ALJDEC

97F-L967026-BFS-RES · Department of Building and Fire Safety · 1998-11-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 12, 1998.

APPEARANCES: Petitioner, Beachcomber Resort, was represented by its attorney, Michael A. Parham, Esq.

Respondents, Vernon and Karen Lee, appeared in their own behalf.

Respondents, Steve and Cheryl Wiencek, appeared through Cheryl Wiencek.

ADMINISTRATIVE LAW JUDGE: Robert. I. Worth _____________________________________________________________________

Evidence and testimony were presented, and based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order on Compliance Hearing are made.

FINDINGS OF FACT

1. The instant hearing was limited to the issue of whether the terms and conditions of the previously entered Order in this matter have been substantially complied with by Petitioner.

2. None of the named parties to this administrative action either petitioned for a rehearing following the entry of the prior Order or filed an appeal with the Superior

Court, and therefore such Order has become final and non-appealable. Consequently, neither the findings, conclusions nor recommendations contained in the prior Order may properly be collaterally attacked in this proceeding, but instead all are binding upon each of the named parties as well as upon the Administrative Law Judge.

3. The previously entered Order was the result of findings and conclusions made after an evidentiary hearing on the merits. In essence, Petitioner was held to be equitably estopped from divesting the Wienceks as the tenants of space number 311 of their entitlement to continue utilizing the parking space shown to be located on a portion of space number 309. Additionally, the Lees, as tenants of space number 313 were held to be entitled to maintain in its present location that portion of an awning structure which intruded onto some part of space 311. The contents of the prior opinion did not expressly indicate whether or not the respective entitlements for continued use was to be without additional future rental cost to the respective tenants.

4. Mindful of the fact that applicable statutory provisions do not permit the Administrative Law Judge to render adjudications on matters relating to rental charges, the prior opinion did attempt to alert the respective parties to the possibility that future adjustments may be appropriate based upon a re-allocation of rental charges if the use of certain portions of adjacent rented spaces are either continued or discontinued.

5. It was not disputed that Petitioner implemented an increase in monthly rental for both the Wiencek space number 311 and the Lee space number 313 in the identical amount of $75.00 each. The tenants have paid the amount of this increase since the subsequently adjusted effective date of June 1, 1998.[1]

6. The credible testimony indicated that in February, 1998, Petitioner had also lowered the monthly rental on space number 309 which was adjacent to the Wiencek

space number 311. This reduction was originally intended to coincide with the increased rentals on spaces 311 and 313. No net rental benefit following the above-described adjustments was to be realized by Petitioner. On the contrary, not only did the resulting total rents receivable by Petitioner remain unchanged, but it was shown that the lowered rental for space number 309 went into effect almost four months earlier than the corresponding increases for spaces 311 and 313 due to a delayed starting date for the increases necessitated by the sending of invalid notifications to Respondents as the tenants of those spaces.

7. The terms of the prior Order purported to give the Wienceks, as space 311 tenant, an opportunity to elect to discontinue use of the parking space in return for a possible rent reduction in recognition of their long- time permitted usage of the area. No specific mention was made in the Order of the quantum of any such reduction nor of the impact upon future rental charges for space 311 in the event that the Wienceks elected to continue rather than discontinue their use of the parking area sought by Petitioner to be restored for the use of the tenant of space 309. However, the language contained in the Order did address the possibility that continued use of the parking space by the Wienceks, as space 311 tenants, might justify and warrant an appropriate rent reduction for the tenants of space number 309. Specifically, the last sentence of Conclusion of Law, Number 4, provided that the “…restoration of the terminated permissive use by others of certain areas adjacent to the unit on space 309 could potentially also support an appropriate downward rental adjustment for the Tenants of space 309.”

8. Earlier in the same conclusion of law, language was inserted that contemplated an upward revision of the rental for space 313 based upon the location of the existing awning on the side bordering space 311, and mention was made of a corresponding decrease in the space 311 rental. Specifically, it was stated that “…Similarly, the additional area encompassed by the existing awning, also becoming part of the ‘leased space’ for the unit on space 313, might well ultimately prompt an upward revision in the rental charge at the next renewal date, perhaps equal to any reduction of the space 311 rental.”

