Tag Archives: Dessaules Law Group

Tom Barrs vs Desert Ranch Homeowners Association

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Case Summary

Case ID 25F-H2222050-REL-RMD
Agency ADRE
Tribunal OAH
Decision Date 2025-04-01
Administrative Law Judge Jenna Clark
Outcome The Administrative Law Judge Decision granted the remanded petition based on the parties' stipulation that the Respondent Homeowners Association violated ARIZ. REV. STAT. § 33-1805 by failing to timely provide the membership roster. The ALJ ordered Respondent to reimburse the Petitioner $500.00 for the filing fee and assessed a civil penalty of $25.00 against Respondent. All other respects of the previous ALJ Decision issued February 21, 2023, remain unchanged.
Filing Fees Refunded $500.00
Civil Penalties $25.00

Parties & Counsel

Petitioner Tom Barrs Counsel Jonathan A. Dessaules, Esq.
Respondent Desert Ranch Homeowners Association Counsel B. Austin Baillio, Esq.

Alleged Violations

ARIZ. REV. STAT. § 33-1805

Outcome Summary

The Administrative Law Judge Decision granted the remanded petition based on the parties' stipulation that the Respondent Homeowners Association violated ARIZ. REV. STAT. § 33-1805 by failing to timely provide the membership roster. The ALJ ordered Respondent to reimburse the Petitioner $500.00 for the filing fee and assessed a civil penalty of $25.00 against Respondent. All other respects of the previous ALJ Decision issued February 21, 2023, remain unchanged.

Key Issues & Findings

Failure to timely provide full membership roster

The remanded issue concerned whether Respondent failed to timely fulfill records requests, specifically a full roster of Association Member names and corresponding property addresses, in violation of ARS § 33-1805. The parties stipulated that a violation of ARS § 33-1805 occurred.

Orders: Petitioner's remanded petition was granted. Respondent was ordered to reimburse Petitioner $500.00 for the filing fee and pay a $25.00 civil penalty.

Filing fee: $500.00, Fee refunded: Yes, Civil penalty: $25.00

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. § 33-1805
  • ARIZ. REV. STAT. § 32-2199.02(A)

Analytics Highlights

Topics: HOA Records Request, Membership Roster, Records Disclosure, Statutory Violation, Stipulation, Remand
Additional Citations:

  • ARIZ. REV. STAT. § 33-1805
  • ARIZ. REV. STAT. § 32-2199.02(A)
  • ARIZ. REV. STAT. § 32-2199.01
  • ARIZ. REV. STAT. § 33-1804(A)
  • ARIZ. REV. STAT. § 1-243
  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 32-2199.02(B)
  • ARIZ. REV. STAT. § 32-2199.04
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 41-1092
  • ARIZ. REV. STAT. § 41-1092.09(A)(1)

Video Overview

Audio Overview

Decision Documents

25F-H2222050-REL-RMD Decision – 1280942.pdf

Uploaded 2026-04-24T12:56:28 (50.9 KB)

25F-H2222050-REL-RMD Decision – 1285833.pdf

Uploaded 2026-04-24T12:56:32 (107.0 KB)

25F-H2222050-REL-RMD Decision – 1286292.pdf

Uploaded 2026-04-24T12:56:36 (21.7 KB)

25F-H2222050-REL-RMD Decision – 1288559.pdf

Uploaded 2026-04-24T12:56:40 (149.2 KB)

Briefing Document: The Matter of Barrs v. Desert Ranch Homeowners Association

Executive Summary

This briefing document synthesizes the key events, legal arguments, and ultimate resolution of the administrative case Tom Barrs v. Desert Ranch Homeowners Association (No. 25F-H2222050-REL-RMD). The dispute, which progressed through the Arizona Office of Administrative Hearings (OAH) and the Maricopa County Superior Court, centered on a homeowner’s right to access association records, specifically the membership roster.

The case concluded on March 31, 2025, when the Desert Ranch Homeowners Association (HOA) stipulated to a violation of Arizona Revised Statutes (A.R.S.) § 33-1805. The HOA admitted it failed to timely fulfill a records request for the membership roster, which was submitted on October 21, 2021, and not fulfilled until May 2023—a delay of approximately 19 months.

The resolution required the HOA to pay petitioner Tom Barrs a total of $975.00, which included the reimbursement of a $500.00 filing fee. Citing the respondent’s “unconscionable conduct,” the Administrative Law Judge (ALJ) also levied a nominal civil penalty of $25.00 against the association.

A critical turning point in the case was a landmark ruling by the Maricopa County Superior Court on April 4, 2024. The Court reversed an earlier OAH decision, establishing that HOA membership lists containing names and property addresses do not qualify as exempt personal records. The Court reasoned that access to such information is “essential to having a homeowners association” and necessary for members “to actively participate in HOA affairs.” This ruling, however, specified that more private data, such as email addresses and phone numbers, are not subject to mandatory disclosure. The matter was subsequently remanded to the OAH on this single issue, leading to the final stipulated resolution.

——————————————————————————–

I. Case Overview and Parties Involved

This administrative action details a prolonged dispute between a homeowner and his planned community association regarding access to records.

• Case Name: In the Matter of: Tom Barrs, Petitioner, vs. Desert Ranch Homeowners Association, Respondent.

• Docket Number: 25F-H2222050-REL-RMD

• Adjudicating Body: Arizona Office of Administrative Hearings (OAH)

• Presiding Judge: Administrative Law Judge (ALJ) Jenna Clark

• Petitioner: Tom Barrs (Appeared pro per initially, later represented by Jonathan A. Dessaules, Esq.)

• Respondent: Desert Ranch Homeowners Association (Represented by HOA President Michel Olley)

II. Procedural History: From Initial Petitions to Superior Court

The case originated from four separate petitions filed by Mr. Barrs with the Arizona Department of Real Estate, each incurring a $500 filing fee.

Petition Filing Date

Alleged Violation

Subject Matter

April 18, 2022

A.R.S. § 33-1805

Document requests from Apr 2021, Nov 2021, and Feb 2022.

April 18, 2022

A.R.S. § 33-1804(A)

Alleged preclusion of audio recording at a meeting.

April 18, 2022

A.R.S. § 33-1805

Membership roster request from October 2021.

May 12, 2022

A.R.S. § 33-1805

Multiple document requests from Oct 2021 to Mar 2022.

• May 25, 2022: The Department of Real Estate consolidated the matters and referred them to the OAH for an evidentiary hearing.

• January 9-10, 2023: The consolidated hearing takes place before the OAH.

• February 21, 2023: The OAH issues an Administrative Law Judge Decision. It granted portions of the general document request petitions but denied the petitions regarding the audio recording and the membership roster in their entirety. The petitioner’s request for civil penalties was also denied.

• March 26, 2023: As the aggrieved party, Mr. Barrs files a timely Dispute Rehearing Petition with the Department of Real Estate.

• April 18, 2023: The Department of Real Estate issues an order denying the rehearing request.

• June 6, 2023: The Department is notified that Mr. Barrs has appealed its decision to the Maricopa County Superior Court.

III. The Superior Court Ruling: A Key Decision on HOA Record Transparency

On April 4, 2024, the Superior Court issued a pivotal order that reversed the Department of Real Estate’s decision in part, focusing squarely on the issue of membership lists.

The Court concluded that the ALJ had erred in treating the membership roster as exempt personal records. It ruled that such lists, containing names and property addresses, must be made available to all members unless they qualify for a specific statutory exception.

“In this case, Desert Ridge has kept membership lists as a part of their records undoubtedly for a variety of reasons. Unless those records qualify for an exception, they must be made available to all members… Those membership lists containing names and addresses, however, do not appear to fall within the exemption for personal records.”

The Court’s rationale was grounded in the principle of homeowner participation in association governance:

“In addition, in order to actively participate in HOA affairs, all members must have the ability to know who is in the Association and which home or land they own.”

The ruling drew a clear line between public-facing information and private contact details. It affirmed that while names and addresses are necessary for HOA functions, more personal data is not.

“The desire for additional personal information, including email addresses and phone numbers and the like, while understandable, is not necessary for active participation in the affairs of the Association… Email addresses and phone numbers, however, are more personal and less public in nature… While disclosure of names and property addresses… may be essential to having a homeowners association, the disclosure of email addresses and phone numbers is not.”

On August 2, 2024, the Court reaffirmed its ruling and remanded “only the reversed portion of the Department’s Decision” back to the OAH for “proceedings consistent” with its order. The petitioner’s request for attorneys’ fees for his pro per work was denied.

IV. The Remand Process and Clarification of Scope

Following the remand, the OAH scheduled a new hearing for March 31, 2025. A prehearing conference on March 18, 2025, revealed a significant disagreement between the parties on the scope of this new hearing.

• Petitioner’s Position: Mr. Barrs argued that the remand reopened all four of his original petitions for reconsideration.

• Respondent’s Position: Mr. Olley contended that the remand was narrowly focused on the single issue of the membership roster, as specified by the Superior Court.

ALJ Clark noted that the Department of Real Estate’s hearing notice was “deficient” because it failed to specify the issue for adjudication. To resolve the conflict, she issued a clarifying Minute Entry on March 24, 2025.

The Order explicitly narrowed the scope of the hearing:

“IT IS ORDERED that the issue to be addressed at the hearing… is whether Respondent failed to timely fulfill records requests submitted by Petitioner… by providing Petitioner with a full roster of Association Member names and corresponding property addresses per his request(s) in violation of ARIZ. REV. STAT. § 33-1805.”

The order further stated that in all other respects, the original ALJ Decision from February 21, 2023, “remains unchanged and in full force and effect,” thereby validating the respondent’s interpretation.

V. Final Hearing and Resolution

The remanded hearing convened on March 31, 2025. Before testimony could begin, the case moved swiftly to a resolution.

At the outset of the hearing, Mr. Olley, on behalf of the HOA, made a “motion for summary judgment,” conceding a violation of the statute regarding the withholding of the membership roster and offering to reimburse the petitioner’s $500 filing fee. The ALJ treated this as a settlement offer and allowed the parties to confer off the record.

The parties returned having reached a full agreement, which was entered into the record. The key stipulated facts were:

Stipulation

Details

Violation Admitted

The Association violated A.R.S. § 33-1805 by failing to provide the membership roster.

Specific Request

The violation pertains to the request made by Mr. Barrs on October 21, 2021.

Untimeliness

The roster was not provided until May 2023, approximately 19 months after the request.

Monetary Settlement

The Association agreed to pay Mr. Barrs a total of $975.00.

Based on the parties’ stipulations, ALJ Clark issued a final decision on April 1, 2025, formalizing the outcome:

1. Petition Granted: The petitioner’s remanded petition was granted.

2. Civil Penalty: A civil penalty of $25.00 was assessed against the Respondent. In his closing argument, petitioner’s counsel argued this was warranted due to the HOA’s “unconscionable conduct” in delaying compliance for 19 months.

3. Filing Fee Reimbursement: Respondent was ordered to reimburse the petitioner’s $500.00 filing fee, as per the stipulation and statute.

4. Finality: The decision reaffirmed that all other elements of the original February 21, 2023, OAH decision remain in effect.

Questions

Question

Can my HOA refuse to give me a list of other homeowners' names and addresses?

Short Answer

No. Unless an exception applies, membership lists with names and addresses must be made available so members can participate in HOA affairs.

Detailed Answer

The decision clarifies that membership lists containing names and addresses are not considered 'personal records' that can be withheld. Access to this information is deemed necessary for members to actively participate in the association, such as knowing who belongs to the association and which properties they own.

Alj Quote

Those membership lists containing names and addresses, however, do not appear to fall within the exemption for personal records. … In addition, in order to actively participate in HOA affairs, all members must have the ability to know who is in the Association and which home or land they own.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • Records Request
  • Membership List
  • Homeowner Rights

Question

Am I entitled to receive the email addresses and phone numbers of other homeowners?

Short Answer

No. Email addresses and phone numbers are considered personal and private, unlike physical addresses.

Detailed Answer

While names and physical addresses are necessary for HOA participation, the decision states that email addresses and phone numbers are more personal. Disclosure of this contact information is not essential for association business and could lead to harassment or marketing issues.

Alj Quote

The desire for additional personal information, including email addresses and phone numbers and the like, while understandable, is not necessary for active participation in the affairs of the Association. … Email addresses and phone numbers, however, are more personal and less public in nature.

Legal Basis

A.R.S. § 33-1805(B)(4)

Topic Tags

  • Privacy
  • Records Request
  • Personal Records

Question

How quickly must the HOA respond to my request to inspect records?

Short Answer

The HOA has 10 business days to fulfill a request.

Detailed Answer

Arizona law grants the association ten business days to fulfill a request for examination or to provide copies of requested records.

Alj Quote

The association shall have ten business days to fulfill a request for examination. … On request for purchase of copies of records… the association shall have ten business days to provide copies of the requested records.

Legal Basis

A.R.S. § 33-1805(A)

Topic Tags

  • Timelines
  • Procedural Requirements

Question

Can the HOA charge me a fee for simply looking at the records?

Short Answer

No. The HOA cannot charge for making materials available for review.

Detailed Answer

The statute explicitly prohibits the association from charging a member for the act of making material available for review. Charges are only permitted for copies.

Alj Quote

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

Legal Basis

A.R.S. § 33-1805(A)

Topic Tags

  • Fees
  • Records Request

Question

How much can the HOA charge me for copies of records?

Short Answer

The HOA can charge a maximum of 15 cents per page.

Detailed Answer

If a member requests copies of records, the association is legally permitted to charge a fee, but it is capped at fifteen cents per page.

Alj Quote

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

Legal Basis

A.R.S. § 33-1805(A)

Topic Tags

  • Fees
  • Records Request

Question

What records is the HOA allowed to withhold from me?

Short Answer

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

Detailed Answer

The decision outlines specific statutory exceptions where records can be withheld, including attorney-client privilege, pending litigation, minutes from executive sessions, and personal/health/financial records of members or employees.

Alj Quote

Books and records… may be withheld… to the extent that the portion withheld relates to any of the following: 1. Privileged communication… 2. Pending litigation. 3. Meeting minutes… of a session… not required to be open… 4. Personal, health or financial records…

Legal Basis

A.R.S. § 33-1805(B)

Topic Tags

  • Exceptions
  • Records Request
  • Privacy

Question

Can the HOA be penalized if they delay providing records for a long time?

Short Answer

Yes. Significant delays can result in a violation and civil penalties.

Detailed Answer

In this case, the HOA failed to provide a membership roster for approximately 19 months (from October 2021 to May 2023). This was deemed untimely and resulted in a civil penalty.

Alj Quote

Respondent’s response to Petitioner’s October 21, 2021, records request was untimely, as it was not fulfilled until May 2023. … Petitioner’s request to assess civil penalties totaling $25.00 against Respondent is granted.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • Penalties
  • Enforcement
  • Timelines

Question

If I win my hearing, will the HOA have to reimburse my filing fee?

Short Answer

Yes, the ALJ can order the HOA to reimburse the $500 filing fee.

Detailed Answer

The decision orders the Respondent (HOA) to reimburse the Petitioner's $500 filing fee as required by statute when the Petitioner prevails.

Alj Quote

Respondent shall reimburse Petitioner’s $500.00 filing fee as required by ARIZ. REV. STAT. § 32-2199.01.

Legal Basis

A.R.S. § 32-2199.01

Topic Tags

  • Costs
  • Remedies

Question

Who has to prove that the HOA broke the law?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

The homeowner must prove by a 'preponderance of the evidence' that the HOA violated the statute. This means showing that the contention is more probably true than not.

Alj Quote

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

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • Legal Standards
  • Procedure

Case

Docket No
25F-H2222050-REL-RMD
Case Title
Tom Barrs v. Desert Ranch Homeowners Association
Decision Date
2025-04-01
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Questions

Question

Can my HOA refuse to give me a list of other homeowners' names and addresses?

Short Answer

No. Unless an exception applies, membership lists with names and addresses must be made available so members can participate in HOA affairs.

Detailed Answer

The decision clarifies that membership lists containing names and addresses are not considered 'personal records' that can be withheld. Access to this information is deemed necessary for members to actively participate in the association, such as knowing who belongs to the association and which properties they own.

Alj Quote

Those membership lists containing names and addresses, however, do not appear to fall within the exemption for personal records. … In addition, in order to actively participate in HOA affairs, all members must have the ability to know who is in the Association and which home or land they own.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • Records Request
  • Membership List
  • Homeowner Rights

Question

Am I entitled to receive the email addresses and phone numbers of other homeowners?

Short Answer

No. Email addresses and phone numbers are considered personal and private, unlike physical addresses.

Detailed Answer

While names and physical addresses are necessary for HOA participation, the decision states that email addresses and phone numbers are more personal. Disclosure of this contact information is not essential for association business and could lead to harassment or marketing issues.

Alj Quote

The desire for additional personal information, including email addresses and phone numbers and the like, while understandable, is not necessary for active participation in the affairs of the Association. … Email addresses and phone numbers, however, are more personal and less public in nature.

Legal Basis

A.R.S. § 33-1805(B)(4)

Topic Tags

  • Privacy
  • Records Request
  • Personal Records

Question

How quickly must the HOA respond to my request to inspect records?

Short Answer

The HOA has 10 business days to fulfill a request.

Detailed Answer

Arizona law grants the association ten business days to fulfill a request for examination or to provide copies of requested records.

Alj Quote

The association shall have ten business days to fulfill a request for examination. … On request for purchase of copies of records… the association shall have ten business days to provide copies of the requested records.

Legal Basis

A.R.S. § 33-1805(A)

Topic Tags

  • Timelines
  • Procedural Requirements

Question

Can the HOA charge me a fee for simply looking at the records?

Short Answer

No. The HOA cannot charge for making materials available for review.

Detailed Answer

The statute explicitly prohibits the association from charging a member for the act of making material available for review. Charges are only permitted for copies.

Alj Quote

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

Legal Basis

A.R.S. § 33-1805(A)

Topic Tags

  • Fees
  • Records Request

Question

How much can the HOA charge me for copies of records?

Short Answer

The HOA can charge a maximum of 15 cents per page.

Detailed Answer

If a member requests copies of records, the association is legally permitted to charge a fee, but it is capped at fifteen cents per page.

Alj Quote

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

Legal Basis

A.R.S. § 33-1805(A)

Topic Tags

  • Fees
  • Records Request

Question

What records is the HOA allowed to withhold from me?

Short Answer

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

Detailed Answer

The decision outlines specific statutory exceptions where records can be withheld, including attorney-client privilege, pending litigation, minutes from executive sessions, and personal/health/financial records of members or employees.

