The Petition was upheld on all issues asserted by the Petitioner. The Respondent was found in violation of A.R.S. § 33-1250(C) (failure to provide election documents), A.R.S. § 33-1248(B) (failure to hold an annual meeting in 2019), and Article 3, Section 2 of the Bylaws (improperly prohibiting write-in ballots). Respondent was ordered to supply Petitioner with relevant documents and refund the Petitioner's filing fee of $1,500.00. No Civil Penalty was found appropriate.
Respondent failed to provide Petitioner with the required election materials and documentation from the October 2018 elections, violating statutory requirements for retention and availability of these materials for owner inspection.
Orders: Respondent ordered to supply Petitioner with the relevant documents, pursuant to A.R.S. § 33-1250(C), within ten (10) days of the Order.
Filing fee: $1,500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1250(C)
Open meetings; exceptions
Respondent postponed its required yearly 2019 meeting until January 2020, resulting in a failure to hold a unit owners' association meeting in 2019 as required by statute.
Orders: Petition upheld on this issue.
Filing fee: $1,500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1248(B)
Selection
Respondent's board of directors declared write-in ballots invalid for the November 20, 2019, election. Since the Bylaws were silent on prohibiting write-in ballots, Respondent failed to show how the ballots were invalid.
Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
Video Overview
Audio Overview
Decision Documents
20F-H2019033-REL Decision – 778923.pdf
Uploaded 2025-10-09T03:34:47 (108.5 KB)
Briefing Doc – 20F-H2019033-REL
Briefing Document: Bischoff v. Country Hills West Condominium Association
Executive Summary
This document synthesizes the findings and decision in the case of Donna M. Bischoff v. Country Hills West Condominium Association, Inc. (No. 20F-H2019033-REL), heard by the Arizona Office of Administrative Hearings. The Administrative Law Judge found entirely in favor of the Petitioner, Donna M. Bischoff, concluding that the Respondent, Country Hills West Condominium Association (“the Association”), committed multiple violations of Arizona state statutes and its own governing documents.
The core violations upheld by the court are:
1. Failure to Hold a Required Annual Meeting: The Association violated A.R.S. § 33-1248(B) by failing to hold its required annual meeting within the 2019 calendar year, repeatedly postponing it until January 2020.
2. Failure to Provide Election Records: The Association violated A.R.S. § 33-1250(C) by failing to provide the Petitioner with complete election materials for inspection, including ballots, envelopes, and sign-in sheets from the October 2018 election.
3. Improper Prohibition of Write-In Ballots: The Association violated Article 3, Section 2 of its Bylaws by unilaterally prohibiting write-in ballots for the 2019 election, despite its governing documents being silent on the issue.
As a result, the Association was ordered to provide the requested documents to the Petitioner within ten days and to reimburse her $1,500 filing fee within thirty days. The decision underscores the legal obligation of homeowners’ associations to adhere strictly to statutory requirements for meetings, elections, and record transparency.
——————————————————————————–
I. Case Overview
The dispute was adjudicated by the Office of Administrative Hearings following a petition filed by homeowner Donna M. Bischoff with the Arizona Department of Real Estate on December 11, 2019.
Case Detail
Information
Case Name
Donna M Bischoff, Petitioner, v. Country Hills West Condominium Association, Inc., Respondent
Case Number
20F-H2019033-REL
Adjudicator
Administrative Law Judge Antara Nath Rivera
Hearing Date
March 10, 2020
Decision Date
March 30, 2020
Petitioner Representative
Donna M. Bischoff (on her own behalf)
Respondent Representative
Doug Meyer, President and Director
II. Petitioner’s Allegations
The Petitioner, Donna M. Bischoff, asserted that the Country Hills West Condominium Association committed violations of state law and its own governing documents. The specific allegations were:
• Violation of A.R.S. § 33-1248(B): Failure to hold the mandatory annual unit owners’ association meeting within the 2019 calendar year.
• Violation of A.R.S. § 33-1250(C): Failure to make election materials, including ballots and related items, available for inspection by a unit owner.
• Violation of Bylaws Article 3, Section 2: Improperly invalidating election ballots by prohibiting write-in candidates without any authority from the governing documents.
The Petitioner bore the burden of proof to establish these 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.”
III. Core Issues and Factual Findings
The hearing established several key facts that formed the basis of the Judge’s decision. The testimony from both Ms. Bischoff and the Association’s President, Doug Meyer, was central to these findings.
A. Failure to Hold the 2019 Annual Meeting
• Timeline of Events: The Association’s required annual meeting for 2019 was initially scheduled for November 20, 2019. It was subsequently postponed three times: first to December 19, 2019; then to December 30, 2019; and ultimately held on January 24, 2020.
• Respondent’s Justification: Mr. Meyer testified that the postponements were necessary because write-in candidates appeared on the ballot, which the board had prohibited. He stated that the board “needed time to reprint the ballot and mail them out.”
• Conclusion of Law: The evidence was undisputed that no annual meeting took place during the 2019 calendar year. The Judge concluded that by postponing the meeting into the following year, the Association was in direct violation of A.R.S. § 33-1248(B), which mandates that “A meeting of the unit owners’ association shall be held at least once each year.”
B. Denial of Access to Election Records
• Petitioner’s Request: In October 2018, Ms. Bischoff requested to see the election results from the October 2018 meeting, specifically seeking to know which units had voted.
• Respondent’s Response: The Association initially did not provide the results. A few weeks prior to the March 2020 hearing, it supplied Ms. Bischoff with vote tallies and a list of unit members who voted. However, it failed to provide the full scope of required materials.
• Missing Documentation: The Association did not provide the “ballots, envelopes, related materials, and sign-in sheets” as mandated by statute for inspection.
• Respondent’s Justification: Mr. Meyer argued that no election actually occurred at the October 18, 2018, meeting because there was no quorum. He further made the admission that the Association had not achieved a quorum for any meeting in the preceding 20 years. He claimed that without an election, there was no obligation to publish ballots.
• Conclusion of Law: The Judge found that the Association violated A.R.S. § 33-1250(C). The statute requires that “Ballots, envelopes and related materials… shall be retained… and made available for unit owner inspection for at least one year.” The partial and delayed provision of records was insufficient to meet this legal requirement.
C. Improper Prohibition of Write-In Ballots
• The Dispute: The November 20, 2019, meeting was cancelled because some ballots contained write-in candidates. The board of directors informed members that write-in ballots were prohibited and would be “thrown out.”
• Petitioner’s Argument: Ms. Bischoff argued that the board could not “choose how to interpret a silent document.” She pointed out that the Bylaws and Articles of Incorporation do not prohibit write-in ballots and that the same board had allowed them in a 2017 election.
• Respondent’s Position: Mr. Meyer acknowledged that the Bylaws were silent on the issue but stated the Association needed to “figure out how to handle” them. A membership meeting to discuss the issue was held on December 30, 2019, but failed to achieve a quorum.
• Conclusion of Law: The Judge determined that the Association violated its own Bylaws. The decision states, “absent any clear language in the A.R.S. or the Bylaws prohibiting write in ballots, Respondent failed to show how the ballots were invalid.” The board’s unilateral prohibition was therefore found to be improper.
IV. Legal Conclusions and Final Order
The Administrative Law Judge upheld the petition on all issues, finding that the Petitioner had successfully proven her case by a preponderance of the evidence.
Final Order:
Based on the foregoing conclusions, IT IS ORDERED that:
1. The Petition filed by Donna M. Bischoff is upheld on all issues.
2. The Petitioner is deemed the prevailing party in the matter.
3. The Respondent must supply the Petitioner with the relevant election documents pursuant to A.R.S. § 33-1250(C) within ten (10) days of the Order.
4. The Respondent must pay the Petitioner’s filing fee of $1,500.00 directly to the Petitioner within thirty (30) days of the Order.
5. No Civil Penalty is found to be appropriate in this matter.
The Order is binding on the parties unless a request for rehearing is filed with the Commissioner of the Department of Real Estate within 30 days of the service of the Order.
Study Guide – 20F-H2019033-REL
Study Guide: Bischoff v. Country Hills West Condominium Association, Inc.
This study guide provides a review of the Administrative Law Judge Decision in case number 20F-H2019033-REL, concerning a dispute between a homeowner and a condominium association. It includes a quiz with an answer key, essay questions for deeper analysis, and a glossary of key terms found in the source document.
——————————————————————————–
Short-Answer Quiz
Instructions: Answer the following questions in 2-3 sentences each, based on the provided source document.
1. Who were the primary parties in the legal dispute, and what were their roles?
2. What specific violations did the Petitioner, Donna M. Bischoff, allege against the Respondent?
3. Why was the 2019 yearly meeting for the Country Hills West Condominium Association repeatedly rescheduled?
4. What was the Respondent’s position on the validity of write-in ballots for the November 20, 2019, election?
5. What information did the Petitioner request from the October 2018 election, and what was the initial response?
6. What is the definition of “quorum” according to the association’s Bylaws, and why was it significant in this case?
7. What is the legal standard of proof the Petitioner was required to meet in this hearing?
8. According to the decision, how did the Respondent violate A.R.S. § 33-1248(B) regarding association meetings?
9. According to the decision, how did the Respondent violate A.R.S. § 33-1250(C) regarding election materials?
10. What were the key components of the final Order issued by the Administrative Law Judge?
——————————————————————————–
Answer Key
1. The primary parties were Donna M. Bischoff, the Petitioner, and the Country Hills West Condominium Association, Inc., the Respondent. The Petitioner is the homeowner who filed the complaint, and the Respondent is the homeowners association accused of violations.
2. The Petitioner alleged violations of Arizona Revised Statutes (A.R.S.) § 33-1250(C) and § 33-1248(B), as well as Article 3, Section 2 of the association’s Bylaws. These allegations related to the handling of yearly meetings and elections.
3. The 2019 yearly meeting was initially scheduled for November 20, 2019, but was rescheduled three times, ultimately taking place in January 2020. The first cancellation was because some ballots contained write-in candidates, which the board deemed prohibited.
4. The Respondent’s representative, Doug Meyer, testified that members were informed that write-in ballots were not valid for the November 20, 2019, election. He stated that any ballots with write-in candidates would have been thrown out.
5. The Petitioner requested to see the election results from the October 2018 election, specifically wanting to know which units voted. While she was eventually given the voting tallies, the Respondent did not initially provide the requested results.
6. Quorum is defined in Article 4, Section 3 of the Bylaws. It was significant because the Respondent’s president, Mr. Meyer, acknowledged that the association had not achieved a quorum for its meetings in the last 20 years, and thus no election occurred at the October 18, 2018, meeting.
7. The Petitioner had the burden of proof to establish the alleged violations by a “preponderance of the evidence.” This standard is defined as proof that convinces the trier of fact that a contention is more probably true than not.
8. The Respondent violated A.R.S. § 33-1248(B) by failing to hold a required yearly meeting within the calendar year of 2019. The evidence showed that the meeting scheduled for 2019 was postponed until January 2020.
9. The Respondent violated A.R.S. § 33-1250(C) by failing to provide the Petitioner with all required election materials from the 2018 election. While vote tallies were eventually provided, the statute requires that ballots, envelopes, and related materials be retained and made available for inspection for at least one year.
10. The Administrative Law Judge’s Order upheld the Petition on all issues, deemed the Petitioner the prevailing party, and required the Respondent to supply the relevant documents within 10 days. The Order also mandated that the Respondent reimburse the Petitioner’s filing fee of $1,500.00 within 30 days.
——————————————————————————–
Essay Questions
Instructions: The following questions are designed for longer, more analytical responses. Use the information presented in the source document to construct a comprehensive argument for each prompt.
1. Analyze the Respondent’s handling of the write-in ballot issue for the 2019 election. Discuss the legal basis (or lack thereof) for their actions as presented in the hearing, and explain why the Administrative Law Judge ultimately ruled that their prohibition of these ballots was a violation of the Bylaws.
2. Explain the concept of “quorum” as it relates to this case. How did the association’s failure to achieve a quorum for 20 years impact its governance, specifically regarding the 2018 meeting and the Respondent’s obligation to produce election records?
3. Describe in detail the specific violations of the Arizona Revised Statutes (A.R.S.) that the Country Hills West Condominium Association was found to have committed. For each statute (A.R.S. § 33-1248(B) and A.R.S. § 33-1250(C)), detail the legal requirement and explain how the Respondent’s actions failed to meet that standard.
4. Discuss the legal standard of “preponderance of the evidence.” Using testimony and evidence presented by both the Petitioner and the Respondent, explain how the Petitioner successfully met this burden of proof for her allegations.
5. Outline the final Order issued by the Administrative Law Judge. Beyond the simple outcome, explain the significance of each component of the order, including the validation of the petition, the designation of a “prevailing party,” the directive to supply documents, and the financial remedy awarded.
——————————————————————————–
Glossary of Key Terms
Definition
Administrative Law Judge
An official who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions and orders. In this case, Antara Nath Rivera.
Arizona Department of Real Estate (Department)
The state agency with which a homeowner or planned community organization can file a petition for a hearing concerning violations of community documents or statutes.
Arizona Revised Statutes (A.R.S.)
The collection of laws enacted by the Arizona state legislature. The specific statutes cited were A.R.S. §§ 33-1250(C) and 33-1248(B).
Bylaws
The rules and regulations that govern the internal operations of an organization, such as a homeowners association. In this case, the Bylaws of Country Hills West Association, Inc. were a key document.
Homeowners Association (HOA)
An organization in a subdivision, planned community, or condominium that makes and enforces rules for the properties and its residents.
Office of Administrative Hearings
The state agency where petitions filed with the Department of Real Estate are heard before an Administrative Law Judge.
Petitioner
The party who files a petition or brings a legal action against another party. In this case, Donna M. Bischoff.
Preponderance of the evidence
The standard of proof in this civil administrative case. It is met when the evidence presented is sufficient to “incline a fair and impartial mind to one side of the issue rather than the other.”
Quorum
The minimum number of members of an assembly or society that must be present at any of its meetings to make the proceedings of that meeting valid. The Respondent had not achieved quorum for 20 years.
Respondent
The party against whom a petition is filed or a legal action is brought. In this case, Country Hills West Condominium Association, Inc.
Blog Post – 20F-H2019033-REL
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20F-H2019033-REL
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This source is an Administrative Law Judge Decision from the Office of Administrative Hearings regarding a dispute between Donna M. Bischoff, the Petitioner, and Country Hills West Condominium Association, Inc., the Respondent. The document details the hearing held on March 10, 2020, where the Petitioner alleged the Condominium Association violated Arizona Revised Statutes (A.R.S.) and the association’s Bylaws. Specifically, the Petitioner claimed violations related to the failure to hold a required yearly meeting in 2019, the failure to provide election materials for inspection, and the improper prohibition of write-in ballots where the Bylaws were silent. The Administrative Law Judge ultimately upheld the Petition on all issues, finding the Respondent in violation, and ordered the Association to provide the requested documents and pay the Petitioner’s $1,500.00 filing fee.
What were the specific legal violations found against the Condominium Association regarding meetings and documents?
How did the lack of clarity in the Bylaws regarding write-in ballots impact the association’s actions?
What was the ultimate outcome of this administrative hearing, including the ordered remedies for the petitioner?
Based on 1 source
Case Participants
Petitioner Side
Donna M Bischoff(petitioner) Appeared on her own behalf
Respondent Side
Doug Meyer(president, director, witness) Country Hills West Condominium Association, Inc. Appeared and testified on behalf of Respondent
Neutral Parties
Antara Nath Rivera(ALJ) OAH
Judy Lowe(commissioner) Arizona Department of Real Estate Decision transmitted electronically to Commissioner
The Petition was upheld on all issues asserted by the Petitioner. The Respondent was found in violation of A.R.S. § 33-1250(C) (failure to provide election documents), A.R.S. § 33-1248(B) (failure to hold an annual meeting in 2019), and Article 3, Section 2 of the Bylaws (improperly prohibiting write-in ballots). Respondent was ordered to supply Petitioner with relevant documents and refund the Petitioner's filing fee of $1,500.00. No Civil Penalty was found appropriate.
Respondent failed to provide Petitioner with the required election materials and documentation from the October 2018 elections, violating statutory requirements for retention and availability of these materials for owner inspection.
Orders: Respondent ordered to supply Petitioner with the relevant documents, pursuant to A.R.S. § 33-1250(C), within ten (10) days of the Order.
Filing fee: $1,500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1250(C)
Open meetings; exceptions
Respondent postponed its required yearly 2019 meeting until January 2020, resulting in a failure to hold a unit owners' association meeting in 2019 as required by statute.
Orders: Petition upheld on this issue.
Filing fee: $1,500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1248(B)
Selection
Respondent's board of directors declared write-in ballots invalid for the November 20, 2019, election. Since the Bylaws were silent on prohibiting write-in ballots, Respondent failed to show how the ballots were invalid.
Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
Video Overview
Audio Overview
Decision Documents
20F-H2019033-REL Decision – 778923.pdf
Uploaded 2026-01-23T17:31:15 (108.5 KB)
Briefing Doc – 20F-H2019033-REL
Briefing Document: Bischoff v. Country Hills West Condominium Association
Executive Summary
This document synthesizes the findings and decision in the case of Donna M. Bischoff v. Country Hills West Condominium Association, Inc. (No. 20F-H2019033-REL), heard by the Arizona Office of Administrative Hearings. The Administrative Law Judge found entirely in favor of the Petitioner, Donna M. Bischoff, concluding that the Respondent, Country Hills West Condominium Association (“the Association”), committed multiple violations of Arizona state statutes and its own governing documents.
The core violations upheld by the court are:
1. Failure to Hold a Required Annual Meeting: The Association violated A.R.S. § 33-1248(B) by failing to hold its required annual meeting within the 2019 calendar year, repeatedly postponing it until January 2020.
2. Failure to Provide Election Records: The Association violated A.R.S. § 33-1250(C) by failing to provide the Petitioner with complete election materials for inspection, including ballots, envelopes, and sign-in sheets from the October 2018 election.
3. Improper Prohibition of Write-In Ballots: The Association violated Article 3, Section 2 of its Bylaws by unilaterally prohibiting write-in ballots for the 2019 election, despite its governing documents being silent on the issue.
As a result, the Association was ordered to provide the requested documents to the Petitioner within ten days and to reimburse her $1,500 filing fee within thirty days. The decision underscores the legal obligation of homeowners’ associations to adhere strictly to statutory requirements for meetings, elections, and record transparency.
——————————————————————————–
I. Case Overview
The dispute was adjudicated by the Office of Administrative Hearings following a petition filed by homeowner Donna M. Bischoff with the Arizona Department of Real Estate on December 11, 2019.
Case Detail
Information
Case Name
Donna M Bischoff, Petitioner, v. Country Hills West Condominium Association, Inc., Respondent
Case Number
20F-H2019033-REL
Adjudicator
Administrative Law Judge Antara Nath Rivera
Hearing Date
March 10, 2020
Decision Date
March 30, 2020
Petitioner Representative
Donna M. Bischoff (on her own behalf)
Respondent Representative
Doug Meyer, President and Director
II. Petitioner’s Allegations
The Petitioner, Donna M. Bischoff, asserted that the Country Hills West Condominium Association committed violations of state law and its own governing documents. The specific allegations were:
• Violation of A.R.S. § 33-1248(B): Failure to hold the mandatory annual unit owners’ association meeting within the 2019 calendar year.
• Violation of A.R.S. § 33-1250(C): Failure to make election materials, including ballots and related items, available for inspection by a unit owner.
• Violation of Bylaws Article 3, Section 2: Improperly invalidating election ballots by prohibiting write-in candidates without any authority from the governing documents.
The Petitioner bore the burden of proof to establish these 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.”
III. Core Issues and Factual Findings
The hearing established several key facts that formed the basis of the Judge’s decision. The testimony from both Ms. Bischoff and the Association’s President, Doug Meyer, was central to these findings.
A. Failure to Hold the 2019 Annual Meeting
• Timeline of Events: The Association’s required annual meeting for 2019 was initially scheduled for November 20, 2019. It was subsequently postponed three times: first to December 19, 2019; then to December 30, 2019; and ultimately held on January 24, 2020.
• Respondent’s Justification: Mr. Meyer testified that the postponements were necessary because write-in candidates appeared on the ballot, which the board had prohibited. He stated that the board “needed time to reprint the ballot and mail them out.”
• Conclusion of Law: The evidence was undisputed that no annual meeting took place during the 2019 calendar year. The Judge concluded that by postponing the meeting into the following year, the Association was in direct violation of A.R.S. § 33-1248(B), which mandates that “A meeting of the unit owners’ association shall be held at least once each year.”
B. Denial of Access to Election Records
• Petitioner’s Request: In October 2018, Ms. Bischoff requested to see the election results from the October 2018 meeting, specifically seeking to know which units had voted.
• Respondent’s Response: The Association initially did not provide the results. A few weeks prior to the March 2020 hearing, it supplied Ms. Bischoff with vote tallies and a list of unit members who voted. However, it failed to provide the full scope of required materials.
• Missing Documentation: The Association did not provide the “ballots, envelopes, related materials, and sign-in sheets” as mandated by statute for inspection.
• Respondent’s Justification: Mr. Meyer argued that no election actually occurred at the October 18, 2018, meeting because there was no quorum. He further made the admission that the Association had not achieved a quorum for any meeting in the preceding 20 years. He claimed that without an election, there was no obligation to publish ballots.
• Conclusion of Law: The Judge found that the Association violated A.R.S. § 33-1250(C). The statute requires that “Ballots, envelopes and related materials… shall be retained… and made available for unit owner inspection for at least one year.” The partial and delayed provision of records was insufficient to meet this legal requirement.
C. Improper Prohibition of Write-In Ballots
• The Dispute: The November 20, 2019, meeting was cancelled because some ballots contained write-in candidates. The board of directors informed members that write-in ballots were prohibited and would be “thrown out.”
• Petitioner’s Argument: Ms. Bischoff argued that the board could not “choose how to interpret a silent document.” She pointed out that the Bylaws and Articles of Incorporation do not prohibit write-in ballots and that the same board had allowed them in a 2017 election.
• Respondent’s Position: Mr. Meyer acknowledged that the Bylaws were silent on the issue but stated the Association needed to “figure out how to handle” them. A membership meeting to discuss the issue was held on December 30, 2019, but failed to achieve a quorum.
• Conclusion of Law: The Judge determined that the Association violated its own Bylaws. The decision states, “absent any clear language in the A.R.S. or the Bylaws prohibiting write in ballots, Respondent failed to show how the ballots were invalid.” The board’s unilateral prohibition was therefore found to be improper.
IV. Legal Conclusions and Final Order
The Administrative Law Judge upheld the petition on all issues, finding that the Petitioner had successfully proven her case by a preponderance of the evidence.
Final Order:
Based on the foregoing conclusions, IT IS ORDERED that:
1. The Petition filed by Donna M. Bischoff is upheld on all issues.
2. The Petitioner is deemed the prevailing party in the matter.
3. The Respondent must supply the Petitioner with the relevant election documents pursuant to A.R.S. § 33-1250(C) within ten (10) days of the Order.
4. The Respondent must pay the Petitioner’s filing fee of $1,500.00 directly to the Petitioner within thirty (30) days of the Order.
5. No Civil Penalty is found to be appropriate in this matter.
The Order is binding on the parties unless a request for rehearing is filed with the Commissioner of the Department of Real Estate within 30 days of the service of the Order.
Study Guide – 20F-H2019033-REL
Study Guide: Bischoff v. Country Hills West Condominium Association, Inc.
This study guide provides a review of the Administrative Law Judge Decision in case number 20F-H2019033-REL, concerning a dispute between a homeowner and a condominium association. It includes a quiz with an answer key, essay questions for deeper analysis, and a glossary of key terms found in the source document.
——————————————————————————–
Short-Answer Quiz
Instructions: Answer the following questions in 2-3 sentences each, based on the provided source document.
1. Who were the primary parties in the legal dispute, and what were their roles?
2. What specific violations did the Petitioner, Donna M. Bischoff, allege against the Respondent?
3. Why was the 2019 yearly meeting for the Country Hills West Condominium Association repeatedly rescheduled?
4. What was the Respondent’s position on the validity of write-in ballots for the November 20, 2019, election?
5. What information did the Petitioner request from the October 2018 election, and what was the initial response?
6. What is the definition of “quorum” according to the association’s Bylaws, and why was it significant in this case?
7. What is the legal standard of proof the Petitioner was required to meet in this hearing?
8. According to the decision, how did the Respondent violate A.R.S. § 33-1248(B) regarding association meetings?
9. According to the decision, how did the Respondent violate A.R.S. § 33-1250(C) regarding election materials?
10. What were the key components of the final Order issued by the Administrative Law Judge?
——————————————————————————–
Answer Key
1. The primary parties were Donna M. Bischoff, the Petitioner, and the Country Hills West Condominium Association, Inc., the Respondent. The Petitioner is the homeowner who filed the complaint, and the Respondent is the homeowners association accused of violations.
2. The Petitioner alleged violations of Arizona Revised Statutes (A.R.S.) § 33-1250(C) and § 33-1248(B), as well as Article 3, Section 2 of the association’s Bylaws. These allegations related to the handling of yearly meetings and elections.
3. The 2019 yearly meeting was initially scheduled for November 20, 2019, but was rescheduled three times, ultimately taking place in January 2020. The first cancellation was because some ballots contained write-in candidates, which the board deemed prohibited.
4. The Respondent’s representative, Doug Meyer, testified that members were informed that write-in ballots were not valid for the November 20, 2019, election. He stated that any ballots with write-in candidates would have been thrown out.
5. The Petitioner requested to see the election results from the October 2018 election, specifically wanting to know which units voted. While she was eventually given the voting tallies, the Respondent did not initially provide the requested results.
6. Quorum is defined in Article 4, Section 3 of the Bylaws. It was significant because the Respondent’s president, Mr. Meyer, acknowledged that the association had not achieved a quorum for its meetings in the last 20 years, and thus no election occurred at the October 18, 2018, meeting.
7. The Petitioner had the burden of proof to establish the alleged violations by a “preponderance of the evidence.” This standard is defined as proof that convinces the trier of fact that a contention is more probably true than not.
8. The Respondent violated A.R.S. § 33-1248(B) by failing to hold a required yearly meeting within the calendar year of 2019. The evidence showed that the meeting scheduled for 2019 was postponed until January 2020.
9. The Respondent violated A.R.S. § 33-1250(C) by failing to provide the Petitioner with all required election materials from the 2018 election. While vote tallies were eventually provided, the statute requires that ballots, envelopes, and related materials be retained and made available for inspection for at least one year.
10. The Administrative Law Judge’s Order upheld the Petition on all issues, deemed the Petitioner the prevailing party, and required the Respondent to supply the relevant documents within 10 days. The Order also mandated that the Respondent reimburse the Petitioner’s filing fee of $1,500.00 within 30 days.
——————————————————————————–
Essay Questions
Instructions: The following questions are designed for longer, more analytical responses. Use the information presented in the source document to construct a comprehensive argument for each prompt.
1. Analyze the Respondent’s handling of the write-in ballot issue for the 2019 election. Discuss the legal basis (or lack thereof) for their actions as presented in the hearing, and explain why the Administrative Law Judge ultimately ruled that their prohibition of these ballots was a violation of the Bylaws.
2. Explain the concept of “quorum” as it relates to this case. How did the association’s failure to achieve a quorum for 20 years impact its governance, specifically regarding the 2018 meeting and the Respondent’s obligation to produce election records?
3. Describe in detail the specific violations of the Arizona Revised Statutes (A.R.S.) that the Country Hills West Condominium Association was found to have committed. For each statute (A.R.S. § 33-1248(B) and A.R.S. § 33-1250(C)), detail the legal requirement and explain how the Respondent’s actions failed to meet that standard.
4. Discuss the legal standard of “preponderance of the evidence.” Using testimony and evidence presented by both the Petitioner and the Respondent, explain how the Petitioner successfully met this burden of proof for her allegations.
5. Outline the final Order issued by the Administrative Law Judge. Beyond the simple outcome, explain the significance of each component of the order, including the validation of the petition, the designation of a “prevailing party,” the directive to supply documents, and the financial remedy awarded.
——————————————————————————–
Glossary of Key Terms
Definition
Administrative Law Judge
An official who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions and orders. In this case, Antara Nath Rivera.
Arizona Department of Real Estate (Department)
The state agency with which a homeowner or planned community organization can file a petition for a hearing concerning violations of community documents or statutes.
Arizona Revised Statutes (A.R.S.)
The collection of laws enacted by the Arizona state legislature. The specific statutes cited were A.R.S. §§ 33-1250(C) and 33-1248(B).
Bylaws
The rules and regulations that govern the internal operations of an organization, such as a homeowners association. In this case, the Bylaws of Country Hills West Association, Inc. were a key document.
Homeowners Association (HOA)
An organization in a subdivision, planned community, or condominium that makes and enforces rules for the properties and its residents.
Office of Administrative Hearings
The state agency where petitions filed with the Department of Real Estate are heard before an Administrative Law Judge.
Petitioner
The party who files a petition or brings a legal action against another party. In this case, Donna M. Bischoff.
Preponderance of the evidence
The standard of proof in this civil administrative case. It is met when the evidence presented is sufficient to “incline a fair and impartial mind to one side of the issue rather than the other.”
Quorum
The minimum number of members of an assembly or society that must be present at any of its meetings to make the proceedings of that meeting valid. The Respondent had not achieved quorum for 20 years.
Respondent
The party against whom a petition is filed or a legal action is brought. In this case, Country Hills West Condominium Association, Inc.
Blog Post – 20F-H2019033-REL
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20F-H2019033-REL
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This source is an Administrative Law Judge Decision from the Office of Administrative Hearings regarding a dispute between Donna M. Bischoff, the Petitioner, and Country Hills West Condominium Association, Inc., the Respondent. The document details the hearing held on March 10, 2020, where the Petitioner alleged the Condominium Association violated Arizona Revised Statutes (A.R.S.) and the association’s Bylaws. Specifically, the Petitioner claimed violations related to the failure to hold a required yearly meeting in 2019, the failure to provide election materials for inspection, and the improper prohibition of write-in ballots where the Bylaws were silent. The Administrative Law Judge ultimately upheld the Petition on all issues, finding the Respondent in violation, and ordered the Association to provide the requested documents and pay the Petitioner’s $1,500.00 filing fee.
What were the specific legal violations found against the Condominium Association regarding meetings and documents?
How did the lack of clarity in the Bylaws regarding write-in ballots impact the association’s actions?
What was the ultimate outcome of this administrative hearing, including the ordered remedies for the petitioner?
Based on 1 source
Case Participants
Petitioner Side
Donna M Bischoff(petitioner) Appeared on her own behalf
Respondent Side
Doug Meyer(president, director, witness) Country Hills West Condominium Association, Inc. Appeared and testified on behalf of Respondent
Neutral Parties
Antara Nath Rivera(ALJ) OAH
Judy Lowe(commissioner) Arizona Department of Real Estate Decision transmitted electronically to Commissioner
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
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
Alleged Violations
A.R.S. § 33-1808
Outcome Summary
The Administrative Law Judge dismissed the Petitioner's claim, concluding that the Petitioner failed to prove the HOA violated A.R.S. § 33-1808 regarding flag display or that the HOA improperly adopted its rules; the Respondent was deemed the prevailing party,,.
Why this result: Petitioner failed to establish by a preponderance of the evidence that the Respondent violated A.R.S. § 33-1808,, and failed to establish that the Flag Display Rule was improperly adopted or inconsistent with the CC&Rs.
Key Issues & Findings
Flag and Political Sign Display Restriction
Petitioner alleged the HOA violated A.R.S. § 33-1808 by prohibiting him from displaying a 'Trump 2020' flag in his front yard, asserting the HOA's Flag Display Rule was invalid because the CC&Rs did not specifically mention 'flag',,.
Orders: The petition is dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
A.R.S. § 33-1808
A.A.C. R2-19-119
Analytics Highlights
Topics: Flag display, Political signs, HOA rules, Statutory violation
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.
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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 – 19F-H1919071-REL-RHG
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.
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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?
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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.
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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?
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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.
Blog Post – 19F-H1919071-REL-RHG
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?
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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?
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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
The Administrative Law Judge concluded that Bellasera Community Association, Inc. did not violate A.R.S. § 33-1803(B) because the homeowner received constructive notice of the violation and fine structure, satisfying statutory requirements. The petition was dismissed.
Why this result: Petitioner failed to meet the burden of proving Respondent violated A.R.S. § 33-1803(B), as the evidence showed Petitioner received sufficient constructive notice of the alleged violation and had an opportunity to be heard or appeal.
Key Issues & Findings
Whether the HOA violated statutory requirements regarding notice and imposition of monetary penalties/late fees, resulting in suspension of privileges.
Petitioner alleged the HOA violated A.R.S. § 33-1803(B) by imposing fines and suspending gate/clubhouse access without providing adequate (actual) notice of the violation and hearing opportunity, and by improperly imposing late fees. The ALJ found the HOA provided constructive notice, satisfying the statute, and was entitled to impose cumulative fines for the ongoing violation.
Briefing Document: Greco v. Bellasera Community Association, Inc.
Executive Summary
This document synthesizes the findings and decision in the case of Robert L. Greco (Petitioner) versus the Bellasera Community Association, Inc. (Respondent), heard by the Arizona Office of Administrative Hearings. The Administrative Law Judge dismissed the petition, ruling in favor of the Homeowners Association (HOA).
