01/19/2018 — LC2017000142 VILLAGE ASSOCIATION INC, OLIVE GROVE 01/19/2018 HONORABLE PATRICIA ANN STARR View Minute Entry ↑ top
- Source
- Minute Source
Michael K. Jeanes, Clerk of Court
*** Filed ***
01/25/2018 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
LC2017-000142-001 DT
01/19/2018
Docket Code 512
Form L512
Page 1
CLERK OF THE COURT
HONORABLE PATRICIA ANN STARR
C. Avena
Deputy
OLIVE GROVE VILLAGE ASSOCIATION INC
JONATHAN D EBERTSHAUSER
v.
BARBARA PRINTY (001)
PHILIP B WHITAKER
OFFICE OF ADMINISTRATIVE
HEARINGS
REMAND DESK-LCA-CCC
RECORD APPEAL RULING / REMAND
Appellant Olive Grove Village Association, Inc. (“the Association”) seeks an order
vacating the December 8, 2016 Final Administrative Decision of the Arizona Department of Real
Estate (“the Department”) requiring the Association to pay a civil penalty of $5,000.00 For the
reasons that follow, this Court affirms that Decision.
The Court notes that neither party filed their briefs in a timely fashion. On July 17, 2017,
the Court informed the Association that its Opening Brief had not been timely filed. The
Association filed its Opening Brief on August 18, 2017; Appellee Barbara Printy (“Printy”) did
not file a timely Answering Brief. The Court imposed a new deadline for filing of the
Answering Brief, with which Printy complied. The Association then filed an untimely Reply
Brief.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
LC2017-000142-001 DT
01/19/2018
Docket Code 512
Form L512
Page 2
The Court advises counsel to review the Rules of Procedure for Judicial Review of
Administrative Decisions (specifically Rule 6, which sets out the due dates for filing of appellate
briefs).
I. FACTS AND PROCEDURAL HISTORY
The Association is an association of condominium owners in Phoenix. (Administrative
Law Judge (“ALJ”) Decision at 1.) Printy requested a copy of the Association’s audit report in
April, 2015, October, 2015, and March, 2016. (ALJ Decision at 2.) The Association did not
provide a copy of the audit to Printy. (Id.)
In March of 2016, Printy filed a Petition alleging that the Association violated the
CC&Rs, Bylaws, and A.R.S. § 33-1243(J) by failing to complete an audit of its 2014 financials
within 90 days of the end of the fiscal year. (Id.) In August of 2016, the Association hired a
certified public accountant to perform an audit of the 2014 financials; the Association provided a
copy of the audit to Printy on October 11, 2016, the day before the scheduled administrative
hearing. (Id.)
The ALJ granted Printy’s Petition, and ordered the Association to pay her filing fee, as
well as a civil penalty in the amount of $5,000.00. (ALJ Decision at 3-4.)
The Department took no action, and the ALJ Decision was certified as the final
administrative decision of the Department. The Association filed a Motion for Rehearing, which
was denied.
This appeal followed. This Court has jurisdiction pursuant to A.R.S. §§ 12-124(A) and
12-905(A).
II. STANDARD OF REVIEW
A reviewing court shall affirm the action of an agency unless, after reviewing the record,
“the court concludes that the action is not supported by substantial evidence, is contrary to law, is
arbitrary and capricious or is an abuse of discretion.” A.R.S. § 13-910(E).
A trial court makes its own rulings on questions of law. Smith v. Arizona Long Term
Care Sys., 207 Ariz. 217, 220, ¶ 14 (App. 2004). But in reviewing an agency’s decision, the
superior court “does not conduct a trial de novo, act as the trier of fact, nor substitute its view of
the evidence for that of the agency.” Siler v. Arizona Dept. of Real Estate, 193 Ariz. 374, 378, ¶
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
LC2017-000142-001 DT
01/19/2018
Docket Code 512
Form L512
Page 3
13 (App. 1998). This Court “may not function as a ‘super agency’ and substitute its own
judgment for that of the agency where factual questions and agency expertise are involved.” Id.
at 336.
III. ISSUES RAISED
1. Did the imposition of the civil penalty conflict with A.R.S. § 32-2199.02?
2. Was the penalty excessive?
IV. LEGAL ANALYSIS
1. The imposition of a $5,000 civil penalty does not conflict with A.R.S. § 32-2199.02.
The Association first argues that imposition of the $5,000 penalty conflicts with A.R.S. §
32-2199.02. That statute authorizes an ALJ to impose a civil penalty:
The administrative law judge may order any party to abide by the statute,
condominium documents, community documents or contract provision at issue
and may levy a civil penalty on the basis of each violation. All monies collected
pursuant to this article shall be deposited in the condominium and planned
community hearing office fund established by § 32-2199.05 to be used to offset
the cost of administering the administrative law judge function. If the petitioner
prevails, the administrative law judge shall order the respondent to pay to the
petitioner the filing fee required by § 32-2199.01.
