Case Summary
| Case ID | 21F-H2121055-REL-RHG |
|---|---|
| Agency | ADRE |
| Tribunal | OAH |
| Decision Date | 2022-01-31 |
| Administrative Law Judge | Velva Moses-Thompson |
| Outcome | loss |
| Filing Fees Refunded | $500.00 |
| Civil Penalties | $0.00 |
Parties & Counsel
| Petitioner | Nicole Armsby (NICDON 10663 LLC) | Counsel | — |
|---|---|---|---|
| Respondent | Desert Mountain Master Association | Counsel | Mark K. Sahl, Esq. |
Alleged Violations
No violations listed
Outcome Summary
The Administrative Law Judge vacated the hearing from the docket because the Petitioner voluntarily withdrew.
Why this result: The Petitioner voluntarily withdrew the request for hearing, leading to the matter being vacated from the docket.
Key Issues & Findings
statute
The party requesting the hearing voluntarily withdrew the matter.
Orders: The matter was vacated from the docket of the Office of Administrative Hearings.
Filing fee: $500.00, Fee refunded: Yes
Disposition: respondent_win
Analytics Highlights
Video Overview
Audio Overview
Decision Documents
21F-H2121055-REL Decision – 934279.pdf
21F-H2121055-REL Decision – 934302.pdf
21F-H2121055-REL Decision – 942918.pdf
21F-H2121055-REL Decision – 909217.pdf
This summary focuses on the procedural history and final administrative disposition of the matter, Case No. 21F-H2121055-REL-RHG, before the Office of Administrative Hearings (OAH).
Key Facts and Parties
The case involved Petitioner Nicole Armsby (NICDON 10663 LLC) and Respondent Desert Mountain Master Association. The proceedings were conducted under the authority of the OAH, with Administrative Law Judge Velva Moses-Thompson presiding over the entries.
Hearing Proceedings and Main Issues
The primary procedural actions documented are two Minute Entries concerning the scheduling and eventual removal of the case from the docket.
- Granting Continuance (December 22, 2021): The OAH issued a minute entry granting a continuance of the scheduled hearing, noting that good cause appearing. The matter was reset for February 23, 2022, at 9:00 AM. The hearing was scheduled to be conducted either by video conferencing or telephone participation through Google Meet, though parties retained the option to appear in person at the OAH in Phoenix if they advised the office seven days prior. In-person attendance required adherence to social distancing and masking guidelines.
- Vacating Hearing (January 31, 2022): Before the continued hearing date, a subsequent Minute Entry was filed vacating the hearing from the OAH docket.
Outcome and Legal Points
The most significant legal outcome was the termination of the proceedings at the administrative level. The matter was vacated because "The party requesting the hearing has voluntarily withdrawn". This voluntary withdrawal by the petitioner rendered the scheduled hearing unnecessary and led to the closure of the case on the OAH docket.
Questions
Question
Can my HOA refuse to provide records if I am currently suing them?
Short Answer
Yes, the HOA may withhold records if they relate to pending litigation between the homeowner and the association.
Detailed Answer
Under Arizona law, an association is permitted to withhold books and records if the disclosure relates to pending litigation. In this decision, the ALJ ruled that the HOA could withhold documents regarding a keyless entry system because it related to an ongoing lawsuit regarding short-term rental restrictions (since the entry system controlled renter access).
Alj Quote
Therefore, the Administrative Law Judge concludes that Respondent was permitted to withhold documentation and communication related to the keyless entry program from Petitioner, due to pending litigation regarding the CC&Rs amendment that prohibits short-term rentals.
Legal Basis
A.R.S. § 33-1805(B)(2)
Topic Tags
- records request
- pending litigation
- withholding records
Question
Who has to prove that the HOA violated the law during a hearing?
Short Answer
The homeowner (Petitioner) bears the burden of proof.
Detailed Answer
The homeowner filing the petition is responsible for proving that the HOA violated the statutes or governing documents. They must prove this by a 'preponderance of the evidence'.
Alj Quote
Petitioner bears the burden of proof to establish that Respondent violated Section 5.10 of the Association’s CC&Rs, Article III, Section 1 of the Association’s Bylaws, and A.R.S. § 33-1805 by a preponderance of the evidence.
Legal Basis
A.R.S. § 41-1092.07(G)(2)
Topic Tags
- burden of proof
- legal standards
- procedure
Question
How much evidence do I need to win a case against my HOA?
Short Answer
You need a 'preponderance of the evidence,' meaning your claim is more likely true than not.
