Case Summary
| Case ID | 23F-H042-REL |
|---|---|
| Agency | ADRE |
| Tribunal | OAH |
| Decision Date | 2023-05-09 |
| Administrative Law Judge | Jenna Clark |
| Outcome | full |
| Filing Fees Refunded | $500.00 |
| Civil Penalties | $100.00 |
Parties & Counsel
| Petitioner | Quail Creek Villas Association, Inc. | Counsel | Michael Shupe, Esq. |
|---|---|---|---|
| Respondent | Randall & Gisela White | Counsel | — |
Alleged Violations
CC&Rs Section 3(j)
Outcome Summary
The HOA's petition was granted. Respondents were found to have violated CC&Rs Section 3(j) by installing tile without approval and were ordered to comply with the CC&Rs, reimburse the $500 filing fee, and pay a $100 civil penalty.
Why this result: Respondents admitted to the alleged conduct and failed to establish a sufficient affirmative defense (incomplete CC&Rs) against the violation, as the recorded CC&Rs provided constructive notice of all provisions. Respondents' conduct during testimony was also considered a factor in aggravation.
Key Issues & Findings
Unauthorized exterior modification (tile installation)
Respondents permanently installed tile on their front porch entryway without obtaining prior written approval. The ALJ rejected the Respondents' defense regarding missing CC&R pages, noting the HOA sustained its burden of proving a community document violation by a preponderance of the evidence.
Orders: Respondents must henceforth abide by CC&Rs Section 3(j), reimburse the Petitioner $500.00 for the filing fee, and pay a $100.00 civil penalty to the Department.
Filing fee: $500.00, Fee refunded: Yes, Civil penalty: $100.00
Disposition: petitioner_win
- ARIZ. REV. STAT. § 33-1805
- Federoff v. Pioneer Title & Trust Co., 166 Ariz. 393 (1990)
- Heritage Heights Home Owners Ass’n v. Esser, 115 Ariz. 330 (App. 1977)
- Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
- Flying Diamond Air Park LLC v. Minenberg, 215 Ariz. 44 (App. 2007)
Analytics Highlights
- ARIZ. REV. STAT. § 32-2102
- ARIZ. REV. STAT. § 32-2199 et seq.
- ARIZ. REV. STAT. § 32-2199.05
- ARIZ. REV. STAT. § 32-2199(2)
- ARIZ. REV. STAT. § 32-2199.01(A)
- ARIZ. REV. STAT. § 32-2199.01(D)
- ARIZ. REV. STAT. § 32-2199.02
- ARIZ. REV. STAT. § 41-1092 et seq.
- ARIZ. REV. STAT. § 33-1805
- ARIZ. REV. STAT. § 41-1092.09
- ARIZ. REV. STAT. § 32-2199.04
- ARIZ. REV. STAT. § 32-2199.01
- ARIZ. REV. STAT. § 33-1803
- Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
- ARIZ. ADMIN. CODE R2-19-119
- MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
- BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
- Arpaio v. Steinle, 201 Ariz. 353, 355 ¶ 5, 35 P.3d 114, 116 (App. 2001)
- Gutierrez v. Industrial Commission of Arizona
- State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968)
- U.S. Parking v. City of Phoenix, 160 Ariz. 210, 772 P.2d 33 (App. 1989)
- Deer Valley, v. Houser, 214 Ariz. 293, 296, 152 P.3d 490, 493 (2007)
- Federoff v. Pioneer Title & Trust Co., 166 Ariz. 393 (1990)
- Heritage Heights Home Owners Ass’n v. Esser, 115 Ariz. 330 (App. 1977)
- Flying Diamond Air Park LLC v. Minenberg, 215 Ariz. 44 (App. 2007)
Video Overview
Audio Overview
https://open.spotify.com/episode/3itaPyCAGEsVerqaxDXPRZ
Decision Documents
23F-H042-REL Decision – 1048063.pdf
23F-H042-REL Decision – 1055060.pdf
Questions
Question
Am I excused from HOA rules if pages were missing from the copy of the CC&Rs I received at closing?
Short Answer
No. Recorded CC&Rs provide constructive notice of all provisions to homeowners, regardless of errors in the specific copy provided at closing.
Detailed Answer
The ALJ ruled that missing pages in the document package provided by a disclosure company or previous owner do not excuse a homeowner from compliance. Because CC&Rs are recorded public documents, homeowners are deemed to have 'constructive notice' of all rules contained within the recorded version.
Alj Quote
The Tribunal is not swayed by Mr. White’s incorrect legal interpretations regarding the annotated CC&Rs received by HomeWise, as the Pima County recorded CC&Rs provide constructive notice of all provisions contained within the community documents
Legal Basis
Constructive Notice
Topic Tags
- CC&Rs
- disclosure
- compliance
Question
Can the HOA regulate changes to my property even if they aren't visible from the street or neighboring properties?
Short Answer
Yes, especially if the HOA is responsible for maintaining the exterior surfaces.
Detailed Answer
The decision upheld the HOA's authority to regulate exterior modifications regardless of visibility, particularly noting that when an owner acquires a lot where the HOA performs maintenance, they may give up rights to control the appearance of those areas.
