Case Summary
| Case ID | 23F-H037-REL |
|---|---|
| Agency | — |
| Tribunal | — |
| Decision Date | 2023-04-10 |
| Administrative Law Judge | — |
| Outcome | complete |
| Filing Fees Refunded | — |
| Civil Penalties | — |
Parties & Counsel
| Petitioner | Senol Pekin | Counsel | Pro Se |
|---|---|---|---|
| Respondent | Artesian Ranch Community Association | Counsel | Ashley N. Moscarello, Esq., Daniel S. Francom, Esq., Goodman Law Group |
Alleged Violations
No violations listed
Audio Overview
Decision Documents
23F-H037-REL Decision – 1037672.pdf
23F-H037-REL Decision – 1041383.pdf
23F-H037-REL Decision – 1044671.pdf
23F-H037-REL Decision – 1044839.pdf
23F-H037-REL Decision – 1048179.pdf
23F-H037-REL Decision – 1054714.pdf
# Briefing: Dispute and Resolution - Pekin vs. Artesian Ranch Community Association ## Executive Summary This briefing document summarizes the legal proceedings and administrative decisions regarding the dispute between Petitioner Senol Pekin and Respondent Artesian Ranch Community Association. The matter, involving consolidated dockets No. 23F-H034-REL and No. 23F-H037-REL, was heard before the Office of Administrative Hearings (OAH) on March 20, 2023, under the jurisdiction of Administrative Law Judge Velva Moses-Thompson. The Petitioner alleged five distinct violations of the Association’s Bylaws and the Arizona Planned Communities Act (A.R.S. §§ 33-1801 to 33-1818). The Administrative Law Judge (ALJ) concluded that the Association violated its Bylaws by failing to hold its 2022 annual meeting on the prescribed date and violated state law by prohibiting members from recording open board sessions. Consequently, the Petitioner was deemed the prevailing party on these issues, and the Association was ordered to reimburse the $1,000 filing fee. Claims regarding the timing of organizational meetings, the authority of the HOA manager to schedule meetings, and the muting of members during Zoom calls were dismissed. ## Detailed Analysis of Key Themes ### 1. Adherence to Governing Documents and Bylaws A central theme of the dispute was the Association's failure to strictly follow its own Bylaws regarding meeting schedules. * **Annual Meeting Requirement:** Bylaws Article II, Section 2.3 requires the regular annual meeting to be held on the second Wednesday of April. In 2022, the Association held this meeting in May instead. * **The "Technical Violation" Defense:** The Association argued this was a "technical violation" with no harm to the Petitioner, citing A.R.S. § 10-3701(e). However, the ALJ ruled that while state statute may protect the validity of corporate actions taken during late meetings, it does not provide an exception for failing to adhere to the specific timing requirements set forth in the Bylaws. ### 2. Member Rights and Open Meeting Statutes The case highlighted the tension between HOA management and member rights under A.R.S. § 33-1804. * **Recording of Meetings:** During an October 24, 2022, meeting, the Community Manager informed homeowners they could not record the session. The ALJ found this to be a direct violation of A.R.S. § 33-1804(A), which explicitly permits attendees to audiotape or videotape open portions of meetings. * **Notice and Restrictions:** The Association attempted to require advanced notice for recording, but the ALJ noted that the law prohibits boards from requiring such notice. * **Participation and "Muting":** The Petitioner alleged that the Association muted opposing viewpoints during Zoom meetings. The ALJ ruled in favor of the Association on this point, finding that the Petitioner was given several opportunities to speak and that the muting was a response to "generally aggressive" behavior rather than a systematic effort to silence dissent. ### 3. Governance and Administrative Authority The proceedings clarified the roles of the Board versus the Community Manager (AAM, LLC). * **Organizational Meetings:** The Petitioner argued that officers must be elected in a separate, exclusively scheduled organizational meeting. The ALJ disagreed, noting that Bylaws do not require these meetings to be held separately from regular board meetings. * **Managerial Agency:** The Petitioner challenged the HOA Manager's authority to schedule board meetings. The ALJ ruled that a Community Manager, as an employee of the management firm (AAM, LLC), may act as an agent of the Board. ### 4. Evidentiary and Procedural Rulings * **Subpoenas:** The court managed multiple subpoenas for witnesses including Mandy Rogers, Susanne Roskens, and others. Notably, a subpoena for Dennis Berger was quashed, and the subpoena for Mandy Rogers was limited to her attendance, exempting her from producing documents. * **Closure of Record:** Following the March 20, 2023, hearing, the Petitioner attempted to file additional allegations and the Respondent filed a response. These were rejected by the ALJ as the record had officially closed at the conclusion of the hearing. --- ## Important Quotes with Context | Quote | Context | | :--- | :--- | | "Subsequent regular annual meetings shall be held on the second Wednesday of April of each year." | Found in the Respondent’s Bylaws (Article II, Section 