Category Archives: HOA Cases

Steven Kramer vs. Camelback House, Inc.

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Case Summary

Case ID 21F-H2121063-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-09-27
Administrative Law Judge Adam D. Stone
Outcome The Administrative Law Judge found that the Respondent, Camelback House, Inc., violated ARIZ. REV. STAT. § 33-1242(C) by failing to properly and timely respond to the Petitioner's response to a Notice of Violation. Petitioner Steven Kramer was deemed the prevailing party and was awarded the reimbursement of his $500.00 filing fee.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Steven Kramer Counsel —
Respondent Camelback House, Inc. Counsel Emily Cooper, Esq.

Alleged Violations

ARIZ. REV. STAT. § 33-1242(C)

Outcome Summary

The Administrative Law Judge found that the Respondent, Camelback House, Inc., violated ARIZ. REV. STAT. § 33-1242(C) by failing to properly and timely respond to the Petitioner's response to a Notice of Violation. Petitioner Steven Kramer was deemed the prevailing party and was awarded the reimbursement of his $500.00 filing fee.

Key Issues & Findings

Failure to properly respond to Petitioner's response to a Notice of Violation

The Respondent violated the statute by failing to provide a timely written response to the unit owner (Petitioner) within ten business days of receiving the unit owner's response to a Notice of Violation. The Tribunal also concluded that the original Notice of Violation failed to sufficiently identify the first and last name of the person who observed the violation, as required by the statute.

Orders: Respondent must reimburse the Petitioner the filing fees of $500.00 within 30 days.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. § 33-1242(C)
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

Analytics Highlights

Topics: HOA violation response time, notice of violation requirements, filing fee refund
Additional Citations:

  • ARIZ. REV. STAT. § 33-1242(C)
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov

Video Overview

Audio Overview

Decision Documents

21F-H2121063-REL Decision – 913417.pdf

Uploaded 2026-04-24T11:37:31 (113.9 KB)

This summary outlines the administrative hearing decision in the matter of *Steven Kramer v. Camelback House, Inc.*, decided by Administrative Law Judge Adam D. Stone on September 27, 2021.

Case Summary: Steven Kramer v. Camelback House, Inc.

Key Facts and Background

The Petitioner, Steven Kramer, is a condominium owner and member of the Respondent, Camelback House, Inc. (the Association). The dispute arose after the Petitioner received a Notice of Violation (NOV) on or about July 20, 2020, regarding Pencil Cactus plants located at his unit. The Petitioner timely submitted a response to the NOV on August 14, 2020. Following this response, the Petitioner failed to hear anything further from the Association for approximately eight months, until the matter was noted for discussion at an April 2021 Board meeting.

Main Issue and Legal Arguments

The central issue was whether the Association violated ARIZ. REV. STAT. § 33-1242(C) by failing to properly respond to the unit owner's response to the Notice of Violation. The Association argued it was excused from compliance with the statute because the initial NOV met all statutory requirements.

ARIZ. REV. STAT. § 33-1242(C) mandates that, within ten business days after receiving the unit owner's response, the association must respond with a written explanation providing specific details, *unless* those details (including the provision violated, the date observed, the process to contest, and crucially, the first and last name of the person(s) who observed the violation) were already provided in the original notice.

Legal Analysis and Decision

The Administrative Law Judge (ALJ) found that the Petitioner sustained the burden of proving a violation by a preponderance of the evidence.

  1. Interpretation of A.R.S. § 33-1242(C): The Tribunal rejected the Association’s primary defense. The ALJ concluded that the "unless previously provided" clause in the statute only excuses the inclusion of the detailed information (items 1-4), but it does not excuse the core requirement for the Association to send a written response to the homeowner within the ten-day statutory window.
  2. Deficiency of the Original Notice (Alternative Finding): Even if the Association’s interpretation of the statute had been correct, the ALJ found the original Notice of Violation was legally deficient because it failed to satisfy requirement number 3: providing the first and last name of the person(s) who observed the violation. Testimony established that the signature on the NOV was "auto-populated" and the notice vaguely referenced observation “[d]uring a recent inspection of the community,” which the ALJ found to be insufficient notice under the statute.

Outcome

The Tribunal concluded that the Respondent violated ARIZ. REV. STAT. § 33-1242(C) for failing to properly and timely respond to the Petitioner's submission. The Petitioner was deemed the prevailing party and was awarded $500.00 in filing fees, which the Respondent was ordered to reimburse within 30 days.

Questions

Question

How long does my HOA have to respond after I send a written response to a violation notice?

Short Answer

The HOA must respond within 10 business days of receiving your certified mail response.

Detailed Answer

Under Arizona law, if a unit owner responds to a violation notice via certified mail, the association is statutorily required to provide a written explanation within ten business days.

Alj Quote

Within ten business days after receipt of the certified mail containing the response from the unit owner, the association shall respond to the unit owner with a written explanation regarding the notice

Legal Basis

ARIZ. REV. STAT. § 33-1242(C)

Topic Tags

  • timelines
  • violation notices
  • communication

Question

If the HOA's original violation notice was perfect, do they still have to reply to my response?

Short Answer

Yes. Even if the original notice contained all required details, the HOA must still send a response letter.

Detailed Answer

The ALJ determined that the statutory phrase 'unless previously provided' only excuses the HOA from repeating specific detailed information (like the date and observer's name) if it was already in the first notice. It does not excuse the HOA from the obligation to send a response letter entirely.

Alj Quote

First, the Tribunal believes that the “unless previously provided in the notice of violation” clause, only excuses the detailed written information, not the letter itself. Thus, the Tribunal believes that the statute requires a written response within 10 days of receiving the homeowner’s response to the notice of violation.

Legal Basis

ARIZ. REV. STAT. § 33-1242(C)

Topic Tags

  • legal interpretation
  • HOA obligations
  • violation notices

Question

Does the HOA have to tell me the specific name of the person who reported my violation?

Short Answer

Yes. The notice must include the first and last name of the person who observed the violation.

Detailed Answer

The statute explicitly requires the HOA to provide the first and last name of the observer. A general statement that an item was noted during an inspection is insufficient if it does not identify the specific observer.

Alj Quote

3. The first and last name of the person or persons who observed the violation.

Legal Basis

ARIZ. REV. STAT. § 33-1242(C)(3)

Topic Tags

  • due process
  • violation notices
  • observer identity

Question

Is an automated signature on a violation letter enough to identify who saw the violation?

Short Answer

Not necessarily. If the letter doesn't explicitly state that the signer was the one who observed the violation, an auto-signature is insufficient.

Detailed Answer

In this case, the ALJ found that an auto-populated signature at the bottom of a form letter was not sufficient to satisfy the requirement of identifying the observer, particularly when the text only referred vaguely to a 'recent inspection' without stating who performed it.

Alj Quote

The only time a first and last name is used is in the signature block, which Ms. Smith testified was auto-populated. … This does not state who observed the violation. … The Administrative Law Judge does not find this sufficient notice under the statute.

Legal Basis

ARIZ. REV. STAT. § 33-1242(C)(3)

Topic Tags

  • evidence
  • violation notices
  • signatures

Question

What happens if I win my hearing against the HOA?

Short Answer

You may be deemed the prevailing party and awarded reimbursement for your filing fees.

Detailed Answer

If the homeowner proves the HOA violated the statute, the ALJ can order the HOA to reimburse the homeowner's filing fees (in this case, $500) within a set timeframe.

Alj Quote

IT IS ORDERED that Petitioner is deemed the prevailing party and is entitled to his filing fees of $500.00, and Respondent must reimburse the same within 30 days.

Legal Basis

Order

Topic Tags

  • remedies
  • filing fees
  • prevailing party

Question

What is the burden of proof for a homeowner in an administrative hearing?

Short Answer

Preponderance of the evidence.

Detailed Answer

The homeowner must prove their case by showing that their contention is more probably true than not. This is based on the weight of the evidence, not just the number of witnesses.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1242(C). … “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

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • legal standards
  • burden of proof
  • evidence

Case

Docket No
21F-H2121063-REL
Case Title
Steven Kramer vs. Camelback House, Inc.
Decision Date
2021-09-27
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Questions

Question

How long does my HOA have to respond after I send a written response to a violation notice?

Short Answer

The HOA must respond within 10 business days of receiving your certified mail response.

Detailed Answer

Under Arizona law, if a unit owner responds to a violation notice via certified mail, the association is statutorily required to provide a written explanation within ten business days.

Alj Quote

Within ten business days after receipt of the certified mail containing the response from the unit owner, the association shall respond to the unit owner with a written explanation regarding the notice

Legal Basis

ARIZ. REV. STAT. § 33-1242(C)

Topic Tags

  • timelines
  • violation notices
  • communication

Question

If the HOA's original violation notice was perfect, do they still have to reply to my response?

Short Answer

Yes. Even if the original notice contained all required details, the HOA must still send a response letter.

Detailed Answer

The ALJ determined that the statutory phrase 'unless previously provided' only excuses the HOA from repeating specific detailed information (like the date and observer's name) if it was already in the first notice. It does not excuse the HOA from the obligation to send a response letter entirely.

Alj Quote

First, the Tribunal believes that the “unless previously provided in the notice of violation” clause, only excuses the detailed written information, not the letter itself. Thus, the Tribunal believes that the statute requires a written response within 10 days of receiving the homeowner’s response to the notice of violation.

Legal Basis

ARIZ. REV. STAT. § 33-1242(C)

Topic Tags

  • legal interpretation
  • HOA obligations
  • violation notices

Question

Does the HOA have to tell me the specific name of the person who reported my violation?

Short Answer

Yes. The notice must include the first and last name of the person who observed the violation.

Detailed Answer

The statute explicitly requires the HOA to provide the first and last name of the observer. A general statement that an item was noted during an inspection is insufficient if it does not identify the specific observer.

Alj Quote

3. The first and last name of the person or persons who observed the violation.

Legal Basis

ARIZ. REV. STAT. § 33-1242(C)(3)

Topic Tags

  • due process
  • violation notices
  • observer identity

Question

Is an automated signature on a violation letter enough to identify who saw the violation?

Short Answer

Not necessarily. If the letter doesn't explicitly state that the signer was the one who observed the violation, an auto-signature is insufficient.

Detailed Answer

In this case, the ALJ found that an auto-populated signature at the bottom of a form letter was not sufficient to satisfy the requirement of identifying the observer, particularly when the text only referred vaguely to a 'recent inspection' without stating who performed it.

Alj Quote

The only time a first and last name is used is in the signature block, which Ms. Smith testified was auto-populated. … This does not state who observed the violation. … The Administrative Law Judge does not find this sufficient notice under the statute.

Legal Basis

ARIZ. REV. STAT. § 33-1242(C)(3)

Topic Tags

  • evidence
  • violation notices
  • signatures

Question

What happens if I win my hearing against the HOA?

Short Answer

You may be deemed the prevailing party and awarded reimbursement for your filing fees.

Detailed Answer

If the homeowner proves the HOA violated the statute, the ALJ can order the HOA to reimburse the homeowner's filing fees (in this case, $500) within a set timeframe.

Alj Quote

IT IS ORDERED that Petitioner is deemed the prevailing party and is entitled to his filing fees of $500.00, and Respondent must reimburse the same within 30 days.

Legal Basis

Order

Topic Tags

  • remedies
  • filing fees
  • prevailing party

Question

What is the burden of proof for a homeowner in an administrative hearing?

Short Answer

Preponderance of the evidence.

Detailed Answer

The homeowner must prove their case by showing that their contention is more probably true than not. This is based on the weight of the evidence, not just the number of witnesses.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1242(C). … “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

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • legal standards
  • burden of proof
  • evidence

Case

Docket No
21F-H2121063-REL
Case Title
Steven Kramer vs. Camelback House, Inc.
Decision Date
2021-09-27
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Steven Kramer (petitioner)
    Appeared and testified on his own behalf.

Respondent Side

  • Emily Cooper (attorney)
    Camelback House, Inc.
  • Laura Smith (witness, community manager)
    Camelback House, Inc.
    Current Community Manager for the Association since February 2021.
  • Rick Williams (community manager)
    Association
    Community Manager for the Association who sent the Notice of Violation in July 2020; signature on the notice was automated.

Neutral Parties

  • Adam D. Stone (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Recipient of the transmitted order.
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Recipient of the transmitted order.
  • DGardner (ADRE staff)
    Arizona Department of Real Estate
    Recipient of the transmitted order.

Arthur Fisenko & Viktoriya Tkach-Fisenko v. Bellvue Homeowners

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Case Summary

Case ID 21F-H2121046-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-09-20
Administrative Law Judge Jenna Clark
Outcome The Administrative Law Judge denied the Petition, finding that Petitioners failed to sustain their burden of proof that the Association violated state statute or community documents. The Association's Architectural Review Committee (ARC) refusal to approve the wall modification request was deemed reasonable because Petitioners failed to provide the supplemental information requested by the ARC.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Arthur Fisenko & Viktoriya Tkach-Fisenko Counsel Laurence Stevens, Esq.
Respondent Bellvue Homeowners Association Counsel Jamie B. Palfai, Esq.

Alleged Violations

ARIZ. REV. STAT. § 33-1817(B)(3) and CC&Rs Article VII, Section 2

Outcome Summary

The Administrative Law Judge denied the Petition, finding that Petitioners failed to sustain their burden of proof that the Association violated state statute or community documents. The Association's Architectural Review Committee (ARC) refusal to approve the wall modification request was deemed reasonable because Petitioners failed to provide the supplemental information requested by the ARC.

Why this result: The record did not establish violation(s) of ARIZ. REV. STAT. § 33-1817(B)(3) or CC&Rs Article VII, Section 2 by a preponderance of the evidence. Petitioners did not provide sufficient and/or requisite information necessary for the ARC to make a reasonably objective determination, nor did they attempt to cure the deficient application.

Key Issues & Findings

Arbitrary and capricious denial of architectural request to move garage-side yard block wall and install a double-wide gate.

Petitioners alleged the Association (ARC) arbitrarily and capriciously rejected their request to move their garage-side yard wall eight (8) feet forward on their property, using the same materials as the existing wall, except replacing the single-wide gate with a double-wide gate previously approved by Respondent.

Orders: Petitioners’ petition is denied.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 33-1817(B)(3)
  • CC&Rs Article VII, Section 2

Analytics Highlights

Topics: HOA, Architectural Request, Block Wall, Architectural Review Committee (ARC), A.R.S. 33-1817
Additional Citations:

  • ARIZ. REV. STAT. § 33-1817(B)(3)
  • CC&Rs Article VII, Section 2
  • ARIZ. REV. STAT. §§ 32-2102
  • ARIZ. REV. STAT. §§ 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. §§ 32-2199(2)
  • ARIZ. REV. STAT. §§ 32-2199.01(A)
  • ARIZ. REV. STAT. §§ 32-2199.01(D)
  • ARIZ. REV. STAT. §§ 32-2199.02
  • ARIZ. REV. STAT. §§ 41-1092 et seq.
  • ARIZ. ADMIN. CODE R2-19-119
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov

Video Overview

Audio Overview

Decision Documents

21F-H2121046-REL Decision – 912007.pdf

Uploaded 2026-04-24T11:35:00 (138.0 KB)

This is a summary of the Administrative Law Judge Decision in *Arthur Fisenko & Viktoriya Tkach-Fisenko vs. Bellvue Homeowners Association* (No. 21F-H2121046-REL), heard on August 30, 2021.

Key Facts and Proceedings

The dispute involved Arthur Fisenko and Viktoriya Tkach-Fisenko (Petitioners), property owners in the Bellvue subdivision, and the Bellvue Homeowners Association (Respondent). The case was heard by the Office of Administrative Hearings (OAH) pursuant to Arizona statutes governing disputes between owners and planned community associations.

Petitioners initially filed a two-issue petition with the Arizona Department of Real Estate alleging that the Association's Architectural Review Committee (ARC) arbitrarily and capriciously rejected landscaping modification requests. By July 30, 2021, the issue concerning the installation of pavers and artificial grass became moot when the Respondent reversed its initial denial.

The main issue for the hearing was whether the Association violated ARIZ. REV. STAT. § 33-1817(B)(3) and/or CC&Rs Article VII, Section 2, by denying Petitioners’ request to move their garage-side yard wall eight (8) feet forward on their property. The proposal included using the same materials and replacing an existing single-wide gate with a previously approved double-wide gate.

Key Arguments

  1. Petitioners’ Argument: Petitioners asserted that the Association's denial was arbitrary and capricious, noting that the ARC had approved the paver/artificial grass portion of their request without requiring supplemental information. They argued that their initial Architectural Request Form, filled out without counsel, should have been approved despite any technical omissions.
  2. Respondent’s Argument: The Association contended that the Petitioners' Architectural Request Form was deficient and incomplete because crucial and relevant information was missing. Specifically, after the initial denial in February 2021 (citing concerns over length and neighbor impact), Petitioners were instructed in March 2021 to submit a complete form, a plot plan, elevation plans, and specifications. Respondent argued that because Petitioners failed to provide this specific supplemental information, the ARC was unable to make a reasonably objective determination necessary for approval.

Legal Points and Outcome

The Petitioners bore the burden of proving, by a preponderance of the evidence, that the Association violated ARIZ. REV. STAT. § 33-1817(B)(3) (which mandates that architectural approval "shall not unreasonably be withheld") or CC&Rs Article VII, Section 2.

The Administrative Law Judge concluded that Petitioners failed to sustain their burden of proof. The decision rested on the finding that the Petitioners did not provide sufficient and/or requisite information necessary for the ARC to reasonably evaluate the wall modification request. Furthermore, the record established that Petitioners were specifically advised what supplemental information was required but failed to cure their application deficiencies.

The final decision held that the Respondent’s refusal to grant the Architectural Request was neither arbitrary nor capricious. Therefore, the Petitioners’ petition was denied.

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21F-H2121046-REL

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This administrative law decision outlines a legal dispute between homeowners Arthur and Viktoriya Fisenko and the Bellvue Homeowners Association regarding property modifications. The petitioners alleged that the association’s Architectural Committee unfairly rejected their request to extend a boundary wall and install a double-wide gate. While the parties resolved disagreements over landscaping materials like artificial grass and pavers before the hearing, the conflict regarding the wall remained. The Administrative Law Judge ultimately ruled in favor of the Homeowners Association, finding that the residents failed to provide the specific plans and technical data required for approval. Consequently, the court determined the association did not act arbitrarily or capriciously in its refusal, leading to the formal denial of the petition.