9. Viewing the subsequent actions by Petitioner in their entirety, it is found that there was no violation of the terms of the prior Order, but rather all actions were wholly consistent with a reasonable and equitably supportable re-allocation of the usages of lot space, respectively, for parking an automobile or for maintaining an existing awning. The provisions of the prior Order may not be properly construed to have conferred any rights to either of the tenants named as Respondents in this action to continue their respective permissive uses at no additional rental cost. The combined effect of all the rent adjustments affecting the three contiguous spaces was to lower the space 309 rent by $150.00, to increase the space 313 rent by $75.00 and to equalize the impact of such changes with an increase of the rent on space 311 in the net sum of $75.00 (adding $150.00 to offset the space 309 reduction and crediting $75.00 to offset the space 313 increase).

10. The manner of implementing the rental modifications by Petitioner was demonstrated to have been the product of a good faith effort to reapportion the combined rental charges for the three adjacent lots affected by the outcome of the initial hearing on the merits. No discriminatory or retaliatory intent may reasonably be inferred with respect to any aspect of Petitioner’s dealings with its tenants following the entry of the prior Order. Moreover, absent any demonstration of discriminatory or retaliatory action, all issues relating to the various space rental charges within a mobile home park, whether they be identical or different depending on mobile home unit size, lot size, or lot location, or a combination thereof, does not appear to be a matter properly before the tribunal at this limited compliance hearing and perhaps not even an appropriate matter to be addressed at all by the administrative hearing process.

11. With respect to that portion of the prior Order making reference to the initiation and accomplishment of effective measures to more physically and visibly define boundary lines between spaces, this requirement would be applicable, if at all, if such identification of rental spaces was deemed by petitioner to be necessary or desirable in the future. Petitioner decided that more elaborate surveys or other lot boundary determinations were neither necessary nor desirable. Although the failure by Petitioner to undertake efforts to confirm or to dispel any prior encroachment

determinations by formally ascertaining and delineating boundaries at least for the three adjacent spaces in issue at these administrative proceedings may reflect perhaps questionable wisdom, it cannot be held its decision to do so was arbitrary, unjustified or otherwise violative of the spirit and intent of the terms of the prior Order.

12. The remaining specific provisions of the previously entered Order related to directives that Petitioner, as the mobile home park owner and landlord, cease any efforts to compel the Lees, as space 313 tenants, to remove or relocate the awning attached to the mobile home and also that it rescind prior notification to the Wienceks, as space 311 tenants, to stop using the parking space near the adjacent lot. The evidence at the compliance hearing revealed no violation by Petitioner of either of these directives.

CONCLUSIONS OF LAW

1. The totality of the evidence adduced at the scheduled compliance hearing adequately established that Petitioner has not violated or circumvented any of the terms and conditions contained in the previously entered Order in this case.

RECOMMENDED ORDER ON COMPLIANCE HEARING

In view of the foregoing, it is recommended that appropriate notation be made in the records of this matter that Petitioner has not violated, but rather has substantially complied with the provisions of the prior Order issued hereunder, and it is further recommended that this entire Case Number LTA 96-7/026 be closed.

Dated: November 19, 1998.

OFFICE OF ADMINISTRATIVE HEARINGS

_________________________________ Robert. I. Worth Administrative Law Judge

Original transmitted on _____________________

by: _____________________________ , to:

Mr. N. Eric Borg, Director Department of Building and Fire Safety East Virginia (Suite 100) Phoenix, Az. 85004

ATTN: Dawn Castle ----------------------- [1] The $75.00 increases for spaces 311 and 313, respectively, were sought to be imposed in February, 1998, but due to the failure to transmit appropriate advance notices of the proposed increases, Petitioner subsequently caused refunds to be sent to each tenant in amounts equal to two months of the increased portions of rentals that had been promptly paid by both tenants but which had been prematurely and improperly assessed. Thereafter, Petitioner issued new notices of its intent to impose the same increases, starting at a later date.

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Office of Administrative Hearings 1700 West Washington, Suite 602 Phoenix, Arizona 85007 (602) 542-9826