ALJDEC decisions subject to certification as final

22F-LTA2122005-ADH · Arizona State Department of Housing - LTA · 2022-08-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Dorothy G. Barker, et al.,

Petitioners,

Sun and Stars Trailer Port, et al.,

Respondents.

No. 22F-LTA2122005-ADH

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 25, 2022

APPEARANCES: Dorothy Barker appeared on behalf of Petitioners. Gary Henderson appeared on behalf of Respondents with Matt Henderson and Kolleen Henderson as witnesses. David Johnson observed.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

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

Respondents are comprised of a manufactured home community located in Bullhead City, Arizona. Petitioner is the owner of lot 6 in the community.

On October 12, 2021, the Department received a petition from Petitioners that alleged Respondent violated Arizona Revised Statutes (“Ariz. Rev. Stat”) §§ 33-1452(A), 33-1452(A-1) 33-1452(A-3), 33-1452(D), 33-1413.01(B). 33-1437(A), and 33-1437(B). Four additional owners in Respondent’s park co-signed the petition.

On October 14, 2021, the Department provided notice of the underlying petition to Respondent. Respondent was required to respond to the petition within 20 calendar days.

On or about November 8, 2021, Respondent provided a written Answer to the underlying petition.

On November 23, 2021, Respondent’s Answer was forwarded to Petitioners, and on or about December 9, 2021, Petitioners submitted a written Request for Hearing to the Department.

On June 17, 2022, the Department referred this matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing on July 25, 2022. Per the June 17, 2022, Notice of Hearing the issues to be determined are whether Respondent committed one or more of the following statutory violations: A.R.S. §§ 33-1452(A), A.R.S. §§ 33-1452 (A)(1), (A)(3),(D), A.R.S. §§ 33-1413.01(B), A.R.S. §§ 33-1437(A), and (B).

Hearing Evidence

Dorothy Barker testified that she believed that she had been subjected to retaliatory actions by the community management. Specifically, Ms. Barker alleged that she received notices to remove her car, and that her property was damaged, destroyed or removed. Further, Ms. Barker testified that someone also left dog feces on her steps. In addition, Ms. Barker claimed that the Henderson’s were inappropriately charging for electricity. Finally, Ms. Barker also asserted that Respondents were not in compliance with the State statutes regarding taking the proper required courses.

As to the parking issue, Ms. Barker testified that while both of her cars fit in her parking spot, she was told by the community manager that she was in violation of the park rules. She testified that other residents had multiple cars/vehicles on their property but they were not told to move. Ms. Barker testified further that the community manager threatened to disconnect her Dish Network too if the car was not removed. She also testified however that another resident, Michelle, had been instructed to move her extra vehicle as well.

As to the property damage, Ms. Barker testified that she is the only one in the community who gardened, yet the community manager threw away or damaged her potato pots and the garden in front of her unit.

As to the electric bill issue, Ms. Barker testified that the charge per kilowatt hour was inconsistent with what she pays on another residence. Further, Ms. Barker testified that there is no “meter reading start and end date on her bills”, which she believed was in contradiction of the statute.

Finally, Ms. Barker testified that she believed that the community manager and the Henderson’s were taking these actions to intentionally trigger her PTSD and to remove her from the community.

Gary Henderson testified that nothing has been done to Ms. Barker in a retaliatory fashion. He testified further that he and the community manager could not take the statutorily required class because it had not been offered in three years. However, he testified that he along with his wife and Mr. Halvorson are enrolled to take the course on August 10, 2022, and the current community manager will be enrolling shortly thereafter.

In addition, Mr. Henderson testified that there had never been a complaint from other residents about parking. Further, Mr. Henderson testified that neither Ms. Barker nor any other resident had received an actual citation or been towed for improper parking, but warning notes would be placed on cars.

Mr. Henderson also testified that the plants were there before her and therefore were not her property. Further, it was his understanding that nobody was on her property improperly and/or would have damaged her property.

Finally, Mr. Henderson testified that he would increase or decrease the amount charged per kilowatt hour to cover the taxes and fees that the power company would charge, and also based upon increased usage during the summer and winter months. Mr. Henderson testified that he was informed he could charge in this manner.

Matt Halvorson was now the assistant community manager. He testified that he was formerly the community manager but quit because Ms. Barker was stressing him out.

Mr. Halvorson testified that he never citied or had cars towed for not following the parking rules, rather he would place notes. Mr. Halvorson acknowledged however that he may not have been aware of prior arrangements that the Henderson’s made with other residents.

In addition, Mr. Halvorson testified that he placed a bag of dog feces on Ms. Barker’s porch because her dog would run loose and Ms. Barker would not pick up after the dog.

Kolleen Henderson testified that for guests not on the contract, the owners would have to pay a fee. Ms. Henderson testified further that when Ms. Barker’s son and daughter stayed on the premises, the charge could have been $18,000.00, but she did not charge Ms. Barker. She felt therefore that they had been more than fair to Ms. Barker.

