Tag Archives: Smith & Wamsley, PLLC

Brian & Rosalie Gordon v. Tucson Estate No. Two Owner’s Association

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Case Summary

Case ID 24F-H043-REL
Agency ADRE
Tribunal OAH
Decision Date 2024-07-10
Administrative Law Judge Samuel Fox
Outcome partial
Filing Fees Refunded $2,000.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Brian Gordon and Rosalie Gordon Counsel —
Respondent Tucson Estate No. Two Owner's Association Counsel Jason Smith

Alleged Violations

Bylaws Article 10; Finance Committee rules
A.R.S. § 33-1805; Bylaws Article 10
A.R.S. § 33-1805; Bylaws Article 10
A.R.S. § 33-1805; Bylaws Article 10

Outcome Summary

Petitioners were deemed the prevailing party regarding Petition Issues 1 and 4, and Respondent was deemed the prevailing party regarding Issues 2 and 3. Respondent was ordered to pay Petitioners $1,000.00 of the filing fee. Respondent was also directed to comply with Community Documents and A.R.S. § 33-1805 going forward. No Civil Penalty was levied.

Why this result: Petitioners failed to meet the burden of proof for Complaints 2 and 3, establishing that Respondent violated A.R.S. § 33-1805 or failed to abide by Community Documents, because Respondent provided all available records or offered additional reports.

Key Issues & Findings

Violation of Community Documents by not recording and making available the minutes of all Finance Committee Meetings held in 2023.

Petitioners requested minutes for five 2023 Finance Committee Meetings. The Committee rules required minutes of its meetings as a permanent record of its actions. The Respondent failed to record meeting minutes as required.

Orders: Respondent directed to comply with the requirements of its Community Documents going forward.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1805
  • A.R.S. § 10-11601
  • Bylaws Article 10

Violation by not keeping and making financial and other HOA business documentation (Budget Working Papers) available for review.

Petitioners requested copies of Budget Working Papers. Respondent provided all available documents (unapproved budget, general ledger, and draft), maintaining only one version of a proprietary spreadsheet. Petitioners failed to meet their burden to prove Respondent did not make records available.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1805
  • A.R.S. § 10-11601
  • Bylaws Article 10

Violation by not keeping and making financial and other HOA business documentation (Accounts Payable journal with GL detail) available for review.

Petitioners requested Accounts Payable journal/reports multiple times. Respondent provided copies of available accounts payable reports (check receipts and general ledger). When Respondent later identified an additional detailed report available for purchase, Petitioners refused it.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1805
  • A.R.S. § 10-11601
  • Bylaws Article 10

Violation by not keeping and making financial and other HOA business documentation (IRS Tax filings and backup documentation) available for review.

Petitioners requested IRS Tax filings. Respondent initially provided only photocopies of two pages of the 1120-h form, missing schedules and backup documentation. Respondent failed to provide full tax returns or backup documentation in a timely manner (within ten business days).

Orders: Respondent is directed to comply with the requirements of A.R.S. § 33-1805 going forward.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1805
  • A.R.S. § 10-11601
  • Bylaws Article 10

Analytics Highlights

Topics: HOA records dispute, Finance Committee minutes, budget working papers, accounts payable journal, IRS tax filings, record retention, A.R.S. § 33-1805 violation
Additional Citations:

  • A.R.S. § 33-1805
  • A.R.S. § 10-11601
  • Bylaws Article 10
  • A.R.S. § 32-2199.02

Video Overview

Audio Overview

Decision Documents

24F-H043-REL Decision – 1176916.pdf

Uploaded 2026-01-23T18:07:38 (53.5 KB)

24F-H043-REL Decision – 1198119.pdf

Uploaded 2026-01-23T18:07:41 (203.0 KB)

24F-H043-REL Decision – 1200350.pdf

Uploaded 2026-01-23T18:07:45 (37.2 KB)

Questions

Question

Is my HOA required to keep minutes for advisory committees?

Short Answer

Yes, if the community documents (like a committee charter or policy) state that minutes must be kept.

Detailed Answer

Even if an HOA argues a committee is only 'advisory' and doesn't take 'actions,' the ALJ ruled that activities like advising, reviewing, and recommending constitute 'actions' within the scope of the committee's duties. Therefore, if the committee's rules say minutes must be kept, failing to do so violates the community documents.

Alj Quote

When the Committee advised, assisted, reviewed, analyzed, recommended, or otherwise took action within the parameters of its Responsibilities and Duties, that was an 'action' by the Committee as established by the Board.

Legal Basis

Community Documents / Bylaws

Topic Tags

  • meeting minutes
  • committees
  • record keeping

Question

Can I demand that the HOA create a specific report to answer my financial questions?

Short Answer

No, the HOA is not required to create new documents that do not already exist.

Detailed Answer

The law requires the HOA to make existing records available for examination. It does not compel the HOA to generate new reports, compile data in a specific format, or create documents they do not currently possess to satisfy a homeowner's request.

Alj Quote

It does not require Respondent to provide documents that it does not have nor does it require Respondent to create documents in response to a request.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • financial records
  • document creation
  • requests

Question

If the management company holds the records, can the HOA claim they don't have them?

Short Answer

No, records held by the management company are considered to be in the HOA's custody.

Detailed Answer

The ALJ explicitly ruled that documents in the custody of the management agent (e.g., AAM) are legally in the custody of the HOA. The HOA is obligated to provide them to members upon request.

Alj Quote

Documents in the custody of AAM are in the custody of Respondent, and Respondent is obligated to provide them to members under A.R.S. § 33-1805.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • management company
  • record custody
  • access to records

Question

Are personal notes taken by committee members considered official HOA records?

Short Answer

No, personal notes or drafts on personal devices are generally not HOA records.

Detailed Answer

The ALJ found that notes, drafts, edits, or comments made by committee members on their personal versions of documents were not records of the Association if the Association did not collect, track, or record them.

Alj Quote

Any notes, drafts, edits, or comments that committee members made on their personal versions were not records of Respondent, which did not collect, track, or record the committee members’ individual notes.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • personal notes
  • official records
  • committees

Question

Does the HOA have to provide previous drafts of a budget or 'working papers'?

Short Answer

Only if they actually kept them. If they overwrite the file, they don't have to produce previous versions.

Detailed Answer

In this case, the HOA used a single spreadsheet that was updated and overwritten as the budget process moved forward. The ALJ ruled that since the HOA did not maintain multiple versions, they were not required to produce previous drafts they no longer possessed.

Alj Quote

Respondent only maintained one version of the spreadsheet, and when changes were made, the spreadsheet was updated… Petitioners failed to meet their burden to support that Respondent did not make records available for review.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • budget
  • draft documents
  • record retention

Question

Is providing the first two pages of a tax return sufficient to fulfill a records request?

Short Answer

No, the HOA must provide the complete tax return and backup documentation.

Detailed Answer

The ALJ found the HOA in violation for providing only the first two pages of Form 1120-H. The homeowner was entitled to the complete tax form and the backup documentation (which the management company or CPA had access to) within 10 days.

Alj Quote

The preponderance of the evidence establishes that Petitioners did not receive full copies of Respondent’s tax returns or backup documentation for the tax returns within ten days of their respective October requests.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • tax returns
  • financial records
  • transparency

Question

Can the ALJ enforce IRS regulations or the Nonprofit Corporation Act during this hearing?

Short Answer

No, the ALJ's jurisdiction is limited to Planned Community statutes and Community Documents.

Detailed Answer

The Administrative Law Judge explicitly stated that the tribunal is not authorized to adjudicate complaints arising from the Arizona Nonprofit Corporations Act or IRS regulations, only Title 33 (Planned Communities) and the specific HOA documents.

Alj Quote

This Tribunal is not authorized to adjudicate complaints arising from the Arizona Nonprofit Corporations Act, Internal Revenue Service regulations, or other laws or regulations.

Legal Basis

A.R.S. § 32-2199

Topic Tags

  • jurisdiction
  • legal authority
  • IRS
  • nonprofit act

Question

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

Short Answer

Yes, the ALJ has the discretion to order the HOA to reimburse the filing fee.

Detailed Answer

In this case, because the homeowners prevailed on two of their four issues, the ALJ ordered the HOA to pay the homeowners $1,000.00 (half of the $2,000 filing fee).