Alj Quote

Books and records… may be withheld… to the extent that the portion withheld relates to any of the following: 1. Privileged communication… 2. Pending litigation. 3. Meeting minutes… of a session… not required to be open… 4. Personal, health or financial records…

Legal Basis

A.R.S. § 33-1805(B)

Topic Tags

  • Exceptions
  • Records Request
  • Privacy

Question

Can the HOA be penalized if they delay providing records for a long time?

Short Answer

Yes. Significant delays can result in a violation and civil penalties.

Detailed Answer

In this case, the HOA failed to provide a membership roster for approximately 19 months (from October 2021 to May 2023). This was deemed untimely and resulted in a civil penalty.

Alj Quote

Respondent’s response to Petitioner’s October 21, 2021, records request was untimely, as it was not fulfilled until May 2023. … Petitioner’s request to assess civil penalties totaling $25.00 against Respondent is granted.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • Penalties
  • Enforcement
  • Timelines

Question

If I win my hearing, will the HOA have to reimburse my filing fee?

Short Answer

Yes, the ALJ can order the HOA to reimburse the $500 filing fee.

Detailed Answer

The decision orders the Respondent (HOA) to reimburse the Petitioner's $500 filing fee as required by statute when the Petitioner prevails.

Alj Quote

Respondent shall reimburse Petitioner’s $500.00 filing fee as required by ARIZ. REV. STAT. § 32-2199.01.

Legal Basis

A.R.S. § 32-2199.01

Topic Tags

  • Costs
  • Remedies

Question

Who has to prove that the HOA broke the law?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

The homeowner must prove by a 'preponderance of the evidence' that the HOA violated the statute. This means showing that the contention is more probably true than not.

Alj Quote

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

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • Legal Standards
  • Procedure

Case

Docket No
25F-H2222050-REL-RMD
Case Title
Tom Barrs v. Desert Ranch Homeowners Association
Decision Date
2025-04-01
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Tom Barrs (petitioner)
  • Jonathan A. Dessaules (petitioner attorney)
    Dessaules Law Group

Respondent Side

  • Michael Olley (HOA President)
    Desert Ranch Homeowners Association
    Appeared on behalf of Respondent. Also referred to as Michael Ali and Michel Olley.
  • B. Austin Baillio (respondent attorney)
    Maxwell & Morgan P.C.
    Counsel for Respondent in official correspondence.

Neutral Parties

  • Jenna Clark (ALJ)
    OAH
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate
  • Judge Mikitish (Superior Court Judge)
    Superior Court of Arizona – Maricopa County
    Issued minute entries in related Superior Court proceedings.
  • vnunez (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official correspondence.
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official correspondence.
  • labril (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official correspondence.
  • mneat (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official correspondence.
  • lrecchia (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official correspondence.
  • gosborn (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official correspondence.
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official correspondence.

Other Participants

  • Brian Schoeffler (observer)
    Observed the hearing.
  • Stephen Barrs (observer)
    Observed the hearing. Also referred to as Steven Bar and Steven Bars.

Brian D Sopatyk v. Xanadu Lake Resort Condominium, Inc.

Posted on by

Case Summary

Case ID 21F-H2121065-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-11-01
Administrative Law Judge Velva Moses-Thompson
Outcome Petitioner was deemed the prevailing party regarding Issues 1 and 3, while Respondent was deemed the prevailing party regarding Issue 2. Respondent was ordered to pay Petitioner his filing fee of $1,000.00. No civil penalty was found appropriate.
Filing Fees Refunded $1,000.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Brian D. Sopatyk Counsel Jacob A. Kubert, Esq.
Respondent Xanadu Lake Resort Condominium, Inc. Counsel Penny L. Koepke, Esq.

Alleged Violations

CC&R Article 2 § 3(a)(2)
CC&R Article 3 § 3(d)(1)
CC&R Article 6 § 2(a)

Outcome Summary

Petitioner was deemed the prevailing party regarding Issues 1 and 3, while Respondent was deemed the prevailing party regarding Issue 2. Respondent was ordered to pay Petitioner his filing fee of $1,000.00. No civil penalty was found appropriate.

Why this result: Petitioner lost Issue 2 because he failed to prove the Respondent's no-pet policy was arbitrarily or unreasonably applied.

Key Issues & Findings

Alleged violation of CC&R Article 2 § 3(a)(2)

The Administrative Law Judge (ALJ) concluded that screen doors are not permitted in Xanadu under CC&R Article 2 § 3(a)(2), and CC&R Article 7 (Architectural Committee authority) does not override this explicit prohibition.

Orders: Respondent is directed to comply with the requirements of CC&R Article 2 § 3(a)(2) going forward.

Filing fee: $0.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • CC&R Article 2 § 3(a)(2)
  • CC&R Article 7

Alleged violation of CC&R Article 3 § 3(d)(1)

Petitioner alleged violation concerning the 'no-pet' policy. The ALJ concluded that Respondent is not required to allow pets, but may allow them with Board approval, and the Petitioner did not establish that the policy was arbitrarily or unreasonably applied.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • CC&R Article 3 § 3(d)(1)
  • A.R.S. § 12-548

Alleged violation of CC&R Article 6 § 2(a)

The ALJ concluded that the marquee is common area, and the Association was not authorized under CC&R Article 6 § 2(a) to charge a separate assessment or rental fee for its use. Furthermore, there was no evidence the $50 assessment complied with CC&R Article 6 § 5 (special assessment requirements).

Orders: Respondent is directed to comply with the requirements of CC&R Article 6 § 2(a) going forward.

Filing fee: $0.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • CC&R Article 6 § 2(a)
  • CC&R Article 6 § 5
  • A.R.S. § 12-548

Analytics Highlights

Topics: HOA Governance, Condominium, CC&R Violation, Assessment Dispute, Architectural Control, Pet Policy, Statute of Limitations Defense
Additional Citations:

  • A.R.S. § 32-2199(1)
  • A.R.S. § 12-548
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.09
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • CC&R Article 2 § 3(a)(2)
  • CC&R Article 3 § 3(d)(1)
  • CC&R Article 6 § 2(a)
  • CC&R Article 6 § 5
  • CC&R Article 7

Video Overview

Audio Overview

Decision Documents

21F-H2121065-REL Decision – 913797.pdf

Uploaded 2026-04-24T11:37:41 (41.8 KB)

21F-H2121065-REL Decision – 913859.pdf

Uploaded 2026-04-24T11:37:47 (5.9 KB)

21F-H2121065-REL Decision – 921820.pdf

Uploaded 2026-04-24T11:37:55 (100.1 KB)

21F-H2121065-REL Decision – 921823.pdf

Uploaded 2026-04-24T11:38:00 (112.8 KB)

21F-H2121065-REL Decision – 913797.pdf

Uploaded 2026-01-23T17:39:10 (41.8 KB)

21F-H2121065-REL Decision – 913859.pdf

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21F-H2121065-REL Decision – 921820.pdf

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This summary outlines the proceedings, arguments, and final decision in the matter of *Brian D. Sopatyk vs. Xanadu Lake Resort Condominium, Inc.*, heard before the Office of Administrative Hearings (OAH).

Key Facts and Proceedings

The Petitioner, Brian D. Sopatyk, a unit owner and member of the Respondent condominium association (Xanadu Lake Resort Condominium, Inc.), filed a triple-issue petition on or about June 29, 2021, alleging violations of the Covenants, Conditions, and Restrictions (CC&Rs). The matter was referred to the OAH for an evidentiary hearing. The hearing took place on September 21, 2021, with Administrative Law Judge (ALJ) Velva Moses-Thompson presiding. The record was held open until October 12, 2021, solely for receiving post-hearing briefs concerning the application of the affirmative defense of the Statute of Limitations. The Arizona Department of Real Estate has jurisdiction over these types of petitions regarding alleged condominium association violations.

Main Issues and Arguments

Petitioner Sopatyk brought three claims, asserting the Respondent violated specific CC&R articles:

  1. Issue 1 (Screen Doors): Whether Respondent violated CC&R Article 2 § 3(a)(2) by directing and authorizing the installation of security screen doors, which are external items generally prohibited. Respondent argued the Architectural Committee had the authority to allow the installations under CC&R Article 7.
  2. Issue 2 (Pets): Whether Respondent violated CC&R Article 3 § 3(d)(1) by barring pets without guidelines. Respondent contended that this CC&R article does not require them to allow pets.
  3. Issue 3 (Marquee Assessment): Whether Respondent violated CC&R Article 6 § 2(a) by levying a $50 monthly fee on commercial units for marquee repair costs. Petitioner argued repairs must be paid out of the reserve fund derived from regular common expenses. Respondent countered that the $50 charge was a rental fee for unit owners advertising on the marquee, not an unauthorized assessment.

The Respondent also raised the affirmative defense that A.R.S. § 12-548 (Statute of Limitations) barred Issues 2 and 3.

Key Legal Points and Final Decision

The ALJ issued a decision on November 1, 2021, relying on the principle that unambiguous restrictive covenants must be enforced to give effect to the intent of the parties.

  1. Statute of Limitations: The ALJ rejected the defense, concluding that A.R.S. § 12-548 is inapplicable because that statute pertains to actions for debt evidenced by a written contract, which the petition was not.
  2. Issue 1 (Screen Doors): Petitioner prevailed. The ALJ concluded that screen doors are absolutely not permitted under CC&R Article 2 § 3(a)(2). CC&R Article 7 granting authority to the Architectural Committee cannot override the clear bar established by Article 2 § 3(a)(2), as doing so would render the prohibition meaningless.
  3. Issue 2 (Pets): Respondent prevailed. The CC&R permits, but does not require, the Board to allow pets. The Petitioner failed to prove by a preponderance of the evidence that the consistent prohibition of pets was arbitrarily or unreasonably applied.
  4. Issue 3 (Marquee Assessment): Petitioner prevailed. The ALJ concluded the marquee is part of the common area. The Association was not authorized under CC&R Article 6 § 2(a) to charge a separate assessment or rental fee for its use. Furthermore, there was no evidence that the $50 charge complied with the requirements for imposing a special assessment under CC&R Article 6 § 5.

Outcome: The Petitioner was deemed the prevailing party regarding Issues 1 and 3, and the Respondent prevailed regarding Issue 2. The Respondent was ordered to comply with CC&R Article 2 § 3(a)(2) and Article 6 § 2(a) going forward. Respondent was further ordered to pay Petitioner his filing fee of $1,000.00 within thirty days. No civil penalty was imposed.

Questions

Question

Can the HOA Board or Architectural Committee authorize an improvement (like a screen door) if the CC&Rs explicitly ban it?

Short Answer

No. The Board cannot use its general approval powers to override specific prohibitions in the CC&Rs.

Detailed Answer

Even if an Architectural Committee has the authority to approve improvements, they cannot authorize items that are specifically prohibited by other sections of the CC&Rs. Doing so would render the specific prohibition meaningless.

Alj Quote

If Respondent were permitted to authorize the installation of screen doors through the approval of the Architectural Committee, the bar in CC&R Article 2 § 3(a)(2) would have no meaning.

Legal Basis

Contract Interpretation

Topic Tags

  • Architectural Control
  • Board Authority
  • CC&R Interpretation

Question

If the CC&Rs say pets are allowed 'with Board permission,' does the Board have to let me have a pet?

Short Answer

No. The Board has discretion to deny permission.

Detailed Answer

If the CC&Rs state that animals are not allowed without express permission, the Board is not required to grant that permission. As long as the Board has consistently prohibited pets and not acted arbitrarily, they can enforce a no-pet policy.

Alj Quote

The Administrative Law Judge concludes that Respondent is not required, but may allow pets with the Board’s approval… Petitioner did not establish by a preponderance of the evidence that Respondent has arbitrarily or unreasonably applied CC&R Article 3 § 3(d)(1).

Legal Basis

Board Discretion

Topic Tags

  • Pets
  • Rules Enforcement

Question

Can the HOA charge a 'rental fee' or separate assessment to specific owners for the use or repair of a common area structure?

Short Answer

Not usually. Common area maintenance should be paid from general reserve funds or regular assessments.

Detailed Answer

The HOA cannot arbitrarily charge a 'rental fee' or specific assessment for a common area amenity (like a marquee sign) if the CC&Rs require common area improvements to be funded by the reserve fund or regular assessments.

Alj Quote

The Administrative Law Judge concludes that the marquee is a part of the common area of Xanadu and therefore, the Association was not authorized under CC&R Article 6 § 2(a), to charge a separate assessment or rental fee for the use of the marquee.

Legal Basis

CC&R Article 6 § 2(a)

Topic Tags

  • Assessments
  • Common Areas
  • Financials

Question

Is there a statute of limitations for filing a petition against my HOA with the Arizona Department of Real Estate?

Short Answer

No.

Detailed Answer

The statute of limitations that applies to debts (A.R.S. § 12-548) does not apply to ADRE petitions because they are not actions for debt. The Department itself does not have statute of limitations provisions.

Alj Quote

A.R.S. § 12-548 is inapplicable to the petition filed in this matter because the statute applies to actions for debt evidenced by a contract in writing. The petition does not relate to a debt and furthermore, the Department does not have any statute of limitations provisions.

Legal Basis

A.R.S. § 12-548 (distinguished)

Topic Tags

  • Procedure
  • Statute of Limitations

Question

Can the HOA levy a special assessment for repairs without a vote of the members?

Short Answer

No, not if the CC&Rs require a member vote.

Detailed Answer

If the CC&Rs stipulate that special assessments for capital improvements require the assent of a certain percentage of voters (e.g., 2/3), the HOA cannot impose the cost without holding that vote.

Alj Quote

Furthermore, there was no evidence presented at hearing that the $50 assessment was imposed that complied with CC&R Article 6 § 5.

Legal Basis

CC&R Article 6 § 5

Topic Tags

  • Special Assessments
  • Voting

Question

If I win my hearing against the HOA, can I get my filing fee back?

Short Answer

Yes.

Detailed Answer

The Administrative Law Judge has the authority to order the HOA to reimburse the prevailing party for the filing fee.

Alj Quote

IT IS FURTHER ORDERED that Respondent pay Petitioner his filing fee of $1,000.00, to be paid directly to Petitioner within thirty (30) days of this Order.

Legal Basis

Administrative Order

Topic Tags

  • Remedies
  • Fees

Question

How are conflicts or ambiguities in the CC&Rs interpreted by the judge?

Short Answer

They are construed as a whole to determine the underlying purpose.

Detailed Answer

Restrictive covenants are interpreted by looking at the document as a whole to understand the intent of the parties and the purpose of the restrictions.

Alj Quote

Restrictive covenants must be construed as a whole and interpreted in view of their underlying purposes, giving effect to all provisions contained therein.

Legal Basis

Common Law Interpretation

Topic Tags

  • Legal Standards
  • CC&R Interpretation

Case

Docket No
21F-H2121065-REL
Case Title
Brian D. Sopatyk vs. Xanadu Lake Resort Condominium, Inc.
Decision Date
2021-11-01
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Questions

Question

Can the HOA Board or Architectural Committee authorize an improvement (like a screen door) if the CC&Rs explicitly ban it?

Short Answer

No. The Board cannot use its general approval powers to override specific prohibitions in the CC&Rs.

Detailed Answer

Even if an Architectural Committee has the authority to approve improvements, they cannot authorize items that are specifically prohibited by other sections of the CC&Rs. Doing so would render the specific prohibition meaningless.

Alj Quote

If Respondent were permitted to authorize the installation of screen doors through the approval of the Architectural Committee, the bar in CC&R Article 2 § 3(a)(2) would have no meaning.

Legal Basis

Contract Interpretation

Topic Tags

  • Architectural Control
  • Board Authority
  • CC&R Interpretation

Question

If the CC&Rs say pets are allowed 'with Board permission,' does the Board have to let me have a pet?

Short Answer

No. The Board has discretion to deny permission.

Detailed Answer

If the CC&Rs state that animals are not allowed without express permission, the Board is not required to grant that permission. As long as the Board has consistently prohibited pets and not acted arbitrarily, they can enforce a no-pet policy.

Alj Quote

The Administrative Law Judge concludes that Respondent is not required, but may allow pets with the Board’s approval… Petitioner did not establish by a preponderance of the evidence that Respondent has arbitrarily or unreasonably applied CC&R Article 3 § 3(d)(1).

Legal Basis

Board Discretion

Topic Tags

  • Pets
  • Rules Enforcement

Question

Can the HOA charge a 'rental fee' or separate assessment to specific owners for the use or repair of a common area structure?

Short Answer

Not usually. Common area maintenance should be paid from general reserve funds or regular assessments.

Detailed Answer

The HOA cannot arbitrarily charge a 'rental fee' or specific assessment for a common area amenity (like a marquee sign) if the CC&Rs require common area improvements to be funded by the reserve fund or regular assessments.

Alj Quote

The Administrative Law Judge concludes that the marquee is a part of the common area of Xanadu and therefore, the Association was not authorized under CC&R Article 6 § 2(a), to charge a separate assessment or rental fee for the use of the marquee.

Legal Basis

CC&R Article 6 § 2(a)

Topic Tags

  • Assessments
  • Common Areas
  • Financials

Question

Is there a statute of limitations for filing a petition against my HOA with the Arizona Department of Real Estate?

Short Answer

No.

Detailed Answer

The statute of limitations that applies to debts (A.R.S. § 12-548) does not apply to ADRE petitions because they are not actions for debt. The Department itself does not have statute of limitations provisions.

Alj Quote

A.R.S. § 12-548 is inapplicable to the petition filed in this matter because the statute applies to actions for debt evidenced by a contract in writing. The petition does not relate to a debt and furthermore, the Department does not have any statute of limitations provisions.

Legal Basis

A.R.S. § 12-548 (distinguished)

Topic Tags

  • Procedure
  • Statute of Limitations

Question

Can the HOA levy a special assessment for repairs without a vote of the members?

Short Answer

No, not if the CC&Rs require a member vote.

Detailed Answer

If the CC&Rs stipulate that special assessments for capital improvements require the assent of a certain percentage of voters (e.g., 2/3), the HOA cannot impose the cost without holding that vote.

Alj Quote

Furthermore, there was no evidence presented at hearing that the $50 assessment was imposed that complied with CC&R Article 6 § 5.

Legal Basis

CC&R Article 6 § 5

Topic Tags

  • Special Assessments
  • Voting

Question

If I win my hearing against the HOA, can I get my filing fee back?

Short Answer

Yes.

Detailed Answer

The Administrative Law Judge has the authority to order the HOA to reimburse the prevailing party for the filing fee.

Alj Quote

IT IS FURTHER ORDERED that Respondent pay Petitioner his filing fee of $1,000.00, to be paid directly to Petitioner within thirty (30) days of this Order.

Legal Basis

Administrative Order

Topic Tags

  • Remedies
  • Fees

Question

How are conflicts or ambiguities in the CC&Rs interpreted by the judge?

Short Answer

They are construed as a whole to determine the underlying purpose.

