Case Summary
| Case ID | 21F-H2121062-REL |
|---|---|
| Agency | ADRE |
| Tribunal | OAH |
| Decision Date | 2021-09-21 |
| Administrative Law Judge | Thomas Shedden |
| Outcome | none |
| Filing Fees Refunded | $1,500.00 |
| Civil Penalties | $0.00 |
Parties & Counsel
| Petitioner | Ronald Borruso | Counsel | — |
|---|---|---|---|
| Respondent | Sunland Village East Association | Counsel | Nicholas Nogami, Esq. and Nikolas Eicher, Esq. |
Alleged Violations
ARIZ. REV. STAT. § 33-1804
Outcome Summary
The Administrative Law Judge dismissed the petition filed by Ronald Borruso, finding that the Petitioner failed to meet the standard of proof (preponderance of the evidence) regarding the alleged violations of ARIZ. REV. STAT. § 33-1804 concerning meeting procedures and unauthorized board actions.
Why this result: The Petitioner failed to carry the burden of proof to show that the alleged violations of ARIZ. REV. STAT. § 33-1804 occurred.
Key Issues & Findings
Alleged violations regarding member speaking rights at May 27, 2021 meeting and unauthorized board meetings concerning Operations Manager job qualifications
Petitioner alleged the HOA violated open meeting laws by restricting member speaking rights during deliberations at a special meeting on May 27, 2021, and by holding improperly noticed meetings to approve job qualifications for an Operations Manager.
Orders: Ronald Borruso’s petition is dismissed.
Filing fee: $1,500.00, Fee refunded: No
Disposition: petitioner_loss
- ARIZ. REV. STAT. § 33-1804
- ARIZ. ADMIN. CODE § R2-19-119
- ARIZ. REV. STAT. § 32-2199.02(A)
- Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)
- State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968)
Analytics Highlights
- ARIZ. REV. STAT. § 33-1804
- ARIZ. ADMIN. CODE § R2-19-119
- ARIZ. REV. STAT. § 32-2199.02(A)
- Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)
- State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968)
Video Overview
Audio Overview
Decision Documents
21F-H2121062-REL Decision – 912276.pdf
Questions
Question
Can the HOA Board restrict when homeowners are allowed to speak during a meeting?
Short Answer
Yes, the Board is allowed to place reasonable time restrictions on speakers and determine the appropriate time for comments.
Detailed Answer
The ALJ cited Arizona law stating that while members have a right to speak, the Board may impose reasonable time restrictions. In this case, requiring members to wait until after the Board's presentation to speak was not a violation.
Alj Quote
The board may place reasonable time restrictions on those persons speaking during the meeting but shall permit a member or member's designated representative to speak once after the board has discussed a specific agenda item but before the board takes formal action on that item
Legal Basis
A.R.S. § 33-1804(A)
Topic Tags
- meetings
- homeowner rights
- speaking limits
Question
If the Board calls part of a meeting 'closed', is it automatically an illegal executive session?
Short Answer
No, not if members are still allowed to attend and observe.
Detailed Answer
Even if the Board uses the term 'closed' inartfully to mean 'no comments allowed yet,' it is not an illegal meeting if members are physically permitted to attend. A true 'closed' meeting (executive session) is one members cannot attend.
Alj Quote
Consequently, although the Board referred to the initial part of the meeting as being 'closed' because it would not take members’ comments in that portion of the meeting, it was using that word in a different sense than it is used in section 33-1804.
Legal Basis
A.R.S. § 33-1804(A) and (C)
Topic Tags
- meetings
- executive session
- definitions
Question
What standard of proof do I need to meet to win a case against my HOA?
Short Answer
You must prove your case by a 'preponderance of the evidence'.
Detailed Answer
The homeowner (petitioner) bears the burden of proof. This means showing that the allegations are more likely true than not—having the 'greater weight' of evidence.
Alj Quote
The standard of proof on all issues in this matter is that of a preponderance of the evidence.
Legal Basis
A.A.C. § R2-19-119
Topic Tags
- legal standards
- burden of proof
- procedure
Question
Is a Board President's verbal admission enough to prove an illegal meeting occurred?
Short Answer
Not necessarily, especially if other testimony contradicts it and there are no records.
Detailed Answer
In this case, a Board President said 'yes' when asked if the Board met to approve a job description. However, the ALJ found this insufficient because other Board members testified credibly that she was wrong and no such meeting took place.
Alj Quote
Although Ms. Haynie did answer 'yes' when asked, Messrs. Thurn and Fretwell provided credible testimony that she was wrong. … Consequently, the preponderance of the evidence shows that there is no violation
Legal Basis
Preponderance of Evidence
Topic Tags
- evidence
- board meetings
- testimony
Question
Can I file a single petition for multiple different complaints against my HOA?
Short Answer
Yes, but you must pay the appropriate fee for a multi-issue hearing.
Detailed Answer
When filing a petition, you must either identify a single issue or pay the Department the fee required for a multi-issue hearing.
Alj Quote
Mr. Borruso that he was required either to identify a single issue for hearing or to pay to the Department the appropriate fee for a multi-issue hearing.
Legal Basis
Administrative Procedure
Topic Tags
- filing fees
- procedure
- petitions
Question
Does the Board have to let me speak before they take a formal vote?
Short Answer
Yes, homeowners must be allowed to speak after discussion but before the vote.
Detailed Answer
The statute explicitly states that a member must be permitted to speak once after the board has discussed a specific item but before formal action is taken.
