Case Summary
| Case ID | 08F-H088013-BFS |
|---|---|
| Agency | Department of Fire, Building and Life Safety |
| Tribunal | OAH |
| Decision Date | 2008-06-13 |
| Administrative Law Judge | Thomas Shedden |
| Outcome | yes |
| Filing Fees Refunded | $550.00 |
| Civil Penalties | $0.00 |
Parties & Counsel
| Petitioner | Mike Sawyer | Counsel | — |
|---|---|---|---|
| Respondent | Terramar Homeowners Association | Counsel | R. Corey Hill |
Alleged Violations
A.R.S. § 33-1813
Outcome Summary
The Administrative Law Judge ruled in favor of the Petitioner, finding that the recall petition contained sufficient signatures (305 out of 1550 members) to trigger an election under A.R.S. § 33-1813. The HOA's defenses regarding the validity of the signatures were rejected because they offered no actual proof of the alleged defects (e.g., forgeries, ineligible signers) aside from hearsay regarding one individual.
Key Issues & Findings
Failure to hold recall election
Petitioner alleged the HOA violated statutes by failing to conduct a recall election upon receipt of a petition signed by more than 10% of the members. The HOA argued the petition was defective due to forged signatures, lack of solicitor verification, and other procedural issues but failed to provide sufficient evidence to support these affirmative defenses.
Orders: The HOA is ordered to comply with A.R.S. § 33-1813 by holding a recall election for the four named board members within 30 days and to refund the Petitioner's $550.00 filing fee.
Filing fee: $550.00, Fee refunded: Yes
Disposition: petitioner_win
- A.R.S. § 33-1813
- A.R.S. § 41-2198
- A.R.S. § 16-315
Decision Documents
08F-H088013-BFS Decision – 192785.pdf
Briefing Document: Sawyer v. Terramar Homeowners Association (No. 08F-H088013-BFS)
Executive Summary
This document provides a comprehensive synthesis of the administrative hearing decision regarding the dispute between Petitioner Mike Sawyer and Respondent Terramar Homeowners Association (HOA). The central issue was the HOA’s failure to conduct a recall election for four board members despite receiving a petition signed by over 10% of the membership.
The Administrative Law Judge (ALJ) ruled in favor of Mike Sawyer, finding that the HOA failed to provide evidence supporting its claims that the petition was legally or procedurally defective. Consequently, the HOA was ordered to hold the recall election within 30 days and reimburse the petitioner’s filing fee.
Case Overview
• Petitioner: Mike Sawyer
• Respondent: Terramar Homeowners Association
• Targeted Board Members: Ben Dass, Don Flickinger, Keith Miller, and David Mosienko.
• Primary Allegation: The HOA violated A.R.S. § 33-1813 by refusing to hold a recall election after being presented with a valid petition.
Arguments and Affirmative Defenses
The HOA contended that the petition was invalid based on several alleged procedural and legal defects. Their defense relied on both specific allegations and broader public policy arguments.
Alleged Petition Defects
The HOA asserted the following issues rendered the signatures invalid:
• Solicitation Issues: Failure to identify those soliciting signatures and failure to verify that solicitors were HOA residents.
• Petitioner Identity: Failure to properly identify the petitioner.
• Signatory Eligibility: Inclusion of signatures from renters, homeowners ineligible to vote (due to CC&R violations), and signatures that appeared to be forged.
• Physical Evidence: Claims that some street names were misspelled and that multiple entries appeared to be written in the same hand or the same ink color.
Public Policy Defense
The HOA argued that, as a matter of public policy, the petition should conform to state election laws found in A.R.S. Title 16.
Evidence and Testimony Analysis
The tribunal examined the validity of the petition through testimony from both parties and a review of the physical evidence.
Quantitative Analysis of the Petition
• Total Membership: Approximately 1,550 members.
• Statutory Requirement: A.R.S. § 33-1813 requires a petition signed by at least 10% of the members (approximately 155 signatures) to trigger a recall.
• Petition Count: The submitted petition contained 305 signatures, nearly double the required threshold.
Witness Testimonies
• Mike Sawyer (Petitioner): Testified that he was a homeowner who signed and solicited signatures. He admitted he did not sign the pages he solicited because he did not believe it was a requirement.
