The Petitioner was deemed the prevailing party regarding the Respondent's violations of the CC&Rs and rules concerning parking enforcement. The Respondent was ordered to refund the Petitioner's $500.00 filing fee.
Petitioner alleged that the HOA refused to enforce parking rules regarding vehicle limits, requiring use of garages for first cars, and banning inoperable or commercial vehicles, despite written complaints. The ALJ found the HOA failed to enforce these rules or issue proper notices/fines.
Orders: MCIII ordered to pay Petitioner his filing fee of $500.00 within thirty days of the Order.
Briefing Document: Gray v. Mesa Coronado III Condominium Association (Case No. 19F-H1918004-REL)
Executive Summary
This document provides a comprehensive analysis of the Administrative Law Judge Decision in the case of John W. Gray (Petitioner) versus the Mesa Coronado III Condominium Association (MCIII, Respondent). The central issue was MCIII’s failure to enforce its own Covenants, Conditions, and Restrictions (CC&Rs) and community rules regarding vehicle parking.
The Petitioner, Mr. Gray, presented credible and convincing evidence of widespread, ongoing parking violations by multiple residents, including exceeding vehicle limits, failing to use garages for primary parking, and the long-term storage of an inoperable vehicle in a common area parking space. The Respondent, MCIII, argued that the rules were difficult to enforce and that it had taken some action, including revising the rules shortly before the hearing.
The Administrative Law Judge (ALJ) ultimately rejected MCIII’s defense, concluding that the association had demonstrably failed to enforce its governing documents. The ALJ found that MCIII had viable enforcement options, such as issuing notices and fines, which it did not utilize. The final order deemed the Petitioner the prevailing party and required MCIII to reimburse his $500 filing fee.
Case Overview
• Parties Involved:
◦ Petitioner: John W. Gray, owner of Unit 122 in the Mesa Coronado III Condominium development.
◦ Respondent: Mesa Coronado III Condominium Association (MCIII), the unit owners’ association for the 33-unit development.
• Adjudicating Body: The Office of Administrative Hearings, following a referral from the Arizona Department of Real Estate.
• Hearing Date: October 29, 2018.
• Decision Date: November 30, 2018.
• Core Allegation: The Petitioner alleged that MCIII violated its own Rules, Regulations, and CC&Rs (specifically Articles 4.12, 4.13, and 4.14) by refusing to enforce parking rules despite receiving written complaints.
Background and Timeline of the Dispute
The conflict centered on parking within the MCIII development, which has 36 parking spaces for 33 units, with spaces being “open” and not assigned to specific units (with one exception).
• Pre-existing Rules (Adopted Jan. 2002):
◦ Owners were limited to two cars per unit.
◦ The garage was considered the “assigned” parking for the first car.
◦ Inoperable vehicles were banned from the property.
◦ A system of warnings and fines was in place for rule violations.
• May 17, 2018: Petitioner Gray submitted a formal written complaint to MCIII, identifying at least eight units in violation of parking rules. His complaint specified:
◦ Units with three cars were not using their garages for parking, instead using them for storage.
◦ An inoperable red truck had been stationary in the same parking spot for over a year.
◦ A commercial truck was present containing what he believed to be hazardous pool chemicals.
• MCIII’s Initial Response: The association acknowledged a “history” with the parking situation and stated the Board would review the rules for revision. MCIII noted it would investigate the red truck and also accused the Petitioner of regularly parking his own truck in a fire lane.
• July 16, 2018: The Petitioner sent a follow-up notification regarding the continuing violations.
• MCIII’s Second Response: The association informed the Petitioner that the issue would be on the agenda for the July 24, 2018 Board meeting and again reminded him of his own alleged fire lane parking violations.
• July 23, 2018: MCIII sent a notice to the owner of the unit associated with the inoperable red truck, informing them of the rules violation.
• July 30, 2018: The Petitioner filed his formal petition with the Arizona Department of Real Estate.
• October 23, 2018: Days before the hearing, the MCIII Board adopted new parking rules.
Petitioner’s Case and Evidence (John W. Gray)
The Petitioner built a detailed case demonstrating a pattern of non-enforcement by MCIII. The ALJ found his evidence to be “credible and convincing.”
• Specific Violations Alleged:
◦ Excess Vehicles: Multiple units possessed more than the two-vehicle limit.
◦ Garage Misuse: Residents with multiple cars were using common area parking spaces while their garages were used for storage.
◦ Inoperable Vehicle: A red truck remained parked and inoperable in one space for over a year, in direct violation of CC&R 4.14.
• Evidence Presented at Hearing:
◦ Photographs: A series of exhibits (6 through 16) contained photographs documenting the various offending vehicles.
◦ Private Investigation: The Petitioner hired a private investigator to obtain vehicle registration information to link specific vehicles to their owners and units (Exhibit 17).
◦ Quantitative Analysis: The Petitioner calculated that just 12 units were occupying 27 common area parking spaces, leaving very few spaces for the remaining 21 units.
◦ Written Correspondence: Copies of his complaints to MCIII were submitted, demonstrating that the association was put on notice of the violations.
Respondent’s Defense and Actions (MCIII)
The association’s defense centered on the difficulty of enforcement and subsequent actions taken after the Petitioner’s complaint.
• Core Arguments:
◦ Unenforceability: MCIII asserted that it was “almost impossible” to enforce the existing restrictive rules, as it would require constant 24/7 monitoring.
◦ Lack of Prior Complaints: The Respondent claimed it had received no complaints about parking prior to Mr. Gray’s.
◦ Issue is Moot: MCIII argued that its recent revision of the parking rules rendered the Petitioner’s complaint moot.
• Actions Taken by MCIII:
◦ Rule Revision: At the October 23, 2018 Board meeting, MCIII adopted new rules that eliminated the two-car limit but maintained the requirement for residents to use their garage first before occupying common area spaces. The ban on inoperable and commercial vehicles was also kept.
◦ Enforcement Against Petitioner: The Respondent noted that it had previously taken enforcement action by having the Petitioner’s own truck towed for parking in a fire lane.
◦ Notice Regarding Red Truck: MCIII provided evidence that it sent one letter on July 23, 2018, regarding the inoperable red truck.
◦ Towing Contract: The association stated it had recently contracted with Shaffer Towing for towing services.
◦ Community Manager Patrols: The “Community Manager,” Andrea Lacombe, testified that she drove through the property approximately twice a month looking for violations.
Governing Rules and CC&Rs
The decision rested on the specific language of the association’s governing documents in effect at the time of the complaint.
Document
Article/Rule
Provision
Rules & Regulations (Jan 2002)
Rule 3
Limits owners to two cars per unit and “assigns” the garage as parking for the first car.
CC&Rs (Jan 1999)
Art. 4.12
Prohibits the parking of commercial vehicles, RVs, boats, trailers, etc., on any part of the condominium outside of an enclosed garage.
CC&Rs (Jan 1999)
Art. 4.13
States that no parking space may be used for storage or any purpose other than parking of Family Vehicles. Grants the Board the right to assign spaces.
CC&Rs (Jan 1999)
Art. 4.14
Prohibits the storage of inoperable vehicles on any portion of the condominium other than within enclosed garages. Grants the Board the right to have violating vehicles towed.
Administrative Law Judge’s Decision and Rationale
The ALJ sided with the Petitioner, finding that MCIII had failed in its duty to enforce its own rules.
• Rejection of MCIII’s Defense: The ALJ determined that MCIII’s argument that the rules were unenforceable was “not a viable defense.” The decision explicitly stated that the association could have used provisions for notification and fines to enforce the rules but failed to do so.
• Evidence of Non-Enforcement: The hearing record demonstrated a clear failure by MCIII to act.
◦ The evidence was “undisputed” that the inoperable red truck had been in violation for over a year, yet MCIII only sent a single notice long after the complaint was filed.
◦ The ALJ noted that clearing even that one space would have improved the “tenuous parking situation.”
◦ The record contained no indication that MCIII had ever enforced the rules regarding the number of vehicles or the mandatory use of garages for primary parking.
◦ The only enforcement action cited, other than the single letter, was the towing of the Petitioner’s own vehicle.
• Conclusion of Law: Based on the evidence, the ALJ concluded that “MCIII failed to enforce CC&Rs and rules and regulations regarding parking.” The revision of the rules just before the hearing did not negate the past failure to enforce the rules that were in effect at the time of the Petitioner’s complaint.
Final Order
Based on the findings of fact and conclusions of law, the Administrative Law Judge issued a binding order with two key provisions:
1. Prevailing Party: The Petitioner, John W. Gray, is officially deemed the prevailing party in the matter.
2. Reimbursement: MCIII is ordered to pay the Petitioner his filing fee of $500.00 within thirty (30) days of the order.
Study Guide – 19F-H1918004-REL
Study Guide: Gray v. Mesa Coronado III Condominium Association
This guide provides a detailed review of the Administrative Law Judge Decision in case No. 19F-H1918004-REL, concerning a dispute over the enforcement of parking regulations. It includes a short-answer quiz, an answer key, essay questions for deeper analysis, and a glossary of key terms.
Quiz: Short-Answer Questions
Answer each of the following questions in 2-3 complete sentences, based entirely on the provided source document.
1. Who were the primary parties involved in this case, and what were their respective roles?
2. What were the two main issues John W. Gray alleged in his petition filed with the Department on July 30, 2018?
3. According to the MCIII rules in effect at the time of the complaint, what were the primary restrictions placed on vehicle ownership and parking for residents?
4. Describe the key evidence the Petitioner presented at the hearing to substantiate his claims of widespread parking rule violations.
5. What was the Respondent’s primary defense for not enforcing the more restrictive parking rules that were in place at the time of the complaint?
6. How did the new rules, adopted on October 23, 2018, change the association’s approach to vehicle limits and garage use?
7. Explain the significance of the inoperable red truck to the Administrative Law Judge’s final decision.
8. What was the required standard of proof for the Petitioner in this case, and did the judge determine that he met it?
9. Prior to the hearing, what specific enforcement actions did MCIII take in response to the Petitioner’s documented complaints?
10. What was the final order issued by the Administrative Law Judge, and what was MCIII required to do?
Answer Key
1. The primary parties were John W. Gray, the Petitioner, who was a condominium owner in the MCIII development, and the Mesa Coronado III Condominium Association (MCIII), the Respondent and the governing unit owners’ association for the development. Mr. Gray initiated the legal action against the association for allegedly failing to enforce its rules.
2. The Petitioner’s two main allegations were that the association had failed to provide him with a copy of its management company agreement and that it refused to enforce its parking rules. He specifically alleged multiple units were violating rules regarding the number of vehicles and the presence of inoperable vehicles.
3. The rules in effect at the time of the complaint limited owners to a maximum of two cars per unit. The rules also “assigned” the garage as the designated parking spot for the first car and explicitly banned “inoperable” vehicles from the property.
4. The Petitioner presented credible evidence including photographs from multiple exhibits (6-16) showing numerous violations. He also testified based on his personal observations, identified specific units with three cars using garages for storage, and provided vehicle registration information obtained through a private investigator.
5. The Respondent defended its lack of enforcement by arguing that the existing restrictive rules were “almost impossible” to enforce without constant surveillance. The Community Manager also testified that she had received no prior complaints about parking from other residents.
6. The new rules, adopted October 23, 2018, removed the limit on the number of cars permitted per unit. However, they instituted a new requirement that owners must park their vehicles in their respective garages before using any common area parking spaces.
7. The inoperable red truck was significant because it had been parked in the same spot for over a year, serving as undisputed evidence of a long-standing violation. The judge noted that MCIII’s single letter to the owner, sent long after the violation began, demonstrated a clear failure to enforce its rules regarding inoperable vehicles.
8. The required standard of proof was a “preponderance of the evidence,” meaning the Petitioner had to convince the judge that his contentions were more probably true than not. The judge concluded that the Petitioner successfully met this burden of proof.
9. MCIII’s primary enforcement actions were to place the issue on its July 24, 2018, Board meeting agenda and to send one letter on July 23, 2018, to the owner of the unit associated with the inoperable red truck. The record also shows MCIII had previously enforced parking rules against the Petitioner himself by having his truck towed from a fire lane.
10. The judge ordered that the Petitioner be deemed the prevailing party in the case. The judge further ordered that MCIII must pay the Petitioner his filing fee of $500.00 within thirty days of the order.
Essay Questions
The following questions are designed to promote deeper analysis of the case. Formulate comprehensive responses based on the facts and arguments presented in the source document.
1. Analyze the Respondent’s argument that revising the parking rules made the Petitioner’s complaints “moot.” Based on the judge’s decision, evaluate the strength of this defense and explain why it was ultimately unsuccessful.
2. Discuss the concept of a condominium association’s duty to enforce its own rules and CC&Rs, using the specific examples of MCIII’s actions (and inactions) from the case. How did the association’s selective enforcement—such as towing the Petitioner’s vehicle but not others—factor into the case’s context?
3. Evaluate the evidence presented by both the Petitioner and the Respondent. Which party presented a more compelling case, and why? Support your analysis by citing specific exhibits, testimony, and documented observations mentioned in the decision.
4. Explore the timeline of events from the Petitioner’s first complaint in May 2018 to the judge’s decision in November 2018. How does this timeline illustrate the dispute’s escalation and the association’s response strategy?
5. The Administrative Law Judge found that MCIII’s argument of the rules being “unenforceable” was not a viable defense. What practical enforcement actions, short of 24/7 surveillance, could the association have taken according to the information provided in the hearing record?
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, it was Kay Abramsohn.
Burden of Proof
The legal obligation of a party in a trial to produce evidence that proves the claims they have made against the other party.
Covenants, Conditions, and Restrictions. These are the governing legal documents that set up the guidelines for a planned community like a condominium. MCIII’s CC&Rs were effective January 12, 1999.
Common Elements
Also referred to as the “Common Area,” these are parts of the condominium property, such as the parking lot, available for use by all unit owners.
Community Manager
An employee of the management company (Curtiss Management) hired by the association to handle its affairs. In this case, the manager was Andrea Lacombe.
Evidentiary Hearing
A formal legal proceeding where parties present evidence (exhibits) and testimony to prove their case before a judge or hearing officer.
Inoperable Vehicle
A vehicle that cannot be operated. Both the old and new MCIII rules, as well as CC&R 4.14, prohibited storing such vehicles on the property outside of an enclosed garage.
A term used to describe an issue that is no longer in dispute or of practical significance. MCIII argued that its new rules made the Petitioner’s issues moot.
Petitioner
The party who initiates a legal action or files a petition. In this case, John W. Gray.
A map, drawn to scale, showing the divisions of a piece of land. The plat for MCIII showed there were 36 parking spaces in the lot.
Preponderance of the Evidence
The standard of proof required in this case. It is met if the proposition is more likely to be true than not true; it is a superior evidentiary weight that inclines an impartial mind to one side.
Prevailing Party
The party who is found to have won the legal case. The judge deemed the Petitioner to be the prevailing party.
Respondent
The party against whom a petition is filed; the defending party. In this case, the Mesa Coronado III Condominium Association.
Blog Post – 19F-H1918004-REL
He Fought the HOA Over Parking—and Won. Here Are the 5 Surprising Lessons from His Battle.
Introduction: The Familiar Frustration of HOA Parking
For anyone living in a condo, townhome, or planned community, the daily dance of parking is a familiar routine. It’s a world of limited spaces, confusing rules about guest parking, and the constant fear of a warning sticker or, worse, a tow truck. This shared frustration often simmers just below the surface of community life, where the rules established by a Homeowners Association (HOA) can feel arbitrary and inconsistently applied.
This post breaks down a real-life administrative court case where one resident, John W. Gray, took on his Condominium Association for its complete failure to enforce its own parking rules. Without getting lost in legal jargon, we will explore how a single, determined individual was able to hold his HOA accountable. This wasn’t just a simple disagreement; it was a formal challenge that went before a judge.
The official court decision in Gray’s favor offers powerful and surprising lessons for any homeowner, renter, or board member. This David vs. Goliath story is more than just a victory for one resident; it’s a practical guide filled with takeaways on how to effectively address community disputes and understand the true responsibilities of an HOA.
1. The ‘It’s Too Hard to Enforce’ Excuse Doesn’t Work
The association (MCIII) built its primary defense on the argument that its own parking rules were “almost impossible” to enforce. They claimed that the two-car limit per unit was too restrictive and would require constant, 24/7 monitoring and picture-taking, which was simply not feasible.
The administrative law judge completely rejected this excuse. The core lesson from the ruling is that an HOA cannot simply choose to ignore its governing documents because enforcement is inconvenient. The judge pointed out that the association had simpler tools at its disposal, such as issuing violation notices and levying fines as outlined in their rules, but failed to take even these basic steps.
The judge’s finding offers a powerful reality check for any board that feels overwhelmed by its own regulations:
MCIII’s argument that the rules were unenforceable is not a viable defense in this instance, as the rules contained many provisions that could have been noticed to the units regarding parking rules and their enforcement.
2. Meticulous Data is Your Strongest Weapon
John W. Gray didn’t just complain; he built an airtight case. His methodical approach to proving the association’s failure was a key factor in his success. The court record details the specific actions he took:
• He conducted personal observations and took photographs of the offending vehicles.
• He identified the specific units that had too many cars and were using their garages for storage instead of parking.
• He hired a private investigator to obtain vehicle registration information to definitively link cars to specific units.
The judge found this evidence to be “credible and convincing.” Gray’s detailed documentation painted a clear picture of the problem’s scale. According to his calculations, just 12 of the community’s 33 units were monopolizing 27 parking spaces, leaving very few for the remaining 21 units. This takeaway is clear: a well-documented, fact-based complaint is infinitely more powerful than anecdotal grievances.
3. Changing the Rules Doesn’t Erase Past Failures
In response to Gray’s formal complaint, the HOA Board took a strategic but ultimately unsuccessful step. Just days before the scheduled hearing, the Board reviewed and adopted a new set of parking rules. These new rules conveniently removed the two-car limit that the association had claimed was unenforceable.
The association then argued that this rule change made the petitioner’s original complaint “moot,” or irrelevant. They essentially claimed that since the rule he was complaining about no longer existed, there was no longer a case to be heard.
This strategy failed because the judge ruled on the HOA’s past failure to enforce the rules that were in effect at the time of the complaint. This is a crucial lesson in accountability. An organization cannot escape responsibility for its prior negligence simply by changing the rules at the last minute. The failure to act had already occurred, and the consequences of that failure were the basis of the lawsuit.
4. Ignoring Small Violations Can Create a Major Crisis
Nowhere was the HOA’s failure more obvious than in the case of a single inoperable red truck. The vehicle had been parked in the same spot for over a year, in clear violation of the rules prohibiting the storage of inoperable vehicles on the property.
Despite this long-term, visible violation, the hearing record shows the HOA’s response was both delayed and minimal. They sent only one letter to the unit owner about the truck, and this action was taken “long after” the violation began and only after Gray had formally complained.
The judge’s observation on this single vehicle underscores the wider impact of the board’s inaction:
Even the clearing of just one more space would have made the tenuous parking situation better.
The red truck was a symptom of a much larger disease. The failure to address one obvious, easily-proven violation demonstrated a systemic failure to manage the community’s shared resources, which directly contributed to the parking crisis and the disproportionate use of spaces by a few residents.
5. Enforcement Must Be Fair, Not Just Convenient
Perhaps the most telling detail from the hearing record was the apparent double standard in the HOA’s enforcement actions. The record explicitly mentions only two enforcement actions the association had taken regarding parking:
• Towing the petitioner’s own truck on one occasion for parking in a fire lane.
• Sending a single, very late letter about the red truck that had been parked for over a year.
The hearing record is devastatingly clear on this point. The only enforcement actions the board could point to were punitive or reactive: towing the truck of the very resident demanding action, and sending a single, belated letter about a year-old violation after he had filed a formal complaint. This wasn’t just inconsistent enforcement; it was a textbook case of selective enforcement that targeted the complainant while ignoring the systemic problem.
For an HOA’s authority to be respected and legally defensible, its rules must be applied fairly and consistently to all residents, not just when it is convenient or aimed at a perceived nuisance.
Conclusion: A Win for the Power of One
The judge’s order was a decisive victory for resident rights, affirming that an HOA’s duty to enforce its own rules is not optional. While the association was ordered to repay his $500 filing fee, the real prize was the validation that one resident, armed with credible evidence, can successfully hold a board accountable to the entire community. This case proves that meticulous documentation, persistence, and a refusal to be ignored are the great equalizers in community governance. It makes you wonder: what ‘unenforceable’ rules in your community are just waiting for a champion to demand they be followed?
Case Participants
Petitioner Side
John W. Gray(petitioner) Appeared on his own behalf
Respondent Side
Austin Baillio(attorney) Maxwell & Morgan PC Represented Mesa Coronado III Condominium Association
Andrea Lacombe(community manager) Curtiss Management Testified for Respondent
Neutral Parties
Kay Abramsohn(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
Felicia Del Sol(administrative staff) Transmitted decision electronically
The Petitioner was deemed the prevailing party regarding the Respondent's violations of the CC&Rs and rules concerning parking enforcement. The Respondent was ordered to refund the Petitioner's $500.00 filing fee.
Petitioner alleged that the HOA refused to enforce parking rules regarding vehicle limits, requiring use of garages for first cars, and banning inoperable or commercial vehicles, despite written complaints. The ALJ found the HOA failed to enforce these rules or issue proper notices/fines.
Orders: MCIII ordered to pay Petitioner his filing fee of $500.00 within thirty days of the Order.
Briefing Document: Gray v. Mesa Coronado III Condominium Association (Case No. 19F-H1918004-REL)
Executive Summary
This document provides a comprehensive analysis of the Administrative Law Judge Decision in the case of John W. Gray (Petitioner) versus the Mesa Coronado III Condominium Association (MCIII, Respondent). The central issue was MCIII’s failure to enforce its own Covenants, Conditions, and Restrictions (CC&Rs) and community rules regarding vehicle parking.
The Petitioner, Mr. Gray, presented credible and convincing evidence of widespread, ongoing parking violations by multiple residents, including exceeding vehicle limits, failing to use garages for primary parking, and the long-term storage of an inoperable vehicle in a common area parking space. The Respondent, MCIII, argued that the rules were difficult to enforce and that it had taken some action, including revising the rules shortly before the hearing.
The Administrative Law Judge (ALJ) ultimately rejected MCIII’s defense, concluding that the association had demonstrably failed to enforce its governing documents. The ALJ found that MCIII had viable enforcement options, such as issuing notices and fines, which it did not utilize. The final order deemed the Petitioner the prevailing party and required MCIII to reimburse his $500 filing fee.
Case Overview
• Parties Involved:
◦ Petitioner: John W. Gray, owner of Unit 122 in the Mesa Coronado III Condominium development.
◦ Respondent: Mesa Coronado III Condominium Association (MCIII), the unit owners’ association for the 33-unit development.