What was the core legal dispute between the Fisenkos and the HOA?
Why did the Administrative Law Judge ultimately rule against the homeowners?
How do Arizona statutes regulate the architectural approval process for HOAs?

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21F-H2121046-REL

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This administrative law decision outlines a legal dispute between homeowners Arthur and Viktoriya Fisenko and the Bellvue Homeowners Association regarding property modifications. The petitioners alleged that the association’s Architectural Committee unfairly rejected their request to extend a boundary wall and install a double-wide gate. While the parties resolved disagreements over landscaping materials like artificial grass and pavers before the hearing, the conflict regarding the wall remained. The Administrative Law Judge ultimately ruled in favor of the Homeowners Association, finding that the residents failed to provide the specific plans and technical data required for approval. Consequently, the court determined the association did not act arbitrarily or capriciously in its refusal, leading to the formal denial of the petition.

What was the core legal dispute between the Fisenkos and the HOA?
Why did the Administrative Law Judge ultimately rule against the homeowners?
How do Arizona statutes regulate the architectural approval process for HOAs?

Thursday, February 12

Save to note

Today • 11:01 AM

1 source

Video Overview

Mind Map

Reports

Flashcards

Quiz

Infographic

Slide Deck

Data Table

NotebookLM can be inaccurate; please double check its responses.

Case Participants

Petitioner Side

  • Arthur Fisenko (petitioner)
    Testified on behalf of Petitioners
  • Viktoriya Tkach-Fisenko (petitioner)
  • Laurence Stevens (petitioner attorney)
    Stevens & Van Cott, PLLC

Respondent Side

  • Jamie Palfai (HOA attorney)
    O’Hagan Meyer LLC
  • Samuel Truett (witness)
    Bellvue Homeowners Association
    Witness for Bellvue Homeowners Association

Neutral Parties

  • Jenna Clark (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (ADRE Commissioner)
    Arizona Department of Real Estate

Ronald Borruso v. Sunland Village East Association

Posted on by

Case Summary

Case ID 21F-H2121062-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-09-21
Administrative Law Judge Thomas Shedden
Outcome The Administrative Law Judge dismissed the petition filed by Ronald Borruso, finding that the Petitioner failed to meet the standard of proof (preponderance of the evidence) regarding the alleged violations of ARIZ. REV. STAT. § 33-1804 concerning meeting procedures and unauthorized board actions.
Filing Fees Refunded $1,500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Ronald Borruso Counsel —
Respondent Sunland Village East Association Counsel Nicholas Nogami, Esq. and Nikolas Eicher, Esq.

Alleged Violations

ARIZ. REV. STAT. § 33-1804

Outcome Summary

The Administrative Law Judge dismissed the petition filed by Ronald Borruso, finding that the Petitioner failed to meet the standard of proof (preponderance of the evidence) regarding the alleged violations of ARIZ. REV. STAT. § 33-1804 concerning meeting procedures and unauthorized board actions.

Why this result: The Petitioner failed to carry the burden of proof to show that the alleged violations of ARIZ. REV. STAT. § 33-1804 occurred.

Key Issues & Findings

Alleged violations regarding member speaking rights at May 27, 2021 meeting and unauthorized board meetings concerning Operations Manager job qualifications

Petitioner alleged the HOA violated open meeting laws by restricting member speaking rights during deliberations at a special meeting on May 27, 2021, and by holding improperly noticed meetings to approve job qualifications for an Operations Manager.

Orders: Ronald Borruso’s petition is dismissed.

Filing fee: $1,500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 33-1804
  • ARIZ. ADMIN. CODE § R2-19-119
  • ARIZ. REV. STAT. § 32-2199.02(A)
  • Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)
  • State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968)

Analytics Highlights

Topics: Open Meetings, Right to Speak, Statute Violation, Burden of Proof, Dismissal, Filing Fee
Additional Citations:

  • ARIZ. REV. STAT. § 33-1804
  • ARIZ. ADMIN. CODE § R2-19-119
  • ARIZ. REV. STAT. § 32-2199.02(A)
  • Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)
  • State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968)

Video Overview

Audio Overview

Decision Documents

21F-H2121062-REL Decision – 912276.pdf

Uploaded 2026-01-23T17:38:53 (114.4 KB)

This summary details the Administrative Law Judge (ALJ) Decision in the case of Ronald Borruso, Petitioner, vs. Sunland Village East Association, Respondent (No. 21F-H2121062-REL), heard on September 3, 2021. The Petitioner, Ronald Borruso, alleged that the Association violated its Bylaws and specific provisions of ARIZ. REV. STAT. section 33-1804.

Key Facts and Legal Standard

The Department of Real Estate had jurisdiction over the matter. The Petitioner bore the burden of proving the alleged violations occurred by a preponderance of the evidence. Borruso refined his allegations to two main issues, both centering on the violation of association meeting requirements under ARIZ. REV. STAT. § 33-1804(A) and (C).

Main Issues and Arguments

Issue 1: Member Participation at the May 27, 2021 Special Meeting

  • Petitioner's Claim: Borruso alleged that during a special meeting concerning a recall petition, the Board denied members the right to speak at an appropriate time during proceedings, violating § 33-1804(A). He argued the meeting was improperly divided into a "closed" session where members could not offer substantive comments, followed by an "Open Session Q & A" after adjournment.
  • Association's Argument: The Association maintained there was only one meeting, and it was not a violation to restrict members’ comments until after the Board provided its statements. They argued they used the term "closed" inartfully, noting that members were allowed to attend the entire 3-hour meeting, and ample opportunity was provided for comments during the Q & A session (lasting about 90 minutes).
  • Legal Point: ARIZ. REV. STAT. section 33-1804(A) permits members to attend and speak at an appropriate time during deliberations, and mandates they speak once after the Board discusses an agenda item but before formal action. The ALJ noted that legally, a "closed" meeting refers to an executive session, which the Board did not conduct.

Issue 2: Unnoticed Meeting to Approve Operations Manager Qualifications

  • Petitioner's Claim: Borruso alleged the Board held un-noticed meetings to write and approve job qualifications for an Operations Manager, violating sections 33-1804(A) and (C). His primary evidence was a former Board President, Ms. Haynie, confirming in a May 6, 2021 meeting that the Board had written and approved the job description.
  • Association's Argument: Current Board members testified credibly that Ms. Haynie was wrong and that the Board had never met or voted on the job description. The description posted was similar to a previous one, and Ms. Haynie had allegedly prepared and posted it without Board approval.

Outcome and Final Decision

The Administrative Law Judge concluded that Mr. Borruso failed to meet the required standard of proof (preponderance of the evidence) on both issues.

  1. Regarding the May 27th Meeting: The Petitioner did not prove a violation of § 33-1804(A). Although the Board was not precise in its terminology, members were allowed to attend the entire meeting, and the evidence showed it was a single meeting where members spoke after the Board's presentation.
  2. Regarding the Job Qualifications: The Petitioner failed to prove that an un-noticed meeting occurred, as the credible testimony indicated that the former President had been mistaken about the Board’s approval. Therefore, there was no violation of sections 33-1804(A) and (C).

The petition was dismissed.

Questions

Question

Can the HOA Board restrict when homeowners are allowed to speak during a meeting?

Short Answer

Yes, the Board is allowed to place reasonable time restrictions on speakers and determine the appropriate time for comments.

Detailed Answer

The ALJ cited Arizona law stating that while members have a right to speak, the Board may impose reasonable time restrictions. In this case, requiring members to wait until after the Board's presentation to speak was not a violation.

Alj Quote

The board may place reasonable time restrictions on those persons speaking during the meeting but shall permit a member or member's designated representative to speak once after the board has discussed a specific agenda item but before the board takes formal action on that item

Legal Basis

A.R.S. § 33-1804(A)

Topic Tags

  • meetings
  • homeowner rights
  • speaking limits

Question

If the Board calls part of a meeting 'closed', is it automatically an illegal executive session?

Short Answer

No, not if members are still allowed to attend and observe.

Detailed Answer

Even if the Board uses the term 'closed' inartfully to mean 'no comments allowed yet,' it is not an illegal meeting if members are physically permitted to attend. A true 'closed' meeting (executive session) is one members cannot attend.

Alj Quote

Consequently, although the Board referred to the initial part of the meeting as being 'closed' because it would not take members’ comments in that portion of the meeting, it was using that word in a different sense than it is used in section 33-1804.

Legal Basis

A.R.S. § 33-1804(A) and (C)

Topic Tags

  • meetings
  • executive session
  • definitions

Question

What standard of proof do I need to meet to win a case against my HOA?

Short Answer

You must prove your case by a 'preponderance of the evidence'.

Detailed Answer

The homeowner (petitioner) bears the burden of proof. This means showing that the allegations are more likely true than not—having the 'greater weight' of evidence.

Alj Quote

The standard of proof on all issues in this matter is that of a preponderance of the evidence.

Legal Basis

A.A.C. § R2-19-119

Topic Tags

  • legal standards
  • burden of proof
  • procedure

Question

Is a Board President's verbal admission enough to prove an illegal meeting occurred?

Short Answer

Not necessarily, especially if other testimony contradicts it and there are no records.

Detailed Answer

In this case, a Board President said 'yes' when asked if the Board met to approve a job description. However, the ALJ found this insufficient because other Board members testified credibly that she was wrong and no such meeting took place.

Alj Quote

Although Ms. Haynie did answer 'yes' when asked, Messrs. Thurn and Fretwell provided credible testimony that she was wrong. … Consequently, the preponderance of the evidence shows that there is no violation

Legal Basis

Preponderance of Evidence

Topic Tags

  • evidence
  • board meetings
  • testimony

Question

Can I file a single petition for multiple different complaints against my HOA?

Short Answer

Yes, but you must pay the appropriate fee for a multi-issue hearing.

Detailed Answer

When filing a petition, you must either identify a single issue or pay the Department the fee required for a multi-issue hearing.

Alj Quote

Mr. Borruso that he was required either to identify a single issue for hearing or to pay to the Department the appropriate fee for a multi-issue hearing.

Legal Basis

Administrative Procedure

Topic Tags

  • filing fees
  • procedure
  • petitions

Question

Does the Board have to let me speak before they take a formal vote?

Short Answer

Yes, homeowners must be allowed to speak after discussion but before the vote.

Detailed Answer

The statute explicitly states that a member must be permitted to speak once after the board has discussed a specific item but before formal action is taken.

Alj Quote

[S]hall permit a member or member's designated representative to speak once after the board has discussed a specific agenda item but before the board takes formal action on that item

Legal Basis

A.R.S. § 33-1804(A)

Topic Tags

  • voting
  • meetings
  • homeowner rights

Case

Docket No
21F-H2121062-REL
Case Title
Ronald Borruso vs. Sunland Village East Association
Decision Date
2021-09-21
Alj Name
Thomas Shedden
Tribunal
OAH
Agency
ADRE

Questions

Question

Can the HOA Board restrict when homeowners are allowed to speak during a meeting?

Short Answer

Yes, the Board is allowed to place reasonable time restrictions on speakers and determine the appropriate time for comments.

Detailed Answer

The ALJ cited Arizona law stating that while members have a right to speak, the Board may impose reasonable time restrictions. In this case, requiring members to wait until after the Board's presentation to speak was not a violation.

Alj Quote

The board may place reasonable time restrictions on those persons speaking during the meeting but shall permit a member or member's designated representative to speak once after the board has discussed a specific agenda item but before the board takes formal action on that item

Legal Basis

A.R.S. § 33-1804(A)

Topic Tags

  • meetings
  • homeowner rights
  • speaking limits

Question

If the Board calls part of a meeting 'closed', is it automatically an illegal executive session?

Short Answer

No, not if members are still allowed to attend and observe.

Detailed Answer

Even if the Board uses the term 'closed' inartfully to mean 'no comments allowed yet,' it is not an illegal meeting if members are physically permitted to attend. A true 'closed' meeting (executive session) is one members cannot attend.

Alj Quote

Consequently, although the Board referred to the initial part of the meeting as being 'closed' because it would not take members’ comments in that portion of the meeting, it was using that word in a different sense than it is used in section 33-1804.

Legal Basis

A.R.S. § 33-1804(A) and (C)

Topic Tags

  • meetings
  • executive session
  • definitions

Question

What standard of proof do I need to meet to win a case against my HOA?

Short Answer

You must prove your case by a 'preponderance of the evidence'.

Detailed Answer

The homeowner (petitioner) bears the burden of proof. This means showing that the allegations are more likely true than not—having the 'greater weight' of evidence.

Alj Quote

The standard of proof on all issues in this matter is that of a preponderance of the evidence.

Legal Basis

A.A.C. § R2-19-119

Topic Tags

  • legal standards
  • burden of proof
  • procedure

Question

Is a Board President's verbal admission enough to prove an illegal meeting occurred?

Short Answer

Not necessarily, especially if other testimony contradicts it and there are no records.

Detailed Answer

In this case, a Board President said 'yes' when asked if the Board met to approve a job description. However, the ALJ found this insufficient because other Board members testified credibly that she was wrong and no such meeting took place.

Alj Quote

Although Ms. Haynie did answer 'yes' when asked, Messrs. Thurn and Fretwell provided credible testimony that she was wrong. … Consequently, the preponderance of the evidence shows that there is no violation

Legal Basis

Preponderance of Evidence

Topic Tags

  • evidence
  • board meetings
  • testimony

Question

Can I file a single petition for multiple different complaints against my HOA?

Short Answer

Yes, but you must pay the appropriate fee for a multi-issue hearing.

Detailed Answer

When filing a petition, you must either identify a single issue or pay the Department the fee required for a multi-issue hearing.

Alj Quote

Mr. Borruso that he was required either to identify a single issue for hearing or to pay to the Department the appropriate fee for a multi-issue hearing.

Legal Basis

Administrative Procedure

Topic Tags

  • filing fees
  • procedure
  • petitions

Question

Does the Board have to let me speak before they take a formal vote?

Short Answer

Yes, homeowners must be allowed to speak after discussion but before the vote.

Detailed Answer

The statute explicitly states that a member must be permitted to speak once after the board has discussed a specific item but before formal action is taken.

Alj Quote

[S]hall permit a member or member's designated representative to speak once after the board has discussed a specific agenda item but before the board takes formal action on that item

Legal Basis

A.R.S. § 33-1804(A)

Topic Tags

  • voting
  • meetings
  • homeowner rights

Case

Docket No
21F-H2121062-REL
Case Title
Ronald Borruso vs. Sunland Village East Association
Decision Date
2021-09-21
Alj Name
Thomas Shedden
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Ronald Borruso (petitioner)
  • Thomas Huston (witness)
    Testified for Petitioner

Respondent Side

  • Nicholas Nogami (respondent attorney)
    Carpenter Hazlewood Delgado & Bolen, LLP
  • Nikolas Eicher (respondent attorney)
    Carpenter Hazlewood Delgado & Bolen, LLP
  • Mark Thurn (board member)
    Sunland Village East Association
    Current Board President, testified for Respondent
  • Marvin Fretwell (board member)
    Sunland Village East Association
    Testified for Respondent
  • Joyce Haynie (board member)
    Sunland Village East Association
    Former President, subject of recall petition
  • Kim Shallue (board member)
    Sunland Village East Association
    Presided over May 27th meeting

Neutral Parties

  • Thomas Shedden (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Recipient of decision transmission
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Recipient of decision transmission
  • DGardner (ADRE staff)
    Arizona Department of Real Estate
    Recipient of decision transmission

Jeffrey D Points v. Olive 66 Condominium Association

Posted on by

Case Summary

Case ID 21F-H2121059-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-09-08
Administrative Law Judge Tammy L. Eigenheer
Outcome The Petitioner’s petition was affirmed in part (violation of A.R.S. § 33-1258 regarding documents) and denied in part (no violation of A.R.S. § 33-1248 regarding open meetings). Respondent was ordered to reimburse $500.00 of the filing fee and comply with A.R.S. § 33-1258.
Filing Fees Refunded $1,000.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Jeffrey D Points Counsel —
Respondent Olive 66 Condominium Association Counsel MacKenzie Hill

Alleged Violations

A.R.S. § 33-1258
A.R.S. § 33-1248

Outcome Summary

The Petitioner’s petition was affirmed in part (violation of A.R.S. § 33-1258 regarding documents) and denied in part (no violation of A.R.S. § 33-1248 regarding open meetings). Respondent was ordered to reimburse $500.00 of the filing fee and comply with A.R.S. § 33-1258.

Why this result: Petitioner failed to prove the violation of A.R.S. § 33-1248 because evidence of improper notice was lacking and the topic discussed in executive session was likely covered by a statutory exemption.

Key Issues & Findings

Access to Association Records

Respondent violated A.R.S. § 33-1258 by failing to provide certain requested 2021 invoices that were in existence at the time of the request within the statutory 10-day period.

Orders: Respondent must comply with A.R.S. § 33-1258 going forward. Petitioner reimbursed $500.00 filing fee.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1258
  • A.R.S. § 33-1805

Open Board Meetings

Petitioner failed to establish a violation of A.R.S. § 33-1248 regarding the March 25, 2021, board meeting, as the issue regarding notice was not established and the topic discussed (Landscaping Bid Review) likely fell under a statutory exemption.

Orders: Petitioner failed to establish the alleged violation of A.R.S. § 33-1248.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1248
  • A.R.S. § 33-1804

Analytics Highlights

Topics: condominium association, document request, open meeting, executive session, invoices, filing fee refund
Additional Citations:

  • A.R.S. § 33-1248
  • A.R.S. § 33-1258
  • A.R.S. § 33-1804
  • A.R.S. § 33-1805
  • A.R.S. § 32-2199 et seq.
  • A.A.C. R2-19-119

Video Overview

Audio Overview

Decision Documents

21F-H2121059-REL Decision – 909631.pdf

Uploaded 2026-04-24T11:37:01 (47.7 KB)

21F-H2121059-REL Decision – 909633.pdf

Uploaded 2026-04-24T11:37:11 (117.7 KB)

This decision arises from the administrative hearing in the matter of *Jeffrey D Points v. Olive 66 Condominium Association*. The hearing, held on August 19, 2021, before Administrative Law Judge Tammy L. Eigenheer, addressed allegations that the Olive 66 Condominium Association (Respondent) violated Arizona statutes concerning document availability and open meetings.