• Ben Dass (HOA President): Testified that the HOA hired an independent lawyer with private funds to investigate the petition. He claimed to have spoken with renters and individuals who denied signing, though he provided no specific details or counts of these instances.
• Dr. Keith Miller (HOA Board Member): Expressed suspicion over misspelled street names and ink colors. While he alleged many signatures were invalid due to CC&R violations, he provided no supporting details or specific names. Notably, he had previously testified in a different court that there were 180 valid signatures, a statement he dismissed at this hearing as “guessing.”
• Rick Card (Rebuttal Witness): Contradicted the HOA’s claim regarding a specific signatory, Lawrence “Hap” Flayter. While the HOA provided a letter from Mr. Flayter stating he did not recall signing, Mr. Card testified that he personally witnessed Mr. Flayter sign the petition.
Legal Conclusions
The ALJ’s decision was based on the application of Arizona statutes and the failure of the HOA to meet its burden of proof regarding its affirmative defenses.
Application of Law
1. Jurisdiction: The Office of Administrative Hearings has the authority to determine if a planned community violated A.R.S. Title 33.
2. Burden of Proof: The HOA bore the burden of proving its affirmative defenses regarding the petition’s defects. The standard of proof was a “preponderance of the evidence.”
3. Inapplicability of Title 16: The ALJ rejected the HOA’s public policy argument, noting there was no evidence that the HOA’s governing documents (Articles of Incorporation, Bylaws, or CC&Rs) required petitions to conform to state election laws (Title 16).
Findings on Credibility and Evidence
• Lack of Specificity: The HOA failed to provide the names or the specific number of signatures they believed were forged or invalid.
• Suspect Credibility: Dr. Miller’s testimony was deemed suspect because he based his suspicions on ink colors and handwriting while simultaneously admitting he had only seen copies, not the original petition.
• Hearsay: The letter and hearsay testimony regarding Mr. Flayter were given “no appreciable weight” because he did not testify and was not subject to cross-examination.
Final Order
The Administrative Law Judge ruled that Mike Sawyer sustained his burden of proof and was the prevailing party. The following orders were issued:
• Recall Election: Terramar HOA must comply with A.R.S. § 33-1813 and hold a recall election for board members Ben Dass, Don Flickinger, Keith Miller, and David Mosienko within 30 days of the effective date of the order (June 13, 2008).
• Financial Restitution: Terramar HOA must pay Mike Sawyer $550.00 for his filing fee within 30 days.
• Finality: This order constitutes the final administrative decision and is enforceable through contempt of court proceedings.
Study Guide: Sawyer v. Terramar Homeowners Association
This study guide provides a comprehensive review of the administrative law case between Mike Sawyer and the Terramar Homeowners Association. It examines the legal requirements for homeowner association (HOA) recall elections, the burden of proof in administrative hearings, and the specific findings of fact that led to the judicial order.
Part 1: Short Answer Quiz
Instructions: Answer the following questions based on the provided administrative decision. Each answer should be between two and three sentences.
1. What was the central allegation made by the petitioner, Mike Sawyer, against the Terramar Homeowners Association?
2. Which specific individuals were the targets of the recall petition submitted by the homeowners?
3. What procedural and legal defects did the HOA allege rendered the petition invalid in its initial response?
4. How did the HOA attempt to use A.R.S. Title 16 to defend its decision not to hold the election?
5. Why did HOA President Ben Dass use private funds rather than HOA funds to hire an independent lawyer for handwriting analysis?
6. What was the nature of the dispute regarding Lawrence “Hap” Flayter’s signature on the petition?
7. What specific suspicions did Dr. Keith Miller raise regarding the physical appearance of the petition pages?
8. According to the Conclusions of Law, what is the specific jurisdictional limit of the Office of Administrative Hearings in disputes involving planned communities?
9. How did the Administrative Law Judge determine that the petition met the statutory threshold for a recall election?
10. What were the three specific requirements mandated by the Administrative Law Judge’s final order?
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Part 2: Answer Key
1. Mike Sawyer alleged that the Terramar Homeowners Association violated A.R.S. § 33-1813 by failing to hold a recall election for four board members after being presented with a valid petition. He filed this petition with the Arizona Department of Fire, Building and Life Safety on March 27, 2008.
