ALJDEC

99F-L989012-BFS · Department of Building and Fire Safety · 1999-03-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 4, 1999 APPEARANCES: Daniel H. Tate, spokesperson for the Petitioners; Mark Tucker, Esq. For the Respondents ADMINISTRATIVE LAW JUDGE: Lewis D. Kowal _____________________________________________________________________ FINDINGS OF FACT Admitted Violations 1. At the commencement of the hearing, Respondents admitted to the following factual allegations and violations of the Arizona Mobile Home Parks Residential Landlord and Tenant Act as set forth in the complaint Petitioners filed with the Arizona Department of Building and Fire Safety (“Department”): a) On or about December 1, 1998, Tenant Frank Collier III (“Mr. Collier”) requested a rental agreement which Respondents refused. b) When Tenant Jean Meyer moved into SandPoint Mobil Home Park (the “Park”) on October 1, 1998, she requested a rental agreement from the manager of the Park. The manager responded that she knew nothing about leases having been provided to tenants of the Park. Therefore, the manager did not give Ms. Meyer a rental agreement. c) Mr. Collier received a water bill for October, 1998 from Respondents that did not disclose the computation of rate. d) Respondents failed to disclose to Petitioners the person authorized to manage the Park, the owner of the Park ,or the person authorized to act for and on behalf of the owner of the Park for the purpose of receiving service of process or for receiving notices and demands. e) Respondents failed to provide Petitioners with an emergency telephone number. f) Respondents refused to provide Petitioners with a current copy of the Arizona Mobile Home Parks Residential Landlord and Tenant Act. 7. During the hearing, Respondents provided a copy of a written rental agreement to Daniel H. Tate, the spokesperson for Petitioners. Respondents represented that, as of the date of the hearing, written rental agreements will be provided to all manufactured or mobile home tenants of the Park (“Tenants”) who request them. 8. Respondents represented that with respect to Mr. Collier’s water bill and all Tenants similarly situated, those individuals will be compensated for overpayment of rent for October 1998, provided each tenant presents written proof of such overpayment The compensation will be credited to future rent in the amount the Tenant paid in excess of the base monthly rental amount for October 1998. 9. The evidence of record establishes that Mr. Collier was advised of Respondents’ above-stated position and has not tendered any written proof to Respondents concerning overpayment of rent. There was no evidence presented as to whether Mr. Collier can provide such documentation to Respondents. 10. Respondents have provided Tenants with the names of persons authorized to manage the Park, the name of the owner of the Park or the name of the person authorized to accept service of process and receive notices and demands. 11. Respondents have provided Tenants with an emergency telephone number. 12. Respondents have made available to Tenants copies of the current Arizona Mobile Home Parks Residential Landlord and Tenant Act, which can be obtained in the Park manager’s office. 13. All of the actions taken by Respondents in response to the above- mentioned items occurred subsequent to the filing of the complaint with the Department. 14. The evidence of record established that Ms. Caldwell became manager of the Park on October 16, 1998, but did not move into the Park until after November 20, 1998. 15. Ms. Caldwell was hired to replace Judy Barber, the former manager, because Ms. Barber did not appropriately maintain business records. According to Ms. Caldwell, the reason why the Park is requiring written proof of overpayment before it provides a credit is that the Park does not have records of rental agreements, or of who had paid rent and in what amount. Therefore, the Park is willing to credit any overpayment after it receives written proof as to the amount paid by each Tenant requesting a refund or credit from the Park. 16. It is determined that, prior to Ms. Caldwell’s employment as manager of the Park, the Park did not maintain its business records adequately. Poor management does not excuse the Park’s failure to adequately maintain business records. However, under the circumstances, it is reasonable for the Park to have acted in the manner it has with respect to the overpayment of rent of Mr. Collier and others similarly situated. Meeting at Clubhouse 17. Helen Routier, a Tenant since 1994, testified that during the last week in October 1998, Karen Hilliard, a Tenant and vice-president of the Park’s chapter of the Arizona Association of Manufactured Home Owners (“AAMHO”), spoke to her about arranging a meeting at the clubhouse of the Park to discuss AAMHO issues. They decided to arrange an AAMHO meeting the Wednesday, Thursday, or Friday before Thanksgiving. Ms. Hilliard spoke to Ms. Caldwell about using the clubhouse for that purpose and Ms. Caldwell’s response was that anytime was fine and that they should set a date. 18. Ms. Hilliard and Ms. Routier decided to hold the AAMHO meeting at the clubhouse on the Friday before Thanksgiving. Ms. Routier arranged for her uncle to hand out notices of the meetings to Tenants and to post notices on the bulletin boards by the mailboxes located throughout the Park and on the clubhouse bulletin board. 