The core dispute originated from a 2013 violation notice regarding a faded garage door. The Petitioner claimed he did not receive the initial notices and only became aware of the issue upon receiving a letter from the HOA’s attorney. Despite subsequently painting the door, an outstanding balance of $750 in fines remained on his account. For six years, the Petitioner paid his quarterly dues but ignored the outstanding fine balance. In June 2019, after failed settlement negotiations, the HOA deactivated the Petitioner’s security gate fob and clubhouse access, prompting him to file the formal dispute.
The judge’s decision rested on two key legal conclusions. First, the court rejected the Petitioner’s argument that “actual notice” was required for the fines to be valid. It ruled that the multiple notices mailed to the Petitioner’s residence constituted sufficient “constructive notice” under Arizona law, providing both notification of the violation and an opportunity to be heard. Second, the court determined that the $750 charge was not an improper late fee but rather three separate, legitimate fines of $250 each, levied for an ongoing, uncorrected violation as per the HOA’s enforcement policy.
Case Overview
Case Name
Robert L Greco, Petitioner, vs. Bellasera Community Association, Inc., Respondent
Case Number
20F-H2019018-REL
Jurisdiction
Arizona Office of Administrative Hearings
Presiding Judge
Administrative Law Judge Tammy L. Eigenheer
Hearing Date
January 9, 2020
Decision Date
January 29, 2020
Petitioner’s Core Allegation
Respondent violated A.R.S. § 33-1803(B) by imposing penalties and revoking privileges without providing proper notice and an opportunity to be heard.
Core Factual Issue
The denial of automatic gate and clubhouse access to the Petitioner on July 1, 2019, due to unpaid fines from 2013.
Chronology of the Dispute
The conflict between Mr. Greco and the Bellasera Community Association unfolded over six years, escalating from a minor maintenance issue to a formal legal dispute and revocation of privileges.
Initial Violation and Fines (2013)
Details
Feb. 5, 2013
Courtesy Notice
Respondent sent a notice to Petitioner’s address stating his garage door was faded and needed to be repainted, in violation of the Design Guidelines.
Mar. 14, 2013
Final Notice & First Fine
A follow-up notice was sent, stating a $250 fine was posted to Petitioner’s account. It warned that an additional $250 fine would be assessed automatically every 14 days if the violation remained uncorrected.
Apr. 2, 2013
Notice of Remedy & Second Fine
A third notice was sent, posting another $250 fine. This letter explicitly warned that the HOA had the “ability to suspend privileges for use of the Recreational Facilities” and informed the Petitioner of his right to appeal within 14 days.
May 7, 2013
Fourth Notice & Third Fine
A fourth notice was sent, posting another $250 fine to the account. It again noted the right to appeal the fine.
Jun. 5, 2013
Letter from HOA Counsel
Attorney Kelly Oetinger sent a letter demanding the garage door be repainted within 15 days. The letter explicitly stated, “If you do not repaint… the Association may disable the transponder you use to enter the community and may disable the fobs you use for the clubhouse.”
Petitioner’s Response and Aftermath (2013)
• July 4, 2013: Petitioner repainted the garage door.
• July 5, 2013: Petitioner sent a letter to the HOA stating the attorney’s letter was his “initial alert of the garage door condition.” He explained his delay by stating, “To effectively manage my workload, I dispose of unsolicited mail… In the future, I will exercise greater caution in disposing of unsolicited mail.”
• July 5, 2013: The HOA sent a letter acknowledging the repainting and offered to settle the $900 in fines for a payment of $500. The letter reiterated the threat to deactivate gate openers and fobs.
• July 17, 2013: The HOA sent a follow-up letter correcting an internal accounting error. The total fines were $750, not $900. A new settlement offer was made: pay $375, and the remaining $375 would be waived.
Period of Inaction (2013 – 2019)
From 2013 to 2019, the Petitioner received quarterly statements from the HOA indicating a $750 balance in addition to current assessments. Each quarter, the Petitioner would physically cross out the $750 balance and pay only the current assessment amount.
Escalation and Revocation of Privileges (2019)
• June 2019: Dennis Carson, a friend of the Petitioner serving on the HOA Board of Directors, informed him that his name was on a penalty list and the Board planned to deactivate his security gate and clubhouse access.
• June 2019: Settlement negotiations failed. The Petitioner offered $100; the Board countered with $250. The Petitioner then offered $251 ($250 for the fine and $1 to rent the clubhouse), which the Board declined.
• July 1, 2019: The Respondent deactivated the Petitioner’s security gate fob and access to the clubhouse.
• October 11, 2019: The Petitioner filed the Homeowners Association Dispute Process Petition, initiating the legal proceedings.
Key Arguments and Legal Findings
The Administrative Law Judge’s decision centered on the interpretation of “notice” as required by state law and the legitimacy of the fines imposed by the HOA.
Petitioner’s Position
1. Lack of Proper Notice: The Petitioner argued that he had not received “actual notice” of the violation or the impending fines until the letter from the HOA’s counsel on June 5, 2013. He asserted that because he acted promptly after receiving that letter, the fines were unjust. His argument implied that warnings in mail he did not personally read could not be held against him.
2. Improper Fines: The Petitioner alleged that the additional $500 in charges on the original $250 fine constituted improper late fees.
Administrative Law Judge’s Conclusions of Law
The Judge systematically refuted the Petitioner’s arguments, concluding that the HOA acted within its rights and in accordance with the law.
1. On the Matter of Notice:
• The governing statute, A.R.S. § 33-1803(B), requires “notice and an opportunity to be heard” before imposing penalties.
• The Judge found no legal authority requiring this to be “actual notice.” To accept this argument would create an unworkable standard where a homeowner could “avoid receiving ‘actual notice’ by simply refusing to sign for a certified mailing.”
• The decision established that the Petitioner received constructive notice through the “multiple mailings that were presumably delivered to his residential address.”
• The notices also informed the Petitioner how to appeal the matter, thereby satisfying the requirement for an “opportunity to be heard.”
• Conclusion: “Accordingly, Petitioner was provided notice and an opportunity to be heard in accordance with A.R.S. § 33-1803(B).”
2. On the Matter of Fines:
• The Judge differentiated between late fees and fines for an ongoing violation.
• The notices sent by the Respondent “clearly stated that an ongoing failure to remedy the violation would result in additional fines every 14 days.”
• The violation persisted from before March 14, 2013 (first fine) until July 5, 2013 (when the door was confirmed painted).
• Conclusion: The Respondent was entitled to impose three separate fines for the “ongoing condition of the garage door,” making the total of $750 legitimate.
Final Order and Implications
Based on the analysis of the evidence and law, the Administrative Law Judge reached a definitive conclusion.
• Final Ruling: “This Tribunal concludes that Respondent did not violate the provisions of A.R.S. § 33-1803(B).”
• Order: “IT IS ORDERED that Petitioner’s petition is dismissed.”
• Binding Nature: The order, dated January 29, 2020, is binding on the parties unless a rehearing is requested with the Commissioner of the Department of Real Estate within 30 days of the service of the order.
Study Guide – 20F-H2019018-REL
Study Guide: Greco v. Bellasera Community Association, Inc.
This guide provides a comprehensive review of the Administrative Law Judge Decision in the case of Robert L. Greco (Petitioner) versus Bellasera Community Association, Inc. (Respondent), Case No. 20F-H2019018-REL. It includes a short-answer quiz to test your knowledge, an answer key for review, a set of essay questions for deeper analysis, and a glossary of key terms.
Short-Answer Quiz
Answer the following questions in 2-3 sentences each based on the information provided in the case document.
1. Who were the Petitioner and Respondent in this case, and what was the Petitioner’s central complaint that initiated the legal action?
2. What specific violation of the community’s rules was the Petitioner initially accused of, and which governing documents were cited as being violated?
3. Describe the timeline of notices and fines issued by the Respondent between February and May 2013.
4. What was the Petitioner’s explanation for not responding to the initial violation notices from the Respondent before receiving a letter from the association’s attorney?
5. What actions did the Respondent take in or around June 2019 that led the Petitioner to file his petition with the Arizona Department of Real Estate?
6. What was the Petitioner’s primary legal argument regarding the “notice” required by the Arizona statute A.R.S. § 33-1803(B)?
7. How did the Administrative Law Judge differentiate between “actual notice” and “constructive notice” in her decision?
8. Why did the judge ultimately conclude that the Respondent had provided the Petitioner with adequate “notice and an opportunity to be heard”?
9. Explain the Petitioner’s allegation about improper late fees and the reason the judge rejected this argument.
10. What was the final order of the Administrative Law Judge in this case, and what recourse was available to the parties?
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Answer Key
1. The Petitioner was homeowner Robert L. Greco, and the Respondent was the Bellasera Community Association, Inc. (the HOA). Greco’s central complaint, filed on October 11, 2019, was that the HOA had denied him automatic gate access and use of clubhouse facilities on July 1, 2019, despite his being a long-term resident with timely payment of all quarterly dues.
2. The Petitioner was accused of having a faded garage door that needed to be repainted. The violation was cited as being contrary to the CC&Rs (Covenants, Conditions and Restrictions), specifically Article V, Section 5.2, and the community’s Design Guidelines, specifically Article III, Section J.
3. The Respondent sent an initial “Courtesy Notice” on February 5, 2013. This was followed by a “Final Notice” with a $250 fine on March 14, a “Notice of Remedy” with another $250 fine on April 2, and a “Fourth Notice of Non-Compliance” with another $250 fine on May 7, 2013.
4. The Petitioner claimed that the attorney’s letter, received around June 5, 2013, was his “initial alert” regarding the garage door condition. He stated that he routinely disposes of unsolicited mail without reading it and had inadvertently discarded the previous notices sent by the Respondent.
5. In June 2019, after failed settlement negotiations over the outstanding $750 in fines from 2013, the Respondent deactivated the Petitioner’s security gate fob and his access to the clubhouse. This action prompted the Petitioner to file his dispute petition.
6. The Petitioner’s primary argument was that he did not receive “actual notice” of the violation until the attorney’s letter. He contended that because he acted promptly to correct the violation after receiving actual notice, he should not have been fined.
7. The judge used definitions from Black’s Law Dictionary. “Actual notice” was defined as notice given directly to, or personally received by, a party. “Constructive notice” was defined as notice arising by presumption of law from facts and circumstances that a party had a duty to take notice of.
8. The judge concluded that the multiple notices mailed to the Petitioner’s residential address constituted “constructive notice” of the violation. Because the relevant statute, A.R.S. § 33-1803(B), does not explicitly require “actual notice,” and the mailings also advised him of his right to appeal, the judge found the Respondent had fulfilled its obligation to provide notice and an opportunity to be heard.
9. The Petitioner alleged that the additional $500 in fines were improper late fees on the original $250 fine. The judge rejected this, clarifying that the Respondent’s notices stated that additional fines would be assessed every 14 days for an ongoing failure to remedy the violation. Therefore, the additional charges were three separate fines for the “ongoing condition of the garage door,” not late fees.
10. The final order was that the Petitioner’s petition be dismissed. The parties were notified that this order was binding unless a request for rehearing was filed with the Commissioner of the Department of Real Estate within 30 days.
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Essay Questions
The following questions are designed for deeper analysis and discussion. No answers are provided.
1. Analyze the Administrative Law Judge’s reasoning for favoring “constructive notice” over “actual notice” in the context of A.R.S. § 33-1803(B). Discuss the potential consequences for homeowners and HOAs if the ruling had required “actual notice.”
2. Trace the negotiation attempts between the Petitioner and the Respondent in 2013 and 2019. Evaluate the effectiveness of these attempts and discuss whether the dispute could have been resolved without formal legal proceedings.
3. The Petitioner argued that the fines imposed after the initial $250 were improper late fees. The judge, however, characterized them as new fines for an “ongoing condition.” Based on the evidence presented in the notices, construct an argument supporting both the Petitioner’s and the judge’s interpretation.
4. Discuss the concept of “burden of proof” in this case. Explain what “preponderance of the evidence” means and identify the key pieces of evidence that allowed the judge to conclude the Respondent did not violate the statute.
5. Examine the roles of the various community governing documents cited in this case (CC&Rs, Design Guidelines, Violation Enforcement policy). Explain how these documents worked together to grant the Respondent the authority to take action against the Petitioner.
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Glossary of Key Terms
Definition
A.R.S. § 33-1803(B)
The Arizona Revised Statute central to this case, which permits an HOA board to impose reasonable monetary penalties for violations after providing “notice and an opportunity to be heard.”
Actual Notice
As defined in the decision, it is “[n]otice given directly to, or received personally by, a party.”
Administrative Law Judge (ALJ)
The official who presides over administrative hearings, makes findings of fact and conclusions of law, and issues a decision. In this case, it was Tammy L. Eigenheer.
Bellasera Community Association, Inc.
The Respondent in the case; the homeowners association (HOA) for the Bellasera Community in Arizona.
An acronym for Declaration of Covenants, Conditions and Restrictions. These are the governing legal documents for the community, which the Petitioner was found to have violated (specifically Article V, Section 5.2).
Constructive Notice
As defined in the decision, it is “[n]otice arising by presumption of law from the existence of facts and circumstances that a party had a duty to take notice of.” The judge ruled that mail sent to a residence constitutes this form of notice.
Design Guidelines
A set of rules established by the HOA governing the aesthetic appearance of properties. The Petitioner was found in violation of Article III, Section J of these guidelines.
Petitioner
The party who initiates a legal action or petition seeking a ruling. In this case, it was the homeowner, Robert L. Greco.
Preponderance of the evidence
The standard of proof required in this hearing. It is defined as “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force.”
Respondent
The party against whom a petition is filed and who must respond to the allegations. In this case, it was the HOA.
Blog Post – 20F-H2019018-REL
He Threw Away His Mail for Years. His HOA’s Response Is a Warning to Every Homeowner.
That official-looking envelope from your Homeowners Association sits on the counter, a silent challenge. It’s easy to dismiss it as a newsletter or a bland reminder, just another piece of paper to be sorted later. But what if it isn’t? What if that envelope is a legal summons in disguise, the first shot in a battle you don’t even know you’re fighting?
For Robert L. Greco, a resident in his community for 17 years, this hypothetical became a harsh reality. He learned that ignoring HOA correspondence can ignite a conflict that smolders for years before erupting into severe consequences. Originating from a maintenance issue as simple as a faded garage door, his case offers a masterclass in the powerful lessons every homeowner should heed.
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1. The “I Didn’t Read It” Defense Doesn’t Work
The central pillar of the homeowner’s defense was disarmingly simple: he claimed he never received the first four violation notices because he habitually throws away what he considers “unsolicited mail.” He argued that without having read the warnings, he couldn’t be held responsible for the fines.
The judge’s ruling, however, invoked a foundational legal concept that extends far beyond HOA disputes into areas like property deeds and public records: the difference between “actual notice” and “constructive notice.” While actual notice means you personally saw the information, constructive notice presumes you have knowledge of something because it was delivered properly—in this case, mailed to the correct address. Whether you open the envelope is irrelevant.
In a July 5, 2013 letter, the homeowner unwittingly sealed his own fate by describing his mail-handling routine:
Routinely, Saturdays are my mail-pick-up days, and invariably, I walk straight to the re-cyclable container, and deposit the mail in the receptacle… I was astonished to learn that my garage door failed inspection. This is my initial alert of the garage door condition.
For homeowners, the takeaway is a stark one: in the eyes of the law, your recycling bin is not a valid legal defense. The burden doesn’t fall on an HOA to ensure you read your mail, only to send it. The responsibility to open and review all official correspondence rests squarely on the homeowner.
2. A Tiny Issue Can Snowball into a Years-Long Standoff
The timeline of this dispute reveals a classic case of conflict avoidance, where a minor, fixable problem was allowed to spiral into a major legal battle. The cost of a can of paint and a Saturday afternoon of work was ultimately dwarfed by a six-year, $750 dispute that cost the homeowner his access to his own community.
• February 5, 2013: The HOA sends its first “Courtesy Notice” regarding a faded garage door in need of repainting.
• March – May 2013: After no response, the HOA issues three more notices, levying escalating fines that total $750.
• 2013 to 2019: For six years, the homeowner receives quarterly statements showing the $750 balance. Each time, he would “cross out the $750.00 balance and pay the current assessment.”
• June/July 2019: The HOA finally forces the issue by deactivating his security gate fob and his access to the clubhouse.
This progression shows how a simple lack of communication transformed a weekend chore into a years-long standoff. By ignoring the notices and the subsequent fines, the homeowner allowed a molehill to grow into a mountain of conflict.
3. “Continuing Violation” Fines Are Not Late Fees
The homeowner contended that the HOA was improperly stacking late fees on top of an initial $250 penalty. However, the administrative law judge highlighted a critical distinction embedded in the association’s rules.
The HOA wasn’t charging late fees on a single, past-due penalty. It was levying new fines for a “continuing violation.” The notice sent on March 14, 2013, explicitly warned that “an additional fine of $250 will be assessed automatically every 14 days… if the violation remains uncorrected.”
