Case Summary
| Case ID | 18F-H1818033-REL |
|---|---|
| Agency | ADRE |
| Tribunal | OAH |
| Decision Date | 2018-06-26 |
| Administrative Law Judge | Tammy L. Eigenheer |
| Outcome | partial |
| Filing Fees Refunded | $500.00 |
| Civil Penalties | $0.00 |
Parties & Counsel
| Petitioner | Annette Cohen | Counsel | — |
|---|---|---|---|
| Respondent | CBS 136 Homeowners Association | Counsel | Brian E. Ditsch |
Alleged Violations
A.R.S. § 33-1258(A)
Outcome Summary
Petitioner was deemed the prevailing party because Respondent established a technical violation of A.R.S. § 33-1258(A) by failing to provide requested documents within the 10-day limit. However, the Administrative Law Judge found a civil penalty was not appropriate given the circumstances.
Key Issues & Findings
Failure to provide requested association records within 10 business days
Petitioner requested sign-in sheets for the January 10, 2018, and February 15, 2018, CBS HOA meetings. Respondent acknowledged a technical violation of the statute by failing to provide the requested documents within the required 10-day timeframe, although they were ultimately provided prior to the hearing.
Orders: Respondent must comply with the applicable provisions of A.R.S. § 33-1258(A) in the future, and pay Petitioner her filing fee of $500.00 within thirty (30) days.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
- A.R.S. § 33-1258
- A.R.S. § 33-1258(A)
Analytics Highlights
- A.R.S. § 32-2199 et seq.
- A.R.S. § 33-1258
- A.A.C. R2-19-119
- A.R.S. § 33-1258(A)
- A.R.S. §32-2199.02(B)
- A.R.S. § 32-2199.04
- A.R.S. § 41-1092.09
Video Overview
Audio Overview
Decision Documents
18F-H1818033-REL Decision – 642888.pdf
18F-H1818033-REL Decision – 655537.pdf
Administrative Hearing Briefing: Cohen v. CBS 136 Homeowners Association
Executive Summary
This document synthesizes the findings and decision from the administrative hearing case Annette Cohen v. CBS 136 Homeowners Association (No. 18F-H1818033-REL). The core of the dispute was the Homeowners Association’s (HOA) failure to provide requested documents—specifically, meeting sign-in sheets—to a member, Annette Cohen, within the ten-business-day timeframe mandated by Arizona statute A.R.S. § 33-1258.
At the hearing, the Respondent HOA acknowledged this “technical violation,” attributing the delay to operational difficulties arising from a recent change in management companies. The Petitioner, Ms. Cohen, argued the delay was intentional and warranted a civil penalty.
The Administrative Law Judge, Tammy L. Eigenheer, found that the HOA did violate the statute. In the final order, the Judge declared Ms. Cohen the prevailing party and mandated future compliance by the HOA. While a civil penalty was deemed inappropriate under the circumstances, the Judge ordered the HOA to reimburse Ms. Cohen’s $500 filing fee.
Case Overview
Entity / Individual
Petitioner
Annette Cohen
Respondent
CBS 136 Homeowners Association (CBS)
Respondent’s Counsel
Brian Ditsch, Sacks Tierney P.A.
Respondent’s Mgmt. Co.
Key Witness
Susan Rubin (PRM)
Adjudicating Body
Office of Administrative Hearings, Phoenix, Arizona
Administrative Law Judge
Tammy L. Eigenheer
Case Number
18F-H1818033-REL
Hearing Date
June 6, 2018
Decision Date
June 26, 2018
Chronology of the Dispute
The dispute centered on two separate sets of document requests made by Petitioner Annette Cohen.
• Request 1 (January 10 Meeting):
◦ On or about Jan. 10, 2018: Ms. Cohen requested the sign-in sheets from the annual meeting held on this date.
◦ Jan. 2018: The management company PRM took over management of the CBS 136 HOA.
◦ Feb. 15, 2018: After more than a month, and after two scheduled review appointments were cancelled by the management company, the sign-in sheets were finally provided to Ms. Cohen by email.
• Request 2 (February 15 Meeting):
◦ Feb. 19, 2018: Ms. Cohen requested the sign-in sheets from the February 15, 2018 HOA meeting. Receipt of this request was acknowledged by PRM.
◦ Feb. 21, 26, 27 & March 5, 2018: Ms. Cohen made repeated follow-up requests for the same information.
• Formal Proceedings:
◦ March 9, 2018: Ms. Cohen filed a formal petition with the Arizona Department of Real Estate.
◦ April 10, 2018: The Respondent HOA filed an answer denying all allegations.
◦ June 6, 2018: An administrative hearing was held. The documents had been provided to Ms. Cohen at some point prior to this hearing.
