ALJDEC decisions subject to certification as final

23F-LTA2223004-ADH · Arizona State Department of Housing - LTA · 2023-06-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Frederick Rockey, et al.,

Petitioner,

vs.

Casa Del Sol Resort East, et al.,

Respondent

No. 23F-LTA2223004-ADH

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 13, 2023 at 1:00 PM.

APPEARANCES: Frederick Rockey (“Petitioner F.R.”) and Georgia Rockey (“Petitioner G.R.”) (collectively as “Petitioners”) appeared on their own behalf. Scott Bahula, Esq. appeared on behalf of Casa Del Sol Resort East, et. al. (“Respondent”) with Kimberly Krisher as a witness. Priscilla Sullivan and Reginald Givens observed along with 18 additional unidentified individuals.

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 an age-restricted (“RV”) and Mobile Home Park (“Park”) located at 10960 N. 67th Ave. Glendale, Arizona 85034. Amenities include a pool, fitness center, and clubhouse where community mailboxes are located. Management for the Park operates from an on-site office.

On January 24, 2023, the Department received a Complaint and Petition for Hearing (“Complaint and Petition”) by Petitioners, who alleged that Respondent committed a violation of the Arizona Mobile Home Residential Landlord and Tenant Act (“LTA”). Specifically, Petitioner alleged that Respondent violated Arizona Revised Statute (“Ariz. Rev. Stat.”) § 33-1491.

On January 31, 2023, the Department processed Petitioner’s $50.00 filing fee.

On February 17, 2023, the Department issued a Notice of Petition to Respondent, whereby Respondent was instructed to provide a written response no later than twenty (20) days of the letter, i.e. March 09, 2023.

On March 06, 2022, Respondent submitted its Answer to the Department. In its Answer, Respondent denied all of Petitioner’s allegations and denied committing any violations of the LTA. Additionally, Respondent requested an award of attorney’s fees and costs related to the defense of the Complaint and Petition.

On March 17, 2023, the Department provided Petitioner with a copy of Respondent’s Answer, whereby Petitioner was instructed to provide a written response no later than thirty (30) days of the letter, i.e. April 16, 2023.

On March 29, 2023, the Department received Petitioner’s Response and Request for Hearing.

On April 17, 2023, the Department referred this matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing on June 13, 2023. Per the May 24, 2023, Notice of Hearing the issue(s) to be determined are whether the Department has cause to discipline Respondent’s license based on alleged violation(s) of Ariz. Rev. Stat. §§ 33-41-006(E), 33-1434, and 33-1451.

Hearing Evidence

Petitioners testified on their own behalf and submitted Exhibits 1-7 into the record. Respondent called Kimberly Krisher - Park Manager, as a witness and submitted Exhibits A-E into the record. The Notice of Hearing and the Department’s attached agency file were also admitted into the record as their own exhibits. The substantive facts are as follows:

The Park is owned by Equity Lifestyle Properties and managed by MHC Property Management Group.

On or about August 05, 2013, Petitioners took up residency at Lot #110 of the Park. Petitioners’ Lease Agreement provides, in pertinent parts, as follows:

18a. TERMINATION OF THIS AGREEMENT BY MANAGEMENT – EVICTION:

MANAGEMENT may terminate this Agreement in accordance with the Arizona Mobile Home Parks Residential Landlord and Tenant Act and evict RESIDENT for any of the following reasons:

Nonpayment of rent or other charges as provided under this Agreement or under the Rules and Regulations;

Failure to comply with the terms of this Agreement or of the Rules and Regulations, including amendments thereto;

Conduct by RESIDENT and/or RESIDENT’s guest and visitors in or about the COMMUNITY which annoys, harasses or injures other residents or interferes with management of the COMMUNITY;

Failure of RESIDENT to obey local ordinances and state laws and regulations;

Condemnation or change of use of the COMMUNITY;

RESIDENT’s making or causing to be made statements which RESIDENT knows are false or misleading on RESIDENT’s application for tenancy; or

Any other reason as provided for in the Act.

Rules and Regulations

PERSONAL CONDUCT: Offensive conduct will not be tolerated in the Community, including but not limited to ... abusive or threatening language. Residents and their guests, occupants, and visitors must behave in a reasonable and respectful manner at all times in the Community, including but not limited to towards Management, employees, staff, other residents, and other guests and visitors. Cursing and/or yelling at Management is prohibited and will not be tolerated. Offensive conduct is grounds for immediate eviction from the Community.

