Joseph Allan vs The Springs Condominium Association

Posted on February 5, 2026 by [email protected]

Case Summary

Case ID	25F-H081-REL
Agency	—
Tribunal	—
Decision Date	2/5/2026
Administrative Law Judge	VMT
Outcome	Petition is dismissed
Filing Fees Refunded	—
Civil Penalties	—

Parties & Counsel

Petitioner	Joseph Allan	Counsel	—
Respondent	The Springs Condominium Association	Counsel	—

Alleged Violations

No violations listed

Video Overview

Audio Overview

Decision Documents

25F-H081-REL Decision – 1374850.pdf

Uploaded 2026-04-24T12:55:08 (73.8 KB)

25F-H081-REL Decision – 1393068.pdf

Uploaded 2026-04-24T12:55:18 (106.6 KB)

Case Briefing: Joseph Allan v. The Springs Condominium Association

Executive Summary

This briefing document summarizes the administrative hearing and subsequent decision in the matter of Joseph Allan v. The Springs Condominium Association (Case No. 25F-H081-REL). The dispute centered on a petition filed by Mr. Allan, a unit owner, alleging that the Association violated Arizona Revised Statute (A.R.S.) § 33-1258 by failing to provide requested financial records.

The core of the conflict involved a $15,240 tax refund from the 2022 tax year that Mr. Allan asserted was missing from the Association’s 2023 financial reports. Mr. Allan sought physical documentation—such as checks or deposit receipts—to verify the handling of these funds. The Association, represented by its Treasurer, John Calgamone, and Property Manager, Belen Guzman, maintained that the funds were never received as a check but were instead applied as a rolling credit toward future tax liabilities to avoid penalties.

On February 5, 2026, Administrative Law Judge (ALJ) Velva Moses-Thompson issued a decision dismissing the petition. The ALJ concluded that Mr. Allan failed to establish that the Association was in possession of the specific records requested (checks/receipts), as the evidence indicated the refund existed only as an IRS credit rather than a liquid asset.

Detailed Analysis of Key Themes

1. The Dispute Over the $15,240 Tax Refund

The primary catalyst for the hearing was Mr. Allan’s discovery that a $15,240 refund shown on the 2022 tax return (Form 1120) did not appear on the 2023 tax return or audit. Mr. Allan contended that because the IRS typically issues checks within 30 to 60 days, the absence of this money on the Association's financial ledgers suggested potential mismanagement or lack of transparency.

Conversely, the Association provided testimony that the credit had been "rolling over" for approximately seven years. The Association’s strategy was to leave overpayments with the IRS to cover future liabilities, a decision made because the property generates income through a restaurant and rentals, which carries a higher risk of tax penalties.

2. Statutory Requirements and Burden of Proof

The case was argued under A.R.S. § 33-1258, which requires condominium associations to make financial and other records reasonably available for examination by a member within ten business days.

The Petitioner’s Burden: As the party with the burden of proof, Mr. Allan had to demonstrate by a "preponderance of the evidence" that the Association violated the statute.
The Findings: The ALJ determined that an association cannot be found in violation of failing to provide records that do not exist. Since the Association had not received a physical check, they could not produce a copy of a check or a deposit receipt.

3. Communication Protocols and Management Relations

A recurring theme throughout the testimony was the procedural friction between Mr. Allan, the Board of Directors, and the management company, SSC Property Management.

Direct vs. Indirect Requests: The Association argued that Mr. Allan frequently bypassed the management company, sending requests only to Board members. While the ALJ noted there was no formal rule requiring requests to go through management, the Association testified that this caused delays because the Board members are volunteers and do not maintain the physical records.
Availability for Inspection: The Association emphasized that records are kept in an office just a short walk from Mr. Allan's unit and that he had been invited to inspect the files in person, an invitation he reportedly did not accept.

4. Professional Reliance and Accounting Expertise

The testimony revealed a reliance on external experts (Butler and Hansen, CPAs) to navigate IRS communications. Treasurer John Calgamone admitted to a lack of formal accounting training, stating he relied on Miss Guzman and the hired CPAs to ensure the Association's financial health. Mr. Allan challenged this, arguing that the Board should have more direct knowledge of IRS documents, specifically the CP145 (IRS Notice of Correction).

Key Quotes and Context

Regarding the Management of the Refund

"Rather than accept the overpayment, I made a point to tell the property manager to tell the accountant we want to leave that for next year's taxes so that we have already paid any money due next year." — John Calgamone, Association Treasurer

Context: This explains the Association's rationale for the missing "check." They viewed the refund as a strategic credit rather than a cash inflow.

Regarding the Request for Records

"You continue to demand letters that simply do not exist. We you have been told that you are welcome to make appointments to inspect the records in person to see for yourself which records are in hand. You have not done so." — Belen Guzman, Property Manager (quoting an email to Mr. Allan)

Context: This highlights the Association’s defense: they provided what they had (an IRS letter from November 2023) and argued that Mr. Allan was demanding documentation of a transaction that never took place in the form he imagined.

Regarding the Petitioner's Motivation

"Nothing. I made it clear a couple years ago that I'll be looking into our financials and straightening out our financials. And that's what I've been doing. I've been doing it professionally, diplomatically, politely." — Joseph Allan, Petitioner

Context: Mr. Allan framed his actions as a necessary oversight role to ensure the financial integrity of the 203-property community.

Regarding the Legal Representation Rule

"Miss Guzman can represent the [entity] but Miss Guzman and no other person can be receiving payment for the representation… unless your representative is an Arizona licensed attorney." — Judge Velva Moses-Thompson

Context: The Judge clarified the procedural rules of the Office of Administrative Hearings, noting that while property managers can represent associations, they cannot be specifically compensated for that legal representation unless they are licensed attorneys.

Actionable Insights

For Association Governance

Clarify Credit vs. Cash: Associations should ensure that tax credits held by the IRS are clearly footnoted in internal financial statements to prevent the appearance of "missing" funds.
Formalize Record Request Procedures: To avoid confusion, associations should adopt and distribute a written rule specifying the preferred channel for record requests (e.g., via the management company) as permitted by A.R.S. § 33-1258.
Documentation of IRS Communications: Maintain a dedicated file for all IRS notices (like CP145) to demonstrate a clear paper trail during audits or member inquiries.

For Members Requesting Records

In-Person Inspection: If a records dispute arises, the requesting member should utilize their right to inspect records in person. This can clarify whether a document is being withheld or if it truly does not exist.
Inclusion of Management: Even if not legally required, including the property management company on all formal record requests can expedite the process, as they are typically the custodians of the records.

Legal Summary Table

Item	Detail
Case Number	25F-H081-REL
Statute in Question	A.R.S. § 33-1258
Presiding Judge	Velva Moses-Thompson
Final Decision	Petition Dismissed; Association deemed prevailing party
Decision Date	February 5, 2026

Case Study Guide: Joseph Allan v. The Springs Condominium Association

This study guide provides a comprehensive overview of the administrative hearing and subsequent legal decision regarding Joseph Allan v. The Springs Condominium Association (No. 25F-H081-REL). It covers the legal frameworks, key arguments, and procedural rules discussed in the source context.

Key Legal Concepts and Background

1. Arizona Revised Statute § 33-1258

The central legal issue in this case is whether the Association violated A.R.S. § 33-1258, which governs the availability of records for condominium associations.

Access: All financial and other records must be made "reasonably available" for examination by any member or their designated representative.
Fees: Associations cannot charge for the review of records but may charge up to $0.15 per page for copies.
Timeline: Associations have 10 business days to fulfill a request for examination or to provide copies of requested records.

2. Legal Representation in Administrative Hearings

According to Arizona Supreme Court rules for administrative hearings:

A community manager or designated person can represent an association.
However, that representative cannot receive a fee for the representation unless they are a licensed attorney in Arizona.
In this case, the ALJ moved the primary representation from the community manager (Belen Guzman) to the Association Treasurer (John Calderone) because Guzman confirmed she was receiving a fee for her role in the hearing.

3. Burden of Proof

In these proceedings:

The Petitioner (Joseph Allan) carries the burden of proof to establish a violation by a preponderance of the evidence. This means proving that the contention is "more probably true than not."
The Respondent (The Springs Condominium Association) carries the burden of establishing any affirmative defenses by the same standard.

Case Overview: The Tax Refund Dispute

The dispute originated from Joseph Allan's request for documentation regarding a $15,240 tax refund (alternatively cited as $15,199 or $15,890 in various testimony) from the 2022 tax year.

Participant	Role	Key Argument/Evidence
Joseph Allan	Petitioner (Homeowner)	Claimed the Association failed to provide proof of how the refund was handled. He requested checks, deposit receipts, or IRS documentation.
John Calderone	Association Treasurer	Testified that the Association chose to roll the credit over for future tax liabilities rather than taking a check to avoid penalties and cover future income taxes.
Belen Guzman	Property Manager	Stated that the Association has treated the refund as a rolling credit for nearly seven years and that no refund check existed at the time of the request.
Velva Moses-Thompson	Admin. Law Judge	Ruled that the Petitioner failed to prove the Association possessed the specific records (the check/receipt) he was requesting.

Short-Answer Practice Questions

1. What was the specific dollar amount of the tax refund Joseph Allan discovered was missing from the 2023 tax return? Answer: $15,240.

2. Which Arizona Revised Statute was the Association accused of violating? Answer: A.R.S. § 33-1258.

3. Why did the Administrative Law Judge (ALJ) question Belen Guzman’s ability to represent the Association? Answer: Under Arizona Supreme Court rules, a non-attorney cannot receive a fee for representing a party in these hearings. Guzman admitted she was receiving a fee for the representation.

4. How many days does an association have to fulfill a request for records under Arizona law? Answer: Ten business days.

5. What explanation did the Association provide for why there was no "check" or "deposit receipt" for the tax refund? Answer: The Association opted to have the refund applied as a credit toward future tax liabilities (rolling credit) rather than receiving a physical check.

6. Who did Joseph Allan submit his initial records request to on November 22, 2024? Answer: He submitted the request via email to several board members (including the Treasurer, Vice President, and Director) but did not include the property management company.

7. What was the final decision of the Administrative Law Judge regarding Mr. Allan’s petition? Answer: The petition was dismissed because the Petitioner failed to establish that the Association was in possession of records showing how the refund was handled (as the check did not exist).

Essay Prompts for Deeper Exploration

1. Statutory Compliance vs. Physical Existence of Records

Discuss the legal dilemma presented when a member requests a specific type of record (e.g., a check or deposit receipt) that does not exist. Based on the ALJ’s ruling, does an association have an obligation under A.R.S. § 33-1258 to create a record or provide an explanation for a record's absence, or is their duty strictly limited to providing existing documents?

2. Communication Protocols in Homeowners Associations

The Association argued that Mr. Allan’s failure to include the management company in his requests led to delays and missing information. Examine the tension between a member's right to request records from the Board of Directors versus the Association’s preference for requests to go through a "central depository" (the property manager). Should a written rule be required to mandate where requests are sent?

3. Professional Reliance in Association Management

John Calderone testified that board members are not experts in accounting and must rely on property managers and CPAs (Butler Hansen). Analyze the role of "expert reliance" in this case. How did the Association's reliance on a CPA firm to handle IRS communications affect their ability to fulfill the homeowner's document request in a timely manner?

Glossary of Important Terms

A.R.S. § 33-1258: The Arizona statute requiring condominium associations to make financial and other records available to members within ten business days.
Administrative Law Judge (ALJ): An official who presides over an administrative hearing and makes a recommended or final decision.
CP145: An IRS notice of correction mentioned during testimony regarding tax adjustments.
Closing Argument: The final statement made by each party at the end of a hearing to explain why the judge should rule in their favor based on the evidence.
Office of Administrative Hearings (OAH): The agency responsible for conducting independent hearings for various state agencies.
Petitioner: The party who initiates a legal action or petition (in this case, Joseph Allan).
Preponderance of the Evidence: The standard of proof used in civil and administrative cases, meaning the evidence shows that a claim is "more likely than not" to be true.
Respondent: The party against whom a legal action or petition is filed (in this case, The Springs Condominium Association).
Rolling Credit: An accounting practice where a tax refund is not taken as cash but is instead left with the IRS to be applied against future tax obligations.
Under Advisement: A status where a judge takes time to consider the evidence and arguments before issuing a final decision.

The Case of the "Missing" $15,000: Lessons in HOA Transparency and Tax Credits

In the delicate ecosystem of community governance, trust is the currency that keeps a board functioning. When a homeowner—especially a former board member who knows where the proverbial bodies are buried—suspects financial foul play, the results are often explosive. Such was the scene at the Office of Administrative Hearings (OAH) in the case of Joseph Allan v. The Springs Condominium Association.

At the heart of the dispute was a "missing" $15,240 tax refund. Mr. Allan, a diligent critic of the Association’s financials, was convinced the money had been mishandled or hidden by the board. The irony? The Association was using the very CPA firm, Butler & Hansen, that Mr. Allan himself had recommended during his tenure on the board. This case serves as a masterclass in how a misunderstanding of sophisticated tax strategies and a breakdown in communication can lead to costly, unnecessary litigation.

The Petitioner’s Argument: "Where is the Money?"

Mr. Allan’s suspicion began when he reviewed the Association's 2022 tax return (Form 1120), which indicated an overpayment of $15,240. When this "refund" failed to appear as miscellaneous income in the 2023 financial reports or audits, he sounded the alarm. His argument was built on a simple premise: if the IRS owes the Association money, there should be a paper trail of its arrival and deposit.

In his testimony, Mr. Allan sought:

Physical Evidence: Copies of checks, deposit receipts, and specific general ledger entries for the 2022 tax year.
Fiduciary Justification: An explanation as to why the Board would leave $15,000 with the IRS rather than depositing it into a high-yield CD earning roughly 4% interest.
Expanded Inquiry: During the hearing, his suspicion widened to include a state tax refund of $3,656, which he also claimed was unaccounted for in the financial history.

The Association’s Defense: Credits vs. Checks

The Association’s Treasurer, John Caldamone—a volunteer who candidly admitted he was not an accountant by trade—provided the necessary business context. Unlike a standard residential HOA, The Springs is a taxable entity that operates a restaurant on-site and generates rental income. This creates a complex tax liability that most community associations never face.

The Property Manager, Belen Guzman, testified that the $15,000 was not a one-time windfall but a "rolling credit" that the Association had maintained with the IRS for nearly seven years to provide a "cushion" against potential penalties and underpayments.

Perception vs. Financial Reality

Petitioner’s Assumption	Association’s Financial Reality
The IRS sent a $15,240 refund check to the Association in 2022.	The amount was a rolling credit maintained for 7 years to offset high tax risks from restaurant and rental income.
The Board is intentionally withholding copies of the refund check.	No check exists. The IRS actually sent a letter (received the day of the hearing) asking for more information before they would even consider issuing a check.
The money is "missing" because it isn't listed as "Miscellaneous Income."	Because the funds never left the IRS’s possession, they cannot be recorded as cash income or a deposit in the Association's ledger.

The Communication Breakdown: The Management "CC" Conflict

A recurring theme in this dispute was a failure to follow established communication protocols. The Association pointed out that this was the second hearing involving Mr. Allan’s record requests. In a prior Department of Real Estate (DRE) hearing, Mr. Allan had been specifically instructed to include the management company, SSC Property Management, in his formal requests.

Despite this, Mr. Allan continued to email volunteer board members directly, excluding management. As a legal columnist, I often see this: homeowners believe they are going to "the source" by emailing the Board, but the physical "tax file" and financial records reside with the professional manager. By failing to include the manager, Mr. Allan created a lag in response that he interpreted as a cover-up.

The Legal Verdict: Why the Petition was Dismissed

Administrative Law Judge Velva Moses-Thompson dismissed the petition, ruling in favor of the Association. The decision rested on a fundamental interpretation of A.R.S. § 33-1258.

Key Legal Conclusion: An Association’s "right to manage its tax strategy" is distinct from a homeowner's "right to inspect records." Furthermore, the law only requires the production of records in existence. An Association cannot be found in violation for failing to provide a check that was never issued or a deposit slip that was never printed.

The Judge also noted a technical nuance of Arizona OAH hearings: she inquired whether Ms. Guzman was receiving a fee for her representation. Under Arizona Supreme Court rules, a non-attorney (like a property manager) can represent an HOA, but they cannot be paid specifically for that representation unless they are a licensed attorney. This highlighted the Association’s reliance on its volunteers and professional staff to navigate legal hurdles.

Summary of Key Insights for Homeowners and Boards

This case illustrates that transparency is not just about showing the books; it’s about explaining the "why" behind the numbers.

Understand "Rolling Credits": For associations with high-risk tax profiles (like those with commercial income), keeping a credit with the IRS is a legitimate business strategy to avoid penalties.
Verify Document Existence: The "right to inspect" is not a "right to demand the creation of new documents." If the IRS hasn't sent a check, the Board cannot produce one.
Follow the Paper Trail (and the Protocol): Homeowners must include both the Board and Management in requests. As this case showed, a recurring failure to follow protocol can undermine a petitioner's credibility in court.
The Irony of Expertise: Relying on professional CPAs (like Butler & Hansen) provides the Board with a "shield" of professional advice. If the CPA verifies the tax strategy, a homeowner’s disagreement with that strategy rarely constitutes a legal violation.

Closing: Building Trust Through Clarity

The dispute at The Springs was less about a "missing" $15,000 and more about a missing explanation. While the Board was legally vindicated, the time and stress of an administrative hearing could likely have been avoided with proactive financial education. When boards have unique tax liabilities—like a restaurant or rental units—they should over-communicate their tax strategies in annual meetings. Clarity is the best defense against suspicion.

Case Participants

Petitioner Side

Joseph Allan (Petitioner)
Self-represented homeowner

Respondent Side

John Calgamone (Treasurer)
The Springs Condominium Association
Appeared and testified on behalf of the respondent
Belen Guzman (Property Manager)
SSC Property Management
Represented and testified for the Association management
Petri Ahonan (Director / President)
The Springs Condominium Association
Board member mentioned in testimony
Don Simpson (Board Member)
The Springs Condominium Association
Board member mentioned in testimony
Kevin Steffy (Vice President)
The Springs Condominium Association
Board member mentioned in testimony
Tom Commerce (Board Member)
The Springs Condominium Association
Board member mentioned in testimony

Neutral Parties

Velva Moses-Thompson (Administrative Law Judge)
Office of Administrative Hearings
Presiding judge who authored the final decision
Sondra J. Vanella (Administrative Law Judge)
Office of Administrative Hearings
Authored the order granting continuance
Susan Nicolson (Commissioner)
Arizona Department of Real Estate

Virgina Kostman v. Bella Tierra Community Association

Posted on January 9, 2026 by [email protected]

Case Summary

Case ID	25F-H084-REL
Agency	—
Tribunal	—
Decision Date	2026-01-09
Administrative Law Judge	SJV
Outcome	Petitioner's petition is affirmed.
Filing Fees Refunded	—
Civil Penalties	—

Parties & Counsel

Petitioner	Virginia Kostman	Counsel	—
Respondent	Bella Tierra Community Association	Counsel	—

Alleged Violations

No violations listed

Video Overview

Audio Overview

Decision Documents

25F-H084-REL Decision – 1373536.pdf

Uploaded 2026-04-24T12:55:27 (69.4 KB)

25F-H084-REL Decision – 1384451.pdf

Uploaded 2026-04-24T12:55:30 (100.6 KB)

25F-H084-REL Decision – 1392666.pdf

Uploaded 2026-04-24T12:55:33 (45.7 KB)

Administrative Briefing: Kostman v. Bella Tierra Community Association (No. 25F-H084-REL)

Executive Summary

This document provides a comprehensive overview of the administrative hearing and subsequent decision in the matter of Virginia Kostman v. Bella Tierra Community Association. The dispute centered on a $20 delinquency fee assessed against a homeowner following a chaotic transition between property management companies.

The Administrative Law Judge (ALJ) ruled in favor of the Petitioner, Virginia Kostman, finding that the Bella Tierra Community Association (Respondent) violated its own Covenants, Conditions, and Restrictions (CC&Rs) by deeming a payment delinquent when it had been sent to the address provided on the official billing statement. The final order mandated the removal of the delinquency fees and required the Respondent to reimburse the Petitioner’s $500.00 filing fee. Subsequent filings indicate the Respondent has failed to comply with the reimbursement order.

Case Overview

• Petitioner: Virginia Kostman

• Respondent: Bella Tierra Community Association

• Management Entities: Platinum Management, Inc. (former); Agave Management Solutions (current).

• Primary Issue: Violation of CC&R Article 6.9.1 regarding the assessment of delinquency and late fees.

• Docket Number: 25F-H084-REL

• Hearing Date: December 30, 2025

Factual Background and Timeline

The dispute originated from the abrupt closure of the Association’s management firm and subsequent communication failures during the transition.

The Management Transition

• December 2024: Platinum Management, Inc. issued the first quarter 2025 assessment bills, which were due January 1, 2025. The bills directed homeowners to send payments to Platinum’s address.

• December 17, 2024: Platinum Management abruptly ceased operations.

• January 2025: Agave Management Solutions, founded by a former Platinum executive assistant, assumed management duties.

• Early January 2025: Agave mailed notices to homeowners regarding an updated mailing address for payments.

The Payment Conflict

• January 31, 2025: Petitioner initiated a bank bill-pay for the assessment. Because she had already received the December bill directing payment to Platinum, the payment was sent to the old address.

• March 4, 2025: Petitioner received notice from her bank—not the Respondent—that the check had been returned and destroyed due to an incorrect address.

• April 3, 2025: Petitioner attempted to notify the Respondent of the issue via their online portal. The Respondent claimed they did not receive this message because the portal was not yet fully operational.

• June 2025: Respondent assessed two delinquency fees totaling $20.00 to the Petitioner’s account for the “unpaid” January assessment.

• July 2025: Petitioner paid the January assessment a second time to resolve the balance.

Analysis of Arguments

Petitioner’s Position

Virginia Kostman argued that she was never delinquent because she followed the instructions provided on the official billing statement. She characterized the HOA’s actions as a “campaign of harassment” and an “extortion racket,” alleging that the management company knowingly assessed fees on homeowners who were victims of the management company’s own relocation errors.

Key Quotes from Petitioner:

• “I paid that assessment the minute I got the bill on time to the correct address. It’s a misstatement of fact to characterize it as an unpaid bill.”

• “They’ve been doing it knowingly… this was not a mistake. This was done on purpose.”

• “Being delinquent still prevents me from voting for the new HOA board… It is entirely possible they’re just doing this on purpose to keep me from being able to vote.”

Respondent’s Position

The Association, represented by counsel Eric O’Connor and witness Sarah Malovich (CFO of Agave Management), argued that the Petitioner was technically delinquent because the payment was not “received” by the current management by the January 31 deadline. They maintained that the delinquency fees were merely pass-through costs for administrative work (sending letters) and not penalties.

Key Quotes from Respondent Representatives:

• Eric O’Connor: “This case does not involve a refusal to accept the payment, a failure to communicate, or an improper assessment of penalties. It involves a delayed payment made unintentionally… and an association that exercised patience.”

• Sarah Malovich: “A delinquency fee is a fee that is charged to the association when letters have to go out to the homeowners… we add that fee to the homeowner’s account so that when the homeowner pays, the association recoups the money.”

Governing Provisions: CC&R Article 6.9.1

The hearing focused on the interpretation of Article 6.9.1, which states:

• Any assessment not paid within 15 days of the due date is deemed delinquent.

• Delinquent assessments bear interest at 12% per annum.

• The Board may establish a late fee not to exceed $15 or 10% of the unpaid amount.

• Late fees may only be imposed after providing notice to the owner that the assessment is overdue.

Administrative Law Judge’s Findings and Decision

The ALJ, Sondra J. Vanella, concluded that the Petitioner established by a preponderance of the evidence that the Respondent violated the CC&Rs.

Findings of Fact

1. Fault of Respondent: The ALJ found that the lack of receipt was due to the “abrupt change in management companies” and not any error by the Petitioner.

2. Timeliness: Because the Petitioner initiated payment by January 31 (the date the HOA considered payments “past due”), and sent it to the only address she had been officially provided at the time of the bill’s issuance, the payment was considered timely.

3. Communication Failures: The Respondent failed to respond to the Petitioner’s April 2025 email and did not notify her of the missing payment until the April statement. The ALJ noted it was “reasonable for Petitioner to have attempted to communicate via the portal in April 2025.”

Final Order

• Affirmation: The Petition was affirmed.

• Fee Removal: Respondent was ordered to remove the $20.00 in delinquency fees from Petitioner’s account.

• Reimbursement: Respondent was ordered to reimburse Petitioner for the $500.00 filing fee.

• Compliance: Respondent was directed to comply with CC&R Article 6.9.1 moving forward.