19. On the morning of November 20, 1998, Ms. Hilliard and Ms. Routier had a telephone conversation about the meeting. During that conversation, Ms. Hilliard stated that Ms. Caldwell had informed her that the meeting would have to be cancelled or postponed because Ms. Caldwell had to be physically present in the Park. However, due to another commitment, Mrs. Caldwell was not able to be at the Park on the evening of November 20, 1998. 20. Both Ms. Caldwell and Mr. credibly testified that the clubhouse could not be utilized without the presence of Ms. Caldwell at the Park. 21. The Tenants had contingency plans and the AAMHO meeting was held on November 20, 1998, in a Tenant’s mobile home with an attendance of approximately 50 people. 22. Previously, Ms. Hilliard had a key to the clubhouse that was provided by Respondents. One week prior to the meeting, Ms. Hilliard returned the key to Ms. Caldwell. There is conflicting evidence as to the circumstances surrounding the return of the key. Although Petitioners contend that Ms. Hilliard was requested to return the key, Ms. Hilliard was not present at the hearing to confirm that. Ms. Caldwell testified that Ms. Hilliard returned the key on her own volition because she did not want to be responsible for it. 23. Notices were placed on the bulletin boards throughout the Park, that the meeting would not be held at the clubhouse on November 20, 1998. 24. Although notices of the meeting were posted throughout the Park, the evidence does not establish the date when those notices were placed. However, there is a strong inference that the notices were placed prior to the morning of November 20, 1998. Therefore, under all of the facts and circumstances presented at the hearing, it is implausible that Ms. Caldwell was unaware of the intended meeting until the morning of November 20, 1998. 25. The determination that Ms. Caldwell had to be present for use of the clubhouse was made by the Park’s management because of prior vandalism in the Park involving the clubhouse area. 26. Respondents failed to present any evidence that the November 20, 1998, AAMHO meeting was held at an unreasonable hour or was being held at a time when the clubhouse was already in use within the meaning of A.R.S. §33-1452 (F). 27. Respondents’ determination that the clubhouse be used only when Ms. Caldwell is physically present, while understandable in light of recent vandalism, operated in this instance as a prohibition for the AAMHO meeting to be held. The policy violates A.R.S. §33-1452 (F). 28. There is no evidence presented as to why Ms. Caldwell did not make arrangements for Mr. Adkins or another employee of the Park to be present so that the meeting could be held. Therefore, it is determined that, because the Park either knew or should have known of the Tenants’ AMMHO meeting at the clubhouse prior to November 20, 1998, Respondents prohibited the Tenants from using the clubhouse on the evening of November 20, 1998, for purposes of holding an AAMHO meeting. 29. Petitioners contend that the Park has inadequate lighting of its streets and the weight of the evidence of record supports that contention. 30. Inadequate Lighting 31. The lighting condition of the Park has remained the same for approximately the past 11 years. Prior to the instant complaint filed with the Department, Respondents never received any complaints in writing concerning the lighting condition of the Park, nor did they receive any requests to repair the existing lights. 32. Petitioners failed to present any evidence that the condition of the lighting is such that it makes the Park unfit or inhabitable. Furthermore, no evidence was presented establishing that the Park is unsafe in terms of any accidents or incidents that may have occurred. 33. Even though Petitioners did not submit any written complaints to Respondents concerning the lighting situation at the Park prior to filing the instant complaint with the Department, the evidence of record establishes that the current lighting condition of the Park does not meet a reasonable person’s expectation of a safe condition or of a safe environment. Credible evidence establishes that the Park has inadequate lighting in that, but for two privately owned lights, the Park only has four street lights by the south wall. Those street lights function by emitting light directly below the area in which they are situated and do not illuminate the surrounding area. 34. Under the situation presented before this tribunal, the evidence establishes that the lighting conditions in the Park are at best, minimal, and insufficient to establish a safe environment for Tenants. Just because the Park has not been cited by any municipality or governmental authority for insufficient lighting and the Park’s lighting condition has been the same for the past 11 years, does not convince this Administrative Law Judge that it should continue to exist. However, adding more lighting at the Park could affect the Tenants in the future in that it may increase the expense of operating the Park. That additional expense could be a reasonable basis for a rent increase. 35. Retaliatory Action 36. Petitioners present two different actions that they claim Respondents undertook that are retaliatory in nature. The first action is the rent increase effective as of January 1, 1999. 37. Respondents present credible evidence that the rent increase was due to the owner of the Park attempting to recapture increased operating expenses involving sewage and water. Of particular significance is that the Respondents had to establish a new water well. 38. The instant Complaint was filed with the Department on January 13, 1999. The evidence establishes that the notice of rent increase was sent to Tenants in the latter part of October 1998. Therefore, the instant Complaint bears no relation to the rent increase. 