Case Summary
| Case ID | 21F-H2120006-REL |
|---|---|
| Agency | ADRE |
| Tribunal | OAH |
| Decision Date | 2020-10-30 |
| Administrative Law Judge | Adam D. Stone |
| Outcome | loss |
| Filing Fees Refunded | $500.00 |
| Civil Penalties | $0.00 |
Parties & Counsel
| Petitioner | Douglas E. Kupel | Counsel | — |
|---|---|---|---|
| Respondent | Hidden Valley Association | Counsel | Timothy Butterfield, Esq. |
Alleged Violations
ARIZ. REV. STAT. § 33-1805
Outcome Summary
The Administrative Law Judge concluded that the Association's conduct did not violate ARIZ. REV. STAT. § 33-1805 because the Petitioner did not prove by a preponderance of the evidence that the requested records were in existence and subject to disclosure.
Why this result: Petitioner failed to establish that the requested records (communications) were in existence and subject to disclosure.
Key Issues & Findings
Failing to fulfill Petitioner’s records request
Petitioner claimed the HOA failed to provide copies of all communications (written/electronic) related to information requests, open meeting law compliance, and changes to bylaws, arguing they were not exempt from disclosure under ARIZ. REV. STAT. § 33-1805(B). The HOA asserted no disclosable records existed.
Orders: Petitioner's petition and request for civil penalty are denied. Respondent shall not reimburse Petitioner's filing fee.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
- ARIZ. REV. STAT. § 33-1805
- ARIZ. REV. STAT. § 32-2199.01(A)
- ARIZ. REV. STAT. § 32-2199.02(A)
Analytics Highlights
- ARIZ. REV. STAT. § 33-1805
- ARIZ. REV. STAT. § 32-2199 et al.
- ARIZ. REV. STAT. § 32-2199.01
- ARIZ. REV. STAT. § 32-2199.02
- ARIZ. REV. STAT. § 41-1092
Video Overview
Audio Overview
Decision Documents
21F-H2120006-REL Decision – 834142.pdf
Administrative Law Judge Decision: Kupel vs. Hidden Valley Association
Executive Summary
The Administrative Law Judge (ALJ) for the Arizona Office of Administrative Hearings denied a petition filed by homeowner Douglas E. Kupel against the Hidden Valley Association (HVA). The core of the dispute was Kupel’s allegation that HVA violated Arizona statute ARIZ. REV. STAT. § 33-1805 by failing to completely fulfill a comprehensive records request. While HVA provided its records retention policy and legal invoices, it withheld two categories of electronic and hard copy communications, claiming no such disclosable records existed.
Kupel argued that statements made in emails by HVA Board President Gary Freed—specifically that certain communications would be “filed as an HVA business record”—proved the existence of the requested records. HVA countered that this statement was a mistake on Freed’s part, resulting from an initial misunderstanding of retention requirements, and that no records subject to disclosure actually existed.
The ALJ ultimately concluded that Kupel failed to meet the “preponderance of the evidence” standard required to prove his claim. The judge found that the evidence presented was not sufficient to prove that the requested records existed and were being improperly withheld. Consequently, the petition was denied, and Kupel’s requests for reimbursement of his filing fee and the imposition of a civil penalty against HVA were also denied.
Case Overview
Case Name
Douglas E Kupel, Petitioner, vs. Hidden Valley Association, Respondent
Case Number
21F-H2120006-REL
Jurisdiction
Arizona Office of Administrative Hearings (OAH)
Presiding Judge
Administrative Law Judge Adam D. Stone
Hearing Date
October 22, 2020
Decision Date
October 30, 2020
Key Parties
Douglas E. Kupel (Petitioner), Hidden Valley Association (Respondent), Gary Freed (HVA Board President)
Core Dispute: The Records Request
The central issue of the hearing was whether the Hidden Valley Association violated ARIZ. REV. STAT. § 33-1805 by failing to fully comply with a records request submitted by Kupel on June 22, 2020. HVA, through its community manager HOAMCO, provided a partial response on July 1, 2020.
Breakdown of the Records Request:
• Request 1 (Fulfilled): A copy of the HVA records retention policy adopted on January 15, 2020.
• Request 2 (Denied): Copies of all communications (email and hard copy) to or from current and former HVA Board and committee members regarding “information requests or open meeting law compliance” from July 2019 to the present.
• Request 3 (Denied): Copies of all communications (email and hard copy) to or from current and former HVA Board and committee members regarding any proposed, discussed, or adopted changes to the Association bylaws from January 2019 to the present.
• Request 4 (Fulfilled): Copies of invoices, billing statements, and payment records for legal services associated with revisions to the Association bylaws from January 2019 to the present.
HVA and its President, Gary Freed, asserted that the denied communications were not subject to disclosure under the exceptions outlined in ARIZ. REV. STAT. § 33-1805(B).