Alj Quote

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

Legal Basis

A.R.S. § 32-2199.02

Topic Tags

  • filing fees
  • penalties
  • reimbursement

Case

Docket No
24F-H043-REL
Case Title
Brian Gordon and Rosalie Gordon v. Tucson Estate No. Two Owner's Association
Decision Date
2024-07-10
Alj Name
Samuel Fox
Tribunal
OAH
Agency
ADRE

Questions

Question

Is my HOA required to keep minutes for advisory committees?

Short Answer

Yes, if the community documents (like a committee charter or policy) state that minutes must be kept.

Detailed Answer

Even if an HOA argues a committee is only 'advisory' and doesn't take 'actions,' the ALJ ruled that activities like advising, reviewing, and recommending constitute 'actions' within the scope of the committee's duties. Therefore, if the committee's rules say minutes must be kept, failing to do so violates the community documents.

Alj Quote

When the Committee advised, assisted, reviewed, analyzed, recommended, or otherwise took action within the parameters of its Responsibilities and Duties, that was an 'action' by the Committee as established by the Board.

Legal Basis

Community Documents / Bylaws

Topic Tags

  • meeting minutes
  • committees
  • record keeping

Question

Can I demand that the HOA create a specific report to answer my financial questions?

Short Answer

No, the HOA is not required to create new documents that do not already exist.

Detailed Answer

The law requires the HOA to make existing records available for examination. It does not compel the HOA to generate new reports, compile data in a specific format, or create documents they do not currently possess to satisfy a homeowner's request.

Alj Quote

It does not require Respondent to provide documents that it does not have nor does it require Respondent to create documents in response to a request.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • financial records
  • document creation
  • requests

Question

If the management company holds the records, can the HOA claim they don't have them?

Short Answer

No, records held by the management company are considered to be in the HOA's custody.

Detailed Answer

The ALJ explicitly ruled that documents in the custody of the management agent (e.g., AAM) are legally in the custody of the HOA. The HOA is obligated to provide them to members upon request.

Alj Quote

Documents in the custody of AAM are in the custody of Respondent, and Respondent is obligated to provide them to members under A.R.S. § 33-1805.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • management company
  • record custody
  • access to records

Question

Are personal notes taken by committee members considered official HOA records?

Short Answer

No, personal notes or drafts on personal devices are generally not HOA records.

Detailed Answer

The ALJ found that notes, drafts, edits, or comments made by committee members on their personal versions of documents were not records of the Association if the Association did not collect, track, or record them.

Alj Quote

Any notes, drafts, edits, or comments that committee members made on their personal versions were not records of Respondent, which did not collect, track, or record the committee members’ individual notes.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • personal notes
  • official records
  • committees

Question

Does the HOA have to provide previous drafts of a budget or 'working papers'?

Short Answer

Only if they actually kept them. If they overwrite the file, they don't have to produce previous versions.

Detailed Answer

In this case, the HOA used a single spreadsheet that was updated and overwritten as the budget process moved forward. The ALJ ruled that since the HOA did not maintain multiple versions, they were not required to produce previous drafts they no longer possessed.

Alj Quote

Respondent only maintained one version of the spreadsheet, and when changes were made, the spreadsheet was updated… Petitioners failed to meet their burden to support that Respondent did not make records available for review.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • budget
  • draft documents
  • record retention

Question

Is providing the first two pages of a tax return sufficient to fulfill a records request?

Short Answer

No, the HOA must provide the complete tax return and backup documentation.

Detailed Answer

The ALJ found the HOA in violation for providing only the first two pages of Form 1120-H. The homeowner was entitled to the complete tax form and the backup documentation (which the management company or CPA had access to) within 10 days.

Alj Quote

The preponderance of the evidence establishes that Petitioners did not receive full copies of Respondent’s tax returns or backup documentation for the tax returns within ten days of their respective October requests.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • tax returns
  • financial records
  • transparency

Question

Can the ALJ enforce IRS regulations or the Nonprofit Corporation Act during this hearing?

Short Answer

No, the ALJ's jurisdiction is limited to Planned Community statutes and Community Documents.

Detailed Answer

The Administrative Law Judge explicitly stated that the tribunal is not authorized to adjudicate complaints arising from the Arizona Nonprofit Corporations Act or IRS regulations, only Title 33 (Planned Communities) and the specific HOA documents.

Alj Quote

This Tribunal is not authorized to adjudicate complaints arising from the Arizona Nonprofit Corporations Act, Internal Revenue Service regulations, or other laws or regulations.

Legal Basis

A.R.S. § 32-2199

Topic Tags

  • jurisdiction
  • legal authority
  • IRS
  • nonprofit act

Question

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

Short Answer

Yes, the ALJ has the discretion to order the HOA to reimburse the filing fee.

Detailed Answer

In this case, because the homeowners prevailed on two of their four issues, the ALJ ordered the HOA to pay the homeowners $1,000.00 (half of the $2,000 filing fee).

Alj Quote

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

Legal Basis

A.R.S. § 32-2199.02

Topic Tags

  • filing fees
  • penalties
  • reimbursement

Case

Docket No
24F-H043-REL
Case Title
Brian Gordon and Rosalie Gordon v. Tucson Estate No. Two Owner's Association
Decision Date
2024-07-10
Alj Name
Samuel Fox
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Brian Gordon (petitioner)
  • Rosalie Gordon (petitioner)
  • James Tilly (witness)
    Member of Respondent who testified.
  • Leonard Vidovic (witness)
    Also referred to as Leonard Judbec.

Respondent Side

  • Jason E. Smith (HOA attorney)
    SMITH & WAMSLEY, PLLC
  • Sean K. Moynihan (attorney)
    Smith & Wamsley, PLLC
  • Mandy Bates (property manager)
    Associated Asset Management
    Community Manager for Tucson Estates No. Two Owner's Association.
  • Trudy Peterson (finance chair)
    Treasurer and Finance Chair.
  • Rose Spank (board member)
    HOA President in 2012.
  • Janelle Richmond (board member)
    HOA Secretary in 2012.
  • Sharon Matthews (AAM staff)
    AAM
    Referenced in emails regarding accounting procedures (also referred to as Karen Matthews).

Neutral Parties

  • Samuel Fox (ALJ)
    OAH
    Administrative Law Judge for the decision and hearing.
  • Sondra J. Vanella (ALJ)
    OAH
    Signed the initial Order Setting Hearing.
  • Susan Nicolson (ADRE Commissioner)
    Arizona Department of Real Estate
  • vnunez (ADRE staff)
    Arizona Department of Real Estate
    Listed on transmission/service list.
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Listed on transmission/service list.
  • labril (ADRE staff)
    Arizona Department of Real Estate
    Listed on transmission/service list.
  • mneat (ADRE staff)
    Arizona Department of Real Estate
    Listed on transmission/service list.
  • lrecchia (ADRE staff)
    Arizona Department of Real Estate
    Listed on transmission/service list.
  • gosborn (ADRE staff)
    Arizona Department of Real Estate
    Listed on transmission/service list.

Anthony Payson v. The Foothills Homeowners Association #1

Posted on by

Case Summary

Case ID 23F-H041-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-05-01
Administrative Law Judge Velva Moses-Thompson
Outcome loss
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Anthony Payson Counsel —
Respondent The Foothills Homeowners Association #1 Counsel Sean K. Mohnihan

Alleged Violations

CC&R Section 5.4

Outcome Summary

The petition was dismissed after the Administrative Law Judge concluded that the Respondent HOA did not violate CC&R Section 5.4, finding that this section applies to use restrictions on individual Lots and Members, not the Association itself.

Why this result: The ALJ found that Petitioner failed to meet the burden of proof to establish the Respondent HOA violated CC&R Section 5.4 because the HOA does not own or operate the nuisance-causing television, and the CC&R section governs restrictions on lot Owners/Members, not the Association. OAH jurisdiction is limited to finding the governing document or statute violated by the respondent.

Key Issues & Findings

HOA's alleged failure to enforce nuisance provision (CC&R Section 5.4) regarding neighbor's outdoor television.

Petitioner alleged that the Respondent HOA failed to perform its duty to enforce CC&R Section 5.4 by refusing to seek removal of a neighbor's large, outdoor television that created noise disturbances and was deemed a nuisance.

