Case Summary
| Case ID | 19F-H1918009-REL-RHG |
|---|---|
| Agency | ADRE |
| Tribunal | OAH |
| Decision Date | 2019-03-04 |
| Administrative Law Judge | Velva Moses-Thompson |
| Outcome | loss |
| Filing Fees Refunded | $0.00 |
| Civil Penalties | $0.00 |
Parties & Counsel
| Petitioner | Rogelio A. Garcia | Counsel | — |
|---|---|---|---|
| Respondent | Villagio at Tempe Homeowners Association | Counsel | Nathan Tennyson |
Alleged Violations
ARIZ. REV. STAT. § 33-1242
Outcome Summary
The Administrative Law Judge dismissed the petition for rehearing, finding that the Petitioner failed to prove that the Respondent HOA violated A.R.S. § 33-1242. The HOA was not required to provide the statutory details or the notice of the right to petition ADRE because the Petitioner failed to submit a written response by certified mail within 21 days of the violation notices.
Why this result: The Petitioner failed to meet the burden of proof to show the HOA violated A.R.S. § 33-1242. The HOA was not required to provide the information listed in A.R.S. § 33-1242 (C) or the notice of right to petition in (D) because the Petitioner did not submit a written response by certified mail within twenty-one days, which is the triggering requirement for those obligations.
Key Issues & Findings
Alleged violation of statutory requirements for homeowner association violation notices.
Petitioner alleged Respondent violated A.R.S. § 33-1242 requirements regarding violation notices. The ALJ found that Petitioner failed to establish the violation because he did not respond by certified mail within the 21-day statutory period, meaning the HOA was not triggered to fulfill its obligations under § 33-1242(C) and (D).
Orders: Petitioner's petition is dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
- ARIZ. REV. STAT. § 33-1242
- ARIZ. REV. STAT. § 32-2199.01
- ARIZ. REV. STAT. § 32-2199.02
- ARIZ. ADMIN. CODE § R2-19-119
Analytics Highlights
- ARIZ. REV. STAT. § 33-1242
- ARIZ. REV. STAT. § 32-2199.01
- ARIZ. REV. STAT. § 32-2199.02
- ARIZ. ADMIN. CODE § R2-19-119
- Home Builders Association of Central Arizona v. City of Scottsdale, 187 Ariz. 479, 483, 930 P.2d 993, 997(1997)
- Canon School Dist. No. 50 v. W.E.S. Constr. Co., 177 Ariz. 526, 529, 869 P.2d 500, 503 (1994)
Video Overview
Audio Overview
Decision Documents
19F-H1918009-REL Decision – 671673.pdf
Briefing Document: Garcia v. Villagio at Tempe Homeowners Association
Executive Summary
This document synthesizes two Administrative Law Judge Decisions concerning a dispute between homeowner Rogelio A. Garcia (Petitioner) and the Villagio at Tempe Homeowners Association (Respondent). The core of the case is Mr. Garcia’s allegation that the HOA violated Arizona Revised Statute (A.R.S.) § 33-1242 by failing to follow specific procedures after issuing notices for a violation of its short-term rental policy.
The Administrative Law Judge ultimately dismissed Mr. Garcia’s petition in both an initial hearing and a subsequent rehearing. The central finding was that Mr. Garcia failed to meet a critical prerequisite outlined in the statute: he did not respond to the violation notices by certified mail within the 21-day period. This failure meant that the HOA’s corresponding statutory obligations—such as providing the name of the person who observed the violation—were never triggered.
Furthermore, the judge determined that the HOA was not required to inform Mr. Garcia of his right to an administrative hearing because the violation notices themselves included instructions on the HOA’s internal process for contesting the matter. Mr. Garcia’s argument that the HOA’s rapid issuance of fines and subsequent notices prevented him from responding was found to be unsubstantiated by evidence. The decisions underscore a strict interpretation of the statute, placing the initial burden of response on the unit owner.
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I. Case Overview
This matter was adjudicated by the Arizona Office of Administrative Hearings after a petition was filed with the Arizona Department of Real Estate. The case involved an initial hearing and a rehearing requested by the Petitioner.
Entity / Individual
Petitioner
Rogelio A. Garcia
Respondent
Villagio at Tempe Homeowners Association (“Villagio”)
Respondent’s Counsel
Nathan Tennyson, Esq.
Adjudicating Body
Office of Administrative Hearings
Administrative Law Judge
Velva Moses-Thompson
Case Number (Initial)
19F-H1918009-REL
Case Number (Rehearing)
19F-H1918009-REL-RHG
Core Allegation
Violation of A.R.S. § 33-1242 by the Respondent.