Alj Quote
Each Owner of a Villas Lot understands, acknowledges and agrees that by acquiring an interest in a Lot in which landscaping and exterior maintenance is performed or arranged by the Villas Association, such Owner is giving up rights to control the appearance and use of the outside areas of such Owner’s Villas Lot.
Legal Basis
CC&Rs Contractual Obligations
Topic Tags
- architectural control
- maintenance
- visibility
Question
Can I fix a violation for unapproved flooring by simply covering it with a rug?
Short Answer
No. Covering an unapproved permanent installation with a removable item like a rug does not cure the underlying violation.
Detailed Answer
The ALJ rejected the homeowner's argument that placing a custom rug over unapproved tiles resolved the issue. The violation (the unapproved installation) persisted despite being hidden from view.
Alj Quote
The Tribunal is not swayed… by Mr. White’s placement of a custom cut rug in lieu of paying the fine to the Association.
Legal Basis
Remedy of Violation
Topic Tags
- violations
- remedies
- architectural control
Question
Who has the burden of proof in an administrative hearing regarding an HOA dispute?
Short Answer
The Petitioner (the party bringing the case) bears the burden of proof.
Detailed Answer
The Petitioner must prove their case by a 'preponderance of the evidence' (meaning it is more likely true than not). Conversely, if the Respondent claims an affirmative defense (a legal excuse), they bear the burden of proving that defense.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1805. Respondents bear the burden of establishing any affirmative defenses by the same evidentiary burden.
Legal Basis
ARIZ. ADMIN. CODE R2-19-119
Topic Tags
- procedural
- burden of proof
- evidence
Question
If I lose the hearing, do I have to reimburse the HOA for their filing fee?
Short Answer
Yes. The prevailing party is typically entitled to reimbursement of the filing fee.
Detailed Answer
The ALJ ordered the losing homeowner to reimburse the HOA for the $500 filing fee they paid to bring the case. This is a statutory requirement under Arizona law.
Alj Quote
IT IS FURTHER ORDERED that Respondents shall reimburse Petitioner its filing fee of $500.00, to be paid directly to Petitioner within thirty (30) days of this ORDER, as required by ARIZ. REV. STAT. § 32-2199.01.
Legal Basis
A.R.S. § 32-2199.01
Topic Tags
- fees
- costs
- penalties
Question
Can the ALJ order me to pay a penalty to the state in addition to reimbursing the HOA?
Short Answer
Yes. The ALJ has the authority to impose a civil penalty payable to the Arizona Department of Real Estate.
Detailed Answer
In this decision, in addition to ordering compliance and fee reimbursement to the HOA, the ALJ ordered the homeowner to pay a $100 civil penalty directly to the Department of Real Estate.
Alj Quote
IT IS FURTHER ORDERED that Respondents shall pay a $100.00 civil penalty in certified funds to the Department within thirty (30) days of this ORDER, as authorized by ARIZ. REV. STAT. § 32-2199.02.
Legal Basis
A.R.S. § 32-2199.02
Topic Tags
- civil penalty
- fines
- ADRE
Question
Does my behavior during the dispute process affect the judge's decision?
Short Answer
Yes. Obfuscating or evasive conduct can be considered an aggravating factor against you.
Detailed Answer
The ALJ specifically noted that the homeowner's conduct during testimony was 'obfuscating' (confusing or unclear) and weighed this as a factor in aggravation when making the final ruling.
Alj Quote
Moreover, Mr. White’s conduct during the testimony was obfuscating, and is considered a factor in aggravation.
Legal Basis
Judicial Discretion
Topic Tags
- conduct
- hearing process
- aggravating factors
Case
- Docket No
- 23F-H042-REL
- Case Title
- Quail Creek Villas Association, Inc. vs. Randall & Gisela White
- Decision Date
- 2023-05-09
- Alj Name
- Jenna Clark
- Tribunal
- OAH
- Agency
- ADRE
Questions
Question
Am I excused from HOA rules if pages were missing from the copy of the CC&Rs I received at closing?
Short Answer
No. Recorded CC&Rs provide constructive notice of all provisions to homeowners, regardless of errors in the specific copy provided at closing.
Detailed Answer
The ALJ ruled that missing pages in the document package provided by a disclosure company or previous owner do not excuse a homeowner from compliance. Because CC&Rs are recorded public documents, homeowners are deemed to have 'constructive notice' of all rules contained within the recorded version.
Alj Quote
The Tribunal is not swayed by Mr. White’s incorrect legal interpretations regarding the annotated CC&Rs received by HomeWise, as the Pima County recorded CC&Rs provide constructive notice of all provisions contained within the community documents
Legal Basis
Constructive Notice
Topic Tags
- CC&Rs
- disclosure
- compliance
Question
Can the HOA regulate changes to my property even if they aren't visible from the street or neighboring properties?
Short Answer
Yes, especially if the HOA is responsible for maintaining the exterior surfaces.
