ALJDEC

99F-L989012-BFS-com · Department of Building and Fire Safety · 1999-07-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 19, 1999. APPEARANCES: PETITIONERS: by Russell Bailey, homeowners’ association president. RESPONDENTS: Kathy Caldwell, resident manager, and Larry Adkins, regional manager.

ADMINISTRATIVE LAW JUDGE: Anthony Halas _____________________________________________________________________ Evidence and testimony were presented by the parties at the duly- scheduled compliance hearing which convened on July 19, 1999, and based on the entire record, the undersigned makes the following Findings of Fact, Conclusions of Law, and Recommended Decision:

FINDINGS OF FACT

1. The scope of this hearing is to determine whether or not Respondents have substantially complied with the ORDER issued by the Director of the Department of Building and Fire Safety (Department) on March 24, 1999, which adopted in its entirety the RECOMMENDED DECISION OF ADMINISTRATIVE LAW JUDGE (Decision) issued on March 18, 1999. 2. That Decision was based on evidence adduced at a hearing convened on March 4, 1999, to consider allegations by Petitioners that Respondents had violated certain sections of the Arizona Mobile Home Residential Landlord and Tenant Act (A.R.S. §§ 33-1401, et seq.) (the Act). 3. The Decision provided, in pertinent part, specific findings of fact (nos. 24 - 29), conclusions of law, and an order determining that Respondents were in violation of A.R.S. § 33-1434.A.2 and .3, and directing Respondents to undertake appropriate measures to provide lighting in the Mobile Home Park (the Park) so as to provide a safe condition within the meaning of the law. 4. On May 25, 1999, Russell Bailey (Bailey), as president of AAMHO - Sand Pointe chapter and authorized representative of the park residents, filed request for hearing on compliance, stating as his reason:

“The Park was instructed to install lighting, in the park to make it a safe environment, on March 4 1999, as of the date of this letter the park has taken no action, regarding this matter.”

5. Based on Complainants’ request for compliance hearing, the Department then issued NOTICE OF COMPLIANCE HEARING on June 8, 1999, by certified mail, setting hearing for July 19, 1999. 6. At hearing, Bailey appeared and testified, and offered to submit as evidence a videotape which he had recently taken (on approximately July 15, 1999) of certain areas of the Park after dark to demonstrate the existing lighting. After additional testimony was heard, the undersigned determined that the videotape had become essentially moot, and in any event, would not be sufficiently and objectively probative to be admissible on the issue of compliance. For that reason, the videotape was not admitted. 7. In his testimony, Bailey stated that he was unaware of any efforts by Respondents to comply with the Department’s Order until shortly after the Notice of Compliance Hearing was sent out. He conceded that he had not had any verbal or written communication with any of the Respondents about the lighting and safety issue between the time of the Department’s Order and the instant compliance hearing. 8. By his observation, Bailey noted that the action finally taken by Respondents over the course of 3 or 4 days in about mid-June, had resulted in 5 new light poles in the Park, two of which he considered helpful, and 3 which he considered useless, since those three shone only in the backyards of several of the residents, and not in the common areas. 9. Once he became aware, at hearing, of the ongoing process of SRP’s involvement (about which more below), Bailey wanted further specific assurances that attention would be paid to particular areas of the Park which he considered to be insufficiently lighted, although he conceded he was not an expert in outdoor lighting requirements. 10. Testimony for Respondents was provided by Larry Adkins (Adkins), as regional manager for the Park, and Kathy Caldwell (Caldwell), as resident manager. 11. Respondents also offered as Exhibit 1 a one- page document titled “SRP Private and Security Lighting Leasing Contract” (the Contract), signed and dated April 26, 1999 by Caldwell as Park manager and SRP (Salt River Project) representative Martin Martinez (Martinez). The document was marked and admitted. 12. Caldwell explained that within about a week of the Department’s Order, or by approximately April 1, 1999, she contacted SRP to arrange for the utility company to evaluate and install appropriate lighting to meet safety concerns. She conceded she was not a lighting expert, and for that reason she relied on SRP to determine the specific lighting needed to meet safety concerns. 13. After her call to SRP, the company then evaluated the Park premises, resulting in recommendations contained in the Contract signed shortly thereafter. Caldwell explained that SRP, per the contract, recommended installation of 5 light poles holding 9 lights of a particular type, which recommendation the Park accepted without question. 14. The Contract states “4 to 6 w[ee]ks to install”, but according to Caldwell, the lights were not installed until 5 ½ weeks later, or early June, 1999. She was not sure whether installation took place before or after she received the Department’s Notice of Compliance Hearing, but credibly stated that the Notice had nothing to do with SRP’s installation process or progress. 15. Adkins provided further testimony to explain that once the lighting was installed, he toured the Park and subjectively determined that there still did not seem to be enough lighting, so further arrangements had been made to have SRP reevaluate the lighting. He also conceded he was not an expert in outdoor lighting. 16. Adkins stated Respondents did not yet know what further recommendations SRP would make, but that once again, the Park would rely on the utility company to determine what lighting was necessary to reasonably meet safety concerns, and would act promptly to approve installation. 17. He confirmed and conceded that SRP’s recommendations might not necessarily satisfy each and every resident of the Park, but that he knew of no other way to comply with the fairly subjective meaning of the Department’s Order. 18. On the basis of the foregoing, the undersigned finds that by contracting with Salt River Project to provide evaluation and installation of outdoor lighting for the mobile home park, Respondents have made, and continue to make, timely, reasonable and appropriate efforts to substantially comply with the Department’s Order.

CONCLUSIONS OF LAW

The evidence of record establishes that Respondents have made timely, reasonable and appropriate efforts to have the subject mobile home park lighting evaluated and deficiencies corrected, such that Respondents are in substantial compliance with the Department’s Order to provide a safe condition within the meaning of the Act. RECOMMENDED DECISION

In view of the foregoing, IT IS RECOMMENDED on this compliance hearing that the Director of the Department of Building and Fire Safety issue an Order confirming that Respondents have substantially complied with the terms and conditions of the Department’s Order issued on March 24, 1999, and that Case No. LTA 98-9/012 be closed. Done this day, July 29, 1999.

______________________________________ Anthony Halas 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 ___________________________

-----------------------

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