A.R.S. § 32-2199.02 (A).
The condominium and planned community hearing office fund is used to reimburse the
Office of Administrative Hearings for conducting hearings:
Monies in the condominium and planned community hearing office fund shall be
used to reimburse the actual costs of the office of administrative hearings in
conducting hearings pursuant to § 32-2199.01. Monies remaining in the fund may
be used by the department to offset the costs of administering cases filed pursuant
to § 32-2199.01.
A.R.S. § 32-2199.05(B).
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
LC2017-000142-001 DT
01/19/2018
Docket Code 512
Form L512
Page 4
According to the Association, because A.R.S. § 32-2199.02 indicates that the monies
collected will be used “to offset the cost of administering the administrative law judge function,”
and it supplied the audit prior to the hearing, no fine should have been imposed. The Association
cites absolutely no law in support of this proposition.
Moreover, this argument ignores the fact that the Association complied only one day
prior to the scheduled hearing. And while the Association may find it “difficult to believe” that
the costs in this case exceeded $5,000, it provides nothing but its disbelief in support of that
statement.
On appeal, a court reviews the interpretation of statutes de novo. Wade v. Ariz. St. Ret.
Sys., 214 Ariz. 559, 561, ¶ 10 (2017). When analyzing a specific statutory provision, a court
must “look to the statute as a whole” and “may also consider statutes that are in pari materia—of
the same subject or general purpose—for guidance and to give effect to all of the provisions
involved.” Stambaugh v. Killian, 242 Ariz. 508, 509, ¶ 7 575 (2017). When interpreting a
statute, “[e]ach word, phrase, clause, and sentence . . . must be given meaning so that no part will
be void, inert, redundant, or trivial.” Williams v. Thude, 188 Ariz. 257, 259 (1997).
Here, giving the statute a sensible reading, the civil penalty an ALJ is authorized to
impose is meant to be deposited in a fund to offset the administrative law judge function in
general, not on a case by case basis. Therefore, the Department did not err when it imposed a
$5,000 penalty here.
2. The penalty is not excessive
The Association also argues that the penalty imposed is excessive. An administrative
penalty is excessive only if it is so disproportionate to the offense as to shock one's sense of
fairness.” Schillerstrom v. State, 180 Ariz. 468, 471 (App. 1994). Whether a reviewing court
would have imposed the same sanction is immaterial. Bear v. Nicholls, 142 Ariz. 560, 563 (App.
1984).
Here, Printy made three separate requests for the audit. At each turn, the Association
provided her with a different answer. It was only after Printy filed a Petition that the Association
conducted an audit. It did so at the eleventh hour, providing the audit the day before the
administrative hearing. On this record, the Court finds the fine imposed was not excessive.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
LC2017-000142-001 DT
01/19/2018
Docket Code 512
Form L512
Page 5
V. CONCLUSION
Based on the foregoing, this Court concludes there was substantial evidence to support
the Department’s Order, and that Order was not contrary to law, was not arbitrary or capricious,
and was not an abuse of discretion.
If any party wishes to appeal this decision, that party must do so pursuant to A.R.S. § 12-
913 and Rule 9(a), Ariz. R. Civ. App. Proc.
IT IS THEREFORE ORDERED affirming the December 8, 2016 Final Administrative
Decision of the Arizona Department of Real Estate.
IT IS FURTHER ORDERED that this judgment is final pursuant to Rule 54(c), Ariz. R.
Civ. P., as no further matters remain pending.
IT IS FURTHER ORDERED signing this minute entry as a formal order of the Court.
/s/ Patricia A. Starr
THE HON. PATRICIA A. STARR
JUDGE OF THE SUPERIOR COURT
NOTICE: LC cases are not under the e-file system. As a result, when a party files a docu-
ment, the system does not generate a courtesy copy for the Judge. Therefore, you will have to
deliver to the Judge a conformed courtesy copy of any new filings.
