The Administrative Law Judge concluded that Petitioner met his burden of establishing by a preponderance of the evidence that Respondent violated A.R.S. § 33-1258(A). Petitioner was deemed the prevailing party, and Respondent was ordered to refund the $500.00 filing fee and comply with the statute in the future.
Key Issues & Findings
Failure to provide access to financial and other records within ten business days.
Respondent violated A.R.S. § 33-1258(A) by failing to allow Petitioner to examine original invoices for May 2024 (requested July 9, 2024) and bank statements from four accounts (requested September 23, 2024) within the required ten business days, despite receiving the requests through board members.
Orders: Respondent was ordered to pay Petitioner his filing fee of $500.00 within thirty (30) days and is directed to comply with the requirements of A.R.S. § 33-1258(A) going forward. No Civil Penalty was found appropriate.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1258(A)
A.R.S. § 32-2199(1)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)
Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)
Analytics Highlights
Topics: HOA, records request, A.R.S. 33-1258, prevailing party, condominium association
Additional Citations:
A.R.S. § 33-1258(A)
A.R.S. § 32-2199(1)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)
Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)
Audio Overview
Decision Documents
25F-H018-REL Decision – 1263777.pdf
Uploaded 2026-01-23T18:14:18 (48.3 KB)
25F-H018-REL Decision – 1288586.pdf
Uploaded 2026-01-23T18:14:22 (105.9 KB)
Briefing Doc – 25F-H018-REL
Briefing Document: Case No. 25F-H018-REL, Allan v. The Springs Condominiums Association
Executive Summary
This briefing document synthesizes the key facts, arguments, and legal conclusions from the administrative hearing and subsequent decision in the matter of Joseph P. Allan (Petitioner) versus The Springs Condominiums Association (Respondent). The central issue was the Respondent’s failure to provide financial records to the Petitioner within the timeframe mandated by Arizona law.
The Petitioner, a homeowner and former board member, formally requested to examine bank statements and original invoices by sending emails directly to the association’s board members. The Respondent, represented by the owner of its property management company, did not fulfill these requests within the statutory ten-business-day period. The primary defense offered was that the requests were not sent to the management company, which is the customary channel for processing such items, and the board failed to forward the requests.
The Administrative Law Judge (ALJ) found conclusively in favor of the Petitioner. The decision established that the legal obligation to comply with Arizona Revised Statutes (A.R.S.) § 33-1258 rests with the association itself, and internal procedural preferences or communication failures between the board and its management agent do not absolve the association of this statutory duty. The documents were ultimately provided on the eve of the hearing, well past the legal deadline. The final order deemed the Petitioner the prevailing party, mandated the refund of his $500 filing fee, and directed the association to ensure future compliance with state law.
Case Overview
Case Number
25F-H018-REL
Jurisdiction
Office of Administrative Hearings, Phoenix, Arizona
Petitioner
Joseph P. Allan
Respondent
The Springs Condominiums Association
Presiding Judge
Administrative Law Judge Velva Moses-Thompson
Hearing Date
March 11, 2025
Decision Date
March 31, 2025
Core Allegation and Legal Framework
The dispute centered on the Petitioner’s allegation that The Springs Condominiums Association violated A.R.S. § 33-1258, which governs a member’s right to access association records.
• Statutory Requirement (A.R.S. § 33-1258 A): The statute mandates that “all financial and other records of the association shall be made reasonably available for examination by any member.” It explicitly states, “The association shall have ten business days to fulfill a request for examination.”
• Specific Violations Alleged: The Petitioner filed a petition with the Arizona Department of Real Estate after the association failed to respond to two separate requests for documents:
1. A request for original invoices for May 2024.
2. A request for bank statements from four association accounts.
Chronology of Events
• July 9, 2024: Mr. Allan emails several board members, including the President and Vice President, requesting to examine original invoices for May 2024.
• September 23, 2024: Mr. Allan emails several board members requesting to examine bank statements from four association accounts.
• October 2024 (approx.): After receiving no response, Mr. Allan files a petition with the Department of Real Estate, alleging the violations. The petition incorrectly listed the request dates as July 29 and September 24, a discrepancy clarified and acknowledged by both parties at the hearing.
• January 16, 2025: An “Order Granting Continuance” is issued at the Petitioner’s request, moving the hearing date.
• March 10, 2025: At 6:45 PM, the evening before the scheduled hearing, the Respondent provides the requested documents to Mr. Allan.
• March 11, 2025: The evidentiary hearing is held before ALJ Velva Moses-Thompson.
• March 31, 2025: The ALJ issues the final decision and order.
Analysis of Testimony and Arguments
Petitioner’s Position (Joseph P. Allan)
Mr. Allan, representing himself, argued that he followed the law by submitting his requests directly to the association. His key points were:
• Direct Communication with the Association: He intentionally sent his requests to the board members (President, Vice President, Treasurer, and Director) because he considers them to be the “association” as defined by the statute.
• Investigation of Management Company: He deliberately bypassed the management company because he was actively investigating its conduct.
• Lack of Timely Response: It was undisputed that the association failed to provide the documents within the 10-day period. He confirmed receipt only on March 10, 2025, months after the requests were made.
• Past Experience: As a former board member for three years, he was familiar with the association’s financial documents and was requesting them to ensure everything was correct due to perceived problems.
Respondent’s Position (The Springs Condominiums Association)
The association was represented by Belen Guzman, the owner of its management company, SSC Property Management. Her defense centered on a procedural failure, not a denial of the Petitioner’s right to the documents.
• Improper Channel of Request: The primary defense was that Mr. Allan failed to follow standard practice by not including the management company in his email requests.
• Board’s Failure to Act: Ms. Guzman testified that the board members who received the emails did not forward them or follow up. She stated she was unaware of the requests until after the official complaint was filed and one of the board members, Petri (the president at the time), forwarded an email to her.
• Lack of Written Policy: Ms. Guzman acknowledged that the association has no written policy requiring requests to be sent to the management company, but stated the board had verbally instructed Mr. Allan in a meeting to include management on such communications.
• Knowledge of Procedure: She argued that as a former board member, Mr. Allan was aware that record requests are typically handled by the management company.
Findings of Fact and Conclusions of Law
The ALJ’s decision provided a clear legal interpretation of the events and the responsibilities of the parties.
Key Findings of Fact
• It was undisputed that the Petitioner is a member of the Respondent association.
• The Petitioner made formal requests for records via email to board members on July 9, 2024, and September 23, 2024.
• These requests were not sent to the Respondent’s property management company.
• The Respondent did not respond to the requests within the ten-business-day timeframe required by law.
• The Respondent provided the requested documents on March 10, 2025.
• The Respondent’s representative, Ms. Guzman, did not dispute that the board members had received the requests.
Key Conclusions of Law
• The Petitioner successfully met his burden to prove by a “preponderance of the evidence” that the Respondent violated A.R.S. § 33-1258(A).
• The Respondent failed to provide any legal authority supporting its defense that a request must be sent to its property management company to be valid.
• The statutory obligation to provide records lies with the “association.” The failure of the board to forward the requests to its management agent does not excuse the association’s non-compliance.
• The ALJ concluded: “Respondent violated A.R.S. section 33-1258(A) when it failed to allow Petitioner to examine the May 2024 original invoices and bank statements from four of Respondent’s accounts, within ten business days of the date of Petitioner’s requests.”
Final Order and Implications
Based on the findings, the ALJ issued a binding order with the following components:
1. Prevailing Party: The Petitioner, Joseph P. Allan, was deemed the prevailing party.
2. Reimbursement: The Respondent was ordered to pay the Petitioner his $500.00 filing fee within thirty days of the order.
3. Future Compliance: The Respondent was formally directed to comply with the requirements of A.R.S. § 33-1258(A) going forward.
4. No Civil Penalty: The judge determined that a civil penalty was not appropriate in this matter.
The primary implication of this decision is that a condominium or homeowner association is directly and legally responsible for fulfilling its statutory obligations. It cannot use internal protocols, informal procedures, or communication breakdowns between its board and third-party vendors (like a management company) as a legal defense for failing to comply with state law.
Study Guide – 25F-H018-REL
{ “case”: { “docket_no”: “25F-H018-REL”, “case_title”: “Allan, Joseph P v. The Springs Condominiums Association”, “decision_date”: “2025-03-31”, “alj_name”: “Velva Moses-Thompson”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “If I send a records request to the Board but not the management company, can the HOA ignore it?”, “short_answer”: “No. Sending the request to Board members is sufficient to trigger the HOA’s legal obligation to respond.”, “detailed_answer”: “Even if the management company prefers requests to go directly to them, the Association is still obligated to comply with the law if the Board receives the request. In this case, the management company argued they didn’t know about the request because it went to the Board, but the judge ruled the violation still occurred.”, “alj_quote”: “Respondent did present any legal authority to establish that it was not obligated to comply with A.R.S. section 33-1258(A), for the reason that the requests were not sent to Respondent’s property management company.”, “legal_basis”: “A.R.S. § 33-1258(A)”, “topic_tags”: [ “records request”, “HOA obligations”, “property management” ] }, { “question”: “How many days does the HOA have to let me examine the records I requested?”, “short_answer”: “The HOA must make records available for examination within 10 business days.”, “detailed_answer”: “Arizona law grants the Association ten business days to fulfill a request for examination after receiving it.”, “alj_quote”: “The association shall have ten business days to fulfill a request for examination.”, “legal_basis”: “A.R.S. § 33-1258(A)”, “topic_tags”: [ “timelines”, “records request”, “statutory requirements” ] }, { “question”: “Can the HOA charge me a fee just to look at the records?”, “short_answer”: “No. The HOA cannot charge a member for making material available for review.”, “detailed_answer”: “While the HOA can charge for copies (up to 15 cents per page), they are explicitly prohibited from charging a fee for the act of making materials available for review.”, “alj_quote”: “The association shall not charge a member or any person designated by the member in writing for making material available for review.”, “legal_basis”: “A.R.S. § 33-1258(A)”, “topic_tags”: [ “fees”, “records request”, “homeowner rights” ] }, { “question”: “What happens if I win my hearing against the HOA?”, “short_answer”: “You may be deemed the prevailing party and the HOA can be ordered to reimburse your filing fee.”, “detailed_answer”: “If the judge rules in your favor, they can order the HOA to pay back the filing fee you paid to bring the case. In this decision, the HOA was ordered to pay the homeowner $500.”, “alj_quote”: “IT IS FURTHER ORDERED that Respondent pay Petitioner his filing fee of $500.00, to be paid directly to Petitioner within thirty (30) days of this Order.”, “legal_basis”: “Order”, “topic_tags”: [ “penalties”, “reimbursement”, “ruling” ] }, { “question”: “Does the HOA have to provide original invoices if I request them?”, “short_answer”: “Yes. Financial records, including original invoices, must be made reasonably available.”, “detailed_answer”: “The decision confirms that failure to allow examination of original invoices constitutes a violation of the statute governing association records.”, “alj_quote”: “Respondent violated A.R.S. section 33-1258(A) when it failed to allow Petitioner to examine the May 2024 original invoices and bank statements”, “legal_basis”: “A.R.S. § 33-1258(A)”, “topic_tags”: [ “invoices”, “financial records”, “transparency” ] }, { “question”: “What is the standard of proof for proving the HOA violated the law?”, “short_answer”: “Preponderance of the evidence.”, “detailed_answer”: “The homeowner must prove their case by showing it is ‘more probably true than not.’ This is the standard evidentiary weight required in these administrative hearings.”, “alj_quote”: “Petitioner bears the burden of proof to establish that Respondent violated A.R.S. § 33-1258 (A) by a preponderance of the evidence.”, “legal_basis”: “A.A.C. R2-19-119(A)”, “topic_tags”: [ “legal standards”, “burden of proof”, “hearing procedures” ] }, { “question”: “Will the HOA always be fined a civil penalty if they break the law?”, “short_answer”: “Not necessarily. The judge has discretion on whether to apply a civil penalty.”, “detailed_answer”: “Even if a violation is found (as it was in this case regarding the records), the judge may decide that a civil penalty is not appropriate based on the circumstances.”, “alj_quote”: “No Civil Penalty is found to be appropriate in this matter.”, “legal_basis”: “Order”, “topic_tags”: [ “civil penalty”, “fines”, “enforcement” ] } ] }
Blog Post – 25F-H018-REL
{ “case”: { “docket_no”: “25F-H018-REL”, “case_title”: “Allan, Joseph P v. The Springs Condominiums Association”, “decision_date”: “2025-03-31”, “alj_name”: “Velva Moses-Thompson”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “If I send a records request to the Board but not the management company, can the HOA ignore it?”, “short_answer”: “No. Sending the request to Board members is sufficient to trigger the HOA’s legal obligation to respond.”, “detailed_answer”: “Even if the management company prefers requests to go directly to them, the Association is still obligated to comply with the law if the Board receives the request. In this case, the management company argued they didn’t know about the request because it went to the Board, but the judge ruled the violation still occurred.”, “alj_quote”: “Respondent did present any legal authority to establish that it was not obligated to comply with A.R.S. section 33-1258(A), for the reason that the requests were not sent to Respondent’s property management company.”, “legal_basis”: “A.R.S. § 33-1258(A)”, “topic_tags”: [ “records request”, “HOA obligations”, “property management” ] }, { “question”: “How many days does the HOA have to let me examine the records I requested?”, “short_answer”: “The HOA must make records available for examination within 10 business days.”, “detailed_answer”: “Arizona law grants the Association ten business days to fulfill a request for examination after receiving it.”, “alj_quote”: “The association shall have ten business days to fulfill a request for examination.”, “legal_basis”: “A.R.S. § 33-1258(A)”, “topic_tags”: [ “timelines”, “records request”, “statutory requirements” ] }, { “question”: “Can the HOA charge me a fee just to look at the records?”, “short_answer”: “No. The HOA cannot charge a member for making material available for review.”, “detailed_answer”: “While the HOA can charge for copies (up to 15 cents per page), they are explicitly prohibited from charging a fee for the act of making materials available for review.”, “alj_quote”: “The association shall not charge a member or any person designated by the member in writing for making material available for review.”, “legal_basis”: “A.R.S. § 33-1258(A)”, “topic_tags”: [ “fees”, “records request”, “homeowner rights” ] }, { “question”: “What happens if I win my hearing against the HOA?”, “short_answer”: “You may be deemed the prevailing party and the HOA can be ordered to reimburse your filing fee.”, “detailed_answer”: “If the judge rules in your favor, they can order the HOA to pay back the filing fee you paid to bring the case. In this decision, the HOA was ordered to pay the homeowner $500.”, “alj_quote”: “IT IS FURTHER ORDERED that Respondent pay Petitioner his filing fee of $500.00, to be paid directly to Petitioner within thirty (30) days of this Order.”, “legal_basis”: “Order”, “topic_tags”: [ “penalties”, “reimbursement”, “ruling” ] }, { “question”: “Does the HOA have to provide original invoices if I request them?”, “short_answer”: “Yes. Financial records, including original invoices, must be made reasonably available.”, “detailed_answer”: “The decision confirms that failure to allow examination of original invoices constitutes a violation of the statute governing association records.”, “alj_quote”: “Respondent violated A.R.S. section 33-1258(A) when it failed to allow Petitioner to examine the May 2024 original invoices and bank statements”, “legal_basis”: “A.R.S. § 33-1258(A)”, “topic_tags”: [ “invoices”, “financial records”, “transparency” ] }, { “question”: “What is the standard of proof for proving the HOA violated the law?”, “short_answer”: “Preponderance of the evidence.”, “detailed_answer”: “The homeowner must prove their case by showing it is ‘more probably true than not.’ This is the standard evidentiary weight required in these administrative hearings.”, “alj_quote”: “Petitioner bears the burden of proof to establish that Respondent violated A.R.S. § 33-1258 (A) by a preponderance of the evidence.”, “legal_basis”: “A.A.C. R2-19-119(A)”, “topic_tags”: [ “legal standards”, “burden of proof”, “hearing procedures” ] }, { “question”: “Will the HOA always be fined a civil penalty if they break the law?”, “short_answer”: “Not necessarily. The judge has discretion on whether to apply a civil penalty.”, “detailed_answer”: “Even if a violation is found (as it was in this case regarding the records), the judge may decide that a civil penalty is not appropriate based on the circumstances.”, “alj_quote”: “No Civil Penalty is found to be appropriate in this matter.”, “legal_basis”: “Order”, “topic_tags”: [ “civil penalty”, “fines”, “enforcement” ] } ] }
Case Participants
Petitioner Side
Joseph P. Allan(petitioner) Appeared on behalf of himself. Name also appears as Joseph P. Allen.
Respondent Side
Belen Guzman(property manager) SSC Property Management Owner of the property management company for the Respondent. Appeared on behalf of the Respondent.
Peetri Ahon(board member) The Springs Condominiums Association Was the President of the board at the time of requests, later identified as a member at large.
Neutral Parties
Velva Moses-Thompson(ALJ) OAH Administrative Law Judge. Name also appears as Fala Moses Thompson.
Susan Nicolson(ADRE Commissioner) Arizona Department of Real Estate
Other Participants
Carmen(homeowner) The Springs Condominiums Association A homeowner who was CC'd on an email.
A.R.S. § 33-1258(A) A.R.S. § 33-1248 (A), (D), (E), and (F); and Tara CC&Rs Section 9(E)
Outcome Summary
Petitioner prevailed on the 'Records' issue (A.R.S. § 33-1258), resulting in a $500.00 filing fee reimbursement. Respondent prevailed on the 'Example 13' issue (A.R.S. § 33-1248 and CC&Rs § 9(E)).
Why this result: The Administrative Law Judge concluded that Petitioner failed to sustain her burden regarding the Open Meeting Law allegations, finding that TARA conducted meetings in compliance and the specific volunteer work referenced was not statutorily or contractually required to be placed on an agenda for formal action.
Key Issues & Findings
Records Access Violation
TARA failed to timely provide access to TARA HOA records it possessed, violating the ten business day fulfillment requirement for examination requests.
Orders: TARA was ordered to reimburse Petitioner $500.00.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1258
A.R.S. § 33-1258(A)
Open Meeting Law Violation (Example 13)
Petitioner alleged open meeting violations concerning volunteer work and projects not placed on agendas or formally voted upon by the board (Example 13).
Orders: Petitioner's Petition was dismissed as to alleged violations of A.R.S. § 33-1248(A), (D), (E), and (F) and/or Tara CC&Rs Section 9(E).
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 33-1248(A)
A.R.S. § 33-1248(D)
A.R.S. § 33-1248(E)
A.R.S. § 33-1248(F)
Tara CC&Rs Section 9(E)
Analytics Highlights
Topics: HOA Records, Open Meeting Law, Partial Victory, Filing Fee Reimbursement, Condominium Association
Additional Citations:
A.R.S. § 32-2199
A.R.S. § 32-2199.01
A.R.S. § 32-2199.02
A.R.S. § 32-2199.04
A.R.S. § 32-2199.05
A.R.S. § 33-1248
A.R.S. § 33-1258
A.R.S. § 33-1801 et seq.
A.R.S. § 41-1092.09
Tara CC&Rs Section 9(E)
Audio Overview
Decision Documents
24F-H054-REL Decision – 1212274.pdf
Uploaded 2026-01-23T18:11:34 (70.4 KB)
24F-H054-REL Decision – 1212281.pdf
Uploaded 2026-01-23T18:11:41 (12.4 KB)
24F-H054-REL Decision – 1216809.pdf
Uploaded 2026-01-23T18:11:49 (50.9 KB)
24F-H054-REL Decision – 1225818.pdf
Uploaded 2026-01-23T18:11:58 (168.1 KB)
24F-H054-REL Decision – 1226250.pdf
Uploaded 2026-01-23T18:12:08 (41.9 KB)
Briefing Doc – 24F-H054-REL
Briefing Document: Marx v. Tara Condominium Association
Executive Summary
This document provides a comprehensive analysis of the administrative case Lisa Marx v. Tara Condominium Association (No. 24F-H054-REL), adjudicated by the Arizona Office of Administrative Hearings. The dispute centers on two primary allegations brought by homeowner and former board member Lisa Marx against the Tara Condominium Association (TARA): (1) violations of Arizona state law regarding access to association records, and (2) violations of the state’s Open Meeting Law.
