Case Summary
| Case ID | 23F-H039-REL |
|---|---|
| Agency | ADRE |
| Tribunal | OAH |
| Decision Date | 2023-10-20 |
| Administrative Law Judge | Kay Abramsohn |
| Outcome | full |
| Filing Fees Refunded | $500.00 |
| Civil Penalties | $0.00 |
Parties & Counsel
| Petitioner | Michael Holland | Counsel | — |
|---|---|---|---|
| Respondent | Tonto Forest Estates Homeowner's Association | Counsel | John A. Buric |
Alleged Violations
A.R.S. § 33-1804(A)
Outcome Summary
The Administrative Law Judge granted the Petition, concluding that the HOA violated A.R.S. § 33-1804(A) because the portion of the meeting where recording was prohibited was not effectively 'closed' (as members were allowed to remain) and therefore remained 'open' and subject to members' right to record.
Key Issues & Findings
Improperly preventing members from recording an open board meeting
The HOA Board prohibited homeowners participating in an open meeting on September 28, 2022, from recording that meeting. The HOA argued the portion was closed due to receiving legal advice/contemplated litigation, but the ALJ found the portion was not effectively 'closed' because no members were required to leave, thus the HOA lacked authority to prevent recording.
Orders: HOA found in violation; ordered to reimburse Petitioner $500.00 filing fee.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
- A.R.S. § 33-1804(A)
- A.R.S. § 33-1804
Analytics Highlights
- A.R.S. § 33-1804
- A.R.S. § 33-1804(A)
- A.R.S. § 33-1804(C)
- A.R.S. § 32-2199.05
- A.R.S. § 41-1092
Video Overview
Audio Overview
https://open.spotify.com/episode/1HMZkdoqbaNNK62AtCa9mz
Decision Documents
23F-H039-REL Decision – 1040495.pdf
23F-H039-REL Decision – 1044744.pdf
23F-H039-REL Decision – 1059207.pdf
23F-H039-REL Decision – 1059214.pdf
23F-H039-REL Decision – 1087229.pdf
23F-H039-REL Decision – 1087233.pdf
23F-H039-REL Decision – 1095655.pdf
23F-H039-REL Decision – 1095796.pdf
23F-H039-REL Decision – 1101606.pdf
23F-H039-REL Decision – 1102499.pdf
23F-H039-REL Decision – 1104514.pdf
23F-H039-REL Decision – 1104862.pdf
Questions
Question
Can I record an open HOA board meeting?
Short Answer
Yes, homeowners have the statutory right to audio or video tape open portions of board and member meetings.
Detailed Answer
Under Arizona law, persons attending HOA meetings are permitted to audiotape or videotape any portion of the meeting that is open. The HOA cannot prohibit this for open sessions.
Alj Quote
A.R.S. § 33-1804(A) allows a person to record 'those portions of the meetings of the board of directors and meetings of the members that are open.'
Legal Basis
A.R.S. § 33-1804(A)
Topic Tags
- recording meetings
- homeowner rights
- open meetings
Question
Can the HOA board stop me from recording if an attorney is giving legal advice?
Short Answer
Not if the meeting remains open to members. To stop recording, the board must physically close the meeting (exclude members).
Detailed Answer
Even if the board intends to receive legal advice (a valid reason to close a meeting), they cannot simply ask members to stop recording while allowing them to remain in the room. If members are allowed to stay, the meeting is not 'closed,' and the right to record remains.
Alj Quote
Because no portion of the September 28, 2022 meeting was 'closed,' the HOA had no authority under A.R.S. § 33-1804(A) to prevent the HOA members from recording the meeting.
Legal Basis
A.R.S. § 33-1804(A)
Topic Tags
- recording meetings
- legal advice
- closed sessions
Question
What actually constitutes a 'closed' meeting or executive session?
Short Answer
A meeting is considered closed only if members are required to leave or are excluded from attending.
Detailed Answer
Merely stating that a portion of the meeting is for legal advice or asking members to stop recording is not enough to close a meeting. If members are present and not asked to leave, the meeting is effectively open.
Alj Quote
However, nothing in the record demonstrates that this specific portion of the meeting was effectively 'closed.' In fact, Mr. Meister confirmed that none of the members present, or anyone online, had to leave the meeting or had to leave the meeting for the portion that included the attorney’s advice.
