John & Debborah Sellers vs. The Crossings at Willow Creek HOA

Posted on July 6, 2016 by [email protected]

Case Summary

Case ID	16F-H1616013-BFS
Agency	ADRE
Tribunal	OAH
Decision Date	2016-08-22
Administrative Law Judge	Diane Mihalsky
Outcome	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.
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

Cited:

A.R.S. § 33-1804
Dennis J. Legere and Pinnacle Peak Shadows HOA

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Video Overview

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Decision Documents

16F-H1616013-BFS Decision – 505356.pdf

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16F-H1616013-BFS Decision – 513402.pdf

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16F-H1616013-BFS Decision – 505356.pdf

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16F-H1616013-BFS Decision – 513402.pdf

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Administrative Law Judge Decision: Sellers v. The Crossings at Willow Creek HOA

Executive Summary

This briefing document details the administrative legal proceedings and final decision in the case of John & Debborah Sellers (Petitioners) vs. The Crossings at Willow Creek HOA (Respondent), Case No. 16F-H1616013-BFS.

The dispute centered on the Respondent's violation of Arizona Revised Statutes (A.R.S.) § 33-1804 regarding open meeting requirements. Following the resignation of three out of four board members in July 2015, the sole remaining board member continued to conduct HOA business and eventually appointed new members in January 2016 without holding public meetings.

The Administrative Law Judge (ALJ) granted Summary Judgment to the Petitioners, ordering the Respondent to reimburse the Petitioners' filing fees. However, the ALJ declined to impose civil penalties, citing the HOA's lack of intentional or routine misconduct and the existence of exigent circumstances. This decision was certified as final by the Department of Real Estate on August 22, 2016, after the department failed to take action to modify or reject the recommendation.

Detailed Analysis of Key Themes

1. Statutory Compliance and Public Meeting Requirements

The core of the legal violation involved A.R.S. § 33-1804, which mandates that meetings of a Homeowners Association board must be open to all members. The Respondent admitted to violating this statute by:

Allowing a single remaining board member to conduct business for several months.
Appointing interim board members in January 2016 without following the emergency meeting requirements set forth in A.R.S. § 33-1804(D)(2).

The Respondent acknowledged that "emergency" exceptions were not properly applied, and they agreed to comply with these requirements moving forward.

2. Discretionary Authority and Civil Penalties

A significant portion of the analysis focused on A.R.S. § 41-2198.02(A), which states that an ALJ may levy a civil penalty for violations. The use of the word "may" affords the Director discretion rather than a mandate. In determining whether to penalize the HOA, the ALJ compared this case to Dennis J. Legere and Pinnacle Peak Shadows HOA:

The Legere Case: Involved a board that routinely and repeatedly took actions via email to avoid public meetings for its own convenience.
The Current Case: The ALJ found that The Crossings at Willow Creek HOA did not repeatedly or routinely violate the law. Instead, the violation was born from "exigent circumstances" and a mistake regarding legal requirements when the board was reduced to a single member.

3. Exigent Circumstances as a Mitigating Factor

The Respondent argued that their actions, while technically in violation of the law, were driven by necessity. The HOA "lacked the required number of Directors under its bylaws" and faced the expiration of its management contract. The ALJ accepted these as mitigating factors, concluding that the remaining board member did not intentionally violate the statute but acted based on a misunderstanding of the law during a crisis.

Important Quotes with Context

Quote	Context
"The remaining board member continued to conduct Respondent’s business and in January 2016, appointed board members to serve the remaining terms… in violation of A.R.S. § 33-1804."	The fundamental factual basis for the Petitioners' motion for summary judgment.
"Respondent acknowledged that because the exceptions to the public meetings required by A.R.S. § 33-1804(A) do not include an emergency… the remaining board member’s actions violated the statute’s requirements."	The HOA's formal admission of the statutory violation.
"By use of the word, 'may,' the statute affords the Director… discretion to levy a civil penalty, even in cases where the Respondent homeowners’ association admits a statutory violation."	The legal reasoning used to justify why a fine was not mandatory despite the admitted guilt.
"Respondent did not repeatedly or routinely violate the law, but instead took action due to exigent circumstances based upon a mistake about the law’s requirements."	The ALJ’s distinction between this case and more severe, intentional violations found in other precedents.
"Because it is on notice of the law’s requirements, if Respondent again violates A.R.S. § 33-1804, a civil penalty should be imposed at that time."	A formal warning that the HOA's "mistake" defense will not be valid for future infractions.

Actionable Insights

For Homeowners Association Boards

Adherence to Open Meeting Laws: Boards must strictly follow A.R.S. § 33-1804, even during internal crises. Vacancies do not suspend the requirement for public meetings or proper emergency meeting protocols under A.R.S. § 33-1804(D)(2).
Documentation of Exigency: If a board must act under pressure, it should still attempt to align with statutory requirements to avoid "notice of violation" which makes future penalties more likely.
Immediate Corrective Action: The Respondent’s agreement to reimburse filing fees and commit to future compliance likely helped avoid more severe civil penalties.

For Homeowners (Petitioners)

Summary Judgment Strategy: Petitioners can successfully move for summary judgment when an HOA admits to the facts of a statutory violation, even if the HOA claims the violation was unintentional.
Recovery of Costs: While civil penalties are discretionary and paid to the state, homeowners can successfully petition for the reimbursement of their filing fees when a violation is confirmed.
Precedent as a Tool: Using previous cases (like Legere) is essential in administrative hearings to argue for or against the severity of sanctions.

Final Administrative Status

The Department of Real Estate had until August 10, 2016, to accept, reject, or modify the ALJ's decision. As no action was taken by that deadline, the decision was officially certified as final on August 22, 2016. This certification triggers the five-day window for the effective date of the order and begins the timeline for any potential requests for rehearing or judicial review in Superior Court.

Study Guide: Sellers v. The Crossings at Willow Creek HOA (Case No. 16F-H1616013-BFS)

This study guide provides a comprehensive analysis of the administrative law case involving John and Debborah Sellers and The Crossings at Willow Creek HOA. It examines the legal requirements for homeowners association (HOA) board actions, the interpretation of Arizona Revised Statutes (A.R.S.), and the discretionary power of administrative law judges in levying penalties.

I. Case Overview and Core Themes

The Dispute

The case originated when John and Debborah Sellers (Petitioners) filed a petition against The Crossings at Willow Creek HOA (Respondent). The Petitioners alleged that the HOA violated state law following the resignation of three out of four board members in July 2015. The remaining board member continued to conduct HOA business and appointed new members in January 2016 without adhering to public meeting requirements.

Central Legal Issues

Public Meeting Requirements: Whether a lone board member can conduct business and appoint new members without a public meeting under A.R.S. § 33-1804.
Emergency Exceptions: Whether "exigent circumstances" (such as an expiring management contract and lack of a quorum) justify bypassing statutory requirements for public meetings.
Discretionary Penalties: The criteria used by the Department of Real Estate and Administrative Law Judges (ALJs) to determine if civil penalties are warranted under A.R.S. § 41-2198.02(A).

II. Statutory Framework and Legal Precedent

The following table outlines the primary statutes and legal precedents cited in the case:

Reference	Summary of Application
A.R.S. § 33-1804(A)	Requires that HOA meetings be open to all members of the association.
A.R.S. § 33-1804(D)(2)	Sets specific requirements for "emergency" meetings that bypass standard notice/publicity; the Respondent failed to meet these requirements.
A.R.S. § 41-2198.02(A)	Grants the ALJ authority to order compliance and "may" levy a civil penalty (not to exceed $500 in specific housing contexts).
A.R.S. § 41-1092.08	Governs the timeline for the Department of Real Estate to accept, reject, or modify an ALJ decision.
Legere v. Pinnacle Peak Shadows	Legal precedent where a board routinely used email for decisions; used in this case to contrast "intentional" vs. "mistaken" violations.

III. Summary of Findings and Decision

The Violation

The Respondent admitted to violating A.R.S. § 33-1804. While they argued the remaining board member acted out of necessity (the next meeting was not until February 2016 and the management contract was expiring), the ALJ ruled that the statutory exceptions to public meetings do not include a general "emergency" unless specific procedures are followed.

The Remedy

Summary Judgment: Granted to the Petitioners because the violation was acknowledged.
Reimbursement: The HOA was ordered to reimburse the Petitioners' filing fee.
Civil Penalties: The ALJ declined to impose a civil penalty. The decision noted that the violation was a "mistake about the law’s requirements" rather than a "routine or repeated" intentional violation like that seen in the Legere case.

Finality of the Decision

The ALJ decision was transmitted on July 6, 2016. Under A.R.S. § 41-1092.08, the Department of Real Estate had until August 10, 2016, to act. Because no action was taken by the Department, the ALJ decision was certified as final on August 22, 2016.

IV. Short-Answer Practice Questions

1. Why did the Petitioners move for summary judgment against the HOA? Answer: Because the HOA's sole remaining board member conducted business and appointed new members in January 2016 without following the public meeting requirements set forth in A.R.S. § 33-1804.

2. What reason did the Respondent give for the board member's unilateral actions? Answer: The HOA argued it lacked the required number of directors under its bylaws and its management contract was set to expire before the next regularly scheduled meeting in February 2016.

3. Under A.R.S. § 41-2198.02(A), is an ALJ required to levy a civil penalty if a violation is found? Answer: No. The statute uses the word "may," affording the Director discretion to levy or withhold a penalty based on the circumstances of the violation.

**4. How did the ALJ distinguish this case from the Legere precedent?** Answer: In Legere, the board routinely used email for decisions to serve its own convenience. In this case, the ALJ found the HOA acted due to exigent circumstances and a mistake of law, rather than a routine or intentional effort to bypass the law.

5. What happens if the Department of Real Estate fails to accept, reject, or modify an ALJ decision within the statutory timeframe? Answer: Pursuant to A.R.S. § 41-1092.08(D), the ALJ decision is certified as the final administrative decision.