Post-Hearing Developments

On February 4, 2026, the Petitioner filed an inquiry with the Office of Administrative Hearings (OAH) stating that the HOA was not responding to her requests for the $500.00 payment ordered by the Judge. The OAH issued a Minute Entry stating it could not provide legal advice or take further action regarding a “writ of execution,” as its jurisdiction ended with the issuance of the final order.

Study Guide: Virginia Kostman v. Bella Tierra Community Association

This study guide provides a comprehensive review of the administrative hearing and subsequent legal decision regarding Case No. 25F-H084-REL. It examines the nuances of community association management, the application of Covenants, Conditions, and Restrictions (CC&Rs), and the procedural mechanics of the Arizona Office of Administrative Hearings.

Part 1: Short-Answer Quiz

Instructions: Answer the following questions in 2-3 sentences based on the provided source context.

1. What specific violation did the Petitioner allege against the Bella Tierra Community Association?

2. How did the timing of Platinum Management’s closure affect the January 2025 assessment payments?

3. What is the legal “burden of proof” in this administrative matter, and who was responsible for meeting it?

4. What was the distinction made by the Respondent’s witness between an “HOA late fee” and a “delinquency fee”?

5. On what date did the Petitioner initiate her bank payment, and why was this date significant to the Respondent’s argument?

6. Why did the Respondent claim they never received the Petitioner’s April 3, 2025, communication?

7. What was the Petitioner’s primary concern regarding her “delinquent” status beyond the $20 fee?

8. What did the Administrative Law Judge (ALJ) determine regarding the responsibility of the management transition?

9. What was the final order regarding the $500 filing fee and the delinquency fees?

10. How did the ALJ respond to the Petitioner’s February 4, 2026, inquiry regarding a “writ of execution”?

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Part 2: Answer Key

1. The Petitioner alleged that the Respondent violated CC&R Article 6.9.1 by failing to deposit her timely assessment payment and subsequently assessing improper delinquency and late fees. She argued that the management company returned her check without notification and refused to communicate for months despite her efforts to resolve the issue.

2. Platinum Management mailed the January 2025 billings in December 2024 but abruptly closed on December 17, 2024, shortly after the invoices were sent. Because the bills contained the old address for Platinum, payments sent by homeowners were returned or destroyed, as the new company, Agave Management, did not have a forwarding system fully in place at that time.

3. The burden of proof was upon the Petitioner, Virginia Kostman, to establish her case by a “preponderance of the evidence.” This standard requires the Petitioner to show that the facts she seeks to prove are more probable than not.

4. Sarah Malovich testified that a late fee is a penalty for delinquent assessments allowed by state statute and CC&Rs, which remains with the association as income. In contrast, a delinquency fee is a “pass-through” cost charged by the management company to the association to cover the expense of sending collection letters.

5. The Petitioner’s bank records showed the payment was initiated on January 31, 2025. The Respondent argued this was untimely because assessments were due January 1, while the ALJ eventually noted that the Association considered payments past due only after January 31, rendering the payment timely.

6. The Respondent claimed the management portal, Vanica, was brand new and not fully operational until April 1, 2025. Sarah Malovich testified that she never received the message and suggested that the transition from using QuickBooks to a formal portal may have caused communication gaps.

7. The Petitioner was concerned that being labeled “delinquent” would strip her of her right to vote during the transition of control from the builder to the homeowners. She argued that the management company was intentionally maintaining her delinquent status to exclude her from participating in the new HOA board elections.

8. The ALJ concluded that it was incumbent upon the Respondent to ensure no interruptions occurred during the management transition. Since the Respondent issued the billing with the Platinum Management address and did not notify residents of the change until January, the failure to receive the payment was not due to any error by the Petitioner.

9. The ALJ affirmed the Petitioner’s petition and ordered the Respondent to reimburse the $500 filing fee. Additionally, the Respondent was ordered to remove the delinquency fees from the Petitioner’s account and comply with CC&R 6.9.1 moving forward.

10. The ALJ issued a Minute Entry stating the office would not consider the inquiry because it was inappropriately sent to the OAH or no further action could be taken. The judge clarified that the Office of Administrative Hearings cannot provide legal advice to litigants.

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Part 3: Essay Questions

Instructions: Use the source materials to develop comprehensive responses to the following prompts. (No answers provided).

1. Systemic Failures in Management Transitions: Analyze how the transition from Platinum Management to Agave Management Solutions created a “perfect storm” of administrative errors. Discuss the responsibilities of a community association to maintain continuity of service and communication during a change in leadership.

2. The Interpretation of CC&R 6.9.1: Examine the language of Article 6.9.1 as provided in the judge’s decision. Evaluate how the specific wording regarding “notice” and “delinquency” applied to the facts of the Kostman case.

3. Good Faith vs. Strict Liability: The Respondent argued they acted in “good faith” and exercised “patience” by waving certain fees, while the Petitioner argued they acted in “bad faith” to prevent her from voting. Compare these two perspectives using evidence from the hearing transcripts.

4. Due Process in Administrative Hearings: Describe the procedural steps of the hearing as outlined by Judge Vanella, including the role of opening statements, witness testimony, cross-examination, and the admission of evidence. How do these procedures ensure a fair outcome for self-represented litigants?

5. Financial and Legal Remediation: Discuss the significance of the ALJ’s final order. Why is the reimbursement of a filing fee sometimes considered a more significant remedy than the removal of the original disputed fees?

——————————————————————————–

Part 4: Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An official who presides over federal or state agency hearings, such as Sondra J. Vanella in this matter.

A.R.S. § 32-2199

The Arizona Revised Statute giving the Department of Real Estate jurisdiction to hear disputes between property owners and community associations.

Covenants, Conditions, and Restrictions; the governing documents that dictate the rules and financial obligations of a planned community.

Delinquency Fee

A fee charged to an association by a management company for the administrative cost of sending past-due notices, often passed through to the homeowner.

Department of Real Estate

The state agency responsible for overseeing real estate licenses and homeowner association disputes in Arizona.

Late Fee

A penalty fee (limited to $15 or 10% of the assessment in this case) charged to an owner for failing to pay an assessment on time.

Minute Entry

A brief written record of a court’s or judge’s decision, order, or direction that does not constitute a full formal opinion.

Office of Administrative Hearings (OAH)

An independent agency authorized to conduct hearings for contested matters arising out of state regulation.

Petitioner

The party who files a petition or complaint; in this case, Virginia Kostman.

Preponderance of the Evidence

The standard of proof in civil cases, meaning the evidence shows that a fact is “more probable than not.”

Respondent

The party against whom a petition or complaint is filed; in this case, Bella Tierra Community Association.

Writ of Execution

A court order granted to put in force a judgment of possession obtained by a plaintiff from a court.

The $20 Fee That Cost $500: A Masterclass in Standing Up to HOA Bureaucracy

1. Introduction: The Homeowner’s Nightmare

Imagine doing everything right: you receive a bill, you mail your payment to the address provided, and you assume the matter is settled. Then, months later, you discover you have been labeled “delinquent.” You try to call; no one answers. You use the company’s own online portal to explain the situation, and your message vanishes into a digital black hole. While you are being ghosted, the fees continue to pile up.

This was the reality for Virginia Kostman, a homeowner in Tucson’s Bella Tierra community. What began as a routine quarterly assessment spiraled into a legal battle over a $20 “delinquency fee.” In a display of sheer investigative grit, Kostman paid a $500 filing fee to take her Homeowners Association (HOA) to the Arizona Office of Administrative Hearings. Her story is more than a dispute over pocket change; it is a masterclass in how to dismantle bureaucratic gaslighting and hold faceless management companies accountable.

2. Takeaway 1: You Aren’t Responsible for “Management Ghosting”

The conflict began during a chaotic shell game between management firms. In late 2024, Platinum Management—the company then representing the community—abruptly closed its doors on December 17th. This was a week after bills were sent but before the January 1st due date, effectively setting a trap for every resident who followed the instructions on their statement.

A “new” firm, Agave Management Solutions, took over in January 2025. Investigative scrutiny reveals the players didn’t actually change: Agave was founded by Jaimie Petty, who had been the executive assistant to the owner of the defunct Platinum Management. Despite this “same players, different name” reality, Agave penalized Kostman because her check arrived at Platinum’s shuttered office. Administrative Law Judge Sondra J. Vanella ruled that the burden of business continuity rests on the HOA, not the resident.

3. Takeaway 2: The “Portal” is a Digital Shield for Incompetence

When Kostman realized her payment hadn’t been processed, she attempted to use Agave’s online portal to resolve the issue. On April 3rd, she sent an email through the site. Agave’s Chief Financial Officer, Sarah Malovich, later testified that the company never received the message because the company was “still getting up and running.”

The investigative “smoking gun” lies in the contradiction of Malovich’s own testimony. She claimed the portal went live on April 1st, yet suggested a message sent two days later on April 3rd vanished because of technical infancy. Agave created a digital black hole, then penalized a homeowner for falling into it. This discrepancy highlights a systemic HOA tactic: using “new technology” as a shield for administrative incompetence while continuing to issue automated delinquency notices.

4. Takeaway 3: “Delinquency” is a Political Tool, Not Just a Financial One

The most alarming revelation from the hearing transcripts is that this $20 fee was a gatekeeping mechanism. The Bella Tierra HOA was transitioning from “builder control” (KB Homes) to homeowner control. Under the community’s governing documents (CC&R 6.9.1), any homeowner labeled as “delinquent” can be barred from voting for the new HOA board.

Kostman’s testimony revealed a struggle for democracy. She feared the Petty family—acting as agents for KB Homes—was using the $20 delinquency status to silence dissent and prevent homeowners from voting them out. This elevates the case from a petty fee dispute to a David vs. Goliath battle over community governance. When an HOA labels you delinquent over a disputed $20, they aren’t just taking your money; they are taking your voice.

5. Takeaway 4: The $500 Gamble for a $20 Injustice

To a casual observer, spending $500 to dispute $20 is a mathematical failure. To a consumer advocate, it is a strategic strike. By paying the filing fee for an Administrative Hearing, Kostman forced the HOA to hire expensive legal counsel and defend their “extortion racket” (as she termed it) in a court of record.

The gamble paid off. Judge Vanella didn’t just order the removal of the $20 delinquency fees; she ordered the HOA to reimburse Kostman for the $500 filing fee. By standing her ground, Kostman turned the tables, making the Association’s predatory administrative practices a net financial loss for them.

6. Takeaway 5: The Court’s Cold Shoulder: When a Win is Just a Piece of Paper

Winning in court is only half the battle; collecting the judgment is the other. A “Minute Entry” filed in February 2026—over a month after the final order—revealed that the HOA had still not paid the $500 reimbursement. When Kostman asked the court how to file a “writ of execution” to force payment, the court’s response was a chilling reminder of the limits of the legal system.

The Judge noted that the court could not provide legal advice and that Kostman’s inquiry “will not be considered.” This is the sobering reality of consumer litigation: even with a signed order from an Administrative Law Judge, a recalcitrant board can remain defiant, leaving the homeowner holding a “paper victory” while the HOA ignores the debt.

7. Conclusion: The Power of the Paper Trail

Virginia Kostman’s victory rested on a single, unassailable fact: she kept the receipts. She produced a bank bill-pay record initiated on January 31st, proving her intent to pay the address provided on the only official bill she had received. Without that digital and paper trail, the management company’s ledger would have been the final word.

In an era of shifting management companies and automated portals that “malfunction” at convenient times, are you keeping the records necessary to protect your home? As this case proves, a $20 fee isn’t always about the money—it’s about control. And as of February 2026, with the HOA still refusing to cut the check, the question remains: are you prepared for the long game required to actually get paid?

Case Participants

Petitioner Side

Virginia Kostman (Petitioner)
Self-represented homeowner

Respondent Side

Eric P. O'Connor (Counsel)
Gordon Rees Scully Mansukhani, LLP
Attorney representing the Bella Tierra Community Association
Sarah Malovich (Witness)
Agave Management Solutions
Chief Financial Officer for the respondent's management company

Neutral Parties

Sondra J. Vanella (Administrative Law Judge)
Office of Administrative Hearings
Presiding judge over the matter

Oren Snir v. Gila Springs Association

Posted on January 6, 2026 by [email protected]

Case Summary

Case ID	25F-H066-REL
Agency	—
Tribunal	—
Decision Date	2026-01-06
Administrative Law Judge	KAA
Outcome	—
Filing Fees Refunded	—
Civil Penalties	—

Parties & Counsel

Petitioner	Oren Snir	Counsel	Pro Se
Respondent	Gila Springs Association	Counsel	Austin Baillio

Alleged Violations

No violations listed

Video Overview

Audio Overview

Decision Documents

25F-H066-REL Decision – 1370774.pdf

Uploaded 2026-04-24T12:52:45 (59.0 KB)

25F-H066-REL Decision – 1383263.pdf

Uploaded 2026-04-24T12:52:49 (132.4 KB)

Case Briefing: Oren Snir v. Gila Springs Association (No. 25F-H066-REL)

Executive Summary

This briefing summarizes the administrative hearing and subsequent decision regarding a dispute between Oren Snir ("Petitioner") and the Gila Springs Association ("Respondent" or "HOA"). The central issue was whether the HOA violated Arizona Revised Statutes (A.R.S.) § 33-1805(A) by failing to provide phone call records requested by the Petitioner.

The Petitioner sought records of a specific telephone conversation between a representative of the HOA’s management company, PMG Services, Inc. ("PMG"), and an incumbent board member. The Petitioner argued that this call constituted an "expression of interest" in a board candidacy and that the resulting call log held by a service provider was a discoverable HOA record, regardless of whether it occurred on a personal device. The Respondent contended that call logs do not meet the statutory definition of an HOA record, were not in the HOA’s possession or control, and that the specific records in question no longer existed.

Administrative Law Judge (ALJ) Kay A. Abramsohn denied the petition, ruling that a telephone call initiated on an employee’s personal device does not automatically become an HOA record. The ALJ further concluded that the HOA had adequately responded to the original request by confirming no documentary forms or emails existed from other candidates.

Detailed Analysis of Key Themes

1. Scope and Definition of "Records of the Association"

A primary point of contention was the interpretation of A.R.S. § 33-1805(A), which requires "all financial and other records of the association" to be made available to members.

Petitioner’s View: Snir argued that the statute is broad and does not distinguish between records kept by the association and those kept on its behalf by third parties (like phone service providers). He posited that if a business-related conversation occurs, the metadata (call logs) generated by the provider is an HOA record.
Respondent’s View: Counsel for the HOA argued that a call log—containing only numbers, times, and durations—cannot be considered an "expression of interest." Furthermore, the HOA maintained that not every action taken by a management agent creates an association record, particularly if the HOA did not request the action or possess the resulting data.

2. Personal Devices and Professional Obligations

The hearing explored the legal intersection of personal technology and corporate records.

The Incident: Former PMG CEO Mary Jo Edel used her personal cell phone to call an incumbent board member (who was hospitalized at the time) to confirm her intent to run for re-election.
The Legal Argument: Snir cited case law (Luney v. State of Arizona) to argue that public records created on personal devices remain public records. He suggested that allowing HOAs to shield records created on personal devices would permit them to circumvent transparency laws.
The Counter-Argument: The HOA argued that under A.R.S. § 33-1805(B)(4), personal records of a vendor's employee are exempt from disclosure. They asserted that the HOA has no contract with the manager's personal cell provider and no authority to compel the production of those records.

3. Possession, Custody, and Control

The Respondent emphasized the "possession, custody, or control" standard for record production.

Access Barriers: Testimony revealed that PMG did not have access to Mary Jo Edel’s personal phone records. Furthermore, Edel testified that she had changed service providers and ported her number multiple times after retiring in May 2025, making records from the period in question (April 2025) inaccessible.
ALJ Finding: The ALJ determined that the HOA only had an obligation to provide what it actually possessed. Since there were no physical candidate forms or emails from the incumbent, the HOA’s statement that it had "nothing to produce" was a valid response.

4. Election Integrity and Selective Enforcement

The underlying motivation for the Petitioner’s request was a concern over the fairness of the 2025 board election.

Deadline Enforcement: Snir suspected that the incumbent board member missed the 5:00 p.m. deadline on March 24, 2025. He sought the call log to verify the exact timing of the "verbal expression of interest."
Relevance Ruling: The ALJ repeatedly cautioned that the hearing was limited to the records request violation and would not determine whether the HOA’s election process was fair or compliant with its own internal rules.

Important Quotes

Context: Petitioner's argument on the nature of digital records.

"The statute doesn't distinguish between records that you requested or not. These are records that were created… It’s a record of that call. The reason that call is an HOA record is for the same reason that any other of the candidates' form submission methods would have been considered an HOA record." — Oren Snir

Context: Respondent's argument regarding the definition of a record.

"The association will prove that those phone records never belong to the association, weren't being held on the association's behalf, and are outside of the scope of what the association retains as part of its record… You can’t produce something that doesn't exist." — Austin Baillio, HOA Counsel

Context: Manager's testimony regarding the nature of the call.

"It was just a verification of, you know, if she wanted to submit a bio or if she just wanted me to put her on as an incumbent because she was already a current board member… The phone call was just, 'Did you want to add a bio or do you want me to add you as an incumbent?'" — Mary Jo Edel, Former PMG CEO

Context: The ALJ’s final conclusion in the written decision.

"The Administrative Law Judge concludes that Petitioner has not met his burden to demonstrate that a telephone call initiated on a personal phone device of an employee of the management company becomes an HOA record by virtue of the employee’s employment status." — ALJ Kay A. Abramsohn

Summary of Findings and Actionable Insights

Findings of Fact

Detail	Fact
Request Date	April 23, 2025
Target Records	Candidate forms or expressions of interest for the April 2025 election.
Key Discovery	Incumbent board member expressed interest via a personal phone call to the manager.
HOA Response	Stated they do not keep phone records and had no documents to provide.
Manager Status	Mary Jo Edel retired May 30, 2025; personal phone records from April were no longer accessible.

Actionable Insights

For Homeowners:
Documentary Focus: Records requests under A.R.S. § 33-1805 are most effective when targeting existing physical or digital documents (emails, forms, ledgers) held by the association or its agents.
Burden of Proof: The petitioner bears the burden of proving that a specific record exists and falls under the statutory definition of an "association record."

For HOA Boards and Management Companies:
Communication Protocols: To avoid transparency disputes, associations should encourage all official business—especially election-related expressions of interest—to be conducted via official channels (email, mail, or fax) rather than personal phone calls.
Clarification of Possession: When denying a records request, clearly stating that a record "does not exist" or is "not in the possession, custody, or control of the association" is a statutorily recognized response, provided it is factually accurate.
Contractual Intellectual Property: Management companies should ensure their contracts clearly define the ownership of operational tools (like internal phone systems and servers) to distinguish vendor property from association records.

Study Guide: Snir v. Gila Springs Association (Case No. 25F-H066-REL)

This study guide provides a comprehensive overview of the administrative hearing and subsequent decision regarding a records request dispute between a homeowner and a planned community association. It analyzes the legal interpretations of Arizona Revised Statutes (A.R.S.) § 33-1805 and the definition of "association records."

Key Concepts and Case Background

1. The Core Dispute

The case centers on a records request made by Petitioner Oren Snir to the Gila Springs Association (managed by PMG Services, Inc.). Snir sought documentary evidence of candidate forms or "expressions of interest" for a 2025 Board of Directors election. When informed that an incumbent board member had expressed interest via a telephone call to a management employee’s personal cell phone, Snir expanded his request to include the phone logs/call records of that specific conversation.

2. Statutory Framework: A.R.S. § 33-1805

A.R.S. § 33-1805(A): Mandates that all financial and other records of an association be made reasonably available for examination by a member or their designated representative. The association has ten business days to fulfill such a request.
A.R.S. § 33-1805(B): Provides specific exceptions where books and records may be withheld from disclosure (e.g., personal records of an individual employee of a vendor, though this was a point of contention in the hearing).

3. The "Association Record" Definition

A central theme of the case is whether a call log generated by a third-party service provider (like Verizon or AT&T) for a personal device used by a vendor's employee constitutes a "record of the association."

Petitioner's Argument: The record was created during the conduct of association business (candidate interest) and is maintained by a service provider on behalf of the user; therefore, the HOA is obligated to obtain it.
Respondent's Argument: The HOA does not have possession, custody, or control over the personal devices or service contracts of its vendors' employees. Furthermore, a call log (showing only time and duration) does not constitute an "expression of interest."

4. Judicial Determination

Administrative Law Judge (ALJ) Kay A. Abramsohn ruled that a telephone call initiated on a personal device of a management company employee does not become an HOA record simply because of that employee's status. The petition was denied.

Timeline of Key Events

Date	Event
March 24, 2025	Deadline (5:00 PM) for board candidates to submit forms/interest.
April 23, 2025	Oren Snir submits initial records request for candidate forms/emails.
April 24, 2025	PMG informs Snir an incumbent "verbally expressed" intent via phone.
April 25, 2025	Snir requests the phone call log as an official HOA record.
June 7, 2025	Snir files a formal petition with the Department of Real Estate.
December 1, 2025	Evidentiary hearing held via Google Meet.
January 6, 2026	ALJ issues Final Decision denying the petition.

Short-Answer Practice Questions

Who are the primary parties in Case No. 25F-H066-REL?

Answer: Petitioner Oren Snir and Respondent Gila Springs Association.

What specific document did the Petitioner request after learning no written form existed for the incumbent candidate?

Answer: The call log/call history/call record of the telephone conversation between the property manager and the incumbent board member.

According to A.R.S. § 33-1805(A), how many business days does an association have to fulfill a records request?

Answer: Ten business days.

What was the Respondent’s primary defense regarding the requested call logs?

Answer: That the association did not have possession, custody, or control of the records, as they were on a personal device and held by a third-party service provider with whom the HOA had no contract.

What was Mary Jo Edel’s role at the time of the disputed phone call?

Answer: She was the President and CEO of PMG Services, Inc. (the management company).

Why did the Petitioner believe the timing of the phone call was critical?

Answer: To determine if the incumbent board member met the March 24, 2025, 5:00 PM business hours deadline to express interest in candidacy.

What was the ALJ’s ultimate finding regarding personal phone devices and HOA records?

Answer: The ALJ concluded that a call on a personal device does not become an HOA record solely due to the employee’s employment status.

Essay Prompts for Deeper Exploration

Statutory Interpretation and Transparency: Analyze the Petitioner’s use of Luney v. State of Arizona and Bradford v. Court of Appeals of Arkansas. How did the Petitioner attempt to bridge the gap between public records (FOIA) and private HOA records? Why did the Respondent argue these cases were inapplicable?
Possession vs. Control: Discuss the legal distinction between a record "held by" an association and a record "held for" an association. If a management company (an agent) uses personal tools to conduct HOA business, should the HOA be held responsible for the retrieval of those records? Support your answer with arguments from both Snir and Baillio.
The Evolution of "Records" in the Digital Age: The Petitioner argued that an email is an HOA record even if it sits on a third-party server (like Gmail or a cloud provider). Explore the implications of the Respondent's counter-argument that phone logs are "intellectual property" or "tools of the trade" for a vendor, rather than association records.

Glossary of Important Terms

Administrative Law Judge (ALJ): An official who presides over an administrative hearing and issues a decision or recommendation (e.g., Kay A. Abramsohn).
A.R.S. § 33-1805: The Arizona statute governing the inspection of records for planned communities.
Association Records: Financial and other documents related to the operation of an HOA that must be made available to members under state law.
Burden of Proof: The obligation of a party to prove their allegations by a "preponderance of the evidence" (the Petitioner in this case).
Call Log: A record maintained by a phone service provider showing the time, duration, and parties involved in a telephone call.
Incumbent: A current holder of a political or board position (in this case, board member "Rhonda").
PMG Services, Inc.: The third-party management company contracted by Gila Springs Association to handle operations.
Preponderance of the Evidence: A legal standard meaning that a claim is "more probably true than not."
Respondent: The party against whom a petition is filed (Gila Springs Association).
Third-Party Vendor: An outside entity (like PMG or a phone service provider) that provides services to the HOA but is not the HOA itself.

The "Personal Phone" Precedent: When is a Call a Public HOA Record?

1. Introduction: The Battle for the Digital Paper Trail

In the modern landscape of community management, the "paper trail" has evolved into a complex digital web that often blurs the line between professional systems and personal devices. This tension reached a legal flashpoint in the case of Oren Snir v. Gila Springs Association (Case No. 25F-H066-REL). At the heart of the dispute was a fundamental question of transparency: If a board member conducts official business via a personal phone call, does the metadata of that call—the call log—become an official HOA record that homeowners have a right to inspect?

As a resident advocate, I see this case as a pivotal moment for community governance. It pits the homeowner’s essential right to election transparency against the practical and legal limits of an association’s control over its vendors' personal equipment.