Key Facts and Legal Framework

The Respondent is a condominium unit owners’ association located in Phoenix, Arizona. The Petitioner, Jeffrey D. Points, alleged violations, initially citing homeowner association (HOA) statutes (A.R.S. §§ 33-1804 and 33-1805). Due to the Respondent’s status, the legal focus shifted to the corresponding condominium statutes: A.R.S. § 33-1248 (meetings) and A.R.S. § 33-1258 (records). Petitioner bore the burden of proving violations by a preponderance of the evidence.

Main Issues and Arguments

The dispute centered on two key issues:

  1. Improper Executive Session (A.R.S. § 33-1248): Petitioner challenged the use of a closed session during the March 25, 2021, Board Meeting, specifically regarding the Landscaping Bid Review. The statute allows meetings to be closed for matters relating to the job performance of or specific complaints against an individual employee of a contractor. Respondent’s witness testified that the review addressed specific performance issues with a landscaping company employee.
  2. Failure to Produce Documents (A.R.S. § 33-1258): Petitioner made numerous requests for association records, including invoices and 1099s. The statute requires financial and other non-privileged records to be made reasonably available within ten business days of a request. Petitioner also asserted a right to examine *all* association documents in person at the office. Respondent argued that allowing unlimited in-person review was unduly burdensome due to the need to remove confidential documents and ongoing COVID-19 concerns.

Legal Conclusions and Outcome

The Administrative Law Judge (ALJ) reached the following conclusions of law:

  • Closed Session (A.R.S. § 33-1248): The ALJ found that the Respondent properly considered the landscaping issue in executive session because it fell under the statutory exception concerning the job performance of an individual contractor employee. Petitioner failed to establish that the meeting notice was improper or that the executive session violated A.R.S. § 33-1248.
  • Document Production (A.R.S. § 33-1258): The ALJ rejected Petitioner’s assertion of a right to examine all documents in person. However, Respondent’s counsel acknowledged that certain requested 2021 invoices were in existence at the time of the request but were not provided to the Petitioner within the required 10-day statutory period. This failure constituted a violation of A.R.S. § 33-1258.

The Final Decision

The Petitioner’s petition was affirmed in part and denied in part. Although a violation of the document production statute (A.R.S. § 33-1258) was established, the ALJ found that no civil penalty was appropriate.

The Order required the following remedy:

  1. Respondent must reimburse Petitioner $500.00 of the filing fee for the issue on which the Petitioner prevailed.
  2. Respondent is directed to comply with the requirements of A.R.S. § 33-1258 going forward.

Questions

Question

Can I demand to inspect every single HOA document in person at the management office?

Short Answer

No. While records must be reasonably available, you do not have the right to peruse all documents at will.

Detailed Answer

The Administrative Law Judge ruled that the statute requiring records be 'reasonably available' does not grant an unlimited right to inspect all documents in person. The HOA can withhold certain confidential documents, and sorting through everything to remove them may be considered unduly burdensome.

Alj Quote

Nothing in the statute however, grants a condominium unit owner the right to peruse all of the association’s documents at will as some documents may properly be withheld.

Legal Basis

A.R.S. § 33-1258

Topic Tags

  • Records Request
  • Inspection Rights

Question

Is it a violation if the HOA fails to provide requested invoices within 10 days?

Short Answer

Yes. If the documents exist and are not provided within the statutory timeframe, it is a violation.

Detailed Answer

The ALJ found the Association in violation of the law because they acknowledged that requested invoices existed at the time of the request but were not provided to the homeowner.

Alj Quote

Respondent’s witness acknowledged that certain invoices requested by Petitioner were in existence at the time of the request, but were not provided to Petitioner. Such a failure to provide the documents requested was a violation of A.R.S. § 33-1258.

Legal Basis

A.R.S. § 33-1258

Topic Tags

  • Records Request
  • Invoices
  • Timeliness

Question

Can the HOA Board discuss vendor contracts or issues in a closed executive session?

Short Answer

Yes, if the discussion involves specific complaints or performance issues regarding an individual employee of the contractor.

Detailed Answer

The ALJ ruled that a 'Landscaping Bid Review' was properly held in executive session because the testimony indicated it involved specific performance issues with an employee of the landscaping company.

Alj Quote

Respondent’s witness asserted that the issue regarding the landscaping bid review was a specific performance issue with an employee of the landscaping company. As that topic falls under the exception listed in A.R.S. § 33-1248(A)(4), Respondent properly considered the issue in an executive session closed to its members.

Legal Basis

A.R.S. § 33-1248(A)(4)

Topic Tags

  • Open Meetings
  • Executive Session
  • Vendors

Question

Will the HOA be fined if they are found to have violated records request laws?

Short Answer

Not necessarily. The ALJ has discretion regarding civil penalties.

Detailed Answer

In this case, even though a violation was found regarding the failure to provide invoices, the judge decided that no civil penalty was appropriate based on the facts presented.

Alj Quote

Based on the facts presented, the Administrative Law Judge finds no civil penalty is appropriate in this matter.

Legal Basis

Administrative Discretion

Topic Tags

  • Penalties
  • Enforcement

Question

Who has the burden of proof in a dispute with the HOA?

Short Answer

The homeowner (Petitioner) must prove the violation by a preponderance of the evidence.

Detailed Answer

The homeowner is responsible for providing evidence that outweighs the evidence offered by the HOA. If the homeowner fails to provide sufficient evidence (such as proof of when a meeting agenda was issued), the claim will likely fail.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated A.R.S. § 33-1248 and A.R.S. § 33-1258.

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • Legal Standards
  • Burden of Proof

Question

Can I get my filing fee reimbursed if I win?

Short Answer

Yes, typically for the portion of the case on which you prevail.

Detailed Answer

The ALJ ordered the Association to reimburse the homeowner $500.00, which represented the filing fee for the specific issue (records request) where the homeowner won.

Alj Quote

IT IS FURTHER ORDERED that Respondent reimburse Petitioner their $500.00 filing fee for the issue on which they prevailed.

Legal Basis

Order

Topic Tags

  • Remedies
  • Fees

Question

What if I suspect the HOA altered a document they sent me?

Short Answer

You must provide proof. Mere assertion is not enough.

Detailed Answer

The homeowner claimed a landscaping contract was altered but provided no evidence. The ALJ ruled that an assertion without merit cannot be the basis for finding a violation.

Alj Quote

Petitioner’s assertion that the landscaping contract was altered in some way is completely without merit and cannot be the basis for a finding that Respondent violated A.R.S. § 33-1258.

Legal Basis

Evidence

Topic Tags

  • Evidence
  • Fraud Allegations

Question

Do Open Meeting laws apply to Condominium Associations?

Short Answer

Yes, under A.R.S. § 33-1248.

Detailed Answer

Although the homeowner originally cited the Planned Community statutes (A.R.S. § 33-1804), the hearing proceeded under the correct Condominium statutes (A.R.S. § 33-1248), which contain similar open meeting requirements.

Alj Quote

After discussion, the hearing proceeded with the understanding that the statutes applicable to the instant matter were A.R.S. § 33-1248… and A.R.S. § 33-1258…

Legal Basis

A.R.S. § 33-1248

Topic Tags

  • Jurisdiction
  • Condos vs HOAs

Case

Docket No
21F-H2121059-REL
Case Title
Jeffrey D Points vs. Olive 66 Condominium Association
Decision Date
2021-09-08
Alj Name
Tammy L. Eigenheer
Tribunal
OAH
Agency
ADRE

Questions

Question

Can I demand to inspect every single HOA document in person at the management office?

Short Answer

No. While records must be reasonably available, you do not have the right to peruse all documents at will.

Detailed Answer

The Administrative Law Judge ruled that the statute requiring records be 'reasonably available' does not grant an unlimited right to inspect all documents in person. The HOA can withhold certain confidential documents, and sorting through everything to remove them may be considered unduly burdensome.

Alj Quote

Nothing in the statute however, grants a condominium unit owner the right to peruse all of the association’s documents at will as some documents may properly be withheld.

Legal Basis

A.R.S. § 33-1258

Topic Tags

  • Records Request
  • Inspection Rights

Question

Is it a violation if the HOA fails to provide requested invoices within 10 days?

Short Answer

Yes. If the documents exist and are not provided within the statutory timeframe, it is a violation.

Detailed Answer

The ALJ found the Association in violation of the law because they acknowledged that requested invoices existed at the time of the request but were not provided to the homeowner.

Alj Quote

Respondent’s witness acknowledged that certain invoices requested by Petitioner were in existence at the time of the request, but were not provided to Petitioner. Such a failure to provide the documents requested was a violation of A.R.S. § 33-1258.

Legal Basis

A.R.S. § 33-1258

Topic Tags

  • Records Request
  • Invoices
  • Timeliness

Question

Can the HOA Board discuss vendor contracts or issues in a closed executive session?

Short Answer

Yes, if the discussion involves specific complaints or performance issues regarding an individual employee of the contractor.

Detailed Answer

The ALJ ruled that a 'Landscaping Bid Review' was properly held in executive session because the testimony indicated it involved specific performance issues with an employee of the landscaping company.

Alj Quote

Respondent’s witness asserted that the issue regarding the landscaping bid review was a specific performance issue with an employee of the landscaping company. As that topic falls under the exception listed in A.R.S. § 33-1248(A)(4), Respondent properly considered the issue in an executive session closed to its members.

Legal Basis

A.R.S. § 33-1248(A)(4)

Topic Tags

  • Open Meetings
  • Executive Session
  • Vendors

Question

Will the HOA be fined if they are found to have violated records request laws?

Short Answer

Not necessarily. The ALJ has discretion regarding civil penalties.

Detailed Answer

In this case, even though a violation was found regarding the failure to provide invoices, the judge decided that no civil penalty was appropriate based on the facts presented.

Alj Quote

Based on the facts presented, the Administrative Law Judge finds no civil penalty is appropriate in this matter.

Legal Basis

Administrative Discretion

Topic Tags

  • Penalties
  • Enforcement

Question

Who has the burden of proof in a dispute with the HOA?

Short Answer

The homeowner (Petitioner) must prove the violation by a preponderance of the evidence.

Detailed Answer

The homeowner is responsible for providing evidence that outweighs the evidence offered by the HOA. If the homeowner fails to provide sufficient evidence (such as proof of when a meeting agenda was issued), the claim will likely fail.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated A.R.S. § 33-1248 and A.R.S. § 33-1258.

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • Legal Standards
  • Burden of Proof

Question

Can I get my filing fee reimbursed if I win?

Short Answer

Yes, typically for the portion of the case on which you prevail.

Detailed Answer

The ALJ ordered the Association to reimburse the homeowner $500.00, which represented the filing fee for the specific issue (records request) where the homeowner won.

Alj Quote

IT IS FURTHER ORDERED that Respondent reimburse Petitioner their $500.00 filing fee for the issue on which they prevailed.

Legal Basis

Order

Topic Tags

  • Remedies
  • Fees

Question

What if I suspect the HOA altered a document they sent me?

Short Answer

You must provide proof. Mere assertion is not enough.

Detailed Answer

The homeowner claimed a landscaping contract was altered but provided no evidence. The ALJ ruled that an assertion without merit cannot be the basis for finding a violation.

Alj Quote

Petitioner’s assertion that the landscaping contract was altered in some way is completely without merit and cannot be the basis for a finding that Respondent violated A.R.S. § 33-1258.

Legal Basis

Evidence

Topic Tags

  • Evidence
  • Fraud Allegations

Question

Do Open Meeting laws apply to Condominium Associations?

Short Answer

Yes, under A.R.S. § 33-1248.

Detailed Answer

Although the homeowner originally cited the Planned Community statutes (A.R.S. § 33-1804), the hearing proceeded under the correct Condominium statutes (A.R.S. § 33-1248), which contain similar open meeting requirements.

Alj Quote

After discussion, the hearing proceeded with the understanding that the statutes applicable to the instant matter were A.R.S. § 33-1248… and A.R.S. § 33-1258…

Legal Basis

A.R.S. § 33-1248

Topic Tags

  • Jurisdiction
  • Condos vs HOAs

Case

Docket No
21F-H2121059-REL
Case Title
Jeffrey D Points vs. Olive 66 Condominium Association
Decision Date
2021-09-08
Alj Name
Tammy L. Eigenheer
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Jeffrey D Points (petitioner)
    Appeared on their own behalf

Respondent Side

  • MacKenzie Hill (respondent attorney)
    The Brown Law Group, PLLC
    Represented Olive 66 Condominium Association
  • Nathan Tennyson (respondent attorney)
    Represented Olive 66 Condominium Association
  • Cathy Hacker (association manager)
    Olive 66 Condominium Association
    Provided testimony as Association Manager,
  • Musa (individual/contractor)
    Mentioned regarding 1099s and invoices; referred to as 'Musa', and 'M. Sayegh'
  • Lorinda Brown (individual/contractor)
    Mentioned regarding 1099s and invoices

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (ADRE Commissioner)
    Arizona Department of Real Estate

Other Participants

  • Tim (individual)
    Mentioned regarding 1099s/invoices; reportedly 'has not done any work on the property',

Nicole Armsby (NICDON 10663 LLC) v. Desert Mountain Master

Posted on by

Case Summary

Case ID 21F-H2121055-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2022-01-31
Administrative Law Judge Velva Moses-Thompson
Outcome loss
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Nicole Armsby (NICDON 10663 LLC) Counsel —
Respondent Desert Mountain Master Association Counsel Mark K. Sahl, Esq.

Alleged Violations

No violations listed

Outcome Summary

The Administrative Law Judge vacated the hearing from the docket because the Petitioner voluntarily withdrew.

Why this result: The Petitioner voluntarily withdrew the request for hearing, leading to the matter being vacated from the docket.

Key Issues & Findings

statute

The party requesting the hearing voluntarily withdrew the matter.

Orders: The matter was vacated from the docket of the Office of Administrative Hearings.

Filing fee: $500.00, Fee refunded: Yes

Disposition: respondent_win

Analytics Highlights

Topics: voluntary withdrawal, vacated hearing, continuance granted

Video Overview

Audio Overview

Decision Documents

21F-H2121055-REL Decision – 934279.pdf

Uploaded 2026-04-24T11:36:13 (49.2 KB)

21F-H2121055-REL Decision – 934302.pdf

Uploaded 2026-04-24T11:36:18 (8.1 KB)

21F-H2121055-REL Decision – 942918.pdf

Uploaded 2026-04-24T11:36:22 (42.0 KB)

21F-H2121055-REL Decision – 909217.pdf

Uploaded 2026-04-24T11:36:25 (113.1 KB)

This summary focuses on the procedural history and final administrative disposition of the matter, Case No. 21F-H2121055-REL-RHG, before the Office of Administrative Hearings (OAH).

Key Facts and Parties

The case involved Petitioner Nicole Armsby (NICDON 10663 LLC) and Respondent Desert Mountain Master Association. The proceedings were conducted under the authority of the OAH, with Administrative Law Judge Velva Moses-Thompson presiding over the entries.

Hearing Proceedings and Main Issues

The primary procedural actions documented are two Minute Entries concerning the scheduling and eventual removal of the case from the docket.

  1. Granting Continuance (December 22, 2021): The OAH issued a minute entry granting a continuance of the scheduled hearing, noting that good cause appearing. The matter was reset for February 23, 2022, at 9:00 AM. The hearing was scheduled to be conducted either by video conferencing or telephone participation through Google Meet, though parties retained the option to appear in person at the OAH in Phoenix if they advised the office seven days prior. In-person attendance required adherence to social distancing and masking guidelines.
  1. Vacating Hearing (January 31, 2022): Before the continued hearing date, a subsequent Minute Entry was filed vacating the hearing from the OAH docket.

Outcome and Legal Points

The most significant legal outcome was the termination of the proceedings at the administrative level. The matter was vacated because "The party requesting the hearing has voluntarily withdrawn". This voluntary withdrawal by the petitioner rendered the scheduled hearing unnecessary and led to the closure of the case on the OAH docket.

Questions

Question

Can my HOA refuse to provide records if I am currently suing them?

Short Answer

Yes, the HOA may withhold records if they relate to pending litigation between the homeowner and the association.

Detailed Answer

Under Arizona law, an association is permitted to withhold books and records if the disclosure relates to pending litigation. In this decision, the ALJ ruled that the HOA could withhold documents regarding a keyless entry system because it related to an ongoing lawsuit regarding short-term rental restrictions (since the entry system controlled renter access).

Alj Quote

Therefore, the Administrative Law Judge concludes that Respondent was permitted to withhold documentation and communication related to the keyless entry program from Petitioner, due to pending litigation regarding the CC&Rs amendment that prohibits short-term rentals.

Legal Basis

A.R.S. § 33-1805(B)(2)

Topic Tags

  • records request
  • pending litigation
  • withholding records

Question

Who has to prove that the HOA violated the law during a hearing?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

The homeowner filing the petition is responsible for proving that the HOA violated the statutes or governing documents. They must prove this by a 'preponderance of the evidence'.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent violated Section 5.10 of the Association’s CC&Rs, Article III, Section 1 of the Association’s Bylaws, and A.R.S. § 33-1805 by a preponderance of the evidence.

Legal Basis

A.R.S. § 41-1092.07(G)(2)

Topic Tags

  • burden of proof
  • legal standards
  • procedure

Question

How much evidence do I need to win a case against my HOA?

Short Answer

You need a 'preponderance of the evidence,' meaning your claim is more likely true than not.

Detailed Answer

The standard of proof in these administrative hearings is 'preponderance of the evidence.' This is defined as evidence that makes a contention 'more probably true than not' or carries the greater weight of convincing force.

Alj Quote

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

Arizona Law of Evidence

Topic Tags

  • evidence
  • legal standards

Question

How long does the HOA have to respond to my request to inspect records?

Short Answer

The HOA has 10 business days to fulfill a request.

Detailed Answer

Arizona statute mandates that an association must make financial and other records reasonably available for examination within ten business days of a request.

Alj Quote

The association shall have ten business days to fulfill a request for examination.

Legal Basis

A.R.S. § 33-1805(A)

Topic Tags

  • records request
  • timelines
  • HOA obligations

Question

Can the HOA charge me for copies of the records I request?

