Case Summary
| Case ID | 23F-H052-REL No. 23F-H064-REL |
|---|---|
| Agency | ADRE |
| Tribunal | OAH |
| Decision Date | 2023-08-28 |
| Administrative Law Judge | Brian Del Vecchio |
| Outcome | The Administrative Law Judge affirmed the petition regarding the Bylaws violation (annual meeting held 27 days late, 23F-H052-REL) but denied the request for civil penalties. The ALJ dismissed the petition regarding the alleged statutory violation of in-person voting requirements (23F-H064-REL), finding Petitioner did not meet his burden of proof. Petitioner was reimbursed the $500 filing fee for the prevailing issue. |
| Filing Fees Refunded | $1,000.00 |
| Civil Penalties | $0.00 |
Parties & Counsel
| Petitioner | R.L. Whitmer | Counsel | — |
|---|---|---|---|
| Respondent | Hilton Casitas Council of Homeowners | Counsel | Emily H. Mann |
Alleged Violations
Article III Section 3 of the Bylaws of Hilton Casitas Council of Co-owners
ARIZ. REV. STAT. § 33-1250(C)
Outcome Summary
The Administrative Law Judge affirmed the petition regarding the Bylaws violation (annual meeting held 27 days late, 23F-H052-REL) but denied the request for civil penalties. The ALJ dismissed the petition regarding the alleged statutory violation of in-person voting requirements (23F-H064-REL), finding Petitioner did not meet his burden of proof. Petitioner was reimbursed the $500 filing fee for the prevailing issue.
Why this result: Petitioner lost the statutory claim (23F-H064-REL) due to failure to provide sufficient evidence for a narrow interpretation of 'in person' voting. Petitioner failed to prove that civil penalties were warranted for the Bylaws violation (23F-H052-REL).
Key Issues & Findings
Failure to hold the annual meeting prior to March 31, 2023 (23F-H052-REL)
Petitioner alleged Respondent failed to hold the annual meeting by the Bylaws' deadline of March 31, 2023. Respondent stipulated that the meeting, held on April 27, 2023, was late, constituting a violation.
Orders: Respondent violated Article III Section 3 of the Bylaws; Petition affirmed. Petitioner was denied civil penalties but was reimbursed the $500.00 filing fee.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
- ARIZ. REV. STAT. § 32-2199.02
Alleged violation for failing to allow in-person voting (23F-H064-REL)
Petitioner alleged Respondent violated the statute by allowing voting only through video conferencing and failing to provide an opportunity for in-person voting. The ALJ found Petitioner failed to provide sufficient evidence to support a narrow interpretation of 'in person' that excludes remote video attendance.
Orders: Respondent did not violate ARIZ. REV. STAT. § 33-1250(C). Petition dismissed.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
- ARIZ. REV. STAT. § 33-1250(C)
Analytics Highlights
- ARIZ. REV. STAT. § 33-1250(C)
- ARIZ. REV. STAT. § 32-2199.02
- ARIZ. REV. STAT. § 32-2199.05
- ARIZ. REV. STAT. § 32-2102
- ARIZ. REV. STAT. § 32-2199
- ARIZ. REV. STAT. § 32-2199.01(A)
- ARIZ. REV. STAT. § 32-2199.01(D)
- ARIZ. REV. STAT. § 41-1092 et seq.
- ARIZ. REV. STAT. § 41-1092.09
Related election workflow tool
Many HOA election disputes start with preventable workflow problems: unclear ballot language, separate-vote issues, quorum tracking, paper/online reconciliation, proxy handling, or incomplete records. HOABallot is a separate platform built to document the voting workflow from notice through certification.
Video Overview
Audio Overview
Decision Documents
23F-H052-REL Decision – 1071110.pdf
23F-H052-REL Decision – 1071477.pdf
23F-H052-REL Decision – 1074907.pdf
23F-H052-REL Decision – 1088736.pdf
This summary outlines the proceedings, arguments, and final decision in the consolidated matters of R.L. Whitmer, Petitioner, v. Hilton Casitas Council of Homeowners, Respondent (Nos. 23F-H052-REL and 23F-H064-REL). The hearing took place at the Office of Administrative Hearings (OAH) on August 11, 2023, before Administrative Law Judge (ALJ) Brian Del Vecchio.
Key Facts and Main Issues
The consolidated case involved two separate petitions filed by Petitioner R.L. Whitmer, an owner and member of the Association.
