Tag Archives: Adam D. Stone

This summary details the administrative hearing proceedings in the matter of *Thomas A & Jade Bossert vs. Silverbell West Association, Inc.*

Case Summary: Bossert v. Silverbell West Association, Inc.

Key Facts and Parties

The Petitioner, Thomas A. and Jade Bossert, are owners of a condominium unit and members of the Silverbell West Association, Inc. (Respondent). The dispute was heard by Administrative Law Judge Adam D. Stone in the Office of Administrative Hearings (OAH). The evidentiary hearing took place on March 18, 2021.

Main Issues

The Petitioner filed a two-issue petition alleging the Association committed statutory violations:

1. Failure to Disclose Records: Violating ARIZ. REV. STAT. § 33-1258(A) by failing to make financial and other records reasonably available for examination.
2. Failure to Complete Financials: Violating ARIZ. REV. STAT. § 33-1243(J) by failing to complete an annual financial audit, review, or compilation within 180 days after the end of the 2018 and 2019 fiscal years.

Hearing Proceedings and Key Arguments

Petitioner testified that initial documents received following a June 2020 request were disorganized and incomplete. A subsequent request in July 2020 for specific missing items, including bank statements and cash journals, was never fulfilled. A bookkeeping expert testified that the records presented were disorganized, likely missing documents, and insufficient for making accurate 2018 and 2019 reports.

The Board President testified that they believed the initial request was met based on records held by the former Treasurer, Mr. Molley, but admitted the follow-up request was likely ignored. The tribunal found that Mr. Molley was "largely the one to blame" for unacceptable record-keeping, but also criticized the current Board President for failing to take a more active role in obtaining easily available bank statements.

Legal Conclusions and Outcome

The Administrative Law Judge found that the Petitioner had sustained the burden of proving that the Association committed two specific violations:

1. Violation of ARIZ. REV. STAT. § 33-1258(A) (Records Disclosure): The Respondent violated the statute insofar as they failed to produce bank account statements and check copies. The fact that these records had still not been turned over was deemed "inexcusable".
2. Violation of ARIZ. REV. STAT. § 33-1243(J) (Financial Compilation): The Respondent violated the statute by failing to complete the 2019 financial compilation.

• *Note:* The tribunal found Petitioner did *not* meet the burden of proof regarding the 2018 financial report, as Petitioner (who was Board President at the time) could have taken more aggressive measures to secure the necessary documentation.

Final Decision

The Administrative Law Judge declined to impose a civil penalty, noting that the Board had subsequently taken steps to ensure better future record keeping.

The Petitioner was deemed the prevailing party and the Association (Respondent) was ordered to reimburse the Petitioner's filing fees of $1,000.00 within 30 days.

The administrative legal case hearing, *The Sun Groves Homeowners Association (SGHA) v. David L. and Stephanie J. Lockhart*, was held on February 9, 2021, before the Office of Administrative Hearings (OAH). The proceeding was overseen by Administrative Law Judge Adam D. Stone.

Key Facts and Jurisdiction

The Petitioner, Sun Groves Homeowners Association, is a planned community organization. Respondents, David L. and Stephanie J. Lockhart, are homeowners and members of SGHA. The case was filed with the Arizona Department of Real Estate (ADRE), which, along with the OAH, is authorized by A.R.S. § 32-2199(B) to hear petitions regarding violations of planned community documents.

Main Issue and Legal Points

SGHA filed a complaint alleging that the Lockharts were in violation of Article 10.11.1 of the SGHA CC&R’s. This specific article restricts the parking of private passenger automobiles or pickup trucks, requiring them to be parked within a garage, in a private driveway, or in Board-designated areas. The most critical legal point of the hearing was that the Respondents stipulated (agreed) that they were in violation of Article 10.11.1 of the CC&R’s. The Respondents also stipulated that SGHA was the prevailing party in the matter.