II. Chronology of Events
• March 8, 2018: Villagio mails the first letter to Mr. Garcia, alleging a violation of short-term lease provisions in the community’s Covenants, Conditions, and Restrictions (CC&Rs). The letter instructs him to file an appeal with the Board of Directors within 10 days of receipt.
• March 22, 2018: Villagio mails a second notice for the same violation, informing Mr. Garcia that a $1,000 fine has been posted to his account. This notice also contains instructions for contesting the violation.
• April 5, 2018: Villagio mails a third notice, informing Mr. Garcia that a $2,000 fine has been posted to his account for the continuing violation.
• Response from Garcia: Mr. Garcia did not respond to any of the three notices within the 21-calendar-day period specified by statute. He did, at some point, file an appeal directly with Villagio, which held a hearing but did not change its position.
• August 17, 2018 (approx.): Mr. Garcia files a petition with the Arizona Department of Real Estate, formally initiating the administrative hearing process.
• October 30, 2018: The first evidentiary hearing is held before Administrative Law Judge Velva Moses-Thompson.
• November 19, 2018: The initial Administrative Law Judge Decision is issued, dismissing Mr. Garcia’s petition.
• January 3, 2019 (approx.): The Arizona Department of Real Estate issues an order setting a rehearing for the matter, following a request from Mr. Garcia.
• February 12, 2019: The rehearing is held. Mr. Garcia testifies on his own behalf, and Villagio presents testimony from Community Manager Tom Gordon.
• March 4, 2019: The final Administrative Law Judge Decision is issued, again dismissing Mr. Garcia’s petition.
III. Central Legal Issue: Interpretation of A.R.S. § 33-1242
The entire dispute centered on the procedural requirements laid out in A.R.S. § 33-1242, which governs how an HOA must handle notices of violation to a unit owner. The key provisions are:
• Unit Owner’s Responsibility (Subsection B): A unit owner who receives a written notice of violation may provide the association with a written response. This response must be sent by certified mail within twenty-one calendar days after the date of the notice.
• Association’s Obligations upon Response (Subsection C): Within ten business days after receiving the certified mail response, the association must provide a written explanation that includes:
1. The specific provision of the condominium documents allegedly violated.
2. The date the violation occurred or was observed.
3. The first and last name of the person(s) who observed the violation.
4. The process the unit owner must follow to contest the notice.
• Association’s Obligation Regarding Administrative Hearings (Subsection D): An association must provide written notice of the owner’s option to petition for an administrative hearing with the state real estate department unless the information required in Subsection C, paragraph 4 (the contest process) is provided in the initial notice of violation.
IV. Analysis of Arguments and Evidence
Petitioner’s Position (Rogelio A. Garcia)
Mr. Garcia’s arguments, presented across both hearings, focused on three primary claims of statutory violation by Villagio:
1. Failure to Provide Required Information: Villagio violated the statute by not providing him with the first and last name of the person who observed the violation.
2. Failure to Notify of Hearing Rights: Villagio did not inform him of his right to petition for an administrative hearing with the state real estate department.
3. Prevention of Response: Mr. Garcia contended that Villagio effectively prevented him from responding via certified mail within the 21-day statutory period. He argued that the notices’ demand for compliance within 10 days, combined with the issuance of a second notice and a fine just 14 days after the first, led him to believe he only had 10 days to act before incurring another violation.
Respondent’s Position (Villagio at Tempe HOA)
Villagio presented a defense based on a direct reading of the statute and Mr. Garcia’s inaction:
1. Statutory Obligations Not Triggered: Villagio’s central argument was that its obligations under A.R.S. § 33-1242(C)—including the duty to name the observer—are only triggered after a unit owner submits a written response by certified mail within 21 days. Since Mr. Garcia never sent such a response, these obligations never came into effect.
2. Internal Contest Process Satisfied Statute: Per A.R.S. § 33-1242(D), the duty to notify an owner of their right to an administrative hearing only applies if the HOA fails to provide its own contest process. Villagio argued that because all three notices explicitly stated the process for appealing to the Board of Directors, it had fulfilled its statutory duty.
3. No Prevention of Response: Mr. Garcia was never legally or physically prevented from sending a certified letter. During cross-examination, he admitted he was not under any court order prohibiting him from responding.
4. Statute Inapplicability (Argument from Rehearing): Villagio further contended that A.R.S. § 33-1242 applies specifically to violations concerning the “condition of the property,” not the “use” of the property. Since short-term renting is a use, Villagio argued the statute did not apply to this situation at all.
Key Testimony from Rehearing
During the February 12, 2019 rehearing, Villagio’s Community Manager, Tom Gordon, testified.
• On direct examination, Mr. Gordon stated that Villagio does not restrict homeowners from responding to violation notices within the 21-day period.
