ALJDEC decisions subject to certification as final
24F-LTA009-ADH · Arizona State Department of Housing - LTA · 2024-04-15
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Marguerite J. Chieffo, et al,
Petitioner,
v.
Kingman Ranch Mobile Home Park, et al., Respondent.
No. 24F-LTA009-ADH
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: April 09, 2024 at 9:00 AM.
APPEARANCES: Linda Brown, Esq. appeared on behalf of Marguerite J. Chieffo (“Petitioner”) with James Hilleary, Travis Mangrum, and Petitioner as witnesses. Scott Baluha, Esq. appeared on behalf of Kingman Ranch Mobile Home Park (“Respondent”) with Lorinda Moore and Neil Haney as witnesses.
ADMINISTRATIVE LAW JUDGE: Jenna Clark.
EXHIBITS ADMITTED INTO EVIDENCE: The Notice of Hearing, and attached Arizona Department of Housing (“Department”) agency file, and Petitioner Exhibits 6, 9-10, 14, and 23-36 were admitted into the record.
_____________________________________________________________________
After review of the hearing record in this matter, the undersigned Administrative Law Judge makes the following Findings of Fact and Conclusions of Law, and issues this Recommended Order to the Director of the Department.
FINDINGS OF FACT
Background and Procedure
On December 11, 2023, the Department received a Complaint and Petition for Hearing from Petitioner against Respondent for alleged violation(s) of the Arizona Mobile Home Residential Landlord and Tenant Act (“LTA”); Ariz. Rev. Stat. §§ 33-1401 through 33-1501. Specifically, Petitioner alleged that a clog in Respondent’s main sewer line resulted in both of Petitioner’s toilets “backing-up,” and causing sewage to enter into her home and HVAC unit. Petitioner further alleged that although she provided notice of the plumbing issue to Respondent, Respondent “would not take responsibility to fix or pay for defective sewer line,” leaving Petitioner to pay $4,214.10 in repairs in violation of Ariz. Rev. Stat. §§ 41-4006 and 33-1434.
On December 27, 2023, the Department provided notice of the petition to Respondent.
On December 29, 2023, Respondent submitted its timely reply to the Department.
On January 22, 2024, the Department provided Respondent’s reply to Petitioner.
On January 25, 2024, Petitioner advised the Department that she desired to move forward with an administrative hearing.
On February 13, 2024, the Department referred this matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing to determine whether ground exist for the Department to find that Respondent violated Ariz. Rev. Stat. §§ 41-4006 and 33-1434.
On March 01, 2024, the Department issued a Notice of Hearing, setting a hearing on April 09, 2024, at 9:00 a.m.
Hearing Evidence
At the hearing, Petitioner testified on her own behalf and called James Hilleary and Travis Mangrum as witnesses. Respondent called Lorinda Moore and Neil Haney as witnesses. The substantive evidence of record is as follows:
On July 31, 2023, Petitioner purchased a manufactured residential home located at 1180 E. Amelia Ave., Lot #14 Kingman, Arizona 86429, and simultaneously executed a lease agreement for said lot with Respondent.
On or about August 03, 2023, Plumbing by Jake (ROC License No. 296317) replaced Petitioner’s “water supply plumbing system,” water heater, toilet, and shower valves.
On August 08, 2023, Petitioner moved-into the property.
On August 29, 2023, Plumbing by Jake returned to perform repairs due to raw sewage back-flooding into Petitioner’s home through the toilets. At that time, Petitioner was advised that a video inspection was necessary to determine the root cause of her plumbing issue. Both Petitioner and Plumbing by Jake presumed the issue(s) were coming from somewhere in Petitioner’s sewer line.
On August 29, 2023, after a video inspection, Plumbing by Jake suspected that Respondent’s main line had “bellies” or cracks where sewer water backed into and enlarged, which was causing Petitioner’s plumbing issues.
On or about October 05, 2023, Petitioner advised Respondent that both of her toilets were in non-working order, and that there was likely a belly in Respondent’s main line. In response, Respondent offered Petitioner a $100.00 reduction in rent over 12 months “as a gesture of goodwill.” Petitioner declined the offer.