- Late Annual Meeting (23F-H052-REL): Alleged the Association failed to hold the 2023 Annual Meeting by March 31st, violating Article III Section 3 of the Bylaws, as the meeting was held on April 27, 2023.
- In-Person Voting (23F-H064-REL): Alleged the Association violated ARIZ. REV. STAT. § 33-1250(C) by holding the Annual Meeting via Zoom video conferencing and failing to provide members the opportunity to vote "in person".
Hearing Proceedings and Arguments
Respondent's (HOA) Arguments:
The Association stipulated to a technical violation regarding the late meeting (27 days late). The delay was attributed to a management company calendaring error and transition issues. The Respondent argued this issue was moot since the meeting had already occurred, and the OAH lacked jurisdiction to mandate the "impossible" (ordering the meeting to be held prior to March 31, 2023).
Regarding the voting issue, the Association acknowledged the meeting was held via Zoom but argued this was done for the convenience of out-of-town members and for fiscal responsibility, as in-person meetings required renting space. Crucially, the Association argued that the Petitioner waived his right to object to the voting procedure because he failed to lodge a complaint prior to the election, which is a requirement under established Arizona legal custom concerning procedural election challenges.
Petitioner's Arguments:
Petitioner argued that the OAH possesses statutory authority to issue an order requiring future compliance with the Bylaws (a forward-looking injunction) and to levy civil penalties. Petitioner presented testimony from Mr. Eli, a homeowner who stated he could not attend the Zoom-only meeting because he was not "tech-savvy" and was denied an in-person option, arguing this demonstrated the Association's discriminatory intent and warranted civil penalties.
Legal Points and Outcome
The ALJ issued a decision on August 28, 2023.
Issue 1 (Late Meeting): The ALJ affirmed the petition (23F-H052-REL), concluding that the Association did violate Article III Section 3 of the Bylaws based on the Respondent’s stipulation.
Issue 2 (In-Person Voting): The ALJ dismissed the petition (23F-H064-REL). The ALJ found that the Petitioner failed to meet the burden of proving that the specific interpretation of "in person" must exclude remote video attendance. The decision referenced the alternative interpretation of "in person" utilized during the COVID-19 pandemic, which allowed remote meetings in compliance with ARIZ. REV. STAT. § 33-1250(C).
Civil Penalties: The ALJ denied the Petitioner's request to levy a civil penalty against the Association, finding that the evidence did not give rise to the awarding of civil penalties.
Final Order:
The ALJ ordered that Petitioner’s petition in matter 23F-H064-REL be dismissed. The Petitioner’s petition in matter 23F-H052-REL was affirmed, and the Respondent was ordered to reimburse Petitioner his $500.00 filing fee for the issue on which he prevailed.
Questions
Question
If my HOA fails to hold the annual meeting by the specific deadline in the bylaws, is that considered a legal violation?
Short Answer
Yes. If the HOA misses the deadline mandated by the bylaws, it is a violation, even if the meeting is held later.
Detailed Answer
The ALJ ruled that missing the specific deadline set in the bylaws constitutes a violation. In this case, the bylaws required a meeting by March 31, but it was held on April 27. The HOA stipulated to the failure, and the ALJ affirmed the petition regarding this violation.
Alj Quote
Respondent stipulated it failed to adhere to Article III Section 3 of the Bylaws when it held the Annual Meeting on April 27, 2023, 27 days after the deadline. Thus, Petitioner met their burden in matter number 23F-H052-REL.
Legal Basis
Bylaws Article III Section 3
Topic Tags
- annual meetings
- bylaws compliance
- deadlines
Question
Does a statutory requirement for 'in person' voting prevent the HOA from holding meetings via video conference?
Short Answer
Not necessarily. The term 'in person' does not strictly exclude remote attendance via technology like Zoom.
Detailed Answer
The ALJ determined that the phrase 'in person' is open to interpretation (e.g., social distancing protocols). Unless the homeowner provides sufficient evidence that 'in person' must strictly mean 'corporeal presence in a defined space,' holding a meeting via video conference does not violate the statute.
Alj Quote
While 'in person' could be interpreted as corporeal presence in a defined space, Petitioner failed to provide sufficient evidence said definition ought to be used, not the COVID-19 social distancing definition of 'in person,' or some other definition of the phrase 'in person.'