Detailed Answer

Restrictive covenants are interpreted by looking at the document as a whole to understand the intent of the parties and the purpose of the restrictions.

Alj Quote

Restrictive covenants must be construed as a whole and interpreted in view of their underlying purposes, giving effect to all provisions contained therein.

Legal Basis

Common Law Interpretation

Topic Tags

  • Legal Standards
  • CC&R Interpretation

Case

Docket No
21F-H2121065-REL
Case Title
Brian D. Sopatyk vs. Xanadu Lake Resort Condominium, Inc.
Decision Date
2021-11-01
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Brian D. Sopatyk (petitioner)
    Unit Owner
  • Jacob A. Kubert (petitioner attorney)
    Dessaules Law Group

Respondent Side

  • Penny L. Koepke (respondent attorney)
    Maxwell Morgan PC

Neutral Parties

  • Velva Moses-Thompson (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (ADRE Commissioner)
    Arizona Department of Real Estate
  • Louis Dettorre (ADRE Commissioner)
    Arizona Department of Real Estate
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
  • djones (ADRE staff)
    Arizona Department of Real Estate
  • DGardner (ADRE staff)
    Arizona Department of Real Estate

Other Participants

  • c. serrano (clerk/staff)
    Transmitting agent mentioned in distribution list

John H. Kelly v. Cortez Canyon Unit Owners Association

Posted on by

Case Summary

Case ID 19F-H1919060-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-09-13
Administrative Law Judge Jenna Clark
Outcome The ALJ concluded that the Petitioner failed to meet the required threshold of 21 valid signatures from eligible voters needed to compel the Association to call a special meeting under ARIZ. REV. STAT. § 33-1243. The petition was consequently denied.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner John H. Kelly Counsel —
Respondent Cortez Canyon Unit Owners Association Counsel Jonathan A. Dessaules

Alleged Violations

ARIZ. REV. STAT. § 33-1243

Outcome Summary

The ALJ concluded that the Petitioner failed to meet the required threshold of 21 valid signatures from eligible voters needed to compel the Association to call a special meeting under ARIZ. REV. STAT. § 33-1243. The petition was consequently denied.

Why this result: Petitioner failed to provide the minimum required 21 valid signatures from eligible unit owners (only 13 were valid) as required by the Association's Bylaws and state statute.

Key Issues & Findings

Alleged violation of failure to call a special meeting to remove a board member.

Petitioner filed a petition alleging the Association failed to call a special meeting to remove a board member after collecting what Petitioner believed were sufficient signatures (36 collected, 21 required). The Association countered that only 13 of those signatures were valid (excluding non-owners, duplicates, and delinquent members ineligible to vote).

Orders: Petitioner’s petition is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • ARIZ. REV. STAT. § 33-1243
  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. REV. STAT. § 33-1243(H)(4)
  • ARIZ. REV. STAT. § 33-1243(H)(4)(c)
  • ARIZ. ADMIN. CODE R2-19-119
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

Analytics Highlights

Topics: HOA, Condominium, Special Meeting, Board Member Removal, Petition Signature Validity, Voting Rights, Delinquency
Additional Citations:

  • ARIZ. REV. STAT. § 33-1243
  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. REV. STAT. § 33-1243(H)(4)
  • ARIZ. REV. STAT. § 33-1243(H)(4)(c)
  • ARIZ. ADMIN. CODE R2-19-119
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

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Video Overview

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Decision Documents

19F-H1919060-REL Decision – 737890.pdf

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19F-H1919060-REL Decision – 737890.pdf

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Administrative Hearing Briefing: Kelly vs. Cortez Canyon Unit Owners Association

Executive Summary

This document summarizes the Administrative Law Judge Decision in case number 19F-H1919060-REL, a dispute between Petitioner John H. Kelly and the Respondent, Cortez Canyon Unit Owners Association (“the Association”). The core issue was whether the Association violated Arizona state law by refusing to call a special meeting to remove a board member, as demanded by a petition initiated by Mr. Kelly.

The Association’s bylaws require a petition signed by at least 25% of eligible voting members—in this case, 21 of the 84 unit owners—to compel such a meeting. Mr. Kelly submitted a petition with 36 signatures. However, upon review, the Association invalidated 23 signatures for specific reasons: 11 were from non-owner renters, 6 were duplicate signatures from units that had already signed, and 6 were from owners whose voting rights were suspended due to being over 15 days delinquent on payments.

This left only 13 valid signatures, well short of the 21 required. The Administrative Law Judge, Jenna Clark, concluded that the Petitioner failed to meet the burden of proof. The evidence clearly demonstrated that the number of valid signatures was insufficient to legally compel the Association to call a special meeting. Consequently, the judge ruled that the Association did not violate Arizona statute § 33-1243 and denied Mr. Kelly’s petition.

Case Overview

Parties Involved

Name / Entity

Details

Petitioner

John H. Kelly

A condominium owner and member of the Cortez Canyon Unit Owners Association. Appeared on his own behalf.

Respondent

Cortez Canyon Unit Owners Association

The homeowners’ association for the Cortez Canyon condominium development in Phoenix, AZ. Represented by Jonathan A. Dessaules, Esq.

Witness

Saundra Garcia

President of the Association’s Board of Directors.

Adjudicator

Jenna Clark

Administrative Law Judge, Arizona Office of Administrative Hearings.

Core Dispute

The central issue adjudicated was whether the Cortez Canyon Unit Owners Association violated Arizona Revised Statute § 33-1243 by failing to call a special meeting for the purpose of removing a board member after receiving a petition from unit owners. The Petitioner alleged that the required number of signatures had been collected, while the Respondent denied this claim, asserting that the petition lacked the requisite number of valid signatures from eligible voters.

Legal and Governance Framework

The dispute was governed by Arizona state law and the Association’s own internal documents.

• Arizona Revised Statute § 33-1243(H)(4): This statute mandates that an association with 1,000 or fewer members must call a special meeting to remove a board member upon receipt of a petition signed by at least 25% of the eligible voters in the association.

• Association Bylaws, Article II, Section 2: Mirrors the state statute, stipulating that a special meeting may be called by unit owners holding at least 25% of the votes in the Association.

• Association Bylaws, Article II, Section 7: Critically, this section states that a unit owner’s right to vote is automatically suspended if they are in arrears on payments (assessments, penalties, etc.) for a period of 15 days. This suspension remains until all payments are brought current.

Petitioner’s Position and Evidence (John H. Kelly)

Mr. Kelly initiated the petition to recall an Association board member. His position and the evidence he presented are summarized as follows:

• Petition Submission: Mr. Kelly, with assistance from others, collected 36 signatures and submitted them to the Association’s then-property management group, Golden Valley.

• Initial Confirmation: He testified that Golden Valley initially informed him that he had secured enough signatures to compel the special meeting.

• Reversal by New Management: A short time later, after the Association’s contract with Golden Valley expired on June 1, 2019, a new property management company informed him that the petition did not meet the signature threshold.

• Key Admission: Mr. Kelly testified that neither he nor his assistants verified whether the signatories were unit owners eligible to vote prior to submitting the petition.

• Argument at Hearing: Mr. Kelly argued that he had submitted a minimum of 23 valid signatures. This included the signature of Jeffery Law, an owner of six units, which Mr. Kelly contended should be counted six times. However, it was established that Mr. Law’s signature was secured after the initial submission and was never provided to the management company.

• Formal Allegation: In his April 29, 2019, filing with the Department, Mr. Kelly stated: “Cortez Canyon has 84 units and 25% is 21 units. Homeowners have collected more than the required 21 home-owner’s signatures. The Cortez Canyon HOA board has stated that they will not schedule the required special meeting.”

Respondent’s Position and Evidence (Cortez Canyon Association)

The Association, represented by its Board President Saundra Garcia, presented a detailed rebuttal based on a thorough review of the submitted petition.

• Receipt of Petition: The Association received the petition with 36 purported unit owner signatures on or about April 19, 2019.

• Signature Verification Process: Upon review, the Association determined that a significant number of signatures were invalid based on the community’s governing documents.

• Disqualification of Signatures: The Association provided a specific breakdown of the 23 signatures it disqualified:

◦ 11 signatures were removed because they were from non-owner renters or occupants.

◦ 6 signatures were removed because they were from units for which another owner’s signature had already been collected (only one vote is permitted per unit).

◦ 6 signatures were removed because the unit owner was ineligible to vote, being more than 15 days delinquent on fines, fees, or dues owed to the Association, as stipulated in the Bylaws.

• Final Tally: After removing the 23 invalid signatures from the 36 submitted, the Association concluded that the petition contained only 13 valid signatures.

• Conclusion: Since 13 signatures is below the required threshold of 21, the Association determined it was not obligated by law or its bylaws to call the special meeting. The signature from the multi-unit owner, Jeffrey Law, was not part of the petition received by the Association and was therefore not considered in its count.

Administrative Law Judge’s Findings and Ruling

The Administrative Law Judge, Jenna Clark, reviewed the evidence and testimony from both parties and issued a decision decisively in favor of the Respondent.

Conclusions of Law

• Burden of Proof: The Judge established that the Petitioner, John H. Kelly, bore the burden of proving by a “preponderance of the evidence” that the Association had violated the statute. A preponderance of evidence is defined as proof that convinces the trier of fact that a contention is more probably true than not.

• Undisputed Facts: The material facts of the case were not at issue. Both parties agreed that 21 valid signatures were required to compel the special meeting.

• Evidence of Record: The Judge found that the evidence presented demonstrated the Petitioner’s failure to meet the required threshold. The decision states, “While Petitioner is correct that he submitted more than twenty-one signatures to the Association, he is incorrect that all of signatures provided were valid.”

• Final Determination on Signatures: The ruling affirmed the Association’s count, concluding, “What the evidence of record reflects is that Petitioner only provided thirteen valid signatures along with his petition to the Association, which was not enough to compel the Association to call a special meeting.”

Final Order

Based on the failure of the Petitioner to sustain his burden of proof, the Administrative Law Judge issued the following order on September 13, 2019:

IT IS ORDERED that Petitioner’s petition be denied.

Study Guide: Kelly v. Cortez Canyon Unit Owners Association (Case No. 19F-H1919060-REL)

This study guide provides a comprehensive review of the Administrative Law Judge Decision in the matter between Petitioner John H. Kelly and Respondent Cortez Canyon Unit Owners Association. It is designed to test and reinforce understanding of the case’s facts, legal arguments, governing documents, and final outcome.

——————————————————————————–

Part I: Short-Answer Quiz

Instructions: Answer the following ten questions in two to three complete sentences, based solely on the information provided in the case document.

1. Who were the primary parties involved in this hearing, and what were their respective roles?

2. What was the specific violation of Arizona law alleged by the Petitioner in his initial petition to the Department of Real Estate?

3. How many condominium units are in the Cortez Canyon development, and what number of valid signatures was consequently required to compel a special meeting?

4. According to the Association’s Bylaws, what circumstances would cause a Unit Owner to have their voting rights suspended?

5. List the three categories of invalid signatures that the Association identified in its review of the Petitioner’s submission.

6. Who was Jeffery Law, and why was his signature ultimately not counted by the Association?

7. What was the initial assessment given to the Petitioner by the property management group, Golden Valley, and how did it differ from the Association’s final determination?

8. In this type of legal proceeding, who bears the “burden of proof,” and what standard of proof must be met?

9. What was the Administrative Law Judge’s final conclusion regarding the Petitioner’s claim?

10. What was the final ORDER issued by the Administrative Law Judge in this case?

——————————————————————————–

Part II: Answer Key

1. The primary parties were John H. Kelly, the “Petitioner,” who appeared on his own behalf, and the Cortez Canyon Unit Owners Association, the “Respondent,” which was represented by Jonathan A. Dessaules, Esq. Administrative Law Judge Jenna Clark presided over the hearing. Saundra Garcia, the Association’s Board President, appeared as a witness for the Respondent.

2. The Petitioner alleged that the Association violated ARIZ. REV. STAT. § 33-1243 by failing to call a special meeting for the purpose of removing a board member. He claimed to have collected the required number of signatures from homeowners to compel such a meeting.

3. The Cortez Canyon development has 84 units. Based on the requirement for signatures from 25% of the votes in the Association, a total of 21 valid Unit Owner signatures were required to compel a special meeting.

4. According to Bylaws Article II, Section 7, a Unit Owner’s right to vote is automatically suspended if the owner is in arrears in the payment of any Assessment, monetary penalties, or other fees for a period of fifteen days. This suspension remains in effect until all payments are brought current.

5. The Association determined that of the 36 submitted signatures, 23 were invalid. The categories for invalidation were: eleven signatures from non-owner renters or occupants, six signatures from units where another signature had already been collected, and six signatures from Unit Owners who were ineligible to vote due to being delinquent on payments.

6. Jeffery Law was an Association member and owner of six condominium units. His signature was not counted because the Petitioner secured it after submitting the petition to the management company and never provided it to the Association as part of the formal submission.

7. The former property management group, Golden Valley, initially informed the Petitioner that he had secured enough valid signatures to compel a special meeting. However, after the Association directly reviewed the petition, it determined that only 13 of the signatures were valid, far short of the required 21.

8. In this proceeding, the Petitioner, John H. Kelly, bore the burden of proof. The standard of proof required was a “preponderance of the evidence,” which means providing evidence that is more convincing and has superior weight than the evidence presented by the opposing side.

9. The Administrative Law Judge concluded that the Petitioner failed to sustain his burden of proof. The credible evidence demonstrated that the Petitioner submitted only thirteen valid signatures, which was insufficient to compel the Association to call a special meeting under its Bylaws and state law.

10. The final ORDER, based on the Findings of Fact and Conclusions of Law, was that the Petitioner’s petition be denied.

——————————————————————————–

Part III: Essay Questions

Instructions: The following questions are designed for longer, essay-style responses. They require a deeper analysis of the case’s themes, legal principles, and procedural elements. Do not provide answers.

1. Analyze the concept of “burden of proof” as it applies to this case. Explain what “preponderance of the evidence” means in this context, who held the burden, and how the failure to meet this standard was the central reason for the judge’s final decision.

2. Discuss the critical importance of an association’s governing documents (CC&Rs and Bylaws) in resolving internal disputes. Use specific articles and sections from the Cortez Canyon Bylaws to illustrate how they definitively established the rules for calling a special meeting and determining voter eligibility, leaving little room for interpretation.

3. Evaluate the Petitioner’s strategy and execution in collecting signatures for his petition. Identify the critical errors he and his assistants made in the process, and outline the specific steps he could have taken to verify signatures and ensure his petition was valid before its submission.

4. Explain the legal and practical distinctions between a Unit Owner, an occupant/renter, and an “eligible voter” within the context of the Cortez Canyon Unit Owners Association. How did the Petitioner’s failure to understand these distinctions become the central point of failure for his petition?

5. Imagine you are advising the Cortez Canyon Board of Directors following this hearing. Based on the evidence and outcome of the case, what recommendations would you make regarding their procedures for validating petitions and their communication with Unit Owners about voting rights, petition requirements, and the consequences of financial delinquency?

——————————————————————————–

Part IV: Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

The official (Jenna Clark) who presides over hearings at the Office of Administrative Hearings, reviews evidence, and makes legal findings and conclusions.

Answer

The formal written response filed by the Respondent (the Association) on May 28, 2019, denying the Petitioner’s allegations.

ARIZ. REV. STAT.

Abbreviation for Arizona Revised Statutes, which are the codified laws of the state of Arizona. The specific statute at issue was § 33-1243.

Association

The Cortez Canyon Unit Owners Association, the governing body for the condominium development, comprised of all unit owners.

Board of Directors (the Board)

The group of individuals that oversees the Association, as empowered by the CC&Rs. The petition sought to remove a member of this board.

Burden of Proof

The legal obligation on one party in a dispute (in this case, the Petitioner) to provide sufficient evidence to prove their claim.

Bylaws

The set of rules adopted by the Association on June 14, 2000, that govern its internal operations, including meetings and voting rights.

Covenants, Conditions, and Restrictions (CC&Rs)

The primary governing documents for the development, recorded on May 9, 2000, which form an enforceable contract between the Association and each property owner.

Department

The Arizona Department of Real Estate, the state agency authorized to receive and decide petitions from members of homeowners’ associations.

Eligible Votes

A term defined in the Bylaws as the total number of votes that can be lawfully cast, excluding those from members whose voting rights are suspended.

Findings of Fact

The section of the legal decision that outlines the established, undisputed facts of the case based on the hearing evidence.

OAH (Office of Administrative Hearings)

An independent state agency where evidentiary hearings are conducted by Administrative Law Judges.

The final, legally binding command issued by the judge at the conclusion of the decision. In this case, the Order was to deny the petition.

Petitioner

The party who initiates a legal action by filing a petition. In this case, John H. Kelly.

Petition

The formal document filed by the Petitioner on April 29, 2019, with the Department to initiate the hearing process against the Association.

Preponderance of the Evidence

The standard of proof required in this case, meaning that the evidence must be sufficient to convince the judge that the contention is more probably true than not.

Respondent

The party against whom a petition is filed and who must respond to the allegations. In this case, the Cortez Canyon Unit Owners Association.

Special Meeting

A meeting of Association members called for a specific purpose outside of the regularly scheduled meetings. The petition sought to compel a special meeting to remove a board member.

Unit Owner

An individual who holds legal title to a condominium within the Cortez Canyon development and is a member of the Association.

He Gathered 36 Signatures to Oust His HOA Board. Here’s Why Only 13 Counted.

Introduction: The Power and Pitfalls of Community Action

Many homeowners have felt the frustration of trying to enact change within their community, especially when it involves challenging the decisions of a Homeowners Association (HOA) board. It can feel like an uphill battle, but the right to petition and call for special meetings is a cornerstone of community governance.

However, a real-world case involving homeowner John H. Kelly and the Cortez Canyon Unit Owners Association serves as a critical cautionary tale. Mr. Kelly gathered what he believed were more than enough signatures to force a special meeting to remove a board member. Despite his significant effort, his petition failed spectacularly. This article breaks down the key legal and procedural reasons why, offering essential lessons for every homeowner.

1. Not All Signatures Are Created Equal: The Validity Gauntlet

The core of the issue began with a simple numbers game. The Cortez Canyon HOA has 84 units, meaning a petition required signatures from 25%, or 21, of the unit owners to compel a special meeting. Mr. Kelly successfully collected 36 signatures—a number that seemed to guarantee his success.

In a moment of false victory, the association’s property management company at the time, Golden Valley, informed Mr. Kelly that he had indeed secured enough signatures. But this assurance was short-lived. A new management company took over, and after a formal review, the association delivered devastating news: only 13 of the 36 signatures were valid. The petition was dead on arrival.

The association disqualified 23 signatures for specific, documented reasons:

• Non-Owners: Eleven signatures were from renters or other residential occupants who were not the legal owners of the unit.