V. Essay Prompts for Deeper Exploration

Exigent Circumstances vs. Statutory Compliance: Analyze the tension between a board's fiduciary duty to maintain operations (e.g., renewing management contracts) and the strict requirements of A.R.S. § 33-1804. Should the law allow for more flexibility when a board loses its quorum?
The Role of Intent in Administrative Sanctions: Discuss why the ALJ determined that a "mistake about the law's requirements" did not warrant a civil penalty. Compare the deterrent effect of a warning versus a financial penalty in the context of HOA governance.
The Certification Process: Explain the procedural journey of an ALJ decision from the Office of Administrative Hearings to final certification by the Department of Real Estate. Why is the timeline for "accepting, rejecting, or modifying" significant for the parties involved?

VI. Glossary of Important Terms

A.R.S. § 33-1804: The Arizona statute governing open meetings for planned communities.
Administrative Law Judge (ALJ): An official who presides over hearings and moves for decisions in administrative law cases.
Certification of Decision: The process by which an ALJ’s recommendation becomes a final, binding agency action.
Civil Penalty: A financial sanction levied by a government agency for a violation of laws or regulations.
Exigent Circumstances: Situations requiring immediate action or urgency, often used as a defense for bypassing standard procedures.
Motion for Summary Judgment: A legal request to the judge to rule in favor of one party without a full trial, based on the fact that the essential facts are not in dispute.
Petitioners: The parties (John & Debborah Sellers) who initiated the legal action.
Respondent: The party (The Crossings at Willow Creek HOA) against whom the action was brought.
Sanctions: Penalties or other means of enforcement used to provide incentives for obedience with the law.

When One Board Member Acts Alone: Lessons from Sellers vs. The Crossings at Willow Creek

1. Introduction: A Board in Crisis

It is a nightmare scenario for community governance: a sudden wave of resignations leaves the Board of Directors without a quorum, effectively creating a "ghost board." In these moments of perceived crisis, the remaining leadership often feels a desperate pressure to act unilaterally to keep the association functional. However, as community association leaders must understand, administrative exigency does not grant a license to bypass Arizona’s open meeting laws.

The case of John & Debborah Sellers vs. The Crossings at Willow Creek HOA (No. 16F-H1616013-BFS) serves as a definitive lesson in this balance. This dispute was adjudicated through the Office of Administrative Hearings (OAH), which serves as the statutory forum for resolving HOA disputes in Arizona. The central question: Can a single remaining board member legally conduct business and appoint new directors in private?

2. The Conflict: One Member, Multiple Appointments

The conflict began following a leadership vacuum in July 2015, when three out of the four sitting board members resigned. For several months, the community was governed by a sole director. In January 2016, this remaining director took unilateral action to appoint new members to fill the vacancies.

The Association defended these actions by citing a state of emergency. They argued that because the board lacked the minimum number of directors required by its bylaws and the association’s management contract was nearing expiration, immediate action was necessary. As a legal analyst, it is critical to note a fundamental principle here: statutory requirements, such as the Open Meeting Act, override internal bylaws and contractual pressures.

Fact Check: The Association claimed urgency to justify appointments in January 2016, yet a regularly scheduled board meeting was already on the calendar for February 22, 2016. This proves that a legal, public forum for these appointments was less than 30 days away, undermining the "emergency" defense.

3. The Legal Violation: Navigating A.R.S. § 33-1804

Arizona law is unequivocal regarding the transparency of board actions. Under A.R.S. § 33-1804(A), all meetings of the association and the board of directors must be open to all members. The Association eventually admitted during legal proceedings that their actions failed to comply with these requirements.

The Administrative Law Judge (ALJ) found the HOA’s actions illegal based on the following statutory failures:

Failure to Meet Emergency Standards: For a meeting to qualify as an "emergency" under A.R.S. § 33-1804(D)(2), the board must provide notice to members "by any means the board deems appropriate" and must "state the emergency" clearly within the meeting minutes. The Respondent failed to provide such notice or documentation.
Lack of Broad Exceptions: The ALJ noted that A.R.S. § 33-1804(A) does not contain a blanket exception for "emergencies." To bypass the standard notice requirements of the Open Meeting Act, a board must strictly follow the procedural safeguards found in subsection (D).
Defining Urgency vs. Convenience: An "emergency" is a legal term of art requiring immediate necessity to protect the community; it is not a subjective tool used for administrative convenience or to bypass the membership.

4. The Ruling: Accountability vs. Intent

In her decision, ALJ Diane Mihalsky granted Summary Judgment to the Petitioners. However, the ruling made a distinct separation between a board's "mistake of law" and "routine bad faith." While the Association was ordered to reimburse the Sellers for their $500 filing fee, the Judge declined to levy additional civil penalties at that time.

The following table compares the Sellers case with the precedent set in Legere vs. Pinnacle Peak Shadows HOA:

Feature	Legere Case (No. 14F-H1414001)	Sellers Case (No. 16F-H1616013)
Nature of Intent	Routine and repeated violations for board convenience (conducted via email).	Single-instance violation due to exigent circumstances and a mistake of law.
Legal Consequence	Civil penalties were levied against the board.	No civil penalty at this time; reimbursement of $500 filing fee only.

The Judge reasoned that because the director acted out of a mistaken understanding during a crisis rather than a routine practice of ignoring the law, a civil penalty under A.R.S. § 41-2198.02(A) was not yet warranted.

5. Finality and the Path Forward

The timeline of this case highlights the transition of oversight within Arizona’s regulatory agencies. The ALJ's decision was initially transmitted on July 6, 2016, to the Department of Fire Building and Life Safety. However, during the finalization process, these functions were consolidated under the Department of Real Estate.

By August 10, 2016, the Department of Real Estate had taken no action to reject or modify the ALJ’s decision. Consequently, on August 22, 2016, the decision was certified as the final administrative action of the Department.

In a stern warning to the Association, Judge Mihalsky noted that the HOA is now legally "on notice." The decision explicitly states that if the Association violates A.R.S. § 33-1804 again, "a civil penalty should be imposed at that time," as they can no longer claim ignorance of the statute.

6. Key Takeaways for HOA Boards and Homeowners

As an educator in community association law, I advise all boards to distill this case into three primary lessons:

Process Over Expediency: Internal pressures—such as expiring management contracts or bylaw requirements for a minimum number of directors—never justify a violation of state law. Public transparency is the non-negotiable priority.
The "Emergency" High Bar: To bypass standard meeting notices, the situation must be a genuine emergency, and the board must document the emergency in the minutes and provide whatever notice is possible under A.R.S. § 33-1804(D)(2).
The Finality of Being "On Notice": Boards often receive leniency for a first-time "mistake of law." However, once an OAH ruling is issued, that leniency vanishes. Future violations by this Association will almost certainly result in aggressive civil penalties.

Homeowners have the statutory right to witness the business of their association. This case reinforces that even in a crisis, the board works for the members, and that work must be done in the light of day.

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

Sellers, John & Debborah vs. Crossings at Willow Creek Property

Posted on January 17, 2013 by [email protected]

Case Summary

Case ID	12F-H1212002-BFS, 12F-H1212009-BFS
Agency	Department of Fire, Building and Life Safety
Tribunal	OAH
Decision Date	2013-01-17
Administrative Law Judge	M. Douglas
Outcome	The ALJ dismissed both petitions (consolidated). The judge ruled that the Architectural Review Committee meetings were not regularly scheduled and thus not subject to open meeting notice requirements. Additionally, the judge ruled that the records requested by Petitioners were properly withheld under attorney-client privilege.
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	John and Debborah Sellers	Counsel	—
Respondent	Crossings at Willow Creek Property Owners Association	Counsel	Joshua M. Bolen

Alleged Violations

A.R.S. § 33-1804
A.R.S. § 33-1805

Outcome Summary

The ALJ dismissed both petitions (consolidated). The judge ruled that the Architectural Review Committee meetings were not regularly scheduled and thus not subject to open meeting notice requirements. Additionally, the judge ruled that the records requested by Petitioners were properly withheld under attorney-client privilege.

Why this result: Petitioners failed to prove by a preponderance of the evidence that the HOA violated statutes or governing documents; specific exceptions for non-regularly scheduled meetings and privileged records applied.

Key Issues & Findings

Failure to notice and conduct publicly ARC Meetings

Petitioners alleged that the ARC failed to notice and conduct meetings publicly. The HOA argued ARC meetings are not regularly scheduled and occur only as necessary, thus not requiring notice.

Orders: Petition dismissed; no action required.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Failure to provide requested HOA records

Petitioners requested attorney invoices and communications. The HOA denied the request based on attorney-client privilege.

Orders: Petition dismissed; no action required.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Video Overview

Audio Overview

Decision Documents

12F-H1212002-BFS Decision – 321619.pdf

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12F-H1212002-BFS Decision – 327760.pdf

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12F-H1212002-BFS Decision – 321619.pdf

Uploaded 2026-01-25T15:26:16 (129.8 KB)

12F-H1212002-BFS Decision – 327760.pdf

Uploaded 2026-01-25T15:26:16 (58.9 KB)

Briefing Document: Sellers v. Crossings at Willow Creek Property Owners Association

Executive Summary

This briefing document summarizes the administrative litigation (Case Nos. 12F-H1212002-BFS and 12F-H1212009-BFS) involving John and Debborah Sellers (Petitioners) and the Crossings at Willow Creek Property Owners Association (Respondent). The disputes, heard by the Arizona Office of Administrative Hearings, centered on two primary allegations: the Association’s failure to notice and conduct public Architectural Review Committee (ARC) meetings, and the Association’s refusal to provide specific records, including attorney invoices and third-party communications.

Following hearings held on September 26, 2012, and January 4, 2013, Administrative Law Judge (ALJ) M. Douglas issued a decision on January 17, 2013, dismissing both petitions. The ALJ concluded that the ARC meetings were not "regularly scheduled" and therefore not subject to statutory notice requirements. Furthermore, the ALJ ruled that the records withheld by the Association were protected under attorney-client privilege and pending litigation exceptions. This decision was officially certified as the final administrative decision on February 28, 2013.

