Case Summary
| Case ID | 11F-H1112004-BFS |
|---|---|
| Agency | Department of Fire, Building and Life Safety |
| Tribunal | OAH |
| Decision Date | 2012-04-09 |
| Administrative Law Judge | Lewis D. Kowal |
| Outcome | yes |
| Filing Fees Refunded | $550.00 |
| Civil Penalties | $0.00 |
Parties & Counsel
| Petitioner | Lorinda and John Steadman | Counsel | J. Roger Wood |
|---|---|---|---|
| Respondent | Esquire Village Homeowners Association | Counsel | Joseph Tadano |
Alleged Violations
A.R.S. § 33-1808
Outcome Summary
The ALJ ruled in favor of the Petitioners, finding that the Gadsden flag is a protected flag under A.R.S. § 33-1808 as it was historically an official flag of the Marine Corps. The HOA's determination of a violation was improper, and the fines were ordered withdrawn. The HOA was ordered to refund the Petitioners' filing fee.
Key Issues & Findings
Restriction on flying the Gadsden flag
Petitioners challenged the HOA's assessment of fines for flying the Gadsden flag. The HOA argued the flag was not protected under A.R.S. § 33-1808. The ALJ determined that because the Gadsden flag was historically an official flag of the U.S. Marine Corps, it fell under the statutory protection for official service flags, regardless of whether it is currently used as the primary official flag.
Orders: Respondent is to take appropriate action to reflect that the flying of the Gadsden flag was not a violation and withdraw the assessment of any fees imposed. Respondent shall pay Petitioners their filing fee of $550.00.
Filing fee: $550.00, Fee refunded: Yes
Disposition: petitioner_win
- A.R.S. § 33-1808
- A.R.S. § 33-1803(D)
Decision Documents
11F-H1112004-BFS Decision – 289742.pdf
11F-H1112004-BFS Decision – 292654.pdf
Based on the provided sources, here is a summary of the hearing proceedings for Case No. 11F-H1112004-BFS.
**Case Overview**
* **Case Title:** *Lorinda and John Steadman v. Esquire Village Homeowners Association*
* **Date of Hearing:** March 22, 2012
* **Judge:** Administrative Law Judge Lewis D. Kowal
* **Final Decision Date:** Certified May 15, 2012,
**Key Facts**
Petitioners Lorinda and John Steadman received approval in 2008 to install a flagpole in their rear yard, subject to compliance with state statutes regarding flag displays,. In late 2010, a dispute arose when the Petitioners began flying the Gadsden flag,.
In February 2011, the Respondent (Esquire Village Homeowners Association) issued two $50 fines against the Petitioners,. The Association claimed the Gadsden flag was not a protected flag under A.R.S. § 33-1808 as it existed at the time,. The Petitioners appealed these fines to the HOA Board without success before filing a petition with the Arizona Department of Fire, Building and Life Safety.
**Main Legal Issues**
The central issue was whether the Gadsden flag was protected under the version of A.R.S. § 33-1808 in effect prior to July 2011,. Specifically, the proceedings focused on whether the Gadsden flag qualified as "an official or replica flag of the United States army, navy, air force, marine corps".
**Key Arguments**
* **Respondent’s Position:** The Association argued that the Architectural Review Committee had the authority to regulate aesthetic improvements visible from the street,. The Board President testified that she researched military manuals and consulted informally with legislative counsel, concluding the Gadsden flag was not a "current" official flag and therefore not protected,.
* **Petitioners’ Position:** The Petitioners argued the flag was protected by statute. They presented an Arizona State Senate Issue Brief stating HOAs cannot prohibit U.S. military flags and provided evidence indicating the Gadsden flag’s historical association with the Marine Corps,.
**Legal Analysis and Findings**
The Administrative Law Judge (ALJ) determined that A.R.S. § 33-1808 was determinative over the Association’s aesthetic regulations,.
In analyzing the statute, the Judge noted the text protected "an official or replica flag" of the armed forces. The Judge reasoned that the use of "an" suggested any one of a number of official flags, and the statute notably lacked the word "current". Therefore, to enjoy statutory protection, the Petitioners only needed to prove the Gadsden flag was an official flag of a branch of the armed forces *at some time*.
The ALJ found the preponderance of the evidence showed the Gadsden flag was, at some time, an official flag of the United States Marine Corps.
**Outcome and Order**
The Judge ruled in favor of the Petitioners. The decision included the following orders:
1. **Violation Dismissed:** The Respondent’s determination of
Case Participants
Petitioner Side
- Lorinda Steadman (petitioner)
Homeowner - John Steadman (petitioner)
Homeowner - L. Roger Wood (attorney)
The Law Offices of J. Roger Wood, PLLC
Listed as 'L. Roger Wood' in appearances and 'J. Roger Wood' in service list - Pat Haruff (witness)
Coalition of HomeOwners for Rights and Education
Director of Coalition; advocate for homeowners
Respondent Side
- Esquire Village Homeowners Association (respondent)
Entity named as Respondent - Joseph Tadano (attorney)
Farley Sletos & Choate - Kevin Bishop (witness)
Renaissance Community Partners
President of the management company - Julie Frost (board member)
Esquire Village Homeowners Association
Board President; testified at hearing
Neutral Parties
- Lewis D. Kowal (ALJ)
Office of Administrative Hearings - Gene Palma (agency director)
Department of Fire, Building and Life Safety
Listed on transmission of decision - Cliff J. Vanell (agency director)
Office of Administrative Hearings
Certified the decision - Beth Soliere (agency staff)
Department of Fire, Building and Life Safety
ATTN recipient for transmission