Case Summary
| Case ID | 24F-H008-REL |
|---|---|
| Agency | ADRE |
| Tribunal | OAH |
| Decision Date | 2024-01-11 |
| Administrative Law Judge | Tammy L. Eigenheer |
| Outcome | Petitioner's petition is granted. Respondent violated A.R.S. § 33-1258 by failing to provide requested records within 10 business days. Respondent violated CC&Rs Section 8.1.1 by failing to maintain insurance coverage equal to 100% of the replacement cost and failing to meet specific liability limits. Respondent is ordered to reimburse Petitioner's $1,000.00 filing fee and comply with the statute and CC&Rs going forward. |
| Filing Fees Refunded | $1,000.00 |
| Civil Penalties | $0.00 |
Parties & Counsel
| Petitioner | Keith W. Cunningham | Counsel | — |
|---|---|---|---|
| Respondent | The Residences at 2211 Camelback Condominium Association, INC | Counsel | Allison Preston |
Alleged Violations
A.R.S. § 33-1258
CC&Rs Section 8.1.1
Outcome Summary
Petitioner's petition is granted. Respondent violated A.R.S. § 33-1258 by failing to provide requested records within 10 business days. Respondent violated CC&Rs Section 8.1.1 by failing to maintain insurance coverage equal to 100% of the replacement cost and failing to meet specific liability limits. Respondent is ordered to reimburse Petitioner's $1,000.00 filing fee and comply with the statute and CC&Rs going forward.
Key Issues & Findings
Records Request
Petitioner alleged Respondent failed to provide financial records and vendor contracts (Epic Valet, FirstService Residential, landscaping) within the statutory timeframe. The ALJ found Respondent failed to provide the documents within 10 business days of the July 10, 2023 request and subsequent July 24, 2023 request.
Orders: Respondent shall comply with A.R.S. § 33-1258 going forward.
Filing fee: $1,000.00, Fee refunded: Yes
Disposition: petitioner_win
- A.R.S. § 33-1258
Insurance Coverage
Petitioner alleged Respondent failed to maintain required insurance coverage. The ALJ found Respondent's property insurance coverage ($59M) was below the appraised replacement cost ($73M) and the general liability limits did not strictly comply with CC&Rs requirements despite an umbrella policy.
Orders: Respondent shall comply with Section 8.1.1 of the CC&Rs going forward.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_win
- CC&Rs Section 8.1.1
Analytics Highlights
- A.R.S. § 33-1258
- CC&Rs Section 8.1.1
Video Overview
Audio Overview
Decision Documents
24F-H008-REL Decision – 1099767.pdf
24F-H008-REL Decision – 1101587.pdf
24F-H008-REL Decision – 1119643.pdf
24F-H008-REL Decision – 1121917.pdf
24F-H008-REL Decision – 1132963.pdf
24F-H008-REL Decision – 1149691.pdf
{
“case”: {
“docket_no”: “24F-H008-REL”,
“case_title”: “In the Matter of Keith W. Cunningham v The Residences at 2211 Camelback Condominium Association, INC”,
“decision_date”: “2024-01-11”,
“tribunal”: “OAH”,
“agency”: “ADRE”
},
“individuals”: [
{
“name”: “Keith W. Cunningham”,
“role”: “petitioner”,
“side”: “petitioner”,
“affiliation”: null,
“notes”: null
},
{
“name”: “Allison Preston”,
“role”: “HOA attorney”,
“side”: “respondent”,
“affiliation”: “Carpenter Hazlewood Delgado & Bolen LLP”,
“notes”: “Represented The Residences at 2211 Camelback Condominium Association, INC”
},
{
“name”: “Kyle von Johnson”,
“role”: “HOA attorney”,
“side”: “respondent”,
“affiliation”: null,
“notes”: “Represented The Residences at 2211 Camelback Condominium Association, INC”
},
{
“name”: “Mark Teman”,
“role”: “board member”,
“side”: “respondent”,
“affiliation”: null,
“notes”: “Association President, witness”
},
{
“name”: “Allison Renow”,
“role”: “property manager”,
“side”: “respondent”,
“affiliation”: “First Service Residential”,
“notes”: “General Manager (GM) on site”
},
{
“name”: “Frank Durso”,
“role”: “regional manager”,
“side”: “respondent”,
“affiliation”: “First Service Residential”,
“notes”: null
},
{
“name”: “Jamie George”,
“role”: “VP of Insurance”,
“side”: “respondent”,
“affiliation”: “First Service Financial”,
“notes”: “Assists with association insurance policies”
},
{
“name”: “Holly McNelte”,
“role”: “management staff”,
“side”: “respondent”,
“affiliation”: “First Service Residential”,
“notes”: “FSR team member who managed documents/files”
},
{
“name”: “Jonathan Henley”,
“role”: “insurance broker”,
“side”: “neutral”,
“affiliation”: “Gallagher”,
“notes”: null
},
{
“name”: “Brian Del Vecchio”,
“role”: “ALJ”,