Short Answer

Yes, they can charge a fee for copies.

Detailed Answer

While the association cannot charge a member for making material available for review, they may charge a fee for providing actual copies of the records. The statute caps this fee.

Alj Quote

An association may charge a fee for making copies of not more than fifteen cents per page.

Legal Basis

A.R.S. § 33-1805(A)

Topic Tags

  • records request
  • fees
  • HOA obligations

Question

What specific types of information can an HOA legally keep private?

Short Answer

The HOA can withhold privileged attorney communications, pending litigation records, closed meeting minutes, and personal or employee information.

Detailed Answer

The law lists specific categories of records that do not have to be disclosed. These include attorney-client privilege, pending litigation, minutes from executive sessions, personal/health/financial records of members or employees, and records related to employee job performance or complaints.

Alj Quote

Books and records kept by or on behalf of the association and the board may be withheld from disclosure to the extent that the portion withheld relates to any of the following: 1. Privileged communication… 2. Pending litigation… 3. Meeting minutes… of a board meeting that is not required to be open… 4. Personal, health or financial records… 5. Records relating to the job performance…

Legal Basis

A.R.S. § 33-1805(B)

Topic Tags

  • privacy
  • exemptions
  • records request

Question

Does a records request have to be directly about the lawsuit to be denied?

Short Answer

Not necessarily directly, but it must 'relate to' the pending litigation.

Detailed Answer

In this case, the homeowner requested records about a security entry system. Even though the lawsuit was about short-term rentals, the ALJ found the records could be withheld because the entry system controlled renter access, making the records related to the litigation.

Alj Quote

The evidence presented at hearing shows that the keyless entry program controls renters’ access to Desert Mountain. Therefore, the Administrative Law Judge concludes that Respondent was permitted to withhold documentation and communication related to the keyless entry program… due to pending litigation regarding the CC&Rs amendment that prohibits short-term rentals.

Legal Basis

A.R.S. § 33-1805(B)(2)

Topic Tags

  • pending litigation
  • records request
  • scope of discovery

Case

Docket No
21F-H2121055-REL
Case Title
Nicole Armsby (NICDON 10663 LLC) vs. Desert Mountain Master Association
Decision Date
2021-09-07
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Questions

Question

Can my HOA refuse to provide records if I am currently suing them?

Short Answer

Yes, the HOA may withhold records if they relate to pending litigation between the homeowner and the association.

Detailed Answer

Under Arizona law, an association is permitted to withhold books and records if the disclosure relates to pending litigation. In this decision, the ALJ ruled that the HOA could withhold documents regarding a keyless entry system because it related to an ongoing lawsuit regarding short-term rental restrictions (since the entry system controlled renter access).

Alj Quote

Therefore, the Administrative Law Judge concludes that Respondent was permitted to withhold documentation and communication related to the keyless entry program from Petitioner, due to pending litigation regarding the CC&Rs amendment that prohibits short-term rentals.

Legal Basis

A.R.S. § 33-1805(B)(2)

Topic Tags

  • records request
  • pending litigation
  • withholding records

Question

Who has to prove that the HOA violated the law during a hearing?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

The homeowner filing the petition is responsible for proving that the HOA violated the statutes or governing documents. They must prove this by a 'preponderance of the evidence'.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent violated Section 5.10 of the Association’s CC&Rs, Article III, Section 1 of the Association’s Bylaws, and A.R.S. § 33-1805 by a preponderance of the evidence.

Legal Basis

A.R.S. § 41-1092.07(G)(2)

Topic Tags

  • burden of proof
  • legal standards
  • procedure

Question

How much evidence do I need to win a case against my HOA?

Short Answer

You need a 'preponderance of the evidence,' meaning your claim is more likely true than not.

Detailed Answer

The standard of proof in these administrative hearings is 'preponderance of the evidence.' This is defined as evidence that makes a contention 'more probably true than not' or carries the greater weight of convincing force.

Alj Quote

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

Arizona Law of Evidence

Topic Tags

  • evidence
  • legal standards

Question

How long does the HOA have to respond to my request to inspect records?

Short Answer

The HOA has 10 business days to fulfill a request.

Detailed Answer

Arizona statute mandates that an association must make financial and other records reasonably available for examination within ten business days of a request.

Alj Quote

The association shall have ten business days to fulfill a request for examination.

Legal Basis

A.R.S. § 33-1805(A)

Topic Tags

  • records request
  • timelines
  • HOA obligations

Question

Can the HOA charge me for copies of the records I request?

Short Answer

Yes, they can charge a fee for copies.

Detailed Answer

While the association cannot charge a member for making material available for review, they may charge a fee for providing actual copies of the records. The statute caps this fee.

Alj Quote

An association may charge a fee for making copies of not more than fifteen cents per page.

Legal Basis

A.R.S. § 33-1805(A)

Topic Tags

  • records request
  • fees
  • HOA obligations

Question

What specific types of information can an HOA legally keep private?

Short Answer

The HOA can withhold privileged attorney communications, pending litigation records, closed meeting minutes, and personal or employee information.

Detailed Answer

The law lists specific categories of records that do not have to be disclosed. These include attorney-client privilege, pending litigation, minutes from executive sessions, personal/health/financial records of members or employees, and records related to employee job performance or complaints.

Alj Quote

Books and records kept by or on behalf of the association and the board may be withheld from disclosure to the extent that the portion withheld relates to any of the following: 1. Privileged communication… 2. Pending litigation… 3. Meeting minutes… of a board meeting that is not required to be open… 4. Personal, health or financial records… 5. Records relating to the job performance…

Legal Basis

A.R.S. § 33-1805(B)

Topic Tags

  • privacy
  • exemptions
  • records request

Question

Does a records request have to be directly about the lawsuit to be denied?

Short Answer

Not necessarily directly, but it must 'relate to' the pending litigation.

Detailed Answer

In this case, the homeowner requested records about a security entry system. Even though the lawsuit was about short-term rentals, the ALJ found the records could be withheld because the entry system controlled renter access, making the records related to the litigation.

Alj Quote

The evidence presented at hearing shows that the keyless entry program controls renters’ access to Desert Mountain. Therefore, the Administrative Law Judge concludes that Respondent was permitted to withhold documentation and communication related to the keyless entry program… due to pending litigation regarding the CC&Rs amendment that prohibits short-term rentals.

Legal Basis

A.R.S. § 33-1805(B)(2)

Topic Tags

  • pending litigation
  • records request
  • scope of discovery

Case

Docket No
21F-H2121055-REL
Case Title
Nicole Armsby (NICDON 10663 LLC) vs. Desert Mountain Master Association
Decision Date
2021-09-07
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Nicole Armsby (petitioner)
    NICDON 10663 LLC
    Appeared on behalf of herself, also referred to as Nikki,
  • Jon Dessaules (petitioner attorney)
    Armsby's attorney, referred to as 'Dom',
  • Matthew Hoxsie (petitioner attorney)
    Greenberg Traurig, LLP
    Associate, Armsby's attorney
  • Jordan (related party)
    Party referenced in communications between counsel regarding conditional approval to speak,

Respondent Side

  • Mark Sahl (HOA attorney)
    Carpenter Hazlewood Delgado & Bolen, LLP
  • Kevin C. Pollock (Executive Director)
    Desert Mountain Master Association
    Also referred to as community manager
  • Curtis Ekmark (HOA attorney)
    Respondent's attorney, listed as Curtis S. Ekmark in later filing
  • Stephen Prall (witness)
    Desert Mountain Master Association (implied)
    Presented testimony for Respondent
  • Carlotta L. Turman (HOA attorney)
    Carpenter Hazlewood Delgado & Bolen, LLP

Neutral Parties

  • Velva Moses-Thompson (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
    Commissioner as of September 7, 2021
  • Louis Dettorre (Commissioner)
    Arizona Department of Real Estate
    Commissioner as of December 22, 2021
  • c. serrano (administrative clerk)
    OAH/ADRE (transmittal)
    Signed transmittal notices,,

Darryl Jacobson-Barnes & Robert Barnes v. Circle G Ranches 4

Posted on by

Case Summary

Case ID 21F-H2120022-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-08-24
Administrative Law Judge Velva Moses-Thompson
Outcome The Administrative Law Judge dismissed the petition filed by Darryl L. Jacobson-Barnes and Robert Barnes, finding that the Petitioner failed to prove by a preponderance of the evidence that the Respondent HOA violated any of the cited Arizona Revised Statutes or that the alleged CC&R violation was outside the scope of Article III, § 3.10. The Respondent was deemed the prevailing party.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Darryl Jacobson-Barnes & Robert Barnes Counsel Anthony L. Perez, Esq.
Respondent Circle G Ranches 4 Homeowners Association Counsel Clint G. Goodman, Esq.

Alleged Violations

A.R.S. § 33-1803(D) and (E)
A.R.S. § 33-1804(a)(5)
A.R.S. § 33-1811
Article III, § 3.10 (CC&Rs)

Outcome Summary

The Administrative Law Judge dismissed the petition filed by Darryl L. Jacobson-Barnes and Robert Barnes, finding that the Petitioner failed to prove by a preponderance of the evidence that the Respondent HOA violated any of the cited Arizona Revised Statutes or that the alleged CC&R violation was outside the scope of Article III, § 3.10. The Respondent was deemed the prevailing party.

Why this result: The Petitioner failed to meet the burden of proving by a preponderance of the evidence that the HOA violated A.R.S. §§ 33-1803(D) and (E), 33-1804(5), or 33-1811, or that the alleged unapproved flood light violation was outside the scope of the cited CC&R provision (Article III, § 3.10).

Key Issues & Findings

The Association violated A.R.S.§ 33-1803(D) and (E) by failing to properly respond to the Barnes response to the notice of alleged violation and proceeding with enforcement actions.

Petitioner failed to establish the HOA violated these statutes because the HOA's May 27, 2020 notice contained all required information under A.R.S. § 1803(D)(1)-(4), rendering A.R.S. § 33-1803(E) inapplicable.

Orders: Petition dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1803(D)
  • A.R.S. § 33-1803(E)
  • A.A.C. R2-19-119

The association violated A.R.S. § 33-1804(a)(5) in rendering its decision on the Barnes contest of the notice.

Petitioner failed to establish violation of meeting procedures, as the appeal was discussed in an open session, and the subsequent closed session was justified to allow the HOA to seek legal counsel pursuant to A.R.S. § 33-1804(A)(1).

Orders: Petition dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1804(a)(5)
  • A.R.S. § 33-1804(A)(1)

The alleged violation and resulting penalty imposed are void and unenforceable under A.R.S. § 33-1811.

Petitioner failed to prove violation. A.R.S. § 33-1811 applies only to contracts, decisions, or actions for compensation, and no evidence was presented that the Petitioner's appeal involved such compensation.

Orders: Petition dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1811

The alleged violation is outside the scope of the cited CC&R Article III, § 3.10.

Petitioner failed to prove the violation (installation of an unapproved flood light) was outside the scope of Article III, § 3.10, which requires prior approval for 'other structure[s]'.

Orders: Petition dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • Article III, § 3.10 (CC&Rs)
  • Article IV, 4.6 (CC&Rs)

Analytics Highlights

Topics: Architectural Control Committee, CC&R Enforcement, Floodlight, Meeting Procedure, Statutory Compliance
Additional Citations:

  • A.R.S. § 33-1803(D)
  • A.R.S. § 33-1803(E)
  • A.R.S. § 33-1804(a)(5)
  • A.R.S. § 33-1804(A)(1)
  • A.R.S. § 33-1811
  • Article III, § 3.10 (CC&Rs)
  • A.A.C. R2-19-119

Video Overview

Audio Overview

Decision Documents

21F-H2120022-REL Decision – 895732.pdf

Uploaded 2026-04-24T11:31:28 (39.8 KB)

21F-H2120022-REL Decision – 895827.pdf

Uploaded 2026-04-24T11:31:31 (5.6 KB)

21F-H2120022-REL Decision – 906326.pdf

Uploaded 2026-04-24T11:31:34 (99.4 KB)

This summary addresses the legal case heard in the Office of Administrative Hearings (OAH) concerning Darryl Jacobson-Barnes & Robert Barnes (Petitioner) and Circle G Ranches 4 Homeowners Association (Respondent/HOA). The case number was 21F-H2120022-REL, and the Administrative Law Judge (ALJ) was Velva Moses-Thompson. Hearings were held on January 26, 2021, March 3, 2021, and July 14, 2021, with the record held open until August 4, 2021.

Key Facts and Dispute Background

The dispute originated when a member of the HOA Board of Directors filed a complaint alleging that Petitioner had installed an unapproved floodlight at the back of their home. On May 27, 2020, the HOA issued a violation notice alleging a violation of Article III, Section 3.10 of the HOA CC&Rs, which requires prior approval of design, location, and materials for structures constructed on the property.

Petitioner requested a hearing regarding the notice. After the parties failed to resolve the issue of "excessive light trespass" following an initial July 9, 2020 open appeal session, the Board held another appeal hearing on July 24, 2020. The Board voted on the appeal in a closed, executive session in order to obtain legal advice. The Board notified the Petitioner that their appeal was denied around August 18, 2020. Petitioner subsequently filed a petition with the Arizona Department of Real Estate (Department) outlining four alleged violations by the HOA.

Main Legal Issues

The OAH hearing focused on four issues set for determination:

  1. Whether the HOA violated A.R.S. § 33-1803(D) and (E) by failing to respond properly to the notice contest and proceeding with enforcement.
  2. Whether the HOA violated A.R.S. § 33-1804(a)(5) by rendering its decision on the contest in a closed session.
  3. Whether the alleged violation and resulting penalty were void and unenforceable under A.R.S. § 33-1811.
  4. Whether the alleged violation (the unapproved floodlight) was outside the scope of the cited CC&R Article III, § 3.10.

Key Legal Findings and Decision

The ALJ concluded that the Petitioner failed to prove by a preponderance of the evidence that the Respondent HOA violated A.R.S. § 33-1808.

  • A.R.S. § 33-1803(D) and (E): The ALJ found no violation. The evidence showed the HOA's May 27, 2020 notice of violation provided all the requisite information (including the CC&R provision, observation date, observer name, and contest process) required under A.R.S. § 33-1803(D)(1)-(4). Since the notice was compliant, the requirements of A.R.S. § 33-1803(E) were not triggered and did not apply.
  • A.R.S. § 33-1804(a)(5): The ALJ found no violation. While the Board voted in a closed session, credible testimony demonstrated that the session was closed to allow the HOA to seek legal counsel concerning the decision, which is permissible pursuant to A.R.S. § 33-1804(A)(1).
  • A.R.S. § 33-1811: The ALJ found no violation. This statute pertains to the validity of actions for compensation (contracts, decisions, etc.) taken by the Board, and no evidence was presented that Petitioner’s appeal involved such an action.
  • Scope of CC&R Article III, § 3.10: The ALJ determined the allegation regarding the unapproved floodlight fell within the scope of CC&R Article III, § 3.10. This article governs the construction of structures, including "other structure[s]," requiring prior approval from the Architectural Control Committee.

Outcome

The ALJ concluded that the petition filed by Darryl L. Jacobson-Barnes and Robert Barnes should be dismissed.

IT IS ORDERED that the petition is dismissed, and the Circle G Ranches 4 Homeowners Association is deemed the prevailing party in this matter. The decision was signed on August 24, 2021.

Questions

Question

What specific information must be included in a violation notice for it to be legally sufficient?

Short Answer

The notice must include the provision violated, the date of observation, the name of the observer, and the process to contest it.

Detailed Answer

An HOA violation notice is considered sufficient if it includes four key pieces of information: the specific community document provision alleged to be violated, the date the violation was observed, the first and last name of the person who observed it, and the process the member must follow to contest the notice. If these are present, the HOA has met its obligation.

Alj Quote

The weight of the evidence shows that the HOA notified Petitioner of the provision of the community documents that had allegedly been violated, the date the violation was observed, the first and last name of the person who observed the violation, and the process the member must follow to contest the notice through the May 27, 2020 notice.

Legal Basis

A.R.S. § 33-1803(D)

Topic Tags

  • violation notices
  • due process
  • HOA procedures

Question

Does the HOA have to send a second 'explanation' letter after I receive a violation notice?

Short Answer

No, not if the original notice already contained all the legally required details.

Detailed Answer

Under Arizona law, the requirement for an HOA to provide a written explanation (often detailed in A.R.S. § 33-1803(E)) is only triggered if the initial violation notice was missing required information. If the initial notice fully satisfied the statutory requirements (provision, date, observer, contest process), the HOA is not required to send further explanation letters before proceeding.

Alj Quote

If a homeowner’s association satisfies the requirements in A.R.S. § 1803(D) (1)-(4) in its notice of violation, A.R.S. § 33-1803 (E) is not triggered and does not apply.

Legal Basis

A.R.S. § 33-1803(E)

Topic Tags

  • violation notices
  • legal requirements

Question

Can the HOA Board go into a closed session to decide on my appeal?

Short Answer

Yes, if the closed session is used to seek legal counsel regarding the decision.

Detailed Answer

While appeals generally involve open discussion, the Board is permitted to adjourn to an executive (closed) session to deliberate if they need to obtain legal advice concerning the decision. This does not violate the open meeting requirement of A.R.S. § 33-1804.

Alj Quote

The preponderance of the evidence does not show that Respondent violated A.R.S. § 33-1804(5) because Petitioner’s appeal was discussed in an open session. Moreover, the HOA presented credible testimony that the session was closed to allow the HOA to seek legal counsel concerning its decision in Petitioner’s appeal

Legal Basis

A.R.S. § 33-1804(A)(1)

Topic Tags

  • board meetings
  • open meeting law
  • executive session

Question

Do I need architectural approval to install a floodlight?

Short Answer

Yes, floodlights can be considered 'structures' or changes requiring approval under CC&Rs.

Detailed Answer

Even if not a building, items like floodlights attached to a home can fall under the scope of CC&R restrictions regarding 'structures' or unapproved changes. The ALJ found that an allegation of an unapproved floodlight falls within the scope of architectural control provisions.

Alj Quote

Respondent alleged that an unapproved flood light was installed at the back of Petitioner’s home. Such allegation falls within the scope of CC&R Article III, § 3.10.

Legal Basis

CC&R Article III, § 3.10

Topic Tags

  • architectural control
  • home improvements
  • lighting

Question

Can I use A.R.S. § 33-1811 to void a penalty if I disagree with the violation?

