Case Summary
| Case ID | 19F-H1919071-REL-RHG |
|---|---|
| Agency | ADRE |
| Tribunal | OAH |
| Decision Date | 2020-01-30 |
| Administrative Law Judge | Velva Moses-Thompson |
| Outcome | loss |
| Filing Fees Refunded | $0.00 |
| Civil Penalties | $0.00 |
Parties & Counsel
| Petitioner | Thomas J. Van Dan Elzen | Counsel | — |
|---|---|---|---|
| Respondent | Carter Ranch Homeowners Association | Counsel | Augustus H. Shaw IV, Esq. |
Alleged Violations
A.R.S. § 33-1808
Outcome Summary
The Administrative Law Judge dismissed the Petitioner's case, finding that the Petitioner failed to meet the burden of proof to establish that the Respondent HOA violated A.R.S. § 33-1808 or improperly adopted its Flag Display Rule.
Why this result: Petitioner failed to establish a violation of A.R.S. § 33-1808 and failed to prove that the HOA's Flag Display Rule was inconsistent with or improperly adopted under the CC&Rs.
Key Issues & Findings
Flags and Sings
Petitioner Thomas J. Van Dan Elzen filed a petition arguing that the HOA violated A.R.S. § 33-1808 after being notified he violated Association Rules by displaying a “Trump 2020” flag. He argued the HOA's Flag Display Rule was invalid because the CC&Rs only defined SIGNS (DCC&R 3.14) and had no reference to Flags whatsoever, thus the rule was inconsistent with the CC&Rs.
Orders: Petitioner Thomas J. Van Dan Elzen’s petition is dismissed. Respondent is deemed to be the prevailing party.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_loss
- A.R.S. § 33-1808
- A.A.C. R2-19-119
- BLACK'S LAW DICTIONARY 1182 (6th ed. 1990)
- 4 United States Code sections 4 through 10
- ARIZ. REV. STAT. section 32-2199.02(B)
- ARIZ. REV. STAT. section 12-904(A)
Analytics Highlights
- A.R.S. § 33-1808
- A.A.C. R2-19-119
- 4 United States Code sections 4 through 10
Video Overview
Audio Overview
Decision Documents
19F-H1919071-REL-RHG Decision – 767071.pdf
19F-H1919071-REL-RHG Decision – ../19F-H1919071-REL/741807.pdf
Administrative Hearing Brief: Van Dan Elzen v. Carter Ranch Homeowners Association
Executive Summary
This document synthesizes the findings and conclusions from two administrative law judge decisions concerning a dispute between homeowner Thomas J. Van Dan Elzen and the Carter Ranch Homeowners Association (HOA). The core conflict arose from Mr. Van Dan Elzen’s display of a “Trump 2020” flag, which the HOA deemed a violation of its “Flag Display Rule.” Mr. Van Dan Elzen petitioned the Arizona Department of Real Estate, alleging the HOA’s rule was invalid and violated Arizona Revised Statutes (A.R.S.) § 33-1808.
The Administrative Law Judge (ALJ) ultimately dismissed the petition, both in the initial hearing and upon a subsequent rehearing. The central findings were that the petitioner failed to meet his burden of proof to demonstrate that the HOA’s rule was inconsistent with its governing documents (CC&Rs) or that the HOA had violated the state statute. The HOA’s authority to create rules restricting the use of lots, granted by its CC&Rs, was upheld. The final decision affirmed the HOA as the prevailing party, concluding a legal challenge that centered on the distinction between statutorily protected flags and political displays.
——————————————————————————–
I. Case Background and Chronology
The dispute was adjudicated by the Office of Administrative Hearings, with Velva Moses-Thompson serving as the Administrative Law Judge. The case involved a petition filed by a homeowner against his HOA regarding flag display regulations.
Parties Involved:
• Petitioner: Thomas J. Van Dan Elzen (appeared on his own behalf)
• Respondent: Carter Ranch Homeowners Association (represented by Augustus H. Shaw IV, Esq.)
Key Events:
Date (2019-2020)
May 21, 2019
Carter Ranch HOA notifies Mr. Van Dan Elzen that his “Trump 2020” flag violates association rules.
June 14, 2019
Mr. Van Dan Elzen files a petition with the Arizona Department of Real Estate, alleging a violation of A.R.S. § 33-1808.
July 16, 2019
The Department of Real Estate issues a Notice of Hearing.
Sept. 9, 2019
The initial administrative hearing is held.
Sept. 30, 2019
The ALJ issues a decision dismissing the petitioner’s case.
Nov. 18, 2019
The Department of Real Estate issues an order for a rehearing.
