The Administrative Law Judge denied the petition, concluding that Petitioner failed to establish any violation of A.R.S. § 33-1804 regarding both the DRC's restriction on speaking during specific deliberations and the use of email communications for non-regularly scheduled committee business.
Why this result: The Petitioner failed to prove by a preponderance of the evidence that the Respondent violated A.R.S. § 33-1804, specifically because the DRC's restrictions on speaking were deemed reasonable, and email communications were not considered 'regularly scheduled committee meetings' requiring public access.
Key Issues & Findings
Open Meetings and Member Right to Speak (DRC and Email Meetings)
Petitioner alleged Respondent violated A.R.S. § 33-1804 by denying her the ability to speak at DRC meetings on other members’ requests, and by conducting deliberations and making decisions via email outside of regularly scheduled meetings.
Orders: Petitioner's petition is denied.
Filing fee: $500.00, Fee refunded: Yes
Disposition: respondent_win
Cited:
A.R.S. § 33-1804
A.R.S. Title 33, Chapter 16, Sections 33-1801 to 33-1818
Analytics Highlights
Topics: HOA, Design Review Committee, Open Meetings, Right to Speak, Email Meetings, A.R.S. 33-1804
Additional Citations:
A.R.S. § 32-2199 et seq.
A.A.C. R2-19-119
A.R.S. § 33-1804
A.R.S. § 32-2199.02(B)
A.R.S. § 32-2199.04
A.R.S. § 41-1092.09
Video Overview
Audio Overview
Decision Documents
19F-H1919046-REL Decision – 712028.pdf
Uploaded 2026-01-23T17:28:53 (94.0 KB)
Briefing Doc – 19F-H1919046-REL
Briefing Document: Glover v. Foothills Community Association (Case No. 19F-H1919046-REL)
Executive Summary
This document summarizes the Administrative Law Judge Decision in the case of Vicky Glover versus the Foothills Community Association (FCA), where the petitioner’s claims were denied. The petitioner alleged that the FCA’s Design Review Committee (DRC) violated Arizona’s open meeting laws (A.R.S. § 33-1804) on two fronts: first, by conducting unannounced “email meetings” to vote on non-emergency matters, and second, by preventing members from speaking at appropriate times during regularly scheduled DRC meetings.
The Administrative Law Judge (ALJ), Tammy L. Eigenheer, concluded that the petitioner failed to prove any statutory violation. The decision rested on a strict textual interpretation of A.R.S. § 33-1804. Regarding speaking rights, the ALJ determined that while members have a right to speak at an “appropriate time” in committee meetings, the more specific right to speak on an agenda item before a formal vote applies exclusively to Board of Directors meetings, not committee meetings. The judge found it was reasonable for the DRC to rule that a member speaking on another member’s application was not an “appropriate time.”
Concerning the email communications, the ALJ ruled that they do not constitute “regularly scheduled committee meetings” as defined by the statute. Because the email discussions and decisions did not occur at a set weekly, monthly, or quarterly time, they are not subject to the open meeting requirements. The general state policy favoring open meetings was found to be subordinate to the specific statutory language. The petition was therefore denied in its entirety.
——————————————————————————–
Case Overview
This case involved a dispute between a homeowner and a homeowners association regarding the application of Arizona’s open meeting laws to a committee of the association.
Name / Entity
Representation / Title
Petitioner
Vicky Glover
Appeared on her own behalf
Respondent
Foothills Community Association (FCA)
B. Austin Baillio (Maxwell & Morgan, P.C.)
Adjudicator
Tammy L. Eigenheer
Administrative Law Judge
Jurisdiction
Office of Administrative Hearings
Phoenix, Arizona
Case Timeline
• December 13, 2018 & January 9, 2019: Petitioner attends and records DRC meetings where the alleged violations occurred.
• January 23, 2019: Vicky Glover files a petition with the Arizona Department of Real Estate.
• January 28, 2019: The Department issues a notice to the FCA regarding the petition.
• May 10, 2019: An administrative hearing is held.
• May 30, 2019: The Administrative Law Judge issues the final decision.
——————————————————————————–
Petitioner’s Allegations
The petitioner, Vicky Glover, alleged that the Foothills Community Association violated Arizona Revised Statutes (A.R.S.) § 33-1804 in two specific ways:
1. Improper Email Meetings: The FCA’s Design Review Committee (DRC) held unannounced meetings via email to vote on non-emergency matters, which should have been handled in open, public meetings.
2. Denial of Speaking Rights: The DRC refused to allow community members, including the petitioner, to speak at an appropriate time during its regularly scheduled meetings, specifically when she wished to speak on other members’ pending requests.
Key Factual Findings
The facts underlying the petition were not in dispute by the parties during the hearing. The key findings of fact established were:
• Organizational Structure:
◦ The FCA Board of Directors is comprised of seven members and meets on the fourth Wednesday of the month at 6:00 p.m.
◦ The Design Review Committee (DRC) is appointed by the Board, is comprised of five members (two of whom are also on the Board), and meets on the second Wednesday of the month at 2:00 p.m.
• Events at DRC Meetings:
◦ On December 13, 2018, and January 9, 2019, Vicky Glover attended and recorded DRC meetings.
◦ During these meetings, she was not permitted to speak on issues being discussed related to other members’ pending requests.
• Use of Email by the DRC:
◦ During meetings, DRC members mentioned that additional information for certain requests would be shared via email after the meeting.
◦ Based on this emailed information, DRC members would approve or deny the request.
◦ Decisions made via email between meetings were formally “ratified” at the subsequent DRC meeting.
◦ FCA Manager Pat Wontor testified, denying that the DRC took initial action via email, asserting instead that emails were only used to gather additional information on matters that had already been discussed in an open meeting.
• DRC Policies: A request submitted to the DRC is deemed approved if it is not denied within 60 days.
——————————————————————————–
Legal Analysis and Judge’s Conclusions
The Administrative Law Judge’s decision centered on a strict interpretation of the plain language of A.R.S. § 33-1804. The petitioner bore the burden of proving a violation by a preponderance of the evidence and failed to do so on both counts.
I. Member Speaking Rights at Committee Meetings
The judge analyzed the petitioner’s claim that she was wrongfully denied the right to speak at DRC meetings.
• Governing Statute: A.R.S. § 33-1804(A) states that at “any regularly scheduled committee meetings… all members… shall be permitted to attend and speak at an appropriate time during the deliberations and proceedings.”
• ALJ’s Interpretation: The judge found a critical distinction within the statute’s text. A later clause specifies that “the board… shall permit a member… to speak once after the board has discussed a specific agenda item but before the board takes formal action on that item.”
• Conclusion: The judge ruled that this specific right to speak on an item before a vote applies only to meetings of the Board of Directors, not to committee meetings. For committee meetings, the standard is the more general “appropriate time.” The ALJ concluded it was reasonable for the DRC to determine that having one member speak on another member’s private application was not an “appropriate time.” Therefore, the DRC’s refusal to allow the petitioner to speak did not violate the statute.
II. Email Deliberations and “Meetings”
The judge next addressed the claim that email communications constituted illegal, non-public meetings.
• Governing Statute: A.R.S. § 33-1804(A) mandates that open meeting rules apply to “regularly scheduled committee meetings.”
• ALJ’s Interpretation: The judge concluded that the email discussions, deliberations, and decisions among DRC members did not meet the definition of “regularly scheduled.” These communications did not occur at a set time on a recurring basis (e.g., weekly, monthly, quarterly). While they could be considered a form of meeting, they were not regularly scheduled ones.
• Effect of State Policy: The judge acknowledged the policy statement in A.R.S. § 33-1804(F), which expresses a legislative preference for open meetings. However, the judge ruled that this general policy “does not override the specific provisions of A.R.S. § 33-1804(A) that only ‘regularly scheduled’ committee meetings must be open to the members.”
• Conclusion: Because the email communications were not regularly scheduled, they did not fall under the open meeting requirements of the statute, and no violation occurred.
Final Order and Implications
Based on the legal analysis, the Administrative Law Judge found that the petitioner did not establish any violation of A.R.S. § 33-1804.
• Final Order: “IT IS ORDERED that Petitioner’s petition is denied.”
• Next Steps: The decision is binding on the parties. A party may file a request for a rehearing with the Commissioner of the Department of Real Estate within 30 days of the service of the order, pursuant to A.R.S. § 32-2199.04 and § 41-1092.09.
Study Guide – 19F-H1919046-REL
Study Guide: Glover v. Foothills Community Association (No. 19F-H1919046-REL)
This guide provides a comprehensive review of the Administrative Law Judge Decision in the case between Vicky Glover (Petitioner) and the Foothills Community Association (Respondent). It includes a quiz to test factual recall, essay questions for deeper analysis, and a glossary of key terms as defined and used within the source document.
Quiz: Short-Answer Questions
Instructions: Answer the following questions based on the provided legal decision. Each answer should be two to three sentences long.
