Case Summary
| Case ID | 19F-H1918009-REL-RHG |
|---|---|
| Agency | ADRE |
| Tribunal | OAH |
| Decision Date | 2019-03-04 |
| Administrative Law Judge | Velva Moses-Thompson |
| Outcome | loss |
| Filing Fees Refunded | $0.00 |
| Civil Penalties | $0.00 |
Parties & Counsel
| Petitioner | Rogelio A. Garcia | Counsel | — |
|---|---|---|---|
| Respondent | Villagio at Tempe Homeowners Association | Counsel | Nathan Tennyson |
Alleged Violations
ARIZ. REV. STAT. section 33-1242
Outcome Summary
The Administrative Law Judge dismissed the petition based on a rehearing, concluding that the Petitioner failed to prove the HOA violated A.R.S. § 33-1242 because the Petitioner's failure to respond by certified mail within 21 days meant the HOA's duties to provide further information or notice of the right to petition ADRE were never triggered.
Why this result: The Petitioner failed to carry the burden of proof to show that the Respondent committed the alleged violation of A.R.S. § 33-1242. The HOA was deemed not obligated to provide the specific statutory disclosures because the Petitioner did not respond to the notices of violation by certified mail within 21 calendar days.
Key Issues & Findings
Alleged violation of HOA notice requirements
Petitioner alleged Respondent violated A.R.S. § 33-1242 by failing to provide specific information (observer name, notice of ADRE petition right) and restricting the 21-day response period in violation notices concerning short term lease provisions. The ALJ found that because the Petitioner did not respond by certified mail within 21 days, the HOA was not required to provide the information under A.R.S. § 33-1242(C) or the notice of administrative hearing option under A.R.S. § 33-1242(D).
Orders: Petitioner’s petition is dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
- ARIZ. REV. STAT. section 33-1242
- ARIZ. REV. STAT. section 32-2199.01
- ARIZ. REV. STAT. section 32-2199.02
- ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
- ARIZ. ADMIN. CODE § R2-19-119
Analytics Highlights
- ARIZ. REV. STAT. section 33-1242
- ARIZ. REV. STAT. section 32-2199.01
- ARIZ. REV. STAT. section 32-2199.02
- ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
- ARIZ. ADMIN. CODE § R2-19-119
Video Overview
Audio Overview
Decision Documents
19F-H1918009-REL-RHG Decision – 692638.pdf
19F-H1918009-REL-RHG Decision – ../19F-H1918009-REL/671673.pdf
Administrative Hearing Briefing: Garcia vs. Villagio at Tempe HOA
Executive Summary
This briefing document synthesizes the findings, arguments, and conclusions from two administrative law judge decisions concerning a dispute between homeowner Rogelio A. Garcia and the Villagio at Tempe Homeowners Association (“Villagio”). The core of the dispute was Mr. Garcia’s allegation that Villagio violated Arizona Revised Statute (A.R.S.) § 33-1242 in its handling of violation notices related to an alleged breach of short-term rental policies.
The Administrative Law Judge ultimately dismissed Mr. Garcia’s petition in both an initial hearing and a subsequent rehearing, finding that he failed to meet the burden of proof. The decisions consistently hinged on a critical point: Mr. Garcia did not respond to Villagio’s violation notices by certified mail within the 21-day period prescribed by the statute. This failure meant that the HOA’s subsequent obligations under the statute—specifically, to provide the name of the violation’s observer and to give notice of the right to a state administrative hearing—were never triggered. Villagio successfully argued that by including its own internal appeal process in the violation notices, it had fulfilled its legal requirements under the circumstances. The final ruling deemed Villagio the prevailing party, with the decision after rehearing being binding on both parties.
Background of the Dispute
The case, No. 19F-H1918009-REL, was adjudicated by Administrative Law Judge Velva Moses-Thompson within the Arizona Office of Administrative Hearings, following a petition filed by Mr. Garcia with the Arizona Department of Real Estate.
