ALJDEC decisions subject to certification as final

23F-LTA2324003-ADH · Arizona State Department of Housing - LTA · 2024-03-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Melissa Archibald et al.,

Petitioner,

vs.

Continental West et al.,

Respondent.

No. 23F-LTA2324003-ADH

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: March 01, 2024 at 9:00 AM.

APPEARANCES: No appearance by or on behalf of Melissa Archibald (“Petitioner”). Scott Baluha, Esq. appeared on behalf of Continental West (“Respondent”).

ADMINISTRATIVE LAW JUDGE: Jenna Clark.

EXHIBITS ADMITTED INTO EVIDENCE: N/A.

FINDINGS OF FACT

Background and Procedure

On January 02, 2024, the Arizona Department of Housing (“Department”) issued a Notice of Hearing (“Notice”) setting the above-captioned matter for hearing on January 19, 2024, at 9:00 a.m., at the Office of Administrative Hearings (“OAH”) in Phoenix, Arizona. The Notice provided, in pertinent part, as follows:

Petitioner alleges violations of the Arizona Mobile Home Residential Landlord and Tenant Act, A.R.S. §§ 41-006(E), 33-1434, and 33-1451.

* * *

If the Petitioner does not appear, the Petition may be dismissed.

(Emphasis added.)

Correspondence was not returned as undeliverable from either party.

On January 03, 2024, Respondent submitted a Motion to Continue to OAH. Having received no objection from Petitioner, on January 05, 2024, the Tribunal issued a Minute Entry – Granting Continuance which reset the matter for continued hearing at 9:00 a.m. on March 01, 2024. Correspondence was not returned as undeliverable from either party.

Hearing Evidence

On March 01, 2024, at the time scheduled for hearing, Respondent appeared with counsel and two witnesses.

Although afforded a ten (10) minute grace period, however, Petitioner failed to appear for the hearing. No written request to appear via alternative means or continue the matter was received by or on behalf of Petitioner. Petitioner is deemed to have defaulted their appearance.

There is no Settlement Order on file for this case at OAH.

CONCLUSIONS OF LAW

The Department has jurisdiction over this matter pursuant to Title 33 Chapter 11 of the Ariz. Rev. Stat. The matter was properly brought before OAH pursuant to Ariz. Rev. Stat. §§ 41-1092 et seq.

Petitioner bears the burden of proof by a preponderance of the evidence. Respondent bears the burden to establish any 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. Admin. Code R2-19-117 provides that if a party fails to appear at a hearing, the administrative law judge may vacate the hearing and return the matter to the agency for any further action.

Here, Petitioner failed to appear without establishing good cause. As such, it must be concluded that Petitioner defaulted their appearance.

Because Petitioner failed to sustain their burden of proof in the matter, due to their defaulted appearance(s), their appeal must be dismissed.

RECOMMENDED ORDER

Based on the foregoing,

IT IS ORDERED, pursuant to Ariz. Admin. Code R2-19-111(4), R2-19-117, and R2-9-119(B)(1), this matter is hereby vacated from OAH’s calendar.

IT IS FURTHER ORDERED that this matter is hereby remanded to the Department for further action, if any.

NOTICE

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 forty (40) days from the date of that certification.

Done this day, March 01, 2024.

Office of Administrative Hearings

/s/ Jenna Clark

Administrative Law Judge

Copy mailed/e-mailed/faxed to:

Joan Serviss, Director

c/o Evelyn Estrella & Tara Brunetti

Arizona Department of Housing

1110 W. Washington St., Ste. 280

Phoenix, AZ 85007

[email redacted]

[email redacted]

Melissa Archibald et al., Petitioner

3810 N. Romero Rd. Lot 40

Tucson, AZ 85705

[email redacted]

Scott Baluha, Esq.

Scott Williams, Esq.

Mark Zinman, Esq.

Zona Law Group P.C., Counsel for Respondent

7701 E. Indian School Rd., Suite J

Scottsdale, AZ 85251

[email redacted]

By: OAH Staff