• Duplicate Units: Six signatures were removed because another signature had already been collected from the same unit, upholding the “one vote per unit” principle.

• Ineligible Owners: Six signatures were from homeowners who were technically owners but were found to be ineligible to vote at the time they signed.

This reveals the petitioner’s first critical, and ultimately fatal, assumption: that the HOA would do the work of verifying his supporters. In reality, the burden of proof was his alone. The legal findings state it plainly: “Neither Petitioner nor his assistants verified if the signatures that were collected belonged to Unit Owners eligible to vote.” From a governance perspective, this initial culling of signatures is where most grassroots community efforts fail.

2. The Fine Print That Disenfranchises: “Good Standing” and Your Right to Vote

Here, we find the kind of boilerplate legal language that is often ignored by homeowners but wielded with immense power by boards. The ineligibility of six homeowners stemmed from a specific clause in the association’s bylaws related to financial standing.

The bylaw states:

“In the event any Unit Owner is in arrears in the payment of any Assessment, monetary penalties or other fees and charges due under the terms of the Condominium Documents for a period of fifteen (15) days, the Unit Owner’s right to vote as a member of the Association shall be automatically suspended…”

This single provision had a profound impact. Six of the signatures Mr. Kelly collected were from homeowners who were more than 15 days late on their dues or fines. Their voting rights were suspended, and their signatures were rendered invalid. This highlights a crucial preparatory step for any petitioner: confidentially requesting a list of members in good standing from the association before collecting signatures, if the governing documents allow, or at minimum, reminding potential signatories to ensure their accounts are current.

3. Process is Paramount: The Signature That Never Was

Facing a losing battle at the administrative hearing, the petitioner made a final argument to salvage his petition. He contended that he had also secured the signature of a member named Jeffrey Law, who owned six separate units. Mr. Kelly argued this single signature should count as six votes, which would have put him over the required threshold.

However, this argument failed due to a simple but fatal procedural error. According to the court’s findings, the signature from Mr. Law was never actually submitted with the petition to the association.

The Administrative Law Judge’s finding was unambiguous: “The signature Petitioner collected from the multiple unit owner, Jeffrey Law, was not a part of the petition received by the Association and therefore was not counted.” This procedural error, while seemingly minor, is an absolute bar to success in administrative law. Unlike a casual disagreement, there is no room for “I meant to” or “I thought I had.”

Conclusion: Knowledge is Power in an HOA

Because the petitioner could only provide 13 valid signatures instead of the required 21, the Administrative Law Judge denied his petition. The HOA was not required to call the special meeting, and the board member remained in place. Mr. Kelly’s story is a powerful reminder that enthusiasm and effort are not enough to navigate the complexities of community governance. The case provides three clear takeaways for any homeowner:

1. Quality Over Quantity: A short, verified list of eligible voters is infinitely more powerful than a long list of unverified names.

2. Bylaws are Your Battlefield: The governing documents contain the rules of engagement. Ignoring them—especially clauses on voter eligibility—is a unilateral surrender.

3. Documentation is Everything: If it wasn’t formally submitted to the correct party, it legally never happened. Your ability to prove submission is as important as the submission itself.

This case is a powerful reminder that enthusiasm and effort aren’t enough. The real question every homeowner should ask is: Do you truly know the rules that govern your rights in your own community?

Case Participants

Petitioner Side

  • John H. Kelly (petitioner)

Respondent Side

  • Jonathan A. Dessaules (attorney)
    Dessaules Law Group
    Appeared on behalf of Respondent
  • Saundra Garcia (board member)
    Cortez Canyon Unit Owners Association
    Called as a witness and testified as Board President
  • Jacob A. Kubert (attorney)
    Dessaules Law Group
    Counsel receiving notice of decision

Neutral Parties

  • Jenna Clark (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (commissioner)
    Arizona Department of Real Estate
    Decision transmitted to Commissioner

Other Participants

  • Jeffery Law (owner)
    Cortez Canyon Unit Owners Association
    Unit owner whose signature Petitioner secured but was not submitted to the Association

Tom Barrs v. Desert Ranch Homeowners Association

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Case Summary

Case ID 19F-H1918037-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2019-09-12
Administrative Law Judge Jenna Clark
Outcome full
Filing Fees Refunded $500.00
Civil Penalties $500.00

Parties & Counsel

Petitioner Tom Barrs Counsel Jonathan A. Dessaules
Respondent Desert Ranch Homeowners Association Counsel B. Austin Baillio

Alleged Violations

A.R.S. § 33-1805

Outcome Summary

The Administrative Law Judge concluded that the HOA violated ARIZ. REV. STAT. § 33-1805 by failing to provide the full requested documentation relating to EDC actions and communications. The Petitioner's request for relief was granted, resulting in the reimbursement of the $500 filing fee and the imposition of a $500 civil penalty against the HOA.

Key Issues & Findings

Whether Desert Ranch Homeowners Association (Respondent) violated A.R.S. § 33-1805 by failing to fulfill a records request.

The Association violated A.R.S. § 33-1805 by failing to fully comply with Petitioner's specific request for EDC records (submissions, requests, and approvals) by providing only a summary table instead of the totality of requested communications within the statutory deadline.

Orders: Petitioner's petition granted. Respondent ordered to reimburse Petitioner's $500.00 filing fee (ARIZ. REV. STAT. § 32-2199.01) and tender a $500.00 civil penalty to the Department (ARIZ. REV. STAT. § 32-2199.02(A)).

Filing fee: $500.00, Fee refunded: Yes, Civil penalty: $500.00

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. § 33-1805
  • ARIZ. REV. STAT. § 32-2199.01
  • ARIZ. REV. STAT. § 32-2199.02(A)

Analytics Highlights

Topics: Records Request, HOA Violation, Civil Penalty, Filing Fee Reimbursement
Additional Citations:

  • ARIZ. REV. STAT. § 33-1805
  • ARIZ. REV. STAT. § 32-2199.01
  • ARIZ. REV. STAT. § 32-2199.02(A)
  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 41-1092
  • ARIZ. ADMIN. CODE R2-19-119
  • ARIZ. REV. STAT. § 1-243
  • ARIZ. ADMIN. CODE R2-19-107
  • ARIZ. REV. STAT. § 33-1804

Video Overview

Audio Overview

Decision Documents

19F-H1918037-REL Decision – 737525.pdf

Uploaded 2026-04-28T10:46:18 (176.7 KB)

19F-H1918037-REL Decision – 700566.pdf

Uploaded 2026-04-28T10:46:31 (149.3 KB)

19F-H1918037-REL Decision – 737525.pdf

Uploaded 2026-04-24T11:18:19 (176.7 KB)

19F-H1918037-REL Decision – 700566.pdf

Uploaded 2026-04-24T11:18:22 (149.3 KB)

Briefing Document: Barrs v. Desert Ranch Homeowners Association (Case No. 19F-H1918037-REL)

Executive Summary

This briefing document synthesizes two Administrative Law Judge (ALJ) decisions concerning a records request dispute between homeowner Tom Barrs (Petitioner) and the Desert Ranch Homeowners Association (Respondent). The core of the dispute was the Association’s failure to fully comply with a request for records under Arizona Revised Statutes (A.R.S.) § 33-1805.

The case is notable for its complete reversal upon rehearing. An initial ruling on April 10, 2019, favored the Association, finding that the Petitioner had failed to properly submit his request by not emailing all Board members. However, this decision was overturned in a final, binding order on September 12, 2019. In the rehearing, the Petitioner presented new evidence demonstrating he was following the Association’s own prior written instructions for submitting such requests.

The ALJ ultimately concluded that the Association did violate A.R.S. § 33-1805 by providing only a summary document instead of making the full records available for examination. Consequently, the final order granted the Petitioner’s petition, mandated the full reimbursement of his $500 filing fee, and levied an additional $500 civil penalty against the Association. The case underscores the critical importance of procedural compliance and the weight of documented instructions in governing interactions between homeowners and their associations.

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I. Case Overview

• Parties:

◦ Petitioner: Tom Barrs, a property owner and member of the Association.

◦ Respondent: Desert Ranch Homeowners Association (“the Association”).

• Venue: Arizona Office of Administrative Hearings (OAH).

• Presiding Judge: Administrative Law Judge (ALJ) Jenna Clark.

• Core Allegation: Whether the Desert Ranch Homeowners Association violated A.R.S. § 33-1805 by failing to fulfill a records request submitted by the Petitioner.

• Case Numbers:

◦ 19F-H1918037-REL (Initial Decision)

◦ 19F-H1918037-REL-RHG (Rehearing Decision)

II. Chronology of the Dispute

Jul. 19, 2017

Association President Catherine Overby appoints Environmental Design Committee (EDC) Director Brian Schoeffler as the Petitioner’s primary contact for records requests.

Jul. 18, 2018

Ms. Overby instructs the Petitioner to direct all requests to the Association’s management company, Associated Asset Management (AAM), specifically to Lori Lock-Lee.

Nov. 1, 2018

Petitioner submits the records request at issue via email to Catherine Overby, Brian Schoeffler, and Lori Loch-Lee.

Nov. 2, 2018

Ms. Loch-Lee acknowledges the request, states she will forward it to all Board members, and clarifies that AAM is only the Association’s accounting firm.

Nov. 18, 2018

Mr. Schoeffler responds on behalf of the Association, providing a summary table of EDC actions but not the full records. He also advises the Petitioner that all Board members must be copied on future requests.

Dec. 17, 2018

Petitioner files a single-issue petition against the Association with the Arizona Department of Real Estate, paying a $500 fee.

Mar. 6, 2019

Petitioner sends a follow-up email specifying the exact documents he is seeking, referencing items listed in the summary table he received.

Mar. 11, 2019

Mr. Schoeffler replies, asserting the request was already fulfilled and instructing the Petitioner to submit a new request for the additional items.

Mar. 17, 2019

Mr. Schoeffler emails again, claiming the original request was improperly submitted to only two of four Board members and that providing more documents could be seen as an “admission of guilt.”

Mar. 21, 2019

The first evidentiary hearing is held at the OAH.

Apr. 10, 2019

The initial ALJ Decision is issued, denying the Petitioner’s petition.

Jun. 10, 2019

Petitioner submits an appeal to the Department, which is granted.

Aug. 27, 2019

A rehearing is held at the OAH.

Sep. 12, 2019

The final ALJ Decision is issued, reversing the initial ruling and granting the Petitioner’s petition.

III. The Records Request and Response

Petitioner’s Request (November 1, 2018)

The Petitioner submitted a clear and direct request for specific records via email, citing the relevant statute:

“Pursuant to ARS 33-1805, I am requesting a copy of all EDC actions, written requests, and written approvals from October 2017 through October 2018. Soft copies via return email are preferable; otherwise, please let me know when hard copies are available for pickup.”

Association’s Response (November 18, 2018)

The Association did not provide the requested documents (e.g., letters, emails, applications). Instead, it provided a “summary table listing of some, not all, EDC actions.” As of the August 27, 2019, rehearing, the Petitioner had still not received the full documentation he originally requested.

Petitioner’s Clarification (March 6, 2019)

In an attempt to resolve the issue, the Petitioner sent a detailed follow-up email outlining the specific missing records by referencing the line items in the Association’s own summary table. This demonstrated that his request was not for a vague “list of actions” but for the underlying correspondence. This included requests for:

• Copies of violation notices and “Full Compliance” correspondence.

• Complaint correspondence from homeowners regarding shrubs and subsequent citations.

• Submittal correspondence for a project from Mr. Schoeffler himself, along with approvals.

• Original submittals and approvals for a garage remodel and septic install.

IV. Analysis of the Two Administrative Rulings

The opposite outcomes of the two hearings hinged entirely on the validity of the Petitioner’s original email submission.

A. Initial ALJ Decision (April 10, 2019) – In Favor of Respondent (HOA)

• Central Finding: The Petitioner failed to properly submit his records request because he sent it to only two Board members, not the entire Board.

• Reasoning: The ALJ concluded that because the request was improperly submitted, the Association was not obligated to fulfill it under A.R.S. § 33-1805. Therefore, its failure to provide the full records did not constitute a violation. The decision noted, “Because the credible evidence of record reflects that Petitioner failed to properly submit his records request to the Board, Petitioner has failed established by a preponderance of the evidence that the Association was in violation…”

• Outcome: The petition was denied. The Association was not required to reimburse the Petitioner’s filing fee, and his request for a civil penalty was denied.

B. Rehearing ALJ Decision (September 12, 2019) – In Favor of Petitioner (Barrs)

• Central Finding: The Petitioner did properly submit his records request by emailing the designated contacts.

• Key New Evidence: The Petitioner introduced two exhibits proving he had received explicit instructions from the Association President on where to direct his requests:

1. A July 19, 2017 communication appointing EDC Chairman Brian Schoeffler as his primary records request contact.

2. A July 18, 2018 communication instructing him to direct requests to the management company (AAM).

• Reasoning: The ALJ found this evidence dispositive, stating, “Petitioner’s November 01, 2018, records request was not required to be sent to all members of the Association’s Board, as Petitioner had expressly been instructed to only send his records requests to the Association’s EDC Chairman, Mr. Schoeffler, which he did.” With the submission deemed proper, the focus shifted to the response. The ALJ concluded that providing a summary table was not compliant with the statute’s requirement to make records “reasonably available for examination.”

• Outcome: The initial decision was reversed, and the Petitioner’s petition was granted.

V. Key Arguments and Testimonies

• Petitioner (Tom Barrs):

◦ Argued his dispute was with the adequacy of the Association’s response, not its timeliness.

◦ Alleged the Association acted in bad faith and willfully withheld records, citing a previous OAH adjudication over a similar request.

◦ Successfully demonstrated he had followed the Association’s own prior instructions for submitting requests.

• Respondent (via Brian Schoeffler):

◦ Maintained that the request was invalid because it was not sent to all four Board members, an argument that collapsed during the rehearing.

◦ Admitted the Association’s governing documents do not contain a requirement that all Board members be copied on records requests.

◦ Justified the incomplete response by stating that providing additional documents after the petition was filed could be “interpreted as an admission of guilt.”

◦ Reasoned that the Association acted as it did because a previous, similar dispute had been decided in its favor.

VI. Final Order and Penalties

The binding order issued on September 12, 2019, following the rehearing, mandated the following:

1. Petition Granted: The Petitioner’s petition was granted in its entirety.

2. Filing Fee Reimbursement: The Association was ordered to reimburse the Petitioner’s $500 filing fee.

3. Civil Penalty: The Association was ordered to pay a civil penalty of $500 to the Arizona Department of Real Estate for its violation of A.R.S. § 33-1805.

Study Guide: Barrs v. Desert Ranch Homeowners Association

This guide provides a comprehensive review of the administrative legal case between petitioner Tom Barrs and respondent Desert Ranch Homeowners Association, covering the initial hearing and the subsequent rehearing. It includes a quiz to test factual recall, essay questions for deeper analysis, and a glossary of key terms.

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Short-Answer Quiz

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

1. Who are the primary parties in this legal dispute, and what are their respective roles?

2. What specific Arizona Revised Statute was the Desert Ranch Homeowners Association accused of violating, and what does this statute generally require?

3. What was the exact nature of the records request Tom Barrs submitted on November 1, 2018?

4. In the initial hearing, what was the key reason the Administrative Law Judge ruled in favor of the Association?

5. What was the Association’s initial response to Barrs’ records request, and why did Barrs consider it incomplete?

6. Upon what grounds was a rehearing of the case granted?

7. What crucial new evidence presented at the rehearing changed the outcome of the case?

8. How did the Association’s own bylaws and concessions during the rehearing weaken its defense?

9. What was the final ruling in the Administrative Law Judge’s decision after the rehearing?

10. What financial penalties were imposed on the Desert Ranch Homeowners Association in the final order?

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Answer Key

1. The primary parties are Tom Barrs, the Petitioner, and the Desert Ranch Homeowners Association, the Respondent. Barrs, a homeowner and member of the Association, filed a petition alleging the Association failed to comply with a records request. The Association, represented in the hearings by Brian Schoeffler, defended its actions against this claim.

2. The Association was accused of violating A.R.S. § 33-1805. This statute requires a homeowners’ association to make its financial and other records reasonably available for examination by a member within ten business days of a request. It also allows the association to charge a fee of not more than fifteen cents per page for copies.

3. On November 1, 2018, Tom Barrs requested “a copy of all EDC actions, written requests, and written approvals from October 2017 through October 2018.” He specified that electronic copies were preferable but that he was also willing to pick up hard copies.

4. In the initial hearing, the judge ruled for the Association because the evidence indicated Barrs had failed to properly submit his request to all members of the Association’s Board. This procedural error meant Barrs failed to establish by a preponderance of the evidence that the Association was in violation of the statute.

5. The Association responded on November 18, 2018, by providing Barrs with a summary table of Environmental Design Committee (EDC) actions. Barrs considered this incomplete because his request was for the underlying communications, including all written requests and approvals, not just a summary list of actions.

6. A rehearing was granted after Petitioner Tom Barrs submitted an appeal to the Arizona Department of Real Estate on June 10, 2019. The Department granted the appeal and referred the matter back to the Office of Administrative Hearings for a new evidentiary hearing.

7. The crucial new evidence showed that the Association’s President had previously appointed Brian Schoeffler as Barrs’ primary contact for records requests. This evidence demonstrated that Barrs had, in fact, followed the specific instructions given to him and was not required to send his request to all board members, directly contradicting the basis for the initial ruling.

8. The Association conceded that its governing documents do not require members to copy all Board members on records requests. It also admitted that its own bylaws regarding the submission of forms for such requests were not adhered to or enforced, which undermined its argument that Barrs had failed to follow proper procedure.

9. The final ruling, issued September 12, 2019, granted the Petitioner’s petition. The Administrative Law Judge concluded that the Association’s conduct violated A.R.S. § 33-1805 because it did not fully comply with Barrs’ specific and properly submitted request.

10. The Association was ordered to reimburse Petitioner Tom Barrs’ $500.00 filing fee. Additionally, a civil penalty of $500.00 was levied against the Association, payable to the Arizona Department of Real Estate.

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Essay Questions

Instructions: The following questions are designed for longer, essay-format answers that require critical thinking and synthesis of information from the case documents. Answers are not provided.

1. Compare and contrast the Findings of Fact and Conclusions of Law in the initial decision (April 10, 2019) with those in the rehearing decision (September 12, 2019). Analyze how specific factual clarifications led to a complete reversal of the legal conclusion.

2. Explain the legal standard of “preponderance of the evidence” as defined in the decisions. Detail why the petitioner initially failed to meet this burden and what specific evidence allowed him to successfully meet it in the rehearing.