• Adjudicating Body: The Office of Administrative Hearings, following a referral from the Arizona Department of Real Estate.
• Hearing Date: October 29, 2018.
• Decision Date: November 30, 2018.
• Core Allegation: The Petitioner alleged that MCIII violated its own Rules, Regulations, and CC&Rs (specifically Articles 4.12, 4.13, and 4.14) by refusing to enforce parking rules despite receiving written complaints.
Background and Timeline of the Dispute
The conflict centered on parking within the MCIII development, which has 36 parking spaces for 33 units, with spaces being “open” and not assigned to specific units (with one exception).
• Pre-existing Rules (Adopted Jan. 2002):
◦ Owners were limited to two cars per unit.
◦ The garage was considered the “assigned” parking for the first car.
◦ Inoperable vehicles were banned from the property.
◦ A system of warnings and fines was in place for rule violations.
• May 17, 2018: Petitioner Gray submitted a formal written complaint to MCIII, identifying at least eight units in violation of parking rules. His complaint specified:
◦ Units with three cars were not using their garages for parking, instead using them for storage.
◦ An inoperable red truck had been stationary in the same parking spot for over a year.
◦ A commercial truck was present containing what he believed to be hazardous pool chemicals.
• MCIII’s Initial Response: The association acknowledged a “history” with the parking situation and stated the Board would review the rules for revision. MCIII noted it would investigate the red truck and also accused the Petitioner of regularly parking his own truck in a fire lane.
• July 16, 2018: The Petitioner sent a follow-up notification regarding the continuing violations.
• MCIII’s Second Response: The association informed the Petitioner that the issue would be on the agenda for the July 24, 2018 Board meeting and again reminded him of his own alleged fire lane parking violations.
• July 23, 2018: MCIII sent a notice to the owner of the unit associated with the inoperable red truck, informing them of the rules violation.
• July 30, 2018: The Petitioner filed his formal petition with the Arizona Department of Real Estate.
• October 23, 2018: Days before the hearing, the MCIII Board adopted new parking rules.
Petitioner’s Case and Evidence (John W. Gray)
The Petitioner built a detailed case demonstrating a pattern of non-enforcement by MCIII. The ALJ found his evidence to be “credible and convincing.”
• Specific Violations Alleged:
◦ Excess Vehicles: Multiple units possessed more than the two-vehicle limit.
◦ Garage Misuse: Residents with multiple cars were using common area parking spaces while their garages were used for storage.
◦ Inoperable Vehicle: A red truck remained parked and inoperable in one space for over a year, in direct violation of CC&R 4.14.
• Evidence Presented at Hearing:
◦ Photographs: A series of exhibits (6 through 16) contained photographs documenting the various offending vehicles.
◦ Private Investigation: The Petitioner hired a private investigator to obtain vehicle registration information to link specific vehicles to their owners and units (Exhibit 17).
◦ Quantitative Analysis: The Petitioner calculated that just 12 units were occupying 27 common area parking spaces, leaving very few spaces for the remaining 21 units.
◦ Written Correspondence: Copies of his complaints to MCIII were submitted, demonstrating that the association was put on notice of the violations.
Respondent’s Defense and Actions (MCIII)
The association’s defense centered on the difficulty of enforcement and subsequent actions taken after the Petitioner’s complaint.
• Core Arguments:
◦ Unenforceability: MCIII asserted that it was “almost impossible” to enforce the existing restrictive rules, as it would require constant 24/7 monitoring.
◦ Lack of Prior Complaints: The Respondent claimed it had received no complaints about parking prior to Mr. Gray’s.
◦ Issue is Moot: MCIII argued that its recent revision of the parking rules rendered the Petitioner’s complaint moot.
• Actions Taken by MCIII:
◦ Rule Revision: At the October 23, 2018 Board meeting, MCIII adopted new rules that eliminated the two-car limit but maintained the requirement for residents to use their garage first before occupying common area spaces. The ban on inoperable and commercial vehicles was also kept.
◦ Enforcement Against Petitioner: The Respondent noted that it had previously taken enforcement action by having the Petitioner’s own truck towed for parking in a fire lane.
◦ Notice Regarding Red Truck: MCIII provided evidence that it sent one letter on July 23, 2018, regarding the inoperable red truck.
◦ Towing Contract: The association stated it had recently contracted with Shaffer Towing for towing services.
◦ Community Manager Patrols: The “Community Manager,” Andrea Lacombe, testified that she drove through the property approximately twice a month looking for violations.
Governing Rules and CC&Rs
The decision rested on the specific language of the association’s governing documents in effect at the time of the complaint.
Document
Article/Rule
Provision
Rules & Regulations (Jan 2002)
Rule 3
Limits owners to two cars per unit and “assigns” the garage as parking for the first car.
CC&Rs (Jan 1999)
Art. 4.12
Prohibits the parking of commercial vehicles, RVs, boats, trailers, etc., on any part of the condominium outside of an enclosed garage.
CC&Rs (Jan 1999)
Art. 4.13
States that no parking space may be used for storage or any purpose other than parking of Family Vehicles. Grants the Board the right to assign spaces.
CC&Rs (Jan 1999)
Art. 4.14
Prohibits the storage of inoperable vehicles on any portion of the condominium other than within enclosed garages. Grants the Board the right to have violating vehicles towed.
Administrative Law Judge’s Decision and Rationale
The ALJ sided with the Petitioner, finding that MCIII had failed in its duty to enforce its own rules.
• Rejection of MCIII’s Defense: The ALJ determined that MCIII’s argument that the rules were unenforceable was “not a viable defense.” The decision explicitly stated that the association could have used provisions for notification and fines to enforce the rules but failed to do so.
• Evidence of Non-Enforcement: The hearing record demonstrated a clear failure by MCIII to act.
◦ The evidence was “undisputed” that the inoperable red truck had been in violation for over a year, yet MCIII only sent a single notice long after the complaint was filed.
◦ The ALJ noted that clearing even that one space would have improved the “tenuous parking situation.”
◦ The record contained no indication that MCIII had ever enforced the rules regarding the number of vehicles or the mandatory use of garages for primary parking.
◦ The only enforcement action cited, other than the single letter, was the towing of the Petitioner’s own vehicle.
• Conclusion of Law: Based on the evidence, the ALJ concluded that “MCIII failed to enforce CC&Rs and rules and regulations regarding parking.” The revision of the rules just before the hearing did not negate the past failure to enforce the rules that were in effect at the time of the Petitioner’s complaint.
Final Order
Based on the findings of fact and conclusions of law, the Administrative Law Judge issued a binding order with two key provisions:
1. Prevailing Party: The Petitioner, John W. Gray, is officially deemed the prevailing party in the matter.
2. Reimbursement: MCIII is ordered to pay the Petitioner his filing fee of $500.00 within thirty (30) days of the order.
Study Guide – 19F-H1918004-REL
Study Guide: Gray v. Mesa Coronado III Condominium Association
This guide provides a detailed review of the Administrative Law Judge Decision in case No. 19F-H1918004-REL, concerning a dispute over the enforcement of parking regulations. It includes a short-answer quiz, an answer key, essay questions for deeper analysis, and a glossary of key terms.
Quiz: Short-Answer Questions
Answer each of the following questions in 2-3 complete sentences, based entirely on the provided source document.
1. Who were the primary parties involved in this case, and what were their respective roles?
2. What were the two main issues John W. Gray alleged in his petition filed with the Department on July 30, 2018?
3. According to the MCIII rules in effect at the time of the complaint, what were the primary restrictions placed on vehicle ownership and parking for residents?
4. Describe the key evidence the Petitioner presented at the hearing to substantiate his claims of widespread parking rule violations.
5. What was the Respondent’s primary defense for not enforcing the more restrictive parking rules that were in place at the time of the complaint?
6. How did the new rules, adopted on October 23, 2018, change the association’s approach to vehicle limits and garage use?
7. Explain the significance of the inoperable red truck to the Administrative Law Judge’s final decision.
8. What was the required standard of proof for the Petitioner in this case, and did the judge determine that he met it?
9. Prior to the hearing, what specific enforcement actions did MCIII take in response to the Petitioner’s documented complaints?
10. What was the final order issued by the Administrative Law Judge, and what was MCIII required to do?
Answer Key
1. The primary parties were John W. Gray, the Petitioner, who was a condominium owner in the MCIII development, and the Mesa Coronado III Condominium Association (MCIII), the Respondent and the governing unit owners’ association for the development. Mr. Gray initiated the legal action against the association for allegedly failing to enforce its rules.
2. The Petitioner’s two main allegations were that the association had failed to provide him with a copy of its management company agreement and that it refused to enforce its parking rules. He specifically alleged multiple units were violating rules regarding the number of vehicles and the presence of inoperable vehicles.
3. The rules in effect at the time of the complaint limited owners to a maximum of two cars per unit. The rules also “assigned” the garage as the designated parking spot for the first car and explicitly banned “inoperable” vehicles from the property.
4. The Petitioner presented credible evidence including photographs from multiple exhibits (6-16) showing numerous violations. He also testified based on his personal observations, identified specific units with three cars using garages for storage, and provided vehicle registration information obtained through a private investigator.
5. The Respondent defended its lack of enforcement by arguing that the existing restrictive rules were “almost impossible” to enforce without constant surveillance. The Community Manager also testified that she had received no prior complaints about parking from other residents.
6. The new rules, adopted October 23, 2018, removed the limit on the number of cars permitted per unit. However, they instituted a new requirement that owners must park their vehicles in their respective garages before using any common area parking spaces.
7. The inoperable red truck was significant because it had been parked in the same spot for over a year, serving as undisputed evidence of a long-standing violation. The judge noted that MCIII’s single letter to the owner, sent long after the violation began, demonstrated a clear failure to enforce its rules regarding inoperable vehicles.
8. The required standard of proof was a “preponderance of the evidence,” meaning the Petitioner had to convince the judge that his contentions were more probably true than not. The judge concluded that the Petitioner successfully met this burden of proof.
9. MCIII’s primary enforcement actions were to place the issue on its July 24, 2018, Board meeting agenda and to send one letter on July 23, 2018, to the owner of the unit associated with the inoperable red truck. The record also shows MCIII had previously enforced parking rules against the Petitioner himself by having his truck towed from a fire lane.
10. The judge ordered that the Petitioner be deemed the prevailing party in the case. The judge further ordered that MCIII must pay the Petitioner his filing fee of $500.00 within thirty days of the order.
Essay Questions
The following questions are designed to promote deeper analysis of the case. Formulate comprehensive responses based on the facts and arguments presented in the source document.
1. Analyze the Respondent’s argument that revising the parking rules made the Petitioner’s complaints “moot.” Based on the judge’s decision, evaluate the strength of this defense and explain why it was ultimately unsuccessful.
2. Discuss the concept of a condominium association’s duty to enforce its own rules and CC&Rs, using the specific examples of MCIII’s actions (and inactions) from the case. How did the association’s selective enforcement—such as towing the Petitioner’s vehicle but not others—factor into the case’s context?
3. Evaluate the evidence presented by both the Petitioner and the Respondent. Which party presented a more compelling case, and why? Support your analysis by citing specific exhibits, testimony, and documented observations mentioned in the decision.
4. Explore the timeline of events from the Petitioner’s first complaint in May 2018 to the judge’s decision in November 2018. How does this timeline illustrate the dispute’s escalation and the association’s response strategy?
5. The Administrative Law Judge found that MCIII’s argument of the rules being “unenforceable” was not a viable defense. What practical enforcement actions, short of 24/7 surveillance, could the association have taken according to the information provided in the hearing record?
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, it was Kay Abramsohn.
Burden of Proof
The legal obligation of a party in a trial to produce evidence that proves the claims they have made against the other party.
Covenants, Conditions, and Restrictions. These are the governing legal documents that set up the guidelines for a planned community like a condominium. MCIII’s CC&Rs were effective January 12, 1999.
Common Elements
Also referred to as the “Common Area,” these are parts of the condominium property, such as the parking lot, available for use by all unit owners.
Community Manager
An employee of the management company (Curtiss Management) hired by the association to handle its affairs. In this case, the manager was Andrea Lacombe.
Evidentiary Hearing
A formal legal proceeding where parties present evidence (exhibits) and testimony to prove their case before a judge or hearing officer.
Inoperable Vehicle
A vehicle that cannot be operated. Both the old and new MCIII rules, as well as CC&R 4.14, prohibited storing such vehicles on the property outside of an enclosed garage.
A term used to describe an issue that is no longer in dispute or of practical significance. MCIII argued that its new rules made the Petitioner’s issues moot.
Petitioner
The party who initiates a legal action or files a petition. In this case, John W. Gray.
A map, drawn to scale, showing the divisions of a piece of land. The plat for MCIII showed there were 36 parking spaces in the lot.
Preponderance of the Evidence
The standard of proof required in this case. It is met if the proposition is more likely to be true than not true; it is a superior evidentiary weight that inclines an impartial mind to one side.
Prevailing Party
The party who is found to have won the legal case. The judge deemed the Petitioner to be the prevailing party.
Respondent
The party against whom a petition is filed; the defending party. In this case, the Mesa Coronado III Condominium Association.
Blog Post – 19F-H1918004-REL
He Fought the HOA Over Parking—and Won. Here Are the 5 Surprising Lessons from His Battle.
Introduction: The Familiar Frustration of HOA Parking
For anyone living in a condo, townhome, or planned community, the daily dance of parking is a familiar routine. It’s a world of limited spaces, confusing rules about guest parking, and the constant fear of a warning sticker or, worse, a tow truck. This shared frustration often simmers just below the surface of community life, where the rules established by a Homeowners Association (HOA) can feel arbitrary and inconsistently applied.
This post breaks down a real-life administrative court case where one resident, John W. Gray, took on his Condominium Association for its complete failure to enforce its own parking rules. Without getting lost in legal jargon, we will explore how a single, determined individual was able to hold his HOA accountable. This wasn’t just a simple disagreement; it was a formal challenge that went before a judge.
The official court decision in Gray’s favor offers powerful and surprising lessons for any homeowner, renter, or board member. This David vs. Goliath story is more than just a victory for one resident; it’s a practical guide filled with takeaways on how to effectively address community disputes and understand the true responsibilities of an HOA.
1. The ‘It’s Too Hard to Enforce’ Excuse Doesn’t Work
The association (MCIII) built its primary defense on the argument that its own parking rules were “almost impossible” to enforce. They claimed that the two-car limit per unit was too restrictive and would require constant, 24/7 monitoring and picture-taking, which was simply not feasible.
The administrative law judge completely rejected this excuse. The core lesson from the ruling is that an HOA cannot simply choose to ignore its governing documents because enforcement is inconvenient. The judge pointed out that the association had simpler tools at its disposal, such as issuing violation notices and levying fines as outlined in their rules, but failed to take even these basic steps.
The judge’s finding offers a powerful reality check for any board that feels overwhelmed by its own regulations:
MCIII’s argument that the rules were unenforceable is not a viable defense in this instance, as the rules contained many provisions that could have been noticed to the units regarding parking rules and their enforcement.
2. Meticulous Data is Your Strongest Weapon
John W. Gray didn’t just complain; he built an airtight case. His methodical approach to proving the association’s failure was a key factor in his success. The court record details the specific actions he took:
• He conducted personal observations and took photographs of the offending vehicles.
• He identified the specific units that had too many cars and were using their garages for storage instead of parking.
• He hired a private investigator to obtain vehicle registration information to definitively link cars to specific units.
The judge found this evidence to be “credible and convincing.” Gray’s detailed documentation painted a clear picture of the problem’s scale. According to his calculations, just 12 of the community’s 33 units were monopolizing 27 parking spaces, leaving very few for the remaining 21 units. This takeaway is clear: a well-documented, fact-based complaint is infinitely more powerful than anecdotal grievances.
3. Changing the Rules Doesn’t Erase Past Failures
In response to Gray’s formal complaint, the HOA Board took a strategic but ultimately unsuccessful step. Just days before the scheduled hearing, the Board reviewed and adopted a new set of parking rules. These new rules conveniently removed the two-car limit that the association had claimed was unenforceable.
The association then argued that this rule change made the petitioner’s original complaint “moot,” or irrelevant. They essentially claimed that since the rule he was complaining about no longer existed, there was no longer a case to be heard.
This strategy failed because the judge ruled on the HOA’s past failure to enforce the rules that were in effect at the time of the complaint. This is a crucial lesson in accountability. An organization cannot escape responsibility for its prior negligence simply by changing the rules at the last minute. The failure to act had already occurred, and the consequences of that failure were the basis of the lawsuit.
4. Ignoring Small Violations Can Create a Major Crisis
Nowhere was the HOA’s failure more obvious than in the case of a single inoperable red truck. The vehicle had been parked in the same spot for over a year, in clear violation of the rules prohibiting the storage of inoperable vehicles on the property.
Despite this long-term, visible violation, the hearing record shows the HOA’s response was both delayed and minimal. They sent only one letter to the unit owner about the truck, and this action was taken “long after” the violation began and only after Gray had formally complained.
The judge’s observation on this single vehicle underscores the wider impact of the board’s inaction:
Even the clearing of just one more space would have made the tenuous parking situation better.
The red truck was a symptom of a much larger disease. The failure to address one obvious, easily-proven violation demonstrated a systemic failure to manage the community’s shared resources, which directly contributed to the parking crisis and the disproportionate use of spaces by a few residents.
5. Enforcement Must Be Fair, Not Just Convenient
Perhaps the most telling detail from the hearing record was the apparent double standard in the HOA’s enforcement actions. The record explicitly mentions only two enforcement actions the association had taken regarding parking:
• Towing the petitioner’s own truck on one occasion for parking in a fire lane.
• Sending a single, very late letter about the red truck that had been parked for over a year.
The hearing record is devastatingly clear on this point. The only enforcement actions the board could point to were punitive or reactive: towing the truck of the very resident demanding action, and sending a single, belated letter about a year-old violation after he had filed a formal complaint. This wasn’t just inconsistent enforcement; it was a textbook case of selective enforcement that targeted the complainant while ignoring the systemic problem.
For an HOA’s authority to be respected and legally defensible, its rules must be applied fairly and consistently to all residents, not just when it is convenient or aimed at a perceived nuisance.
Conclusion: A Win for the Power of One
The judge’s order was a decisive victory for resident rights, affirming that an HOA’s duty to enforce its own rules is not optional. While the association was ordered to repay his $500 filing fee, the real prize was the validation that one resident, armed with credible evidence, can successfully hold a board accountable to the entire community. This case proves that meticulous documentation, persistence, and a refusal to be ignored are the great equalizers in community governance. It makes you wonder: what ‘unenforceable’ rules in your community are just waiting for a champion to demand they be followed?
Case Participants
Petitioner Side
John W. Gray(petitioner) Appeared on his own behalf
Respondent Side
Austin Baillio(attorney) Maxwell & Morgan PC Represented Mesa Coronado III Condominium Association
Andrea Lacombe(community manager) Curtiss Management Testified for Respondent
Neutral Parties
Kay Abramsohn(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
Felicia Del Sol(administrative staff) Transmitted decision electronically
ARIZ. REV. STAT. § 33-1804(B); Association Bylaws Article III, Sections 3 & 4; Association Bylaws Article VIII, Section 1
Outcome Summary
The ALJ granted the petition, concluding that the HOA Board’s unilateral amendment of the Bylaws on November 20, 2017, was an invalid action taken without the required vote of the Association members and without statutory notice, violating ARIZ. REV. STAT. § 33-1804(B) and the Association’s governing documents. The amendment was invalidated, and the Respondent was ordered to refund the Petitioner's filing fee and pay a $250.00 civil penalty.
Key Issues & Findings
Whether Sycamore Vista No. 8 Homeowners Association (Respondent) violated Association Bylaws Article III, Sections 3 & 4 and Article VIII, Section 1 in an action taken by the board on November 20, 2017.
The Board of Directors attempted a third amendment to the Bylaws on November 20, 2017, specifically changing the requirements for the Association's financial review (audit, review, or compilation). The ALJ concluded that this action was invalid because it was taken in the absence of a quorum of Association members voting in favor of the amendment, violating both the Bylaws and statutory notice requirements.
Orders: The petition was granted. The third amendment to the Association Bylaws taken on November 20, 2017, was invalidated. Respondent was ordered to pay the Petitioner the filing fee required by ARIZ. REV. STAT. § 32-2199.01 and pay a civil penalty of $250.00 to the Planned Community Hearing Office Fund.
Topics: HOA Governance, Bylaws Amendment, Open Meeting Law, ARS 33-1804, Membership Vote, Filing Fee Refund
Additional Citations:
ARIZ. REV. STAT. § 33-1804(B)
ARIZ. REV. STAT. § 32-2199.02(A)
ARIZ. REV. STAT. § 32-2199.05
Powell v. Washburn, 125 P.3d 373 (Ariz. 2006)
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Video Overview
Audio Overview
Decision Documents
19F-H1918001-REL Decision – 661797.pdf
Uploaded 2026-01-23T17:25:37 (143.2 KB)
19F-H1918001-REL Decision – 696205.pdf
Uploaded 2026-01-23T17:25:40 (169.8 KB)
Briefing Doc – 19F-H1918001-REL
Briefing Document: Janicek v. Sycamore Vista No. 8 Homeowners Association
Executive Summary
This document provides a comprehensive analysis of the Administrative Law Judge (ALJ) Decision in the case of Jay A. Janicek v. Sycamore Vista No. 8 Homeowners Association (No. 19F-H1918001-REL-RHG). The central issue was the validity of a bylaw amendment enacted by the Association’s Board of Directors on November 20, 2017, without a vote of the general homeowner membership.
The ALJ ruled decisively in favor of the Petitioner, Jay Janicek, finding that the Board’s action was invalid. The decision hinged on a critical interpretation of the Association’s governing documents, concluding that the term “members” in the context of bylaw amendments unambiguously refers to the homeowner membership, not the Board of Directors. The ruling established that the Board does not have the authority to amend bylaws where that power is reserved for the membership.
Furthermore, the ALJ concluded that the Board’s action violated Arizona’s Open Meeting Law (A.R.S. § 33-1804) by failing to provide the required notice to homeowners for a meeting concerning a proposed bylaw amendment. As a result, the amendment was invalidated, and the Association was ordered to pay the Petitioner’s filing fee and a civil penalty of $250.
Case Background and Procedural History
Parties and Jurisdiction
• Petitioner: Jay A. Janicek, a property owner within the Sycamore Vista subdivision and a member of the Respondent Association.
• Respondent: Sycamore Vista No. 8 Homeowners Association (“the Association”), a homeowners’ association in Tucson, Arizona, governed by its Covenants, Conditions, and Restrictions (CC&Rs) and overseen by a Board of Directors.
• Adjudicating Body: The Arizona Office of Administrative Hearings (OAH), an independent state agency, which received the case on referral from the Arizona Department of Real Estate.