Timeline of Notices and Fines
Villagio issued a series of notices to Mr. Garcia alleging that his unit was being rented in violation of the community’s Covenants, Conditions, and Restrictions (CC&Rs) regarding short-term leases.
Date of Notice
Allegation / Action Taken
Instructions Provided to Homeowner
March 8, 2018
Alleged violation of short-term lease provisions.
“If you wish to contest this notice… file an appeal with the Board of Directors… Requests for an appeal must be received within 10 days of receipt of this notice.”
March 22, 2018
A fine of $1,000 posted to Mr. Garcia’s account for the ongoing violation.
Same instructions to appeal within 10 days. The notice also included the phrase, “Please bring this issue into compliance within 10 days of this notice.”
April 5, 2018
A fine of $2,000 posted to Mr. Garcia’s account for the ongoing violation.
Same instructions to appeal within 10 days.
Procedural History
1. Violation Notices: Villagio sent the three notices in March and April 2018.
2. Homeowner Inaction (Statutory): Mr. Garcia did not respond to any of the notices by sending a certified letter within the 21-day period allowed by A.R.S. § 33-1242(B).
3. Homeowner Action (Internal): Mr. Garcia did eventually file an appeal with Villagio regarding the violation and fines, but the HOA did not change its position.
4. Petition Filed: On or about August 17, 2018, Mr. Garcia filed a petition with the Arizona Department of Real Estate, alleging Villagio violated state statutes.
5. Initial Hearing: An evidentiary hearing was held on October 30, 2018.
6. First Decision: On November 19, 2018, the Administrative Law Judge (ALJ) issued a decision dismissing Mr. Garcia’s petition.
7. Rehearing Granted: Mr. Garcia requested a rehearing, which was granted and scheduled.
8. Rehearing: The rehearing was held on February 12, 2019, with testimony from Mr. Garcia and Tom Gordon, Villagio’s Community Manager.
9. Final Decision: On March 4, 2019, the ALJ issued a final decision again dismissing Mr. Garcia’s petition. This order was declared binding and appealable only to the superior court.
Core Legal Arguments and Statutory Interpretation
The case centered on the interpretation and application of A.R.S. § 33-1242, which governs the process for notifying and responding to violations of condominium documents.
Statutory Framework: A.R.S. § 33-1242
• Section (B): A unit owner receiving a violation notice may provide the association with a written response via certified mail within 21 calendar days of the notice date.
• Section (C): If the owner sends a response as described in Section (B), the association must then respond within 10 business days with specific information, including the name of the person who observed the violation and the process to contest the notice.
• Section (D): An association must give a unit owner written notice of their option to petition for a state administrative hearing unless the information regarding the contest process (required in Section C, paragraph 4) is already provided in the initial violation notice.
Petitioner’s Position (Rogelio A. Garcia)
Mr. Garcia argued that Villagio violated A.R.S. § 33-1242 on several grounds:
• The violation letters did not allow him to respond by certified mail within 21 days.
• The notices failed to include the first and last name of the person(s) who observed the violation.
• The notices failed to inform him of his right to petition for an administrative hearing with the state real estate department.
• During the rehearing, he contended that Villagio effectively prevented him from using the 21-day statutory response period. He claimed the rapid succession of notices (14 days apart) and the language demanding compliance “within 10 days” led him to believe he “would only be 10 days before he would acquire another violation.”
Respondent’s Position (Villagio at Tempe HOA)
Villagio disputed all of Mr. Garcia’s allegations, arguing that its actions were fully compliant with the statute:
• The obligation to provide the observer’s name under Section (C) is only triggered after the homeowner first submits a timely certified mail response, which Mr. Garcia failed to do.
• The obligation to provide notice of the right to a state administrative hearing under Section (D) was not applicable because Villagio did provide its internal process for contesting the notice in every letter sent.
• They did not prevent Mr. Garcia from responding. At the rehearing, Mr. Garcia admitted under cross-examination that he was not prohibited by any court order from sending a response.
• Villagio’s Community Manager, Tom Gordon, testified that while the HOA’s policy gives homeowners 10 days to contest internally, the association does not restrict them from also using the 21-day statutory response period.