Detailed Analysis of Key Themes

1. The Distinction of "Regularly Scheduled" Meetings

A central theme of the litigation was the interpretation of A.R.S. § 33-1804(A), which mandates that "regularly scheduled committee meetings" be open to all members. The Petitioners argued that the ARC’s failure to notice these meetings violated both state law and community documents.

However, testimony from Association representatives established a different operational reality:

Ad Hoc Scheduling: ARC meetings were described as occurring "from time to time as necessary" or "on demand," depending entirely on the submission of architectural applications.
Bylaw Compliance: The Association’s Bylaws (Article XI Section 3) explicitly state the ARC shall meet "from time to time as necessary."
Informal Venue: Testimony revealed that meetings often took place at committee members' residences and, while not formally noticed, had never been closed to a member who specifically requested to attend.

The ALJ determined that because the meetings were irregular and demand-driven rather than "regularly scheduled," the Association was not legally obligated to provide public notice.

2. Statutory Records Disclosure vs. Legal Privilege

The second major theme involved the balance between a homeowner's right to examine Association records (A.R.S. § 33-1805) and the Association's right to protect sensitive legal information. The Petitioners sought invoices from the Association’s attorneys and communications with third parties, arguing these did not constitute privileged material.

The Association successfully defended its refusal to disclose these documents by citing:

Pending Litigation: The City of Prescott was involved in civil litigation with the Association at the time of the hearing.
Attorney-Client Privilege: The Association argued that the withheld documents related to legal advice or pending/contemplated litigation.
Statutory Exceptions: A.R.S. § 33-1805(B) explicitly allows associations to withhold records related to privileged communications and pending litigation.

The ALJ found that the Association’s refusal was consistent with these statutory protections, and the Petitioners failed to prove that the refusal violated the law or community documents.

3. Burden of Proof in Administrative Proceedings

The case highlights the procedural requirement that the party asserting a claim—in this case, the Petitioners—bears the "burden of proof." Under Arizona Administrative Code R2-19-119, the standard of proof is a "preponderance of the evidence," meaning the petitioner must prove their claims are "more likely true than not." The ALJ repeatedly noted that the Petitioners failed to meet this threshold for both the meeting notice and the records disclosure claims.

Important Quotes and Context

Regarding ARC Meeting Frequency

"The Architectural Review Committee shall meet from time to time as necessary to perform its duties hereunder… The Committee shall keep and maintain a written record of all actions taken by it at such meetings or otherwise."

— Crossings’ Bylaws, Article XI Section 3 (Context: This provision was used to establish that the ARC was not required to have a regular, predictable schedule).

"ARC meetings are not noticed but are open to all members… the committee has never denied access to any member to attend an ARC meeting… the committee has never received a request from an owner to attend an ARC meeting."

— Brenda Doziar, Board and ARC Member (Context: Testimony provided to show the Association did not intentionally exclude members, but rather operated informally based on submission volume).

Regarding Open Meeting Statutes

"Notwithstanding any provision in the declaration, bylaws or other documents to the contrary, all meetings of the members' association and the board of directors, and any regularly scheduled committee meetings, are open to all members of the association…"

— A.R.S. § 33-1804(A) (Context: The legal baseline for the Petitioners’ argument, which ultimately failed because the ARC meetings were deemed not "regularly scheduled").

Regarding Records Exceptions

"Books and records kept by or on behalf of the association and the board may be withheld from disclosure to the extent that the portion withheld relates to any of the following: 1. Privileged communication between an attorney for the association and the association. 2. Pending litigation."

— A.R.S. § 33-1805(B) (Context: The legal justification used by the Association to deny the Petitioners' request for attorney invoices and third-party correspondence).

Actionable Insights

Based on the findings and conclusions of the Administrative Law Judge, the following insights can be derived regarding Association governance and member rights:

Definition of Committee Schedules: Associations can avoid the statutory requirement for public meeting notices if committees (like the ARC) meet on an "as-needed" basis rather than on a "regularly scheduled" basis. If a committee meeting is not on a fixed recurring schedule, it may not trigger the notice requirements of A.R.S. § 33-1804.
Documentation of "As-Needed" Status: To defend against claims of secret meetings, Associations should ensure their Bylaws or CC&Rs explicitly state that committees meet "as necessary" or "from time to time," and they should maintain minutes of these meetings to document all actions taken.
Protection of Legal Records: Associations are within their rights to withhold attorney invoices and correspondence if they relate to pending litigation or legal advice. Homeowners seeking such records face a high bar to prove that such documents do not fall under the statutory exceptions of A.R.S. § 33-1805.
Member Requests for Attendance: While notice may not be required for ad hoc meetings, refusing a member's specific request to attend an open session could create legal vulnerability. In this case, the Association’s defense was strengthened by the fact that they had never denied a request for attendance.
Burden of Evidence: Petitioners in administrative hearings must provide concrete evidence that a violation occurred. Mere allegations of non-compliance are insufficient to meet the "preponderance of the evidence" standard required to prevail against an Association.

Study Guide: Sellers v. Crossings at Willow Creek Property Owners Association

This study guide provides a comprehensive overview of the administrative legal proceedings between John and Debborah Sellers and the Crossings at Willow Creek Property Owners Association. It examines the application of Arizona Revised Statutes (A.R.S.) regarding homeowners' association (HOA) governance, open meeting requirements, and the disclosure of association records.

1. Case Overview and Key Entities

The consolidated cases (No. 12F-H1212002-BFS and No. 12F-H1212009-BFS) involve a dispute over the transparency of committee meetings and the accessibility of specific legal and financial records within a planned community.

Key Parties and Entities

Entity	Role/Description
John and Debborah Sellers	Petitioners; homeowners and members of the Crossings at Willow Creek.
Crossings at Willow Creek POA	Respondent; the homeowners' association (HOA) governing the community in Prescott, Arizona.
Office of Administrative Hearings	The Arizona state agency responsible for conducting the hearing and issuing the decision.
Dept. of Fire, Building and Life Safety	The state department authorized to receive petitions from HOA members and associations.
Architectural Review Committee (ARC)	A committee within the HOA responsible for reviewing property applications and architectural guidelines.

Significant Individuals

M. Douglas: The Administrative Law Judge (ALJ) who presided over the hearings and issued the Findings of Fact and Conclusions of Law.
G. Eugene Neil: Interim City Attorney for Prescott; testified regarding public records and ongoing litigation between the City and the HOA.
Brenda Doziar: HOA Board member and ARC member; provided testimony on ARC meeting procedures.
Robert Balzano: Former statutory agent and manager of the HOA; testified regarding the lack of regularly scheduled ARC meetings.
Cliff J. Vanell: Director of the Office of Administrative Hearings; certified the ALJ decision as the final administrative decision.

2. Core Legal Issues and Arguments

Issue 1: ARC Meeting Transparency

The Petitioners alleged that the HOA failed to notice and conduct Architectural Review Committee (ARC) meetings publicly, in violation of A.R.S. § 33-1804 and community documents.

Petitioner Argument: ARC meetings should be noticed and open to the public.
Respondent Argument: ARC meetings are not "regularly scheduled" but occur "on demand" based on submissions; therefore, statutory notice requirements for regularly scheduled meetings do not apply.

Issue 2: Access to Records

The Petitioners alleged the HOA refused to provide specific records, specifically attorney invoices and communications between HOA attorneys and third parties.

Petitioner Argument: Communications with third parties are not protected by attorney-client privilege. They also sought invoices to understand the HOA's legal expenditures.
Respondent Argument: The withheld records were protected under attorney-client privilege and related to pending litigation, which are statutory exceptions to the disclosure requirement.

3. Statutory Framework and Bylaws

The case relies heavily on specific Arizona statutes and the HOA's internal bylaws:

A.R.S. § 33-1804: Open Meetings

General Rule: All meetings of the association, the board, and any regularly scheduled committee meetings are open to all members or their designated representatives.
Executive Session Exceptions: Meetings may be closed only for specific reasons, including legal advice, pending/contemplated litigation, personal/health/financial info of members or employees, and job performance discussions.

A.R.S. § 33-1805: Association Records

General Rule: Financial and other records must be made reasonably available for examination within ten business days.
Withholding Exceptions: Records may be withheld if they relate to privileged attorney-client communications, pending litigation, or specific personal/health/financial records of individuals.

A.R.S. § 12-2234: Attorney-Client Privilege

In civil actions, attorneys and their staff cannot be examined regarding communications made by the client or advice given during professional employment without the client's consent.

HOA Bylaws (Article XI, Section 3)

The ARC is directed to meet "from time to time as necessary."
The committee must maintain a written record of all actions taken.

4. Short-Answer Practice Questions

1. According to the ALJ's decision, why did the ARC meetings not require public notice? Answer: The meetings were found to be held "as necessary" or "on demand" rather than being "regularly scheduled." A.R.S. § 33-1804 only mandates notice and open access for regularly scheduled committee meetings.

2. What is the "burden of proof" in this administrative hearing, and who carries it? Answer: The burden of proof falls on the party asserting a claim (the Petitioners). The standard of proof is a "preponderance of the evidence."

3. What does "preponderance of the evidence" mean in a legal context? Answer: It means the evidence must be sufficient to persuade the finder of fact that the proposition is "more likely true than not."

4. Name two reasons an HOA board may legally close a portion of a meeting (Executive Session). Answer: Possible answers include: Legal advice from an attorney, pending or contemplated litigation, personal/financial information of a member/employee, or matters relating to employee job performance.

5. How many business days does an association have to fulfill a request for the examination of records? Answer: Ten business days.

6. Under A.R.S. § 33-1805, what is the maximum per-page fee an association can charge for copies of records? Answer: Fifteen cents per page.

5. Essay Prompts for Deeper Exploration

1. The Distinction Between "Regularly Scheduled" and "As Necessary": Analyze how the distinction between "regularly scheduled" and meetings held "from time to time" impacted the outcome of Case No. 12F-H1212002-BFS. Discuss whether this distinction creates a potential loophole for HOAs to avoid transparency, or if it serves as a practical necessity for committees with fluctuating workloads.