Crime Free Lease Addendum

In consideration for the execution or renewal of a lease of dwelling unit identified in the lease, Manager or Owner and Resident agree as follows:

Resident, any member(s) of resident’s household, a guest or any other person affiliated with the resident, at or near the resident premises:

* * *

5. Shall not engage in any illegal activity, including, but not limited to ... threatening or intimidating as prohibited by A.R.S. 13-1202,

6. VIOLATION OF THE ABOVE PROVISIONS SHALL BE A MATERIAL AND IRREPARABLE VIOLATION OF THE LEASE AND GOOD CAUSE FOR IMMEDIATE TERMINATION OF TENANCY. A single violation of any of the provisions of this added addendum shall be deemed a series violation, and a material and irreparable non-compliance. It is understood that a single violation shall be good cause for immediate termination of the lease under A.R.S. 33-1377, as provided in A.R.S. 33-1368.

(All emphasis in original.)

On June 13, 2022, Petitioner F.R. went to the Park’s management office to take up a concern on behalf of another resident. When Petitioner F.R. was informed by Priscilla Sullivan, the Park’s Assistant Manager, that she was unable to discuss another resident’s matters with him, a verbal disagreement ensued whereby Petitioner F.R. remarked, “People in the Community think you’re a bitch, and I think you’re a bitch too!” On June 14, 2022, a letter penned by Ms. Krisher regarding Petitioner F.R.’s behavior the prior day was hand delivered to his property. Upon receipt, Petitioner F.R. remarked that it was sent by the “bitch twins.”

Ms. Krisher’s letter, in pertinent parts, warned against threatening and intimidating behavior towards residents and staff, and noted name-calling and profanity would not be tolerated by the Park.

On June 15, 2022, a Notice of Termination of Rental Agreement (14/30 Notice) Violation of Rules Not Affecting Health and Safety was delivered to Petitioners. Petitioners were advised, pursuant to Ariz. Rev. Stat. § 33-1476(D)(1) that unless violations of their Lease Agreement were remedied within fourteen (14) days of the letter, Respondent would terminate their tenancy. Petitioner F.R. was specifically advised that the notice was in reference to his June 13-14, 2022, conduct. Petitioners were further advised that if Petitioner F.R.’s conduct was not in compliance with the Park’s Rules and Regulations, they would be required to vacate their unit thirty (30) days from the date of the letter.

In response, on June 23, 2022, Petitioner F.R. telephoned Ms. Krisher and the two spoke at great length. Ultimately, the parties were able to come to an agreement whereby Respondent agreed not to move forward with an eviction action against Petitioners, and Petitioner F.R. agreed to curb aggressive behaviors and cease use of profane language towards staff.

On June 24, 2022, Ms. Krisher warned Petitioner F.R. that Respondent’s attorney had issued an advisory letter to Petitioners before they spoke the prior day, and advised that Petitioners could disregard it. Shortly thereafter, Petitioners went on an extended vacation away from the Park.

On June 24, 2022, Respondent’s attorney issued a Notice of Termination of Rental Agreement (14/30 Notice) to Petitioners regarding incidents involving Petitioner F.R. June 13-14, 2022. Petitioners were advised, pursuant to Ariz. Rev. Stat. § 33-1476(D)(1) that unless violations of their Lease Agreement were remedied within fourteen (14) days of the letter, Respondent would terminate their tenancy. Petitioners were further advised that if Petitioner F.R.’s conduct was not in compliance with the Park’s Rules and Regulations, they would be required to vacate their unit thirty (30) days from the date of the letter. The correspondence was sent to the Park’s management office, as it had not been delivered to Petitioners due to their absence.

On August 31, 2022, Petitioner F.R. was advised by Ms. Krisher that undelivered correspondence for Petitioners, from Respondent’s attorney, was available for pickup at the Park’s management office. Petitioner F.R. emailed Ms. Krishner’s supervisor to the meaning of the correspondence, as he was under the impression it constituted a termination of his Lease Agreement, but Petitioner F.R. never received a reply by or on behalf of Respondent.

On November 16, 2022, after another resident was asked by a maintenance employee (“Employee”) to move their vehicle out of a handicapped parking spot, Petitioner F.R. remarked that Employee was “acting like a bitch for the other 2 ladies in the office.” When Employee expressed offense, Petitioner F.R. told Employee that he was “dumb as a post.”