1. Who were the primary parties involved in this case and what were their respective roles?
2. What were the two specific violations of state statutes that the Petitioner alleged?
3. Describe the composition and meeting schedules of the Board of Directors and the Design Review Committee (DRC).
4. What specific action did the Petitioner take during the DRC meetings on December 13, 2018, and January 9, 2019?
5. According to the decision, what was the DRC’s practice regarding decisions made via email between meetings?
6. What is the standard of proof the Petitioner was required to meet, and how does the decision define it?
7. How did the Administrative Law Judge interpret the statutory phrase “an appropriate time” for a member to speak during a committee meeting?
8. Why did the Judge conclude that the DRC’s email communications did not violate the open meeting requirements of A.R.S. § 33-1804?
9. What was the final ruling, or Order, issued by the Administrative Law Judge in this case?
10. What recourse did the parties have if they disagreed with the Judge’s order?
Answer Key
1. The primary parties were Vicky Glover, the Petitioner who filed the complaint, and the Foothills Community Association (FCA), the Respondent homeowners association. The case was heard by Administrative Law Judge Tammy L. Eigenheer in the Office of Administrative Hearings.
2. The Petitioner alleged that the Respondent violated state statutes by holding unannounced email meetings to vote on non-emergency matters. She also alleged that the Respondent would not allow community members to speak at appropriate times during Design Review Committee (DRC) meetings.
3. The Board of Directors has seven members and meets at 6:00 p.m. on the fourth Wednesday of the month. The Design Review Committee (DRC) is appointed by the Board, has five members (two of whom are also on the Board), and meets at 2:00 p.m. on the second Wednesday of the month.
4. During the DRC meetings on December 13, 2018, and January 9, 2019, the Petitioner attended and recorded the proceedings. She was not allowed to speak on other members’ pending requests during these meetings.
5. The DRC would gather additional information via email after a meeting and members would then approve or deny the request via email. Any decisions made via email between DRC meetings were then “ratified” at the next formal DRC meeting.
6. The Petitioner had the burden of proving her case by a “preponderance of the evidence.” The decision defines this as evidence that is of greater weight or more convincing than the opposing evidence, showing the fact sought to be proved is more probable than not.
7. The Judge determined that the statute does not define what constitutes “an appropriate time” to speak at a committee meeting. Therefore, it was reasonable for the DRC to decide that the deliberation regarding a different member’s request was not an appropriate time for the Petitioner to speak.
8. The Judge concluded that email communications are not “regularly scheduled committee meetings” because they do not occur at a set time on a weekly, monthly, quarterly, or annual basis. Since A.R.S. § 33-1804 only requires regularly scheduled committee meetings to be open, the email discussions were not a violation.
9. The final Order was that the Petitioner’s petition is denied. The Administrative Law Judge concluded that the Petitioner did not establish any violation of A.R.S. § 33-1804.
10. Pursuant to A.R.S. §32-2199.02(B), the order is binding unless a rehearing is granted. A request for a rehearing must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of the Order.
Essay Questions
Instructions: The following questions are designed for longer-form essay responses to encourage a deeper synthesis of the case details and legal reasoning. Answers are not provided.
1. Analyze the Administrative Law Judge’s statutory construction of A.R.S. § 33-1804. How does the judge distinguish between the open meeting requirements for Board of Directors meetings versus committee meetings, and what role does the “plain language” of the statute play in this interpretation?
2. Discuss the two central allegations made by Vicky Glover. For each allegation, detail the undisputed facts of the events and explain the specific legal reasoning the judge used to conclude that no statutory violation occurred.
3. Examine the conflict between the state’s declared policy in favor of open meetings (A.R.S. § 33-1804(F)) and the specific statutory language governing committee meetings (A.R.S. § 33-1804(A)). How did the judge resolve this apparent conflict in her final decision?
4. Based on the “Findings of Fact,” describe the operational procedures of the Design Review Committee, including its use of email for decision-making and subsequent ratification. How did these procedures become central to the legal dispute?
5. Explain the concept of “burden of proof” as it applied in this case. How did the standard of “preponderance of the evidence” shape the proceedings, and why was the Administrative Law Judge’s conclusion that the Petitioner “did not establish” a violation critical to the final order?
Glossary of Key Terms
Definition from Source Context
Administrative Law Judge
Tammy L. Eigenheer, the judge who presided over the hearing and issued the decision in this case.
A.R.S. § 33-1804
The Arizona Revised Statute that the Petitioner alleged was violated. It governs open meetings for planned communities, including member associations, boards of directors, and regularly scheduled committees.
Arizona Department of Real Estate (Department)
The state agency with which the Petitioner filed her petition and which has jurisdiction to hear disputes between property owners and condominium owners associations.
Board of Directors
The governing body of the Foothills Community Association, comprised of seven members. It appoints the Design Review Committee.
Design Review Committee (DRC)
A five-member committee appointed by the Board of Directors. Two of its members are also on the Board. The DRC’s meetings were the subject of the Petitioner’s complaint.
Foothills Community Association (FCA)
The Respondent in the case. An association of homeowners located in Phoenix, Arizona.
Petitioner
Vicky Glover, who filed a petition on January 23, 2019, with the Arizona Department of Real Estate against the Foothills Community Association.
Preponderance of the evidence
The burden of proof required of the Petitioner. It is defined as “Evidence 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.”
Ratified
The term used to describe the process where decisions made by the DRC via email between meetings were formally approved at the next DRC meeting.
Regularly scheduled committee meetings
The specific type of meeting subject to the open meeting requirements of A.R.S. § 33-1804. The Judge concluded that email communications do not meet this definition as they do not occur at a set time.
Respondent
The Foothills Community Association (FCA), against which the petition was filed. Represented in the hearing by B. Austin Baillio.
Statutory Construction
The process of interpreting a statute. The primary goal is to ascertain the legislature’s intent, first by looking at the plain text of the statute.
Blog Post – 19F-H1919046-REL
3 Shocking Loopholes in HOA ‘Open Meeting’ Laws This Homeowner Discovered the Hard Way
Introduction: The Illusion of Transparency
For anyone living in a homeowner’s association (HOA), there’s a fundamental expectation: the business of the community is conducted in the open. We assume that as members, we have a right to attend meetings, understand the decisions being made, and voice our opinions before our board takes action.
But a startling court decision from an Arizona Administrative Law Judge throws a wrench in that assumption. One homeowner’s legal challenge against her association didn’t just fail—it inadvertently created a roadmap for how HOAs can legally operate behind closed doors, affecting millions of residents in planned communities.
This article will break down the three most counter-intuitive takeaways from this legal battle, revealing how the specific wording of the law can create major gaps in transparency and challenge everything you thought you knew about your rights as a homeowner.
1. Your Right to Speak is Weaker Than You Think—Especially in Committee Meetings
Most homeowners believe they have a protected right to speak on any agenda item at any official HOA meeting. The case of petitioner Vicky Glover shows this is a dangerous assumption.
On December 13, 2018, and January 9, 2019, Ms. Glover attended meetings of her community’s Design Review Committee (DRC) and was not permitted to speak about other members’ pending architectural requests. She argued this violated Arizona’s open meeting law for planned communities (A.R.S. § 33-1804).
The Administrative Law Judge (ALJ), however, pointed out a critical distinction in the law’s text. The statute explicitly guarantees a member the right “to speak once after the board has discussed a specific agenda item but before the board takes formal action.” This specific right, the ALJ concluded, applies only to meetings of the Board of Directors.
For committee meetings, the law sets a much vaguer standard, requiring only that members “be permitted to attend and speak at an appropriate time.” The ALJ found it was reasonable for the DRC to decide that having Ms. Glover speak on another member’s application was not an “appropriate time.”
This is a crucial distinction because committees—like architectural, design, or finance committees—often make the decisions that most directly impact homeowners’ property and daily lives. Yet, this ruling clarifies that the guaranteed right to be heard before a vote is taken is significantly weaker in those very forums.
2. “Email Meetings” Can Be a Legal Way to Sidestep Open Meeting Rules
The common understanding of open meeting laws is that they exist to prevent boards and committees from deliberating and making decisions in private. But what if the meeting doesn’t happen in a room, but in an email chain?
Ms. Glover’s second claim was that the DRC was conducting business and making decisions via email between its official meetings. Evidence showed that after a meeting, additional information would be shared with committee members who could then “approve or deny the request… via email.” The association’s manager, Pat Wontor, denied this, claiming emails were only used to gather information on matters already discussed in a meeting.
The ALJ’s conclusion on this matter was stunning and sidestepped the conflicting testimony entirely. The Arizona open meeting law in question only applies to “regularly scheduled committee meetings.” Because email exchanges do not occur at a set, scheduled time—like the second Wednesday of the month—the judge ruled they do not fall under the open meeting requirements of the statute, regardless of their content.
The implication of this loophole is profound. It allows a committee to conduct significant deliberation and decision-making entirely outside of public view. This practice can turn the open meeting into a hollow formality. A committee can present a “done deal” for public ratification, rendering the member’s right to observe and speak effectively meaningless. The public meeting becomes a theatrical rubber stamp for a decision already made in secret.