The case culminated in a split decision by the Administrative Law Judge (ALJ). TARA was found to have violated A.R.S. § 33-1258 by failing to provide timely access to its financial and other records as requested by the petitioner. However, the petitioner failed to prove her second claim that TARA violated the open meeting provisions of A.R.S. § 33-1248 when board members and volunteers performed maintenance and repair projects on common areas without formal agenda items and board votes.
Consequently, the ALJ sustained the petition on the records violation and dismissed it on the open meeting violation. TARA was ordered to reimburse Ms. Marx $500, representing the filing fee for the single issue on which she prevailed. A subsequent request for rehearing filed by Ms. Marx was procedurally rejected for being submitted to the incorrect agency.
Case Background and Procedural History
Parties and Context
• Petitioner: Lisa Marx, a homeowner in the Tara Condominium Association and a former board member who served in various capacities, including Secretary, Chairperson, and Vice-Chairperson, from 2021 until her resignation in January 2024.
• Respondent: Tara Condominium Association (TARA), a 50-unit nonprofit management association, represented at the hearing by its Chairman, Mark Gottmann.
The dispute arose following a change in board leadership in early 2024, with Ms. Marx alleging the new board was operating without transparency and in violation of state statutes and the association’s governing documents.
Chronology of Key Events
Jan 2024
Lisa Marx resigns from the TARA board two weeks after being elected for a fourth term.
Feb 1, 2024
Mark Gottmann assumes the role of Chairman of the Board.
Feb–Apr 2024
Marx makes a series of five requests for association records, which are either partially or fully denied by the TARA board.
May 29, 2024
Marx files an HOA Dispute Process Petition with the Arizona Department of Real Estate, alleging two categories of violations and paying a 1,000filingfee(500 per issue).
Aug 8, 2024
TARA files an Amended Response, admitting to several of the alleged violations, offering to reimburse Marx’s $1,000 filing fee, and requesting that the hearing be vacated.
Aug 8, 2024
Marx files a reply rejecting the offer, stating that the “numerous” issues required “a ruling that is binding and definite” to “hopefully prevent further violations.”
Aug 16, 2024
The ALJ issues an order requiring Marx to narrow her petition to two specific issues, categorizing the five records-request instances as one “records” issue and requiring her to select one of the thirteen alleged open-meeting violations.
Aug 19, 2024
Marx selects “Example 13” from her petition as her second issue.
Aug 29, 2024
An administrative hearing is held before ALJ Kay A. Abramsohn.
Sep 20, 2024
The ALJ issues a final decision.
Sep 23, 2024
The ALJ issues a Minute Entry rejecting a request for rehearing filed by Marx, as it was sent to the Office of Administrative Hearings instead of the Commissioner of the Arizona Department of Real Estate.
Analysis of Disputed Issues and Testimony
The hearing focused on two central issues as narrowed by the ALJ’s order.
Issue 1: Access to Association Records (A.R.S. § 33-1258)
This issue consolidated five instances across multiple dates where Marx alleged she was improperly denied access to or provision of TARA’s records.
Petitioner’s Position (Lisa Marx):
• Marx testified that she made multiple written requests for documents including vouchers, contracts, financial reports (General Ledger, AP Distribution), architectural change forms, and violation letters.
• The board’s responses were statutorily invalid. For example, a February 22, 2024 response stated: “A member of the Association is entitled to see reasonable financial information only. A member does not have a right to see contracts entered into by the Board nor information concerning specific members. We respectfully refuse your request…” Another denial was based on her being “no longer a board member.”
• Marx argued this refusal to provide records blocks transparency, creates distrust, and prevents homeowners from ensuring the governing documents are being enforced impartially. She asserted that all requested documents, such as financial records and contracts related to common areas, are records homeowners are entitled to examine.
Respondent’s Position (Tara Condominium Association):
• Mark Gottmann testified that the board was new and that any mistakes were made out of “enthusiasm” and a desire to better the community, not malicious intent.
• He stated the board acted on advice from outside sources, including a trade association, which led them to believe they were “over-providing” documents compared to their CC&Rs, which only mandate semi-annual financial statements.
• TARA experienced delays in receiving financial reports from its management company, Colby, after it was acquired by another entity, which in turn delayed distribution to homeowners.
• Gottmann argued that some requested documents did not exist (e.g., contracts for volunteer work), while others were justifiably withheld because they contained private information about individual homeowners (e.g., violation letters, architectural change forms).
Issue 2: Open Meeting Law Violations (A.R.S. § 33-1248)
This issue centered on “Example 13” of the petition, which alleged the board undertook several projects without adhering to open meeting requirements.
Petitioner’s Position (Lisa Marx):
• Marx alleged that several projects were performed on common property without being included on a meeting agenda and without a formal vote by the board in an open meeting. These projects included:
◦ Board members spraying weeds.
◦ Board members digging up grass around trees and laying mulch.
◦ A board member refinishing wood shutters.
• She argued these actions violated A.R.S. § 33-1248 and TARA’s own CC&Rs (Section 9(E)), which states, “A majority vote of the Managers shall entitle the Board to carry out action on behalf of the owners of the units.”
• The failure to discuss these items in an open meeting denied members the right to provide input before the board took action on community property.
Respondent’s Position (Tara Condominium Association):
• Gottmann characterized the projects as ongoing operational responsibilities and good-faith efforts by volunteers to save the association money.
• The weed spraying was described as an “experiment” at no cost to TARA. The mulching was done with donated materials in response to a homeowner’s suggestion. The shutter repair was done by volunteers for a nominal cost of less than $150 for materials, which was within the monthly maintenance budget.
• He argued these were not formal actions requiring a board vote but were undertaken with an “enthusiasm and desire to make our community a better place.” TARA’s CC&Rs (Section 12, Part D) grant the board the power “to use and expend the assessments collected to maintain, care for, and preserve the common elements.”
Administrative Law Judge’s Decision and Order
The ALJ’s decision, issued on September 20, 2024, delivered a split verdict, finding for each party on one of the two core issues.
Finding on Records Violation (A.R.S. § 33-1258):
• Verdict: TARA violated the statute.
• Reasoning: The ALJ concluded that TARA failed to provide access to records it possessed within the statutorily required ten-day timeframe. While TARA had a potential defense for delays related to its management company and a valid reason to withhold records containing personal information of other members, the overall evidence demonstrated a failure to comply with the law.
• Outcome: The petitioner was deemed the prevailing party on this issue.
Finding on Open Meeting Violation (A.R.S. § 33-1248):
• Verdict: TARA did not violate the statute.
• Reasoning: The ALJ found that the petitioner failed to sustain her burden of proof. The evidence showed that TARA conducted its formal meetings in compliance with open meeting laws, providing notice and agendas. The ALJ concluded there was “no evidence in the hearing record that… those work circumstances… were required by statute or the CC&Rs to be placed on a TARA agenda for discussion and/or for ‘formal action’ by the Board.”
• Outcome: The respondent was deemed the prevailing party on this issue.
Final Order
Based on the findings, the ALJ issued the following orders:
1. Petitioner’s Petition is sustained as to the TARA violation of A.R.S. § 33-1258 (Records).
2. Petitioner’s Petition is dismissed as to the alleged violations by TARA of A.R.S. § 33-1248 (Open Meetings).
3. TARA is ordered to reimburse Petitioner in the amount of $500.00, representing the filing fee for the single successful claim.
Study Guide – 24F-H054-REL
{ “case”: { “docket_no”: “24F-H054-REL”, “case_title”: “Lisa Marx v. Tara Condominium Association”, “decision_date”: “2024-09-20”, “alj_name”: “Kay A. Abramsohn”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Can my HOA refuse to provide financial records because they are waiting to receive them from their third-party management company?”, “short_answer”: “No. The HOA is responsible for providing access to records within the statutory 10-day timeframe, regardless of management company delays.”, “detailed_answer”: “The ALJ ruled that waiting for a management company to provide monthly reports does not excuse the association from its statutory obligation to make records reasonably available within 10 business days. Even if the HOA acts in good faith while waiting for a vendor, failure to provide existing records violates the statute.”, “alj_quote”: “TARA has a defense, although unsupported, regarding the time frame only as to the financial documents for which TARA was waiting from its management company. … Overall, as to A.R.S. § 33-1258, there is no evidence that, within the ten day time frame, TARA provided access to the TARA HOA records it did have and which were required to have been provided to Petitioner; therefore, the Administrative Law Judge concludes that TARA violated A.R.S. § 33-1258.”, “legal_basis”: “A.R.S. § 33-1258”, “topic_tags”: [ “records request”, “financial records”, “management company” ] }, { “question”: “Does a group of board members or volunteers doing unpaid maintenance work require an open meeting and a formal vote?”, “short_answer”: “Not necessarily. If the work is volunteer-based and doesn’t require a specific contract or expenditure necessitating a vote under the CC&Rs or statutes, it may not trigger open meeting requirements.”, “detailed_answer”: “The ALJ determined that volunteer work performed by board members (like weeding or painting) to save money did not constitute ‘formal action’ that required placement on an agenda or a formal vote in an open meeting, provided no statute or governing document specifically required it.”, “alj_quote”: “There is no evidence in the hearing record that, prior to the volunteer work described in Example 13, that those work circumstances, or any projected volunteer work circumstances, were required by statute or the CC&Rs to be placed on a TARA agenda for discussion and/or for ‘formal action’ by the Board at the TARA monthly meetings.”, “legal_basis”: “A.R.S. § 33-1248”, “topic_tags”: [ “open meetings”, “volunteer work”, “board authority” ] }, { “question”: “Can the HOA withhold violation letters or architectural change forms concerning other homeowners?”, “short_answer”: “Yes, if those documents contain personal information about specific members.”, “detailed_answer”: “The decision affirms that HOAs can refuse to provide records related to specific units, such as violation notices or contracts containing personal data, under the statutory exception for personal, health, or financial records of individual members.”, “alj_quote”: “A.R.S. § 33-1258(B)(4) provides an exception to the requirement to provide records for ‘personal, health or financial records of an individual member’ … In this case, because some of the requested ‘repair’ contract information for repairs at certain addresses may have contained personal information of another member, TARA was likely within its statutory authority to refuse to provide that particular information.”, “legal_basis”: “A.R.S. § 33-1258(B)(4)”, “topic_tags”: [ “privacy”, “violation letters”, “records request” ] }, { “question”: “Can the board deny my records request because I am no longer a board member?”, “short_answer”: “No. The right to examine records belongs to all members of the association.”, “detailed_answer”: “The ALJ found the HOA in violation when it declined to provide information on the grounds that the requester was ‘no longer a Board member.’ The statute requires records be made available to ‘any member.'”, “alj_quote”: “TARA declined to provide such, stating that Petitioner was no longer a Board member. … TARA failed to comply with A.R.S. § 33-1258 regarding provision of access to TARA HOA records.”, “legal_basis”: “A.R.S. § 33-1258(A)”, “topic_tags”: [ “homeowner rights”, “records access”, “board membership” ] }, { “question”: “If I file a petition with two issues and only win one, do I get my filing fee back?”, “short_answer”: “You may receive a partial reimbursement. The tribunal may order the HOA to reimburse the portion of the fee related to the successful claim.”, “detailed_answer”: “In this case, the petitioner paid 1,000fortwoissues(500 per issue). Since the petitioner prevailed on the records issue but failed on the open meeting issue, the ALJ ordered the HOA to reimburse only $500.”, “alj_quote”: “IT IS ORDERED that TARA reimburse Petitioner in the amount of $500.00. … The Administrative Law Judge concludes TARA is the prevailing party regarding the ‘Example 13’ issue and Petitioner bears the filing fee on this issue.”, “legal_basis”: “A.R.S. § 32-2199.01”, “topic_tags”: [ “filing fees”, “dispute resolution”, “penalties” ] }, { “question”: “Does being a ‘new board’ or ‘learning the ropes’ excuse the HOA from following state laws?”, “short_answer”: “No. Ignorance of the law or being a new board is not a valid defense for violating statutes.”, “detailed_answer”: “The HOA argued they were a new board acting in the best interest of the community and learning better governing practices. The ALJ acknowledged this explanation but still ruled that the failure to provide records was a violation of state statute.”, “alj_quote”: “TARA explained that the Board was a new Board and, believing it was acting in the Board’s best interest, was in the process of learning the procedures for better governing practices. … the Administrative Law Judge concludes that TARA violated A.R.S. § 33-1258.”, “legal_basis”: “A.R.S. § 33-1258”, “topic_tags”: [ “board duties”, “legal compliance”, “defenses” ] } ] }
Blog Post – 24F-H054-REL
{ “case”: { “docket_no”: “24F-H054-REL”, “case_title”: “Lisa Marx v. Tara Condominium Association”, “decision_date”: “2024-09-20”, “alj_name”: “Kay A. Abramsohn”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Can my HOA refuse to provide financial records because they are waiting to receive them from their third-party management company?”, “short_answer”: “No. The HOA is responsible for providing access to records within the statutory 10-day timeframe, regardless of management company delays.”, “detailed_answer”: “The ALJ ruled that waiting for a management company to provide monthly reports does not excuse the association from its statutory obligation to make records reasonably available within 10 business days. Even if the HOA acts in good faith while waiting for a vendor, failure to provide existing records violates the statute.”, “alj_quote”: “TARA has a defense, although unsupported, regarding the time frame only as to the financial documents for which TARA was waiting from its management company. … Overall, as to A.R.S. § 33-1258, there is no evidence that, within the ten day time frame, TARA provided access to the TARA HOA records it did have and which were required to have been provided to Petitioner; therefore, the Administrative Law Judge concludes that TARA violated A.R.S. § 33-1258.”, “legal_basis”: “A.R.S. § 33-1258”, “topic_tags”: [ “records request”, “financial records”, “management company” ] }, { “question”: “Does a group of board members or volunteers doing unpaid maintenance work require an open meeting and a formal vote?”, “short_answer”: “Not necessarily. If the work is volunteer-based and doesn’t require a specific contract or expenditure necessitating a vote under the CC&Rs or statutes, it may not trigger open meeting requirements.”, “detailed_answer”: “The ALJ determined that volunteer work performed by board members (like weeding or painting) to save money did not constitute ‘formal action’ that required placement on an agenda or a formal vote in an open meeting, provided no statute or governing document specifically required it.”, “alj_quote”: “There is no evidence in the hearing record that, prior to the volunteer work described in Example 13, that those work circumstances, or any projected volunteer work circumstances, were required by statute or the CC&Rs to be placed on a TARA agenda for discussion and/or for ‘formal action’ by the Board at the TARA monthly meetings.”, “legal_basis”: “A.R.S. § 33-1248”, “topic_tags”: [ “open meetings”, “volunteer work”, “board authority” ] }, { “question”: “Can the HOA withhold violation letters or architectural change forms concerning other homeowners?”, “short_answer”: “Yes, if those documents contain personal information about specific members.”, “detailed_answer”: “The decision affirms that HOAs can refuse to provide records related to specific units, such as violation notices or contracts containing personal data, under the statutory exception for personal, health, or financial records of individual members.”, “alj_quote”: “A.R.S. § 33-1258(B)(4) provides an exception to the requirement to provide records for ‘personal, health or financial records of an individual member’ … In this case, because some of the requested ‘repair’ contract information for repairs at certain addresses may have contained personal information of another member, TARA was likely within its statutory authority to refuse to provide that particular information.”, “legal_basis”: “A.R.S. § 33-1258(B)(4)”, “topic_tags”: [ “privacy”, “violation letters”, “records request” ] }, { “question”: “Can the board deny my records request because I am no longer a board member?”, “short_answer”: “No. The right to examine records belongs to all members of the association.”, “detailed_answer”: “The ALJ found the HOA in violation when it declined to provide information on the grounds that the requester was ‘no longer a Board member.’ The statute requires records be made available to ‘any member.'”, “alj_quote”: “TARA declined to provide such, stating that Petitioner was no longer a Board member. … TARA failed to comply with A.R.S. § 33-1258 regarding provision of access to TARA HOA records.”, “legal_basis”: “A.R.S. § 33-1258(A)”, “topic_tags”: [ “homeowner rights”, “records access”, “board membership” ] }, { “question”: “If I file a petition with two issues and only win one, do I get my filing fee back?”, “short_answer”: “You may receive a partial reimbursement. The tribunal may order the HOA to reimburse the portion of the fee related to the successful claim.”, “detailed_answer”: “In this case, the petitioner paid 1,000fortwoissues(500 per issue). Since the petitioner prevailed on the records issue but failed on the open meeting issue, the ALJ ordered the HOA to reimburse only $500.”, “alj_quote”: “IT IS ORDERED that TARA reimburse Petitioner in the amount of $500.00. … The Administrative Law Judge concludes TARA is the prevailing party regarding the ‘Example 13’ issue and Petitioner bears the filing fee on this issue.”, “legal_basis”: “A.R.S. § 32-2199.01”, “topic_tags”: [ “filing fees”, “dispute resolution”, “penalties” ] }, { “question”: “Does being a ‘new board’ or ‘learning the ropes’ excuse the HOA from following state laws?”, “short_answer”: “No. Ignorance of the law or being a new board is not a valid defense for violating statutes.”, “detailed_answer”: “The HOA argued they were a new board acting in the best interest of the community and learning better governing practices. The ALJ acknowledged this explanation but still ruled that the failure to provide records was a violation of state statute.”, “alj_quote”: “TARA explained that the Board was a new Board and, believing it was acting in the Board’s best interest, was in the process of learning the procedures for better governing practices. … the Administrative Law Judge concludes that TARA violated A.R.S. § 33-1258.”, “legal_basis”: “A.R.S. § 33-1258”, “topic_tags”: [ “board duties”, “legal compliance”, “defenses” ] } ] }
Case Participants
Petitioner Side
Lisa Marx(petitioner) Tara Condominium Association (Homeowner) Also former HOA Secretary, Vice-Chairperson, and Chairperson.
Brenda Spielder(observer) Tara Condominium Association (Member) Attended hearing with Petitioner.
Cynthia Poland(observer) Tara Condominium Association (Member) Attended hearing with Petitioner.
Respondent Side
Mark Gottmann(board member) Tara Condominium Association Chairman of the Board; represented Tara at the hearing.
Chandler W. Travis(HOA attorney) Travis Law Firm PLC Counsel for Tara Condominium Association until August 27, 2024.
Stephanie Bushart(board member) Tara Condominium Association
Tina Marie Shepherd(board member) Tara Condominium Association Resigned as Chairperson on January 31, 2024.
Dennis Anderson(board member) Tara Condominium Association Involved in volunteer work (weed spraying, trench digging, shutter refinishing).
Judy Rice(board member) Tara Condominium Association Treasurer and CPA.
Ted(board member) Tara Condominium Association Involved in volunteer trench work.
Nikki(volunteer) Tara Condominium Association Involved in volunteer shutter repair.
Neutral Parties
Kay A. Abramsohn(ALJ) Office of Administrative Hearings
Susan Nicolson(Commissioner) Arizona Department of Real Estate
Other Participants
Renee Snow(volunteer) Tara Condominium Association Volunteered for landscaping committee.