On December 05, 2022, en route to the Park’s management office to file a complaint, Petitioner F.R. nearly tripped over a hose in use by Employee. Annoyed, Petitioner F.R. loudly quipped, “If I was 40 years younger I’d kick your ass!” Ms. Krisher heard Petitioner F.R.’s statement from inside her office. Ms. Krisher went outside and told Petitioner F.R. that she was going to call the police. Ms. Krisher went back inside her office and locked the door. Petitioner F.R. pounded on the door and adjoining window, demanding to be let in. When another resident approached, on an unrelated matter, Ms. Krisher opened the door and advised she would assist her later. As the resident left, Petitioner F.R. placed his foot in the doorway. Ms. Krisher told Petitioner F.R. to remove his foot and advised that he was not permitted to enter, to which Petitioner F.R. replied, “You’re a fucking bitch!” When Ms. Krisher and Petitioner F.R. began tugging at the door, Employee intervened and told Petitioner F.R. to remove his foot. Petitioner F.R. turned towards Employee, and in doing so removed his foot from the office door’s threshold, and placed his hand on Employee’s shoulder. In response, Employee told Petitioner F.R. “Don’t touch me.” Peoria Police Department (“PPD”) was contacted as a result of the incident, and responding officers were able to interview all parties involved and review soundless surveillance footage. As a result, Petitioner F.R. was trespassed from the Park’s common areas and Disorderly Conduct charges were submitted to the Peoria City Attorney’s office inconsideration of prosecution against Petitioner F.R.

On December 12, 2022, Ms. Krisher called PPD to file a report of trespass against Petitioner F.R. Responding officers advised Ms. Krisher that the trespass was “problematic” due to the civil nature of the common areas, particularly in light of the fact that resident mailboxes were located in the Clubhouse.

On December 13, 2022, Ms. Krisher was awarded an Injunction Against Harassment (“Personal Injunction”) against Petitioner F.R., issued by North Valley Justice Court, that stated, “[Petitioner F.R.] shall have no contact with Mr. Krisher except through attorneys, legal process, court hearings, and as checked.” Exceptions for e/mail and Respondent’s corporate customer service line were given by the court.

On December 16, 2022, Petitioners were served with a Notice of Termination of Rental Agreement (Material and Irreparable Violation) due to violations of their Lease Agreement; specifically, subsection 18a, the Personal conduct provision of the Rules and Regulations, and the Crime Free Addendum.

On December 29, 2022, the Personal Injunction against Petitioner F.R. was dismissed.

On January 05, 2023, when Petitioner F.R. attempted to pay rent online, the resident portal displayed the following message:

Dear Fred Rockey,

This is to confirm that any recurring payments previously set online have been suspended and are deemed refused and rejected. This may be due to the fact that legal proceedings are currently pending or other reasons. Please immediately contact the Casa Del Sol Resort East II – 5910 Community Manager.

Additional Evidence

On April 17, 2023, Petitioner F.R. was served an Injunction Against Workplace Harassment (“Workplace Injunction”), issued by San Tan Justice Court, that stated, “[Petitioner F.R.] shall have no contact with [Respondent] or other persons while that person is on or at [Respondent’s] property or place of business or is performing official work duties, except through attorneys, legal process, court hearings, and as checked” resulting from 8 incidents occurring between April 20, 2022, and March 28, 2023. No exemption boxes were marked by the court.

On April 24, 2023, pursuant to Petitioner F.R.’s appeal, the Injunction was upheld at hearing. A modification was entered to allow Petitioner F.R. to access common areas in the Park.

On May 16, 2023, Respondent issued another Notice of Termination of Rental Agreement (Material & Irreparable Violation) to Petitioners, which advised that due to Petitioner F.R.’s email correspondence to Park May 12, 2023, in violation of the Injunction, of which Petitioner F.R. had already been criminally cited for violating on April 21, 2023, for the same conduct, Petitioners’ tenancy was being terminated effective immediately due to violations of Petitioners’ Lease Agreement and Ariz. Rev. Stat. § 13-1202(A).

On June 06, 2023, a Judgment – Eviction Action was entered against Petitioners in Manistee Justice Court which held they were “[G]uilty of special detainer for material and irreparable breach in violation of Arizona law.” In total, Petitioners were assessed $6,810.16 in restitution, fines, and fees. Petitioners vacated Lot #110 that same date.

From January 2023 to June 2023, Respondent would not accept rent payment from Petitioners.