05/15/2017 — LC2017000142 PRINTY, BARBARA 05/15/2017 HONORABLE PATRICIA ANN STARR View Minute Entry ↑ top
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- Minute Source
Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
05/17/2017 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
LC2017-000142-001 DT
05/15/2017
Docket Code 021
Form L000
Page 1
CLERK OF THE COURT
HONORABLE PATRICIA ANN STARR
T. DeRaddo
Deputy
OLIVE GROVE VILLAGE ASSOCIATION INC
JONATHAN D EBERTSHAUSER
v.
BARBARA PRINTY
PHILIP B WHITAKER
OFFICE OF ADMINISTRATIVE
HEARINGS
REMAND DESK-LCA-CCC
NUNC PRO TUNC ORDER
IT IS ORDERED nunc pro tunc amending the minute entry dated May 15, 2017, page
one, to correct paragraph one. Accordingly,
IT IS ORDERED correcting the paragraph to read as follows:
On May 5, 2017, Appellant, Olive Grove Village Association, Inc., filed Respondent’s
Notice of Appeal against Appellee, Barbara Printy, pursuant to Arizona Revised Statutes
Annotated (A.R.S.) §§ 12–901 to 12–914.
The remainder of the minute entry stands in effect as stated therein.
The minute entry dated May 15, 2017 is available for viewing at:
http://www.courtminutes.maricopa.gov.
NOTICE: LC cases are not under the e-file system. As a result, when a party files a docu-
ment, the system does not generate a courtesy copy for the Judge. Therefore, you will have to
deliver to the Judge a conformed courtesy copy of any new filings.
05/15/2017 — LC2017000142 PRINTY, BARBARA 05/15/2017 HONORABLE PATRICIA ANN STARR View Minute Entry ↑ top
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- Minute Source
Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
05/16/2017 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
LC2017-000142-001 DT
05/15/2017
Docket Code 023
Form L000
Page 1
CLERK OF THE COURT
HONORABLE PATRICIA ANN STARR
T. DeRaddo
Deputy
OLIVE GROVE VILLAGE ASSOCIATION INC
JONATHAN D EBERTSHAUSER
v.
BARBARA PRINTY
PHILIP B WHITAKER
OFFICE OF ADMINISTRATIVE
HEARINGS
REMAND DESK-LCA-CCC
ADMINISTRATIVE REVIEW ORDERS
On May 5, 2017, Appellant, Barbara Printy, filed Respondent’s Notice of Appeal against
Appellee, Olice Grove Viullage Association, Inc., pursuant to Arizona Revised Statutes
Annotated (A.R.S.) §§ 12–901 to 12–914.
IT IS ORDERED that Appellant serve Appellee with a copy of the Respondent’s Notice
of Appeal in the manner provided by A.R.S. § 12–906.1
IT IS FURTHER ORDERED that Appellant shall file proof of service with the Clerk of
the Superior Court of Maricopa County as required by Rules 4(g) and 4(i) of the Arizona Rules
of Civil Procedure.
IT IS FURTHER ORDERED that Appellant provide Appellee with a copy of this
minute entry.
IT IS FURTHER ORDERED that Appellant shall file a notice of action as required by
A.R.S. § 12–904(B).
IT IS FURTHER ORDERED that Appellant shall order and make arrangements to pay
for the preparation of pertinent portions of the record as required by A.R.S. § 12–904(B).
1 A.R.S. § 12–906 incorporates the Arizona Rules of Civil Procedure for service of process. See Rules 4 and 4.1,
Ariz. R. Civ. P.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
LC2017-000142-001 DT
05/15/2017
Docket Code 023
Form L000
Page 2
IT IS FURTHER ORDERED that a Notice of Appearance from Appellee shall be due 20
days from the date of service of Appellant’s appeal.
Appellant is advised that, if Appellant fails to effectuate service or to order the record or
the transcripts as ordered herein, this Court may dismiss these proceedings.
IT IS FURTHER ORDERED that the administrative agency or board shall transmit its
record to the Clerk of this Court as required by A.R.S. § 12–904(B) and provide a Certification
of Record on Review to Appellant and a notice to this Court that the transmittal has occurred.
IT IS FURTHER ORDERED that Appellant and Appellee are to file briefs in accord-
ance with Rule 6 of the Rules of Procedure for Judicial Review of Administrative Decisions.
NOTICE: LC cases are not under the e-file system. As a result, when a party files a docu-
ment, the system does not generate a courtesy copy for the Judge. Therefore, you will have to
deliver to the Judge a conformed courtesy copy of any new filings.