2. The Trigger: A Disputed Board Election

The conflict began on April 23, 2025, when homeowner Oren Snir submitted a formal records request to the Gila Springs Association. With the board election scheduled for April 28, Snir sought to verify the eligibility of candidates by reviewing all "expressions of interest" submitted to the management company, PMG Services (PMG).

The HOA’s response ignited the controversy. While Snir had submitted a formal written candidate form, the association revealed that the only other candidate, an incumbent named Rhonda, had not submitted a written document. Instead, she had "verbally expressed her intent to re-run during a telephone conversation" with PMG’s then-President, Mary Jo Edel.

THE DISPUTED RECORD To verify the timing and validity of this verbal submission, the Petitioner requested the "call log / call history / call record" of the specific phone conversation between the management company and the incumbent candidate.

3. Petitioner’s Case: The "Plain Meaning" of Transparency

During the hearing on December 1, 2025, Oren Snir argued that the HOA was utilizing technicalities to bypass statutory transparency requirements. Utilizing the "Plain Meaning Rule" of statutory interpretation, he argued that A.R.S. § 33-1805(A) dictates that "all financial and other records" be made available.

His core arguments included:

The "Email Analogy": Snir pointed out that HOAs rarely own the physical servers where emails are stored (relying on third-party providers like Gmail or Outlook), yet they are legally required to produce those emails. He argued that records held "on behalf of" the HOA by third parties—including phone service providers—should be treated the same.
The "Business Use" Argument: Snir asserted that because the call involved a candidate’s intent to run for the board, the call was strictly HOA business. Therefore, any metadata generated by that call was an HOA record, regardless of the device used.
Case Law Precedent: Snir cited Lunney v. State of Arizona (an Arizona Court of Appeals case) and Bradford v. Director (an Arkansas case), arguing that business conducted over private communication mediums remains subject to transparency laws.

4. The HOA’s Defense: Possession, Custody, and Control

The HOA’s counsel, Austin Baillio, argued that the association could not be compelled to produce what it did not legally possess. The defense relied heavily on the testimony of PMG managers Melissa Jordan and Mary Jo Edel to establish a boundary between association property and vendor property.

Issue	Petitioner's Claim	HOA’s Reality/Defense
Control of Equipment	Personal devices used for business generate HOA records.	The HOA does not own or provide the personal phones of PMG employees.
Contractual Authority	The HOA should obtain records from the provider.	The HOA has no contract with Verizon or other providers and no authority to demand personal logs.
Intellectual Property	All communication is HOA business.	PMG’s contract includes an Intellectual Property Clause stating PMG owns its own phone systems and server data.
Existence of Records	The call log is a responsive record of "interest."	A call log only shows duration/timing, not "intent." Furthermore, records were lost after Edel retired (May 30, 2025) and "ported" her number.

5. Behind the Scenes: The "Hospital Phone Call"

The testimony of Mary Jo Edel provided critical context that shifted the narrative of the "secret" phone call. Edel testified that she initiated the call to Rhonda, who was in the hospital at the time.

Significantly, Edel clarified that this was not a last-minute scramble to bypass a deadline. Rhonda had already expressed her intent to run during an open board meeting in January. The phone call was merely an administrative follow-up to confirm whether Rhonda wanted to submit a new biography or simply be listed as an "incumbent" on the ballot. Edel confirmed the call occurred during business hours, undermining the Petitioner's suspicion of a rule-breaking event or a missed deadline.

6. The Verdict: Why the Judge Denied the Petition

On January 6, 2026, Administrative Law Judge Kay A. Abramsohn issued a decision denying Snir’s petition. Applying the "Preponderance of Evidence" standard, the judge found that the HOA had not violated its statutory duties.

The ruling rested on two primary legal pillars:

Timely Response: The HOA complied with the law by informing Snir within one business day that no other documentary candidate forms or emails existed.
Statutory Exceptions: The Judge ruled that a phone call on an employee's personal device does not automatically become an HOA record. Crucially, the decision pointed to A.R.S. § 33-1805(B)(4), which specifically excludes the "personal records of an individual employee of a vendor of the association" from public inspection.

The ruling cited the following statutes:

A.R.S. § 33-1805(A): The general requirement to provide association records.
A.R.S. § 33-1805(B): The definitions of records that may be withheld.
A.R.S. § 33-1805(B)(4): The specific protection for vendor employee records.

7. Key Takeaways for Homeowners and Boards

This case establishes a significant boundary for HOA transparency in the digital age.

The "Device" Divide and the Reality of Turnover While Snir's "Email Analogy" was clever, the legal reality is that management companies are separate legal entities. Their private tools are not "Association Records" by default. This is exacerbated by vendor turnover; Mary Jo Edel testified she "ported" her number three times after retiring, meaning that even if the HOA wanted to comply, the data was physically inaccessible. When a vendor leaves, the paper trail often goes with them.

Written vs. Verbal Requirements This dispute was fueled by the lack of a paper trail. To protect the community, HOAs should adopt rules requiring all candidate submissions to be in writing via specific methods (email, fax, or mail). If the bylaws allow for verbal "expressions of interest," the association invites challenges regarding deadlines and favoritism.

The Limits of Possession An HOA is only required to produce records within its "possession, custody, or control." As a Legal Analyst’s Note, this case confirms that homeowners cannot compel an HOA to subpoena a manager's personal Verizon bill or private phone logs.

8. Conclusion: The Future of HOA Transparency

Judge Abramsohn’s decision emphasizes the "Fair and Sensible Result" doctrine of statutory interpretation. This doctrine ensures that laws are not interpreted in a way that leads to "absurd" results—such as requiring a volunteer HOA board to seize the personal property of a third-party contractor.

While transparency is the lifeblood of a healthy HOA, the court has drawn a firm line at the digital boundary of personal devices. For homeowners, this case serves as a reminder that "records" are defined by law and contract, not just by the nature of the conversation. For management staff, it reinforces a layer of digital privacy that remains intact, even when conducting association business.

Case Participants

Petitioner Side

Oren Snir (Petitioner)

Respondent Side

George H. King (Board President)
Gila Springs Association
Austin Baillio (Counsel)
Gila Springs Association
Melissa Jordan (Managing Agent)
PMG
Mary Joe Edel (Owner / Property Manager)
PMG
Spelled 'Adele' in the transcript but 'Edel' in the final decision document.
Maggie Story (Employee)
PMG
Rhonda (Incumbent Board Member)
Gila Springs Association

Neutral Parties

Nicole Robinson (Administrative Law Judge)
Office of Administrative Hearings
Issued scheduling order
Kay A. Abramsohn (Administrative Law Judge)
Office of Administrative Hearings
Presiding judge for the hearing and final decision
Susan Nicolson (Commissioner)
Arizona Department of Real Estate

Barbara Kunkel v. Agua Dulce Homeowners Association

Posted on December 8, 2025 by [email protected]

Case Summary

Case ID	25F-H074-REL
Agency	Arizona Department of Real Estate
Tribunal	—
Decision Date	2025-12-08
Administrative Law Judge	ADS
Outcome	Petitioner's petition is denied.
Filing Fees Refunded	—
Civil Penalties	—

Parties & Counsel

Petitioner	Barbara Kunkel	Counsel	Pro Se
Respondent	Agua Dulce Homeowners Association	Counsel	Sean K. Moynihan, Esq.

Alleged Violations

No violations listed

Video Overview

Audio Overview

Decision Documents

25F-H074-REL Decision – 1363718.pdf

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25F-H074-REL Decision – 1363721.pdf

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25F-H074-REL Decision – 1363722.pdf

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25F-H074-REL Decision – 1363723.pdf

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25F-H074-REL Decision – 1363728.pdf

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25F-H074-REL Decision – 1364435.pdf

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25F-H074-REL Decision – 1364438.pdf

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25F-H074-REL Decision – 1364440.pdf

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25F-H074-REL Decision – 1364441.pdf

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25F-H074-REL Decision – 1364442.pdf

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Briefing Document: Kunkel v. Agua Dulce Homeowners Association (No. 25F-H074-REL)

Executive Summary

This document provides a comprehensive analysis of the legal and administrative dispute between Petitioner Barbara Kunkel, former President of the Agua Dulce Homeowners Association (HOA), and the Association itself. The conflict centered on a recall effort initiated against Kunkel in mid-2025 and her subsequent allegations that the Association violated Arizona Revised Statute (A.R.S.) § 33-1805 by failing to fulfill a formal records request.

The core of the dispute involved a disagreement over the timeline of the recall process—specifically, when the management company, Cadden Community Management, received the signed recall petition. Kunkel sought internal communications and metadata to prove a receipt date that would invalidate the recall meeting timing under A.R.S. § 33-1813. The Association, represented by legal counsel Sean K. Moynihan, argued that the records requested either did not exist or were never in the Association’s possession, particularly during a turbulent transition between management companies.

On December 8, 2025, Administrative Law Judge (ALJ) Adam D. Stone denied Kunkel’s petition, concluding that while she may not have received the records, she failed to prove they were in the Association’s possession at the time of the request and was ultimately a "victim of bad timing" due to a management transition.

Context and Core Conflict: The Recall Petition

In May 2025, members of the Agua Dulce HOA initiated a petition to recall Barbara Kunkel from her position as Director/President. The petition alleged several specific grievances regarding her leadership since the board's term began in 2025:

Violations of Member Rights: Abuse of power and holding illegal organizational meetings.
Financial Mismanagement: Incurring unauthorized legal expenses.
Lack of Transparency: Disseminating false information regarding Cadden Community Management and providing inaccurate information at board meetings.
Information Withholding: Failing to provide financial information during the management search process.

Petition Signatories and Scope

The petition process involved a substantial portion of the community. A master list identifies 102 homeowners who signed the petition, representing streets such as Banner Mine Drive, Robert Daru Drive, Corgett Wash Court, and Winter Wash Drive. Signatures were collected and dated between May 27 and May 31, 2025.

Detailed Analysis of Key Themes

1. The Statutory Framework (A.R.S. § 33-1805 and § 33-1813)

The legal dispute rested on two primary Arizona statutes:

A.R.S. § 33-1805: Mandates that all financial and other records of an association be made reasonably available for examination by members within 10 business days of a written request.
A.R.S. § 33-1813: Dictates the recall process. Specifically, once a valid petition is received, a special meeting must be called and held within 30 days. If the meeting is not held within this window, the board member is deemed removed by operation of law.

2. The Timeline and Receipt Controversy

A central point of contention was the exact date the Association (via Cadden Management) received the petition.

Kunkel's Argument: Petitioner argued that metadata and notations (regarding owner fine balances) suggested Cadden possessed the petition materials by June 2, 2025. If true, the 30-day deadline for the special meeting was July 2, 2025. Since the meeting occurred on July 3, 2025, Kunkel argued the process was procedurally flawed.
Association's Defense: Counsel Sean Moynihan argued the petition could not have been received on May 29 (as Kunkel initially suggested) because the final signature was not collected until May 31, 2025. The Association maintained official receipt occurred on June 5, 2025, making the July 3 meeting timely.

3. Management Transition Challenges

The dispute was complicated by the Association switching management companies from Cadden Community Management to Sienna Community Management on July 1, 2025.

Records Custody: Sienna's manager, Jena Carpenter, testified that obtaining records from Cadden was "challenging."
The "Gap" in Possession: The Association argued it could not produce emails or timestamped receipts held by Cadden that were never transferred to Sienna or the Board. Moynihan emphasized that A.R.S. § 33-1805 only applies to records actually in the Association’s possession.

Chronology of Key Events (2025)

Date	Event
May 27–31	Signatures collected for the recall of Barbara Kunkel.
June 2	Metadata suggests Cadden Management was processing petition-related data.
June 5	Association counsel claims official receipt of the petition.
June 10	Sean Moynihan emails the petition to Kunkel, advising her to resign "as soon as possible."
June 25	Kunkel submits the first official records request for the petition receipt proof.
June 26	Kunkel expands the request to include all emails between Cadden and homeowners regarding the recall.
July 1	Sienna Community Management officially takes over from Cadden.
July 3	Special meeting held; recall of Kunkel proceeds.
July 7	Kunkel issues a Statutory Violation Notice for unfulfilled records.
July 21	Kunkel files a petition with the Arizona Department of Real Estate (ADRE).
Nov 21	OAH Evidentiary Hearing held (Docket 25F-H074-REL).
Dec 8	ALJ Adam D. Stone issues a decision denying Kunkel's petition.

Important Quotes with Context

On the Records Request Dispute

"I have been forced to independently research metadata to determine internal document handling… Cadden Community Management never notified the Board of the petition’s receipt." — Barbara Kunkel (July 7, 2025, email to the Board). Context: Kunkel expressing frustration that the management company she oversaw as President appeared to be withholding information from her regarding the effort to remove her.

On the Legal Obligation of the HOA

"Section 33-1805 contains no language allowing the Association to refuse production because responsive records are 'held by a prior management company.'… The duty is on the Association." — Barbara Kunkel (OAH Submission, Nov 2, 2025). Context: Kunkel's legal argument that a change in management does not absolve the HOA of its statutory duty to provide records.

On the Non-Existence of Records

"Miss Kungle is asking for records that do not exist or if they do exist, they never came into the association's possession… the association had no obligation to make records it does not have reasonably available." — Sean K. Moynihan (Hearing Testimony, Nov 21, 2025). Context: The Association's core defense that they cannot be held in violation for failing to provide documents they never received from the outgoing management firm.

The Judge's Conclusion

"Unfortunately for Petitioner, she was simply the victim of bad timing… This may not be the Association’s fault if Cadden was uncooperative in disclosing the documents to Sienna and/or the Association." — Judge Adam D. Stone (Findings of Fact, Dec 8, 2025). Context: The final ruling determining that a statutory violation did not occur because there was no proof the Association willfully withheld records it possessed.

Actionable Insights

For Homeowners Associations

Management Transitions: Ensure that "books and records" transfer clauses in management contracts are robust. The transition from Cadden to Sienna created a "black hole" of documentation that led to costly litigation.
Receipt Protocols: Standard industry protocol, as noted by Jena Carpenter, includes date-stamping all incoming materials and maintaining a sign-in sheet. Implementing these practices consistently can prevent timeline disputes.
Records Retention: A.R.S. § 33-1813(G) requires the board to retain all records related to a recall. Associations must ensure these specific records are sequestered and accessible even during management changes.

For Members Initiating Recalls

Proof of Delivery: When submitting a recall petition, members should use certified mail or obtain a signed, date-stamped receipt from the management company or board to establish an indisputable 30-day timeline.
Scope of Requests: Records requests under § 33-1805 should be specific. While Kunkel’s request was deemed "proper," her inability to prove the records existed within the Association's current files led to the dismissal of her case.

Study Guide: Kunkel v. Agua Dulce Homeowners Association

This study guide provides a comprehensive overview of the legal dispute between Barbara Kunkel and the Agua Dulce Homeowners Association (HOA), specifically regarding records requests and statutory compliance during a board recall process.

I. Key Concepts and Case Background

1. Statutory Framework for Planned Communities

The dispute is governed primarily by the Arizona Revised Statutes (A.R.S.) Title 33, Chapter 16, Article 1. Two specific statutes are central to the case:

A.R.S. § 33-1805: Governs the inspection of financial and other records of an association. It requires associations to make records available within 10 business days of a written request.
A.R.S. § 33-1813: Outlines the procedure for the removal of a board member (recall). This includes specific timelines for calling a special meeting (30 days) and requirements for retaining recall-related records for inspection.

2. The Nature of the Dispute

The petitioner, Barbara Kunkel (former President of the Agua Dulce HOA), filed a petition alleging that the Association violated A.R.S. § 33-1805 by failing to fulfill a records request submitted on June 25 and 26, 2025. The records requested included:

Documentation showing the exact time and date Cadden Community Management received the recall petition.
Copies of all emails between management (Cadden) and homeowners regarding the recall.

3. The Management Transition Factor

A significant complicating factor in this case was the transition between property management companies. Cadden Community Management served the association until June 30, 2025, and Sienna Community Management took over on July 1, 2025. The Association argued that many of the requested records (specifically internal Cadden emails or logs) were never in the actual possession of the Association or the successor management company.

4. Judicial Outcome

The Office of Administrative Hearings (OAH) in Docket No. 25F-H074-REL issued a decision on December 8, 2025. Administrative Law Judge Adam D. Stone denied Kunkel's petition, finding that she did not meet the burden of proof to show that the specific documents requested existed and were being improperly withheld by the Association.

II. Short-Answer Practice Questions

1. According to A.R.S. § 33-1805, how many business days does an association have to provide copies of requested records? Answer: Ten business days.

2. What was the specific date of the "Unfulfilled Records Request – Statutory Violation Notice" sent by Barbara Kunkel? Answer: July 7, 2025.

3. What evidence did Barbara Kunkel cite to suggest the management company had possession of the petition earlier than acknowledged? Answer: Metadata and internal document annotations (specifically highlights made by "JoseB") showing activity on June 2, 2025, and May 30, 2025.

4. Why did the Association’s counsel argue that the requested emails were "not association records"? Answer: Counsel argued that if the management company (Cadden) was working with homeowners "behind the association's back," those communications were records of Cadden, not the Association, and were never in the Association's possession.

5. What is the maximum fee per page an association may charge for making copies of records under A.R.S. § 33-1805? Answer: Fifteen cents per page.

6. Who was the Community Manager from Sienna Community Management who testified at the hearing? Answer: Jena Carpenter.

7. What was the Association’s primary legal defense regarding the failure to produce a "timestamped receipt" of the petition? Answer: The Association argued that no such document was ever created or received by them, and they are not required to create a record that does not exist.

8. What was the result of the Administrative Law Judge's decision regarding the civil penalty and filing fee? Answer: Both the request for a civil penalty and the request for reimbursement of the $500 filing fee were denied.

III. Essay Prompts for Deeper Exploration

1. The Burden of Proof in Administrative Hearings Analyze the Administrative Law Judge's finding that the Petitioner failed to meet her burden of proof. Discuss the challenges a member faces when requesting records that a management company claims do not exist or were never transferred during a transition. How does the "preponderance of the evidence" standard apply to internal metadata versus formal management denials?

2. Agency and Responsibility in HOA Management Explore the legal relationship between an HOA Board and its management company as presented in the transcript. If a management company (an agent) receives a petition or conducts business related to the HOA, under what circumstances do those documents officially become "Association records"? Use the arguments from Sean Moynihan and Barbara Kunkel to contrast the "agent vs. entity" perspectives.

3. Statutory Protection and Exceptions Examine A.R.S. § 33-1805(B). Discuss the categories of records that an Association is legally permitted to withhold. Based on the source context, why did Kunkel argue her request was "narrowly focused" to avoid these exceptions, and why did the Association still fail to provide the documents?

IV. Glossary of Important Terms

Term	Definition
A.R.S. § 33-1805	The Arizona statute requiring planned community associations to make financial and other records available to members within 10 business days.
A.R.S. § 33-1813	The Arizona statute governing the removal of board members (recall), including meeting timelines and record-keeping duties.
ADRE	Arizona Department of Real Estate; the state agency authorized to receive and decide petitions from HOA members.
Cadden Community Management	The management company that handled the Agua Dulce HOA affairs during the initial collection and receipt of the recall petition.
JoseB (Jose Becerra)	A Cadden representative whose metadata and highlights on the petition list were used as evidence regarding the receipt date of the recall materials.
OAH	Office of Administrative Hearings; the independent agency that conducts evidentiary hearings for the ADRE.
Planned Community	A real estate development (like Agua Dulce) where members are subject to CC&Rs and mandatory HOA membership.
Preponderance of the Evidence	The legal standard of proof required in this case, meaning the evidence shows a contention is "more probably true than not."
Prima Facie Evidence	Evidence that is sufficient to establish a fact or raise a presumption unless disproved or rebutted.
Sienna Community Management	The successor management company that took over the Agua Dulce HOA account on July 1, 2025.
Special Meeting	A meeting called specifically for the purpose of voting on the removal of a board member.

The Metadata Mystery: A Deep Dive into the Agua Dulce HOA Records Dispute

1. Introduction: The High Stakes of Homeowner Association Governance

In the high-pressure world of Arizona planned communities, the difference between a valid leadership transition and a legal quagmire often comes down to a single date on a calendar. For the Agua Dulce Homeowners Association in Tucson, the summer of 2025 became a masterclass in the technicalities of transparency. What began as a contentious effort to recall Association President Barbara Kunkel quickly devolved into a sophisticated legal battle over "behind-the-scenes" metadata and the definition of an official Association record.

At the heart of the dispute brought before the Arizona Office of Administrative Hearings (OAH) was a fundamental question: Did the Association violate A.R.S. § 33-1805 by failing to produce internal management emails and timestamped receipts? As the case unfolded, it revealed how a poorly timed management transition can create a "transparency gap" that even the most forensic records request might struggle to bridge.

2. The Timeline of a Recall: May–July 2025

The core of the litigation hinged on the "receipt date" of the recall petition. This date is not merely administrative; under A.R.S. § 33-1813(C), it triggers a strict 30-day statutory clock. If a board fails to hold a recall meeting within that window, the directors are deemed removed by operation of law.

The Disputed Timeline

Event	Petitioner’s Claim (Kunkel)	Respondent’s Claim (HOA/Management)
Receipt of Petition	Claimed receipt on May 29, 2025.	Formally received Friday afternoon, June 6, 2025.
Internal Handling	PDF metadata shows "JoseB" (Jose Becerra of Cadden Management) annotating delinquency statuses on May 30 and June 2.	Internal management work by Cadden did not constitute official Board possession until the final packet was transmitted on June 6.
30-Day Deadline	Calculated from May 29, the deadline was June 28. The July 3 meeting was therefore illegal.	Calculated from June 6, the July 3 meeting fell within the valid 30-day window.

The Legal Consequence: Had Kunkel proven the May 29 receipt date, the Board would have been removed automatically on June 29 for failing to hold the meeting in time. However, a "smoking gun" signature proved fatal to this claim: the final signature on the petition (Mark Unis) was dated May 31, 2025, making a May 29 delivery of the completed petition logically impossible.

3. The Legal Core: Understanding A.R.S. § 33-1805 and § 33-1813(G)

Kunkel argued that the Association’s failure to provide internal emails and receipts violated two distinct statutory mandates. While § 33-1805 provides the general framework for records, Kunkel contended that A.R.S. § 33-1813(G) creates a higher, specific duty to "retain and make available… all business and other records of the association" related to a recall.

Member Rights & Board Obligations under § 33-1805:

10-Day Rule: The Association must fulfill a request to examine records within 10 business days.
Copy Requirements: Copies must be provided within 10 business days of a purchase request, with fees capped at $0.15 per page.
Broad Access: All "financial and other records" must be made reasonably available unless a specific exception applies.

Statutory Exceptions (Records that may be withheld):

Attorney-client privileged communications.
Records regarding pending litigation.
Minutes from executive sessions.
Personal, health, or financial records of individual members or employees.
Employee job performance records or specific personnel complaints.

4. The Management Muddle: Cadden vs. Sienna

The dispute was exacerbated by what Administrative Law Judge Adam D. Stone called "bad timing." On July 1, 2025, the Association transitioned from Cadden Community Management to Sienna Community Management. This hand-off created a significant administrative hurdle.

Jena Carpenter, Sienna’s Community Manager, testified that the transition was "challenging." While Sienna attempted to secure all historical documents, she noted that Cadden’s records were sometimes "filed oddly" or appeared incomplete. The Association’s defense relied on the fact that if internal "surreptitious" emails or timestamped receipts existed within Cadden’s private servers, they never entered the constructive possession of the Board or the new management team, and thus could not be produced.

5. Inside the Hearing: The November 21st Virtual Showdown

The November 21st hearing was a technical battle over the definition of an "Association Record."

Barbara Kunkel’s Argument: Kunkel used forensic metadata to show that Jose Becerra (Cadden) was highlighting owner names as "over 30" or "over 90" days delinquent as early as May 30, 2025. She argued this proved the management company—and by extension the Board—possessed the records. She demanded the "behind the scenes" emails between management and homeowners to verify the true timeline.
Sean Moynihan’s Defense: Representing the HOA, Moynihan argued that internal management emails and un-transmitted receipts do not automatically become "Association records" under § 33-1805. He maintained that the Association cannot be held in violation for failing to produce documents that were never in its possession during the transition. He emphasized that the Board cannot produce what it does not have.

6. The Verdict: Why the Judge Ruled for the HOA

On December 8, 2025, Judge Stone issued a decision denying Kunkel’s petition. The ruling hinged on the high bar for homeowners in administrative court.

The "Preponderance of the Evidence" Burden In OAH hearings, the Petitioner bears the burden of proof. They must show it is "more probably true than not" that a violation occurred. Judge Stone ruled that while Kunkel showed that a file was modified early by a manager, she failed to provide "persuasive evidence" that a completed, signed petition—or the requested emails—ever existed in the Association’s actual possession.

