Case Summary
| Case ID | 11F-H1112008-BFS |
|---|---|
| Agency | DFBLS |
| Tribunal | OAH |
| Decision Date | 2012-03-20 |
| Administrative Law Judge | M. Douglas |
| Outcome | no |
| Filing Fees Refunded | $500.00 |
| Civil Penalties | $0.00 |
Parties & Counsel
| Petitioner | Stuart Kirschner | Counsel | Kevin R. Harper |
|---|---|---|---|
| Respondent | Trilogy at Vistancia Community Association | Counsel | Todd M. Allison |
Alleged Violations
Fine Policy and Appeal Process
Outcome Summary
The ALJ dismissed the petition, concluding that the HOA acted reasonably and within its authority under the CC&Rs and Fine Policy when it suspended the homeowner's club privileges for 60 days following a code-of-conduct violation where the homeowner used profane language and aggressive behavior.
Why this result: The Petitioner was found to have violated the code of conduct, and the HOA followed proper procedures in imposing the suspension; the Petitioner also waived his right to a hearing during the internal process.
Key Issues & Findings
Failure to adhere to discipline policies regarding code-of-conduct violation
Petitioner alleged that the Respondent failed to adhere to its policies when it disciplined him for an alleged personal code-of-conduct violation involving a confrontation with a developer's employee at the community club.
Orders: The Petition is dismissed. No action is required of the Respondent.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_lost
- Fine Policy and Appeal Process
- CC&Rs 5.3
- Rule 3.3.2
Decision Documents
11F-H1112008-BFS Decision – 289547.pdf
11F-H1112008-BFS Decision – 292439.pdf
**Case Summary: Kirschner v. Trilogy at Vistancia Community Association**
**Case No. 11F-H1112008-BFS**
**Overview**
This case involves a petition filed by homeowner Stuart Kirschner (Petitioner) against the Trilogy at Vistancia Community Association (Respondent) regarding disciplinary actions taken against him. The hearing was conducted on March 12, 2012, before Administrative Law Judge M. Douglas at the Office of Administrative Hearings for the Arizona Department of Fire, Building and Life Safety.
**Key Facts**
On September 18, 2011, the Petitioner, who was recovering from hip surgery, confronted Kelly Young, a sales associate for the developer, outside the community’s Kiva Club. The Petitioner was upset that a sales golf cart was parked near the entrance while he could not find handicapped parking.
Witness testimony established that the Petitioner approached Ms. Young and yelled at her to move the cart, using profanity such as "damn" and "God damn". Ms. Young testified that the Petitioner’s behavior was loud and aggressive, causing her to feel embarrassed and fearful. The Petitioner admitted to raising his voice and using the word "damn" but denied being abusive.
**Procedural History**
Following the incident, the Respondent notified the Petitioner of a Code of Conduct violation and his right to a hearing. The Petitioner initially requested a hearing but subsequently waived that right via email on October 10, 2011. The Board of Directors reviewed the evidence, found that the Petitioner’s erratic behavior constituted a danger to persons, and suspended his Kiva Club privileges for 60 days. The Petitioner challenged the Association’s adherence to its policies and the denial of his subsequent attempt to appeal the suspension.
**Key Legal Arguments and Findings**
The Administrative Law Judge evaluated whether the Respondent followed its governing documents, specifically the CC&Rs and the Fine Policy and Appeal Process.
1. **Code of Conduct Violation:** The Judge found that the Respondent’s rules prohibit loud, profane, or abusive language. Based on the evidence, the Judge concluded that the Petitioner violated this code by confronting Ms. Young in a profane manner that caused her fear.
2. **Reasonableness of Sanction:** The Judge determined that the 60-day suspension was a reasonable and justified response to behavior that presented
Case Participants
Petitioner Side
- Stuart Kirschner (petitioner)
Trilogy at Vistancia Community Association (Member)
Homeowner; hip replacement patient - Kevin R. Harper (attorney)
Harper Law P.L.C.
Respondent Side
- Todd M. Allison (attorney)
Fennemore Craig, P.C. - Kelly Young (witness)
Shea Homes (Developer)
Sales associate involved in the altercation - Robert Williams (board member)
Trilogy at Vistancia Community Association
Also General Manager/Sales Manager for the development - Jeffrey Dixon (property manager)
Management Company
Onsite manager; investigated the violation
Neutral Parties
- M. Douglas (ALJ)
Office of Administrative Hearings - Gene Palma (agency director)
Department of Fire, Building and Life Safety
Director receiving the decision - Cliff J. Vanell (agency director)
Office of Administrative Hearings
Director certifying the decision - Beth Soliere (agency staff)
Department of Fire, Building and Life Safety
Recipient of transmitted decision