Legal Basis
A.R.S. § 33-1804(A)
Topic Tags
- closed sessions
- definitions
- procedural requirements
Question
Who has the burden of proof in an HOA dispute hearing?
Short Answer
The petitioner (the homeowner filing the complaint) bears the burden of proof.
Detailed Answer
The homeowner must prove by a preponderance of the evidence that the HOA violated the community documents or statutes. This means showing the contention is more probably true than not.
Alj Quote
In these proceedings, a petitioner bears the burden of proving by a preponderance of the evidence that a respondent has violated the planned community document(s’) provisions or statutes alleged to have been violated.
Legal Basis
Ariz. Admin. Code R2-19-119
Topic Tags
- legal standards
- burden of proof
- hearing procedures
Question
Can I recover my $500 filing fee if I win the hearing?
Short Answer
Yes, the Administrative Law Judge can order the HOA to reimburse the filing fee.
Detailed Answer
If the petitioner prevails in the hearing, the judge has the authority to order the respondent (HOA) to reimburse the statutory filing fee paid to the Department of Real Estate.
Alj Quote
IT IS FURTHER ORDERED Respondent shall reimburse Petitioner his $500.00 filing fee.
Legal Basis
A.R.S. § 32-2199.02
Topic Tags
- remedies
- fees
- penalties
Question
What authority does the Office of Administrative Hearings have in HOA disputes?
Short Answer
OAH can decide petitions, order compliance with statutes/documents, interpret contracts, and levy civil penalties.
Detailed Answer
The tribunal has broad authority to resolve disputes regarding violations of condominium documents or statutes, including interpreting contracts between the parties and imposing penalties for proven violations.
Alj Quote
OAH has the authority to consider and decide the contested petitions, the authority to order any party to abide by the statute, community documents and contract provisions at issue, the authority to interpret the contract between the parties, and the authority to levy a civil penalty on the basis of each proven violation.
Legal Basis
A.R.S. §§ 32-2199 et seq.
Topic Tags
- jurisdiction
- OAH authority
- civil penalties
Case
- Docket No
- 23F-H039-REL
- Case Title
- Michael Holland v. Tonto Forest Estates Homeowner's Association
- Decision Date
- 2023-10-20
- Alj Name
- Kay Abramsohn
- Tribunal
- OAH
- Agency
- ADRE
Questions
Question
Can I record an open HOA board meeting?
Short Answer
Yes, homeowners have the statutory right to audio or video tape open portions of board and member meetings.
Detailed Answer
Under Arizona law, persons attending HOA meetings are permitted to audiotape or videotape any portion of the meeting that is open. The HOA cannot prohibit this for open sessions.
Alj Quote
A.R.S. § 33-1804(A) allows a person to record 'those portions of the meetings of the board of directors and meetings of the members that are open.'
Legal Basis
A.R.S. § 33-1804(A)
Topic Tags
- recording meetings
- homeowner rights
- open meetings
Question
Can the HOA board stop me from recording if an attorney is giving legal advice?
Short Answer
Not if the meeting remains open to members. To stop recording, the board must physically close the meeting (exclude members).
Detailed Answer
Even if the board intends to receive legal advice (a valid reason to close a meeting), they cannot simply ask members to stop recording while allowing them to remain in the room. If members are allowed to stay, the meeting is not 'closed,' and the right to record remains.
Alj Quote
Because no portion of the September 28, 2022 meeting was 'closed,' the HOA had no authority under A.R.S. § 33-1804(A) to prevent the HOA members from recording the meeting.
Legal Basis
A.R.S. § 33-1804(A)
Topic Tags
- recording meetings
- legal advice
- closed sessions
Question
What actually constitutes a 'closed' meeting or executive session?
Short Answer
A meeting is considered closed only if members are required to leave or are excluded from attending.
Detailed Answer
Merely stating that a portion of the meeting is for legal advice or asking members to stop recording is not enough to close a meeting. If members are present and not asked to leave, the meeting is effectively open.
Alj Quote
However, nothing in the record demonstrates that this specific portion of the meeting was effectively 'closed.' In fact, Mr. Meister confirmed that none of the members present, or anyone online, had to leave the meeting or had to leave the meeting for the portion that included the attorney’s advice.
Legal Basis
A.R.S. § 33-1804(A)
Topic Tags
- closed sessions
- definitions
- procedural requirements
Question
Who has the burden of proof in an HOA dispute hearing?