Final Decision and Outcome

Pursuant to the stipulation of the parties, the tribunal issued a Conclusion of Law finding that the Respondents had violated Article 10.11.1 of the SGHA CC&R’s. The Administrative Law Judge granted the Petitioners’ petition. As the prevailing party, SGHA was awarded costs, and the Lockharts were ordered to pay Petitioner’s filing fees in the amount of $500.00. The Order became binding unless a request for rehearing was filed with the Commissioner of the Department of Real Estate within 30 days.

Administrative Hearing Briefing: Pierce v. Sierra Morado Community Association

Executive Summary

This briefing synthesizes the key findings and judicial decision in the administrative case of Erik R. Pierce versus the Sierra Morado Community Association (SMCA), Case No. 20F-H2020053-REL. The petition, filed by homeowner Erik R. Pierce, was ultimately denied by the Administrative Law Judge on February 10, 2021.

The core of the dispute was Pierce’s allegation that the SMCA failed to enforce its Covenants, Conditions, and Restrictions (CC&Rs) against his neighbors, the Kinstles, who installed a hot tub visible from Pierce’s property, creating a privacy violation. While the SMCA Board retroactively approved the hot tub, it did so with the explicit condition that a pergola and screening be installed to mitigate the visibility issue. The Kinstles subsequently failed to install the required screening.

The judge concluded that the SMCA’s conditional approval resolved the initial violation claim under CC&R Section 4.27. The central issue then became whether the SMCA’s subsequent failure to compel the installation of the screening constituted a violation of its enforcement duty under CC&R Section 11.1. The judge ruled that it did not, finding that the CC&Rs grant the Association a discretionary right to enforce its rules, not an absolute obligation. The judge found persuasive the SMCA’s testimony that it delayed enforcement actions due to the ongoing litigation and in an attempt to foster a settlement between the neighbors. This exercise of discretion was deemed permissible under the Association’s governing documents.

1. Case Overview

Parties and Legal Representation

Entity

Legal Counsel

Petitioner

Erik R. Pierce

James C. Frisch, Esq. & Michael Resare, Esq. (King & Frisch, P.C.)

Respondent

Sierra Morado Community Association (SMCA)

Heather M. Hampstead, Esq. & Nicholas C.S. Nogami, Esq. (Carpenter, Hazlewood, Delgado & Bolen, LLP)

Key Case Details

• Case Number: 20F-H2020053-REL

• Presiding Judge: Adam D. Stone, Administrative Law Judge

• Hearing Date: January 25, 2021 (conducted via Google Meet)

• Decision Date: February 10, 2021

• Jurisdiction: The Arizona Department of Real Estate (ADRE) is statutorily authorized to hear petitions from homeowners’ association members. This case was referred by the ADRE to the Office of Administrative Hearings for an evidentiary hearing.

2. Core Dispute and Allegations

Petitioner’s Complaint

On March 23, 2020, Erik R. Pierce filed a complaint with the ADRE alleging that the SMCA was in violation of its own CC&Rs, specifically Sections 4.27 (Swimming Pools and Spas) and 11.1 (Enforcement).

The dispute originated with the installation of a hot tub by Pierce’s neighbors, the Kinstles. Pierce testified that the hot tub and its occupants were visible from inside his house, and that occupants of the hot tub could look directly into his home, violating his right to privacy.

Timeline of Key Events

• September 4, 2019: Pierce submits his initial complaint to the SMCA, noting the hot tub’s visibility and asserting that the Kinstles had failed to obtain prior approval from the Architectural Review Committee (ARC).

• Post-September 2019: The SMCA informs the Kinstles that they installed the hot tub without approval and directs them to submit plans for the proper approval process.

• February 10, 2020: After several rejections, the SMCA Board approves the Kinstles’ hot tub installation on the condition that a pergola and screening are installed.

• March 3, 2020: Pierce receives a letter from the property management company, AAM, LLC, stating that the installation was approved with the screening requirement and that the complaint was closed.

• January 25, 2021: At the time of the hearing, the Kinstles had still not installed the required pergola and screening.

3. Analysis of Key Testimonies

The decision was informed by testimony from four witnesses presented by the Petitioner.

