Case Summary
| Case ID | 19F-H1918040-REL-RHG |
|---|---|
| Agency | ADRE |
| Tribunal | OAH |
| Decision Date | 2020-03-25 |
| Administrative Law Judge | Kay Abramsohn |
| Outcome | respondent_win |
| Filing Fees Refunded | $1,500.00 |
| Civil Penalties | $0.00 |
Parties & Counsel
| Petitioner | Gregory L. Czekaj | Counsel | — |
|---|---|---|---|
| Respondent | Colonia Del Rey HOA, Inc. | Counsel | — |
Alleged Violations
A.R.S. § 33-1805
A.R.S. § 33-1812(A)
A.R.S. § 33-1804(B)
Outcome Summary
The HOA prevailed on all three complaints regarding records, fee increases, and meeting notices. Petitioner failed to prove violations.
Why this result: Petitioner failed to prove violations by a preponderance of the evidence; HOA complied with statutes regarding record provision and meeting notice mailing; fee increase vote was valid without proxy.
Key Issues & Findings
Records Request Violation
Petitioner alleged HOA failed to provide requested records. ALJ found HOA reasonably clarified burdensome requests and provided available records timely.
Orders: Petitioner's claim denied; HOA prevailed.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
- A.R.S. § 33-1805
Invalid Fee Increase / Proxy Vote
Petitioner alleged a $5 fee increase was invalid due to a proxy vote. ALJ found the proxy vote was not included in final valid count which met 2/3 requirement.
Orders: Petitioner's claim denied; HOA prevailed.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
- A.R.S. § 33-1812(A)
Meeting Notice Violation
Petitioner alleged meeting notice was not received 10 days prior. ALJ ruled mailing at UPS contract postal unit 13 days prior satisfied 'sent' requirement.
Orders: Petitioner's claim denied; HOA prevailed.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
- A.R.S. § 33-1804(B)
Decision Documents
19F-H1918040-REL-RHG Decision – 777724.pdf
19F-H1918040-REL-RHG Decision – ../19F-H1918040-REL/720897.pdf
**Case Title:** *Gregory L. Czekaj v. Colonia Del Rey HOA, Inc.*
**Case Number:** 19F-H1918040-REL-RHG
**Date of Rehearing Decision:** March 25, 2020
**Procedural Status: Rehearing**
This summary details a **rehearing** of a dispute initially decided on July 8, 2019. The rehearing was granted by the Arizona Department of Real Estate Commissioner after the Petitioner alleged procedural errors regarding the retroactive swearing-in of witnesses during the initial hearing,. This summary distinguishes between the original findings and the rehearing analysis where applicable.
**Background**
The case involves a Homeowners Association (HOA) comprised of nine homes. The Petitioner, a homeowner, filed three complaints alleging statutory violations. The HOA filed a counter-petition (Complaint Four) regarding the Petitioner's conduct,.
**Complaint One: Records Requests**
* **Issue:** Petitioner alleged the HOA failed to provide requested records in violation of A.R.S. § 33-1805.
* **Original Decision:** The Administrative Law Judge (ALJ) ruled the HOA prevailed. The ALJ found Petitioner’s request for "any and all" records burdensome and determined the HOA complied timely with clarified requests,.
* **Rehearing Proceedings:** Petitioner argued his requests were not burdensome and claimed the HOA "refused" access, citing the 1984 CC&Rs and the lack of a physical business office as violations,. The HOA noted it has no office and records are kept in volunteers' homes.
* **Rehearing Outcome:** The ALJ affirmed that the request for "any and all" documents was burdensome. The HOA satisfied its obligations by emailing documents and facilitating a records review session,. The ALJ ruled the HOA never refused records and remained the prevailing party,.
**Complaint Two: Fee Increase Validity**
* **Issue:** Petitioner argued a $5 fee increase was invalid because the vote utilized a proxy, which he claimed violated A.R.S. § 33-1812.
* **Original Decision:** The ALJ found that although a proxy was discussed, it was not counted in the final tally. The valid vote count (5 YES, 1 NO) met the requirement of 2/3 of votes cast.
* **Rehearing Proceedings:** Petitioner argued that passage required six votes (2/3 of the membership). The HOA clarified that the governing documents require 2/3 of *votes cast*. Petitioner also attempted to introduce new arguments regarding ballot formatting, which the
Case Participants
Petitioner Side
- Gregory L. Czekaj (Petitioner)
Homeowner
Appeared on his own behalf - Gary Wolf (Petitioner's Attorney)
Contacted HOA attorney regarding records
Respondent Side
- Marybeth Andree (HOA President)
Colonia Del Rey HOA, Inc.
Represented the HOA; also Secretary during some events - Carolyn Goldschmidt (HOA Attorney)
Responded to records requests - Phil Oliver (Witness)
Colonia Del Rey HOA, Inc.
Former HOA President - Susan Sotelo (Witness)
Colonia Del Rey HOA, Inc.
Former HOA Secretary; testified regarding mailing of notices - Les Andree (Attendee)
Marybeth Andree's husband; present at May 6, 2017 meeting
Neutral Parties
- Kay Abramsohn (Administrative Law Judge)
Office of Administrative Hearings - Mr. Tick (Witness)
Insurance Agent
Testified regarding HOA insurance policy request - Damian Schaffer (Witness)
UPS Store
UPS store clerk - Ed Freeman (Tenant)
Involved in proxy vote issue; ineligible to vote - Sarah Hitch (Proxy Holder)
Tenant who cast proxy vote - Judy Lowe (Commissioner)
Arizona Department of Real Estate
Recipient of the order
Other Participants
- Maryanne Beerling (Member)
Colonia Del Rey HOA, Inc.
Present at May 6, 2017 meeting