• As a further defense in the rehearing, Villagio argued that A.R.S. § 33-1242 was not applicable at all, asserting the statute addresses violations concerning the “condition of the property,” whereas Mr. Garcia’s violation concerned the “use of his property.”
Administrative Law Judge’s Findings and Decision
The Administrative Law Judge’s decisions in both the initial hearing and the rehearing were consistent, ruling decisively in favor of the Respondent, Villagio.
Burden of Proof
In both decisions, the Judge established that Mr. Garcia, as the petitioner, bore the burden of proof to show that a violation occurred. The standard of proof required was a “preponderance of the evidence,” defined as evidence with the “most convincing force.”
Key Conclusions of Law
1. Homeowner’s Failure to Respond Was Decisive: The Judge found it was “undisputed” that Mr. Garcia did not respond to any of the three notices within the 21-day period via certified mail. This failure was the central reason his petition was dismissed.
2. HOA Obligations Were Not Triggered: Because Mr. Garcia did not initiate the process described in A.R.S. § 33-1242(B), Villagio’s corresponding obligation under Section (C) to provide the observer’s name was never activated.
3. Internal Appeal Process Satisfied Statutory Requirement: The Judge concluded that because Villagio included instructions on how to contest the notice (i.e., appeal to the Board of Directors) in its letters, it was not required under Section (D) to provide separate notice of the right to a state administrative hearing.
4. No Evidence of Prevention: The Judge found that Mr. Garcia “provided no evidence to establish that Villagio prevented him from responding.” The issuance of subsequent notices and fines before the 21-day period had lapsed was not found to constitute a legal barrier that prevented Mr. Garcia from exercising his statutory right to respond.
5. Final Order: Mr. Garcia failed to establish that Villagio violated A.R.S. § 33-1242. His petition was ordered to be dismissed, and Villagio was deemed the prevailing party. The order issued after the rehearing on March 4, 2019, is binding on the parties and can only be appealed by seeking judicial review in the superior court within 35 days of service.
Study Guide: Garcia v. Villagio at Tempe Homeowners Association
Answer the following ten questions in 2-3 sentences each, based on the provided source documents.
1. What was the initial violation alleged by the Villagio at Tempe Homeowners Association (Villagio) against Rogelio A. Garcia?
2. According to ARIZ. REV. STAT. § 33-1242(B), what specific action must a unit owner take after receiving a violation notice to trigger the association’s obligations under subsection C?
3. Who bears the burden of proof in this type of administrative hearing, and what is the standard of proof required?
4. Why did the Administrative Law Judge rule that Villagio was not required to provide Mr. Garcia with the name of the person who observed the violation?
5. What was Mr. Garcia’s primary argument during the February 12, 2019 rehearing for why he felt he was prevented from responding to the violation notices?
6. What argument did Villagio present at the rehearing distinguishing between the “condition” of a property and the “use” of a property?
7. What two fines were imposed on Mr. Garcia’s account, and on what dates were the notices sent?
8. Why did the Judge conclude that Villagio was not obligated to inform Mr. Garcia of his right to petition for an administrative hearing with the state real estate department?
9. What was the testimony of Tom Gordon, the Community Manager for Villagio, regarding the association’s policy for contesting a notice?
10. What was the final outcome of both the initial hearing on October 30, 2018, and the rehearing on February 12, 2019?
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Answer Key
1. What was the initial violation alleged by the Villagio at Tempe Homeowners Association (Villagio) against Rogelio A. Garcia? The initial violation alleged by Villagio was that Mr. Garcia’s unit was being rented in violation of the short-term lease provisions located in Villagio’s Covenants, Conditions, and Restrictions (CC&Rs). The first notice of this violation was mailed to Mr. Garcia on March 8, 2018.
2. According to ARIZ. REV. STAT. § 33-1242(B), what specific action must a unit owner take after receiving a violation notice to trigger the association’s obligations under subsection C? To trigger the association’s obligations, a unit owner who receives a written notice of violation must provide the association with a written response. This response must be sent by certified mail within twenty-one calendar days after the date of the notice.