Closing Arguments

In closing, Petitioner F.R. argued that Petitioners had been retaliated against by Respondent because Petitioner F.R. had stood up against Respondent’s bullying on behalf of the Park’s residents. Petitioner F.R. accused Ms. Kirsher of being disrespectful when he raised concerns regarding street lights, potholes, and trip hazards throughout the Park that other residents were too afraid to bring to her attention. Petitioner F.R. further argued that Respondent’s refusal to accept rent was solely to evict Petitioners for nonpayment of rent.

In closing, Respondent argued that Ariz. Rev. Stat. §§ 41-006(E), 33-1434, and 33-1451, which were listed as the issues for hearing on the Notice of Hearing, were inapplicable as nonexistent or irrelevant to Petitioner’s allegation of retaliation. To the extent Respondent was in danger of being disciplined by the Department for an alleged violation of Ariz. Rev. Stat. § 33-1491, Respondent argued that Petitioners had failed to sustain their burden of proof as no evidence tended to suggest that Respondent had “increased or decreased services” or threatened Petitioners with eviction after receiving a credible complaint, notice of legal action, and/or attempted to organize prior to Petitioners’ January 24, 2023, Complaint and Petition with the Department.

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. § 41-006(E) is not a statute that exists.

Ariz. Rev. Stat. § 33-1434 requires a landlord to keep and maintain a fit premises.

Ariz. Rev. Stat. § 33-1451 requires a tenant keep and maintain their mobile home space, and prohibits unlawful repairs and removal.

Ariz. Rev. Stat. § 33-1491 provides, in pertinent parts, that “[a] landlord shall not retaliate by increasing rent or decreasing services or by bringing or threatening to bring an action for eviction,” and that “The landlord shall specify the reason for the termination of any tenancy; the reasons for which shall be set forth with specific facts, so that the date, place and circumstances concerning the reason for termination can be determined.”

The crux of the issue in this matter is not whether Respondent unlawfully evicted Petitioners from Lot #110 of the Park, it is whether Respondent “retaliated” against Petitioners within the meaning of Ariz. Rev. Stat. § 33-1491(A). The Tribunal finds that no such retaliation took place.

In the case at bar, the material facts in the record are clear. No violations of Ariz. Rev. Stat. §§ 41-006(E), 33-1434, and/or 33-1451 have bees establishes, as the referenced statutes do not pertain to this matter because they are inapplicable or do not exist. Alleged violations of Ariz. Rev. Stat. § 33-1491 have not been established by a preponderance of the evidence, as no evidence tends to suggest that Petitioners ever filed any formal complaints against the Park to its Parent company or the Department prior to being served with either 14/30 Notice or Material and Irreparable Notice, or that Petitioners filed a legal action against Respondent prior to receipt of either 14/30 Notice or Material and Irreparable Notice. Nothing in the records indicate union organization attempts were ever undertaken by Petitioners. Therefore, only other factor in consideration is whether Petitioners ever complained directly to the Park. Here, though the record does reflect that Petitioner F.R. brought both general Community concerns and resident-specific issues to Park management’s attention, the record does not support a finding that Respondent acted to evict Petitioners in retaliation.

By contrast, the record establishes that on numerous occasions Petitioner F.R.’s behavior was so combative and aggressive that both Workplace and Personal Injunctions were issued against him, law enforcement became involved, Petitioner F.R. was trespassed from Respondent’s property, and sent several letters warning that if his “threatening and intimidating behavior” did not timely cease Respondent would take action to terminate his Lease Agreement under Ariz. Rev. Stat. § 33-1491(C). Here, Petitioner F.R. admittedly attempted to curb his use of colorful language and hostilities towards Park staff, but said attempts were not long lived – due in large part, to Petitioner F.R.’s misunderstanding regarding the 14/30 Notices. Regardless, a court of competent jurisdiction already determined that Petitioner F.R.’s conduct was sufficient to constitute a “material and irreparable breach” of Petitioners’ Lease Agreement, resulting in eviction.

Therefore, because Petitioners have failed to sustain their burden of proof in this matter, the undersigned has no alternative than to conclude that the underlying Complaint and Petition be dismissed, as the Department has no grounds to discipline Respondent based on an alleged violation of Ariz. Rev. Stat. § 33-1491.

Recommended Order

Based on the foregoing,

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

IT IS FURTHER ORDERED that Respondent is not required to reimburse Petitioner’s $50.00 filing fee.

IT IS FURTHER ORDERED that Respondent’s request for attorney’s fees and costs is denied.

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 29, 2023.

Office of Administrative Hearings

/s/ Jenna Clark

Administrative Law Judge

Transmitted electronically to:

Joan Serviss, Director

Arizona Department of Housing