2.3), this served as the basis for the finding that the Association was in violation by holding its meeting in May. | | "The board of directors of the association shall not require advance notice of the audiotaping or videotaping..." | A critical excerpt from A.R.S. § 33-1804(A) used by the ALJ to determine that the Association's prohibition on recording was unlawful. | | "The section does not provide an exception to the adherence to Bylaws that require a set time for an annual meeting." | The ALJ’s rebuttal to the Association’s defense that their late annual meeting was merely a "technical violation." | | "Ms. Rogers explained that she placed Petitioner on mute because he was generally aggressive." | Testimony regarding the Association's conduct during the October 24, 2022, Zoom meeting, which the ALJ accepted as a reasonable management of the meeting. | | "Petitioner be deemed the prevailing party regarding issues 1 and 4... Respondent pay Petitioner his filing fee of $1,000." | The final order regarding the financial consequences of the Association's violations. | --- ## Actionable Insights ### For Homeowners' Association Boards * **Strict Bylaw Compliance:** Boards must treat the specific dates and procedures outlined in their Bylaws as mandatory. "Technical violations" regarding meeting dates are still legally actionable and can result in the Association paying the Petitioner's filing fees. * **Recording Policy Update:** Associations should immediately cease any policy requiring advance notice for recording open meetings. While boards can adopt "reasonable rules" for recording, they cannot preclude the act of recording itself unless the Association provides its own unedited recording to members. * **Managerial Conduct:** Community managers should be trained to clearly distinguish between closed (executive) and open sessions when communicating rules about recording and participation to avoid inadvertently violating state statutes. ### Regarding Dispute Resolution * **Record Integrity:** Once a hearing concludes, no further evidence or allegations can be introduced. Parties must ensure all relevant documentation and testimony are presented during the scheduled hearing. * **Rehearing Procedures:** If a party is dissatisfied with an ALJ decision, the request for a rehearing must be filed with the Commissioner of the Arizona Department of Real Estate (ADRE) within 30 days, as the Office of Administrative Hearings (OAH) loses jurisdiction once a decision is rendered. * **Conflict of Interest in Meetings:** As noted in internal Association communications, if a Board member has filed a petition against the Association, they may be required to recuse themselves or log off during executive sessions where their specific legal matter is being discussed with the Association's attorney.
# Study Guide: Pekin v. Artesian Ranch Community Association
This study guide provides a comprehensive overview of the administrative legal proceedings between Senol Pekin (Petitioner) and the Artesian Ranch Community Association (Respondent). It covers the legal framework, procedural history, specific allegations, and final rulings issued by the Office of Administrative Hearings (OAH).
---
## I. Case Overview and Legal Framework
### Jurisdiction and Authority
The matter was adjudicated by the Arizona Office of Administrative Hearings (OAH) under the authority of the Arizona Department of Real Estate (ADRE).
* **Governing Law:** The proceedings are governed by **Title 33, Chapter 16** of the Arizona Revised Statutes, known as the **Planned Communities Act (A.R.S. §§ 33-1801 to 33-1818)**.
* **Adjudicator:** Administrative Law Judge (ALJ) Velva Moses-Thompson.
### Case Identification
* **Petitioner:** Senol Pekin.
* **Respondent:** Artesian Ranch Community Association.
* **Docket Numbers:** 23F-H034-REL and 23F-H037-REL (Consolidated).
---
## II. Procedural History and Significant Events
| Date | Event | Description |
| :--- | :--- | :--- |
| January 25, 2023 | Notice of Hearing | ADRE sets the initial hearing dates. |
| February 28, 2023 | Consolidation Order | The ALJ consolidates the two dockets and sets a single hearing for March 20, 2023. |
| February 28, 2023 | Subpoena Issuance | Subpoenas issued for Mandy Rogers, Susanne Roskens, Dennis Berger, Brock O’Neal, Julie Willoughby, Shelley Nelson, and Sherry Swanson. |
| March 13, 2023 | Order on Subpoenas | Dennis Berger's subpoena is **quashed**. Mandy Rogers' subpoena is limited to attendance (no document production). Other motions to quash are denied. |
| March 20, 2023 | Administrative Hearing | The hearing convenes at 9:00 AM. |
| March 28, 2023 | Minute Entry | The ALJ refuses to consider documents filed after March 20, 2023, as the record was closed. |
| April 10, 2023 | Final Decision | The ALJ issues the official Findings of Fact and Conclusions of Law. |
| May 8, 2023 | Rehearing Request | A request for rehearing is filed but forwarded to the ADRE as the OAH loses jurisdiction after a decision is rendered. |
---
## III. Summary of Allegations and Judgments
The Petitioner raised five specific issues regarding the Association's adherence to its Bylaws and Arizona law.