Orders: The petition is dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 32-2199(B)
  • ARIZ. REV. STAT. §32- 2199.02(A)
  • CC&R Section 5.4

Analytics Highlights

Topics: Homeowners Association, CC&R, Nuisance, Enforcement, Jurisdiction, Outdoor TV
Additional Citations:

  • ARIZ. REV. STAT. § 32-2199(B)
  • ARIZ. REV. STAT. §32- 2199.02(A)
  • ARIZ. REV. STAT. § 33-1803
  • ARIZ. REV. STAT. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs., 867 P.2d 70, 75 (Colo. App. 1993)
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)

Video Overview

Audio Overview

https://open.spotify.com/episode/74bT2mijNKJ5SUal3ovDor

Decision Documents

23F-H041-REL Decision – 1047496.pdf

Uploaded 2026-01-23T17:55:58 (57.5 KB)

23F-H041-REL Decision – 1053240.pdf

Uploaded 2026-01-23T17:56:01 (98.4 KB)





Study Guide – 23F-H041-REL


{ “case”: { “docket_no”: “23F-H041-REL”, “case_title”: “In the Matter of Anthony Payson vs The Foothills Homeowners Association #1”, “decision_date”: “2023-05-01”, “alj_name”: “Velva Moses-Thompson”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Can I use the ADRE administrative hearing process to force my HOA to enforce CC&R rules against a neighbor?”, “short_answer”: “Generally no, if the specific rule applies to member conduct rather than Association conduct.”, “detailed_answer”: “The Administrative Law Judge (ALJ) clarified that the dispute process is for determining if the Respondent (the HOA) violated a statute or governing document. If a CC&R provision restricts how a ‘lot’ may be used, a violation of that rule is a breach by the member (the neighbor), not the Association. Therefore, the HOA cannot be found guilty of violating a rule that governs homeowner behavior.”, “alj_quote”: “These provisions refer to what members may and may not do within the Association. Therefore, any breach of this Article would be a breach by a Member, not the Association. Petitioner failed to establish that Respondent violated CC&R Section 5.4.”, “legal_basis”: “CC&R Section 5.4; OAH Jurisdiction”, “topic_tags”: [ “enforcement”, “jurisdiction”, “neighbor disputes” ] }, { “question”: “Does the Office of Administrative Hearings (OAH) have jurisdiction to decide if my HOA was negligent or violated common law duties?”, “short_answer”: “No, the OAH jurisdiction is strictly limited to violations of statutes and governing documents.”, “detailed_answer”: “The tribunal does not have the authority to hear claims based on common law, such as negligence or general failure to perform a duty, unless it is a specific violation of the statutes or the community documents tailored to the Association’s conduct.”, “alj_quote”: “To the extent that Petitioner alleged that Respondent may have violated common law, or any other laws, the OAH lacks jurisdiction to make such a determination.”, “legal_basis”: “ARIZ. REV. STAT. § 32-2199.01”, “topic_tags”: [ “jurisdiction”, “common law”, “negligence” ] }, { “question”: “What remedies or penalties can I request from the administrative judge if I win my case against the HOA?”, “short_answer”: “Relief is limited to a finding of violation, an order to comply, return of filing fees, and civil penalties.”, “detailed_answer”: “The administrative process cannot award damages for things like pain, suffering, or lost property value. The remedies are strictly defined by statute: finding a violation occurred, ordering the HOA to abide by the provision, returning the petitioner’s filing fee, and levying a civil penalty.”, “alj_quote”: “Petitioner’s relief in this venue is limited to e is limited to a finding that the governing document or statute at issue has been violated by the respondent, an order that Respondent abide by the provision in the future, and to have the filing fee returned to the petitioner and a civil penalty levied against Respondent.”, “legal_basis”: “Ariz. Rev. Stat. §32- 2199.02(A)”, “topic_tags”: [ “remedies”, “penalties”, “civil penalty” ] }, { “question”: “Who is responsible for proving that a violation occurred in an HOA dispute hearing?”, “short_answer”: “The Petitioner (the homeowner filing the complaint) bears the burden of proof.”, “detailed_answer”: “The homeowner bringing the case must provide sufficient evidence to prove their claims. It is not the HOA’s job to disprove the claims initially; the burden lies with the person filing the petition.”, “alj_quote”: “Petitioner bears the burden of proof to establish that Respondent violated on its CC&Rs by a preponderance of the evidence.”, “legal_basis”: “A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A)”, “topic_tags”: [ “burden of proof”, “evidence”, “legal standard” ] }, { “question”: “What is the ‘preponderance of the evidence’ standard used in these hearings?”, “short_answer”: “It means the claim is more probable than not to be true.”, “detailed_answer”: “This legal standard requires that the evidence presented must convince the judge that the petitioner’s argument is more likely true than the opposing side’s argument. It is described as the ‘greater weight of the evidence.'”, “alj_quote”: ““A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.””, “legal_basis”: “Morris K. Udall, Arizona Law of Evidence”, “topic_tags”: [ “legal standard”, “definitions”, “evidence” ] }, { “question”: “How are vague or ambiguous rules in the CC&Rs interpreted by the judge?”, “short_answer”: “They are construed to give effect to the intent of the parties and the underlying purpose of the document.”, “detailed_answer”: “When interpreting restrictive covenants, the judge looks at the document as a whole. If the covenant is unambiguous, it is enforced exactly as written to match the intent.”, “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”: “Powell v. Washburn, 211 Ariz. 553”, “topic_tags”: [ “interpretation”, “CC&Rs”, “legal principles” ] } ] }






Blog Post – 23F-H041-REL


{ “case”: { “docket_no”: “23F-H041-REL”, “case_title”: “In the Matter of Anthony Payson vs The Foothills Homeowners Association #1”, “decision_date”: “2023-05-01”, “alj_name”: “Velva Moses-Thompson”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Can I use the ADRE administrative hearing process to force my HOA to enforce CC&R rules against a neighbor?”, “short_answer”: “Generally no, if the specific rule applies to member conduct rather than Association conduct.”, “detailed_answer”: “The Administrative Law Judge (ALJ) clarified that the dispute process is for determining if the Respondent (the HOA) violated a statute or governing document. If a CC&R provision restricts how a ‘lot’ may be used, a violation of that rule is a breach by the member (the neighbor), not the Association. Therefore, the HOA cannot be found guilty of violating a rule that governs homeowner behavior.”, “alj_quote”: “These provisions refer to what members may and may not do within the Association. Therefore, any breach of this Article would be a breach by a Member, not the Association. Petitioner failed to establish that Respondent violated CC&R Section 5.4.”, “legal_basis”: “CC&R Section 5.4; OAH Jurisdiction”, “topic_tags”: [ “enforcement”, “jurisdiction”, “neighbor disputes” ] }, { “question”: “Does the Office of Administrative Hearings (OAH) have jurisdiction to decide if my HOA was negligent or violated common law duties?”, “short_answer”: “No, the OAH jurisdiction is strictly limited to violations of statutes and governing documents.”, “detailed_answer”: “The tribunal does not have the authority to hear claims based on common law, such as negligence or general failure to perform a duty, unless it is a specific violation of the statutes or the community documents tailored to the Association’s conduct.”, “alj_quote”: “To the extent that Petitioner alleged that Respondent may have violated common law, or any other laws, the OAH lacks jurisdiction to make such a determination.”, “legal_basis”: “ARIZ. REV. STAT. § 32-2199.01”, “topic_tags”: [ “jurisdiction”, “common law”, “negligence” ] }, { “question”: “What remedies or penalties can I request from the administrative judge if I win my case against the HOA?”, “short_answer”: “Relief is limited to a finding of violation, an order to comply, return of filing fees, and civil penalties.”, “detailed_answer”: “The administrative process cannot award damages for things like pain, suffering, or lost property value. The remedies are strictly defined by statute: finding a violation occurred, ordering the HOA to abide by the provision, returning the petitioner’s filing fee, and levying a civil penalty.”, “alj_quote”: “Petitioner’s relief in this venue is limited to e is limited to a finding that the governing document or statute at issue has been violated by the respondent, an order that Respondent abide by the provision in the future, and to have the filing fee returned to the petitioner and a civil penalty levied against Respondent.”, “legal_basis”: “Ariz. Rev. Stat. §32- 2199.02(A)”, “topic_tags”: [ “remedies”, “penalties”, “civil penalty” ] }, { “question”: “Who is responsible for proving that a violation occurred in an HOA dispute hearing?”, “short_answer”: “The Petitioner (the homeowner filing the complaint) bears the burden of proof.”, “detailed_answer”: “The homeowner bringing the case must provide sufficient evidence to prove their claims. It is not the HOA’s job to disprove the claims initially; the burden lies with the person filing the petition.”, “alj_quote”: “Petitioner bears the burden of proof to establish that Respondent violated on its CC&Rs by a preponderance of the evidence.”, “legal_basis”: “A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A)”, “topic_tags”: [ “burden of proof”, “evidence”, “legal standard” ] }, { “question”: “What is the ‘preponderance of the evidence’ standard used in these hearings?”, “short_answer”: “It means the claim is more probable than not to be true.”, “detailed_answer”: “This legal standard requires that the evidence presented must convince the judge that the petitioner’s argument is more likely true than the opposing side’s argument. It is described as the ‘greater weight of the evidence.'”, “alj_quote”: ““A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.””, “legal_basis”: “Morris K. Udall, Arizona Law of Evidence”, “topic_tags”: [ “legal standard”, “definitions”, “evidence” ] }, { “question”: “How are vague or ambiguous rules in the CC&Rs interpreted by the judge?”, “short_answer”: “They are construed to give effect to the intent of the parties and the underlying purpose of the document.”, “detailed_answer”: “When interpreting restrictive covenants, the judge looks at the document as a whole. If the covenant is unambiguous, it is enforced exactly as written to match the intent.”, “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”: “Powell v. Washburn, 211 Ariz. 553”, “topic_tags”: [ “interpretation”, “CC&Rs”, “legal principles” ] } ] }