• Erik R. Pierce (Petitioner): Outlined the timeline of the dispute, the visibility of the neighbors’ hot tub, the resulting privacy violation, and the SMCA Board’s failure to enforce its own conditional approval requiring a pergola and screening.

• Bill Oliver (Former SMCA President, Fall 2019 – April 2020): Confirmed that the Board approved the hot tub retroactively with the stipulation for a pergola and screening. He stated the Board had a “rigorous process of enforcement” but could not recall if a specific violation letter was sent to the Kinstles after the conditional approval was granted.

• Jodie Cervantes (Former Community Manager, 2019 – June 2020): Testified that she believed the CC&Rs were enforced and the matter was closed. She suggested the Kinstles had a six-month period to comply with the screening requirement, which she believed was in the Design Guidelines, but could not point to the specific language.

• Martin Douglas (Current SMCA President, from April 2020): Stated he had been to the Pierce residence for another matter and the hot tub was not visible to him. He attributed the lack of enforcement action to the “ongoing litigation and multiple settlement offers which were being exchanged.” He testified that upon resolution of the case, the Board “will follow through with enforcement actions should the Kinstle’s fail to comply.”

4. Judicial Reasoning and Decision

The Administrative Law Judge’s decision centered on the interpretation of the SMCA’s CC&Rs and the discretionary power of its Board.

Governing CC&R Provisions

The ruling rested on the specific language of two sections of the SMCA CC&Rs:

• Section 4.27 (Swimming Pools and Spas): This section permits the installation of a hot tub only if it is “properly screened… if neither it nor its occupants are Visible from Neighboring Property, and with the prior written approval of the Architectural Review Committee.”

• Section 11.1 (Enforcement): This section states that “The Association or any Owner shall have the right to enforce the Project Documents… The failure of the Association or an Owner to take enforcement action with respect to a violation of the Project Documents shall not constitute or be deemed a waiver of the right of the Association or any Owner to enforce the Project Documents in the future.”

Administrative Law Judge’s Conclusions

1. Resolution of the Section 4.27 Claim: The judge determined that the initial issue regarding the unapproved hot tub “was essentially resolved by the Board instructing the Kinstle’s erect a pergola and install screening.” By making its approval conditional on a privacy solution, the Board addressed the core requirement of the section.

2. The “Heart of the Matter” – Section 11.1 Enforcement: The judge identified the central question as whether the SMCA violated Section 11.1 by failing to enforce the screening requirement against the Kinstles.

3. Discretionary vs. Mandatory Enforcement: The judge concluded that the language of Section 11.1 grants the Board a “right to enforce, not an absolute obligation.”

4. Rationale for Delayed Enforcement: The judge found the testimony of the current SMCA President, Martin Douglas, to be “more persuasive.” Douglas’s explanation—that the Board delayed enforcement to “foster an agreement with the neighbors” amid ongoing litigation—was accepted as a valid exercise of the Board’s discretion.

5. Final Ruling: The judge stated, “Section 11.1 expressly granted the Board this discretion, and it should not be disturbed.” Consequently, the judge ruled that the Petitioner failed to prove by a preponderance of the evidence that the Respondent had violated CC&R Section 11.1.

Final Order

IT IS ORDERED that Petitioners’ petition is denied.

The order was issued on February 10, 2021, and is binding unless a rehearing is granted.

This summary details the Administrative Law Judge Decision in the case of Lori & James Jordan vs. The Pines at Show Low Condominium Owners' Association, Inc.. The hearing was held on November 23, 2020, before Administrative Law Judge Adam D. Stone.

Key Facts and Main Issue

The Petitioner, Lori Jordan, is a property owner and member of The Pines at Show Low Condominium Owners' Association (“Association”). The dispute centered on damage caused to her unit (Unit 1006) around October 2018 due to a sewer backup in the main sewer line, which was allegedly caused by tree root growth in a common area.

The core issue was whether the Association violated its Community Documents—specifically CC&Rs Sections 3.04, 3.07, and 3.09—by apportioning a share of the insurance deductible to the Petitioner. Petitioner's unit was apportioned 43.84% of the deductible, totaling $10,958.96.