“side”: “neutral”,
“affiliation”: “OAH”,
“notes”: “Administrative Law Judge who conducted the hearing (12/8/23)”
},
{
“name”: “Tammy L. Eigenheer”,
“role”: “ALJ”,
“side”: “neutral”,
“affiliation”: “OAH”,
“notes”: “Administrative Law Judge who wrote the decision”
},
{
“name”: “Susan Nicolson”,
“role”: “Commissioner”,
“side”: “neutral”,
“affiliation”: “Arizona Department of Real Estate”,
“notes”: null
},
{
“name”: “AHansen”,
“role”: “ADRE staff”,
“side”: “unknown”,
“affiliation”: “Arizona Department of Real Estate”,
“notes”: “Transmission recipient”
},
{
“name”: “vnunez”,
“role”: “ADRE staff”,
“side”: “unknown”,
“affiliation”: “Arizona Department of Real Estate”,
“notes”: “Transmission recipient”
},
{
“name”: “djones”,
“role”: “ADRE staff”,
“side”: “unknown”,
“affiliation”: “Arizona Department of Real Estate”,
“notes”: “Transmission recipient”
},
{
“name”: “labril”,
“role”: “ADRE staff”,
“side”: “unknown”,
“affiliation”: “Arizona Department of Real Estate”,
“notes”: “Transmission recipient”
},
{
“name”: “mneat”,
“role”: “ADRE staff”,
“side”: “unknown”,
“affiliation”: “Arizona Department of Real Estate”,
“notes”: “Transmission recipient”
},
{
“name”: “akowaleski”,
“role”: “ADRE staff”,
“side”: “unknown”,
“affiliation”: “Arizona Department of Real Estate”,
“notes”: “Transmission recipient”
},
{
“name”: “gosborn”,
“role”: “ADRE staff”,
“side”: “unknown”,
“affiliation”: “Arizona Department of Real Estate”,
“notes”: “Transmission recipient”
}
]
}
{ “case”: { “agency”: “ADRE”, “tribunal”: “OAH”, “docket_no”: “24F-H008-REL”, “case_title”: “In the Matter of Keith W. Cunningham v The Residences at 2211 Camelback Condominium Association, INC”, “decision_date”: “2024-01-11”, “alj_name”: “Tammy L. Eigenheer” }, “parties”: [ { “party_id”: “P1”, “role”: “petitioner”, “name”: “Keith W. Cunningham”, “party_type”: “homeowner”, “email”: “[email protected]”, “phone”: null, “attorney_name”: null, “attorney_firm”: null, “attorney_email”: null, “attorney_phone”: null }, { “party_id”: “R1”, “role”: “respondent”, “name”: “The Residences at 2211 Camelback Condominium Association, INC”, “party_type”: “HOA”, “email”: null, “phone”: null, “attorney_name”: “Allison Preston”, “attorney_firm”: “Carpenter Hazlewood Delgado & Bolen LLP”, “attorney_email”: “[email protected]”, “attorney_phone”: null } ], “issues”: [ { “issue_id”: “ISS-001”, “type”: “statute”, “citation”: “A.R.S. § 33-1258”, “caption”: “Records Request”, “violation(s)”: “Failure to provide requested financial records and contracts within 10 business days”, “summary”: “Petitioner alleged Respondent failed to provide financial records and vendor contracts (Epic Valet, FirstService Residential, landscaping) within the statutory timeframe. The ALJ found Respondent failed to provide the documents within 10 business days of the July 10, 2023 request and subsequent July 24, 2023 request.”, “outcome”: “petitioner_win”, “filing_fee_paid”: 1000.0, “filing_fee_refunded”: true, “civil_penalty_amount”: 0.0, “orders_summary”: “Respondent shall comply with A.R.S. § 33-1258 going forward.”, “why_the_loss”: null, “cited”: [“A.R.S. § 33-1258”] }, { “issue_id”: “ISS-002”, “type”: “governing_documents”, “citation”: “CC&Rs Section 8.1.1”, “caption”: “Insurance Coverage”, “violation(s)”: “Failure to maintain property insurance equal to 100% of replacement cost and general liability insurance limits as required”, “summary”: “Petitioner alleged Respondent failed to maintain required insurance coverage. The ALJ found Respondent’s property insurance coverage (59M)wasbelowtheappraisedreplacementcost(73M) and the general liability limits did not strictly comply with CC&Rs requirements despite an umbrella policy.”, “outcome”: “petitioner_win”, “filing_fee_paid”: 0.0, “filing_fee_refunded”: false, “civil_penalty_amount”: 0.0, “orders_summary”: “Respondent shall comply with Section 8.1.1 of the CC&Rs going forward.”, “why_the_loss”: null, “cited”: [“CC&Rs Section 8.1.1”] } ], “money_summary”: { “issues_count”: 2, “total_filing_fees_paid”: 1000.0, “total_filing_fees_refunded”: 1000.0, “total_civil_penalties”: 0.0 }, “outcomes”: { “petitioner_is_hoa”: false, “petitioner_win”: “yes”, “summarize_judgement”: “Petitioner’s petition is granted. Respondent violated A.R.S. § 33-1258 by failing to provide requested records within 10 business days. Respondent violated CC&Rs Section 8.1.1 by failing to maintain insurance coverage equal to 100% of the replacement cost and failing to meet specific liability limits. Respondent is ordered to reimburse Petitioner’s $1,000.00 filing fee and comply with the statute and CC&Rs going forward.”, “why_the_loss”: null }, “analytics”: { “cited”: [“A.R.S. § 33-1258”, “CC&Rs Section 8.1.1”], “tags”: [“Records Request”, “Insurance Coverage”, “Condominium”, “Contracts”, “Vendor Contracts”, “Replacement Cost”] } }