Short Answer
The petitioner (the homeowner filing the complaint) bears the burden of proof.
Detailed Answer
The homeowner must prove by a preponderance of the evidence that the HOA violated the community documents or statutes. This means showing the contention is more probably true than not.
Alj Quote
In these proceedings, a petitioner bears the burden of proving by a preponderance of the evidence that a respondent has violated the planned community document(s’) provisions or statutes alleged to have been violated.
Legal Basis
Ariz. Admin. Code R2-19-119
Topic Tags
- legal standards
- burden of proof
- hearing procedures
Question
Can I recover my $500 filing fee if I win the hearing?
Short Answer
Yes, the Administrative Law Judge can order the HOA to reimburse the filing fee.
Detailed Answer
If the petitioner prevails in the hearing, the judge has the authority to order the respondent (HOA) to reimburse the statutory filing fee paid to the Department of Real Estate.
Alj Quote
IT IS FURTHER ORDERED Respondent shall reimburse Petitioner his $500.00 filing fee.
Legal Basis
A.R.S. § 32-2199.02
Topic Tags
- remedies
- fees
- penalties
Question
What authority does the Office of Administrative Hearings have in HOA disputes?
Short Answer
OAH can decide petitions, order compliance with statutes/documents, interpret contracts, and levy civil penalties.
Detailed Answer
The tribunal has broad authority to resolve disputes regarding violations of condominium documents or statutes, including interpreting contracts between the parties and imposing penalties for proven violations.
Alj Quote
OAH has the authority to consider and decide the contested petitions, the authority to order any party to abide by the statute, community documents and contract provisions at issue, the authority to interpret the contract between the parties, and the authority to levy a civil penalty on the basis of each proven violation.
Legal Basis
A.R.S. §§ 32-2199 et seq.
Topic Tags
- jurisdiction
- OAH authority
- civil penalties
Case
- Docket No
- 23F-H039-REL
- Case Title
- Michael Holland v. Tonto Forest Estates Homeowner's Association
- Decision Date
- 2023-10-20
- Alj Name
- Kay Abramsohn
- Tribunal
- OAH
- Agency
- ADRE
Case Participants
Petitioner Side
- Michael Holland (petitioner)
Represented himself - Jill Burns (witness)
Recorded the meeting at issue; former officer of the Board - Linda L. Holland (party affiliate)
Co-owner of the property; Michael Holland's mother
Respondent Side
- Tonto Forest Estates Homeowner's Association (respondent)
- John A. Buric (HOA attorney)
Warner Angle Hallam Jackson & Formanek PLC
Represented Respondent HOA - Kurt Meister (board member)
Tonto Forest Estates Homeowner's Association
President of the Board of Directors; Testified as witness for Respondent - Clint Goodman (HOA attorney)
Goodman Law
Attorney who provided legal advice at the September 28, 2022 meeting - Steve Dower (board member)
Tonto Forest Estates Homeowner's Association
Mentioned in testimony by Petitioner - Melissa Jordan (property manager)
Ogden
Monitored the phone line during the meeting - Carrie Chu (board member)
Tonto Forest Estates Homeowner's Association
Spoke during meeting minutes discussion
Neutral Parties
- Kay Abramsohn (ALJ)
Office of Administrative Hearings
Administrative Law Judge for hearing and final decision - Tammy L. Eigenheer (ALJ)
Office of Administrative Hearings
Administrative Law Judge on earlier orders - Susan Nicolson (ADRE Commissioner)
Arizona Department of Real Estate
Recipient of official transmissions - AHansen (ADRE staff)
Arizona Department of Real Estate
Recipient of official transmissions - vnunez (ADRE staff)
Arizona Department of Real Estate
Recipient of official transmissions - djones (ADRE staff)
Arizona Department of Real Estate
Recipient of official transmissions - labril (ADRE staff)
Arizona Department of Real Estate
Recipient of official transmissions
Other Participants
- Mary Gura (community member)
Attendee of the virtual hearing - John Cron (community member)
Attendee of the virtual hearing; identified in relation to litigation/claim discussed by attorney Goodman - Janet Cron (witness)
Listed on Petitioner's witness list; John Cron's wife - Chris Chopat (community member)
Attendee of the meeting; asked for statute citation regarding recording
