Case Summary
| Case ID | 24F-H018-REL |
|---|---|
| Agency | ADRE |
| Tribunal | OAH |
| Decision Date | 2024-02-09 |
| Administrative Law Judge | Adam D. Stone |
| Outcome | loss |
| Filing Fees Refunded | $500.00 |
| Civil Penalties | $0.00 |
Parties & Counsel
| Petitioner | MARGARET LEWIS | Counsel | — |
|---|---|---|---|
| Respondent | FLORENCE GARDENS MOBILE HOME ASSOCIATION | Counsel | Marcus Martinez, Esq. |
Alleged Violations
ARIZ. REV. STAT. § 33-1808(L)
Outcome Summary
The Administrative Law Judge denied the Petitioner’s petition, finding that the Petitioner failed to prove the Association violated ARIZ. REV. STAT. § 33-1808(L) because the newsletter did not constitute an assembly using common areas as required by the statute.
Why this result: Petitioner failed to meet the burden of proof, specifically because the tribunal found the newsletter did not constitute “peacefully assemble and use common areas” as required by ARIZ. REV. STAT. § 33-1808(L).
Key Issues & Findings
Alleged violation of ARS § 33-1808(L) regarding the right to peacefully assemble and use common areas due to the issuance of a cease and desist letter concerning a newsletter.
Petitioner alleged the HOA violated ARS § 33-1808(L) by sending a cease and desist letter regarding statements in her community newsletter. Petitioner argued the newsletter constituted a 'meeting' or 'assembly' protected by the statute, while Respondent argued the statute requires physical assembly and use of common areas. The tribunal ultimately found that the newsletter did not satisfy the statutory requirement for assembly in common areas.
Orders: Petitioner’s petition was denied. Respondent shall not reimburse Petitioner’s filing fee.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
- ARIZ. REV. STAT. § 33-1808(L)
- ARIZ. REV. STAT. § 32-2199.02(A)
- ARIZ. REV. STAT. § 32-2199.05
- McCoy versus Johnson 1 CAD 2167
Analytics Highlights
- ARIZ. REV. STAT. § 33-1808(L)
- ARIZ. REV. STAT. § 32-2199.02(A)
- McCoy versus Johnson 1 CAD 2167
Video Overview
Audio Overview
Decision Documents
24F-H018-REL Decision – 1117204.pdf
24F-H018-REL Decision – 1117206.pdf
24F-H018-REL Decision – 1130156.pdf
24F-H018-REL Decision – 1142847.pdf
Questions
Question
Does publishing a community newsletter count as 'peaceful assembly' protected by Arizona HOA laws?
Short Answer
No. The Administrative Law Judge ruled that a written newsletter does not satisfy the statutory definition of assembling in common areas.
Detailed Answer
The ALJ determined that A.R.S. § 33-1808(L), which protects the right to assemble in common areas, does not extend to written publications like newsletters. The judge noted that if the legislature intended to protect such mediums, they would have explicitly included them in the statute.
Alj Quote
Further, the tribunal disagrees that the newsletter can be read as satisfying the 'peacefully assemble and use common areas' of the community. If the legislature had intended to include newsletters or social media posts, it had at least three opportunities, since the legislation was drafted every year from 2020 until it ultimately passed and was signed into law in 2022.
Legal Basis
A.R.S. § 33-1808(L)
Topic Tags
- newsletters
- freedom of assembly
- legislative intent
Question
Can my HOA send me a 'cease and desist' letter regarding the content of my newsletter without violating my rights?
Short Answer
Yes, if the letter is a warning regarding specific content (like defamation) rather than a total prohibition on publishing.
Detailed Answer
The ALJ found no violation where an HOA sent a letter warning a homeowner about potential defamation claims regarding specific comments. Because the homeowner was not actually stopped from publishing future newsletters, the HOA did not 'prohibit or unreasonably restrict' the member's rights.
Alj Quote
Respondent sent the cease and desist letter as a warning to Petitioner that a claim may be made for defamation should those specific comments continue. There was no evidence presented that a court case was filed or that Petitioner had been fined as a result of her newsletter.
Legal Basis
A.R.S. § 33-1808(L)
Topic Tags
- cease and desist
- defamation
- HOA correspondence
Question
Does A.R.S. § 33-1808(L) protect social media posts or online communications?
Short Answer
No. The ruling explicitly states that this statute was not intended to cover social media posts.
Detailed Answer
The decision interprets the 'peaceful assembly' statute strictly. The judge reasoned that the legislature had multiple opportunities to include digital communications or social media in the text of the law but chose not to do so.
Alj Quote
If the legislature had intended to include newsletters or social media posts, it had at least three opportunities, since the legislation was drafted every year from 2020 until it ultimately passed and was signed into law in 2022.
Legal Basis
A.R.S. § 33-1808(L)
Topic Tags
- social media
- electronic communication
- statutory interpretation
Question
What standard of proof must a homeowner meet to win a hearing against their HOA?
Short Answer
The homeowner must prove their case by a 'preponderance of the evidence'.
Detailed Answer
The homeowner (Petitioner) bears the burden of proof. They must demonstrate that their claims are 'more probably true than not'—a standard known as the preponderance of the evidence.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1808(L). … 'A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.'