3. The “Spirit of the Law” Doesn’t Beat the Letter of the Law
Many laws contain a policy statement that outlines their overarching goal—the “spirit of the law.” Arizona’s statute on HOA meetings has an exceptionally strong one, stating that all meetings should be open and that the law should be interpreted to favor transparency. The text explicitly declares:
“It is the policy of this state as reflected in this section that all meetings of a planned community… be conducted openly… and shall construe any provision of this section in favor of open meetings.” (from A.R.S. § 33-1804(F))
Ms. Glover and many homeowners would read this and assume it guarantees broad transparency. The ALJ, however, ruled that this powerful policy statement “does not override the specific provisions” of the law.
In other words, the literal, specific text—like the distinction between “board” and “committee” meetings, or the “regularly scheduled” requirement—takes precedence over the law’s general intent.
This is perhaps the most important lesson for all homeowners. Relying on the assumed purpose or “spirit” of a rule is not enough. In a legal dispute, the precise, technical wording is what matters most. It highlights the critical importance for homeowners to read and understand the exact text of state statutes and their own governing documents, because the loopholes are often found in the fine print.
Conclusion: Knowledge is Your Best Defense
While Vicky Glover lost her petition, her case provides an invaluable education for every member of a community association. It is a stark warning that transparency in an HOA is not a guaranteed principle but a legal standard with specific, and at times counter-intuitive, boundaries that can be exploited.
The loopholes her case exposed reveal a sobering reality: your right to speak is conditional, “meetings” can legally occur out of sight in an email chain, and the stated “spirit” of the law can be rendered toothless by its literal text. HOA governance is not guided by general principles of fairness, but by very specific legal language.
Given these loopholes, it’s worth asking: How many of the most important decisions in your community are happening in an inbox instead of the boardroom?
Case Participants
Petitioner Side
Vicky Glover(petitioner)
Respondent Side
B. Austin Baillio(respondent attorney) Maxwell & Morgan, P.C.
Pat Wontor(manager) Manager for DRC/Foothills Community Association
Neutral Parties
Tammy L. Eigenheer(ALJ)
Judy Lowe(Commissioner) Arizona Department of Real Estate
The Administrative Law Judge denied the petition, concluding that Petitioner failed to establish any violation of A.R.S. § 33-1804 regarding both the DRC's restriction on speaking during specific deliberations and the use of email communications for non-regularly scheduled committee business.
Why this result: The Petitioner failed to prove by a preponderance of the evidence that the Respondent violated A.R.S. § 33-1804, specifically because the DRC's restrictions on speaking were deemed reasonable, and email communications were not considered 'regularly scheduled committee meetings' requiring public access.
Key Issues & Findings
Open Meetings and Member Right to Speak (DRC and Email Meetings)
Petitioner alleged Respondent violated A.R.S. § 33-1804 by denying her the ability to speak at DRC meetings on other members’ requests, and by conducting deliberations and making decisions via email outside of regularly scheduled meetings.
Orders: Petitioner's petition is denied.
Filing fee: $500.00, Fee refunded: Yes
Disposition: respondent_win
Cited:
A.R.S. § 33-1804
A.R.S. Title 33, Chapter 16, Sections 33-1801 to 33-1818
Analytics Highlights
Topics: HOA, Design Review Committee, Open Meetings, Right to Speak, Email Meetings, A.R.S. 33-1804
Additional Citations:
A.R.S. § 32-2199 et seq.
A.A.C. R2-19-119
A.R.S. § 33-1804
A.R.S. § 32-2199.02(B)
A.R.S. § 32-2199.04
A.R.S. § 41-1092.09
Video Overview
Audio Overview
Decision Documents
19F-H1919046-REL Decision – 712028.pdf
Uploaded 2025-10-09T03:34:06 (94.0 KB)
Briefing Doc – 19F-H1919046-REL
Briefing Document: Glover v. Foothills Community Association (Case No. 19F-H1919046-REL)
Executive Summary
This document summarizes the Administrative Law Judge Decision in the case of Vicky Glover versus the Foothills Community Association (FCA), where the petitioner’s claims were denied. The petitioner alleged that the FCA’s Design Review Committee (DRC) violated Arizona’s open meeting laws (A.R.S. § 33-1804) on two fronts: first, by conducting unannounced “email meetings” to vote on non-emergency matters, and second, by preventing members from speaking at appropriate times during regularly scheduled DRC meetings.
The Administrative Law Judge (ALJ), Tammy L. Eigenheer, concluded that the petitioner failed to prove any statutory violation. The decision rested on a strict textual interpretation of A.R.S. § 33-1804. Regarding speaking rights, the ALJ determined that while members have a right to speak at an “appropriate time” in committee meetings, the more specific right to speak on an agenda item before a formal vote applies exclusively to Board of Directors meetings, not committee meetings. The judge found it was reasonable for the DRC to rule that a member speaking on another member’s application was not an “appropriate time.”
Concerning the email communications, the ALJ ruled that they do not constitute “regularly scheduled committee meetings” as defined by the statute. Because the email discussions and decisions did not occur at a set weekly, monthly, or quarterly time, they are not subject to the open meeting requirements. The general state policy favoring open meetings was found to be subordinate to the specific statutory language. The petition was therefore denied in its entirety.
——————————————————————————–
Case Overview
This case involved a dispute between a homeowner and a homeowners association regarding the application of Arizona’s open meeting laws to a committee of the association.
Name / Entity
Representation / Title
Petitioner
Vicky Glover
Appeared on her own behalf
Respondent
Foothills Community Association (FCA)
B. Austin Baillio (Maxwell & Morgan, P.C.)
Adjudicator
Tammy L. Eigenheer
Administrative Law Judge
Jurisdiction
Office of Administrative Hearings
Phoenix, Arizona
Case Timeline
• December 13, 2018 & January 9, 2019: Petitioner attends and records DRC meetings where the alleged violations occurred.
• January 23, 2019: Vicky Glover files a petition with the Arizona Department of Real Estate.
• January 28, 2019: The Department issues a notice to the FCA regarding the petition.
• May 10, 2019: An administrative hearing is held.
• May 30, 2019: The Administrative Law Judge issues the final decision.
——————————————————————————–
Petitioner’s Allegations
The petitioner, Vicky Glover, alleged that the Foothills Community Association violated Arizona Revised Statutes (A.R.S.) § 33-1804 in two specific ways:
1. Improper Email Meetings: The FCA’s Design Review Committee (DRC) held unannounced meetings via email to vote on non-emergency matters, which should have been handled in open, public meetings.
2. Denial of Speaking Rights: The DRC refused to allow community members, including the petitioner, to speak at an appropriate time during its regularly scheduled meetings, specifically when she wished to speak on other members’ pending requests.
Key Factual Findings
The facts underlying the petition were not in dispute by the parties during the hearing. The key findings of fact established were:
• Organizational Structure:
◦ The FCA Board of Directors is comprised of seven members and meets on the fourth Wednesday of the month at 6:00 p.m.
◦ The Design Review Committee (DRC) is appointed by the Board, is comprised of five members (two of whom are also on the Board), and meets on the second Wednesday of the month at 2:00 p.m.
• Events at DRC Meetings:
◦ On December 13, 2018, and January 9, 2019, Vicky Glover attended and recorded DRC meetings.
◦ During these meetings, she was not permitted to speak on issues being discussed related to other members’ pending requests.
• Use of Email by the DRC:
◦ During meetings, DRC members mentioned that additional information for certain requests would be shared via email after the meeting.
◦ Based on this emailed information, DRC members would approve or deny the request.
◦ Decisions made via email between meetings were formally “ratified” at the subsequent DRC meeting.
◦ FCA Manager Pat Wontor testified, denying that the DRC took initial action via email, asserting instead that emails were only used to gather additional information on matters that had already been discussed in an open meeting.
• DRC Policies: A request submitted to the DRC is deemed approved if it is not denied within 60 days.
——————————————————————————–
Legal Analysis and Judge’s Conclusions
The Administrative Law Judge’s decision centered on a strict interpretation of the plain language of A.R.S. § 33-1804. The petitioner bore the burden of proving a violation by a preponderance of the evidence and failed to do so on both counts.
I. Member Speaking Rights at Committee Meetings
The judge analyzed the petitioner’s claim that she was wrongfully denied the right to speak at DRC meetings.
• Governing Statute: A.R.S. § 33-1804(A) states that at “any regularly scheduled committee meetings… all members… shall be permitted to attend and speak at an appropriate time during the deliberations and proceedings.”
• ALJ’s Interpretation: The judge found a critical distinction within the statute’s text. A later clause specifies that “the board… shall permit a member… to speak once after the board has discussed a specific agenda item but before the board takes formal action on that item.”
• Conclusion: The judge ruled that this specific right to speak on an item before a vote applies only to meetings of the Board of Directors, not to committee meetings. For committee meetings, the standard is the more general “appropriate time.” The ALJ concluded it was reasonable for the DRC to determine that having one member speak on another member’s private application was not an “appropriate time.” Therefore, the DRC’s refusal to allow the petitioner to speak did not violate the statute.