3. Analyze the testimony and arguments presented by Brian Schoeffler on behalf of the Association across both hearings. Discuss the consistency of his defense, his reasoning based on prior OAH decisions, and his stated fear that providing more documents could be interpreted as an “admission of guilt.”

4. Trace the complete procedural timeline of case No. 19F-H1918037-REL, from the filing of the initial petition on December 17, 2018, to the final, binding order on September 12, 2019. Highlight the roles of the Arizona Department of Real Estate and the Office of Administrative Hearings (OAH).

5. Using the details of this case, write an analysis of the function and importance of A.R.S. § 33-1805 in regulating the relationship between a homeowner and a homeowners’ association. Discuss the statute’s requirements for both parties and the consequences of non-compliance.

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An independent, impartial judge who presides over administrative hearings at government agencies like the Office of Administrative Hearings. In this case, the ALJ was Jenna Clark.

A.R.S. § 33-1805

The section of the Arizona Revised Statutes that governs a homeowner’s right to access the records of a homeowners’ association. It mandates that an association must make records available for examination within ten business days of a request.

Associated Asset Management (AAM)

The management company that served as the accounting firm for the Desert Ranch Homeowners Association. Petitioner was instructed at one point to direct requests to Lori Lock-Lee at AAM.

Board of Directors (the Board)

The governing body that oversees the operations of the Desert Ranch Homeowners Association.

Covenants, Conditions, and Restrictions (CC&Rs)

The governing legal documents that set up the rules for a planned community or subdivision. The Desert Ranch HOA is governed by its CC&Rs.

Environmental Design Committee (EDC)

A committee within the Desert Ranch Homeowners Association responsible for reviewing and approving architectural and landscaping changes. Brian Schoeffler was the Chairman of the EDC.

Petitioner

The party who files a petition to initiate a legal proceeding. In this case, Tom Barrs is the Petitioner.

Preponderance of the evidence

The standard of proof in this civil administrative case. It is defined as evidence that is more convincing and has superior weight, inclining a fair mind to one side of the issue over the other.

Rehearing

A second hearing of a case, granted upon appeal, to re-examine the issues and evidence. The rehearing in this case took place on August 27, 2019, and resulted in the reversal of the initial decision.

Respondent

The party against whom a petition is filed. In this case, the Desert Ranch Homeowners Association is the Respondent.

Office of Administrative Hearings (OAH)

An independent state agency in Arizona that conducts evidentiary hearings for other state agencies, providing a neutral forum for resolving disputes like the one between Barrs and the Association.

Briefing Document: Barrs v. Desert Ranch Homeowners Association (Case No. 19F-H1918037-REL)

Executive Summary

This briefing document synthesizes two Administrative Law Judge (ALJ) decisions concerning a records request dispute between homeowner Tom Barrs (Petitioner) and the Desert Ranch Homeowners Association (Respondent). The core of the dispute was the Association’s failure to fully comply with a request for records under Arizona Revised Statutes (A.R.S.) § 33-1805.

The case is notable for its complete reversal upon rehearing. An initial ruling on April 10, 2019, favored the Association, finding that the Petitioner had failed to properly submit his request by not emailing all Board members. However, this decision was overturned in a final, binding order on September 12, 2019. In the rehearing, the Petitioner presented new evidence demonstrating he was following the Association’s own prior written instructions for submitting such requests.

The ALJ ultimately concluded that the Association did violate A.R.S. § 33-1805 by providing only a summary document instead of making the full records available for examination. Consequently, the final order granted the Petitioner’s petition, mandated the full reimbursement of his $500 filing fee, and levied an additional $500 civil penalty against the Association. The case underscores the critical importance of procedural compliance and the weight of documented instructions in governing interactions between homeowners and their associations.

——————————————————————————–

I. Case Overview

• Parties:

◦ Petitioner: Tom Barrs, a property owner and member of the Association.

◦ Respondent: Desert Ranch Homeowners Association (“the Association”).

• Venue: Arizona Office of Administrative Hearings (OAH).

• Presiding Judge: Administrative Law Judge (ALJ) Jenna Clark.

• Core Allegation: Whether the Desert Ranch Homeowners Association violated A.R.S. § 33-1805 by failing to fulfill a records request submitted by the Petitioner.

• Case Numbers:

◦ 19F-H1918037-REL (Initial Decision)

◦ 19F-H1918037-REL-RHG (Rehearing Decision)

II. Chronology of the Dispute

Jul. 19, 2017

Association President Catherine Overby appoints Environmental Design Committee (EDC) Director Brian Schoeffler as the Petitioner’s primary contact for records requests.

Jul. 18, 2018

Ms. Overby instructs the Petitioner to direct all requests to the Association’s management company, Associated Asset Management (AAM), specifically to Lori Lock-Lee.

Nov. 1, 2018

Petitioner submits the records request at issue via email to Catherine Overby, Brian Schoeffler, and Lori Loch-Lee.

Nov. 2, 2018

Ms. Loch-Lee acknowledges the request, states she will forward it to all Board members, and clarifies that AAM is only the Association’s accounting firm.

Nov. 18, 2018

Mr. Schoeffler responds on behalf of the Association, providing a summary table of EDC actions but not the full records. He also advises the Petitioner that all Board members must be copied on future requests.

Dec. 17, 2018

Petitioner files a single-issue petition against the Association with the Arizona Department of Real Estate, paying a $500 fee.

Mar. 6, 2019

Petitioner sends a follow-up email specifying the exact documents he is seeking, referencing items listed in the summary table he received.

Mar. 11, 2019

Mr. Schoeffler replies, asserting the request was already fulfilled and instructing the Petitioner to submit a new request for the additional items.

Mar. 17, 2019

Mr. Schoeffler emails again, claiming the original request was improperly submitted to only two of four Board members and that providing more documents could be seen as an “admission of guilt.”

Mar. 21, 2019

The first evidentiary hearing is held at the OAH.

Apr. 10, 2019

The initial ALJ Decision is issued, denying the Petitioner’s petition.

Jun. 10, 2019

Petitioner submits an appeal to the Department, which is granted.

Aug. 27, 2019

A rehearing is held at the OAH.

Sep. 12, 2019

The final ALJ Decision is issued, reversing the initial ruling and granting the Petitioner’s petition.

III. The Records Request and Response

Petitioner’s Request (November 1, 2018)

The Petitioner submitted a clear and direct request for specific records via email, citing the relevant statute:

“Pursuant to ARS 33-1805, I am requesting a copy of all EDC actions, written requests, and written approvals from October 2017 through October 2018. Soft copies via return email are preferable; otherwise, please let me know when hard copies are available for pickup.”

Association’s Response (November 18, 2018)

The Association did not provide the requested documents (e.g., letters, emails, applications). Instead, it provided a “summary table listing of some, not all, EDC actions.” As of the August 27, 2019, rehearing, the Petitioner had still not received the full documentation he originally requested.

Petitioner’s Clarification (March 6, 2019)

In an attempt to resolve the issue, the Petitioner sent a detailed follow-up email outlining the specific missing records by referencing the line items in the Association’s own summary table. This demonstrated that his request was not for a vague “list of actions” but for the underlying correspondence. This included requests for:

• Copies of violation notices and “Full Compliance” correspondence.

• Complaint correspondence from homeowners regarding shrubs and subsequent citations.

• Submittal correspondence for a project from Mr. Schoeffler himself, along with approvals.

• Original submittals and approvals for a garage remodel and septic install.

IV. Analysis of the Two Administrative Rulings

The opposite outcomes of the two hearings hinged entirely on the validity of the Petitioner’s original email submission.

A. Initial ALJ Decision (April 10, 2019) – In Favor of Respondent (HOA)

• Central Finding: The Petitioner failed to properly submit his records request because he sent it to only two Board members, not the entire Board.

• Reasoning: The ALJ concluded that because the request was improperly submitted, the Association was not obligated to fulfill it under A.R.S. § 33-1805. Therefore, its failure to provide the full records did not constitute a violation. The decision noted, “Because the credible evidence of record reflects that Petitioner failed to properly submit his records request to the Board, Petitioner has failed established by a preponderance of the evidence that the Association was in violation…”

• Outcome: The petition was denied. The Association was not required to reimburse the Petitioner’s filing fee, and his request for a civil penalty was denied.

B. Rehearing ALJ Decision (September 12, 2019) – In Favor of Petitioner (Barrs)

• Central Finding: The Petitioner did properly submit his records request by emailing the designated contacts.

• Key New Evidence: The Petitioner introduced two exhibits proving he had received explicit instructions from the Association President on where to direct his requests:

1. A July 19, 2017 communication appointing EDC Chairman Brian Schoeffler as his primary records request contact.

2. A July 18, 2018 communication instructing him to direct requests to the management company (AAM).

• Reasoning: The ALJ found this evidence dispositive, stating, “Petitioner’s November 01, 2018, records request was not required to be sent to all members of the Association’s Board, as Petitioner had expressly been instructed to only send his records requests to the Association’s EDC Chairman, Mr. Schoeffler, which he did.” With the submission deemed proper, the focus shifted to the response. The ALJ concluded that providing a summary table was not compliant with the statute’s requirement to make records “reasonably available for examination.”

• Outcome: The initial decision was reversed, and the Petitioner’s petition was granted.

V. Key Arguments and Testimonies

• Petitioner (Tom Barrs):

◦ Argued his dispute was with the adequacy of the Association’s response, not its timeliness.

◦ Alleged the Association acted in bad faith and willfully withheld records, citing a previous OAH adjudication over a similar request.

◦ Successfully demonstrated he had followed the Association’s own prior instructions for submitting requests.

• Respondent (via Brian Schoeffler):

◦ Maintained that the request was invalid because it was not sent to all four Board members, an argument that collapsed during the rehearing.

◦ Admitted the Association’s governing documents do not contain a requirement that all Board members be copied on records requests.

◦ Justified the incomplete response by stating that providing additional documents after the petition was filed could be “interpreted as an admission of guilt.”

◦ Reasoned that the Association acted as it did because a previous, similar dispute had been decided in its favor.

VI. Final Order and Penalties

The binding order issued on September 12, 2019, following the rehearing, mandated the following:

1. Petition Granted: The Petitioner’s petition was granted in its entirety.

2. Filing Fee Reimbursement: The Association was ordered to reimburse the Petitioner’s $500 filing fee.

3. Civil Penalty: The Association was ordered to pay a civil penalty of $500 to the Arizona Department of Real Estate for its violation of A.R.S. § 33-1805.

Case Participants

Petitioner Side

  • Tom Barrs (petitioner)
    Appeared on his own behalf in the initial hearing; appeared as a witness in the rehearing.
  • Jonathan Dessaules (petitioner attorney)
    Dessaules Law Group
    Appeared on behalf of Petitioner in the rehearing.

Respondent Side

  • Brian Schoeffler (respondent representative / EDC chairman / witness)
    Desert Ranch Homeowners Association
    Also identified as a Board Director.
  • Catherine Overby (HOA president / board member)
    Desert Ranch Homeowners Association
    Appointed Mr. Schoeffler as Petitioner’s primary records request contact.
  • Lori Loch-Lee (property manager)
    Associated Asset Management (AAM)
    Vice President of Client Services.
  • Amanda Shaw (property manager)
    AAM LLC
    Contact for Respondent.
  • B. Austin Baillio (HOA attorney)
    Maxwell & Morgan, P.C.
    Received electronic transmission of the rehearing decision.

Neutral Parties

  • Jenna Clark (ALJ)
    OAH
  • Judy Lowe (Commissioner)
    ADRE
  • Dan Gardner (ADRE staff)
    ADRE
    HOA Coordinator.

Other Participants

  • Gerard Manieri (observer)
    Listed as 'G. Mangiero' in initial hearing source.
  • Peter Ashkin (observer)
    Observed initial hearing.
  • Stephen Banks (observer)
    Observed initial hearing.
  • Noah Banks (observer)
    Observed initial hearing.
  • Stephen Barrs (observer)
    Observed rehearing.
  • Abraham Barrs (observer)
    Observed rehearing.

Jay A. Janicek vs. Sycamore Vista NO. 8 Homeowners Association

Posted on by

Case Summary

Case ID 19F-H1918001-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-03-25
Administrative Law Judge Jenna Clark
Outcome total
Filing Fees Refunded $500.00
Civil Penalties $250.00

Parties & Counsel

Petitioner Jay A. Janicek Counsel Jake Kubert
Respondent Sycamore Vista No. 8 Homeowners Association Counsel Evan Thompson

Alleged Violations

ARIZ. REV. STAT. § 33-1804(B); Association Bylaws Article III, Sections 3 & 4; Association Bylaws Article VIII, Section 1

Outcome Summary

The ALJ granted the petition, concluding that the HOA Board’s unilateral amendment of the Bylaws on November 20, 2017, was an invalid action taken without the required vote of the Association members and without statutory notice, violating ARIZ. REV. STAT. § 33-1804(B) and the Association’s governing documents. The amendment was invalidated, and the Respondent was ordered to refund the Petitioner's filing fee and pay a $250.00 civil penalty.

Key Issues & Findings

Whether Sycamore Vista No. 8 Homeowners Association (Respondent) violated Association Bylaws Article III, Sections 3 & 4 and Article VIII, Section 1 in an action taken by the board on November 20, 2017.

The Board of Directors attempted a third amendment to the Bylaws on November 20, 2017, specifically changing the requirements for the Association's financial review (audit, review, or compilation). The ALJ concluded that this action was invalid because it was taken in the absence of a quorum of Association members voting in favor of the amendment, violating both the Bylaws and statutory notice requirements.

Orders: The petition was granted. The third amendment to the Association Bylaws taken on November 20, 2017, was invalidated. Respondent was ordered to pay the Petitioner the filing fee required by ARIZ. REV. STAT. § 32-2199.01 and pay a civil penalty of $250.00 to the Planned Community Hearing Office Fund.

Filing fee: $500.00, Fee refunded: Yes, Civil penalty: $250.00

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. § 33-1804(B)
  • Association Bylaws Article III

Analytics Highlights

Topics: HOA Governance, Bylaws Amendment, Open Meeting Law, ARS 33-1804, Membership Vote, Filing Fee Refund
Additional Citations:

  • ARIZ. REV. STAT. § 33-1804(B)
  • ARIZ. REV. STAT. § 32-2199.02(A)
  • ARIZ. REV. STAT. § 32-2199.05
  • Powell v. Washburn, 125 P.3d 373 (Ariz. 2006)
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

Video Overview

Audio Overview

Decision Documents

19F-H1918001-REL Decision – 696205.pdf

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19F-H1918001-REL Decision – 661797.pdf

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19F-H1918001-REL Decision – 696205.pdf

Uploaded 2026-04-24T11:15:00 (169.8 KB)

19F-H1918001-REL Decision – 661797.pdf

Uploaded 2026-04-24T11:15:08 (143.2 KB)

19F-H1918001-REL Decision – 661797.pdf

Uploaded 2026-01-23T17:25:37 (143.2 KB)

19F-H1918001-REL Decision – 696205.pdf

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Briefing Document: Janicek v. Sycamore Vista No. 8 Homeowners Association

Executive Summary

This document provides a comprehensive analysis of the Administrative Law Judge (ALJ) Decision in the case of Jay A. Janicek v. Sycamore Vista No. 8 Homeowners Association (No. 19F-H1918001-REL-RHG). The central issue was the validity of a bylaw amendment enacted by the Association’s Board of Directors on November 20, 2017, without a vote of the general homeowner membership.

The ALJ ruled decisively in favor of the Petitioner, Jay Janicek, finding that the Board’s action was invalid. The decision hinged on a critical interpretation of the Association’s governing documents, concluding that the term “members” in the context of bylaw amendments unambiguously refers to the homeowner membership, not the Board of Directors. The ruling established that the Board does not have the authority to amend bylaws where that power is reserved for the membership.

Furthermore, the ALJ concluded that the Board’s action violated Arizona’s Open Meeting Law (A.R.S. § 33-1804) by failing to provide the required notice to homeowners for a meeting concerning a proposed bylaw amendment. As a result, the amendment was invalidated, and the Association was ordered to pay the Petitioner’s filing fee and a civil penalty of $250.

Case Background and Procedural History

Parties and Jurisdiction

• Petitioner: Jay A. Janicek, a property owner within the Sycamore Vista subdivision and a member of the Respondent Association.

• Respondent: Sycamore Vista No. 8 Homeowners Association (“the Association”), a homeowners’ association in Tucson, Arizona, governed by its Covenants, Conditions, and Restrictions (CC&Rs) and overseen by a Board of Directors.

• Adjudicating Body: The Arizona Office of Administrative Hearings (OAH), an independent state agency, which received the case on referral from the Arizona Department of Real Estate.

The Central Dispute

The core of the dispute was an action taken by the Association’s Board of Directors during a regular meeting on November 20, 2017. At this meeting, the Board, with three of five directors present, voted to approve a third amendment to the Association’s Bylaws. The amendment altered Article VIII Section 6(d), changing the requirement for an annual financial check from:

“cause an annual audit of the Association books to be made by a public accountant at the completion of each fiscal year”

“cause an annual audit, review, or compilation of the Associations financial records to be made by a public accountant within 180 days after the end of the HOA’s fiscal year.”

The Petitioner contended this action was invalid because it was undertaken without a vote of the general Association membership, as he believed the governing documents required.

Timeline of Adjudication

1. July 25, 2018: Petitioner files a petition with the Arizona Department of Real Estate.

2. September 05, 2018: An initial evidentiary hearing is held before the OAH.

3. September 25, 2018: The OAH issues an ALJ Decision in the Petitioner’s favor.

4. October 23, 2018: The Respondent submits a Request for Rehearing.

5. November 07, 2018: The Department grants the rehearing request and refers the matter back to the OAH.

6. March 05, 2019: A rehearing is conducted, based on legal briefs and closing arguments without new evidence.

7. March 25, 2019: The final ALJ Decision is issued, reaffirming the initial ruling in favor of the Petitioner.

Analysis of Governing Documents and Statutes

The case decision rested on the interpretation of specific articles within the Association’s Bylaws and relevant Arizona state statutes.

Key Bylaw Provisions

Article

Section

Description

Article IV

Section 1

States that the “affairs of this Association shall be managed by a Board of not less than three (3) nor more than five (5) directors.”

Article VI

Section 1

Establishes that regular meetings of the Board of Directors shall be held monthly without notice.

Article VI

Section 2

Governs special meetings of the Board, requiring not less than three days’ notice to each Director.

Article VI

Section 3

Defines a quorum for Board meetings as “a majority of the number of Directors.”

Article VII

Section 1

Outlines the Powers and Duties of the Board of Directors. This section does not explicitly grant the Board the power to amend the Bylaws.

Article XIII

Section 1

(The central provision in the dispute) States: “These Bylaws may be amended at a regular or special meeting of the Board of Directors of the Association by a vote of a majority of a quorum of members present in person or by proxy.”

