ALJDEC decisions subject to certification as final

98F-L978018-BFS · Department of Building and Fire Safety · 1998-08-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

On or about July 23, 1998, the undersigned Administrative Law Judge received a Motion to Dismiss and a Motion to Continue from J. Denton Dobbins, Jr., counsel for the Respondents. The basis of the Motion to Dismiss is that this matter has already been adjudicated (in favor of the Respondents) in the West Mesa Justice Court. Accordingly, the Respondents argue that the Doctrine of Res Judicata bars the re-litigation of the same issues in this matter.

On or about July 31, 1998, the undersigned Administrative Law Judge received a Response to the Motion to Dismiss from C. Steven McMurry, counsel for the Petitioners. The basis of this Response is that the Petitioners believe that Justice of the Peace Samuel Goodman of the West Mesa Justice Court erroneously rejected the Petitioners’ primary jurisdiction argument. The Petitioners believe that the Department of Building and Fire Safety (the “Department”) has primary jurisdiction and that the Office of Administrative Hearings should have heard this matter instead of the West Mesa Justice Court.

HISTORY

On or about May 6, 1998, the Respondents sent a notice to the Petitioners purporting to terminate their tenancy. On or about June 9, 1998, the Respondents filed a forcible detainer action in West Mesa Justice Court. The basis of the forcible detainer action appears to be that the Petitioners had violated certain park rules and regulations.

On or about June 19, 1998, Justice of the Peace Samuel Goodman signed a Minute Entry finding no presumption of retaliation. On or about July 13, 1998, Justice of the Peace Samuel Goodman found the Petitioners guilty of forcible detainer.

The undersigned Administrative Law Judge has reviewed the Petitioners’ Petition for Hearing, dated June 4, 1998, filed with the Department. In this Petition, the Petitioners have requested that the Department intervene and stop the Respondents from “illegally” evicting them. Accordingly, the two primary issues before this tribunal are (1) Do the Respondents have valid grounds to evict the Petitioners and (2) Has there been an improper retaliation by the Respondents?

These two primary issues are identical to the issues that were already litigated before Justice of the Peace Samuel Goodman. However, the Doctrine of Res Judicata applies only to final decisions. Reed v. Frey, 10 Ariz.App. 292, 294 (1969). The Petitioners’ Counsel has indicated that the Petitioners have appealed Justice of the Peace Samuel Goodman’s ruling.

RECOMMENDATION

Based upon the foregoing, IT IS ORDERED that the hearing scheduled for August 20, 1998, at 9:00 a.m. shall be vacated from the calendar of the Office of Administrative Hearings. IT IS FURTHERED RECOMMENDED that this matter shall be dismissed without prejudice and remanded to the Department pending the outcome of the Petitioners’ appeal. If the Petitioners prevail on their appeal, then this matter can be reset on the calendar of Office of Administrative Hearings. Otherwise, the Doctrine of Res Judicata shall bar re-litigation of the issues in this matter. The Respondents’ Motion to Continue is denied.

Done this day, August 5, 1998.

______________________________________ Casey J. Newcomb Administrative Law Judge

Copy mailed this ____ day of August, 1998, to:

Mr. N. Eric Borg, Director Department of Building & Fire Safety E. Virginia, Suite 100 Phoenix, AZ 85004 ATTN: Michelle M. Castaneda

C. Steven McMurry 3030 N. Central Ave. STE 1000 Phoenix, AZ 85012

J. Denton Dobbins, Jr. KOGLMEIER, DOBBINS, NELSON & DELGADO, P.L.C. 715 N. Gilbert Rd., STE 5 Mesa, AZ 85203

By ___________________________

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826