Legal Basis
A.R.S. § 33-1808(L); A.A.C. R2-19-119
Topic Tags
- burden of proof
- legal standards
- evidence
Question
If I lose my hearing against the HOA, will I get my $500 filing fee back?
Short Answer
No. If the petition is denied, the HOA is not required to reimburse the filing fee.
Detailed Answer
The ALJ ordered that because the Petitioner's petition was denied, the Respondent (HOA) was not required to reimburse the filing fee paid to the Department of Real Estate.
Alj Quote
IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall not reimburse Petitioner’s filing fee as required by ARIZ. REV. STAT. § 32-2199.01.
Legal Basis
A.R.S. § 32-2199.02(A)
Topic Tags
- filing fees
- costs
- penalties
Case
- Docket No
- 24F-H018-REL
- Case Title
- Lewis v. Florence Gardens Mobile Home Association
- Decision Date
- 2024-02-09
- Alj Name
- Adam D. Stone
- Tribunal
- OAH
- Agency
- ADRE
Questions
Question
Does publishing a community newsletter count as 'peaceful assembly' protected by Arizona HOA laws?
Short Answer
No. The Administrative Law Judge ruled that a written newsletter does not satisfy the statutory definition of assembling in common areas.
Detailed Answer
The ALJ determined that A.R.S. § 33-1808(L), which protects the right to assemble in common areas, does not extend to written publications like newsletters. The judge noted that if the legislature intended to protect such mediums, they would have explicitly included them in the statute.
Alj Quote
Further, the tribunal disagrees that the newsletter can be read as satisfying the 'peacefully assemble and use common areas' of the community. If the legislature had intended to include newsletters or social media posts, it had at least three opportunities, since the legislation was drafted every year from 2020 until it ultimately passed and was signed into law in 2022.
Legal Basis
A.R.S. § 33-1808(L)
Topic Tags
- newsletters
- freedom of assembly
- legislative intent
Question
Can my HOA send me a 'cease and desist' letter regarding the content of my newsletter without violating my rights?
Short Answer
Yes, if the letter is a warning regarding specific content (like defamation) rather than a total prohibition on publishing.
Detailed Answer
The ALJ found no violation where an HOA sent a letter warning a homeowner about potential defamation claims regarding specific comments. Because the homeowner was not actually stopped from publishing future newsletters, the HOA did not 'prohibit or unreasonably restrict' the member's rights.
Alj Quote
Respondent sent the cease and desist letter as a warning to Petitioner that a claim may be made for defamation should those specific comments continue. There was no evidence presented that a court case was filed or that Petitioner had been fined as a result of her newsletter.
Legal Basis
A.R.S. § 33-1808(L)
Topic Tags
- cease and desist
- defamation
- HOA correspondence
Question
Does A.R.S. § 33-1808(L) protect social media posts or online communications?
Short Answer
No. The ruling explicitly states that this statute was not intended to cover social media posts.
Detailed Answer
The decision interprets the 'peaceful assembly' statute strictly. The judge reasoned that the legislature had multiple opportunities to include digital communications or social media in the text of the law but chose not to do so.
Alj Quote
If the legislature had intended to include newsletters or social media posts, it had at least three opportunities, since the legislation was drafted every year from 2020 until it ultimately passed and was signed into law in 2022.
Legal Basis
A.R.S. § 33-1808(L)
Topic Tags
- social media
- electronic communication
- statutory interpretation
Question
What standard of proof must a homeowner meet to win a hearing against their HOA?
Short Answer
The homeowner must prove their case by a 'preponderance of the evidence'.
Detailed Answer
The homeowner (Petitioner) bears the burden of proof. They must demonstrate that their claims are 'more probably true than not'—a standard known as the preponderance of the evidence.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1808(L). … 'A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.'
Legal Basis
A.R.S. § 33-1808(L); A.A.C. R2-19-119
Topic Tags
- burden of proof
- legal standards
- evidence
Question
If I lose my hearing against the HOA, will I get my $500 filing fee back?
Short Answer
No. If the petition is denied, the HOA is not required to reimburse the filing fee.
Detailed Answer
The ALJ ordered that because the Petitioner's petition was denied, the Respondent (HOA) was not required to reimburse the filing fee paid to the Department of Real Estate.
Alj Quote
IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall not reimburse Petitioner’s filing fee as required by ARIZ. REV. STAT. § 32-2199.01.
Legal Basis
A.R.S. § 32-2199.02(A)
Topic Tags
- filing fees
- costs
- penalties
Case
- Docket No
- 24F-H018-REL
- Case Title
- Lewis v. Florence Gardens Mobile Home Association
- Decision Date
- 2024-02-09
- Alj Name
- Adam D. Stone
- Tribunal
- OAH
- Agency
- ADRE
Case Participants
Petitioner Side
- Margaret Lewis (petitioner)
Appeared on her own behalf - Dennis Legere (witness)
Testified regarding legislative intent; stated he is a lobbyist and volunteer
Respondent Side
- Marcus Martinez (HOA attorney)
Florence Gardens Mobile Home Association - Yasmin Rodriguez (community manager)
Florence Gardens Mobile Home Association
Testified as a witness for Respondent - Nicholas Nagami (HOA attorney)
Florence Gardens Mobile Home Association
Appeared on behalf of Respondent
Neutral Parties
- Adam D. Stone (ALJ)
OAH - Susan Nicolson (Commissioner)
ADRE