The Administrative Law Judge denied the petition, finding Petitioner failed to prove the Association violated ARIZ. REV. STAT. § 33-1242 regarding due process requirements for violation enforcement, as the Petitioner did not follow the required certified mail procedure to trigger those rights.
Why this result: Petitioner failed to prove by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1242. Petitioner did not follow the statutory requirement of sending a response via certified mail (ARIZ. REV. STAT. § 33-1242(B)).
Key Issues & Findings
Alleged failure to follow due process concerning violation enforcement
Petitioner alleged the Association failed to follow due process when enforcing community documents regarding damage to a semi-common element (carport) before her purchase, leading to a violation notice and subsequent enforcement.
Orders: Petition denied. Respondent shall not reimburse Petitioner's filing fee as required by ARIZ. REV. STAT. § 32-2199.02(A).
Can the Administrative Law Judge decide if I am actually responsible for the damage cited in a violation?
Short Answer
No. The ALJ's jurisdiction is limited to determining if the HOA followed the correct statutory process (due process), not determining the underlying facts of responsibility or 'guilt' regarding the damage.
Detailed Answer
The Tribunal does not have the authority to decide the merits of the violation itself (e.g., who caused the damage). Its role is strictly to determine if the Association violated the specific statutes governing the enforcement process (such as notice and hearing requirements).
Alj Quote
The record is clear that Petitioner was under the erroneous belief that the Tribunal had jurisdiction to determine who, if anyone, was responsible for causing the damage to Unit 16’s carport and was therefore liable for the repairs required. In all actuality, the crux of the matter for hearing is whether Respondent violated ARIZ. REV. STAT. § 33-1242.
Legal Basis
ARIZ. REV. STAT. § 33-1242
Topic Tags
jurisdiction
scope of hearing
violation responsibility
Question
Is it required to send my violation dispute response by certified mail?
Short Answer
Yes. Failing to send a response by certified mail may fail to 'trigger' the specific statutory due process protections afforded by state law.
Detailed Answer
The statute explicitly states that a unit owner 'may' provide a written response by certified mail within 21 days. The decision clarifies that failing to follow this specific requirement (e.g., sending an email instead) means the owner has not met the statutory requirements necessary to trigger protected due process rights under that specific statute.
Alj Quote
The record reflects that Petitioner did not follow the statutory requirements of ARIZ. REV. STAT. § 33-1242 necessary to 'trigger' any protected due process rights.
Legal Basis
ARIZ. REV. STAT. § 33-1242(B)
Topic Tags
certified mail
procedural requirements
contesting violations
Question
What constitutes 'due process' for an HOA violation?
Short Answer
Due process generally consists of being given notice of the violation and an opportunity to be heard by the Board before any penalties are levied.
Detailed Answer
Even if a homeowner misses a technical step (like certified mail), the ALJ may find the HOA acted correctly if the HOA still provided the homeowner with clear notice of their rights/options and allowed them a hearing before the Board prior to issuing fines.
Alj Quote
Respondent nonetheless apprised her of her rights and options, and afforded her an opportunity to be heard before the Board prior to levying penalties/fines over the violation at issue.
Legal Basis
ARIZ. REV. STAT. § 33-1242
Topic Tags
due process
notice
board hearing
Question
Who is responsible for repairing 'Limited Common Elements' like a designated carport?
Short Answer
Typically the Unit Owner. The specific maintenance obligations are defined in the community's Declaration.
Detailed Answer
In this case, the Declaration stated that while the Association maintains Common Elements, Limited Common Elements allocated to a specific unit are the responsibility of that Unit Owner to maintain, repair, and replace.
Alj Quote
[E]ach Owner shall be responsible for the maintenance, repair and replacement of the Limited Common Elements allocated to [their] unit.
Legal Basis
Declaration Article 5.2
Topic Tags
maintenance
limited common elements
carport
Question
Am I financially liable for damage caused by my tenants?
Short Answer
Yes. Owners are generally liable for damages to common elements resulting from the negligence or misconduct of their lessees.
Detailed Answer
The governing documents in this case explicitly stated that the owner is liable for damage to common elements resulting from the negligence or willful misconduct of the owner's lessees, occupants, or invitees.
Alj Quote
Each Owner shall be liable to the Association for any damage to the Common Elements which results from the negligence or willful misconduct of the Owner or of the Owner’s Lessees, Occupants or Invitees.
Legal Basis
Declaration Article 5.3
Topic Tags
tenant liability
rental property
damages
Question
Who has the burden of proof in an administrative hearing against the HOA?
Short Answer
The homeowner (Petitioner) bears the burden of proof.
Detailed Answer
The homeowner must prove by a 'preponderance of the evidence' (meaning it is more probable than not) that the Association violated the relevant statute.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1243.
Legal Basis
ARIZ. ADMIN. CODE R2-19-119
Topic Tags
burden of proof
evidence
legal standard
Question
Can I get my filing fee reimbursed if my petition is denied?
Short Answer
No. If the petition is denied, the ALJ acts under statute to order that the filing fee is not reimbursed.
Detailed Answer
The decision specifically orders that pursuant to state statute, the Respondent (HOA) is not required to reimburse the filing fee when the Petitioner does not prevail.
Alj Quote
IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall not reimburse Petitioner’s filing fee as required by ARIZ. REV. STAT. § 32-2199.01.
Legal Basis
ARIZ. REV. STAT. § 32-2199.02(A)
Topic Tags
filing fees
costs
reimbursement
Case
Docket No
23F-H021-REL
Case Title
Victoria J Whitaker vs. Villas at Sunland Condominium Association
Decision Date
2023-02-22
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE
Questions
Question
Can the Administrative Law Judge decide if I am actually responsible for the damage cited in a violation?
Short Answer
No. The ALJ's jurisdiction is limited to determining if the HOA followed the correct statutory process (due process), not determining the underlying facts of responsibility or 'guilt' regarding the damage.
Detailed Answer
The Tribunal does not have the authority to decide the merits of the violation itself (e.g., who caused the damage). Its role is strictly to determine if the Association violated the specific statutes governing the enforcement process (such as notice and hearing requirements).
Alj Quote
The record is clear that Petitioner was under the erroneous belief that the Tribunal had jurisdiction to determine who, if anyone, was responsible for causing the damage to Unit 16’s carport and was therefore liable for the repairs required. In all actuality, the crux of the matter for hearing is whether Respondent violated ARIZ. REV. STAT. § 33-1242.
Legal Basis
ARIZ. REV. STAT. § 33-1242
Topic Tags
jurisdiction
scope of hearing
violation responsibility
Question
Is it required to send my violation dispute response by certified mail?
Short Answer
Yes. Failing to send a response by certified mail may fail to 'trigger' the specific statutory due process protections afforded by state law.
Detailed Answer
The statute explicitly states that a unit owner 'may' provide a written response by certified mail within 21 days. The decision clarifies that failing to follow this specific requirement (e.g., sending an email instead) means the owner has not met the statutory requirements necessary to trigger protected due process rights under that specific statute.
Alj Quote
The record reflects that Petitioner did not follow the statutory requirements of ARIZ. REV. STAT. § 33-1242 necessary to 'trigger' any protected due process rights.
Legal Basis
ARIZ. REV. STAT. § 33-1242(B)
Topic Tags
certified mail
procedural requirements
contesting violations
Question
What constitutes 'due process' for an HOA violation?
Short Answer
Due process generally consists of being given notice of the violation and an opportunity to be heard by the Board before any penalties are levied.
Detailed Answer
Even if a homeowner misses a technical step (like certified mail), the ALJ may find the HOA acted correctly if the HOA still provided the homeowner with clear notice of their rights/options and allowed them a hearing before the Board prior to issuing fines.
Alj Quote
Respondent nonetheless apprised her of her rights and options, and afforded her an opportunity to be heard before the Board prior to levying penalties/fines over the violation at issue.
Legal Basis
ARIZ. REV. STAT. § 33-1242
Topic Tags
due process
notice
board hearing
Question
Who is responsible for repairing 'Limited Common Elements' like a designated carport?
Short Answer
Typically the Unit Owner. The specific maintenance obligations are defined in the community's Declaration.
Detailed Answer
In this case, the Declaration stated that while the Association maintains Common Elements, Limited Common Elements allocated to a specific unit are the responsibility of that Unit Owner to maintain, repair, and replace.
Alj Quote
[E]ach Owner shall be responsible for the maintenance, repair and replacement of the Limited Common Elements allocated to [their] unit.
Legal Basis
Declaration Article 5.2
Topic Tags
maintenance
limited common elements
carport
Question
Am I financially liable for damage caused by my tenants?
Short Answer
Yes. Owners are generally liable for damages to common elements resulting from the negligence or misconduct of their lessees.
Detailed Answer
The governing documents in this case explicitly stated that the owner is liable for damage to common elements resulting from the negligence or willful misconduct of the owner's lessees, occupants, or invitees.
Alj Quote
Each Owner shall be liable to the Association for any damage to the Common Elements which results from the negligence or willful misconduct of the Owner or of the Owner’s Lessees, Occupants or Invitees.
Legal Basis
Declaration Article 5.3
Topic Tags
tenant liability
rental property
damages
Question
Who has the burden of proof in an administrative hearing against the HOA?
Short Answer
The homeowner (Petitioner) bears the burden of proof.
Detailed Answer
The homeowner must prove by a 'preponderance of the evidence' (meaning it is more probable than not) that the Association violated the relevant statute.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1243.
Legal Basis
ARIZ. ADMIN. CODE R2-19-119
Topic Tags
burden of proof
evidence
legal standard
Question
Can I get my filing fee reimbursed if my petition is denied?
Short Answer
No. If the petition is denied, the ALJ acts under statute to order that the filing fee is not reimbursed.
Detailed Answer
The decision specifically orders that pursuant to state statute, the Respondent (HOA) is not required to reimburse the filing fee when the Petitioner does not prevail.
Alj Quote
IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall not reimburse Petitioner’s filing fee as required by ARIZ. REV. STAT. § 32-2199.01.
Legal Basis
ARIZ. REV. STAT. § 32-2199.02(A)
Topic Tags
filing fees
costs
reimbursement
Case
Docket No
23F-H021-REL
Case Title
Victoria J Whitaker vs. Villas at Sunland Condominium Association
Decision Date
2023-02-22
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Victoria Whitaker(petitioner) Appeared on her own behalf without counsel
Kimball Whitaker(observer) Observed hearing; potential witness for petitioner
Realtor(realtor) Petitioner's realtor (name not provided)
The Petitioner’s petition was affirmed in part (violation of A.R.S. § 33-1258 regarding documents) and denied in part (no violation of A.R.S. § 33-1248 regarding open meetings). Respondent was ordered to reimburse $500.00 of the filing fee and comply with A.R.S. § 33-1258.
Why this result: Petitioner failed to prove the violation of A.R.S. § 33-1248 because evidence of improper notice was lacking and the topic discussed in executive session was likely covered by a statutory exemption.
Key Issues & Findings
Access to Association Records
Respondent violated A.R.S. § 33-1258 by failing to provide certain requested 2021 invoices that were in existence at the time of the request within the statutory 10-day period.
Orders: Respondent must comply with A.R.S. § 33-1258 going forward. Petitioner reimbursed $500.00 filing fee.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1258
A.R.S. § 33-1805
Open Board Meetings
Petitioner failed to establish a violation of A.R.S. § 33-1248 regarding the March 25, 2021, board meeting, as the issue regarding notice was not established and the topic discussed (Landscaping Bid Review) likely fell under a statutory exemption.
Orders: Petitioner failed to establish the alleged violation of A.R.S. § 33-1248.
Can I demand to inspect every single HOA document in person at the management office?
Short Answer
No. While records must be reasonably available, you do not have the right to peruse all documents at will.
Detailed Answer
The Administrative Law Judge ruled that the statute requiring records be 'reasonably available' does not grant an unlimited right to inspect all documents in person. The HOA can withhold certain confidential documents, and sorting through everything to remove them may be considered unduly burdensome.
Alj Quote
Nothing in the statute however, grants a condominium unit owner the right to peruse all of the association’s documents at will as some documents may properly be withheld.
Legal Basis
A.R.S. § 33-1258
Topic Tags
Records Request
Inspection Rights
Question
Is it a violation if the HOA fails to provide requested invoices within 10 days?
Short Answer
Yes. If the documents exist and are not provided within the statutory timeframe, it is a violation.
Detailed Answer
The ALJ found the Association in violation of the law because they acknowledged that requested invoices existed at the time of the request but were not provided to the homeowner.
Alj Quote
Respondent’s witness acknowledged that certain invoices requested by Petitioner were in existence at the time of the request, but were not provided to Petitioner. Such a failure to provide the documents requested was a violation of A.R.S. § 33-1258.
Legal Basis
A.R.S. § 33-1258
Topic Tags
Records Request
Invoices
Timeliness
Question
Can the HOA Board discuss vendor contracts or issues in a closed executive session?
Short Answer
Yes, if the discussion involves specific complaints or performance issues regarding an individual employee of the contractor.
Detailed Answer
The ALJ ruled that a 'Landscaping Bid Review' was properly held in executive session because the testimony indicated it involved specific performance issues with an employee of the landscaping company.
Alj Quote
Respondent’s witness asserted that the issue regarding the landscaping bid review was a specific performance issue with an employee of the landscaping company. As that topic falls under the exception listed in A.R.S. § 33-1248(A)(4), Respondent properly considered the issue in an executive session closed to its members.
Legal Basis
A.R.S. § 33-1248(A)(4)
Topic Tags
Open Meetings
Executive Session
Vendors
Question
Will the HOA be fined if they are found to have violated records request laws?
Short Answer
Not necessarily. The ALJ has discretion regarding civil penalties.
Detailed Answer
In this case, even though a violation was found regarding the failure to provide invoices, the judge decided that no civil penalty was appropriate based on the facts presented.
Alj Quote
Based on the facts presented, the Administrative Law Judge finds no civil penalty is appropriate in this matter.
Legal Basis
Administrative Discretion
Topic Tags
Penalties
Enforcement
Question
Who has the burden of proof in a dispute with the HOA?
Short Answer
The homeowner (Petitioner) must prove the violation by a preponderance of the evidence.
Detailed Answer
The homeowner is responsible for providing evidence that outweighs the evidence offered by the HOA. If the homeowner fails to provide sufficient evidence (such as proof of when a meeting agenda was issued), the claim will likely fail.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated A.R.S. § 33-1248 and A.R.S. § 33-1258.
Legal Basis
A.A.C. R2-19-119
Topic Tags
Legal Standards
Burden of Proof
Question
Can I get my filing fee reimbursed if I win?
Short Answer
Yes, typically for the portion of the case on which you prevail.
Detailed Answer
The ALJ ordered the Association to reimburse the homeowner $500.00, which represented the filing fee for the specific issue (records request) where the homeowner won.
Alj Quote
IT IS FURTHER ORDERED that Respondent reimburse Petitioner their $500.00 filing fee for the issue on which they prevailed.
Legal Basis
Order
Topic Tags
Remedies
Fees
Question
What if I suspect the HOA altered a document they sent me?
Short Answer
You must provide proof. Mere assertion is not enough.
Detailed Answer
The homeowner claimed a landscaping contract was altered but provided no evidence. The ALJ ruled that an assertion without merit cannot be the basis for finding a violation.
Alj Quote
Petitioner’s assertion that the landscaping contract was altered in some way is completely without merit and cannot be the basis for a finding that Respondent violated A.R.S. § 33-1258.
Legal Basis
Evidence
Topic Tags
Evidence
Fraud Allegations
Question
Do Open Meeting laws apply to Condominium Associations?
Short Answer
Yes, under A.R.S. § 33-1248.
Detailed Answer
Although the homeowner originally cited the Planned Community statutes (A.R.S. § 33-1804), the hearing proceeded under the correct Condominium statutes (A.R.S. § 33-1248), which contain similar open meeting requirements.
Alj Quote
After discussion, the hearing proceeded with the understanding that the statutes applicable to the instant matter were A.R.S. § 33-1248… and A.R.S. § 33-1258…
Legal Basis
A.R.S. § 33-1248
Topic Tags
Jurisdiction
Condos vs HOAs
Case
Docket No
21F-H2121059-REL
Case Title
Jeffrey D Points vs. Olive 66 Condominium Association
Decision Date
2021-09-08
Alj Name
Tammy L. Eigenheer
Tribunal
OAH
Agency
ADRE
Questions
Question
Can I demand to inspect every single HOA document in person at the management office?
Short Answer
No. While records must be reasonably available, you do not have the right to peruse all documents at will.
Detailed Answer
The Administrative Law Judge ruled that the statute requiring records be 'reasonably available' does not grant an unlimited right to inspect all documents in person. The HOA can withhold certain confidential documents, and sorting through everything to remove them may be considered unduly burdensome.
Alj Quote
Nothing in the statute however, grants a condominium unit owner the right to peruse all of the association’s documents at will as some documents may properly be withheld.
Legal Basis
A.R.S. § 33-1258
Topic Tags
Records Request
Inspection Rights
Question
Is it a violation if the HOA fails to provide requested invoices within 10 days?
Short Answer
Yes. If the documents exist and are not provided within the statutory timeframe, it is a violation.
Detailed Answer
The ALJ found the Association in violation of the law because they acknowledged that requested invoices existed at the time of the request but were not provided to the homeowner.
Alj Quote
Respondent’s witness acknowledged that certain invoices requested by Petitioner were in existence at the time of the request, but were not provided to Petitioner. Such a failure to provide the documents requested was a violation of A.R.S. § 33-1258.
Legal Basis
A.R.S. § 33-1258
Topic Tags
Records Request
Invoices
Timeliness
Question
Can the HOA Board discuss vendor contracts or issues in a closed executive session?
Short Answer
Yes, if the discussion involves specific complaints or performance issues regarding an individual employee of the contractor.
Detailed Answer
The ALJ ruled that a 'Landscaping Bid Review' was properly held in executive session because the testimony indicated it involved specific performance issues with an employee of the landscaping company.
Alj Quote
Respondent’s witness asserted that the issue regarding the landscaping bid review was a specific performance issue with an employee of the landscaping company. As that topic falls under the exception listed in A.R.S. § 33-1248(A)(4), Respondent properly considered the issue in an executive session closed to its members.
Legal Basis
A.R.S. § 33-1248(A)(4)
Topic Tags
Open Meetings
Executive Session
Vendors
Question
Will the HOA be fined if they are found to have violated records request laws?
Short Answer
Not necessarily. The ALJ has discretion regarding civil penalties.
Detailed Answer
In this case, even though a violation was found regarding the failure to provide invoices, the judge decided that no civil penalty was appropriate based on the facts presented.
Alj Quote
Based on the facts presented, the Administrative Law Judge finds no civil penalty is appropriate in this matter.
Legal Basis
Administrative Discretion
Topic Tags
Penalties
Enforcement
Question
Who has the burden of proof in a dispute with the HOA?
Short Answer
The homeowner (Petitioner) must prove the violation by a preponderance of the evidence.
Detailed Answer
The homeowner is responsible for providing evidence that outweighs the evidence offered by the HOA. If the homeowner fails to provide sufficient evidence (such as proof of when a meeting agenda was issued), the claim will likely fail.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated A.R.S. § 33-1248 and A.R.S. § 33-1258.
Legal Basis
A.A.C. R2-19-119
Topic Tags
Legal Standards
Burden of Proof
Question
Can I get my filing fee reimbursed if I win?
Short Answer
Yes, typically for the portion of the case on which you prevail.
Detailed Answer
The ALJ ordered the Association to reimburse the homeowner $500.00, which represented the filing fee for the specific issue (records request) where the homeowner won.