{ “case”: { “docket_no”: “24F-H008-REL”, “case_title”: “Keith W. Cunningham v The Residences at 2211 Camelback Condominium Association, INC”, “decision_date”: “2024-01-11”, “alj_name”: “Tammy L. Eigenheer”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “How many days does my HOA have to provide records after I request them?”, “short_answer”: “The HOA has 10 business days to fulfill a request for examination of records.”, “detailed_answer”: “According to Arizona law cited in the decision, an association must make financial and other records reasonably available for examination within ten business days of a member’s request.”, “alj_quote”: “The association shall have ten business days to fulfill a request for examination.”, “legal_basis”: “A.R.S. § 33-1258(A)”, “topic_tags”: [ “records request”, “deadlines”, “A.R.S. § 33-1258” ] }, { “question”: “Can my HOA claim they don’t have to provide specific contracts if they are not uploaded to the web portal?”, “short_answer”: “No. If the records exist and aren’t privileged, the HOA must make them available for examination, regardless of whether they are on a portal.”, “detailed_answer”: “In this case, the HOA failed to provide signed vendor contracts that existed, claiming they provided what was on the portal. The ALJ found that failing to provide these specific requested documents constituted a violation.”, “alj_quote”: “Respondent did not assert or establish that any of the requested documents were subject to any of the exceptions provided for in statute. Accordingly, Petitioner was entitled to examine those documents.”, “legal_basis”: “A.R.S. § 33-1258”, “topic_tags”: [ “records request”, “contracts”, “online portal” ] }, { “question”: “If my CC&Rs require specific insurance liability limits, does an umbrella policy count towards meeting them?”, “short_answer”: “Not necessarily. The ALJ ruled that a base policy lower than the CC&R requirement was non-compliant, even with a large umbrella policy.”, “detailed_answer”: “The CC&Rs required $3,000,000 per occurrence. The HOA had $1,000,000 coverage plus a $50,000,000 umbrella. The ALJ ruled the general liability insurance was not in compliance because the specific base limit was not met.”, “alj_quote”: “While Respondent had an umbrella policy in addition to the general liability insurance, Respondent’s general liability insurance was not in compliance with the applicable CC&Rs.”, “legal_basis”: “CC&Rs Section 8.1.1”, “topic_tags”: [ “insurance”, “compliance”, “CC&Rs” ] }, { “question”: “Must the HOA insure the building for its full replacement cost?”, “short_answer”: “Yes, if the CC&Rs state the insurance must equal 100% of the current replacement cost.”, “detailed_answer”: “The HOA obtained an appraisal showing a replacement cost of $73 million but maintained coverage of only $59 million. The ALJ found this violated the CC&Rs requirement for 100% replacement cost coverage.”, “alj_quote”: “Accordingly, Respondent’s property insurance was not in compliance with the applicable CC&Rs at the time the petition was filed.”, “legal_basis”: “CC&Rs Section 8.1.1”, “topic_tags”: [ “insurance”, “property value”, “CC&Rs” ] }, { “question”: “Will I get my filing fee back if I win the hearing?”, “short_answer”: “The ALJ has the authority to order the HOA to reimburse the filing fee if the petition is granted.”, “detailed_answer”: “After granting the petition and finding the HOA in violation, the judge specifically ordered the respondent to pay back the petitioner’s filing fee.”, “alj_quote”: “IT IS FURTHER ORDERED that Respondent reimburse Petitioner his $1,000.00 filing fee.”, “legal_basis”: “Order”, “topic_tags”: [ “remedies”, “filing fees”, “costs” ] }, { “question”: “What happens if I accidentally cite the wrong statute number in my complaint?”, “short_answer”: “It may not be dismissed if the context of your complaint makes it clear what you are disputing.”, “detailed_answer”: “The HOA tried to dismiss the case because