• On cross-examination, when asked by Mr. Garcia if Villagio would have abided by “this statute” had he responded in 21 days, Mr. Gordon replied, “No.” He explained this by stating that homeowners are given 10 days to contest a notice with Villagio pursuant to its own short-term rental policy.
V. Administrative Law Judge’s Decisions and Rationale
The judge’s findings were consistent across both the initial decision and the rehearing decision, leading to the same conclusion in each instance.
Initial Decision (November 19, 2018)
• Finding of Fact: It was undisputed that Mr. Garcia did not respond to the March 8, March 22, or April 5, 2018 notices within 21 calendar days.
• Conclusion 1: Because Mr. Garcia did not respond within the 21-day period, Villagio was not required to provide him with the first and last name of the person(s) who observed the violation.
• Conclusion 2: Because Villagio notified Mr. Garcia of the process for contesting the notice, it was not required under A.R.S. § 33-1242(D) to provide him with notice of the right to petition for an administrative hearing.
• Outcome: Mr. Garcia failed to establish by a preponderance of the evidence that a violation occurred. The petition was dismissed.
Rehearing Decision (March 4, 2019)
The judge reaffirmed the initial findings and addressed Mr. Garcia’s argument that he was prevented from responding.
• Finding on “Prevention”: The judge found no evidence that Villagio informed Mr. Garcia he could not respond within 21 days or otherwise prevented him from doing so. The issuance of a second notice 14 days after the first was not deemed a preventative act that nullified Mr. Garcia’s statutory window to respond to the first notice.
• Statutory Construction: The decision invoked the legal principle that “what the Legislature means, it will say,” indicating a strict, literal interpretation of the statute’s requirements.
• Reaffirmed Conclusions: The judge again concluded that because Mr. Garcia failed to submit a written response by certified mail, Villagio’s obligations under A.R.S. § 33-1242(C) were not triggered, and its inclusion of an internal appeal process satisfied the requirements of A.R.S. § 33-1242(D).
• Outcome: Mr. Garcia’s petition was dismissed for a second time, with Villagio deemed the prevailing party.
VI. Final Disposition
The Administrative Law Judge ordered that Mr. Garcia’s petition be dismissed. The decision issued after the rehearing on March 4, 2019, is binding on the parties. Any party wishing to appeal the order must seek judicial review with the superior court within thirty-five days from the date the order was served.
Study Guide: Garcia v. Villagio at Tempe Homeowners Association
This guide is designed to review the key facts, legal arguments, and outcomes of the administrative case between Rogelio A. Garcia and the Villagio at Tempe Homeowners Association, as detailed in case number 19F-H1918009-REL.
Quiz: Short-Answer Questions
Instructions: Answer the following questions in two to three sentences, based on the provided source context.
1. Who were the primary parties involved in this case, and what were their respective roles?
2. What specific violation did the Villagio at Tempe Homeowners Association initially accuse Mr. Garcia of committing?
3. What was the core of Mr. Garcia’s legal complaint against the Homeowners Association?
4. According to the court’s findings, what crucial step did Mr. Garcia fail to take after receiving the violation notices?
5. What was Villagio’s main argument for why it was not obligated to provide Mr. Garcia with the name of the person who observed the violation?
6. Under what circumstance did Villagio argue it was not required to provide Mr. Garcia with notice of his right to petition for an administrative hearing?
7. What new fines were imposed on Mr. Garcia in the notices dated March 22, 2018, and April 5, 2018?
8. At the rehearing, what was Mr. Garcia’s explanation for why he was unable to respond to the notices within the statutory 21-day period?
9. What argument did Villagio introduce at the rehearing concerning the distinction between a property’s “condition” and its “use”?
10. What was the final outcome of both the initial hearing and the subsequent rehearing?
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Answer Key
1. The primary parties were Rogelio A. Garcia, the Petitioner who brought the complaint, and the Villagio at Tempe Homeowners Association, the Respondent defending against the complaint. The case was heard by Administrative Law Judge Velva Moses-Thompson.
2. Villagio accused Mr. Garcia of violating the short-term lease provisions located in the association’s Covenants, Conditions, and Restrictions (CC&Rs). The association alleged that Mr. Garcia’s unit was being rented in violation of its short-term rental policy.
3. Mr. Garcia alleged that Villagio violated ARIZ. REV. STAT. § 33-1242. He claimed Villagio failed to provide him the opportunity to respond by certified mail within 21 days, did not inform him of his right to an administrative hearing, and did not provide the name of the person who observed the violation.
4. The court found that Mr. Garcia did not respond to the violation notices sent on March 8, March 22, and April 5, 2018. Specifically, he failed to provide the association with a written response by sending it via certified mail within 21 calendar days after the date of the notices.