The Central Dispute
The core of the dispute was an action taken by the Association’s Board of Directors during a regular meeting on November 20, 2017. At this meeting, the Board, with three of five directors present, voted to approve a third amendment to the Association’s Bylaws. The amendment altered Article VIII Section 6(d), changing the requirement for an annual financial check from:
“cause an annual audit of the Association books to be made by a public accountant at the completion of each fiscal year”
“cause an annual audit, review, or compilation of the Associations financial records to be made by a public accountant within 180 days after the end of the HOA’s fiscal year.”
The Petitioner contended this action was invalid because it was undertaken without a vote of the general Association membership, as he believed the governing documents required.
Timeline of Adjudication
1. July 25, 2018: Petitioner files a petition with the Arizona Department of Real Estate.
2. September 05, 2018: An initial evidentiary hearing is held before the OAH.
3. September 25, 2018: The OAH issues an ALJ Decision in the Petitioner’s favor.
4. October 23, 2018: The Respondent submits a Request for Rehearing.
5. November 07, 2018: The Department grants the rehearing request and refers the matter back to the OAH.
6. March 05, 2019: A rehearing is conducted, based on legal briefs and closing arguments without new evidence.
7. March 25, 2019: The final ALJ Decision is issued, reaffirming the initial ruling in favor of the Petitioner.
Analysis of Governing Documents and Statutes
The case decision rested on the interpretation of specific articles within the Association’s Bylaws and relevant Arizona state statutes.
Key Bylaw Provisions
Article
Section
Description
Article IV
Section 1
States that the “affairs of this Association shall be managed by a Board of not less than three (3) nor more than five (5) directors.”
Article VI
Section 1
Establishes that regular meetings of the Board of Directors shall be held monthly without notice.
Article VI
Section 2
Governs special meetings of the Board, requiring not less than three days’ notice to each Director.
Article VI
Section 3
Defines a quorum for Board meetings as “a majority of the number of Directors.”
Article VII
Section 1
Outlines the Powers and Duties of the Board of Directors. This section does not explicitly grant the Board the power to amend the Bylaws.
Article XIII
Section 1
(The central provision in the dispute) States: “These Bylaws may be amended at a regular or special meeting of the Board of Directors of the Association by a vote of a majority of a quorum of members present in person or by proxy.”
Relevant Arizona Statutes
• A.R.S. § 33-1804 (Open Meeting Law): This statute was central to the Petitioner’s argument and the ALJ’s final decision.
◦ Subsection (A): Requires that all meetings of the members’ association and the board of directors be open to all members of the association.
◦ Subsection (B): Mandates specific notice requirements for any meeting of the members, stating that notice “shall also state the purpose for which the meeting is called, including the general nature of any proposed amendment to the declaration or bylaws.”
◦ Subsection (F): The ALJ noted that this section codifies the legislative intent of the statute, which, as cited from a Governor’s message, is to “promote transparency and participation for all residents in homeowners’ association governance.”
Arguments of the Parties
Petitioner’s Position (Jay Janicek)
The Petitioner’s case was built on a textual interpretation of the Bylaws and adherence to state law.
• Interpretation of “Members”: The Petitioner argued that the word “members” in Article XIII, Section 1 refers to the general homeowner membership of the Association, not the members of the Board of Directors.
• Textual Differentiation: The drafters of the Bylaws intentionally used the words “members” and “directors” distinctly throughout the document. Where the intent was to refer to the Board, the word “Director” was specifically used (e.g., Article VI).
• Proxy Voting: The inclusion of the term “proxy” in Article XIII supports the argument that the vote is for the general membership, as Board members are not permitted to vote by proxy.
• Lack of Explicit Power: Article VII, which details the Board’s powers, does not grant the authority to amend the Bylaws, implying such power is reserved for the membership.
• Statutory Violation: The Board’s action violated A.R.S. § 33-1804 because the required notice for a meeting concerning a bylaw amendment was not provided to the general membership.
• Legal Precedent: The Petitioner cited Powell v. Washburn, an Arizona Supreme Court case holding that restrictive covenants (which he argued include the Bylaws) should be interpreted to give effect to the intention of the parties as determined from the entire document.
Respondent’s Position (Sycamore Vista No. 8 HOA)
The Association argued that its actions were a valid exercise of the Board’s authority.
• Broad Authority: The Respondent cited Article IV, which states the “affairs of this Association shall be managed by a Board,” to assert its general authority.
• Valid Board Meeting: The amendment occurred at a regular monthly Board meeting as allowed by Article VI. The meeting had three directors present, which constituted a valid quorum for transacting business.
• Interpretation of Article XIII: The Respondent argued that the phrase “at a regular or special meeting of the Board of Directors” in Article XIII indicates that the Board is the body empowered to make the amendment, and the word “members” in that context refers to the members of the Board.
• No Open Meeting Law Violation: The Respondent contended its conduct was not a violation because the action occurred during a regular Board meeting with a proper quorum of directors.
Administrative Law Judge’s Decision and Rationale
The ALJ’s conclusions were unequivocal, fully adopting the Petitioner’s interpretation of the governing documents and state law.
Conclusions of Law
• Burden of Proof: The ALJ found that the Petitioner successfully sustained his burden of proving by a preponderance of the evidence that the Respondent violated A.R.S. § 33-1804.
• Interpretation of “Members” vs. “Directors”: The decision states that the governing documents are clear: “‘members’ refers to the body of owners who make up the membership of the Association, and ‘directors’ refers to the few who are elected to the membership’s Board.” The ALJ found the differentiation to be intentional by the drafters.
• Avoiding Absurdity: The decision holds that construing the Bylaws to allow the Board to amend them would create an absurdity. The ALJ wrote, “The voices of few cannot speak for all, unless all have bestowed those few with the power and authority to speak on their behalf.”
• Violation of Statute and Bylaws: The ALJ concluded that the Board’s action on November 20, 2017, violated both A.R.S. § 33-1804(B) due to a lack of notice and Article III of the Association Bylaws.
• Rejection of Respondent’s Argument: The decision explicitly states, “The Tribunal is not swayed by Respondent’s closing arguments.”
Final Order
Based on the findings and conclusions, the ALJ issued the following binding order:
1. Petition Granted: The Petitioner’s petition was officially granted.
2. Amendment Invalidated: The third amendment to the Association Bylaws, as enacted on November 20, 2017, was invalidated.
3. Fees and Penalties: The Respondent was ordered to pay the Petitioner’s filing fee and a civil penalty of $250.00 to the Planned Community Hearing Office Fund.
Study Guide – 19F-H1918001-REL
Study Guide: Janicek v. Sycamore Vista No. 8 Homeowners Association
Short-Answer Quiz
1. Who were the primary parties in the case No. 19F-H1918001-REL-RHG, and what were their respective roles?
2. What specific action taken by the Respondent on November 20, 2017, prompted the Petitioner to file a complaint?
3. According to the Petitioner, what was the crucial difference in meaning between the terms “members” and “directors” as used in the Association’s Bylaws?
4. What was the Respondent’s central argument for why the Board of Directors had the authority to amend the Bylaws at its regular meeting?
5. What is Arizona’s Open Meeting Law, and how did the Petitioner argue that the Respondent violated it?
6. What was the financial concern that the Petitioner argued could potentially impact him as a homeowner due to the Board’s amendment?
7. Describe the procedural history of this case after the initial Administrative Law Judge (ALJ) Decision on September 25, 2018.
8. What case did the Petitioner cite regarding the interpretation of restrictive covenants, and what principle did it establish?
9. What is the legal standard of proof required in this proceeding, and how is it defined in the document?
10. What was the final outcome of the case, including the specific orders issued by the Administrative Law Judge?
——————————————————————————–
Answer Key
1. The primary parties were Jay A. Janicek, the Petitioner, and the Sycamore Vista No. 8 Homeowners Association, the Respondent. The Petitioner is a property owner and member of the Association who brought the legal action, while the Respondent is the homeowners’ association governed by a Board of Directors.
2. On November 20, 2017, the Respondent’s Board of Directors held a regular meeting where they voted to approve a third amendment to the Association’s Bylaws. This amendment changed the requirement for an “annual audit…by a public accountant” to an “annual audit, review, or compilation” of financial records.
3. The Petitioner argued that the term “members” in Article XIII of the Bylaws refers to the entire body of property owners in the Association, not the Board of Directors. He contended that if the drafter had intended to give amendment power to the Board, the specific word “directors” would have been used, as it was in other sections of the Bylaws.
4. The Respondent argued that its actions were proper because the Bylaws empower the Board to manage the Association’s affairs at regular monthly meetings. They contended that since a quorum of three directors was present at the November 20, 2017 meeting, the Board was empowered to transact business, which they interpreted to include amending the bylaws as described in Article XIII.
5. Arizona’s Open Meeting Law is ARIZ. REV. STAT. § 33-1804, which requires meetings of a homeowners’ association’s board and members to be open to all members. The Petitioner argued the Respondent violated this by amending a bylaw without proper notice to the full membership, which is required for any proposed bylaw amendment, thus undermining the law’s legislative intent of transparency.
6. The Petitioner was concerned that the amendment weakened the financial oversight of the Association. It modified a requirement for a third-party audit to a less stringent “review, or compilation,” creating a risk that the Association could perform its own financial checks, and as a homeowner, he had an interest in ensuring the Association’s financials were correct.
7. After the initial decision in the Petitioner’s favor on September 25, 2018, the Respondent submitted a Request for Rehearing on October 23, 2018. The Department of Real Estate granted this request on November 7, 2018, and the matter was referred back to the Office of Administrative Hearings for a rehearing, which ultimately took place on March 5, 2019.
8. The Petitioner cited Powell v. Washburn. This case established the principle that restrictive covenants should be interpreted to give effect to the intention of the parties, as determined from the language of the entire document and the purpose for which the covenants were created.
9. The legal standard of proof was a “preponderance of the evidence.” The document defines this as “such proof as convinces the trier of fact that the contention is more probably true than not” and as evidence with the most “convincing force” that inclines an impartial mind to one side of an issue.
10. The final outcome was a ruling in favor of the Petitioner. The ALJ granted the petition, invalidated the third amendment to the Bylaws that was passed on November 20, 2017, and ordered the Respondent to pay the Petitioner’s filing fee and a civil penalty of $250.00.
——————————————————————————–
Essay Questions
1. Analyze the Administrative Law Judge’s reasoning in differentiating between the terms “members” and “directors.” How did the principle of avoiding absurdity and considering the drafter’s intent, as seen throughout the Bylaws, contribute to the final decision?
2. Discuss the interplay between the Association’s governing documents (CC&Rs and Bylaws) and state law (ARIZ. REV. STAT. § 33-1804). Explain which authority took precedence in this case and why the Board’s actions were found to violate both.
3. Evaluate the legal strategy employed by the Petitioner, Jay A. Janicek. Consider his use of specific Bylaw articles, the citation of Powell v. Washburn, and his argument regarding the legislative intent of the Open Meeting Law.
4. Examine the arguments presented by the Respondent, Sycamore Vista No. 8 Homeowners Association. Why did the Judge find their interpretation of the Bylaws unconvincing, despite their claims that the Board was empowered to transact business with a quorum present?
5. Based on the text, discuss the broader implications of this ruling for homeowners’ associations in Arizona. How does this decision reinforce the principles of transparency and the limitations of a Board’s power relative to the association’s general membership?
——————————————————————————–
Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An independent judge, in this case Jenna Clark, who presides over administrative hearings at the Office of Administrative Hearings (OAH).
ARIZ. REV. STAT. § 33-1804
A section of the Arizona Revised Statutes, also known as Arizona’s Open Meeting Law, which mandates that meetings of an HOA’s members and board of directors must be open to all members and requires specific notice for meetings where bylaw amendments will be considered.
Bylaws
A set of rules that govern the internal operations of the homeowners’ association. In this case, key articles discussed include Article VI (Meeting of Directors), Article VII (Powers of the Board), and Article XIII (Amendments).
Covenants, Conditions, and Restrictions. These are governing documents that form an enforceable contract between the Association and each property owner, empowering the Association to control certain aspects of property use.
Member
As defined in the Association’s documents, a person entitled to membership by virtue of being a property owner within the Sycamore Vista subdivision. The Judge concluded this term refers to the body of owners, not the Board of Directors.
Office of Administrative Hearings (OAH)
An independent state agency in Arizona, unaffiliated with the parties, responsible for conducting evidentiary hearings and making legal decisions in disputes like this one.
Petitioner
The party who files a petition initiating a legal case. In this matter, the Petitioner was Jay A. Janicek, a homeowner in the Association.
Preponderance of the evidence
The burden of proof in this case. It is defined as evidence that is more likely true than not and has the most convincing force, sufficient to incline a fair and impartial mind to one side of an issue.
The authority to represent someone else, especially in voting. The document notes that the term “proxy” applies to votes of the members, as members of the Board are not permitted to vote by proxy.
Quorum
The minimum number of members of a deliberative assembly necessary to conduct the business of that group. For the Respondent’s Board of Directors, a quorum is defined as a majority of the number of Directors.
Respondent
The party against whom a petition is filed. In this matter, the Respondent was the Sycamore Vista No. 8 Homeowners Association.
Restrictive Covenants
Legal obligations imposed in a deed to real property to do or not do something. The Petitioner argued this term included the CC&Rs, Bylaws, and rules of the Association.
Tribunal
A body established to settle certain types of dispute. In this document, it refers to the Administrative Law Judge at the Office of Administrative Hearings.
Blog Post – 19F-H1918001-REL
Select all sources
696205.pdf
No emoji found
Loading
19F-H1918001-REL-RHG
1 source
The provided text is an Administrative Law Judge Decision from the Office of Administrative Hearings regarding a dispute between Jay A. Janicek (Petitioner) and the Sycamore Vista No. 8 Homeowners Association (Respondent). The core issue of the case, designated No. 19F-H1918001-REL-RHG, revolves around whether the Homeowners Association violated its Bylaws and Arizona state statute (§ 33-1804) when its Board of Directors unilaterally amended the Bylaws on November 20, 2017. The Administrative Law Judge determined that the Board’s action was invalid because the power to amend the Bylaws was delegated to the Association’s general membership, not the Board of Directors, and the Board failed to provide the required notice for such an amendment. Consequently, the Petitioner’s request was granted, the amendment was invalidated, and the Association was ordered to pay the Petitioner’s filing fee and a civil penalty.
What central conflict drove the administrative hearing and subsequent rehearing process?
How did governing documents and Arizona statutes shape the final legal decision?
What ultimate implications does this ruling have for homeowners association governance and member rights?
Based on 1 source
Case Participants
Petitioner Side
Jay A. Janicek(petitioner) Appeared on his own behalf at initial hearing; Observed rehearing
Jake Kubert(petitioner attorney) Dessaules Law Group Appeared at rehearing
Petitioner was deemed the prevailing party on Issues 2 (retention of election materials) and 3 (open meetings violation). Issue 1 (Bylaw 2.4 objection rule) was dismissed. Respondent was ordered to pay Petitioner $1,000.00, representing the filing fee.
Why this result: Petitioner failed to establish a violation of Bylaw 2.4 as the evidence did not show that a Director was restricted by the Member waiver clause from raising concerns about election validity after the meeting adjourned.
Key Issues & Findings
Respondent violated Bylaw 2.4 when it acted on Mr. Schoeffler’s objection to the election results raised the day after the Annual Meeting.
Petitioner alleged the HOA violated Bylaw 2.4 by investigating or acting upon an objection to election results that was raised by a Director after the Annual Meeting adjourned, thereby waiving the claim according to the bylaw.
Orders: Petition dismissed as to Issue 1.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
Desert Ranch Bylaw 2.4
Respondent violated A.R.S. § 33-1812(A)(7) when it discarded the ballot envelopes at or about the time of the election.
The HOA discarded the ballot envelopes at or about the time of the election, which violated the statutory mandate to retain ballots, envelopes, and related materials for at least one year.
Orders: Petitioner established violation and was deemed the prevailing party regarding this issue. No Civil Penalty was found appropriate. The initial order included an order for Respondent to pay Petitioner the $1,000.00 filing fee.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1812(A)(7)
Respondent violated A.R.S. § 33-1804 when it held meetings that were closed and/or without proper notice.
The HOA Board members met with an attorney following the Annual Meeting without providing any notice of the upcoming meeting and/or failing to provide notice that the meeting was closed because it involved legal advice from an attorney.
Orders: Petitioner established violation and was deemed the prevailing party regarding this issue. No Civil Penalty was found appropriate. The initial order included an order for Respondent to pay Petitioner the $1,000.00 filing fee.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1804
Analytics Highlights
Topics: HOA Election Dispute, Records Retention, Open Meeting Violation, Filing Fee Refund
Additional Citations:
A.R.S. § 33-1812(A)(7)
A.R.S. § 33-1804
Desert Ranch Bylaw 2.4
A.R.S. § 41-2198.01
Video Overview
Audio Overview
Decision Documents
18F-H1818035-REL Decision – 655766.pdf
Uploaded 2026-01-23T17:23:30 (113.2 KB)
18F-H1818035-REL Decision – 678304.pdf
Uploaded 2026-01-23T17:23:34 (117.5 KB)
18F-H1818035-REL Decision – 678305.pdf
Uploaded 2026-01-23T17:23:37 (38.8 KB)
Briefing Doc – 18F-H1818035-REL
Barrs v. Desert Ranch HOA: Case Briefing
Executive Summary
This briefing document outlines the legal dispute between Petitioner Tom Barrs and the Desert Ranch Homeowners’ Association (HOA) concerning the HOA’s March 18, 2017, Board of Directors election. The petitioner alleged that the HOA improperly overturned the initial election results, mishandled election materials, and held meetings in violation of state law and its own bylaws.
An initial ruling by an Administrative Law Judge found the HOA in violation of state statutes regarding the retention of election materials (A.R.S. § 33-1812(A)(7)) and open meeting laws (A.R.S. § 33-1804). However, the judge ruled against the petitioner on the central claim that the HOA violated Bylaw 2.4 by investigating the election after the annual meeting had concluded.
The petitioner requested and was granted a rehearing, which focused exclusively on the alleged violation of Bylaw 2.4. The final decision on rehearing, issued December 26, 2018, reaffirmed the initial ruling. The judge concluded that the investigation was properly initiated by a board member, not a general member, and that the bylaw restricting post-meeting objections did not apply to the Board of Directors itself. Consequently, the petition regarding the overturning of the election was dismissed.
Case Overview
This document details the findings of fact and conclusions of law in the administrative case No. 18F-H1818035-REL-RHG, heard in the Arizona Office of Administrative Hearings.
Case Detail
Information
Case Number
18F-H1818035-REL-RHG
Petitioner
Tom Barrs
Respondent
Desert Ranch Homeowners’ Association
Presiding Judge
Tammy L. Eigenheer, Administrative Law Judge
Initial Hearing
Not specified in document
Rehearing Date
December 6, 2018
Decision Date
December 26, 2018
Key Individuals:
• Tom Barrs: Petitioner.
• Catherine Overby: HOA President, appeared for Respondent.
• Brian Schoeffler: HOA Vice President, appeared for Respondent; candidate in the disputed election.
• Jerome Klinger: Candidate initially announced as a winner of the election.
• Patrick Rice: Board member at the time of the election.
Chronology of the 2017 Election Dispute
1. Pre-March 18, 2017: Absentee ballots are sent to HOA members listing Catherine Overby and Brian Schoeffler as candidates, with a space for a write-in.
2. March 18, 2017: At the Annual Meeting, ballots are submitted and counted. Catherine Overby and write-in candidate Jerome Klinger are announced as the winners. No members object before the meeting is adjourned. Immediately following, board member Patrick Rice gathers the ballots and expresses concerns about the results.
3. March 19, 2017: Brian Schoeffler sends an email to board members asking for a review and a decision on whether a “revote” is necessary.
4. March 20, 2017: Catherine Overby emails the HOA membership, stating the election has been “contested” and that the board must investigate. She also asserts that bylaws do not allow write-in candidates, meaning she and Schoeffler were the new directors based on the vote count.
5. March 29, 2017: Certain board members, including Overby and Rice, meet with an attorney at Overby’s house. They discover that duplicate and proxy ballots were improperly counted.
6. Post-March 29, 2017: The board determines the valid votes resulted in a tie between Schoeffler and Klinger. A run-off election is scheduled.
7. April 29, 2017: The run-off election is held. Brian Schoeffler is announced as the winner.
8. May 10, 2017: The Board of Directors holds an organizational meeting.
Procedural History and Allegations
Initial Petition and Hearing
• March 19, 2018: Tom Barrs files a single-issue HOA Dispute Petition with the Arizona Department of Real Estate, paying a $500 fee but including a four-page narrative alleging multiple violations.
• April 13, 2018: Barrs files an amended petition, adding an alleged violation of A.R.S. § 33-1812.
• July 30, 2018: Barrs pays to convert the petition to a multiple-issue dispute and submits a “Clarification of Three Issues alleged in Petition.”
The three core issues alleged by the petitioner were:
1. Improper Overturning of Election: The Board of Directors improperly removed Jerome Klinger by overturning the March 18, 2017 election results. The petitioner argued the challenge by the third candidate was barred by Bylaw 2.4, and the methods used violated recall protocols under A.R.S. § 33-1813 and Bylaw 3.3.
2. Improper Handling of Election Materials: The board violated A.R.S. § 33-1812 by disposing of election materials (ballot envelopes) required to be kept for one year and by selectively invalidating votes cast on invalid ballots.
3. Improperly Held Meetings: Meetings related to the 2017 election were held as closed sessions or without proper notice in violation of A.R.S. § 33-1804.
Initial Decision
Following the initial hearing, the Administrative Law Judge (ALJ) issued a decision with the following conclusions:
• Violation Found: The Respondent (HOA) violated A.R.S. § 33-1812(A)(7) by discarding the ballot envelopes around the time of the election.
• Violation Found: The Respondent violated A.R.S. § 33-1804 by holding meetings that were closed and/or without proper notice.
• No Violation Found: The Petitioner failed to prove that the Respondent violated Bylaw 2.4.
Rehearing and Final Order
• October 1, 2018: Barrs files a request for rehearing, citing misconduct, insufficient penalties, errors of law, and a decision not supported by evidence.
• November 2, 2018: The Commissioner of the Arizona Department of Real Estate grants the rehearing request.
• December 6, 2018: At the rehearing, the petitioner states he is only seeking reconsideration of Issue 1 (the improper overturning of the election) and not the lack of penalties for Issues 2 and 3.
Judicial Analysis and Final Rulings
The final decision focused solely on whether the HOA’s actions violated its own bylaws regarding election challenges.
Key Bylaw and Legal Standard
• Desert Ranch Bylaw 2.4: The central bylaw in dispute states:
• Burden of Proof: The petitioner bore the burden of proving the 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.”