Legal Basis
ARIZ. REV. STAT. § 33-1250(C)
Topic Tags
- virtual meetings
- voting rights
- statutory interpretation
Question
Will the judge automatically fine the HOA (civil penalties) if they are found to have violated the bylaws?
Short Answer
No. A violation does not automatically result in civil penalties; the evidence must justify such a penalty.
Detailed Answer
Even though the ALJ confirmed the HOA violated the bylaws by holding the meeting late, the request for a civil penalty was denied because the evidence presented did not warrant it (e.g., lack of bad faith).
Alj Quote
Because Petitioner met their burden they sought civil penalties, pursuant to ARIZ. REV. STAT. § 32-2199.02. Here, the evidence did not give rise to the awarding of civil penalties.
Legal Basis
ARIZ. REV. STAT. § 32-2199.02
Topic Tags
- civil penalties
- fines
- remedies
Question
If I win my case against the HOA, can I get reimbursed for the filing fees?
Short Answer
Yes. The ALJ can order the HOA to reimburse the filing fee for the specific issues where the homeowner prevailed.
Detailed Answer
The ALJ ordered the HOA to pay back the $500 filing fee to the homeowner for the petition regarding the late meeting (which he won), but dismissed the petition regarding the virtual meeting.
Alj Quote
IT IS FURTHER ORDERED that Respondent reimburse Petitioner his $500.00 filing fee for the issue on which he prevailed.
Legal Basis
Administrative Order
Topic Tags
- fees
- reimbursement
- costs
Question
What standard of proof does a homeowner need to meet to prove the HOA violated the rules?
Short Answer
The homeowner must prove the violation by a 'preponderance of the evidence'.
Detailed Answer
The burden is on the petitioner (homeowner) to show that their claim is 'more probably true than not.' This is the standard evidentiary weight required in these administrative hearings.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence… 'A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.'
Legal Basis
Evidentiary Standard
Topic Tags
- burden of proof
- legal standards
- evidence
Question
Does the Office of Administrative Hearings have the power to interpret the HOA's contract (CC&Rs/Bylaws)?
Short Answer
Yes. The tribunal has the explicit authority to interpret the contract between the homeowner and the association.
Detailed Answer
The decision clarifies that the OAH is authorized by statute to hear these disputes and specifically has the authority to interpret the governing documents (contract) between the parties.
Alj Quote
OAH has the authority to hear and decide the contested case at bar. OAH has the authority to interpret the contract between the parties.
Legal Basis
ARIZ. REV. STAT. § 41-1092 et seq.
Topic Tags
- jurisdiction
- contract interpretation
- OAH authority
Case
- Docket No
- 23F-H052-REL / 23F-H064-REL
- Case Title
- R.L. Whitmer v. Hilton Casitas Council of Homeowners
- Decision Date
- 2023-08-28
- Alj Name
- Brian Del Vecchio
- Tribunal
- OAH
- Agency
- ADRE
Questions
Question
If my HOA fails to hold the annual meeting by the specific deadline in the bylaws, is that considered a legal violation?
Short Answer
Yes. If the HOA misses the deadline mandated by the bylaws, it is a violation, even if the meeting is held later.
Detailed Answer
The ALJ ruled that missing the specific deadline set in the bylaws constitutes a violation. In this case, the bylaws required a meeting by March 31, but it was held on April 27. The HOA stipulated to the failure, and the ALJ affirmed the petition regarding this violation.
Alj Quote
Respondent stipulated it failed to adhere to Article III Section 3 of the Bylaws when it held the Annual Meeting on April 27, 2023, 27 days after the deadline. Thus, Petitioner met their burden in matter number 23F-H052-REL.
Legal Basis
Bylaws Article III Section 3
Topic Tags
- annual meetings
- bylaws compliance
- deadlines
Question
Does a statutory requirement for 'in person' voting prevent the HOA from holding meetings via video conference?
Short Answer
Not necessarily. The term 'in person' does not strictly exclude remote attendance via technology like Zoom.
Detailed Answer
The ALJ determined that the phrase 'in person' is open to interpretation (e.g., social distancing protocols). Unless the homeowner provides sufficient evidence that 'in person' must strictly mean 'corporeal presence in a defined space,' holding a meeting via video conference does not violate the statute.
Alj Quote
While 'in person' could be interpreted as corporeal presence in a defined space, Petitioner failed to provide sufficient evidence said definition ought to be used, not the COVID-19 social distancing definition of 'in person,' or some other definition of the phrase 'in person.'
