ALJDEC

99F-L989020-BFS · Department of Building and Fire Safety · 1999-08-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 13, 1999. APPEARANCES: PETITIONER: Timothy Jungling, on his own behalf. RESPONDENTS: Lisa Dick, Resident Manager; Marilyn Beban, Owner.

ADMINISTRATIVE LAW JUDGE: Anthony Halas _____________________________________________________________________ Hearing in this matter was duly scheduled and convened on August 13, 1999, before the undersigned administrative law judge of the Office of Administrative Hearings. Testimony was taken and other evidence admitted. Based on the record taken as a whole, the following Findings of Fact, Conclusions of Law, and Recommended Decision are made:

FINDINGS OF FACT 1. At all times relevant herein, and since February, 1991, Petitioner Timothy Jungling (Jungling) and his wife and children resided at Space #169, Three Fountains Mobile Home Park (Three Fountains MHP), 5950 West Missouri Avenue, Glendale, Arizona. 2. On June 9, 1999, Jungling filed a complaint with the Department of Building and Fire Safety (Department), alleging violations of A.R.S. §§ 33-1452.A.3, 33-1434.A.7, and 33-1491 of the Arizona Mobile Home Parks Residential Landlord and Tenant Act (the Act; A.R.S. § 33-1401, et seq.) 3. On June 21, 1999, Respondents filed their timely answer with the Department, denying the alleged violations, and with the issues thus joined, the Department served notice of hearing. 4. At hearing, Jungling appeared and testified on his own behalf, and presented the testimony of Nancy Jungling, his mother and a witness to certain events and circumstances comprising an element of Jungling’s complaint. 5. In the course of his testimony, Jungling also alleged that Respondents’ actions in providing notice of certain information failed to meet the Act’s notice requirements in A.R.S. § 33-1412. 6. Jungling also offered photographs he himself took on about June 6, 1999 as Exhibits A1 - A3, B1 - B3, C1 - C4, D1, and E1 - E2, as well as documentary Exhibits F and G. All the exhibits save Exhibit G were marked and admitted without objection; Respondents' objection to Exhibit G as lacking relevance was overruled. 7. Respondents appeared, with primary testimony by and through resident manager Lisa Dick (Ms. Dick). Also providing testimony was owner Marilyn Beban (Beban), and Marjorie Dick, mother of Lisa Dick and an employee of Three Fountains MHP. 8. Respondents offered Exhibits 1, 2A - B, and 3. All the exhibits save Exhibit 1 were marked and admitted without objection; Petitioner’s objection to that exhibit was overruled. Respondents also provided demonstrative evidence in the form of a videotape taken by Ms. Dick, which was viewed by the undersigned but not admitted into the record. 9. Administrative notice is also taken of certain documents, particularly Petitioner’s Complaint, and the documents attached thereto, and Respondents' Answer, with its attached documents. Those additional documents include, but are not limited to, documents referenced by the parties at hearing: the completed Mobile Home Park Rental Agreement executed on February 5, 1991 by Petitioner and the authorized agent for Respondent Three Fountains MHP’s predecessor in ownership interest; Petitioner’s Acknowledgment of Receipt at the time of the rental agreement of documents specified in A.R.S. § 33-1432; Set-Up Requirements for Re-Sale Mobile Homes, with annotations of additional matters requiring correction, signed by Petitioner’s wife on February 6, 1991; various Notices issued by Ms. Dick for Three Fountains MHP between February 20, 1999, and June 9, 1999; and the Three Fountains MHP Rules and Regulations in effect at the time the rental agreement was entered into (Rules I). 10. In addition, administrative notice is taken that Petitioner submitted with his complaint an updated version of the Rules and Regulations in effect in 1998 and 1999 (Rules II), but only the front side of the two-sided copy has apparently been reproduced for this record. The testimony of Jungling and Ms. Dick confirmed and clarified that changes had been made in the format and numbering of the Rules, and to a lesser extent, in the language of certain of the rules. 11. Consistent with the format of both the Complaint and the Answer, the testimony and evidence presented at hearing addressed in order the several statutory violations alleged vis-à-vis particular facts and circumstances:

A.R.S. § 33-1152.A.7: 12. THE STORAGE SHED (Complaint Item 1A): Jungling asserted that several notices issued by Ms. Dick (dated 2/20/99, 4/28/99, 5/27/99, and 6/9/99), as resident manager for Three Fountains MHP, singled him out unfairly with regard to his storage shed (and other items, about which more below), since other storage sheds in the Park also extended onto adjacent spaces, but were apparently not the subject of Notices. 13. Jungling conceded, in each instance in which he alleged a violation of A.R.S. § 33- 1152.A.7 based on Notices he had received, that he was not aware whether a similar notice had been issued to any other space-tenant with a similar shed, fence, toys, or otherwise “not approved” circumstance, and that the Park management refused to give him that information. 14. Jungling referred to photographic Exhibits A1 (of Space 158), A2 (Space 115), and A3 (Space 125) to demonstrate other sheds on other particular spaces, which appeared in each instance to cross into an adjacent space. 15. Jungling also asserted that he didn’t need approval for the shed according to his reading of the Rules, and that its paint scheme matched that of his mobile home, but even if approval was required, the Park’s failure to notify him until April, 1999, after he had built the shed in December, 1998, that the shed was not approved or in compliance with the Rules should preclude the Park from requiring approval after that length of time. 16. In addition, Jungling asserted that he had moved the shed sometime in April such that it no longer crossed into the adjacent space, and for that reason would no longer require approval, if it ever did. 17. Ms. Dick contended that the Rules and Regulations (Rules I: X.1 - .4) did require approval if the shed color was not compatible, or, if it extended to another space, approval of that space-owner, but that no such approval had been provided by the Park to Jungling, or to the Park by the space-owner adjacent to Jungling. 18. Ms. Dick also contended that although she was aware the shed had been moved by June 9, 1999, it was not moved until after she had videotaped its location on May 26, 1999. 19. With regard to the sheds on Space 158 and Space 125, Ms. Dick contended that each had been approved by prior management, and that the shed on Space 115 was brand new, and had been moved and approved on inspection, and that the rule regarding sheds had therefore been applied to Jungling just as to the other tenants. 20. On the testimony and evidence presented, the undersigned finds that the record does not support, by a preponderance, any finding that the rules relative to the shed were unfairly applied to Jungling. 21. THE PATIO FENCE (Complaint Item 1B): Jungling asserted that he got the idea for his patio enclosure (seen in photo B2) from Space 22 (seen in photo B1), and that Space 4 (seen in B3) also had a similar fence, both of which he assumed were approved, and that he had built his enclosure in the spring of 1996, such that (like the shed), the Park was either unfairly applying the rules to him, or was barred by lapse of time from now contending that the fence was not approved or in compliance. 22. Ms. Dick asserted that the rules (Rules I: V.4 and .6) required that the Park approve any such enclosure or structure, and that those rules had not been unfairly applied to Jungling because the tenants (and their patio fence) in Space 22 had been there since the early 1970’s, before the Rules and Regulations had been in existence, and were therefore properly “grandfathered” for approval, but that Jungling’s fence had been built after the rules had been adopted, and not been approved, and was therefore subject to the notices issued. 23. With regard to Space 4, Ms. Dick asserted that she had sent notice approximately two months ago that the patio fence was not approved, such that it had by now been at least partially removed. 24. On the testimony and evidence presented, the undersigned finds that the record does not support, by a preponderance, any finding that the rules relative to the patio fence or enclosure were unfairly applied to Jungling. 25. TOYS AND OTHER ITEMS ON PATIO (Complaint Item 1C): Jungling asserted that the plastic jungle-gym and sandbox on his patio (photo B2) were for his children’s use, and were not any different in kind than similar items seen in other spaces: the wading pool, wagon and bike on Space 91 (photo C1); the small bikes and plastic wheeled toys on the patio of Space 155 (photo C2); the plastic sandbox on Space 79 (photo C3); and the hot tub on the patio of Space 11 (photo C4), such that any notice to him but not the others was an unfair application of the rules. 26. Ms. Dick contended that such personal property had to be stored according to the terms of the rules (Rules I: XI.2), and that Jungling had not been the subject of an unfair application of the rules because Space 91 had been given a health and safety notice for the wading pool sometime between May 27 and June 11, 1999; Space 155 had been given notice of noncompliance on May 27, 1999; Space 79 had been given a “doorhanger” notice earlier in the year; and the hot tub on Space 11 had been pre- approved early in 1999 before its installation in about March 1999 (or it would have been in violation of Rules I: V.4). 27. On the testimony and evidence presented, the undersigned finds that the record does not support, by a preponderance, any finding that the rules relative to the toys or hot tub were unfairly applied to Jungling. 28. AWNING POST BENT (Complaint Item 1D): Jungling asserted that the bent driveway awning post on his space (photo D1) had been present since before his residency began in 1991, but had never before been deemed subject to correction by Three Fountains MHP until referenced in the series of notices he contended had been unfairly directed to him. 29. For that reason, Jungling did not believe Three Fountains MHP could now require correction; his reasoning being that, by ignoring the obviously-bent post for perhaps a decade or more, the Park must now accept the post as it was, with approval essentially grandfathered in due to the Park’s inaction. 