The judge concluded that Kunkel was a "victim of bad timing." Because the Association changed management companies during the request window, and because there was no proof the Board was hiding documents it actually held, the HOA was found to be in compliance.

7. Key Takeaways for Homeowners and HOA Boards

This case serves as a vital roadmap for navigating records disputes and management transitions.

The Necessity of a "Certified Records Transfer": When changing management companies, Boards should not assume all records are transferred. A certified audit and digital archive transfer are essential to ensure the Association retains "possession" of its history and avoids "bad timing" defenses.
Internal Manager Notes vs. Association Records: Homeowners should recognize that internal management company emails and draft notes may not legally qualify as "Association records" until they are officially transmitted to the Board.
The Metadata Trap: Metadata can show when a file was touched, but it cannot always prove what was in the file. Kunkel’s metadata showed work was being done, but the May 31 signature date on the petition itself was the more "dispositive" evidence.
Strict Adherence to Receipt Logs: To avoid claims of removal by "operation of law," Boards should adopt Sienna’s policy: use sign-in sheets and physical date-stamps for every document received to create an unassailable paper trail.

8. Conclusion

The Agua Dulce dispute highlights the fragile nature of transparency in planned communities. While the Association was cleared of statutory violations, the "metadata mystery" underscores the need for absolute clarity in record-keeping. In the gap between one management company’s departure and another’s arrival, transparency often suffers. For Boards, the lesson is clear: rigorous document logging is the only defense against the confusion of a community in transition.

Case Participants

Petitioner Side

Barbara Kunkel (Petitioner)
Agua Dulce Homeowners Association
Former President of the board and property owner filing the petition

Respondent Side

Sean K. Moynihan (Counsel for Respondent)
SMITH + WAMSLEY
Attorney representing the Agua Dulce Homeowners Association
Jena Carpenter (Witness / Community Manager)
Sienna Community Management
Testified regarding the management company transition and records possession

Neutral Parties

Adam D. Stone (Administrative Law Judge)
Office of Administrative Hearings
Presiding judge who authored the decision
Susan Nicolson (Commissioner)
Arizona Department of Real Estate
Copied on tribunal orders and final decision

Scott D Haferkamp v Artisan Parkview Condominium Association, INC.

Posted on December 6, 2025 by [email protected]

Case Summary

Case ID	25F-H047-REL
Agency	—
Tribunal	Arizona Office of Administrative Hearings
Decision Date	12/6/2025
Administrative Law Judge	KAA
Outcome	Petition Denied
Filing Fees Refunded	—
Civil Penalties	—

Parties & Counsel

Petitioner	Scott D. Haferkamp	Counsel	Pro Se
Respondent	Artisan Parkview Condominium Association, Inc.	Counsel	Daniel S. Francom

Alleged Violations

No violations listed

Video Overview

Audio Overview

Decision Documents

25F-H047-REL Decision – 1341015.pdf

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25F-H047-REL Decision – 1346232.pdf

Uploaded 2026-04-24T12:46:00 (48.2 KB)

25F-H047-REL Decision – 1375556.pdf

Uploaded 2026-04-24T12:46:18 (130.9 KB)

Briefing Document: Scott D. Haferkamp v. Artisan Parkview Condominium Association, Inc.

Executive Summary

This document summarizes the administrative proceedings and final decision in Case No. 25F-H047-REL, heard before the Arizona Office of Administrative Hearings (OAH). The dispute involved Scott D. Haferkamp (Petitioner) and the Artisan Parkview Condominium Association, Inc. (Respondent or HOA).

The core of the conflict centered on the Petitioner's attempts to install solar panels and battery backup systems at his condominium unit, which the HOA repeatedly denied. The Petitioner sought relief through a formal petition filed with the Arizona Department of Real Estate (ADRE), alleging that the HOA failed to act on a homeowner petition from 2015 and failed to provide specific guidelines for solar technology, thereby creating a de facto ban on state-protected technology (A.R.S. § 33-439).

On December 6, 2025, Administrative Law Judge Kay A. Abramsohn issued a decision in favor of the HOA. The Tribunal concluded that the Petitioner failed to prove that the HOA violated its governing documents. The Judge ruled that the HOA board has the discretion to call special meetings and that the board's decision to address solar issues at a regular meeting rather than calling a special membership meeting did not constitute a violation of the Bylaws.

Detailed Analysis of Key Themes

1. Interpretation of HOA Bylaws and Board Discretion

A primary point of contention was the interpretation of Bylaws Section 2.2, which governs the calling of special membership meetings.

Petitioner's Argument: The Petitioner collected signatures from 25% of the homeowners, believing this mandated a special meeting to vote on solar guidelines. He argued that the HOA’s failure to hold such a meeting was a procedural violation.
Respondent's Argument: The HOA argued that the language of Section 2.2 ("Special meetings… may be called") is discretionary, not mandatory. They further contended that rule-making regarding solar guidelines is a Board function under Section 3.10, not a membership function.
Tribunal Finding: The Judge agreed with the Respondent, noting that the Bylaws grant the HOA discretion. By placing the solar issue on a regular board meeting agenda in September 2015, the HOA "implicitly declined" to call a special meeting.

2. Common Elements and Architectural Control

The HOA consistently justified its denials of solar applications by citing the preservation of "common elements."

Roof and Exterior Walls: The HOA asserted that the roofs and exterior walls are common elements collectively owned by the association.
Structural Integrity: The Board President, Tim Pollock, testified that solar installations would involve puncturing the common roof, potentially voiding warranties and creating maintenance complications.
Uniformity and Character: The HOA argued that its duty includes protecting the uniform appearance and character of the community, which consists of 35 units in separate buildings.

3. State Law and "De Facto" Bans

The Petitioner alleged a violation of A.R.S. § 33-439, which protects the right of homeowners to use solar energy devices.

Petitioner Position: He claimed the HOA had enacted a "de facto ban" by denying three separate applications over 11 years without providing alternative solutions or clear guidelines.
HOA Position: The Board stated their decisions were not an "absolute ban" but were based on the unique constraints of a condominium where the infrastructure is shared. They claimed they remained open to alternative designs that did not encroach on shared areas.

4. Statute of Limitations and Procedural Laches

The HOA’s legal counsel raised a significant procedural defense regarding the age of the dispute.

Historical Claims: The primary homeowner petition in question was from 2015. The HOA argued that any claim regarding a failure to hold a meeting in 2015 was time-barred by Arizona’s statute of limitations (A.R.S. § 12-548 or 12-550).
Ongoing Controversy: The Petitioner argued the issue was ongoing because his solar applications continued to be denied as recently as 2025.

Key Quotes with Context

Quote	Speaker	Context
"I think that in general they've kind of enacted a de facto ban on a state protected technology."	Scott D. Haferkamp	During the pre-hearing conference, explaining his frustration with the HOA's lack of solar guidelines.
"A petition has to be narrowed down to you are alleging a specific violation of a particular statute or provision in the HOA declaration or CCNRs."	Judge Kay A. Abramsohn	Instructing the Petitioner on the necessity of specificity in administrative hearings.
"The Board’s decision does not constitute an absolute ban on solar devices. Rather, it reflects the unique constraints of a condominium in which the roofs and walls are collectively owned."	HOA Board (Letter)	Cited in the final decision as the justification for denying the Petitioner's February 2025 solar application.
"The Bylaws do not call for members to vote on amendments to Board rules or guidelines, and that members cannot force the Board to take action."	Daniel S. Francom (HOA Counsel)	Argument made during the hearing to differentiate between Board powers and Member powers.
"I have never seen that petition until yesterday when that was presented to me from Dan [HOA Counsel]."	Tim Pollock (HOA President)	Testifying under oath that he had no recollection of seeing the homeowner petition from 2015 until the current litigation began.

Chronology of Solar Applications and Denials

Date	Event	Outcome
Sept 2014	First Solar Panel Application submitted by Petitioner.	Denied (Sept 26, 2014).
Sept 2015	Petitioner submits homeowner petition with 12 signatures (25%).	Discussed at Board meeting; no special meeting called.
Aug 2024	Application for Tesla battery backup installation.	Denied (Oct 4, 2024).
Feb 2025	Application for combined solar panels and battery backup.	Denied (March 4, 2025).
March 2025	Formal Petition filed with ADRE.	Case referred to OAH.
Dec 2025	Final Administrative Law Judge Decision.	Petition Denied; HOA prevailing party.

Actionable Insights

Based on the Tribunal's findings and the conduct of the case, the following insights are derived from the record:

Clarity of Governing Documents: Boards and homeowners must distinguish between mandatory actions (e.g., "shall") and discretionary actions (e.g., "may"). In this case, the word "may" in the Bylaws regarding special meetings gave the Board legal cover to decline the Petitioner's request.
Documentation and Management: The discrepancy regarding whether the Board President ever saw the 2015 petition highlights a potential failure in communication between the property management company (Vision Community Management) and the Board. Formal records of all homeowner petitions should be maintained and verified.
Narrowing of Issues: In OAH proceedings, a "one-issue" petition (which carries a $500 fee) must be strictly focused. The Petitioner's initial inclusion of 11 years of history and multiple grievances was procedurally trimmed to a single focus: the 2015 petition and the lack of solar guidelines.
Burden of Proof: The Petitioner in an administrative hearing bears the burden of proving a violation by a "preponderance of the evidence." Merely showing that an HOA's decision was frustrating or lacked transparency is insufficient if it does not violate a specific provision of the CC&Rs, Bylaws, or state law.
Solar Policy Proactivity: To avoid litigation, associations may benefit from adopting proactive solar guidelines that define what constitutes an "undue burden" on common elements, rather than reacting to applications on a case-by-case basis.

Case Study Guide: Haferkamp v. Artisan Parkview Condominium Association

This study guide provides a comprehensive overview of the administrative legal proceedings in the matter of Scott D. Haferkamp v. Artisan Parkview Condominium Association, Inc. (Case No. 25F-H047-REL). It covers the procedural history, core legal arguments regarding homeowner association (HOA) governance, and the final administrative decision.

1. Case Overview and Key Entities

Core Dispute

The Petitioner, Scott D. Haferkamp, alleged that the Artisan Parkview Condominium Association (the Respondent) violated state statutes and its own governing documents by failing to act on a homeowner petition and by refusing to provide clear guidelines or rules for the installation of solar technology.

Key Entities

Entity	Role/Description
Scott D. Haferkamp	Petitioner; a homeowner in the Artisan Parkview Condominium Association.
Artisan Parkview Condominium Association	Respondent; a 35-unit residential development in Phoenix, Arizona.
Tim Pawlak	President of the HOA Board (served for 21 years at the time of the hearing).
Arizona Dept. of Real Estate (ADRE)	The state agency that receives and processes HOA petitions before forwarding them for hearing.
Office of Administrative Hearings (OAH)	An independent state agency that conducts evidentiary hearings for the ADRE.
Kay A. Abramsohn	The Administrative Law Judge (ALJ) who presided over the case and issued the final decision.
Vision Community Management	The property management company representing the HOA.

2. Key Concepts and Legal Framework

The "One-Issue" Rule

Pursuant to Arizona administrative procedures, a petitioner filing with the ADRE must pay a filing fee (in this case, $500.00) for a "one-issue" petition. Although the Petitioner’s initial filing contained multiple concerns spanning over a decade, he was required to narrow his focus to a single issue for the hearing: The lack of action on a signed homeowner petition and the board's failure to provide solar guidelines.

Governing Documents

CC&Rs (Covenants, Conditions, and Restrictions): The primary deed restrictions governing the community. Article 8.4 gives the board authority to adopt rules regarding common elements.
Bylaws: The rules governing the administration of the association.
Section 2.2 (Special Meetings): Provides that special meetings of the members may be called by a written request signed by members representing at least 25% of eligible votes.
Section 3.10 (Powers and Duties): Outlines the board's authority to adopt and publish rules and regulations.

Statutory References

ARS § 33-439: Arizona statute regarding solar energy devices and the limitations associations can place on them.
ARS § 32-2199 et seq.: The statutes authorizing the ADRE to hear disputes between homeowners and associations.
ARS § 44-1761: Provides the definition of a "solar device," which the Petitioner argued includes battery backup systems (e.g., Tesla batteries).

3. Timeline of Significant Events

2003: Artisan Parkview Condominium Association is established; Tim Pawlak joins the board.
September 2014: Petitioner’s first application for solar panels is denied due to "common element" (roof) restrictions.
2014–2015: Petitioner collects signatures from 12 owners (exceeding the 25% threshold for the 35-unit community) to request a meeting/vote on solar panels.
September 2, 2015: Community Manager emails Petitioner stating solar will be discussed at the next board meeting.
September 24, 2015: The Board holds a meeting with legal counsel present. Solar is discussed but tabled; no special member meeting is called.
August 15, 2024: Petitioner applies to install Tesla batteries; the application is denied on October 4, 2024, citing aesthetic impact.
February 2, 2025: Petitioner submits a combined application for solar panels and battery backup.
March 4, 2025: HOA denies the combined application, citing structural integrity, roof warranties, and the shared nature of the walls and roof.
March 20, 2025: Petitioner files his formal petition with the ADRE.
October 21, 2025: The OAH conducts the formal evidentiary hearing.
December 6, 2025: ALJ Kay A. Abramsohn issues the final decision in favor of the HOA.

4. Short-Answer Practice Questions

Q1: What was the primary reason the HOA gave for denying solar panel installations on the condominium roofs? Answer: The HOA contended that the roofs and exterior walls are "common elements" owned collectively by the association. They argued that punctures for solar attachments would void roof warranties and create maintenance complications.

Q2: According to Section 2.2 of the HOA Bylaws, what percentage of member signatures is required to request a special meeting? Answer: At least 25% of the total number of eligible votes.

Q3: How did the ALJ interpret the Board's decision to place the solar issue on a regular board meeting agenda rather than calling a special member meeting? Answer: The ALJ ruled that by placing the issue on the regular agenda, the Board "implicitly declined" to call a special meeting, which was within their discretionary power.

Q4: Why was the Petitioner forced to narrow his case to a "single issue" before the hearing? Answer: Because he had filed a "one-issue" petition and paid the corresponding $500.00 fee. OAH procedures require that the scope of the hearing match the filing fee and petition type.

Q5: What was the Respondent’s argument regarding the "statute of limitations"? Answer: The Respondent argued that the claims regarding the 2015 petition were more than 10 years old and thus "extinguished" under Arizona law (ARS 12-548 or 12-550), as the statute of limitations for breach of contract is typically six years.

5. Essay Prompts for Deeper Exploration

Prompt 1: Board Discretion vs. Member Mandate

Analyze the distinction between "Board Business" and "Member Business" as presented in the case. In his closing argument, the Respondent’s attorney argued that the Petitioner's request (adopting solar guidelines) was a board function under Section 3.10 of the Bylaws, not a member function. Explain how this distinction influenced the ALJ’s decision regarding the 25% signature petition.

Prompt 2: Common Elements and Technology Protection

The Petitioner argued that the HOA’s refusal to allow solar panels constituted a "de facto ban" on a state-protected technology (ARS § 33-439). However, the HOA argued that the unique nature of condominiums—where roofs are shared common elements—supersedes an individual's right to install such devices if they compromise the structure. Discuss the tension between state laws protecting green technology and the contractual obligations of condominium owners to preserve common property.

Prompt 3: Procedural Fidelity and Evidence

Review the testimony regarding the September 2015 board meeting. The Petitioner claimed he did not recall an attorney being present or solar being discussed in detail, while the HOA provided minutes and testimony to the contrary. Evaluate the importance of "Administrative Notice" and the role of contemporaneous documentation (like meeting minutes) in resolving conflicting testimonies in an administrative hearing.

6. Glossary of Important Terms

Administrative Law Judge (ALJ): A judge who moves over administrative hearings, specializing in disputes involving state agency regulations.
ARS (Arizona Revised Statutes): The codified laws of the state of Arizona.
Common Elements: Parts of a condominium project (like roofs, hallways, and exterior walls) that are owned collectively by all unit owners or the association rather than by an individual.
Continuance: The postponement of a legal hearing to a future date.
Design Review Application: A formal request by a homeowner to the HOA's architectural committee to make changes to the exterior of their property.
Evidentiary Hearing: A formal proceeding where both parties present witnesses and exhibits under oath to establish facts.
Pre-hearing Conference: A preliminary meeting (often virtual) to clarify issues, discuss potential motions, and set the schedule for the formal hearing.
Preponderance of the Evidence: The legal standard of proof in civil and administrative cases; it means that a fact is "more probably true than not."
Statute of Limitations: A law that sets the maximum time after an event within which legal proceedings may be initiated.
Tribunal: A person or institution with authority to judge, adjudicate on, or determine claims or disputes.

Solar Rights vs. Shared Roofs: Lessons from the Haferkamp v. Artisan Parkview Dispute

1. Introduction: The High-Stakes Collision of Green Energy and Community Living

For homeowners in managed associations, the promise of sustainable technology often runs headlong into the rigid framework of collective governance. This tension is magnified in condominium settings, where the very air above a unit is often a "common element" owned by all. In the matter of Scott D. Haferkamp v. Artisan Parkview Condominium Association, Inc., a decade-long war of attrition over rooftop solar panels finally culminated in a significant legal clarification by the Arizona Department of Real Estate (ADRE).

At the heart of the dispute was a fundamental question of governance: Can a homeowner compel an HOA Board to adopt specific solar guidelines through a membership petition? Following an evidentiary hearing in late 2025, the Administrative Law Judge (ALJ) issued a decision that reaffirms the expansive discretionary powers of HOA boards, providing a stark lesson in the procedural hurdles facing "green" initiatives in shared-roof communities.

2. A Decade-Long Timeline: From First Application to Final Hearing

The conflict at Artisan Parkview was not a sudden flare-up but a persistent struggle that spanned over ten years of applications, petitions, and board-level friction:

September 2014: Haferkamp submitted his initial design application for solar panels. The Board denied it, citing concerns over penetrations into "common element" roofing.
September 2015: Haferkamp submitted a homeowner petition with 12 signatures (representing approximately 34% of the 35-unit community) seeking a meeting and vote on solar guidelines.
September 24, 2015: At a formal Board meeting, the directors discussed the legalities of solar installation with counsel but took no specific action, effectively tabling the issue.
August 2024 – February 2025: After years of quiet, Haferkamp submitted new applications for Tesla battery backups and combined solar/battery systems. Both were denied.
March 20, 2025: Haferkamp formally filed his dispute with the ADRE under ARS § 32-2199.05, the statute authorizing the Department to hear such community disputes.
October 21, 2025: The Office of Administrative Hearings (OAH) conducted the final evidentiary hearing to resolve the narrowed legal question.

3. The Homeowner’s Argument: Seeking Transparency and Progress

Petitioner Scott Haferkamp presented himself as a frustrated pioneer, arguing that the Board’s persistent inaction constituted a systemic failure to respect member rights. His arguments focused on three primary claims:

The "De Facto Ban": Haferkamp alleged the HOA maintained an unlawful "de facto ban" on solar technology, violating ARS § 33-439, which protects the use of solar energy devices from unreasonable HOA restrictions.
Ignored Mandates: He highlighted the Board’s failure to call a special meeting after receiving a signed petition from over 25% of the community. He noted the internal community support for the initiative, pointing out that even Board Member Eric Ferguson signed the petition despite Ferguson’s own prior votes as a director to deny the applications.
Feasibility and Guidelines: Haferkamp introduced solar guidelines from California jurisdictions to demonstrate that installation on shared roofs is structurally feasible and standard practice in other regions. He argued the Board was derelict in its duty by not providing its own alternative guidelines.

4. The HOA’s Defense: Protecting the "Common Elements"

The Association, represented by Board President Tim Pawlak and legal counsel, argued that the Board’s denials were not a rejection of solar technology itself, but a necessary protection of the community’s shared assets. Their defense relied on:

Structural Integrity: The Board feared that roof penetrations by individual owners would void manufacturer warranties and create long-term maintenance liabilities for the Association.
Aesthetics & Character: As a 35-unit complex with a uniform architectural style, the Board argued it had the duty to maintain the community’s character.
Jurisdictional Authority: The HOA contended that adopting architectural rules is "Board Business," not "Member Business." They argued that while members can petition for a meeting, they cannot use that meeting to usurp the Board's discretionary rulemaking authority.
Implicit Denial: The HOA argued that by placing the solar issue on the September 2015 agenda and discussing it with counsel, they had formally "considered" the petition. Their subsequent inaction was not an "ignored" request, but an "implicit denial" of the demand for a special meeting.

5. The "One-Issue" Rule and Procedural Nuances

The OAH operates under strict procedural constraints, particularly regarding the "One-Issue Rule." Because Haferkamp filed under the $500 filing fee level at the Department of Real Estate, he was legally restricted to a single central claim.

While Haferkamp’s original filing was a sprawling 147-page document detailing a decade of grievances, the ALJ forced him to narrow the focus to a single issue: "Lack of action on a signed homeowner petition and the HOA/board not providing guidelines/rules for solar." Furthermore, the ALJ clarified that the OAH lacks the authority to order mediation or award financial damages; its role is strictly limited to determining if a violation of community documents or state statutes occurred.

6. The Verdict: Why the HOA Prevailed

On December 6, 2025, the ALJ issued a decision in favor of Artisan Parkview, ruling that the Board had not violated its governing documents. The decision hinged on the legal distinction between a board's duty to listen and its duty to act.

ALJ Interpretation of Bylaws Article II, Section 2.2 "The hearing evidence clearly demonstrates the HOA has discretion whether or not to call a special members meeting. The hearing record does not contain a specific written denial by the Board to call a special meeting; however, by placing the issue of solar installation on the September 24, 2015 Board meeting agenda, HOA had implicitly declined to call a special meeting at that time." (Conclusion of Law #6)

The judge further concluded that a Board's choice not to adopt specific rules does not constitute a violation of governing documents if the Board retains the authority to manage common elements at its discretion.

7. Key Takeaways for Homeowners and HOA Boards

This case serves as a vital case study for community associations navigating the transition to green energy:

Discretion vs. Mandate: There is a sharp legal line between "Member Business" (e.g., electing directors) and "Board Business" (e.g., architectural rulemaking). Boards generally cannot be compelled by petition to adopt specific administrative rules.
The Common Element Barrier: Condominium solar rights are vastly different from single-family home rights. Because the roof is a "common element," the Association's duty to maintain structural integrity often overrides an individual's desire for solar installation.
Procedural Precision is Fatal: Haferkamp’s petition was ultimately deemed defective for its purpose. It requested a general "meeting/vote" on rules rather than proposing a specific, formal amendment to the CC&Rs that the membership actually had the authority to pass.
The Power of Minutes: The HOA successfully defeated the claim of "inaction" because they could produce meeting minutes from 2015 showing they had discussed the issue with counsel. In the eyes of the law, "considering and rejecting" is a form of action.

8. Conclusion: The Path Forward

The ALJ’s ruling stands as a Recommended Decision for the Commissioner of the Arizona Department of Real Estate. While the HOA was named the prevailing party, the legal process allows for a final check: under ARS § 41-1092.09, the petitioner has 30 days to request a rehearing with the Commissioner.

Though the Association won on procedural and discretionary grounds, the Board indicated a theoretical openness to "alternative designs" that do not penetrate shared roofs or exterior walls. For homeowners at Artisan Parkview and beyond, the message is clear: the path to green energy in a condominium requires less of a "petition for rules" and more of a "technical design" that leaves the common elements untouched.

Case Participants

Petitioner Side

Scott D. Haferkamp (Petitioner)
Homeowner representing himself in the proceeding.

Respondent Side

Daniel S. Francom (Attorney)
Artisan Parkview Condominium Association, Inc.
Legal counsel representing the HOA.
Tim Pawlak (HOA Board President)
Artisan Parkview Condominium Association, Inc.
Served on the HOA board for 22 years and testified as a witness.
Eric Ferguson (Former Board Member)
Artisan Parkview Condominium Association, Inc.
Served on the board in 2014 and signed the homeowner petition.
Clint Goodman (Attorney)
Goodman Law Firm
Represented the HOA during the 2015 board meeting regarding solar installations.

Neutral Parties

Kay A. Abramsohn (Administrative Law Judge)
Office of Administrative Hearings
Presiding judge who issued the decision.
Susan Nicolson (Commissioner)
Arizona Department of Real Estate
Received electronic transmittal of the administrative decisions.

Jeremy Whittaker vs Val Vista Lakes Community Association

Posted on December 2, 2025 by [email protected]

Case Summary

Case ID	25F-H049-REL
Agency	—
Tribunal	—
Decision Date	2025-12-02
Administrative Law Judge	ADS
Outcome	—
Filing Fees Refunded	—
Civil Penalties	—

Parties & Counsel

Petitioner	Jeremy Whittaker	Counsel	Pro Se
Respondent	Val Vista Lakes Community Association	Counsel	B. Austin Baillio (Maxwell & Morgan, P.C.)