Alj Quote
IT IS FURTHER ORDERED that Respondent reimburse Petitioner their $500.00 filing fee for the issue on which they prevailed.
Legal Basis
Order
Topic Tags
Remedies
Fees
Question
What if I suspect the HOA altered a document they sent me?
Short Answer
You must provide proof. Mere assertion is not enough.
Detailed Answer
The homeowner claimed a landscaping contract was altered but provided no evidence. The ALJ ruled that an assertion without merit cannot be the basis for finding a violation.
Alj Quote
Petitioner’s assertion that the landscaping contract was altered in some way is completely without merit and cannot be the basis for a finding that Respondent violated A.R.S. § 33-1258.
Legal Basis
Evidence
Topic Tags
Evidence
Fraud Allegations
Question
Do Open Meeting laws apply to Condominium Associations?
Short Answer
Yes, under A.R.S. § 33-1248.
Detailed Answer
Although the homeowner originally cited the Planned Community statutes (A.R.S. § 33-1804), the hearing proceeded under the correct Condominium statutes (A.R.S. § 33-1248), which contain similar open meeting requirements.
Alj Quote
After discussion, the hearing proceeded with the understanding that the statutes applicable to the instant matter were A.R.S. § 33-1248… and A.R.S. § 33-1258…
Legal Basis
A.R.S. § 33-1248
Topic Tags
Jurisdiction
Condos vs HOAs
Case
Docket No
21F-H2121059-REL
Case Title
Jeffrey D Points vs. Olive 66 Condominium Association
Decision Date
2021-09-08
Alj Name
Tammy L. Eigenheer
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Jeffrey D Points(petitioner) Appeared on their own behalf
Respondent Side
MacKenzie Hill(respondent attorney) The Brown Law Group, PLLC Represented Olive 66 Condominium Association
Nathan Tennyson(respondent attorney) Represented Olive 66 Condominium Association
Cathy Hacker(association manager) Olive 66 Condominium Association Provided testimony as Association Manager,
Musa(individual/contractor) Mentioned regarding 1099s and invoices; referred to as 'Musa', and 'M. Sayegh'
Lorinda Brown(individual/contractor) Mentioned regarding 1099s and invoices
Neutral Parties
Tammy L. Eigenheer(ALJ) Office of Administrative Hearings
Judy Lowe(ADRE Commissioner) Arizona Department of Real Estate
Other Participants
Tim(individual) Mentioned regarding 1099s/invoices; reportedly 'has not done any work on the property',
Petitioner was deemed the prevailing party after Respondent was found in violation of A.R.S. § 33-1258(A) for failing to provide specific financial records (bank statements, check copies) and A.R.S. § 33-1243(J) for failing to complete the 2019 financial compilation. The ALJ declined to impose a civil penalty but ordered Respondent to reimburse the Petitioner's filing fees of $1,000.00.
Key Issues & Findings
Failure to disclose records and complete annual financial compilation
Respondent violated A.R.S. § 33-1258(A) by failing to provide bank account statements and check copies, and violated A.R.S. § 33-1243(J) by failing to complete the 2019 financial compilation. Petitioner did not meet the burden regarding the 2018 financial report.
Orders: Respondent was ordered to reimburse Petitioner's filing fees of $1,000.00 within 30 days.
Filing fee: $1,000.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
ARIZ. REV. STAT. § 33-1258(A)
ARIZ. REV. STAT. § 33-1243(J)
Analytics Highlights
Topics: Homeowners Association, Records Access, Financial Compilation, Statutory Violation, Condominium Association
Additional Citations:
ARIZ. REV. STAT. § 33-1258(A)
ARIZ. REV. STAT. § 33-1243(J)
ARIZ. REV. STAT. § 32-2102
ARIZ. REV. STAT. § 32-2199
ARIZ. REV. STAT. § 32-2199.05
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Video Overview
Audio Overview
Decision Documents
21F-H2120011-REL Decision – 865401.pdf
Uploaded 2026-01-23T17:35:06 (42.0 KB)
21F-H2120011-REL Decision – 872606.pdf
Uploaded 2026-01-23T17:35:09 (153.6 KB)
Questions
Question
Can my HOA refuse to provide bank statements by claiming the Treasurer kept poor records?
Short Answer
No. The Board has a duty to obtain readily available records like bank statements directly from the bank if necessary.
Detailed Answer
The Board cannot excuse a failure to provide records by blaming a specific officer's poor record-keeping. If records like bank statements are missing from the files, the Board President or other officers should go to the bank to obtain copies.
Alj Quote
Mr. Warnix, as President of the Board, should have taken a more active role in at least obtaining all bank account records and copies of checks given his knowledge of Mr. Molley’s actions… he could have requested copies of the same in person at the bank. The fact that these records still have not been turned over is inexcusable.
Legal Basis
ARIZ. REV. STAT. § 33-1258(A)
Topic Tags
records request
board duties
bank statements
Question
What is the deadline for the HOA to complete its annual financial compilation?
Short Answer
The compilation must be completed within 180 days after the fiscal year ends.
Detailed Answer
Unless the governing documents require an audit, the Board must provide for an annual financial audit, review, or compilation to be finished no later than 180 days after the fiscal year ends. It must be made available to owners within 30 days of completion.
Alj Quote
The audit, review or compilation shall be completed no later than one hundred eighty days after the end of the association's fiscal year and shall be made available on request to the unit owners within thirty days after its completion.
Legal Basis
ARIZ. REV. STAT. § 33-1243(J)
Topic Tags
financials
deadlines
compilation
Question
Will the judge always fine the HOA if they violate record-keeping laws?
Short Answer
Not necessarily. If the HOA fixes the issue and ensures future compliance, the judge may decline to issue a civil penalty.
Detailed Answer
Even if violations are found, the ALJ has discretion regarding civil penalties. If the HOA has hired a professional manager or taken steps to ensure better record-keeping moving forward, the judge might decide a penalty is not required.
Alj Quote
That being said, the tribunal believes that Board took the appropriate steps to ensure better record keeping in the future… Thus, the Administrative Law Judge declines to impose a civil penalty.
Legal Basis
ARIZ. REV. STAT. § 32-2199.02(A)
Topic Tags
civil penalty
fines
enforcement
Question
What happens if I request specific accounting records (like ledgers) that the HOA simply never created?
Short Answer
The HOA cannot produce what doesn't exist, so they may not be penalized for failing to produce them, though the lack of records is a governance issue.
Detailed Answer
If there is no evidence that specific documents (like check registers or dues reports) were ever created due to poor management, the judge may find it impossible to rule that the HOA failed to provide existing records.
Alj Quote
With regards to the other records (check registers, cash receipt journals, dues reports, etc.), it is unclear from Mr. Bossert’s testimony, if those even existed… Thus, it is impossible to know if they even exist, as there was no evidence from Mr. Bossert that they do in fact exist.
Legal Basis
ARIZ. REV. STAT. § 33-1258(A)
Topic Tags
missing records
record keeping
Question
If I win my case against the HOA regarding records, can I get my filing fees back?
Short Answer
Yes, the prevailing party is typically entitled to reimbursement of filing fees.
Detailed Answer
If the homeowner sustains their burden of proof and is deemed the prevailing party, the ALJ can order the HOA to reimburse the filing fees.
Alj Quote
IT IS ORDERED that Petitioner is deemed the prevailing party and is entitled to his filing fees of $1,000.00, and Respondent must reimburse this within 30 days.
Legal Basis
Order based on prevailing party status
Topic Tags
reimbursement
fees
prevailing party
Question
Does a former Board President have a claim regarding missing financials from their own term?
Short Answer
It may be difficult to prove if the President had the authority to fix the issue at the time but didn't.
Detailed Answer
If a petitioner was the Board President during the time the violation occurred and had the power to remedy the situation (e.g., by taking over responsibility from a non-compliant Treasurer) but failed to do so, the tribunal may find they did not meet their burden of proof for that specific violation.
Alj Quote
Mr. Bossert, while acting as President, could have taken more aggressive measures with Mr. Molley to get him to provide the same… Therefore, Petitioner has not met his burden as to the 2018 financial report.
Legal Basis
Burden of proof standard
Topic Tags
board member rights
fiduciary duty
Case
Docket No
21F-H2120011-REL
Case Title
Thomas A & Jade Bossert vs. Silverbell West Association, Inc.
Decision Date
2021-04-16
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE
Questions
Question
Can my HOA refuse to provide bank statements by claiming the Treasurer kept poor records?
Short Answer
No. The Board has a duty to obtain readily available records like bank statements directly from the bank if necessary.
Detailed Answer
The Board cannot excuse a failure to provide records by blaming a specific officer's poor record-keeping. If records like bank statements are missing from the files, the Board President or other officers should go to the bank to obtain copies.
Alj Quote
Mr. Warnix, as President of the Board, should have taken a more active role in at least obtaining all bank account records and copies of checks given his knowledge of Mr. Molley’s actions… he could have requested copies of the same in person at the bank. The fact that these records still have not been turned over is inexcusable.
Legal Basis
ARIZ. REV. STAT. § 33-1258(A)
Topic Tags
records request
board duties
bank statements
Question
What is the deadline for the HOA to complete its annual financial compilation?
Short Answer
The compilation must be completed within 180 days after the fiscal year ends.
Detailed Answer
Unless the governing documents require an audit, the Board must provide for an annual financial audit, review, or compilation to be finished no later than 180 days after the fiscal year ends. It must be made available to owners within 30 days of completion.
Alj Quote
The audit, review or compilation shall be completed no later than one hundred eighty days after the end of the association's fiscal year and shall be made available on request to the unit owners within thirty days after its completion.
Legal Basis
ARIZ. REV. STAT. § 33-1243(J)
Topic Tags
financials
deadlines
compilation
Question
Will the judge always fine the HOA if they violate record-keeping laws?
Short Answer
Not necessarily. If the HOA fixes the issue and ensures future compliance, the judge may decline to issue a civil penalty.
Detailed Answer
Even if violations are found, the ALJ has discretion regarding civil penalties. If the HOA has hired a professional manager or taken steps to ensure better record-keeping moving forward, the judge might decide a penalty is not required.
Alj Quote
That being said, the tribunal believes that Board took the appropriate steps to ensure better record keeping in the future… Thus, the Administrative Law Judge declines to impose a civil penalty.
Legal Basis
ARIZ. REV. STAT. § 32-2199.02(A)
Topic Tags
civil penalty
fines
enforcement
Question
What happens if I request specific accounting records (like ledgers) that the HOA simply never created?
Short Answer
The HOA cannot produce what doesn't exist, so they may not be penalized for failing to produce them, though the lack of records is a governance issue.
Detailed Answer
If there is no evidence that specific documents (like check registers or dues reports) were ever created due to poor management, the judge may find it impossible to rule that the HOA failed to provide existing records.
Alj Quote
With regards to the other records (check registers, cash receipt journals, dues reports, etc.), it is unclear from Mr. Bossert’s testimony, if those even existed… Thus, it is impossible to know if they even exist, as there was no evidence from Mr. Bossert that they do in fact exist.
Legal Basis
ARIZ. REV. STAT. § 33-1258(A)
Topic Tags
missing records
record keeping
Question
If I win my case against the HOA regarding records, can I get my filing fees back?
Short Answer
Yes, the prevailing party is typically entitled to reimbursement of filing fees.
Detailed Answer
If the homeowner sustains their burden of proof and is deemed the prevailing party, the ALJ can order the HOA to reimburse the filing fees.
Alj Quote
IT IS ORDERED that Petitioner is deemed the prevailing party and is entitled to his filing fees of $1,000.00, and Respondent must reimburse this within 30 days.
Legal Basis
Order based on prevailing party status
Topic Tags
reimbursement
fees
prevailing party
Question
Does a former Board President have a claim regarding missing financials from their own term?
Short Answer
It may be difficult to prove if the President had the authority to fix the issue at the time but didn't.
Detailed Answer
If a petitioner was the Board President during the time the violation occurred and had the power to remedy the situation (e.g., by taking over responsibility from a non-compliant Treasurer) but failed to do so, the tribunal may find they did not meet their burden of proof for that specific violation.
Alj Quote
Mr. Bossert, while acting as President, could have taken more aggressive measures with Mr. Molley to get him to provide the same… Therefore, Petitioner has not met his burden as to the 2018 financial report.
Legal Basis
Burden of proof standard
Topic Tags
board member rights
fiduciary duty
Case
Docket No
21F-H2120011-REL
Case Title
Thomas A & Jade Bossert vs. Silverbell West Association, Inc.
Decision Date
2021-04-16
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Thomas A Bossert(petitioner) Former Board President; testified on own behalf
Jade Bossert(petitioner)
Anthony Tsontakis(petitioner attorney) Tsontakis Law
Barbara Schoneck(witness) Digit & Docs LLC Called by Petitioner
Respondent Side
Nicholas C Nogami(HOA attorney) Carpenter, Hazlewood, Delgado & Bolen LLP
Timothy D Butterfield(HOA attorney) Carpenter, Hazlewood, Delgado & Bolen LLP
Rex Warnix, III(board member; witness) Silverbell West Association, Inc. Current Board President; testified for Respondent/Association
Linda Garner(property manager; witness) Adam LLC Property manager for the Association
Donald Molley(board member; treasurer) Silverbell West Association, Inc. Board Treasurer responsible for financial records
Neutral Parties
Adam D. Stone(ALJ) OAH
Judy Lowe(Commissioner) Arizona Department of Real Estate
The Administrative Law Judge dismissed the petition, finding that the Petitioner failed to meet the burden of proof that the Condominium Association violated its governing documents or state statute regarding record inspection, specifically because the Association did not possess and was not required to create a Membership Register containing unit owners' email addresses.
Why this result: Petitioner failed to establish by a preponderance of the evidence that Respondent violated the provisions of CC&Rs Section 11.4.8, Bylaws Section 10.3, or A.R.S. § 33-1158 (or § 33-1258) because the requested record (a Membership Register containing email addresses) did not exist, and the Association was not obligated to create it.
Key Issues & Findings
Refusal to provide access to the membership register (Owner Roster with emails)
Petitioner alleged the Respondent violated governing documents and statute by refusing access to the membership register containing email addresses. Respondent argued email addresses were protected 'personal records' under A.R.S. § 33-1258(B)(4). The ALJ found the Petitioner failed to prove a violation because the requested document (a Membership Register containing emails) did not exist, and Respondent had no obligation to create it.
Orders: The petition is dismissed and no action is required of Respondent.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 33-1258
CC&Rs 11.4.8
Bylaws 10.3
Analytics Highlights
Topics: records inspection, membership roster, email addresses, HOA records, condominium association, A.R.S. 33-1258
Additional Citations:
A.R.S. § 32-2199.01
A.R.S. § 33-1258
A.R.S. § 33-1258(B)(4)
A.R.S. § 33-1158
CC&Rs 11.4.8
Bylaws 10.3
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.R.S. §32-2199.02(B)
A.R.S. § 41-1092.09
Video Overview
Audio Overview
Decision Documents
20F-H2020055-REL Decision – 807817.pdf
Uploaded 2025-10-09T03:35:16 (107.3 KB)
Briefing Doc – 20F-H2020055-REL
Administrative Hearing Briefing: Tomisak v. Arrowhead Lakes Condominium Association
Executive Summary
This briefing document outlines the findings and decision in the case of Robert Tomisak versus the Arrowhead Lakes Condominium Association (Case No. 20F-H2020055-REL), heard in the Office of Administrative Hearings. The petitioner, Mr. Tomisak, alleged that the Association violated its governing documents and Arizona state law by refusing his request for an owner roster that included member email addresses. The Association countered that email addresses constitute protected personal information and, more critically, that a membership register containing such information no longer exists.
The Administrative Law Judge ultimately dismissed the petition. The decision did not hinge on whether email addresses are “personal records” under the law. Instead, the ruling was based on the factual determination that the Association cannot be compelled to produce a document that it does not maintain. Since the Association had ceased including email addresses in its Membership Register in 2018, the judge concluded that the petitioner had no right to a non-existent record and had failed to meet the burden of proof required to show a violation.
I. Case Overview
Case Name
Robert Tomisak v. Arrowhead Lakes Condominium Association
Case Number
20F-H2020055-REL
Office of Administrative Hearings
Administrative Law Judge
Sondra J. Vanella
Petitioner
Robert Tomisak, Owner of Unit 1902 (Appeared on his own behalf)
Respondent
Arrowhead Lakes Condominium Association (Represented by Property Manager Terri Troy)
Hearing Date
July 9, 2020
Decision Date
July 17, 2020
II. Petitioner’s Allegations
On April 15, 2020, Robert Tomisak filed a single-issue petition alleging that the Arrowhead Lakes Condominium Association had violated its own governing documents and Arizona state law. The core of the complaint was the Association’s refusal to fulfill his March 11, 2020, email request “to provide access to the membership register” containing owner email addresses.
Mr. Tomisak specifically cited violations of the following provisions:
• Covenants, Conditions, and Restrictions (CC&Rs): Article 11, Section 4.8
• Bylaws: Article 10.3
• Arizona Revised Statutes (A.R.S.): § 33-1258
III. Respondent’s Position and Defense
The Association, through its property management company AS&A Property Management, Inc., and represented by Property Manager Terri Troy, denied all allegations. The defense rested on two key arguments:
1. Privacy Exemption: The Association contended that members’ email addresses are “personal records” and therefore exempt from disclosure under A.R.S. § 33-1258(B)(4), which protects the “personal, health or financial records of an individual member.”
2. Non-Existence of the Record: Ms. Troy testified that while the Association would readily provide the official Membership Register (containing names and addresses), this document no longer includes email addresses. This practice of excluding emails from the register began in 2018.
IV. Key Evidence and Testimony
The March 11, 2020 Email Exchange
The dispute originated with a direct email exchange between the petitioner and the property manager.
• Petitioner’s Request (7:33 a.m.): Mr. Tomisak sent an email with the subject line “Owner Roster” stating:
• Respondent’s Denial (8:23 a.m.): Ms. Troy responded with a direct refusal, citing the statutory exemption for personal information:
Hearing Testimony
During the July 9, 2020 hearing, both parties presented their arguments:
• Robert Tomisak (Petitioner): Acknowledged that he already had access to member mailing addresses but specifically required their email addresses. He argued that email addresses are not “personal information” and cited “the internet” and “California case law” as authority for this position.
• Terri Troy (Respondent): Reiterated the Association’s willingness to provide the existing Membership Register, which contains names, addresses, and unit numbers. She explained that email addresses had been removed from this register starting in 2018 and that her refusal was based on the belief that emails are protected “personal records” under A.R.S. § 33-1258(B)(4).
The Administrative Law Judge noted that neither party cited “any relevant or persuasive legal authority” to formally define “personal records” as used in the statute.
V. Legal Framework and Governing Documents
The case centered on the interpretation of three key provisions granting members access to Association records.
Document
Section
Key Provision
11.4.8
“The Association shall make available to Owners… current copies of the Declaration, Articles, Bylaws, rules of the Association and the books, records, and financial statements of the Association.”
Bylaws
“The membership register… shall be made available for inspection and copying by Members of the Association… for a purpose reasonably related to their interests as Members…”
A.R.S.
§ 33-1258(A)
“all financial and other records of the association shall be made reasonably available for examination by any member…”
A.R.S.
§ 33-1258(B)(4)
“Books and records… may be withheld from disclosure to the extent that the portion withheld relates to… Personal, health or financial records of an individual member of the association…”
VI. Administrative Law Judge’s Findings and Order
Burden of Proof
The judge established that the petitioner, Mr. Tomisak, bore the burden of proof to demonstrate by a “preponderance of the evidence” that the Association had committed the alleged violations. A preponderance of evidence is defined as that which is sufficient to “incline a fair and impartial mind to one side of the issue rather than the other.”