Legal Basis
ARIZ. REV. STAT. § 33-1250(C)
Topic Tags
- virtual meetings
- voting rights
- statutory interpretation
Question
Will the judge automatically fine the HOA (civil penalties) if they are found to have violated the bylaws?
Short Answer
No. A violation does not automatically result in civil penalties; the evidence must justify such a penalty.
Detailed Answer
Even though the ALJ confirmed the HOA violated the bylaws by holding the meeting late, the request for a civil penalty was denied because the evidence presented did not warrant it (e.g., lack of bad faith).
Alj Quote
Because Petitioner met their burden they sought civil penalties, pursuant to ARIZ. REV. STAT. § 32-2199.02. Here, the evidence did not give rise to the awarding of civil penalties.
Legal Basis
ARIZ. REV. STAT. § 32-2199.02
Topic Tags
- civil penalties
- fines
- remedies
Question
If I win my case against the HOA, can I get reimbursed for the filing fees?
Short Answer
Yes. The ALJ can order the HOA to reimburse the filing fee for the specific issues where the homeowner prevailed.
Detailed Answer
The ALJ ordered the HOA to pay back the $500 filing fee to the homeowner for the petition regarding the late meeting (which he won), but dismissed the petition regarding the virtual meeting.
Alj Quote
IT IS FURTHER ORDERED that Respondent reimburse Petitioner his $500.00 filing fee for the issue on which he prevailed.
Legal Basis
Administrative Order
Topic Tags
- fees
- reimbursement
- costs
Question
What standard of proof does a homeowner need to meet to prove the HOA violated the rules?
Short Answer
The homeowner must prove the violation by a 'preponderance of the evidence'.
Detailed Answer
The burden is on the petitioner (homeowner) to show that their claim is 'more probably true than not.' This is the standard evidentiary weight required in these administrative hearings.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence… 'A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.'
Legal Basis
Evidentiary Standard
Topic Tags
- burden of proof
- legal standards
- evidence
Question
Does the Office of Administrative Hearings have the power to interpret the HOA's contract (CC&Rs/Bylaws)?
Short Answer
Yes. The tribunal has the explicit authority to interpret the contract between the homeowner and the association.
Detailed Answer
The decision clarifies that the OAH is authorized by statute to hear these disputes and specifically has the authority to interpret the governing documents (contract) between the parties.
Alj Quote
OAH has the authority to hear and decide the contested case at bar. OAH has the authority to interpret the contract between the parties.
Legal Basis
ARIZ. REV. STAT. § 41-1092 et seq.
Topic Tags
- jurisdiction
- contract interpretation
- OAH authority
Case
- Docket No
- 23F-H052-REL / 23F-H064-REL
- Case Title
- R.L. Whitmer v. Hilton Casitas Council of Homeowners
- Decision Date
- 2023-08-28
- Alj Name
- Brian Del Vecchio
- Tribunal
- OAH
- Agency
- ADRE
Case Participants
Petitioner Side
- R.L. Whitmer (petitioner)
- Sedack Eli (witness/homeowner)
Also referred to as Sebeck Eli.
Respondent Side
- Emily H. Mann (HOA attorney)
Phillips, Maceyko & Battock, PLLC - Robert Westbrook (HOA President/witness)
- Liard (community manager)
Affidavit attached to exhibits; first name unknown. - John Brookke (board member)
Attended annual meeting. - Jay Panzer (board member)
Attended annual meeting. - Joanna O’Neal (board member)
Attended annual meeting.
Neutral Parties
- Brian Del Vecchio (ALJ)
OAH
ALJ for final decision; also referred to as Joe Delveio. - Sondra J. Vanella (ALJ)
OAH
Issued orders on July 6, 2023. - Alyssa Leverette (ALJ)
OAH
Issued Minute Entry on July 18, 2023. - Susan Nicolson (Commissioner)
ADRE - A. Hansen (ADRE staff)
ADRE
Recipient of transmission. - V. Nunez (ADRE staff)
ADRE
Recipient of transmission. - D. Jones (ADRE staff)
ADRE
Recipient of transmission. - L. Abril (ADRE staff)
ADRE
Recipient of transmission.
Other Participants
- Stadilla Stadilla (homeowner/attendee)
Attended annual meeting. - Mike Denson (homeowner/attendee)
Attended annual meeting. - Rick Walker (homeowner/attendee)
Attended annual meeting. - Mary Griffith (homeowner/attendee)
Attended annual meeting.