Jan. 10, 2020
A rehearing is held.
Jan. 30, 2020
The ALJ issues a final decision on the rehearing, again dismissing the petition.
II. The Core Dispute and Competing Arguments
The central issue was the legality of the Carter Ranch HOA’s rule prohibiting Mr. Van Dan Elzen’s “Trump 2020” flag and the scope of the HOA’s authority to regulate such displays.
A. The Petitioner’s Position (Thomas J. Van Dan Elzen)
Mr. Van Dan Elzen’s challenge was based on the premise that the HOA’s “Flag Display Rule” was invalid because it was not explicitly supported by the language of the community’s Covenants, Conditions, and Restrictions (CC&Rs).
• Primary Argument: He asserted that because the CC&Rs do not specifically contain the word “flag,” any rule created by the HOA Board regulating flags is inconsistent with the CC&Rs and therefore unenforceable.
• Petition Allegation: In his formal petition, Mr. Van Dan Elzen stated the violation was “based on 33-1808 Flags and Sings [sic].” He further argued that the HOA’s rule referenced section 3.14 of the CC&Rs, which he claimed “ONLY defines SIGNS and has no reference to Flags whatsoever.”
B. The Respondent’s Position (Carter Ranch HOA)
The Carter Ranch HOA maintained that its “Flag Display Rule” was a valid exercise of the authority granted to its Board by the community’s governing documents.
• Basis of Authority: The HOA contended that it was authorized to adopt the rule under Article V, Section 5.3 of its CC&Rs.
• Defense of the Rule: The HOA argued that the Flag Display Rule was not inconsistent with the CC&Rs and was properly adopted.
• Argument for Dismissal: Carter Ranch asserted that the petition should be dismissed because the petitioner had not successfully alleged a violation of any statute or provision within the governing documents.
III. Governing Documents and Legal Framework
The case was decided based on an interpretation of both state law and the HOA’s internal governing documents.
A. Carter Ranch Homeowners Association Rules
• The “Flag Display Rule”: The association’s rules and regulations explicitly prohibit the flying of any flag other than the following:
◦ The American Flag
◦ Official or replica flags of the U.S. Army, Navy, Air Force, Marine Corps, or Coast Guard
◦ A POW/MIA flag
◦ The Arizona State flag
◦ An Arizona Indian Nations flag
◦ The Gadsden Flag
• CC&Rs, Article V, Section 5.3: This section grants the HOA Board broad rule-making authority. The text states, in relevant part:
B. Arizona Revised Statutes § 33-1808
This state statute places specific limitations on an HOA’s ability to prohibit certain flags and political signs.
• Section A – Protected Flags: The statute mandates that an HOA “shall not prohibit the outdoor display” of the exact list of flags enumerated in the Carter Ranch “Flag Display Rule” (American, military, POW/MIA, state, etc.). A “Trump 2020” flag is not included in this list of protected flags.
• Section C – Political Signs: The statute addresses political signs separately from flags.
◦ Definition: A “political sign” is defined as “a sign that attempts to influence the outcome of an election.”
◦ Regulation: An HOA may prohibit political signs “earlier than seventy-one days before the day of an election and later than three days after an election day.”
◦ Size/Number: An HOA may regulate the size and number of signs, provided the rules are no more restrictive than local ordinances. If no local ordinance exists, an HOA cannot limit the number of signs but can cap the maximum aggregate dimensions at nine square feet.
IV. Administrative Law Judge’s Conclusions and Final Order
Across both the initial hearing and the rehearing, the ALJ’s conclusions of law consistently favored the respondent HOA. The petitioner failed to meet the required legal standard to prove his case.
A. Burden of Proof
The ALJ established that the petitioner, Mr. Van Dan Elzen, bore the burden of proving by a “preponderance of the evidence” that the HOA had violated A.R.S. § 33-1808. A preponderance of the evidence means showing the fact sought to be proved is “more probable than not.”
B. Key Conclusions of Law
• Validity of the “Flag Display Rule”: The ALJ concluded that the petitioner “had not established that the Association improperly adopted the Flag Display Rule under its CC&Rs.” In the rehearing, this was stated as the petitioner having “not established that the Flag Display Rule was inconsistent with the CC&Rs.”
• No Statutory Violation: A critical conclusion in both decisions was that the petitioner “has not alleged that Carter Ranch violated A.R.S. § 33-1808.”
• Final Judgment: Based on these conclusions, the ALJ determined that Mr. Van Dan Elzen’s petition should be dismissed and that the Carter Ranch HOA should be deemed the prevailing party.