5. Villagio argued that its obligation to provide the observer’s name under A.R.S. § 33-1242(C) is only triggered if the unit owner first submits a written response by certified mail within the 21-day period. Because Mr. Garcia did not do so, Villagio was not required to provide that information.
6. Villagio argued it was not required to provide notice of the right to petition for a hearing because it had already fulfilled its legal obligation under A.R.S. § 33-1242(D). The violation notices it sent to Mr. Garcia contained instructions on the process for contesting the notice with the Board of Directors.
7. The notice dated March 22, 2018, informed Mr. Garcia that a fine of $1,000 had been posted to his account. The subsequent notice on April 5, 2018, stated that an additional $2,000 fine had been posted for the same violation.
8. Mr. Garcia contended that Villagio prevented him from responding because it did not wait 21 days before issuing subsequent notices and fines. He believed he only had 10 days to comply based on language in the notices, which created confusion and pressure.
9. At the rehearing, Villagio argued that A.R.S. § 33-1242 did not apply because the statute addresses violations related to the “condition of the property.” Villagio asserted its notices concerned the “use” of Mr. Garcia’s property (short-term renting), not its physical condition.
10. In both the initial hearing decision issued on November 19, 2018, and the rehearing decision issued on March 4, 2019, the Administrative Law Judge found that Mr. Garcia failed to prove Villagio had violated the statute. Consequently, Mr. Garcia’s petition was dismissed in both instances.
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Essay Questions
Instructions: The following questions are designed to provoke deeper analysis of the case. Formulate a comprehensive response to each, drawing evidence and reasoning exclusively from the case documents.
1. Analyze the legal reasoning used by Administrative Law Judge Velva Moses-Thompson to dismiss Mr. Garcia’s petition. How did the judge interpret and apply the specific subsections of ARIZ. REV. STAT. § 33-1242 to the facts presented in the initial hearing and the rehearing?
2. Trace the progression of arguments made by both Rogelio A. Garcia and Villagio from the initial petition through the rehearing. How did their claims and defenses evolve, and what new evidence or legal theories were introduced in the second hearing?
3. Discuss the significance of the “burden of proof” in this case, which rested upon Mr. Garcia. Explain the standard of a “preponderance of the evidence” as defined in the legal decision and detail why the judge concluded Mr. Garcia failed to meet this standard.
4. Evaluate the strength and potential implications of Villagio’s argument, introduced at the rehearing, that A.R.S. § 33-1242 applies only to the “condition” of a property and not its “use.” Although the judge did not base the final decision on this point, discuss how this interpretation could affect future disputes between homeowners and associations.
5. Based on the dates and actions described in the two decisions, construct a detailed procedural timeline of this case. Begin with the first violation letter from Villagio and conclude with the notice of the right to appeal the rehearing decision, including all key notices, filings, hearings, and fines.
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An official who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions. In this case, the ALJ was Velva Moses-Thompson.
ARIZ. REV. STAT. (A.R.S.)
The Arizona Revised Statutes, which are the codified laws of the state of Arizona. The central statute in this case was A.R.S. § 33-1242.
Burden of Proof
The obligation on a party in a legal case to prove its allegations. In this matter, Mr. Garcia bore the burden of proof to show that Villagio committed the alleged violation.
CC&Rs (Covenants, Conditions, and Restrictions)
The governing documents that dictate how a condominium or planned community must be operated and maintained, and which contain the rules that unit owners must follow. Mr. Garcia was accused of violating the short-term lease provisions of Villagio’s CC&Rs.
Certified Mail
A type of mail service that provides the sender with a mailing receipt and electronic verification that an article was delivered or that a delivery attempt was made. A.R.S. § 33-1242(B) specifies this method for a unit owner’s written response to a violation notice.
Evidentiary Hearing
A formal proceeding, similar to a trial, where parties present evidence (such as testimony and documents) to a neutral decision-maker. Hearings were held in this case on October 30, 2018, and February 12, 2019.
Office of Administrative Hearings
A state agency that conducts impartial hearings for other state agencies, boards, and commissions. This office was responsible for conducting the hearings in this case.
Petitioner
The party who initiates a legal action by filing a petition. In this case, Rogelio A. Garcia was the Petitioner.
Preponderance of the Evidence
The standard of proof required in this case. It is defined as “The greater weight of the evidence…sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”
Rehearing
A second hearing of a case to reconsider the original decision, often granted to review the evidence or arguments. Mr. Garcia requested and was granted a rehearing after the initial decision was issued.
Respondent
The party against whom a petition is filed; the party who must respond to the allegations. In this case, the Villagio at Tempe Homeowners Association was the Respondent.
Unit Owner
A person who owns a unit within a condominium or planned community and is subject to the association’s governing documents. Mr. Garcia is a unit owner in the Villagio at Tempe community.