This is a crucial detail found in many HOA bylaws. An unpainted garage door is not a one-time offense; it is an ongoing breach of community standards. A homeowner who thinks they are simply letting a single fine sit unpaid may actually be incurring entirely new violations over time, dramatically increasing their financial liability.
4. Failed Negotiations Can Cost More Than Money
Twice, this dispute could have been resolved. The breakdown in negotiations, however, reveals how ego and principle can prove more costly than the fines themselves.
The first attempt came in 2013, after the homeowner had finally painted the garage. The HOA initially offered to settle a supposed $900 balance for $500. This, however, was based on an “internal accounting error.” In a subsequent letter, the HOA apologized, corrected the record to show the true balance was $750, and made a formal offer: pay half—just $375—and the matter would be closed. The offer was not accepted. Including this error shows the HOA was not infallible, making the subsequent stalemate more complex.
The second negotiation occurred in 2019, prompted by a friend on the Board who urged a settlement. The homeowner offered $100. The Board countered with $250. The homeowner’s final offer was exquisitely specific: “$251.00, $250.00 to settle the outstanding fines and $1.00 to rent the clubhouse on a specific date.”
This offer was a tactical and psychological blunder. That extra dollar wasn’t about money; it was a message. Whether intended as a sarcastic jab or a principled stand to assert his rights as a member, it transformed a financial negotiation into a battle of wills. For a Board of Directors, accepting such an offer could be seen as capitulating to a petty gesture, setting a precedent that defiance works. They declined. Shortly after, the homeowner’s access to community facilities was cut off, leading to the legal petition he ultimately lost.
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Conclusion: A Lesson in Communication
This case serves as a powerful warning. The legal force of “constructive notice” makes you responsible for the mail you receive, not just the mail you read. The six-year standoff over a can of paint shows how inaction can have disproportionate consequences. And the failed $251 offer demonstrates that good-faith negotiation is paramount.
Ultimately, the homeowner was left still owing the money and locked out of his own amenities—a casualty of a battle he prolonged at every turn. It leaves every homeowner with a critical question to consider: in a dispute with your HOA, where is the line between standing on principle and causing yourself unnecessary harm?
Case Participants
Petitioner Side
Robert L Greco(petitioner)
Respondent Side
Nathan Tennyson(attorney) Brown|Olcott, PLLC
David Reid(board member) Testified for Respondent
Annette McCarthy(manager) Acting Manager; Testified for Respondent
Kelly Oetinger(attorney) Counsel for Respondent in 2013
The Administrative Law Judge concluded that Bellasera Community Association, Inc. did not violate A.R.S. § 33-1803(B) because the homeowner received constructive notice of the violation and fine structure, satisfying statutory requirements. The petition was dismissed.
Why this result: Petitioner failed to meet the burden of proving Respondent violated A.R.S. § 33-1803(B), as the evidence showed Petitioner received sufficient constructive notice of the alleged violation and had an opportunity to be heard or appeal.
Key Issues & Findings
Whether the HOA violated statutory requirements regarding notice and imposition of monetary penalties/late fees, resulting in suspension of privileges.
Petitioner alleged the HOA violated A.R.S. § 33-1803(B) by imposing fines and suspending gate/clubhouse access without providing adequate (actual) notice of the violation and hearing opportunity, and by improperly imposing late fees. The ALJ found the HOA provided constructive notice, satisfying the statute, and was entitled to impose cumulative fines for the ongoing violation.
Briefing Document: Greco v. Bellasera Community Association, Inc.
Executive Summary
This document synthesizes the findings and decision in the case of Robert L. Greco (Petitioner) versus the Bellasera Community Association, Inc. (Respondent), heard by the Arizona Office of Administrative Hearings. The Administrative Law Judge dismissed the petition, ruling in favor of the Homeowners Association (HOA).
The core dispute originated from a 2013 violation notice regarding a faded garage door. The Petitioner claimed he did not receive the initial notices and only became aware of the issue upon receiving a letter from the HOA’s attorney. Despite subsequently painting the door, an outstanding balance of $750 in fines remained on his account. For six years, the Petitioner paid his quarterly dues but ignored the outstanding fine balance. In June 2019, after failed settlement negotiations, the HOA deactivated the Petitioner’s security gate fob and clubhouse access, prompting him to file the formal dispute.
The judge’s decision rested on two key legal conclusions. First, the court rejected the Petitioner’s argument that “actual notice” was required for the fines to be valid. It ruled that the multiple notices mailed to the Petitioner’s residence constituted sufficient “constructive notice” under Arizona law, providing both notification of the violation and an opportunity to be heard. Second, the court determined that the $750 charge was not an improper late fee but rather three separate, legitimate fines of $250 each, levied for an ongoing, uncorrected violation as per the HOA’s enforcement policy.
Case Overview
Case Name
Robert L Greco, Petitioner, vs. Bellasera Community Association, Inc., Respondent
Case Number
20F-H2019018-REL
Jurisdiction
Arizona Office of Administrative Hearings
Presiding Judge
Administrative Law Judge Tammy L. Eigenheer
Hearing Date
January 9, 2020
Decision Date
January 29, 2020
Petitioner’s Core Allegation
Respondent violated A.R.S. § 33-1803(B) by imposing penalties and revoking privileges without providing proper notice and an opportunity to be heard.
Core Factual Issue
The denial of automatic gate and clubhouse access to the Petitioner on July 1, 2019, due to unpaid fines from 2013.
Chronology of the Dispute
The conflict between Mr. Greco and the Bellasera Community Association unfolded over six years, escalating from a minor maintenance issue to a formal legal dispute and revocation of privileges.
Initial Violation and Fines (2013)
Details
Feb. 5, 2013
Courtesy Notice
Respondent sent a notice to Petitioner’s address stating his garage door was faded and needed to be repainted, in violation of the Design Guidelines.
Mar. 14, 2013
Final Notice & First Fine
A follow-up notice was sent, stating a $250 fine was posted to Petitioner’s account. It warned that an additional $250 fine would be assessed automatically every 14 days if the violation remained uncorrected.
Apr. 2, 2013
Notice of Remedy & Second Fine
A third notice was sent, posting another $250 fine. This letter explicitly warned that the HOA had the “ability to suspend privileges for use of the Recreational Facilities” and informed the Petitioner of his right to appeal within 14 days.
May 7, 2013
Fourth Notice & Third Fine
A fourth notice was sent, posting another $250 fine to the account. It again noted the right to appeal the fine.
Jun. 5, 2013
Letter from HOA Counsel
Attorney Kelly Oetinger sent a letter demanding the garage door be repainted within 15 days. The letter explicitly stated, “If you do not repaint… the Association may disable the transponder you use to enter the community and may disable the fobs you use for the clubhouse.”
Petitioner’s Response and Aftermath (2013)
• July 4, 2013: Petitioner repainted the garage door.
• July 5, 2013: Petitioner sent a letter to the HOA stating the attorney’s letter was his “initial alert of the garage door condition.” He explained his delay by stating, “To effectively manage my workload, I dispose of unsolicited mail… In the future, I will exercise greater caution in disposing of unsolicited mail.”
• July 5, 2013: The HOA sent a letter acknowledging the repainting and offered to settle the $900 in fines for a payment of $500. The letter reiterated the threat to deactivate gate openers and fobs.
• July 17, 2013: The HOA sent a follow-up letter correcting an internal accounting error. The total fines were $750, not $900. A new settlement offer was made: pay $375, and the remaining $375 would be waived.
Period of Inaction (2013 – 2019)
From 2013 to 2019, the Petitioner received quarterly statements from the HOA indicating a $750 balance in addition to current assessments. Each quarter, the Petitioner would physically cross out the $750 balance and pay only the current assessment amount.
Escalation and Revocation of Privileges (2019)
• June 2019: Dennis Carson, a friend of the Petitioner serving on the HOA Board of Directors, informed him that his name was on a penalty list and the Board planned to deactivate his security gate and clubhouse access.
• June 2019: Settlement negotiations failed. The Petitioner offered $100; the Board countered with $250. The Petitioner then offered $251 ($250 for the fine and $1 to rent the clubhouse), which the Board declined.
• July 1, 2019: The Respondent deactivated the Petitioner’s security gate fob and access to the clubhouse.
• October 11, 2019: The Petitioner filed the Homeowners Association Dispute Process Petition, initiating the legal proceedings.
Key Arguments and Legal Findings
The Administrative Law Judge’s decision centered on the interpretation of “notice” as required by state law and the legitimacy of the fines imposed by the HOA.
Petitioner’s Position
1. Lack of Proper Notice: The Petitioner argued that he had not received “actual notice” of the violation or the impending fines until the letter from the HOA’s counsel on June 5, 2013. He asserted that because he acted promptly after receiving that letter, the fines were unjust. His argument implied that warnings in mail he did not personally read could not be held against him.
2. Improper Fines: The Petitioner alleged that the additional $500 in charges on the original $250 fine constituted improper late fees.
Administrative Law Judge’s Conclusions of Law
The Judge systematically refuted the Petitioner’s arguments, concluding that the HOA acted within its rights and in accordance with the law.
1. On the Matter of Notice:
• The governing statute, A.R.S. § 33-1803(B), requires “notice and an opportunity to be heard” before imposing penalties.
• The Judge found no legal authority requiring this to be “actual notice.” To accept this argument would create an unworkable standard where a homeowner could “avoid receiving ‘actual notice’ by simply refusing to sign for a certified mailing.”
• The decision established that the Petitioner received constructive notice through the “multiple mailings that were presumably delivered to his residential address.”
• The notices also informed the Petitioner how to appeal the matter, thereby satisfying the requirement for an “opportunity to be heard.”
• Conclusion: “Accordingly, Petitioner was provided notice and an opportunity to be heard in accordance with A.R.S. § 33-1803(B).”
2. On the Matter of Fines:
• The Judge differentiated between late fees and fines for an ongoing violation.
• The notices sent by the Respondent “clearly stated that an ongoing failure to remedy the violation would result in additional fines every 14 days.”
• The violation persisted from before March 14, 2013 (first fine) until July 5, 2013 (when the door was confirmed painted).
• Conclusion: The Respondent was entitled to impose three separate fines for the “ongoing condition of the garage door,” making the total of $750 legitimate.
Final Order and Implications
Based on the analysis of the evidence and law, the Administrative Law Judge reached a definitive conclusion.
• Final Ruling: “This Tribunal concludes that Respondent did not violate the provisions of A.R.S. § 33-1803(B).”
• Order: “IT IS ORDERED that Petitioner’s petition is dismissed.”
• Binding Nature: The order, dated January 29, 2020, is binding on the parties unless a rehearing is requested with the Commissioner of the Department of Real Estate within 30 days of the service of the order.
Study Guide – 20F-H2019018-REL
Study Guide: Greco v. Bellasera Community Association, Inc.
This guide provides a comprehensive review of the Administrative Law Judge Decision in the case of Robert L. Greco (Petitioner) versus Bellasera Community Association, Inc. (Respondent), Case No. 20F-H2019018-REL. It includes a short-answer quiz to test your knowledge, an answer key for review, a set of essay questions for deeper analysis, and a glossary of key terms.
Short-Answer Quiz
Answer the following questions in 2-3 sentences each based on the information provided in the case document.
1. Who were the Petitioner and Respondent in this case, and what was the Petitioner’s central complaint that initiated the legal action?
2. What specific violation of the community’s rules was the Petitioner initially accused of, and which governing documents were cited as being violated?
3. Describe the timeline of notices and fines issued by the Respondent between February and May 2013.
4. What was the Petitioner’s explanation for not responding to the initial violation notices from the Respondent before receiving a letter from the association’s attorney?
5. What actions did the Respondent take in or around June 2019 that led the Petitioner to file his petition with the Arizona Department of Real Estate?
6. What was the Petitioner’s primary legal argument regarding the “notice” required by the Arizona statute A.R.S. § 33-1803(B)?
7. How did the Administrative Law Judge differentiate between “actual notice” and “constructive notice” in her decision?
8. Why did the judge ultimately conclude that the Respondent had provided the Petitioner with adequate “notice and an opportunity to be heard”?
9. Explain the Petitioner’s allegation about improper late fees and the reason the judge rejected this argument.
10. What was the final order of the Administrative Law Judge in this case, and what recourse was available to the parties?
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Answer Key
1. The Petitioner was homeowner Robert L. Greco, and the Respondent was the Bellasera Community Association, Inc. (the HOA). Greco’s central complaint, filed on October 11, 2019, was that the HOA had denied him automatic gate access and use of clubhouse facilities on July 1, 2019, despite his being a long-term resident with timely payment of all quarterly dues.
2. The Petitioner was accused of having a faded garage door that needed to be repainted. The violation was cited as being contrary to the CC&Rs (Covenants, Conditions and Restrictions), specifically Article V, Section 5.2, and the community’s Design Guidelines, specifically Article III, Section J.
3. The Respondent sent an initial “Courtesy Notice” on February 5, 2013. This was followed by a “Final Notice” with a $250 fine on March 14, a “Notice of Remedy” with another $250 fine on April 2, and a “Fourth Notice of Non-Compliance” with another $250 fine on May 7, 2013.
4. The Petitioner claimed that the attorney’s letter, received around June 5, 2013, was his “initial alert” regarding the garage door condition. He stated that he routinely disposes of unsolicited mail without reading it and had inadvertently discarded the previous notices sent by the Respondent.
5. In June 2019, after failed settlement negotiations over the outstanding $750 in fines from 2013, the Respondent deactivated the Petitioner’s security gate fob and his access to the clubhouse. This action prompted the Petitioner to file his dispute petition.
6. The Petitioner’s primary argument was that he did not receive “actual notice” of the violation until the attorney’s letter. He contended that because he acted promptly to correct the violation after receiving actual notice, he should not have been fined.
7. The judge used definitions from Black’s Law Dictionary. “Actual notice” was defined as notice given directly to, or personally received by, a party. “Constructive notice” was defined as notice arising by presumption of law from facts and circumstances that a party had a duty to take notice of.
8. The judge concluded that the multiple notices mailed to the Petitioner’s residential address constituted “constructive notice” of the violation. Because the relevant statute, A.R.S. § 33-1803(B), does not explicitly require “actual notice,” and the mailings also advised him of his right to appeal, the judge found the Respondent had fulfilled its obligation to provide notice and an opportunity to be heard.
9. The Petitioner alleged that the additional $500 in fines were improper late fees on the original $250 fine. The judge rejected this, clarifying that the Respondent’s notices stated that additional fines would be assessed every 14 days for an ongoing failure to remedy the violation. Therefore, the additional charges were three separate fines for the “ongoing condition of the garage door,” not late fees.
10. The final order was that the Petitioner’s petition be dismissed. The parties were notified that this order was binding unless a request for rehearing was filed with the Commissioner of the Department of Real Estate within 30 days.
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Essay Questions
The following questions are designed for deeper analysis and discussion. No answers are provided.
1. Analyze the Administrative Law Judge’s reasoning for favoring “constructive notice” over “actual notice” in the context of A.R.S. § 33-1803(B). Discuss the potential consequences for homeowners and HOAs if the ruling had required “actual notice.”
2. Trace the negotiation attempts between the Petitioner and the Respondent in 2013 and 2019. Evaluate the effectiveness of these attempts and discuss whether the dispute could have been resolved without formal legal proceedings.
3. The Petitioner argued that the fines imposed after the initial $250 were improper late fees. The judge, however, characterized them as new fines for an “ongoing condition.” Based on the evidence presented in the notices, construct an argument supporting both the Petitioner’s and the judge’s interpretation.
4. Discuss the concept of “burden of proof” in this case. Explain what “preponderance of the evidence” means and identify the key pieces of evidence that allowed the judge to conclude the Respondent did not violate the statute.
5. Examine the roles of the various community governing documents cited in this case (CC&Rs, Design Guidelines, Violation Enforcement policy). Explain how these documents worked together to grant the Respondent the authority to take action against the Petitioner.
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Glossary of Key Terms
Definition
A.R.S. § 33-1803(B)
The Arizona Revised Statute central to this case, which permits an HOA board to impose reasonable monetary penalties for violations after providing “notice and an opportunity to be heard.”
Actual Notice
As defined in the decision, it is “[n]otice given directly to, or received personally by, a party.”
Administrative Law Judge (ALJ)
The official who presides over administrative hearings, makes findings of fact and conclusions of law, and issues a decision. In this case, it was Tammy L. Eigenheer.
Bellasera Community Association, Inc.
The Respondent in the case; the homeowners association (HOA) for the Bellasera Community in Arizona.
An acronym for Declaration of Covenants, Conditions and Restrictions. These are the governing legal documents for the community, which the Petitioner was found to have violated (specifically Article V, Section 5.2).
Constructive Notice
As defined in the decision, it is “[n]otice arising by presumption of law from the existence of facts and circumstances that a party had a duty to take notice of.” The judge ruled that mail sent to a residence constitutes this form of notice.
Design Guidelines
A set of rules established by the HOA governing the aesthetic appearance of properties. The Petitioner was found in violation of Article III, Section J of these guidelines.