Short Answer

Generally no, unless the decision involved a conflict of interest or compensation for a board member.

Detailed Answer

A.R.S. § 33-1811 specifically addresses the validity of contracts or decisions involving compensation/conflicts of interest. It is not a catch-all statute to void standard violation penalties where no such compensation or conflict exists.

Alj Quote

A.R.S. § 33-1811 applies to the validity of any contract, decision, or action for compensation taken by or on behalf of the Board. There was no evidence presented at hearing that the Petitioner’s appeal involved a contract, decision or other action for compensation.

Legal Basis

A.R.S. § 33-1811

Topic Tags

  • conflicts of interest
  • penalties
  • statutory interpretation

Question

What is the burden of proof for a homeowner suing their HOA in an administrative hearing?

Short Answer

The homeowner must prove the HOA violated the law by a 'preponderance of the evidence'.

Detailed Answer

In these administrative proceedings, the burden is on the petitioner (the homeowner) to provide evidence that carries greater weight or is more convincing than the evidence offered by the HOA.

Alj Quote

At this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated A.R.S. § 33-1808.

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • legal standards
  • hearings
  • burden of proof

Case

Docket No
21F-H2120022-REL
Case Title
Darryl Jacobson-Barnes & Robert Barnes vs. Circle G Ranches 4 Homeowners Association
Decision Date
2021-08-24
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Questions

Question

What specific information must be included in a violation notice for it to be legally sufficient?

Short Answer

The notice must include the provision violated, the date of observation, the name of the observer, and the process to contest it.

Detailed Answer

An HOA violation notice is considered sufficient if it includes four key pieces of information: the specific community document provision alleged to be violated, the date the violation was observed, the first and last name of the person who observed it, and the process the member must follow to contest the notice. If these are present, the HOA has met its obligation.

Alj Quote

The weight of the evidence shows that the HOA notified Petitioner of the provision of the community documents that had allegedly been violated, the date the violation was observed, the first and last name of the person who observed the violation, and the process the member must follow to contest the notice through the May 27, 2020 notice.

Legal Basis

A.R.S. § 33-1803(D)

Topic Tags

  • violation notices
  • due process
  • HOA procedures

Question

Does the HOA have to send a second 'explanation' letter after I receive a violation notice?

Short Answer

No, not if the original notice already contained all the legally required details.

Detailed Answer

Under Arizona law, the requirement for an HOA to provide a written explanation (often detailed in A.R.S. § 33-1803(E)) is only triggered if the initial violation notice was missing required information. If the initial notice fully satisfied the statutory requirements (provision, date, observer, contest process), the HOA is not required to send further explanation letters before proceeding.

Alj Quote

If a homeowner’s association satisfies the requirements in A.R.S. § 1803(D) (1)-(4) in its notice of violation, A.R.S. § 33-1803 (E) is not triggered and does not apply.

Legal Basis

A.R.S. § 33-1803(E)

Topic Tags

  • violation notices
  • legal requirements

Question

Can the HOA Board go into a closed session to decide on my appeal?

Short Answer

Yes, if the closed session is used to seek legal counsel regarding the decision.

Detailed Answer

While appeals generally involve open discussion, the Board is permitted to adjourn to an executive (closed) session to deliberate if they need to obtain legal advice concerning the decision. This does not violate the open meeting requirement of A.R.S. § 33-1804.

Alj Quote

The preponderance of the evidence does not show that Respondent violated A.R.S. § 33-1804(5) because Petitioner’s appeal was discussed in an open session. Moreover, the HOA presented credible testimony that the session was closed to allow the HOA to seek legal counsel concerning its decision in Petitioner’s appeal

Legal Basis

A.R.S. § 33-1804(A)(1)

Topic Tags

  • board meetings
  • open meeting law
  • executive session

Question

Do I need architectural approval to install a floodlight?

Short Answer

Yes, floodlights can be considered 'structures' or changes requiring approval under CC&Rs.

Detailed Answer

Even if not a building, items like floodlights attached to a home can fall under the scope of CC&R restrictions regarding 'structures' or unapproved changes. The ALJ found that an allegation of an unapproved floodlight falls within the scope of architectural control provisions.

Alj Quote

Respondent alleged that an unapproved flood light was installed at the back of Petitioner’s home. Such allegation falls within the scope of CC&R Article III, § 3.10.

Legal Basis

CC&R Article III, § 3.10

Topic Tags

  • architectural control
  • home improvements
  • lighting

Question

Can I use A.R.S. § 33-1811 to void a penalty if I disagree with the violation?

Short Answer

Generally no, unless the decision involved a conflict of interest or compensation for a board member.

Detailed Answer

A.R.S. § 33-1811 specifically addresses the validity of contracts or decisions involving compensation/conflicts of interest. It is not a catch-all statute to void standard violation penalties where no such compensation or conflict exists.

Alj Quote

A.R.S. § 33-1811 applies to the validity of any contract, decision, or action for compensation taken by or on behalf of the Board. There was no evidence presented at hearing that the Petitioner’s appeal involved a contract, decision or other action for compensation.

Legal Basis

A.R.S. § 33-1811

Topic Tags

  • conflicts of interest
  • penalties
  • statutory interpretation

Question

What is the burden of proof for a homeowner suing their HOA in an administrative hearing?

Short Answer

The homeowner must prove the HOA violated the law by a 'preponderance of the evidence'.

Detailed Answer

In these administrative proceedings, the burden is on the petitioner (the homeowner) to provide evidence that carries greater weight or is more convincing than the evidence offered by the HOA.

Alj Quote

At this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated A.R.S. § 33-1808.

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • legal standards
  • hearings
  • burden of proof

Case

Docket No
21F-H2120022-REL
Case Title
Darryl Jacobson-Barnes & Robert Barnes vs. Circle G Ranches 4 Homeowners Association
Decision Date
2021-08-24
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Darryl Jacobson-Barnes (petitioner)
    Also referred to as Darryl Lynn Barnes–Jacobson and Darryl Barnes
  • Robert Barnes (petitioner)
    Also referred to as Robert A Barnes and Bob Barnes
  • Anthony L. Perez (petitioner attorney)
    Boyes Legal, PC

Respondent Side

  • Clint G. Goodman (respondent attorney)
    Goodman Holmgren Law Group
  • Michelle Mooney (board member)
    Circle G Ranches 4 Homeowners Association Board of Directors
    Filed complaint against Petitioner
  • Jennifer Amundson (property manager)
    VISION Community Management
    Also referred to as Jen Amundson; inspected violation
  • Amanda Stewart (board member)
    Circle G Ranches 4 Homeowners Association Board of Directors
    Board President

Neutral Parties

  • Velva Moses-Thompson (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (ADRE contact)
    Arizona Department of Real Estate
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
  • djones (ADRE staff)
    Arizona Department of Real Estate
  • DGardner (ADRE staff)
    Arizona Department of Real Estate
  • c. serrano (administrative staff)
    Transmitted July 14, 2021 Order
  • Miranda Alvarez (administrative staff)
    Transmitted August 24, 2021 Order

Nancy Bender v. Foothills Townhomes Association, Inc.

Posted on by

Case Summary

Case ID 21F-H2121048-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-08-23
Administrative Law Judge Jenna Clark
Outcome The petition was denied because Petitioner failed to sustain her burden of proof that the Association violated Community Bylaws 3.03, as the issue regarding a special meeting was found to be unripe. Other alleged statutory violations were inapplicable.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Nancy Bender Counsel —
Respondent Foothills Townhomes Association, Inc. Counsel Jason Smith, Esq.

Alleged Violations

Community Bylaws 3.03

Outcome Summary

The petition was denied because Petitioner failed to sustain her burden of proof that the Association violated Community Bylaws 3.03, as the issue regarding a special meeting was found to be unripe. Other alleged statutory violations were inapplicable.

Why this result: Petitioner did not sustain the burden of proof (preponderance of the evidence) on the Bylaws violation because the condition precedent (requesting or holding a special meeting) had not occurred, rendering the issue unripe. The statutory violations cited were inapplicable to the Association.

Key Issues & Findings

Whether Foothills Townhomes Association, Inc. violated Community Bylaws 3.03 and ARIZ. REV. STAT. §§ 33-1248(A), 33-1248(B), and 33-1261(D).

Petitioner alleged the Association violated Community Bylaws 3.03 when it drafted and posted a letter directed to Petitioner on its online platform, in response to private correspondence (a draft special meeting request) that had not yet been submitted to the Board, which Petitioner perceived as an attempt to dismantle a platform for discussion and retaliate against her.

Orders: Petitioner’s petition is denied.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • Community Bylaws 3.03
  • ARIZ. REV. STAT. §§ 33-1248(A)
  • ARIZ. REV. STAT. §§ 33-1248(B)
  • ARIZ. REV. STAT. §§ 33-1261(D)

Analytics Highlights

Topics: HOA Dispute, Planned Community, Bylaws Violation, Jurisdiction, Unripe Issue, Special Meeting, Filing Fee Paid
Additional Citations:

  • ARIZ. REV. STAT. §§ 33-1248(A)
  • ARIZ. REV. STAT. §§ 33-1248(B)
  • ARIZ. REV. STAT. §§ 33-1261(D)
  • ARIZ. REV. STAT. §§ 32-2102
  • ARIZ. REV. STAT. §§ 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. §§ 32-2199(2)
  • ARIZ. REV. STAT. §§ 32-2199.01(A)
  • ARIZ. REV. STAT. §§ 32-2199.01(D)
  • ARIZ. REV. STAT. §§ 32-2199.02
  • ARIZ. REV. STAT. §§ 41-1092 et seq.
  • ARIZ. REV. STAT. § 33-1243
  • ARIZ. REV. STAT. § 32-2199.04
  • ARIZ. REV. STAT. § 41-1092.09
  • ARIZ. ADMIN. CODE R2-19-119
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov
  • Community Bylaws 3.03

Video Overview

Audio Overview

Decision Documents

21F-H2121048-REL Decision – 906190.pdf

Uploaded 2026-01-23T17:37:43 (117.4 KB)

This is a concise summary of the Administrative Law Judge Decision in the case of Nancy Bender v. Foothills Townhomes Association, Inc. (No. 21F-H2121048-REL), heard on August 2, 2021, by Administrative Law Judge Jenna Clark.

Key Facts and Background

The Petitioner, Nancy Bender, is an owner and member of the Foothills Townhomes Association, Inc. (Respondent), a planned community association in Arizona. The Association is governed by its Covenants, Conditions, and Restrictions (CC&Rs) and Bylaws, which form an enforceable contract between the Association and its members.

The dispute arose after the Petitioner drafted a letter, along with other homeowners, intended to request a special meeting to discuss issues such as meeting minutes, water bills, financial statements, and due increases. Although this draft letter was never formally submitted to the Board to schedule a special meeting, the Association came into possession of the draft. On February 15, 2021, the Board posted the Petitioner’s draft letter on the HOA’s online platform, along with a written response directed to the Petitioner by the Association’s attorney. Petitioner alleged that this conduct was an act of retaliation intended to dismantle a platform for discussion and that the Association breached its fiduciary duty.

Main Issues and Legal Arguments

Petitioner filed an amended single-issue petition alleging the Association violated Community Bylaws 3.03 and specific Arizona statutes: ARIZ. REV. STAT. §§ 33-1248(A), 33-1248(B), and 33-1261(D). The Administrative Law Judge (ALJ) had jurisdiction over disputes between owners and planned community associations regarding violations of community documents or regulating statutes. The Petitioner bore the burden of proving the violation by a preponderance of the evidence.

Key Legal Points and Findings

  1. Statutory Claims Dismissed as Inapplicable: The Tribunal found that the alleged statutory violations (ARIZ. REV. STAT. §§ 33-1248(A), 33-1248(B), and 33-1261(D)) were inapplicable because the Respondent Association is not subject to governance or regulation by those statutes, thus rendering those concerns moot.
  2. Focus on Bylaws 3.03: Because the statutory claims were moot and Petitioner paid for adjudication of only one issue, the ALJ focused solely on whether the Association violated Community Bylaws Section 3.03. Bylaws Section 3.03 governs the procedure for calling a special meeting of homeowners.
  3. Issue Found Unripe: The ALJ determined that no violation of Bylaws Section 3.03 existed because the issue was unripe. The record showed that a special meeting was *not* held, nor had the Petitioner formally requested one prior to filing her petition. The Petitioner’s actual grievance—the Association’s public dissemination and address of her private correspondence—was determined *not* to be a violation of Bylaws Section 3.03.

Outcome and Decision

The Administrative Law Judge concluded that the Petitioner failed to sustain her burden of proof by a preponderance of the evidence that the Association violated Bylaws Section 3.03. Therefore, the Petitioner's petition was denied.

Questions

Question

If I pay for a single-issue petition, can the judge rule on other grievances I mention during the hearing?

Short Answer

No. The tribunal is limited to the specific issue paid for and filed.

Detailed Answer

If a petitioner only pays the filing fee for the adjudication of one issue, the Administrative Law Judge cannot address other issues raised in the petition or during testimony.

Alj Quote

Because Petitioner only paid for the adjudication of one (1) issue, this Tribunal may not address all of the issues Petitioner raised in her petition or during her testimony.

Legal Basis

ARIZ. REV. STAT. § 32-2199.05

Topic Tags

  • procedure
  • jurisdiction
  • filing fees

Question

What happens if I cite Condominium statutes in a dispute regarding a Planned Community?

Short Answer

The claims will likely be dismissed as moot or inapplicable.

Detailed Answer

Different statutes regulate Condominiums (Title 33, Chapter 9) and Planned Communities (Title 33, Chapter 16). If a homeowner alleges violations of statutes that do not govern their specific type of association, the burden of proof is not met and the concerns are rendered moot.

Alj Quote

However, because Petitioner’s amended petition specifically alleges violations of ARIZ. REV. STAT. § 33-1248(A), 33-1248(B) and 33-1261(D), which are inapplicable as the Association is not subject to governance or regulation by these statutes, the concerns are rendered moot.

Legal Basis

ARIZ. REV. STAT. Title 33, Chapter 9 vs. Chapter 16

Topic Tags

  • legal standards
  • statutes
  • planned communities

Question

Does the HOA posting my private correspondence on the community website violate bylaws regarding special meetings?

Short Answer

No. Public dissemination of private letters does not violate bylaws strictly governing the calling of meetings.

Detailed Answer

While a homeowner may feel that publishing private correspondence is retaliatory or malicious, it does not constitute a violation of bylaws specifically designed to regulate the calling and holding of special meetings.

Alj Quote

Instead, Petitioner’s grievance is the Association’s public dissemination and address of her private correspondence; which is not a violation of Bylaws Section 3.03.

Legal Basis

Bylaws Section 3.03

Topic Tags

  • privacy
  • bylaws
  • communications

Question

Can the ADRE hear claims regarding my constitutional rights or general 'rights as a homeowner'?

Short Answer

No. The Department's jurisdiction is limited to violations of community documents and specific statutes.

Detailed Answer

The Department lacks jurisdiction over broad claims such as constitutional rights, general homeowner rights, or fiduciary responsibilities unless they are framed as specific violations of the community documents or relevant statutes.

Alj Quote

Petitioner also alleged no less than four (4) additional violations in her Amended Petition that the Department has no jurisdiction over or she lacked standing to bring, such as (1) 'my rights as a homeowner,' (2) 'my constitutional rights as an American citizen'…

Legal Basis

ARIZ. REV. STAT. §§ 32-2102, 32-2199

Topic Tags

  • jurisdiction
  • constitutional rights
  • adre authority

Question

Can I claim the HOA violated the rules for calling a special meeting if I never formally requested one?

Short Answer

No. The issue is considered 'unripe' if no meeting was actually requested or held.

Detailed Answer

A violation regarding the calling of a special meeting cannot be established if the homeowner never submitted the request for the meeting prior to filing the petition. The tribunal cannot rule on a hypothetical refusal.

Alj Quote

No violation of Bylaws Section 3.03 exists because the issue is unripe. Here, the record reflects that a special meeting was not held, nor had Petitioner requested one prior to the filing of her petition in this matter.

Legal Basis

ripeness doctrine

Topic Tags

  • meetings
  • procedural requirements
  • violations

Question

What is the standard of proof required for a homeowner to win an administrative hearing?

Short Answer

Preponderance of the evidence.

Detailed Answer

The petitioner must provide enough evidence to convince the judge that their contention is 'more probably true than not.' It requires superior evidentiary weight, not necessarily a greater number of witnesses.

Alj Quote

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

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • burden of proof
  • legal standards
  • evidence

Question

Are the CC&Rs considered a legal contract between me and the HOA?

Short Answer

Yes. CC&Rs form an enforceable contract that binds the owner upon purchase.

Detailed Answer

When a party purchases a property within the development, they agree to be bound by the terms of the CC&Rs and Bylaws, creating a contractual relationship.

Alj Quote

Thus, the CC&Rs form an enforceable contract between the Association and each property owner, and the Bylaws outline how the Association is permitted to operate.

Legal Basis

Contract Law Principles

Topic Tags

  • CC&Rs
  • contracts
  • enforcement

Case

Docket No
21F-H2121048-REL
Case Title
Nancy Bender vs. Foothills Townhomes Association, Inc.
Decision Date
2021-08-23
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Questions

Question

If I pay for a single-issue petition, can the judge rule on other grievances I mention during the hearing?

Short Answer

No. The tribunal is limited to the specific issue paid for and filed.

Detailed Answer

If a petitioner only pays the filing fee for the adjudication of one issue, the Administrative Law Judge cannot address other issues raised in the petition or during testimony.

Alj Quote

Because Petitioner only paid for the adjudication of one (1) issue, this Tribunal may not address all of the issues Petitioner raised in her petition or during her testimony.

Legal Basis

ARIZ. REV. STAT. § 32-2199.05

Topic Tags

  • procedure
  • jurisdiction
  • filing fees

Question

What happens if I cite Condominium statutes in a dispute regarding a Planned Community?

Short Answer

The claims will likely be dismissed as moot or inapplicable.

Detailed Answer

Different statutes regulate Condominiums (Title 33, Chapter 9) and Planned Communities (Title 33, Chapter 16). If a homeowner alleges violations of statutes that do not govern their specific type of association, the burden of proof is not met and the concerns are rendered moot.