C. Final Order
• Initial Decision (September 30, 2019): “IT IS ORDERED that Petitioner Thomas J. Van Dan Elzen’s petition is dismissed.”
• Rehearing Decision (January 30, 2020): The order to dismiss was reaffirmed. The final notice specified that this order was binding on the parties and that any appeal must be filed for judicial review with the superior court within thirty-five days.
Study Guide: Van Dan Elzen v. Carter Ranch Homeowners Association
This study guide provides a comprehensive review of the administrative law case involving Thomas J. Van Dan Elzen and the Carter Ranch Homeowners Association, based on the legal decisions from September 2019 and January 2020. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms.
——————————————————————————–
Short-Answer Quiz
Instructions: Answer the following questions in 2-3 sentences each, based on the provided case documents.
1. Who were the Petitioner and the Respondent in this case, and what was the official case number?
2. What specific action by the Petitioner prompted the initial notice of violation from the homeowners association?
3. What was the Petitioner’s primary legal argument against the validity of the Association’s “Flag Display Rule”?
4. According to the Carter Ranch CC&Rs, what authority does the Board have to create rules and regulations?
5. What is the “preponderance of the evidence,” and which party had the burden of meeting this standard?
6. List at least five of the flags that are explicitly permitted for display under the Carter Ranch “Flag Display Rule.”
7. Summarize the key provisions of Arizona Revised Statute § 33-1808(C) regarding “political signs.”
8. What was the Administrative Law Judge’s conclusion regarding the Petitioner’s claim that the Association improperly adopted the Flag Display Rule?
9. What was the final outcome of the petition after both the initial hearing on September 9, 2019, and the rehearing on January 10, 2020?
10. Who was the Administrative Law Judge that presided over both hearings?
——————————————————————————–
Answer Key
1. The Petitioner was Thomas J. Van Dan Elzen, and the Respondent was the Carter Ranch Homeowners Association. The case number was 19F-H1919071-REL, with the rehearing designated as 19F-H1919071-REL-RHG.
2. The case was prompted by Mr. Van Dan Elzen displaying a “Trump 2020” flag on a flagpole in his front yard. On or about May 21, 2019, Carter Ranch notified him that this action violated the Association’s rules.
3. The Petitioner argued that the Flag Display Rule was invalid because the community’s Covenants, Conditions, and Restrictions (CC&Rs) do not specifically mention the word “flag.” He asserted that the Association’s rules and regulations can only be based on topics explicitly mentioned in the CC&Rs.
4. Article V, Section 5.3 of the CC&Rs grants the Board the authority to adopt, amend, and repeal rules pertaining to the management of common areas, minimum maintenance standards for lots, the health, safety, or welfare of residents, and restrictions on the use of lots.
5. “Preponderance of the evidence” is evidence that is more convincing and shows that the fact sought to be proved is more probable than not. The Petitioner, Mr. Van Dan Elzen, bore the burden of proving his case by this standard.
6. The Carter Ranch Flag Display Rule permits the display of the American Flag, an official replica of a U.S. military flag (Army, Navy, Air Force, Marine Corps, or Coast Guard), a POW/MIA flag, an Arizona Indian nations flag, the Arizona State flag, and the Gadsden Flag.
7. A.R.S. § 33-1808(C) states that an association cannot prohibit the display of political signs on a member’s property, but it can prohibit them earlier than 71 days before an election and later than 3 days after an election. An association may also regulate the size and number of signs to be no more restrictive than local ordinances, or to a maximum aggregate of nine square feet if no such ordinances exist.
8. The Administrative Law Judge concluded that the Petitioner had not established that the Association improperly adopted the Flag Display Rule under its CC&Rs. The judge found that the rule was not inconsistent with the CC&Rs.
9. In both instances, the Administrative Law Judge ordered that the Petitioner’s petition be dismissed. The Respondent, Carter Ranch Homeowners Association, was deemed the prevailing party in the matter.
10. The Administrative Law Judge for both the initial hearing and the rehearing was Velva Moses-Thompson.
——————————————————————————–
Suggested Essay Questions
Instructions: The following questions are designed to test a deeper, analytical understanding of the case. Formulate a comprehensive response for each.
1. Analyze the Petitioner’s legal strategy. Why did his argument that the CC&Rs do not explicitly mention the word “flag” ultimately fail to meet the “preponderance of the evidence” standard?
2. Explain the relationship between the Carter Ranch CC&Rs, the Association’s Rules and Regulations, and Arizona Revised Statute § 33-1808. How do these documents interact to govern what a resident can display on their property?