Detailed Answer
The decision upheld the HOA's authority to regulate exterior modifications regardless of visibility, particularly noting that when an owner acquires a lot where the HOA performs maintenance, they may give up rights to control the appearance of those areas.
Alj Quote
Each Owner of a Villas Lot understands, acknowledges and agrees that by acquiring an interest in a Lot in which landscaping and exterior maintenance is performed or arranged by the Villas Association, such Owner is giving up rights to control the appearance and use of the outside areas of such Owner’s Villas Lot.
Legal Basis
CC&Rs Contractual Obligations
Topic Tags
- architectural control
- maintenance
- visibility
Question
Can I fix a violation for unapproved flooring by simply covering it with a rug?
Short Answer
No. Covering an unapproved permanent installation with a removable item like a rug does not cure the underlying violation.
Detailed Answer
The ALJ rejected the homeowner's argument that placing a custom rug over unapproved tiles resolved the issue. The violation (the unapproved installation) persisted despite being hidden from view.
Alj Quote
The Tribunal is not swayed… by Mr. White’s placement of a custom cut rug in lieu of paying the fine to the Association.
Legal Basis
Remedy of Violation
Topic Tags
- violations
- remedies
- architectural control
Question
Who has the burden of proof in an administrative hearing regarding an HOA dispute?
Short Answer
The Petitioner (the party bringing the case) bears the burden of proof.
Detailed Answer
The Petitioner must prove their case by a 'preponderance of the evidence' (meaning it is more likely true than not). Conversely, if the Respondent claims an affirmative defense (a legal excuse), they bear the burden of proving that defense.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1805. Respondents bear the burden of establishing any affirmative defenses by the same evidentiary burden.
Legal Basis
ARIZ. ADMIN. CODE R2-19-119
Topic Tags
- procedural
- burden of proof
- evidence
Question
If I lose the hearing, do I have to reimburse the HOA for their filing fee?
Short Answer
Yes. The prevailing party is typically entitled to reimbursement of the filing fee.
Detailed Answer
The ALJ ordered the losing homeowner to reimburse the HOA for the $500 filing fee they paid to bring the case. This is a statutory requirement under Arizona law.
Alj Quote
IT IS FURTHER ORDERED that Respondents shall reimburse Petitioner its filing fee of $500.00, to be paid directly to Petitioner within thirty (30) days of this ORDER, as required by ARIZ. REV. STAT. § 32-2199.01.
Legal Basis
A.R.S. § 32-2199.01
Topic Tags
- fees
- costs
- penalties
Question
Can the ALJ order me to pay a penalty to the state in addition to reimbursing the HOA?
Short Answer
Yes. The ALJ has the authority to impose a civil penalty payable to the Arizona Department of Real Estate.
Detailed Answer
In this decision, in addition to ordering compliance and fee reimbursement to the HOA, the ALJ ordered the homeowner to pay a $100 civil penalty directly to the Department of Real Estate.
Alj Quote
IT IS FURTHER ORDERED that Respondents shall pay a $100.00 civil penalty in certified funds to the Department within thirty (30) days of this ORDER, as authorized by ARIZ. REV. STAT. § 32-2199.02.
Legal Basis
A.R.S. § 32-2199.02
Topic Tags
- civil penalty
- fines
- ADRE
Question
Does my behavior during the dispute process affect the judge's decision?
Short Answer
Yes. Obfuscating or evasive conduct can be considered an aggravating factor against you.
Detailed Answer
The ALJ specifically noted that the homeowner's conduct during testimony was 'obfuscating' (confusing or unclear) and weighed this as a factor in aggravation when making the final ruling.
Alj Quote
Moreover, Mr. White’s conduct during the testimony was obfuscating, and is considered a factor in aggravation.
Legal Basis
Judicial Discretion
Topic Tags
- conduct
- hearing process
- aggravating factors
Case
- Docket No
- 23F-H042-REL
- Case Title
- Quail Creek Villas Association, Inc. vs. Randall & Gisela White
- Decision Date
- 2023-05-09
- Alj Name
- Jenna Clark
- Tribunal
- OAH
- Agency
- ADRE
Case Participants
Petitioner Side
- Michael Shupe (HOA attorney)
Goldschmidt Shupe, PLLC
Appeared as counsel for Petitioner - Carolyn B. Goldschmidt (HOA attorney)
Goldschmidt Shupe, PLLC
Legal counsel for the Association; communication contact listed - Lori Don Woullet (Property Manager/Witness)
Cadden Community Management
Senior Community Association Manager - Diane Patricia Weber (Former Board Member/Witness)
Quail Creek Villas Association, Inc.
Former Board Treasurer - Lynn Birleffi (Witness)
Quail Creek Villas Association, Inc.
Called as a witness for Petitioner
Respondent Side
- Randall White (Respondent)
Quail Creek Villas Association, Inc.
Appeared pro se and testified - Gisela White (Respondent)
Quail Creek Villas Association, Inc.
Appearance waived
Neutral Parties
- Jenna Clark (ALJ)
Office of Administrative Hearings
Presiding Administrative Law Judge - Susan Nicolson (ADRE Commissioner)
Arizona Department of Real Estate