30. Jungling also asserted that Spaces 208 and 113 had bent awning posts, and he was therefore being singled out for correction not required of others in the Park. 31. Ms. Dick contended to the contrary in stating that Spaces 208 and 113 did not have bent posts, nor did any other spaces which had not been issued notices to correct. 32. Relative to the particular Rules and Regulations at issue, Ms. Dick referenced Rules I: XII.1 and .2, as well as IV.8, which was the rule defining “Set-up Requirements” at the time of move-in. She noted that such requirements annotated with reference to Space 169 at the time of Jungling’s move-in in 1991 had provided that “Bent posts on carport - need replaced”, which she assumed had never been done, conceding that those requirements had been written by prior owner/management. 33. On the testimony and evidence presented, the undersigned finds that the record does not support, by a preponderance, any finding that the rules relative to the bent awning post were unfairly applied to Jungling. 34. EXCESS ITEMS BEHIND HOME (Complaint Item 1E): Jungling understood that this subject matter of the notices issued by the Park regarded the presence of a radial-arm saw (although it was not specified), which had been behind his home for about 3 years, but which he had moved into his shed on June 6, 1999. 35. Jungling also explained that circumstances forced him to keep a refrigerator in the back of his pick-up truck for several weeks until he could get the refrigerator to the dump, notwithstanding an apparent incident in mid-April, 1999, at the Park’s trash bins, at a time when he did not think the presence of Brian Gauthier (Ms. Dick’s husband) was a coincidence. 36. With regard to “excess items”, Jungling believed that this enforcement of the rules from and after February 20, 1999, was meant to single him out, since he had observed “excess items” behind homes on other spaces, including Spaces 187, 190, and 141. He also had photographed a ladder, tubing, and metal flashing behind Space 112 (photo E1), and a 5 gallon paint bucket behind another space (photo E2; space number unavailable in record), all of which he stated was present from February, 1999. 37. Ms. Dick stated that the saw was still there through at least May 26, 1999, but she agreed it had been moved by the time she took the videotape on July 23, 1999. 38. Upon consideration of her testimony and review of the demonstrative videotape produced by Ms. Dick, the undersigned finds that Ms. Dick was also concerned with excess items evident on and around other spaces in the Park. 39. On the testimony and evidence presented, the undersigned therefore finds that the record does not support, by a preponderance, any finding that the rules relative to “excess items” were unfairly applied to Jungling. 40. APRIL 26, 1999 NOTE ON WIFE’S CAR (Per Complaint, but not identified by number): Jungling described his understanding (gained from discussion with his wife, since he was not present during the conversations she had with Ms. Dick) of the circumstances in which his wife Barbara had found a note on their car when it was parked near the Park clubhouse, and as directed in the note, had then called Ms. Dick. 41. Jungling recalled the conversation between his wife and Ms. Dick as having taken place on April 26, 1999, since he remembered that Barbara had called him at work that day, the first day of his new job. 42. According to Jungling, Ms. Dick told Barbara to move the car that night or it would be towed, and that it could not be put in the Park’s storage lot for additional rent, as Barbara requested, and as Jungling understood was allowed per the rules and regulations (Rules II: p. 14, Other Charges (not in record)). 43. Then, when Barbara called back, Ms. Dick hung up on her, and after a third call, heated words were exchanged, with a notice of termination issued by the Park to the Junglings two days later, which he considered to be evidence of retaliation. 44. Ms. Dick contended that she had not been on call on April 26, 1999, basing her recollection in part on management’s assignment log of who was on call on April 26, 1999 (Exhibit 3), and therefore did not speak with Mrs. Jungling that day. She stated that the conversation in question had not taken place until after the notice of termination had been issued, such that it could not have been and was not in retaliation for the conversation and incident about clubhouse parking. 45. Ms. Dick also stated that the rules and regulations regarding parking did provide a space-available limited option of paying to park in the clubhouse area, but that at the time in question, that option had been discontinued due to lack of space (Rules I: XXIV.2,.6, and.7). 46. On the testimony and evidence presented, the undersigned finds that the record does not support, by a preponderance, any finding that the rules relative to parking by the clubhouse were unfairly applied to Jungling. 47. HOSTILITY BY PARK MANAGEMENT AFTER 1994 DISCRIMINATION COMPLAINT (Per Complaint but not numbered): Jungling stated that in 1994 his wife had filed a discrimination complaint against the park, and had been awarded a sum of money in December 1994, and that ever since, the Park management had been hostile, rude, and indifferent to his family and their needs. 48. Throughout his testimony, Jungling described anecdotal incidents, events and circumstances which he perceived to be the result of the Park management’s attitude which he believed resulted in the specific “singling out” of his family as he itemized in his complaint. 49. Ms. Dick responded to deny any hostility or rudeness on her part or that of the other management personnel, stating that since the Park ownership and management had changed after 1994 (she herself had been hired as resident manager late in 1996, about 3 months after the Park’s ownership had changed in July of that year), she had been unaware, until the complaint had been filed in this instance, of that prior issue of discrimination. 