Analysis of Issue 1: Violation of Bylaw 2.4
• Petitioner’s Argument: Mr. Barrs argued that because candidate Brian Schoeffler did not object to the election results before the March 18, 2017 meeting adjourned, Bylaw 2.4 barred the board from investigating his concerns raised the following day via email. The petitioner contended that board members are also “Members” and thus are bound by this rule.
• Evidence Presented: Testimony established that Patrick Rice, acting as a Board member, expressed concerns with the vote count immediately after the meeting adjourned. This, not Mr. Schoeffler’s subsequent email, initiated the board’s investigation. At the rehearing, the petitioner presented selected audio clips he had recorded to support his arguments but did not provide the entire recording.
• Conclusion of Law: The ALJ made a critical distinction between the terms used in the HOA’s bylaws.
◦ The terms “Member,” “Directors,” and “Board of Directors” were found to have specific, non-interchangeable meanings throughout the bylaws.
◦ Bylaw 2.4 applies specifically to a “Member.”
◦ The petitioner made no showing that a “Director” or the “Board of Directors” could not raise questions about the validity of election results after a meeting had adjourned.
◦ Since the investigation was initiated by a board member (Rice) and not exclusively by a member’s untimely objection (Schoeffler), the board’s actions did not violate Bylaw 2.4.
Final Order
Based on the analysis from the rehearing, the judge issued the following order:
IT IS ORDERED that the Petition be dismissed as to Issue 1.
This order, resulting from a rehearing, is legally binding on the parties. Any appeal must be filed with the superior court within thirty-five days of the order’s service date.
Study Guide – 18F-H1818035-REL
Study Guide: Barrs v. Desert Ranch Homeowners’ Association (No. 18F-H1818035-REL-RHG)
This guide provides a comprehensive review of the Administrative Law Judge Decision in the case between Petitioner Tom Barrs and Respondent Desert Ranch Homeowners’ Association. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms to facilitate a thorough understanding of the case’s facts, arguments, and legal conclusions.
——————————————————————————–
Short-Answer Quiz
Answer each of the following questions in 2-3 sentences based on the provided source documents.
1. Who were the primary parties involved in case No. 18F-H1818035-REL-RHG, and what were their roles?
2. What specific event on March 18, 2017, served as the catalyst for the entire legal dispute?
3. What were the initial, announced results of the election held at the March 18, 2017, Annual Meeting?
4. According to the Petitioner, how did the HOA Board violate Bylaw 2.4 following the election?
5. In the initial hearing, which two of the Petitioner’s allegations were found to be valid violations committed by the Respondent?
6. Why did the Commissioner of the Arizona Department of Real Estate grant the Petitioner’s request for a rehearing?
7. During the rehearing on December 6, 2018, what was the single issue that the Petitioner chose to focus on for reconsideration?
8. According to the Administrative Law Judge’s findings, what action initiated the Board’s investigation into the election results, separate from Brian Schoeffler’s email?
9. How did the Judge’s interpretation of the terms “Member” and “Director” in the bylaws defeat the Petitioner’s primary argument on rehearing?
10. What was the final order issued by the Administrative Law Judge regarding Issue 1 after the conclusion of the rehearing?
——————————————————————————–
Answer Key
1. The primary parties were Tom Barrs, who served as the Petitioner, and the Desert Ranch Homeowners’ Association, which was the Respondent. The Petitioner, Mr. Barrs, appeared on his own behalf, while the Respondent was represented by its President, Catherine Overby, and Vice President, Brian Schoeffler.
2. The dispute was triggered by the election for two vacant seats on the HOA Board of Directors held during the Annual Meeting on March 18, 2017. The subsequent actions by the Board to investigate and ultimately overturn the initial results of this election led the Petitioner to file a dispute.
3. The initially announced results of the March 18, 2017, election declared that Ms. Catherine Overby and Mr. Jerome Klinger were the winning candidates. No members present at the meeting raised an objection to these announced results before the meeting was adjourned.
4. The Petitioner argued that the Board violated Bylaw 2.4 by acting on an objection to the election results raised by Brian Schoeffler the day after the meeting. The bylaw states that any member who fails to object to an irregularity during a meeting “forever waives that claim,” and the Petitioner argued Mr. Schoeffler, as a member, had waived his right to object.
5. In the initial hearing, the Judge found that the Petitioner successfully established two violations by the Respondent. These were a violation of A.R.S. § 33-1812(A)(7) for discarding ballot envelopes and a violation of A.R.S. § 33-1804 for holding closed meetings without proper notice.
6. The Commissioner granted the rehearing “for the reasons outlined in the Petitioner’s Rehearing Request.” The Petitioner’s request cited multiple grounds, including misconduct by the prevailing party, errors of law, and that the initial findings of fact were not supported by the evidence or were contrary to law.
7. At the rehearing, the Petitioner stated he was only seeking reconsideration of the initial decision as it related to Issue 1. This issue was the allegation that the Board improperly overturned the election results in violation of Bylaw 2.4.
8. The Judge found that the Board’s investigation was initiated by Mr. Patrick Rice, a Board member at the time, who expressed his concerns with the vote “immediately after the Annual Meeting adjourned.” This occurred prior to and independent of the email sent by Brian Schoeffler the following day.
9. The Judge noted that throughout the bylaws, the terms “Member,” “Directors,” and “Board of Directors” were used with specific and non-interchangeable meanings. Because the Petitioner made no showing that a “Director” (like Mr. Rice) could not raise questions after a meeting, the restriction on “Members” in Bylaw 2.4 did not apply to the Board’s actions.
10. The final order stated that the Petition was to be dismissed as to Issue 1. The Judge concluded that the Petitioner failed to sustain his burden of proof to establish that the Respondent had violated Bylaw 2.4.
——————————————————————————–
Essay Questions
1. Analyze the timeline of events from the Annual Meeting on March 18, 2017, to the run-off election on April 29, 2017. Discuss the key actions taken by the HOA Board—including the meeting with an attorney and the discovery of invalid ballots—and explain how these actions led to the legal dispute.
2. Detail the three distinct issues the Petitioner alleged in his “Clarification of Three Issues alleged in Petition.” Based on the outcome of the initial hearing, evaluate the success of these claims and explain why the Petitioner prevailed on some issues but not others.
3. The Petitioner’s case on rehearing hinged on the interpretation of Bylaw 2.4. Construct the Petitioner’s argument regarding this bylaw and then fully explain the Administrative Law Judge’s legal reasoning for ultimately rejecting it, focusing on the distinction between “Members” and “Directors.”
4. Discuss the concept of “burden of proof” as it is defined and applied in this case. Explain the “preponderance of the evidence” standard and analyze how the Petitioner’s failure to meet this standard led to the dismissal of Issue 1 on rehearing.
5. Examine the procedural history of the case, from the initial single-issue petition to the final binding order after rehearing. What were the key procedural steps, such as amending the petition and filing for a rehearing, and how did these steps shape the final scope and outcome of the case?
——————————————————————————–
Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The official who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions. In this case, the ALJ was Tammy L. Eigenheer.
A.R.S.
Abbreviation for Arizona Revised Statutes, the collection of laws for the State of Arizona. The Petitioner alleged violations of several statutes, including A.R.S. § 33-1813, § 33-1811, § 33-1812, and § 33-1804.
Bylaw 2.4
The specific bylaw of the Desert Ranch HOA that was the central focus of the rehearing. It states, “Any Member who fails to object to any perceived or actual irregularity at the meeting… forever waives that claim.”
Burden of Proof
The legal obligation of a party in a dispute to provide sufficient evidence to support their claim. In this case, the Petitioner bore the burden of proof to establish the alleged violations.
Department
The Arizona Department of Real Estate, the state agency with which the Homeowners Association Dispute Process Petition was filed.
Director
An elected member of the HOA’s Board of Directors. The ALJ’s decision distinguished this role from that of a general “Member.”
Homeowners Association (HOA)
The governing organization for the planned community of Desert Ranch, responsible for enforcing community documents and statutes.
Member
A homeowner within the planned community. The ALJ’s decision emphasized that in the bylaws, this term has a specific meaning that is not interchangeable with “Director.”
Petitioner
The party who initiates a legal action or petition. In this case, the Petitioner was Tom Barrs.
Preponderance of the Evidence
The evidentiary standard required for the Petitioner to win the case. It is defined as proof that convinces the trier of fact that a contention is “more probably true than not.”
Rehearing
A second hearing of a case, granted in this instance by the Commissioner of the Arizona Department of Real Estate, to reconsider the initial decision based on alleged errors.
Respondent
The party against whom a petition is filed. In this case, the Respondent was the Desert Ranch Homeowners’ Association.
Blog Post – 18F-H1818035-REL
5 Shocking Lessons from an HOA Election Gone Wrong
Introduction: When “The Rules” Aren’t What You Think
Homeowners’ Associations (HOAs) run on rules. From lawn maintenance to paint colors, the governing documents are the ultimate authority. But what happens when the rules themselves become the center of a dispute? Imagine this scenario: your HOA holds its annual board election. The results are announced, the winners are declared, and everyone goes home. Then, the next day, the board decides to overturn the result.
This isn’t a hypothetical. It’s the core of a real-life legal case that reveals surprising truths about community governance, the power of a single word, and what can happen when an election goes off the rails.
——————————————————————————–
1. An Election Isn’t Over Until the Board Says It’s Over
The dispute began at the Desert Ranch Homeowners’ Association Annual Meeting on March 18, 2017. The ballots for two open board seats were counted, and Catherine Overby and Jerome Klinger were announced as the winning candidates. Crucially, no members present raised an objection before the meeting adjourned. By all appearances, the election was over.
But it wasn’t. Immediately after the meeting, a board member, Mr. Rice, gathered the ballots and expressed his concerns with the election results. The next day, the losing candidate, Brian Schoeffler, sent an email asking the board to “review the situation” and consider a “revote.” The board then formally announced that the election had been contested and that it was obligated to investigate.
After consulting an attorney, the board discovered several ballot irregularities, including duplicate ballots and an improperly counted proxy ballot. This new tally resulted in a tie between Mr. Schoeffler and Mr. Klinger. The board then forced a run-off election, which Mr. Schoeffler ultimately won. While the losing candidate’s email drew attention, the true turning point had already occurred moments after the meeting ended, when a board member himself questioned the results—an act that would prove legally decisive.
2. A Single Word in the Bylaws Can Change Everything
The homeowner who filed the legal petition, Tom Barrs, built his case on a seemingly straightforward rule in the HOA’s bylaws. He argued that any challenge to the election was invalid because it wasn’t raised before the Annual Meeting adjourned. The bylaw in question, Section 2.4, reads:
Any Member who fails to object to any perceived or actual irregularity at the meeting (whether procedural, parliamentary, substantive or technical) forever waives that claim.
The petitioner’s argument was simple: the challenge was raised after the meeting by a “Member,” so the claim was waived. The case seemed open-and-shut.
However, the Administrative Law Judge made a critical distinction that decided the case. The judge noted that throughout the bylaws, the terms “Member,” “Directors,” and “Board of Directors” were used with specific meanings and were not interchangeable. While a Member had to object during the meeting, the judge found no rule preventing a Director from raising questions later.
Because a board member, Mr. Rice, had expressed concerns immediately following the meeting, the board’s subsequent investigation was deemed permissible. This razor-thin interpretation of a single word highlights the immense power that definitions and precise language hold in governing documents.
3. The Board Broke the Law, But Still Won on the Main Issue
In a surprising twist, the judge determined that the HOA had, in fact, violated Arizona state law on two separate counts during the election controversy. The petitioner successfully proved that the board failed to follow established statutes.
The two violations established in the initial hearing were:
• Improper Destruction of Ballots: The HOA violated A.R.S. § 33-1812(A)(7) when it destroyed all of the ballot envelopes around the time of the election. This act made a true, verifiable recount impossible, directly undermining the integrity of the very election the board was claiming to investigate.
• Improper Meetings: The HOA violated A.R.S. § 33-1804 by holding closed meetings without providing proper notice to the members, particularly a meeting at the home of a board member, Ms. Overby, where the decision to hold a run-off was made. By making these critical decisions behind closed doors, the board created an appearance of secrecy that fueled the dispute and eroded member trust.
Despite proving these clear legal violations, the petitioner still lost on his primary complaint—overturning the run-off and reinstating the original election results. This outcome serves as a stark example of a pyrrhic victory. You can successfully prove that an organization broke the rules without achieving your ultimate goal in the dispute.
4. An Investigation Can Uncover a Cascade of Deeper Problems
The board’s decision to contest its own election results was controversial, but the subsequent investigation brought a cascade of other procedural failures to light. The initial challenge acted like a pulled thread that unraveled a series of previously unknown mistakes.
During the board’s meeting with its attorney, it was discovered that “duplicate ballots and a proxy ballot that were improperly counted” had skewed the original vote. This alone was enough to call the first result into question.
Furthermore, the board itself asserted that its own bylaws “did not allow for a write-in candidate.” This was a significant admission, as one of the original winners, Jerome Klinger, had been a write-in. If true, his victory would have been invalid from the start, regardless of any other challenges. The board’s investigation, initiated to resolve one perceived error, ended up exposing its own systemic incompetence—from improperly counting ballots to being unaware of its own rules regarding write-in candidates. The effort to fix the election proved the election was fundamentally broken from the start.
5. An HOA Board Can Investigate Itself
The petitioner’s case rested on the idea that board members are also “Members” of the association and are therefore bound by the same rules. If a regular member had to object during the meeting, a director should have to as well.
The judge rejected this argument, implicitly affirming the board’s higher-level fiduciary duty to ensure a fair and legal election. The final decision made it clear that the bylaws used “Member” and “Director” with distinct meanings and responsibilities. The bylaw requiring members to object during the meeting was the mechanism for an individual’s challenge; it did not override the board’s inherent duty to govern properly.
The key takeaway from the judge’s decision was unambiguous: The petitioner “made no showing that a Director could not raise questions as to the validity of the election results after the meeting adjourned.” This legally affirms a board’s power to investigate its own processes, a responsibility separate from the rules that govern challenges from the general membership.
——————————————————————————–
Conclusion: Have You Read Your Bylaws Lately?
This case serves as a powerful reminder that the dense, legalistic language of HOA governing documents is not just boilerplate. These documents have immense real-world power, dictating the outcomes of contentious disputes and shaping the governance of a community. The intricate details and specific wording can mean the difference between a final result and one that is just the beginning of a long and costly fight.
This entire, year-long legal battle hinged on the definition of a single word. When was the last time you read the fine print governing your own community?
Case Participants
Petitioner Side
Tom Barrs(petitioner) Appeared on his own behalf,.
Stephen Barrs(witness) Testified for Petitioner,.
Respondent Side
Catherine Overby(board member/president) Desert Ranch HOA Appeared on behalf of Respondent,; Board President,; testified at hearing,.
Brian Schoeffler(board member/vice president) Desert Ranch HOA Appeared on behalf of Respondent,; Board Vice President,; testified at hearing,.
Patrick Rice(board member) Desert Ranch HOA Board member who expressed concerns immediately after the meeting,,,; involved in meeting with attorney,.
Neutral Parties
Tammy L. Eigenheer(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner (ADRE)) Arizona Department of Real Estate Issued Order Granting Rehearing; recipient of decision copy,.
LDettorre(ADRE staff) Arizona Department of Real Estate Recipient of decision copy.
AHansen(ADRE staff) Arizona Department of Real Estate Recipient of decision copy.
djones(ADRE staff) Arizona Department of Real Estate Recipient of decision copy.
DGardner(ADRE staff) Arizona Department of Real Estate Recipient of decision copy.
ncano(ADRE staff) Arizona Department of Real Estate Recipient of decision copy.
Other Participants
Jerome Klinger(board director) Desert Ranch HOA Initially announced as a winning candidate for director,; later removed after contest; involved in run-off,.
Paula Barrs(listed resident) Listed with Tom Barrs on mailing address.
Petitioner was deemed the prevailing party because Respondent established a technical violation of A.R.S. § 33-1258(A) by failing to provide requested documents within the 10-day limit. However, the Administrative Law Judge found a civil penalty was not appropriate given the circumstances.
Key Issues & Findings
Failure to provide requested association records within 10 business days
Petitioner requested sign-in sheets for the January 10, 2018, and February 15, 2018, CBS HOA meetings. Respondent acknowledged a technical violation of the statute by failing to provide the requested documents within the required 10-day timeframe, although they were ultimately provided prior to the hearing.
Orders: Respondent must comply with the applicable provisions of A.R.S. § 33-1258(A) in the future, and pay Petitioner her filing fee of $500.00 within thirty (30) days.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1258
A.R.S. § 33-1258(A)
Analytics Highlights
Topics: records request, failure to provide documents, condominium owners association, filing fee refund
Additional Citations:
A.R.S. § 32-2199 et seq.
A.R.S. § 33-1258
A.A.C. R2-19-119
A.R.S. § 33-1258(A)
A.R.S. §32-2199.02(B)
A.R.S. § 32-2199.04
A.R.S. § 41-1092.09
Video Overview
Audio Overview
Decision Documents
18F-H1818033-REL Decision – 642888.pdf
Uploaded 2025-10-09T03:32:41 (74.5 KB)
18F-H1818033-REL Decision – 655537.pdf
Uploaded 2025-10-09T03:32:42 (83.3 KB)
Briefing Doc – 18F-H1818033-REL
Administrative Hearing Briefing: Cohen v. CBS 136 Homeowners Association
Executive Summary
This document synthesizes the findings and decision from the administrative hearing case Annette Cohen v. CBS 136 Homeowners Association (No. 18F-H1818033-REL). The core of the dispute was the Homeowners Association’s (HOA) failure to provide requested documents—specifically, meeting sign-in sheets—to a member, Annette Cohen, within the ten-business-day timeframe mandated by Arizona statute A.R.S. § 33-1258.
At the hearing, the Respondent HOA acknowledged this “technical violation,” attributing the delay to operational difficulties arising from a recent change in management companies. The Petitioner, Ms. Cohen, argued the delay was intentional and warranted a civil penalty.
The Administrative Law Judge, Tammy L. Eigenheer, found that the HOA did violate the statute. In the final order, the Judge declared Ms. Cohen the prevailing party and mandated future compliance by the HOA. While a civil penalty was deemed inappropriate under the circumstances, the Judge ordered the HOA to reimburse Ms. Cohen’s $500 filing fee.
Case Overview
Entity / Individual
Petitioner
Annette Cohen
Respondent
CBS 136 Homeowners Association (CBS)
Respondent’s Counsel
Brian Ditsch, Sacks Tierney P.A.
Respondent’s Mgmt. Co.
Key Witness
Susan Rubin (PRM)
Adjudicating Body
Office of Administrative Hearings, Phoenix, Arizona
Administrative Law Judge
Tammy L. Eigenheer
Case Number
18F-H1818033-REL
Hearing Date
June 6, 2018
Decision Date
June 26, 2018
Chronology of the Dispute
The dispute centered on two separate sets of document requests made by Petitioner Annette Cohen.
• Request 1 (January 10 Meeting):
◦ On or about Jan. 10, 2018: Ms. Cohen requested the sign-in sheets from the annual meeting held on this date.
◦ Jan. 2018: The management company PRM took over management of the CBS 136 HOA.
◦ Feb. 15, 2018: After more than a month, and after two scheduled review appointments were cancelled by the management company, the sign-in sheets were finally provided to Ms. Cohen by email.
• Request 2 (February 15 Meeting):
◦ Feb. 19, 2018: Ms. Cohen requested the sign-in sheets from the February 15, 2018 HOA meeting. Receipt of this request was acknowledged by PRM.
◦ Feb. 21, 26, 27 & March 5, 2018: Ms. Cohen made repeated follow-up requests for the same information.
• Formal Proceedings:
◦ March 9, 2018: Ms. Cohen filed a formal petition with the Arizona Department of Real Estate.
◦ April 10, 2018: The Respondent HOA filed an answer denying all allegations.
◦ June 6, 2018: An administrative hearing was held. The documents had been provided to Ms. Cohen at some point prior to this hearing.
◦ June 26, 2018: The Administrative Law Judge issued the final decision.
Core Allegation and Legal Framework
Petitioner’s Allegation
Annette Cohen alleged that the CBS 136 Homeowners Association violated A.R.S. Title 33, Chapter 16, Section 33-1258 by failing to provide association records for review and copying within the statutorily required timeframe.
Governing Statute: A.R.S. § 33-1258(A)
The legal basis for the petition is Arizona Revised Statute § 33-1258(A), which governs a member’s right to access association records. The statute states, in relevant part:
“all financial and other records of the association shall be made reasonably available for examination by any member… The association shall have ten business days to fulfill a request for examination. On request for purchase of copies of records by any member… the association shall have ten business days to provide copies of the requested records. An association may charge a fee for making copies of not more than fifteen cents per page.”
The petitioner bears the burden of proving a violation by a preponderance of the evidence, defined as evidence that “shows that the fact sought to be proved is more probable than not.”
Arguments and Evidence Presented at Hearing
Once the Respondent acknowledged the delay, the hearing focused solely on determining the appropriate remedy.
Petitioner’s Position (Annette Cohen)
• Intentional Negligence: Ms. Cohen argued that the Respondent “intentionally ignored her request for the documents.”
• Request for Penalty: Based on the belief of intentional neglect, she asserted that a civil penalty was an appropriate remedy.
• Unreasonable Delay: She noted that the documents “could have easily been emailed to her within the 10 day deadline,” but that the HOA’s management company did not present this as an option until after the deadline had already passed.
Respondent’s Position (CBS 136 HOA)
• Acknowledged Violation: At the June 6, 2018 hearing, the Respondent “acknowledged that the requested documents were not provided within the 10 day timeframe set forth in statute.”
• Mitigating Circumstances: The defense centered on testimony from Susan Rubin of the management company, PRM. Ms. Rubin testified to the following:
◦ No requests are “ever purposefully ignored.”
◦ PRM had only taken over management of the HOA in January 2018.
◦ At the time of the requests, PRM was “still getting documents from the former management company.”
◦ The delay was not due to ignoring the request, but because it “took a little longer than expected to provide the documents.”
Administrative Law Judge’s Decision and Order
Findings and Conclusions
• Violation Established: The Judge concluded there was “no dispute that Respondent failed to provide the requested documents within 10 days.” Therefore, the Petitioner “established by a preponderance of the evidence that Respondent violated A.R.S. § 33-1258(A).”
• Rejection of Civil Penalty: Despite the Petitioner’s argument, the Administrative Law Judge did “not find such a penalty to be appropriate given the circumstances in this matter.”
Final Order
The Judge issued a three-part order binding on the parties:
1. Prevailing Party: The Petitioner, Annette Cohen, is “deemed the prevailing party.”
2. Future Compliance: The Respondent, CBS 136 Homeowners Association, is ordered to “comply with the applicable provisions of A.R.S. § 33-1258(A) in the future.”
