Case Summary
| Case ID | 16F-H1616013-BFS |
|---|---|
| Agency | ADRE |
| Tribunal | OAH |
| Decision Date | 2016-08-22 |
| Administrative Law Judge | Diane Mihalsky |
| Outcome | yes |
| Filing Fees Refunded | $500.00 |
| Civil Penalties | $0.00 |
Parties & Counsel
| Petitioner | John & Debborah Sellers | Counsel | — |
|---|---|---|---|
| Respondent | The Crossings at Willow Creek HOA | Counsel | Joshua M. Bolen |
Alleged Violations
A.R.S. § 33-1804
Outcome Summary
The ALJ granted summary judgment in favor of the Petitioners because the Respondent admitted to violating A.R.S. § 33-1804 by appointing board members without a public meeting. The Respondent was ordered to reimburse the filing fee, but civil penalties were declined because the violation was based on a mistake of law rather than intentional misconduct.
Key Issues & Findings
Violation of Open Meeting Law (Board Appointments)
Petitioners alleged the remaining board member appointed new directors to fill vacancies without a public meeting. Respondent admitted the violation but claimed exigent circumstances due to lack of quorum and expiring management contract.
Orders: Respondent ordered to reimburse Petitioners' filing fee. No civil penalty imposed as the violation was not intentional or repeated.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
- A.R.S. § 33-1804
- Dennis J. Legere and Pinnacle Peak Shadows HOA
Decision Documents
16F-H1616013-BFS Decision – 505356.pdf
16F-H1616013-BFS Decision – 513402.pdf
**Case Summary: Sellers v. The Crossings at Willow Creek HOA**
**Case No. 16F-H1616013-BFS**
**Proceedings and Key Facts**
Petitioners John and Debborah Sellers filed a motion for summary judgment against The Crossings at Willow Creek HOA (Respondent) regarding actions taken by the HOA board,. The dispute arose after three of the Respondent's four board members resigned in July 2015. The sole remaining board member continued to conduct business and appointed new members to serve the remaining terms in January 2016.
**Main Issues and Arguments**
The central legal issue was whether the remaining board member's actions violated A.R.S. § 33-1804, which governs public meetings for homeowners' associations.
* **Petitioners' Position:** They argued the Respondent violated the statute and legal precedent established in *Dennis J. Legere and Pinnacle Peak Shadows HOA* regarding open meetings. They requested reimbursement of their filing fee and the imposition of sanctions,.
* **Respondent's Position:** The Respondent acknowledged that the "emergency" exception to A.R.S. § 33-1804 did not apply to this situation and admitted to the violation,. However, the Respondent argued against civil penalties, claiming the violation was not intentional. They asserted the remaining board member acted under a mistaken belief of necessity due to a lack of directors and an expiring management contract.
**Legal Analysis**
The Administrative Law Judge (ALJ) distinguished this case from *Legere*, where a board had routinely violated open meeting laws for convenience. In this instance, the ALJ found the Respondent did not routinely violate the law but acted due to "exigent circumstances based upon a mistake about the law’s requirements",. Under A.R.S. § 41-2198.02(A), the Director has discretion to levy civil penalties. The ALJ determined that while the statute was violated, the lack of malicious intent meant a civil penalty was not warranted,.
**Final Decision and Outcome**
On July 7, 2016, ALJ Diane Mihalsky issued an Amended Administrative Law Judge Decision:
1. **Summary Judgment:** Granted in favor of the Petitioners because the Respondent admitted to violating A.R.S. § 33-1804.
2. **Reimbursement:** Respondent was ordered to reimburse the Petitioners for their filing fee.
3. **Penalties:** No civil penalty was levied. The Respondent was placed on notice that future violations would result in penalties,.
4. **Hearing:** The hearing scheduled for August 10, 2016, was vacated as unnecessary.
The Department of Real Estate did not reject or modify the decision within the statutory timeframe. Consequently, on August 22, 2016, the decision was certified as the final administrative decision,.
Case Participants
Petitioner Side
- John Sellers (petitioner)
- Debborah Sellers (petitioner)
Respondent Side
- Joshua M. Bolen (attorney)
Carpenter, Hazlewood, Delgado & Bolen, PLC
Attorney for The Crossings at Willow Creek HOA
Neutral Parties
- Diane Mihalsky (ALJ)
Office of Administrative Hearings
Administrative Law Judge - Greg Hanchett (Interim Director)
Office of Administrative Hearings
Certified the decision - Debra Blake (Interim Director)
Department of Fire Building and Life Safety
Recipient of electronic transmission - Judy Lowe (Commissioner)
Department of Real Estate
Recipient of final certification - Louis Dettorre (Agency Staff)
Department of Real Estate
Attn line for Commissioner Lowe - F. Del Sol (Administrative Staff)
Office of Administrative Hearings
Signed transmission for ALJ - Rosella J. Rodriguez (Administrative Staff)
Office of Administrative Hearings
Signed transmission for Director Hanchett