Central Conclusion
The judge’s ruling was not based on the privacy argument regarding whether email addresses are “personal records.” Instead, the decision was grounded in a more fundamental point of fact regarding the existence of the requested document. The judge’s decisive conclusion of law stated:
While Petitioner has the right to enforce the requirements of the above provisions, Petitioner does not have the right to a record that does not exist, i.e., a Membership Register containing email addresses. Further, there is no requirement in the above provisions that Respondent has an obligation to create such a document.
Final Ruling
Based on this central finding, the judge held that Mr. Tomisak failed to meet his burden of proof and did not establish that the Association had violated its CC&Rs, its Bylaws, or A.R.S. § 33-1158.
IT IS ORDERED that no action is required of Respondent in this matter and that the petition is dismissed. The order is binding unless a rehearing is requested within 30 days of its service.
Study Guide – 20F-H2020055-REL
Study Guide: Tomisak v. Arrowhead Lakes Condominium Association
This study guide provides a review of the administrative hearing decision in case number 20F-H2020055-REL, involving Petitioner Robert Tomisak and Respondent Arrowhead Lakes Condominium Association. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms to test and deepen understanding of the case.
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Short-Answer Quiz
Instructions: Answer the following ten questions in 2-3 complete sentences, based entirely on the information provided in the case document.
1. Who were the petitioner and the respondent in this case, and what was their established relationship?
2. What specific document and data did the petitioner request from the respondent in his email dated March 11, 2020?
3. On what legal grounds did the respondent deny the petitioner’s request? Cite the specific statutory provision they referenced.
4. Identify the three governing documents or statutes that the petitioner alleged the respondent had violated.
5. What information was the respondent, through its property manager Terri Troy, willing to provide to the petitioner?
6. What was the central reason cited by the Administrative Law Judge in the “Conclusions of Law” for dismissing the petition?
7. Define the “preponderance of the evidence” standard and identify which party had the burden of meeting this standard.
8. What authority did the petitioner cite during the hearing to support his argument that email addresses do not constitute “personal information”?
9. According to Property Manager Terri Troy’s testimony, when and why did the content of the Membership Register change?
10. What was the final order issued by the Administrative Law Judge on July 17, 2020?
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Answer Key
1. The petitioner was Robert Tomisak, who owns condominium unit 1902 in the Arrowhead Lakes development. The respondent was the Arrowhead Lakes Condominium Association, of which the petitioner is a member.
2. The petitioner requested an electronic copy of the “Owner’s Roster with emails.” He specifically wanted a membership list that included the email addresses of the other condominium owners.
3. The respondent denied the request based on A.R.S. § 33-1258(B)(4). They argued that this provision allows an association to withhold the “personal records of an individual member,” and they considered email addresses to fall under this category.
4. The petitioner alleged the respondent violated its Covenants, Conditions, and Restrictions (CC&Rs) Article 11, Section 4.8; its Bylaws, Article 10.3; and Arizona Revised Statute (A.R.S.) § 33-1258.
5. The respondent was willing to provide the Membership Register, which included the names, unit numbers, and mailing addresses of the members. However, this register did not contain email addresses.
6. The judge dismissed the petition because the petitioner did not have the right to a record that does not exist—namely, a Membership Register containing email addresses. The judge concluded there was no requirement in the governing provisions for the respondent to create such a document.
7. A “preponderance of the evidence” is the standard of proof requiring the trier of fact to be convinced that a contention is more probably true than not. The petitioner, Robert Tomisak, bore the burden of establishing his claim by this standard.
8. During the hearing, the petitioner cited “the internet” and “California case law” as his authority for the proposition that email addresses were not considered personal information.
9. Terri Troy testified that the Membership Register previously contained email addresses but that this practice was stopped beginning in 2018. The change was made based on the association’s belief that email addresses were the “personal records” of the owners.
10. The final order stated that no action was required of the respondent and that the petition was dismissed.
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Essay Questions
Instructions: The following questions are designed for a longer, essay-style response. Use the case document to formulate a detailed and well-supported argument.
1. Analyze the central legal conflict in this case. Discuss the petitioner’s interpretation of a member’s right to access records under the CC&Rs, Bylaws, and A.R.S. § 33-1258 versus the respondent’s interpretation, focusing on the exemption for “personal records.”
2. Evaluate the evidence presented by both the petitioner and the respondent during the July 9, 2020 hearing. Explain why the judge ultimately found that the petitioner failed to meet the “preponderance of the evidence” standard.
3. The judge’s decision rested heavily on the finding that the respondent was not obligated to create a document that did not exist. Discuss the significance of this finding. How might the case outcome have differed if the Membership Register still actively contained member email addresses at the time of the request?
4. Discuss the concept of “burden of proof” as it applies to this administrative hearing. Explain why this burden fell upon the petitioner and how the failure to meet this evidentiary standard was a determinative factor in the dismissal of the petition.
5. Examine the roles and interaction of the governing documents (CC&Rs, Bylaws) and state law (A.R.S. § 33-1258) in this dispute. Which provisions offered the petitioner the right to inspect records, and which specific clause provided the strongest defense for the respondent?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The official who presides over the evidentiary hearing at the Office of Administrative Hearings and issues a decision. In this case, Sondra J. Vanella.
A.R.S. § 33-1258
The Arizona Revised Statute that mandates associations make financial and other records “reasonably available” to members, while also providing exceptions for withholding certain information, such as “personal, health or financial records of an individual member.”
Association
The Arrowhead Lakes Condominium Association, a condominium unit owners’ association responsible for managing the Arrowhead Lakes development.
Bylaws
The rules governing the internal operations of the association. Section 10.3 is referenced, which grants members the right to inspect the “membership register” and other books and records.
Covenants, Conditions, and Restrictions. These are the primary governing legal documents for the condominium development. Section 11.4.8 is referenced, which requires the association to make its books and records available to owners.
Membership Register
A formal list of the members of the association. The respondent’s register included names and addresses with unit numbers but, as of 2018, no longer included email addresses.
Petitioner
The party who files a petition to initiate a legal proceeding. In this case, Robert Tomisak, a condominium owner and member of the association.
Preponderance of the Evidence
The standard of proof required in this administrative hearing. It is met when the evidence presented is sufficient to “incline a fair and impartial mind to one side of the issue rather than the other,” making a contention more probably true than not.
Respondent
The party against whom a petition is filed. In this case, the Arrowhead Lakes Condominium Association.
Blog Post – 20F-H2020055-REL
He Sued His Condo Association for an Email List. The Judge’s Reason for Saying No Will Surprise You.
If you live in a condominium or a community governed by a homeowners’ association, you’ve likely wondered what official records you’re entitled to see. From financial statements to meeting minutes, these documents are the backbone of a transparent community. But what happens when the information you want isn’t in a format the association readily provides?
This was the central conflict for Robert Tomisak, a condominium owner in Glendale, Arizona. At 7:33 a.m. on March 11, 2020, he sent an email to his association requesting an electronic copy of the “Owner’s Roster with emails.” Less than an hour later, at 8:23 a.m., the property manager refused. Believing he was legally entitled to the list, Mr. Tomisak sued. When the case went before an administrative law judge, the final decision hinged on a simple but powerful distinction that most people would never see coming. This case reveals some surprising truths about our rights to information and how they are applied in the real world.
1. Takeaway #1: Your right is to inspectexistingrecords, not to have new ones created for you.
The core of the judge’s decision came down to a simple, factual matter. While Mr. Tomisak had a legal right to inspect association records, the specific document he requested—a Membership Register that included email addresses—did not actually exist.
According to testimony from property manager Terri Troy, the association was perfectly willing to provide the official Membership Register, which contained owner names and mailing addresses. However, she clarified that the association had stopped including email addresses in that specific record back in 2018. The judge found this fact to be decisive. While the petitioner had the right to access existing records, the association had no legal duty to create a new one for him. The judge’s “Conclusions of Law” put it in unambiguous terms:
Petitioner does not have the right to a record that does not exist, i.e., a Membership Register containing email addresses. Further, there is no requirement in the above provisions that Respondent has an obligation to create such a document.
This is a counter-intuitive but crucial distinction. Many people assume that if an organization possesses individual pieces of data (like names in one file and emails in another), they are obligated to compile that data into the format you request. This ruling clarifies that the legal obligation is to provide access to records as they are currently maintained, not to perform data-compilation tasks on demand. For association boards, this is a critical clarification of their duties; for homeowners, it’s a lesson in the power of a precise request.
2. Takeaway #2: The legal definition of “personal records” can be surprisingly ambiguous.
The central argument between the two parties revolved around privacy. Mr. Tomisak requested the email list citing an Arizona statute (A.R.S. § 33-1258) that grants members access to association records. In response, Ms. Troy denied the request by citing a specific exemption in that same law—A.R.S. § 33-1258(B)(4)—which allows an association to withhold “personal… records of an individual member.” Ms. Troy believed email addresses fell under this category; Mr. Tomisak argued they did not.
Crucially, Mr. Tomisak acknowledged during the hearing that he already had access to the mailing addresses for all units. His demand was not about the fundamental ability to communicate with his neighbors, but about the specific method. This reframes the dispute away from pure access-to-information and toward convenience and the definition of privacy.
However, when it came time to define “personal records,” both sides faltered. The petitioner cited “the internet” and “California case law” as his authority—a common mistake litigants make, as vague or non-binding sources hold little weight with a judge focused on specific state statutes. The judge noted that “Neither party cited to any relevant or persuasive legal authority to establish the definition of ‘personal records’ as referenced in the relevant statute.” This failure by both parties essentially forced the judge’s hand, allowing her to bypass the murky privacy debate and settle the case on the much clearer, indisputable fact that the requested record did not exist.
3. Takeaway #3: Even with clear rules, the burden of proof is always on the person making the claim.
On paper, the rules seemed to be in the petitioner’s favor. Section 11.4.8 of the community’s CC&Rs, Section 10.3 of its Bylaws, and the state statute A.R.S. § 33-1258 all grant members the right to inspect association records. So why did he lose?
The answer lies in the legal concept of the “burden of proof.” According to the hearing decision, the petitioner “bears the burden of proof to establish that Respondent violated applicable statutes, CC&Rs, and/or Bylaws by a preponderance of the evidence.”
“Preponderance of the evidence” simply means evidence that is more convincing and more likely true than not. In this case, because the petitioner could not prove that the specific document he wanted—a Membership Register containing emails—actually existed, he failed to meet this burden. He could not convince the judge that the association had violated its duties because the duty he claimed they violated (providing a non-existent record) was not one they actually had. This serves as a practical lesson for any homeowner: having a right on paper is not enough; you must be able to prove that the specific right was violated with convincing evidence.
Conclusion: A Lesson in Specificity
The case of Tomisak vs. Arrowhead Lakes Condominium Association is a masterclass in how legal rights and obligations are often more specific and literal than we assume. The final decision wasn’t based on broad principles of privacy versus access, but on the simple, verifiable fact that a non-existent document cannot be produced.
The judge’s final order was to dismiss the petition, requiring no action from the condo association. This case forces every resident and board member to ask a crucial question: Are you fighting over a principle, or are you making a specific request for a real, existing document? In the eyes of the law, only one of those will win you the day.
Case Participants
Petitioner Side
Robert Tomisak(petitioner) Appeared on his own behalf; also testified
Respondent Side
Terri Troy(property manager) Arrowhead Lakes Condominium Association / AS&A Property Management, Inc. Appeared and testified on behalf of Respondent
Neutral Parties
Sondra J. Vanella(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
The Administrative Law Judge dismissed the petition, finding that the Petitioner failed to meet the burden of proof that the Condominium Association violated its governing documents or state statute regarding record inspection, specifically because the Association did not possess and was not required to create a Membership Register containing unit owners' email addresses.
Why this result: Petitioner failed to establish by a preponderance of the evidence that Respondent violated the provisions of CC&Rs Section 11.4.8, Bylaws Section 10.3, or A.R.S. § 33-1158 (or § 33-1258) because the requested record (a Membership Register containing email addresses) did not exist, and the Association was not obligated to create it.
Key Issues & Findings
Refusal to provide access to the membership register (Owner Roster with emails)
Petitioner alleged the Respondent violated governing documents and statute by refusing access to the membership register containing email addresses. Respondent argued email addresses were protected 'personal records' under A.R.S. § 33-1258(B)(4). The ALJ found the Petitioner failed to prove a violation because the requested document (a Membership Register containing emails) did not exist, and Respondent had no obligation to create it.
Orders: The petition is dismissed and no action is required of Respondent.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 33-1258
CC&Rs 11.4.8
Bylaws 10.3
Analytics Highlights
Topics: records inspection, membership roster, email addresses, HOA records, condominium association, A.R.S. 33-1258
Additional Citations:
A.R.S. § 32-2199.01
A.R.S. § 33-1258
A.R.S. § 33-1258(B)(4)
A.R.S. § 33-1158
CC&Rs 11.4.8
Bylaws 10.3
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.R.S. §32-2199.02(B)
A.R.S. § 41-1092.09
Video Overview
Audio Overview
Decision Documents
20F-H2020055-REL Decision – 807817.pdf
Uploaded 2026-01-23T17:32:44 (107.3 KB)
Briefing Doc – 20F-H2020055-REL
Administrative Hearing Briefing: Tomisak v. Arrowhead Lakes Condominium Association
Executive Summary
This briefing document outlines the findings and decision in the case of Robert Tomisak versus the Arrowhead Lakes Condominium Association (Case No. 20F-H2020055-REL), heard in the Office of Administrative Hearings. The petitioner, Mr. Tomisak, alleged that the Association violated its governing documents and Arizona state law by refusing his request for an owner roster that included member email addresses. The Association countered that email addresses constitute protected personal information and, more critically, that a membership register containing such information no longer exists.
The Administrative Law Judge ultimately dismissed the petition. The decision did not hinge on whether email addresses are “personal records” under the law. Instead, the ruling was based on the factual determination that the Association cannot be compelled to produce a document that it does not maintain. Since the Association had ceased including email addresses in its Membership Register in 2018, the judge concluded that the petitioner had no right to a non-existent record and had failed to meet the burden of proof required to show a violation.
I. Case Overview
Case Name
Robert Tomisak v. Arrowhead Lakes Condominium Association
Case Number
20F-H2020055-REL
Office of Administrative Hearings
Administrative Law Judge
Sondra J. Vanella
Petitioner
Robert Tomisak, Owner of Unit 1902 (Appeared on his own behalf)
Respondent
Arrowhead Lakes Condominium Association (Represented by Property Manager Terri Troy)
Hearing Date
July 9, 2020
Decision Date
July 17, 2020
II. Petitioner’s Allegations
On April 15, 2020, Robert Tomisak filed a single-issue petition alleging that the Arrowhead Lakes Condominium Association had violated its own governing documents and Arizona state law. The core of the complaint was the Association’s refusal to fulfill his March 11, 2020, email request “to provide access to the membership register” containing owner email addresses.
Mr. Tomisak specifically cited violations of the following provisions:
• Covenants, Conditions, and Restrictions (CC&Rs): Article 11, Section 4.8
• Bylaws: Article 10.3
• Arizona Revised Statutes (A.R.S.): § 33-1258
III. Respondent’s Position and Defense
The Association, through its property management company AS&A Property Management, Inc., and represented by Property Manager Terri Troy, denied all allegations. The defense rested on two key arguments:
1. Privacy Exemption: The Association contended that members’ email addresses are “personal records” and therefore exempt from disclosure under A.R.S. § 33-1258(B)(4), which protects the “personal, health or financial records of an individual member.”
2. Non-Existence of the Record: Ms. Troy testified that while the Association would readily provide the official Membership Register (containing names and addresses), this document no longer includes email addresses. This practice of excluding emails from the register began in 2018.
IV. Key Evidence and Testimony
The March 11, 2020 Email Exchange
The dispute originated with a direct email exchange between the petitioner and the property manager.
• Petitioner’s Request (7:33 a.m.): Mr. Tomisak sent an email with the subject line “Owner Roster” stating:
• Respondent’s Denial (8:23 a.m.): Ms. Troy responded with a direct refusal, citing the statutory exemption for personal information:
Hearing Testimony
During the July 9, 2020 hearing, both parties presented their arguments:
• Robert Tomisak (Petitioner): Acknowledged that he already had access to member mailing addresses but specifically required their email addresses. He argued that email addresses are not “personal information” and cited “the internet” and “California case law” as authority for this position.
• Terri Troy (Respondent): Reiterated the Association’s willingness to provide the existing Membership Register, which contains names, addresses, and unit numbers. She explained that email addresses had been removed from this register starting in 2018 and that her refusal was based on the belief that emails are protected “personal records” under A.R.S. § 33-1258(B)(4).
The Administrative Law Judge noted that neither party cited “any relevant or persuasive legal authority” to formally define “personal records” as used in the statute.
V. Legal Framework and Governing Documents
The case centered on the interpretation of three key provisions granting members access to Association records.
Document
Section
Key Provision
11.4.8
“The Association shall make available to Owners… current copies of the Declaration, Articles, Bylaws, rules of the Association and the books, records, and financial statements of the Association.”
Bylaws
“The membership register… shall be made available for inspection and copying by Members of the Association… for a purpose reasonably related to their interests as Members…”
A.R.S.
§ 33-1258(A)
“all financial and other records of the association shall be made reasonably available for examination by any member…”
A.R.S.
§ 33-1258(B)(4)
“Books and records… may be withheld from disclosure to the extent that the portion withheld relates to… Personal, health or financial records of an individual member of the association…”
VI. Administrative Law Judge’s Findings and Order
Burden of Proof
The judge established that the petitioner, Mr. Tomisak, bore the burden of proof to demonstrate by a “preponderance of the evidence” that the Association had committed the alleged violations. A preponderance of evidence is defined as that which is sufficient to “incline a fair and impartial mind to one side of the issue rather than the other.”
Central Conclusion
The judge’s ruling was not based on the privacy argument regarding whether email addresses are “personal records.” Instead, the decision was grounded in a more fundamental point of fact regarding the existence of the requested document. The judge’s decisive conclusion of law stated:
While Petitioner has the right to enforce the requirements of the above provisions, Petitioner does not have the right to a record that does not exist, i.e., a Membership Register containing email addresses. Further, there is no requirement in the above provisions that Respondent has an obligation to create such a document.
Final Ruling
Based on this central finding, the judge held that Mr. Tomisak failed to meet his burden of proof and did not establish that the Association had violated its CC&Rs, its Bylaws, or A.R.S. § 33-1158.
IT IS ORDERED that no action is required of Respondent in this matter and that the petition is dismissed. The order is binding unless a rehearing is requested within 30 days of its service.
Study Guide – 20F-H2020055-REL
Study Guide: Tomisak v. Arrowhead Lakes Condominium Association
This study guide provides a review of the administrative hearing decision in case number 20F-H2020055-REL, involving Petitioner Robert Tomisak and Respondent Arrowhead Lakes Condominium Association. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms to test and deepen understanding of the case.
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Short-Answer Quiz
Instructions: Answer the following ten questions in 2-3 complete sentences, based entirely on the information provided in the case document.
1. Who were the petitioner and the respondent in this case, and what was their established relationship?
2. What specific document and data did the petitioner request from the respondent in his email dated March 11, 2020?
3. On what legal grounds did the respondent deny the petitioner’s request? Cite the specific statutory provision they referenced.
4. Identify the three governing documents or statutes that the petitioner alleged the respondent had violated.
5. What information was the respondent, through its property manager Terri Troy, willing to provide to the petitioner?
6. What was the central reason cited by the Administrative Law Judge in the “Conclusions of Law” for dismissing the petition?