Detailed Answer
The standard of proof in these administrative hearings is 'preponderance of the evidence.' This is defined as evidence that makes a contention 'more probably true than not' or carries the greater weight of convincing force.
Alj Quote
A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”
Legal Basis
Arizona Law of Evidence
Topic Tags
- evidence
- legal standards
Question
How long does the HOA have to respond to my request to inspect records?
Short Answer
The HOA has 10 business days to fulfill a request.
Detailed Answer
Arizona statute mandates that an association must make financial and other records reasonably available for examination within ten business days of a request.
Alj Quote
The association shall have ten business days to fulfill a request for examination.
Legal Basis
A.R.S. § 33-1805(A)
Topic Tags
- records request
- timelines
- HOA obligations
Question
Can the HOA charge me for copies of the records I request?
Short Answer
Yes, they can charge a fee for copies.
Detailed Answer
While the association cannot charge a member for making material available for review, they may charge a fee for providing actual copies of the records. The statute caps this fee.
Alj Quote
An association may charge a fee for making copies of not more than fifteen cents per page.
Legal Basis
A.R.S. § 33-1805(A)
Topic Tags
- records request
- fees
- HOA obligations
Question
What specific types of information can an HOA legally keep private?
Short Answer
The HOA can withhold privileged attorney communications, pending litigation records, closed meeting minutes, and personal or employee information.
Detailed Answer
The law lists specific categories of records that do not have to be disclosed. These include attorney-client privilege, pending litigation, minutes from executive sessions, personal/health/financial records of members or employees, and records related to employee job performance or complaints.
Alj Quote
Books and records kept by or on behalf of the association and the board may be withheld from disclosure to the extent that the portion withheld relates to any of the following: 1. Privileged communication… 2. Pending litigation… 3. Meeting minutes… of a board meeting that is not required to be open… 4. Personal, health or financial records… 5. Records relating to the job performance…
Legal Basis
A.R.S. § 33-1805(B)
Topic Tags
- privacy
- exemptions
- records request
Question
Does a records request have to be directly about the lawsuit to be denied?
Short Answer
Not necessarily directly, but it must 'relate to' the pending litigation.
Detailed Answer
In this case, the homeowner requested records about a security entry system. Even though the lawsuit was about short-term rentals, the ALJ found the records could be withheld because the entry system controlled renter access, making the records related to the litigation.
Alj Quote
The evidence presented at hearing shows that the keyless entry program controls renters’ access to Desert Mountain. Therefore, the Administrative Law Judge concludes that Respondent was permitted to withhold documentation and communication related to the keyless entry program… due to pending litigation regarding the CC&Rs amendment that prohibits short-term rentals.
Legal Basis
A.R.S. § 33-1805(B)(2)
Topic Tags
- pending litigation
- records request
- scope of discovery
Case
- Docket No
- 21F-H2121055-REL
- Case Title
- Nicole Armsby (NICDON 10663 LLC) vs. Desert Mountain Master Association
- Decision Date
- 2021-09-07
- Alj Name
- Velva Moses-Thompson
- Tribunal
- OAH
- Agency
- ADRE
Questions
Question
Can my HOA refuse to provide records if I am currently suing them?
Short Answer
Yes, the HOA may withhold records if they relate to pending litigation between the homeowner and the association.
Detailed Answer
Under Arizona law, an association is permitted to withhold books and records if the disclosure relates to pending litigation. In this decision, the ALJ ruled that the HOA could withhold documents regarding a keyless entry system because it related to an ongoing lawsuit regarding short-term rental restrictions (since the entry system controlled renter access).
Alj Quote
Therefore, the Administrative Law Judge concludes that Respondent was permitted to withhold documentation and communication related to the keyless entry program from Petitioner, due to pending litigation regarding the CC&Rs amendment that prohibits short-term rentals.
Legal Basis
A.R.S. § 33-1805(B)(2)
Topic Tags
- records request
- pending litigation
- withholding records
Question
Who has to prove that the HOA violated the law during a hearing?
Short Answer
The homeowner (Petitioner) bears the burden of proof.
Detailed Answer
The homeowner filing the petition is responsible for proving that the HOA violated the statutes or governing documents. They must prove this by a 'preponderance of the evidence'.
Alj Quote
Petitioner bears the burden of proof to establish that Respondent violated Section 5.10 of the Association’s CC&Rs, Article III, Section 1 of the Association’s Bylaws, and A.R.S. § 33-1805 by a preponderance of the evidence.
Legal Basis
A.R.S. § 41-1092.07(G)(2)
Topic Tags
- burden of proof
- legal standards
- procedure
Question
How much evidence do I need to win a case against my HOA?