Petitioner
The party who initiates a legal action or petition seeking a ruling. In this case, it was the homeowner, Robert L. Greco.
Preponderance of the evidence
The standard of proof required in this hearing. It is defined as “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force.”
Respondent
The party against whom a petition is filed and who must respond to the allegations. In this case, it was the HOA.
Blog Post – 20F-H2019018-REL
He Threw Away His Mail for Years. His HOA’s Response Is a Warning to Every Homeowner.
That official-looking envelope from your Homeowners Association sits on the counter, a silent challenge. It’s easy to dismiss it as a newsletter or a bland reminder, just another piece of paper to be sorted later. But what if it isn’t? What if that envelope is a legal summons in disguise, the first shot in a battle you don’t even know you’re fighting?
For Robert L. Greco, a resident in his community for 17 years, this hypothetical became a harsh reality. He learned that ignoring HOA correspondence can ignite a conflict that smolders for years before erupting into severe consequences. Originating from a maintenance issue as simple as a faded garage door, his case offers a masterclass in the powerful lessons every homeowner should heed.
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1. The “I Didn’t Read It” Defense Doesn’t Work
The central pillar of the homeowner’s defense was disarmingly simple: he claimed he never received the first four violation notices because he habitually throws away what he considers “unsolicited mail.” He argued that without having read the warnings, he couldn’t be held responsible for the fines.
The judge’s ruling, however, invoked a foundational legal concept that extends far beyond HOA disputes into areas like property deeds and public records: the difference between “actual notice” and “constructive notice.” While actual notice means you personally saw the information, constructive notice presumes you have knowledge of something because it was delivered properly—in this case, mailed to the correct address. Whether you open the envelope is irrelevant.
In a July 5, 2013 letter, the homeowner unwittingly sealed his own fate by describing his mail-handling routine:
Routinely, Saturdays are my mail-pick-up days, and invariably, I walk straight to the re-cyclable container, and deposit the mail in the receptacle… I was astonished to learn that my garage door failed inspection. This is my initial alert of the garage door condition.
For homeowners, the takeaway is a stark one: in the eyes of the law, your recycling bin is not a valid legal defense. The burden doesn’t fall on an HOA to ensure you read your mail, only to send it. The responsibility to open and review all official correspondence rests squarely on the homeowner.
2. A Tiny Issue Can Snowball into a Years-Long Standoff
The timeline of this dispute reveals a classic case of conflict avoidance, where a minor, fixable problem was allowed to spiral into a major legal battle. The cost of a can of paint and a Saturday afternoon of work was ultimately dwarfed by a six-year, $750 dispute that cost the homeowner his access to his own community.
• February 5, 2013: The HOA sends its first “Courtesy Notice” regarding a faded garage door in need of repainting.
• March – May 2013: After no response, the HOA issues three more notices, levying escalating fines that total $750.
• 2013 to 2019: For six years, the homeowner receives quarterly statements showing the $750 balance. Each time, he would “cross out the $750.00 balance and pay the current assessment.”
• June/July 2019: The HOA finally forces the issue by deactivating his security gate fob and his access to the clubhouse.
This progression shows how a simple lack of communication transformed a weekend chore into a years-long standoff. By ignoring the notices and the subsequent fines, the homeowner allowed a molehill to grow into a mountain of conflict.
3. “Continuing Violation” Fines Are Not Late Fees
The homeowner contended that the HOA was improperly stacking late fees on top of an initial $250 penalty. However, the administrative law judge highlighted a critical distinction embedded in the association’s rules.
The HOA wasn’t charging late fees on a single, past-due penalty. It was levying new fines for a “continuing violation.” The notice sent on March 14, 2013, explicitly warned that “an additional fine of $250 will be assessed automatically every 14 days… if the violation remains uncorrected.”
This is a crucial detail found in many HOA bylaws. An unpainted garage door is not a one-time offense; it is an ongoing breach of community standards. A homeowner who thinks they are simply letting a single fine sit unpaid may actually be incurring entirely new violations over time, dramatically increasing their financial liability.
4. Failed Negotiations Can Cost More Than Money
Twice, this dispute could have been resolved. The breakdown in negotiations, however, reveals how ego and principle can prove more costly than the fines themselves.
The first attempt came in 2013, after the homeowner had finally painted the garage. The HOA initially offered to settle a supposed $900 balance for $500. This, however, was based on an “internal accounting error.” In a subsequent letter, the HOA apologized, corrected the record to show the true balance was $750, and made a formal offer: pay half—just $375—and the matter would be closed. The offer was not accepted. Including this error shows the HOA was not infallible, making the subsequent stalemate more complex.
The second negotiation occurred in 2019, prompted by a friend on the Board who urged a settlement. The homeowner offered $100. The Board countered with $250. The homeowner’s final offer was exquisitely specific: “$251.00, $250.00 to settle the outstanding fines and $1.00 to rent the clubhouse on a specific date.”
This offer was a tactical and psychological blunder. That extra dollar wasn’t about money; it was a message. Whether intended as a sarcastic jab or a principled stand to assert his rights as a member, it transformed a financial negotiation into a battle of wills. For a Board of Directors, accepting such an offer could be seen as capitulating to a petty gesture, setting a precedent that defiance works. They declined. Shortly after, the homeowner’s access to community facilities was cut off, leading to the legal petition he ultimately lost.
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Conclusion: A Lesson in Communication
This case serves as a powerful warning. The legal force of “constructive notice” makes you responsible for the mail you receive, not just the mail you read. The six-year standoff over a can of paint shows how inaction can have disproportionate consequences. And the failed $251 offer demonstrates that good-faith negotiation is paramount.
Ultimately, the homeowner was left still owing the money and locked out of his own amenities—a casualty of a battle he prolonged at every turn. It leaves every homeowner with a critical question to consider: in a dispute with your HOA, where is the line between standing on principle and causing yourself unnecessary harm?
Case Participants
Petitioner Side
Robert L Greco(petitioner)
Respondent Side
Nathan Tennyson(attorney) Brown|Olcott, PLLC
David Reid(board member) Testified for Respondent
Annette McCarthy(manager) Acting Manager; Testified for Respondent
Kelly Oetinger(attorney) Counsel for Respondent in 2013
The Ridge at Diamante del Lago Homeowners Association, Inc.
Counsel
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Alleged Violations
A.R.S. § 33-1805(A)
Outcome Summary
Petitioner established that Respondent violated A.R.S. § 33-1805(A) by failing to provide access to requested association records within the statutory ten-day period. The petition was granted and Respondent was ordered to reimburse the $500.00 filing fee.
Key Issues & Findings
Failure to provide timely access to association financial records
Petitioner filed a single-issue petition alleging Respondent violated CC&Rs § 4.8 and A.R.S. § 33-1805 by refusing to make available association records or to produce a receipt identifying a contractor and the amount paid for a cinderblock wall built by the community’s clubhouse.
Orders: The petition was granted because Respondent violated A.R.S. § 33-1805(A) by failing to provide access to records within ten days of Petitioner’s September 12, 2018 request. Respondent was ordered to reimburse the $500.00 filing fee.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1805(A)
CC&R § 4.8
Analytics Highlights
Topics: HOA Records, Record Inspection, Timely Disclosure, Statutory Violation, Filing Fee Reimbursement
Additional Citations:
A.R.S. § 33-1805(A)
CC&R § 4.8
A.R.S. § 32-2199(B)
A.R.S. § 33-1803
A.R.S. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
Video Overview
Audio Overview
Decision Documents
19F-H1918034-REL Decision – 692859.pdf
Uploaded 2025-10-09T03:33:53 (151.9 KB)
Briefing Doc – 19F-H1918034-REL
Briefing Document: Curtin v. The Ridge at Diamante del Lago HOA
Executive Summary
This briefing document analyzes the Administrative Law Judge (ALJ) Decision in case number 19F-H1918034-REL, a dispute between homeowner Linda Curtin and The Ridge at Diamante del Lago Homeowners Association, Inc. (HOA). The central conflict arose from the HOA’s failure to provide financial records related to a small construction project within the timeframe mandated by Arizona law.
The petitioner, Ms. Curtin, alleged that the HOA violated its own Covenants, Conditions, and Restrictions (CC&Rs) and Arizona Revised Statutes (A.R.S.) § 33-1805 by not producing an invoice for a $1,000 cinderblock wall project at the community clubhouse. While the HOA did eventually provide the requested records, the ALJ found that it failed to do so within the legally required ten-day period following Ms. Curtin’s formal written request on September 12, 2018.
Consequently, the ALJ granted the petition in favor of Ms. Curtin, ruling that the HOA was in violation of A.R.S. § 33-1805(A). The HOA was ordered to reimburse Ms. Curtin for her $500 petition filing fee. However, the ALJ dismissed all of the petitioner’s ancillary complaints, including suspicions of forgery, concerns about the contractor’s licensing status, and other issues of HOA governance, deeming them either unsubstantiated or outside the narrow scope of the single-issue petition. The ruling underscores the strict procedural compliance required of HOAs regarding member record requests while limiting the scope of such legal challenges to the specific violations alleged.
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I. Case Overview
• Case Number: 19F-H1918034-REL
• Forum: Arizona Office of Administrative Hearings
• Petitioner: Linda Curtin (“Complainant”), a homeowner and HOA member.
• Respondent: The Ridge at Diamante del Lago Homeowners Association, Inc. (“HOA”), represented by Community Manager Tracy Schofield.
• Administrative Law Judge: Diane Mihalsky
• Core Allegation: The HOA violated its governing documents and state law by failing to make association records available to a member upon request. Specifically, the petitioner sought a receipt and contractor details for a cinderblock wall built at the community clubhouse.
II. Governing Rules and Statutes
The case centered on the interpretation and enforcement of the HOA’s internal rules and a specific Arizona statute governing planned communities.
Rule/Statute
Key Provision
CC&R § 4.8
Requires the HOA Board to keep “true and correct records of account in accordance with generally accepted accounting principles” and to make such books and records available for inspection by all owners upon request during normal business hours.
A.R.S. § 33-1805(A)
Mandates that all financial and other association records be made “reasonably available for examination” by any member. The statute explicitly requires the association to fulfill a request for examination within ten business days. A similar ten-day deadline applies for providing copies of records.
The respondent did not claim any legal privilege under A.R.S. § 33-1805(B) that would permit it to withhold the requested documents.
III. Chronology of the Dispute
The conflict unfolded over several months, beginning with an informal inquiry and escalating to a formal legal petition.
• August 1, 2018: Petitioner Linda Curtin first emails Community Manager Tracy Schofield for a contractor recommendation.
• August 2 – September 11, 2018: In a subsequent email exchange, Ms. Curtin asks who built the garbage can walls at the clubhouse. Ms. Schofield provides the name “Roberto” but is unable to provide a contact number, stating that the Board’s Treasurer, Jim Mackiewicz, had arranged the work. The petitioner later characterized this exchange as “evasive.”
• September 12, 2018: Ms. Curtin sends a formal written letter requesting “a copy of the invoice submitted to The Ridge HOA” for the wall construction. This action officially started the ten-day clock under A.R.S. § 33-1805(A).
• September 24, 2018: Ms. Schofield responds, stating that she does not have the invoices at her office as records are retained “in the community.” She provides a printout of payments made to contractor Gualberto Castro, which includes a $1,000 check dated November 1, 2017, for “Block work – clubhouse.”
• November 5, 2018: Ms. Curtin requests that the invoice be brought to that day’s HOA board meeting. The document is not provided.
• November 28, 2018: After making an additional 15 phone calls regarding related meeting minutes without a satisfactory response, Ms. Curtin files a single-issue petition with the Arizona Department of Real Estate.
• December 10, 2018: The HOA files its answer, claiming the issue has been resolved. On the same day, Ms. Schofield emails the contractor’s invoice to Ms. Curtin. The invoice, from ValleyWide Custom Painting Inc. and dated November 2, 2017, details the $1,000 job.
• December 11, 2018: Ms. Curtin requests additional documents, including a copy of the cashed check and the Architectural Control Committee (ACC) application for the project. Ms. Schofield is reported to have stated that ACC approval was not applicable to work on common areas.
• Post-December 11, 2018: Ms. Schofield eventually provides a copy of the cancelled check for $1,000 made payable to Mr. Castro.
• February 20, 2019: An evidentiary hearing is held before the ALJ.
IV. Analysis of Evidence and Arguments
A. Petitioner’s Position
Ms. Curtin’s case was built on the initial failure to produce records and expanded to include broader suspicions about the HOA’s conduct.
• Primary Claim: The HOA violated state law by failing to fulfill her September 12, 2018 request for records within the ten-day statutory period.
• Suspicions about Documentation: The petitioner expressed dissatisfaction with the documents eventually provided. She opined that the November 2, 2017 receipt “appeared to have two different kinds of handwriting and might be a forgery.” She also pointed to the fact that the check for payment was dated one day before the invoice date.
• Ancillary Governance Concerns: Ms. Curtin raised several issues beyond the scope of her petition, including:
◦ The contractor, Mr. Castro, was not licensed as required by the Registrar of Contractors.
◦ The Board meeting minutes did not show authorization for the $1,000 expenditure.
◦ The HOA’s ACC approval process was not followed for the wall.
◦ A separate, unrelated $125,000 pool remodel project was approved improperly (this was refuted by Ms. Schofield’s testimony that it required a membership vote).
B. Respondent’s Position
The HOA, through Ms. Schofield, acknowledged the delay but argued it had ultimately complied and faced logistical constraints.
• Eventual Compliance: The HOA’s primary defense was that it eventually provided all the documents in its possession related to the expenditure, thereby resolving the complaint.
• Logistical Challenges: Ms. Schofield testified that she is an off-site community manager for numerous associations and does not keep records in her office. She stated that the HOA’s records are stored “in the community” at a separate depository.
• Commitment to Future Compliance: Ms. Schofield testified that for any future requests, she would schedule a time for the petitioner to review records at the depository within the ten-day window.
• Communication: Ms. Schofield maintained that she “communicated with Petitioner on every issue” and provided what information she had available.
V. Administrative Law Judge’s Decision and Rationale
The ALJ’s decision was narrowly focused on the statutory violation, setting aside the petitioner’s other grievances.
A. Conclusions of Law
1. Violation Confirmed: The judge concluded that the petitioner successfully established by a preponderance of the evidence that the HOA violated A.R.S. § 33-1805(A). The HOA “acknowledged that it did not provide the documents or provide access to Petitioner to view the documents within ten days of Petitioner’s September 12, 2018 request.”
2. Scope of Relief Limited: The ALJ determined that the statute only requires that records be kept and made available in a timely manner. The law “has not authorized the Department… that HOAs produce records that satisfy all of a members’ stated concerns.”
3. Ancillary Claims Dismissed: The judge explicitly rejected the petitioner’s broader concerns, stating: “Petitioner’s concern with ‘transparency’ and dissatisfaction and suspicions about the records that were eventually provided do not entitle her to any additional relief in this forum.” The forgery claim was dismissed for lack of evidence, as Ms. Curtin did not present the opinion of a handwriting expert. The issues related to contractor licensing and internal HOA procedures were deemed outside the jurisdiction of the hearing for an HOA petition.
B. Recommended Order
Based on the findings, the ALJ issued a two-part order:
1. Petition Granted: The petition was granted on the grounds that Ms. Curtin had proven the HOA violated A.R.S. § 33-1805(A).
2. Reimbursement of Filing Fee: The HOA was ordered to reimburse the petitioner the $500.00 she paid to file the single-issue petition.
The order, issued on March 5, 2019, was declared binding on both parties unless a request for rehearing was filed within 30 days.
Study Guide – 19F-H1918034-REL
Study Guide: Curtin v. The Ridge at Diamante del Lago Homeowners Association, Inc.
This guide provides a detailed review of the Administrative Law Judge Decision in case number 19F-H1918034-REL, involving Petitioner Linda Curtin and Respondent The Ridge at Diamante del Lago Homeowners Association, Inc. It includes a quiz with an answer key to test comprehension, a set of essay questions for deeper analysis, and a glossary of key terms.
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Short-Answer Quiz
Instructions: Answer the following questions in two to three sentences, based exclusively on the information provided in the case document.
1. Who are the primary parties involved in this case and what are their respective roles?
2. What was the central allegation in the single-issue petition filed by Linda Curtin on November 28, 2018?
3. Which specific Arizona Revised Statute and CC&R section did the Petitioner claim the Respondent violated?
4. How did the HOA, through its community manager, initially attempt to resolve the records request that led to the petition?
5. What additional documents did Ms. Curtin request after receiving the contractor’s invoice on December 10, 2018?
6. What were Ms. Curtin’s specific suspicions and complaints regarding the quality and validity of the documents she eventually received?
7. What was Community Manager Tracy Schofield’s testimony regarding her role and the location of the association’s records?
8. According to the “Conclusions of Law,” what is the primary requirement of A.R.S. § 33-1805(A) regarding member requests for records?