7. Define the “preponderance of the evidence” standard and identify which party had the burden of meeting this standard.
8. What authority did the petitioner cite during the hearing to support his argument that email addresses do not constitute “personal information”?
9. According to Property Manager Terri Troy’s testimony, when and why did the content of the Membership Register change?
10. What was the final order issued by the Administrative Law Judge on July 17, 2020?
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Answer Key
1. The petitioner was Robert Tomisak, who owns condominium unit 1902 in the Arrowhead Lakes development. The respondent was the Arrowhead Lakes Condominium Association, of which the petitioner is a member.
2. The petitioner requested an electronic copy of the “Owner’s Roster with emails.” He specifically wanted a membership list that included the email addresses of the other condominium owners.
3. The respondent denied the request based on A.R.S. § 33-1258(B)(4). They argued that this provision allows an association to withhold the “personal records of an individual member,” and they considered email addresses to fall under this category.
4. The petitioner alleged the respondent violated its Covenants, Conditions, and Restrictions (CC&Rs) Article 11, Section 4.8; its Bylaws, Article 10.3; and Arizona Revised Statute (A.R.S.) § 33-1258.
5. The respondent was willing to provide the Membership Register, which included the names, unit numbers, and mailing addresses of the members. However, this register did not contain email addresses.
6. The judge dismissed the petition because the petitioner did not have the right to a record that does not exist—namely, a Membership Register containing email addresses. The judge concluded there was no requirement in the governing provisions for the respondent to create such a document.
7. A “preponderance of the evidence” is the standard of proof requiring the trier of fact to be convinced that a contention is more probably true than not. The petitioner, Robert Tomisak, bore the burden of establishing his claim by this standard.
8. During the hearing, the petitioner cited “the internet” and “California case law” as his authority for the proposition that email addresses were not considered personal information.
9. Terri Troy testified that the Membership Register previously contained email addresses but that this practice was stopped beginning in 2018. The change was made based on the association’s belief that email addresses were the “personal records” of the owners.
10. The final order stated that no action was required of the respondent and that the petition was dismissed.
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Essay Questions
Instructions: The following questions are designed for a longer, essay-style response. Use the case document to formulate a detailed and well-supported argument.
1. Analyze the central legal conflict in this case. Discuss the petitioner’s interpretation of a member’s right to access records under the CC&Rs, Bylaws, and A.R.S. § 33-1258 versus the respondent’s interpretation, focusing on the exemption for “personal records.”
2. Evaluate the evidence presented by both the petitioner and the respondent during the July 9, 2020 hearing. Explain why the judge ultimately found that the petitioner failed to meet the “preponderance of the evidence” standard.
3. The judge’s decision rested heavily on the finding that the respondent was not obligated to create a document that did not exist. Discuss the significance of this finding. How might the case outcome have differed if the Membership Register still actively contained member email addresses at the time of the request?
4. Discuss the concept of “burden of proof” as it applies to this administrative hearing. Explain why this burden fell upon the petitioner and how the failure to meet this evidentiary standard was a determinative factor in the dismissal of the petition.
5. Examine the roles and interaction of the governing documents (CC&Rs, Bylaws) and state law (A.R.S. § 33-1258) in this dispute. Which provisions offered the petitioner the right to inspect records, and which specific clause provided the strongest defense for the respondent?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The official who presides over the evidentiary hearing at the Office of Administrative Hearings and issues a decision. In this case, Sondra J. Vanella.
A.R.S. § 33-1258
The Arizona Revised Statute that mandates associations make financial and other records “reasonably available” to members, while also providing exceptions for withholding certain information, such as “personal, health or financial records of an individual member.”
Association
The Arrowhead Lakes Condominium Association, a condominium unit owners’ association responsible for managing the Arrowhead Lakes development.
Bylaws
The rules governing the internal operations of the association. Section 10.3 is referenced, which grants members the right to inspect the “membership register” and other books and records.
Covenants, Conditions, and Restrictions. These are the primary governing legal documents for the condominium development. Section 11.4.8 is referenced, which requires the association to make its books and records available to owners.
Membership Register
A formal list of the members of the association. The respondent’s register included names and addresses with unit numbers but, as of 2018, no longer included email addresses.
Petitioner
The party who files a petition to initiate a legal proceeding. In this case, Robert Tomisak, a condominium owner and member of the association.
Preponderance of the Evidence
The standard of proof required in this administrative hearing. It is met when the evidence presented is sufficient to “incline a fair and impartial mind to one side of the issue rather than the other,” making a contention more probably true than not.
Respondent
The party against whom a petition is filed. In this case, the Arrowhead Lakes Condominium Association.
Blog Post – 20F-H2020055-REL
He Sued His Condo Association for an Email List. The Judge’s Reason for Saying No Will Surprise You.
If you live in a condominium or a community governed by a homeowners’ association, you’ve likely wondered what official records you’re entitled to see. From financial statements to meeting minutes, these documents are the backbone of a transparent community. But what happens when the information you want isn’t in a format the association readily provides?
This was the central conflict for Robert Tomisak, a condominium owner in Glendale, Arizona. At 7:33 a.m. on March 11, 2020, he sent an email to his association requesting an electronic copy of the “Owner’s Roster with emails.” Less than an hour later, at 8:23 a.m., the property manager refused. Believing he was legally entitled to the list, Mr. Tomisak sued. When the case went before an administrative law judge, the final decision hinged on a simple but powerful distinction that most people would never see coming. This case reveals some surprising truths about our rights to information and how they are applied in the real world.
1. Takeaway #1: Your right is to inspectexistingrecords, not to have new ones created for you.
The core of the judge’s decision came down to a simple, factual matter. While Mr. Tomisak had a legal right to inspect association records, the specific document he requested—a Membership Register that included email addresses—did not actually exist.
According to testimony from property manager Terri Troy, the association was perfectly willing to provide the official Membership Register, which contained owner names and mailing addresses. However, she clarified that the association had stopped including email addresses in that specific record back in 2018. The judge found this fact to be decisive. While the petitioner had the right to access existing records, the association had no legal duty to create a new one for him. The judge’s “Conclusions of Law” put it in unambiguous terms:
Petitioner does not have the right to a record that does not exist, i.e., a Membership Register containing email addresses. Further, there is no requirement in the above provisions that Respondent has an obligation to create such a document.
This is a counter-intuitive but crucial distinction. Many people assume that if an organization possesses individual pieces of data (like names in one file and emails in another), they are obligated to compile that data into the format you request. This ruling clarifies that the legal obligation is to provide access to records as they are currently maintained, not to perform data-compilation tasks on demand. For association boards, this is a critical clarification of their duties; for homeowners, it’s a lesson in the power of a precise request.
2. Takeaway #2: The legal definition of “personal records” can be surprisingly ambiguous.
The central argument between the two parties revolved around privacy. Mr. Tomisak requested the email list citing an Arizona statute (A.R.S. § 33-1258) that grants members access to association records. In response, Ms. Troy denied the request by citing a specific exemption in that same law—A.R.S. § 33-1258(B)(4)—which allows an association to withhold “personal… records of an individual member.” Ms. Troy believed email addresses fell under this category; Mr. Tomisak argued they did not.
Crucially, Mr. Tomisak acknowledged during the hearing that he already had access to the mailing addresses for all units. His demand was not about the fundamental ability to communicate with his neighbors, but about the specific method. This reframes the dispute away from pure access-to-information and toward convenience and the definition of privacy.
However, when it came time to define “personal records,” both sides faltered. The petitioner cited “the internet” and “California case law” as his authority—a common mistake litigants make, as vague or non-binding sources hold little weight with a judge focused on specific state statutes. The judge noted that “Neither party cited to any relevant or persuasive legal authority to establish the definition of ‘personal records’ as referenced in the relevant statute.” This failure by both parties essentially forced the judge’s hand, allowing her to bypass the murky privacy debate and settle the case on the much clearer, indisputable fact that the requested record did not exist.
3. Takeaway #3: Even with clear rules, the burden of proof is always on the person making the claim.
On paper, the rules seemed to be in the petitioner’s favor. Section 11.4.8 of the community’s CC&Rs, Section 10.3 of its Bylaws, and the state statute A.R.S. § 33-1258 all grant members the right to inspect association records. So why did he lose?
The answer lies in the legal concept of the “burden of proof.” According to the hearing decision, the petitioner “bears the burden of proof to establish that Respondent violated applicable statutes, CC&Rs, and/or Bylaws by a preponderance of the evidence.”
“Preponderance of the evidence” simply means evidence that is more convincing and more likely true than not. In this case, because the petitioner could not prove that the specific document he wanted—a Membership Register containing emails—actually existed, he failed to meet this burden. He could not convince the judge that the association had violated its duties because the duty he claimed they violated (providing a non-existent record) was not one they actually had. This serves as a practical lesson for any homeowner: having a right on paper is not enough; you must be able to prove that the specific right was violated with convincing evidence.
Conclusion: A Lesson in Specificity
The case of Tomisak vs. Arrowhead Lakes Condominium Association is a masterclass in how legal rights and obligations are often more specific and literal than we assume. The final decision wasn’t based on broad principles of privacy versus access, but on the simple, verifiable fact that a non-existent document cannot be produced.
The judge’s final order was to dismiss the petition, requiring no action from the condo association. This case forces every resident and board member to ask a crucial question: Are you fighting over a principle, or are you making a specific request for a real, existing document? In the eyes of the law, only one of those will win you the day.
Case Participants
Petitioner Side
Robert Tomisak(petitioner) Appeared on his own behalf; also testified
Respondent Side
Terri Troy(property manager) Arrowhead Lakes Condominium Association / AS&A Property Management, Inc. Appeared and testified on behalf of Respondent
Neutral Parties
Sondra J. Vanella(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
The Petition was upheld on all issues asserted by the Petitioner. The Respondent was found in violation of A.R.S. § 33-1250(C) (failure to provide election documents), A.R.S. § 33-1248(B) (failure to hold an annual meeting in 2019), and Article 3, Section 2 of the Bylaws (improperly prohibiting write-in ballots). Respondent was ordered to supply Petitioner with relevant documents and refund the Petitioner's filing fee of $1,500.00. No Civil Penalty was found appropriate.
Respondent failed to provide Petitioner with the required election materials and documentation from the October 2018 elections, violating statutory requirements for retention and availability of these materials for owner inspection.
Orders: Respondent ordered to supply Petitioner with the relevant documents, pursuant to A.R.S. § 33-1250(C), within ten (10) days of the Order.
Filing fee: $1,500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1250(C)
Open meetings; exceptions
Respondent postponed its required yearly 2019 meeting until January 2020, resulting in a failure to hold a unit owners' association meeting in 2019 as required by statute.
Orders: Petition upheld on this issue.
Filing fee: $1,500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1248(B)
Selection
Respondent's board of directors declared write-in ballots invalid for the November 20, 2019, election. Since the Bylaws were silent on prohibiting write-in ballots, Respondent failed to show how the ballots were invalid.
Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
Video Overview
Audio Overview
Decision Documents
20F-H2019033-REL Decision – 778923.pdf
Uploaded 2025-10-09T03:34:47 (108.5 KB)
Briefing Doc – 20F-H2019033-REL
Briefing Document: Bischoff v. Country Hills West Condominium Association
Executive Summary
This document synthesizes the findings and decision in the case of Donna M. Bischoff v. Country Hills West Condominium Association, Inc. (No. 20F-H2019033-REL), heard by the Arizona Office of Administrative Hearings. The Administrative Law Judge found entirely in favor of the Petitioner, Donna M. Bischoff, concluding that the Respondent, Country Hills West Condominium Association (“the Association”), committed multiple violations of Arizona state statutes and its own governing documents.
The core violations upheld by the court are:
1. Failure to Hold a Required Annual Meeting: The Association violated A.R.S. § 33-1248(B) by failing to hold its required annual meeting within the 2019 calendar year, repeatedly postponing it until January 2020.
2. Failure to Provide Election Records: The Association violated A.R.S. § 33-1250(C) by failing to provide the Petitioner with complete election materials for inspection, including ballots, envelopes, and sign-in sheets from the October 2018 election.
3. Improper Prohibition of Write-In Ballots: The Association violated Article 3, Section 2 of its Bylaws by unilaterally prohibiting write-in ballots for the 2019 election, despite its governing documents being silent on the issue.
As a result, the Association was ordered to provide the requested documents to the Petitioner within ten days and to reimburse her $1,500 filing fee within thirty days. The decision underscores the legal obligation of homeowners’ associations to adhere strictly to statutory requirements for meetings, elections, and record transparency.
——————————————————————————–
I. Case Overview
The dispute was adjudicated by the Office of Administrative Hearings following a petition filed by homeowner Donna M. Bischoff with the Arizona Department of Real Estate on December 11, 2019.
Case Detail
Information
Case Name
Donna M Bischoff, Petitioner, v. Country Hills West Condominium Association, Inc., Respondent
Case Number
20F-H2019033-REL
Adjudicator
Administrative Law Judge Antara Nath Rivera
Hearing Date
March 10, 2020
Decision Date
March 30, 2020
Petitioner Representative
Donna M. Bischoff (on her own behalf)
Respondent Representative
Doug Meyer, President and Director
II. Petitioner’s Allegations
The Petitioner, Donna M. Bischoff, asserted that the Country Hills West Condominium Association committed violations of state law and its own governing documents. The specific allegations were:
• Violation of A.R.S. § 33-1248(B): Failure to hold the mandatory annual unit owners’ association meeting within the 2019 calendar year.
• Violation of A.R.S. § 33-1250(C): Failure to make election materials, including ballots and related items, available for inspection by a unit owner.
• Violation of Bylaws Article 3, Section 2: Improperly invalidating election ballots by prohibiting write-in candidates without any authority from the governing documents.
The Petitioner bore the burden of proof to establish these violations by a “preponderance of the evidence,” defined as “such proof as convinces the trier of fact that the contention is more probably true than not.”
III. Core Issues and Factual Findings
The hearing established several key facts that formed the basis of the Judge’s decision. The testimony from both Ms. Bischoff and the Association’s President, Doug Meyer, was central to these findings.
A. Failure to Hold the 2019 Annual Meeting
• Timeline of Events: The Association’s required annual meeting for 2019 was initially scheduled for November 20, 2019. It was subsequently postponed three times: first to December 19, 2019; then to December 30, 2019; and ultimately held on January 24, 2020.
• Respondent’s Justification: Mr. Meyer testified that the postponements were necessary because write-in candidates appeared on the ballot, which the board had prohibited. He stated that the board “needed time to reprint the ballot and mail them out.”
• Conclusion of Law: The evidence was undisputed that no annual meeting took place during the 2019 calendar year. The Judge concluded that by postponing the meeting into the following year, the Association was in direct violation of A.R.S. § 33-1248(B), which mandates that “A meeting of the unit owners’ association shall be held at least once each year.”
B. Denial of Access to Election Records
• Petitioner’s Request: In October 2018, Ms. Bischoff requested to see the election results from the October 2018 meeting, specifically seeking to know which units had voted.
• Respondent’s Response: The Association initially did not provide the results. A few weeks prior to the March 2020 hearing, it supplied Ms. Bischoff with vote tallies and a list of unit members who voted. However, it failed to provide the full scope of required materials.
• Missing Documentation: The Association did not provide the “ballots, envelopes, related materials, and sign-in sheets” as mandated by statute for inspection.
• Respondent’s Justification: Mr. Meyer argued that no election actually occurred at the October 18, 2018, meeting because there was no quorum. He further made the admission that the Association had not achieved a quorum for any meeting in the preceding 20 years. He claimed that without an election, there was no obligation to publish ballots.
• Conclusion of Law: The Judge found that the Association violated A.R.S. § 33-1250(C). The statute requires that “Ballots, envelopes and related materials… shall be retained… and made available for unit owner inspection for at least one year.” The partial and delayed provision of records was insufficient to meet this legal requirement.
C. Improper Prohibition of Write-In Ballots
• The Dispute: The November 20, 2019, meeting was cancelled because some ballots contained write-in candidates. The board of directors informed members that write-in ballots were prohibited and would be “thrown out.”
• Petitioner’s Argument: Ms. Bischoff argued that the board could not “choose how to interpret a silent document.” She pointed out that the Bylaws and Articles of Incorporation do not prohibit write-in ballots and that the same board had allowed them in a 2017 election.
• Respondent’s Position: Mr. Meyer acknowledged that the Bylaws were silent on the issue but stated the Association needed to “figure out how to handle” them. A membership meeting to discuss the issue was held on December 30, 2019, but failed to achieve a quorum.
• Conclusion of Law: The Judge determined that the Association violated its own Bylaws. The decision states, “absent any clear language in the A.R.S. or the Bylaws prohibiting write in ballots, Respondent failed to show how the ballots were invalid.” The board’s unilateral prohibition was therefore found to be improper.
IV. Legal Conclusions and Final Order
The Administrative Law Judge upheld the petition on all issues, finding that the Petitioner had successfully proven her case by a preponderance of the evidence.
Final Order:
Based on the foregoing conclusions, IT IS ORDERED that:
1. The Petition filed by Donna M. Bischoff is upheld on all issues.
2. The Petitioner is deemed the prevailing party in the matter.
3. The Respondent must supply the Petitioner with the relevant election documents pursuant to A.R.S. § 33-1250(C) within ten (10) days of the Order.
4. The Respondent must pay the Petitioner’s filing fee of $1,500.00 directly to the Petitioner within thirty (30) days of the Order.
5. No Civil Penalty is found to be appropriate in this matter.
The Order is binding on the parties unless a request for rehearing is filed with the Commissioner of the Department of Real Estate within 30 days of the service of the Order.
Study Guide – 20F-H2019033-REL
Study Guide: Bischoff v. Country Hills West Condominium Association, Inc.
This study guide provides a review of the Administrative Law Judge Decision in case number 20F-H2019033-REL, concerning a dispute between a homeowner and a condominium association. It includes a quiz with an answer key, essay questions for deeper analysis, and a glossary of key terms found in the source document.
——————————————————————————–
Short-Answer Quiz
Instructions: Answer the following questions in 2-3 sentences each, based on the provided source document.
1. Who were the primary parties in the legal dispute, and what were their roles?
2. What specific violations did the Petitioner, Donna M. Bischoff, allege against the Respondent?
3. Why was the 2019 yearly meeting for the Country Hills West Condominium Association repeatedly rescheduled?
4. What was the Respondent’s position on the validity of write-in ballots for the November 20, 2019, election?
5. What information did the Petitioner request from the October 2018 election, and what was the initial response?
6. What is the definition of “quorum” according to the association’s Bylaws, and why was it significant in this case?
7. What is the legal standard of proof the Petitioner was required to meet in this hearing?
8. According to the decision, how did the Respondent violate A.R.S. § 33-1248(B) regarding association meetings?
9. According to the decision, how did the Respondent violate A.R.S. § 33-1250(C) regarding election materials?
10. What were the key components of the final Order issued by the Administrative Law Judge?
——————————————————————————–
Answer Key
1. The primary parties were Donna M. Bischoff, the Petitioner, and the Country Hills West Condominium Association, Inc., the Respondent. The Petitioner is the homeowner who filed the complaint, and the Respondent is the homeowners association accused of violations.
2. The Petitioner alleged violations of Arizona Revised Statutes (A.R.S.) § 33-1250(C) and § 33-1248(B), as well as Article 3, Section 2 of the association’s Bylaws. These allegations related to the handling of yearly meetings and elections.
3. The 2019 yearly meeting was initially scheduled for November 20, 2019, but was rescheduled three times, ultimately taking place in January 2020. The first cancellation was because some ballots contained write-in candidates, which the board deemed prohibited.