Alleged Violations

No violations listed

Video Overview

Audio Overview

Decision Documents

25F-H049-REL Decision – 1325671.pdf

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25F-H049-REL Decision – 1326128.pdf

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25F-H049-REL Decision – 1327595.pdf

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25F-H049-REL Decision – 1328824.pdf

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25F-H049-REL Decision – 1340610.pdf

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25F-H049-REL Decision – 1341273.pdf

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25F-H049-REL Decision – 1341623.pdf

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25F-H049-REL Decision – 1346912.pdf

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25F-H049-REL Decision – 1350318.pdf

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25F-H049-REL Decision – 1355212.pdf

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25F-H049-REL Decision – 1367233.pdf

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25F-H049-REL Decision – 1374019.pdf

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Briefing Document: Analysis of Whitaker v. Val Vista Lakes Community Association Hearing

Executive Summary

This document synthesizes testimony and arguments from the administrative hearing in the matter of Whitaker v. Val Vista Lakes Community Association (Docket 25F-H049-REL). The central issue is an alleged violation of Arizona Revised Statute (ARS) § 33-1811, which governs conflicts of interest for board members of homeowners associations. The petitioner, Jeremy Whitaker, alleges that board members Diana Evershower and Brody Herado failed to properly declare conflicts of interest arising from their familial relationships with Jonathan Evershower, a partner at the association’s legal counsel, Carpenter Hazlewood Delgado Bolan (CHDB).

The petitioner contends that numerous actions for compensation involving CHDB—including new engagements, litigation directives, rate increases, and invoice approvals—were undertaken without the required per-issue conflict declarations in an open meeting, as mandated by statute. The respondent, Val Vista Lakes, counters that the statute places the onus on individual directors, not the association, and that no violation occurred because there was no direct financial or other tangible benefit to the directors or their relative. Furthermore, the respondent argues that potential conflicts were disclosed, and that sensitive legal matters are appropriately handled in executive session to protect attorney-client privilege. The hearing featured conflicting testimony from current and former board members, centering on the interpretation of “benefit” under the statute, whether required disclosures were ever made publicly, and the procedural validity of the association’s engagement with its legal counsel.

Central Dispute: Interpretation and Application of ARS § 33-1811

The core of the case revolves around the specific requirements of ARS § 33-1811. The statute dictates that if a board action for compensation would “benefit” a director or their immediate family (including a spouse or child), that director “shall declare a conflict of interest for that issue.” The statute further specifies the declaration must be made “in an open meeting of the board of directors before the board discusses or takes action on that issue.”

Petitioner’s Position

• Per-Transaction Disclosure: The petitioner argues, citing the Arizona Court of Appeals case Arizona’s Biltmore Hotel Villas v. Tomlinfinny, that conflict disclosures must be transaction-specific and contemporaneous. A single, past disclosure is legally insufficient to cover all future actions.

• Broad Definition of “Benefit”: The word “financial” does not appear in the statute. The petitioner posits that “benefit” encompasses more than direct pecuniary gain, including reputational enhancement, shared overhead costs, and the overall economic health of the law firm, which benefits all partners.

• Open Meeting Mandate is Absolute: Disclosures made in executive session or implied through email votes do not satisfy the statute’s explicit “open meeting” requirement. The petitioner asserts that the proper procedure is to declare the conflict in an open session before recessing to an executive session for privileged discussion.

• Association Liability: The actions were taken by individuals acting in their official capacity as board members, making the association liable for the violations.

Respondent’s Position

• No Association Duty: The respondent’s counsel argues that ARS § 33-1811 imposes a duty on individual board members, not the association as an entity. Therefore, the association cannot, as a matter of law, violate the statute.

• No Proven Benefit: The central defense is that no benefit accrued to the directors or their relative. Testimony asserts Jonathan Evershower is a “named partner” but not a shareholder, receives no bonuses, and his salary is derived solely from his own billable hours on matters unrelated to Val Vista Lakes.

• Conflict with Attorney-Client Privilege: The respondent contends that forcing disclosures of legal engagements into open session would conflict with ARS § 33-1804, which authorizes legal discussions in executive session to protect attorney-client privilege.

• Superior Court Precedent: Counsel claims a Maricopa County Superior Court judge has already ruled in a related matter (Nathan Brown lawsuit) that no violation of the statute occurred.

The Alleged Conflict of Interest

The conflict centers on two board members and their relationship to a partner at the CHDB law firm.

• Diana Evershower: Board Treasurer and mother of Jonathan Evershower.

• Brody Herado: Board member and husband of Jonathan Evershower.

• Jonathan Evershower: Identified as a “named partner” at CHDB Law. Testimony indicates he is not a shareholder, receives no bonuses, and his compensation is based on his personal billable hours for clients other than Val Vista Lakes. He does not perform any work for the Val Vista Lakes account.

Key Areas of Contention and Evidence

1. The Nature of “Benefit”

A significant portion of testimony was dedicated to defining whether Jonathan Evershower and, by extension, his family on the board, benefited from CHDB’s work for the association.

Arguments for Benefit (Petitioner)

Arguments Against Benefit (Respondent)

Reputational Benefit: Witness Bill Satell, an attorney and former board president, testified that securing a large client like Val Vista Lakes (over 2,000 members) provides a significant “reputational benefit” that helps the firm attract more clients. He cited a CHDB legal brief where the firm touted itself as “one of the largest community association law firms in the southwest” as evidence of this marketing advantage.

No Financial Link: Brody Herado and Diana Evershower testified that their relative receives no direct financial gain, bonuses, or partnership distributions from Val Vista Lakes’ business. His salary is described as entirely separate from this revenue stream.

Shared Overhead and Firm Viability: Mr. Satell and Mr. Thompson testified that revenue from any client contributes to the firm’s overall health, paying for shared overhead (rent, utilities, malpractice insurance) and ensuring its continued existence, which benefits all partners.

Speculative and Intangible: Respondent’s counsel dismissed the idea of “reputational benefit” as vague, speculative, and not the intended scope of the statute, which was designed to prevent kickback schemes.

Statutory Language: The petitioner repeatedly emphasized that the statute uses the word “benefit” without the qualifier “financial,” implying a broader legislative intent.

“Amazon” Analogy: Respondent’s counsel offered a hypothetical: if a board member worked for Amazon, they would not be expected to declare a conflict every time the association bought lake chemicals from Amazon, as the benefit is too remote.

2. The Disclosure Controversy

Whether any valid disclosures were ever made is a central factual dispute.

• Petitioner’s Evidence: The petitioner claims that despite subpoenas for all open meeting conflict declarations and a review of all open meeting video recordings, the respondent produced no evidence of a valid, per-issue declaration being made in an open meeting. Witnesses Sharon Maiden and Mark Thompson testified they never saw such a disclosure.

• Respondent’s Evidence:

◦ Brody Herado and Diana Evershower testified they did disclose their “potential conflict” or relationship multiple times.

◦ Specific instances cited include a town hall meeting, a board training session, and a February 2023 or 2024 open meeting regarding the renewal of a contract for the management company, First Service Residential (FSR).

◦ However, both witnesses were unable to provide specific dates or point to meeting minutes or videos for most other alleged disclosures, particularly those related to specific legal engagements.

◦ A key piece of evidence introduced by the petitioner is a legal brief from a prior hearing (Exhibit C) where the respondent’s counsel, Joshua Bolan, stated that Mr. Herado and Mrs. Evershower “disclose[d] their conflict to the newly elected board as required by Arizona law” in the “first executive session.”

3. Procedural and Contractual Disputes

The process by which CHDB was engaged and compensated was heavily scrutinized.

• The 2005 Engagement Letter: The respondent claims a 2005 engagement letter with Carpenter Hazelwood (CHDB’s predecessor) remains in effect and authorizes ongoing legal work without new board votes. Former board presidents Satell and Maiden testified that during their tenures, other firms were appointed as general counsel, superseding any prior agreement, and that they were unaware of the 2005 letter. The petitioner notes the letter is unsigned by any association representative and is not supported by any meeting minutes.

• Executive Session and Email Votes: Testimony and exhibits (emails, executive session minutes) showed that decisions to engage CHDB for specific matters, such as the Nathan Brown lawsuit, were made either via unanimous consent emails or in executive session. This prevented any possibility of an open meeting disclosure before the board acted.

• Rate Increases: Former director Mark Thompson testified that a CHDB rate sheet proposing new 2025 rates was provided to the board as part of an executive session packet and was never discussed in an open meeting. He affirmed that this constituted an “action for compensation” under the statute.

• Insurance Company Engagement: For the Nathan Brown lawsuit, the respondent argues the ultimate decision to hire CHDB was made by the association’s insurance carrier, not the board, thereby negating any conflict. The petitioner and witness Sharon Maiden counter-testified that the board first voted to engage CHDB on the matter in December 2023, months before it was turned over to insurance in February 2024.

Summary of Key Witness Testimonies

Witness

Key Testimony Points

Brody Herado

Board Member

Acknowledged his husband is a partner at CHDB but claimed there is no actual conflict due to a lack of financial benefit. Testified he disclosed the relationship in open and executive sessions “multiple times,” specifically citing a February 2023/2024 FSR meeting, but could not recall other specific dates.

Diana Evershower

Board Treasurer

Stated she does not believe a conflict exists but disclosed a “potential conflict” as advised during a board training. Denied personally approving a CHDB invoice despite her name appearing on the general ledger. Claimed disclosures were made but could not provide specific dates or meeting minutes.

Bill Satell

Former President, Attorney

Opined that a conflict exists under a broad reading of “benefit,” including reputational gain. Testified CHDB was not general counsel during his tenure and was superseded by other firms.

Sharon Maiden

Former President

Testified CHDB was not general counsel during her tenure. Stated she never witnessed Herado or Evershower make an open meeting conflict declaration on a CHDB matter. Confirmed votes to engage CHDB were taken in executive session or via email. Described a scheduled open meeting to discuss the conflict being canceled after the board majority became “unavailable.”

Mark Thompson

Former Director

Testified he never witnessed an open meeting declaration by Herado or Evershower regarding CHDB. Confirmed a CHDB rate sheet was discussed exclusively in executive session. Stated he received a letter from CHDB’s counsel, Joshua Bolan, which he perceived as threatening and intimidating regarding his testimony.

filing fees
penalties

Case

Docket No: 25F-H049-REL
Case Title: Jeremy Whittaker v. Val Vista Lakes Community Association
Decision Date: 2025-12-02
Alj Name: Adam D. Stone
Tribunal: OAH
Agency: ADRE

Questions

Question

If a board member's relative works for a vendor hired by the HOA, is that automatically a conflict of interest requiring disclosure?

Short Answer

Not necessarily. The ALJ ruled that if there is no evidence the relative received specific additional compensation (like a bonus or raise) from the contract, a violation may not exist.

Detailed Answer

Alj Quote

Legal Basis

A.R.S. § 33-1811

Topic Tags

conflict of interest
vendor contracts
compensation

Question

Does a law firm paying for a relative's office space or insurance count as 'compensation' that triggers a conflict of interest?

Short Answer

No. The ALJ distinguished between a 'benefit' (like overhead) and 'compensation,' ruling that the statute requires the latter.

Detailed Answer

Alj Quote

Further, the fact that a law firm pays for malpractice insurance, or an office space, is not compensation, rather it is a benefit.

Legal Basis

A.R.S. § 33-1811

Topic Tags

legal definitions
financial benefit

Question

Is a board member legally required to abstain from voting if they have a conflict of interest?

Short Answer

No. While the ALJ noted it is a 'best practice' to abstain, the statute only mandates disclosure, not recusal.

Detailed Answer

Alj Quote

Admittedly, the best practice of a Board member would be to abstain from voting, however, the statute does not require the same.

Legal Basis

A.R.S. § 33-1811

Topic Tags

voting rights
board ethics
abstention

Question

Does the type of partnership a relative holds in a firm matter for conflict of interest purposes?

Short Answer

Yes. The ALJ indicated that a 'true shareholder with profit sharing' would create a conflict, whereas a partner receiving only a salary might not.

Detailed Answer

Alj Quote

Legal Basis

A.R.S. § 33-1811

Topic Tags

profit sharing
corporate structure
conflict of interest

Question

Who has the burden of proof in an HOA dispute hearing?

Short Answer

The homeowner (Petitioner) bears the burden of proof by a preponderance of the evidence.

Detailed Answer

The homeowner filing the petition must prove that the HOA violated the statute or governing documents. In this case, the Petitioner failed to demonstrate the violation.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent violated A.R.S. § 33-1811 by a preponderance of the evidence.

Legal Basis

A.R.S. § 41-1092.07(G)(2)

Topic Tags

burden of proof
legal procedure

Question

Can I recover my filing fee if I lose my hearing against the HOA?

Short Answer

No. The filing fee is only awarded if the Petitioner prevails.

Detailed Answer

Because the tribunal denied the petition, the homeowner was not entitled to reimbursement of the $500 filing fee.

Alj Quote

IT IS ORDERED that Petitioners’ petition is denied as to a violation of A.R.S. 33-1811, and Petitioner is not entitled to his filing fee of $500.00.

Legal Basis

A.R.S. § 32-2199

Topic Tags

filing fees
penalties

Case

Docket No: 25F-H049-REL
Case Title: Jeremy Whittaker v. Val Vista Lakes Community Association
Decision Date: 2025-12-02
Alj Name: Adam D. Stone
Tribunal: OAH
Agency: ADRE

Case Participants

Petitioner Side

Jeremy Whittaker (Petitioner)
Val Vista Lakes Community Association
Homeowner representing himself.
Mark Thompson (Witness)
Val Vista Lakes Community Association
Former board member called to testify by the Petitioner.
Sharon Maiden (Witness)
Val Vista Lakes Community Association
Former board president called to testify by the Petitioner.
Bill Suttell (Witness)
Val Vista Lakes Community Association
Former board president and attorney called to testify by the Petitioner.
Kurt Wiler (Affiant)
Val Vista Lakes Community Association
Former director who provided a sworn affidavit (Exhibit K) for the Petitioner.

Respondent Side

B. Austin Baillio (Counsel)
Maxwell & Morgan, P.C.
Attorney representing Val Vista Lakes Community Association.
Brian Patterson (Board Representative)
Val Vista Lakes Community Association
Board president; appeared in the courtroom as the respondent's representative.
Diana Ebertshauser (Witness)
Val Vista Lakes Community Association
Board member and treasurer; mother of Jonathan Ebertshauser.
Brodie Hurtado (Witness)
Val Vista Lakes Community Association
Board member; husband of Jonathan Ebertshauser.
Josh Bolen (Attorney)
CHDB Law
Attorney for the association whose engagement was the subject of the conflict dispute.

Neutral Parties

Adam D. Stone (Administrative Law Judge)
Office of Administrative Hearings
Presided over the hearing and authored the final decision.
Susan Nicolson (Commissioner)
Arizona Department of Real Estate
Recipient of the transmittals and orders.

Other Participants

Jonathan Ebertshauser (Attorney)
CHDB Law
Partner at CHDB Law; the subject of the alleged conflict of interest.

Timothy A Burke v. Cortessa Community Association

Posted on November 28, 2025 by [email protected]

Case Summary

Case ID	25F-H072-REL
Agency	—
Tribunal	—
Decision Date	2025-11-28
Administrative Law Judge	NSK
Outcome	—
Filing Fees Refunded	—
Civil Penalties	—

Parties & Counsel

Petitioner	Timothy A. Burke	Counsel	—
Respondent	Cortessa Community Association	Counsel	Edith I. Rudder, Esq., Amber P. Li, Esq.

Alleged Violations

No violations listed

Video Overview

Audio Overview

Decision Documents

25F-H072-REL Decision – 1373412.pdf

Uploaded 2026-04-24T12:53:26 (150.5 KB)

Briefing Document: Timothy A. Burke v. Cortessa Community Association

Executive Summary

On October 23, 2025, an evidentiary hearing was held before the Arizona Office of Administrative Hearings regarding a dispute between Timothy A. Burke (Petitioner) and the Cortessa Community Association (Respondent). The matter, docketed as No. 25F-H072-REL, centered on alleged violations of A.R.S. § 33-1805, which governs the disclosure of financial and other records to association members.

The Petitioner, who served as the association’s Treasurer, alleged that the association and its managing agent, Kinney Management Services (KMS), failed to provide requested financial data, contracts, and market studies within the statutory 10-day period. The Respondent argued that they had complied with the law and that the Petitioner's requests were often handled as a courtesy or were outside established protocols.

The Administrative Law Judge (ALJ), Nedra-Su Kawasaki, ultimately determined that while the Petitioner’s specific requests made in his capacity as a Board member did not fall under the protections of A.R.S. § 33-1805(A), the Respondent did violate the statute concerning requests made by other homeowner members. The Respondent was ordered to reimburse the Petitioner’s $500 filing fee and comply with the statute for all future homeowner requests.

Detailed Analysis of Key Themes

1. Statutory Compliance and the 10-Day Rule

Under A.R.S. § 33-1805, planned community associations must make all financial and other records reasonably available for examination within ten business days of a written request. If a member requests to purchase copies, the association similarly has ten business days to provide them, with a maximum charge of fifteen cents per page.

The hearing revealed a systemic breakdown in meeting these timelines:

Witness Rockwell Kelly testified to making a request for the KMS management contract on May 6, 2025, which remained unfulfilled as of the hearing date in October.
Witness Dara Chavez detailed a series of requests for financial statements and insurance information starting in January 2025 that were met with claims that the requests were "unreasonable" or were simply ignored.

2. Operational Protocols vs. Legal Access

A central conflict in the case was the Respondent’s establishment of specific protocols for record requests.

The "Gatekeeper" Protocol: Board President Jim Gallagher testified that he required requests to be funneled through him or a specific KMS email address to prevent Community Manager Mike Swift from being "overloaded."
Petitioner's Counter-Argument: Burke argued that this protocol created a "gatekeeper" who could unilaterally decide what information reached Board members, potentially obscuring financial mismanagement or preventing the Treasurer from fulfilling his fiduciary duties.
KMS Procedure: Michael Swift testified that KMS uses a centralized email system ([email protected]) for all managed communities. The ALJ noted that while the Board can delegate duties to a Managing Agent, such delegation does not relieve the Board of its legal obligation to ensure statutory compliance.

3. Redaction and Transparency

The issue of redacted documents was a point of contention. Dara Chavez testified that when she finally received the KMS management contract, all costs and pricing were redacted.

Respondent’s Justification: Michael Swift argued the contract was 20 years old and the pricing was no longer valid. Redactions were made so that "no one would rely on that information as accurate."
Analysis: The Petitioner and witnesses argued that redactions defeated the purpose of the records request, which was to understand the association's financial obligations and cost-saving opportunities.

4. The Dual Role of Board Members

The ALJ’s decision hinged on a critical legal distinction: the capacity in which a request is made.

Association Member vs. Board Member: A.R.S. § 33-1805(A) explicitly protects "members." Because Burke’s requests were sent from an email identified as "Tim Cortessa HOA Board Member" and requested data for the "entire HOA board of directors," the ALJ ruled these were "Board business" requests rather than "homeowner" requests.
Legal Precedent: The ALJ concluded that the statute recognizes board members as homeowners but differentiates between requests made for personal examination and those made for board purposes.

Important Quotes with Context

On the "Gatekeeper" Issue

Timothy Burke: "The question was… relative to the president being allowed to establish unilateral protocols to become the gatekeeper of distribution of information… [This] gives them absolute power to decide what information would or would not be distributed to board members."

Context: Burke was challenging President Gallagher's directive that all information requests go through the President's office rather than directly to the management company.

On Redacted Contracts

Michael Swift: "This agreement is 20 years old… the pricing that was listed on here was no longer valid. So, it needed to be removed… you didn't want anyone to rely on that information as accurate."

Context: Swift explaining why KMS provided redacted contracts to homeowners, claiming it was to prevent them from seeing outdated fee schedules.

On Statutory Responsibility

Administrative Law Judge Kawasaki: "Although Respondent employed and delegated to KMS its responsibility to take such actions… no such delegation relieved the Board of its obligation to perform the delegated duty."

Context: Found in the Conclusions of Law, this reinforces that a Board cannot blame a management company for failing to meet state laws regarding record disclosure.

Evidence Summary Table

Exhibit	Provider	Description/Purpose
Petitioner Ex. 8	Burke	Association Bylaws regarding Managing Agent and Board powers.
Petitioner Ex. 10	Burke	Emails showing attachments provided only after the ADR petition was filed.
Respondent Ex. 5	Association	Correspondence regarding the President's authority to set protocols.
Respondent Ex. 6	Association	Email from Burke regarding the 2025 operating budget.
Respondent Ex. 7	Association	Email from Gallagher to Burke regarding the "unnecessary" nature of invoice requests.
Respondent Ex. 8	Association	Email from Burke to Swift insisting on information for a meeting agenda.

Actionable Insights

Based on the ALJ's decision and the testimony provided, the following insights are relevant for the administration of Planned Community Associations:

Capacity Matters: Board members seeking records under A.R.S. § 33-1805 should explicitly state when they are requesting records in their capacity as a homeowner/member rather than as a director to ensure they receive statutory protection.
Delegation is Not Immunity: Boards must actively oversee their management companies' record-keeping departments. If a management company's centralized "Records Request" email fails to respond within 10 days, the Association Board remains legally liable.
Redaction Limits: Redacting financial costs from association contracts is likely a violation of the "all financial and other records" clause of the statute, as demonstrated by the ALJ's finding that the association violated the law when failing to provide unredacted records to witnesses Kelly and Chavez.
Protocol Clarity: Associations should document and distribute a formal, written records request procedure to all members to avoid confusion and ensure that "ignorance of protocol" cannot be used as a defense for non-compliance.
Budgeting Transparency: Treasurers require access to raw data (invoices and receipts) to perform cost-saving analyses. Obstructing this access under the guise of "administrative efficiency" can lead to legal challenges regarding fiduciary duty.

Study Guide: Timothy A. Burke v. Cortessa Community Association

This study guide provides a comprehensive overview of the legal dispute between Timothy A. Burke and the Cortessa Community Association regarding records requests under Arizona law. It synthesizes the hearing testimony, statutory interpretations, and the final administrative decision.

I. Key Concepts and Case Overview

Legal Framework: A.R.S. § 33-1805

The central pillar of this case is Arizona Revised Statute § 33-1805, which governs the maintenance and disclosure of records for planned communities. Key provisions include:

Availability: All financial and other records must be made reasonably available for examination by any member or their designated representative.
Timeline: Associations have 10 business days to fulfill a request for examination or to provide copies.
Fees: Associations may not charge for the review of materials but may charge up to 15 cents per page for copies.
Exemptions: Certain records may be withheld, including privileged attorney-client communications, pending litigation, and personal/financial records of individual members or employees.

The Conflict: Capacity and Protocol

The dispute arose when Timothy Burke, acting as both a homeowner and the Association Treasurer, alleged that the Cortessa Community Association and its managing agent, Kinney Management Services (KMS), failed to provide requested financial documents and contracts.

Core Arguments:

Party	Primary Argument
Petitioner (Burke)	The HOA and KMS failed to provide records within the 10-day statutory window. He argued that the HOA President acted as a "gatekeeper," unilaterally establishing protocols that obstructed access to data necessary for his role as Treasurer.
Respondent (HOA)	The Association claimed compliance with the statute. They argued that specific protocols (e.g., using a dedicated "records request" email) must be followed and that the statute does not require the Association to create new reports that do not already exist.

Judicial Findings

The Administrative Law Judge (ALJ) made a critical distinction between Homeowner Members and Board Members:

Member Capacity: Requests made by homeowners (like witness Rockwell Kelly and Dara Chavez) are protected under A.R.S. § 33-1805(A). The HOA was found to have violated the statute by failing to provide these individuals with the requested contracts and unredacted financial information.
Board Capacity: Requests made by Timothy Burke were self-identified as "Board Member" business and intended for the "entire HOA board of directors." The ALJ concluded that A.R.S. § 33-1805(A) does not apply to requests made in a director’s capacity for board purposes.

II. Short-Answer Practice Questions

According to A.R.S. § 33-1805, how many business days does an association have to provide copies of requested records?

Answer: Ten business days.

What is the maximum amount an association can charge per page for copies of records?

Answer: Fifteen cents ($0.15) per page.

Identify three types of records that an association is permitted to withhold from disclosure.

Answer: (1) Privileged communications with an attorney, (2) pending litigation records, and (3) personal, health, or financial records of an individual member or employee.

Why was Michael Swift's redaction of the KMS management agreement controversial in the hearing?

Answer: Homeowner Dara Chavez testified she received a redacted copy where costs were hidden, preventing her from seeing what the community was being charged. Swift argued the redactions were necessary because the 20-year-old agreement contained outdated pricing that might be misleading.