2. Attorney-Client Privilege in the Context of HOA Governance: The Petitioners argued that communications between HOA attorneys and third parties should not be privileged. Based on A.R.S. § 12-2234 and the ALJ's conclusions, evaluate the scope of attorney-client privilege. How does the law balance a homeowner's right to financial transparency (specifically regarding legal invoices) with the association’s right to confidential legal strategy?

3. The Role of Testimony in Establishing Facts: Examine the testimony of Brenda Doziar and Robert Balzano. How did their descriptions of the ARC's operational habits (e.g., meeting at private residences, lack of a formal schedule) influence the ALJ’s Findings of Fact? Contrast their testimony with the Petitioners' claims to show why the Petitioners failed to meet the preponderance of the evidence standard.

6. Glossary of Terms

Administrative Law Judge (ALJ): An official who presides over an administrative hearing, hears evidence, and makes findings of fact and legal conclusions.
A.R.S. (Arizona Revised Statutes): The codified laws of the State of Arizona.
Burden of Proof: The obligation of a party in a trial or hearing to produce the evidence that will prove the claims they have made against the other party.
Community Documents: The collective term for an HOA's declaration, bylaws, and other governing rules.
Executive Session: A portion of a meeting that is closed to the general membership to discuss sensitive or confidential matters as defined by statute.
Member: In the context of an HOA, a property owner who is subject to the association's governing documents and holds voting rights.
Preponderance of the Evidence: A legal standard where a claim is proven if it is shown to be more likely true than not (greater than 50% probability).
Respondent: The party against whom a petition or complaint is filed; in this case, the Crossings at Willow Creek POA.
Statutory Agent: An individual or entity designated to receive legal documents and service of process on behalf of a corporation or association.

HOA Transparency and Member Rights: Lessons from Sellers v. Crossings at Willow Creek

1. Introduction: The Tension Between Homeowners and Associations

Friction between homeowners and Property Owners Associations (POAs) often centers on the perceived "black box" of governance. Many homeowners feel that critical decisions—especially those regarding the aesthetic and structural integrity of the community—are made behind closed doors without proper oversight. Conversely, volunteer boards and their agents often struggle to navigate the granular requirements of state law while managing the day-to-day administrative needs of the association.

This tension is perfectly encapsulated in the consolidated cases of John and Debborah Sellers v. Crossings at Willow Creek Property Owners Association (2013). By analyzing this administrative ruling, we can gain a clearer understanding of how Arizona law distinguishes between "open meetings" and "access to records." For homeowners and board members alike, this case serves as a vital lesson in the nuances of the Arizona Revised Statutes (A.R.S.) and the high evidentiary bar required to prove a violation of member rights.

2. The Conflict Over Architectural Review Committee (ARC) Meetings

In the first petition (12F-H1212002-BFS), the Sellers alleged that the Crossings at Willow Creek failed to provide notice for and conduct Architectural Review Committee (ARC) meetings in a public forum. They contended that the lack of formal notice violated A.R.S. § 33-1804 and the community’s governing documents.

The Association’s defense relied on the operational reality of the committee. Brenda Doziar, a member of both the Board and the ARC, testified that the committee’s process was not a standard deliberative assembly but a functional review of applications. Specifically, she noted that the ARC meets to review plans alongside the association’s professional architect to determine if a project should be accepted, modified, or rejected.

Robert Balzano, the former manager and statutory agent for the Association, further testified that the ARC did not follow a fixed calendar. Instead, meetings were held "on-demand" at private residences based on the volume of architectural submissions. The legal pivot point of the case was the specific language found in Arizona's open meeting law for planned communities:

"Notwithstanding any provision in the declaration, bylaws or other documents to the contrary, all meetings of the members' association and the board of directors, and any regularly scheduled committee meetings, are open to all members of the association…" — A.R.S. § 33-1804(A)

3. Defining "Regularly Scheduled": The Legal Turning Point

The Administrative Law Judge (ALJ) focused on the distinction between a "regularly scheduled" meeting and one that occurs intermittently. The Association’s Bylaws (Article XI, Section 3) explicitly state that the ARC shall meet "from time to time as necessary" to perform its duties. Because the meetings were contingent upon the receipt of homeowner applications rather than a set monthly or quarterly schedule, they did not fall under the statutory mandate for public notice.

The ALJ dismissed the complaint regarding meeting notices based on these factors:

Contingent Nature of Meetings: Evidence showed that meetings depended entirely on architectural submissions; in some months, the committee met multiple times, while in others, it did not meet at all.
Adherence to Bylaws: The Association followed its own governing documents, which authorized the committee to act "from time to time as necessary" rather than on a regular schedule.
Professional Consultation: Testimony established that the meetings involved technical reviews with an architect, a process that is functionally different from a standard board meeting.
Accessibility Without Formal Notice: The committee never denied a member’s request to attend, and the specific applicant was always invited to the meeting where their plans were discussed.

4. The Records Dispute: What Can Homeowners Actually See?

The second petition (12F-H1212009-BFS) concerned the Sellers' demand for records, specifically invoices from the association’s legal counsel—the firm of Carpenter, Hazlewood, Delgado & Bolen, PLC—and communications between those attorneys and third parties. The Sellers argued that third-party communications, by definition, cannot be protected by attorney-client privilege.

The Association successfully countered this by invoking A.R.S. § 33-1805, which governs association records, and A.R.S. § 12-2234, which protects attorney-client communications. The sensitivity of these records was heightened by a pending Declaratory Action—a legal proceeding initiated by the City of Prescott against the association members to determine the legal rights and obligations of the parties involved.

The case established a clear hierarchy of record accessibility:

Public Records: The City of Prescott provided the Petitioners with ninety pages of documents via subpoena. As these were public records held by a municipality, they were fully accessible.
Privileged Association Records: Internal documents, including attorney invoices and correspondence with the insurance agent, Larry Harding, were protected. Mr. Harding testified that such correspondence typically relates to potential insurance claims, which are sensitive legal matters. Under A.R.S. § 33-1805(B), the Association is permitted to withhold records that "tip its hand" regarding pending litigation or privileged legal advice.

5. Final Verdict: The ALJ Decision

On January 17, 2013, ALJ M. Douglas issued a decision dismissing both petitions, a ruling later certified by Director Cliff J. Vanell. The decision was rooted in the burden of proof established by the Arizona Administrative Code (A.A.C.) R2-19-119, which requires the party asserting a claim to prove their case by a "Preponderance of the Evidence."

In simple terms, the Sellers were required to prove that their allegations were "more likely true than not." The ALJ concluded they failed to meet this burden. The Association proved that its ARC meetings were not "regularly scheduled" and that the withheld legal records fell squarely within the statutory exceptions for attorney-client privilege and pending litigation.

6. Key Takeaways for HOA Members and Boards

The Sellers v. Crossings at Willow Creek case serves as a definitive guide for interpreting A.R.S. Title 33. Homeowners and board members should internalize the following lessons:

The "Regularly Scheduled" Threshold: Under A.R.S. § 33-1804(A), only committee meetings that occur on a set, recurring basis require formal notice to the membership. "On-demand" or "as-necessary" meetings are legally distinct and do not carry the same notice requirements.
Statutory Symmetry in Confidentiality: There is a direct parallel between the reasons a board may close a meeting under A.R.S. § 33-1804(A)(1-5) and the reasons it may withhold records under A.R.S. § 33-1805(B). Legal advice and pending litigation are strictly protected in both contexts to preserve the association's legal position.
The Importance of Precise Bylaws: The phrase "from time to time as necessary" in the Crossings' Bylaws was a primary factor in the Association's victory. Boards must ensure their governing documents are aligned with state statutes to provide maximum operational flexibility.
The Burden of Proof is on the Accuser: Per A.A.C. R2-19-119, the association is not required to prove it followed the law; rather, the homeowner must provide credible evidence that a violation occurred. Mere disagreement with a board's administrative style does not constitute a legal violation.

As a homeowner, you have a right to transparency, but that right is not unlimited. As a board member, you have a duty to be open, but you also have a duty to protect the association’s legal interests. Review your community’s bylaws and A.R.S. Title 33 immediately. Understanding these boundaries is the only way to ensure your community remains governed by law rather than by conflict.

Case Participants

Petitioner Side

John Sellers (petitioner)
Homeowner
appeared through John Sellers
Debborah Sellers (petitioner)
Homeowner
Testified; interior designer

Respondent Side

Joshua M. Bolen (attorney)
Carpenter, Hazlewood, Delgado & Bolen, PLC
Attorney for Crossings at Willow Creek Property Owners Association
Brenda Doziar (board member)
Crossings at Willow Creek Property Owners Association
ARC member
Robert Balzano (witness)
Former statutory agent and manager of Crossings
Kenneth Burnett (board member)
Crossings at Willow Creek Property Owners Association

Neutral Parties

M. Douglas (ALJ)
Office of Administrative Hearings
G. Eugene Neil (witness)
City of Prescott
Interim City Attorney
Larry Harding (witness)
Commercial insurance agent for Crossings
Gene Palma (agency director)
Department of Fire, Building and Life Safety
Cliff J. Vanell (agency director)
Office of Administrative Hearings
Director who certified the decision
Joni Cage (agency staff)
Department of Fire, Building and Life Safety
Recipient of decision copy

Sellers, John & Debborah vs. Crossings at Willow Creek Property Owners Association

Posted on January 17, 2013 by [email protected]

Case Summary

Case ID	12F-H1212002-BFS; 12F-H1212009-BFS
Agency	Department of Fire, Building and Life Safety
Tribunal	Office of Administrative Hearings
Decision Date	2013-01-17
Administrative Law Judge	M. Douglas
Outcome	The ALJ dismissed both petitions. Regarding the ARC meetings, the judge ruled they were not regularly scheduled and thus notice was not required. Regarding the records request, the judge ruled the withheld documents were protected by attorney-client privilege.
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	John and Debborah Sellers	Counsel	—
Respondent	Crossings at Willow Creek Property Owners Association	Counsel	Joshua M. Bolen

Alleged Violations

A.R.S. § 33-1804
A.R.S. § 33-1805

Outcome Summary

The ALJ dismissed both petitions. Regarding the ARC meetings, the judge ruled they were not regularly scheduled and thus notice was not required. Regarding the records request, the judge ruled the withheld documents were protected by attorney-client privilege.