3. Reimbursement of Filing Fee: The Respondent must pay the Petitioner her filing fee of $500.00 directly to her within thirty (30) days of the order.
Study Guide – 18F-H1818033-REL
Study Guide: Cohen v. CBS 136 Homeowners Association
Short-Answer Quiz
Instructions: Please answer the following ten questions in 2-3 complete sentences, using only the information provided in the case documents.
1. Who were the primary parties involved in case No. 18F-H1818033-REL, and what were their respective roles?
2. What specific documents did the Petitioner, Annette Cohen, request from the Respondent?
3. According to the petition, what was the core legal violation alleged by Ms. Cohen against the Homeowners Association?
4. What was the timeline for the Respondent’s failure to produce the sign-in sheets from the January 10, 2018 meeting?
5. How did the Respondent initially respond to the petition after it was filed with the Arizona Department of Real Estate?
6. What admission did the Respondent make at the June 6, 2018 hearing?
7. What was the Respondent’s explanation for the delay in providing the requested documents to the Petitioner?
8. What remedy did the Petitioner argue was appropriate for the violation, and on what grounds?
9. What legal standard of proof was the Petitioner required to meet, and did the judge find that she met it?
10. What were the three components of the final Order issued by the Administrative Law Judge?
——————————————————————————–
Answer Key
1. The primary parties were Annette Cohen, who was the Petitioner, and the CBS 136 Homeowners Association, which was the Respondent. The Petitioner is the party who filed the complaint, and the Respondent is the party against whom the complaint was filed.
2. The Petitioner requested the sign-in sheets from two separate meetings. She requested the sign-in sheets from the January 10, 2018 annual meeting and the sign-in sheets from the February 15, 2018 CBS HOA meeting.
3. The core legal violation alleged by Ms. Cohen was that the Respondent had violated Arizona Revised Statutes (A.R.S.) Title 33, Chapter 16, Section 33-1258. This statute requires homeowner associations to provide requested records to members for examination or copying within a ten-business-day timeframe.
4. Ms. Cohen requested the January 10, 2018 sign-in sheets on or about that same date (January 10). She did not receive them via email until February 15, 2018, which is well beyond the ten-business-day limit stipulated by law.
5. On or about April 10, 2018, the Respondent filed an answer to the petition. In this official response, the Respondent denied all of the allegations made by the Petitioner.
6. At the June 6, 2018 hearing, the Respondent acknowledged its failure to comply with the law. The Respondent admitted that the requested documents were not provided within the 10-day timeframe set forth in the statute, constituting a technical violation.
7. The Respondent, through the testimony of Susan Rubin from its management company PRM, explained the delay was not intentional. Ms. Rubin stated that PRM had just taken over management of the HOA in January 2018 and was still in the process of getting documents from the former management company.
8. The Petitioner argued that a civil penalty was the appropriate remedy. She contended that the Respondent intentionally ignored her requests and could have easily emailed the documents within the deadline, but failed to do so until after the deadline had passed.
9. The Petitioner had the burden of proving her case by a “preponderance of the evidence.” The judge found that she successfully met this standard because there was no dispute that the Respondent failed to provide the documents within the required 10 days.
10. The three components of the final Order were: 1) The Petitioner, Annette Cohen, was deemed the prevailing party; 2) The Respondent was ordered to comply with A.R.S. § 33-1258(A) in the future; and 3) The Respondent was ordered to pay the Petitioner’s $500.00 filing fee within thirty days.
——————————————————————————–
Essay Questions
Instructions: The following questions are designed for longer, essay-format responses. Use the provided case documents to formulate a comprehensive analysis.
1. Analyze the arguments presented by both the Petitioner and the Respondent regarding the appropriate remedy for the acknowledged statutory violation. Evaluate the mitigating circumstances offered by the Respondent and discuss why the Administrative Law Judge may have found them persuasive enough to deny a civil penalty while still finding in favor of the Petitioner.
2. Discuss the legal framework governing disputes between property owners and condominium associations in Arizona as outlined in the case documents. Explain the roles of the Arizona Department of Real Estate and the Office of Administrative Hearings, and detail the specific requirements of A.R.S. § 33-1258(A).
3. Examine the concept of “preponderance of the evidence” as defined in the judge’s decision. Explain how the Petitioner successfully met this burden of proof, particularly in light of the Respondent’s initial denial of all allegations versus its later admission at the hearing.
4. Deconstruct the final Order issued by Judge Tammy L. Eigenheer. What were the three distinct parts of the Order, and what legal and practical purpose did each part serve in resolving the dispute, compensating the Petitioner, and ensuring future compliance by the Respondent?
5. Trace the procedural history of this case, creating a timeline of key events from Ms. Cohen’s first document request to the issuance of the final Order. Discuss the significance of each step, including the multiple requests, the petition filing, the Respondent’s answer, the hearing, and the final decision.
——————————————————————————–
Glossary of Key Terms
Definition
Administrative Law Judge
The official, in this case Tammy L. Eigenheer, who presides over hearings at the Office of Administrative Hearings and issues a decision.
A.R.S. § 33-1258(A)
The specific section of Arizona Revised Statutes cited in the case. It mandates that a homeowners association must make records available for member examination within ten business days and may charge up to fifteen cents per page for copies.
Burden of Proof
The obligation on a party in a legal proceeding to prove their assertions. In this case, the Petitioner bore the burden of proving the Respondent violated the statute.
CBS 136 Homeowners Association
The Respondent in the case; an association of condominium owners located in Sun City West, Arizona.
Department
The Arizona Department of Real Estate, the state agency with jurisdiction to hear disputes between property owners and condominium owners associations.
Findings of Fact
The section of the decision that outlines the factual history and evidence presented in the case, as determined by the judge.
Office of Administrative Hearings
The state office where the formal hearing on the petition was conducted.
Petitioner
The party who initiates a legal action by filing a petition. In this case, the Petitioner was Annette Cohen.
Preponderance of the Evidence
The standard of proof required for the Petitioner to win the case. It is defined as evidence that is more convincing and shows that the fact sought to be proved is “more probable than not.”
The management company that took over management of the CBS 136 Homeowners Association in January 2018.
Respondent
The party against whom a petition is filed. In this case, the Respondent was the CBS 136 Homeowners Association.
Technical Violation
An acknowledged infringement of a rule or statute where the substance of the rule may not have been maliciously violated. The Respondent admitted to a technical violation of the 10-day timeframe for document production.
Blog Post – 18F-H1818033-REL
Select all sources
642888.pdf
655537.pdf
No emoji found
Loading
18F-H1818033-REL
2 sources
Both documents are identical excerpts from an Administrative Law Judge Decision from the Arizona Office of Administrative Hearings, concerning a dispute between Annette Cohen (Petitioner) and the CBS 136 Homeowners Association (Respondent). The case, No. 18F-H1818033-REL, addressed the Petitioner’s claim that the Respondent violated A.R.S. § 33-1258(A) by failing to provide requested association meeting sign-in sheets within the mandated ten-day period. Though the Respondent acknowledged a technical violation of the statute, the Administrative Law Judge determined that a civil penalty was not appropriate given the circumstances, such as the change in management. Ultimately, the Petitioner was deemed the prevailing party, and the Respondent was ordered to comply with the statute in the future and reimburse the Petitioner’s $500.00 filing fee.
Based on 2 sources
Case Participants
Petitioner Side
Annette Cohen(petitioner) Appeared on her own behalf
Respondent Side
Brian Ditsch(respondent attorney) Sacks Tierney P.A.
Susan Rubin(witness) PRM (management company) Testified for Respondent
Neutral Parties
Tammy L. Eigenheer(ALJ) Office of Administrative Hearings
Judy Lowe(commissioner) Arizona Department of Real Estate Recipient of decision notice
Other Participants
Felicia Del Sol(clerical staff) Transmitted the decision
Petitioner was deemed the prevailing party because Respondent established a technical violation of A.R.S. § 33-1258(A) by failing to provide requested documents within the 10-day limit. However, the Administrative Law Judge found a civil penalty was not appropriate given the circumstances.
Key Issues & Findings
Failure to provide requested association records within 10 business days
Petitioner requested sign-in sheets for the January 10, 2018, and February 15, 2018, CBS HOA meetings. Respondent acknowledged a technical violation of the statute by failing to provide the requested documents within the required 10-day timeframe, although they were ultimately provided prior to the hearing.
Orders: Respondent must comply with the applicable provisions of A.R.S. § 33-1258(A) in the future, and pay Petitioner her filing fee of $500.00 within thirty (30) days.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1258
A.R.S. § 33-1258(A)
Analytics Highlights
Topics: records request, failure to provide documents, condominium owners association, filing fee refund
Additional Citations:
A.R.S. § 32-2199 et seq.
A.R.S. § 33-1258
A.A.C. R2-19-119
A.R.S. § 33-1258(A)
A.R.S. §32-2199.02(B)
A.R.S. § 32-2199.04
A.R.S. § 41-1092.09
Video Overview
Audio Overview
Decision Documents
18F-H1818033-REL Decision – 642888.pdf
Uploaded 2026-01-23T17:23:22 (74.5 KB)
18F-H1818033-REL Decision – 655537.pdf
Uploaded 2026-01-23T17:23:25 (83.3 KB)
Briefing Doc – 18F-H1818033-REL
Administrative Hearing Briefing: Cohen v. CBS 136 Homeowners Association
Executive Summary
This document synthesizes the findings and decision from the administrative hearing case Annette Cohen v. CBS 136 Homeowners Association (No. 18F-H1818033-REL). The core of the dispute was the Homeowners Association’s (HOA) failure to provide requested documents—specifically, meeting sign-in sheets—to a member, Annette Cohen, within the ten-business-day timeframe mandated by Arizona statute A.R.S. § 33-1258.
At the hearing, the Respondent HOA acknowledged this “technical violation,” attributing the delay to operational difficulties arising from a recent change in management companies. The Petitioner, Ms. Cohen, argued the delay was intentional and warranted a civil penalty.
The Administrative Law Judge, Tammy L. Eigenheer, found that the HOA did violate the statute. In the final order, the Judge declared Ms. Cohen the prevailing party and mandated future compliance by the HOA. While a civil penalty was deemed inappropriate under the circumstances, the Judge ordered the HOA to reimburse Ms. Cohen’s $500 filing fee.
Case Overview
Entity / Individual
Petitioner
Annette Cohen
Respondent
CBS 136 Homeowners Association (CBS)
Respondent’s Counsel
Brian Ditsch, Sacks Tierney P.A.
Respondent’s Mgmt. Co.
Key Witness
Susan Rubin (PRM)
Adjudicating Body
Office of Administrative Hearings, Phoenix, Arizona
Administrative Law Judge
Tammy L. Eigenheer
Case Number
18F-H1818033-REL
Hearing Date
June 6, 2018
Decision Date
June 26, 2018
Chronology of the Dispute
The dispute centered on two separate sets of document requests made by Petitioner Annette Cohen.
• Request 1 (January 10 Meeting):
◦ On or about Jan. 10, 2018: Ms. Cohen requested the sign-in sheets from the annual meeting held on this date.
◦ Jan. 2018: The management company PRM took over management of the CBS 136 HOA.
◦ Feb. 15, 2018: After more than a month, and after two scheduled review appointments were cancelled by the management company, the sign-in sheets were finally provided to Ms. Cohen by email.
• Request 2 (February 15 Meeting):
◦ Feb. 19, 2018: Ms. Cohen requested the sign-in sheets from the February 15, 2018 HOA meeting. Receipt of this request was acknowledged by PRM.
◦ Feb. 21, 26, 27 & March 5, 2018: Ms. Cohen made repeated follow-up requests for the same information.
• Formal Proceedings:
◦ March 9, 2018: Ms. Cohen filed a formal petition with the Arizona Department of Real Estate.
◦ April 10, 2018: The Respondent HOA filed an answer denying all allegations.
◦ June 6, 2018: An administrative hearing was held. The documents had been provided to Ms. Cohen at some point prior to this hearing.
◦ June 26, 2018: The Administrative Law Judge issued the final decision.
Core Allegation and Legal Framework
Petitioner’s Allegation
Annette Cohen alleged that the CBS 136 Homeowners Association violated A.R.S. Title 33, Chapter 16, Section 33-1258 by failing to provide association records for review and copying within the statutorily required timeframe.
Governing Statute: A.R.S. § 33-1258(A)
The legal basis for the petition is Arizona Revised Statute § 33-1258(A), which governs a member’s right to access association records. The statute states, in relevant part:
“all financial and other records of the association shall be made reasonably available for examination by any member… The association shall have ten business days to fulfill a request for examination. On request for purchase of copies of records by any member… the association shall have ten business days to provide copies of the requested records. An association may charge a fee for making copies of not more than fifteen cents per page.”
The petitioner bears the burden of proving a violation by a preponderance of the evidence, defined as evidence that “shows that the fact sought to be proved is more probable than not.”
Arguments and Evidence Presented at Hearing
Once the Respondent acknowledged the delay, the hearing focused solely on determining the appropriate remedy.
Petitioner’s Position (Annette Cohen)
• Intentional Negligence: Ms. Cohen argued that the Respondent “intentionally ignored her request for the documents.”
• Request for Penalty: Based on the belief of intentional neglect, she asserted that a civil penalty was an appropriate remedy.
• Unreasonable Delay: She noted that the documents “could have easily been emailed to her within the 10 day deadline,” but that the HOA’s management company did not present this as an option until after the deadline had already passed.
Respondent’s Position (CBS 136 HOA)
• Acknowledged Violation: At the June 6, 2018 hearing, the Respondent “acknowledged that the requested documents were not provided within the 10 day timeframe set forth in statute.”
• Mitigating Circumstances: The defense centered on testimony from Susan Rubin of the management company, PRM. Ms. Rubin testified to the following:
◦ No requests are “ever purposefully ignored.”
◦ PRM had only taken over management of the HOA in January 2018.
◦ At the time of the requests, PRM was “still getting documents from the former management company.”
◦ The delay was not due to ignoring the request, but because it “took a little longer than expected to provide the documents.”
Administrative Law Judge’s Decision and Order
Findings and Conclusions
• Violation Established: The Judge concluded there was “no dispute that Respondent failed to provide the requested documents within 10 days.” Therefore, the Petitioner “established by a preponderance of the evidence that Respondent violated A.R.S. § 33-1258(A).”
• Rejection of Civil Penalty: Despite the Petitioner’s argument, the Administrative Law Judge did “not find such a penalty to be appropriate given the circumstances in this matter.”
Final Order
The Judge issued a three-part order binding on the parties:
1. Prevailing Party: The Petitioner, Annette Cohen, is “deemed the prevailing party.”
2. Future Compliance: The Respondent, CBS 136 Homeowners Association, is ordered to “comply with the applicable provisions of A.R.S. § 33-1258(A) in the future.”
3. Reimbursement of Filing Fee: The Respondent must pay the Petitioner her filing fee of $500.00 directly to her within thirty (30) days of the order.
Study Guide – 18F-H1818033-REL
Study Guide: Cohen v. CBS 136 Homeowners Association
Short-Answer Quiz
Instructions: Please answer the following ten questions in 2-3 complete sentences, using only the information provided in the case documents.
1. Who were the primary parties involved in case No. 18F-H1818033-REL, and what were their respective roles?
2. What specific documents did the Petitioner, Annette Cohen, request from the Respondent?
3. According to the petition, what was the core legal violation alleged by Ms. Cohen against the Homeowners Association?
4. What was the timeline for the Respondent’s failure to produce the sign-in sheets from the January 10, 2018 meeting?
5. How did the Respondent initially respond to the petition after it was filed with the Arizona Department of Real Estate?
6. What admission did the Respondent make at the June 6, 2018 hearing?
7. What was the Respondent’s explanation for the delay in providing the requested documents to the Petitioner?
8. What remedy did the Petitioner argue was appropriate for the violation, and on what grounds?
9. What legal standard of proof was the Petitioner required to meet, and did the judge find that she met it?
10. What were the three components of the final Order issued by the Administrative Law Judge?
——————————————————————————–
Answer Key
1. The primary parties were Annette Cohen, who was the Petitioner, and the CBS 136 Homeowners Association, which was the Respondent. The Petitioner is the party who filed the complaint, and the Respondent is the party against whom the complaint was filed.
2. The Petitioner requested the sign-in sheets from two separate meetings. She requested the sign-in sheets from the January 10, 2018 annual meeting and the sign-in sheets from the February 15, 2018 CBS HOA meeting.
3. The core legal violation alleged by Ms. Cohen was that the Respondent had violated Arizona Revised Statutes (A.R.S.) Title 33, Chapter 16, Section 33-1258. This statute requires homeowner associations to provide requested records to members for examination or copying within a ten-business-day timeframe.
4. Ms. Cohen requested the January 10, 2018 sign-in sheets on or about that same date (January 10). She did not receive them via email until February 15, 2018, which is well beyond the ten-business-day limit stipulated by law.
5. On or about April 10, 2018, the Respondent filed an answer to the petition. In this official response, the Respondent denied all of the allegations made by the Petitioner.
6. At the June 6, 2018 hearing, the Respondent acknowledged its failure to comply with the law. The Respondent admitted that the requested documents were not provided within the 10-day timeframe set forth in the statute, constituting a technical violation.
7. The Respondent, through the testimony of Susan Rubin from its management company PRM, explained the delay was not intentional. Ms. Rubin stated that PRM had just taken over management of the HOA in January 2018 and was still in the process of getting documents from the former management company.
8. The Petitioner argued that a civil penalty was the appropriate remedy. She contended that the Respondent intentionally ignored her requests and could have easily emailed the documents within the deadline, but failed to do so until after the deadline had passed.
9. The Petitioner had the burden of proving her case by a “preponderance of the evidence.” The judge found that she successfully met this standard because there was no dispute that the Respondent failed to provide the documents within the required 10 days.
10. The three components of the final Order were: 1) The Petitioner, Annette Cohen, was deemed the prevailing party; 2) The Respondent was ordered to comply with A.R.S. § 33-1258(A) in the future; and 3) The Respondent was ordered to pay the Petitioner’s $500.00 filing fee within thirty days.
——————————————————————————–
Essay Questions
Instructions: The following questions are designed for longer, essay-format responses. Use the provided case documents to formulate a comprehensive analysis.
1. Analyze the arguments presented by both the Petitioner and the Respondent regarding the appropriate remedy for the acknowledged statutory violation. Evaluate the mitigating circumstances offered by the Respondent and discuss why the Administrative Law Judge may have found them persuasive enough to deny a civil penalty while still finding in favor of the Petitioner.
2. Discuss the legal framework governing disputes between property owners and condominium associations in Arizona as outlined in the case documents. Explain the roles of the Arizona Department of Real Estate and the Office of Administrative Hearings, and detail the specific requirements of A.R.S. § 33-1258(A).
3. Examine the concept of “preponderance of the evidence” as defined in the judge’s decision. Explain how the Petitioner successfully met this burden of proof, particularly in light of the Respondent’s initial denial of all allegations versus its later admission at the hearing.
4. Deconstruct the final Order issued by Judge Tammy L. Eigenheer. What were the three distinct parts of the Order, and what legal and practical purpose did each part serve in resolving the dispute, compensating the Petitioner, and ensuring future compliance by the Respondent?
5. Trace the procedural history of this case, creating a timeline of key events from Ms. Cohen’s first document request to the issuance of the final Order. Discuss the significance of each step, including the multiple requests, the petition filing, the Respondent’s answer, the hearing, and the final decision.
——————————————————————————–
Glossary of Key Terms
Definition
Administrative Law Judge
The official, in this case Tammy L. Eigenheer, who presides over hearings at the Office of Administrative Hearings and issues a decision.
A.R.S. § 33-1258(A)
The specific section of Arizona Revised Statutes cited in the case. It mandates that a homeowners association must make records available for member examination within ten business days and may charge up to fifteen cents per page for copies.
Burden of Proof
The obligation on a party in a legal proceeding to prove their assertions. In this case, the Petitioner bore the burden of proving the Respondent violated the statute.
CBS 136 Homeowners Association
The Respondent in the case; an association of condominium owners located in Sun City West, Arizona.
Department
The Arizona Department of Real Estate, the state agency with jurisdiction to hear disputes between property owners and condominium owners associations.
Findings of Fact
The section of the decision that outlines the factual history and evidence presented in the case, as determined by the judge.
Office of Administrative Hearings
The state office where the formal hearing on the petition was conducted.
Petitioner
The party who initiates a legal action by filing a petition. In this case, the Petitioner was Annette Cohen.
Preponderance of the Evidence
The standard of proof required for the Petitioner to win the case. It is defined as evidence that is more convincing and shows that the fact sought to be proved is “more probable than not.”
The management company that took over management of the CBS 136 Homeowners Association in January 2018.
Respondent
The party against whom a petition is filed. In this case, the Respondent was the CBS 136 Homeowners Association.
Technical Violation
An acknowledged infringement of a rule or statute where the substance of the rule may not have been maliciously violated. The Respondent admitted to a technical violation of the 10-day timeframe for document production.
Blog Post – 18F-H1818033-REL
Select all sources
642888.pdf
655537.pdf
No emoji found
Loading
18F-H1818033-REL
2 sources
Both documents are identical excerpts from an Administrative Law Judge Decision from the Arizona Office of Administrative Hearings, concerning a dispute between Annette Cohen (Petitioner) and the CBS 136 Homeowners Association (Respondent). The case, No. 18F-H1818033-REL, addressed the Petitioner’s claim that the Respondent violated A.R.S. § 33-1258(A) by failing to provide requested association meeting sign-in sheets within the mandated ten-day period. Though the Respondent acknowledged a technical violation of the statute, the Administrative Law Judge determined that a civil penalty was not appropriate given the circumstances, such as the change in management. Ultimately, the Petitioner was deemed the prevailing party, and the Respondent was ordered to comply with the statute in the future and reimburse the Petitioner’s $500.00 filing fee.
Based on 2 sources
Case Participants
Petitioner Side
Annette Cohen(petitioner) Appeared on her own behalf
Respondent Side
Brian Ditsch(respondent attorney) Sacks Tierney P.A.
Susan Rubin(witness) PRM (management company) Testified for Respondent
Neutral Parties
Tammy L. Eigenheer(ALJ) Office of Administrative Hearings
Judy Lowe(commissioner) Arizona Department of Real Estate Recipient of decision notice
Other Participants
Felicia Del Sol(clerical staff) Transmitted the decision
Petitioner won the statutory claim regarding access to association documents (A.R.S. § 33-1805(A)) and was refunded the $500 filing fee. Petitioner lost the claim regarding the failure to maintain exterior walls (CC&Rs) due to insufficient evidence.
Why this result: Petitioner failed to prove the maintenance issue by a preponderance of the evidence (for case 18F-H1818025-REL).
Key Issues & Findings
Failure to repair and maintain exterior walls
Petitioner alleged the HOA failed to repair damage (crack) to the exterior wall of his unit as required by the CC&Rs. The ALJ found that Petitioner failed to present sufficient evidence (black and white photographs did not clearly show the damage) to establish a violation.