3. Who bears the burden of proof in this type of administrative hearing, and what is the standard of proof required? The petitioner, Mr. Garcia, bears the burden of proof to show that the respondent committed the alleged violation. The standard of proof is a “preponderance of the evidence,” which is defined as evidence with the most convincing force that is sufficient to incline a fair and impartial mind to one side of the issue.
4. Why did the Administrative Law Judge rule that Villagio was not required to provide Mr. Garcia with the name of the person who observed the violation? The judge ruled that Villagio was not required to provide the observer’s name because that obligation is only triggered after a unit owner responds to the violation notice in writing by certified mail within 21 days. It is undisputed that Mr. Garcia did not respond to the notices within the 21-day period, so Villagio’s obligation was never activated.
5. What was Mr. Garcia’s primary argument during the February 12, 2019 rehearing for why he felt he was prevented from responding to the violation notices? Mr. Garcia argued that Villagio prevented him from responding by certified mail within 21 days because it failed to wait 21 days before issuing additional notices and imposing fines. He stated that the notices’ language requiring compliance within 10 days made him believe he would acquire another violation before the 21-day statutory response period had passed.
6. What argument did Villagio present at the rehearing distinguishing between the “condition” of a property and the “use” of a property? Villagio contended that A.R.S. § 33-1242 does not apply to this case at all because the statute addresses violations related to the “condition” of the property. Villagio argued that it notified Mr. Garcia that the “use” of his property violated its short-term rental policy, not that a physical condition of the property was in violation.
7. What two fines were imposed on Mr. Garcia’s account, and on what dates were the notices sent? A fine of $1,000 was posted to Mr. Garcia’s account, with the notice being sent on March 22, 2018. Subsequently, a $2,000 fine was posted to his account for the same violation, and that notice was sent on April 5, 2018.
8. Why did the Judge conclude that Villagio was not obligated to inform Mr. Garcia of his right to petition for an administrative hearing with the state real estate department? The Judge concluded that Villagio was not obligated to provide this information because A.R.S. § 33-1242(D) only requires it if the association fails to provide the unit owner with the process for contesting the notice. Villagio’s notices all contained instructions on how to contest the violation, specifically by filing an appeal with the Board of Directors via a provided website.
9. What was the testimony of Tom Gordon, the Community Manager for Villagio, regarding the association’s policy for contesting a notice? Tom Gordon testified that homeowners are provided with 10 days to contest a notice with Villagio, pursuant to Villagio’s short-term rental policy. When asked if Villagio would have abided by “this statute” (A.R.S. § 33-1242) if Mr. Garcia had responded in twenty-one days, Mr. Gordon replied, “No.”
10. What was the final outcome of both the initial hearing on October 30, 2018, and the rehearing on February 12, 2019? In both the initial hearing and the rehearing, the Administrative Law Judge found that Mr. Garcia failed to establish that Villagio violated A.R.S. § 33-1242. Consequently, Mr. Garcia’s petition was dismissed in both instances, and Villagio was deemed the prevailing party.
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Essay Questions
Develop detailed essay-format answers to the following prompts, drawing evidence and examples exclusively from the provided source documents.
1. Analyze the central arguments presented by both Rogelio A. Garcia and the Villagio at Tempe Homeowners Association regarding the application of ARIZ. REV. STAT. § 33-1242. How did the Administrative Law Judge interpret the statute in relation to these arguments in the final decision?
2. Discuss the concept of “burden of proof” and “preponderance of the evidence” as applied in this case. Explain how Mr. Garcia’s failure to meet this burden led to the dismissal of his petition in both the initial hearing and the rehearing.
3. Trace the timeline of events from the first notice sent by Villagio on March 8, 2018, to the final order on March 4, 2019. Explain how Mr. Garcia’s actions, or lack thereof, at key moments influenced the legal obligations of the association and the ultimate outcome of the case.
4. Evaluate Villagio’s argument that A.R.S. § 33-1242 applies only to the “condition” of a property and not its “use.” Although the judge’s decision did not ultimately hinge on this point, discuss the potential implications of this distinction in homeowner association disputes.