Why this result: Petitioners failed to prove by a preponderance of the evidence that the HOA violated statutes or CC&Rs; applicable laws provide exceptions for irregular meetings and privileged records.

Key Issues & Findings

Failure to notice and conduct publicly ARC Meetings

Petitioners alleged the HOA failed to notice and conduct publicly Architectural Review Committee (ARC) meetings. The ALJ found that ARC meetings were held 'as necessary' and were not 'regularly scheduled,' and therefore did not require notice under the statute or Bylaws.

Orders: Petition dismissed; no action required.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

A.R.S. § 33-1804

Failure to provide requested HOA records

Petitioners requested attorney invoices and communications. The HOA refused based on attorney-client privilege. The ALJ found the refusal was justified under statutory exceptions for privileged communication.

Orders: Petition dismissed; no action required.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

A.R.S. § 33-1805
A.R.S. § 12-2234

Video Overview

Audio Overview

Decision Documents

12F-H1212009-BFS Decision – 321619.pdf

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12F-H1212009-BFS Decision – 327760.pdf

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12F-H1212009-BFS Decision – 321619.pdf

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12F-H1212009-BFS Decision – 327760.pdf

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Briefing Document: Administrative Law Decision Regarding Sellers v. Crossings at Willow Creek Property Owners Association

Executive Summary

This briefing document summarizes the administrative legal proceedings and final decision in the consolidated cases of John and Debborah Sellers (Petitioners) vs. Crossings at Willow Creek Property Owners Association (Respondent), docket numbers 12F-H1212002-BFS and 12F-H1212009-BFS.

The disputes originated from two primary grievances filed by the homeowners: first, that the Association’s Architectural Review Committee (ARC) failed to notice and conduct public meetings; and second, that the Association improperly withheld specific records, including attorney invoices and third-party communications.

Following hearings held on September 26, 2012, and January 4, 2013, Administrative Law Judge (ALJ) M. Douglas ruled in favor of the Association on all counts. The ALJ found that the Petitioners failed to meet the burden of proof required to show that the Association violated Arizona Revised Statutes (A.R.S.) or its own governing documents. This decision was certified as the final administrative action by the Department of Fire, Building and Life Safety on February 28, 2013.

Detailed Analysis of Key Themes

1. Architectural Review Committee (ARC) Transparency and Notice

A central theme of the first petition was the requirement for public notice and open attendance at ARC meetings. The Petitioners alleged that the Association violated A.R.S. § 33-1804 and Community Documents by not noticing these meetings.

Statutory Interpretation: Under A.R.S. § 33-1804(A), meetings of the board of directors and "any regularly scheduled committee meetings" must be open to all members.
"Regularly Scheduled" vs. "As Necessary": The Association’s defense rested on the distinction between "regularly scheduled" and "as necessary." Testimony from Board members and the former manager established that the ARC met only when applications were submitted.
Bylaw Compliance: The Association’s Bylaws (Article XI, Section 3) explicitly state that the ARC shall meet "from time to time as necessary."
Outcome: Because the meetings were determined to be "on demand" rather than "regularly scheduled," the ALJ concluded that formal public notice was not statutory required. Furthermore, testimony indicated that while meetings weren't noticed, they were never closed to members who requested to attend.

2. Access to Association Records and Attorney-Client Privilege

The second petition focused on the Association’s refusal to provide certain documents, specifically attorney invoices and communications with third parties.

Records Request Scope: Petitioners sought invoices from the Association’s legal counsel (Carpenter Hazlewood) and correspondence with third parties, arguing these should not be protected by privilege.
Statutory Exceptions: A.R.S. § 33-1805(B) allows an association to withhold records relating to privileged communications between an attorney and the association, as well as records concerning pending litigation.
Legal Basis for Refusal: The ALJ found that the Association’s refusal was grounded in protected legal exceptions. A.R.S. § 12-2234 protects communications made by a client to an attorney for the purpose of obtaining legal advice.
Outcome: The ALJ determined that the Petitioners failed to prove that the withheld documents were outside the scope of legally protected privileged material or pending litigation exceptions.

3. Evidentiary Standards and Burden of Proof

The case underscores the high bar for Petitioners in administrative hearings regarding planned communities.

Preponderance of the Evidence: The standard of proof required the Petitioners to show that their claims were "more likely true than not."
Failure of Proof: In both petitions, the ALJ found the Petitioners' evidence insufficient to demonstrate a violation of the law or the Association’s CC&Rs (Covenants, Conditions, and Restrictions).

Important Quotes with Context

Quote	Source/Context	Significance
"The Architectural Review Committee shall meet from time to time as necessary to perform its duties hereunder."	Association Bylaws, Article XI, Section 3	This provided the legal basis for the Association to conduct ARC meetings without a fixed, regular schedule.
"ARC meetings are not noticed but are open to all members… the committee has never denied access to any member to attend an ARC meeting."	Brenda Doziar (Board/ARC Member)	Established that although notice was absent, the committee was not operating in a "closed" manner that violated the spirit of open meetings.
"The committee meetings take place at one of the committee member’s residence."	Brenda Doziar (Board/ARC Member)	Clarified the informal and variable nature of the "as necessary" meetings.
"Credible testimony and evidence established that Crossings’ refusal to release the requested documents was based upon the exceptions provided by applicable statute for attorney/client privileged material."	ALJ Conclusions of Law	Validated the Association's right to protect sensitive legal information under A.R.S. § 33-1805.
"Petitioners failed to prove by a preponderance of the evidence that Crossings violated the provisions of A.R.S. § 33-1804 and/or Crossings’ CC&Rs."	ALJ Findings	The core justification for the dismissal of the petitions.

Actionable Insights

For Association Governance

Define Meeting Schedules Clearly: Associations should distinguish between "regularly scheduled" committee meetings and "as needed" meetings in their governing documents. If a committee meets on a fixed schedule (e.g., the first Monday of every month), it must follow formal notice procedures under Arizona law.
Maintain Records of Inquiries: The Association’s defense was bolstered by testimony that they had never denied a request to attend a meeting. Keeping logs of member requests to attend meetings or view records can provide a defense against claims of non-transparency.
Consistency in Bylaws: Ensure that internal practices (like ARC meetings) align exactly with the language in the Bylaws (e.g., meeting "as necessary").

For Records Management

Understand Privilege Boundaries: Associations are entitled to withhold documents related to legal advice and pending litigation. However, they must be prepared to justify these withholdings based on A.R.S. § 33-1805 and § 12-2234.
Transparency of Non-Privileged Records: To avoid litigation, associations should ensure that all non-exempt records (general financial records, minutes of open meetings) are made available within the statutory ten-business-day window.

For Dispute Resolution

Burden of Proof: Parties initiating a petition must recognize that the "preponderance of the evidence" standard requires more than just allegations; it requires concrete proof that a specific statute or community document was violated.
Administrative Finality: Decisions by an ALJ become final if no action is taken by the Director of the Department of Fire, Building and Life Safety within the statutory timeframe (in this case, approximately 30 days post-decision). Overturning such a decision requires a timely request for rehearing or a petition to the Superior Court.

Study Guide: Sellers v. Crossings at Willow Creek Property Owners Association

This study guide provides a comprehensive overview of the consolidated administrative cases John and Debborah Sellers vs. Crossings at Willow Creek Property Owners Association (Nos. 12F-H1212002-BFS and 12F-H1212009-BFS). It covers the legal standards for Arizona homeowners' associations, requirements for open meetings, and the limits of record disclosure.

I. Case Overview and Core Themes

Central Dispute

The cases involve disputes between homeowners (the Sellers) and their homeowners' association (Crossings at Willow Creek). The primary issues centered on whether the association’s Architectural Review Committee (ARC) was required to provide public notice for its meetings and whether the association was legally obligated to produce specific attorney-related financial records and communications.

Key Entities

Petitioners: John and Debborah Sellers, members of the Crossings at Willow Creek Property Owners Association.
Respondent: Crossings at Willow Creek Property Owners Association ("Crossings").
Adjudicating Body: The Office of Administrative Hearings, acting on behalf of the Department of Fire, Building and Life Safety.
Architectural Review Committee (ARC): A committee within the association responsible for reviewing and making determinations on property applications based on architectural guidelines.

II. Key Concepts and Legal Principles

1. Open Meeting Requirements (A.R.S. § 33-1804)

Under Arizona law, all meetings of a members' association and the board of directors must be open to all members. However, the law distinguishes between different types of committee meetings:

Regularly Scheduled Committee Meetings: These are required to be open to all members or their designated representatives.
On-Demand/Irregular Meetings: Meetings that occur "as necessary" or "on-demand" (based on submissions) do not carry the same statutory requirement for formal notice if they are not "regularly scheduled."

2. Record Examination and Disclosure (A.R.S. § 33-1805)

While associations are generally required to make financial and other records reasonably available for examination, there are five specific statutory exceptions where records may be withheld:

Privileged communication between the association and its attorney.
Pending litigation.
Meeting minutes from executive sessions (closed meetings).
Personal, health, or financial records of an individual member or employee.
Records relating to job performance or specific complaints against employees.

3. Attorney-Client Privilege (A.R.S. § 12-2234)

In civil actions, an attorney cannot be examined regarding communications made by the client or advice given during professional employment without the client’s consent. This privilege extends to communications between an attorney and the agents or members of an entity (like an HOA) if the purpose is to provide or obtain legal advice.

4. Administrative Burden of Proof

In these proceedings, the burden of proof rests with the party asserting the claim (the Petitioners). The standard used is a preponderance of the evidence, meaning the finder of fact must be persuaded that the claim is "more likely true than not."