39. Although Petitioners claimed to have a tape recording of a conversation between Mr. Collier and Ms. Caldwell wherein there was an admission that the rent increase was due in part to the complaints that have been filed with the State, the tape is partly inaudible and of poor quality. Mr. Collier, however, credibly testified as to Ms. Caldwell’s admission. Despite Ms. Caldwell’s testimony that the rent increase was not related to complaints made to the State, she did not deny that the statements Mr. Collier attributes to her concerning the rent increase were made. Even considering such statements as an admission on behalf of the Respondents, the weight of the evidence establishes justification for the rent increase. Under these circumstances, this Administrative Law Judge can not discern what, if any portion of the rent increase was based on the filing of the complaints, and without more details, it is determined that Petitioners failed to satisfy their burden of proving that the rent increase effective January 1, 1999, was a retaliatory act. 40. The second alleged retaliatory act is that Respondents issued 30 day notices of termination of two Tenant’s month to month tenancy. One of the termination notices was issued to Jack Bedus. 41. Prior to the above-mentioned notice, Mr. Bedus complained about sand in the water supply to Ms. Caldwell. It is undisputed that Mr. Bedus took a sample to Ms. Caldwell and that sample consisted of water taken from his toilet over a period of time. Ms. Caldwell requested that Mr. Bedus dump that sample and submit a sample taken from a water faucet in his home. Mr. Bedus never submitted another water sample to Ms. Caldwell. 42. Prior to the above-mentioned conversation with Ms. Caldwell, Mr. Bedus contacted the Arizona Department of Health Services about the perceived water problem he was experiencing. Mr. Bedus also sent an electronic message about the Park’s “water problem” to the Governor’s Office approximately one week after his conversation with Ms. Caldwell. He never received a response to the communications and did not pursue it further through those channels. 43. There is no evidence in the record establishing that, as of the time when the 30 day notice was issued to Mr. Bedus, Respondents knew that Mr. Bedus contacted the Arizona Department of Health Services or the Governor’s Office concerning the “water problem”. 44. Credible evidence was presented through the testimony of Ms. Caldwell and Mr. Adkins that the water at the Park is tested by a private water company, the State, the City, and the Park, and that the water is of good quality. CONCLUSIONS OF LAW The evidence of record established that the conduct of Respondents, as set forth above, constitutes violations of A.R.S. §§33-1413 (A) and (H) , 33-1413.01(A), 33-1432 (A) and (G), 33-1434 (A)(2), and (3), 33-1452(E) and (F). Respondents’ determination that the clubhouse be used only when Ms. Caldwell is physically present operated as a prohibition for the AAMHO meeting to be held. That policy violates A.R.S. §33-1452 (F) and must be changed. The evidence of record did not establish that Respondents violated the provisions of A.R.S. §33-1491. As Petitioners have prevailed on 8 of 9 items addressed during the hearing, it is determined that Petitioners are entitled to have the Respondents pay the filing fee pursuant to A.R.S. §41- 2198.02 RECOMMENDED ORDER As set forth above, Respondents have already addressed most of the items complained of by Petitioners. With respect to Mr. Collier’s water bill and all other Tenants similarly situated, pursuant to Respondents’ representations made during the hearing, Respondents are to compensate Tenants who were overcharged in October 1998, by providing a credit toward future rent in the amount that the Tenant paid above the base monthly rent upon the condition that each such Tenant provide Respondents with written documentation of such overpayment. On or before the effective date of the Order entered in this matter, Respondents shall: a) Undertake appropriate measures to provide lighting in the Park consistent with the above so as to provide a safe condition within the meaning of A.R.S. §33-1434 (A)(2; b) Take appropriate measures to ensure the maintenance of business records; c) Notify Tenants in writing that Respondents will compensate each Tenant who overpaid rent in October 1998, upon receipt of written documentation showing such overpayment and that the compensation shall be a credit towards future rent in the amount of the payment made above the base monthly rent; d) Shall make the clubhouse available to Tenants for meetings related to mobile home living and affairs in the Park consistent with the above and shall notify the Tenants in writing as to its policy for Tenants using the clubhouse, so as to comply with A.R.S. §33-1452 (F); and e) Shall pay to Petitioners the filing fee of $50.00 by tendering that sum to Daniel H. Tate as the designated spokesperson for Petitioners. Done this day, March 18 , 1999.

______________________________________ Lewis D. Kowal Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 1999, to:

Department of Building and Fire Safety N. Eric Borg, Director E. Virginia, Ste #100 Phoenix, Arizona 85004

Attn; Gail Hinckley

By ___________________________

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