Case Participants

Petitioner Side

  • Anthony Payson (petitioner)
    Homeowner

Respondent Side

  • Sean K. Mohnihan (HOA attorney)
    Smith & Wamsley, PLLC
    Appeared for Respondent The Foothills Homeowners Association #1
  • Jason E Smith (attorney)
    Smith & Wamsley, PLLC
    Listed with counsel
  • Gabron (board member)
    The Foothills Homeowners Association #1
    Board representative/potential witness
  • Linda Armo (board member)
    The Foothills Homeowners Association #1
    Board representative/potential witness
  • Philip Brown (former HOA attorney)
    Previously represented the HOA; wrote a letter to Petitioner

Neutral Parties

  • Velva Moses-Thompson (ALJ)
    OAH
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate

Other Participants

  • Barry Callahan (neighbor)
    Alleged violator of CC&Rs, neighbor to Petitioner

Donald F. Molley v. Verde Meadows Crest Homeowners Association

Posted on by

Case Summary

Case ID 23F-H007-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-01-20
Administrative Law Judge Jenna Clark
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Donald F. Molley Counsel —
Respondent Verde Meadows Crest Homeowners Association Counsel Sean K. Moynihan, Esq.

Alleged Violations

Declaration Section 12.B
ARIZ. REV. STAT. § 33-1805

Outcome Summary

Petitioner's entire petition was denied because the Department of Real Estate/OAH lacked statutory jurisdiction over the Association. The Association was found not to meet the statutory definitions of a condominium association or a planned community association because it does not own common areas or real property.

Why this result: OAH determined it lacked jurisdiction pursuant to ARIZ. REV. STAT. §§ 32-2199 et seq., because the Respondent Association is neither a condominium association nor a planned community association (ARIZ. REV. STAT. §§ 33-1202(10) and 33-1802(4)).

Key Issues & Findings

Alleged use of Association funds for maintenance on private property.

Petitioner alleged that the Association used HOA funds for maintenance on private property in violation of Section 12.B of the CC&Rs.

Orders: Petition denied due to lack of OAH jurisdiction.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 33-1202(10)
  • ARIZ. REV. STAT. § 33-1802(4)
  • Declaration Section 12.B

Alleged failure to provide requested financial documents and meeting minutes.

Petitioner requested monthly bank statements and financial reports for 2022, and financial books for 2021, which Respondent allegedly failed to provide in violation of ARS § 33-1805.

Orders: Petition denied due to lack of OAH jurisdiction.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 33-1805
  • ARIZ. REV. STAT. § 33-1202(10)
  • ARIZ. REV. STAT. § 33-1802(4)

Analytics Highlights

Topics: jurisdiction, planned_community_act, condominium_act, denial, document_request, maintenance
Additional Citations:

  • ARIZ. REV. STAT. § 32-2199
  • ARIZ. REV. STAT. § 33-1805
  • ARIZ. REV. STAT. § 33-1202(10)
  • ARIZ. REV. STAT. § 33-1802(4)
  • Declaration Section 12.B

Video Overview

Audio Overview

https://open.spotify.com/episode/34nyQuUBJcHHi8GYbfWjqN

Decision Documents

23F-H007-REL Decision – 1006960.pdf

Uploaded 2026-01-23T17:50:47 (46.0 KB)

23F-H007-REL Decision – 1008524.pdf

Uploaded 2026-01-23T17:50:49 (61.8 KB)

23F-H007-REL Decision – 1008675.pdf

Uploaded 2026-01-23T17:50:52 (8.7 KB)

23F-H007-REL Decision – 1010876.pdf

Uploaded 2026-01-23T17:50:55 (51.8 KB)

23F-H007-REL Decision – 1020898.pdf

Uploaded 2026-01-23T17:50:58 (44.8 KB)

23F-H007-REL Decision – 1027131.pdf

Uploaded 2026-01-23T17:51:02 (146.3 KB)

Questions

Question

If my HOA doesn't own any common areas or real property, can I still file a dispute with the Department of Real Estate?

Short Answer

No. If the association does not own real property, it may not meet the statutory definition of a 'planned community,' meaning the Department lacks jurisdiction to hear the dispute.

Detailed Answer

The ALJ determined that because the Association did not own any real property or common areas, it did not qualify as a 'planned community' under Arizona statutes. Consequently, the Department of Real Estate had no authority to enforce the Planned Communities Act against it.

Alj Quote

The record also reflects that the Association is also not a planned community association because it does not own any real property. As a result, neither the Condominium Act nor the Planned Communities Act governs the Association and neither Act can be enforced against it.

Legal Basis

A.R.S. § 33-1802(4); A.R.S. § 32-2199 et seq.

Topic Tags

  • jurisdiction
  • common areas
  • planned community definition

Question

What evidence do I need to provide if I claim the HOA is spending money on maintenance in violation of the CC&Rs?

Short Answer

You must provide specific details such as the exact amounts spent, who performed the work, the specific locations (lots), and the dates/duration of the work.

Detailed Answer

The ALJ noted that the homeowner failed to support his claim because he could not provide specific facts regarding the alleged improper expenditures. General testimony without specific data (amounts, dates, locations) is insufficient.

Alj Quote

Petitioner, however, could not identify the amount Respondent allegedly spent on said landscaping, by whom the maintenance was performed, on which lots the maintenance was performed, or when and for what duration the alleged maintenance took place.

Legal Basis

Burden of Proof

Topic Tags

  • evidence
  • maintenance
  • misuse of funds

Question

Is a verbal request enough to prove the HOA failed to provide financial documents?

Short Answer

Likely not. To succeed in a hearing, you must be able to prove the specific date of the request and the identity of the person to whom the request was made.

Detailed Answer

The ALJ found the homeowner's testimony insufficient because he claimed to have made verbal requests but could not recall when they happened or who he asked.

Alj Quote

Petitioner testified that he verbally requested 'financials' and 'meeting minutes' from Respondent, but could not provide the date(s) of the request(s) and/or name the person(s) to whom the request(s) were made.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • records request
  • evidence
  • financials

Question

Are the CC&Rs considered a binding contract?

Short Answer

Yes. When a homeowner buys a property within the development, they agree to be bound by the terms of the Declaration, forming an enforceable contract.

Detailed Answer

The decision affirms that the Declaration acts as a contract between the Association and the property owner upon purchase.

Alj Quote

Thus, the Declaration forms an enforceable contract between the Association and each property owner.

Legal Basis

Contract Law

Topic Tags

  • CC&Rs
  • contract
  • enforceability

Question

What is the legal definition of a 'condominium' in Arizona regarding HOA disputes?

Short Answer

Real estate is only a condominium if the unit owners are vested with undivided interests in the common elements.

Detailed Answer

The ALJ clarified that if owners do not have undivided interests in common elements, the development is not a condominium under the law.

Alj Quote

Real estate is not a condominium unless the undivided interests in the common elements are vested in the unit owners.