III. Short-Answer Practice Questions

Who is authorized by statute to receive Petitions for Hearings from Arizona homeowners' association members?
What were the two specific categories of records the Sellers claimed Crossings refused to provide?
According to the testimony of Brenda Doziar, where do the ARC meetings typically take place?
What determines when an ARC meeting is scheduled at Crossings?
How much can an association charge per page for making copies of records requested by a member?
How many business days does an association have to fulfill a request for the examination of records?
Why did the Administrative Law Judge (ALJ) determine that Crossings did not violate notice requirements for ARC meetings?
What happened when the Department of Fire, Building and Life Safety failed to take action on the ALJ’s decision by February 26, 2013?
According to A.R.S. § 33-1804(A), what are the five circumstances under which a portion of an HOA meeting may be closed?
Does the failure of a member to receive actual notice of a meeting affect the validity of action taken at that meeting, according to A.R.S. § 33-1804(B)?

IV. Essay Prompts for Deeper Exploration

The Intersection of Transparency and Efficiency: Analyze the conflict between a homeowner's right to attend committee meetings and an HOA's right to hold meetings "as necessary." Based on the evidence in this case, evaluate whether the "on-demand" nature of the ARC meetings successfully circumvented or complied with the intent of A.R.S. § 33-1804.
Statutory Protection of Legal Counsel: Discuss the importance of attorney-client privilege within the context of HOA management as outlined in A.R.S. § 12-2234 and A.R.S. § 33-1805. How does the law balance a member's right to view financial records (such as attorney invoices) with the association’s need for confidential legal strategy?
The Role of the Administrative Law Judge (ALJ): Examine the ALJ’s findings regarding the "preponderance of the evidence." Why did the Petitioners fail to meet this burden in both consolidated cases, and what specific testimony or lack of evidence led to the dismissal of their petitions?

V. Glossary of Important Terms

A.R.S. (Arizona Revised Statutes): The codified laws of the state of Arizona.
ARC (Architectural Review Committee): A committee appointed to review property changes and ensure they comply with community architectural guidelines.
Attorney-Client Privilege: A legal principle that protects communications between an attorney and their client from being disclosed to third parties.
Bylaws: The internal rules and regulations that govern the administration of an association.
Community Documents: The collective term for an association’s declaration, bylaws, and other governing papers.
Executive Session: A portion of a meeting that is closed to the general membership to discuss sensitive matters like legal advice or personnel issues.
Preponderance of the Evidence: A legal standard of proof where a claim is proven if it is shown to be more probable than not.
Prevailing Party: The party in a lawsuit that wins on the main issues and is often entitled to specific relief or the dismissal of the opponent's claims.
Statutory Agent: An individual or entity designated to receive legal service of process and official documents on behalf of a corporation or association.
Subpoena: A legal document ordering a person to attend a court proceeding or produce specific documents.

HOA Transparency vs. Legal Reality: Lessons from the Sellers Case

1. Introduction: The Conflict at Willow Creek

For many homeowners, the relationship with their Property Owners Association (POA) is a delicate equilibrium between individual property rights and the necessity of community governance. Tensions frequently escalate when residents perceive themselves as being excluded from the decision-making process or find their access to association records blocked by administrative gatekeeping.

This friction was the catalyst for a significant administrative hearing: John and Debborah Sellers vs. Crossings at Willow Creek Property Owners Association. The Petitioners, John and Debborah Sellers, filed two separate petitions against the Association, alleging a lack of transparency in committee meetings and the improper withholding of financial and legal records. Through an analysis of these proceedings, we can examine how Arizona law navigates the boundary between a member's right to know and an association's right to functional, private governance.

2. The "Open Meeting" Debate: When is Notice Required?

The threshold question in the first matter (No. 12F-H1212002-BFS) was whether the Architectural Review Committee (ARC) had violated state law by failing to provide public notice of its meetings. The Petitioners contended that the ARC conducted association business "behind closed doors," circumventing the open meeting requirements established by statute.

The defense centered on the distinction between "regularly scheduled" and "as needed" meetings. Testimony from Brenda Doziar, a Board and ARC member, and Robert Balzano, the Association’s former manager and Statutory Agent, revealed a highly informal process. The ARC did not follow a fixed calendar; rather, meetings were triggered solely by the volume of architectural submissions. These sessions often took place at a committee member’s private residence, a detail that—while contributing to homeowner suspicion—underscored the irregular nature of the gatherings.

Arizona law is specific regarding which committee meetings must be open to the membership:

A.R.S. § 33-1804(A): "Notwithstanding any provision in the declaration, bylaws or other documents to the contrary, all meetings of the members' association and the board of directors, and any regularly scheduled committee meetings, are open to all members of the association…"

The Administrative Law Judge (ALJ) concluded that because the ARC met only "on demand" to review specific plans with the Association’s architect, the meetings did not constitute "regularly scheduled" sessions. Consequently, the Association was under no statutory or contractual obligation to post public notices for these irregular meetings.

3. The Battle for Records: Transparency vs. Privilege

The gravamen of the second petition (No. 12F-H1212009-BFS) was the Association’s refusal to produce attorney invoices and communications with third parties. This was not a mere fishing expedition; the Sellers were specifically concerned about a Declaratory Action involving the City of Prescott. In that litigation, the City was the plaintiff and all HOA members were named as defendants. The Sellers sought the records to ensure the Association was not "tipping its hand" during negotiations or compromising the members' positions.

The Association, supported by testimony from interim City Attorney G. Eugene Neil, argued that the requested documents were protected from disclosure. Under A.R.S. § 33-1805(B), an HOA is legally permitted to withhold records that relate to:

Privileged communications between an attorney for the association and the association.
Pending litigation.
Meeting minutes or records of a board session that is not required to be open (executive sessions).
Personal, health, or financial records of an individual member, employee of the association, or employee of a contractor.
Records relating to job performance, compensation, health records, or specific complaints regarding an individual employee of the association or a contractor.

The ALJ found that the Association’s refusal was properly grounded in Categories 1 and 2: privileged communications and pending litigation. Because the invoices and third-party correspondence related to active legal matters, they were exempt from member inspection.

4. The Verdict: Why the Petitions Were Dismissed

The ALJ ultimately dismissed both petitions, ruling that the Crossings at Willow Creek Property Owners Association was not required to take any corrective action. A primary factor in this outcome was the "Preponderance of the Evidence" standard.

In administrative proceedings, the burden of proof rests with the party asserting the claim. According to A.A.C. R2-19-119, the Petitioners were required to prove that their allegations were "more likely true than not." As established in In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994), this requires persuading the finder of fact of the proposition's probability.

The ALJ determined the Sellers were not the "prevailing party," as they failed to prove a violation of either the Arizona Revised Statutes or the community’s governing documents. The decision was subsequently certified as final, affirming the Association's right to maintain its current meeting and record-keeping protocols.

5. Key Takeaways for Homeowners and Boards

The Sellers case serves as a vital case study for community leaders and residents alike. We can distill the following insights:

Understand the "Regularly Scheduled" Clause: Statutory notice requirements are not universal. If a committee’s meeting frequency is dictated by workload (such as architecture submissions) rather than a set calendar, the legal obligation for public notice may not apply.
The Limits of Record Requests: Transparency is a fundamental principle, but attorney-client privilege is a robust and necessary protection. When an Association is involved in active litigation, it has a duty to protect strategic communications from disclosure, even to its own members.
The Burden of Proof: Asserting a grievance is not the same as proving a violation. Petitioners must provide a preponderance of evidence to prevail in an administrative hearing. Without specific proof of a statutory breach, the ALJ will defer to the Association’s established practices.
Review Your Bylaws: Internal documents are the first line of defense. In this case, Article XI Section 3 of the Crossings’ Bylaws explicitly stated the ARC should "meet from time to time as necessary," a phrase that provided the legal flexibility needed to withstand the Petitioners' challenge.

6. Compelling Conclusion

The dispute at Willow Creek underscores the necessity of a deep familiarity with A.R.S. §§ 33-1804 and 33-1805. These statutes are the bedrock of HOA governance in Arizona, designed to balance the membership's right to information with the Association's need for executive privacy and legal protection. While the impulse for total transparency is a hallmark of an engaged membership, the law recognizes that effective governance requires boundaries. For Boards, the lesson is clear: ensure your Bylaws are precisely worded. For homeowners, the takeaway is equally sharp: a legal challenge requires more than a sense of unfairness—it requires a preponderance of proof.

Case Participants

Petitioner Side

John Sellers (petitioner)
Appeared at hearing
Debborah Sellers (petitioner)
Testified regarding ARC service

Respondent Side

Joshua M. Bolen (respondent attorney)
Carpenter, Hazlewood, Delgado & Bolen, PLC
Brenda Doziar (witness)
Crossings at Willow Creek Property Owners Association
Board member and ARC member
Robert Balzano (witness)
Crossings at Willow Creek Property Owners Association
Former statutory agent and manager
Kenneth Burnett (witness)
Crossings at Willow Creek Property Owners Association
Board member

Neutral Parties

M. Douglas (ALJ)
Office of Administrative Hearings
G. Eugene Neil (witness)
City of Prescott
Interim City Attorney; provided public records
Larry Harding (witness)
Crossings at Willow Creek Property Owners Association
Commercial insurance agent for Respondent
Gene Palma (Director)
Department of Fire Building and Life Safety
Named as Director for transmittal
Cliff J. Vanell (Director)
Office of Administrative Hearings
Certified the decision
Joni Cage (agency staff)
Department of Fire Building and Life Safety
Copy recipient

Brown, William M. vs. Terravita Country Club Inc.

Posted on May 8, 2012 by [email protected]

Case Summary

Case ID	11F-H1112007-BFS
Agency	Department of Fire Building and Life Safety
Tribunal	OAH
Decision Date	2012-05-08
Administrative Law Judge	Lewis D. Kowal
Outcome	The Administrative Law Judge concluded that Respondent violated A.R.S. § 33-1805(A) because, although it provided the policy, it did not do so within the mandatory ten business days. The late delivery was attributed to an unintentional computer error. Petitioner was deemed the prevailing party and awarded the $550.00 filing fee, but no civil penalties were assessed against the Respondent.
Filing Fees Refunded	$550.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	William M. Brown	Counsel	—
Respondent	Terravita Country Club, Inc.	Counsel	Joshua M. Bolen

Alleged Violations

A.R.S. § 33-1805(A)

Outcome Summary

The Administrative Law Judge concluded that Respondent violated A.R.S. § 33-1805(A) because, although it provided the policy, it did not do so within the mandatory ten business days. The late delivery was attributed to an unintentional computer error. Petitioner was deemed the prevailing party and awarded the $550.00 filing fee, but no civil penalties were assessed against the Respondent.