Orders: Petitioner's petition in Case Number 18F-H1818025-REL is denied.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
CC&Rs
5
17
Failure to provide requested association records
Petitioner requested meeting notices and minutes in December 2017. Respondent's former management company failed to respond in a timely fashion. Petitioner established by a preponderance of the evidence that Respondent violated the statute.
Orders: Petitioner deemed the prevailing party in Case Number 18F-H1818027-REL. Respondent ordered to comply with A.R.S. § 33-1805(A) in the future and pay Petitioner the filing fee of $500.00.
Administrative Hearing Brief: Duffett vs. Suntech Patio Homes HOA
Executive Summary
This briefing document analyzes the Administrative Law Judge Decision in two consolidated cases filed by homeowner Rex E. Duffett against the Suntech Patio Homes Homeowners Association (HOA). The ruling presents a split decision, with the petitioner prevailing on one claim while failing to provide sufficient evidence for the other.
The first petition, concerning the HOA’s alleged failure to repair exterior walls, was denied. The petitioner failed to meet the burden of proof, as the submitted photographic evidence was unclear and did not sufficiently establish the existence or severity of the damage requiring immediate repair.
The second petition, concerning the HOA’s failure to provide association records upon request, was upheld. The judge found that the HOA, through its former management company, violated state law (A.R.S. § 33-1805(A)) by not responding to a formal document request within the mandated ten-business-day window.
As a result, Mr. Duffett was deemed the prevailing party in the records-request case. The HOA was ordered to pay his $500 filing fee and to ensure future compliance with the relevant statutes. The case highlights critical issues of evidence quality in homeowner disputes and demonstrates the legal liability an HOA retains for the failures of its management agents, particularly during periods of transition.
——————————————————————————–
Case Overview
Case Numbers
18F-H1818025-REL and 18F-H1818027-REL (Consolidated)
Petitioner
Rex E. Duffett
Respondent
Suntech Patio Homes Homeowners Association
Hearing Date
April 4, 2018
Decision Date
April 24, 2018
Presiding Judge
Administrative Law Judge Tammy L. Eigenheer
The hearing addressed two separate petitions filed by Rex E. Duffett with the Arizona Department of Real Estate:
1. Petition 1 (18F-H1818025-REL): Alleged the HOA violated community CC&Rs by failing to repair exterior walls of the petitioner’s unit.
2. Petition 2 (18F-H1818027-REL): Alleged the HOA violated A.R.S. § 33-1805(A) by failing to provide requested documents.
Petition 1: Failure to Repair Exterior Walls (Denied)
Petitioner’s Allegations and Evidence
• Core Claim: The petitioner alleged the HOA failed its duty, as defined by a March 1993 amendment to the CC&Rs, to maintain the exterior walls of his unit. The CC&Rs state, “The Suntech Patio Homeowners Association shall be responsible for the painting and maintenance of the following: A) Exterior walls of all units . . . .”
• Initial Request (July 14, 2017): Mr. Duffett faxed the HOA’s management company, The Management Trust, stating, “While inspecting the outside of my property I noticed a crack in the exterior wall. Please inspect, repair and paint the wall as soon as possible to prevent any damage which could result from rain water in the interior of the wall.”
• Follow-Up Request (August 21, 2017): In a certified letter, Mr. Duffett provided more detail, identifying a crack in the entryway wall allowing “rain water to seep into the interior wall,” a “bare concrete” area on the garage, and a previously cracked garage wall that had been repaired by a roofing company but not painted.
• Hearing Testimony: Mr. Duffett testified that a roofing company he hired to find a leak in his garage ceiling determined the source was not the roof but a crack in the exterior wall.
• Submitted Evidence: The petitioner submitted five black-and-white photographs of his home’s exterior across his two communications.
Respondent’s Position and Evidence
• Management Transition: Pride Community Management took over from The Management Trust on February 1, 2018. The new manager, Rebecca Stowers, and owner, Frank Peake, testified to a difficult transition where The Management Trust initially provided only one box of records, later discovering seven or eight more boxes in storage. Mr. Peake stated that Pride had not seen the petitioner’s communications regarding the damage until the hearing.
• Inspection: Ms. Stowers testified that she inspected the petitioner’s home on March 27, 2018. While she noted “a missing area of stucco on the front of the garage that needed to be repaired,” she “denied being able to identify a crack in the stucco anywhere else on the front of the house.”
• Community-Wide Repair Plan: Ms. Stowers stated that the HOA intended to repair the stucco and paint all exterior walls in the community during the 2018 calendar year at a projected cost of $46,000, to be funded potentially through a special assessment due to the HOA being underfunded.
Conclusion of Law and Ruling
• Burden of Proof: The Administrative Law Judge (ALJ) determined that the petitioner bore the burden of proving his claim by a preponderance of the evidence.
• Evidence Failure: The ALJ found the submitted evidence insufficient. The decision states: “The black and white photographs submitted at hearing did not clearly show the crack Petitioner alleged existed on the exterior wall of his unit… The Administrative Law Judge was unable to identify the location or severity of the alleged crack, and therefore, cannot conclude that such a crack exists and/or that it is necessary to be repaired immediately.”
• Final Ruling: The petitioner failed to meet his burden of proof. The petition in Case Number 18F-H1818025-REL was denied.
Petition 2: Failure to Provide Association Records (Upheld)
Petitioner’s Allegations and Evidence
• Core Claim: The petitioner alleged that the HOA violated A.R.S. § 33-1805(A), which requires an association to fulfill a request for records within ten business days.
• The Request (December 22, 2017): Mr. Duffett faxed The Management Trust a request for specific documents, citing a statement made by the HOA in a separate case. He requested copies of:
◦ Meeting notices and minutes for all meetings where “rules and regulations were discussed” in August/September 2017.
◦ Meeting notices and minutes for meetings where the last HOA dues increase was discussed.
◦ A copy of the notice for the last association rate increase.
Respondent’s Position and Evidence
• Lack of Awareness: The HOA’s initial response on January 29, 2018, indicated it had only become aware of the request upon receiving notice of the petition. The current management company, Pride, testified they had not seen the original communication from the petitioner.
• Vagueness of Request: Frank Peake of Pride testified that the request for minutes of meetings “where the rules and regulations were discussed” was unclear “because rules and regulations are discussed in some form at virtually every meeting of the association.”
• Claim of Privilege: The initial response from The Management Trust on January 29, 2018, claimed that the requested minutes were for “closed executive meetings and were only available to Board members.”
Conclusion of Law and Ruling
• Statutory Violation: The ALJ concluded that the petitioner clearly made a request for documents and that the HOA, via its former management company, failed to act as required by law.
• Failure of Former Management: The decision explicitly faults the prior management company: “The Management Trust should have responded or requested additional clarification of what documents Petitioner was requesting as it was the management company during the ten day window Respondent had to respond pursuant to the statute.”
• Final Ruling: The petitioner successfully established by a preponderance of the evidence that the HOA violated A.R.S. § 33-1805(A). Mr. Duffett was deemed the prevailing party in Case Number 18F-H1818027-REL.
Final Order and Implications
The Administrative Law Judge issued the following orders based on the conclusions of law:
Case Number
Subject
Ruling
18F-H1818025-REL
Exterior Wall Repairs
Petition Denied
18F-H1818027-REL
Document Request
Petitioner Deemed Prevailing Party
Directives to the Respondent (Suntech Patio Homes HOA):
1. Future Compliance: The HOA must comply with the provisions of A.R.S. § 33-1805(A) going forward.
2. Payment of Filing Fee: The HOA must pay the petitioner his filing fee of $500.00 within thirty (30) days of the order.
This order is considered binding on the parties unless a rehearing is granted.
Study Guide – 18F-H1818025-REL
Study Guide: Duffett v. Suntech Patio Homes HOA
This guide provides a comprehensive review of the Administrative Law Judge Decision in the consolidated cases of Rex E. Duffett v. Suntech Patio Homes Homeowners Association, Case Numbers 18F-H1818025-REL and 18F-H1818027-REL. The decision, issued by the Arizona Office of Administrative Hearings, addresses two separate petitions filed by a homeowner against his Homeowners Association (HOA), one concerning property maintenance and the other concerning access to association records.
——————————————————————————–
Quiz: Short-Answer Questions
Instructions: Answer the following questions in 2-3 complete sentences, drawing all information directly from the case decision.
1. Who were the primary parties in this administrative hearing, and what were their respective roles?
2. What were the two distinct allegations made by the Petitioner in the petitions that were consolidated for this hearing?
3. According to the community’s governing documents (CC&Rs), what specific responsibility did the HOA have regarding the exterior of residential units?
4. On what grounds did the Administrative Law Judge rule against the Petitioner in his claim for wall repairs (Case No. 18F-H1818025-REL)?
5. What specific Arizona statute did the Petitioner claim the HOA violated in his second petition regarding access to records (Case No. 18F-H1818027-REL)?
6. Describe the roles and performance of the two management companies, The Management Trust and Pride Community Management, as detailed in the hearing evidence.
7. What was the final outcome of the petition concerning the HOA’s failure to provide documents, and who was named the prevailing party?
8. What specific types of documents did the Petitioner request from the HOA in his fax dated December 22, 2017?
9. What was the legal standard of proof the Petitioner was required to meet, and for which petition did he successfully meet it?
10. What financial penalty was imposed upon the Respondent as part of the final Order?
——————————————————————————–
Answer Key
1. The Petitioner was Rex E. Duffett, a homeowner who filed the petitions. The Respondent was the Suntech Patio Homes Homeowners Association, the entity Mr. Duffett alleged had violated community rules and state law.
2. The first petition alleged that the HOA violated the CC&Rs by failing to respond to repeated requests for repairs to the exterior walls of his unit. The second petition alleged the HOA violated A.R.S. § 33-1805(A) by failing to provide requested association documents.
3. A March 1993 amendment to the CC&Rs states that the Suntech Patio Homeowners Association “shall be responsible for the painting and maintenance of the… Exterior walls of all units.”
4. The judge ruled against the Petitioner because he failed to establish his claim by a preponderance of the evidence. The black and white photographs submitted did not clearly show the alleged crack’s location or severity, so the judge could not conclude that a repair was immediately necessary.
5. The Petitioner claimed the HOA violated A.R.S. § 33-1805(A). This statute requires an association to make records reasonably available for examination and to provide copies of requested records within ten business days.
6. The Management Trust was the HOA’s management company when the incidents occurred and failed to properly respond to the Petitioner’s requests. Pride Community Management took over on February 1, 2018, and testified that the transition was difficult due to the sparse documentation initially provided by The Management Trust.
7. The judge ruled in favor of the Petitioner, deeming him the prevailing party in Case Number 18F-H1818027-REL. The judge ordered the HOA to comply with the applicable statute in the future.
8. The Petitioner requested copies of meeting notices and minutes for meetings where rules and regulations were discussed and where the last HOA dues increase was discussed. He also requested a copy of the notice of the last rate increase and any associated signed written consents.
9. The legal standard was “preponderance of the evidence,” defined as evidence with the most convincing force. The Petitioner failed to meet this standard for the wall repair petition but successfully met it for the document request petition.
10. The Respondent (HOA) was ordered to pay the Petitioner his filing fee of $500.00. The payment was to be made directly to the Petitioner within thirty days of the Order.
——————————————————————————–
Suggested Essay Questions
Instructions: The following questions are designed for a more in-depth analysis of the case. Formulate a response using only the information and evidence presented in the provided decision.
1. Analyze the concept of “preponderance of the evidence” as it is defined and applied in this case. How did the quality of evidence submitted by the Petitioner lead to two different outcomes for his two petitions?
2. Discuss the role and responsibilities of a homeowners association’s management company, using the actions of The Management Trust and the subsequent challenges faced by Pride Community Management as primary examples. How did the transition between these two companies impact the case?
3. Evaluate the Respondent’s arguments and actions in both petitions. In the wall repair case, what was their stated plan, and why was it ultimately not considered by the judge? In the document request case, what was their defense, and why did it fail?
4. Based on the text of A.R.S. § 33-1805(A), explain the specific obligations of an HOA regarding member requests for records. Detail how the Suntech Patio Homes HOA, through its management, failed to meet these obligations, leading to the ruling against them.
5. Examine the communication breakdown between the Petitioner and the Respondent. Citing specific examples from the “Findings of Fact” and “Hearing Evidence” sections, explain how miscommunication and lack of timely response exacerbated the conflict.
——————————————————————————–
Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An official who presides over administrative hearings, weighs evidence, and issues a legally binding decision. In this case, the ALJ was Tammy L. Eigenheer.
A.R.S. § 33-1805(A)
An Arizona Revised Statute that legally requires homeowners associations to make financial and other records available for member examination and to provide copies upon request within ten business days.
A.R.S. § 32-2199 et seq.
The section of the Arizona Revised Statutes that grants jurisdiction to the Arizona Department of Real Estate to hear disputes between homeowners and their associations.
Conditions, Covenants and Restrictions (CC&Rs)
The governing legal documents that establish the rules, obligations, and restrictions for a planned community and its homeowners association.
Consolidated for Hearing
A procedural step where two or more separate legal cases involving the same parties are combined into a single hearing for efficiency.
Department
Within the context of this case, refers to the Arizona Department of Real Estate, the state agency where the Petitioner initially filed his petitions.
The final, legally binding ruling issued by the Administrative Law Judge at the conclusion of the hearing.
Petitioner
The party who initiates a legal action by filing a petition. In this case, homeowner Rex E. Duffett.
Preponderance of the Evidence
The standard of proof required in this proceeding. It is met when the evidence presented has “the most convincing force” and is more likely true than not.
Prevailing Party
The party who is found to have won the legal dispute. The Petitioner was deemed the prevailing party in the document request case.
Respondent
The party against whom a petition is filed and who must respond to the allegations. In this case, the Suntech Patio Homes Homeowners Association.
Blog Post – 18F-H1818025-REL
A Homeowner Sued His HOA Over a Cracked Wall. He Lost Because of Bad Photocopies.
Introduction: The David vs. Goliath Battle Against Your HOA
For many homeowners, a dispute with their Homeowners Association (HOA) can feel like an uphill battle. It’s a common story of frustration, complex rules, and feeling unheard. The legal case of Rex E. Duffett versus the Suntech Patio Homes HOA is a perfect example, but with a twist. This isn’t just a story about winning or losing; it’s a fascinating cautionary tale filled with surprising lessons for any homeowner navigating a conflict with their association. This breakdown of the real-life administrative court decision reveals the unexpected details that can make or break a case.
——————————————————————————–
1. Takeaway #1: The Quality of Your Proof Matters More Than the Truth
The dispute began when Rex Duffett filed a petition alleging his HOA had failed to repair a crack in his exterior wall that he claimed was causing a water leak. According to the association’s own CC&Rs, maintaining exterior walls was the HOA’s responsibility. To document the problem, he diligently sent faxes and certified mail to the management company, including photographs of the damage.
Despite his efforts, the Administrative Law Judge denied his petition for repairs.
The reason was as surprising as it was simple: the evidence he submitted was not clear enough. The black and white copies of the photographs he provided at the hearing “did not clearly show any damage.” The judge’s finding was blunt and highlights a critical point for any legal dispute:
The Administrative Law Judge was unable to identify the location or severity of the alleged crack, and therefore, cannot conclude that such a crack exists and/or that it is necessary to be repaired immediately.
The lesson here is critical. In a legal dispute, having proof is not enough; the proof must be clear, convincing, and well-presented. Mr. Duffett’s primary case failed not because he was necessarily wrong, but because his evidence failed to persuade the judge. In an administrative hearing, a handful of high-resolution color photographs, or even a short video, would have provided irrefutable evidence and could have changed the entire outcome of his primary petition.
2. Takeaway #2: Your HOA is on the Hook for Its Management Company’s Failures
Mr. Duffett also filed a second petition against the HOA for failing to provide records he requested, such as meeting minutes. Under Arizona law (A.R.S. § 33-1805(A)), an association must fulfill such a request within ten business days. The HOA failed to do so.
The root of the problem was the HOA’s previous management company, “The Management Trust.” This company not only failed to respond to the homeowner’s request but also failed to notify the new management company about it. The relationship between the HOA and this vendor was so poor that the HOA had previously tried to terminate the contract, but the management company “refused to acknowledge the termination and held Respondent to the full two year contract.” The transition was chaotic; the old company initially provided only one box of information before later discovering “seven or eight more boxes” in storage.
Even though the management company was clearly at fault, the Judge ruled that the HOA violated the law. This provides a powerful insight for both boards and homeowners: an HOA cannot blame its vendors. Legally, the association is the responsible party. Hiring an incompetent or unresponsive management company creates significant legal and financial liability for the association and, by extension, every homeowner. This is not an abstract risk; in this case, the management company’s failure to forward a simple request directly led to a legal violation that cost the association—and thus, its members—the $500 filing fee ordered by the judge.
3. Takeaway #3: A “Win” Can Be More Complicated Than It Looks
When you look at the final outcome, Mr. Duffett’s case presents a nuanced picture of what a “win” really means in an HOA dispute. The judge issued a split decision:
• Petition for Repairs: Denied. The homeowner lost.
• Petition for Documents: The homeowner was deemed the “prevailing party.” He won.
As the prevailing party in the second petition, the homeowner received a clear victory. The judge ordered the HOA to comply with the document access law in the future and, crucially, to pay the homeowner back his $500 filing fee.
This highlights a common reality in legal disputes: a homeowner can secure a clear procedural victory (enforcing the right to documents and recovering fees) while simultaneously failing to achieve their core substantive goal (getting the wall repaired). The outcome shows that legal victories can be partial and may not address the real-world problem that initiated the dispute in the first place.
4. Takeaway #4: Vague Requests and Messy Records Create Chaos
This case is a masterclass in how poor communication from both sides can create a perfect storm of dysfunction.
First, the homeowner’s request for documents was “somewhat vague.” The new management company testified it was “unclear because rules and regulations are discussed in some form at virtually every meeting.” While the HOA still violated the law by failing to respond at all, this highlights a crucial lesson for homeowners: be as specific and clear as possible in all written communication to avoid ambiguity.
This vague request then ran headlong into the second problem: the HOA’s institutional chaos. The new Community Manager testified that the only relevant document they possessed was the minutes from a single meeting, and that “seven or eight more boxes” of records were missing after a disastrous transition between management companies. The homeowner’s ambiguous request met an organization that likely couldn’t have responded effectively even if it wanted to.
For both sides, meticulous documentation is a shield. For homeowners, a clear, specific, and undeniable paper trail strengthens their position. For HOA boards, organized records are essential for smooth operations, seamless transitions between management companies, and, most importantly, avoiding legal liability.
——————————————————————————–
Conclusion: The Devil is in the Details
The case of Duffett v. Suntech Patio Homes HOA is a powerful reminder that in legal disputes, the outcome often hinges on the small stuff. Small details—the quality of a photocopy, the precise wording of a request, the competence of a vendor, the location of a box of files—can have massive consequences. They can mean the difference between winning and losing, between getting a problem solved and walking away with only a partial victory.
This case shows how easily things can go wrong. The next time you’re in a dispute, what’s the one small detail you might be overlooking that could change everything?
Case Participants
Petitioner Side
Rex E. Duffett(petitioner)
Respondent Side
Nathan Tennyson(attorney) BROWN/OLCOTT, PLLC
Rebecca Stowers(property manager) Pride Community Management Community Manager
Frank Peake(property manager) Pride Community Management Owner of Pride
Shawn Mason(property manager) The Management Trust Former management company staff
Neutral Parties
Tammy L. Eigenheer(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
LDettorre(ADRE staff) Arizona Department of Real Estate
AHansen(ADRE staff) Arizona Department of Real Estate
djones(ADRE staff) Arizona Department of Real Estate
DGardner(ADRE staff) Arizona Department of Real Estate
ncano(ADRE staff) Arizona Department of Real Estate
Petitioner won the statutory claim regarding access to association documents (A.R.S. § 33-1805(A)) and was refunded the $500 filing fee. Petitioner lost the claim regarding the failure to maintain exterior walls (CC&Rs) due to insufficient evidence.
Why this result: Petitioner failed to prove the maintenance issue by a preponderance of the evidence (for case 18F-H1818025-REL).
Key Issues & Findings
Failure to repair and maintain exterior walls
Petitioner alleged the HOA failed to repair damage (crack) to the exterior wall of his unit as required by the CC&Rs. The ALJ found that Petitioner failed to present sufficient evidence (black and white photographs did not clearly show the damage) to establish a violation.
Orders: Petitioner's petition in Case Number 18F-H1818025-REL is denied.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
CC&Rs
5
17
Failure to provide requested association records
Petitioner requested meeting notices and minutes in December 2017. Respondent's former management company failed to respond in a timely fashion. Petitioner established by a preponderance of the evidence that Respondent violated the statute.
Orders: Petitioner deemed the prevailing party in Case Number 18F-H1818027-REL. Respondent ordered to comply with A.R.S. § 33-1805(A) in the future and pay Petitioner the filing fee of $500.00.
Administrative Hearing Brief: Duffett vs. Suntech Patio Homes HOA
Executive Summary
This briefing document analyzes the Administrative Law Judge Decision in two consolidated cases filed by homeowner Rex E. Duffett against the Suntech Patio Homes Homeowners Association (HOA). The ruling presents a split decision, with the petitioner prevailing on one claim while failing to provide sufficient evidence for the other.
The first petition, concerning the HOA’s alleged failure to repair exterior walls, was denied. The petitioner failed to meet the burden of proof, as the submitted photographic evidence was unclear and did not sufficiently establish the existence or severity of the damage requiring immediate repair.
The second petition, concerning the HOA’s failure to provide association records upon request, was upheld. The judge found that the HOA, through its former management company, violated state law (A.R.S. § 33-1805(A)) by not responding to a formal document request within the mandated ten-business-day window.
As a result, Mr. Duffett was deemed the prevailing party in the records-request case. The HOA was ordered to pay his $500 filing fee and to ensure future compliance with the relevant statutes. The case highlights critical issues of evidence quality in homeowner disputes and demonstrates the legal liability an HOA retains for the failures of its management agents, particularly during periods of transition.
——————————————————————————–
Case Overview
Case Numbers
18F-H1818025-REL and 18F-H1818027-REL (Consolidated)
Petitioner
Rex E. Duffett
Respondent
Suntech Patio Homes Homeowners Association
Hearing Date
April 4, 2018
Decision Date
April 24, 2018
Presiding Judge
Administrative Law Judge Tammy L. Eigenheer
The hearing addressed two separate petitions filed by Rex E. Duffett with the Arizona Department of Real Estate:
1. Petition 1 (18F-H1818025-REL): Alleged the HOA violated community CC&Rs by failing to repair exterior walls of the petitioner’s unit.