9. On what specific point did the Administrative Law Judge find that the Respondent had violated the statute?
10. What was the final Recommended Order issued by the Administrative Law Judge in this case?
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Answer Key
1. The primary parties are Linda Curtin, the Petitioner and a homeowner, and The Ridge at Diamante del Lago Homeowners Association, Inc., the Respondent. Tracy Schofield appeared for the HOA as its Community Manager, and Diane Mihalsky served as the Administrative Law Judge.
2. The central allegation was that the HOA violated its own rules and state law by refusing to make association records available. Specifically, Ms. Curtin sought a receipt identifying the contractor and the amount paid for a cinderblock wall built by the community clubhouse.
3. The Petitioner claimed the Respondent violated CC&R § 4.8, concerning the keeping and availability of accounting records, and A.R.S. § 33-1805, which governs the examination of association records by members.
4. On September 24, 2018, Ms. Schofield responded to Ms. Curtin’s written request by stating she did not have invoices at her office. She did, however, provide a printout of payments made to the contractor, Gaulberto Castro, which included a $1,000.00 payment for “Block work – clubhouse.”
5. After receiving the invoice, Ms. Curtin requested a copy of the cashed check (front and back), the payee’s mailing address, and the completed Architectural Control Committee Application for the project, including the contractor’s address, license number, and insurance company.
6. Ms. Curtin complained that the contractor, Mr. Castro, was not licensed and that the job did not meet the exemption requirements for the Registrar of Contractors. She also opined that the receipt from November 2, 2017, appeared to be a forgery with two different kinds of handwriting.
7. Ms. Schofield testified that she is not an onsite manager, works for numerous associations, and does not keep any association records in her office. She stated that for future requests, she would schedule a time for Ms. Curtin to view the records at the Respondent’s records depository.
8. The primary requirement of A.R.S. § 33-1805(A) is that all financial and other records of an association must be made reasonably available for examination by any member. The statute mandates that the association has ten business days to fulfill a request for examination or to provide copies.
9. The Judge found that the Respondent violated A.R.S. § 33-1805(A) because, while it eventually provided all documents in its possession, it failed to provide the documents or access to them within the statutorily required ten-day period following Ms. Curtin’s September 12, 2018 request.
10. The Judge ordered that the Petitioner’s petition be granted because she established the violation of A.R.S. § 33-1805(A). The Judge further ordered that the Respondent reimburse Ms. Curtin the $500.00 she paid to file her single-issue petition.
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Essay Questions
Instructions: The following questions are designed to encourage a deeper analysis of the case. Formulate comprehensive responses using only the evidence and legal reasoning presented in the source document.
1. Analyze the timeline of communication between Linda Curtin and Tracy Schofield, from the initial informal inquiry on August 1, 2018, to the formal petition. How did the nature of the requests and the quality of the responses contribute to the escalation of the dispute?
2. Discuss the legal standard of “preponderance of the evidence” as it is defined and applied in this case. Explain how the Administrative Law Judge used this standard to find the Respondent in violation of the ten-day rule while simultaneously dismissing the Petitioner’s other concerns about transparency and forgery.
3. The Petitioner raised several issues during the hearing that were not part of her original single-issue petition, such as the contractor’s licensing status, the lack of Board meeting minutes authorizing the project, and a proposed $125,000 pool remodel. Why did the Administrative Law Judge deem these points irrelevant to the final decision?
4. Evaluate the responsibilities of a Homeowners Association regarding record-keeping and member access as outlined in CC&R § 4.8 and A.R.S. § 33-1805(A). Based on the testimony and evidence, describe the specific procedural failures of The Ridge at Diamante del Lago HOA in this matter.
5. The Judge’s decision explicitly states that the Petitioner’s “dissatisfaction and suspicions about the records that were eventually provided do not entitle her to any additional relief in this forum.” Explore the distinction the ruling makes between a procedural violation (timeliness of access) and the substantive content or perceived legitimacy of the records themselves.
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An independent judge who presides over administrative hearings. In this case, Diane Mihalsky of the Office of Administrative Hearings served as the ALJ.
A.R.S. § 33-1805
An Arizona Revised Statute requiring that all financial and other records of a homeowners association be made reasonably available for examination by any member within ten business days of a request.
Complainant
An alternative term used in the document to refer to the Petitioner, Linda Curtin.
Covenants, Conditions, and Restrictions (CC&Rs)
The governing documents that create and define the rules for a planned community. In this case, CC&R § 4.8, which deals with accounting records, was cited.
Department (The)
Refers to the Arizona Department of Real Estate, the state agency authorized to receive and decide petitions for hearings from HOA members and HOAs.
Evidentiary Hearing
A formal proceeding where evidence is presented and testimony is given before an administrative law judge to resolve a factual dispute. The hearing in this case took place on February 20, 2019.
Homeowners’ Association (HOA)
An organization in a planned community that creates and enforces rules for the properties and its members. The Respondent is The Ridge at Diamante del Lago Homeowners Association, Inc.
Office of Administrative Hearings (OAH)
An independent state agency in Arizona that conducts evidentiary hearings for other state agencies, such as the Department of Real Estate.
Petitioner
The party who files a petition initiating a legal action. In this case, the Petitioner is Linda Curtin, a homeowner and member of the Respondent HOA.
Preponderance of the Evidence
The standard of proof required in this case, defined as evidence that is more convincing and has greater weight, inclining an impartial mind to one side of the issue rather than the other. The Petitioner bears this burden of proof.
Respondent
The party against whom a petition is filed. In this case, the Respondent is The Ridge at Diamante del Lago Homeowners Association, Inc.
Restrictive Covenants
Legal obligations imposed in a deed upon the buyer of real estate. The document notes that if unambiguous, they are enforced to give effect to the intent of the parties.
Case Participants
Petitioner Side
Linda Curtin(petitioner) Also referred to as 'Complainant'; testified on her own behalf
Respondent Side
Tracy Schofield(community manager) The Ridge at Diamante del Lago Homeowners Association Appeared for Respondent and testified as Community Manager
Jim Mackiewicz(board member) The Ridge at Diamante del Lago Homeowners Association Board Treasurer
Mitch Kellogg(statutory agent) The Ridge at Diamante del Lago Homeowners Association, Inc.
Neutral Parties
Diane Mihalsky(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
Other Participants
Gualberto Castro(contractor) Gualberto Stucco & Repairs Contractor involved in the disputed work
Felicia Del Sol(administrative staff) Transmitted decision electronically
The Ridge at Diamante del Lago Homeowners Association, Inc.
Counsel
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Alleged Violations
A.R.S. § 33-1805(A)
Outcome Summary
Petitioner established that Respondent violated A.R.S. § 33-1805(A) by failing to provide access to requested association records within the statutory ten-day period. The petition was granted and Respondent was ordered to reimburse the $500.00 filing fee.
Key Issues & Findings
Failure to provide timely access to association financial records
Petitioner filed a single-issue petition alleging Respondent violated CC&Rs § 4.8 and A.R.S. § 33-1805 by refusing to make available association records or to produce a receipt identifying a contractor and the amount paid for a cinderblock wall built by the community’s clubhouse.
Orders: The petition was granted because Respondent violated A.R.S. § 33-1805(A) by failing to provide access to records within ten days of Petitioner’s September 12, 2018 request. Respondent was ordered to reimburse the $500.00 filing fee.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1805(A)
CC&R § 4.8
Analytics Highlights
Topics: HOA Records, Record Inspection, Timely Disclosure, Statutory Violation, Filing Fee Reimbursement
Additional Citations:
A.R.S. § 33-1805(A)
CC&R § 4.8
A.R.S. § 32-2199(B)
A.R.S. § 33-1803
A.R.S. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
Video Overview
Audio Overview
Decision Documents
19F-H1918034-REL Decision – 692859.pdf
Uploaded 2026-01-23T17:28:04 (151.9 KB)
Briefing Doc – 19F-H1918034-REL
Briefing Document: Curtin v. The Ridge at Diamante del Lago HOA
Executive Summary
This briefing document analyzes the Administrative Law Judge (ALJ) Decision in case number 19F-H1918034-REL, a dispute between homeowner Linda Curtin and The Ridge at Diamante del Lago Homeowners Association, Inc. (HOA). The central conflict arose from the HOA’s failure to provide financial records related to a small construction project within the timeframe mandated by Arizona law.
The petitioner, Ms. Curtin, alleged that the HOA violated its own Covenants, Conditions, and Restrictions (CC&Rs) and Arizona Revised Statutes (A.R.S.) § 33-1805 by not producing an invoice for a $1,000 cinderblock wall project at the community clubhouse. While the HOA did eventually provide the requested records, the ALJ found that it failed to do so within the legally required ten-day period following Ms. Curtin’s formal written request on September 12, 2018.
Consequently, the ALJ granted the petition in favor of Ms. Curtin, ruling that the HOA was in violation of A.R.S. § 33-1805(A). The HOA was ordered to reimburse Ms. Curtin for her $500 petition filing fee. However, the ALJ dismissed all of the petitioner’s ancillary complaints, including suspicions of forgery, concerns about the contractor’s licensing status, and other issues of HOA governance, deeming them either unsubstantiated or outside the narrow scope of the single-issue petition. The ruling underscores the strict procedural compliance required of HOAs regarding member record requests while limiting the scope of such legal challenges to the specific violations alleged.
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I. Case Overview
• Case Number: 19F-H1918034-REL
• Forum: Arizona Office of Administrative Hearings
• Petitioner: Linda Curtin (“Complainant”), a homeowner and HOA member.
• Respondent: The Ridge at Diamante del Lago Homeowners Association, Inc. (“HOA”), represented by Community Manager Tracy Schofield.
• Administrative Law Judge: Diane Mihalsky
• Core Allegation: The HOA violated its governing documents and state law by failing to make association records available to a member upon request. Specifically, the petitioner sought a receipt and contractor details for a cinderblock wall built at the community clubhouse.
II. Governing Rules and Statutes
The case centered on the interpretation and enforcement of the HOA’s internal rules and a specific Arizona statute governing planned communities.
Rule/Statute
Key Provision
CC&R § 4.8
Requires the HOA Board to keep “true and correct records of account in accordance with generally accepted accounting principles” and to make such books and records available for inspection by all owners upon request during normal business hours.
A.R.S. § 33-1805(A)
Mandates that all financial and other association records be made “reasonably available for examination” by any member. The statute explicitly requires the association to fulfill a request for examination within ten business days. A similar ten-day deadline applies for providing copies of records.
The respondent did not claim any legal privilege under A.R.S. § 33-1805(B) that would permit it to withhold the requested documents.
III. Chronology of the Dispute
The conflict unfolded over several months, beginning with an informal inquiry and escalating to a formal legal petition.
• August 1, 2018: Petitioner Linda Curtin first emails Community Manager Tracy Schofield for a contractor recommendation.
• August 2 – September 11, 2018: In a subsequent email exchange, Ms. Curtin asks who built the garbage can walls at the clubhouse. Ms. Schofield provides the name “Roberto” but is unable to provide a contact number, stating that the Board’s Treasurer, Jim Mackiewicz, had arranged the work. The petitioner later characterized this exchange as “evasive.”
• September 12, 2018: Ms. Curtin sends a formal written letter requesting “a copy of the invoice submitted to The Ridge HOA” for the wall construction. This action officially started the ten-day clock under A.R.S. § 33-1805(A).
• September 24, 2018: Ms. Schofield responds, stating that she does not have the invoices at her office as records are retained “in the community.” She provides a printout of payments made to contractor Gualberto Castro, which includes a $1,000 check dated November 1, 2017, for “Block work – clubhouse.”
• November 5, 2018: Ms. Curtin requests that the invoice be brought to that day’s HOA board meeting. The document is not provided.
• November 28, 2018: After making an additional 15 phone calls regarding related meeting minutes without a satisfactory response, Ms. Curtin files a single-issue petition with the Arizona Department of Real Estate.
• December 10, 2018: The HOA files its answer, claiming the issue has been resolved. On the same day, Ms. Schofield emails the contractor’s invoice to Ms. Curtin. The invoice, from ValleyWide Custom Painting Inc. and dated November 2, 2017, details the $1,000 job.
• December 11, 2018: Ms. Curtin requests additional documents, including a copy of the cashed check and the Architectural Control Committee (ACC) application for the project. Ms. Schofield is reported to have stated that ACC approval was not applicable to work on common areas.
• Post-December 11, 2018: Ms. Schofield eventually provides a copy of the cancelled check for $1,000 made payable to Mr. Castro.
• February 20, 2019: An evidentiary hearing is held before the ALJ.
IV. Analysis of Evidence and Arguments
A. Petitioner’s Position
Ms. Curtin’s case was built on the initial failure to produce records and expanded to include broader suspicions about the HOA’s conduct.
• Primary Claim: The HOA violated state law by failing to fulfill her September 12, 2018 request for records within the ten-day statutory period.
• Suspicions about Documentation: The petitioner expressed dissatisfaction with the documents eventually provided. She opined that the November 2, 2017 receipt “appeared to have two different kinds of handwriting and might be a forgery.” She also pointed to the fact that the check for payment was dated one day before the invoice date.
• Ancillary Governance Concerns: Ms. Curtin raised several issues beyond the scope of her petition, including:
◦ The contractor, Mr. Castro, was not licensed as required by the Registrar of Contractors.
◦ The Board meeting minutes did not show authorization for the $1,000 expenditure.
◦ The HOA’s ACC approval process was not followed for the wall.
◦ A separate, unrelated $125,000 pool remodel project was approved improperly (this was refuted by Ms. Schofield’s testimony that it required a membership vote).
B. Respondent’s Position
The HOA, through Ms. Schofield, acknowledged the delay but argued it had ultimately complied and faced logistical constraints.
• Eventual Compliance: The HOA’s primary defense was that it eventually provided all the documents in its possession related to the expenditure, thereby resolving the complaint.
• Logistical Challenges: Ms. Schofield testified that she is an off-site community manager for numerous associations and does not keep records in her office. She stated that the HOA’s records are stored “in the community” at a separate depository.
• Commitment to Future Compliance: Ms. Schofield testified that for any future requests, she would schedule a time for the petitioner to review records at the depository within the ten-day window.
• Communication: Ms. Schofield maintained that she “communicated with Petitioner on every issue” and provided what information she had available.
V. Administrative Law Judge’s Decision and Rationale
The ALJ’s decision was narrowly focused on the statutory violation, setting aside the petitioner’s other grievances.
A. Conclusions of Law
1. Violation Confirmed: The judge concluded that the petitioner successfully established by a preponderance of the evidence that the HOA violated A.R.S. § 33-1805(A). The HOA “acknowledged that it did not provide the documents or provide access to Petitioner to view the documents within ten days of Petitioner’s September 12, 2018 request.”
2. Scope of Relief Limited: The ALJ determined that the statute only requires that records be kept and made available in a timely manner. The law “has not authorized the Department… that HOAs produce records that satisfy all of a members’ stated concerns.”
3. Ancillary Claims Dismissed: The judge explicitly rejected the petitioner’s broader concerns, stating: “Petitioner’s concern with ‘transparency’ and dissatisfaction and suspicions about the records that were eventually provided do not entitle her to any additional relief in this forum.” The forgery claim was dismissed for lack of evidence, as Ms. Curtin did not present the opinion of a handwriting expert. The issues related to contractor licensing and internal HOA procedures were deemed outside the jurisdiction of the hearing for an HOA petition.
B. Recommended Order
Based on the findings, the ALJ issued a two-part order:
1. Petition Granted: The petition was granted on the grounds that Ms. Curtin had proven the HOA violated A.R.S. § 33-1805(A).
2. Reimbursement of Filing Fee: The HOA was ordered to reimburse the petitioner the $500.00 she paid to file the single-issue petition.
The order, issued on March 5, 2019, was declared binding on both parties unless a request for rehearing was filed within 30 days.
Study Guide – 19F-H1918034-REL
Study Guide: Curtin v. The Ridge at Diamante del Lago Homeowners Association, Inc.
This guide provides a detailed review of the Administrative Law Judge Decision in case number 19F-H1918034-REL, involving Petitioner Linda Curtin and Respondent The Ridge at Diamante del Lago Homeowners Association, Inc. It includes a quiz with an answer key to test comprehension, a set of essay questions for deeper analysis, and a glossary of key terms.
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Short-Answer Quiz
Instructions: Answer the following questions in two to three sentences, based exclusively on the information provided in the case document.
1. Who are the primary parties involved in this case and what are their respective roles?
2. What was the central allegation in the single-issue petition filed by Linda Curtin on November 28, 2018?
3. Which specific Arizona Revised Statute and CC&R section did the Petitioner claim the Respondent violated?
4. How did the HOA, through its community manager, initially attempt to resolve the records request that led to the petition?
5. What additional documents did Ms. Curtin request after receiving the contractor’s invoice on December 10, 2018?
6. What were Ms. Curtin’s specific suspicions and complaints regarding the quality and validity of the documents she eventually received?
