ALJDEC

99F-L989021-BFS · Department of Building and Fire Safety · 1999-08-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 25, 1999 APPEARANCES: No one appeared on behalf of the Petitioner Michael Parham, Esq. appeared on behalf of the Respondents, Longhaven West Mobile Home Park, et al. ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________ This matter came on for hearing at the date, time and place set forth in the Notice of Hearing. No one appeared on behalf of the Petitioner and no good cause was shown for the non appearance. After a period of 20 minutes, counsel for the Respondents moved for dismissal of the case. The Petitioner having failed to appear and present any evidence in support of the allegations, the following Order is made. Order It Is Hereby Ordered that the Petition and Complaint of Patricia Shepard is dismissed.

Further Issues Counsel for the Respondents moved for attorney’s fees under A.R.S. §12-348 for the reason that the determination by the Department of Building and Fire Safety (BFS), to set the instant case for hearing was not “justified” under the language of A.R.S. §41-2198.01(D). The basis for the claim is that neither BFS nor the Office of Administrative Hearings had proper jurisdiction of the case because the Petitioner had been evicted for non payment of rent after a forcible detainer court proceeding and judgment for the instant Respondent, in Maryvale Justice Court, Case No. CV 99- 01395FD, prior to the filing of the petition. The judgment was obtained on April 20, 1999, a writ of restitution for the removal of the Petitioner was signed on April 26, 1999 and the Petitioner was to move from the premises by May 3, 1999. The instant petition was not filed with BFS until on or about May 30, 1999, at which time, it is argued by the Respondent, the Petitioner having been lawfully evicted under a court order, was no longer a tenant and had no standing to file her petition. The Respondent submitted its answer setting forth the above and other defenses to BFS on or about June 30, 1999. The case was referred by BFS to the Office of Administrative Hearings to be set for hearing, on or about June 30, 1999. The motion for attorney’s fees must be denied for a number of reasons. The Office of Administrative Hearings does not have jurisdiction to award attorney fees under Title 12 which addresses courts and civil proceedings. Rather, A.R.S. §41-1007 addresses the award of attorney fees in administrative proceedings. BFS, though issuing the Notice of Hearing, is not a party to the instant proceeding and was not present to present any argument against the Respondent’s motion. The file does not establish that BFS had the Respondent’s answer prior to requesting that the matter be set for hearing by Office of Administrative Hearings. In light of the above, any further discussion regarding the appropriateness of attorney fees even if the facts were as represented by the Respondent, would be pointless since the issue is essentially moot. The Respondent also moved that the Administrative Law Judge require BFS to submit a memorandum to explain why the matter was set for hearing in light of the Respondent’s answer to the petition. This motion is also denied for multiple reasons. BFS is not a party to the case and under the circumstances, the Administrative Law Judge has no jurisdiction to issue or compel compliance with such an order. As referenced previously, it is unknown if BFS had knowledge of the Respondent’s answer at the time the hearing request was sent to Office of Administrative Hearings. Order In view of the foregoing, the Respondent’s motions for attorney fees and the Respondent’s motion to require the Department of Building and Fire Safety to provide an explanatory memorandum, are denied.

Done this day, August 25, 1999

______________________________________ Allen Reed 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 ___________________________

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

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