### Issue 1: Annual Meeting Frequency
* **Allegation:** The Association violated Bylaws Article II, Paragraph 2.3 by failing to hold its 2022 annual meeting on the second Wednesday of April.
* **Evidence:** The Association held the meeting in May 2022 instead of April.
* **Ruling:** **Violation Found.** While A.R.S. § 10-3701(e) protects the validity of corporate actions despite timing errors, it does not exempt the Association from adhering to its own Bylaws.
### Issue 2: Organizational Meetings
* **Allegation:** Officers were not elected in a timely or exclusively scheduled Organizational Meeting as required by Bylaws.
* **Evidence:** The Board appointed officers during a regular board meeting in August 2022.
* **Ruling:** **No Violation.** The Bylaws do not require the organizational meeting to be held separately from other board meetings.
### Issue 3: Authority to Call Meetings
* **Allegation:** A meeting on September 22, 2022, was organized by the HOA Manager, who Petitioner argued lacked the authority to call meetings.
* **Evidence:** Board President Susanne Roskens requested Mandy Rogers (Community Manager) to organize the meeting to address a landscaping issue.
* **Ruling:** **No Violation.** The Community Manager acts as an agent of the Board.
### Issue 4: Recording Open Sessions
* **Allegation:** The Association violated A.R.S. § 33-1804(A) by prohibiting the recording of the open session on October 24, 2022.
* **Evidence:** Mandy Rogers informed homeowners they could not record without clarifying that the rule only applied to closed sessions and stated that the Board required advanced notice.
* **Ruling:** **Violation Found.** State law explicitly allows audio and video recording of open meetings and forbids the Board from requiring advance notice.
### Issue 5: Participant Participation (Muting)
* **Allegation:** The Association muted opposing sides during a Zoom meeting on October 24, 2022, preventing them from speaking.
* **Evidence:** The Petitioner was muted due to "aggressive" behavior, but evidence showed he still had multiple opportunities to speak.
* **Ruling:** **No Violation.** Boards may place reasonable time and conduct restrictions on speakers.
---
## IV. Short-Answer Practice Questions
1. **What is the "Preponderance of the Evidence" standard?**
* *Answer:* It is a standard of proof where the evidence must show that a contention is "more probably true than not," or has the "most convincing force."
2. **Which party bears the burden of proof in an OAH hearing regarding a planned community dispute?**
* *Answer:* The Petitioner (Senol Pekin) bears the burden of proof to establish violations.
3. **Why did the ALJ refuse to consider the documents filed on March 27 and March 28, 2023?**
* *Answer:* The evidentiary record was closed on the day of the hearing, March 20, 2023.
4. **According to A.R.S. § 33-1804, what are the rules regarding advanced notice for recording a meeting?**
* *Answer:* The board of directors shall not require advance notice of audiotaping or videotaping of open portions of meetings.
5. **What was the financial penalty imposed on the Respondent for the violations found?**
* *Answer:* The Association was ordered to pay the Petitioner's $1,000 filing fee. No other civil penalty was deemed appropriate.
---
## V. Essay Prompts for Deeper Exploration
1. **The Intersection of Corporate Validity and Bylaw Adherence:** Analyze the ALJ's reasoning in Issue 1. How does the decision balance A.R.S. § 10-3701(e) (which validates corporate actions despite timing errors) with the mandatory nature of Association Bylaws?
2. **Agency and Authority in HOA Management:** Discuss the ruling on Issue 3 regarding the Community Manager's role. To what extent can a third-party management firm (like AAM, LLC) exercise the powers of the Board of Directors?
3. **Open Meeting Rights vs. Orderly Conduct:** Using Issue 5 as a reference, explore the legal limits of a Board's power to "mute" or restrict participants in a digital meeting format. Where is the line between "reasonable time restrictions" and the suppression of "opposing sides"?
