Case Summary
| Case ID | 14F-H1414007-BFS |
|---|---|
| Agency | DFBLS |
| Tribunal | OAH |
| Decision Date | 2014-11-24 |
| Administrative Law Judge | M. Douglas |
| Outcome | yes |
| Filing Fees Refunded | $550.00 |
| Civil Penalties | $200.00 |
Parties & Counsel
| Petitioner | Greg Fish | Counsel | — |
|---|---|---|---|
| Respondent | Flynn Lane Biltmore Assoc, Inc. | Counsel | Craig Armstrong |
Alleged Violations
CC&R 8(B)
Outcome Summary
The Tribunal found the Respondent violated CC&R 8(B) by not following the percentage-based assessment method. The Petitioner prevailed and was awarded the filing fee reimbursement.
Key Issues & Findings
Incorrect Assessment Method
Petitioner alleged assessments were billed incorrectly as equal splits among units rather than prorated based on proportionate share of Common Expenses as required by CC&Rs. Respondent admitted to the practice but cited historical precedent.
Orders: Respondent shall fully comply with applicable provisions of its CC&Rs in the future. Respondent shall pay Petitioner filing fee of $550.00. Respondent shall pay civil penalty of $200.00.
Filing fee: $550.00, Fee refunded: Yes, Civil penalty: $200.00
Disposition: petitioner_win
- CC&R 8(B)
- CC&R 7
Decision Documents
14F-H1414007-BFS Decision – 416772.pdf
14F-H1414007-BFS Decision – 418764.pdf
14F-H1414007-BFS Decision – 423789.pdf
**Case Summary: *Greg Fish v. Flynn Lane Biltmore Assoc, Inc.***
**Case No.** 14F-H1414007-BFS
**Forum:** Arizona Office of Administrative Hearings (Department of Fire, Building and Life Safety)
**Date of Hearing:** November 4, 2014
**Administrative Law Judge:** M. Douglas
**Overview and Main Issues**
This case involved a dispute between Petitioner Greg Fish, a unit owner, and Respondent Flynn Lane Biltmore Assoc, Inc. (Biltmore), a condominium association. The central legal issue was whether the Association violated its Covenants, Conditions, and Restrictions (CC&Rs) regarding the calculation of homeowner assessments,. Specifically, the Petitioner alleged that Biltmore billed assessments equally among all units, whereas CC&Rs 7 and 8 required assessments to be prorated based on each unit's proportionate share of ownership of the Common Elements,.
**Key Facts and Arguments**
* **Petitioner’s Position:** Mr. Fish argued that the Association knowingly failed to follow the CC&Rs. He testified that assessments should be based on square footage/percentage ownership. Witnesses for the Petitioner calculated that he had been overcharged approximately $1,860 over the previous six years due to the incorrect billing method,,.
* **Respondent’s Position:** Biltmore admitted that the CC&Rs required prorated assessments. However, the Association argued that equal billing had been the policy for 46 years, originally because the cost difference was negligible (43 cents in 1968). They claimed the majority of owners preferred equalized assessments and that the Resolution Trust Corporation (RTC) had mandated equal assessments in the 1980s,.
* **Testimony:** Both the former community manager and the current Board President admitted they understood Biltmore was not following the CC&Rs but continued the practice anyway,. The current property manager testified that the Board finally voted on November 1, 2014, to implement the correct percentage-based method effective January 1, 2015.
**Legal Findings**
The Administrative Law Judge (ALJ) found the Petitioner’s testimony and evidence credible. The Tribunal concluded that Biltmore knowingly violated CC&R 8(B) by splitting assessments equally rather than using the required percentage of ownership method,. The ALJ noted that the Association persisted in this violation despite knowledge of the requirement.
**Outcome and Order**
The ALJ ruled in favor of the Petitioner, deeming him the prevailing party. The final order mandated the following:
1. **Compliance:** Biltmore must fully comply with the applicable provisions of its CC&Rs in the future.
2. **Restitution:** Biltmore was ordered to reimburse the Petitioner’s filing fee of $550.00.
3. **Penalty:** Biltmore was ordered to pay a civil penalty of $200.00 to the Department.
**Final Status**
The Department of Fire, Building and Life Safety did not reject or modify the ALJ's decision within the statutory timeframe. Consequently, the decision was certified as the final administrative decision on January 8, 2015,.
Case Participants
Petitioner Side
- Greg Fish (petitioner)
Flynn Lane Biltmore Assoc, Inc. (Member)
Also referred to as Gregory James Fish - Karen Jackson (witness)
Property manager for Mr. Fish
Respondent Side
- Philip Brown (attorney)
Brown Alcott, PLLC - Craig Armstrong (attorney)
Brown Alcott, PLLC / Brown-Olcott, PLLC / The Brown Law Group, PLLC - Maureen Watrous (witness)
Flynn Lane Biltmore Assoc, Inc.
Property manager for Biltmore - Thomas E. Tower (witness)
Flynn Lane Biltmore Assoc, Inc.
Board President
Neutral Parties
- M. Douglas (ALJ)
Office of Administrative Hearings - Gene Palma (Agency Director)
Department of Fire, Building and Life Safety - Joni Cage (Agency Staff)
Department of Fire, Building and Life Safety
c/o for Gene Palma - Cruz Serrano (scribe)
Signatory on mailing list - Michael Latz (witness)
Previous community manager for Biltmore - Lewis D. Kowal (Acting Director)
Office of Administrative Hearings
Certified the ALJ Decision - Rosella J. Rodriguez (scribe)
Signatory on mailing list for The Brown Law Group