CONCLUSIONS OF LAW

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

Petitioners bear the burden of proof to establish the violation(s) by a preponderance of the evidence. Respondents bear 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. § 33-1452(A) provides:

A. A landlord shall adopt written rules or regulations, however described, concerning the tenant's use and occupancy of the premises. Such rules or regulations are enforceable against the tenant only if:

1. Their purpose is to promote the convenience, safety or welfare of the tenants on the premises, preserve the landlord's property from abusive use, preserve or upgrade the quality of the mobile home park or make a fair distribution of services and facilities held out for the tenants generally.

2. They are reasonably related to the purpose for which adopted.

3. They apply to all tenants on the premises in a fair manner.

4. They are sufficiently explicit in prohibition, direction or limitation of the tenant's conduct to fairly inform the tenant of what must or must not be done to comply.

5. They are not for the purpose of evading the obligations of the landlord.

6. The prospective tenant has a copy of the current rules and regulations before the prospective tenant enters into the rental agreement.

In this case, the preponderance of the evidence demonstrated that while Ms. Barker believed that she was being targeted, it was not the case. In fact, Ms. Barker’s own evidence demonstrated that at least one other tenant received a notice about parking too. In addition, Ms. Henderson’s testimony about not charging Ms. Barker for the “guest fee”, also shows that she was not being treated unfairly. Finally, no evidence was presented that there was ever a citation for not observing the parking rules. Therefore, the tribunal finds no violation of Ariz. Rev. Stat. § 33-1452(A)(1) and (A)(3).

Ariz. Rev. Stat. § 33-1452(D) provides:

A new tenant who purchases an existing mobile home in a mobile home park shall comply with all current statements of policy and rules and regulations, including those pertaining to the size, condition and appearance of the mobile home and exterior materials with which the mobile home has been constructed, except that the landlord shall not require the replacement of the siding and skirting on a mobile home unless the replacement siding and skirting will significantly change or improve the appearance of the mobile home.

In this case there was no evidence provided that a new tenant did not comply with the rules and regulations. Therefore, the tribunal finds no violation of Ariz. Rev. Stat. § 33-1452(D).

Ariz. Rev. Stat. § 33-1413.01(A) and (B) provides:

A. If a landlord charges separately for gas, water or electricity there shall be a separate meter for every user. For each billing period the cost of the charges for the period shall be separately stated, along with the opening and the closing meter readings and the dates of the meter readings. Each bill shall show the computation of the charge generally in accordance with the serving utility company billing format for individual service supplied through a single service meter.

B. If the landlord separately charges for utilities, the landlord shall not charge more than the prevailing basic service single family residential rate charged by the serving utility or provider.

A preponderance of the evidence demonstrated that the dates for opening and closing meter reading were not included in the bills to the residents. Further, while the tribunal understands the rationale for Mr. Henderson to change the price of the kilowatt hour, this was not appropriate under the statute. Therefore, Respondent was in violation of Ariz. Rev. Stat. § 33-1413.01(B).

Ariz. Rev. Stat. § 33-1437(A) and (B) provides:

A. Within six months after employment as a park manager, a park manager shall complete at least six hours of educational programs and shall complete at least six additional hours of educational programs every two years.

B. A park manager shall post proof of completion of and compliance with the educational program requirements prescribed by this section in a conspicuous place at the mobile home park.

A preponderance of the evidence demonstrated, and Mr. Henderson admitted that the park manager had not taken at least six hours of education. While the tribunal appreciates that Mr. Halvorson will be attending the course in August, 2022, it will have been well after six months. Further, Mr. Henderson also testified that the current park manager had not taken the course. There was also no evidence presented that the classes were not offered for the past three years as asserted by Mr. Henderson. Therefore, the tribunal finds that Respondent was in violation of Ariz. Rev. Stat. § 33-1437(A) and (B).

Therefore, in summary, because Petitioners have established by a preponderance of the evidence that Respondents violated Ariz. Rev. Stat. § 33-1413.01(B), and 33-1437(A) and (B), they have also established grounds for the Department to take disciplinary action against Respondent. However, because Petitioners have failed to sustain their burden of proof in this matter based on alleged violations of Ariz. Rev. Stat. §§ Ariz. Rev. Stat. § 33-1452(A)(1) and (A)(3) and § 33-1452(D), the tribunal has no alternative than to conclude that the portion related portions of the petition be dismissed, as the Department has no grounds to discipline Respondent based on alleged violations of those statutes.

Recommended Order

Based on the foregoing,

IT IS ORDERED that Petitioners’ Complaint and Petition be granted, in part, and dismissed, in part.

IT IS FURTHER ORDERED that Respondent is not required to reimburse Petitioners’ $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.

-54864001

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-137160-45720000Done this day, August 10, 2022.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Tom Simplot, Director

Arizona Department of Housing

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-137160-45720000By Miranda Alvarez

Legal Secretary