2. Petition 2 (18F-H1818027-REL): Alleged the HOA violated A.R.S. § 33-1805(A) by failing to provide requested documents.
Petition 1: Failure to Repair Exterior Walls (Denied)
Petitioner’s Allegations and Evidence
• Core Claim: The petitioner alleged the HOA failed its duty, as defined by a March 1993 amendment to the CC&Rs, to maintain the exterior walls of his unit. The CC&Rs state, “The Suntech Patio Homeowners Association shall be responsible for the painting and maintenance of the following: A) Exterior walls of all units . . . .”
• Initial Request (July 14, 2017): Mr. Duffett faxed the HOA’s management company, The Management Trust, stating, “While inspecting the outside of my property I noticed a crack in the exterior wall. Please inspect, repair and paint the wall as soon as possible to prevent any damage which could result from rain water in the interior of the wall.”
• Follow-Up Request (August 21, 2017): In a certified letter, Mr. Duffett provided more detail, identifying a crack in the entryway wall allowing “rain water to seep into the interior wall,” a “bare concrete” area on the garage, and a previously cracked garage wall that had been repaired by a roofing company but not painted.
• Hearing Testimony: Mr. Duffett testified that a roofing company he hired to find a leak in his garage ceiling determined the source was not the roof but a crack in the exterior wall.
• Submitted Evidence: The petitioner submitted five black-and-white photographs of his home’s exterior across his two communications.
Respondent’s Position and Evidence
• Management Transition: Pride Community Management took over from The Management Trust on February 1, 2018. The new manager, Rebecca Stowers, and owner, Frank Peake, testified to a difficult transition where The Management Trust initially provided only one box of records, later discovering seven or eight more boxes in storage. Mr. Peake stated that Pride had not seen the petitioner’s communications regarding the damage until the hearing.
• Inspection: Ms. Stowers testified that she inspected the petitioner’s home on March 27, 2018. While she noted “a missing area of stucco on the front of the garage that needed to be repaired,” she “denied being able to identify a crack in the stucco anywhere else on the front of the house.”
• Community-Wide Repair Plan: Ms. Stowers stated that the HOA intended to repair the stucco and paint all exterior walls in the community during the 2018 calendar year at a projected cost of $46,000, to be funded potentially through a special assessment due to the HOA being underfunded.
Conclusion of Law and Ruling
• Burden of Proof: The Administrative Law Judge (ALJ) determined that the petitioner bore the burden of proving his claim by a preponderance of the evidence.
• Evidence Failure: The ALJ found the submitted evidence insufficient. The decision states: “The black and white photographs submitted at hearing did not clearly show the crack Petitioner alleged existed on the exterior wall of his unit… The Administrative Law Judge was unable to identify the location or severity of the alleged crack, and therefore, cannot conclude that such a crack exists and/or that it is necessary to be repaired immediately.”
• Final Ruling: The petitioner failed to meet his burden of proof. The petition in Case Number 18F-H1818025-REL was denied.
Petition 2: Failure to Provide Association Records (Upheld)
Petitioner’s Allegations and Evidence
• Core Claim: The petitioner alleged that the HOA violated A.R.S. § 33-1805(A), which requires an association to fulfill a request for records within ten business days.
• The Request (December 22, 2017): Mr. Duffett faxed The Management Trust a request for specific documents, citing a statement made by the HOA in a separate case. He requested copies of:
◦ Meeting notices and minutes for all meetings where “rules and regulations were discussed” in August/September 2017.
◦ Meeting notices and minutes for meetings where the last HOA dues increase was discussed.
◦ A copy of the notice for the last association rate increase.
Respondent’s Position and Evidence
• Lack of Awareness: The HOA’s initial response on January 29, 2018, indicated it had only become aware of the request upon receiving notice of the petition. The current management company, Pride, testified they had not seen the original communication from the petitioner.
• Vagueness of Request: Frank Peake of Pride testified that the request for minutes of meetings “where the rules and regulations were discussed” was unclear “because rules and regulations are discussed in some form at virtually every meeting of the association.”
• Claim of Privilege: The initial response from The Management Trust on January 29, 2018, claimed that the requested minutes were for “closed executive meetings and were only available to Board members.”
Conclusion of Law and Ruling
• Statutory Violation: The ALJ concluded that the petitioner clearly made a request for documents and that the HOA, via its former management company, failed to act as required by law.
• Failure of Former Management: The decision explicitly faults the prior management company: “The Management Trust should have responded or requested additional clarification of what documents Petitioner was requesting as it was the management company during the ten day window Respondent had to respond pursuant to the statute.”
• Final Ruling: The petitioner successfully established by a preponderance of the evidence that the HOA violated A.R.S. § 33-1805(A). Mr. Duffett was deemed the prevailing party in Case Number 18F-H1818027-REL.
Final Order and Implications
The Administrative Law Judge issued the following orders based on the conclusions of law:
Case Number
Subject
Ruling
18F-H1818025-REL
Exterior Wall Repairs
Petition Denied
18F-H1818027-REL
Document Request
Petitioner Deemed Prevailing Party
Directives to the Respondent (Suntech Patio Homes HOA):
1. Future Compliance: The HOA must comply with the provisions of A.R.S. § 33-1805(A) going forward.
2. Payment of Filing Fee: The HOA must pay the petitioner his filing fee of $500.00 within thirty (30) days of the order.
This order is considered binding on the parties unless a rehearing is granted.
The Petitioner was deemed the prevailing party after the Tribunal concluded that the Respondent, Terravita Country Club, Inc., violated A.R.S. § 33-1805 by failing to timely provide access to records within the mandated 10 business days. The Respondent was ordered to comply with the statute and refund the Petitioner's $500.00 filing fee. No civil penalty was imposed.
Key Issues & Findings
Failure to timely respond to records request
Petitioner alleged Respondent failed to timely respond to his July 30, 2016 records request, pursuant to A.R.S. § 33-1805(A). The Tribunal found that Petitioner established by a preponderance of the evidence that Respondent failed to fulfill the request for examination of records within 10 business days, violating A.R.S. § 33-1805.
Orders: Respondent is ordered to comply with A.R.S. § 33-1805 regarding Petitioner’s request for records within 10 days of the Order. Respondent is ordered to pay Petitioner his filing fee of $500.00 within thirty (30) days.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1805
A.R.S. § 33-1805(A)
Analytics Highlights
Topics: HOA Records Request, Failure to Respond, Statutory Violation, Filing Fee Refund
Additional Citations:
A.R.S. § 33-1805
A.R.S. § 41-2198.01
A.R.S. § 41-1092.01
Video Overview
Audio Overview
Decision Documents
17F-H1716005-REL Decision – 574630.pdf
Uploaded 2025-10-09T03:31:03 (87.9 KB)
17F-H1716005-REL Decision – 575115.pdf
Uploaded 2025-10-09T03:31:03 (789.4 KB)
Briefing Doc – 17F-H1716005-REL
Briefing Document: Brown v. Terravita Country Club, Inc.
Executive Summary
This document summarizes the administrative hearing and final order in the case of William M. Brown (Petitioner) versus Terravita Country Club, Inc. (Respondent), Case No. 17F-H1716005-REL. The central issue was Terravita’s failure to respond to a member’s request for records within the 10-business-day timeframe mandated by Arizona Revised Statutes (A.R.S.) § 33-1805.
The Administrative Law Judge (ALJ) found the Petitioner’s testimony and evidence to be credible, establishing that Mr. Brown submitted a valid records request via e-mail on July 30, 2016, to which Terravita did not timely respond. The ALJ found the testimony of Terravita’s key witness to be unreliable and rejected Terravita’s defenses, which included claims of non-receipt, improper submission procedure, and falsified evidence.
Ultimately, the ALJ ruled in favor of the Petitioner, concluding that Terravita violated A.R.S. § 33-1805. The recommended order, which was subsequently adopted as a Final Order by the Commissioner of the Department of Real Estate, mandated that Terravita comply with the records request, reimburse the Petitioner’s $500 filing fee, and deemed the Petitioner the prevailing party. No civil penalty was assessed.
Case Overview
Case Detail
Information
Case Number
17F-H1716005-REL (OAH) / HO 17-16/005 (DRE)
Petitioner
William M. Brown (Appeared on behalf of himself)
Respondent
Terravita Country Club, Inc. (Represented by Joshua Bolen, Esq.)
Adjudicating Body
Arizona Office of Administrative Hearings
Adopting Authority
Arizona Department of Real Estate
Administrative Law Judge
Velva Moses-Thompson
Commissioner
Judy Lowe
Hearing Date
June 19, 2017
ALJ Decision Date
July 10, 2017
Final Order Date
July 11, 2017
Chronology of Events
• February 12, 2016: Anita Bell requests records from Terravita via Mr. Brown’s e-mail account. The request is forwarded to General Manager Tom Forbes.
• February 19, 2016: Mr. Forbes informs Ms. Bell that the records will be ready on February 22.
• March 14, 2016: Ms. Bell submits another records request from Mr. Brown’s e-mail account.
• March 18, 2016: Cici Rausch, Terravita’s Director of Administration, informs Ms. Bell when the records can be retrieved.
• July 29, 2016: Date of the records request at the center of the legal dispute.
• July 30, 2016: Mr. Brown e-mails the records request to Terravita’s Secretary, Fran Wiley. On the same day, he separately requests records from the Terravita Community Association, Inc. (TCA).
• August 6, 2016: Mr. Brown sends another records request to Ms. Wiley.
• August 8, 2016: TCA responds to Mr. Brown’s July 30 request.
• August 12, 2016: Terravita responds to Mr. Brown’s August 6 request.
• August 18, 2016: Mr. Brown files a Petition for Hearing with the Arizona Department of Real Estate, alleging Terravita’s failure to timely respond to his July 30 request.
• September 9, 2016: Terravita files a response, alleging it did not receive the July 30 records request.
• June 19, 2017: The administrative hearing is held.
• July 10, 2017: The ALJ issues a decision finding in favor of Mr. Brown.
• July 11, 2017: The Commissioner of the Department of Real Estate accepts the ALJ’s decision and issues a Final Order.
Analysis of the Central Dispute
The core of the case revolved around whether Terravita violated its statutory duty to respond to Mr. Brown’s records request dated July 29, 2016, which he e-mailed on July 30, 2016.
Petitioner’s Position and Evidence
• Core Allegation: Mr. Brown testified that he sent the records request via e-mail to Terravita’s Secretary, Fran Wiley, on July 30, 2016, and that Terravita failed to respond within the 10-business-day period mandated by law.
• Evidence: Mr. Brown submitted an August 12, 2016 forwarded e-mail (Exhibit P2) that contained the original July 30, 2016 e-mail sent to Ms. Wiley.
• Judicial Finding: The ALJ found Mr. Brown’s testimony to be “credible.”
Respondent’s Defenses and the Court’s Findings
Terravita presented several arguments to contest the allegation, all of which were ultimately unpersuasive to the court.
1. Claim of Non-Receipt: Terravita contended it never received the July 30, 2016 request. Ms. Wiley testified she did not receive a request from Mr. Brown on July 29 or July 30.
◦ Court’s Finding: The ALJ found Ms. Wiley’s testimony to be “unreliable.” The decision noted that Ms. Wiley testified that Terravita was “indirectly” informed around August 5 that “perhaps Mr. Brown had made the request,” which undermined the claim of complete non-awareness.
2. Use of an Incorrect E-mail Address: Ms. Wiley testified that she did not use the e-mail address to which Mr. Brown sent the request for Terravita affairs, claiming she used a different one in her official capacity as Secretary.
◦ Court’s Finding: This argument was implicitly rejected, as the ALJ concluded that Mr. Brown had successfully proven he submitted the request “to its Secretary, Ms. Wiley.”
3. Allegation of Falsified Evidence: Terravita contended that the forwarded e-mail evidence offered by Mr. Brown was falsified.
◦ Court’s Finding: The ALJ noted an inconsistency in Terravita’s position, stating, “Terravita did not contend that the written evidence of Mr. Brown’s August 5, 2016 records request, sent by e-mail to Ms. Wiley, was falsified.” This weakened the credibility of the falsification claim against the July 30 e-mail.
4. Non-Compliance with Internal Policy: Terravita argued that its own Rules, Policies, and Procedures required members to submit records requests to the General Manager and/or Director of Administration, not the Secretary.
◦ Court’s Finding: The decision focused entirely on the violation of the state statute, A.R.S. § 33-1805, indicating that the statutory obligation superseded the association’s internal procedural preferences.
Legal Framework and Conclusions of Law
• Governing Statute: A.R.S. § 33-1805(A) mandates that a homeowners’ association “shall have ten business days to fulfill a request for examination” of its financial and other records by a member.
• Burden of Proof: The Petitioner was required to prove the violation 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.”
• Conclusion of Law: The ALJ determined that Mr. Brown successfully established by a preponderance of the evidence that:
1. He submitted a request for records to Terravita’s Secretary via e-mail on July 30, 2016.
2. Terravita failed to fulfill this request within the statutory 10-business-day deadline.
• Final Judgment: The Tribunal concluded that “Terravita violated the charged provision of A.R.S. § 33-1805.” It was also noted that Terravita did not contend that any of the statutory exceptions to disclosure, such as privileged communication or pending litigation, applied.
Final Order and Directives
The ALJ’s decision was formally adopted by the Commissioner of the Department of Real Estate on July 11, 2017, making it a Final Order with the following mandates:
• Prevailing Party: Petitioner William M. Brown was deemed the prevailing party.
• Compliance with Request: Terravita was ordered to “comply with the applicable provisions of A.R.S. § 33-1805 regarding Petitioner’s request of Terravita’s records” within 10 days of the Order.
• Reimbursement of Filing Fee: Terravita was ordered to pay the Petitioner his filing fee of $500.00 directly to him within thirty (30) days.
• Civil Penalty: The court determined that “No Civil Penalty is found to be appropriate in this matter.”
• Effective Date: The Order was made effective five (5) days from the date of its certification. The Final Order itself is effective immediately from the date of service, July 11, 2017.
Study Guide – 17F-H1716005-REL
Study Guide: Brown v. Terravita Country Club, Inc. (Case No. 17F-H1716005-REL)
This study guide provides a comprehensive review of the administrative hearing decision concerning William M. Brown’s records request to the Terravita Country Club. The case centers on the interpretation and application of Arizona Revised Statute § 33-1805, which governs a member’s right to access association records. The guide includes a short-answer quiz, essay questions for deeper analysis, and a glossary of key terms as defined and used within the legal documents.
——————————————————————————–
Short-Answer Quiz
Instructions: Answer the following questions in two to three complete sentences, drawing information exclusively from the provided case documents.
1. Who were the Petitioner and Respondent in this case, and what was their established relationship?
2. What specific failure by Terravita Country Club, Inc. led Mr. Brown to file his Petition for Hearing with the Arizona Department of Real Estate?
3. According to A.R.S. § 33-1805, what is the required timeframe for an association to fulfill a member’s request to examine its records?
4. What were the primary arguments Terravita presented to defend its failure to provide the requested records?
5. How did the Administrative Law Judge assess the credibility of the testimony provided by Mr. Brown and Terravita’s witness, Ms. Fran Wiley?
6. What piece of documentary evidence did Mr. Brown submit to prove he had sent the records request on July 30, 2016?
7. What is the standard of proof required in this hearing, and how is that standard defined in the decision?
8. What two specific actions did the final Recommended Order compel Terravita to take as a result of the ruling?
9. Why was Terravita’s argument that Mr. Brown failed to follow its internal rules for submitting records requests ultimately unsuccessful?
10. What was the role of the Commissioner of the Department of Real Estate after the Administrative Law Judge issued her decision?
——————————————————————————–
Answer Key
1. The Petitioner was William M. Brown, and the Respondent was Terravita Country Club, Inc. At all times relevant to the matter, Mr. Brown was a member of the Terravita Country Club.
2. Mr. Brown filed the petition because Terravita failed to respond to his July 30, 2016, request for records within the 10-business-day timeframe mandated by A.R.S. § 33-1805(A). This failure to provide timely access to the records was the central violation alleged.
3. A.R.S. § 33-1805(A) states that the association must fulfill a request for examination of its records within ten business days. If copies are requested, the association has ten business days to provide them and may charge up to fifteen cents per page.
4. Terravita argued that it never received the July 30, 2016, request from Mr. Brown. They also contended that his email evidence was falsified and that he failed to comply with their internal policy requiring such requests be sent to the General Manager or Director of Administration.
5. The Administrative Law Judge found Mr. Brown’s testimony to be credible. Conversely, the Judge found the testimony of Ms. Wiley, who testified on behalf of Terravita, to be unreliable.
6. Mr. Brown submitted an August 12, 2016, forwarded email that contained his original July 30, 2016, email to Ms. Wiley. This original email contained the records request dated July 29, 2016.
7. The standard of proof was a “preponderance of the evidence.” The decision defines this as “such proof as convinces the trier of fact that the contention is more probably true than not” and as having “the most convincing force” or “superior evidentiary weight.”
8. The Recommended Order compelled Terravita to pay Mr. Brown’s $500 filing fee within thirty days of the order. It also ordered Terravita to comply with the records request and provide the documents within ten days of the order.
9. The argument was unsuccessful because the Judge concluded that Terravita violated the plain meaning of the state statute, A.R.S. § 33-1805. The ruling focused on this statutory violation, noting that Terravita did not contend that any of the law’s specific exceptions for withholding records applied.
10. The Commissioner of the Department of Real Estate, Judy Lowe, was responsible for reviewing the Administrative Law Judge’s decision. The Commissioner accepted the decision and issued a Final Order, which made the Judge’s recommendations legally binding and enforceable.
——————————————————————————–
Essay Questions
Instructions: The following questions are designed for a more in-depth analysis of the case. Formulate comprehensive responses based solely on the provided source documents.
1. Analyze Terravita’s defense strategy. Discuss the strengths and weaknesses of their arguments regarding not receiving the email, the alleged falsification of evidence, and the club’s internal policies for records requests.
2. Explain the concept of “preponderance of the evidence” as defined in the case documents. How did the Administrative Law Judge apply this standard to the conflicting testimonies of William Brown and Fran Wiley to reach her conclusion?
3. Discuss the significance of A.R.S. § 33-1805 in the context of planned communities. Based on the details in the case, why is a member’s right to access association records important, and what protections does this statute provide?
4. Trace the procedural path of this dispute from Mr. Brown’s initial records request to the Final Order. What roles did the Petitioner, the Respondent, the Office of Administrative Hearings, and the Department of Real Estate play in this process?
5. The Administrative Law Judge’s decision rested heavily on findings of credibility. Explore the factors detailed in the case documents that might have led the judge to find Mr. Brown’s testimony “credible” and Ms. Wiley’s “unreliable.”
——————————————————————————–
Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The official (Velva Moses-Thompson) who presides over hearings at the Office of Administrative Hearings, evaluates evidence and testimony, and issues a recommended decision based on the law.
A.R.S. § 33-1805
The Arizona Revised Statute at the heart of the case. It mandates that a planned community association must make all financial and other records reasonably available for a member’s examination within ten business days of a request.
Burden of Proof
The obligation to prove an assertion. The Petitioner (Mr. Brown) bore the burden of proving that the Respondent (Terravita) violated the statute.
Department of Real Estate
The Arizona state agency where Mr. Brown filed his Petition for Hearing. Its Commissioner (Judy Lowe) has the authority to accept an ALJ’s decision and issue a final, binding order.
Office of Administrative Hearings (OAH)
An independent agency that conducts formal hearings for disputes concerning violations of planned community statutes, as authorized by A.R.S. § 41-1092.01.
Petitioner
The party who initiates a legal action by filing a petition. In this matter, the Petitioner was William M. Brown.
Preponderance of the Evidence
The evidentiary standard required for the Petitioner to prove his case. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not” and as evidence with “the most convincing force.”
Prevailing Party
The party who is successful and wins the legal dispute. The Administrative Law Judge’s order deemed the Petitioner, William M. Brown, to be the prevailing party.
Respondent
The party against whom a petition is filed and who must respond to the allegations. In this matter, the Respondent was Terravita Country Club, Inc.
Blog Post – 17F-H1716005-REL
He Sued His HOA Over an Unanswered Email—And Won. Here Are 4 Lessons from the Judge’s Ruling.
1. Introduction: The Black Hole of Bureaucracy
We’ve all been there. You draft a clear, important request, send it to a large organization, and wait. And wait. The silence that follows can feel like your message was sent into a black hole. This frustration is especially common for homeowners dealing with their Homeowners’ Association (HOA), where getting a straight answer or a timely response can seem impossible.
But what if being ignored is more than just frustrating? What if it’s a violation of the law? The case of William M. Brown versus the Terravita Country Club provides a powerful real-world example of one member who fought back against being ignored—and won. His persistence offers crucial lessons for any homeowner who has ever felt powerless against their association’s bureaucracy.
2. Takeaway 1: The “We Never Got the Email” Defense Isn’t Bulletproof
When faced with Mr. Brown’s petition, Terravita’s primary defense was simple: they claimed they never received his July 30, 2016, email requesting association records. They went even further, contending that the email evidence he provided was falsified.
This defense crumbled under scrutiny. Mr. Brown presented a forwarded email as evidence of his original request. In the end, the case came down to witness testimony, and the Administrative Law Judge’s conclusion was direct and unambiguous. The judge made two critical findings on the credibility of the parties involved:
I find Mr. Brown’s testimony to be credible.
And regarding the testimony from Terravita’s representative, the Secretary Ms. Wiley:
I find Ms. Wiley’s testimony to be unreliable.
The judge’s conclusion was not arbitrary; it was based on a clear contradiction in the evidence. Ms. Wiley testified that she did not use the specific email address where Mr. Brown sent the request for association business. However, evidence presented to the court showed that just a few months prior, she had successfully received and processed two separate records requests sent to that very same email address, proving it was a valid and functioning channel for communication. This detail demonstrates how an individual’s careful documentation can expose an organization’s flawed defense.
3. Takeaway 2: State Law Overrules Internal Red Tape
Terravita offered a second line of defense: even if they had received the email, Mr. Brown hadn’t followed their internal “Rules, Policies and Procedures.” The association argued that members were required to submit records requests to the General Manager or Director of Administration, not the association’s Secretary, whom Mr. Brown had emailed.
This argument was deemed irrelevant by the judge. The decision hinged not on Terravita’s internal rules, but on the plain language of Arizona state law, A.R.S. § 33-1805. The statute simply requires the association to make records available within ten business days of a request; it does not specify which officer or employee must receive that request.
By failing to respond, Terravita violated the statute, regardless of its own procedural preferences. This is a critical reminder for all homeowners: your rights are often enshrined in state law, and those rights cannot be diminished or negated by an HOA’s internal bylaws or policies.
4. Takeaway 3: A Simple Request Has a Firm Deadline
The core violation in this case was a failure to meet a specific, legally mandated deadline. Under Arizona law A.R.S. § 33-1805, an association has ten business days to fulfill a member’s request for the examination of records.