Key Arguments and Proceedings

1. Petitioner's Argument: Petitioner Lori Jordan and witness Chuck Stewart argued that the sewer line blockage occurred in the common area, and because the CC&Rs (Section 3.09) made the Association responsible for the maintenance and repair of the "sewer collection system within the Property," the Association should bear the full insurance deductible.
2. Respondent's Argument: Sean Lissarrague, Vice President of the Board, testified that the Board fulfilled its obligations under the CC&Rs by paying for the line repairs. He argued that the apportionment of the deductible was proper based on Section 19 of the 2012 Rules and Regulations. Section 19(b) and (c) grant the Board the authority to apportion the deductible when damage occurs to more than one unit and the common areas. The Association also stated that unit owners are responsible for maintaining proper gap insurance coverage.

Legal Points and Outcome

The Administrative Law Judge (ALJ) concluded that the matter was within the Department of Real Estate’s jurisdiction. The Petitioner bore the burden of proving by a preponderance of the evidence that the Respondent violated the CC&Rs.

The ALJ made the following crucial findings:

• No CC&R Violation: Although CC&R Section 3.09 mandates the Association to maintain and repair the sewer collection system, the Association did coordinate and accomplish these repairs. The Petitioner failed to demonstrate that the Association neglected its duty regarding maintenance or repair.
• Deductible Allocation Upheld: The ALJ recognized that the Petitioner was primarily challenging Section 19 of the 2012 Rules and Regulations. The scenario involved damage to two units and the common area, and the Association properly applied Section 19(b) and (c) of the Rules in apportioning the deductible.

Final Decision: Based on the evidence, the Petitioner failed to meet the burden of proof that the Association violated the CC&Rs by apportioning a share of the insurance deductible. The Petitioner’s petition was therefore denied. This decision is binding unless a rehearing is granted.

Administrative Law Judge Decision: Trezza Irrevocable Trust vs. Haciendas Del Conde Association

Executive Summary

This briefing document analyzes the Administrative Law Judge (ALJ) decision in case number 20F-H2020045-REL, a dispute between the Shannon Lee Trezza Irrevocable Trust (Petitioner) and the Haciendas Del Conde Association (HDCA/Respondent). The ALJ denied the Petitioner’s petition on all issues, finding in favor of the HDCA and deeming it the prevailing party.

The core of the dispute was a carport constructed by the Petitioner in August 2019 without prior approval from the HDCA and in violation of a 10-foot property line setback requirement detailed in the community’s Covenants, Conditions, and Restrictions (CC&Rs). The Petitioner challenged the validity of the CC&Rs, alleged selective enforcement by the HDCA, and argued the setback rule was unreasonable.

The ALJ’s decision rested on several key conclusions:

• The HDCA’s 2017 CC&Rs, including the 10-foot setback rule in Section 21(m), were properly adopted and are legally enforceable. The Petitioner’s challenge to the voting procedure was unfounded, as it incorrectly cited corporate voting law instead of the statute governing planned communities.

• The HOA has the right to enforce rules that are more restrictive than municipal codes, rendering the Pima County code’s zero-foot setback irrelevant.

• There was no evidence of selective enforcement. The HDCA’s denial was based on the substantive setback violation, not the procedural failure to obtain prior approval, and the Petitioner was given an opportunity to cure the issue.

• The Petitioner is solely responsible for any financial burden associated with bringing the carport into compliance, as the situation was created by the failure to seek prior approval before construction.

I. Case Overview

• Case Name: Shannon Lee Trezza Irrevocable Trust v. Haciendas Del Conde Association

• Case Number: 20F-H2020045-REL

• Forum: Arizona Office of Administrative Hearings

• Presiding Judge: Adam D. Stone

• Date of Decision: November 18, 2020

• Parties:

◦ Petitioner: Shannon Lee Trezza Irrevocable Trust, represented by Trustee Steven Trezza, Esq.

◦ Respondent: Haciendas Del Conde Association (HDCA), represented by Sharon Briggs, Esq.