Relevant Arizona Statutes

• A.R.S. § 33-1804 (Open Meeting Law): This statute was central to the Petitioner’s argument and the ALJ’s final decision.

◦ Subsection (A): Requires that all meetings of the members’ association and the board of directors be open to all members of the association.

◦ Subsection (B): Mandates specific notice requirements for any meeting of the members, stating that notice “shall also state the purpose for which the meeting is called, including the general nature of any proposed amendment to the declaration or bylaws.”

◦ Subsection (F): The ALJ noted that this section codifies the legislative intent of the statute, which, as cited from a Governor’s message, is to “promote transparency and participation for all residents in homeowners’ association governance.”

Arguments of the Parties

Petitioner’s Position (Jay Janicek)

The Petitioner’s case was built on a textual interpretation of the Bylaws and adherence to state law.

• Interpretation of “Members”: The Petitioner argued that the word “members” in Article XIII, Section 1 refers to the general homeowner membership of the Association, not the members of the Board of Directors.

• Textual Differentiation: The drafters of the Bylaws intentionally used the words “members” and “directors” distinctly throughout the document. Where the intent was to refer to the Board, the word “Director” was specifically used (e.g., Article VI).

• Proxy Voting: The inclusion of the term “proxy” in Article XIII supports the argument that the vote is for the general membership, as Board members are not permitted to vote by proxy.

• Lack of Explicit Power: Article VII, which details the Board’s powers, does not grant the authority to amend the Bylaws, implying such power is reserved for the membership.

• Statutory Violation: The Board’s action violated A.R.S. § 33-1804 because the required notice for a meeting concerning a bylaw amendment was not provided to the general membership.

• Legal Precedent: The Petitioner cited Powell v. Washburn, an Arizona Supreme Court case holding that restrictive covenants (which he argued include the Bylaws) should be interpreted to give effect to the intention of the parties as determined from the entire document.

Respondent’s Position (Sycamore Vista No. 8 HOA)

The Association argued that its actions were a valid exercise of the Board’s authority.

• Broad Authority: The Respondent cited Article IV, which states the “affairs of this Association shall be managed by a Board,” to assert its general authority.

• Valid Board Meeting: The amendment occurred at a regular monthly Board meeting as allowed by Article VI. The meeting had three directors present, which constituted a valid quorum for transacting business.

• Interpretation of Article XIII: The Respondent argued that the phrase “at a regular or special meeting of the Board of Directors” in Article XIII indicates that the Board is the body empowered to make the amendment, and the word “members” in that context refers to the members of the Board.

• No Open Meeting Law Violation: The Respondent contended its conduct was not a violation because the action occurred during a regular Board meeting with a proper quorum of directors.

Administrative Law Judge’s Decision and Rationale

The ALJ’s conclusions were unequivocal, fully adopting the Petitioner’s interpretation of the governing documents and state law.

Conclusions of Law

• Burden of Proof: The ALJ found that the Petitioner successfully sustained his burden of proving by a preponderance of the evidence that the Respondent violated A.R.S. § 33-1804.

• Interpretation of “Members” vs. “Directors”: The decision states that the governing documents are clear: “‘members’ refers to the body of owners who make up the membership of the Association, and ‘directors’ refers to the few who are elected to the membership’s Board.” The ALJ found the differentiation to be intentional by the drafters.

• Avoiding Absurdity: The decision holds that construing the Bylaws to allow the Board to amend them would create an absurdity. The ALJ wrote, “The voices of few cannot speak for all, unless all have bestowed those few with the power and authority to speak on their behalf.”

• Violation of Statute and Bylaws: The ALJ concluded that the Board’s action on November 20, 2017, violated both A.R.S. § 33-1804(B) due to a lack of notice and Article III of the Association Bylaws.

• Rejection of Respondent’s Argument: The decision explicitly states, “The Tribunal is not swayed by Respondent’s closing arguments.”

Final Order

Based on the findings and conclusions, the ALJ issued the following binding order:

1. Petition Granted: The Petitioner’s petition was officially granted.

2. Amendment Invalidated: The third amendment to the Association Bylaws, as enacted on November 20, 2017, was invalidated.

3. Fees and Penalties: The Respondent was ordered to pay the Petitioner’s filing fee and a civil penalty of $250.00 to the Planned Community Hearing Office Fund.

Study Guide: Janicek v. Sycamore Vista No. 8 Homeowners Association

Short-Answer Quiz

1. Who were the primary parties in the case No. 19F-H1918001-REL-RHG, and what were their respective roles?

2. What specific action taken by the Respondent on November 20, 2017, prompted the Petitioner to file a complaint?

3. According to the Petitioner, what was the crucial difference in meaning between the terms “members” and “directors” as used in the Association’s Bylaws?

4. What was the Respondent’s central argument for why the Board of Directors had the authority to amend the Bylaws at its regular meeting?

5. What is Arizona’s Open Meeting Law, and how did the Petitioner argue that the Respondent violated it?

6. What was the financial concern that the Petitioner argued could potentially impact him as a homeowner due to the Board’s amendment?

7. Describe the procedural history of this case after the initial Administrative Law Judge (ALJ) Decision on September 25, 2018.

8. What case did the Petitioner cite regarding the interpretation of restrictive covenants, and what principle did it establish?

9. What is the legal standard of proof required in this proceeding, and how is it defined in the document?

10. What was the final outcome of the case, including the specific orders issued by the Administrative Law Judge?

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Answer Key

1. The primary parties were Jay A. Janicek, the Petitioner, and the Sycamore Vista No. 8 Homeowners Association, the Respondent. The Petitioner is a property owner and member of the Association who brought the legal action, while the Respondent is the homeowners’ association governed by a Board of Directors.

2. On November 20, 2017, the Respondent’s Board of Directors held a regular meeting where they voted to approve a third amendment to the Association’s Bylaws. This amendment changed the requirement for an “annual audit…by a public accountant” to an “annual audit, review, or compilation” of financial records.

3. The Petitioner argued that the term “members” in Article XIII of the Bylaws refers to the entire body of property owners in the Association, not the Board of Directors. He contended that if the drafter had intended to give amendment power to the Board, the specific word “directors” would have been used, as it was in other sections of the Bylaws.

4. The Respondent argued that its actions were proper because the Bylaws empower the Board to manage the Association’s affairs at regular monthly meetings. They contended that since a quorum of three directors was present at the November 20, 2017 meeting, the Board was empowered to transact business, which they interpreted to include amending the bylaws as described in Article XIII.

5. Arizona’s Open Meeting Law is ARIZ. REV. STAT. § 33-1804, which requires meetings of a homeowners’ association’s board and members to be open to all members. The Petitioner argued the Respondent violated this by amending a bylaw without proper notice to the full membership, which is required for any proposed bylaw amendment, thus undermining the law’s legislative intent of transparency.

6. The Petitioner was concerned that the amendment weakened the financial oversight of the Association. It modified a requirement for a third-party audit to a less stringent “review, or compilation,” creating a risk that the Association could perform its own financial checks, and as a homeowner, he had an interest in ensuring the Association’s financials were correct.

7. After the initial decision in the Petitioner’s favor on September 25, 2018, the Respondent submitted a Request for Rehearing on October 23, 2018. The Department of Real Estate granted this request on November 7, 2018, and the matter was referred back to the Office of Administrative Hearings for a rehearing, which ultimately took place on March 5, 2019.

8. The Petitioner cited Powell v. Washburn. This case established the principle that restrictive covenants should be interpreted to give effect to the intention of the parties, as determined from the language of the entire document and the purpose for which the covenants were created.

9. The legal standard of proof was a “preponderance of the evidence.” The document defines this as “such proof as convinces the trier of fact that the contention is more probably true than not” and as evidence with the most “convincing force” that inclines an impartial mind to one side of an issue.

10. The final outcome was a ruling in favor of the Petitioner. The ALJ granted the petition, invalidated the third amendment to the Bylaws that was passed on November 20, 2017, and ordered the Respondent to pay the Petitioner’s filing fee and a civil penalty of $250.00.

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Essay Questions

1. Analyze the Administrative Law Judge’s reasoning in differentiating between the terms “members” and “directors.” How did the principle of avoiding absurdity and considering the drafter’s intent, as seen throughout the Bylaws, contribute to the final decision?

2. Discuss the interplay between the Association’s governing documents (CC&Rs and Bylaws) and state law (ARIZ. REV. STAT. § 33-1804). Explain which authority took precedence in this case and why the Board’s actions were found to violate both.

3. Evaluate the legal strategy employed by the Petitioner, Jay A. Janicek. Consider his use of specific Bylaw articles, the citation of Powell v. Washburn, and his argument regarding the legislative intent of the Open Meeting Law.

4. Examine the arguments presented by the Respondent, Sycamore Vista No. 8 Homeowners Association. Why did the Judge find their interpretation of the Bylaws unconvincing, despite their claims that the Board was empowered to transact business with a quorum present?

5. Based on the text, discuss the broader implications of this ruling for homeowners’ associations in Arizona. How does this decision reinforce the principles of transparency and the limitations of a Board’s power relative to the association’s general membership?

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An independent judge, in this case Jenna Clark, who presides over administrative hearings at the Office of Administrative Hearings (OAH).

ARIZ. REV. STAT. § 33-1804

A section of the Arizona Revised Statutes, also known as Arizona’s Open Meeting Law, which mandates that meetings of an HOA’s members and board of directors must be open to all members and requires specific notice for meetings where bylaw amendments will be considered.

Bylaws

A set of rules that govern the internal operations of the homeowners’ association. In this case, key articles discussed include Article VI (Meeting of Directors), Article VII (Powers of the Board), and Article XIII (Amendments).

Covenants, Conditions, and Restrictions. These are governing documents that form an enforceable contract between the Association and each property owner, empowering the Association to control certain aspects of property use.

Member

As defined in the Association’s documents, a person entitled to membership by virtue of being a property owner within the Sycamore Vista subdivision. The Judge concluded this term refers to the body of owners, not the Board of Directors.

Office of Administrative Hearings (OAH)

An independent state agency in Arizona, unaffiliated with the parties, responsible for conducting evidentiary hearings and making legal decisions in disputes like this one.

Petitioner

The party who files a petition initiating a legal case. In this matter, the Petitioner was Jay A. Janicek, a homeowner in the Association.

Preponderance of the evidence

The burden of proof in this case. It is defined as evidence that is more likely true than not and has the most convincing force, sufficient to incline a fair and impartial mind to one side of an issue.

The authority to represent someone else, especially in voting. The document notes that the term “proxy” applies to votes of the members, as members of the Board are not permitted to vote by proxy.

Quorum

The minimum number of members of a deliberative assembly necessary to conduct the business of that group. For the Respondent’s Board of Directors, a quorum is defined as a majority of the number of Directors.

Respondent

The party against whom a petition is filed. In this matter, the Respondent was the Sycamore Vista No. 8 Homeowners Association.

Restrictive Covenants

Legal obligations imposed in a deed to real property to do or not do something. The Petitioner argued this term included the CC&Rs, Bylaws, and rules of the Association.

Tribunal

A body established to settle certain types of dispute. In this document, it refers to the Administrative Law Judge at the Office of Administrative Hearings.

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19F-H1918001-REL-RHG

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The provided text is an Administrative Law Judge Decision from the Office of Administrative Hearings regarding a dispute between Jay A. Janicek (Petitioner) and the Sycamore Vista No. 8 Homeowners Association (Respondent). The core issue of the case, designated No. 19F-H1918001-REL-RHG, revolves around whether the Homeowners Association violated its Bylaws and Arizona state statute (§ 33-1804) when its Board of Directors unilaterally amended the Bylaws on November 20, 2017. The Administrative Law Judge determined that the Board’s action was invalid because the power to amend the Bylaws was delegated to the Association’s general membership, not the Board of Directors, and the Board failed to provide the required notice for such an amendment. Consequently, the Petitioner’s request was granted, the amendment was invalidated, and the Association was ordered to pay the Petitioner’s filing fee and a civil penalty.

1 source

What central conflict drove the administrative hearing and subsequent rehearing process?
How did governing documents and Arizona statutes shape the final legal decision?
What ultimate implications does this ruling have for homeowners association governance and member rights?

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Case Participants

Petitioner Side

  • Jay A. Janicek (petitioner)
    Appeared on his own behalf at initial hearing; Observed rehearing
  • Jake Kubert (petitioner attorney)
    Dessaules Law Group
    Appeared at rehearing

Respondent Side

  • Evan Thompson (HOA attorney)
    Thompson Krone, P.L.C.
  • Maxwell T. Riddiough (HOA attorney)
    Thompson Krone, P.L.C.
  • Andrew F. Vizcarra (property manager)
    Tucson Realty & Trust Co. Management
    Recipient of correspondence for Respondent HOA

Neutral Parties

  • Jenna Clark (ALJ)
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate

Other Participants

  • Dennis Legere (observer)
    Present at initial hearing
  • Becky Nutt (observer)
    Present at initial hearing
  • Caleb Rhodes (observer)
    Present at initial hearing

Linda Haderli vs. Carriage Manor RV Resort Association, Inc.

Posted on by

Case Summary

Case ID 17F-H1717029-REL
Agency ADRE
Tribunal OAH
Decision Date 2017-06-18
Administrative Law Judge Tammy L. Eigenheer
Outcome Petitioner was deemed the prevailing party. The HOA (Respondent) was found to have acted beyond the scope of its authority under its governing documents by removing the Petitioner as the Pickleball Club President and banning her from holding office for 24 months. The imposed discipline was quashed, and the HOA was ordered to refund the Petitioner's $500.00 filing fee.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Linda Haderli Counsel Jonathan A. Dessaules
Respondent Carriage Manor RV Resort Association, Inc. Counsel Samuel E. Arrowsmith

Alleged Violations

A.R.S. § 32-2199 et seq.

Outcome Summary

Petitioner was deemed the prevailing party. The HOA (Respondent) was found to have acted beyond the scope of its authority under its governing documents by removing the Petitioner as the Pickleball Club President and banning her from holding office for 24 months. The imposed discipline was quashed, and the HOA was ordered to refund the Petitioner's $500.00 filing fee.

Key Issues & Findings

HOA lacked authority to impose discipline (removal as club president and 24-month ban on holding office) under governing documents.

Petitioner alleged Respondent lacked authority pursuant to governing documents to remove her as President of the Pickleball Club and preclude her from serving as any officer for 24 months as purported discipline. The Tribunal concluded the Board’s decision was in excess of its authority because Respondent did not establish that removal and the prohibition on holding office were remedies available under the governing documents.

Orders: Petitioner was deemed the prevailing party; Respondent's imposed discipline was quashed; Respondent was ordered to pay Petitioner her filing fee of $500.00.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 32-2199 et seq.
  • A.A.C. R2-19-119
  • CC&R’s Section 14.2
  • CC&R’s Section 15.2B
  • CC&R’s Section 12.2

Analytics Highlights

Topics: discipline, governing documents, authority, club officer removal, homeowner vs HOA
Additional Citations:

  • A.R.S. § 32-2199 et seq.
  • A.A.C. R2-19-119
  • CC&R’s Section 14.2
  • CC&R’s Section 15.2B
  • CC&R’s Section 12.2

Video Overview

Audio Overview

Decision Documents

17F-H1717029-REL Decision – 570378.pdf

Uploaded 2026-04-24T11:04:51 (84.2 KB)

17F-H1717029-REL Decision – 575026.pdf

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17F-H1717029-REL Decision – 570378.pdf

Uploaded 2026-01-23T17:19:59 (84.2 KB)

17F-H1717029-REL Decision – 575026.pdf

Uploaded 2026-01-23T17:20:04 (700.9 KB)

Briefing Document: Haderli vs. Carriage Manor RV Resort Association

Executive Summary

This document synthesizes the key findings and legal conclusions from an administrative hearing concerning a dispute between resident Linda Haderli (Petitioner) and the Carriage Manor RV Resort Association, Inc. (Respondent). The core of the dispute was the Association’s decision to remove Ms. Haderli from her position as President of the Pickleball Club and to bar her from holding any club office for 24 months as a disciplinary measure.

The Administrative Law Judge (ALJ) ultimately ruled in favor of Ms. Haderli. The central finding was that the disciplinary action imposed by the Association was in excess of the authority granted by its own governing documents (CC&Rs). While the Association’s rules allowed for remedies such as financial assessments up to $500 or the suspension of common area use rights for violations, they did not provide for the removal of a resident from an elected club office. Consequently, the ALJ ordered that Ms. Haderli be deemed the prevailing party, the Association’s disciplinary action be quashed, and the Association reimburse Ms. Haderli’s $500 filing fee. This decision was formally adopted by the Commissioner of the Arizona Department of Real Estate, making it a final administrative order.

Case Overview

• Parties:

◦ Petitioner: Linda Haderli

◦ Respondent: Carriage Manor RV Resort Association, Inc., a homeowners association in Mesa, Arizona.

• Legal Venue: The Office of Administrative Hearings, State of Arizona.

• Case Number: 17F-H1717029-REL

• Hearing Date: May 30, 2017

• Core Issue: On March 28, 2017, Ms. Haderli filed a petition with the Arizona Department of Real Estate. She alleged that the Association lacked the authority under its governing documents to remove her as President of the Pickleball Club and to prohibit her from serving in any club officer position for two years as a form of discipline.

The Association’s Disciplinary Action and Justification

The Association took disciplinary action against Ms. Haderli and provided three specific reasons for its decision in a formal letter:

1. Challenging Board Policies: The letter accused Ms. Haderli of harassing Association employees and circumventing established systems designed to implement Association policies.

2. Improper Officer Representation: The Association stated that Ms. Haderli had permitted Ms. Joyce Wooton to represent herself as an “Advisor” to the Pickleball Club, a position not recognized as an official Officer position in the Pickleball By-Laws.

3. Unauthorized Representation to External Entities: The Association claimed Ms. Haderli had represented herself to the City of Mesa and SRP (Salt River Project) as having the authority to make decisions on behalf of the Association, which had not been granted by the Board of Directors.

Analysis of Allegations and Testimony

During the May 30, 2017 hearing, testimony was presented by both parties regarding the three justifications for the disciplinary action.

Allegation 1: Harassment of an Association Employee

• Respondent’s Testimony (Mary Candelaria, General Manager): Ms. Candelaria testified that on January 4, 2017, Ms. Haderli had a “contentious interaction” with an employee, Barb Putnam. According to some observers, Ms. Haderli was yelling. The following day, Ms. Putnam was hospitalized with a hemorrhage in her eye. Ms. Candelaria “theorized” that the stress from the encounter caused the medical issue. She collected written statements from observers but did not speak with Ms. Haderli about the incident, citing confidentiality concerns.