Short Answer
You need a 'preponderance of the evidence,' meaning your claim is more likely true than not.
Detailed Answer
The standard of proof in these administrative hearings is 'preponderance of the evidence.' This is defined as evidence that makes a contention 'more probably true than not' or carries the greater weight of convincing force.
Alj Quote
A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”
Legal Basis
Arizona Law of Evidence
Topic Tags
- evidence
- legal standards
Question
How long does the HOA have to respond to my request to inspect records?
Short Answer
The HOA has 10 business days to fulfill a request.
Detailed Answer
Arizona statute mandates that an association must make financial and other records reasonably available for examination within ten business days of a request.
Alj Quote
The association shall have ten business days to fulfill a request for examination.
Legal Basis
A.R.S. § 33-1805(A)
Topic Tags
- records request
- timelines
- HOA obligations
Question
Can the HOA charge me for copies of the records I request?
Short Answer
Yes, they can charge a fee for copies.
Detailed Answer
While the association cannot charge a member for making material available for review, they may charge a fee for providing actual copies of the records. The statute caps this fee.
Alj Quote
An association may charge a fee for making copies of not more than fifteen cents per page.
Legal Basis
A.R.S. § 33-1805(A)
Topic Tags
- records request
- fees
- HOA obligations
Question
What specific types of information can an HOA legally keep private?
Short Answer
The HOA can withhold privileged attorney communications, pending litigation records, closed meeting minutes, and personal or employee information.
Detailed Answer
The law lists specific categories of records that do not have to be disclosed. These include attorney-client privilege, pending litigation, minutes from executive sessions, personal/health/financial records of members or employees, and records related to employee job performance or complaints.
Alj Quote
Books and records kept by or on behalf of the association and the board may be withheld from disclosure to the extent that the portion withheld relates to any of the following: 1. Privileged communication… 2. Pending litigation… 3. Meeting minutes… of a board meeting that is not required to be open… 4. Personal, health or financial records… 5. Records relating to the job performance…
Legal Basis
A.R.S. § 33-1805(B)
Topic Tags
- privacy
- exemptions
- records request
Question
Does a records request have to be directly about the lawsuit to be denied?
Short Answer
Not necessarily directly, but it must 'relate to' the pending litigation.
Detailed Answer
In this case, the homeowner requested records about a security entry system. Even though the lawsuit was about short-term rentals, the ALJ found the records could be withheld because the entry system controlled renter access, making the records related to the litigation.
Alj Quote
The evidence presented at hearing shows that the keyless entry program controls renters’ access to Desert Mountain. Therefore, the Administrative Law Judge concludes that Respondent was permitted to withhold documentation and communication related to the keyless entry program… due to pending litigation regarding the CC&Rs amendment that prohibits short-term rentals.
Legal Basis
A.R.S. § 33-1805(B)(2)
Topic Tags
- pending litigation
- records request
- scope of discovery
Case
- Docket No
- 21F-H2121055-REL
- Case Title
- Nicole Armsby (NICDON 10663 LLC) vs. Desert Mountain Master Association
- Decision Date
- 2021-09-07
- Alj Name
- Velva Moses-Thompson
- Tribunal
- OAH
- Agency
- ADRE
Case Participants
Petitioner Side
- Nicole Armsby (petitioner)
NICDON 10663 LLC
Appeared on behalf of herself, also referred to as Nikki, - Jon Dessaules (petitioner attorney)
Armsby's attorney, referred to as 'Dom', - Matthew Hoxsie (petitioner attorney)
Greenberg Traurig, LLP
Associate, Armsby's attorney - Jordan (related party)
Party referenced in communications between counsel regarding conditional approval to speak,
Respondent Side
- Mark Sahl (HOA attorney)
Carpenter Hazlewood Delgado & Bolen, LLP - Kevin C. Pollock (Executive Director)
Desert Mountain Master Association
Also referred to as community manager - Curtis Ekmark (HOA attorney)
Respondent's attorney, listed as Curtis S. Ekmark in later filing - Stephen Prall (witness)
Desert Mountain Master Association (implied)
Presented testimony for Respondent - Carlotta L. Turman (HOA attorney)
Carpenter Hazlewood Delgado & Bolen, LLP
Neutral Parties
- Velva Moses-Thompson (ALJ)
Office of Administrative Hearings - Judy Lowe (Commissioner)
Arizona Department of Real Estate
Commissioner as of September 7, 2021 - Louis Dettorre (Commissioner)
Arizona Department of Real Estate
Commissioner as of December 22, 2021 - c. serrano (administrative clerk)
OAH/ADRE (transmittal)
Signed transmittal notices,,