---
## VI. Glossary of Important Terms
* **Administrative Law Judge (ALJ):** An official who presides over an administrative hearing and serves as the trier of fact and law.
* **A.R.S. § 33-1804:** The specific Arizona statute governing open meetings, the right to speak, and the right to record meetings within planned communities.
* **CAAM:** Certified Arizona Association Manager (referencing the title of Mandy Rogers).
* **Consolidation:** The legal process of joining two or more separate cases (dockets) into one when they involve common questions of law or fact.
* **Organizational Meeting:** A meeting held within a reasonable time after directors take office to elect officers (e.g., President, Secretary).
* **Planned Communities Act:** The section of Arizona law (Title 33, Chapter 16) that regulates the formation and management of HOAs.
* **Quash:** A legal term meaning to nullify or void, specifically used here regarding a subpoena for Dennis Berger.
* **Respondent:** The party against whom a petition is filed (in this case, the Artesian Ranch Community Association).
# HOA Accountability in Action: Key Lessons from the Pekin vs. Artesian Ranch Ruling In the complex ecosystem of Arizona planned communities, the relationship between homeowners and their Board of Directors often fractures when governance becomes opaque or rules are applied inconsistently. While many disputes are settled through internal grievance processes, some reach a boiling point where legal intervention is the only path to clarity. The case of *Senol Pekin vs. Artesian Ranch Community Association* (No. 23F-H034-REL) stands as a significant real-world example of a homeowner successfully seeking recourse through the Arizona Office of Administrative Hearings (OAH). This ruling stands as a cautionary tale for Boards who treat Bylaws as optional and a roadmap for homeowners seeking to enforce statutory transparency. ## The Core Allegations: A Five-Point Dispute The Petitioner’s challenge centered on five specific allegations, asserting that the Association repeatedly failed to adhere to its own governing documents and Arizona law. According to the Findings of Fact, the dispute involved: * **Failure to Hold Annual Meetings:** Violation of Bylaws Article II, Paragraph 2.3 by failing to hold the 2022 annual meeting on the required date. * **Improper Election Procedures:** Failure to elect officers during an exclusively and timely scheduled Organizational Meeting. * **Unauthorized Meeting Organization:** Alleging a September 2022 board meeting was invalid because it was organized by the Community Manager rather than the Board. * **Prohibition of Recording:** Violation of A.R.S. § 33-1804 by prohibiting a member from recording an open session on October 24, 2022. * **Muting of Participants:** Alleging that muting the Petitioner during a Zoom-based meeting prevented "the opposing side" from being heard, in violation of state law. ## Victory for Transparency: The Ruling on Recording and Bylaws The Administrative Law Judge (ALJ) ruled in favor of the Petitioner on two critical issues, delivering a stern reminder that internal governing documents carry the weight of law. ### Annual Meeting Violations The Association’s Bylaws (Article II, Paragraph 2.3) explicitly mandate that regular annual meetings be held on the second Wednesday of April. In 2022, the Association unilaterally moved this meeting to May. The Association defended this as a "technical violation" that resulted in no harm, citing A.R.S. § 10-3701(e). However, the ALJ rejected this defense with a nuance every Board must understand: while A.R.S. § 10-3701(e) protects the **validity** of corporate actions taken despite timing errors, it does not provide **immunity** from suit or an exception for associations to ignore their own Bylaws. Adherence to mandated timeframes is a requirement, not a suggestion. ### The Right to Record The most significant win for transparency involved the Board’s attempt to restrict meeting recordings. > **STATUTORY PROTECTIONS: A.R.S. § 33-1804** > **Arizona law is clear: persons attending open board meetings may audiotape or videotape the proceedings. The Board of Directors cannot require advance notice for recording and cannot preclude it unless the Board itself provides its own unedited recordings to members upon request. Rules may be adopted to govern recording, but they cannot be used to effectively prohibit the practice.** The ALJ found the Association in direct violation after the Community Manager informed homeowners they could not record and falsely claimed the Board required advance notice. ### Financial and Reputational Outcome While the ALJ determined a civil penalty was not warranted, the Association was ordered to reimburse the Petitioner’s **$1,000 filing fee**. Beyond the dollar amount, the reputational cost of being declared the non-compliant party in a public ruling is a heavy burden for any Board. ## The Limits of Claims: Where the Association Prevailed The ruling also clarified the boundaries of Board authority, finding in favor of the Association on three counts: 1. **Organizational Meetings:** The ALJ ruled that Bylaws do not require "organizational meetings" (where officers are elected) to be a standalone event; they may occur within the context of a regular board meeting. 