II. Email Deliberations and “Meetings”
The judge next addressed the claim that email communications constituted illegal, non-public meetings.
• Governing Statute: A.R.S. § 33-1804(A) mandates that open meeting rules apply to “regularly scheduled committee meetings.”
• ALJ’s Interpretation: The judge concluded that the email discussions, deliberations, and decisions among DRC members did not meet the definition of “regularly scheduled.” These communications did not occur at a set time on a recurring basis (e.g., weekly, monthly, quarterly). While they could be considered a form of meeting, they were not regularly scheduled ones.
• Effect of State Policy: The judge acknowledged the policy statement in A.R.S. § 33-1804(F), which expresses a legislative preference for open meetings. However, the judge ruled that this general policy “does not override the specific provisions of A.R.S. § 33-1804(A) that only ‘regularly scheduled’ committee meetings must be open to the members.”
• Conclusion: Because the email communications were not regularly scheduled, they did not fall under the open meeting requirements of the statute, and no violation occurred.
Final Order and Implications
Based on the legal analysis, the Administrative Law Judge found that the petitioner did not establish any violation of A.R.S. § 33-1804.
• Final Order: “IT IS ORDERED that Petitioner’s petition is denied.”
• Next Steps: The decision is binding on the parties. A party may file a request for a rehearing with the Commissioner of the Department of Real Estate within 30 days of the service of the order, pursuant to A.R.S. § 32-2199.04 and § 41-1092.09.
Study Guide – 19F-H1919046-REL
Study Guide: Glover v. Foothills Community Association (No. 19F-H1919046-REL)
This guide provides a comprehensive review of the Administrative Law Judge Decision in the case between Vicky Glover (Petitioner) and the Foothills Community Association (Respondent). It includes a quiz to test factual recall, essay questions for deeper analysis, and a glossary of key terms as defined and used within the source document.
Quiz: Short-Answer Questions
Instructions: Answer the following questions based on the provided legal decision. Each answer should be two to three sentences long.
1. Who were the primary parties involved in this case and what were their respective roles?
2. What were the two specific violations of state statutes that the Petitioner alleged?
3. Describe the composition and meeting schedules of the Board of Directors and the Design Review Committee (DRC).
4. What specific action did the Petitioner take during the DRC meetings on December 13, 2018, and January 9, 2019?
5. According to the decision, what was the DRC’s practice regarding decisions made via email between meetings?
6. What is the standard of proof the Petitioner was required to meet, and how does the decision define it?
7. How did the Administrative Law Judge interpret the statutory phrase “an appropriate time” for a member to speak during a committee meeting?
8. Why did the Judge conclude that the DRC’s email communications did not violate the open meeting requirements of A.R.S. § 33-1804?
9. What was the final ruling, or Order, issued by the Administrative Law Judge in this case?
10. What recourse did the parties have if they disagreed with the Judge’s order?
Answer Key
1. The primary parties were Vicky Glover, the Petitioner who filed the complaint, and the Foothills Community Association (FCA), the Respondent homeowners association. The case was heard by Administrative Law Judge Tammy L. Eigenheer in the Office of Administrative Hearings.
2. The Petitioner alleged that the Respondent violated state statutes by holding unannounced email meetings to vote on non-emergency matters. She also alleged that the Respondent would not allow community members to speak at appropriate times during Design Review Committee (DRC) meetings.
3. The Board of Directors has seven members and meets at 6:00 p.m. on the fourth Wednesday of the month. The Design Review Committee (DRC) is appointed by the Board, has five members (two of whom are also on the Board), and meets at 2:00 p.m. on the second Wednesday of the month.
4. During the DRC meetings on December 13, 2018, and January 9, 2019, the Petitioner attended and recorded the proceedings. She was not allowed to speak on other members’ pending requests during these meetings.
5. The DRC would gather additional information via email after a meeting and members would then approve or deny the request via email. Any decisions made via email between DRC meetings were then “ratified” at the next formal DRC meeting.
6. The Petitioner had the burden of proving her case by a “preponderance of the evidence.” The decision defines this as evidence that is of greater weight or more convincing than the opposing evidence, showing the fact sought to be proved is more probable than not.
7. The Judge determined that the statute does not define what constitutes “an appropriate time” to speak at a committee meeting. Therefore, it was reasonable for the DRC to decide that the deliberation regarding a different member’s request was not an appropriate time for the Petitioner to speak.
8. The Judge concluded that email communications are not “regularly scheduled committee meetings” because they do not occur at a set time on a weekly, monthly, quarterly, or annual basis. Since A.R.S. § 33-1804 only requires regularly scheduled committee meetings to be open, the email discussions were not a violation.
9. The final Order was that the Petitioner’s petition is denied. The Administrative Law Judge concluded that the Petitioner did not establish any violation of A.R.S. § 33-1804.
10. Pursuant to A.R.S. §32-2199.02(B), the order is binding unless a rehearing is granted. A request for a rehearing must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of the Order.
Essay Questions
Instructions: The following questions are designed for longer-form essay responses to encourage a deeper synthesis of the case details and legal reasoning. Answers are not provided.
1. Analyze the Administrative Law Judge’s statutory construction of A.R.S. § 33-1804. How does the judge distinguish between the open meeting requirements for Board of Directors meetings versus committee meetings, and what role does the “plain language” of the statute play in this interpretation?
2. Discuss the two central allegations made by Vicky Glover. For each allegation, detail the undisputed facts of the events and explain the specific legal reasoning the judge used to conclude that no statutory violation occurred.
3. Examine the conflict between the state’s declared policy in favor of open meetings (A.R.S. § 33-1804(F)) and the specific statutory language governing committee meetings (A.R.S. § 33-1804(A)). How did the judge resolve this apparent conflict in her final decision?
4. Based on the “Findings of Fact,” describe the operational procedures of the Design Review Committee, including its use of email for decision-making and subsequent ratification. How did these procedures become central to the legal dispute?
5. Explain the concept of “burden of proof” as it applied in this case. How did the standard of “preponderance of the evidence” shape the proceedings, and why was the Administrative Law Judge’s conclusion that the Petitioner “did not establish” a violation critical to the final order?
Glossary of Key Terms
Definition from Source Context
Administrative Law Judge
Tammy L. Eigenheer, the judge who presided over the hearing and issued the decision in this case.
A.R.S. § 33-1804
The Arizona Revised Statute that the Petitioner alleged was violated. It governs open meetings for planned communities, including member associations, boards of directors, and regularly scheduled committees.
Arizona Department of Real Estate (Department)
The state agency with which the Petitioner filed her petition and which has jurisdiction to hear disputes between property owners and condominium owners associations.
Board of Directors
The governing body of the Foothills Community Association, comprised of seven members. It appoints the Design Review Committee.
Design Review Committee (DRC)
A five-member committee appointed by the Board of Directors. Two of its members are also on the Board. The DRC’s meetings were the subject of the Petitioner’s complaint.
Foothills Community Association (FCA)
The Respondent in the case. An association of homeowners located in Phoenix, Arizona.
Petitioner
Vicky Glover, who filed a petition on January 23, 2019, with the Arizona Department of Real Estate against the Foothills Community Association.
Preponderance of the evidence
The burden of proof required of the Petitioner. It is defined as “Evidence 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.”
Ratified
The term used to describe the process where decisions made by the DRC via email between meetings were formally approved at the next DRC meeting.
Regularly scheduled committee meetings
The specific type of meeting subject to the open meeting requirements of A.R.S. § 33-1804. The Judge concluded that email communications do not meet this definition as they do not occur at a set time.
Respondent
The Foothills Community Association (FCA), against which the petition was filed. Represented in the hearing by B. Austin Baillio.
Statutory Construction
The process of interpreting a statute. The primary goal is to ascertain the legislature’s intent, first by looking at the plain text of the statute.
Blog Post – 19F-H1919046-REL
3 Shocking Loopholes in HOA ‘Open Meeting’ Laws This Homeowner Discovered the Hard Way
Introduction: The Illusion of Transparency
For anyone living in a homeowner’s association (HOA), there’s a fundamental expectation: the business of the community is conducted in the open. We assume that as members, we have a right to attend meetings, understand the decisions being made, and voice our opinions before our board takes action.
But a startling court decision from an Arizona Administrative Law Judge throws a wrench in that assumption. One homeowner’s legal challenge against her association didn’t just fail—it inadvertently created a roadmap for how HOAs can legally operate behind closed doors, affecting millions of residents in planned communities.
This article will break down the three most counter-intuitive takeaways from this legal battle, revealing how the specific wording of the law can create major gaps in transparency and challenge everything you thought you knew about your rights as a homeowner.
1. Your Right to Speak is Weaker Than You Think—Especially in Committee Meetings
Most homeowners believe they have a protected right to speak on any agenda item at any official HOA meeting. The case of petitioner Vicky Glover shows this is a dangerous assumption.