Legal Basis

A.R.S. § 33-1202(10)

Topic Tags

  • condominium definition
  • common elements

Question

Can the HOA be excused from providing financial records if a former board member failed to hand them over?

Short Answer

Potentially yes. The ALJ noted testimony that the HOA could not provide certain records because the Petitioner (a former Treasurer) had failed to return them after leaving the board.

Detailed Answer

While the case was decided on jurisdiction, the decision recorded the HOA's defense that the 2022 financial statement was incomplete because the former Treasurer (the Petitioner) did not remit the necessary documentation.

Alj Quote

Ms. Wickenheiser testified that Respondent was unable to comply with Petitioner’s request for the Association’s 2022 financial statement… in large part, because Petitioner had served as the Association’s Treasurer for that fiscal year and had failed to remit the Association’s financial documentation

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • records
  • board member duties
  • treasurer

Case

Docket No
23F-H007-REL
Case Title
Donald F. Molley v. Verde Meadows Crest Homeowners Association
Decision Date
2023-01-20
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Questions

Question

If my HOA doesn't own any common areas or real property, can I still file a dispute with the Department of Real Estate?

Short Answer

No. If the association does not own real property, it may not meet the statutory definition of a 'planned community,' meaning the Department lacks jurisdiction to hear the dispute.

Detailed Answer

The ALJ determined that because the Association did not own any real property or common areas, it did not qualify as a 'planned community' under Arizona statutes. Consequently, the Department of Real Estate had no authority to enforce the Planned Communities Act against it.

Alj Quote

The record also reflects that the Association is also not a planned community association because it does not own any real property. As a result, neither the Condominium Act nor the Planned Communities Act governs the Association and neither Act can be enforced against it.

Legal Basis

A.R.S. § 33-1802(4); A.R.S. § 32-2199 et seq.

Topic Tags

  • jurisdiction
  • common areas
  • planned community definition

Question

What evidence do I need to provide if I claim the HOA is spending money on maintenance in violation of the CC&Rs?

Short Answer

You must provide specific details such as the exact amounts spent, who performed the work, the specific locations (lots), and the dates/duration of the work.

Detailed Answer

The ALJ noted that the homeowner failed to support his claim because he could not provide specific facts regarding the alleged improper expenditures. General testimony without specific data (amounts, dates, locations) is insufficient.

Alj Quote

Petitioner, however, could not identify the amount Respondent allegedly spent on said landscaping, by whom the maintenance was performed, on which lots the maintenance was performed, or when and for what duration the alleged maintenance took place.

Legal Basis

Burden of Proof

Topic Tags

  • evidence
  • maintenance
  • misuse of funds

Question

Is a verbal request enough to prove the HOA failed to provide financial documents?

Short Answer

Likely not. To succeed in a hearing, you must be able to prove the specific date of the request and the identity of the person to whom the request was made.

Detailed Answer

The ALJ found the homeowner's testimony insufficient because he claimed to have made verbal requests but could not recall when they happened or who he asked.

Alj Quote

Petitioner testified that he verbally requested 'financials' and 'meeting minutes' from Respondent, but could not provide the date(s) of the request(s) and/or name the person(s) to whom the request(s) were made.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • records request
  • evidence
  • financials

Question

Are the CC&Rs considered a binding contract?

Short Answer

Yes. When a homeowner buys a property within the development, they agree to be bound by the terms of the Declaration, forming an enforceable contract.

Detailed Answer

The decision affirms that the Declaration acts as a contract between the Association and the property owner upon purchase.

Alj Quote

Thus, the Declaration forms an enforceable contract between the Association and each property owner.

Legal Basis

Contract Law

Topic Tags

  • CC&Rs
  • contract
  • enforceability

Question

What is the legal definition of a 'condominium' in Arizona regarding HOA disputes?

Short Answer

Real estate is only a condominium if the unit owners are vested with undivided interests in the common elements.

Detailed Answer

The ALJ clarified that if owners do not have undivided interests in common elements, the development is not a condominium under the law.

Alj Quote

Real estate is not a condominium unless the undivided interests in the common elements are vested in the unit owners.

Legal Basis

A.R.S. § 33-1202(10)

Topic Tags

  • condominium definition
  • common elements

Question

Can the HOA be excused from providing financial records if a former board member failed to hand them over?

Short Answer

Potentially yes. The ALJ noted testimony that the HOA could not provide certain records because the Petitioner (a former Treasurer) had failed to return them after leaving the board.

Detailed Answer

While the case was decided on jurisdiction, the decision recorded the HOA's defense that the 2022 financial statement was incomplete because the former Treasurer (the Petitioner) did not remit the necessary documentation.

Alj Quote

Ms. Wickenheiser testified that Respondent was unable to comply with Petitioner’s request for the Association’s 2022 financial statement… in large part, because Petitioner had served as the Association’s Treasurer for that fiscal year and had failed to remit the Association’s financial documentation

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • records
  • board member duties
  • treasurer

Case

Docket No
23F-H007-REL
Case Title
Donald F. Molley v. Verde Meadows Crest Homeowners Association
Decision Date
2023-01-20
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Donald F. Molley (petitioner)
    Appeared on his own behalf; also referred to as Donald Molley or Mr. Molly; previously served as Association board member and treasurer

Respondent Side

  • Kari Wickenheiser (board president)
    Verde Meadows Crest Homeowners Association
    Testified on behalf of Respondent; also referred to as Miss Wizer/Wenheiser
  • Sean K. Moynihan (HOA attorney)
    Smith & Wamsley, PLLC
    Counsel for Respondent
  • Sue Antonio (board member)
    Verde Meadows Crest Homeowners Association
    Former President, Treasurer, and Secretary of the HOA, mentioned in testimony

Neutral Parties

  • Jenna Clark (ALJ)
    Office of Administrative Hearings
  • Louis Dettorre (Commissioner)
    Arizona Department of Real Estate
  • c. serrano (OAH staff)
    Office of Administrative Hearings
    Transmitted documents
  • Miranda Alvarez (legal secretary)
    Office of Administrative Hearings
    Transmitted documents
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmittal
  • vnunez (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmittal
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmittal
  • labril (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmittal

Elieen Ahearn and Robert Barfield v. High Lonesome Ranch Estates

Posted on by

Case Summary

Case ID 23F-H002-REL
Agency ADRE
Tribunal OAH
Decision Date 2022-11-17
Administrative Law Judge Sondra J. Vanella
Outcome full
Filing Fees Refunded $500.00
Civil Penalties $500.00

Parties & Counsel

Petitioner Eileen Ahearn Counsel —
Respondent High Lonesome Ranch Estates Property Owners Association Counsel Jason Smith, Esq.

Alleged Violations

HLR CCR 6.2.1 and HLR Association Rules: Nominating and Election Committee Mission and Procedures (approved 19 July 2021)

Outcome Summary

The Administrative Law Judge upheld the Petition, finding the Respondent HOA violated its Nominating and Elections Committee Mission and Procedures by refusing to count otherwise valid couriered ballots and subsequent in-person attempts to vote at the July 5, 2022 Special Election. Petitioners were deemed the prevailing party and awarded the $500 filing fee refund, and the HOA was assessed a $500 civil penalty.

Key Issues & Findings

Denial of the right to vote in Removal/Recall Special Election

Petitioners alleged they were denied the right to vote in the July 5, 2022 Removal/Recall Special Election after their initial ballots (couriered prior to the meeting) were rejected for lacking a postmark, and their subsequent attempts to cast new ballots in person were rejected for reasons including 'double voting' or being 'too late.' The ALJ found the HOA violated its established election procedures.

Orders: The Petition was upheld, and Petitioners were deemed the prevailing party. Respondent was ordered to pay Petitioners their $500.00 filing fee and pay a civil penalty of $500.00 to the Department.