Alj Quote

However, because Petitioner’s amended petition specifically alleges violations of ARIZ. REV. STAT. § 33-1248(A), 33-1248(B) and 33-1261(D), which are inapplicable as the Association is not subject to governance or regulation by these statutes, the concerns are rendered moot.

Legal Basis

ARIZ. REV. STAT. Title 33, Chapter 9 vs. Chapter 16

Topic Tags

  • legal standards
  • statutes
  • planned communities

Question

Does the HOA posting my private correspondence on the community website violate bylaws regarding special meetings?

Short Answer

No. Public dissemination of private letters does not violate bylaws strictly governing the calling of meetings.

Detailed Answer

While a homeowner may feel that publishing private correspondence is retaliatory or malicious, it does not constitute a violation of bylaws specifically designed to regulate the calling and holding of special meetings.

Alj Quote

Instead, Petitioner’s grievance is the Association’s public dissemination and address of her private correspondence; which is not a violation of Bylaws Section 3.03.

Legal Basis

Bylaws Section 3.03

Topic Tags

  • privacy
  • bylaws
  • communications

Question

Can the ADRE hear claims regarding my constitutional rights or general 'rights as a homeowner'?

Short Answer

No. The Department's jurisdiction is limited to violations of community documents and specific statutes.

Detailed Answer

The Department lacks jurisdiction over broad claims such as constitutional rights, general homeowner rights, or fiduciary responsibilities unless they are framed as specific violations of the community documents or relevant statutes.

Alj Quote

Petitioner also alleged no less than four (4) additional violations in her Amended Petition that the Department has no jurisdiction over or she lacked standing to bring, such as (1) 'my rights as a homeowner,' (2) 'my constitutional rights as an American citizen'…

Legal Basis

ARIZ. REV. STAT. §§ 32-2102, 32-2199

Topic Tags

  • jurisdiction
  • constitutional rights
  • adre authority

Question

Can I claim the HOA violated the rules for calling a special meeting if I never formally requested one?

Short Answer

No. The issue is considered 'unripe' if no meeting was actually requested or held.

Detailed Answer

A violation regarding the calling of a special meeting cannot be established if the homeowner never submitted the request for the meeting prior to filing the petition. The tribunal cannot rule on a hypothetical refusal.

Alj Quote

No violation of Bylaws Section 3.03 exists because the issue is unripe. Here, the record reflects that a special meeting was not held, nor had Petitioner requested one prior to the filing of her petition in this matter.

Legal Basis

ripeness doctrine

Topic Tags

  • meetings
  • procedural requirements
  • violations

Question

What is the standard of proof required for a homeowner to win an administrative hearing?

Short Answer

Preponderance of the evidence.

Detailed Answer

The petitioner must provide enough evidence to convince the judge that their contention is 'more probably true than not.' It requires superior evidentiary weight, not necessarily a greater number of witnesses.

Alj Quote

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

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • burden of proof
  • legal standards
  • evidence

Question

Are the CC&Rs considered a legal contract between me and the HOA?

Short Answer

Yes. CC&Rs form an enforceable contract that binds the owner upon purchase.

Detailed Answer

When a party purchases a property within the development, they agree to be bound by the terms of the CC&Rs and Bylaws, creating a contractual relationship.

Alj Quote

Thus, the CC&Rs form an enforceable contract between the Association and each property owner, and the Bylaws outline how the Association is permitted to operate.

Legal Basis

Contract Law Principles

Topic Tags

  • CC&Rs
  • contracts
  • enforcement

Case

Docket No
21F-H2121048-REL
Case Title
Nancy Bender vs. Foothills Townhomes Association, Inc.
Decision Date
2021-08-23
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Nancy Bender (petitioner)
    Foothills Townhomes owner/member

Respondent Side

  • Jason Smith (respondent attorney)
    Goodman Holmgren Smith

Neutral Parties

  • Jenna Clark (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
  • Dan Gardener (Constituent Services Manager)
    Arizona Department of Real Estate

Michael E Palacios v. El Rio Community Association

Posted on by

Case Summary

Case ID 21F-H2121053-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-08-13
Administrative Law Judge Adam D. Stone
Outcome The Administrative Law Judge denied the petition in its entirety, concluding that the Petitioner failed to meet the burden of proof required to show that the El Rio Community Association violated statutory or community document requirements regarding access to records.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Michael E Palacios Counsel —
Respondent El Rio Community Association Counsel Quinten T. Cupps

Alleged Violations

ARIZ. REV. STAT. § 33-1805; Association Bylaws Article 11.3

Outcome Summary

The Administrative Law Judge denied the petition in its entirety, concluding that the Petitioner failed to meet the burden of proof required to show that the El Rio Community Association violated statutory or community document requirements regarding access to records.

Why this result: Petitioner failed to prove the alleged violations by a preponderance of the evidence.

Key Issues & Findings

Failure to fulfill a records request

Petitioner, a member and Board Director, requested to inspect Association books and records on March 30, 2021. Petitioner alleged the Association failed to completely fulfill the request. The ALJ determined that Petitioner failed to meet the burden of proof to demonstrate a violation of the governing statute or bylaws.

Orders: Petitioner's petition and request to levy a civil penalty against Respondent were denied. Respondent was not ordered to reimburse Petitioner's filing fee.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • ARIZ. REV. STAT. § 33-1805
  • Association Bylaws Article 11.3

Analytics Highlights

Topics: Records Request, HOA Bylaws, A.R.S. 33-1805
Additional Citations:

  • ARIZ. REV. STAT. § 33-1805
  • Association Bylaws Article 11.3
  • ARIZ. REV. STAT. §§ 32-2102
  • ARIZ. REV. STAT. §§ 32-2199 et al.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. §§ 32-2199(2)
  • ARIZ. REV. STAT. §§ 32-2199.01(D)
  • ARIZ. REV. STAT. §§ 32-2199.02
  • ARIZ. REV. STAT. §§ 41-1092
  • ARIZ. ADMIN. CODE R2-19-119
  • ARIZ. REV. STAT. § 33-1804
  • ARIZ. REV. STAT. § 32-2199.02(A)
  • ARIZ. REV. STAT. § 32-2199.01
  • ARIZ. REV. STAT. § 32-2199.02(B)
  • ARIZ. REV. STAT. § 32-2199.04
  • ARIZ. REV. STAT. § 41-1092.09

Video Overview

Audio Overview

Decision Documents

21F-H2121053-REL Decision – 904187.pdf

Uploaded 2026-01-23T17:38:10 (114.1 KB)

This summary details the Administrative Law Judge (ALJ) Decision in the case of Michael E Palacios v. El Rio Community Association, No. 21F-H2121053-REL. The hearing took place on August 4, 2021, before Administrative Law Judge Adam D. Stone.

Key Facts and Proceedings

The Petitioner, Michael E. Palacios, is a property owner and member of the El Rio Community Association (Association). After being appointed to the Board on March 24, 2021, the Petitioner filed a single-issue petition with the Department of Real Estate on May 10, 2021, asserting that the Association failed to fulfill a records request made on March 30, 2021. The Respondent Association denied all claims. The Department referred the matter to the Office of Administrative Hearings (OAH) for an evidentiary hearing. OAH has the authority to hear contested cases concerning disputes between an owner and a planned community association regarding violations of community documents or statutes.

Main Issue and Legal Points

The central issue addressed was whether the Association violated A.R.S. § 33-1805 and the Association Bylaws Article 11.3 by failing to fulfill the records request. Under the relevant statute, associations must make financial and other records reasonably available to members, typically within ten business days. The Association Bylaws Article 11.3 further grants every Director (which the Petitioner was) an absolute right to inspect all books and records. Petitioner bore the burden of proving the violation by a preponderance of the evidence.

Key Arguments

  1. Petitioner’s Arguments: Petitioner Palacios testified that the Association failed to completely fulfill his March 30 request, alleging he received only about 5% of the documents initially. Specifically, he claimed he did not receive the property management contract (D & E Management), attorney contracts, landscaper contracts, Board minutes, cancelled checks, and ledgers. He also asserted that some provided documents might be false or forged because they contained the incorrect association name ("El Rio Estates Homeowners Association").
  1. Respondent’s Arguments: Denise Ferreira, the manager for the Association's management company (D & E), testified that the Association fully complied with the request, though the compliance was untimely regarding copies of checks due to the bank needing time to prepare the large request. Ferreira explained that there were no ongoing contracts with attorneys or landscapers, and payments related to these services were disclosed through the checks and ledgers provided. Regarding the incorrect name, Ferreira attributed it to an ongoing controversy where some Board members attempted to change the name, but instructions were given to cease using the incorrect name until it was formally modified.

Outcome and Final Decision

The Administrative Law Judge determined that the material facts were not in dispute. The ALJ found that the Petitioner had made a proper request, and the Respondent timely responded, informing the Petitioner of potential delays. Crucially, the ALJ concluded that Petitioner presented no credible evidence that documents existed which were not disclosed.

Therefore, the Petitioner failed to meet the burden of proof required to demonstrate that the Association violated ARIZ. REV. STAT. § 33-1805 or Article 11.3 of the Bylaws.

The final order denied the Petitioner’s petition and his request to levy a civil penalty against the Respondent. Furthermore, the Respondent was not required to reimburse the Petitioner’s filing fee. The decision was transmitted on August 13, 2021.

Questions

Question

How long does my HOA have to fulfill a request to examine records?

Short Answer

The HOA has ten business days to fulfill a request for examination.

Detailed Answer

According to Arizona statute, an association is granted a period of ten business days to comply with a member's request to examine financial and other records.

Alj Quote

The association shall have ten business days to fulfill a request for examination.

Legal Basis

A.R.S. § 33-1805(A)

Topic Tags

  • records request
  • timelines
  • HOA obligations

Question

Can the HOA charge me a fee to simply look at the books and records?

Short Answer

No, the HOA cannot charge a member for making material available for review.

Detailed Answer

State law prohibits the association from charging a member (or their designated representative) any fee for the act of making records available for inspection.

Alj Quote

The association shall not charge a member or any person designated by the member in writing for making material available for review.

Legal Basis

A.R.S. § 33-1805(A)

Topic Tags

  • records request
  • fees
  • homeowner rights

Question

How much can the HOA charge me if I want copies of the records?

Short Answer

The HOA may charge up to fifteen cents per page for copies.

Detailed Answer

While review is free, if a member requests physical copies of records, the association is legally permitted to charge a fee, capped at fifteen cents per page.

Alj Quote

An association may charge a fee for making copies of not more than fifteen cents per page.

Legal Basis

A.R.S. § 33-1805(A)

Topic Tags

  • records request
  • fees
  • copies

Question

Is the HOA allowed to withhold certain records from me?

Short Answer

Yes, specific categories of records, such as privileged attorney communications or employee records, can be withheld.

Detailed Answer

The law provides exceptions to disclosure for sensitive information, including privileged attorney-client communications, pending litigation, closed session minutes, and personal or financial records of individual members or employees.

Alj Quote

Books and records kept by or on behalf of the association and the board may be withheld from disclosure to the extent that the portion withheld relates to… Privileged communication between an attorney for the association and the association.

Legal Basis

A.R.S. § 33-1805(B)

Topic Tags

  • records request
  • exclusions
  • privacy

Question

Can I see records regarding complaints against specific HOA employees?

Short Answer

No, records regarding specific complaints against individual employees can be withheld.

Detailed Answer

The HOA is not required to disclose records that relate to specific complaints against an individual employee of the association or a contractor.

Alj Quote

Records relating to… specific complaints against an individual employee of the association or an individual employee of a contractor of the association who works under the direction of the association [may be withheld].

Legal Basis

A.R.S. § 33-1805(B)(5)

Topic Tags

  • records request
  • employees
  • privacy

Question

What standard of proof do I need to meet to win a dispute hearing against my HOA?

Short Answer

You must prove your case by a 'preponderance of the evidence.'

Detailed Answer

The petitioner (homeowner) bears the burden of proof. This means you must provide enough evidence to convince the judge that your claim is more probably true than not.

Alj Quote

Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1805.

Legal Basis

Conclusion of Law 3

Topic Tags

  • hearing procedure
  • burden of proof
  • legal standards

Question

If I believe documents are missing from my request, is my belief enough to prove a violation?

Short Answer

No, you must present credible evidence that the specific undisclosed documents actually exist.

Detailed Answer

Merely alleging that documents are missing is insufficient. The homeowner must provide credible evidence demonstrating that the documents requested actually exist and were withheld.

Alj Quote

Petitioner presented no credible evidence that documents existed which were not disclosed.

Legal Basis

Findings of Fact 18

Topic Tags

  • evidence
  • records request
  • burden of proof

Question

Does an HOA Director have different inspection rights than a regular homeowner?

Short Answer

Yes, Directors generally have an absolute right to inspect all books and records at any reasonable time.

Detailed Answer

Association bylaws often grant Directors broader access than general members, allowing them the absolute right to inspect all documents and physical properties at reasonable times.

Alj Quote

Every Director shall have the absolute right at any reasonable time to inspect all books, records, and documents of the Association and the physical properties owned or controlled by the Association.

Legal Basis

Association Bylaws Article 11.3

Topic Tags

  • board members
  • directors
  • inspection rights

Case

Docket No
21F-H2121053-REL
Case Title
Michael E Palacios vs. El Rio Community Association
Decision Date
2021-08-13
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Questions

Question

How long does my HOA have to fulfill a request to examine records?

Short Answer

The HOA has ten business days to fulfill a request for examination.

Detailed Answer

According to Arizona statute, an association is granted a period of ten business days to comply with a member's request to examine financial and other records.

Alj Quote

The association shall have ten business days to fulfill a request for examination.

Legal Basis

A.R.S. § 33-1805(A)

Topic Tags

  • records request
  • timelines
  • HOA obligations

Question

Can the HOA charge me a fee to simply look at the books and records?

Short Answer

No, the HOA cannot charge a member for making material available for review.

Detailed Answer

State law prohibits the association from charging a member (or their designated representative) any fee for the act of making records available for inspection.

Alj Quote

The association shall not charge a member or any person designated by the member in writing for making material available for review.

Legal Basis

A.R.S. § 33-1805(A)

Topic Tags

  • records request
  • fees
  • homeowner rights

Question

How much can the HOA charge me if I want copies of the records?

Short Answer

The HOA may charge up to fifteen cents per page for copies.

Detailed Answer

While review is free, if a member requests physical copies of records, the association is legally permitted to charge a fee, capped at fifteen cents per page.

Alj Quote

An association may charge a fee for making copies of not more than fifteen cents per page.

Legal Basis

A.R.S. § 33-1805(A)

Topic Tags

  • records request
  • fees
  • copies

Question

Is the HOA allowed to withhold certain records from me?

Short Answer

Yes, specific categories of records, such as privileged attorney communications or employee records, can be withheld.

Detailed Answer

The law provides exceptions to disclosure for sensitive information, including privileged attorney-client communications, pending litigation, closed session minutes, and personal or financial records of individual members or employees.

Alj Quote

Books and records kept by or on behalf of the association and the board may be withheld from disclosure to the extent that the portion withheld relates to… Privileged communication between an attorney for the association and the association.

Legal Basis

A.R.S. § 33-1805(B)

Topic Tags

  • records request
  • exclusions
  • privacy

Question

Can I see records regarding complaints against specific HOA employees?

Short Answer

No, records regarding specific complaints against individual employees can be withheld.

Detailed Answer

The HOA is not required to disclose records that relate to specific complaints against an individual employee of the association or a contractor.

Alj Quote

Records relating to… specific complaints against an individual employee of the association or an individual employee of a contractor of the association who works under the direction of the association [may be withheld].

Legal Basis

A.R.S. § 33-1805(B)(5)

Topic Tags

  • records request
  • employees
  • privacy

Question

What standard of proof do I need to meet to win a dispute hearing against my HOA?

Short Answer

You must prove your case by a 'preponderance of the evidence.'

Detailed Answer

The petitioner (homeowner) bears the burden of proof. This means you must provide enough evidence to convince the judge that your claim is more probably true than not.

Alj Quote

Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1805.

Legal Basis

Conclusion of Law 3

Topic Tags

  • hearing procedure
  • burden of proof
  • legal standards

Question

If I believe documents are missing from my request, is my belief enough to prove a violation?

Short Answer

No, you must present credible evidence that the specific undisclosed documents actually exist.

Detailed Answer

Merely alleging that documents are missing is insufficient. The homeowner must provide credible evidence demonstrating that the documents requested actually exist and were withheld.

Alj Quote

Petitioner presented no credible evidence that documents existed which were not disclosed.

Legal Basis

Findings of Fact 18

Topic Tags

  • evidence
  • records request
  • burden of proof

Question

Does an HOA Director have different inspection rights than a regular homeowner?

Short Answer

Yes, Directors generally have an absolute right to inspect all books and records at any reasonable time.

Detailed Answer

Association bylaws often grant Directors broader access than general members, allowing them the absolute right to inspect all documents and physical properties at reasonable times.

Alj Quote

Every Director shall have the absolute right at any reasonable time to inspect all books, records, and documents of the Association and the physical properties owned or controlled by the Association.

Legal Basis

Association Bylaws Article 11.3

Topic Tags

  • board members
  • directors
  • inspection rights

Case

Docket No
21F-H2121053-REL
Case Title
Michael E Palacios vs. El Rio Community Association
Decision Date
2021-08-13
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Michael E Palacios (petitioner)
    Property owner and member of the Association; was appointed to the Board,

Respondent Side

  • Quinten T. Cupps (HOA attorney)
    Represented El Rio Community Association
  • Denise Ferreira (property manager, witness)
    D & E Management
    Owns D & E Management and was the manager for the Association

Neutral Parties

  • Adam D. Stone (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate

Clifford (Norm) Burnes v. Saguaro Crest Homeowners Association, Inc.

Posted on by

Case Summary

Case ID 21F-H2121051-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2022-01-03
Administrative Law Judge Thomas Shedden
Outcome none
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Clifford (Norm) Burnes Counsel —
Respondent Saguaro Crest Homeowners Association, Inc. Counsel John Crotty

Alleged Violations

ARIZ. REV STAT. 33-1804

Outcome Summary

The ALJ dismissed the Petitioner's complaint, finding that the Respondent HOA did not violate the open meeting law (A.R.S. § 33-1804) because the action was taken without a meeting via unanimous written consent as authorized by A.R.S. § 10-3821.