On December 13, 2018, and January 9, 2019, Ms. Glover attended meetings of her community’s Design Review Committee (DRC) and was not permitted to speak about other members’ pending architectural requests. She argued this violated Arizona’s open meeting law for planned communities (A.R.S. § 33-1804).
The Administrative Law Judge (ALJ), however, pointed out a critical distinction in the law’s text. The statute explicitly guarantees a member the right “to speak once after the board has discussed a specific agenda item but before the board takes formal action.” This specific right, the ALJ concluded, applies only to meetings of the Board of Directors.
For committee meetings, the law sets a much vaguer standard, requiring only that members “be permitted to attend and speak at an appropriate time.” The ALJ found it was reasonable for the DRC to decide that having Ms. Glover speak on another member’s application was not an “appropriate time.”
This is a crucial distinction because committees—like architectural, design, or finance committees—often make the decisions that most directly impact homeowners’ property and daily lives. Yet, this ruling clarifies that the guaranteed right to be heard before a vote is taken is significantly weaker in those very forums.
2. “Email Meetings” Can Be a Legal Way to Sidestep Open Meeting Rules
The common understanding of open meeting laws is that they exist to prevent boards and committees from deliberating and making decisions in private. But what if the meeting doesn’t happen in a room, but in an email chain?
Ms. Glover’s second claim was that the DRC was conducting business and making decisions via email between its official meetings. Evidence showed that after a meeting, additional information would be shared with committee members who could then “approve or deny the request… via email.” The association’s manager, Pat Wontor, denied this, claiming emails were only used to gather information on matters already discussed in a meeting.
The ALJ’s conclusion on this matter was stunning and sidestepped the conflicting testimony entirely. The Arizona open meeting law in question only applies to “regularly scheduled committee meetings.” Because email exchanges do not occur at a set, scheduled time—like the second Wednesday of the month—the judge ruled they do not fall under the open meeting requirements of the statute, regardless of their content.
The implication of this loophole is profound. It allows a committee to conduct significant deliberation and decision-making entirely outside of public view. This practice can turn the open meeting into a hollow formality. A committee can present a “done deal” for public ratification, rendering the member’s right to observe and speak effectively meaningless. The public meeting becomes a theatrical rubber stamp for a decision already made in secret.
3. The “Spirit of the Law” Doesn’t Beat the Letter of the Law
Many laws contain a policy statement that outlines their overarching goal—the “spirit of the law.” Arizona’s statute on HOA meetings has an exceptionally strong one, stating that all meetings should be open and that the law should be interpreted to favor transparency. The text explicitly declares:
“It is the policy of this state as reflected in this section that all meetings of a planned community… be conducted openly… and shall construe any provision of this section in favor of open meetings.” (from A.R.S. § 33-1804(F))
Ms. Glover and many homeowners would read this and assume it guarantees broad transparency. The ALJ, however, ruled that this powerful policy statement “does not override the specific provisions” of the law.
In other words, the literal, specific text—like the distinction between “board” and “committee” meetings, or the “regularly scheduled” requirement—takes precedence over the law’s general intent.
This is perhaps the most important lesson for all homeowners. Relying on the assumed purpose or “spirit” of a rule is not enough. In a legal dispute, the precise, technical wording is what matters most. It highlights the critical importance for homeowners to read and understand the exact text of state statutes and their own governing documents, because the loopholes are often found in the fine print.
Conclusion: Knowledge is Your Best Defense
While Vicky Glover lost her petition, her case provides an invaluable education for every member of a community association. It is a stark warning that transparency in an HOA is not a guaranteed principle but a legal standard with specific, and at times counter-intuitive, boundaries that can be exploited.
The loopholes her case exposed reveal a sobering reality: your right to speak is conditional, “meetings” can legally occur out of sight in an email chain, and the stated “spirit” of the law can be rendered toothless by its literal text. HOA governance is not guided by general principles of fairness, but by very specific legal language.
Given these loopholes, it’s worth asking: How many of the most important decisions in your community are happening in an inbox instead of the boardroom?
Case Participants
Petitioner Side
Vicky Glover(petitioner)
Respondent Side
B. Austin Baillio(respondent attorney) Maxwell & Morgan, P.C.
Pat Wontor(manager) Manager for DRC/Foothills Community Association
Neutral Parties
Tammy L. Eigenheer(ALJ)
Judy Lowe(Commissioner) Arizona Department of Real Estate
Petitioner was deemed the prevailing party because Respondent established a technical violation of A.R.S. § 33-1258(A) by failing to provide requested documents within the 10-day limit. However, the Administrative Law Judge found a civil penalty was not appropriate given the circumstances.
Key Issues & Findings
Failure to provide requested association records within 10 business days
Petitioner requested sign-in sheets for the January 10, 2018, and February 15, 2018, CBS HOA meetings. Respondent acknowledged a technical violation of the statute by failing to provide the requested documents within the required 10-day timeframe, although they were ultimately provided prior to the hearing.
Orders: Respondent must comply with the applicable provisions of A.R.S. § 33-1258(A) in the future, and pay Petitioner her filing fee of $500.00 within thirty (30) days.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1258
A.R.S. § 33-1258(A)
Analytics Highlights
Topics: records request, failure to provide documents, condominium owners association, filing fee refund
Additional Citations:
A.R.S. § 32-2199 et seq.
A.R.S. § 33-1258
A.A.C. R2-19-119
A.R.S. § 33-1258(A)
A.R.S. §32-2199.02(B)
A.R.S. § 32-2199.04
A.R.S. § 41-1092.09
Video Overview
Audio Overview
Decision Documents
18F-H1818033-REL Decision – 642888.pdf
Uploaded 2026-01-23T17:23:22 (74.5 KB)
18F-H1818033-REL Decision – 655537.pdf
Uploaded 2026-01-23T17:23:25 (83.3 KB)
Briefing Doc – 18F-H1818033-REL
Administrative Hearing Briefing: Cohen v. CBS 136 Homeowners Association
Executive Summary
This document synthesizes the findings and decision from the administrative hearing case Annette Cohen v. CBS 136 Homeowners Association (No. 18F-H1818033-REL). The core of the dispute was the Homeowners Association’s (HOA) failure to provide requested documents—specifically, meeting sign-in sheets—to a member, Annette Cohen, within the ten-business-day timeframe mandated by Arizona statute A.R.S. § 33-1258.
At the hearing, the Respondent HOA acknowledged this “technical violation,” attributing the delay to operational difficulties arising from a recent change in management companies. The Petitioner, Ms. Cohen, argued the delay was intentional and warranted a civil penalty.
The Administrative Law Judge, Tammy L. Eigenheer, found that the HOA did violate the statute. In the final order, the Judge declared Ms. Cohen the prevailing party and mandated future compliance by the HOA. While a civil penalty was deemed inappropriate under the circumstances, the Judge ordered the HOA to reimburse Ms. Cohen’s $500 filing fee.
Case Overview
Entity / Individual
Petitioner
Annette Cohen
Respondent
CBS 136 Homeowners Association (CBS)
Respondent’s Counsel
Brian Ditsch, Sacks Tierney P.A.
Respondent’s Mgmt. Co.
Key Witness
Susan Rubin (PRM)
Adjudicating Body
Office of Administrative Hearings, Phoenix, Arizona
Administrative Law Judge
Tammy L. Eigenheer
Case Number
18F-H1818033-REL
Hearing Date
June 6, 2018
Decision Date
June 26, 2018
Chronology of the Dispute
The dispute centered on two separate sets of document requests made by Petitioner Annette Cohen.
• Request 1 (January 10 Meeting):
◦ On or about Jan. 10, 2018: Ms. Cohen requested the sign-in sheets from the annual meeting held on this date.
◦ Jan. 2018: The management company PRM took over management of the CBS 136 HOA.
◦ Feb. 15, 2018: After more than a month, and after two scheduled review appointments were cancelled by the management company, the sign-in sheets were finally provided to Ms. Cohen by email.
• Request 2 (February 15 Meeting):
◦ Feb. 19, 2018: Ms. Cohen requested the sign-in sheets from the February 15, 2018 HOA meeting. Receipt of this request was acknowledged by PRM.
◦ Feb. 21, 26, 27 & March 5, 2018: Ms. Cohen made repeated follow-up requests for the same information.
• Formal Proceedings:
◦ March 9, 2018: Ms. Cohen filed a formal petition with the Arizona Department of Real Estate.
◦ April 10, 2018: The Respondent HOA filed an answer denying all allegations.
◦ June 6, 2018: An administrative hearing was held. The documents had been provided to Ms. Cohen at some point prior to this hearing.
◦ June 26, 2018: The Administrative Law Judge issued the final decision.
Core Allegation and Legal Framework
Petitioner’s Allegation
Annette Cohen alleged that the CBS 136 Homeowners Association violated A.R.S. Title 33, Chapter 16, Section 33-1258 by failing to provide association records for review and copying within the statutorily required timeframe.