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

Disposition: petitioner_win

Cited:

  • HLR CCR 6.2.1
  • Nominating and Elections Committee Mission and Procedures

Analytics Highlights

Topics: HOA Dispute, Election Violation, Voting Rights, CCNR, Recall Election, Filing Fee Refund, Civil Penalty
Additional Citations:

  • A.R.S. § 32-2199
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.09
  • HLR CCR 6.2.1
  • Nominating and Elections Committee Mission and Procedures

Video Overview

Audio Overview

https://open.spotify.com/episode/20wrMO7dIOJYlU7OS8wGNN

Decision Documents

23F-H002-REL Decision – 1009442.pdf

Uploaded 2026-01-23T17:49:47 (60.1 KB)

23F-H002-REL Decision – 1013289.pdf

Uploaded 2026-01-23T17:49:50 (127.8 KB)

23F-H002-REL Decision – 996298.pdf

Uploaded 2026-01-23T17:49:54 (54.8 KB)

23F-H002-REL Decision – 996319.pdf

Uploaded 2026-01-23T17:49:58 (7.5 KB)

Questions

Question

Can my HOA refuse to count a ballot simply because it was delivered by a courier or neighbor rather than mailed?

Short Answer

No. If the HOA's procedures do not explicitly forbid couriers and it has been past practice, they cannot reject ballots solely for lacking a postmark.

Detailed Answer

The ALJ ruled that the HOA violated its procedures by rejecting ballots placed in the ballot box prior to the election (via courier) simply because they lacked postmarks. The judge noted that the custodian of the box did not believe it was a problem and there was no reason for homeowners to believe they couldn't do so.

Alj Quote

Respondent violated its Nominating and Elections Committee Mission and Procedures when the Elections Committee Chair… refused to count Petitioners’ and other homeowners’ ballots that had been placed in the ballot box prior to the election… There was also no reason for Petitioners or the other homeowners to believe that they could not place their ballots in the ballot box prior to the election and have those ballots counted.

Legal Basis

Nominating and Elections Committee Mission and Procedures

Topic Tags

  • elections
  • ballots
  • couriers
  • voting rights

Question

What are valid reasons for an HOA to consider a ballot ineligible or spoiled?

Short Answer

Valid reasons typically include incorrect vote counts, unconfirmed ownership, illegibility, unsigned envelopes, or lack of good standing.

Detailed Answer

The decision outlines specific criteria for invalidating ballots found in the HOA's procedures. Arbitrary reasons not listed in the governing documents (like lack of a postmark when not required) are not valid grounds for rejection.

Alj Quote

Reasons a ballot may not be valid include incorrect number of votes, lot ownership cannot be confirmed, ballot is illegible, ballot envelope is not signed, or a member is not in good standing.

Legal Basis

Association Election Procedures

Topic Tags

  • elections
  • ballot validity
  • rules

Question

Is the HOA obligated to try to count votes rather than looking for reasons to disqualify them?

Short Answer

Yes. If the election procedures state that every effort will be made to count votes to ensure fairness, the HOA must adhere to that standard.

Detailed Answer

The ALJ cited the HOA's own mission statement which promised to make every effort to count votes. Rejecting ballots for minor procedural issues (like lacking a postmark) when the voters are present and eligible violates this obligation.

Alj Quote

Respondent’s Nominating and Elections Committee Mission and Procedures state that 'every effort will be made to count as many votes as possible assuring a fair, open and honest election.' This was not the case at the July 5, 2022 Special Election.

Legal Basis

Nominating and Elections Committee Mission and Procedures

Topic Tags

  • elections
  • fairness
  • HOA obligations

Question

If my mailed ballot is rejected, can the HOA prevent me from voting in person at the meeting?

Short Answer

No. If you are present at the meeting and your absentee ballot is rejected, the HOA should allow you to cast a replacement ballot.

Detailed Answer

The ALJ found a violation when the HOA refused to accept in-person ballots from homeowners whose courier ballots were rejected. The decision noted that these ballots were not ineligible for any valid reason (like lack of standing).

Alj Quote

Respondent violated its Nominating and Elections Committee Mission and Procedures when the Elections Committee Chair… refused to accept in-person ballots at the meeting, notwithstanding that those ballots could not be considered ineligible ballots.

Legal Basis

Voting Rights / Election Procedures

Topic Tags

  • in-person voting
  • ballot rejection
  • elections

Question

Can the HOA enforce a voting deadline strictly against some owners but not others?

Short Answer

No. It is a violation to tell some owners they are 'too late' while allowing others to vote after the deadline.

Detailed Answer

The decision noted that while the Petitioners were told voting was closed at 6:00 PM and they were 'too late,' another homeowner was allowed to place a ballot in the box at 6:15 PM.

Alj Quote

Homeowner Jeffrey Knox personally handed in his ballot at the meeting by placing it in the ballot box at approximately 6:15 p.m., notwithstanding that voting supposedly closed at 6:00 p.m.

Legal Basis

Fair Election Practices

Topic Tags

  • discrimination
  • deadlines
  • fairness

Question

What penalties can an HOA face if they are found to have violated election rules?

Short Answer

The HOA may be ordered to refund the homeowner's filing fee and pay a civil penalty to the Department of Real Estate.

Detailed Answer

In this case, the ALJ ordered the HOA to pay $500 to the petitioners (reimbursement) and a $500 civil penalty to the state.

Alj Quote

IT IS FURTHER ORDERED that Respondent pay Petitioners their filing fee of $500.00… IT IS FURTHER ORDERED that… Respondent shall pay to the Department a civil penalty in the amount of $500.00

Legal Basis

A.R.S. § 32-2199

Topic Tags

  • penalties
  • fines
  • reimbursement

Question

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

Short Answer

The homeowner must prove the violation by a 'preponderance of the evidence,' meaning it is more likely than not that the violation occurred.

Detailed Answer

The decision defines the evidentiary standard required for the petitioners to win their case.

Alj Quote

Petitioners bear the burden of proof to establish that Respondent committed the alleged violation(s) by a preponderance of the evidence… 'A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.'

Legal Basis

A.R.S. § 41-1092.07(G)(2)

Topic Tags

  • legal standards
  • burden of proof
  • hearing process

Case

Docket No
23F-H002-REL
Case Title
Eileen Ahearn and Robert Barfield v. High Lonesome Ranch Estates Property Owners Association
Decision Date
2022-11-17
Alj Name
Sondra J. Vanella
Tribunal
OAH
Agency
ADRE

Questions

Question

Can my HOA refuse to count a ballot simply because it was delivered by a courier or neighbor rather than mailed?

Short Answer

No. If the HOA's procedures do not explicitly forbid couriers and it has been past practice, they cannot reject ballots solely for lacking a postmark.

Detailed Answer

The ALJ ruled that the HOA violated its procedures by rejecting ballots placed in the ballot box prior to the election (via courier) simply because they lacked postmarks. The judge noted that the custodian of the box did not believe it was a problem and there was no reason for homeowners to believe they couldn't do so.

Alj Quote

Respondent violated its Nominating and Elections Committee Mission and Procedures when the Elections Committee Chair… refused to count Petitioners’ and other homeowners’ ballots that had been placed in the ballot box prior to the election… There was also no reason for Petitioners or the other homeowners to believe that they could not place their ballots in the ballot box prior to the election and have those ballots counted.

Legal Basis

Nominating and Elections Committee Mission and Procedures

Topic Tags

  • elections
  • ballots
  • couriers
  • voting rights

Question

What are valid reasons for an HOA to consider a ballot ineligible or spoiled?

Short Answer

Valid reasons typically include incorrect vote counts, unconfirmed ownership, illegibility, unsigned envelopes, or lack of good standing.

Detailed Answer

The decision outlines specific criteria for invalidating ballots found in the HOA's procedures. Arbitrary reasons not listed in the governing documents (like lack of a postmark when not required) are not valid grounds for rejection.

Alj Quote

Reasons a ballot may not be valid include incorrect number of votes, lot ownership cannot be confirmed, ballot is illegible, ballot envelope is not signed, or a member is not in good standing.

Legal Basis

Association Election Procedures

Topic Tags

  • elections
  • ballot validity
  • rules

Question

Is the HOA obligated to try to count votes rather than looking for reasons to disqualify them?

Short Answer

Yes. If the election procedures state that every effort will be made to count votes to ensure fairness, the HOA must adhere to that standard.

Detailed Answer

The ALJ cited the HOA's own mission statement which promised to make every effort to count votes. Rejecting ballots for minor procedural issues (like lacking a postmark) when the voters are present and eligible violates this obligation.

Alj Quote

Respondent’s Nominating and Elections Committee Mission and Procedures state that 'every effort will be made to count as many votes as possible assuring a fair, open and honest election.' This was not the case at the July 5, 2022 Special Election.