• Central Issue: The legal enforceability of the HDCA’s CC&Rs, specifically Section 21(m), which prohibits the construction of structures within ten feet of any side or back property line for specified lots. The Petitioner sought relief after the HDCA denied approval for a carport built in violation of this rule.

II. Factual Background

Steven Trezza, trustee for the Petitioner, testified that he has resided at the property for approximately 14 years. In August 2019, he designed and built a carport on the property. Crucially, he admitted to the following:

• He had not read the community’s CC&Rs prior to the HDCA’s denial of his application.

• He failed to obtain prior approval from the HDCA Board for the carport’s construction.

• He failed to obtain a required permit from Pima County.

The HDCA Board President, Brad Johns, testified that he first noticed the carport construction in late August 2019 and placed architectural approval forms on the Petitioner’s door. Johns clarified that the eventual denial was not based on the failure to obtain prior approval but on the substantive violation of the 10-foot setback rule.

On November 14, 2019, the HDCA’s Secretary/Treasurer, Philip Worcester, sent formal correspondence informing the Petitioner of the failure to submit a proposal and providing an additional thirty days to do so before facing penalties.

III. Petitioner’s Core Arguments

The Petitioner, represented by Mr. Trezza, presented several arguments to invalidate the HDCA’s enforcement action:

• Invalidity of the 2017 CC&Rs Vote: Mr. Trezza claimed the 2017 vote that adopted the current CC&Rs was improper.

◦ He argued the ballot was defective under Arizona statute A.R.S. § 10-3708 because it did not provide a place to vote “no.”

◦ He contended that Section 21(m), the setback rule, was not “redlined” in the proposed document sent to homeowners, implying it was not a change and therefore not properly adopted.

• Invalidity of the 1993 Amendment: The language of Section 21(m) originated in a 1993 Amendment. Mr. Trezza argued this amendment was also passed via an invalid vote. He claimed the statute of limitations had not expired on challenging it, as he only became aware of the 1993 Amendment during the course of the present dispute.

• Conflict with Pima County Code: Mr. Trezza testified that the 10-foot setback is incorrect under Pima County code, which he stated requires a zero-foot setback. He argued the HDCA Board had misinterpreted zoning requirements in 1993.

• Selective Enforcement: Mr. Trezza asserted that he was not treated fairly, claiming other HDCA members who had failed to obtain prior approval for projects were later granted it.

• Unreasonable Withholding of Approval: The Petitioner argued that the HDCA’s approval was unreasonably withheld because the carport was not unattractive, did not devalue community property, and did not violate county code.

IV. Respondent’s (HDCA) Position and Testimony

The HDCA countered each of the Petitioner’s claims through legal arguments and witness testimony:

• Validity of the CC&Rs: Ms. Briggs, counsel for the HDCA, argued that the 2017 vote was valid pursuant to A.R.S. § 33-1817, the statute governing planned communities. This statute requires only an “affirmative vote or written consent,” which was obtained. She asserted that the “redlining” argument was irrelevant because the entire CC&Rs document was presented to homeowners for a vote, and they could have rejected it if they disagreed with any provision, changed or not. This rendered the challenge to the 1993 amendment moot.

• Absence of Discrimination:

◦ HDCA President Brad Johns testified that the denial was based solely on the 10-foot setback violation, not the failure to obtain prior approval.

◦ He stated that the Board had successfully worked with other homeowners who failed to seek prior approval, but Mr. Trezza’s case was different because it involved a stand-alone structure rather than an addition.

◦ Both Mr. Johns and Secretary/Treasurer Philip Worcester testified that they had not known or interacted with Mr. Trezza prior to this issue, negating any claim of personal bias.

• Fair Process and Opportunity to Cure: Mr. Worcester testified that he complied with multiple document requests from Mr. Trezza and offered on at least two occasions for Mr. Trezza to accompany him to the association’s storage facility, an offer that was not accepted. The Board provided a 30-day window for the Petitioner to submit a formal proposal to resolve the issue.

V. Administrative Law Judge’s Conclusions of Law and Rationale

The ALJ methodically rejected each of the Petitioner’s arguments and found the HDCA’s position to be supported by law and evidence.