Petitioner’s Position and Evidence (Douglas E. Kupel)
• Allegation: Kupel accused HVA of willfully failing to fulfill his request, alleging that non-exempt records did exist and should have been disclosed.
• Primary Evidence: Kupel submitted several email messages from HVA President Gary Freed which contained the statement: “This communication has been received, and will be filed as an HVA business record in the files maintained by HOAMCO for the benefit of HVA” or substantially similar language.
• Argument: Kupel testified that these emails proved the existence of communications that did not meet the statutory exclusions and, therefore, HVA had failed to fully respond to his request.
• Requested Relief:
1. An order compelling HVA to abide by ARIZ. REV. STAT. § 33-1805.
2. Reimbursement of the $500 filing fee.
3. The levying of a civil penalty against HVA.
Respondent’s Position and Evidence (Hidden Valley Association)
• Witness Testimony: HVA Board President Gary Freed testified on behalf of the association.
• Core Defense: Freed testified that based on HVA’s records retention policy and his understanding of open meeting laws, “no records existed which were subject to disclosure.”
• Explanation of Contested Emails: Freed explained that his prior email statements about filing all communications were a mistake. He testified that he initially believed all communications needed to be retained but later learned this was incorrect.
• Search Process: Freed admitted that neither he nor other board members conducted a one-by-one search of every single email. However, he testified that he “may have scanned his personal e-mail” and did not dismiss the petitioner’s request “out-of-hand.”
• Association Practices: Freed asserted that HVA business was conducted via open meetings, with the exception of a single emergency situation, implying that no discoverable email correspondence regarding official business would exist.
Administrative Law Judge’s Analysis and Conclusion
The ALJ’s decision rested on the legal standard of “preponderance of the evidence,” defined as proof convincing the trier of fact that a contention is more probably true than not. The petitioner, Kupel, bore the burden of meeting this standard.
• Evaluation of Evidence: The judge found Kupel’s primary argument unpersuasive. The decision states, “Essentially, Petitioner is claiming that there must be other records in existence because of the language that Mr. Freed used… This is not persuasive as there was no evidence presented by Petitioner to prove that the records were in existence.”
• Credibility of Testimony: The judge gave weight to Freed’s testimony that he had been mistaken about record-keeping protocols. The decision also noted that HVA’s official records retention policy, adopted six months prior to the request, specifically outlined which communications were to be kept.
• Lack of Proof: The judge concluded that Freed believed any documents that might have existed were subject to statutory exemptions and that all relevant business was conducted in open meetings. Ultimately, Kupel failed to provide sufficient proof that discoverable records actually existed.
• Final Ruling: The ALJ concluded that “the Association’s conduct, as outlined above, did not violate the charged provisions of ARIZ. REV. STAT. § 33-1805.”
Final Order
Based on the findings of fact and conclusions of law, the Administrative Law Judge issued the following orders:
Outcome
Petitioner’s Petition
Denied
Request for Civil Penalty
Denied
Reimbursement of Filing Fee
Denied (Respondent shall not reimburse Petitioner’s fee)
The decision is binding on the parties unless a request for rehearing is filed with the Commissioner of the Arizona Department of Real Estate within thirty days of the order’s service.
Study Guide: Kupel v. Hidden Valley Association, No. 21F-H2120006-REL
This study guide provides a review of the administrative hearing decision in the matter of Douglas E. Kupel versus the Hidden Valley Association. It includes a quiz with an answer key to test comprehension of the facts, a set of essay questions for deeper analysis, and a glossary of key terms.
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Quiz: Short-Answer Questions
Answer the following questions in 2-3 sentences based on the provided source document.
1. Who were the primary parties involved in this hearing, and what were their respective roles?
2. What was the specific violation alleged by the Petitioner in his petition to the Department of Real Estate?
3. What four categories of records did the Petitioner request from the Hidden Valley Association (HVA) on June 22, 2020?
4. Which parts of the Petitioner’s records request did the HVA fulfill, and which parts did it deny?
5. What was the Petitioner’s central piece of evidence to argue that the HVA was improperly withholding existing communications?
6. How did HVA Board President Gary Freed explain the discrepancy between his email statements and the association’s refusal to provide the requested communications?
7. What is the “preponderance of the evidence” standard, and which party was required to meet this standard?
8. According to Mr. Freed’s testimony, where was all official HVA business conducted?
9. What was the Administrative Law Judge’s final conclusion regarding the HVA’s conduct in this matter?
10. What three specific outcomes were mandated by the final ORDER issued on October 30, 2020?
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Answer Key
1. The primary parties were the Petitioner, Douglas E. Kupel, a property owner and member of the Hidden Valley Association, and the Respondent, the Hidden Valley Association (HVA). The Petitioner brought the complaint against the Respondent, alleging a violation of state law.