Governing Statute: A.R.S. § 33-1258(A)
The legal basis for the petition is Arizona Revised Statute § 33-1258(A), which governs a member’s right to access association records. The statute states, in relevant part:
“all financial and other records of the association shall be made reasonably available for examination by any member… The association shall have ten business days to fulfill a request for examination. On request for purchase of copies of records by any member… the association shall have ten business days to provide copies of the requested records. An association may charge a fee for making copies of not more than fifteen cents per page.”
The petitioner bears the burden of proving a violation by a preponderance of the evidence, defined as evidence that “shows that the fact sought to be proved is more probable than not.”
Arguments and Evidence Presented at Hearing
Once the Respondent acknowledged the delay, the hearing focused solely on determining the appropriate remedy.
Petitioner’s Position (Annette Cohen)
• Intentional Negligence: Ms. Cohen argued that the Respondent “intentionally ignored her request for the documents.”
• Request for Penalty: Based on the belief of intentional neglect, she asserted that a civil penalty was an appropriate remedy.
• Unreasonable Delay: She noted that the documents “could have easily been emailed to her within the 10 day deadline,” but that the HOA’s management company did not present this as an option until after the deadline had already passed.
Respondent’s Position (CBS 136 HOA)
• Acknowledged Violation: At the June 6, 2018 hearing, the Respondent “acknowledged that the requested documents were not provided within the 10 day timeframe set forth in statute.”
• Mitigating Circumstances: The defense centered on testimony from Susan Rubin of the management company, PRM. Ms. Rubin testified to the following:
◦ No requests are “ever purposefully ignored.”
◦ PRM had only taken over management of the HOA in January 2018.
◦ At the time of the requests, PRM was “still getting documents from the former management company.”
◦ The delay was not due to ignoring the request, but because it “took a little longer than expected to provide the documents.”
Administrative Law Judge’s Decision and Order
Findings and Conclusions
• Violation Established: The Judge concluded there was “no dispute that Respondent failed to provide the requested documents within 10 days.” Therefore, the Petitioner “established by a preponderance of the evidence that Respondent violated A.R.S. § 33-1258(A).”
• Rejection of Civil Penalty: Despite the Petitioner’s argument, the Administrative Law Judge did “not find such a penalty to be appropriate given the circumstances in this matter.”
Final Order
The Judge issued a three-part order binding on the parties:
1. Prevailing Party: The Petitioner, Annette Cohen, is “deemed the prevailing party.”
2. Future Compliance: The Respondent, CBS 136 Homeowners Association, is ordered to “comply with the applicable provisions of A.R.S. § 33-1258(A) in the future.”
3. Reimbursement of Filing Fee: The Respondent must pay the Petitioner her filing fee of $500.00 directly to her within thirty (30) days of the order.
Study Guide – 18F-H1818033-REL
Study Guide: Cohen v. CBS 136 Homeowners Association
Short-Answer Quiz
Instructions: Please answer the following ten questions in 2-3 complete sentences, using only the information provided in the case documents.
1. Who were the primary parties involved in case No. 18F-H1818033-REL, and what were their respective roles?
2. What specific documents did the Petitioner, Annette Cohen, request from the Respondent?
3. According to the petition, what was the core legal violation alleged by Ms. Cohen against the Homeowners Association?
4. What was the timeline for the Respondent’s failure to produce the sign-in sheets from the January 10, 2018 meeting?
5. How did the Respondent initially respond to the petition after it was filed with the Arizona Department of Real Estate?
6. What admission did the Respondent make at the June 6, 2018 hearing?
7. What was the Respondent’s explanation for the delay in providing the requested documents to the Petitioner?
8. What remedy did the Petitioner argue was appropriate for the violation, and on what grounds?
9. What legal standard of proof was the Petitioner required to meet, and did the judge find that she met it?
10. What were the three components of the final Order issued by the Administrative Law Judge?
——————————————————————————–
Answer Key
1. The primary parties were Annette Cohen, who was the Petitioner, and the CBS 136 Homeowners Association, which was the Respondent. The Petitioner is the party who filed the complaint, and the Respondent is the party against whom the complaint was filed.
2. The Petitioner requested the sign-in sheets from two separate meetings. She requested the sign-in sheets from the January 10, 2018 annual meeting and the sign-in sheets from the February 15, 2018 CBS HOA meeting.
3. The core legal violation alleged by Ms. Cohen was that the Respondent had violated Arizona Revised Statutes (A.R.S.) Title 33, Chapter 16, Section 33-1258. This statute requires homeowner associations to provide requested records to members for examination or copying within a ten-business-day timeframe.
4. Ms. Cohen requested the January 10, 2018 sign-in sheets on or about that same date (January 10). She did not receive them via email until February 15, 2018, which is well beyond the ten-business-day limit stipulated by law.
5. On or about April 10, 2018, the Respondent filed an answer to the petition. In this official response, the Respondent denied all of the allegations made by the Petitioner.
6. At the June 6, 2018 hearing, the Respondent acknowledged its failure to comply with the law. The Respondent admitted that the requested documents were not provided within the 10-day timeframe set forth in the statute, constituting a technical violation.
7. The Respondent, through the testimony of Susan Rubin from its management company PRM, explained the delay was not intentional. Ms. Rubin stated that PRM had just taken over management of the HOA in January 2018 and was still in the process of getting documents from the former management company.
8. The Petitioner argued that a civil penalty was the appropriate remedy. She contended that the Respondent intentionally ignored her requests and could have easily emailed the documents within the deadline, but failed to do so until after the deadline had passed.
9. The Petitioner had the burden of proving her case by a “preponderance of the evidence.” The judge found that she successfully met this standard because there was no dispute that the Respondent failed to provide the documents within the required 10 days.
10. The three components of the final Order were: 1) The Petitioner, Annette Cohen, was deemed the prevailing party; 2) The Respondent was ordered to comply with A.R.S. § 33-1258(A) in the future; and 3) The Respondent was ordered to pay the Petitioner’s $500.00 filing fee within thirty days.
——————————————————————————–
Essay Questions
Instructions: The following questions are designed for longer, essay-format responses. Use the provided case documents to formulate a comprehensive analysis.
1. Analyze the arguments presented by both the Petitioner and the Respondent regarding the appropriate remedy for the acknowledged statutory violation. Evaluate the mitigating circumstances offered by the Respondent and discuss why the Administrative Law Judge may have found them persuasive enough to deny a civil penalty while still finding in favor of the Petitioner.
2. Discuss the legal framework governing disputes between property owners and condominium associations in Arizona as outlined in the case documents. Explain the roles of the Arizona Department of Real Estate and the Office of Administrative Hearings, and detail the specific requirements of A.R.S. § 33-1258(A).
3. Examine the concept of “preponderance of the evidence” as defined in the judge’s decision. Explain how the Petitioner successfully met this burden of proof, particularly in light of the Respondent’s initial denial of all allegations versus its later admission at the hearing.
4. Deconstruct the final Order issued by Judge Tammy L. Eigenheer. What were the three distinct parts of the Order, and what legal and practical purpose did each part serve in resolving the dispute, compensating the Petitioner, and ensuring future compliance by the Respondent?
5. Trace the procedural history of this case, creating a timeline of key events from Ms. Cohen’s first document request to the issuance of the final Order. Discuss the significance of each step, including the multiple requests, the petition filing, the Respondent’s answer, the hearing, and the final decision.
——————————————————————————–
Glossary of Key Terms
Definition
Administrative Law Judge
The official, in this case Tammy L. Eigenheer, who presides over hearings at the Office of Administrative Hearings and issues a decision.
A.R.S. § 33-1258(A)
The specific section of Arizona Revised Statutes cited in the case. It mandates that a homeowners association must make records available for member examination within ten business days and may charge up to fifteen cents per page for copies.
Burden of Proof
The obligation on a party in a legal proceeding to prove their assertions. In this case, the Petitioner bore the burden of proving the Respondent violated the statute.
CBS 136 Homeowners Association
The Respondent in the case; an association of condominium owners located in Sun City West, Arizona.
Department
The Arizona Department of Real Estate, the state agency with jurisdiction to hear disputes between property owners and condominium owners associations.
Findings of Fact
The section of the decision that outlines the factual history and evidence presented in the case, as determined by the judge.
Office of Administrative Hearings
The state office where the formal hearing on the petition was conducted.
Petitioner
The party who initiates a legal action by filing a petition. In this case, the Petitioner was Annette Cohen.
Preponderance of the Evidence
The standard of proof required for the Petitioner to win the case. It is defined as evidence that is more convincing and shows that the fact sought to be proved is “more probable than not.”
The management company that took over management of the CBS 136 Homeowners Association in January 2018.
Respondent
The party against whom a petition is filed. In this case, the Respondent was the CBS 136 Homeowners Association.
Technical Violation
An acknowledged infringement of a rule or statute where the substance of the rule may not have been maliciously violated. The Respondent admitted to a technical violation of the 10-day timeframe for document production.