50. Marilyn Beban (Beban) testified to explain her current ownership interest in Three Fountains MHP, confirming that she had also been involved, in a different capacity, with the predecessor Park ownership before July, 1996. 51. However, Beban denied sufficient personal knowledge of the circumstances of the Jungling’s 1994 discrimination claim to even know that they were the residents involved, and further denied any ongoing animus on her part or that of the current ownership and management against the Junglings. 52. The undersigned finds, on the evidence of record, that it simply cannot be determined, by a preponderance, whether Jungling’s subjective perception of hostility and rudeness by management was consistent with an objective measure of management’s conduct. 53. RESTRICTED ACCESS TO ELECTRIC AND GAS LINES (Per Complaint #1): Jungling stated that in 1995 the home on Space 189 (adjacent to the rear of his space) had been removed and replaced with a larger home, during which the plastic underliner under the rocks of his backyard had been damaged, resulting in a bad weed problem not of his fault. 54. Jungling stated that the resident of Space 189 then erected a fence restricting Jungling’s access to his electric and gas meters, which he alleged the Park had allowed despite his protests to three different Park managers, including Ms. Dick, all of whom had done nothing in response. 55. Ms. Dick responded to assert that until Jungling’s complaint in this matter had been filed, she did not know of any damage to the underliner, and that in any event, the weeds on Jungling’s property about which he had been noticed were alongside his patio, and not where the alleged damage to the underliner was. 56. With regard to the fence erected by the resident in Space 189, Ms. Dick denied that Jungling had complained to her about the fence anytime before filing his complaint, at which time she knew Jungling had also sent a certified letter to the resident of Space 189 about the fence. She agreed that the fence in question would be in violation of the rules if it had not been approved by the Park, and that no notice to correct the violation had yet been issued to Space 189; it was her impression, although she had no written record, that Space 189 had received approval from the prior Park management. 57. On the testimony and evidence presented, the undersigned finds that the record does not support, by a preponderance, any determination that the rules were unfairly applied to Jungling, or somehow selectively unenforced to Jungling’s detriment. 58. NOTICE TO TOW HIS MOTHER’S CAR (Per Complaint but not numbered): Jungling stated that while his mother, a nonresident of the park, had one day been at his home attending a birthday celebration for 30 to 35 minutes, and with no intention of exceeding the hour permitted by the rules, a “Notice to Tow” had been stuck on her windshield, which he had to scrape off before she could drive away. 59. Jungling considered this to be arbitrary and selective enforcement against some but not all tenants, since by his observation, he did not believe other cars parking along the Park roadway were issued similar notices, including that of his father-in-law who was attending the same birthday party. 60. Nancy Jean Jungling, his mother, also testified to describe the specific circumstances of this incident on February 26, 1999, the day she attended her grandson’s birthday party, and her observation of, and discussion with, the woman who placed the notice on her car. It was Ms. Jungling’s recollection that when she left, her car was the only one of three parked along the street which had received such a notice. 61. Mrs. Jungling also described her more general observations, when visiting her son, of changes she believed had occurred in management’s attitude after the discrimination complaint filed in 1994. 62. On more than one occasion, Mrs. Jungling recalled seeing a dark green car, belonging to someone in management, drive by very slowly, with the driver looking at their space and checking them out. 63. Ms. Dick testified that the road in question was also the Park’s fire lane, and that the Park had been advised by the fire department more than once that the parking rules had to be enforced for fire safety, such that notices were regularly given to other cars parked along the road, with more serious “health and safety” tickets issued to cars repeatedly parking along the street. 64. Marjorie Dick testified that she was employed by the park, with particular responsibility for enforcing the parking rules, and general duties in maintaining the Park’s overall environment. To enforce the parking rules, and also to just generally monitor the more than 150 spaces in the Park, she would often drive slowly around, agreeing that for a period of time from February to mid-July 1999 she used a rental dark green Camaro while her car was being repaired. She noted that prior to her use of that Camaro, the tenants in Space 171 had the exact same color and model car. 65. Mrs. Dick remembered the incident, but not the date, as described by Mrs. Jungling, and explained that she had observed her usual routine of noting which vehicles were parked on the street, then waiting at least an hour before issuing notices. 66. Mrs. Dick stated that as she was preparing to do so to the several cars in question, a man had come from the Jungling’s and said he was just leaving, so she had not issued the notice to his car, although she had no doubt all three cars had been parked for over an hour, and for that reason did issue the notice to Ms. Jungling’s car and the third car. 67. With regard to the allegation by the Jungling’s that she would drive the dark green car slowly in their vicinity to harass them, Mrs. Jungling denied any such intent, but explained that for some time she had been concerned with the activities contrary to Park policy of the tenants in Space 170, adjacent to the Junglings. 68. On the testimony and evidence presented, the undersigned finds that the record does not support, by a preponderance, any determination that the rules were unfairly applied to Jungling with regard to the one hour street parking limits.