Legal Basis

Nominating and Elections Committee Mission and Procedures

Topic Tags

  • elections
  • fairness
  • HOA obligations

Question

If my mailed ballot is rejected, can the HOA prevent me from voting in person at the meeting?

Short Answer

No. If you are present at the meeting and your absentee ballot is rejected, the HOA should allow you to cast a replacement ballot.

Detailed Answer

The ALJ found a violation when the HOA refused to accept in-person ballots from homeowners whose courier ballots were rejected. The decision noted that these ballots were not ineligible for any valid reason (like lack of standing).

Alj Quote

Respondent violated its Nominating and Elections Committee Mission and Procedures when the Elections Committee Chair… refused to accept in-person ballots at the meeting, notwithstanding that those ballots could not be considered ineligible ballots.

Legal Basis

Voting Rights / Election Procedures

Topic Tags

  • in-person voting
  • ballot rejection
  • elections

Question

Can the HOA enforce a voting deadline strictly against some owners but not others?

Short Answer

No. It is a violation to tell some owners they are 'too late' while allowing others to vote after the deadline.

Detailed Answer

The decision noted that while the Petitioners were told voting was closed at 6:00 PM and they were 'too late,' another homeowner was allowed to place a ballot in the box at 6:15 PM.

Alj Quote

Homeowner Jeffrey Knox personally handed in his ballot at the meeting by placing it in the ballot box at approximately 6:15 p.m., notwithstanding that voting supposedly closed at 6:00 p.m.

Legal Basis

Fair Election Practices

Topic Tags

  • discrimination
  • deadlines
  • fairness

Question

What penalties can an HOA face if they are found to have violated election rules?

Short Answer

The HOA may be ordered to refund the homeowner's filing fee and pay a civil penalty to the Department of Real Estate.

Detailed Answer

In this case, the ALJ ordered the HOA to pay $500 to the petitioners (reimbursement) and a $500 civil penalty to the state.

Alj Quote

IT IS FURTHER ORDERED that Respondent pay Petitioners their filing fee of $500.00… IT IS FURTHER ORDERED that… Respondent shall pay to the Department a civil penalty in the amount of $500.00

Legal Basis

A.R.S. § 32-2199

Topic Tags

  • penalties
  • fines
  • reimbursement

Question

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

Short Answer

The homeowner must prove the violation by a 'preponderance of the evidence,' meaning it is more likely than not that the violation occurred.

Detailed Answer

The decision defines the evidentiary standard required for the petitioners to win their case.

Alj Quote

Petitioners bear the burden of proof to establish that Respondent committed the alleged violation(s) by a preponderance of the evidence… 'A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.'

Legal Basis

A.R.S. § 41-1092.07(G)(2)

Topic Tags

  • legal standards
  • burden of proof
  • hearing process

Case

Docket No
23F-H002-REL
Case Title
Eileen Ahearn and Robert Barfield v. High Lonesome Ranch Estates Property Owners Association
Decision Date
2022-11-17
Alj Name
Sondra J. Vanella
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Eileen Ahearn (petitioner)
  • Robert Barfield (petitioner)
  • Randy Kling (witness / former board member)
    Testified for Petitioners. Also referred to as Randy Clling/Clean.
  • Claire Peachey (witness / election committee member)
    Testified for Petitioners. Custodian of the ballot box.
  • Joyce Green (witness)
    Testified for Petitioners.
  • Jeffrey Knox (witness)
    Testified for Petitioners. Property owner who received rejected ballots.

Respondent Side

  • Jason Smith (HOA attorney)
    Smith & Wamsley PLLC
  • Nancy Sakarelli (board member)
    High Lonesome Ranch Estates Property Owners Association
    Board President; appeared virtually.
  • Corinthia Pangalinan (former board president / board member)
    High Lonesome Ranch Estates Property Owners Association
    Subject of recall petition; responded to original complaint.
  • Becky Hilgart (Election Committee Chair / board member)
    High Lonesome Ranch Estates Property Owners Association
    Subject of recall petition. Also referred to as Rebecca Kilgart/Gilgart/Elart.
  • Tommy Smith (Election Committee Volunteer / property owner)
    Involved in denying votes.
  • Wally Oliday (board member)
    High Lonesome Ranch Estates Property Owners Association
    Subject of recall petition.
  • Amanda Miller (board member)
    High Lonesome Ranch Estates Property Owners Association
    Subject of recall petition.

Neutral Parties

  • Sondra J. Vanella (ALJ)
    Office of Administrative Hearings
  • Louis Dettorre (Commissioner)
    Arizona Department of Real Estate
  • Miranda Alvarez (Legal Secretary)
    OAH staff transmitting documents.
  • c. serrano (Administrative Staff)
    Staff transmitting documents.
  • AHansen (ADRE Staff)
    Arizona Department of Real Estate
  • vnunez (ADRE Staff)
    Arizona Department of Real Estate
  • djones (ADRE Staff)
    Arizona Department of Real Estate
  • labril (ADRE Staff)
    Arizona Department of Real Estate

Other Participants

  • Edna Barton (observer)
    On the line during the hearing.
  • Jill Burns (observer)
    Present in the hearing room.
  • John Kron (observer)
    Present in the hearing room.
  • Stacy (board director)
    Director mentioned in meeting agenda.
  • Deborah Bonesac (property owner)
    Referenced in testimony regarding past courier procedures.
  • Billy McFarland (board member)
    Subject of previous recall election.

James Iannuzo v. Moonrise at Starr Pass Community Association

Posted on by

Case Summary

Case ID 22F-H2221014-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-12-30
Administrative Law Judge Thomas Shedden
Outcome partial
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner James Iannuzo Counsel —
Respondent Moonrise at Starr Pass Community Association Counsel Jason E. Smith

Alleged Violations

ARIZ. REV. STAT. section 33-1243(H)(4)

Outcome Summary

The Petitioner prevailed by showing the Association violated ARIZ. REV. STAT. section 33-1243. The Association was ordered to refund the $500.00 filing fee. Petitioner's requests for voiding election results, assessing a civil penalty, and appointing an administrator were denied.

Key Issues & Findings

Violation of statutory procedure for board member removal concerning ballot tabulation after deadline.

The Association violated the statute by tabulating ballots for a recall election at the August 19, 2021 meeting, as those ballots were only valid for the canceled June 30, 2021 special meeting.

Orders: Respondent must pay the Petitioner his filing fee of $500.00 within thirty days of the Order. Other requested remedies (voiding results, assessing civil penalty, appointing administrator) were denied.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. § 33-1243
  • ARIZ. REV. STAT. § 33-1243(H)(4)
  • ARIZ. REV. STAT. § 33-1250(C)(3)

Analytics Highlights

Topics: HOA board recall, Ballot tabulation, Quorum dispute, Statutory violation, Filing fee refund
Additional Citations:

  • ARIZ. REV. STAT. § 33-1243
  • ARIZ. REV. STAT. § 33-1250
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 32-2199.01
  • ARIZ. ADMIN. CODE § R2-19-119
  • Whitmer v. Hilton Casitas Homeowners Ass'n
  • Gutierrez v. Industrial Commission of Arizona
  • State v. McFall

Video Overview

Audio Overview

Decision Documents

22F-H2221014-REL Decision – 935534.pdf

Uploaded 2026-01-23T17:41:19 (128.9 KB)

22F-H2221014-REL Decision – 945764.pdf

Uploaded 2026-01-23T17:41:24 (48.2 KB)

22F-H2221014-REL Decision – 949683.pdf

Uploaded 2026-01-23T17:41:26 (49.4 KB)

Questions

Question

What is the deadline for an HOA to hold a special meeting after receiving a petition to recall board members?

Short Answer

The meeting must be held within 30 days of receiving the petition.

Detailed Answer

According to Arizona statute, once an HOA receives a petition for the removal of a board member, it is legally required to call, notice, and actually hold the special meeting within a 30-day timeframe.

Alj Quote

The special meeting shall be called, noticed and held within thirty days after receipt of the petition.

Legal Basis

ARIZ. REV. STAT. § 33-1243(H)(4)(c)

Topic Tags

  • recall election
  • deadlines
  • board removal

Question

Can an HOA count ballots collected for a specific meeting date at a later, rescheduled meeting?

Short Answer

No, ballots are only valid for the specific meeting they were issued for.

Detailed Answer

An HOA cannot use ballots collected for a canceled meeting at a subsequent meeting held on a different date. The decision clarified that counting such ballots violates the statute because the ballots are strictly limited to the meeting for which they were originally valid.