2. The Petitioner alleged that the Hidden Valley Association violated ARIZ. REV. STAT. § 33-1805 by failing to completely fulfill his records request. Specifically, he claimed the association improperly withheld communications records.
3. The Petitioner requested: (1) the records retention policy; (2) communications regarding information requests or open meeting law compliance; (3) communications regarding proposed changes to the association bylaws; and (4) legal invoices and payment records related to bylaw revisions.
4. The HVA fulfilled the request for the records retention policy and the legal invoices. It denied the two requests for communications between board and committee members, claiming the requested records were not subject to disclosure.
5. The Petitioner’s central evidence consisted of several emails from HVA Board President Gary Freed in which Mr. Freed stated, “[t]his communication has been received, and will be filed as an HVA business record.” The Petitioner argued this proved that such communications existed and were official records.
6. Mr. Freed testified that he was initially mistaken in his belief that all communications needed to be retained and that this was why he included that language in his emails. He clarified that based on the HVA’s records retention policy and open meeting laws, no disclosable records of the type requested existed.
7. “Preponderance of the evidence” is the standard of proof requiring the evidence to convince the trier of fact that a contention is more probably true than not. The Petitioner, Douglas E. Kupel, bore the burden of proving his case by this standard.
8. Mr. Freed testified that all HVA business was conducted via open meetings. He stated that there were no meetings conducted solely by email, with the exception of a single emergency situation.
9. The Administrative Law Judge concluded that the Petitioner failed to establish by a preponderance of the evidence that the HVA was in violation of ARIZ. REV. STAT. § 33-1805. The judge found the HVA’s conduct did not violate the charged statute.
10. The final ORDER (1) denied the Petitioner’s petition, (2) denied the Petitioner’s request for a civil penalty against the Respondent, and (3) ordered that the Respondent shall not be required to reimburse the Petitioner’s $500.00 filing fee.
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Essay Questions
The following questions are designed for in-depth analysis and discussion. Answers are not provided.
1. Analyze the legal arguments presented by both the Petitioner, Douglas E. Kupel, and the Respondent, Hidden Valley Association. How did each party use the evidence and ARIZ. REV. STAT. § 33-1805 to support their position?
2. Discuss the significance of the “preponderance of the evidence” standard in this case. Explain how the Administrative Law Judge determined that the Petitioner failed to meet this burden of proof.
3. Evaluate the testimony of HVA Board President Gary Freed. How did his explanations regarding his email statements and the association’s record-keeping practices influence the judge’s final decision?
4. Examine ARIZ. REV. STAT. § 33-1805(B), which outlines the exceptions for withholding records. Based on the case details, explain why the communications requested by the Petitioner were ultimately deemed non-disclosable or non-existent under this statute.
5. Describe the complete procedural history of the case, from the initial filing of the petition to the final order. Include key dates, entities involved (such as the Department of Real Estate and the Office of Administrative Hearings), and the final remedies sought by the Petitioner versus the actual outcome.
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An official who presides over administrative hearings and makes decisions on behalf of a government agency. In this case, the ALJ was Adam D. Stone.
ARIZ. REV. STAT. § 33-1805
The Arizona Revised Statute that governs the examination and disclosure of a homeowners’ association’s financial and other records by its members. It outlines the process for requests, a ten-business-day fulfillment window, and specific exemptions allowing an association to withhold certain records.
ARIZ. REV. STAT. § 32-2199.01(A)
The Arizona Revised Statute cited by the Petitioner that allows an administrative law judge to levy a civil penalty against a party found to be in violation of the law.
Burden of Proof
The obligation on a party in a legal case to provide sufficient evidence to prove their allegations. In this case, the Petitioner bore the burden of proof.
Covenants, Conditions, and Restrictions (CC&Rs)
The official governing documents that establish the rules and obligations for a homeowners’ association and its members.
Department of Real Estate (“Department”)
The Arizona state agency authorized to receive and decide petitions for hearings involving disputes between homeowners and their associations.
Hidden Valley Association (HVA)
The Respondent in the case; a homeowners’ association for the Hidden Valley Ranch subdivision in Prescott, Arizona, governed by CC&Rs and a Board of Directors.
HOAMCO
The company that served as the Community Manager for the Hidden Valley Association and initially responded to the Petitioner’s records request.
Office of Administrative Hearings (OAH)
An independent state agency in Arizona to which the Department of Real Estate referred this matter for an evidentiary hearing.
Petitioner
The party who files a petition to initiate a legal proceeding. In this case, the Petitioner was Douglas E. Kupel, a homeowner and member of the HVA.
Preponderance of the Evidence
The standard of proof required in this hearing. It is defined as evidence that is sufficient to incline a fair and impartial mind to one side of the issue rather than the other, making the contention more probably true than not.
Respondent
The party against whom a petition is filed and who is required to respond to the allegations. In this case, the Respondent was the Hidden Valley Association.