2. The petition specifically called for the removal of board members Ben Dass, Don Flickinger, Keith Miller, and David Mosienko. These individuals were identified in the petition as the subjects of the requested recall election.
3. The HOA claimed the petition failed to identify those soliciting signatures or verify they were residents, and failed to identify the petitioner. Additionally, they alleged the petition included invalid signatures from renters, signatures from homeowners ineligible to vote, and forged signatures.
4. The HOA asserted that public policy, as supported by the election laws in A.R.S. Title 16, should be applied to the petition process. However, the Judge ruled Title 16 was inapplicable because the HOA’s governing documents did not require petitions to conform to state election laws.
5. Ben Dass hired an independent lawyer with private funds because he wanted to avoid potential allegations of misusing HOA funds. This lawyer was retained to oversee a handwriting analysis of the signatures on the petition.
6. The HOA provided a letter from Mr. Flayter stating he did not recall signing the petition and did not want to be included. In contrast, witness Rick Card provided rebuttal testimony claiming he personally saw Mr. Flayter sign the document.
7. Dr. Miller testified that he was suspicious because some street names were misspelled and several entries appeared to be written by the same hand. He also noted that many signatures were written in the same color of ink, though he admitted he had only viewed copies of the petition.
8. The Office of Administrative Hearings has limited jurisdiction to determine if a homeowners association violated A.R.S. Title 33, Chapter 9 or 16, or the association’s specific governing documents. These documents include the Articles of Incorporation, Bylaws, and Covenants, Conditions, and Restrictions (CC & Rs).
9. The Judge found that the petition contained 305 signatures, which exceeded the 10% requirement for a recall election under A.R.S. § 33-1813. This calculation was based on Dr. Miller’s testimony that there are approximately 1,550 members in the HOA.
10. The order required that Mike Sawyer be deemed the prevailing party and that the HOA must hold a recall election for the four specified board members within 30 days. Furthermore, the HOA was ordered to reimburse Sawyer for his $550.00 filing fee.
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Part 3: Essay Questions
Instructions: Use the case facts and legal principles described in the source text to develop comprehensive responses to the following prompts.
1. The Burden of Proof and Affirmative Defenses: Analyze the role of the “preponderance of the evidence” standard in this case. How did the HOA’s failure to provide specific details—such as the names of allegedly forged signatures or the number of ineligible voters—impact the Judge’s ruling on their affirmative defenses?
2. Credibility of Testimony: Evaluate the Judge’s assessment of witness credibility, specifically regarding Dr. Keith Miller and Ben Dass. Why was Dr. Miller’s testimony about the color of the ink on the petition used to undermine his overall credibility?
3. Hearsay and Evidence Weight: Discuss why the letter from Lawrence “Hap” Flayter and the hearsay testimony regarding his signature were given “no appreciable weight” by the Administrative Law Judge. Compare this to the weight given to the live, cross-examined testimony of Rick Card.
4. Statutory Interpretation vs. Public Policy: The Respondent argued that A.R.S. Title 16 (Election Laws) should apply to HOA recall petitions based on public policy. Explain the Judge’s reasoning for rejecting this argument and why the HOA’s own governing documents are the primary authority in such matters.
5. Administrative Remedies and Enforcement: Examine the final orders issued by the ALJ. What is the significance of the 30-day timeline, the reimbursement of the filing fee, and the statement that the order is enforceable through contempt of court proceedings?
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Part 4: Glossary of Key Terms
Definition
A.R.S. § 33-1813
The Arizona Revised Statute that governs the process and requirements for the removal of board members in a planned community.
A.R.S. § 41-2198
The statutory authority that allows the Office of Administrative Hearings to conduct evidentiary hearings in disputes between members and planned communities.
Administrative Law Judge (ALJ)
An official who presides over an administrative hearing, evaluates evidence and testimony, and issues a decision and order.
Affirmative Defense
A fact or set of facts other than those alleged by the petitioner which, if proven by the respondent, defeats or mitigates the legal consequences of the respondent’s otherwise unlawful conduct.