On October 11, 2023, Plumbing by Jake submitted a building permit application to Mohave County for a “sewer mainline repipe.” [Specifically, Plumbing by Jake attested that it planned to “[u]se excavator to dig up existing 3 inch sewer mainline, will dig up 0 to 15 feet replace a valley, install one clean out 5 feet of house. Backfill check for leaks. Sewer line was previously installed with cheap materials.” [sic]
After being advised of the exploratory work to be conducted on Petitioner’s lot, Respondent provided verbal authorization to Plumbing by Jake to bring an excavator onsite.
On October 13, 2023, Plumbing by Jake determined that Respondent’s main line had a belly. Because the attending plumber determined that the situation was emergent, repairs were performed without first informing Respondent. After 5 to 6 feet of pipes were replaced, Petitioner was advised that the belly had been located in Respondent’s sewer line and not in hers, where the plumber had expected it to be. Plumbing by Jake did not provide Respondent with notice of its findings.
On October 31, 2023, Petitioner provided Respondent with notice that its main line had been responsible for the plumbing issues on her lot. Petitioner further requested a $4,214.10 reimbursement from Respondent for the costs of repairs to Respondent’s main line.
Petitioner spent approximately $56,597.84 upgrading the home, including about $12,659.97 in repairs and advancements to her plumbing system.
All Plumbing by Jake invoices were issued directly to Petitioner, and paid by Petitioner.
Additional Evidence
Mr. Hilleary testified as follows:
Under Arizona law Petitioner’s sewer line liability stops at the pipe hookup point, and that anything past that connection is Respondent’s responsibility.
Any pipes underground are also Respondent’s responsibility.
Stoppage determines emergency.
A homeowner that authorizes work on mobile home park infrastructure would warrant inspection, and possible input or approval by the park.
Tenant work on park infrastructure, without prior notice or permission, would not warrant park payment or reimbursement for expenses incurred by the tenant.
Mr. Mangrum testified as follows:
He informed Petitioner that underlying repairs might be Respondent’s responsibility, but could not opine for certain until camera inspection was performed.
During subsequent excavation, he discovered the line in a location he had not presumed it to be located in, and told Petitioner that it belonged to Respondent.
Mr. Haney testified as follows:
Photographs taken by Plumbing by Jake show a typical connection from a mobile home to a park’s main sewer line.
Tenant maintains within twenty-five (25) feet from the main line.
Five (5) to six (6) feet of line that cut across and over to neighbor’s lot from Petitioner’s lot, is Petitioner’s responsibility.
Pipes from mobile homes are typically smaller in size, when compared to a park’s main sewer line which is typically larger.
Closing Arguments
In closing, Respondent argued that Petitioner failed to establish her burden of proof, as no evidence was presented to establish that Respondent is required to pay for, or is otherwise financially liable for, repairs performed on her lot October 13, 2023. Respondent argued that Petitioner performed exploratory construction on her property with its permission, but that Petitioner did not have authorization to perform repairs or replacements to Respondent’s sewer line without notice, an opportunity to inspect, or an opportunity to attempt to obtain bids from other plumbers to perform the work cheaper, if indeed necessary. Respondent opined that Petitioner’s attempt to impose liability after-the-fact is impermissible because it violates Respondent’s Due Process rights. Respondent further opined that Petitioner failed to establish the location and/or distance her sewer connection point was from Respondent’s main line, to establish the existence of where the parties’ duties, obligation, rights, and responsibilities begin and/or end. Record reflects that pipe section removed from Petitioner’s lot, some of which may have crossed over to the neighboring lot but no one can state with certainty because Petitioner did not provide photographic evidence. Moreover, Respondent requested that an order be issued in its favor with an award of attorney’s fees as the prevailing party.
In closing Petitioner opined that she sought a just resolution and only wanted reimbursement of monies spent to repair Respondent’s main sewer line. Petitioner argued that Respondent was placed on notice October 05, 2023, and failed to inspect or otherwise investigate. Respondent further argued that Respondent’s offer of $1,200.00, over the course of a year, was an admission of liability. Petitioner concluded by requesting an order issued in her favor, including a $4,214.10 reimbursement award from Respondent and an award of attorney’s fees and costs.