07/14/2017 — LC2017000142 VILLAGE ASSOCIATION INC, OLIVE GROVE 07/14/2017 HONORABLE PATRICIA ANN STARR View Minute Entry ↑ top
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- Minute Source
Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
07/17/2017 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
LC2017-000142-001 DT
07/14/2017
Docket Code 023
Form L000
Page 1
CLERK OF THE COURT
HONORABLE PATRICIA ANN STARR
T. DeRaddo
Deputy
OLIVE GROVE VILLAGE ASSOCIATION INC
JONATHAN D EBERTSHAUSER
v.
BARBARA PRINTY (001)
PHILIP B WHITAKER
OFFICE OF ADMINISTRATIVE
HEARINGS
REMAND DESK-LCA-CCC
NO OPENING BRIEF FILED
On May 15, 2017, this Court issued a minute entry that ordered Appellant Olive Grove
Village Association, Inc. (1) to serve all Appellees and file proof of service with the Clerk of
Court, (2) to order the preparation of the record and to make arrangement to pay for the
preparation of the record, and (3) that briefs are to be filed in accordance with Rule 6 of the
Rules of Procedure for Judicial Review of Administrative Decisions.
This Court has reviewed the file in this matter and there is no Opening Brief filed by the
Appellant.
IT IS ORDERED that, within 45 days of filing of this minute entry, Appellant shall file
its Opening Brief. In the event the Opening Brief is not timely filed, the Court shall dismiss this
cause of action.
NOTICE: LC cases are not under the e-file system. As a result, when a party files a docu-
ment, the system does not generate a courtesy copy for the Judge. Therefore, you will have to
deliver to the Judge a conformed courtesy copy of any new filings.
10/18/2017 — LC2017000142 VILLAGE ASSOCIATION INC, OLIVE GROVE 10/18/2017 HONORABLE PATRICIA ANN STARR View Minute Entry ↑ top
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- Minute Source
Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
10/19/2017 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
LC2017-000142-001 DT
10/18/2017
Docket Code 023
Form L000
Page 1
CLERK OF THE COURT
HONORABLE PATRICIA ANN STARR
C. Avena
Deputy
OLIVE GROVE VILLAGE ASSOCIATION INC
JONATHAN D EBERTSHAUSER
v.
BARBARA PRINTY (001)
PHILIP B WHITAKER
OFFICE OF ADMINISTRATIVE
HEARINGS
REMAND DESK-LCA-CCC
MINUTE ENTRY
Appellant Olive Grove Village Association filed its Opening Brief on August 18, 2017.
To date, no Answering Brief has been filed.
Therefore,
IT IS ORDERED any Answering Brief must be filed no later than October 27, 2017.
IT IS FURTHER ORDERED if no Answering Brief is filed by that date, the appeal will
consider on the Opening Brief alone.
IT IS FURTHER ORDERED any Reply Brief shall be filed pursuant to Rule 6, Rules of
Procedure for Judicial Review of Administrative Decisions.
NOTICE: LC cases are not under the e-file system. As a result, when a party files a docu-
ment, the system does not generate a courtesy copy for the Judge. Therefore, you will have to
deliver to the Judge a conformed courtesy copy of any new filings.
11/29/2017 — LC2017000142 VILLAGE ASSOCIATION INC, OLIVE GROVE 11/29/2017 HONORABLE PATRICIA ANN STARR View Minute Entry ↑ top
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- Minute Source
Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
11/30/2017 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
LC2017-000142-001 DT
11/29/2017
Docket Code 025
Form L000
Page 1
CLERK OF THE COURT
HONORABLE PATRICIA ANN STARR
C. Avena
Deputy
OLIVE GROVE VILLAGE ASSOCIATION INC
JONATHAN D EBERTSHAUSER
v.
BARBARA PRINTY (001)
PHILIP B WHITAKER
OFFICE OF ADMINISTRATIVE
HEARINGS
REMAND DESK-LCA-CCC
MINUTE ENTRY
On May 5, 2017, Appellant Olive Grove Village Association filed a Respondent’s Notice
of Appeal. The Court is now in receipt of the Briefs filed in accordance with Rule 6 of the Rules
of Procedure for Judicial Review of Administrative Decisions.
No party having requested Oral Argument, this Administrative Review is now set for
determination, pursuant to Rule 9.9, Maricopa County Superior Court Local Rules of Practice,
within 60 days from the filing of this Minute Entry.
NOTICE: LC cases are not under the e-file system. As a result, when a party files a docu-
ment, the system does not generate a courtesy copy for the Judge. Therefore, you will have to
deliver to the Judge a conformed courtesy copy of any new filings.