7. What was Community Manager Tracy Schofield’s testimony regarding her role and the location of the association’s records?
8. According to the “Conclusions of Law,” what is the primary requirement of A.R.S. § 33-1805(A) regarding member requests for records?
9. On what specific point did the Administrative Law Judge find that the Respondent had violated the statute?
10. What was the final Recommended Order issued by the Administrative Law Judge in this case?
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Answer Key
1. The primary parties are Linda Curtin, the Petitioner and a homeowner, and The Ridge at Diamante del Lago Homeowners Association, Inc., the Respondent. Tracy Schofield appeared for the HOA as its Community Manager, and Diane Mihalsky served as the Administrative Law Judge.
2. The central allegation was that the HOA violated its own rules and state law by refusing to make association records available. Specifically, Ms. Curtin sought a receipt identifying the contractor and the amount paid for a cinderblock wall built by the community clubhouse.
3. The Petitioner claimed the Respondent violated CC&R § 4.8, concerning the keeping and availability of accounting records, and A.R.S. § 33-1805, which governs the examination of association records by members.
4. On September 24, 2018, Ms. Schofield responded to Ms. Curtin’s written request by stating she did not have invoices at her office. She did, however, provide a printout of payments made to the contractor, Gaulberto Castro, which included a $1,000.00 payment for “Block work – clubhouse.”
5. After receiving the invoice, Ms. Curtin requested a copy of the cashed check (front and back), the payee’s mailing address, and the completed Architectural Control Committee Application for the project, including the contractor’s address, license number, and insurance company.
6. Ms. Curtin complained that the contractor, Mr. Castro, was not licensed and that the job did not meet the exemption requirements for the Registrar of Contractors. She also opined that the receipt from November 2, 2017, appeared to be a forgery with two different kinds of handwriting.
7. Ms. Schofield testified that she is not an onsite manager, works for numerous associations, and does not keep any association records in her office. She stated that for future requests, she would schedule a time for Ms. Curtin to view the records at the Respondent’s records depository.
8. The primary requirement of A.R.S. § 33-1805(A) is that all financial and other records of an association must be made reasonably available for examination by any member. The statute mandates that the association has ten business days to fulfill a request for examination or to provide copies.
9. The Judge found that the Respondent violated A.R.S. § 33-1805(A) because, while it eventually provided all documents in its possession, it failed to provide the documents or access to them within the statutorily required ten-day period following Ms. Curtin’s September 12, 2018 request.
10. The Judge ordered that the Petitioner’s petition be granted because she established the violation of A.R.S. § 33-1805(A). The Judge further ordered that the Respondent reimburse Ms. Curtin the $500.00 she paid to file her single-issue petition.
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Essay Questions
Instructions: The following questions are designed to encourage a deeper analysis of the case. Formulate comprehensive responses using only the evidence and legal reasoning presented in the source document.
1. Analyze the timeline of communication between Linda Curtin and Tracy Schofield, from the initial informal inquiry on August 1, 2018, to the formal petition. How did the nature of the requests and the quality of the responses contribute to the escalation of the dispute?
2. Discuss the legal standard of “preponderance of the evidence” as it is defined and applied in this case. Explain how the Administrative Law Judge used this standard to find the Respondent in violation of the ten-day rule while simultaneously dismissing the Petitioner’s other concerns about transparency and forgery.
3. The Petitioner raised several issues during the hearing that were not part of her original single-issue petition, such as the contractor’s licensing status, the lack of Board meeting minutes authorizing the project, and a proposed $125,000 pool remodel. Why did the Administrative Law Judge deem these points irrelevant to the final decision?
4. Evaluate the responsibilities of a Homeowners Association regarding record-keeping and member access as outlined in CC&R § 4.8 and A.R.S. § 33-1805(A). Based on the testimony and evidence, describe the specific procedural failures of The Ridge at Diamante del Lago HOA in this matter.
5. The Judge’s decision explicitly states that the Petitioner’s “dissatisfaction and suspicions about the records that were eventually provided do not entitle her to any additional relief in this forum.” Explore the distinction the ruling makes between a procedural violation (timeliness of access) and the substantive content or perceived legitimacy of the records themselves.
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An independent judge who presides over administrative hearings. In this case, Diane Mihalsky of the Office of Administrative Hearings served as the ALJ.
A.R.S. § 33-1805
An Arizona Revised Statute requiring that all financial and other records of a homeowners association be made reasonably available for examination by any member within ten business days of a request.
Complainant
An alternative term used in the document to refer to the Petitioner, Linda Curtin.
Covenants, Conditions, and Restrictions (CC&Rs)
The governing documents that create and define the rules for a planned community. In this case, CC&R § 4.8, which deals with accounting records, was cited.
Department (The)
Refers to the Arizona Department of Real Estate, the state agency authorized to receive and decide petitions for hearings from HOA members and HOAs.
Evidentiary Hearing
A formal proceeding where evidence is presented and testimony is given before an administrative law judge to resolve a factual dispute. The hearing in this case took place on February 20, 2019.
Homeowners’ Association (HOA)
An organization in a planned community that creates and enforces rules for the properties and its members. The Respondent is The Ridge at Diamante del Lago Homeowners Association, Inc.
Office of Administrative Hearings (OAH)
An independent state agency in Arizona that conducts evidentiary hearings for other state agencies, such as the Department of Real Estate.
Petitioner
The party who files a petition initiating a legal action. In this case, the Petitioner is Linda Curtin, a homeowner and member of the Respondent HOA.
Preponderance of the Evidence
The standard of proof required in this case, defined as evidence that is more convincing and has greater weight, inclining an impartial mind to one side of the issue rather than the other. The Petitioner bears this burden of proof.
Respondent
The party against whom a petition is filed. In this case, the Respondent is The Ridge at Diamante del Lago Homeowners Association, Inc.
Restrictive Covenants
Legal obligations imposed in a deed upon the buyer of real estate. The document notes that if unambiguous, they are enforced to give effect to the intent of the parties.
Case Participants
Petitioner Side
Linda Curtin(petitioner) Also referred to as 'Complainant'; testified on her own behalf
Respondent Side
Tracy Schofield(community manager) The Ridge at Diamante del Lago Homeowners Association Appeared for Respondent and testified as Community Manager
Jim Mackiewicz(board member) The Ridge at Diamante del Lago Homeowners Association Board Treasurer
Mitch Kellogg(statutory agent) The Ridge at Diamante del Lago Homeowners Association, Inc.
Neutral Parties
Diane Mihalsky(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
Other Participants
Gualberto Castro(contractor) Gualberto Stucco & Repairs Contractor involved in the disputed work
Felicia Del Sol(administrative staff) Transmitted decision electronically
Long Meadow Ranch East Property Owners Association, Inc.
Counsel
Ashley N. Moscarello, Esq.
Alleged Violations
A.R.S. § 33-1805(A)
Outcome Summary
The Administrative Law Judge dismissed the petition upon rehearing, holding that the email chain discussing an incident involving the Petitioner's husband was an informal communication among Board members, not an official record of the association under A.R.S. § 33-1805(A), since the Board never took any formal action on the matter. Therefore, the HOA was not required to produce an un-redacted copy.
Why this result: The Petitioner failed to meet the burden of proof that the email string constituted 'financial and other records of the association' which Respondent was required to provide.
Key Issues & Findings
Failure to produce association records (un-redacted email string) upon member request
Petitioner alleged the HOA violated A.R.S. § 33-1805 by failing to produce an un-redacted copy of an email chain among Board members concerning an incident where Petitioner's husband allegedly harassed potential buyers, arguing the email constituted an official association record.
Orders: Petition denied and dismissed. The HOA did not violate A.R.S. § 33-1805(A) as the email string was determined not to be an official record of the association.
Legal Dispute Briefing: Wiercinski v. Long Meadow Ranch East POA
Executive Summary
This document provides a comprehensive analysis of the legal dispute between homeowner Patricia Wiercinski and the Long Meadow Ranch East Property Owners Association, Inc. (the “Respondent” or “HOA”). The case, adjudicated by the Arizona Office of Administrative Hearings, centered on the HOA’s alleged failure to produce official records in violation of Arizona statute A.R.S. § 33-1805. The dispute originated from a June 19, 2017 incident where Wiercinski’s husband, Wayne Coates, allegedly confronted and verbally abused potential buyers of a neighboring property, causing them to withdraw their interest.
The core of the legal challenge involved an email exchange among HOA board members discussing the incident. Wiercinski’s petition, filed on October 18, 2018, demanded access to what she believed were official HOA documents related to this event. The case proceeded through an initial hearing on January 10, 2019, and a subsequent rehearing on April 22, 2019, both overseen by Administrative Law Judge Diane Mihalsky.
In both hearings, the Judge ruled decisively in favor of the HOA. The central finding was that the private email communications among board members did not constitute an “official record of the association.” Therefore, the HOA had no statutory obligation to produce them or provide an un-redacted version. The judge upheld the HOA’s decision to redact the names of the potential buyers and their agent, citing credible testimony regarding Mr. Coates’ history of “threatening and bullying neighbors” as a reasonable justification for protecting those individuals from potential harassment. Both of Wiercinski’s petitions were ultimately denied and dismissed.
Case Overview and Parties Involved
The dispute was formally adjudicated within the jurisdiction of the Arizona Department of Real Estate and referred to the Office of Administrative Hearings for evidentiary proceedings.
• Case Number: 19F-H1918028-REL
• Initial Hearing Date: January 10, 2019
• Rehearing Date: April 22, 2019
• Presiding Judge: Administrative Law Judge Diane Mihalsky
Key Individuals and Entities
Name/Entity
Patricia Wiercinski
Petitioner; homeowner and member of the HOA.
Wayne Coates
Petitioner’s husband; central figure in the June 19, 2017 incident.
Long Meadow Ranch East POA, Inc.
Respondent; the Homeowners’ Association (“HOA”).
Michael “Mike” Olson
President of the Respondent’s Board of Directors.
Gregg Arthur
Director on the Respondent’s Board and a realtor.
Joe Zielinski
Director on the Respondent’s Board.
Kathy Andrews
Community Manager for the Respondent, employed by HOAMCO.
John Allen
HOA member and owner of the lot being sold.
Ashley N. Moscarello, Esq. (Goodman Law Group)
Legal representative for the Respondent.
Diane Mihalsky
Administrative Law Judge, Office of Administrative Hearings.
The Core Incident of June 19, 2017
The legal dispute stemmed from an encounter on June 19, 2017, involving Wayne Coates and a family considering the purchase of a vacant lot on Puntenney Rd., located across the street from the Wiercinski/Coates residence.
According to an email from the prospective buyers, Mr. Coates confronted them, their son, and their architect as they were viewing the property.
• Coates’ Alleged Actions: He “came out of his house and was belligerent and cursing at them,” claiming “nothing was for sale around here.” The potential buyer described him as “verbally abusive and extremely confrontational,” making “rude remarks while cussing” and displaying “extreme aggressive behavior.”
• Impact on the Sale: The confrontation directly caused the potential buyers to withdraw their offer. In their correspondence, they stated:
• Broader Concerns: The incident was seen by some as detrimental to the entire community. Board Director Gregg Arthur noted, “Wayne thru his actions appears to have interfered with and destroyed a property sale. We need to meet and take action on this matter as it will have a broad and chilling effect amongst the realtor community (effecting us all) not to mention the property owners.”
The Initial Hearing and Decision (January 2019)
The initial hearing focused on whether the HOA had withheld official records of its deliberations or decisions regarding the June 19, 2017 incident.
Petitioner’s Position
Patricia Wiercinski argued that the HOA violated A.R.S. § 33-1805 by failing to produce documents. Her key assertions were:
• Because an email about the incident was sent to a quorum of the Board, the matter constituted official business.
• The Board was legally required to make a formal motion and arrive at a documented decision, even if that decision was to take no action.
• She had never received any such documentation, such as minutes from an executive session or an open meeting.
• She pointed to a Board resolution regarding the electronic storage of documents as evidence that such records must exist.
Respondent’s Position
The HOA, represented by Ashley N. Moscarello, denied any violation. Their defense included:
• The email chain was an informal communication among neighbors and Board members on their personal email servers, not an official HOA record.
• No member had ever requested the Board take official action on the matter.
• The email string was provided voluntarily to the Petitioner.
• The names of the potential buyers and their real estate agent were redacted specifically because “Mr. Coates had a history of bullying and intimidating people.”
• The Board never formally discussed the incident, held a meeting, voted, or took any official action.
• The Community Manager, Kathy Andrews, testified that no official records (agendas, resolutions, minutes, etc.) pertaining to the incident existed.
Outcome and Rationale
The Administrative Law Judge denied the petition. The key conclusions of law were:
• The burden of proof was on the Petitioner to show a violation occurred.
• The simple fact that a quorum of Board members discussed a topic in private emails “does not make it official Board business,” especially when no action is taken.
• Forcing volunteer board members to formally document every informal discussion would be an “unnecessary and burdensome requirement.”
• Because the Petitioner did not establish that any official documents regarding the incident existed, the petition was dismissed.
The Rehearing and Final Decision (May 2019)
Wiercinski requested and was granted a rehearing, alleging “misconduct by the judge.” In this second hearing, she significantly altered her legal argument.
Petitioner’s Evolved Position
Wiercinski abandoned her claim that the Board was required to create a formal record of inaction. Instead, her new theory was:
• The email string itself, having been voluntarily produced by the HOA, must be considered an “official record of the association.”
• As an official record, A.R.S. § 33-1805 required the HOA to produce a complete, un-redacted copy.
• She argued that she and Mr. Coates had a right to know the identities of those who had accused him of belligerence.
Respondent’s Defense
The HOA’s defense remained consistent:
• The redaction of names was a necessary and reasonable measure to protect the individuals from potential harassment by Mr. Coates.
• The incident was a personal dispute between neighbors and did not violate any of the HOA’s governing documents (CC&Rs, bylaws), placing it outside the Board’s enforcement authority.
• Kathy Andrews again testified that the email was not part of the association’s archived business records, as the Board took no official action.
Final Outcome and Rationale
The Judge once again dismissed the petition. The final ruling reinforced the initial decision and provided further clarity:
• The email string was definitively not a “record of the association.”
• Because it was not an official record, A.R.S. § 33-1805 did not compel the HOA to provide an un-redacted version.
• The Judge explicitly validated the HOA’s motive for the redactions, stating that the Board President’s fear that “Mr. Coates would harass the real estate agent and potential purchaser… does not appear unreasonable.”
Key Evidence and Testimony
The email communications provided the primary evidentiary basis for the case.
Incriminating Email Content
Several emails from June 20, 2017, highlighted the severity of the incident and concerns about Wayne Coates:
• From Real Estate Agent to Potential Buyer: “He [John Allen] knows this person, Wayne Coates, and said he has been an issue in the neighborhood before. He has contacted Hoamco and is seeking legal [counsel] to stop this menace.”
• From Director Joe Zielinski to the Board: “The YCSO [Yavapai County Sheriff’s Office] may file charges against Wayne for disorderly conduct/harassment… given Wayne’s arrest record and prison term and criminal history. … I don’t believe Wayne (and Patricia’s) aggressive and disruptive behavior will stop.”
• From Director Gregg Arthur to the Board: “I was hoping that this would not be a situation we would have to encounter with Wayne Coates and Patricia however here it is on our door step.”
Definition of “Official Records”
Testimony from Community Manager Kathy Andrews was crucial in establishing the distinction between official and unofficial communications. She defined official records as including:
• Governing documents and architectural guidelines.
• Board and general meeting minutes.
• Expenditures, receipts, contracts, and financials.
• Anything submitted to the Board for official action.
She confirmed that because the Board took no action on the June 19, 2017 incident, the related emails were not included in Respondent’s archived records.
Study Guide – 19F-H1918028-REL
Wiercinski v. Long Meadow Ranch East POA: A Case Study
This study guide provides a comprehensive overview of the administrative case of Patricia Wiercinski versus the Long Meadow Ranch East Property Owners Association, Inc. The case revolves around a homeowner’s request for association records and the legal definition of what constitutes an official document that a homeowners’ association is required to produce under Arizona law. The material is drawn from two Administrative Law Judge Decisions, dated January 22, 2019, and May 1, 2019.
Key Parties and Individuals
Role / Title
Affiliation
Patricia Wiercinski
Petitioner
Homeowner, Member of Respondent
Wayne Coates
Petitioner’s Husband
Homeowner
Long Meadow Ranch East POA, Inc.
Respondent
Homeowners’ Association (HOA)
Diane Mihalsky
Administrative Law Judge (ALJ)
Office of Administrative Hearings
Ashley N. Moscarello, Esq.