3. Discuss the concept of “burden of proof” in this case. How did the “preponderance of the evidence” standard apply to Thomas J. Van Dan Elzen’s petition, and why did the Administrative Law Judge conclude he did not meet it?
4. Could the “Trump 2020” flag have been considered a “political sign” under the definition provided in A.R.S. § 33-1808(C)? Based on the text, evaluate the potential arguments for and against this classification and how the statute’s time restrictions on display might have been relevant.
5. Examine the authority granted to the Carter Ranch HOA Board by Article V, Section 5.3 of its CC&Rs. How did the HOA use this section to justify its Flag Display Rule, and how did the Administrative Law Judge evaluate this justification?
——————————————————————————–
Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The judge who presides over administrative hearings. In this case, the ALJ was Velva Moses-Thompson.
A.R.S. § 33-1808
The Arizona Revised Statute that, notwithstanding community documents, protects the right of homeowners to display certain flags (American, military, POW/MIA, state, etc.) and regulates how an association may restrict political signs.
Burden of Proof
The obligation of a party in a legal proceeding to provide evidence to prove their claim. In this case, the Petitioner had the burden of proof.
Covenants, Conditions, and Restrictions (CC&Rs)
The governing legal documents that set up the guidelines for a planned community or homeowners association. In this case, Article V, Section 5.3 of the CC&Rs gave the Board authority to create rules.
Flag Display Rule
The specific Carter Ranch Association rule prohibiting any flag other than the American Flag, specific military flags, POW/MIA flag, Arizona Indian National flag, Arizona State flag, and the Gadsden Flag.
Petitioner
The party who files a petition to initiate a legal proceeding. In this case, the petitioner was Thomas J. Van Dan Elzen.
Political Sign
As defined in A.R.S. § 33-1808(C), “a sign that attempts to influence the outcome of an election, including supporting or opposing the recall of a public officer or supporting or opposing the circulation of a petition for a ballot measure, question or proposition or the recall of a public officer.”
Preponderance of the Evidence
The standard of proof required in this proceeding. Defined in the decision as “[e]vidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.”
Rehearing
A second hearing of a case. In this matter, a rehearing was held on January 10, 2020, after the initial decision was made on September 30, 2019.
Respondent
The party against whom a petition is filed. In this case, the respondent was the Carter Ranch Homeowners Association.
Study Guide: Van Dan Elzen v. Carter Ranch Homeowners Association
This study guide provides a comprehensive review of the administrative law case involving Thomas J. Van Dan Elzen and the Carter Ranch Homeowners Association, based on the legal decisions from September 2019 and January 2020. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms.
——————————————————————————–
Short-Answer Quiz
Instructions: Answer the following questions in 2-3 sentences each, based on the provided case documents.
1. Who were the Petitioner and the Respondent in this case, and what was the official case number?
2. What specific action by the Petitioner prompted the initial notice of violation from the homeowners association?
3. What was the Petitioner’s primary legal argument against the validity of the Association’s “Flag Display Rule”?
4. According to the Carter Ranch CC&Rs, what authority does the Board have to create rules and regulations?
5. What is the “preponderance of the evidence,” and which party had the burden of meeting this standard?
6. List at least five of the flags that are explicitly permitted for display under the Carter Ranch “Flag Display Rule.”
7. Summarize the key provisions of Arizona Revised Statute § 33-1808(C) regarding “political signs.”
8. What was the Administrative Law Judge’s conclusion regarding the Petitioner’s claim that the Association improperly adopted the Flag Display Rule?
9. What was the final outcome of the petition after both the initial hearing on September 9, 2019, and the rehearing on January 10, 2020?
10. Who was the Administrative Law Judge that presided over both hearings?
——————————————————————————–
Answer Key
1. The Petitioner was Thomas J. Van Dan Elzen, and the Respondent was the Carter Ranch Homeowners Association. The case number was 19F-H1919071-REL, with the rehearing designated as 19F-H1919071-REL-RHG.
2. The case was prompted by Mr. Van Dan Elzen displaying a “Trump 2020” flag on a flagpole in his front yard. On or about May 21, 2019, Carter Ranch notified him that this action violated the Association’s rules.
3. The Petitioner argued that the Flag Display Rule was invalid because the community’s Covenants, Conditions, and Restrictions (CC&Rs) do not specifically mention the word “flag.” He asserted that the Association’s rules and regulations can only be based on topics explicitly mentioned in the CC&Rs.
4. Article V, Section 5.3 of the CC&Rs grants the Board the authority to adopt, amend, and repeal rules pertaining to the management of common areas, minimum maintenance standards for lots, the health, safety, or welfare of residents, and restrictions on the use of lots.