A.R.S. § 33-1434.A.7:

69. INTERRUPTED UTILITY (WATER) SERVICE WITHOUT NOTICE (Per Complaint but not numbered): Jungling asserted that on numerous occasions water service to the park as a whole (not just his space) had been shut off for periods of time ranging from 15 minutes to 5 hours, without notice, but not in emergency situations. 70. Jungling contended that notice was required in many of the instances, such as when a home would be removed or replaced on a space, which would obviously be known in advance. 71. His further concern, Jungling stated, was that when he or his wife would seek further information from management about the length of time the water would be off, they would be rudely treated and denied any such information, causing them to be late for work or otherwise leaving them uncertain how to accommodate the lack of water. 72. Ms. Dick stated that the Park’s water mains were 32 years old, and did require high maintenance and repair, with perhaps a half-dozen water line shut-offs on an emergency basis, without notice, each year, affecting the entire Park. 73. Relative to the removal or replacement of a home, Ms. Dick denied that such would generally require shutting off water to the entire Park, since each space had an individual shut-off valve; she could recall only one instance in which complications from the installation of a new home had resulted in the water main being shut off. 74. Ms. Dick denied any rudeness or refusal on the part of management when providing information to the Junglings or other tenants about interruptions to the water supply, explaining that in an emergency, management couldn’t know just how long a repair would take, and therefore how long the water would be off, and that during such a situation, management would be receiving similar calls from many of the Park’s tenants, leaving little time for extensive explanation. 75. On the testimony and evidence presented, the undersigned finds that the record does not support, by a preponderance, any violation of A.R.S. § 33-1434.A.7.