Blog Post – 18F-H1818033-REL
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18F-H1818033-REL
2 sources
Both documents are identical excerpts from an Administrative Law Judge Decision from the Arizona Office of Administrative Hearings, concerning a dispute between Annette Cohen (Petitioner) and the CBS 136 Homeowners Association (Respondent). The case, No. 18F-H1818033-REL, addressed the Petitioner’s claim that the Respondent violated A.R.S. § 33-1258(A) by failing to provide requested association meeting sign-in sheets within the mandated ten-day period. Though the Respondent acknowledged a technical violation of the statute, the Administrative Law Judge determined that a civil penalty was not appropriate given the circumstances, such as the change in management. Ultimately, the Petitioner was deemed the prevailing party, and the Respondent was ordered to comply with the statute in the future and reimburse the Petitioner’s $500.00 filing fee.
Based on 2 sources
Case Participants
Petitioner Side
Annette Cohen(petitioner) Appeared on her own behalf
Respondent Side
Brian Ditsch(respondent attorney) Sacks Tierney P.A.
Susan Rubin(witness) PRM (management company) Testified for Respondent
Neutral Parties
Tammy L. Eigenheer(ALJ) Office of Administrative Hearings
Judy Lowe(commissioner) Arizona Department of Real Estate Recipient of decision notice
Other Participants
Felicia Del Sol(clerical staff) Transmitted the decision
Petitioner was deemed the prevailing party because Respondent established a technical violation of A.R.S. § 33-1258(A) by failing to provide requested documents within the 10-day limit. However, the Administrative Law Judge found a civil penalty was not appropriate given the circumstances.
Key Issues & Findings
Failure to provide requested association records within 10 business days
Petitioner requested sign-in sheets for the January 10, 2018, and February 15, 2018, CBS HOA meetings. Respondent acknowledged a technical violation of the statute by failing to provide the requested documents within the required 10-day timeframe, although they were ultimately provided prior to the hearing.
Orders: Respondent must comply with the applicable provisions of A.R.S. § 33-1258(A) in the future, and pay Petitioner her filing fee of $500.00 within thirty (30) days.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1258
A.R.S. § 33-1258(A)
Analytics Highlights
Topics: records request, failure to provide documents, condominium owners association, filing fee refund
Additional Citations:
A.R.S. § 32-2199 et seq.
A.R.S. § 33-1258
A.A.C. R2-19-119
A.R.S. § 33-1258(A)
A.R.S. §32-2199.02(B)
A.R.S. § 32-2199.04
A.R.S. § 41-1092.09
Video Overview
Audio Overview
Decision Documents
18F-H1818033-REL Decision – 642888.pdf
Uploaded 2025-10-09T03:32:41 (74.5 KB)
18F-H1818033-REL Decision – 655537.pdf
Uploaded 2025-10-09T03:32:42 (83.3 KB)
Briefing Doc – 18F-H1818033-REL
Administrative Hearing Briefing: Cohen v. CBS 136 Homeowners Association
Executive Summary
This document synthesizes the findings and decision from the administrative hearing case Annette Cohen v. CBS 136 Homeowners Association (No. 18F-H1818033-REL). The core of the dispute was the Homeowners Association’s (HOA) failure to provide requested documents—specifically, meeting sign-in sheets—to a member, Annette Cohen, within the ten-business-day timeframe mandated by Arizona statute A.R.S. § 33-1258.
At the hearing, the Respondent HOA acknowledged this “technical violation,” attributing the delay to operational difficulties arising from a recent change in management companies. The Petitioner, Ms. Cohen, argued the delay was intentional and warranted a civil penalty.
The Administrative Law Judge, Tammy L. Eigenheer, found that the HOA did violate the statute. In the final order, the Judge declared Ms. Cohen the prevailing party and mandated future compliance by the HOA. While a civil penalty was deemed inappropriate under the circumstances, the Judge ordered the HOA to reimburse Ms. Cohen’s $500 filing fee.
Case Overview
Entity / Individual
Petitioner
Annette Cohen
Respondent
CBS 136 Homeowners Association (CBS)
Respondent’s Counsel
Brian Ditsch, Sacks Tierney P.A.
Respondent’s Mgmt. Co.
Key Witness
Susan Rubin (PRM)
Adjudicating Body
Office of Administrative Hearings, Phoenix, Arizona
Administrative Law Judge
Tammy L. Eigenheer
Case Number
18F-H1818033-REL
Hearing Date
June 6, 2018
Decision Date
June 26, 2018
Chronology of the Dispute
The dispute centered on two separate sets of document requests made by Petitioner Annette Cohen.
• Request 1 (January 10 Meeting):
◦ On or about Jan. 10, 2018: Ms. Cohen requested the sign-in sheets from the annual meeting held on this date.
◦ Jan. 2018: The management company PRM took over management of the CBS 136 HOA.
◦ Feb. 15, 2018: After more than a month, and after two scheduled review appointments were cancelled by the management company, the sign-in sheets were finally provided to Ms. Cohen by email.
• Request 2 (February 15 Meeting):
◦ Feb. 19, 2018: Ms. Cohen requested the sign-in sheets from the February 15, 2018 HOA meeting. Receipt of this request was acknowledged by PRM.
◦ Feb. 21, 26, 27 & March 5, 2018: Ms. Cohen made repeated follow-up requests for the same information.
• Formal Proceedings:
◦ March 9, 2018: Ms. Cohen filed a formal petition with the Arizona Department of Real Estate.
◦ April 10, 2018: The Respondent HOA filed an answer denying all allegations.
◦ June 6, 2018: An administrative hearing was held. The documents had been provided to Ms. Cohen at some point prior to this hearing.
◦ June 26, 2018: The Administrative Law Judge issued the final decision.
Core Allegation and Legal Framework
Petitioner’s Allegation
Annette Cohen alleged that the CBS 136 Homeowners Association violated A.R.S. Title 33, Chapter 16, Section 33-1258 by failing to provide association records for review and copying within the statutorily required timeframe.
Governing Statute: A.R.S. § 33-1258(A)
The legal basis for the petition is Arizona Revised Statute § 33-1258(A), which governs a member’s right to access association records. The statute states, in relevant part:
“all financial and other records of the association shall be made reasonably available for examination by any member… The association shall have ten business days to fulfill a request for examination. On request for purchase of copies of records by any member… the association shall have ten business days to provide copies of the requested records. An association may charge a fee for making copies of not more than fifteen cents per page.”
The petitioner bears the burden of proving a violation by a preponderance of the evidence, defined as evidence that “shows that the fact sought to be proved is more probable than not.”
Arguments and Evidence Presented at Hearing
Once the Respondent acknowledged the delay, the hearing focused solely on determining the appropriate remedy.
Petitioner’s Position (Annette Cohen)
• Intentional Negligence: Ms. Cohen argued that the Respondent “intentionally ignored her request for the documents.”
• Request for Penalty: Based on the belief of intentional neglect, she asserted that a civil penalty was an appropriate remedy.
• Unreasonable Delay: She noted that the documents “could have easily been emailed to her within the 10 day deadline,” but that the HOA’s management company did not present this as an option until after the deadline had already passed.
Respondent’s Position (CBS 136 HOA)
• Acknowledged Violation: At the June 6, 2018 hearing, the Respondent “acknowledged that the requested documents were not provided within the 10 day timeframe set forth in statute.”
• Mitigating Circumstances: The defense centered on testimony from Susan Rubin of the management company, PRM. Ms. Rubin testified to the following:
◦ No requests are “ever purposefully ignored.”
◦ PRM had only taken over management of the HOA in January 2018.
◦ At the time of the requests, PRM was “still getting documents from the former management company.”
◦ The delay was not due to ignoring the request, but because it “took a little longer than expected to provide the documents.”
Administrative Law Judge’s Decision and Order
Findings and Conclusions
• Violation Established: The Judge concluded there was “no dispute that Respondent failed to provide the requested documents within 10 days.” Therefore, the Petitioner “established by a preponderance of the evidence that Respondent violated A.R.S. § 33-1258(A).”
• Rejection of Civil Penalty: Despite the Petitioner’s argument, the Administrative Law Judge did “not find such a penalty to be appropriate given the circumstances in this matter.”
Final Order
The Judge issued a three-part order binding on the parties:
1. Prevailing Party: The Petitioner, Annette Cohen, is “deemed the prevailing party.”
2. Future Compliance: The Respondent, CBS 136 Homeowners Association, is ordered to “comply with the applicable provisions of A.R.S. § 33-1258(A) in the future.”
3. Reimbursement of Filing Fee: The Respondent must pay the Petitioner her filing fee of $500.00 directly to her within thirty (30) days of the order.
Study Guide – 18F-H1818033-REL
Study Guide: Cohen v. CBS 136 Homeowners Association
Short-Answer Quiz
Instructions: Please answer the following ten questions in 2-3 complete sentences, using only the information provided in the case documents.