5. “Preponderance of the evidence” is evidence that is more convincing and shows that the fact sought to be proved is more probable than not. The Petitioner, Mr. Van Dan Elzen, bore the burden of proving his case by this standard.
6. The Carter Ranch Flag Display Rule permits the display of the American Flag, an official replica of a U.S. military flag (Army, Navy, Air Force, Marine Corps, or Coast Guard), a POW/MIA flag, an Arizona Indian nations flag, the Arizona State flag, and the Gadsden Flag.
7. A.R.S. § 33-1808(C) states that an association cannot prohibit the display of political signs on a member’s property, but it can prohibit them earlier than 71 days before an election and later than 3 days after an election. An association may also regulate the size and number of signs to be no more restrictive than local ordinances, or to a maximum aggregate of nine square feet if no such ordinances exist.
8. The Administrative Law Judge concluded that the Petitioner had not established that the Association improperly adopted the Flag Display Rule under its CC&Rs. The judge found that the rule was not inconsistent with the CC&Rs.
9. In both instances, the Administrative Law Judge ordered that the Petitioner’s petition be dismissed. The Respondent, Carter Ranch Homeowners Association, was deemed the prevailing party in the matter.
10. The Administrative Law Judge for both the initial hearing and the rehearing was Velva Moses-Thompson.
——————————————————————————–
Suggested Essay Questions
Instructions: The following questions are designed to test a deeper, analytical understanding of the case. Formulate a comprehensive response for each.
1. Analyze the Petitioner’s legal strategy. Why did his argument that the CC&Rs do not explicitly mention the word “flag” ultimately fail to meet the “preponderance of the evidence” standard?
2. Explain the relationship between the Carter Ranch CC&Rs, the Association’s Rules and Regulations, and Arizona Revised Statute § 33-1808. How do these documents interact to govern what a resident can display on their property?
3. Discuss the concept of “burden of proof” in this case. How did the “preponderance of the evidence” standard apply to Thomas J. Van Dan Elzen’s petition, and why did the Administrative Law Judge conclude he did not meet it?
4. Could the “Trump 2020” flag have been considered a “political sign” under the definition provided in A.R.S. § 33-1808(C)? Based on the text, evaluate the potential arguments for and against this classification and how the statute’s time restrictions on display might have been relevant.
5. Examine the authority granted to the Carter Ranch HOA Board by Article V, Section 5.3 of its CC&Rs. How did the HOA use this section to justify its Flag Display Rule, and how did the Administrative Law Judge evaluate this justification?
——————————————————————————–
Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The judge who presides over administrative hearings. In this case, the ALJ was Velva Moses-Thompson.
A.R.S. § 33-1808
The Arizona Revised Statute that, notwithstanding community documents, protects the right of homeowners to display certain flags (American, military, POW/MIA, state, etc.) and regulates how an association may restrict political signs.
Burden of Proof
The obligation of a party in a legal proceeding to provide evidence to prove their claim. In this case, the Petitioner had the burden of proof.
Covenants, Conditions, and Restrictions (CC&Rs)
The governing legal documents that set up the guidelines for a planned community or homeowners association. In this case, Article V, Section 5.3 of the CC&Rs gave the Board authority to create rules.
Flag Display Rule
The specific Carter Ranch Association rule prohibiting any flag other than the American Flag, specific military flags, POW/MIA flag, Arizona Indian National flag, Arizona State flag, and the Gadsden Flag.
Petitioner
The party who files a petition to initiate a legal proceeding. In this case, the petitioner was Thomas J. Van Dan Elzen.
Political Sign
As defined in A.R.S. § 33-1808(C), “a sign that attempts to influence the outcome of an election, including supporting or opposing the recall of a public officer or supporting or opposing the circulation of a petition for a ballot measure, question or proposition or the recall of a public officer.”
Preponderance of the Evidence
The standard of proof required in this proceeding. Defined in the decision as “[e]vidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.”
Rehearing
A second hearing of a case. In this matter, a rehearing was held on January 10, 2020, after the initial decision was made on September 30, 2019.
Respondent
The party against whom a petition is filed. In this case, the respondent was the Carter Ranch Homeowners Association.
Case Participants
Petitioner Side
- Thomas J. Van Dan Elzen (petitioner)
Respondent Side
- Augustus H. Shaw IV (HOA attorney)
Shaw & Lines LLC - Dustin Snow (property manager)
SNOW PROPERTY SERVICES
Neutral Parties
- Velva Moses-Thompson (ALJ)
- Judy Lowe (Commissioner)
Arizona Department of Real Estate