4. The Respondent’s representative, Doug Meyer, testified that members were informed that write-in ballots were not valid for the November 20, 2019, election. He stated that any ballots with write-in candidates would have been thrown out.
5. The Petitioner requested to see the election results from the October 2018 election, specifically wanting to know which units voted. While she was eventually given the voting tallies, the Respondent did not initially provide the requested results.
6. Quorum is defined in Article 4, Section 3 of the Bylaws. It was significant because the Respondent’s president, Mr. Meyer, acknowledged that the association had not achieved a quorum for its meetings in the last 20 years, and thus no election occurred at the October 18, 2018, meeting.
7. The Petitioner had the burden of proof to establish the alleged violations by a “preponderance of the evidence.” This standard is defined as proof that convinces the trier of fact that a contention is more probably true than not.
8. The Respondent violated A.R.S. § 33-1248(B) by failing to hold a required yearly meeting within the calendar year of 2019. The evidence showed that the meeting scheduled for 2019 was postponed until January 2020.
9. The Respondent violated A.R.S. § 33-1250(C) by failing to provide the Petitioner with all required election materials from the 2018 election. While vote tallies were eventually provided, the statute requires that ballots, envelopes, and related materials be retained and made available for inspection for at least one year.
10. The Administrative Law Judge’s Order upheld the Petition on all issues, deemed the Petitioner the prevailing party, and required the Respondent to supply the relevant documents within 10 days. The Order also mandated that the Respondent reimburse the Petitioner’s filing fee of $1,500.00 within 30 days.
——————————————————————————–
Essay Questions
Instructions: The following questions are designed for longer, more analytical responses. Use the information presented in the source document to construct a comprehensive argument for each prompt.
1. Analyze the Respondent’s handling of the write-in ballot issue for the 2019 election. Discuss the legal basis (or lack thereof) for their actions as presented in the hearing, and explain why the Administrative Law Judge ultimately ruled that their prohibition of these ballots was a violation of the Bylaws.
2. Explain the concept of “quorum” as it relates to this case. How did the association’s failure to achieve a quorum for 20 years impact its governance, specifically regarding the 2018 meeting and the Respondent’s obligation to produce election records?
3. Describe in detail the specific violations of the Arizona Revised Statutes (A.R.S.) that the Country Hills West Condominium Association was found to have committed. For each statute (A.R.S. § 33-1248(B) and A.R.S. § 33-1250(C)), detail the legal requirement and explain how the Respondent’s actions failed to meet that standard.
4. Discuss the legal standard of “preponderance of the evidence.” Using testimony and evidence presented by both the Petitioner and the Respondent, explain how the Petitioner successfully met this burden of proof for her allegations.
5. Outline the final Order issued by the Administrative Law Judge. Beyond the simple outcome, explain the significance of each component of the order, including the validation of the petition, the designation of a “prevailing party,” the directive to supply documents, and the financial remedy awarded.
——————————————————————————–
Glossary of Key Terms
Definition
Administrative Law Judge
An official who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions and orders. In this case, Antara Nath Rivera.
Arizona Department of Real Estate (Department)
The state agency with which a homeowner or planned community organization can file a petition for a hearing concerning violations of community documents or statutes.
Arizona Revised Statutes (A.R.S.)
The collection of laws enacted by the Arizona state legislature. The specific statutes cited were A.R.S. §§ 33-1250(C) and 33-1248(B).
Bylaws
The rules and regulations that govern the internal operations of an organization, such as a homeowners association. In this case, the Bylaws of Country Hills West Association, Inc. were a key document.
Homeowners Association (HOA)
An organization in a subdivision, planned community, or condominium that makes and enforces rules for the properties and its residents.
Office of Administrative Hearings
The state agency where petitions filed with the Department of Real Estate are heard before an Administrative Law Judge.
Petitioner
The party who files a petition or brings a legal action against another party. In this case, Donna M. Bischoff.
Preponderance of the evidence
The standard of proof in this civil administrative case. It is met when the evidence presented is sufficient to “incline a fair and impartial mind to one side of the issue rather than the other.”
Quorum
The minimum number of members of an assembly or society that must be present at any of its meetings to make the proceedings of that meeting valid. The Respondent had not achieved quorum for 20 years.
Respondent
The party against whom a petition is filed or a legal action is brought. In this case, Country Hills West Condominium Association, Inc.
Blog Post – 20F-H2019033-REL
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20F-H2019033-REL
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This source is an Administrative Law Judge Decision from the Office of Administrative Hearings regarding a dispute between Donna M. Bischoff, the Petitioner, and Country Hills West Condominium Association, Inc., the Respondent. The document details the hearing held on March 10, 2020, where the Petitioner alleged the Condominium Association violated Arizona Revised Statutes (A.R.S.) and the association’s Bylaws. Specifically, the Petitioner claimed violations related to the failure to hold a required yearly meeting in 2019, the failure to provide election materials for inspection, and the improper prohibition of write-in ballots where the Bylaws were silent. The Administrative Law Judge ultimately upheld the Petition on all issues, finding the Respondent in violation, and ordered the Association to provide the requested documents and pay the Petitioner’s $1,500.00 filing fee.
What were the specific legal violations found against the Condominium Association regarding meetings and documents?
How did the lack of clarity in the Bylaws regarding write-in ballots impact the association’s actions?
What was the ultimate outcome of this administrative hearing, including the ordered remedies for the petitioner?
Based on 1 source
Case Participants
Petitioner Side
Donna M Bischoff(petitioner) Appeared on her own behalf
Respondent Side
Doug Meyer(president, director, witness) Country Hills West Condominium Association, Inc. Appeared and testified on behalf of Respondent
Neutral Parties
Antara Nath Rivera(ALJ) OAH
Judy Lowe(commissioner) Arizona Department of Real Estate Decision transmitted electronically to Commissioner
The Petition was upheld on all issues asserted by the Petitioner. The Respondent was found in violation of A.R.S. § 33-1250(C) (failure to provide election documents), A.R.S. § 33-1248(B) (failure to hold an annual meeting in 2019), and Article 3, Section 2 of the Bylaws (improperly prohibiting write-in ballots). Respondent was ordered to supply Petitioner with relevant documents and refund the Petitioner's filing fee of $1,500.00. No Civil Penalty was found appropriate.
Respondent failed to provide Petitioner with the required election materials and documentation from the October 2018 elections, violating statutory requirements for retention and availability of these materials for owner inspection.
Orders: Respondent ordered to supply Petitioner with the relevant documents, pursuant to A.R.S. § 33-1250(C), within ten (10) days of the Order.
Filing fee: $1,500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1250(C)
Open meetings; exceptions
Respondent postponed its required yearly 2019 meeting until January 2020, resulting in a failure to hold a unit owners' association meeting in 2019 as required by statute.
Orders: Petition upheld on this issue.
Filing fee: $1,500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1248(B)
Selection
Respondent's board of directors declared write-in ballots invalid for the November 20, 2019, election. Since the Bylaws were silent on prohibiting write-in ballots, Respondent failed to show how the ballots were invalid.
Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
Video Overview
Audio Overview
Decision Documents
20F-H2019033-REL Decision – 778923.pdf
Uploaded 2026-01-23T17:31:15 (108.5 KB)
Briefing Doc – 20F-H2019033-REL
Briefing Document: Bischoff v. Country Hills West Condominium Association
Executive Summary
This document synthesizes the findings and decision in the case of Donna M. Bischoff v. Country Hills West Condominium Association, Inc. (No. 20F-H2019033-REL), heard by the Arizona Office of Administrative Hearings. The Administrative Law Judge found entirely in favor of the Petitioner, Donna M. Bischoff, concluding that the Respondent, Country Hills West Condominium Association (“the Association”), committed multiple violations of Arizona state statutes and its own governing documents.
The core violations upheld by the court are:
1. Failure to Hold a Required Annual Meeting: The Association violated A.R.S. § 33-1248(B) by failing to hold its required annual meeting within the 2019 calendar year, repeatedly postponing it until January 2020.
2. Failure to Provide Election Records: The Association violated A.R.S. § 33-1250(C) by failing to provide the Petitioner with complete election materials for inspection, including ballots, envelopes, and sign-in sheets from the October 2018 election.
3. Improper Prohibition of Write-In Ballots: The Association violated Article 3, Section 2 of its Bylaws by unilaterally prohibiting write-in ballots for the 2019 election, despite its governing documents being silent on the issue.
As a result, the Association was ordered to provide the requested documents to the Petitioner within ten days and to reimburse her $1,500 filing fee within thirty days. The decision underscores the legal obligation of homeowners’ associations to adhere strictly to statutory requirements for meetings, elections, and record transparency.
——————————————————————————–
I. Case Overview
The dispute was adjudicated by the Office of Administrative Hearings following a petition filed by homeowner Donna M. Bischoff with the Arizona Department of Real Estate on December 11, 2019.
Case Detail
Information
Case Name
Donna M Bischoff, Petitioner, v. Country Hills West Condominium Association, Inc., Respondent
Case Number
20F-H2019033-REL
Adjudicator
Administrative Law Judge Antara Nath Rivera
Hearing Date
March 10, 2020
Decision Date
March 30, 2020
Petitioner Representative
Donna M. Bischoff (on her own behalf)
Respondent Representative
Doug Meyer, President and Director
II. Petitioner’s Allegations
The Petitioner, Donna M. Bischoff, asserted that the Country Hills West Condominium Association committed violations of state law and its own governing documents. The specific allegations were:
• Violation of A.R.S. § 33-1248(B): Failure to hold the mandatory annual unit owners’ association meeting within the 2019 calendar year.
• Violation of A.R.S. § 33-1250(C): Failure to make election materials, including ballots and related items, available for inspection by a unit owner.
• Violation of Bylaws Article 3, Section 2: Improperly invalidating election ballots by prohibiting write-in candidates without any authority from the governing documents.
The Petitioner bore the burden of proof to establish these violations by a “preponderance of the evidence,” defined as “such proof as convinces the trier of fact that the contention is more probably true than not.”
III. Core Issues and Factual Findings
The hearing established several key facts that formed the basis of the Judge’s decision. The testimony from both Ms. Bischoff and the Association’s President, Doug Meyer, was central to these findings.
A. Failure to Hold the 2019 Annual Meeting
• Timeline of Events: The Association’s required annual meeting for 2019 was initially scheduled for November 20, 2019. It was subsequently postponed three times: first to December 19, 2019; then to December 30, 2019; and ultimately held on January 24, 2020.
• Respondent’s Justification: Mr. Meyer testified that the postponements were necessary because write-in candidates appeared on the ballot, which the board had prohibited. He stated that the board “needed time to reprint the ballot and mail them out.”
• Conclusion of Law: The evidence was undisputed that no annual meeting took place during the 2019 calendar year. The Judge concluded that by postponing the meeting into the following year, the Association was in direct violation of A.R.S. § 33-1248(B), which mandates that “A meeting of the unit owners’ association shall be held at least once each year.”
B. Denial of Access to Election Records
• Petitioner’s Request: In October 2018, Ms. Bischoff requested to see the election results from the October 2018 meeting, specifically seeking to know which units had voted.
• Respondent’s Response: The Association initially did not provide the results. A few weeks prior to the March 2020 hearing, it supplied Ms. Bischoff with vote tallies and a list of unit members who voted. However, it failed to provide the full scope of required materials.
• Missing Documentation: The Association did not provide the “ballots, envelopes, related materials, and sign-in sheets” as mandated by statute for inspection.
• Respondent’s Justification: Mr. Meyer argued that no election actually occurred at the October 18, 2018, meeting because there was no quorum. He further made the admission that the Association had not achieved a quorum for any meeting in the preceding 20 years. He claimed that without an election, there was no obligation to publish ballots.
• Conclusion of Law: The Judge found that the Association violated A.R.S. § 33-1250(C). The statute requires that “Ballots, envelopes and related materials… shall be retained… and made available for unit owner inspection for at least one year.” The partial and delayed provision of records was insufficient to meet this legal requirement.
C. Improper Prohibition of Write-In Ballots
• The Dispute: The November 20, 2019, meeting was cancelled because some ballots contained write-in candidates. The board of directors informed members that write-in ballots were prohibited and would be “thrown out.”
• Petitioner’s Argument: Ms. Bischoff argued that the board could not “choose how to interpret a silent document.” She pointed out that the Bylaws and Articles of Incorporation do not prohibit write-in ballots and that the same board had allowed them in a 2017 election.
• Respondent’s Position: Mr. Meyer acknowledged that the Bylaws were silent on the issue but stated the Association needed to “figure out how to handle” them. A membership meeting to discuss the issue was held on December 30, 2019, but failed to achieve a quorum.
• Conclusion of Law: The Judge determined that the Association violated its own Bylaws. The decision states, “absent any clear language in the A.R.S. or the Bylaws prohibiting write in ballots, Respondent failed to show how the ballots were invalid.” The board’s unilateral prohibition was therefore found to be improper.
IV. Legal Conclusions and Final Order
The Administrative Law Judge upheld the petition on all issues, finding that the Petitioner had successfully proven her case by a preponderance of the evidence.
Final Order:
Based on the foregoing conclusions, IT IS ORDERED that:
1. The Petition filed by Donna M. Bischoff is upheld on all issues.
2. The Petitioner is deemed the prevailing party in the matter.
3. The Respondent must supply the Petitioner with the relevant election documents pursuant to A.R.S. § 33-1250(C) within ten (10) days of the Order.
4. The Respondent must pay the Petitioner’s filing fee of $1,500.00 directly to the Petitioner within thirty (30) days of the Order.
5. No Civil Penalty is found to be appropriate in this matter.
The Order is binding on the parties unless a request for rehearing is filed with the Commissioner of the Department of Real Estate within 30 days of the service of the Order.
Study Guide – 20F-H2019033-REL
Study Guide: Bischoff v. Country Hills West Condominium Association, Inc.
This study guide provides a review of the Administrative Law Judge Decision in case number 20F-H2019033-REL, concerning a dispute between a homeowner and a condominium association. It includes a quiz with an answer key, essay questions for deeper analysis, and a glossary of key terms found in the source document.
——————————————————————————–
Short-Answer Quiz
Instructions: Answer the following questions in 2-3 sentences each, based on the provided source document.
1. Who were the primary parties in the legal dispute, and what were their roles?
2. What specific violations did the Petitioner, Donna M. Bischoff, allege against the Respondent?
3. Why was the 2019 yearly meeting for the Country Hills West Condominium Association repeatedly rescheduled?
4. What was the Respondent’s position on the validity of write-in ballots for the November 20, 2019, election?
5. What information did the Petitioner request from the October 2018 election, and what was the initial response?
6. What is the definition of “quorum” according to the association’s Bylaws, and why was it significant in this case?
7. What is the legal standard of proof the Petitioner was required to meet in this hearing?
8. According to the decision, how did the Respondent violate A.R.S. § 33-1248(B) regarding association meetings?
9. According to the decision, how did the Respondent violate A.R.S. § 33-1250(C) regarding election materials?
10. What were the key components of the final Order issued by the Administrative Law Judge?
——————————————————————————–
Answer Key
1. The primary parties were Donna M. Bischoff, the Petitioner, and the Country Hills West Condominium Association, Inc., the Respondent. The Petitioner is the homeowner who filed the complaint, and the Respondent is the homeowners association accused of violations.
2. The Petitioner alleged violations of Arizona Revised Statutes (A.R.S.) § 33-1250(C) and § 33-1248(B), as well as Article 3, Section 2 of the association’s Bylaws. These allegations related to the handling of yearly meetings and elections.
3. The 2019 yearly meeting was initially scheduled for November 20, 2019, but was rescheduled three times, ultimately taking place in January 2020. The first cancellation was because some ballots contained write-in candidates, which the board deemed prohibited.
4. The Respondent’s representative, Doug Meyer, testified that members were informed that write-in ballots were not valid for the November 20, 2019, election. He stated that any ballots with write-in candidates would have been thrown out.
5. The Petitioner requested to see the election results from the October 2018 election, specifically wanting to know which units voted. While she was eventually given the voting tallies, the Respondent did not initially provide the requested results.
6. Quorum is defined in Article 4, Section 3 of the Bylaws. It was significant because the Respondent’s president, Mr. Meyer, acknowledged that the association had not achieved a quorum for its meetings in the last 20 years, and thus no election occurred at the October 18, 2018, meeting.
7. The Petitioner had the burden of proof to establish the alleged violations by a “preponderance of the evidence.” This standard is defined as proof that convinces the trier of fact that a contention is more probably true than not.
8. The Respondent violated A.R.S. § 33-1248(B) by failing to hold a required yearly meeting within the calendar year of 2019. The evidence showed that the meeting scheduled for 2019 was postponed until January 2020.
9. The Respondent violated A.R.S. § 33-1250(C) by failing to provide the Petitioner with all required election materials from the 2018 election. While vote tallies were eventually provided, the statute requires that ballots, envelopes, and related materials be retained and made available for inspection for at least one year.
10. The Administrative Law Judge’s Order upheld the Petition on all issues, deemed the Petitioner the prevailing party, and required the Respondent to supply the relevant documents within 10 days. The Order also mandated that the Respondent reimburse the Petitioner’s filing fee of $1,500.00 within 30 days.
——————————————————————————–
Essay Questions
Instructions: The following questions are designed for longer, more analytical responses. Use the information presented in the source document to construct a comprehensive argument for each prompt.
1. Analyze the Respondent’s handling of the write-in ballot issue for the 2019 election. Discuss the legal basis (or lack thereof) for their actions as presented in the hearing, and explain why the Administrative Law Judge ultimately ruled that their prohibition of these ballots was a violation of the Bylaws.
2. Explain the concept of “quorum” as it relates to this case. How did the association’s failure to achieve a quorum for 20 years impact its governance, specifically regarding the 2018 meeting and the Respondent’s obligation to produce election records?
3. Describe in detail the specific violations of the Arizona Revised Statutes (A.R.S.) that the Country Hills West Condominium Association was found to have committed. For each statute (A.R.S. § 33-1248(B) and A.R.S. § 33-1250(C)), detail the legal requirement and explain how the Respondent’s actions failed to meet that standard.
4. Discuss the legal standard of “preponderance of the evidence.” Using testimony and evidence presented by both the Petitioner and the Respondent, explain how the Petitioner successfully met this burden of proof for her allegations.
5. Outline the final Order issued by the Administrative Law Judge. Beyond the simple outcome, explain the significance of each component of the order, including the validation of the petition, the designation of a “prevailing party,” the directive to supply documents, and the financial remedy awarded.
——————————————————————————–
Glossary of Key Terms
Definition
Administrative Law Judge
An official who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions and orders. In this case, Antara Nath Rivera.
Arizona Department of Real Estate (Department)
The state agency with which a homeowner or planned community organization can file a petition for a hearing concerning violations of community documents or statutes.
Arizona Revised Statutes (A.R.S.)
The collection of laws enacted by the Arizona state legislature. The specific statutes cited were A.R.S. §§ 33-1250(C) and 33-1248(B).
Bylaws
The rules and regulations that govern the internal operations of an organization, such as a homeowners association. In this case, the Bylaws of Country Hills West Association, Inc. were a key document.
Homeowners Association (HOA)
An organization in a subdivision, planned community, or condominium that makes and enforces rules for the properties and its residents.
Office of Administrative Hearings
The state agency where petitions filed with the Department of Real Estate are heard before an Administrative Law Judge.
Petitioner
The party who files a petition or brings a legal action against another party. In this case, Donna M. Bischoff.
Preponderance of the evidence
The standard of proof in this civil administrative case. It is met when the evidence presented is sufficient to “incline a fair and impartial mind to one side of the issue rather than the other.”
Quorum
The minimum number of members of an assembly or society that must be present at any of its meetings to make the proceedings of that meeting valid. The Respondent had not achieved quorum for 20 years.