Why this result: The Petitioner did not meet the burden of proof to show that the alleged violation occurred, as the board acted without holding a formal meeting.

Key Issues & Findings

Violation of open meeting law by taking action via unanimous written consent

Petitioner alleged that the Board of Directors violated the open meeting law (A.R.S. § 33-1804) on May 3, 2020, by taking two actions using unanimous written consent of the Board members, which the Respondent claimed was permissible under A.R.S. § 10-3821 as action without a meeting.

Orders: Petitioner's petition is dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV STAT. 33-1804
  • ARIZ. REV STAT. 10-3821

Analytics Highlights

Topics: HOA, Open Meeting Law, Unanimous Written Consent, Rehearing, Planned Community
Additional Citations:

  • ARIZ. REV STAT. 33-1804
  • ARIZ. REV STAT. 10-3821
  • ARIZ. REV. STAT. 32-2199
  • ARIZ. REV. STAT. 32-2199.02(A)
  • ARIZ. REV. STAT. 41-1092.08
  • ARIZ. ADMIN. CODE R2-19-119
  • ARIZ. REV. STAT. 10-3701(F)
  • ARIZ. REV. STAT. 10-3071

Video Overview

Audio Overview

Decision Documents

21F-H2121051-REL Decision – 930803.pdf

Uploaded 2026-04-25T10:08:04 (46.9 KB)

21F-H2121051-REL Decision – 935756.pdf

Uploaded 2026-04-25T10:08:09 (124.8 KB)

21F-H2121051-REL Decision – 899423.pdf

Uploaded 2026-04-25T10:08:15 (101.7 KB)

21F-H2121051-REL Decision – 930803.pdf

Uploaded 2026-04-24T11:35:49 (46.9 KB)

21F-H2121051-REL Decision – 935756.pdf

Uploaded 2026-04-24T11:35:52 (124.8 KB)

21F-H2121051-REL Decision – 899423.pdf

Uploaded 2026-04-24T11:35:56 (101.7 KB)

Briefing Document: Burnes v. Saguaro Crest Homeowners Association

Executive Summary

This briefing document synthesizes the legal proceedings and final decision in the case of Clifford (Norm) Burnes versus the Saguaro Crest Homeowners Association, Inc. (Case No. 21F-H2121051-REL). The core of the dispute was Petitioner Burnes’s allegation that the HOA Board of Directors violated Arizona’s open meeting law for planned communities by taking two official actions on May 3, 2020, without holding a public meeting. The HOA defended its actions, stating that it utilized a provision in the Arizona statutes for non-profit corporations (ARIZ. REV. STAT. § 10-3821) that allows a board to take action “without a meeting” through the unanimous written consent of all directors.

The Administrative Law Judge (ALJ), Thomas Shedden, ultimately ruled in favor of the HOA. The key finding was that no “meeting” as defined by the open meeting law actually occurred on May 3, 2020. Instead, the Board President individually visited other board members to obtain signatures on consent forms. The ALJ concluded that the two relevant statutes—the open meeting law (§ 33-1803/1804) and the action-by-consent statute (§ 10-3821)—are not in conflict. An HOA board can legally use the action-by-consent procedure, but if it chooses to hold a meeting, it must comply with the open meeting law.

Mr. Burnes’s request for a rehearing, which raised several legal and jurisdictional arguments, was granted but ultimately denied on its merits. The ALJ systematically rejected each of Burnes’s arguments, reaffirming the original decision. The final order dismissed Mr. Burnes’s petition, making the HOA the prevailing party.

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Case Overview

• Petitioner: Clifford (Norm) Burnes

• Respondent: Saguaro Crest Homeowners Association, Inc.

• Case Number: 21F-H2121051-REL (and 21F-H2121051-REL-RHG for rehearing)

• Adjudicating Body: Arizona Office of Administrative Hearings

• Administrative Law Judge: Thomas Shedden

• Core Allegation: The Petitioner alleged that on May 3, 2020, the Respondent’s Board of Directors violated Arizona’s open meeting law (cited as ARIZ. REV STAT. § 33-1803 in the initial decision and § 33-1804 in the rehearing decision) by taking two formal actions via unanimous written consent without allowing members to attend and speak.

• Respondent’s Defense: The Respondent acknowledged taking action by unanimous consent but asserted this was permissible under ARIZ. REV. STAT. § 10-3821, which allows for action without a meeting. Therefore, the open meeting law did not apply.

Factual Background and Timeline

1. April 2020: Mr. Burnes and his wife raised two issues with the HOA Board concerning “lot 7,” which is adjacent to their property. The issues were related to a construction bond waiver and the placement of a house on the lot.

2. April 2020 (Post-Complaint): Following the complaint, research was conducted by Jamie Argueta, and emails were exchanged between Mr. Burnes, the Board members, and Mr. Argueta.

3. April 19 & 21, 2020: The Board members met with Mr. and Ms. Burnes to discuss the issues. Minutes were kept for these meetings.

4. Undated Discussions: Board President Esmerelda Sarina Martinez and Board member Mr. Madill had informal discussions with other HOA members, which Ms. Martinez characterized as “neighbors talking and not a meeting.”

5. May 3, 2020: Ms. Martinez, acting alone, drafted two unanimous consent forms. She personally brought the forms and related documents to the homes of the other Board members, who each read the information and signed. The two actions taken by consent were:

◦ Honoring a waiver of the construction deposit for lot 7.

◦ A decision regarding the placement of the home on lot 7.

6. August 29, 2020: The first regularly scheduled Board meeting after the May 3rd actions was held. The meeting minutes did not include an entry showing that the written consent documents had been filed with the corporate records, a requirement of § 10-3281(A).

Procedural History

• May 7, 2021: Mr. Burnes filed his petition with the Arizona Department of Real Estate, initially asserting seven violations but being required to select only one for adjudication due to paying a single fee. He selected the violation of members not being permitted to attend and speak before the Board took formal action on May 3, 2020.

• July 16, 2021: An initial hearing was held before ALJ Thomas Shedden.

• July 28, 2021: The ALJ issued a decision dismissing Mr. Burnes’s petition, finding he had not proven a violation because no meeting occurred on May 3, 2020.

• September 2, 2021 (approx.): Mr. Burnes filed a Rehearing Request.

• September 22, 2021: The Department of Real Estate granted the request for a rehearing.

• December 9, 2021: The ALJ issued an order concluding the rehearing matter, noting that since only legal issues were raised, the decision would be based on the existing record and supplemental briefs (though neither party filed one).

• January 3, 2022: The ALJ issued the final decision on the rehearing, once again dismissing the petition and upholding the original ruling. This order was final and binding, subject to judicial review in the Superior Court.

Analysis of Legal Arguments from Rehearing

In his request for a rehearing, Mr. Burnes raised six primary legal arguments against the initial decision. The ALJ addressed and rejected each one.

Petitioner’s Argument

ALJ’s Analysis and Conclusion

1. Limited Jurisdiction: The ALJ’s jurisdiction is limited to Title 33, Chapter 16 and does not include ARIZ. REV. STAT. § 10-3821.

Rejected. Jurisdiction was proper because Mr. Burnes alleged a violation of § 33-1804 (which is in Title 33, Ch. 16). Nothing prohibits a Respondent from raising defenses from outside Title 33, or the ALJ from considering them.

2. Inapplicability of § 10-3821: The statute for action-by-consent only applies to actions found in Title 10, Chapters 24-40. The actions the HOA took are not found there.

Rejected. The ALJ noted that Mr. Burnes himself acknowledged that “voting” is an action found within those chapters of Title 10, and voting is precisely the action that was taken by unanimous consent.

3. Conflict of Law (§ 10-3701(F)): Statute § 10-3701(F) states that in cases of inconsistency, Title 33 (planned communities) controls over Title 10.

Rejected. This analysis is flawed because § 10-3701(F) applies specifically to membership meetings (Title 10, Ch. 30). The statute for action by consent, § 10-3821, deals with directors’ meetings and is in a different chapter (Title 10, Ch. 31), which has no similar provision. The legislature’s choice to include this provision for membership meetings but not for board meetings indicates an intent to allow boards more latitude to act by consent.

4. Specific vs. General Statute: § 33-1804 is specific to planned communities and should control over § 10-3821, which applies to all non-profits. The policy of the state favors open meetings.

Rejected. This principle of statutory construction only applies when statutes are in conflict and cannot both be given effect. Here, they are not in conflict. Both can be given full effect: an HOA may take action without a meeting per § 10-3821, but if a meeting is held, it must follow the open meeting requirements of § 33-1804.

5. Bylaws Are Irrelevant: The ALJ wrongly cited the HOA’s bylaws allowing action-by-consent, because § 33-1804 applies “notwithstanding any provision in the… bylaws.”

Rejected. Mr. Burnes was correct that bylaws do not trump the open meeting law. However, he overlooked that § 10-3821 itself contains an exception: it does not apply if the corporation’s bylaws prohibit action by consent. The finding regarding the bylaws was necessary only to show that this exception did not apply to the HOA, thus making § 10-3821 available to them.

6. A Meeting Did Occur: Mr. Burnes asserted a meeting did take place on May 3, 2020.

Rejected. The ALJ found this position had several flaws: Mr. Burnes cited no evidence from the record to prove discussion occurred on May 3rd; he conflated prior meetings with the events of May 3rd; and he provided no legal authority to show that drawing on past discussions to draft a consent form constitutes a “meeting.” The ALJ also dismissed his reliance on new dictionary definitions not presented at the original hearing.

Key Statutes and Legal Principles

• ARIZ. REV. STAT. § 33-1803 / § 33-1804 (Open Meetings Law):

◦ Mandates that “all meetings of the members’ association and the board of directors… are open to all members of the association.”

◦ Members “shall be permitted to attend and speak at an appropriate time during the deliberations and proceedings.”

◦ A “quorum of the board of directors that meets informally to discuss association business… shall comply with the open meeting and notice provisions.”

◦ Reflects a state policy that provisions should be construed “in favor of open meetings.”

• ARIZ. REV. STAT. § 10-3821 (Action Without Meeting):

◦ “Unless the articles of incorporation or bylaws provide otherwise, action… to be taken at a directors’ meeting may be taken without a meeting if the action is taken by all of the directors.”

◦ The action must be evidenced by one or more written consents, signed by each director, and included in the minutes filed with corporate records.

◦ A consent signed under this section has “the effect of a meeting vote.”

• Saguaro Crest HOA Bylaws (Section 3.5):

◦ The association’s bylaws explicitly provide directors with “the right to take any action in the absence of a meeting, which they could take at a meeting by obtaining the written consent of all the directors.”

Conclusion and Final Order

The Administrative Law Judge concluded that Mr. Burnes failed to meet his burden of proof to show that the Saguaro Crest HOA violated the open meeting law. The central finding was that the HOA’s actions on May 3, 2020, did not constitute a “meeting” but were a legally permissible “action without a meeting” under ARIZ. REV. STAT. § 10-3821. The subsequent rehearing confirmed this legal interpretation.

The final order, issued January 3, 2022, was:

“IT IS ORDERED that Petitioner Clifford (Norm) Burnes’s petition is dismissed.”

The order was final and binding, with any further appeal requiring judicial review by the Superior Court within 35 days.

Study Guide: Burnes v. Saguaro Crest Homeowners Association, Inc.

This study guide provides a review of the administrative law case involving Petitioner Clifford (Norm) Burnes and Respondent Saguaro Crest Homeowners Association, Inc. It includes a short-answer quiz, an answer key, essay questions, and a glossary of key terms based on the provided legal decisions.

Short-Answer Quiz

Answer each question in 2-3 sentences, based on the information in the case documents.

1. What was the single, specific violation that Clifford (Norm) Burnes alleged against the Saguaro Crest Homeowners Association’s Board of Directors?

2. What was the Respondent’s primary legal justification for the actions its Board of Directors took on May 3, 2020?

3. What two specific decisions did the Board make using the unanimous consent forms on May 3, 2020?

4. According to the Administrative Law Judge (ALJ), how can both the open meeting law (§ 33-1804) and the statute allowing action without a meeting (§ 10-3821) be given effect without being in conflict?

5. What was the purpose of the rehearing granted to Mr. Burnes, and what was the outcome?

6. How did the HOA’s bylaws, specifically section 3.5, support the Respondent’s case?

7. What argument did Mr. Burnes make regarding the ALJ’s jurisdiction to consider ARIZ. REV. STAT. section 10-3821?

8. What is the standard of proof required in this matter, and who bears the burden of meeting it?

9. Mr. Burnes asserted that a meeting did occur on May 3, 2020. What flaws did the ALJ identify in this assertion?

10. What specific requests did Mr. Burnes make in his petition as a remedy for the alleged violation?

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Quiz Answer Key

1. Mr. Burnes’s single alleged violation was that at the “meeting” on May 3, 2020, HOA members were not permitted to attend and speak after discussion but before the Board took formal action. This, he claimed, was a violation of Arizona’s open meeting law, cited as ARIZ. REV STAT. § 33-1803 and later § 33-1804.

2. The Respondent acknowledged taking two actions by consent but argued that no meeting actually occurred. Their defense was that they acted under the authority of ARIZ. REV. STAT. § 10-3821, which explicitly allows a board of directors to take action without a meeting if it is done via unanimous written consent of all directors.

3. The two decisions made via unanimous consent related to issues Mr. Burnes had raised about lot 7, which abuts his property. The first action was to honor a waiver of the construction deposit for lot 7, and the second action was regarding the placement of the home on lot 7.

4. The ALJ reasoned that the statutes are not in conflict because they apply to different situations. Respondent may take action without a meeting as allowed by § 10-3821, but if a meeting is held, Respondent must follow all the requirements of the open meeting law, § 33-1804.

5. Mr. Burnes requested a rehearing, alleging that the initial ALJ decision’s findings of fact were not supported by evidence or were contrary to law. The rehearing was granted to review these legal issues, but the outcome was the same: the ALJ once again concluded that no violation had occurred and dismissed Mr. Burnes’s petition.

6. Section 3.5 of the Association’s bylaws, titled “Action Without a Meeting,” explicitly provides the directors with “the right to take any action in the absence of a meeting, which they could take at a meeting by obtaining the written consent of all the directors.” This directly supported the Respondent’s claim that its actions were permissible under its own governing documents as well as state law.

7. Mr. Burnes argued that the ALJ’s jurisdiction is limited to Title 33, Chapter 16, and therefore the ALJ had no jurisdiction to consider section 10-3821 as a defense because it is not found in that title. The ALJ rejected this, stating that jurisdiction was proper because the complaint was about a violation of Title 33, and nothing prohibits a respondent from raising defenses from outside that title.

8. The standard of proof is a “preponderance of the evidence.” The Petitioner, Mr. Burnes, bore the burden of proof to show that the alleged violation occurred.

9. The ALJ found several flaws in this assertion: Mr. Burnes did not cite evidence from the record proving a discussion occurred on May 3rd, he conflated prior meetings with the events of May 3rd, and he provided no legal authority showing that prior discussions are pertinent to whether a meeting occurred on that specific day.

10. Mr. Burnes requested that the Respondent be ordered to rescind the consent actions, comply with the open meeting law, pay his filing fee, and be assessed a civil penalty.

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Essay Questions

1. Analyze the central conflict between ARIZ. REV. STAT. § 33-1804 (“Open meetings”) and ARIZ. REV. STAT. § 10-3821 (“Action without meeting”) as presented in this case. Explain the ALJ’s reasoning for concluding that the statutes do not conflict and can both be given effect.

2. Describe the timeline of events leading up to the May 3, 2020 unanimous written consent. How did the meetings and communications in April 2020 between Mr. Burnes and the Board influence the context of the dispute, even though they were not the subject of the final legal violation claim?

3. Evaluate the six specific legal arguments Mr. Burnes raised in his request for rehearing. For each, summarize his point and the ALJ’s counter-argument or legal conclusion.

4. Discuss the concept of “preponderance of the evidence” as defined in the case documents. Explain why the ALJ concluded that Mr. Burnes failed to meet this standard of proof in both the initial hearing and the rehearing.

5. Examine the relationship between state statutes and an association’s governing documents (like bylaws) in this case. How did the ALJ address Mr. Burnes’s argument that § 33-1804 should apply “notwithstanding any provision in the…bylaws”?

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Glossary of Key Terms

Term / Statute

Definition

Action without meeting

A procedure allowed by ARIZ. REV. STAT. § 10-3821 and the Association’s Bylaws (Section 3.5) where a board of directors may take action if it is evidenced by one or more written consents signed by all directors. The consent has the effect of a meeting vote.

Administrative Law Judge (ALJ)

The official, in this case Thomas Shedden, assigned to adjudicate complaints and ensure compliance with relevant statutes for the Office of Administrative Hearings.

ARIZ. REV. STAT. § 10-3821

The state statute titled “Action without meeting” that permits a board of directors to take action without a meeting if all directors provide written consent, unless the articles of incorporation or bylaws provide otherwise.

ARIZ. REV. STAT. § 33-1803 / § 33-1804

The state’s “Open meetings” law for planned communities. It requires that all meetings of an HOA board be open to all members, who shall be permitted to attend and speak at an appropriate time.

Burden of Proof

The obligation of a party in a trial to produce the evidence that will prove the claims they have made against the other party. In this case, the Petitioner (Mr. Burnes) bore the burden of proof.

Clifford (Norm) Burnes

The Petitioner in the case, a member of the Saguaro Crest Homeowners Association.

Petitioner

The party who files a petition or brings an action; in this case, Clifford (Norm) Burnes.

Preponderance of the evidence

The standard of proof in this case, 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.”

Respondent

The party against whom a petition is filed; in this case, Saguaro Crest Homeowners Association, Inc.

Saguaro Crest Homeowners Association, Inc.

The Respondent in the case; a planned community governed by a Board of Directors.

Unanimous Written Consent

The method used by the Respondent’s Board of Directors on May 3, 2020, to take action. It involved each board member signing written consent forms, as permitted by ARIZ. REV. STAT. § 10-3821.

Your HOA Board Can Legally Make Decisions in Secret—Here’s How One Homeowner’s Lawsuit Proved It

1.0 Introduction: The Expectation vs. The Reality

For most homeowners living in a planned community, the principle of transparency is paramount. The common expectation is that all significant decisions made by the Homeowners Association (HOA) board of directors will happen in open meetings. These are forums where members can attend, listen to the deliberations, and, at the appropriate time, make their voices heard before the board takes a formal vote. This commitment to openness is often seen as a cornerstone of fair governance.