CC & Rs
Covenants, Conditions, and Restrictions; the governing documents that outline the rules and limitations for property owners within a planned community.
Hearsay
An out-of-court statement offered in court to prove the truth of the matter asserted; in this case, the judge gave such evidence little weight because the declarant was not subject to cross-examination.
Petitioner
The party who initiates a legal action or appeal; in this case, Mike Sawyer.
Preponderance of the Evidence
The standard of proof in civil and administrative cases, meaning that the claim is more likely to be true than not true.
Prevailing Party
The party in a lawsuit who successfully wins the case or obtains the relief sought; here, the Petitioner.
Respondent
The party against whom a petition is filed; in this case, the Terramar Homeowners Association.
Study Guide: Sawyer v. Terramar Homeowners Association
This study guide provides a comprehensive review of the administrative law case between Mike Sawyer and the Terramar Homeowners Association. It examines the legal requirements for homeowner association (HOA) recall elections, the burden of proof in administrative hearings, and the specific findings of fact that led to the judicial order.
Part 1: Short Answer Quiz
Instructions: Answer the following questions based on the provided administrative decision. Each answer should be between two and three sentences.
1. What was the central allegation made by the petitioner, Mike Sawyer, against the Terramar Homeowners Association?
2. Which specific individuals were the targets of the recall petition submitted by the homeowners?
3. What procedural and legal defects did the HOA allege rendered the petition invalid in its initial response?
4. How did the HOA attempt to use A.R.S. Title 16 to defend its decision not to hold the election?
5. Why did HOA President Ben Dass use private funds rather than HOA funds to hire an independent lawyer for handwriting analysis?
6. What was the nature of the dispute regarding Lawrence “Hap” Flayter’s signature on the petition?
7. What specific suspicions did Dr. Keith Miller raise regarding the physical appearance of the petition pages?
8. According to the Conclusions of Law, what is the specific jurisdictional limit of the Office of Administrative Hearings in disputes involving planned communities?
9. How did the Administrative Law Judge determine that the petition met the statutory threshold for a recall election?
10. What were the three specific requirements mandated by the Administrative Law Judge’s final order?
——————————————————————————–
Part 2: Answer Key
1. Mike Sawyer alleged that the Terramar Homeowners Association violated A.R.S. § 33-1813 by failing to hold a recall election for four board members after being presented with a valid petition. He filed this petition with the Arizona Department of Fire, Building and Life Safety on March 27, 2008.
2. The petition specifically called for the removal of board members Ben Dass, Don Flickinger, Keith Miller, and David Mosienko. These individuals were identified in the petition as the subjects of the requested recall election.
3. The HOA claimed the petition failed to identify those soliciting signatures or verify they were residents, and failed to identify the petitioner. Additionally, they alleged the petition included invalid signatures from renters, signatures from homeowners ineligible to vote, and forged signatures.
4. The HOA asserted that public policy, as supported by the election laws in A.R.S. Title 16, should be applied to the petition process. However, the Judge ruled Title 16 was inapplicable because the HOA’s governing documents did not require petitions to conform to state election laws.
5. Ben Dass hired an independent lawyer with private funds because he wanted to avoid potential allegations of misusing HOA funds. This lawyer was retained to oversee a handwriting analysis of the signatures on the petition.
6. The HOA provided a letter from Mr. Flayter stating he did not recall signing the petition and did not want to be included. In contrast, witness Rick Card provided rebuttal testimony claiming he personally saw Mr. Flayter sign the document.
7. Dr. Miller testified that he was suspicious because some street names were misspelled and several entries appeared to be written by the same hand. He also noted that many signatures were written in the same color of ink, though he admitted he had only viewed copies of the petition.
8. The Office of Administrative Hearings has limited jurisdiction to determine if a homeowners association violated A.R.S. Title 33, Chapter 9 or 16, or the association’s specific governing documents. These documents include the Articles of Incorporation, Bylaws, and Covenants, Conditions, and Restrictions (CC & Rs).
