R.S. §§ 33-1402, 33-1410, 33-1413 (A), (B), (H), 33-1432 (A)(4), (E), (F), 33-1434 (A) (1), (2), (3), (5), (6), (7), (B), 33-1436 (A), (B) (6), (C), (D), 33-1437(B), 33-1452(D), (E)(3), (F), 33-1473(A), 33-1474, 33-1475, 33-1484(B), 33-1491(A) (1), (2), (3), 41-4061, and 41-4062. Several of these statutory cites do not relate to potential violations, but rather govern the purpose of the LTA and the hearing process, such as A.R.S. §§ 33-1402, 41-4061, and 41-4062.

Notwithstanding her numerous complaints and allegations of statutory violations by Respondent, Petitioner failed to establish by a preponderance of the evidence that Respondent committed any violations of the LTA cited by Petitioner and as set forth herein.

RECOMMENDED ORDER

IT IS ORDERED that the Director of the Department 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 (5) days from the date of that certification.

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-137160-45720000Done this day, September 9, 2021.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Tom Simplot, Director

Arizona Department of Housing

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