1. The CC&Rs Contain Legally Enforceable Setback Language:

◦ The Judge concluded that the 2017 CC&Rs vote was proper. The Petitioner’s reliance on A.R.S. § 10-3708 (corporate voting) was “unfounded.” The correct and controlling statute is A.R.S. § 33-1817(A) (planned community voting), which only requires an “affirmative vote or written consent.”

◦ The argument that Section 21(m) was not “redlined” was deemed “not persuasive,” as the entire proposed document was provided to members, who voted to accept the CC&Rs as written.

◦ An HOA may require different, and more restrictive, setback requirements than a municipality. Therefore, the Pima County code does not override the CC&Rs.

2. The Petitioner is Bound by the CC&Rs:

◦ The Judge found the argument regarding the 1993 Amendment and the statute of limitations “unpersuasive.” Upon purchasing the property, the Petitioner became bound by the CC&Rs in existence at that time, “whether he read them or not.”

3. No Selective Enforcement Occurred:

◦ Evidence showed that the Board “routinely allowed homeowners to provide a chance to cure their failure to obtain prior approval.”

◦ Testimony from Mr. Johns and Mr. Worcester clearly established that the denial was not due to the lack of prior approval but the substantive setback violation. The Petitioner was offered the same opportunity to cure the problem as others but chose not to.

4. The Cost of Compliance is Reasonable:

◦ The Judge concluded that it is reasonable to compel the Petitioner to comply with the setback requirement, regardless of the cost. The decision states: “it brought the additional expenses upon itself for failure to obtain prior approval.” By not seeking approval beforehand, the Petitioner, not the HDCA, created the financial burden of a remedy.

VI. Final Order and Implications

Based on the foregoing conclusions, the Administrative Law Judge issued the following order on November 18, 2020:

• The Petition filed by the Shannon Lee Trezza Irrevocable Trust is denied on all issues.

• The Respondent, Haciendas Del Conde Association, is deemed the prevailing party.

• No Civil Penalty is found to be appropriate in this matter.

The order is binding on the parties unless a rehearing is requested with the Commissioner of the Department of Real Estate within 30 days of the service of the order.

Administrative Law Judge Decision: Kupel vs. Hidden Valley Association

Executive Summary

The Administrative Law Judge (ALJ) for the Arizona Office of Administrative Hearings denied a petition filed by homeowner Douglas E. Kupel against the Hidden Valley Association (HVA). The core of the dispute was Kupel’s allegation that HVA violated Arizona statute ARIZ. REV. STAT. § 33-1805 by failing to completely fulfill a comprehensive records request. While HVA provided its records retention policy and legal invoices, it withheld two categories of electronic and hard copy communications, claiming no such disclosable records existed.

Kupel argued that statements made in emails by HVA Board President Gary Freed—specifically that certain communications would be “filed as an HVA business record”—proved the existence of the requested records. HVA countered that this statement was a mistake on Freed’s part, resulting from an initial misunderstanding of retention requirements, and that no records subject to disclosure actually existed.

The ALJ ultimately concluded that Kupel failed to meet the “preponderance of the evidence” standard required to prove his claim. The judge found that the evidence presented was not sufficient to prove that the requested records existed and were being improperly withheld. Consequently, the petition was denied, and Kupel’s requests for reimbursement of his filing fee and the imposition of a civil penalty against HVA were also denied.

Case Overview

Case Name

Douglas E Kupel, Petitioner, vs. Hidden Valley Association, Respondent

Case Number

21F-H2120006-REL

Jurisdiction

Arizona Office of Administrative Hearings (OAH)

Presiding Judge

Administrative Law Judge Adam D. Stone

Hearing Date

October 22, 2020

Decision Date

October 30, 2020

Key Parties

Douglas E. Kupel (Petitioner), Hidden Valley Association (Respondent), Gary Freed (HVA Board President)

Core Dispute: The Records Request

The central issue of the hearing was whether the Hidden Valley Association violated ARIZ. REV. STAT. § 33-1805 by failing to fully comply with a records request submitted by Kupel on June 22, 2020. HVA, through its community manager HOAMCO, provided a partial response on July 1, 2020.