• Petitioner’s Testimony (Linda Haderli): Ms. Haderli denied yelling at Ms. Putnam, explaining that her hearing loss sometimes causes her to speak louder than intended, which can be misinterpreted as yelling. She stated she was attempting to reserve dates for Pickleball Club fundraising events and that Ms. Putnam was uncooperative. Ms. Haderli testified she was unaware of the harassment accusation until reviewing exhibits for the hearing with her attorney.

Allegation 2: Improper Officer Representation (Joyce Wooton)

• Petitioner’s Testimony (Linda Haderli): Ms. Haderli testified that Ms. Wooton was already serving as an advisor to the Pickleball Club when Ms. Haderli was elected Vice President, a full year before she became President on March 1, 2016.

Allegation 3: Unauthorized Representation to External Entities

• Respondent’s Testimony (Mary Candelaria, General Manager): Ms. Candelaria stated that while the Pickleball Club was exploring a project to build a small structure, Ms. Haderli contacted the City of Mesa and SRP directly, representing herself as acting on behalf of the Association. This continued even after Ms. Haderli was advised to work through the project’s architect for technical questions.

• Petitioner’s Testimony (Linda Haderli): Ms. Haderli denied representing herself as having authority to act for the Association. She testified that her intent was merely to gather background information to be better informed about the project. She initially did not want to provide her name or address to the entities for fear of appearing to act in an official capacity, only providing the address when required because regulations differ by city area.

Governing Documents and Permitted Remedies

The Administrative Law Judge’s decision hinged on the specific remedies available to the Association as outlined in its governing documents, the CC&Rs. The Association clarified that the discipline was imposed on Ms. Haderli in her capacity as a resident who violated community rules, not as a disciplinary action against the Pickleball Club itself.

The following sections of the CC&Rs were cited as relevant:

CC&R Section

Description

Authorized Remedy

Section 14.2

Employee Abuse: Prohibits physical or verbal harassment of employees by residents.

Enforcement as an “Other Violation” under Section 15.2B.

Section 15.2B

Other Violations: Stipulates that such violations are subject to a financial penalty.

An assessment set by the Board of Directors, not to exceed $500.00.

Section 12.2

Suspension of Rights: Grants the Association the right to suspend an Owner’s rights for infractions.

Suspension of an Owner’s voting rights and Common Areas use rights.

Legal Conclusions and Final Ruling

The Administrative Law Judge reached several key conclusions of law that led to the final order.

• Burden of Proof: The petitioner, Linda Haderli, bore the burden of proving by a preponderance of the evidence that the Association acted without the authority granted by its governing documents.

• Excess of Authority: The Respondent (the Association) “did not establish that removal as the Pickleball Club President and/or a prohibition of holding any other officer position for a period of 24 months is a remedy available under the governing documents.”

• Final Conclusion: The Tribunal concluded that the Board of Directors’ decision to impose this specific discipline was in excess of its authority.

Recommended and Final Order

Based on these conclusions, Administrative Law Judge Tammy L. Eigenheer issued a recommended order on June 18, 2017:

1. Petitioner Deemed Prevailing Party: Linda Haderli was declared the prevailing party in the matter.

2. Discipline Quashed: The disciplinary action imposed by the Association against Ms. Haderli was ordered to be quashed.

3. Filing Fee Reimbursement: The Association was ordered to pay Ms. Haderli her $500.00 filing fee within thirty days.

On June 21, 2017, Judy Lowe, the Commissioner of the Arizona Department of Real Estate, issued a Final Order adopting the Administrative Law Judge’s decision in its entirety. This order became a final administrative action, effective immediately.

Study Guide: Haderli v. Carriage Manor RV Resort Association, Inc.

Quiz: Short-Answer Questions

Instructions: Answer the following questions in 2-3 complete sentences based on the provided case documents.

1. Who are the primary parties in this legal dispute, and what are their respective roles?

2. What was the central violation alleged by the Petitioner, Linda Haderli, in her petition?

3. What specific disciplinary action did the Carriage Manor RV Resort Association, Inc. impose on Linda Haderli?

4. List the three reasons the Association provided to justify its disciplinary action against the Petitioner.

5. How did Linda Haderli explain her interaction with the Association employee, Barb Putnam, which the Association characterized as harassment?

6. What was the Petitioner’s explanation for contacting the City of Mesa and SRP regarding the Pickleball Club’s building project?

7. According to the Association’s governing documents (CC&R’s), what specific remedies are available for non-monetary infractions and “Other Violations”?

8. What is the legal standard of proof that the Petitioner was required to meet in this case, and how is it defined in the document?

9. What was the final conclusion of the Administrative Law Judge regarding the Association’s authority to impose its chosen discipline?

10. What were the three components of the Recommended Order issued by the Administrative Law Judge, which was later adopted as the Final Order?

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Answer Key

1. The primary parties are Linda Haderli, the Petitioner, and Carriage Manor RV Resort Association, Inc., the Respondent. The Petitioner is the individual homeowner who filed the dispute, while the Respondent is the homeowners association (HOA) that took disciplinary action against her.

2. The Petitioner alleged that the Respondent did not have the authority under its own governing documents to take the disciplinary action it imposed. Specifically, she challenged her removal as President of the Pickleball Club and the subsequent ban from holding any officer position.

3. The Association removed Linda Haderli from her position as President of the Pickleball Club. Additionally, it precluded her from serving as any officer of the Pickleball Club for a period of 24 months.

4. The Association cited three reasons: (1) harassing Association employees and circumventing policies; (2) improperly permitting Ms. Joyce Wooton to represent herself as an “Advisor,” a non-existent officer position; and (3) representing herself to the City of Mesa and SRP as having authority to make decisions on behalf of the Association.

5. Ms. Haderli denied yelling at Ms. Putnam, attributing her loud voice to hearing loss which can be misinterpreted. She stated she was simply trying to reserve dates for Pickleball Club fundraising events and that the employee was not being cooperative in providing information.

6. The Petitioner testified that she approached the City of Mesa and SRP merely to gather background information to be more informed about the building project. She denied ever representing herself as having authority to act for the Association and was initially hesitant to even provide her name for fear of creating that impression.

7. For “Other Violations,” Section 15.2B of the CC&R’s allows for a monetary assessment up to $500.00. For non-monetary infractions, Section 12.2 allows the Association to suspend an Owner’s voting rights and Common Areas use rights until the infraction is cured.

8. The Petitioner was required to prove her case by a preponderance of the evidence. The document defines this as “Evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.”

9. The Administrative Law Judge concluded that the Board’s decision to remove the Petitioner as Pickleball Club President and ban her from holding office for 24 months was in excess of its authority. The judge found that this specific penalty was not a remedy available to the Association under its governing documents.

10. The Order dictated that (1) the Petitioner be deemed the prevailing party in the matter, (2) the Respondent’s imposed discipline against the Petitioner be quashed (nullified), and (3) the Respondent pay the Petitioner her filing fee of $500.00 within thirty days.

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Essay Questions

Instructions: Consider the following prompts for longer, essay-style responses. Use evidence and specific details from the case documents to construct your arguments.

1. Analyze the discrepancy between the disciplinary penalties available to the Association under its CC&R’s (Sections 12.2 and 15.2B) and the penalty it actually imposed on Linda Haderli. Explain why this discrepancy was the pivotal factor in the Administrative Law Judge’s final decision.

2. Discuss the three allegations made by the Association against Linda Haderli. For each allegation, present the evidence and testimony offered by the Association (via Mary Candelaria) and the counter-evidence or explanation provided by the Petitioner.

3. Trace the procedural timeline of this case, starting from the filing of the Homeowners Association (HOA) Dispute Process Petition. Describe each key step, including the date of filing, the Notice of Hearing, the hearing itself, the Administrative Law Judge Decision, and the final adoption of that decision by the Commissioner of the Department of Real Estate.

4. The Respondent stated that the discipline was against Linda Haderli in her capacity as a resident, not as a representative of the Pickleball Club. Evaluate this argument in the context of the specific penalties imposed. Did the nature of the discipline align with the Association’s claim?

5. Explain the legal concept of “burden of proof” as it applies to this case. How did the Petitioner, Linda Haderli, successfully meet the burden of proving by a “preponderance of the evidence” that the Association acted outside its authority?

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

The judicial officer, Tammy L. Eigenheer, who presided over the administrative hearing, evaluated evidence, and issued a decision and recommended order.

Answer

The formal response filed by the Respondent (Carriage Manor RV Resort Association, Inc.) denying the violation alleged in the Petitioner’s petition.

CC&R’s

An abbreviation for Covenants, Conditions, and Restrictions. These are part of the Association’s governing documents that outline the rules for residents and the remedies available to the Association for violations.

Commissioner

The Commissioner of the Arizona Department of Real Estate, Judy Lowe, who has the authority to adopt the ALJ’s decision, making it a Final Order.

Department

The Arizona Department of Real Estate, the state agency with jurisdiction to hear disputes between homeowners and homeowners associations.

Final Order

The official, binding order issued by the Commissioner of the Department of Real Estate that adopts the ALJ’s decision. This order becomes effective immediately and is appealable through judicial review.

Governing Documents

The collection of rules, bylaws, and CC&R’s that legally govern the operation of the Homeowners Association and the conduct of its members.

Homeowners Association (HOA) Dispute Process Petition

The formal document filed by the Petitioner (Linda Haderli) with the Arizona Department of Real Estate on or about March 28, 2017, to initiate the legal dispute against the Association.

Petitioner

The party who filed the petition initiating the legal action. In this case, homeowner Linda Haderli.

Preponderance of the Evidence

The standard of proof required for the Petitioner to win the case. It is defined as “Evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.”

Prevailing Party

The party that wins the legal dispute. The Administrative Law Judge’s order deemed the Petitioner, Linda Haderli, to be the prevailing party.

Quashed

A legal term meaning to nullify, void, or set aside. The Judge’s order quashed the disciplinary action that the Respondent had imposed on the Petitioner.

Respondent

The party against whom the petition is filed and who is responding to the allegations. In this case, Carriage Manor RV Resort Association, Inc.

She Fought Her HOA Over Pickleball—And Won on a Technicality. Here Are 4 Surprising Lessons.

Introduction: The David vs. Goliath of Neighborhood Disputes

For many homeowners, a dispute with their Homeowners Association (HOA) can feel like an unwinnable battle. The board holds what seems like absolute power, leaving residents feeling powerless. However, a recent administrative hearing in Arizona offers a powerful counter-narrative and a series of crucial lessons for anyone living in a planned community. The case involved Linda Haderli, the President of a community Pickleball Club, and her HOA, the Carriage Manor RV Resort Association, Inc. What started as a disagreement over her conduct escalated into a formal disciplinary action that was ultimately overturned. The story of her victory reveals surprising truths about the limits of an HOA’s authority.

Takeaway 1: Your HOA’s Power Isn’t Unlimited—It’s Written in Black and White

An HOA Board Can’t Invent Punishments.

The core of the dispute was the punishment the HOA Board imposed on Linda Haderli. In response to alleged rule violations, the Board removed her from her elected position as President of the Pickleball Club and banned her from holding any club office for 24 months.

However, a close look at the Association’s own governing documents—the CC&Rs—revealed a critical flaw in the Board’s action. The documents specified exactly which remedies were available for violations. These included a monetary assessment not to exceed $500, or the suspension of an owner’s voting rights and their right to use common areas.

The punishment the Board chose—removal from an elected position and a ban from future office—was simply not on that list. The Administrative Law Judge’s decision was unequivocal on this point:

Therefore, this Tribunal concludes that the Board’s decision to remove Petitioner as the Pickleball Club President and to preclude her from holding any other officer position for a period of 24 months was in excess of its authority under the Association’s governing documents.

Ultimately, the HOA was bound by the rules it had created. Its failure to adhere to its own documents was the key to its defeat.

Takeaway 2: It Might Not Matter Who Was “Right”

The Case Can Hinge on Procedure, Not on the Facts of the Dispute.

The HOA levied three main accusations against Haderli: harassing an Association employee during a contentious interaction, improperly allowing an “Advisor” to participate in the club, and misrepresenting herself to the City of Mesa while researching a project. For her part, Haderli explained that her hearing loss can cause her to speak loudly, that the advisor had served in that capacity previously, and that she was only gathering information from the city and never claimed to have authority.

Here is the counter-intuitive twist: the judge never ruled on whether Haderli was actually guilty of any of these actions. The final decision did not weigh the evidence to determine who was “right” or “wrong” about the incidents. The entire case was decided on the grounds that the punishment itself was invalid because it was not authorized by the HOA’s governing documents, regardless of the alleged offenses that prompted it.

This procedural victory underscores the first lesson: it didn’t matter if the Board’s accusations were 100% true, because they attempted to enforce their judgment with a punishment they had no authority to invent. This is a crucial lesson. In an HOA dispute, winning isn’t always about proving your innocence regarding an incident. It can be about proving the board failed to follow its own established rules and procedures for discipline.

Takeaway 3: You May Have to Prove the HOA is Wrong

The Burden of Proof Can Fall on the Homeowner.

Many might assume that an HOA, as the governing body imposing discipline, would be required to prove it had the authority to do so. In this case, however, the legal burden was reversed. The administrative ruling states that the homeowner, referred to as the “Petitioner,” had the “burden of proving by a preponderance of the evidence” that the HOA acted without authority. This is not unusual; in an administrative hearing, the person who files the petition is the one bringing the complaint, and it is standard procedure for them to carry the burden of proving their claim.

The court defined “preponderance of the evidence” as:

[E]vidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.

This is a significant hurdle. It meant that Haderli couldn’t just question the Board’s power; she had to affirmatively prove, with more convincing evidence, that they didn’t have the authority they claimed. Despite this challenge, she successfully met that burden.

Takeaway 4: Victory Can Be Found in the Fine Print

Knowing Your Governing Documents is Your Greatest Weapon.

This case was not won through complex legal maneuvering or emotional arguments about who was to blame. Victory was found in a straightforward reading of the HOA’s own Covenants, Conditions, and Restrictions (CC&Rs).

The judge’s decision specifically cited Sections 14.2, 15.2B, and 12.2 of the CC&Rs as the foundation for what constituted authorized punishments—namely, fines and the suspension of privileges. By pointing out that the Board’s chosen discipline was absent from these sections, Haderli demonstrated that the Board had overstepped.

This reinforces the central lesson for every homeowner. The most powerful tool you have in a dispute with your association is a copy of your own governing documents. The answer to whether a board is overstepping its authority is often written right there in the text. Homeowners should treat their CC&Rs not as a dusty rulebook, but as a binding contract that holds their Board accountable.

Conclusion: Knowledge is Power

In the end, Linda Haderli was officially deemed the “prevailing party.” The judge ordered that the HOA’s imposed discipline be “quashed” and that her $500 filing fee be returned. This victory was possible for one primary reason: the HOA board exceeded the specific authority granted to it by its own rules. The case serves as a powerful reminder that an HOA’s power is not absolute; it is defined and limited by its documents.

The Board’s power ended where their documents said it did. Do you know where that line is drawn in your community?

Case Participants

Petitioner Side

  • Linda Haderli (petitioner)
  • Jonathan A. Dessaules (attorney)
  • Ashley C. Hill (attorney)

Respondent Side

  • Samuel E. Arrowsmith (attorney)
  • Ryan J. McCarthy (attorney)
  • Mary Candelaria (general manager)
    Respondent's General Manager; testified
  • Barb Putnam (employee)
    Association employee allegedly harassed by Petitioner

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
  • Judy Lowe (Commissioner)
    Commissioner of the Arizona Department of Real Estate
  • Abby Hansen (HOA Coordinator)

Other Participants

  • Joyce Wooton (involved individual)
    Individual associated with the Pickleball Club, subject of allegation

Ferne Skidmore vs. Velda Rose Estates Homeowner Association

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Case Summary

Case ID 15F-H1515006-BFS
Agency Department of Fire, Building and Life Safety
Tribunal OAH
Decision Date 2015-09-14
Administrative Law Judge M. Douglas
Outcome The ALJ ruled in favor of the Petitioner, finding that the HOA's restriction of the 'Stocking Project' from the clubhouse violated the non-discrimination provisions of the CC&Rs (Article IV, Section 3). The ALJ determined the project was charitable, not religious, and that the HOA had historically allowed non-members and other activities.
Filing Fees Refunded $550.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Ferne Skidmore Counsel Jonathan A. Dessaules
Respondent Velda Rose Estates Homeowners Association Counsel Clint G. Goodman

Alleged Violations

Article IV, Section 3

Outcome Summary

The ALJ ruled in favor of the Petitioner, finding that the HOA's restriction of the 'Stocking Project' from the clubhouse violated the non-discrimination provisions of the CC&Rs (Article IV, Section 3). The ALJ determined the project was charitable, not religious, and that the HOA had historically allowed non-members and other activities.

Key Issues & Findings

Discrimination in Common Area Use

Petitioner alleged the HOA violated the CC&Rs non-discrimination clause by prohibiting the 'Christmas Stocking Project' from using the clubhouse. The HOA argued the project had a religious affiliation and non-members participated. The ALJ found the project was a charitable organization for homeless children without religious affiliation and that the HOA's exclusion was discriminatory.

Orders: Respondent ordered to fully comply with CC&Rs; Respondent ordered to pay Petitioner $550.00 filing fee.

Filing fee: $550.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • Article IV, Section 3
  • Article VII, paragraph 2

Video Overview

Audio Overview

Decision Documents

15F-H1515006-BFS Decision – 457186.pdf

Uploaded 2026-04-24T10:52:56 (107.1 KB)

15F-H1515006-BFS Decision – 463653.pdf

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15F-H1515006-BFS Decision – 457186.pdf

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15F-H1515006-BFS Decision – 463653.pdf

Uploaded 2026-01-27T21:11:36 (63.1 KB)

Administrative Law Judge Decision Briefing: Skidmore v. Velda Rose Estates Homeowners Association

Executive Summary

This briefing document analyzes the administrative hearing and subsequent final decision regarding a dispute between Ferne Skidmore (Petitioner) and the Velda Rose Estates Homeowners Association (Respondent/VRE). The case, No. 15F-H1515006-BFS, centered on the Petitioner's allegation that the Association’s Board of Directors (BOD) engaged in discrimination by banning a charitable group, the "Stocking Project," from using the community clubhouse.

The Board justified the ban by citing the group's alleged "religious affiliation" and concerns regarding the handling of monetary donations. However, the Administrative Law Judge (ALJ) found that the Stocking Project was a secular charitable organization and that the Board’s actions were inconsistent with its own practices and governing documents. The ALJ ruled in favor of the Petitioner, concluding that the Association violated the nondiscrimination clauses of its Covenants, Conditions, and Restrictions (CC&Rs). The decision was certified as final on October 28, 2015.

Detailed Analysis of Key Themes

1. Definition of Religious vs. Charitable Activity

A central conflict in the case was the Board’s characterization of the "Stocking Project"—a group of women who create and fill Christmas stockings for needy children—as a religious entity.