2. **Management Agency:** The Petitioner’s claim that a meeting was invalid because the HOA Manager organized it was dismissed. The evidence showed Board President **Susanne Roskens** specifically requested Manager Mandy Rogers (of AAM, LLC) to schedule the meeting to address urgent landscaping issues. The ALJ affirmed that management companies act as authorized agents of the Board. 3. **The "Muting" Threshold:** Under A.R.S. § 33-1804, a Board must allow a "reasonable number of persons to speak on each side." While the Petitioner was muted during a Zoom session due to "aggressive behavior," the ALJ found no violation because the evidence showed Pekin still had several other opportunities to speak. Muting is not an automatic violation if the "opposing side" is still given a reasonable chance to be heard. ## Procedural Reality Check: The Life Cycle of an HOA Dispute This case illustrates the complex procedural hurdles involved in OAH litigation. For homeowners and boards alike, the timeline is everything: * **February 28, 2023:** The ALJ consolidated two separate dockets (23F-H034-REL and 23F-H037-REL) to streamline the hearing. * **March 13, 2023:** A significant discovery ruling occurred. The ALJ **quashed the subpoena for Dennis Berger** but maintained subpoenas for Susanne Roskens, Brock O’Neal, and others, demonstrating the limits of who can be compelled to testify. * **March 20, 2023:** The official **Record Closing** date. This is the "point of no return" for evidence. * **March 27 & 28, 2023:** The Petitioner attempted to file additional allegations and evidence. The ALJ issued a Minute Entry **refusing to consider these filings**, as they were submitted after the record had closed. * **Post-Decision:** After the final order in April, the Petitioner sought a rehearing. The OAH issued a Minute Entry stating it lost jurisdiction the moment the decision was rendered. Any further requests for rehearing must be directed to the **Arizona Department of Real Estate (ADRE)**. ## Essential Takeaways for Homeowners and Boards 1. **Bylaws are Not Suggestions:** Even "technical" timing shifts regarding annual meetings are actionable violations. Boards cannot use A.R.S. § 10-3701(e) as a shield to ignore their own governing documents. 2. **Recording is a Statutory Right:** Boards cannot impose arbitrary hurdles, such as mandatory advance notice, on members wishing to record open meetings. Transparency is a protected right under A.R.S. § 33-1804. 3. **The Record is Final:** In an administrative hearing, the window for evidence is narrow. As seen with the rejected March 27/28 filings, late submissions—no matter how relevant they seem—will be ignored once the record is closed. ## Conclusion: Seeking Harmony Through Compliance The *Pekin vs. Artesian Ranch* ruling serves as a vital reminder: transparency is not just a best practice; in Arizona, it is a legal mandate. While the Association prevailed on internal management issues, their failure to respect recording rights and bylaw-mandated schedules resulted in a $1,000 reimbursement order and a public record of non-compliance. To maintain community harmony and avoid the costs of litigation, both homeowners and board members must anchor their actions in a strict reading of A.R.S. § 33-1804.
Case Participants
Petitioner Side
- Senol Pekin (Petitioner)
Testified on his own behalf - Julie Willoughby (Witness)
Testified for Petitioner; also spelled Julie Willowby in hearing decision - Shelley Nelson (Witness)
Testified for Petitioner; also spelled Shelly Nelson in hearing decision - Sherry Swanson (Witness)
Testified for Petitioner
Respondent Side
- Ashley N. Moscarello (Attorney)
Goodman Law Group
Appeared on behalf of Respondent Artesian Ranch Community Association - Daniel S. Francom (Attorney)
Goodman Law Group
Listed in service records for Respondent - Susanne Easterday Roskens (Director of Board / Witness)
Artesian Ranch Community Association
Testified for Respondent; Board President - Mandy Rogers (Community Manager Employee / Witness)
AAM, LLC
Employee of Respondent's Community Manager; organized meetings and testified
Neutral Parties
- Velva Moses-Thompson (Administrative Law Judge)
Office of Administrative Hearings
Assigned judge who issued the decision and orders - Susan Nicolson (Commissioner)
Arizona Department of Real Estate
Received administrative copies of orders and decisions
Other Participants
- Dennis Berger (Subpoenaed Individual)
Subpoena was quashed - Brock O'Neal (Subpoenaed Individual)
Motion to quash his subpoena was denied