9. The Judge found that the petition contained 305 signatures, which exceeded the 10% requirement for a recall election under A.R.S. § 33-1813. This calculation was based on Dr. Miller’s testimony that there are approximately 1,550 members in the HOA.
10. The order required that Mike Sawyer be deemed the prevailing party and that the HOA must hold a recall election for the four specified board members within 30 days. Furthermore, the HOA was ordered to reimburse Sawyer for his $550.00 filing fee.
——————————————————————————–
Part 3: Essay Questions
Instructions: Use the case facts and legal principles described in the source text to develop comprehensive responses to the following prompts.
1. The Burden of Proof and Affirmative Defenses: Analyze the role of the “preponderance of the evidence” standard in this case. How did the HOA’s failure to provide specific details—such as the names of allegedly forged signatures or the number of ineligible voters—impact the Judge’s ruling on their affirmative defenses?
2. Credibility of Testimony: Evaluate the Judge’s assessment of witness credibility, specifically regarding Dr. Keith Miller and Ben Dass. Why was Dr. Miller’s testimony about the color of the ink on the petition used to undermine his overall credibility?
3. Hearsay and Evidence Weight: Discuss why the letter from Lawrence “Hap” Flayter and the hearsay testimony regarding his signature were given “no appreciable weight” by the Administrative Law Judge. Compare this to the weight given to the live, cross-examined testimony of Rick Card.
4. Statutory Interpretation vs. Public Policy: The Respondent argued that A.R.S. Title 16 (Election Laws) should apply to HOA recall petitions based on public policy. Explain the Judge’s reasoning for rejecting this argument and why the HOA’s own governing documents are the primary authority in such matters.
5. Administrative Remedies and Enforcement: Examine the final orders issued by the ALJ. What is the significance of the 30-day timeline, the reimbursement of the filing fee, and the statement that the order is enforceable through contempt of court proceedings?
——————————————————————————–
Part 4: Glossary of Key Terms
Definition
A.R.S. § 33-1813
The Arizona Revised Statute that governs the process and requirements for the removal of board members in a planned community.
A.R.S. § 41-2198
The statutory authority that allows the Office of Administrative Hearings to conduct evidentiary hearings in disputes between members and planned communities.
Administrative Law Judge (ALJ)
An official who presides over an administrative hearing, evaluates evidence and testimony, and issues a decision and order.
Affirmative Defense
A fact or set of facts other than those alleged by the petitioner which, if proven by the respondent, defeats or mitigates the legal consequences of the respondent’s otherwise unlawful conduct.
CC & Rs
Covenants, Conditions, and Restrictions; the governing documents that outline the rules and limitations for property owners within a planned community.
Hearsay
An out-of-court statement offered in court to prove the truth of the matter asserted; in this case, the judge gave such evidence little weight because the declarant was not subject to cross-examination.
Petitioner
The party who initiates a legal action or appeal; in this case, Mike Sawyer.
Preponderance of the Evidence
The standard of proof in civil and administrative cases, meaning that the claim is more likely to be true than not true.
Prevailing Party
The party in a lawsuit who successfully wins the case or obtains the relief sought; here, the Petitioner.
Respondent
The party against whom a petition is filed; in this case, the Terramar Homeowners Association.
Case Participants
Petitioner Side
- Mike Sawyer (petitioner)
Appeared on his own behalf; homeowner - Rick Card (witness)
Solicited signatures on the petition
Respondent Side
- R. Corey Hill (attorney)
The Cavanaugh Law Firm, P.A.
Attorney for Terramar Homeowners Association - Ben Dass (board member)
Terramar Homeowners Association
President of the board; witness - Keith Miller (board member)
Terramar Homeowners Association
Witness - Don Flickinger (board member)
Terramar Homeowners Association
Subject to recall - David Mosienko (board member)
Terramar Homeowners Association
Subject to recall
Neutral Parties
- Thomas Shedden (ALJ)
Office of Administrative Hearings - Lawrence Flayter (resident)
Also referred to as Hap Flayter; signed letter stating he did not sign petition - Robert Barger (Director)
Department of Fire, Building and Life Safety
Listed on mailing list - Debra Blake (staff)
Department of Fire, Building and Life Safety
Listed on mailing list
