ALJDEC decisions subject to certification as final

22F-LTA2122006-ADH · Arizona State Department of Housing - LTA · 2022-07-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Thomas Prusak, et al.,

Petitioner,

vs.

Hassayampa MHP, et al.,

Respondent.

No. 22F-LTA2122006-ADH

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 18, 2022 at 1:00 PM.

APPEARANCES: Thomas Prusak (“Petitioner”) appeared on his own behalf. Scott Bahula, Esq. appeared on behalf of Hassayampa Mobile Home Park (“Respondent”) with David Waterhouse as a witness.

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 55+ age restricted Recreational Vehicle (“RV”) and Mobile Home Park (“Park”) located at 700 White Spar Rd. Prescott, Arizona 86303.

On October 12, 2021, the Department received a Complaint and Petition for Hearing (“Complaint and Petition”) by Petitioner, who alleged that Respondent violated the Arizona Mobile Home Residential Landlord and Tenant Act (“LTA”). Specifically, Petitioner alleged that Respondent violated Arizona Revised Statutes (“Ariz. Rev. Stat.”) §§ 41-006(E), 33-1434, and 33-1451 and Park Rule #9 by failing and/or refusing to “clean out the roots in the clay pipe sewer line that backed up sewege into the backyard of lot #42.”

All errors in original.

On October 18, 2021, the Department issued a Notice of Petition to Respondent, whereby Respondent was instructed to provide a written response no later than November 07, 2021.

On October 25, 2021, Respondent submitted its Answer to the Department. In its Answer, Respondent denied all of Petitioner’s allegations.

On November 03, 2021, the Department provided Petitioner with a copy of Respondent’s Answer, whereby Petitioner was instructed to provide a written response by December 03, 2021.

On December 02, 2021, the Department received Petitioner’s Response and Request for Hearing.

On April 29, 2022, the Department referred this matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing on June 15, 2022. Per the May 20, 2022, 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 his own behalf and submitted Exhibits 1-5 into the record. Respondent called David Waterhouse, Park manager, as a witness and submitted Exhibits 1-6 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:

Petitioner has resided on Lot #42 at the Park since October 2006. On March 16, 2015, Petitioner executed a month-to-month tenancy agreement with Respondent for Lot #42

Park Rules and Regulations, Section 3: Genera Lot and Home Control, #9 provides, in pertinent part, that “Tenant is responsible for the maintenance and repair of ... sewage lines from where they hook into the Park’s main lines.”

Park Rules and Regulations, Section 3: Genera Lot and Home Control, #31 provides, in pertinent part, that “Trees on the Tenant’s space are part of the space. Tenant is responsible for maintaining trees on the space including trimming as necessary to ensure the health of the tree and to avoid safety hazards. Landlord is responsible for trees in common areas.”

On or about November 19, 2020, Respondent replaced the Park’s clay pipe sewer lines, including thirty (30) feet of line from the main sewer outlet to Lot #42. The sewer line directly underneath Lot #42 was not replaced or modified in any way by Respondent.

The sewage outlet for Lot #42 is located directly underneath Petitioner’s mobile home; just underneath the front porch.

On or about April 29, 2021, Petitioner paid a licensed plumber $290.00 to clear roots and rocks from Lot #42’s sewer line.

On an unknown date, Petitioner submitted a complaint to the Park regarding issues he was having with Lot #42’s sewer line overflowing into his backyard, along with a contemporaneous request that Respondent replace the sewer line underneath Lot #42.

On May 27, 2021, Respondent, by and through its counsel, advised Petitioner that his request was denied pursuant to Ariz. Rev. Stat. §§ 41-4006(E), 33-1451(A), and 33-1434, and opined that, “[T]he problem underneath [Petitioner’s] patio ... is part of the line between the Park-provided sewer outlet and [Petitioner’s] mobile home. As such, its replacement and/or maintenance is [Petitioner’s] responsibility.”

Additional Evidence

Two (2) Google maps of the underlying site at issue, modified Petitioner’s handwriting and markings, and a hand drawn map by Petitioner were submitted to the Department as attachments to the Complaint and Petition .

Subpoenaed plumbing invoices from September 13, 2018, through February 25, 2021, establish that the Park paid for sewage line inspections for Lot #42. None of the invoices establish that the Park paid for obstruction removal, if any.

Closing Arguments

In closing, the Respondent opined that Petitioner failed to sustain his burden of proof, and argued that Petitioner’s appeal had to be denied as a result.

In closing, Petitioner argued that Respondent’s point of access to his sewer line is directly under Lot #42; approximately sixty (60) feet away from the Park’s main sewer line across the road. Petitioner opined that because the Park has cleaned Lot #42’s sewer lines since 2006 when he first became a tenant, Respondent established a precedent which must be adhered to now.

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. § 41-4006(E) provides, in pertinent part, that “[T]he owner of a manufactured home or mobile home located in a park is responsible for the maintenance of utility connections from any outlets furnished by the landlord, except that the landlord is responsible for the maintenance of connections for any distance greater than twenty-five feet to the point at which the utility connections are the property of the providing utility company if the outlet is located outside the lot line of the owner's unit and is more than twenty-five feet from the unit.”

Ariz. Rev. Stat. § 33-1434(C) provides, “[A]ny rental agreements that are executed or adopted after December 31, 2016, shall specifically disclose in writing any requirement that the tenant maintain one or more existing trees located on the mobile home space.”

Ariz. Rev. Stat. § 33-1451(A)(2) provides that, “A tenant of a mobile home space shall exercise diligence to maintain that part of the premises that the tenant has rented in as good condition as when the tenant took possession and shall keep that part of the premises that the tenant occupies and uses as clean and safe as the condition of the premises permits.”

The crux of the issue in this matter is where the sewage outlet for Lot #42 is located; specifically, whether it is a part of the Park-provided sewer line or a part of Petitioner’s line. The underlying dispute is about which party is financially responsible for the maintenance and/or repair of the portion of the line at issue. The parties do not contest that the “problem area” is located directly underneath Petitioner’s front patio.

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. The only relevant statute is Ariz. Rev. Stat. § 41-4006(E). To that end, the relevant and credible evidence of record establishes that, pursuant to applicable law, Petitioner is responsible for the maintenance of the sewer outlet underneath Lot #42, as furnished by the Park. The sole exception being that the Park is responsible for the maintenance of connections for any distance greater than twenty-five feet; as evidenced by the replacements to the sewer lines the Park has already made.

No violation of Ariz. Rev. Stat. § 41-4006(E) exists.

Therefore, because Petitioner has failed to sustain his burden of proof in this matter, the undersigned has no alternative than to conclude that his petition must be dismissed. The Department has no grounds to discipline Respondent based on alleged violations of Ariz. Rev. Stat. §§ 41-006(E), 33-1434, and 33-1451.

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, July 27, 2022.

Office of Administrative Hearings

/s/ Jenna Clark

Administrative Law Judge

Transmitted electronically to:

Tom Simplot, Director

Arizona Department of Housing

By Miranda Alvarez

Legal Secretary