Legal Counsel for Respondent
Goodman Law Group
Michael “Mike” Olson
President of the Board
Respondent (HOA)
Gregg Arthur
Director on the Board
Respondent (HOA)
Kathy Andrews
Community Manager
HOAMCO (Respondent’s management company)
John Allen
Property Owner / HOA Member
Long Meadow Ranch East
Joe Zielinski
Director on the Board
Respondent (HOA)
Jim Robertson
Director on the Board
Respondent (HOA)
Tom Reid
Director on the Board
Respondent (HOA)
Boris Biloskirka
Former Board Member
Respondent (HOA)
Timeline of Key Events
June 19, 2017
An incident occurs where Wayne Coates allegedly acts belligerently toward potential buyers of John Allen’s property.
June 20, 2017
An email exchange regarding the incident occurs between John Allen, his realtor, and members of the HOA Board.
October 18, 2018
Patricia Wiercinski files a petition with the Arizona Department of Real Estate, alleging the HOA violated A.R.S. § 33-1805.
January 10, 2019
The initial evidentiary hearing is held before Administrative Law Judge Diane Mihalsky.
January 22, 2019
The ALJ issues a decision denying Wiercinski’s petition.
Post-Jan 22, 2019
Wiercinski requests a rehearing, alleging misconduct by the judge. The request is granted.
April 22, 2019
The rehearing is held.
May 1, 2019
The ALJ issues a final decision, again dismissing Wiercinski’s petition.
The Core Dispute: The June 19, 2017 Incident
On June 19, 2017, potential buyers, along with their builder, architect, and son, were viewing a lot for sale owned by John Allen on Puntenney Rd. The lot was across the street from the home of Patricia Wiercinski and Wayne Coates. An elderly man, later identified as Wayne Coates, came out of the house and was allegedly “belligerent and cursing” at the group, telling them nothing was for sale and they should not be snooping around. The potential buyers described the individual as “verbally abusive and extremely confrontational,” displaying “extreme aggressive behavior.” As a result of this encounter, the potential buyers decided to remove the lot from their list of considerations, stating they were seeking a “quiet, peaceful, and neighborly place to retire. Not a place with hostility and confrontation.”
This incident prompted John Allen to contact his realtor and members of the HOA Board, seeking action to prevent such behavior from interfering with future property sales.
The Legal Proceedings
Petitioner’s Argument: Patricia Wiercinski alleged that the HOA (Respondent) violated A.R.S. § 33-1805 by failing to produce documents related to its deliberations, decisions, and actions regarding the June 19, 2017 incident. Her core arguments were:
• The email about the incident was sent to a quorum of the Board, making it official business.
• The Board was required to make a formal motion and decision, even if it decided to take no action against her husband.
• She never received documents showing the Board addressed the incident in an executive session or open meeting.
• She did not receive a map referenced in one of the emails or a letter mentioned by board member Joe Zielninski in a video.
• An HOA resolution to electronically store all association business documents meant the requested records must exist.
Respondent’s Argument: The HOA denied violating any statute. Its defense was based on the following points:
• The Board never took any official action against Wiercinski or Coates as a result of the incident.
• The email string was an informal communication among Board Directors on their personal servers and was not kept as an official record. It was provided to Wiercinski voluntarily.
• The names of the potential purchasers and real estate agent were redacted from the emails because Wayne Coates has a known history of “threatening and bullying neighbors and others.”
• No official discussion or vote on the incident ever occurred in an executive session or general meeting.
ALJ’s Decision (January 22, 2019): The Administrative Law Judge denied the petition. The decision concluded that Wiercinski did not meet her burden of proof to establish that any official documents regarding the incident existed that the Respondent failed to produce. The judge reasoned that the mere fact a quorum of Board members informally discusses a topic in private emails does not make it official Board business, especially when no action is taken.
Reason for Rehearing: Wiercinski requested a rehearing, alleging misconduct by the judge. The Commissioner of the Department of Real Estate granted the request without noting any specific misconduct or stating why it should have changed the result.
Petitioner’s Changed Argument: At the rehearing, Wiercinski changed her theory of the case. She no longer argued that the Board failed to produce a record of a formal decision. Instead, she argued that:
• The email string itself was an official record of the association’s business.
• A.R.S. § 33-1805 therefore required the HOA to produce a fully un-redacted copy of the emails.
• She and Mr. Coates had a right to know the names of the individuals accusing Mr. Coates of belligerence.
Respondent’s Rebuttal: The HOA maintained its position:
• The email string was not an official record because the Board never took any action on the matter. The incident did not violate any of the HOA’s CC&Rs, bylaws, or anything else it was empowered to enforce.
• Community Manager Kathy Andrews testified that official records include governing documents, minutes, and items submitted to the Board for action. Since the Board took no action, the email was not included in the association’s archived records.
• The names were redacted because of Mr. Coates’s history of intimidation, and the Board president feared he would harass the individuals involved.
ALJ’s Final Decision (May 1, 2019): The petition was dismissed again. The ALJ reaffirmed that the email string was not a “record of the association.” Therefore, A.R.S. § 33-1805(A) did not require the Respondent to provide an un-redacted version to the Petitioner. The judge also noted that the fear of harassment by Mr. Coates, which prompted the redactions, “does not appear unreasonable.”
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Answer the following questions in 2-3 sentences based on the information provided in the case documents.
1. What specific event on June 19, 2017, initiated the legal dispute?
2. What Arizona statute did Patricia Wiercinski claim the HOA violated, and what does that statute generally require?
3. Why did the HOA state it redacted names from the email chain it provided to Wiercinski?
4. In the initial hearing, what did Wiercinski argue the HOA Board was required to do even if it decided to take no action on the incident?
5. How did Wiercinski’s primary legal argument change between the first hearing and the rehearing?
6. Who is Kathy Andrews, and what was her testimony regarding the HOA’s official records?
7. Did the HOA Board ever hold a formal meeting or take an official vote regarding the incident involving Wayne Coates?
8. According to the ALJ, does an informal email discussion among a quorum of board members automatically constitute “official Board business”?
9. What was the final ruling in the case after the rehearing?
10. What reason did HOA President Mike Olson give for the Board not taking official action on the June 19, 2017 incident?
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Answer Key
1. The event was an alleged confrontation where Wayne Coates was belligerent and verbally abusive toward potential buyers who were viewing a property for sale across the street from his home. This encounter caused the buyers to lose interest in the property.
2. Wiercinski claimed the HOA violated A.R.S. § 33-1805. This statute requires that all financial and other records of a homeowners’ association be made reasonably available for examination by any member.
3. The HOA stated it redacted the names of the potential purchasers and their real estate agent due to Wayne Coates’s history of “threatening and bullying neighbors and others.” Board President Mike Olson testified he feared Mr. Coates would harass the individuals if their identities were revealed.
4. In the initial hearing, Wiercinski argued that the Board was required to make a formal motion and arrive at a formal, documented decision even if it decided it was not going to take any action against her husband.
5. In the rehearing, Wiercinski’s argument shifted from claiming the HOA failed to produce a record of a decision to arguing the email string itself was an official record. She then demanded that the HOA provide a fully un-redacted version of this email string.
6. Kathy Andrews is the community manager for the HOA, employed by the management company Hoamco. She testified that the association’s official records include items like governing documents, meeting minutes, and anything submitted to the Board for action, and that the email was not an official record because the Board took no action.
7. No. Testimony from multiple witnesses, including Mike Olson and Gregg Arthur, confirmed that the Board never discussed the incident at an executive meeting or general membership meeting and never voted or took any official action as a result of the incident.
8. No. The ALJ’s decision states that the mere fact a quorum of Board members discusses a topic does not make it official Board business, especially if they do not take any action to make it so.
9. The final ruling was that the Petitioner’s petition was dismissed. The ALJ found that the email string was not an official record of the association, so the HOA was not required by law to provide an un-redacted version.
10. Mike Olson testified that the Board never voted to take any action because the alleged incident did not violate the Respondent’s CC&Rs, bylaws, or anything else that the HOA was authorized or empowered to enforce.
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Essay Questions
1. Analyze the distinction made by the Administrative Law Judge between informal discussions among board members and “official Board business.” How did this distinction shape the outcome of both hearings?
2. Discuss the evolution of Patricia Wiercinski’s legal strategy from the initial hearing to the rehearing. Was the change in argument effective, and why or why not?
3. Examine the roles of A.R.S. § 33-1805 and A.R.S. § 33-1804 in this case. Explain how the Petitioner and Respondent interpreted these statutes differently and how the Administrative Law Judge ultimately applied them.
4. Based on the testimony of Mike Olson and Kathy Andrews, describe the HOA’s official position on record-keeping and its justification for not treating the email string as an official document.
5. Evaluate the Respondent’s decision to redact the names of non-members from the email string. What reasons were given for this action, and how did the Administrative Law Judge view this justification in the final ruling?
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Glossary
• Administrative Law Judge (ALJ): The impartial judge who presides over administrative hearings, hears evidence, and makes legal decisions. In this case, the ALJ was Diane Mihalsky.
• A.R.S. § 33-1805(A): An Arizona Revised Statute cited in the case which provides that “all financial and other records of the association shall be made reasonably available for examination by any member.”
• A.R.S. § 33-1804(E)(4): An Arizona Revised Statute cited in the case which provides that any quorum of the board of directors that meets informally to discuss association business must comply with open meeting and notice provisions.
• Homeowners’ Association (HOA): An organization in a subdivision, planned community, or condominium building that makes and enforces rules for the properties and its residents. In this case, the Long Meadow Ranch East Property Owners Association, Inc.
• Petitioner: The party who files a petition to initiate a legal proceeding. In this case, Patricia Wiercinski.
• Preponderance of the Evidence: The standard of proof required in this administrative hearing. 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.”
• Quorum: The minimum number of members of a deliberative assembly (such as a board of directors) necessary to conduct the business of that group. The petitioner argued that because a quorum of the board was included on the emails, the discussion constituted official business.
• Respondent: The party against whom a petition is filed. In this case, the Long Meadow Ranch East Property Owners Association, Inc.
Blog Post – 19F-H1918028-REL
4 Shocking Lessons from an HOA Lawsuit About a “Nightmare Neighbor”
Introduction: Behind the Closed Doors of the HOA Board
Many people live in communities governed by a Homeowners’ Association (HOA), navigating the rules and paying the dues as part of modern suburban life. But what happens when a serious dispute between neighbors erupts? What if one resident’s behavior is so aggressive that it costs another the sale of their property? A real-life administrative law case from Prescott, Arizona, provides a rare and fascinating look into the messy reality of HOA governance. The lawsuit, filed by a homeowner against her HOA for allegedly withholding records, reveals surprising truths about what constitutes “official business” and the real-world limits of an HOA’s power.
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1. Not All HOA Talk is “Official Business”—Even When the Whole Board Is In on It.
The case centered on a dramatic incident. A homeowner’s husband, Wayne Coates, was accused of being “belligerent and cursing” at potential buyers viewing a lot across the street, causing them to back out of the sale. The distressed property seller, John Allen, emailed an HOA board member, Gregg Arthur, who then forwarded the complaint to the entire board. The petitioner, Mr. Coates’ wife, argued that this email chain was an official HOA record.
Her argument rested on a profound misunderstanding of board governance that many residents likely share: she claimed the board was legally required to make a motion and arrive at a formal decision even if it decided to do nothing. The administrative law judge firmly rejected this idea. The emails were deemed informal, private communications, not official records.
The judge clarified that “official business” is triggered when a board moves toward a formal decision or action that would bind the association, such as spending funds, issuing a violation, or changing a rule. These emails were purely informational and investigatory, never reaching that threshold. This distinction is a cornerstone of volunteer board governance, as it protects boards from being paralyzed by procedure. The judge’s decision powerfully refutes the notion that boards must formally document every issue they choose not to pursue:
the mere fact that a quorum of Board members may discuss a topic does not make it official Board business, especially if they do not end up taking any action to make a matter board business. Any other result would impose an unnecessary and burdensome requirement on volunteers who are not compensated for their time who are may be neighbors and who may also be friends, in addition to being Board members.
2. A Neighbor’s Behavior Can Kill a Property Sale, and Your HOA Might Be Powerless.
The impact of Mr. Coates’ alleged actions was immediate and severe. The potential buyers, seeking a peaceful retirement, were so shaken by the confrontation that they explicitly withdrew their interest in the property.
An email from the potential buyer, submitted as evidence, vividly illustrates the direct financial consequence of the neighbor’s behavior:
In closing when we returned one thing that stands out is would we want to live next to this type of behavior of [a] neighbor? The answer is no, this lot was one that we had in our top 2 Lots as a consideration for purchase but due to the volatile potential of this man, we have decided at this point to remove it from our list.
Despite the clear harm to a member, the HOA concluded it could not intervene. According to testimony, Community Manager Kathy Andrews explained that the HOA had “no authority to become involved in a personal dispute between neighbors.” Further, Board President Mike Olson testified that the incident did not violate any specific CC&Rs or bylaws the board was empowered to enforce. This highlights a counter-intuitive reality for many homeowners: not all bad neighbor behavior falls under an HOA’s jurisdiction, even when it negatively affects property sales. However, while the HOA was powerless, the situation was not a dead end for the seller, who court records show did eventually sell his lot to someone else.
3. Transparency Has Limits, Especially When a Resident Is Seen as a Threat.
The petitioner demanded an un-redacted copy of the emails, wanting to know exactly who was accusing her husband. The HOA refused, redacting the names of the potential buyers and their real estate agent.
The reason, according to sworn testimony from HOA President Mike Olson, was that Mr. Coates had a “history of threatening and bullying neighbors and others.” This case highlights the inherent tension between a member’s right to information and the board’s fiduciary duty to protect individuals from harm. While members have a right to access official records, that right is not absolute.
The judge validated the board’s exercise of its duty of care, finding its rationale for the redactions to be sound. In a moment of legal irony, the judge noted that the board’s fear was reasonable, “especially given Mr. Coates’ role in causing Petitioner to prosecute this petition at the original hearing and rehearing.” In effect, the petitioner’s own aggressive pursuit of the case in court helped to legally justify the board’s initial decision to protect identities from her husband.
4. Suing Your HOA Can Put Your Own Dirty Laundry on Display.
Perhaps the greatest irony of the lawsuit is what it ultimately accomplished. In her quest to obtain what she believed were improperly withheld documents, the petitioner’s legal action placed deeply unflattering information about her husband directly into the public record for anyone to see.
Emails submitted as evidence contained damaging statements, including an email from board member Joe Zielinski that is now a permanent part of the court file. It contained severe allegations that went far beyond the initial incident.
The YCSO [Yavapai County Sheriff’s Office] may file charges against Wayne for disorderly conduct/harassment, based on what happened to Mr. Allan and the others in attendance, given Wayne’s arrest record and prison term and criminal history. . . . I don’t believe Wayne (and Patricia’s) aggressive and disruptive behavior will stop.
This serves as a powerful “be careful what you wish for” lesson in HOA litigation. The lawsuit, intended to hold the HOA accountable, permanently enshrined the allegations about her husband’s “arrest record and prison term” in the public court record—the very opposite of the privacy and vindication the petitioner was likely seeking.
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Conclusion: The Fine Line Between Community and Controversy
This case peels back the curtain on the complex world of volunteer-run HOAs. It demonstrates that the line between an informal discussion among neighbors and official, actionable HOA business is finer and more consequential than most residents assume. It shows that an HOA’s power has clear limits and that a board’s duty to protect individuals can sometimes override demands for total transparency. It makes you wonder: when you see a problem in your neighborhood, is it truly the HOA’s business to solve, or is it a personal dispute between neighbors?
Case Participants
Petitioner Side
Patricia Wiercinski(petitioner) Appeared on her own behalf
Wayne Coates(petitioner's husband) Central figure in the June 19, 2017 incident
Respondent Side
Ashley N. Moscarello(HOA attorney) Goodman Law Group Represented Respondent
Michael Olson(board president, witness) President of Respondent's board; testified at hearing and rehearing
Gregg Arthur(board director, witness) Director on Respondent's board; testified at hearing
Kathy Andrews(property manager, witness) HOAMCO Respondent's community manager; employed by HOAMCO; testified at hearing and rehearing
John Allen(member/complainant) Owner trying to sell property across the street from Petitioner; member of Respondent
Jim Robertson(board director) Director on Respondent's board
Joe Zielinski(board director, witness) Director on Respondent's board; mentioned conversation with YCSO deputy
Tom Reid(board director) Director on Respondent's board
Boris Biloskirka(former board member) Recipient of emails; identified as a former Board member
Josh(compliance officer) Referenced in emails regarding compliance inspections
Neutral Parties
Diane Mihalsky(ALJ) Administrative Law Judge
Shelia Polk(head prosecutor) Head of the office Joe Zielinski sought to contact regarding Wayne Coates
YCSO’s deputy(deputy) Yavapai County Sheriff’s Office Conversed with Joe Zielinski regarding the incident
Judy Lowe(commissioner) Arizona Department of Real Estate Commissioner of the Arizona Department of Real Estate
Felicia Del Sol(administrative staff) Transmitted decision electronically
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.
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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?
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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.
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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.”
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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.
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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?
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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.
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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.”
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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