Alj Quote
[S]hall permit a member or member's designated representative to speak once after the board has discussed a specific agenda item but before the board takes formal action on that item
Legal Basis
A.R.S. § 33-1804(A)
Topic Tags
- voting
- meetings
- homeowner rights
Case
- Docket No
- 21F-H2121062-REL
- Case Title
- Ronald Borruso vs. Sunland Village East Association
- Decision Date
- 2021-09-21
- Alj Name
- Thomas Shedden
- Tribunal
- OAH
- Agency
- ADRE
Questions
Question
Can the HOA Board restrict when homeowners are allowed to speak during a meeting?
Short Answer
Yes, the Board is allowed to place reasonable time restrictions on speakers and determine the appropriate time for comments.
Detailed Answer
The ALJ cited Arizona law stating that while members have a right to speak, the Board may impose reasonable time restrictions. In this case, requiring members to wait until after the Board's presentation to speak was not a violation.
Alj Quote
The board may place reasonable time restrictions on those persons speaking during the meeting but shall permit a member or member's designated representative to speak once after the board has discussed a specific agenda item but before the board takes formal action on that item
Legal Basis
A.R.S. § 33-1804(A)
Topic Tags
- meetings
- homeowner rights
- speaking limits
Question
If the Board calls part of a meeting 'closed', is it automatically an illegal executive session?
Short Answer
No, not if members are still allowed to attend and observe.
Detailed Answer
Even if the Board uses the term 'closed' inartfully to mean 'no comments allowed yet,' it is not an illegal meeting if members are physically permitted to attend. A true 'closed' meeting (executive session) is one members cannot attend.
Alj Quote
Consequently, although the Board referred to the initial part of the meeting as being 'closed' because it would not take members’ comments in that portion of the meeting, it was using that word in a different sense than it is used in section 33-1804.
Legal Basis
A.R.S. § 33-1804(A) and (C)
Topic Tags
- meetings
- executive session
- definitions
Question
What standard of proof do I need to meet to win a case against my HOA?
Short Answer
You must prove your case by a 'preponderance of the evidence'.
Detailed Answer
The homeowner (petitioner) bears the burden of proof. This means showing that the allegations are more likely true than not—having the 'greater weight' of evidence.
Alj Quote
The standard of proof on all issues in this matter is that of a preponderance of the evidence.
Legal Basis
A.A.C. § R2-19-119
Topic Tags
- legal standards
- burden of proof
- procedure
Question
Is a Board President's verbal admission enough to prove an illegal meeting occurred?
Short Answer
Not necessarily, especially if other testimony contradicts it and there are no records.
Detailed Answer
In this case, a Board President said 'yes' when asked if the Board met to approve a job description. However, the ALJ found this insufficient because other Board members testified credibly that she was wrong and no such meeting took place.
Alj Quote
Although Ms. Haynie did answer 'yes' when asked, Messrs. Thurn and Fretwell provided credible testimony that she was wrong. … Consequently, the preponderance of the evidence shows that there is no violation
Legal Basis
Preponderance of Evidence
Topic Tags
- evidence
- board meetings
- testimony
Question
Can I file a single petition for multiple different complaints against my HOA?
Short Answer
Yes, but you must pay the appropriate fee for a multi-issue hearing.
Detailed Answer
When filing a petition, you must either identify a single issue or pay the Department the fee required for a multi-issue hearing.
Alj Quote
Mr. Borruso that he was required either to identify a single issue for hearing or to pay to the Department the appropriate fee for a multi-issue hearing.
Legal Basis
Administrative Procedure
Topic Tags
- filing fees
- procedure
- petitions
Question
Does the Board have to let me speak before they take a formal vote?
Short Answer
Yes, homeowners must be allowed to speak after discussion but before the vote.
Detailed Answer
The statute explicitly states that a member must be permitted to speak once after the board has discussed a specific item but before formal action is taken.
Alj Quote
[S]hall permit a member or member's designated representative to speak once after the board has discussed a specific agenda item but before the board takes formal action on that item
Legal Basis
A.R.S. § 33-1804(A)
Topic Tags
- voting
- meetings
- homeowner rights
Case
- Docket No
- 21F-H2121062-REL
- Case Title
- Ronald Borruso vs. Sunland Village East Association
- Decision Date
- 2021-09-21
- Alj Name
- Thomas Shedden
- Tribunal
- OAH
- Agency
- ADRE
Case Participants
Petitioner Side
- Ronald Borruso (petitioner)
- Thomas Huston (witness)
Testified for Petitioner
Respondent Side
- Nicholas Nogami (respondent attorney)
Carpenter Hazlewood Delgado & Bolen, LLP - Nikolas Eicher (respondent attorney)
Carpenter Hazlewood Delgado & Bolen, LLP - Mark Thurn (board member)
Sunland Village East Association
Current Board President, testified for Respondent - Marvin Fretwell (board member)
Sunland Village East Association
Testified for Respondent - Joyce Haynie (board member)
Sunland Village East Association
Former President, subject of recall petition - Kim Shallue (board member)
Sunland Village East Association
Presided over May 27th meeting
Neutral Parties
- Thomas Shedden (ALJ)
Office of Administrative Hearings - Judy Lowe (Commissioner)
Arizona Department of Real Estate - AHansen (ADRE staff)
Arizona Department of Real Estate
Recipient of decision transmission - djones (ADRE staff)
Arizona Department of Real Estate
Recipient of decision transmission - DGardner (ADRE staff)
Arizona Department of Real Estate
Recipient of decision transmission