5. Explain the two distinct procedural paths available to a unit owner after receiving a violation notice as outlined in this case: the association’s internal appeal process and the statutory process under A.R.S. § 33-1242. Why did the path Mr. Garcia chose fail to trigger the statutory protections he sought?
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Glossary
Definition
Administrative Law Judge (ALJ)
The official who presides over the administrative hearing and rehearing, evaluates evidence, and issues a decision. In this case, Velva Moses-Thompson.
ARIZ. REV. STAT. (A.R.S.)
The abbreviation for Arizona Revised Statutes, which are the codified laws of the state of Arizona that regulate condominiums and planned communities.
Arizona Department of Real Estate (Department)
The state agency that has authority over homeowner association disputes and with which homeowners may petition for a hearing.
Burden of Proof
The obligation of a party in a legal proceeding to prove their allegations. In this case, Mr. Garcia bore the burden of proof.
Covenants, Conditions, and Restrictions (CC&Rs)
The governing documents of the Villagio at Tempe Homeowners Association, which contain the short-term lease provisions Mr. Garcia was alleged to have violated.
Office of Administrative Hearings
The venue where the evidentiary hearing and rehearing for this matter were held.
Petitioner
The party who initiates a legal action by filing a petition. In this case, Rogelio A. Garcia.
Preponderance of the Evidence
The standard of proof required in this matter, defined as “The greater weight of the evidence…that has the most convincing force…sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”
Rehearing
A second hearing on a matter, granted in this case at Mr. Garcia’s request after the initial Administrative Law Judge Decision was issued.
Respondent
The party against whom a petition is filed and who must respond to the allegations. In this case, Villagio at Tempe Homeowners Association.
He Fought His HOA and Followed Their Rules. Here’s Why He Still Lost.
1.0 Introduction: The Dreaded Letter
For many homeowners, it’s a familiar and unwelcome sight: a crisp envelope from the Homeowners Association (HOA) containing a formal, intimidating violation notice. Your first instinct is to act, to follow the instructions, and to fight back against what feels like an unfair accusation. You read the letter, see a process for an appeal, and dutifully follow it, believing you are protecting your rights. But what if the process outlined in the letter isn’t the one that truly matters under the law?
This isn’t a theoretical warning. It’s the hard lesson learned by a real homeowner in Arizona, Rogelio A. Garcia, who took on his HOA, Villagio at Tempe. He believed the association had violated his rights, and unlike many homeowners, he didn’t ignore the notices—he took action. He filed an appeal with the HOA, just as their letter instructed. Yet, he lost his case, not because he was wrong on the facts, but because he fell into a subtle procedural trap, following the HOA’s internal process while missing a separate, more powerful one defined by state law.
This article breaks down the top three legal takeaways from that court decision. It reveals how taking the wrong action can be just as costly as taking no action at all, offering crucial strategic insights for any homeowner facing a dispute with their association.
2.0 Takeaway 1: Your Rights Often Have an ‘On’ Switch You Must Flip First
Mr. Garcia’s primary complaint was that the HOA failed to provide him with the name of the person who reported his alleged violation—a requirement under Arizona statute A.R.S. § 33-1242. On the surface, this seems like a clear-cut right afforded to homeowners.
However, the court revealed a counter-intuitive legal reality. The HOA’s legal obligation to provide the reporter’s name was not automatic. That right only became active—the obligation was only triggered—if the homeowner first took a specific, formal step: sending a written response to the violation notice via certified mail within 21 calendar days. The record was clear that Mr. Garcia did not send such a response to the March 8, March 22, or April 5 notices. This single procedural failure was fatal to his claim.
The judge’s finding on this point was direct and unambiguous:
“Because Mr. Garcia did not respond in the 21 day period, Villagio was not required to provide Mr. Garcia with the first and last name of the person or persons who observed the violation.”
This illustrates a critical principle: your most important legal rights may exist in state law, but they often lie dormant. To activate them, you must flip the “on” switch by taking the precise action required by statute, which may be entirely different from the process described in the HOA’s notice.