Key Issues & Findings

Failure to provide records (Directors and Officers Liability Insurance Policy) within ten business days

Petitioner requested a copy of the Respondent's Directors and Officers Liability Insurance Policy. Respondent failed to provide the policy within the statutory ten business day period, allegedly due to a computer error where the email became stuck in an outbox.

Orders: Respondent shall pay Petitioner his filing fee of $550.00. No civil penalty imposed as Respondent attempted to comply.

Filing fee: $550.00, Fee refunded: Yes

Disposition: petitioner_win

Video Overview

Audio Overview

Decision Documents

11F-H125885-BFS Decision – 292130.pdf

Uploaded 2026-04-24T10:39:17 (81.4 KB)

11F-H125885-BFS Decision – 295358.pdf

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11F-H125885-BFS Decision – 292130.pdf

Uploaded 2026-01-25T15:25:36 (81.4 KB)

11F-H125885-BFS Decision – 295358.pdf

Uploaded 2026-01-25T15:25:36 (60.5 KB)

Case Briefing: William M. Brown vs. Terravita Country Club, Inc.

Executive Summary

This briefing document analyzes the administrative law proceedings and final decision in the matter of William M. Brown v. Terravita Country Club, Inc. (No. 11F-H1112007-BFS). The case centered on a records request made by Petitioner William M. Brown for the Respondent’s Directors and Officers Liability Insurance Policy.

The Administrative Law Judge (ALJ), Lewis D. Kowal, determined that Terravita Country Club, Inc. violated Arizona Revised Statutes (A.R.S.) § 33-1805(A) by failing to provide the requested records within the mandatory ten-business-day window. While the Respondent cited technical "computer errors" and a lack of clarity regarding the request, the ALJ held the Respondent accountable for the delay. Ultimately, the Respondent was ordered to reimburse the Petitioner’s $550 filing fee, though no additional civil penalties were imposed due to evidence of the Respondent’s attempt to comply with the law. The decision was certified as the final administrative decision of the Department of Fire Building and Life Safety on June 14, 2012.

Statutory Framework

The legal foundation for this case is A.R.S. § 33-1805(A), which governs the availability of records for planned communities. The statute mandates the following:

Access to Records: All financial and other records of an association must be made reasonably available for examination by any member or their designated representative.
Cost: Associations may not charge for making materials available for review. However, they may charge a fee of no more than fifteen cents per page for copies.
Fulfillment Timeline: The association has ten business days to fulfill a request for examination or to provide copies of requested records.

Key Themes and Analysis

1. The Mandatory Nature of Statutory Deadlines

The primary issue in this case was the failure to meet the ten-business-day requirement. Despite the Respondent receiving the request on October 21, 2011, the actual policy was not successfully delivered until November 7, 2011.

Analysis: The ALJ found that even though the Respondent attempted to send the email on November 4 (the final day of the statutory period), the failure of that email to leave the outbox meant the association remained in violation. This emphasizes that the burden of delivery rests with the association, and technical failures do not absolve them of statutory timelines.

2. Clarity of Records Requests

The Respondent’s staff, specifically the Custodian of Records (Cici Rausch), testified that they did not initially understand the Petitioner’s request for the "Not-For-Profit Individual and Organization Insurance Policy."

Analysis: The ALJ noted that the record was unclear as to why the staff did not understand the request, especially since the Petitioner provided specific details, including a policy number in subsequent communications. The ruling suggests that associations must act diligently to clarify and fulfill requests rather than allowing confusion to delay the statutory clock.

3. Mitigation of Sanctions

The Respondent argued that the delay was due to an unintentional computer error and that the Petitioner should have contacted them to confirm receipt.

Analysis: While the ALJ rejected the argument that the Petitioner was responsible for following up, he did use the "unintentional" nature of the error to determine the severity of the penalty. Because the Respondent thought they had complied on November 4, the ALJ declined to impose additional civil sanctions, ordering only the reimbursement of the filing fee.

4. Credibility and Post-Hearing Allegations

Following the hearing, the Petitioner alleged that the Custodian of Records, Cici Rausch, committed perjury regarding her legal name and her involvement in other civil litigation (specifically a divorce proceeding).

Analysis: The ALJ dismissed these claims, finding that Ms. Rausch’s use of the name "Cici" was supported by documentary evidence and that her belief that a family court divorce was not "civil litigation" was a reasonable misunderstanding. This aspect of the case highlights the high bar required to prove perjury in administrative hearings.

Significant Case Timeline

Date	Event
Oct 21, 2011 (10:09 AM)	Petitioner emails initial request for insurance policy records.
Oct 21, 2011 (4:22 PM)	Respondent sends a Certificate of Insurance, which is not the full policy.
Oct 21, 2011 (4:48 PM)	Petitioner repeats request, providing a specific policy number (PHSD646331).
Oct 28, 2011	General Manager Tom Forbes emails the Policy to the Custodian of Records.
Nov 4, 2011	Statutory deadline for the initial Oct 21 request.
Nov 4, 2011 (Evening)	Custodian attempts to email Policy; email becomes "stuck" in the outbox.
Nov 7, 2011	Custodian realizes the error and re-sends the Policy.
Apr 9, 2012	Administrative hearing held.
May 8, 2012	ALJ issues decision finding a violation of A.R.S. § 33-1805(A).
June 14, 2012	Decision certified as the final administrative decision.

Important Quotes with Context

"The association shall have ten business days to fulfill a request for examination. On request for purchase of copies of records… the association shall have ten business days to provide copies of the requested records."

— A.R.S. § 33-1805(A), cited as the governing law.

"The Administrative Law Judge concludes that while Respondent provided Petitioner with a copy of the Policy, that did not occur within ten business days of his request and, therefore, Respondent violated A.R.S. § 33-1805(A)."

— Conclusion of Law, Paragraph 3. This establishes the core finding of the case.

"Respondent’s argument that Petitioner should be estopped from pursuing the instant matter because Petitioner did not contact Respondent fails."

— Conclusion of Law, Paragraph 4. This clarifies that the burden of compliance is on the association, not the member making the request.

"The evidence of record established that Respondent attempted to comply with the law, which the Administrative Law Judge has taken into consideration in determining whether any civil penalty should be imposed."

— Conclusion of Law, Paragraph 5. This explains why the Respondent was only ordered to pay the filing fee rather than further sanctions.

Actionable Insights

Establish Clear Protocols for Records Requests: Organizations should ensure that the Custodian of Records is trained to identify and clarify legal requests immediately. Any ambiguity in a request should be resolved through prompt communication to avoid missing statutory deadlines.
Verify Delivery of Electronic Documents: Reliance on the "send" button is insufficient for legal compliance. Organizations should implement a verification process—such as requesting a read receipt or checking the "Sent" folder—to ensure that records have actually left the outbox.
Calculate Statutory Deadlines Immediately: Upon receipt of a records request, the ten-business-day window should be calculated and marked on a calendar to prevent last-minute technical failures from causing a legal violation.
Documentation of Technical Issues: If a delay occurs due to technical reasons, maintaining a clear paper trail (such as timestamps and IT logs) may help mitigate civil penalties, even if a violation is technically found.
Cost of Non-Compliance: Even in cases of "unintentional" error, the prevailing party is entitled to the reimbursement of filing fees (in this case, $550). This serves as a financial incentive for associations to prioritize timely records disclosure.

Study Guide: Administrative Law Case Study – Brown v. Terravita Country Club, Inc.

This study guide provides a comprehensive overview of the administrative hearing between William M. Brown and Terravita Country Club, Inc. (No. 11F-H1112007-BFS). It examines the application of Arizona Revised Statutes (A.R.S.) regarding records requests in planned communities, the burden of proof in administrative hearings, and the finality of Administrative Law Judge decisions.

Key Concepts and Legal Standards

Statutory Requirement: A.R.S. § 33-1805(A)

This statute governs the availability of records for homeowners' associations in planned communities. Its core provisions include:

Access: Financial and other records must be made "reasonably available" for examination by any member or their designated representative.
Timelines: The association has ten business days to fulfill a request for examination or to provide copies of requested records.
Fees: Associations may not charge for the review of materials but may charge up to fifteen cents per page for physical copies.

Burden of Proof: Preponderance of the Evidence

In these proceedings, the Petitioner (the person bringing the claim) bears the burden of proof.

Legal Definition: According to Black’s Law Dictionary, as cited in the case, "preponderance of the evidence" means evidence that is of greater weight or more convincing than the evidence offered in opposition.
Application: It must be shown that the fact sought to be proved is "more probable than not."

Administrative Finality

An Administrative Law Judge (ALJ) issues a decision that can be accepted, rejected, or modified by the relevant state department (in this case, the Department of Fire Building and Life Safety). If the department takes no action within a specific timeframe (e.g., approximately 30 days), the ALJ’s decision is certified as the final administrative decision.

Case Summary: Brown v. Terravita Country Club, Inc.

The Dispute

Petitioner William M. Brown, a resident of the Terravita Country Club community, requested a copy of the Respondent's Directors and Officers Liability Insurance Policy. While the Respondent eventually provided the document, the Petitioner alleged they failed to do so within the ten-business-day window required by A.R.S. § 33-1805(A).

Timeline of Events

Date	Event
Oct 21, 2011 (10:09 AM)	Petitioner emails his first request for the insurance policy.
Oct 21, 2011 (4:22 PM)	Respondent provides a "Certificate of Insurance," which is not the full policy.
Oct 21, 2011 (4:48 PM)	Petitioner sends a second request specifying the policy number (PHSD646331).
Oct 28, 2011	The General Manager emails the Policy to the Custodian of Records (Ms. Rausch).
Nov 4, 2011 (4:55 PM)	Petitioner sends a third request as the records have still not been received.
Nov 4, 2011	Ms. Rausch attempts to email the Policy, but the email becomes "stuck" in her outbox due to a computer error.
Nov 7, 2011	Ms. Rausch discovers the error and re-sends the Policy. Petitioner receives it.