  • The Petitioner’s Perspective: Ms. Skidmore and several Board members testified that the project was strictly charitable, non-secular, and intended solely to provide for homeless children.
  • The Board’s Perspective: Former and current Board presidents argued the project’s association with Christmas and its "religious affiliation" posed a liability risk and violated clubhouse rules against religious activities.
  • Legal Standard: The ALJ applied the definition from Rosenberger v. Rector & Visitors of the Univ. of Va., which defines religious activity as that which "primarily promotes or manifests a particular belief in or about a deity or an ultimate reality." The ALJ concluded the Stocking Project did not meet this threshold.
2. Inconsistency in Policy Enforcement

The evidence highlighted significant inconsistencies in how Velda Rose Estates applied its rules regarding religious and social activities:

  • Religious Presence: Despite banning the Stocking Project for "religious affiliation," the Board regularly began sessions with prayer, and the clubhouse was historically decorated with a Christmas tree and lights.
  • Non-Member Participation: The Board cited the participation of non-members in the Stocking Project as a reason for exclusion. However, testimony revealed that other clubhouse activities, such as card games (with money prizes) and shuffleboard, allowed non-members to participate without restriction.
3. Financial Oversight and Non-Profit Status

The Association raised concerns regarding the Stocking Project's handling of funds.

  • HOA Concerns: Board members testified that any money collected by groups using the clubhouse should go through the Association’s treasurer to protect VRE’s IRS non-profit status.
  • Factual Finding: While Ms. Skidmore admitted to receiving approximately $250 in donations between 2012 and 2014, the ALJ found that the primary purpose of the project remained charitable and the exclusion based on these financial concerns was part of a larger discriminatory action.
4. Violation of Governing Documents

The ALJ focused on Article IV, Section 3 of the Velda Rose CC&Rs, which empowers the Board to adopt rules for the common areas but explicitly states: "The Rules and Regulations may not discriminate among Owners and shall not be inconsistent with this Declaration, the Articles, or Bylaws." The ALJ determined that targeting the Petitioner's group for exclusion constituted a discriminatory application of these rules.

Important Quotes with Context

Quote Context
"The VRE BOD ruled 'to follow our CCR’s and Bylaws to restrict use of the clubhouse due to religious affiliation.' This violates VRE’s bylaws and CCR’s nondiscrimination clauses." Source: Petitioner’s Original Filing. This outlines the core grievance regarding the Board's decision on February 8, 2015.
"The sole purpose of the Stocking Project is 'to give children who have nothing at least one thing for Christmas.'" Source: Testimony of Ferne Skidmore. Ms. Skidmore emphasizes the charitable nature of the group to counter claims of religious proselytizing.
"The Board had prohibited the Christmas Stocking Project from utilizing the clubhouse… due to the Christmas Stocking Project’s 'religious affiliation.'" Source: Testimony of Darrell Walklin (Former Board President). This confirms the Board's specific intent and reasoning for the ban.
"The preponderance of the evidence established that the Board’s actions in excluding the Petitioner and the Stocking Project… was discriminatory in violation of Article IV, Section 3 of the CC&Rs." Source: ALJ Conclusions of Law. The final legal determination that the Association overstepped its authority and violated its governing documents.

Final Order and Outcomes

The Administrative Law Judge issued the following mandates in the Recommended Order, which was later certified as final:

Requirement Description
Prevailing Party Ferne Skidmore was officially deemed the prevailing party.
Future Compliance Velda Rose Estates must fully comply with all applicable provisions of its CC&Rs in the future.
Financial Restitution The Association was ordered to pay the Petitioner $550.00 to reimburse her filing fee within 30 days of the Order.
Civil Penalties The ALJ determined that no civil penalty was appropriate in this specific matter.

Actionable Insights for Homeowners Associations

  • Uniform Policy Application: Boards must ensure that rules regarding the use of common areas are applied consistently across all groups. If non-members are allowed in certain social activities (like shuffleboard), they cannot be used as a basis to exclude other groups.
  • Evidence-Based Definitions: Before banning an activity on religious grounds, associations should look to established legal definitions (e.g., whether the activity primarily promotes a belief in a deity) rather than personal interpretations of holiday-related events.
  • Documentation of Board Actions: The ALJ noted that the 2010 minutes did not show official action against the Stocking Project, despite Board claims. All restrictions on member rights should be clearly documented in meeting minutes.
  • Conflict Between Secular and Religious Activities: Maintaining religious symbols (Christmas trees) or practices (prayers) while simultaneously banning member groups for "religious affiliation" creates a high risk of successful discrimination claims.

Case Study Guide: Skidmore vs. Velda Rose Estates Homeowners Association

This study guide provides a comprehensive analysis of the administrative law case Ferne Skidmore vs. Velda Rose Estates Homeowners Association (No. 15F-H1515006-BFS). It covers the factual background, legal principles, and the final decision rendered by the Office of Administrative Hearings.

Case Overview

The case involves a dispute between a homeowner, Ferne Skidmore (Petitioner), and the Velda Rose Estates Homeowners Association (Respondent). The Petitioner alleged that the Association’s Board of Directors (BOD) violated the community’s Covenants, Conditions and Restrictions (CC&Rs) by discriminating against a charitable group, the "Stocking Project," by banning its use of the community clubhouse based on alleged religious affiliation.

Core Themes
  • Non-Discrimination: The application of HOA bylaws regarding the fair use of common areas.
  • Religious vs. Charitable Activity: The legal distinction between secular charitable work and religious promotion.
  • Board Authority: The limits of a Board’s power to adopt or enforce rules that contradict existing declarations or bylaws.
  • Administrative Procedure: The process by which Arizona homeowners can seek redress through the Department of Fire, Building and Life Safety.

Summary of Findings and Evidence

The Stocking Project

The "Stocking Project" (also referred to as the "Christmas Stocking Project") is a group that creates and fills holiday stockings with donated items—such as toothbrushes, toothpaste, and toys—for homeless and needy children. Testimony established that:

  • The project had operated out of the Velda Rose clubhouse for approximately six years.
  • The clubhouse served as a pick-up and drop-off point for materials and finished stockings.
  • While the group operated during the Christmas season, testimony from multiple witnesses (including Board members) stated the project had no religious affiliation and religion was never mentioned during its activities.
The Association's Position

The Board prohibited the group from using the clubhouse in 2015, citing several reasons:

  1. Religious Affiliation: The Board claimed the activity was religious and thus prohibited in the clubhouse.
  2. Financial Concerns: The Board alleged that monetary donations received by the project should have been processed through the Association's treasurer to protect its IRS non-profit status.
  3. Participation: The Board noted that many participants were non-members of the Association.
Contradictory Evidence

Evidence presented during the hearing undermined the Association's claims:

  • Inconsistency in Rules: The Board itself began sessions with prayer and decorated the clubhouse with Christmas trees, yet claimed the Stocking Project was "too religious."
  • Prior Usage: The clubhouse was regularly used for secular activities involving non-members, such as shuffleboard and card games where money prizes were awarded, without Board interference.
  • Lack of Documentation: Board members claimed the project had been banned as early as 2010, but official meeting minutes contained no record of such an action.

Legal Principles and Conclusions of Law

Standards of Proof
  • Burden of Proof: The party asserting the claim (Petitioner) bears the burden of proof.
  • Preponderance of the Evidence: The standard used is "more likely true than not." The Petitioner successfully met this burden.
Applicable Statutes and Bylaws
  • A.R.S. § 41-2198.01: Authorizes the Department of Fire, Building and Life Safety to hear petitions regarding violations of planned community documents.
  • Article IV, Section 3 (CC&Rs): Grants the Board power to adopt rules for common areas, provided those rules do not discriminate among owners and are not inconsistent with the Declaration or Bylaws.
  • Legal Definition of Religious Activity: Based on Rosenberger v. Rector & Visitors of the Univ. of Va., religious activity is defined as that which "primarily promotes or manifests a particular belief in or about a deity or an ultimate reality."
Final Decision

The Administrative Law Judge (ALJ) concluded that the Stocking Project was a secular charitable organization, not a religious one. Consequently, the Board’s decision to exclude the Petitioner and the group from the clubhouse was deemed discriminatory in violation of the Association’s CC&Rs.

Short-Answer Practice Questions

  1. Who is the Petitioner and who is the Respondent in this case?
  2. What specific group was at the center of the dispute, and what was its primary purpose?
  3. Which section of the Velda Rose CC&Rs did the Petitioner claim the Association violated?
  4. How does the case define "Preponderance of the Evidence"?
  5. What were the three main reasons provided by the Board for banning the Stocking Project?
  6. Why did the ALJ find the Board’s claim regarding "religious affiliation" to be inconsistent with the Board’s own practices?
  7. According to the CC&Rs, what is the limitation on the Board's power to adopt, amend, or repeal Rules and Regulations?
  8. What was the total amount of the filing fee the Respondent was ordered to pay the Petitioner?
  9. Which legal case was cited to define "Religious Activity"?
  10. What happens to an ALJ decision if the Department of Fire, Building and Life Safety takes no action within the statutory timeframe?

Essay Prompts for Deeper Exploration

  1. The Threshold of Discrimination: Analyze how the ALJ determined that the Association’s actions were discriminatory. In your response, contrast the Board's treatment of the Stocking Project with its treatment of other clubhouse activities like card games and shuffleboard.
  2. Charity vs. Religion in Private Communities: Discuss the legal challenges of distinguishing between secular charitable acts and religious activities within the context of a private homeowners association. Use the definition from Rosenberger v. Rector to support your argument.
  3. Board Governance and Transparency: Examine the importance of official documentation (such as meeting minutes) in administrative hearings. How did the lack of recorded Board action from 2010 affect the credibility of the Respondent's testimony?
  4. The Role of Administrative Oversight: Evaluate the process of seeking redress through the Department of Fire, Building and Life Safety versus traditional court systems. What are the benefits of this administrative path for homeowners as evidenced by this case?

Glossary of Important Terms

Term Definition
A.R.S. § 41-2198.01 The Arizona Revised Statute that allows homeowners or associations to file petitions regarding violations of community documents.
Administrative Law Judge (ALJ) A judge who over-sees hearings and makes recommended orders for government agencies.
Bylaws The rules adopted by an organization for its internal administration and management.
CC&Rs Covenants, Conditions, and Restrictions; the governing documents that dictate the rules for a planned community.
Certification of Decision The process by which an ALJ decision becomes the final administrative action, often due to the passing of a statutory deadline for agency review.
Common Area Areas within a development (like a clubhouse) that are owned and used by all members of the association.
Non-Secular Relating to religious or spiritual matters (used in the petition to describe the group the Petitioner argued was being discriminated against).
Preponderance of the Evidence A legal standard of proof meaning that a claim is more likely to be true than not true.
Prevailing Party The party in a lawsuit or administrative hearing that wins the case.
Religious Activity Activity that primarily promotes or manifests a belief in a deity or ultimate reality.
Secular Denoting attitudes, activities, or other things that have no religious or spiritual basis.

The Case of the Christmas Stocking Project: A Victory for Homeowner Rights

1. Introduction: A Conflict Between Charity and Compliance

At Velda Rose Estates in Mesa, Arizona, a long-standing tradition of neighborly charity recently became the center of a landmark legal battle over homeowner rights and the limits of board authority. For years, a dedicated group of residents gathered to create and fill Christmas stockings for children in need. However, in early 2015, the Velda Rose Estates Homeowners Association (HOA) Board of Directors abruptly banned the group from the community clubhouse.

The Board's justification—a purported "religious affiliation"—led to a striking narrative irony: a secular group of "old ladies" was barred from their own community space on religious grounds, eventually forcing them to seek refuge in a local church hall to continue their work. This conflict led resident Ferne Skidmore to file a formal petition, sparking a legal inquiry into whether an HOA can selectively use "compliance" as a tool for discrimination.

2. The Heart of the Project: What was the "Stocking Project"?

According to the credible testimony of Ferne Skidmore and fellow resident Brodie Poole, the "Stocking Project"—frequently referred to as the "Christmas Stocking Project"—was a strictly volunteer, secular effort focused on local philanthropy.

  • Charitable Mission: The group created and filled stockings for homeless children with essential hygiene items and small gifts, including toothbrushes, toothpaste, and toys.
  • A Staple of the Community: The project had operated within the Velda Rose clubhouse for six years before the Board intervened.
  • A Secular Purpose: Despite the "Christmas" moniker, the Administrative Law Judge (ALJ) found the group’s witnesses to be highly credible in their assertion that the project was non-religious. As Ms. Skidmore testified, the sole purpose was "to give children who have nothing at least one thing for Christmas."

In a poignant turn of events highlighted during the hearing, witness Gwendolyn Krogstad—whom the Judge also found credible—testified that the Board’s ban forced this secular charitable group to relocate its operations to a hall owned by a local church.

3. The Board’s Defense: Justifying the Ban

The Velda Rose Estates Board, represented primarily through the testimony of former president Darrell Walklin and then-current president Roger A. Walklin, defended the exclusion by citing three primary concerns:

  1. Religious Affiliation
  • The Board claimed the project’s name and association with Christmas constituted a prohibited religious activity.
  • President Roger A. Walklin argued that the ban was necessary to avoid potential liability stemming from groups related to religious organizations.
  1. Financial Management
  • Darrell Walklin alleged that the project collected money that should have been processed through the HOA Treasurer to protect the association’s non-profit status.
  • While Mr. Walklin claimed he heard the group received up to $500, the Judge favored Ms. Skidmore’s credible testimony that the group received only $250 in donations over three years, all of which went toward supplies.
  1. Non-Member Participation
  • The Board alleged the group consisted primarily of non-residents, which they argued violated clubhouse usage policies.

Notably, Roger A. Walklin claimed the group had been banned since 2010, yet he was forced to acknowledge that the 2010 Board minutes contained no record of such an action.

4. Challenging the Narrative: Inconsistency and "Religious Activity"

The legal challenge hinged on the Board’s inconsistent application of its own rules. While the Board targeted the Stocking Project for "religious" and "non-member" issues, their own practices suggested a double standard.

Consistency Check

HOA Claim/Restriction Observed Reality/Board Practice
Religious activities are prohibited in the clubhouse. The Board begins its own sessions with a formal prayer.
The Stocking Project is a prohibited religious activity. The Board decorates the clubhouse with Christmas trees and lights annually.
Use is restricted due to non-member participation. The Board allows shuffleboard and card games where non-members participate without restriction.
Use is restricted because money (donations) is involved. The Board permits card games in which money prizes are awarded to players.

To adjudicate the "religious" claim, the ALJ applied the standard from Rosenberger v. Rector & Visitors of the Univ. of Va., which defines religious activity as an effort that "primarily promotes or manifests a particular belief in or about a deity or an ultimate reality." The ALJ found that the Stocking Project’s gift-giving did not meet this threshold; it was a secular charity, not a religious ministry.

5. The Legal Verdict: Why the HOA Lost

The ALJ’s Conclusions of Law provided a stern reminder that Board power is tethered to its governing documents. The HOA lost primarily because its actions were found to be discriminatory.

  • The Non-Discrimination Mandate: The Judge cited Article IV, Section 3 of the Velda Rose Bylaws. While the Board has the power to adopt rules, the Bylaws explicitly state that such rules "may not discriminate among Owners."
  • Selective Enforcement: Because the Board allowed other activities involving non-members and money (like card games), they could not legally single out the Stocking Project for the same factors.
  • The Recommended Order: Finding the Petitioner’s witnesses credible and the Board’s arguments inconsistent, the Judge ordered the HOA to:
  1. Comply with the non-discrimination provisions of the CC&Rs in all future dealings.
  2. Reimburse Ms. Skidmore for her $550 filing fee within 30 days.
6. Key Takeaways for HOA Members and Boards

This case serves as a vital precedent for community governance in Arizona, offering several critical lessons:

  1. The Burden of Proof: In administrative hearings, the petitioner must prove their case by a preponderance of the evidence. Ms. Skidmore succeeded because her credible testimony made her claims "more likely true than not."
  2. Non-Discrimination is Non-Negotiable: Boards cannot selectively enforce rules. If a clubhouse is open to secular groups that include non-residents, the Board cannot ban another secular group simply because they dislike the nature of the charity.
  3. Defining Religious vs. Charitable: Legally, "religious activity" requires the promotion of a deity. General acts of kindness or holiday-themed charity do not automatically qualify as religious, and Boards should be wary of using this label to exclude residents.
  4. Administrative Recourse: Arizona homeowners have a specialized venue for justice. The Department of Fire, Building and Life Safety provides an accessible path to dispute CC&R violations through the Office of Administrative Hearings, avoiding the high costs of Superior Court.
7. Conclusion: The Final Certification

On October 28, 2015, the decision was officially certified as the final administrative action. Because the Department did not reject or modify the ALJ's findings, the ruling became a binding victory for homeowner rights.

The Case of the Christmas Stocking Project underscores a fundamental principle of community living: the Board’s duty to govern is not a license to discriminate. When the spirit of community service is met with arbitrary barriers, the law provides a clear mechanism to ensure that fairness and the community’s own bylaws prevail.

Case Participants

Petitioner Side

  • Ferne Skidmore (Petitioner)
    Velda Rose Estates Homeowners Association (Member)
    Homeowner; organizer of the Stocking Project
  • Jonathan A. Dessaules (Attorney)
    Dessaules Law Group
    Represented Petitioner
  • F. Robert Connelly (Attorney)
    Dessaules Law Group
    Listed on service list for Petitioner

Respondent Side

  • Clint G. Goodman (Attorney)
    Goodman Law Office, P.C.
    Represented Respondent
  • Brodie Poole (Witness)
    Velda Rose Estates Homeowners Association
    Board Member since January 2015; testified Stocking Project had no religious affiliation
  • Gwendolyn Krogstad (Witness)
    Velda Rose Estates Homeowners Association
    Board Member since January 2015
  • Darrell Walklin (Witness)
    Velda Rose Estates Homeowners Association
    Former Board President
  • Gloria Denesen (Witness)
    Velda Rose Estates Homeowners Association
    Board Treasurer
  • Roger A. Walklin (Witness)
    Velda Rose Estates Homeowners Association
    Board President (appointed/elected 2013)

Neutral Parties

  • M. Douglas (ALJ)
    Office of Administrative Hearings
    Administrative Law Judge
  • Debra Blake (Agency Director)
    Department of Fire, Building and Life Safety
    Interim Director
  • Greg Hanchett (Agency Director)
    Office of Administrative Hearings
    Interim Director; certified the decision
  • Joni Cage (Agency Staff)
    Department of Fire, Building and Life Safety
    c/o for Debra Blake
  • Rosella J. Rodriguez (Clerk)
    Office of Administrative Hearings
    Mailed/faxed the decision