3.0 Takeaway 2: An Internal Process Can Legally Replace—and Distract From—a State-Level One
So why would an engaged homeowner like Mr. Garcia, who went so far as to file an appeal, neglect to send the critical 21-day certified letter? The answer lies in the second key takeaway: the HOA’s violation notice offered its own, separate appeal process with a much shorter deadline, creating a critical and costly distraction.
Mr. Garcia’s second major argument was that Villagio violated the law by not informing him of his right to petition for an administrative hearing with the state real estate department. Again, the law contained a crucial nuance. Under A.R.S. § 33-1242(D), an HOA is only required to notify a homeowner of the state hearing option if it fails to provide its own process for contesting the notice. Villagio’s letters did include a process: the homeowner could “file an appeal with the Board of Directors… within 10 days of receipt of this notice.”
Court records show Mr. Garcia followed this path and “filed an appeal with Villagio.” By doing so, he engaged with the HOA on their terms, likely focusing all his energy on meeting that urgent 10-day deadline. Because Villagio provided this internal process, the judge concluded it had met its legal obligation and was not required to inform Mr. Garcia about the alternative state-level hearing. This created a procedural trap: the HOA satisfied its legal requirement by offering an internal process that simultaneously diverted the homeowner’s attention from the more powerful, but less obvious, 21-day statutory deadline that would have unlocked his other rights.
4.0 Takeaway 3: Conflicting Deadlines Can Create a Legal Minefield
During a rehearing, Mr. Garcia argued that the HOA’s communication style effectively “prevented” him from using his full 21-day statutory response window. The notices demanded compliance within 10 days and were sent every 14 days with escalating fines. He felt the rapid succession of notices created a pressure cooker, making it impossible to properly exercise his rights.
The court flatly rejected this argument, highlighting a harsh legal truth. The judge found no evidence that Villagio had explicitly told Mr. Garcia he could not respond or had physically prevented him from sending a certified letter. The issuance of a second notice with a demanding 10-day timeline did not legally nullify the 21-day window he had to respond to the first. When asked directly if he was prohibited by a court order from sending a response, Mr. Garcia answered, “No.”
This reveals a common tactic, whether intentional or not, in HOA disputes. The violation notices contained two conflicting timelines: a prominent, urgent “10 days to comply” demand and the less obvious, but legally superior, 21-day statutory right to respond. This conflict creates confusion and pressure, causing homeowners to focus on the immediate threat (the 10-day deadline) while missing the most important legal one. The court, however, places the burden squarely on the homeowner to navigate this minefield, as feeling pressured is not a legal defense for failing to meet a statutory deadline.
5.0 Conclusion: Know the Rules Before You Play the Game
The case of Mr. Garcia versus the Villagio at Tempe HOA is a powerful reminder that successfully challenging an HOA is not about being “right,” or even about taking action. It is about taking the correct, procedurally perfect action defined by law.
Mr. Garcia was not passive; he engaged and appealed the violation. His case was lost because he followed the path laid out for him by the HOA, not the one laid out for him by state statute. This crucial distinction—between an association’s internal process and the homeowner’s statutory rights—can mean the difference between victory and defeat. Before you act on any violation notice, you must first understand the precise rules of engagement, which may not be written in the notice itself.
If you received a violation notice today, would you know whether the appeal process in the letter is your only option, or a potential distraction from the legal first step required to truly protect your rights?
Case Participants
Petitioner Side
- Rogelio A. Garcia (petitioner)
Appeared on behalf of himself
Respondent Side
- Nathan Tennyson (HOA attorney)
Brown Olcott, PLLC - Tom Gordon (community manager)
Villagio / AAMAZ
Testified as witness for Villagio - Amanda Shaw (property manager/agent)
AAM LLC
Listed as agent for Villagio at Tempe Homeowners Association
Neutral Parties
- Velva Moses-Thompson (ALJ)
Office of Administrative Hearings - Judy Lowe (ADRE Commissioner)
Arizona Department of Real Estate