A.R.S. § 33-1491:

76. RETALIATION (Per Complaint but not numbered): As noted in findings hereinabove, Jungling stated that he believed the Park’s ownership and management had been mad ever since the Junglings had been awarded the money as a result of the discrimination complaint in 1994, which he believed was reflected in management’s conduct toward his family, such that they did not feel welcome and kept to themselves. 77. Ms. Dick denied any retaliatory intent or conduct on the part of the Park’s ownership or management, contending that actions taken on behalf of the Park in issuing notices to the Junglings were equal to those taken across the board to ensure that all residents in the Park would abide by the rules and regulations; she referenced her hand-written logs of notices to many of the space-residents (Exhibits 2A and 2B). 78. Review of the several notices issued by the Park to the Junglings which would constitute “an action for eviction” per the statute confirms that the Park first issued a “14/30 day” NOTICE OF TERMINATION OF RENTAL AGREEMENT / VIOLATIONS OF RULES NOT AFFECTING HEALTH AND SAFETY on April 28, 1999, based on allegations of the Jungling’s continued failure to correct matters previously noticed to them; then issued SECOND NOTICE DAY NOTICE TO TERMINATE RENTAL AGREEMENT DUE TO SECOND NON-COMPLIANCE on May 27 and/or May 28, 1999 (the record is unclear), and finally; then issued NOTICE OF TERMINATION OF RENTAL AGREEMENT / MULTIPLE VIOLATIONS OF PARK RULES AND REGULATIONS on June 9, 1999. 79. Jungling asserts that the verbal discussion between his wife and Ms. Dick about moving their car from the clubhouse or having it towed took place on April 26, 1999, and therefore constitutes having “complained to the landlord of a violation” pursuant to A.R.S. § 33-1491.A.2., with the first 14/30 day NOTICE OF TERMINATION issued on April 28, 1999 therefore evidence of retaliation. 80. Ms. Dick disputes that chronology, contending that the discussion took place only after that initial NOTICE OF TERMINATION had been issued. 81. On the basis of the evidence presented, and in resolution of the conflicts therein, the undersigned finds there to be no presumption, pursuant to A.R.S. § 33-1491.B, that the Park’s April 28, 1999 notice was issued in retaliation to the clubhouse parking situation complained of by Jungling’s wife. 82. There is no doubt that the Complaint herein was not filed with the Department of Building and Fire Safety until June 9, 1999, but the testimony of Jungling and Ms. Dick is in conflict whether the Park was aware of the complaint before or after it issued the NOTICE OF TERMINATION that same day. However, given the fact of the prior two notices placing the Junglings on notice of termination absent further corrective action, the undersigned finds that conflict in testimony to raise a distinction without a difference, such that neither A.R.S. §§ 33-1491.A.1, .2, nor .4 are applicable to demonstrate any retaliatory action by the Park to the Complaint filed with the Department on June 9, 1999.

A.R.S. § 33-1412: 83. INSUFFICIENT NOTICE (Not addressed in the Complaint; initially raised at hearing): Jungling contended at hearing that the Park’s manner of issuing notices had failed to meet the statutory requirements of A.R.S. § 33-1412.B. 84. Ms. Dick asserted the manner in which the Park issued notices complied with the statue. 85. In any event, the evidence of record is found to demonstrate facts and circumstances such that Jungling had actual notice of all communications relevant herein as directed to him by the Park, and no violation of A.R.S. § 33-1412 is found.

APPLICABLE LAW Petitioner alleges violation of the following sections of the Arizona Mobile Home Parks Residential Landlord and Tenant Act:

A.R.S. § 33-1412. Notice. A. A person has notice of a fact if he has actual knowledge of it, has received a notice or notification of it or from all the facts and circumstances known to him at the time in question he has reason to know that it exists. A person "knows" or "has knowledge" of a fact if he has actual knowledge of it. B. A person "notifies" or "gives" a notice or notification to another by taking steps reasonably calculated to inform the other in ordinary course whether or not the other actually comes to know of it. A person "receives" a notice or notification when it comes to his attention, or in the case of the landlord, it is delivered in hand or mailed by registered or certified mail to the place of business of the landlord through which the rental agreement was made or at any place held out by him as the place for receipt of the communication or delivered to any individual who is designated as an agent by § 33-1432 or, in the case of the tenant, it is delivered in hand to the tenant or mailed by registered or certified mail to him at the place held out by him as the place for receipt of the communication or, in the absence of such designation, to his last known place of residence other than the landlord's mobile home or space, if known. If notice is mailed by registered or certified mail, the tenant or landlord is deemed to have received such notice on the date the notice is actually received by him or five days after the date the notice is mailed, whichever occurs first. C. "Notice" knowledge or a notice or notification received by an organization is effective for a particular transaction from the time it is brought to the attention of the individual conducting the transaction and in any event from the time it would have been brought to his attention if the organization had exercised reasonable diligence, but such knowledge shall be subject to proof.

A.R.S. § 33-1434. Landlord to maintain fit premises. A. The landlord shall: . . .

7. Provide a statement of proposed interruption of utility service to the tenants within a reasonable time frame except in the case of an interruption caused by an emergency. An emergency does not include any failure or refusal on the part of the landlord to fulfill his duties and obligations as specified in this section. A statement of proposed interruption of utility service may be provided by posting an announcement of the period of the interruption in a conspicuous place within the mobile home park or by individual delivery to each tenant.

. . .

A.R.S. § 33-1452. Rules and regulations. A. A landlord shall adopt written rules or regulations, however described, concerning the tenant's use and occupancy of the premises. Such rules or regulations are enforceable against the tenant only if: . . .

3. They apply to all tenants on the premises in a fair manner. . . .

A.R.S. § 33-1491. Retaliatory conduct prohibited; eviction. A. Except as provided in this section, a landlord shall not retaliate by increasing rent or decreasing services or by bringing or threatening to bring an action for eviction after any of the following: 1. The tenant has complained to a governmental agency charged with responsibility for enforcement of a building or housing code of a violation applicable to the premises materially affecting health and safety. 2. The tenant has complained to the landlord of a violation under this chapter. 3. The tenant has organized or become a member of a tenant's union or similar organization. 4. The tenant has filed an action against the landlord in the appropriate court or with the appropriate hearing officer. B. If the landlord acts in violation of subsection A of this section, the tenant is entitled to the remedies provided in section 33-1475 and has a defense in action against him for eviction. In an action by or against the tenant, evidence of a complaint within six months prior to the alleged act of retaliation creates a presumption that the landlord's conduct was in retaliation. The presumption does not arise if the tenant made the complaint after notice of termination of the rental agreement. For the purpose of this subsection, "presumption" means that the trier of fact must find the existence of the fact presumed unless and until evidence is introduced which would support a finding of its nonexistence. C. The landlord of a mobile home park shall specify the reason for the termination of any tenancy in such mobile home park. The reason relied on for the termination shall be set forth with specific facts, so that the date, place and circumstances concerning the reason for termination can be determined. Reference to or recital of the language of this chapter, or both, is not sufficient compliance with this subsection. D. Notwithstanding subsections A and B of this section, a landlord may bring an action for eviction if either of the following occurs: 1. The violation of the applicable building or housing code was caused primarily by lack of reasonable care by the tenant or other person in his household or upon the premises with his consent. 2. The tenant is in default in rent. The maintenance of the action does not release the landlord from liability under section 33-1471, subsection B.

CONCLUSIONS OF LAW 1. This administrative hearing was held under authority of and pursuant to A.R.S. § 41-1092, and the Arizona Mobile Home Parks Residential Landlord and Tenant Act, A.R.S. § 33-1401, et seq. 2. Subject matter jurisdiction vests in the Department of Building and Fire Safety under authority of A.R.S. § 33-1406 and A.R.S. § 33-1408. 3. The evidence of record does not establish that Respondents violated the provisions of A.R.S. §§ 33-1452.A.3; 33-1434.A.7; 33-1491; or 33-1412. // // // // // RECOMMENDED ORDER

On the basis of the foregoing, IT IS RECOMMENDED that the Complaint in Case No. LTA 98-9/020 be dismissed. Done this day, August 27, 1999.

______________________________________ Anthony Halas Administrative Law Judge

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

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

By ___________________________

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