But what if a board could make a decision without ever holding a meeting at all? This question was at the heart of a legal dispute in Arizona, where a homeowner named Clifford (Norm) Burnes took his HOA, Saguaro Crest, to court. Mr. Burnes alleged that his board violated the state’s open meeting law when it took action on two separate issues without convening a meeting. The case worked its way through an administrative law court, and the final decision sided with the HOA, establishing a critical legal precedent that boards can, under specific circumstances, bypass open meetings entirely.

2.0 Takeaway 1: Boards Can Legally Act “Without a Meeting”

The central facts of the case were not in dispute. On May 3, 2020, the Saguaro Crest HOA board made two formal decisions concerning a neighboring lot, specifically regarding a construction bond waiver and home placement—issues that Mr. Burnes himself had previously raised. Instead of calling a meeting, the board used a procedure known as “unanimous written consent.” The Board President, Ms. Martinez, drafted two consent forms, personally brought them to the homes of the other board members, and had each director sign them.

This action, while sidestepping an open meeting, was found to be perfectly legal. The board was operating under the authority of a specific Arizona state law, ARIZ. REV. STAT. section 10-3821, titled “Action without meeting.” This statute explicitly allows the board of a non-profit corporation to take action without a meeting, provided the action is taken by all directors and is documented by written consent.

Furthermore, this power was not just granted by state law; it was also written directly into the HOA’s own governing documents. Section 3.5 of the Saguaro Crest HOA’s bylaws, titled “Action Without a Meeting,” explicitly grants its directors “the right to take any action in the absence of a meeting, which they could take at a meeting by obtaining the written consent of all the directors.”

3.0 Takeaway 2: A Legal Puzzle—When Two State Laws Seem to Conflict

Mr. Burnes’s case created a compelling legal puzzle by highlighting two state laws that appeared to be in direct opposition. On one side was Arizona’s Planned Community law (ARIZ. REV. STAT. section 33-1804), which strongly mandates open meetings for HOA boards and includes a policy statement that any interpretation of the law should be construed “in favor of open meetings.”

On the other side was the state’s Nonprofit Corporation law (ARIZ. REV. STAT. section 10-3821), which, as noted, expressly permits a board to act without a meeting. Mr. Burnes argued that the open meeting law should take precedence.

The Administrative Law Judge, however, made a crucial distinction. Applying a standard legal principle that courts must try to give effect to both laws if possible, the judge determined the two statutes do not actually conflict. The judge’s reasoning clarifies how both can exist and be applied legally.

In this case, both sections 10-3821 and 33-1804 can be given effect in that Respondent may take action without a meeting as allowed by section 10-3821, but if a meeting is held, Respondent must follow the requirements of section 33-1804.

This interpretation is the core of the decision. The open meeting law, with all its requirements for notice and member participation, only applies if a meeting is held. By using the “action without meeting” statute, the Saguaro Crest board legally sidestepped the requirement to hold a meeting in the first place, thereby rendering the open meeting law inapplicable to their actions on that day.

4.0 Takeaway 3: Legislative Intent Can Be Read in a Law’s Silence

Mr. Burnes also advanced a more sophisticated legal argument: that in any conflict, the specific laws written for HOAs (found in Title 33 of the state code) should overrule the more general laws for non-profit corporations (found in Title 10).

The judge’s response to this provided a fascinating lesson in how courts interpret legislative intent, not just from what a law says, but from what it doesn’t say. The judge noted that the section of law governing general membership meetings does contain a specific clause stating that in the case of an inconsistency, the HOA laws control.

Crucially, the section of law governing board meetings, where the “action without meeting” statute is found, has no such clause. The judge interpreted this difference not as an oversight, but as a deliberate choice by lawmakers. This “silence” in the statute was read as a “legislative intent to allow boards latitude to act by consent.” In other words, if the legislature had intended for the open meeting law to always override the board’s ability to act by written consent, it would have explicitly said so, just as it did for membership meetings.

5.0 Conclusion: Efficiency vs. Transparency

While homeowners understandably value and expect open meetings as a tool for transparency and participation, the law also recognizes the need for boards to operate efficiently. The unanimous written consent procedure provides a legal mechanism for boards to make decisions, particularly on straightforward matters, without the time and expense of convening a formal meeting.

This case is more than a legal curiosity; it’s a practical lesson for every homeowner. The power wielded by the Saguaro Crest board is not unique to Arizona. If you want to understand the true scope of your own board’s authority, take these two steps:

1. Review your HOA’s bylaws. Look for a clause titled “Action Without a Meeting” or similar language that grants the board the right to act via written consent. This is the internal authorization.

2. Check your state’s Nonprofit Corporation Act. Search for a statute similar to Arizona’s § 10-3821. This is the ultimate source of the board’s power, and it likely exists in some form in your state, defining the boundary between efficiency and transparency for your community.

Case Participants

Petitioner Side

  • Clifford (Norm) Burnes (petitioner)
    Appeared on his own behalf at the original hearing

Respondent Side

  • John Crotty (HOA attorney)
    Law Offices of Farley, Choate & Wood
    Attorney for Saguaro Crest Homeowners Association, Inc.
  • Esmerelda Sarina Martinez (board president, witness)
    Saguaro Crest Homeowners Association, Inc.
    Testified as a witness for Respondent
  • Madill (board member)
    Saguaro Crest Homeowners Association, Inc.
    Referred to as Mr. Madill

Neutral Parties

  • Thomas Shedden (ALJ)
  • Judy Lowe (Commissioner)
    ADRE
    Commissioner during original decision transmittal
  • Louis Dettorre (Commissioner)
    ADRE
    Commissioner during rehearing transmittal
  • Miranda Alvarez (staff)
    Transmittal staff (also noted as Miranda A.)
  • c. serrano (staff)
    Transmittal staff

Other Participants

  • Jamie Argueta (staff)
    Conducted research; position and function apparently not in the record

Daniel J Coe v. Maricopa Meadows Homeowners Association

Posted on by

Case Summary

Case ID 21F-H2120029-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2021-10-12
Administrative Law Judge Adam D. Stone
Outcome none
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Daniel J Coe Counsel —
Respondent Maricopa Meadows Homeowners Association Counsel Edith Rudder

Alleged Violations

No violations listed

Outcome Summary

The Office of Administrative Hearings issued an order vacating the scheduled hearing and remanding the matter to the Department of Real Estate, based on the Petitioner's motion to withdraw the rehearing petition.

Why this result: Petitioner withdrew the rehearing petition.

Key Issues & Findings

Motion to Withdraw Rehearing Petition

Petitioner filed a Motion to Withdraw Rehearing Petition, advising that the scheduled hearing was not necessary.

Orders: Hearing vacated and matter remanded to the Department of Real Estate.

Filing fee: $0.00, Fee refunded: No

Disposition: procedural_closure

Analytics Highlights

Topics: withdrawal, procedural, remand

Video Overview

Audio Overview

Decision Documents

21F-H2120029-REL Decision – 916851.pdf

Uploaded 2026-04-28T10:55:51 (51.8 KB)

21F-H2120029-REL Decision – 890760.pdf

Uploaded 2026-04-28T10:56:07 (151.9 KB)

21F-H2120029-REL Decision – 916851.pdf

Uploaded 2026-04-24T11:32:32 (51.8 KB)

21F-H2120029-REL Decision – 890760.pdf

Uploaded 2026-04-24T11:32:40 (151.9 KB)

This summary details the administrative disposition of the legal matter between Daniel J Coe, Petitioner, and Maricopa Meadows Homeowners Association, Respondent, identified as Case No. 21F-H2120029-REL-RHG, before the Office of Administrative Hearings (OAH).

Key Facts and Proceedings:

The Petitioner, Daniel J Coe, was involved in a dispute with the Maricopa Meadows Homeowners Association. A hearing concerning this matter was scheduled before the OAH for October 12, 2021. However, the proceedings were terminated before the scheduled date. On October 8, 2021, the Petitioner filed a Motion to Withdraw Rehearing Petition with the OAH. In this motion, the Petitioner explicitly advised that the scheduled hearing was "not necessary".

Main Issues and Legal Points:

The central legal point addressed in the order was the disposition of the Petitioner’s request for a hearing. The Administrative Law Judge (ALJ), Adam D. Stone, determined that there was sufficient cause to act on the Petitioner's motion to withdraw the petition.

Outcome and Final Decision:

On October 12, 2021, the ALJ issued an ORDER VACATING HEARING. The Order formally vacated the scheduled hearing from the calendar of the Office of Administrative Hearings. Crucially, the Order FURTHER ORDERED remanding this matter to the Department of Real Estate for further action. This administrative decision concluded the OAH's involvement in the pending hearing request, shifting the responsibility for subsequent steps back to the Department of Real Estate.

Questions

Question

Does the number of homeowners ineligible to vote (due to delinquency) lower the number required for a quorum?

Short Answer

No. The quorum is generally calculated based on the total class of membership, and subtracting ineligible voters to lower the quorum threshold is not automatically accepted without specific support.

Detailed Answer

The ALJ rejected the homeowner's argument that the quorum threshold should be lowered by subtracting the 222 members who were ineligible to vote due to delinquent accounts. The quorum remained 10% of the total membership class (1,626), not 10% of the eligible voters.

Alj Quote

Petitioner’s argument that because only 1,404 Members were eligible to vote, that quorum was established at 140 voting Members is erroneous. Moreover, Petitioner provided no statute, regulation, governing document, or other binding case law to support his contention.

Legal Basis

Bylaws Article III Section 3.6

Topic Tags

  • Elections
  • Quorum
  • Voting Rights

Question

What happens to the results of an election if the required quorum is not met?

Short Answer

The election is invalid and no candidates are elected, even if votes were cast.

Detailed Answer

In this case, candidates received over 100 votes each, but because the total number of ballots cast (147) did not meet the quorum requirement (163), no one was elected to the Board.

Alj Quote

Although Alicia Chin received 109 votes, Randy Eilts received 103 votes, Petitioner received 103 votes… none were elected to the Board of Directors because the Association determined that quorum had not been met.

Legal Basis

Bylaws Article III Section 3.6

Topic Tags

  • Elections
  • Quorum
  • Board of Directors

Question

Are CC&Rs considered a legally binding contract?

Short Answer

Yes, CC&Rs constitute an enforceable contract between the HOA and the homeowner.

Detailed Answer

When a person buys a property in an HOA, they agree to be bound by the CC&Rs, creating a contractual relationship.

Alj Quote

When a party buys a residential unit in the development, the party receives a copy of the CC&Rs and agrees to be bound by their terms. Thus, the CC&Rs form an enforceable contract between the Association and each property owner.

Legal Basis

Contract Law

Topic Tags

  • CC&Rs
  • Legal Standards
  • Contracts

Question

Who has the burden of proof in a hearing against an HOA?

Short Answer

The petitioner (the homeowner filing the complaint) bears the burden of proof.

Detailed Answer

The homeowner must prove that the HOA violated the statutes or documents by a 'preponderance of the evidence.'

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1243.

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • Procedure
  • Burden of Proof
  • Evidence

Question

What evidence is required to win a dispute about interpreting bylaws?

Short Answer

You generally need to provide statutes, regulations, governing documents, or binding case law that supports your interpretation.

Detailed Answer

The ALJ denied the petition partly because the homeowner offered only an argument without supporting legal authority to counter the plain text of the bylaws.

Alj Quote

Petitioner provided no statute, regulation, governing document, or other binding case law to support his contention. Here, the clear authority lies within the plain text of Article III Section 3.6.

Legal Basis

Administrative Law

Topic Tags

  • Evidence
  • Legal Interpretation
  • Bylaws

Question

Does the Administrative Law Judge have the power to interpret the HOA's contract/CC&Rs?

Short Answer

Yes, the Office of Administrative Hearings (OAH) has the authority to interpret the contract between the parties.

Detailed Answer

The tribunal is authorized to hear disputes and interpret the governing documents (the contract) to resolve the case.

Alj Quote

Pursuant to ARIZ. REV. STAT. §§ 32-2199(2)… OAH has the authority to hear and decide the contested case at bar. OAH also has the authority to interpret the contract between the parties.

Legal Basis

ARIZ. REV. STAT. §§ 32-2199

Topic Tags

  • Jurisdiction
  • OAH Authority
  • Contracts

Question

What does 'preponderance of the evidence' mean in an HOA hearing?

Short Answer

It means the evidence shows the claim is more probably true than not.

Detailed Answer

It is the greater weight of convincing evidence, enough to incline a fair mind to one side, even if doubts remain.

Alj Quote

“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

Arizona Law of Evidence

Topic Tags

  • Legal Standards
  • Definitions
  • Evidence

Case

Docket No
21F-H2120029-REL
Case Title
Daniel J. Coe v. Maricopa Meadows Homeowners Association
Decision Date
2021-06-24
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Questions

Question

Does the number of homeowners ineligible to vote (due to delinquency) lower the number required for a quorum?

Short Answer

No. The quorum is generally calculated based on the total class of membership, and subtracting ineligible voters to lower the quorum threshold is not automatically accepted without specific support.

Detailed Answer

The ALJ rejected the homeowner's argument that the quorum threshold should be lowered by subtracting the 222 members who were ineligible to vote due to delinquent accounts. The quorum remained 10% of the total membership class (1,626), not 10% of the eligible voters.

Alj Quote

Petitioner’s argument that because only 1,404 Members were eligible to vote, that quorum was established at 140 voting Members is erroneous. Moreover, Petitioner provided no statute, regulation, governing document, or other binding case law to support his contention.

Legal Basis

Bylaws Article III Section 3.6

Topic Tags

  • Elections
  • Quorum
  • Voting Rights

Question

What happens to the results of an election if the required quorum is not met?

Short Answer

The election is invalid and no candidates are elected, even if votes were cast.

Detailed Answer

In this case, candidates received over 100 votes each, but because the total number of ballots cast (147) did not meet the quorum requirement (163), no one was elected to the Board.

Alj Quote

Although Alicia Chin received 109 votes, Randy Eilts received 103 votes, Petitioner received 103 votes… none were elected to the Board of Directors because the Association determined that quorum had not been met.

Legal Basis

Bylaws Article III Section 3.6

Topic Tags

  • Elections
  • Quorum
  • Board of Directors

Question

Are CC&Rs considered a legally binding contract?

Short Answer

Yes, CC&Rs constitute an enforceable contract between the HOA and the homeowner.

Detailed Answer

When a person buys a property in an HOA, they agree to be bound by the CC&Rs, creating a contractual relationship.

Alj Quote

When a party buys a residential unit in the development, the party receives a copy of the CC&Rs and agrees to be bound by their terms. Thus, the CC&Rs form an enforceable contract between the Association and each property owner.

Legal Basis

Contract Law

Topic Tags

  • CC&Rs
  • Legal Standards
  • Contracts

Question

Who has the burden of proof in a hearing against an HOA?

Short Answer

The petitioner (the homeowner filing the complaint) bears the burden of proof.

Detailed Answer

The homeowner must prove that the HOA violated the statutes or documents by a 'preponderance of the evidence.'

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1243.

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • Procedure
  • Burden of Proof
  • Evidence

Question

What evidence is required to win a dispute about interpreting bylaws?

Short Answer

You generally need to provide statutes, regulations, governing documents, or binding case law that supports your interpretation.

Detailed Answer

The ALJ denied the petition partly because the homeowner offered only an argument without supporting legal authority to counter the plain text of the bylaws.

Alj Quote

Petitioner provided no statute, regulation, governing document, or other binding case law to support his contention. Here, the clear authority lies within the plain text of Article III Section 3.6.

Legal Basis

Administrative Law

Topic Tags

  • Evidence
  • Legal Interpretation
  • Bylaws

Question

Does the Administrative Law Judge have the power to interpret the HOA's contract/CC&Rs?

Short Answer

Yes, the Office of Administrative Hearings (OAH) has the authority to interpret the contract between the parties.

Detailed Answer

The tribunal is authorized to hear disputes and interpret the governing documents (the contract) to resolve the case.

Alj Quote

Pursuant to ARIZ. REV. STAT. §§ 32-2199(2)… OAH has the authority to hear and decide the contested case at bar. OAH also has the authority to interpret the contract between the parties.

Legal Basis

ARIZ. REV. STAT. §§ 32-2199

Topic Tags

  • Jurisdiction
  • OAH Authority
  • Contracts

Question

What does 'preponderance of the evidence' mean in an HOA hearing?

Short Answer

It means the evidence shows the claim is more probably true than not.

Detailed Answer

It is the greater weight of convincing evidence, enough to incline a fair mind to one side, even if doubts remain.

Alj Quote

“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

Arizona Law of Evidence

Topic Tags

  • Legal Standards
  • Definitions
  • Evidence

Case

Docket No
21F-H2120029-REL
Case Title
Daniel J. Coe v. Maricopa Meadows Homeowners Association
Decision Date
2021-06-24
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Daniel J. Coe (petitioner)
    Also a candidate for Board Member Elect
  • Randy Eilts (board member candidate)
    Also listed as an observer
  • Summer Wierth (board member candidate)
    Also listed as an observer
  • Alicia Chin (board member candidate)
  • Albert Barnes (board member candidate)

Respondent Side

  • Ed O’Brien (attorney)
    Maricopa Meadows Homeowners Association
  • Michael LaPoint (witness)
  • Lydia A. Peirce Linsmeier (attorney)
    Carpenter, Hazelwood, Delgado & Bolen LLP
    Counsel for Respondent
  • Edith Rudder (attorney)
    Carpenter, Hazlewood, Delgado & Bolen, PLC
    Counsel for Respondent in later filing

Neutral Parties

  • Jenna Clark (ALJ)
    OAH
    Issued Administrative Law Judge Decision
  • Judy Lowe (ADRE Commissioner)
    Arizona Department of Real Estate
  • DGardner (ADRE staff)
    Arizona Department of Real Estate
  • Adam D. Stone (ALJ)
    OAH
    Issued Order Vacating Hearing
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
  • djones (ADRE staff)
    Arizona Department of Real Estate
  • c. serrano (OAH staff)
    OAH
    Transmitting staff

Other Participants

  • Andrea Chin (observer)