Breakdown of the Records Request:

• Request 1 (Fulfilled): A copy of the HVA records retention policy adopted on January 15, 2020.

• Request 2 (Denied): Copies of all communications (email and hard copy) to or from current and former HVA Board and committee members regarding “information requests or open meeting law compliance” from July 2019 to the present.

• Request 3 (Denied): Copies of all communications (email and hard copy) to or from current and former HVA Board and committee members regarding any proposed, discussed, or adopted changes to the Association bylaws from January 2019 to the present.

• Request 4 (Fulfilled): Copies of invoices, billing statements, and payment records for legal services associated with revisions to the Association bylaws from January 2019 to the present.

HVA and its President, Gary Freed, asserted that the denied communications were not subject to disclosure under the exceptions outlined in ARIZ. REV. STAT. § 33-1805(B).

Petitioner’s Position and Evidence (Douglas E. Kupel)

• Allegation: Kupel accused HVA of willfully failing to fulfill his request, alleging that non-exempt records did exist and should have been disclosed.

• Primary Evidence: Kupel submitted several email messages from HVA President Gary Freed which contained the statement: “This communication has been received, and will be filed as an HVA business record in the files maintained by HOAMCO for the benefit of HVA” or substantially similar language.

• Argument: Kupel testified that these emails proved the existence of communications that did not meet the statutory exclusions and, therefore, HVA had failed to fully respond to his request.

• Requested Relief:

1. An order compelling HVA to abide by ARIZ. REV. STAT. § 33-1805.

2. Reimbursement of the $500 filing fee.

3. The levying of a civil penalty against HVA.

Respondent’s Position and Evidence (Hidden Valley Association)

• Witness Testimony: HVA Board President Gary Freed testified on behalf of the association.

• Core Defense: Freed testified that based on HVA’s records retention policy and his understanding of open meeting laws, “no records existed which were subject to disclosure.”

• Explanation of Contested Emails: Freed explained that his prior email statements about filing all communications were a mistake. He testified that he initially believed all communications needed to be retained but later learned this was incorrect.

• Search Process: Freed admitted that neither he nor other board members conducted a one-by-one search of every single email. However, he testified that he “may have scanned his personal e-mail” and did not dismiss the petitioner’s request “out-of-hand.”

• Association Practices: Freed asserted that HVA business was conducted via open meetings, with the exception of a single emergency situation, implying that no discoverable email correspondence regarding official business would exist.

Administrative Law Judge’s Analysis and Conclusion

The ALJ’s decision rested on the legal standard of “preponderance of the evidence,” defined as proof convincing the trier of fact that a contention is more probably true than not. The petitioner, Kupel, bore the burden of meeting this standard.

• Evaluation of Evidence: The judge found Kupel’s primary argument unpersuasive. The decision states, “Essentially, Petitioner is claiming that there must be other records in existence because of the language that Mr. Freed used… This is not persuasive as there was no evidence presented by Petitioner to prove that the records were in existence.”

• Credibility of Testimony: The judge gave weight to Freed’s testimony that he had been mistaken about record-keeping protocols. The decision also noted that HVA’s official records retention policy, adopted six months prior to the request, specifically outlined which communications were to be kept.

• Lack of Proof: The judge concluded that Freed believed any documents that might have existed were subject to statutory exemptions and that all relevant business was conducted in open meetings. Ultimately, Kupel failed to provide sufficient proof that discoverable records actually existed.

• Final Ruling: The ALJ concluded that “the Association’s conduct, as outlined above, did not violate the charged provisions of ARIZ. REV. STAT. § 33-1805.”

Final Order

Based on the findings of fact and conclusions of law, the Administrative Law Judge issued the following orders:

Outcome

Petitioner’s Petition

Denied

Request for Civil Penalty

Denied

Reimbursement of Filing Fee

Denied (Respondent shall not reimburse Petitioner’s fee)

The decision is binding on the parties unless a request for rehearing is filed with the Commissioner of the Arizona Department of Real Estate within thirty days of the order’s service.