◦ June 26, 2018: The Administrative Law Judge issued the final decision.
Core Allegation and Legal Framework
Petitioner’s Allegation
Annette Cohen alleged that the CBS 136 Homeowners Association violated A.R.S. Title 33, Chapter 16, Section 33-1258 by failing to provide association records for review and copying within the statutorily required timeframe.
Governing Statute: A.R.S. § 33-1258(A)
The legal basis for the petition is Arizona Revised Statute § 33-1258(A), which governs a member’s right to access association records. The statute states, in relevant part:
“all financial and other records of the association shall be made reasonably available for examination by any member… The association shall have ten business days to fulfill a request for examination. On request for purchase of copies of records by any member… the association shall have ten business days to provide copies of the requested records. An association may charge a fee for making copies of not more than fifteen cents per page.”
The petitioner bears the burden of proving a violation by a preponderance of the evidence, defined as evidence that “shows that the fact sought to be proved is more probable than not.”
Arguments and Evidence Presented at Hearing
Once the Respondent acknowledged the delay, the hearing focused solely on determining the appropriate remedy.
Petitioner’s Position (Annette Cohen)
• Intentional Negligence: Ms. Cohen argued that the Respondent “intentionally ignored her request for the documents.”
• Request for Penalty: Based on the belief of intentional neglect, she asserted that a civil penalty was an appropriate remedy.
• Unreasonable Delay: She noted that the documents “could have easily been emailed to her within the 10 day deadline,” but that the HOA’s management company did not present this as an option until after the deadline had already passed.
Respondent’s Position (CBS 136 HOA)
• Acknowledged Violation: At the June 6, 2018 hearing, the Respondent “acknowledged that the requested documents were not provided within the 10 day timeframe set forth in statute.”
• Mitigating Circumstances: The defense centered on testimony from Susan Rubin of the management company, PRM. Ms. Rubin testified to the following:
◦ No requests are “ever purposefully ignored.”
◦ PRM had only taken over management of the HOA in January 2018.
◦ At the time of the requests, PRM was “still getting documents from the former management company.”
◦ The delay was not due to ignoring the request, but because it “took a little longer than expected to provide the documents.”
Administrative Law Judge’s Decision and Order
Findings and Conclusions
• Violation Established: The Judge concluded there was “no dispute that Respondent failed to provide the requested documents within 10 days.” Therefore, the Petitioner “established by a preponderance of the evidence that Respondent violated A.R.S. § 33-1258(A).”
• Rejection of Civil Penalty: Despite the Petitioner’s argument, the Administrative Law Judge did “not find such a penalty to be appropriate given the circumstances in this matter.”
Final Order
The Judge issued a three-part order binding on the parties:
1. Prevailing Party: The Petitioner, Annette Cohen, is “deemed the prevailing party.”
2. Future Compliance: The Respondent, CBS 136 Homeowners Association, is ordered to “comply with the applicable provisions of A.R.S. § 33-1258(A) in the future.”
3. Reimbursement of Filing Fee: The Respondent must pay the Petitioner her filing fee of $500.00 directly to her within thirty (30) days of the order.
Study Guide: Cohen v. CBS 136 Homeowners Association
Short-Answer Quiz
Instructions: Please answer the following ten questions in 2-3 complete sentences, using only the information provided in the case documents.
1. Who were the primary parties involved in case No. 18F-H1818033-REL, and what were their respective roles?
2. What specific documents did the Petitioner, Annette Cohen, request from the Respondent?
3. According to the petition, what was the core legal violation alleged by Ms. Cohen against the Homeowners Association?
4. What was the timeline for the Respondent’s failure to produce the sign-in sheets from the January 10, 2018 meeting?
5. How did the Respondent initially respond to the petition after it was filed with the Arizona Department of Real Estate?
6. What admission did the Respondent make at the June 6, 2018 hearing?
7. What was the Respondent’s explanation for the delay in providing the requested documents to the Petitioner?
8. What remedy did the Petitioner argue was appropriate for the violation, and on what grounds?
9. What legal standard of proof was the Petitioner required to meet, and did the judge find that she met it?
10. What were the three components of the final Order issued by the Administrative Law Judge?
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Answer Key
1. The primary parties were Annette Cohen, who was the Petitioner, and the CBS 136 Homeowners Association, which was the Respondent. The Petitioner is the party who filed the complaint, and the Respondent is the party against whom the complaint was filed.
2. The Petitioner requested the sign-in sheets from two separate meetings. She requested the sign-in sheets from the January 10, 2018 annual meeting and the sign-in sheets from the February 15, 2018 CBS HOA meeting.