the homeowner cited the Planned Community statute instead of the Condominium statute. The judge denied this because the checkboxes and narrative provided sufficient notice of the claim.”, “alj_quote”: “While it may be true Petitioner hand wrote A.R.S. §33-1805… the context surrounding Petitioner’s hand written statute provides adequate notice.”, “legal_basis”: “Due Process / Notice”, “topic_tags”: [ “procedure”, “complaint forms”, “legal error” ] }, { “question”: “What is the standard of proof I need to meet to win against my HOA?”, “short_answer”: “You must prove your case by a “preponderance of the evidence.””, “detailed_answer”: “The homeowner bears the burden of proof. This standard means showing that the fact sought to be proved is more probable than not.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated A.R.S. § 33-1258 and the Association’s governing documents.”, “legal_basis”: “A.A.C. R2-19-119”, “topic_tags”: [ “burden of proof”, “legal standard”, “evidence” ] }, { “question”: “Will the HOA be fined a civil penalty if I prove they violated the law?”, “short_answer”: “Not automatically. The ALJ decides if a penalty is appropriate based on the facts.”, “detailed_answer”: “Even though the HOA was found to have violated record laws and insurance requirements, the judge decided not to assess a civil penalty in this specific instance.”, “alj_quote”: “Based on the facts presented, the Administrative Law Judge finds no civil penalty is appropriate in this matter.”, “legal_basis”: “Judicial Discretion”, “topic_tags”: [ “penalties”, “fines”, “enforcement” ] } ] }
{ “case”: { “docket_no”: “24F-H008-REL”, “case_title”: “Keith W. Cunningham v The Residences at 2211 Camelback Condominium Association, INC”, “decision_date”: “2024-01-11”, “alj_name”: “Tammy L. Eigenheer”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “How many days does my HOA have to provide records after I request them?”, “short_answer”: “The HOA has 10 business days to fulfill a request for examination of records.”, “detailed_answer”: “According to Arizona law cited in the decision, an association must make financial and other records reasonably available for examination within ten business days of a member’s request.”, “alj_quote”: “The association shall have ten business days to fulfill a request for examination.”, “legal_basis”: “A.R.S. § 33-1258(A)”, “topic_tags”: [ “records request”, “deadlines”, “A.R.S. § 33-1258” ] }, { “question”: “Can my HOA claim they don’t have to provide specific contracts if they are not uploaded to the web portal?”, “short_answer”: “No. If the records exist and aren’t privileged, the HOA must make them available for examination, regardless of whether they are on a portal.”, “detailed_answer”: “In this case, the HOA failed to provide signed vendor contracts that existed, claiming they provided what was on the portal. The ALJ found that failing to provide these specific requested documents constituted a violation.”, “alj_quote”: “Respondent did not assert or establish that any of the requested documents were subject to any of the exceptions provided for in statute. Accordingly, Petitioner was entitled to examine those documents.”, “legal_basis”: “A.R.S. § 33-1258”, “topic_tags”: [ “records request”, “contracts”, “online portal” ] }, { “question”: “If my CC&Rs require specific insurance liability limits, does an umbrella policy count towards meeting them?”, “short_answer”: “Not necessarily. The ALJ ruled that a base policy lower than the CC&R requirement was non-compliant, even with a large umbrella policy.”, “detailed_answer”: “The CC&Rs required $3,000,000 per occurrence. The HOA had $1,000,000 coverage plus a $50,000,000 umbrella. The ALJ ruled the general liability insurance was not in compliance because the specific base limit was not met.”, “alj_quote”: “While Respondent had an umbrella policy in addition to the general liability insurance, Respondent’s general liability insurance was not in compliance with the applicable CC&Rs.”, “legal_basis”: “CC&Rs Section 8.1.1”, “topic_tags”: [ “insurance”, “compliance”, “CC&Rs” ] }, { “question”: “Must the HOA insure the building for its full replacement cost?”, “short_answer”: “Yes, if the CC&Rs state the insurance must equal 100% of the current replacement cost.”, “detailed_answer”: “The HOA obtained an appraisal showing a replacement cost of $73 million but maintained