What specific protocol did Kinney Management Services (KMS) establish for records requests?

Answer: Owners were directed to send requests to a specific email address: [email protected].

What was the ALJ’s ruling regarding the $500 ADR filing fee paid by the Petitioner?

Answer: The Respondent (HOA) was ordered to reimburse the Petitioner the $500 filing fee because the Petitioner was deemed the prevailing party regarding homeowner member requests.

In the context of the hearing, what does it mean that an association is not required to "create" records?

Answer: Under the statute, if a specific report or record does not already exist in the association’s files, the association is not legally obligated to generate or synthesize new data to fulfill a member's request.

III. Essay Prompts for Deeper Exploration

The "Gatekeeper" Dilemma: Discuss the ethical and legal implications of an HOA President requiring all records requests to pass through them for "delegation." Does this practice ensure efficiency, as argued by James Gallagher, or does it create a lack of accountability and oversight, as argued by Timothy Burke? Use evidence from the hearing to support your analysis.
Electronic vs. Physical Access: The HOA argued that providing electronic copies of records was a "courtesy" rather than a statutory requirement, as the statute only mentions making records available for "examination." Evaluate this stance in the context of modern administrative practices. Should "reasonably available" be interpreted to include digital formats?
The Dual Role of Director and Member: Analyze the ALJ's decision to separate requests made as a "Member" from those made as a "Board Member." How does this distinction affect a director's ability to perform their fiduciary duties if they are held to different standards of information access than the general membership?

IV. Glossary of Important Terms

A.R.S. § 33-1805: The Arizona Revised Statute that mandates the availability of planned community association records to its members.
Administrative Law Judge (ALJ): An independent official (in this case, Andrew Su Kawazaki and later Nedra-Su Kawasaki) who presides over hearings and issues decisions on contested matters arising from state regulation.
ADR (Alternative Dispute Resolution) Petition: A formal filing with the Department of Real Estate to resolve conflicts between homeowners and associations without a full court trial.
Bylaws: The internal rules that govern the administration of an association, including the powers and duties of the Board of Directors and the Managing Agent.
Fiduciary Responsibility: The legal obligation of board members to act in the best interests of the association and its members.
Managing Agent: An outside entity (such as Kinney Management Services/KMS) hired by the HOA Board to handle day-to-day operations, maintenance, and record retention.
Prevailing Party: The participant in a legal proceeding who "wins" on the core issues, often entitling them to the reimbursement of filing fees or other costs.
Redaction: The process of censoring or obscuring part of a text for legal or security purposes (e.g., hiding sensitive pricing or personal information in a contract).
Statutory Request: A formal demand for information based on the rights granted to an individual by state law.

Transparency on Trial: Key Lessons from the Timothy Burke v. Cortessa HOA Hearing

1. Introduction: The Clash Between Governance and Transparency

On October 23, 2025, a critical legal proceeding unfolded before Administrative Law Judge Nedra-Su Kawasaki that serves as a cautionary tale for every Homeowners Association in Arizona. The hearing, Timothy Burke v. Cortessa Community Association, brought into sharp focus the often-turbulent intersection of board authority and homeowner transparency.

The case was particularly notable because the Petitioner, Timothy Burke, was the sitting Board Treasurer. In an unusual move, Burke challenged his own HOA and its management firm, Kinney Management Services (KMS), alleging a systemic failure to provide access to financial records and contracts. This dispute highlights a growing trend in HOA governance: the tension between "operational efficiency" and the statutory right of members to inspect the books.

At a Glance	Details
Case No.	25F-H072-REL
Petitioner	Timothy Burke
Respondent	Cortessa Community Association
Core Statutory Reference	ARS § 33-1805 (Association Records; Applicability)

2. The "Gatekeeper" Controversy: Who Controls the Information?

The central conflict involved "protocols" established by HOA President James Gallagher. Under these rules, all records requests were to be routed through the President or a general management email address rather than directly to the Community Manager, Mike Swift.

The Board's Defense President Gallagher and manager Mike Swift testified that these protocols were vital to prevent manager burnout. They argued that if board members and homeowners could contact the manager directly for documents, it would "overload" staff, pulling them away from essential duties like vendor oversight and site inspections. The Board positioned the President as a necessary "gatekeeper" to streamline operations.

The Petitioner's Challenge Petitioner Burke argued that this gatekeeper model was a recipe for a lack of accountability. By funneling all information through a single individual—the President—the HOA effectively created a bottleneck where requests could be ignored or curated.

Consultant’s Analysis: The "gatekeeping" strategy proved to be a failure in practice. During testimony, President Gallagher admitted he did not actually know who was monitoring the "records request" email address or if requests were being fulfilled. This created a "black hole" where statutory requests went to die, proving that while protocols can manage workload, they cannot be used to obstruct legal transparency.

3. Redacted Contracts and "Unreasonable" Requests: Homeowner Experiences

The hearing featured compelling testimony from witnesses Rockwell Kelly and Dara Chavez, which illustrated the real-world consequences of the HOA’s restrictive policies.

Rockwell Kelly: Testified that in May 2025, he requested the KMS management contract. While the manager verbally acknowledged the request, Kelly was never invited to examine the records nor provided a copy, a clear violation of the 10-day statutory window.
Dara Chavez: Faced a months-long battle for information. When she requested financial statements, she was told by KMS that her request was "unreasonable."

Records Requested but Withheld or Redacted:

KMS Management Agreement: Provided to Chavez in a heavily redacted format.
Landscaping and Waste Management Contracts: Requested by Burke for budget analysis; not provided.
Insurance Information: Chavez’s requests for the HOA’s insurance carrier name went completely unanswered.
Financial Statements (2022–2024): Initially ignored or labeled "unreasonable."

Consultant’s Note: It is vital for boards to understand that ARS § 33-1805 does not include a "reasonableness" test for a member's request. The law requires the Association to make records "reasonably available"—it does not give the Board the power to judge whether the homeowner's desire for the information is valid.

4. The Legal Turning Point: Homeowner Rights vs. Board Business

The Administrative Law Judge (ALJ) made a sophisticated distinction between ARS § 33-1805(A), which protects homeowners, and internal board communications.

The ALJ found that because Burke sent his emails in his capacity as "Treasurer" and directed them to "the entire HOA board," those specific requests were "board business" rather than "member requests." Consequently, the HOA’s refusal to fulfill Burke’s specific requests did not technically violate the statute. However, this was a hollow victory for the HOA. Because Burke brought witnesses (Kelly and Chavez) whose rights as homeowners were clearly violated, the HOA was still held liable.

"The undersigned ALJ concludes that… A.R.S. § 33-1805 recognizes that board members are also homeowner members and differentiates records requests made by and on behalf of a homeowner member and requests made by and on behalf of a board member for board purposes."

5. The Verdict: Accountability and the $500 Penalty

The Final Order, issued November 28, 2025, sent a clear message: procedural technicalities will not shield an HOA from its duty to the general membership.

The Prevailing Party: Despite the dismissal of his Treasurer-level requests, Petitioner Timothy Burke was deemed the prevailing party because he successfully proved the HOA violated the rights of other members.
Financial Restitution: The HOA was ordered to pay Petitioner $500 (reimbursement of the filing fee) within 30 days.
Future Compliance: The HOA was mandated to strictly adhere to ARS § 33-1805 for all homeowner requests moving forward.

6. Actionable Takeaways for Homeowners and Boards

To avoid the expense and reputational damage of an administrative hearing, associations must move from a culture of "gatekeeping" to a culture of "disclosure."

Establish Clear, Non-Obstructive Protocols: You may designate a specific email for requests, but that email must be monitored. As this case showed, "gatekeeping" often leads to information being lost, which is not a legal defense.
Respect the 10-Day Clock: The statute is clear. You have 10 business days to provide an opportunity for examination and 10 business days to provide copies. There is no "unreasonable" exception for large requests.
Know the Redaction Limits: Manager Mike Swift testified he redacted the KMS contract because the pricing was "20 years old" and no longer valid. This is not a legal reason for redaction. Under ARS § 33-1805(B), you may only redact for five specific reasons: attorney-client privilege, pending litigation, executive session minutes, personal/financial records of individuals, and job performance records. "Stale pricing" is not on the list.
Differentiate Roles (The "Two Hats" Rule): Board members wishing to ensure statutory protection should explicitly state their capacity.

The Right Way: "I am making this request in my capacity as a homeowner member per ARS § 33-1805…"
The Risk: Sending requests as "Treasurer" or "Director" for "Board purposes" may exempt the request from statutory protection and the $500 penalty recovery.

7. Conclusion: The Value of Open Books

Transparency is the bedrock of community trust. When a Board allows a management company to set the rules for disclosure—or worse, when the Board acts as a shield for the management company—the fiduciary relationship is inverted. The Burke v. Cortessa hearing serves as a reminder that the Board's primary duty is to the members, not to the convenience of the manager.

As modern HOAs become more complex and budgets grow larger, we must ask: Is your Board exercising its fiduciary duty to oversee the management company, or is the management company controlling the flow of information to the Board? In the eyes of the law, the "gate" must remain open to the members.

Case Participants

Petitioner Side

Timothy A. Burke (Petitioner)
Cortessa Community Association
Homeowner and Board Treasurer
Rockwell Kelly (Witness)
Cortessa Community Association
Homeowner and association member
Dara Chavez (Witness)
Cortessa Community Association
Homeowner and association member

Respondent Side

Edith I. Rudder (Attorney)
CHDB LAW LLP
Attorney for Cortessa Community Association
Amber P. Li (Observing Attorney)
CHDB LAW LLP
James Gallagher (Board President)
Cortessa Community Association
Michael Swift (Community Manager)
Kinney Management Services
Community Manager for Cortessa Community Association
Morgan Swanson (Observing Attorney)
CHDB LAW LLP

Neutral Parties

Nedra-Su Kawasaki (Administrative Law Judge)
Office of Administrative Hearings

John R Krahn Living Trust / Janet Krahn Living Trust vs Tonto Forest Estates Homeowners Association

Posted on November 24, 2025 by [email protected]

Case Summary

Case ID	25F-H057-REL
Agency	—
Tribunal	Office of Administrative Hearings
Decision Date	2025-11-24
Administrative Law Judge	VMT
Outcome	—
Filing Fees Refunded	—
Civil Penalties	—

Parties & Counsel

Petitioner	John R Krahn Living Trust / Janet Krahn Living Trust	Counsel	—
Respondent	Tonto Forest Estates Homeowners Association	Counsel	—

Alleged Violations

No violations listed

Video Overview

Audio Overview

Decision Documents

25F-H057-REL Decision – 1345301.pdf

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25F-H057-REL Decision – 1348059.pdf

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25F-H057-REL Decision – 1351266.pdf

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25F-H057-REL Decision – 1354250.pdf

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25F-H057-REL Decision – 1354340.pdf

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25F-H057-REL Decision – 1364599.pdf

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25F-H057-REL Decision – 1364611.pdf

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25F-H057-REL Decision – 1372120.pdf

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Briefing Document: Krahn Living Trust vs. Tonto Forest Estates HOA (Case No. 25F-H057-REL)

Executive Summary

This document synthesizes the proceedings and final decision in case number 25F-H057-REL, a dispute between the John R. Krahn Living Trust (Petitioner) and the Tonto Forest Estates Homeowners Association (Respondent). The core of the dispute was an allegation that the Respondent violated Arizona Revised Statute (A.R.S.) § 33-1805 by providing an improperly redacted version of the March 2025 check register in response to a formal records request.

The Petitioner argued that the redaction was unjustified, targeted, and part of a larger pattern of non-compliance and bad faith by the HOA’s board. The Respondent countered that mailing the redacted document was a clerical error and that it fulfilled its statutory duty by making the complete, unredacted check register available to all members on its online portal within the 10-day legal timeframe.

The Administrative Law Judge (ALJ) ultimately dismissed the petition. The decision found that while the Respondent had mistakenly mailed a redacted document, the subsequent posting of the unredacted version on the community portal rendered the issue moot. The ALJ concluded there was insufficient evidence to prove the Respondent’s actions were purposeful, “personal,” or part of a negligent pattern of behavior.

Case Overview

Detail

Description

Case Number

25F-H057-REL

Petitioner

John R. Krahn Living Trust / Janet Krahn Living Trust (represented by John Khran)

Respondent

Tonto Forest Estates Homeowners Association (represented by President Dwight A. Jolivette)

Adjudicating Body

Arizona Office of Administrative Hearings (OAH)

Presiding Judge

Administrative Law Judge Velva Moses-Thompson

Core Statute

A.R.S. § 33-1805: Association financial and other records

Chronology of Key Events

• March 31, 2025: John Khran submits a written request to the HOA for the March 2025 check register and specific legal invoices from Maxwell & Morgan.

• c. April 10, 2025: The HOA responds via U.S. Mail, sending a packet that includes a partially redacted version of the March 2025 check register.

• April 14, 2025: The statutory 10-business-day deadline for the records request. The HOA asserts it uploaded the unredacted check register to its online portal on this date.

• April 14 – April 21, 2025: The ALJ’s final decision establishes that the unredacted check register was made available on the portal during this period.

• May 19, 2025: Mr. Khran files a petition with the Arizona Department of Real Estate, alleging a violation of A.R.S. § 33-1805.

• September 17, 2025: The ALJ denies the Petitioner’s request for a subpoena requiring an in camera review, deeming it unnecessary.

• September 26, 2025: The ALJ denies the Petitioner’s motion to order an exchange of position statements but allows parties to file prehearing memorandums.

• October 22, 2025: The evidentiary hearing is held. Both John Khran and Dwight Jolivette provide sworn testimony.

• November 3, 2025: The official record for the hearing closes after a period allowing for the submission of post-hearing exhibits and responses.

• November 24, 2025: ALJ Velva Moses-Thompson issues the final decision, dismissing the petition.

Petitioner’s Position and Arguments

The Petitioner, represented by John Khran, contended that the HOA willfully withheld records and acted in bad faith, violating both the letter and spirit of state law.

Core Allegation: Violation of A.R.S. § 33-1805

The central claim was that the HOA failed to make records “reasonably available” by providing a version of the March 2025 check register with a blacked-out line item. Khran argued this act constituted a direct violation of the statute.

Argument 1: Improper and Targeted Redaction

• The redacted information consisted of routine financial metadata: general ledger code (5703), budget category (“Legal General”), and an invoice number (53189).

• Khran demonstrated that this information was not privileged by showing it was unredacted on other parts of the same document, in the prior month’s (February 2025) check register, and on the legal invoice itself.

• He argued the redaction served no lawful purpose and was applied specifically to his request, as evidenced by the HOA later publishing the full, unredacted version to the community portal.

• Key Quote: “This kind of inconsistent, personal and excessive reaction is not only justified, his violate the RS 331805A and respond statutory duty to treat all members fairly.”

Argument 2: Pattern of Non-Compliance and Bad Faith

• Khran asserted this was the HOA’s third violation of A.R.S. § 33-1805, citing cases 24F13 and 25FH11.

• He accused the board of adopting a “litigate every ing strategy,” escalating every complaint to the OAH rather than seeking resolution through mediation or negotiation, which he claimed caused “serious and lasting harm” to the 52-member community.

• He noted that the HOA ignored a subpoena’s explicit warning that “excessive or unjustified redactions” could be deemed bad faith.

Requested Relief

The Petitioner requested four specific orders from the court:

1. A finding that the Petitioner was the prevailing party.

2. Reimbursement of the $500 filing fee.

3. An order mandating the HOA’s future compliance with A.R.S. § 33-1805.

4. Imposition of a symbolic $1 civil penalty to deter future non-compliance and prevent the board from claiming vindication.

Respondent’s Position and Arguments

The Respondent, represented by its President Dwight Jolivette, maintained that it had complied with its statutory obligations and that the incident was an unintentional error.

Core Defense: Compliance via Portal Publication

• The HOA’s primary defense was that the unredacted March 2025 check register was made available for review by all members on the community portal on April 14, 2025, within the 10-day statutory deadline.

• Jolivette argued this action satisfied the requirement to make records “reasonably available for examination.”

• Key Quote: “Our sole question today is whether or not the board provided the March 2025 check register as requested by the petitioner under ARS 331805 for review within the 10day time frame specified by the law. Our position is we did.”

Argument 1: Clerical Error and Miscommunication

• Jolivette testified that sending the redacted check register was not intentional but was “simply a mistake caused by miscommunication.”

• He explained that both redacted and unredacted versions were prepared, and a clerk mistakenly included the redacted version in the mail packet sent to Khran. The board was unaware of the error until the complaint was filed.

Argument 2: Lack of Malicious Intent

• Jolivette argued that since the HOA publishes the check register unredacted for the entire community every month, there was no logical reason to single out Khran’s request for redaction.

• Key Quote: “Why? Why would we suddenly want to redact this stuff? We’re hoping for a little common sense here today to go along with the law.”

Argument 3: Petitioner’s Failure to Mitigate

• The Respondent pointed out that Khran, a former board member familiar with the process, did not contact the board to report the error. Had he done so, Jolivette stated, the issue would have been corrected immediately without the need for a formal hearing.

Administrative Law Judge’s Decision and Rationale

The ALJ’s final decision focused on the material facts and the legal concept of mootness, ultimately dismissing the Petitioner’s case.

Summary of Findings

1. Request and Response: The Petitioner submitted a records request on March 31, 2025. On or about April 10, 2025, the Respondent mailed copies of the requested items but “mistakenly gave Petitioner a redacted 2025 check register.”

2. Portal Publication: The Respondent uploaded an unredacted March 2025 check register to its online portal, making it available to all members, sometime between April 14, 2025, and April 21, 2025.

3. Lack of Evidence for Intent: The ALJ found “insufficient evidence to establish that Respondent purposefully neglected to mail Khran an unredacted March 2025 check register or that the failure to include the correct check register…was ‘personal.'”

4. No Pattern of Negligence: The decision also stated there was “insufficient evidence to establish that Respondent had a negligent pattern of responding to records requests in error or untimely.”

Central Legal Conclusion: Mootness

The core of the legal decision rested on the issue being moot. The ALJ determined that because the unredacted document was made available on the online portal before the Petitioner filed the complaint, the underlying issue was resolved.

• Key Quote from Decision: “It is undisputed that the unredacted March 2025 check register was uploaded to Respondent’s online portal which is available to all members before the petition was filed… Even if the unredacted check register was made available on its website after the 10-day statutory period, the issue is now moot.”

Final Order

“IT IS ORDERED that John R Krahn Living Trust / Janet Krahn Living Trust’s petition against Respondent Tonto Forest Estates Homeowners Association is dismissed.”

Study Guide: Krahn Living Trust v. Tonto Forest Estates Homeowners Association (No. 25F-H057-REL)

This study guide provides a comprehensive overview of the administrative hearing regarding the records request dispute between the John R. Krahn Living Trust and the Tonto Forest Estates Homeowners Association (HOA). It covers key legal concepts, procedural history, and the final judicial determination.

Section 1: Key Concepts and Case Overview

Case Summary

The central issue in case No. 25F-H057-REL was whether the Tonto Forest Estates Homeowners Association violated Arizona Revised Statute (A.R.S.) § 33-1805 by willfully withholding association records. The Petitioner, John Krahn, alleged that the HOA failed to provide an unredacted March 2025 check register within the legally mandated timeframe after a formal request.

The Parties

Party	Role	Representation/Key Figure
John R. Krahn Living Trust	Petitioner	John Krahn (Trustee and former board member)
Tonto Forest Estates HOA	Respondent	Dwight A. Jolivette (President)
Office of Administrative Hearings	Tribunal	Velva Moses-Thompson (Administrative Law Judge)

Legal Standards and Statutory Requirements

A.R.S. § 33-1805(A): Requires that all financial and other association records be made "reasonably available" for examination by a member or their representative.
Timeline: The association has ten business days to fulfill a request for examination or to provide copies.
Exemptions (A.R.S. § 33-1805(B)): Associations may withhold records in specific categories, such as privileged legal communications, but redactions must not exceed the minimum necessary to protect that information.
Burden of Proof: The Petitioner bears the burden of proving a violation by a preponderance of the evidence (showing the contention is "more probably true than not").

Section 2: Case Timeline (2025)

Date	Event
March 31	John Krahn submits a written records request for the March 2025 check register and legal invoices.
April 10	The HOA mails records to Krahn, but the check register contains redactions (blacked-out lines).
April 14	The HOA's online portal is updated with the unredacted check register (the 10th business day).
May 19	Krahn files a petition with the Arizona Department of Real Estate alleging a violation.
August 7	Notice of Hearing is issued.
September 2	ALJ grants a continuance, moving the hearing from Sept 8 to Oct 22.
September 17	ALJ denies a subpoena request for in camera review of evidence, citing it as unnecessary.
September 26	ALJ issues an "Order Nunc Pro Tunc" to correct a typographical error in a previous order.
October 22	Formal evidentiary hearing is conducted.
November 24	ALJ issues the Final Decision, dismissing the petition.

Section 3: Short-Answer Practice Questions

What specific document was at the heart of the dispute?

Answer: The March 2025 check register, which was initially provided to the Petitioner in a redacted format via mail.

How did the Respondent (HOA) explain the delivery of the redacted check register?

Answer: The HOA President testified it was a "clerical error" or "dumb mistake." A clerk accidentally mailed a version intended for internal training/legal review instead of the unredacted version.

According to A.R.S. § 33-1805, how many days does an association have to fulfill a records request?

Answer: Ten business days.

Why did the Petitioner argue that the redaction was targeted and improper?

Answer: Krahn argued the redacted information (ledger codes and invoice numbers) was routine financial metadata, was disclosed unredacted in other parts of the same document, and had been published unredacted in previous months.

What was the Petitioner’s requested "symbolic" remedy regarding the civil penalty?

Answer: A civil penalty of $1 to deter future non-compliance.

What was the ALJ’s primary reason for dismissing the petition?

Answer: The ALJ found the issue "moot" because the unredacted record had been made available on the community portal before the petition was filed, and there was insufficient evidence of "willful" withholding or a negligent pattern.

Section 4: Essay Prompts for Deeper Exploration

The Definition of "Reasonably Available": In this case, the HOA provided a redacted hard copy but posted an unredacted version on a digital portal. Analyze whether posting a document to a member portal satisfies the statutory requirement to make records "reasonably available" to a specific requester, especially if the requester is not notified of the digital upload.
Intent vs. Error in Administrative Law: The Respondent argued the violation was a "clerical error," while the Petitioner argued it was "willful" and "personal." Discuss the importance of proving "intent" or "bad faith" when seeking civil penalties in HOA disputes, citing the ALJ’s findings on the sufficiency of evidence.
The Doctrine of Mootness: The ALJ dismissed the case because the unredacted documents were eventually made available on the portal. Explore the implications of the "mootness" doctrine in records disputes. Does the eventual provision of records excuse a failure to meet the initial 10-day statutory deadline?

Section 5: Glossary of Important Terms

Administrative Law Judge (ALJ): A judge who overrules proceedings in administrative agencies, such as the Office of Administrative Hearings.
In Camera Review: A private review of sensitive documents by a judge (in their chambers) to determine if the information should be disclosed to the other party or used in court.
Moot: A legal term meaning that the matter has already been resolved or the circumstances have changed such that a judicial determination would have no practical effect.
Nunc Pro Tunc: A Latin phrase meaning "now for then." In this case, it refers to an order issued to correct a clerical or typographical error in a previous ruling, treating the correction as if it had been made on the original date.
Petitioner: The party who initiates the lawsuit or petition (in this case, the Krahn Living Trust).
Preponderance of the Evidence: The standard of proof in civil and administrative cases; it means that the evidence shows that a fact is more likely than not to be true.
Respondent: The party against whom a petition is filed (in this case, the Tonto Forest Estates HOA).
Subpoena: A legal order requiring a person to appear in court or to produce specific documents.
Willful Withholding: An intentional act of refusing to provide records, as opposed to an accidental or negligent omission.

The 10-Day Rule and the Portal Loophole: Lessons from a Recent Arizona HOA Transparency Dispute

The delicate friction between a homeowner’s statutory right to information and a board’s administrative execution remains a primary source of litigation in Arizona community associations. Under Arizona Revised Statute A.R.S. § 33-1805, homeowners are granted the right to inspect association records, and boards are mandated to make those records "reasonably available" within 10 business days. However, as the case of John R. Krahn Living Trust / Janet Krahn Living Trust vs. Tonto Forest Estates HOA (No. 25F-H057-REL) demonstrates, the distinction between a "clerical error" and "willful withholding" is often determined by the presence of a digital portal, which can provide a decisive legal "out" for associations even when technical violations occur.