The timeline of events was clear:
• Mr. Brown sent his records request via email on July 30, 2016.
• The judge found that “Terravita did not respond to Mr. Brown’s records request within 10 business days.”
Adding weight to this was the fact that the association had previously proven itself more than capable of handling requests sent from Mr. Brown’s email account. Earlier that year, another individual had successfully requested records through the same channel. In those instances, Terravita had been prompt, often acknowledging requests within a day or two and making records available well within the legal deadline. This history undermined any claim of inability to respond. The law’s ten-day deadline is not a vague guideline; it is a specific and enforceable protection for members’ right to information.
5. Takeaway 4: Persistence Can Literally Pay Off
After reviewing the evidence, the judge ruled that Mr. Brown was the “prevailing party.” This victory was not just symbolic; it came with concrete orders that held the association accountable.
The judge’s final decision included the following orders:
• Terravita was ordered to comply with the records request within 10 days.
• Terravita was ordered to pay Mr. Brown his filing fee of $500.00.
Mr. Brown’s persistence didn’t just get him the documents he was legally entitled to; it also resulted in the full reimbursement of his filing costs. This outcome serves as a powerful example that standing up for your rights as a homeowner is not always a futile or expensive endeavor. With proper documentation and an understanding of the law, a single member can hold their association accountable.
6. Conclusion: Your Rights Are Written in Law
While homeowners are obligated to follow their HOA’s rules, the association is equally obligated to follow state law. These laws provide clear rights and protections designed to ensure transparency and fairness. The case of William M. Brown is a testament to the power of a single, well-documented request and the importance of understanding the laws that govern your association.
The next time you feel ignored by a large organization, what’s the one simple step you can take to ensure your request is not only heard, but documented?
Case Participants
Petitioner Side
William M. Brown(petitioner) Appeared on behalf of himself
Anita Bell(records requester) Requested records via Mr. Brown's e-mail account
Respondent Side
Joshua Bolen(attorney) Carpenter, Hazlewood, Delgado & Bolen, PLC Appeared for Respondent Terravita Country Club, Inc.
Fran Wiley(secretary/witness) Terravita Country Club, Inc. Terravita Secretary; testified on behalf of Terravita
Tom Forbes(general manager) Terravita Country Club, Inc.
Cici Rausch(director of administration) Terravita Country Club, Inc.
Neutral Parties
Velva Moses-Thompson(ALJ) Office of Administrative Hearings
Judy Lowe(commissioner) Arizona Department of Real Estate Signed the Final Order
Abby Hansen(HOA coordinator) Arizona Department of Real Estate Addressed for rehearing requests and signed mailing notice
The Petitioner was deemed the prevailing party after the Tribunal concluded that the Respondent, Terravita Country Club, Inc., violated A.R.S. § 33-1805 by failing to timely provide access to records within the mandated 10 business days. The Respondent was ordered to comply with the statute and refund the Petitioner's $500.00 filing fee. No civil penalty was imposed.
Key Issues & Findings
Failure to timely respond to records request
Petitioner alleged Respondent failed to timely respond to his July 30, 2016 records request, pursuant to A.R.S. § 33-1805(A). The Tribunal found that Petitioner established by a preponderance of the evidence that Respondent failed to fulfill the request for examination of records within 10 business days, violating A.R.S. § 33-1805.
Orders: Respondent is ordered to comply with A.R.S. § 33-1805 regarding Petitioner’s request for records within 10 days of the Order. Respondent is ordered to pay Petitioner his filing fee of $500.00 within thirty (30) days.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1805
A.R.S. § 33-1805(A)
Analytics Highlights
Topics: HOA Records Request, Failure to Respond, Statutory Violation, Filing Fee Refund
Additional Citations:
A.R.S. § 33-1805
A.R.S. § 41-2198.01
A.R.S. § 41-1092.01
Video Overview
Audio Overview
Decision Documents
17F-H1716005-REL Decision – 574630.pdf
Uploaded 2026-01-23T17:17:51 (87.9 KB)
17F-H1716005-REL Decision – 575115.pdf
Uploaded 2026-01-23T17:17:55 (789.4 KB)
Briefing Doc – 17F-H1716005-REL
Briefing Document: Brown v. Terravita Country Club, Inc.
Executive Summary
This document summarizes the administrative hearing and final order in the case of William M. Brown (Petitioner) versus Terravita Country Club, Inc. (Respondent), Case No. 17F-H1716005-REL. The central issue was Terravita’s failure to respond to a member’s request for records within the 10-business-day timeframe mandated by Arizona Revised Statutes (A.R.S.) § 33-1805.
The Administrative Law Judge (ALJ) found the Petitioner’s testimony and evidence to be credible, establishing that Mr. Brown submitted a valid records request via e-mail on July 30, 2016, to which Terravita did not timely respond. The ALJ found the testimony of Terravita’s key witness to be unreliable and rejected Terravita’s defenses, which included claims of non-receipt, improper submission procedure, and falsified evidence.
Ultimately, the ALJ ruled in favor of the Petitioner, concluding that Terravita violated A.R.S. § 33-1805. The recommended order, which was subsequently adopted as a Final Order by the Commissioner of the Department of Real Estate, mandated that Terravita comply with the records request, reimburse the Petitioner’s $500 filing fee, and deemed the Petitioner the prevailing party. No civil penalty was assessed.
Case Overview
Case Detail
Information
Case Number
17F-H1716005-REL (OAH) / HO 17-16/005 (DRE)
Petitioner
William M. Brown (Appeared on behalf of himself)
Respondent
Terravita Country Club, Inc. (Represented by Joshua Bolen, Esq.)
Adjudicating Body
Arizona Office of Administrative Hearings
Adopting Authority
Arizona Department of Real Estate
Administrative Law Judge
Velva Moses-Thompson
Commissioner
Judy Lowe
Hearing Date
June 19, 2017
ALJ Decision Date
July 10, 2017
Final Order Date
July 11, 2017
Chronology of Events
• February 12, 2016: Anita Bell requests records from Terravita via Mr. Brown’s e-mail account. The request is forwarded to General Manager Tom Forbes.
• February 19, 2016: Mr. Forbes informs Ms. Bell that the records will be ready on February 22.
• March 14, 2016: Ms. Bell submits another records request from Mr. Brown’s e-mail account.
• March 18, 2016: Cici Rausch, Terravita’s Director of Administration, informs Ms. Bell when the records can be retrieved.
• July 29, 2016: Date of the records request at the center of the legal dispute.
• July 30, 2016: Mr. Brown e-mails the records request to Terravita’s Secretary, Fran Wiley. On the same day, he separately requests records from the Terravita Community Association, Inc. (TCA).
• August 6, 2016: Mr. Brown sends another records request to Ms. Wiley.
• August 8, 2016: TCA responds to Mr. Brown’s July 30 request.
• August 12, 2016: Terravita responds to Mr. Brown’s August 6 request.
• August 18, 2016: Mr. Brown files a Petition for Hearing with the Arizona Department of Real Estate, alleging Terravita’s failure to timely respond to his July 30 request.
• September 9, 2016: Terravita files a response, alleging it did not receive the July 30 records request.
• June 19, 2017: The administrative hearing is held.
• July 10, 2017: The ALJ issues a decision finding in favor of Mr. Brown.
• July 11, 2017: The Commissioner of the Department of Real Estate accepts the ALJ’s decision and issues a Final Order.
Analysis of the Central Dispute
The core of the case revolved around whether Terravita violated its statutory duty to respond to Mr. Brown’s records request dated July 29, 2016, which he e-mailed on July 30, 2016.
Petitioner’s Position and Evidence
• Core Allegation: Mr. Brown testified that he sent the records request via e-mail to Terravita’s Secretary, Fran Wiley, on July 30, 2016, and that Terravita failed to respond within the 10-business-day period mandated by law.
• Evidence: Mr. Brown submitted an August 12, 2016 forwarded e-mail (Exhibit P2) that contained the original July 30, 2016 e-mail sent to Ms. Wiley.
• Judicial Finding: The ALJ found Mr. Brown’s testimony to be “credible.”
Respondent’s Defenses and the Court’s Findings
Terravita presented several arguments to contest the allegation, all of which were ultimately unpersuasive to the court.
1. Claim of Non-Receipt: Terravita contended it never received the July 30, 2016 request. Ms. Wiley testified she did not receive a request from Mr. Brown on July 29 or July 30.
◦ Court’s Finding: The ALJ found Ms. Wiley’s testimony to be “unreliable.” The decision noted that Ms. Wiley testified that Terravita was “indirectly” informed around August 5 that “perhaps Mr. Brown had made the request,” which undermined the claim of complete non-awareness.
2. Use of an Incorrect E-mail Address: Ms. Wiley testified that she did not use the e-mail address to which Mr. Brown sent the request for Terravita affairs, claiming she used a different one in her official capacity as Secretary.
◦ Court’s Finding: This argument was implicitly rejected, as the ALJ concluded that Mr. Brown had successfully proven he submitted the request “to its Secretary, Ms. Wiley.”
3. Allegation of Falsified Evidence: Terravita contended that the forwarded e-mail evidence offered by Mr. Brown was falsified.
◦ Court’s Finding: The ALJ noted an inconsistency in Terravita’s position, stating, “Terravita did not contend that the written evidence of Mr. Brown’s August 5, 2016 records request, sent by e-mail to Ms. Wiley, was falsified.” This weakened the credibility of the falsification claim against the July 30 e-mail.
4. Non-Compliance with Internal Policy: Terravita argued that its own Rules, Policies, and Procedures required members to submit records requests to the General Manager and/or Director of Administration, not the Secretary.
◦ Court’s Finding: The decision focused entirely on the violation of the state statute, A.R.S. § 33-1805, indicating that the statutory obligation superseded the association’s internal procedural preferences.
Legal Framework and Conclusions of Law
• Governing Statute: A.R.S. § 33-1805(A) mandates that a homeowners’ association “shall have ten business days to fulfill a request for examination” of its financial and other records by a member.
• Burden of Proof: The Petitioner was required to prove the violation 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.”
• Conclusion of Law: The ALJ determined that Mr. Brown successfully established by a preponderance of the evidence that:
1. He submitted a request for records to Terravita’s Secretary via e-mail on July 30, 2016.
2. Terravita failed to fulfill this request within the statutory 10-business-day deadline.
• Final Judgment: The Tribunal concluded that “Terravita violated the charged provision of A.R.S. § 33-1805.” It was also noted that Terravita did not contend that any of the statutory exceptions to disclosure, such as privileged communication or pending litigation, applied.
Final Order and Directives
The ALJ’s decision was formally adopted by the Commissioner of the Department of Real Estate on July 11, 2017, making it a Final Order with the following mandates:
• Prevailing Party: Petitioner William M. Brown was deemed the prevailing party.
• Compliance with Request: Terravita was ordered to “comply with the applicable provisions of A.R.S. § 33-1805 regarding Petitioner’s request of Terravita’s records” within 10 days of the Order.
• Reimbursement of Filing Fee: Terravita was ordered to pay the Petitioner his filing fee of $500.00 directly to him within thirty (30) days.
• Civil Penalty: The court determined that “No Civil Penalty is found to be appropriate in this matter.”
• Effective Date: The Order was made effective five (5) days from the date of its certification. The Final Order itself is effective immediately from the date of service, July 11, 2017.
Study Guide – 17F-H1716005-REL
Study Guide: Brown v. Terravita Country Club, Inc. (Case No. 17F-H1716005-REL)
This study guide provides a comprehensive review of the administrative hearing decision concerning William M. Brown’s records request to the Terravita Country Club. The case centers on the interpretation and application of Arizona Revised Statute § 33-1805, which governs a member’s right to access association records. The guide includes a short-answer quiz, essay questions for deeper analysis, and a glossary of key terms as defined and used within the legal documents.
——————————————————————————–
Short-Answer Quiz
Instructions: Answer the following questions in two to three complete sentences, drawing information exclusively from the provided case documents.
1. Who were the Petitioner and Respondent in this case, and what was their established relationship?
2. What specific failure by Terravita Country Club, Inc. led Mr. Brown to file his Petition for Hearing with the Arizona Department of Real Estate?
3. According to A.R.S. § 33-1805, what is the required timeframe for an association to fulfill a member’s request to examine its records?
4. What were the primary arguments Terravita presented to defend its failure to provide the requested records?
5. How did the Administrative Law Judge assess the credibility of the testimony provided by Mr. Brown and Terravita’s witness, Ms. Fran Wiley?
6. What piece of documentary evidence did Mr. Brown submit to prove he had sent the records request on July 30, 2016?
7. What is the standard of proof required in this hearing, and how is that standard defined in the decision?
8. What two specific actions did the final Recommended Order compel Terravita to take as a result of the ruling?
9. Why was Terravita’s argument that Mr. Brown failed to follow its internal rules for submitting records requests ultimately unsuccessful?
10. What was the role of the Commissioner of the Department of Real Estate after the Administrative Law Judge issued her decision?
——————————————————————————–
Answer Key
1. The Petitioner was William M. Brown, and the Respondent was Terravita Country Club, Inc. At all times relevant to the matter, Mr. Brown was a member of the Terravita Country Club.
2. Mr. Brown filed the petition because Terravita failed to respond to his July 30, 2016, request for records within the 10-business-day timeframe mandated by A.R.S. § 33-1805(A). This failure to provide timely access to the records was the central violation alleged.
3. A.R.S. § 33-1805(A) states that the association must fulfill a request for examination of its records within ten business days. If copies are requested, the association has ten business days to provide them and may charge up to fifteen cents per page.
4. Terravita argued that it never received the July 30, 2016, request from Mr. Brown. They also contended that his email evidence was falsified and that he failed to comply with their internal policy requiring such requests be sent to the General Manager or Director of Administration.
5. The Administrative Law Judge found Mr. Brown’s testimony to be credible. Conversely, the Judge found the testimony of Ms. Wiley, who testified on behalf of Terravita, to be unreliable.
6. Mr. Brown submitted an August 12, 2016, forwarded email that contained his original July 30, 2016, email to Ms. Wiley. This original email contained the records request dated July 29, 2016.
7. The standard of proof was a “preponderance of the evidence.” The decision defines this as “such proof as convinces the trier of fact that the contention is more probably true than not” and as having “the most convincing force” or “superior evidentiary weight.”
8. The Recommended Order compelled Terravita to pay Mr. Brown’s $500 filing fee within thirty days of the order. It also ordered Terravita to comply with the records request and provide the documents within ten days of the order.
9. The argument was unsuccessful because the Judge concluded that Terravita violated the plain meaning of the state statute, A.R.S. § 33-1805. The ruling focused on this statutory violation, noting that Terravita did not contend that any of the law’s specific exceptions for withholding records applied.
10. The Commissioner of the Department of Real Estate, Judy Lowe, was responsible for reviewing the Administrative Law Judge’s decision. The Commissioner accepted the decision and issued a Final Order, which made the Judge’s recommendations legally binding and enforceable.
——————————————————————————–
Essay Questions
Instructions: The following questions are designed for a more in-depth analysis of the case. Formulate comprehensive responses based solely on the provided source documents.
1. Analyze Terravita’s defense strategy. Discuss the strengths and weaknesses of their arguments regarding not receiving the email, the alleged falsification of evidence, and the club’s internal policies for records requests.
2. Explain the concept of “preponderance of the evidence” as defined in the case documents. How did the Administrative Law Judge apply this standard to the conflicting testimonies of William Brown and Fran Wiley to reach her conclusion?
3. Discuss the significance of A.R.S. § 33-1805 in the context of planned communities. Based on the details in the case, why is a member’s right to access association records important, and what protections does this statute provide?
4. Trace the procedural path of this dispute from Mr. Brown’s initial records request to the Final Order. What roles did the Petitioner, the Respondent, the Office of Administrative Hearings, and the Department of Real Estate play in this process?
5. The Administrative Law Judge’s decision rested heavily on findings of credibility. Explore the factors detailed in the case documents that might have led the judge to find Mr. Brown’s testimony “credible” and Ms. Wiley’s “unreliable.”
——————————————————————————–
Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The official (Velva Moses-Thompson) who presides over hearings at the Office of Administrative Hearings, evaluates evidence and testimony, and issues a recommended decision based on the law.
A.R.S. § 33-1805
The Arizona Revised Statute at the heart of the case. It mandates that a planned community association must make all financial and other records reasonably available for a member’s examination within ten business days of a request.
Burden of Proof
The obligation to prove an assertion. The Petitioner (Mr. Brown) bore the burden of proving that the Respondent (Terravita) violated the statute.
Department of Real Estate
The Arizona state agency where Mr. Brown filed his Petition for Hearing. Its Commissioner (Judy Lowe) has the authority to accept an ALJ’s decision and issue a final, binding order.
Office of Administrative Hearings (OAH)
An independent agency that conducts formal hearings for disputes concerning violations of planned community statutes, as authorized by A.R.S. § 41-1092.01.
Petitioner
The party who initiates a legal action by filing a petition. In this matter, the Petitioner was William M. Brown.
Preponderance of the Evidence
The evidentiary standard required for the Petitioner to prove his case. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not” and as evidence with “the most convincing force.”
Prevailing Party
The party who is successful and wins the legal dispute. The Administrative Law Judge’s order deemed the Petitioner, William M. Brown, to be the prevailing party.
Respondent
The party against whom a petition is filed and who must respond to the allegations. In this matter, the Respondent was Terravita Country Club, Inc.
Blog Post – 17F-H1716005-REL
He Sued His HOA Over an Unanswered Email—And Won. Here Are 4 Lessons from the Judge’s Ruling.
1. Introduction: The Black Hole of Bureaucracy
We’ve all been there. You draft a clear, important request, send it to a large organization, and wait. And wait. The silence that follows can feel like your message was sent into a black hole. This frustration is especially common for homeowners dealing with their Homeowners’ Association (HOA), where getting a straight answer or a timely response can seem impossible.
But what if being ignored is more than just frustrating? What if it’s a violation of the law? The case of William M. Brown versus the Terravita Country Club provides a powerful real-world example of one member who fought back against being ignored—and won. His persistence offers crucial lessons for any homeowner who has ever felt powerless against their association’s bureaucracy.
2. Takeaway 1: The “We Never Got the Email” Defense Isn’t Bulletproof
When faced with Mr. Brown’s petition, Terravita’s primary defense was simple: they claimed they never received his July 30, 2016, email requesting association records. They went even further, contending that the email evidence he provided was falsified.
This defense crumbled under scrutiny. Mr. Brown presented a forwarded email as evidence of his original request. In the end, the case came down to witness testimony, and the Administrative Law Judge’s conclusion was direct and unambiguous. The judge made two critical findings on the credibility of the parties involved:
I find Mr. Brown’s testimony to be credible.
And regarding the testimony from Terravita’s representative, the Secretary Ms. Wiley:
I find Ms. Wiley’s testimony to be unreliable.
The judge’s conclusion was not arbitrary; it was based on a clear contradiction in the evidence. Ms. Wiley testified that she did not use the specific email address where Mr. Brown sent the request for association business. However, evidence presented to the court showed that just a few months prior, she had successfully received and processed two separate records requests sent to that very same email address, proving it was a valid and functioning channel for communication. This detail demonstrates how an individual’s careful documentation can expose an organization’s flawed defense.
3. Takeaway 2: State Law Overrules Internal Red Tape
Terravita offered a second line of defense: even if they had received the email, Mr. Brown hadn’t followed their internal “Rules, Policies and Procedures.” The association argued that members were required to submit records requests to the General Manager or Director of Administration, not the association’s Secretary, whom Mr. Brown had emailed.
This argument was deemed irrelevant by the judge. The decision hinged not on Terravita’s internal rules, but on the plain language of Arizona state law, A.R.S. § 33-1805. The statute simply requires the association to make records available within ten business days of a request; it does not specify which officer or employee must receive that request.
By failing to respond, Terravita violated the statute, regardless of its own procedural preferences. This is a critical reminder for all homeowners: your rights are often enshrined in state law, and those rights cannot be diminished or negated by an HOA’s internal bylaws or policies.
4. Takeaway 3: A Simple Request Has a Firm Deadline
The core violation in this case was a failure to meet a specific, legally mandated deadline. Under Arizona law A.R.S. § 33-1805, an association has ten business days to fulfill a member’s request for the examination of records.
The timeline of events was clear:
• Mr. Brown sent his records request via email on July 30, 2016.
• The judge found that “Terravita did not respond to Mr. Brown’s records request within 10 business days.”
Adding weight to this was the fact that the association had previously proven itself more than capable of handling requests sent from Mr. Brown’s email account. Earlier that year, another individual had successfully requested records through the same channel. In those instances, Terravita had been prompt, often acknowledging requests within a day or two and making records available well within the legal deadline. This history undermined any claim of inability to respond. The law’s ten-day deadline is not a vague guideline; it is a specific and enforceable protection for members’ right to information.
5. Takeaway 4: Persistence Can Literally Pay Off
After reviewing the evidence, the judge ruled that Mr. Brown was the “prevailing party.” This victory was not just symbolic; it came with concrete orders that held the association accountable.
The judge’s final decision included the following orders:
• Terravita was ordered to comply with the records request within 10 days.
• Terravita was ordered to pay Mr. Brown his filing fee of $500.00.
Mr. Brown’s persistence didn’t just get him the documents he was legally entitled to; it also resulted in the full reimbursement of his filing costs. This outcome serves as a powerful example that standing up for your rights as a homeowner is not always a futile or expensive endeavor. With proper documentation and an understanding of the law, a single member can hold their association accountable.
6. Conclusion: Your Rights Are Written in Law
While homeowners are obligated to follow their HOA’s rules, the association is equally obligated to follow state law. These laws provide clear rights and protections designed to ensure transparency and fairness. The case of William M. Brown is a testament to the power of a single, well-documented request and the importance of understanding the laws that govern your association.
The next time you feel ignored by a large organization, what’s the one simple step you can take to ensure your request is not only heard, but documented?
Case Participants
Petitioner Side
William M. Brown(petitioner) Appeared on behalf of himself
Anita Bell(records requester) Requested records via Mr. Brown's e-mail account
Respondent Side
Joshua Bolen(attorney) Carpenter, Hazlewood, Delgado & Bolen, PLC Appeared for Respondent Terravita Country Club, Inc.
Fran Wiley(secretary/witness) Terravita Country Club, Inc. Terravita Secretary; testified on behalf of Terravita
Tom Forbes(general manager) Terravita Country Club, Inc.
Cici Rausch(director of administration) Terravita Country Club, Inc.
Neutral Parties
Velva Moses-Thompson(ALJ) Office of Administrative Hearings
Judy Lowe(commissioner) Arizona Department of Real Estate Signed the Final Order
Abby Hansen(HOA coordinator) Arizona Department of Real Estate Addressed for rehearing requests and signed mailing notice