3. The core legal violation alleged by Ms. Cohen was that the Respondent had violated Arizona Revised Statutes (A.R.S.) Title 33, Chapter 16, Section 33-1258. This statute requires homeowner associations to provide requested records to members for examination or copying within a ten-business-day timeframe.
4. Ms. Cohen requested the January 10, 2018 sign-in sheets on or about that same date (January 10). She did not receive them via email until February 15, 2018, which is well beyond the ten-business-day limit stipulated by law.
5. On or about April 10, 2018, the Respondent filed an answer to the petition. In this official response, the Respondent denied all of the allegations made by the Petitioner.
6. At the June 6, 2018 hearing, the Respondent acknowledged its failure to comply with the law. The Respondent admitted that the requested documents were not provided within the 10-day timeframe set forth in the statute, constituting a technical violation.
7. The Respondent, through the testimony of Susan Rubin from its management company PRM, explained the delay was not intentional. Ms. Rubin stated that PRM had just taken over management of the HOA in January 2018 and was still in the process of getting documents from the former management company.
8. The Petitioner argued that a civil penalty was the appropriate remedy. She contended that the Respondent intentionally ignored her requests and could have easily emailed the documents within the deadline, but failed to do so until after the deadline had passed.
9. The Petitioner had the burden of proving her case by a “preponderance of the evidence.” The judge found that she successfully met this standard because there was no dispute that the Respondent failed to provide the documents within the required 10 days.
10. The three components of the final Order were: 1) The Petitioner, Annette Cohen, was deemed the prevailing party; 2) The Respondent was ordered to comply with A.R.S. § 33-1258(A) in the future; and 3) The Respondent was ordered to pay the Petitioner’s $500.00 filing fee within thirty days.
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Essay Questions
Instructions: The following questions are designed for longer, essay-format responses. Use the provided case documents to formulate a comprehensive analysis.
1. Analyze the arguments presented by both the Petitioner and the Respondent regarding the appropriate remedy for the acknowledged statutory violation. Evaluate the mitigating circumstances offered by the Respondent and discuss why the Administrative Law Judge may have found them persuasive enough to deny a civil penalty while still finding in favor of the Petitioner.
2. Discuss the legal framework governing disputes between property owners and condominium associations in Arizona as outlined in the case documents. Explain the roles of the Arizona Department of Real Estate and the Office of Administrative Hearings, and detail the specific requirements of A.R.S. § 33-1258(A).
3. Examine the concept of “preponderance of the evidence” as defined in the judge’s decision. Explain how the Petitioner successfully met this burden of proof, particularly in light of the Respondent’s initial denial of all allegations versus its later admission at the hearing.
4. Deconstruct the final Order issued by Judge Tammy L. Eigenheer. What were the three distinct parts of the Order, and what legal and practical purpose did each part serve in resolving the dispute, compensating the Petitioner, and ensuring future compliance by the Respondent?
5. Trace the procedural history of this case, creating a timeline of key events from Ms. Cohen’s first document request to the issuance of the final Order. Discuss the significance of each step, including the multiple requests, the petition filing, the Respondent’s answer, the hearing, and the final decision.
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Glossary of Key Terms
Definition
Administrative Law Judge
The official, in this case Tammy L. Eigenheer, who presides over hearings at the Office of Administrative Hearings and issues a decision.
A.R.S. § 33-1258(A)
The specific section of Arizona Revised Statutes cited in the case. It mandates that a homeowners association must make records available for member examination within ten business days and may charge up to fifteen cents per page for copies.
Burden of Proof
The obligation on a party in a legal proceeding to prove their assertions. In this case, the Petitioner bore the burden of proving the Respondent violated the statute.
CBS 136 Homeowners Association
The Respondent in the case; an association of condominium owners located in Sun City West, Arizona.
Department
The Arizona Department of Real Estate, the state agency with jurisdiction to hear disputes between property owners and condominium owners associations.
Findings of Fact
The section of the decision that outlines the factual history and evidence presented in the case, as determined by the judge.
Office of Administrative Hearings
The state office where the formal hearing on the petition was conducted.
Petitioner
The party who initiates a legal action by filing a petition. In this case, the Petitioner was Annette Cohen.
Preponderance of the Evidence
The standard of proof required for the Petitioner to win the case. It is defined as evidence that is more convincing and shows that the fact sought to be proved is “more probable than not.”
The management company that took over management of the CBS 136 Homeowners Association in January 2018.
Respondent
The party against whom a petition is filed. In this case, the Respondent was the CBS 136 Homeowners Association.
Technical Violation
An acknowledged infringement of a rule or statute where the substance of the rule may not have been maliciously violated. The Respondent admitted to a technical violation of the 10-day timeframe for document production.