2. The Conflict: Redactions, Records, and Requests

The dispute in this Mesa, Arizona community was triggered on March 31, 2025, when Petitioner John Krahn submitted a formal records request. He sought the March 2025 check register and all legal invoices from the association's counsel, Maxwell & Morgan, dating back to December 2024.

The conflict intensified when the HOA mailed a physical packet containing a redacted version of the check register. The Petitioner’s strategy centered on the theory of selective targeting, arguing that the redactions—which obscured routine financial metadata such as General Ledger codes—were unnecessary and intended to obstruct transparency.

Case at a Glance Petitioner: John R. Krahn Living Trust / Janet Krahn Living Trust Respondent: Tonto Forest Estates Homeowners Association (Mesa, Arizona) Statute in Question: A.R.S. § 33-1805 (Association financial and other records) Central Issue: Willful withholding of association records.

3. The Timeline of a Tipping Point

The legal determination rested on a narrow window of administrative activity in April 2025. The following timeline illustrates the sequence of events analyzed by the Administrative Law Judge (ALJ):

March 31, 2025: Petitioner submits the records request via email.
April 10, 2025: The HOA mails a physical packet containing a redacted version of the March check register.
April 14, 2025: The 10th business day deadline. The HOA’s management software generated a report which the Association claimed was synonymous with its upload to the community portal.
April 21, 2025: The Petitioner acknowledges the presence of the unredacted version on the community portal.
May 19, 2025: The Petitioner files a formal petition alleging a violation of A.R.S. § 33-1805.

A pivotal evidentiary moment occurred during the hearing when the Respondent introduced Exhibit A, an email from the former community manager dated October 22, 2025. This document served as the "smoking gun" for the defense, confirming that the unredacted register was uploaded to the portal on April 14, meeting the 10-day statutory requirement despite the errors in the physical mailing.

4. Inside the Hearing: Two Sides of a "Dumb Mistake"

During the hearing on October 22, 2025, the parties presented competing narratives regarding the Association's intent.

The Petitioner's Case

The Petitioner argued that the redactions served no lawful purpose under A.R.S. § 33-1805(B), noting that specific metadata, such as General Ledger code "5703 – Legal General," was left unredacted in other documents but obscured in the register sent to him. He alleged a "conscious disregard" for the tribunal’s authority, claiming the Association had simply "photocopied" excessive redactions from a prior subpoena response into the current request. Driven by principle, the Petitioner requested only a symbolic $1 civil penalty to underscore the need for accountability.

The Association's Defense

Dwight Jolivette, HOA President, characterized the mailing of redacted records as a "clerical error." He testified that the version sent to the Petitioner was actually a "training draft" intended for the Association’s attorney to review redaction standards, which was mailed by a clerk in error. The defense argued that because the unredacted version was accessible via the member portal by April 14, the Association had fulfilled its duty to make the records "reasonably available."

Competing Perspectives

Petitioner’s Claim: Willful Withholding	Respondent’s Claim: Clerical Error
Redactions were targeted, inconsistent, and obscured non-privileged metadata like GL Code 5703.	Redactions were part of a "training draft" for counsel, sent accidentally by administrative staff.
The Association showed bad faith by photocopying old redactions despite subpoena warnings.	The Association acted in good faith by ensuring unredacted files were live on the portal.
Failure to notify the Petitioner of the portal upload constitutes withholding.	Digital availability on the portal satisfies the "reasonably available" statutory standard.

5. The Verdict: Why the ALJ Dismissed the Case

On November 24, 2025, Administrative Law Judge Velva Moses-Thompson issued a decision dismissing the petition. The ruling was based on the "Preponderance of the Evidence" standard, finding the Petitioner did not meet the burden of proof.

The ALJ's dismissal focused on three legal pillars:

Insufficient Evidence of Malice: The court found no proof that the HOA "purposefully neglected" the request or that the error was "personal" in nature.
Lack of Pattern: There was no established history of the HOA consistently responding to records requests with negligent errors or delays.
The "Mootness" Nuance: This was the critical legal takeaway. The ALJ ruled that because the unredacted records were available on the member portal before the Petitioner filed his complaint in May, the issue was moot. Crucially, the court found that even if a technical timing violation occurred, the availability of the records prior to the filing of a petition effectively cures the violation.

6. Conclusion: Takeaways for Homeowners and Boards

The Tonto Forest Estates decision offers essential guidance for navigating the administrative complexities of HOA governance.

The "Portal Defense": This case establishes that digital availability can mitigate physical administrative errors. Boards should maintain a consistent "upload-first" policy for financial records to ensure they meet the "reasonably available" standard.
The Burden of Proof: Proving "willful" withholding is an exceptionally high bar. Administrative judges are reluctant to penalize boards for "dumb mistakes" or "clerical errors" in the absence of a documented, malicious pattern.
Communication First: A simple inquiry regarding the "clerical error" could have resolved the dispute. The ALJ’s findings suggest that homeowners should seek clarification or request a corrected copy before committing to the costs of a formal petition.
The High Cost of Friction: The Petitioner noted that legal expenses for this 52-member community had exceeded $135,000 due to a "litigate everything" environment. Transparency is not only a statutory duty but a fiduciary necessity to protect the association's financial health.

Document Credits & Statutory Reference

Primary Statute: Arizona Revised Statute § 33-1805
Case Reference: John R. Krahn Living Trust / Janet Krahn Living Trust vs. Tonto Forest Estates HOA, Case No. 25F-H057-REL

Case Participants

Petitioner Side

John R. Krahn (Trustee)
John R. Krahn Living Trust / Janet Krahn Living Trust
Testified on behalf of the petitioner; requested the records; former board member of the respondent HOA.

Respondent Side

Dwight A. Jolivette (President)
Tonto Forest Estates Homeowners Association
Testified on behalf of the respondent HOA.

Neutral Parties

Velva Moses-Thompson (Administrative Law Judge)
Office of Administrative Hearings
Presiding judge who issued the final administrative law judge decision.
Susan Nicolson (Commissioner)
Arizona Department of Real Estate
Listed in the transmission logs for the tribunal's orders and decisions.

R.L. Whitmer v. Hilton Casitas Council of Homeowners

Posted on November 19, 2025 by [email protected]

Case Summary

Case ID	25F-H056-REL
Agency	—
Tribunal	—
Decision Date	2025-11-19
Administrative Law Judge	JC
Outcome	—
Filing Fees Refunded	—
Civil Penalties	—

Parties & Counsel

Petitioner	R.L. Whitmer	Counsel	Pro Se
Respondent	Hilton Casitas Council of Homeowners	Counsel	Emily Mann, Esq.

Alleged Violations

No violations listed

Video Overview

Audio Overview

Decision Documents

25F-H056-REL Decision – 1335493.pdf

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25F-H056-REL Decision – 1335502.pdf

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25F-H056-REL Decision – 1335656.pdf

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25F-H056-REL Decision – 1352057.pdf

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25F-H056-REL Decision – 1352067.pdf

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25F-H056-REL Decision – 1353232.pdf

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25F-H056-REL Decision – 1357681.pdf

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25F-H056-REL Decision – 1360270.pdf

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25F-H056-REL Decision – 1369834.pdf

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Briefing Document: Whitmer v. Hilton Casitas Council of Homeowners

Executive Summary

This briefing document synthesizes the legal dispute between homeowner R.L. Whitmer (Petitioner) and the Hilton Casitas Council of Homeowners (Respondent), culminating in a decision by an Arizona Administrative Law Judge (ALJ). The case, docket number 25F-H056-REL, centered on allegations that the Homeowners Association (HOA) violated Arizona’s open meeting laws during and after a special meeting of the members on April 7, 2025.

The Petitioner alleged three primary statutory violations of A.R.S. § 33-1248: (1) failure to provide a meeting agenda, (2) denial of the opportunity to speak, and (3) holding an unnoticed informal meeting with a quorum of the board present. The Respondent countered that the meeting was a special meeting of the members, not a board meeting, that the petitioner never explicitly requested to speak, and that the post-meeting gathering was an informal discussion among neighbors, not an official meeting.

The ALJ’s final decision, issued on November 19, 2025, resulted in a partial victory for the Petitioner. The judge found the HOA in violation of A.R.S. § 33-1248(A) for failing to provide an opportunity for the Petitioner to speak, deeming the HOA’s argument that he did not make an explicit request “disingenuous.” The other two allegations were dismissed. Consequently, a civil penalty of $167.00 was imposed on the Respondent, but the Petitioner’s request for reimbursement of his $500.00 filing fee was denied.

I. Case Overview

Case Name

In the Matter of R.L. Whitmer, Petitioner, v. Hilton Casitas Council of Homeowners, Respondent

Docket Number

25F-H056-REL

Adjudicating Body

Arizona Office of Administrative Hearings (OAH)

Administrative Law Judge

Jenna Clark

Referring Agency

Arizona Department of Real Estate (ADRE)

Petitioner

R.L. Whitmer (appearing on his own behalf)

Respondent

Hilton Casitas Council of Homeowners

Respondent’s Counsel

Emily Mann, Esq. (Phillips Maceyko & Battock, PLLC)

Respondent’s Witness

Robert Westbrook (HOA President)

Date of Incident

April 7, 2025

Petition Filed

April 9, 2025

Hearing Date

November 3, 2025

ALJ Decision Date

November 19, 2025

II. Petitioner’s Allegations and Requested Relief

On April 9, 2025, R.L. Whitmer filed a Homeowners Association Dispute Process Petition with the ADRE, alleging violations stemming from a “special meeting” presided over by HOA President Bob Westbrook on April 7, 2025.

Core Allegations:

• Failure to Provide an Agenda (A.R.S. § 33-1248(E)(1)): The Petitioner alleged that the HOA failed to provide an agenda for the meeting. The petition states, “When asked for the agenda…Mr. Westbrook stated there was no agenda.”

• Denial of Opportunity to Speak (A.R.S. § 33-1248(A)): The Petitioner claimed he was denied the opportunity to speak during the noticed session. The petition reads, “When asked for the opportunity to speak during the noticed session, Mr. Westbrook stated there would not be such an opportunity.”

• Unnoticed Meeting (A.R.S. § 33-1248(E)(4)): The Petitioner alleged that after the special meeting was adjourned, the board “unlawfully proceeded to hold an unnoticed meeting with a quorum of the board present.”

• Violation of Association Declaration: The petition initially cited a violation of “Article 23 § 23.9 of the Declaration of Horizontal Property Regime for Hilton Casitas.” During the hearing, the Petitioner acknowledged this was included in error and abandoned the claim.

Requested Relief:

1. An order directing the Respondent to abide by the Arizona statutes specified in the complaint.

2. The imposition of a civil penalty against the Respondent for the alleged violations.

III. Respondent’s Position and Defense

The Hilton Casitas HOA, represented by counsel, denied all allegations and argued for the petition’s complete dismissal.

Core Defense Arguments:

• Agenda Not Required for Member Meeting: The Respondent contended that the April 7, 2025 meeting was a “special meeting of the members” for the sole purpose of ratifying a revised budget, not a “meeting of the board of directors.” Therefore, the specific agenda requirements of A.R.S. § 33-1248(E)(1) did not apply.

• Ballot Packet Served as Agenda: Even if an agenda were required, the absentee ballot packet—which included a letter explaining the budget, the revised budget itself, and the ballot—sufficiently notified the membership of the meeting’s sole purpose.

• Petitioner Never Explicitly Requested to Speak: The Respondent argued that the Petitioner never made a formal request to speak. Citing the hearing transcript, they noted that in response to being asked if he cared to vote, the Petitioner stated, “I’m waiting for the public comment.” The defense argued this statement was not a direct request to speak.

• “Town Hall” Was Not a Board Meeting: The HOA characterized the gathering after the formal meeting as an “informal town hall discussion” where President Westbrook invited neighbors to stay at his home for a “neighborly conversation.” They asserted that no association business was conducted and that the mere presence of a quorum of board members did not transform the gathering into a formal, unnoticed board meeting, which would lead to the “absurd result” of directors being prohibited from attending member events.

IV. Procedural History and Hearing Chronology

• April 9, 2025: Petition filed by R.L. Whitmer.

• April 30, 2025: Petitioner pays the $500.00 single-issue filing fee.

• June 6, 2025: Respondent files its answer, denying all complaint items.

• June 24, 2025: ADRE issues a Notice of Hearing, scheduling it for August 1, 2025.

• August 1, 2025: Petitioner moves to continue the hearing to amend his petition.

• August 11, 2025: Petitioner submits an Amended HOA Dispute Petition.

• September-October 2025: A series of motions are filed, including a Motion for Summary Judgment by the Petitioner and a Cross-Motion for Summary Judgment by the Respondent.

• October 8, 2025: The OAH issues an order denying the Petitioner’s motion and dismissing his Amended Petition with prejudice, but allowing the original petition to proceed.

• November 3, 2025: The continued hearing is held remotely before ALJ Jenna Clark. R.L. Whitmer testifies on his own behalf, and Robert Westbrook testifies for the Respondent.

• November 19, 2025: ALJ Clark issues the final Administrative Law Judge Decision.

V. Administrative Law Judge’s Final Decision and Rationale

The ALJ granted the petition in part and denied it in part, finding the Respondent in violation of one of the three alleged statutory provisions.

The ALJ found that the Respondent violated the Petitioner’s right to speak. The decision concluded that although the Petitioner did not make an explicit request, his statement, “I’m waiting for the public comment,” was a clear and unequivocal indication of his desire to be heard.

• Rationale: The judge found the Respondent’s counterargument to be “disingenuous,” stating, “It cannot be faithfully argued that the HOA President was unaware Petitioner was desirous of speaking. Animosity notwithstanding, Petitioner should have been afforded a reasonable amount of time to be heard prior to adjournment.”

The ALJ ruled that the Respondent did not violate the statute regarding meeting agendas.

• Rationale: The decision affirms the Respondent’s position, stating, “the record clearly reflects that the April 07, 2025, special meeting was not a meeting of the board of directors, and did have an agenda issued to members in advance – as evidenced by the ballot and memorandum which provided objectively reasonable detail regarding the purpose and scope of the meeting.”

The ALJ determined that the post-meeting gathering did not constitute an illegal unnoticed meeting.

• Rationale: The judge concluded that “the existence of a quorum, intentional or otherwise, absent open discussion of Association business does not a meeting make.” The decision further supported the Respondent’s argument that holding otherwise “would unintentionally result in absurdity.”

VI. Final Order and Sanctions

Based on the findings, the final order established the following:

1. Petition Status: The petition was granted in part (for the A.R.S. § 33-1248(A) violation) and denied and dismissed for all other allegations.

2. Civil Penalty: The Respondent was ordered to pay a civil penalty of $167.00 to the ADRE within thirty days for the violation.

3. Filing Fee Reimbursement: The Petitioner’s request to be reimbursed for the $500.00 filing fee was denied.

4. Future Compliance: The Respondent was ordered to not violate A.R.S. § 33-1248(A) henceforth.

Study Guide: R.L. Whitmer v. Hilton Casitas Council of Homeowners

This study guide provides a comprehensive overview of the administrative legal dispute between R.L. Whitmer (Petitioner) and the Hilton Casitas Council of Homeowners (Respondent). It explores the application of Arizona’s Open Meeting Laws, the procedural requirements of the Office of Administrative Hearings (OAH), and the nuances of statutory interpretation in homeowners' association (HOA) disputes.

Key Concepts and Case Background

The Core Dispute

The case (File No. 25F-H056) centers on whether the Hilton Casitas HOA violated Arizona Revised Statutes (A.R.S.) regarding open meetings during a budget ratification process on April 7, 2025. The Petitioner alleged that the HOA failed to provide an agenda, refused to allow him to speak, and held an unnoticed informal meeting ("Town Hall") involving a quorum of the board.

Relevant Legislation: A.R.S. § 33-1248

This statute serves as the foundation for the litigation. Its primary components include:

Subsection A: Requires that meetings of unit owners' associations and boards of directors be open to all members and that members be allowed to speak at appropriate times during deliberations.
Subsection E(1): Mandates that an agenda be available in advance for unit owners attending board of directors meetings.
Subsection E(4): Requires any quorum of the board meeting informally to discuss association business (including workshops) to comply with open meeting and notice provisions.
Subsection F: Declares the state's policy that all condominium meetings be conducted openly and that notices/agendas contain information reasonably necessary to inform owners of matters to be decided.

Procedural History

Initial Petition (April 2025): Filed by Whitmer regarding a $500 single-issue fee.
Stay and Amended Petition (August 2025): Whitmer attempted to amend the petition to include additional issues but failed to pay the required additional $1,000 in filing fees.
Summary Judgment Motions (September-October 2025): Both parties filed for summary judgment. The ALJ dismissed the amended petition with prejudice but allowed the original petition to proceed.
Hearing (November 3, 2025): A remote hearing was conducted via Google Meet, involving testimony from Whitmer and HOA President Robert Westbrook.

Short-Answer Practice Questions

Question	Answer based on Source Context
1. What was the specific purpose of the April 7, 2025, special meeting?	To ratify the 2025 revised budget and approve a $300 per month dues increase due to insolvency.
2. Why was the Petitioner’s amended petition dismissed with prejudice?	He failed to pay the $1,000 filing fee for the additional issues identified in the amendment.
3. How many ballots were cast in the budget ratification, and what was the result?	25 of 29 ballots were received; 24 voted "Yes" and 1 voted "No."
4. What was the HOA's primary defense against the charge of failing to provide an agenda?	They argued the meeting was a "Special Meeting of Members," not a Board meeting, and that the ballot packet itself served as the agenda.
5. What did the Petitioner say when asked if he cared to vote during the meeting?	He stated, "I'm waiting for the public comment."
6. Why did the ALJ dismiss the allegation regarding the "Town Hall" meeting?	The ALJ ruled that the existence of a quorum at an informal gathering does not constitute a meeting unless association business is discussed; to rule otherwise would lead to "absurdity."
7. What was the final civil penalty imposed on the Respondent?	$167.00.
8. Which specific statutory subsection did the ALJ find the Respondent had violated?	A.R.S. § 33-1248(A).

Essay Prompts for Deeper Exploration

1. The Nuance of "Explicit" vs. "Implied" Requests to Speak

In the hearing, the Respondent argued that Petitioner never explicitly asked to speak. However, the ALJ found that Petitioner's statement—"I'm waiting for the public comment"—was a clear and unambiguous indication that he wished to be heard. Discuss the implications of this ruling for HOA boards. Should boards be required to proactively offer a comment period, or should the burden remain on the homeowner to use specific "magic words" to trigger their rights under A.R.S. § 33-1248(A)?

2. Statutory Interpretation and the "Absurd Result" Doctrine

The ALJ noted that prohibiting board members from attending informal social gatherings where a quorum might naturally occur (like the "Town Hall" at a member's home) would result in an "absurd result." Analyze how this doctrine balances the need for transparency in governance with the personal rights of board members to exist as individual members of a community. Where should the line be drawn between a "neighborly discussion" and "informal business discussion" under A.R.S. § 33-1248(E)(4)?

3. The Impact of Litigiousness on Association Governance

The source context highlights an "acrimonious relationship" between the parties, noting approximately 25 legal actions filed by the Petitioner in 10 years. Explore how persistent litigation affects an HOA's ability to remain solvent and functional. To what extent should an ALJ consider the history and motivations of the parties when determining the necessity of civil penalties or the reimbursement of filing fees?

Glossary of Important Terms

ADRE (Arizona Department of Real Estate): The state agency authorized to receive and decide petitions for hearings from members of homeowners' associations.
ALJ (Administrative Law Judge): The presiding official at the Office of Administrative Hearings who hears evidence and issues a decision (in this case, Jenna Clark).
Amended Petition: A revised legal document intended to add or change claims; in this case, it was dismissed because the Petitioner did not pay the additional $500-per-issue fee.
Dismissal With Prejudice: A final judgment on the merits of a case that prevents the same parties from filing another lawsuit on the same claim.
Insolvency: A financial state where an association's expenses exceed its budget and reserves, as was the case with Hilton Casitas before the dues increase.
OAH (Office of Administrative Hearings): An independent state agency in Arizona that conducts hearings for various state agencies.
Open Meeting Law: Statutes (specifically A.R.S. § 33-1248 for condominiums) requiring that the deliberations and actions of governing bodies be open to the public.
Preponderance of the Evidence: The burden of proof in civil and administrative cases, meaning the claim is "more probably true than not."
Quorum: The minimum number of members of an assembly or board that must be present at any of its meetings to make the proceedings of that meeting valid.
Ratification: The official way to approve an action that has been proposed, such as the 2025 budget in this dispute.
Summary Judgment: A legal move where one party asks the judge to decide the case based on the facts already in the record, without going to a full hearing.

Transparency in the Neighborhood: Lessons from the Hilton Casitas HOA Legal Ruling

1. Introduction: A Seven-Minute Meeting with Lasting Consequences

On the afternoon of April 7, 2025, a group of homeowners gathered at a private residence in Scottsdale, Arizona, for what was intended to be a routine special meeting of the Hilton Casitas Council of Homeowners. The stakes, however, were anything but routine: a proposed budget that would significantly impact every resident's wallet. Despite the gravity of the financial discussion, the official meeting was remarkably brief, lasting only seven minutes.

What transpired in that narrow window sparked a pivotal legal battle between homeowner R.L. Whitmer and the HOA Board. This case highlights the "procedural trap" many small boards fall into when they prioritize administrative expediency over the statutory speech rights of their members. It serves as a stark reminder that in the world of community governance, even the most "neighborly" interactions must strictly adhere to the law, or face the consequences of judicial scrutiny.

2. Case Background: The $300 Question

The conflict originated when the Hilton Casitas Board of Directors conducted its 2025 budget assessment and determined the association was essentially insolvent. To rectify the shortfall, the Board proposed a revised budget that was 21% higher than the previous year. For the individual homeowner, this translated to a $300 monthly dues increase—a staggering 75% jump from the 2024 rate of $400 to a new rate of $700.

The HOA cited three primary drivers for this financial crisis:

Maintenance: Escalating costs related to the community’s aging physical infrastructure.
Insurance: Significant and unforeseen spikes in premiums and difficulty maintaining coverage.
Legal Expenses: A budget line item exhausted by an "acrimonious relationship" between the parties, characterized by approximately 25 legal actions filed over the last decade.

3. The Three Legal Pillars: Analyzing the Allegations

The Petitioner, R.L. Whitmer, alleged three specific violations of A.R.S. § 33-1248, commonly known as the Arizona Open Meeting Law for condominiums. The following table compares these statutory allegations against the findings of the Administrative Law Judge (ALJ):

Statute/Allegation	Petitioner’s Argument	Judicial Finding
A.R.S. § 33-1248(E)(1) (Agenda)	Argued the Board failed to provide a formal meeting agenda, claiming a budget memorandum was insufficient.	No Violation. The Judge found the memorandum and ballot provided enough detail to inform owners of the meeting's purpose.
A.R.S. § 33-1248(A) (Right to Speak)	Claimed he was denied a chance to speak before the meeting was abruptly adjourned.	Violation. The Judge ruled the Board failed to allow the Petitioner to speak despite his clear indication that he wished to be heard.
A.R.S. § 33-1248(E)(4) (Informal Quorum)	Contended that a post-meeting "Town Hall" was actually an unnoticed board meeting because a quorum was present.	No Violation. The Judge determined the gathering was a social interaction and not a venue for "workshopping" official business.

4. The "Public Comment" Turning Point

The centerpiece of the ALJ’s ruling was the Board’s failure to honor the "Right to Speak" provision. During the special meeting, Board President Robert Westbrook asked the Petitioner if he wished to cast a vote. The following exchange, recorded in the transcript, became the "aha!" moment for the court:

Mr. Westbrook: "Do you care to vote?" Mr. Whitmer: "I’m waiting for the public comment." Mr. Westbrook: "I’m just asking if you’re going to vote." Mr. Whitmer: "No, I’m not."

Shortly after this exchange, the meeting was adjourned without a public comment period. The Board’s defense—that the Petitioner never used "magic legal words" to explicitly ask for the floor—was rejected by the ALJ as "disingenuous." The ruling clarified that stating one is "waiting for public comment" is a clear request to be heard. Under Arizona law, boards must allow members to speak before taking formal action or adjourning; failing to do so is a statutory violation.

5. The "Town Hall" Debate: When a Quorum is Just a Gathering

Following the seven-minute meeting, the Board President invited attendees to stay for an informal discussion, which one board member colloquially called a "Town Hall." While a quorum of the board remained, the ALJ ruled this was not a violation of unnoticed meeting laws.

The legal distinction relies on the concept of "Two Hats": a director does not lose their rights as an individual homeowner simply because they serve on a board. In this instance, the directors were acting in their capacity as neighbors engaging in social interaction, rather than "workshopping" or deciding association business.