Alj Quote

The Association’s decision to count the ballots at the August 19th meeting does not comply with section 33-1243 because those ballots were valid only for the June 30th meeting as evidenced by the ballots, the Notice, and the voting instructions.

Legal Basis

ARIZ. REV. STAT. § 33-1250(C)(3)

Topic Tags

  • voting
  • ballots
  • meetings

Question

Can an Administrative Law Judge (ALJ) void an HOA election or remove board members?

Short Answer

No, the ALJ does not have the authority to void election results or appoint administrators.

Detailed Answer

While an ALJ can determine if a violation occurred and levy penalties, they cannot order an election to be voided or appoint an independent administrator to oversee the HOA. These remedies are outside the tribunal's statutory scope.

Alj Quote

Mr. Iannuzo’s requests that the tribunal void the election results and that an oversight administrator be appointed have not been shown to be within the scope of the tribunal’s authority.

Legal Basis

ARIZ. REV. STAT. § 32-2199.02(A)

Topic Tags

  • legal remedies
  • ALJ authority
  • elections

Question

Is an HOA allowed to determine a quorum based solely on mail-in ballots before the meeting starts?

Short Answer

Likely no; the quorum should be determined based on eligible voters present at the time of the meeting.

Detailed Answer

The ALJ noted that the statute calls for a quorum to be determined based on the number of eligible voters at the time of the meeting, implying that canceling a meeting beforehand based solely on returned ballots is not supported by persuasive legal argument.

Alj Quote

The Association presented no persuasive legal argument or authority showing that in determining whether a quorum existed it was appropriate for the Association to use only the ballots returned by June 29th, rather than using the ballots and the members present at the meeting on June 30th.

Legal Basis

ARIZ. REV. STAT. § 33-1243(H)(4)(d)

Topic Tags

  • quorum
  • meetings
  • voting

Question

If I win my case against the HOA, can I get my filing fee refunded?

Short Answer

Yes, if the homeowner prevails, the HOA must be ordered to pay the filing fee.

Detailed Answer

If the Administrative Law Judge determines that the homeowner has prevailed in proving a violation, the law mandates that the Judge order the HOA to reimburse the petitioner for the filing fee.

Alj Quote

If the petitioner prevails, the administrative law judge shall order the respondent to pay to the petitioner the filing fee required by section 32-2199.01.

Legal Basis

ARIZ. REV. STAT. § 32-2199.02(A)

Topic Tags

  • fees
  • penalties
  • reimbursement

Question

Can an HOA fix a violation for missing the 30-day recall meeting deadline by holding the meeting later?

Short Answer

No, this specific violation cannot be cured after the fact.

Detailed Answer

Once the 30-day window for holding a recall meeting has passed, the violation is established and cannot be retroactively fixed by holding the meeting late.

Alj Quote

And although the Association did not conduct the required meeting within 30 days of receiving the recall petitions, this violation cannot be cured.

Legal Basis

ARIZ. REV. STAT. § 33-1243

Topic Tags

  • violations
  • compliance
  • deadlines

Case

Docket No
22F-H2221014-REL
Case Title
James Iannuzo vs. Moonrise at Starr Pass Community Association
Decision Date
2021-12-30
Alj Name
Thomas Shedden
Tribunal
OAH
Agency
ADRE

Questions

Question

What is the deadline for an HOA to hold a special meeting after receiving a petition to recall board members?

Short Answer

The meeting must be held within 30 days of receiving the petition.

Detailed Answer

According to Arizona statute, once an HOA receives a petition for the removal of a board member, it is legally required to call, notice, and actually hold the special meeting within a 30-day timeframe.

Alj Quote

The special meeting shall be called, noticed and held within thirty days after receipt of the petition.

Legal Basis

ARIZ. REV. STAT. § 33-1243(H)(4)(c)

Topic Tags

  • recall election
  • deadlines
  • board removal

Question

Can an HOA count ballots collected for a specific meeting date at a later, rescheduled meeting?

Short Answer

No, ballots are only valid for the specific meeting they were issued for.

Detailed Answer

An HOA cannot use ballots collected for a canceled meeting at a subsequent meeting held on a different date. The decision clarified that counting such ballots violates the statute because the ballots are strictly limited to the meeting for which they were originally valid.

Alj Quote

The Association’s decision to count the ballots at the August 19th meeting does not comply with section 33-1243 because those ballots were valid only for the June 30th meeting as evidenced by the ballots, the Notice, and the voting instructions.

Legal Basis

ARIZ. REV. STAT. § 33-1250(C)(3)

Topic Tags

  • voting
  • ballots
  • meetings

Question

Can an Administrative Law Judge (ALJ) void an HOA election or remove board members?

Short Answer

No, the ALJ does not have the authority to void election results or appoint administrators.

Detailed Answer

While an ALJ can determine if a violation occurred and levy penalties, they cannot order an election to be voided or appoint an independent administrator to oversee the HOA. These remedies are outside the tribunal's statutory scope.

Alj Quote

Mr. Iannuzo’s requests that the tribunal void the election results and that an oversight administrator be appointed have not been shown to be within the scope of the tribunal’s authority.

Legal Basis

ARIZ. REV. STAT. § 32-2199.02(A)

Topic Tags

  • legal remedies
  • ALJ authority
  • elections

Question

Is an HOA allowed to determine a quorum based solely on mail-in ballots before the meeting starts?

Short Answer

Likely no; the quorum should be determined based on eligible voters present at the time of the meeting.

Detailed Answer

The ALJ noted that the statute calls for a quorum to be determined based on the number of eligible voters at the time of the meeting, implying that canceling a meeting beforehand based solely on returned ballots is not supported by persuasive legal argument.

Alj Quote

The Association presented no persuasive legal argument or authority showing that in determining whether a quorum existed it was appropriate for the Association to use only the ballots returned by June 29th, rather than using the ballots and the members present at the meeting on June 30th.

Legal Basis

ARIZ. REV. STAT. § 33-1243(H)(4)(d)

Topic Tags

  • quorum
  • meetings
  • voting

Question

If I win my case against the HOA, can I get my filing fee refunded?

Short Answer

Yes, if the homeowner prevails, the HOA must be ordered to pay the filing fee.

Detailed Answer

If the Administrative Law Judge determines that the homeowner has prevailed in proving a violation, the law mandates that the Judge order the HOA to reimburse the petitioner for the filing fee.

Alj Quote

If the petitioner prevails, the administrative law judge shall order the respondent to pay to the petitioner the filing fee required by section 32-2199.01.

Legal Basis

ARIZ. REV. STAT. § 32-2199.02(A)

Topic Tags

  • fees
  • penalties
  • reimbursement

Question

Can an HOA fix a violation for missing the 30-day recall meeting deadline by holding the meeting later?

Short Answer

No, this specific violation cannot be cured after the fact.

Detailed Answer

Once the 30-day window for holding a recall meeting has passed, the violation is established and cannot be retroactively fixed by holding the meeting late.

Alj Quote

And although the Association did not conduct the required meeting within 30 days of receiving the recall petitions, this violation cannot be cured.

Legal Basis

ARIZ. REV. STAT. § 33-1243

Topic Tags

  • violations
  • compliance
  • deadlines

Case

Docket No
22F-H2221014-REL
Case Title
James Iannuzo vs. Moonrise at Starr Pass Community Association
Decision Date
2021-12-30
Alj Name
Thomas Shedden
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • James Iannuzo (petitioner)
    Appeared and testified on his own behalf

Respondent Side

  • Jason E. Smith (respondent attorney)
    Smith & Wamsley, PLLC
    Counsel for Respondent

Neutral Parties

  • Thomas Shedden (ALJ)
    Office of Administrative Hearings
  • Louis Dettorre (Commissioner)
    Arizona Department of Real Estate
  • Miranda Alvarez (clerk)
    Transmitted Decision
  • c. serrano (clerk)
    Transmitted Advisements
  • AHansen (staff)
    Arizona Department of Real Estate
    Recipient of transmission (Attn)
  • djones (staff)
    Arizona Department of Real Estate
    Recipient of transmission (Attn)
  • DGardner (staff)
    Arizona Department of Real Estate
    Recipient of transmission (Attn)
  • vnunez (staff)
    Arizona Department of Real Estate
    Recipient of transmission (Attn)