The Ruling

The ALJ concluded that the Respondent violated A.R.S. § 33-1805(A) because the document was not delivered within ten business days of the initial request.

Sanctions: No civil penalties were imposed because the Respondent demonstrated an attempt to comply, and the delay was attributed to an unintentional computer error.
Remedy: As the prevailing party, the Petitioner was awarded his $550.00 filing fee, to be paid by the Respondent.
Credibility Issues: The Petitioner alleged the Respondent's witness (Ms. Rausch) committed perjury regarding her name and involvement in other civil litigation. The ALJ dismissed these claims, finding her explanations (regarding her use of the name "Cici" and her understanding of family court vs. civil litigation) to be reasonable.

Short-Answer Practice Questions

According to A.R.S. § 33-1805(A), how many business days does an association have to provide copies of requested records?
What was the specific document requested by William M. Brown that led to this litigation?
What was the "computer error" that occurred on November 4, 2011?
Why did the Administrative Law Judge decline to impose civil penalties against Terravita Country Club, Inc.?
What was the total filing fee that the Respondent was ordered to pay to the Petitioner?
Who bears the burden of proof in this administrative proceeding?
What was the Respondent's unsuccessful argument regarding why the Petitioner should be "estopped" (prevented) from pursuing the matter?

Essay Prompts for Deeper Exploration

The Role of Intent in Statutory Violations: Analyze the ALJ’s decision to find a violation of A.R.S. § 33-1805(A) while simultaneously refusing to issue sanctions. Does the lack of intent to violate the law excuse the violation itself, or only the punishment? Use the "stuck" email incident as the basis for your argument.
Statutory Compliance vs. Certificate of Insurance: In this case, the Respondent initially provided a "Certificate of Insurance" instead of the requested "Policy." Discuss the legal and practical differences between these two documents in the context of a member's right to examine association records.
The Impact of Witness Credibility: The Petitioner challenged the credibility of the Custodian of Records based on her name and her involvement in family court. Evaluate the ALJ's reasoning in maintaining the witness's credibility. How does an ALJ distinguish between intentional perjury and a "reasonable explanation" for inconsistent testimony?

Glossary of Important Terms

Administrative Law Judge (ALJ): A judge who over-sees hearings and makes decisions in disputes involving government agency rules or specific state statutes.
A.R.S. § 33-1805(A): The Arizona Revised Statute governing the right of members in a planned community to inspect and copy association records.
Certificate of Insurance: A document providing proof of insurance coverage but not containing the full terms, conditions, or endorsements of the actual insurance policy.
Custodian of Records: The individual designated by an organization to maintain and manage its official documents and respond to records requests.
Estoppel: A legal principle that prevents someone from arguing something or asserting a right that contradicts what they previously said or agreed to by law.
Petitioner: The party who initiates a lawsuit or petition; in this case, William M. Brown.
Preponderance of the Evidence: The standard of proof used in most civil and administrative cases, requiring that a fact is more likely than not to be true.
Respondent: The party against whom a petition is filed; in this case, Terravita Country Club, Inc.
Sanctions: Penalties or other means of enforcement used to provide incentives for obedience with the law or with rules and regulations.

The 10-Day Clock: Lessons in Transparency from Brown v. Terravita Country Club

1. Introduction: The Power of Record Requests

For homeowners in Arizona planned communities, the right to inspect association records is not a courtesy—it is a statutory mandate. This transparency is the bedrock of a healthy relationship between a Board of Directors and the residents they serve. When an HOA fails to provide requested documents, it isn't just a breach of trust; it is a legal violation that carries financial consequences.

The case of William M. Brown vs. Terravita Country Club, Inc. provides a masterclass in the pitfalls of administrative delay. This dispute demonstrates that in the eyes of an Administrative Law Judge (ALJ), "intent to comply" and "technical difficulties" do not stop the clock. For homeowners, this case is a reminder of their rights; for Boards, it is a cautionary tale: the 10-day deadline is absolute, and the burden of compliance rests entirely on the association.

2. The Legal Foundation: Understanding A.R.S. § 33-1805(A)

Arizona law is remarkably clear regarding the accessibility of records. Under A.R.S. § 33-1805(A), all financial and other records must be made "reasonably available" to members or their designated representatives.

As a consumer advocate, I always emphasize that homeowners should understand the specific parameters of this law. To remain in compliance, an association must follow these three strict standards:

The Examination Timeline: The association has exactly 10 business days to fulfill a request to examine records. (Note: "Business days" exclude weekends and legal holidays).
The Delivery Timeline: If a homeowner requests physical or electronic copies, the association has 10 business days to provide them.
The Cost Ceiling: The association cannot overcharge for transparency. They are limited to a maximum fee of fifteen cents ($0.15) per page.

3. Anatomy of a Delay: A Timeline of the Dispute

The conflict in Brown v. Terravita Country Club began with a simple request for an insurance policy but devolved into a legal battle due to internal mismanagement and missed deadlines.

October 21, 2011 (10:09 a.m.): Mr. Brown emails the Custodian of Records, Cici Rausch, requesting the Directors and Officers (D&O) Liability Insurance Policy.
October 21, 2011 (4:22 p.m.): Ms. Rausch responds with a Certificate of Insurance. This is a common error—a Certificate is merely a summary, not the actual policy contract the homeowner is legally entitled to see.
October 21, 2011 (4:48 p.m.): Mr. Brown immediately clarifies his request, providing the exact document title and Policy Number PHSD646331.
October 24, 2011: Ms. Rausch acknowledges the request but states she must follow up with the Controller.
October 28, 2011: The General Manager emails the requested policy to Ms. Rausch at 5:18 p.m. Crucially, the internal process stalled here; Ms. Rausch could not recall when she even opened this email, and the document sat for a full week without being forwarded to the homeowner.
November 4, 2011: The 10th business day. This was the legal deadline for delivery. Mr. Brown sends a third request. Ms. Rausch attempts to email the policy at the end of the day, but the email becomes "stuck" in her outbox.
November 7, 2011: On the 11th business day, the association finally discovers the error and successfully delivers the policy.

4. The "Stuck Email" Defense: Why Technical Glitches Aren't Legal Excuses

The association’s primary defense was a "computer error." They argued that because the staff member pressed "send" on the deadline date (November 4), the failure to deliver was unintentional.

The ALJ was unpersuaded for two critical reasons. First, the 10-day window is a hard deadline; by the time the email was actually delivered on November 7, the law had already been violated. Second, the ALJ rejected the association's "estoppel" argument—the claim that Mr. Brown should have called to check on his records. Because Ms. Rausch’s email on the afternoon of November 4 indicated she was leaving for the weekend, the Judge ruled that the homeowner had no duty to "chase" the association. The burden of ensuring a record is delivered remains 100% on the HOA.

The case also featured side allegations regarding whether the custodian committed "perjury" by using the nickname "Cici" instead of "Celia" or by failing to categorize a divorce as "civil litigation." The ALJ dismissed these as distractions, noting that using a common nickname and misunderstanding legal terminology did not undermine the witness's credibility or change the fact of the timeline violation.

5. The Verdict: Costs and Consequences

The ALJ ruled that Terravita Country Club violated A.R.S. § 33-1805(A). This case highlights an important distinction between a "violation" and "sanctions."

While the Judge acknowledged the association's "attempted compliance" (the effort to send the email on November 4), this intent did not excuse the violation. It only served to mitigate the penalty, meaning the Judge chose not to impose additional civil fines. However, a violation is still a loss for the association.

The financial sting for the community was immediate:

Reimbursement Ordered: The association was ordered to pay Mr. Brown $550.00 to reimburse his filing fee.

From an advocate's perspective, this $550 represents a completely preventable waste of community resources caused by a week of internal administrative silence between October 28 and November 4.

6. Key Takeaways for Homeowners and Boards

This ruling provides three essential lessons for navigating record requests in Arizona:

Precision Matters

If you are a homeowner, do not just ask for "insurance info." Follow Mr. Brown’s lead: identify the specific document and, if possible, the policy number. By being exact, you eliminate the association's ability to claim they didn't understand the request.

The Clock is Absolute

The 10-business-day deadline expires at the end of the tenth day. Associations should treat the eighth or ninth day as their internal deadline to account for technical glitches. To protect the community, Boards should require staff to use "Read Receipts" or "Delivery Confirmations" for all statutory disclosures to avoid the "stuck in the outbox" trap.

Filing Fees are at Risk

Even if a Board has "good intentions," a late response is a losing response in court. When an association loses a records dispute, they are typically on the hook for the petitioner's filing fees. Boards must realize that administrative negligence is a direct hit to the association's budget.

7. Compelling Conclusion

The decision in Brown v. Terravita Country Club serves as a vital reminder that transparency in a planned community is governed by the calendar, not by convenience. Statutory timelines are the safeguards that prevent associations from "slow-walking" information to their members. By prioritizing clear communication and respecting the 10-day clock, HOAs can avoid unnecessary legal fees and build a culture of accountability that serves the entire community.

Case Participants

Petitioner Side

William M. Brown (Petitioner)

Respondent Side

Joshua M. Bolen (Attorney)
Carpenter Hazelwood, Delgado, & Bolen, PLC
Representing Terravita Country Club, Inc.
Cici Rausch (Custodian of Records)
Terravita Country Club, Inc.
Also identified as Celia Anne Rausch; testified at hearing
Tom Forbes (General Manager)
Terravita Country Club, Inc.
Raquel Shull (Controller)
Terravita Country Club, Inc.

Neutral Parties

Lewis D. Kowal (ALJ)
Office of Administrative Hearings
Administrative Law Judge
Gene Palma (Director)
Department of Fire, Building and Life Safety
Cliff J. Vanell (Director)
Office of Administrative Hearings
Certified the decision
Beth Soliere (Agency Staff)
Department of Fire, Building and Life Safety
Recipient of transmitted copy