The "Absurdity" Argument The ALJ emphasized that a literal interpretation of the law barring board members from ever gathering socially would lead to "absurd" results. If the mere presence of a quorum at a neighborhood social event transformed it into an official board meeting, directors would effectively be barred from any community interaction. The law does not intend to exile board members from their own neighborhoods.

6. The Verdict: The $167 Penalty

On November 19, 2025, the Office of Administrative Hearings issued the Final Order, which included the following outcomes:

Partial Victory: The petition was granted specifically regarding the violation of A.R.S. § 33-1248(A).
Fee Denial: The Petitioner was denied reimbursement for his $500 filing fee; both parties were ordered to bear their own costs.
Civil Penalty: The HOA was ordered to pay a civil penalty of $167.00 directly to the Arizona Department of Real Estate.
Cease and Desist: The HOA was formally directed to comply with the Open Meeting Law and not violate this provision in the future.

7. Compelling Conclusion & Homeowner Takeaways

The Hilton Casitas ruling serves as a vital lesson in balancing administrative efficiency with the protection of homeowner rights. Transparency in community governance is not a courtesy; it is a statutory mandate.

Critical Takeaways for the Community:

For Boards: Don't Ignore the "Waiting" Member. You do not need to hear a formal motion to speak. If a homeowner indicates they are waiting for a comment period, the Board must provide a reasonable window for them to be heard before the gavel falls.
For Homeowners: Rights Have Limits. While you have a fundamental right to speak at meetings, not every gathering of your neighbors—even those on the board—constitutes a secret meeting. The "two hats" doctrine protects the social fabric of the community.
The Cost of Acrimony: The ALJ noted a decade of friction, including 25 legal actions, contributed significantly to the budget crisis. When a community chooses litigation over communication, the financial impact—in this case, a 75% dues increase—is felt by every neighbor.

Ultimately, this case proves that even in a meeting lasting only seven minutes, the failure to listen can lead to months of litigation and costly penalties.

Case Participants

Petitioner Side

R.L. Whitmer (Petitioner)
Hilton Casitas Council of Homeowners
Homeowner appearing on his own behalf

Respondent Side

Emily Mann (Counsel)
Phillips Maceyko & Battock, PLLC
Counsel for Respondent
Robert Westbrook (President / Witness)
Hilton Casitas Council of Homeowners
HOA President and unit owner
Karen Kass (Statutory Agent)
Hilton Casitas Council of Homeowners
John Brooke (Director)
Hilton Casitas Council of Homeowners
Curt Richard Roberts (Secretary)
Hilton Casitas Council of Homeowners
Recorded meeting minutes
Jay Panzer (Director)
Hilton Casitas Council of Homeowners
Recorded the April 7th meeting
James Cox (Treasurer)
Hilton Casitas Council of Homeowners

Neutral Parties

Jenna Clark (Administrative Law Judge)
Office of Administrative Hearings
Presiding judge
Susan Nicolson (Commissioner)
Arizona Department of Real Estate
Liz Recchia (Division Manager)
Arizona Department of Real Estate

Other Participants

Mike Benson (Former Board Member)
Hilton Casitas Council of Homeowners
Mentioned during the hearing as attending the gathering

JOHN R KRAHN LIVING TRUST / JANET KRAHN LIVING TRUST v. TONTO FOREST ESTATES HOMEOWNERS ASSOCIATION

Posted on November 18, 2025 by [email protected]

Case Summary

Case ID	25F-H076-REL
Agency	Arizona Department of Real Estate
Tribunal	—
Decision Date	2025-11-18
Administrative Law Judge	SF
Outcome	Petitioner failed to meet his burden that the documents were not made reasonably available and that Respondent failed to meet their requirement to produce those documents within ten days.
Filing Fees Refunded	—
Civil Penalties	—

Parties & Counsel

Petitioner	JOHN R KRAHN LIVING TRUST / JANET KRAHN LIVING TRUST	Counsel	—
Respondent	TONTO FOREST ESTATES HOMEOWNERS ASSOCIATION	Counsel	—

Alleged Violations

No violations listed

Video Overview

Audio Overview

Decision Documents

25F-H076-REL Decision – 1356556.pdf

Uploaded 2026-04-24T12:54:46 (46.4 KB)

25F-H076-REL Decision – 1357642.pdf

Uploaded 2026-04-24T12:54:50 (49.7 KB)

25F-H076-REL Decision – 1359021.pdf

Uploaded 2026-04-24T12:54:54 (8.2 KB)

25F-H076-REL Decision – 1369428.pdf

Uploaded 2026-04-24T12:54:58 (115.8 KB)

Briefing Document: Krahn Living Trust v. Tonto Forest Estates HOA (Case No. 25F-H076-REL)

Executive Summary

This document synthesizes the proceedings and outcome of Case No. 25F-H076-REL, heard by the Arizona Office of Administrative Hearings (OAH). The case centered on a petition filed by the John R Krahn Living Trust (“Petitioner”) against the Tonto Forest Estates Homeowners Association (“Respondent”), alleging a violation of A.R.S. § 33-1805 for failing to provide association records within the statutory 10-business-day deadline.

The Petitioner’s case was built on the assertion that a valid written request was sent via email on June 1, 2025, to the HOA Secretary, followed by another email and two voicemails. The Petitioner presented extensive arguments based on the legal principle of “rebuttable presumption of receipt” and a statistical analysis claiming the probability of all communication attempts failing was astronomically low, thus evidencing bad faith and intentional non-compliance by the Respondent.

The Respondent’s defense was that they never received the email or voicemails in question. They argued that email is an unreliable communication method and that the burden of proof for delivery and receipt rested solely with the Petitioner. They further contended that established protocol required requests to be made through the community manager.

The final decision, issued by Administrative Law Judge (ALJ) Samuel Fox, found in favor of the Respondent. The ruling hinged on a Cease and Desist letter issued by the HOA to the Petitioner in March 2025. The ALJ determined this letter established a new, “reasonable” process for communication, requiring the Petitioner to submit all future correspondence via physical mail to the management office. By sending his request via email, the Petitioner disregarded this specific directive. Consequently, the ALJ concluded that the Petitioner failed to meet his burden of proof, as a reasonable method for submitting requests was available but was not used.

Case Overview

Case Number

25F-H076-REL

Tribunal

Arizona Office of Administrative Hearings (OAH)

Presiding Judge

Samuel Fox, Administrative Law Judge

Petitioner

John R Krahn Living Trust / Janet Krahn Living Trust (Represented by John R. Krahn)

Respondent

Tonto Forest Estates Homeowners Association (Represented by Dwight A. Jolivette, President)

Core Allegation

Violation of A.R.S. § 33-1805 by failing to provide requested association records within the statutory 10-business-day deadline.

Final Outcome

Respondent deemed the prevailing party.

Chronology of Key Events

March 21, 2025

Respondent issues a formal Cease and Desist letter to Petitioner, directing that future correspondence be submitted in writing and mailed to the management office.

June 1, 2025

Petitioner sends an email with a records request to three known email addresses for HOA Secretary Kenneth Riley.

June 3, 2025

Petitioner sends a follow-up email to the same three addresses.

June 16, 2025 (approx.)

The 10-business-day statutory deadline for a response passes.

June 23, 2025

Petitioner leaves voicemail messages for Secretary Riley and Community Manager Barbara Bonilla regarding the overdue request.

July 25, 2025

Petitioner files a petition with the Arizona Department of Real Estate alleging a violation of A.R.S. § 33-1805.

September 29, 2025

A subpoena is issued in the matter.

October 3, 2025

ALJ Fox issues an order quashing the September 29 subpoena.

October 6, 2025

Petitioner submits a Motion to Reconsider.

October 14, 2025

ALJ Fox denies the Motion to Reconsider and a motion for summary judgment, and sets preliminary disclosure deadlines for October 24, 2025.

October 29, 2025

The administrative hearing is held.

November 18, 2025

ALJ Fox issues the final decision, ruling in favor of the Respondent.

Petitioner’s Central Arguments and Evidence

The Petitioner’s case was built on the premise that multiple, redundant communication attempts were made in good faith and that the Respondent’s claim of non-receipt was statistically impossible and indicative of bad faith.

• Statutory Compliance: The Petitioner argued that A.R.S. § 33-1805 simply requires a “written request” and that his emails on June 1 and June 3 satisfied this requirement. He stated, “Email is in writing and is a method used extensively by respondent.”

• Proper Recipient: The request was directed to HOA Secretary Ken Riley, who, according to bylaw 5.5, “shall have charge of all of the association’s books, records, and papers.” The Petitioner included this bylaw in his email to the Secretary.

• Rebuttable Presumption of Receipt: The Petitioner cited Arizona case law (Lee v. State) and the “mailbox rule,” arguing that sending an email to a correct, functioning address without a bounce notification creates a legal presumption of receipt. This, he claimed, shifted the burden to the Respondent to prove non-receipt with evidence such as server logs, which they failed to provide.

• Evidence of Intentional Evasion: The Petitioner introduced an email from Secretary Riley dated October 13, 2025 (Exhibit 6), as proof of intentional obstruction. In it, Mr. Riley stated:

◦ “You are currently blocked from sending emails to my work and will continue to be blocked.”

◦ “since your email earlier email did not bounce you clearly know I have seen it.” The Petitioner argued this was a “direct admission that the absence of a bounce notification to a known good email address confirms receipt.”

• Statistical Improbability of Failure: A core part of the Petitioner’s argument was a mathematical analysis suggesting the probability of all communication attempts failing was infinitesimal.

◦ The odds of four emails failing was calculated as 1 in 6.25 million.

◦ The odds of two independent voicemails failing was calculated as 1 in 10,000.

◦ The combined probability of all six attempts failing was stated to be “approximately 1 in 62.5 billion.”

• Pattern of Non-Compliance: The Petitioner claimed this was the Respondent’s “fourth time they violate 1805” and that this pattern justified a civil penalty to deter future misconduct.

Respondent’s Central Arguments and Evidence

The Respondent’s defense was centered on a simple claim of non-receipt, the unreliability of electronic communication, and the assertion that the Petitioner failed to follow the proper procedure for requests.

• Claim of Non-Receipt: The Respondent’s primary position was, “Our position is very simple, straightforward. We didn’t get it.” They framed the dispute as a “he said she said situation where neither side can definitively prove their position.”

• Unreliability of Technology: Respondent’s representative, Dwight Jolivette, drew on his military background in information systems to argue that technology is not perfectly reliable. He cited potential issues like work-controlled laptops, server filters, travel, and other variables as reasons the email may not have been delivered. He stated, “technology especially in the communications area as much as we like to believe opposite is not as reliable as people think.”

• Burden of Proof: The Respondent consistently maintained that the burden was on the Petitioner to prove that the “email reached its intended destination.” They argued, “How are we supposed to respond to an email that we don’t have?”

• Cease and Desist Directive: The Respondent argued that a cease and desist letter sent in March 2025 established a specific communication protocol for the Petitioner, requiring him to use U.S. mail for all correspondence with the management company.

• Established Protocol: Mr. Jolivette testified that the unwritten “best practice” was for records requests to be sent to the community manager, who holds the documents, rather than the volunteer board secretary.

• Submitted Evidence: Respondent submitted written statements (Exhibits A and B) from Secretary Ken Riley and Community Manager Barbara Bonilla, both stating they had no record of receiving the emails or voicemails in question.

Final Decision and Rationale

ALJ Samuel Fox’s decision on November 18, 2025, sided with the Respondent. The ruling did not focus on the technical arguments about email delivery but on the legal standard of “reasonability” established by A.R.S. § 33-1805.

• Key Findings of Fact:

◦ On March 21, 2025, Respondent issued a Cease and Desist letter demanding the Petitioner stop email communication with the community manager.

◦ The letter specified a new procedure: “any concerns or correspondence must be submitted in written form and mailed to the Association’s management office at the following address.”

◦ The letter also stated that Respondent would continue to comply with records requests.

◦ Prior to this letter, it was undisputed that the community manager was the appropriate recipient for such requests.

• Conclusions of Law and Rationale:

◦ The ALJ determined that A.R.S. § 33-1805 does not prohibit an association from establishing a specific, reasonable process for requesting documents.

◦ The Cease and Desist letter provided a “clear process for future requests” for this specific Petitioner.

◦ The requirement to submit requests via physical mail was deemed “reasonable.”

◦ The decision states, “the preponderance of the evidence established that Respondent informed Petitioner about how to submit future requests, and Petitioner disregarded that information.”

◦ The final conclusion was that the Petitioner “failed to meet his burden that the documents were not made reasonably available and that Respondent failed to meet their requirement to produce those documents within ten days.”

The judge noted that the outcome would have been different if the Petitioner had been completely prohibited from contacting the community manager, but the letter provided a specific, alternative method of contact (mail) which the Petitioner chose not to use.

Case Study Guide: John R. Krahn Living Trust v. Tonto Forest Estates HOA

This study guide provides a comprehensive analysis of the legal dispute between the John R. Krahn Living Trust and the Tonto Forest Estates Homeowners Association (HOA), adjudicated under Case No. 25F-H076-REL at the Arizona Office of Administrative Hearings (OAH).

I. Key Legal Concepts and Statutes

A. Arizona Revised Statutes (A.R.S.) § 33-1805

The central statute in this matter governs the availability of association records. It mandates that all financial and other records of an HOA must be made "reasonably available" for examination by any member. Once a written request is made, the association has 10 business days to fulfill it.

B. Burden of Proof: Preponderance of the Evidence

In administrative hearings of this nature, the Petitioner bears the burden of proof. They must demonstrate that the Respondent violated the statute by a "preponderance of the evidence," meaning the contention is "more probably true than not." Conversely, the Respondent bears the same burden for any affirmative defenses raised.

C. The "Mailbox Rule" and Rebuttable Presumption

This legal principle suggests that proof of proper mailing (or, by analogy, sending an email to a functioning address) creates a rebuttable presumption that the recipient received the communication. In this case, the Petitioner argued that the lack of a "bounce notification" for his emails functioned as near-certain proof of delivery.

D. Administrative Reasonability

The Administrative Law Judge (ALJ) interpreted A.R.S. § 33-1805 through the lens of "reasonability." The statute does not prohibit associations from establishing specific processes for requests, nor does it mandate that associations must accept requests via email, provided a reasonably accessible method (such as physical mail) is available.

II. Case Timeline and Factual Background

Date	Event
March 21, 2025	HOA issues a formal Cease and Desist (C&D) letter to Petitioner, requiring all future correspondence to be sent via physical mail to the management office.
June 1, 2025	Petitioner sends an email record request to Secretary Kenneth Riley at three known email addresses.
June 3, 2025	Petitioner sends a follow-up email regarding the June 1st request.
June 16, 2025	The statutory 10-business-day deadline for the June 1st request expires.
June 23, 2025	Petitioner leaves voicemails for Secretary Riley and Community Manager Barbara Bonilla.
July 25, 2025	Petitioner files a formal petition with the Arizona Department of Real Estate alleging a violation of A.R.S. § 33-1805.
Oct 29, 2025	Formal hearing held at the OAH in Phoenix, Arizona.
Nov 18, 2025	ALJ Samuel Fox issues the final decision, ruling in favor of the Respondent (HOA).

III. Short-Answer Practice Questions

Who was the designated custodian of association records according to the Tonto Forest Estates Bylaws?

Answer: The Secretary of the Board (specifically Kenneth Riley during the period in question).

What was the primary reason the ALJ ruled against the Petitioner despite the Petitioner proving he sent multiple emails?

Answer: A prior Cease and Desist letter had established a specific, reasonable protocol for communication (physical mail), which the Petitioner disregarded by using email.

According to the Petitioner's mathematical analysis, what were the odds that all of his communication attempts (six emails and two voicemails) failed purely due to technical error?

Answer: Approximately 1 in 62.5 billion.

What specific record was the Petitioner seeking in his June 1, 2025, request?

Answer: An unprivileged invoice from CAI LLC.

Where is the Office of Administrative Hearings located?

Answer: 1740 West Adams Street, Lower Level, Phoenix, Arizona 85007.

How did the Respondent (HOA) justify the claim that technology is unreliable for legal notice?

Answer: The HOA President cited his military background in satellite communications and "Information Systems Command," arguing that "gremlins" and technical blind spots can prevent delivery without generating bounce notifications.

Does A.R.S. § 33-1805 explicitly require HOAs to accept record requests via email?

Answer: No. The statute does not specify the medium; it requires only that records be made "reasonably available."

IV. Essay Prompts for Deeper Exploration

1. The Intersection of Bylaws and Operational Protocols

Prompt: The Petitioner argued that Bylaw 5.5 made the Secretary the "custodian of records," and therefore his emails to the Secretary were legally sufficient. The Respondent argued that document requests were delegated to the Community Manager. Analyze how the ALJ resolved this conflict. In your response, address whether an HOA’s internal delegation of tasks can override statutory or bylaw-defined roles.

2. Evaluating "Reasonability" in the Digital Age

Prompt: A.R.S. § 33-1805 hinges on the "reasonability" of access. The ALJ ruled that requiring record requests via physical mail is reasonable, even if email is the faster, modern standard. Construct an argument either supporting the ALJ’s focus on established procedural protocols or critiquing it as an "extra-statutory burden" that undermines the intent of transparency in HOA governance.

3. Procedural Evasion vs. Technical Failure

Prompt: The Petitioner alleged "bad faith" and "intentional evasion," citing a pattern of hostility and the fact that the Board Secretary later admitted to blocking the Petitioner's email. The Respondent argued "technical failure" and a lack of a "meeting of the minds." Evaluate the evidence provided regarding the Secretary's blocking of emails and determine how much weight this should have carried in the final decision.

V. Glossary of Important Terms

Administrative Law Judge (ALJ): A judge who overrules or presides over trials and adjudicates disputes involving administrative agencies.
A.R.S. § 33-1805: The specific Arizona statute governing the inspection of planned community (HOA) records.
Bounce Notification: An automated electronic message informing the sender that their email was not delivered to the recipient.
Cease and Desist (C&D): A formal letter or order demanding that a party stop a specific activity (in this case, email communication) and refrain from doing it in the future.
Motion to Quash: A legal request to a court or tribunal to render a subpoena or other legal order invalid.
Motion to Reconsider: A request for the judge to review a previous decision based on new evidence or perceived errors in the original ruling.
Petitioner: The party who initiates the legal action or petition (The Krahn Living Trust).
Prevailing Party: The party in a lawsuit or hearing that wins the case.
Respondent: The party against whom a petition is filed (Tonto Forest Estates HOA).
Summary Judgment: A legal decision made by a court without a full trial, usually when there is no dispute as to the material facts of the case.
Tribunal: A court of justice or an administrative body with the authority to adjudicate disputes.

Digital vs. Direct: The High-Stakes Battle Over HOA Record Requests

1. Introduction: The 10-Day Clock and the Digital Divide

In the regulatory landscape of Arizona homeowners associations, transparency is governed by a strict statutory timeline. At the center of Case No. 25F-H076-REL lies A.R.S. § 33-1805, which mandates that association records be made "reasonably available" within 10 business days of a written request.

This case highlights the growing friction between homeowners seeking digital transparency and boards insisting on formal communication protocols. The dispute involves the John R. Krahn Living Trust (Petitioner) and the Tonto Forest Estates Homeowners Association (Respondent). The core legal trigger was a June 2025 request for a specific invoice from "CAI LLC," which evolved into a high-stakes debate over whether an HOA can legally restrict record requests to physical mail when a "challenged relationship" exists between the parties.

2. The Petitioner’s Case: Math, "Gremlins," and the Mailbox Rule

Beginning June 1, 2025, Petitioner John Krahn attempted to secure an invoice through what he termed a "Redundancy Strategy." To overcome any potential technical failures, Krahn executed six independent communication attempts:

Four Emails: Sent to three separate, known addresses for the Board Secretary—a "verify concrete" work email, a "GCTA" work email, and a personal Gmail address.
Two Voicemails: Left for both the Board Secretary and the community manager.

Krahn presented a "Mathematical Certainty" argument, asserting that based on industry failure rates, the probability of all six communications failing to reach their recipients was 1 in 62.5 billion. He further invoked the "Mailbox Rule" via Lee v. State, arguing that proof of transmission to a correct address creates a rebuttable presumption of receipt.

The Petitioner's most compelling evidence—though it ultimately did not sway the legal outcome regarding the request process—was a "smoking gun" admission in Petitioner’s Exhibit 6. In an October 13, 2025, email, Board Secretary Tim Riley admitted that Krahn was "blocked from sending emails" to his work address. Riley further acknowledged that since Krahn’s previous emails did not "bounce," it was clear that Riley had seen them. Krahn argued this proved the HOA was acting in bad faith by denying receipt of the June requests while actively obstructing his digital access.

3. The HOA’s Defense: The "Technology Gap" and the Cease-and-Desist

Respondent’s President, Dwight Jolivette, offered a defense that combined technical skepticism with administrative "Best Practices." Paradoxically, Jolivette is a ten-year Army veteran who served with the Information Systems Command at the NSA, specializing in satellite communications. Despite his background as a technology expert, Jolivette testified that digital transmission is fundamentally unreliable, governed by "ones and zeros" that can fall into "blind spots."

Jolivette attributed the alleged non-receipt of the emails to "Gremlins" in the system, arguing that the Board could not be held liable for failing to fulfill a request they never saw. Beyond the technical defense, the HOA argued that routing document requests through individual Board members—even if the Bylaw 5.5 names the Secretary as the "custodian" of records—is a poor administrative practice. Jolivette maintained that requests should be routed through the community manager to ensure oversight and continuity, particularly when Board members travel for work.

4. The Turning Point: The March 2025 Cease-and-Desist Letter

The HOA's defense rested heavily on a Cease-and-Desist letter issued to Krahn on March 21, 2025. Following a period of high-volume communication and a "challenged relationship," the HOA attempted to "close the loop" on communication. The "close the loop" concept refers to the HOA’s demand for a delivery method that provides inherent confirmation (such as physical mail or certified delivery) rather than the "open loop" of standard email, which can be subject to silent failures or blocking.

The letter contained a specific directive:

"Going forward, any concerns or correspondence must be submitted in written form and mailed to the Association’s management office…"

The HOA argued that this letter established a "prescribed manner" for all future correspondence, effectively revoking the Petitioner's privilege to use email for official record requests.

5. The ALJ Decision: Why "Reasonable Process" Won the Day

On November 18, 2025, Administrative Law Judge (ALJ) Samuel Fox dismissed the petition. The ruling did not focus on whether the emails were actually received (rendering the "1 in 62 billion" math moot), but rather on whether the HOA’s established process was "reasonable."

The ALJ applied a two-pronged "Reasonability" test based on A.R.S. § 33-1805:

Did the HOA make the ability to request documents reasonably available?
Were the documents themselves reasonably available?

The Judge concluded that while the statute requires records to be made available, it is silent on the method of request. Crucially, the ALJ found that the statute does not prohibit an association from setting a specific process, nor does it require a board to accept email. Because the parties had a "challenged relationship" (finding of fact #8), the Judge ruled that the HOA’s requirement for physical mail was a "reasonable" administrative safeguard. By disregarding this prescribed process and continuing to use email, the Petitioner failed to meet the burden of proof.

6. Key Takeaways for Homeowners and HOAs

This case provides a roadmap for navigating the tension between statutory rights and board-established protocols.

Established Processes Supersede Bylaw Roles: While Bylaw 5.5 designated the Secretary as the "custodian," the Board’s March 2025 directive established a formal process for delivery. In Arizona, a board’s reasonable administrative directive on how to submit a request can override the informal custodial roles defined in bylaws.
The Limits of Digital Proof: Even with a "1 in 62 billion" probability and evidence of blocked emails, a requester cannot ignore a prescribed non-digital channel. If an association identifies a specific person and manner for requests, the burden of compliance rests on the member.
The High Cost of "Litigating to the Max": The hearing highlighted the devastating financial consequences of persistent litigation within small communities. Constant legal battles in this 52-member HOA contributed to a 750% increase in insurance premiums and a 50-fold increase in the insurance deductible.
The Value of Alternative Dispute Resolution (ADR): The ALJ’s ruling underscores the importance of exhausting "free ADR" and mediation. Entering a tribunal with a "litigate to the max" strategy often results in binary win/loss outcomes that do nothing to repair the underlying "challenged relationship" or the community's financial stability.

Case Participants

Petitioner Side

John R. Krahn (Petitioner Representative)
John R Krahn Living Trust / Janet Krahn Living Trust

Respondent Side

Dwight A. Jolivette (Respondent Representative)
Tonto Forest Estates Homeowners Association
President of the Board of Directors
Kenneth Riley (Secretary)
Tonto Forest Estates Homeowners Association
Secretary of the Board of Directors
Barbara Bonilla (Community Manager)
Tonto Forest Estates Homeowners Association

Neutral Parties

Samuel Fox (Administrative Law Judge)
Office of Administrative Hearings
Susan Nicolson (Commissioner)
Arizona Department of Real Estate