Respondent
The party against whom a petition is filed or a legal action is brought. In this case, Country Hills West Condominium Association, Inc.
Blog Post – 20F-H2019033-REL
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20F-H2019033-REL
1 source
This source is an Administrative Law Judge Decision from the Office of Administrative Hearings regarding a dispute between Donna M. Bischoff, the Petitioner, and Country Hills West Condominium Association, Inc., the Respondent. The document details the hearing held on March 10, 2020, where the Petitioner alleged the Condominium Association violated Arizona Revised Statutes (A.R.S.) and the association’s Bylaws. Specifically, the Petitioner claimed violations related to the failure to hold a required yearly meeting in 2019, the failure to provide election materials for inspection, and the improper prohibition of write-in ballots where the Bylaws were silent. The Administrative Law Judge ultimately upheld the Petition on all issues, finding the Respondent in violation, and ordered the Association to provide the requested documents and pay the Petitioner’s $1,500.00 filing fee.
What were the specific legal violations found against the Condominium Association regarding meetings and documents?
How did the lack of clarity in the Bylaws regarding write-in ballots impact the association’s actions?
What was the ultimate outcome of this administrative hearing, including the ordered remedies for the petitioner?
Based on 1 source
Case Participants
Petitioner Side
Donna M Bischoff(petitioner) Appeared on her own behalf
Respondent Side
Doug Meyer(president, director, witness) Country Hills West Condominium Association, Inc. Appeared and testified on behalf of Respondent
Neutral Parties
Antara Nath Rivera(ALJ) OAH
Judy Lowe(commissioner) Arizona Department of Real Estate Decision transmitted electronically to Commissioner
Ariz. Rev. Stat. section 33-1248 Ariz. Rev. Stat. section 33-1248 Article XI of Sunset Plaza’s Bylaws
Outcome Summary
Petitioner was deemed the prevailing party only regarding the Respondent's violation of Ariz. Rev. Stat. section 33-1248 (failure to provide notice for hiring Mulcahy and Kinney). Respondent was ordered to refund the Petitioner's $500.00 filing fee. All other claims, including the alleged Bylaws violation and the violation related to hiring Osselaer, were dismissed.
Why this result: Petitioner failed to establish the Bylaws violation. The HOA successfully argued that the hiring of Osselaer was conducted during a valid emergency board meeting, exempting it from open meeting notice requirements.
Key Issues & Findings
Violation of Open Meeting Law (Hiring Kinney and Mulcahy)
Sunset Plaza decided to hire Kinney Management and Mulcahy Law Firm at board meetings without informing its members of those meetings.
Orders: Respondent Sunset Plaza must pay Petitioner his filing fee of $500.00.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
Ariz. Rev. Stat. section 33-1248
Violation of Open Meeting Law (Hiring Osselaer)
Petitioner alleged violation regarding the hiring of Osselaer Management Company, but the ALJ found the association was exempt because the decision was made at a valid emergency board meeting.
Orders: Petition dismissed in this respect.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
Ariz. Rev. Stat. section 33-1248
Failure to keep correct and complete books and records of account
Petitioner alleged Sunset Plaza failed to keep accurate financial records, pointing out discrepancies and an unexplained reserve deficit between 2015 and 2016 balance sheets.
Orders: Petition dismissed in all other respects.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
Article XI of Sunset Plaza’s Bylaws
Analytics Highlights
Topics: open meeting violation, emergency meeting, governing documents, financial records, condominium association
Additional Citations:
Ariz. Rev. Stat. section 33-1248
Ariz. Rev. Stat. section 41-2198.01
Article XI of Sunset Plaza’s Bylaws
Video Overview
Audio Overview
Decision Documents
18F-H1817003-REL Decision – 605735.pdf
Uploaded 2025-10-09T03:31:59 (112.9 KB)
Briefing Doc – 18F-H1817003-REL
Administrative Hearing Briefing: Carr v. Sunset Plaza Condo Association
Executive Summary
This briefing document analyzes the Administrative Law Judge’s decision in the case of David B. Carr versus the Sunset Plaza Condo Association (Case No. 18F-H1817003-REL). The central conflict involved a petition filed by Mr. Carr, a condominium owner, alleging that the Association’s Board of Management violated Arizona’s open meeting law and engaged in financial mismanagement.
The final ruling was a partial victory for the petitioner. The judge found that Sunset Plaza violated Ariz. Rev. Stat. § 33-1248 by failing to provide members with proper notice of board meetings where decisions were made to hire Kinney Management Services and the Mulcahy Law Firm. The Association admitted to this failure, citing a misunderstanding of the law, and pledged future compliance. As the prevailing party on this specific issue, Mr. Carr was awarded reimbursement for his $500 filing fee.
However, the judge dismissed all of Mr. Carr’s other allegations. The claim that a meeting to hire Osselaer Management Company violated the open meeting law was rejected, as the judge deemed it a valid emergency meeting exempt from notice requirements. Furthermore, Mr. Carr’s claims of financial mismanagement and inaccurate record-keeping in violation of the Association’s bylaws were not substantiated. The judge accepted the Association’s defense that alleged financial discrepancies stemmed from a change in accounting practices by a new management company, not from an actual deficit. No civil penalty was imposed on the Association.
I. Case Overview
• Case Number: 18F-H1817003-REL
• Forum: Office of Administrative Hearings, Phoenix, Arizona
• Petitioner: David B. Carr
• Respondent: Sunset Plaza Condo Association
• Administrative Law Judge: Velva Moses-Thompson
• Hearing Date: November 21, 2017
• Decision Date: November 22, 2017
• Core Dispute: A petition filed by a condo owner alleging the association’s board violated state statutes and its own bylaws concerning open meetings, financial record-keeping, and the execution of contracts.
II. Petitioner’s Allegations (David B. Carr)
On August 14, 2017, Mr. Carr filed a petition outlining two primary grievances against the Sunset Plaza Condo Association.
A. Violation of Open Meeting Law (Ariz. Rev. Stat. § 33-1248)
Mr. Carr alleged that the Association’s Board of Management took official action without holding properly authorized and noticed board meetings. This resulted in unapproved contracts and expenditures.
Direct Quotation from Petition:
“SUNSET PLAZA CONDOMINIUM ASSOCIATION BOARD OF MANAGEMENT TAKES ACTION WITHOUT HOLDING AUTHORIZED BOARD MEETING IN VIOLATION OF AZ STATUTE 33-1248. THESE UNAUTHORIZED MEETINGS HAVE RESULTED IN CONTRACTS WITH MANAGEMENT FIRMS AND ATTORNEYS. THESE CONTRACTS HAVE RESULTED IN EXPENSES NOT APPROVED OR REVIEWED BY CONDO OWNERS.”
• Specific Contracts Cited:
◦ Kinney Management (October 2016)
◦ Osselaer Real Estate (September 2016)
◦ Mulcahy Law Firm (May 2016)
• Requested Remedy: Cancellation of all contracts entered into without a properly called board meeting and personal repayment of all related expenditures by the signatory.
B. Violation of Bylaws and Financial Mismanagement (Article XI)
Mr. Carr contended that the Association violated Article XI of its bylaws, which requires it to “keep correct and complete books and records of account.” He identified specific financial discrepancies based on his analysis of the Association’s financial statements.
• Alleged Reserve Fund Discrepancy: Mr. Carr claimed an “unexplained reserve deficit of $10,295.09” based on the following figures, noting there were no reported reserve expenses in 2016.
Financial Statement Item
Amount
2015 Year-End Reserve Equity
$10,295.09
2016 Income Statement Reserve Deposit
$9,180.00
2016 Year-End Balance Sheet Reserve Total
$2,295.44
• Additional Discrepancies:
◦ The 2016 year-end balance sheet failed to identify prior and current year operating equity.
◦ An “expanded 2016 balance sheet” calculation revealed a discrepancy of $2,808.42.
• Requested Remedy: A formal audit of the 2016 and 2017 financial statements and improved future reporting to identify reserve balances and homeowner equity.
III. Respondent’s Defense (Sunset Plaza Condo Association)
The Association, represented by Paige Marks, Esq., and through the testimony of board member Marilyn Gelroth, presented a defense against both allegations.
A. Response to Open Meeting Allegations
• Admission: The Association conceded that it “did not provide notice of its board meetings when it decided to hire Kinney and the Mulcahy firm.”
• Justification: This failure was attributed to the board’s misunderstanding of the open meeting law. The Association represented to the judge that it would abide by the law in the future.
• Emergency Meeting Exemption: The Association argued that the decision to hire Osselaer Management was made at a valid emergency board meeting on September 21, 2016.
◦ Timeline of Events: Kinney Management Services retracted its offer to manage the property on September 15, 2016, after receiving notice of a complaint Mr. Carr had filed against them with the Attorney General’s Office.
◦ Urgency: This retraction created an urgent need for a new management company. Ms. Gelroth testified that the board “needed to move quickly because members needed to know where to send payments.” This situation, they argued, constituted an emergency under the law.
B. Response to Financial Allegations
• Flawed Comparison: The Association contended that Mr. Carr’s financial analysis was fundamentally flawed because he “erroneously compared Sunset Plaza’s 2015 year end balance statement to its 2016 income statement,” which are two different types of financial records.
• Change in Accounting Methods: The primary reason for the apparent discrepancies was a change in how financial data was categorized.
◦ The previous management company, Kolby, separated reserve amounts in its financial statements.
◦ The new management company, Osselaer, “does not separate reserve amounts” and is not required by law to do so. This difference in reporting style accounted for the changes Mr. Carr identified as a deficit.
IV. Administrative Law Judge’s Decision and Rationale
The judge, Velva Moses-Thompson, found Ms. Gelroth’s testimony credible and issued a split decision, upholding one of Mr. Carr’s claims while dismissing the other.
A. Finding on Financial Mismanagement Allegation
Conclusion: Petition Dismissed The judge ruled that Mr. Carr “failed to establish by a preponderance of the evidence that Sunset Plaza violated Article XI of Sunset Plaza’s Bylaws.” The Association’s explanation regarding the different accounting methods used by Kolby and Osselaer, and the flawed comparison of financial documents, was accepted as a valid defense.
B. Finding on Open Meeting Law Allegations
Conclusion: Partial Violation Confirmed
• Hiring of Osselaer Management (No Violation): The judge concluded that Sunset Plaza did not violate Ariz. Rev. Stat. § 33-1248 in this instance. The decision was made at a legitimate emergency board meeting, which exempts the board from the 48-hour notice requirement. The minutes of the meeting stated the reason for the emergency.
• Hiring of Kinney Management and Mulcahy Law Firm (Violation Confirmed): The judge found that Mr. Carr “established by preponderance of the evidence that Sunset Plaza violated Ariz. Rev. Stat. 33-1248” when it decided to hire these two firms. The Association did not dispute that it failed to inform members of these board meetings, which was a key factor in the ruling.
C. Final Order
Based on the findings and conclusions of law, the judge issued the following order:
1. Prevailing Party: Petitioner David B. Carr is deemed the prevailing party solely with regard to the violation of Ariz. Rev. Stat. § 33-1248.
2. Reimbursement: Sunset Plaza is ordered to pay Mr. Carr his filing fee of $500.00 within thirty (30) days of the order.
3. Dismissal: All other aspects of Mr. Carr’s petition are dismissed.
4. Penalty: No Civil Penalty is found to be appropriate in the matter.
Study Guide – 18F-H1817003-REL
Study Guide: Carr v. Sunset Plaza Condo Association (No. 18F-H1817003-REL)
This study guide provides a review of the Administrative Law Judge Decision in the case of David B. Carr versus the Sunset Plaza Condo Association. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms to facilitate a comprehensive understanding of the case’s facts, legal arguments, and final judgment.
Short-Answer Quiz
Answer each question in 2-3 sentences based on the information provided in the source document.
1. What were the two primary allegations David B. Carr made against the Sunset Plaza Condo Association in his petition?
2. Identify the three specific contracts Mr. Carr claimed resulted from unauthorized board meetings.
3. Why did Kinney Management Services retract its offer to manage Sunset Plaza in September 2016?
4. What justification did Sunset Plaza provide for holding an emergency board meeting to hire Osselaer Management Company?
5. According to Sunset Plaza, why did Mr. Carr mistakenly believe there was a financial discrepancy in the association’s records?
6. Did the Sunset Plaza board admit to violating the open meeting law? If so, what was their explanation?
7. What authority do the association’s Declaration and Bylaws grant the Board of Management regarding contracts?
8. How does Ariz. Rev. Stat. § 33-1248 define the requirements for an “emergency meeting” of a board of directors?
9. What was the Administrative Law Judge’s final conclusion regarding Sunset Plaza’s hiring of the Osselaer Management Company?
10. What specific orders were issued against Sunset Plaza as a result of the judge’s decision?
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Answer Key
1. David B. Carr alleged that the Sunset Plaza Condo Association violated Ariz. Rev. Stat. § 33-1248 by holding unauthorized board meetings to enter into contracts. He also alleged the association violated Article XI of its bylaws by failing to keep correct and complete books and records, citing an unexplained deficit in reserve accounts.
2. Mr. Carr’s petition identified contracts with Kinney Management (October 2016), Osselaer Real Estate (September 2016), and the Mulcahy Law Firm (May 2016). He argued these contracts were entered into without a properly called board meeting and resulted in unapproved expenses.
3. Kinney Management Services retracted its acceptance of Sunset Plaza’s offer after receiving a complaint that Mr. Carr had filed against Kinney with the Attorney General’s Office. This information was stated in a letter from Kinney to Sunset Plaza on September 15, 2016.
4. The board held an emergency meeting because after Kinney retracted its offer, they needed to move quickly to hire a new management company. Board member Marilyn Gelroth testified it was important to have a single company handle all affairs and that members needed to know where to send payments without delay.
5. Sunset Plaza contended that Mr. Carr erroneously compared two different types of financial records: the 2015 year-end balance sheet and the 2016 income statement. Furthermore, the association argued that the new management company, Osselaer, categorized financials differently than the previous company, Kolby, and did not separate out reserve amounts.
6. Yes, Sunset Plaza conceded that it did not provide notice to its members of the board meetings when it decided to hire Kinney Management and the Mulcahy Law Firm. The association contended that it did not understand the open meeting law at the time and represented to the Tribunal that it would abide by the law in the future.
7. The Declaration grants the Board the power to “enter into contracts” and generally have the powers of an apartment house manager. Article VII, section 11 of the Bylaws states the Board of Management “shall enter into contracts on behalf of the association.”
8. The statute allows an emergency meeting to be called to discuss business or take action that cannot be delayed for the required forty-eight hours’ notice. At such a meeting, the board may only act on emergency matters, and the minutes must state the reason necessitating the emergency.
9. The judge concluded that Sunset Plaza did not violate Ariz. Rev. Stat. § 33-1248 when it hired Osselaer. The decision was made at a legitimate emergency board meeting, which exempted the board from the standard open meeting notification requirements.
10. The judge ordered that the Petitioner, David Carr, be deemed the prevailing party regarding the violation of the open meeting law. It was further ordered that Sunset Plaza pay Mr. Carr his filing fee of $500.00 within thirty days, and his petition was dismissed in all other respects.
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Suggested Essay Questions
1. Analyze the concept of “preponderance of the evidence” as it was applied in this case. How did David B. Carr meet this burden for his claim about the open meeting law but fail to meet it for his claim about financial mismanagement?
2. Discuss the legal requirements and exceptions for board meetings under Ariz. Rev. Stat. § 33-1248. Use the board’s decisions to hire Kinney Management, the Mulcahy Law Firm, and Osselaer Management Company as distinct examples to illustrate the application of this law.
3. Evaluate Sunset Plaza’s defense regarding the financial discrepancies alleged by Mr. Carr. Why was this defense successful, and what does it reveal about the potential for confusion when an association changes management companies and accounting methods?
4. Examine the powers and duties of the Sunset Plaza Board of Management as outlined in its Declaration and Bylaws. How do these documents support the board’s authority to enter into contracts, and how does that authority intersect with the procedural requirements of state law?
5. Based on the judge’s decision, critique the actions and governance of the Sunset Plaza board. What were their key procedural mistakes, what was their stated reason for these errors, and what were the ultimate consequences of their violation of the open meeting law?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The official, in this case Velva Moses-Thompson, who presides over hearings at the Office of Administrative Hearings and renders a decision based on evidence and law.
Ariz. Rev. Stat. § 33-1248
An Arizona statute, also known as the open meeting law, which requires that meetings of a unit owners’ association and its board of directors be open to all members. It outlines requirements for meeting notices, member participation, and exceptions for emergency meetings.
Bylaws
The rules and regulations adopted by an association to govern its internal management. In this case, Article XI requires the association to keep correct and complete books, records, and minutes.
Conclusions of Law
The section of the decision where the judge applies the relevant statutes and legal principles to the established facts of the case to reach a legal judgment.
Declaration
The legal document that creates a condominium or planned community. The Sunset Plaza Declaration grants the Board of Management the power to enter into contracts and manage the association’s affairs.
Emergency Meeting
A type of board meeting that can be called without the standard 48-hour notice to discuss business that cannot be delayed. Action at such a meeting is limited to emergency matters only.
Findings of Facts
The section of the decision that outlines the factual history of the dispute as determined by the judge based on testimony and evidence presented at the hearing.
The final, binding ruling of the Administrative Law Judge. In this case, the Order declared Mr. Carr the prevailing party, required Sunset Plaza to refund his filing fee, and dismissed the other parts of his petition.
Petitioner
The party who initiates a legal action or files a petition seeking a legal remedy. In this case, the Petitioner was David B. Carr.
Preponderance of the evidence
The standard of proof required in this civil administrative hearing. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not.”
Prevailing Party
The party who wins the legal case or a significant issue within it. The judge declared Mr. Carr the prevailing party regarding the violation of Ariz. Rev. Stat. § 33-1248.
Respondent
The party against whom a petition is filed. In this case, the Respondent was the Sunset Plaza Condo Association.
Blog Post – 18F-H1817003-REL
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18F-H1817003-REL
1 source
This source is the Administrative Law Judge Decision resulting from a hearing held on November 21, 2017, between Petitioner David B. Carr and the Respondent Sunset Plaza Condo Association. Mr. Carr brought a petition alleging that the Condo Association violated Arizona Revised Statutes (Ariz. Rev. Stat. section 33-1248) and its own bylaws by taking action without authorized board meetings and exhibiting financial discrepancies, specifically concerning reserve funds. The decision found that the Condo Association did violate the open meeting law when hiring Kinney and the Mulcahy law firms but was exempt from the open meeting requirement for the emergency meeting that resulted in hiring Osselaer Management Company. Ultimately, the Petitioner was deemed the prevailing party regarding the statutory violation and was awarded a filing fee of $500.00, though all other aspects of the petition were dismissed.
Case Participants
Petitioner Side
David B. Carr(petitioner) Sunset Plaza Condo Association (member)
Respondent Side
Paige Marks(attorney) Sunset Plaza Condo Association Appeared on behalf of Respondent
Marilyn Gelroth(board member) Sunset Plaza Condo Association Testified at hearing
Beth Mulcahy(HOA attorney) Mulcahy Law Firm, PC Decision transmitted to her firm; firm hired by Respondent
Neutral Parties
Velva Moses-Thompson(ALJ) OAH
Judy Lowe(commissioner) ADRE
LDettorre(ADRE staff) ADRE Received electronic transmission
AHansen(ADRE staff) ADRE Received electronic transmission
djones(ADRE staff) ADRE Received electronic transmission
DGardner(ADRE staff) ADRE Received electronic transmission
ncano(ADRE staff) ADRE Received electronic transmission