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 Respondent’s alleged statutory violation(s) by a preponderance of the evidence. Respondent bears the burden of persuasion 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. § 33-1434 provides, in pertinent part, as follows:
The Landlord shall:
Comply with the requirements of all applicable city, county and state codes materially affecting health and safety.
Make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition.
Ariz. Rev. Stat. § 41-4006 provides, in pertinent part, as follows:
E. Notwithstanding any other provision of this section, the owner of a manufactured home or mobile home located in a park subject to title 33, chapter 11 is responsible for the maintenance of utility connections from any outlets furnished by the landlord pursuant to section 33-1434 to the unit, 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.
Statutes shall be liberally construed to affect their objects and to promote justice. In interpreting a statute, “[w]e first consider the language of the statute and, if it is unclear, turn to other factors, including ‘the statute’s context, subject matter, historical background, effects, consequences, spirit, and purpose.”
Statutes should be interpreted to provide a fair and sensible result. “In applying a statute its words are to be given their ordinary meaning unless the legislature has offered its own definition of the words or it appears from the context that a special meaning was intended.”
The Tribunal is required to apply equitable principles when rendering decisions. The application of equity entails offering a remedy to avoid an unconscionable or unjust result.
The crux of the issue in this matter is whether Petitioner had prior authorization from Respondent to repair and/or replace a portion of Respondent’s main sewer line, to remedy lot #14’s plumbing issues, which would establish grounds by which Respondent would be required to reimburse Petitioner’s plumbing-related expense(s).
In the case at bar, the material facts in the record are clear.
The record reflects that on or about October 05, 2023, Petitioner advised Respondent of her plumbing issues and opined that the cause was likely a belly in Respondent’s main line, but that belief was not confirmed until October 13, 2023, when Plumbing by Jake excavated and made the determination. The record also reflects that repairs were performed to correct the main line’s belly on October 13, 2023, without prior notice or authorization from Respondent, which Petitioner paid $4,214.10 for the same date. The record further reflects that Petitioner did not provide Respondent with actual notice that its main line had been responsible for the plumbing issues on her lot until October 31, 2023.
No credible evidence exists in the record to establish that the underlying connection at issue was located within twenty-five (25) of Respondent’s main sewer line.
Therefore, the only question that remains is whether Respondent is liable to reimburse Petitioner $4,214.10 for the repair/replacement of its main sewer line despite the lack of notice or authorization. Giving consideration to the emergent nature of the biohazardous plumbing issue at bar against Respondent’s Due Process rights, and in light of the foregoing, the Tribunal concludes that Respondent cannot be required to reimburse Petitioner for plumbing services performed on October 13, 2023.
Because Petitioner has failed to sustain her burden of proof in this matter, the undersigned has no alternative than to conclude that her petition must be dismissed. The Department has no grounds to discipline Respondent based on alleged violations of Ariz. Rev. Stat. §§ 41-4006 and 33-1434.
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 shall not be required to reimburse Petitioner’s $50.00 filing fee.
IT IS FURTHER ORDERED that Respondent shall not be required to pay Petitioner’s attorney’s fees and related costs.
IT IS FURTHER ORDERED that Respondent’s request for attorney’s fees and costs are 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, April 15, 2024.
Office of Administrative Hearings
/s/ Jenna Clark
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Joan Serviss, Director
Arizona Department of Housing
1110 W. Washington St., Ste. 280
Phoenix, AZ 85007
Linda Marie Brown, Esq.,
Black Mountain Law Offices, PLLC, Counsel for Petitioner
2020 Silver Creek Rd., Ste. A220
Bullhead City, AZ 86442
[email redacted]
Scott E. Williams, Esq.
Mark B. Zinman, Esq.
Scott A. Baluha, Esq.
Zona Law Group P.C., Counsel for Respondent
7701 E. Indian School Rd., Ste. J
Scottsdale, AZ 85251
[email redacted]
By: OAH Staff