coverage of only $59 million. The ALJ found this violated the CC&Rs requirement for 100% replacement cost coverage.”, “alj_quote”: “Accordingly, Respondent’s property insurance was not in compliance with the applicable CC&Rs at the time the petition was filed.”, “legal_basis”: “CC&Rs Section 8.1.1”, “topic_tags”: [ “insurance”, “property value”, “CC&Rs” ] }, { “question”: “Will I get my filing fee back if I win the hearing?”, “short_answer”: “The ALJ has the authority to order the HOA to reimburse the filing fee if the petition is granted.”, “detailed_answer”: “After granting the petition and finding the HOA in violation, the judge specifically ordered the respondent to pay back the petitioner’s filing fee.”, “alj_quote”: “IT IS FURTHER ORDERED that Respondent reimburse Petitioner his $1,000.00 filing fee.”, “legal_basis”: “Order”, “topic_tags”: [ “remedies”, “filing fees”, “costs” ] }, { “question”: “What happens if I accidentally cite the wrong statute number in my complaint?”, “short_answer”: “It may not be dismissed if the context of your complaint makes it clear what you are disputing.”, “detailed_answer”: “The HOA tried to dismiss the case because the homeowner cited the Planned Community statute instead of the Condominium statute. The judge denied this because the checkboxes and narrative provided sufficient notice of the claim.”, “alj_quote”: “While it may be true Petitioner hand wrote A.R.S. §33-1805… the context surrounding Petitioner’s hand written statute provides adequate notice.”, “legal_basis”: “Due Process / Notice”, “topic_tags”: [ “procedure”, “complaint forms”, “legal error” ] }, { “question”: “What is the standard of proof I need to meet to win against my HOA?”, “short_answer”: “You must prove your case by a “preponderance of the evidence.””, “detailed_answer”: “The homeowner bears the burden of proof. This standard means showing that the fact sought to be proved is more probable than not.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated A.R.S. § 33-1258 and the Association’s governing documents.”, “legal_basis”: “A.A.C. R2-19-119”, “topic_tags”: [ “burden of proof”, “legal standard”, “evidence” ] }, { “question”: “Will the HOA be fined a civil penalty if I prove they violated the law?”, “short_answer”: “Not automatically. The ALJ decides if a penalty is appropriate based on the facts.”, “detailed_answer”: “Even though the HOA was found to have violated record laws and insurance requirements, the judge decided not to assess a civil penalty in this specific instance.”, “alj_quote”: “Based on the facts presented, the Administrative Law Judge finds no civil penalty is appropriate in this matter.”, “legal_basis”: “Judicial Discretion”, “topic_tags”: [ “penalties”, “fines”, “enforcement” ] } ] }
Case Participants
Petitioner Side
- Keith W. Cunningham (petitioner)
Respondent Side
- Allison Preston (HOA attorney)
Carpenter Hazlewood Delgado & Bolen LLP
Represented The Residences at 2211 Camelback Condominium Association, INC - Kyle von Johnson (HOA attorney)
Represented The Residences at 2211 Camelback Condominium Association, INC - Mark Teman (board member)
Association President, witness - Allison Renow (property manager)
First Service Residential
General Manager (GM) on site - Frank Durso (regional manager)
First Service Residential - Jamie George (VP of Insurance)
First Service Financial
Assists with association insurance policies - Holly McNelte (management staff)
First Service Residential
FSR team member who managed documents/files
Neutral Parties
- Jonathan Henley (insurance broker)
Gallagher - Brian Del Vecchio (ALJ)
OAH
Administrative Law Judge who conducted the hearing (12/8/23) - Tammy L. Eigenheer (ALJ)
OAH
Administrative Law Judge who wrote the decision - Susan Nicolson (Commissioner)
Arizona Department of Real Estate
Other Participants
- AHansen (ADRE staff)
Arizona Department of Real Estate
Transmission recipient - vnunez (ADRE staff)
Arizona Department of Real Estate
Transmission recipient - djones (ADRE staff)
Arizona Department of Real Estate
Transmission recipient - labril (ADRE staff)
Arizona Department of Real Estate
Transmission recipient - mneat (ADRE staff)
Arizona Department of Real Estate
Transmission recipient - akowaleski (ADRE staff)
Arizona Department of Real Estate
Transmission recipient - gosborn (ADRE staff)
Arizona Department of Real Estate
Transmission recipient