1. Who were the primary parties involved in case No. 18F-H1818033-REL, and what were their respective roles?
2. What specific documents did the Petitioner, Annette Cohen, request from the Respondent?
3. According to the petition, what was the core legal violation alleged by Ms. Cohen against the Homeowners Association?
4. What was the timeline for the Respondent’s failure to produce the sign-in sheets from the January 10, 2018 meeting?
5. How did the Respondent initially respond to the petition after it was filed with the Arizona Department of Real Estate?
6. What admission did the Respondent make at the June 6, 2018 hearing?
7. What was the Respondent’s explanation for the delay in providing the requested documents to the Petitioner?
8. What remedy did the Petitioner argue was appropriate for the violation, and on what grounds?
9. What legal standard of proof was the Petitioner required to meet, and did the judge find that she met it?
10. What were the three components of the final Order issued by the Administrative Law Judge?
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Answer Key
1. The primary parties were Annette Cohen, who was the Petitioner, and the CBS 136 Homeowners Association, which was the Respondent. The Petitioner is the party who filed the complaint, and the Respondent is the party against whom the complaint was filed.
2. The Petitioner requested the sign-in sheets from two separate meetings. She requested the sign-in sheets from the January 10, 2018 annual meeting and the sign-in sheets from the February 15, 2018 CBS HOA meeting.
3. The core legal violation alleged by Ms. Cohen was that the Respondent had violated Arizona Revised Statutes (A.R.S.) Title 33, Chapter 16, Section 33-1258. This statute requires homeowner associations to provide requested records to members for examination or copying within a ten-business-day timeframe.
4. Ms. Cohen requested the January 10, 2018 sign-in sheets on or about that same date (January 10). She did not receive them via email until February 15, 2018, which is well beyond the ten-business-day limit stipulated by law.
5. On or about April 10, 2018, the Respondent filed an answer to the petition. In this official response, the Respondent denied all of the allegations made by the Petitioner.
6. At the June 6, 2018 hearing, the Respondent acknowledged its failure to comply with the law. The Respondent admitted that the requested documents were not provided within the 10-day timeframe set forth in the statute, constituting a technical violation.
7. The Respondent, through the testimony of Susan Rubin from its management company PRM, explained the delay was not intentional. Ms. Rubin stated that PRM had just taken over management of the HOA in January 2018 and was still in the process of getting documents from the former management company.
8. The Petitioner argued that a civil penalty was the appropriate remedy. She contended that the Respondent intentionally ignored her requests and could have easily emailed the documents within the deadline, but failed to do so until after the deadline had passed.
9. The Petitioner had the burden of proving her case by a “preponderance of the evidence.” The judge found that she successfully met this standard because there was no dispute that the Respondent failed to provide the documents within the required 10 days.
10. The three components of the final Order were: 1) The Petitioner, Annette Cohen, was deemed the prevailing party; 2) The Respondent was ordered to comply with A.R.S. § 33-1258(A) in the future; and 3) The Respondent was ordered to pay the Petitioner’s $500.00 filing fee within thirty days.
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Essay Questions
Instructions: The following questions are designed for longer, essay-format responses. Use the provided case documents to formulate a comprehensive analysis.
1. Analyze the arguments presented by both the Petitioner and the Respondent regarding the appropriate remedy for the acknowledged statutory violation. Evaluate the mitigating circumstances offered by the Respondent and discuss why the Administrative Law Judge may have found them persuasive enough to deny a civil penalty while still finding in favor of the Petitioner.
2. Discuss the legal framework governing disputes between property owners and condominium associations in Arizona as outlined in the case documents. Explain the roles of the Arizona Department of Real Estate and the Office of Administrative Hearings, and detail the specific requirements of A.R.S. § 33-1258(A).
3. Examine the concept of “preponderance of the evidence” as defined in the judge’s decision. Explain how the Petitioner successfully met this burden of proof, particularly in light of the Respondent’s initial denial of all allegations versus its later admission at the hearing.
4. Deconstruct the final Order issued by Judge Tammy L. Eigenheer. What were the three distinct parts of the Order, and what legal and practical purpose did each part serve in resolving the dispute, compensating the Petitioner, and ensuring future compliance by the Respondent?
5. Trace the procedural history of this case, creating a timeline of key events from Ms. Cohen’s first document request to the issuance of the final Order. Discuss the significance of each step, including the multiple requests, the petition filing, the Respondent’s answer, the hearing, and the final decision.
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Glossary of Key Terms
Definition
Administrative Law Judge
The official, in this case Tammy L. Eigenheer, who presides over hearings at the Office of Administrative Hearings and issues a decision.
A.R.S. § 33-1258(A)
The specific section of Arizona Revised Statutes cited in the case. It mandates that a homeowners association must make records available for member examination within ten business days and may charge up to fifteen cents per page for copies.
Burden of Proof
The obligation on a party in a legal proceeding to prove their assertions. In this case, the Petitioner bore the burden of proving the Respondent violated the statute.
CBS 136 Homeowners Association
The Respondent in the case; an association of condominium owners located in Sun City West, Arizona.
Department
The Arizona Department of Real Estate, the state agency with jurisdiction to hear disputes between property owners and condominium owners associations.
Findings of Fact
The section of the decision that outlines the factual history and evidence presented in the case, as determined by the judge.
Office of Administrative Hearings
The state office where the formal hearing on the petition was conducted.
Petitioner
The party who initiates a legal action by filing a petition. In this case, the Petitioner was Annette Cohen.
Preponderance of the Evidence
The standard of proof required for the Petitioner to win the case. It is defined as evidence that is more convincing and shows that the fact sought to be proved is “more probable than not.”
The management company that took over management of the CBS 136 Homeowners Association in January 2018.
Respondent
The party against whom a petition is filed. In this case, the Respondent was the CBS 136 Homeowners Association.
Technical Violation
An acknowledged infringement of a rule or statute where the substance of the rule may not have been maliciously violated. The Respondent admitted to a technical violation of the 10-day timeframe for document production.
Blog Post – 18F-H1818033-REL
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18F-H1818033-REL
2 sources
Both documents are identical excerpts from an Administrative Law Judge Decision from the Arizona Office of Administrative Hearings, concerning a dispute between Annette Cohen (Petitioner) and the CBS 136 Homeowners Association (Respondent). The case, No. 18F-H1818033-REL, addressed the Petitioner’s claim that the Respondent violated A.R.S. § 33-1258(A) by failing to provide requested association meeting sign-in sheets within the mandated ten-day period. Though the Respondent acknowledged a technical violation of the statute, the Administrative Law Judge determined that a civil penalty was not appropriate given the circumstances, such as the change in management. Ultimately, the Petitioner was deemed the prevailing party, and the Respondent was ordered to comply with the statute in the future and reimburse the Petitioner’s $500.00 filing fee.
Based on 2 sources
Case Participants
Petitioner Side
Annette Cohen(petitioner) Appeared on her own behalf
Respondent Side
Brian Ditsch(respondent attorney) Sacks Tierney P.A.
Susan Rubin(witness) PRM (management company) Testified for Respondent
Neutral Parties
Tammy L. Eigenheer(ALJ) Office of Administrative Hearings
Judy Lowe(commissioner) Arizona Department of Real Estate Recipient of decision notice
Other Participants
Felicia Del Sol(clerical staff) Transmitted the decision
Camelback Country Club Estates I & II Homeowners Association
Counsel
Diana J. Elston, J. Gary Linder
Alleged Violations
CC&Rs Section 12
Outcome Summary
The Administrative Law Judge denied the petition related to landscaping (18F-H1818030-REL), but deemed Petitioner the prevailing party and ordered the refund of the $500 filing fee regarding the petition concerning the additional mailbox (18F-H1818031-REL) because the HOA improperly based the fine on CC&R Section 12.
Why this result: Petitioner failed to prove the olive tree was alive, and a dead tree could be reasonably considered a violation of CC&R Section 28 requiring neatly trimmed/properly cultivated plantings (Case 18F-H1818030-REL).
Key Issues & Findings
Improper fine regarding additional freestanding mailbox
Petitioner challenged fines for an additional mailbox lacking architectural approval. The ALJ found that CC&R Section 12 (related to 'building') could not be applied to a mailbox, rendering the fine imposed under that section a violation by the Respondent. Petitioner was deemed the prevailing party in this docket number (18F-H1818031-REL).
Orders: Respondent ordered to pay Petitioner $500.00 filing fee refund within thirty days.
Briefing Document: Holyoak v. Camelback Country Club Estates HOA
Executive Summary
This briefing document synthesizes the findings and conclusions from an Administrative Law Judge Decision concerning two consolidated petitions filed by homeowner Jon Paul Holyoak against the Camelback Country Club Estates I & II Homeowners Association (HOA). The disputes centered on HOA-issued violations for landscaping maintenance and the presence of a freestanding mailbox.
The final judgment produced a split decision. The Petitioner, Mr. Holyoak, failed to prove the HOA acted improperly in the landscaping case and his petition was denied. However, he was deemed the prevailing party in the mailbox case, with the judge concluding the HOA had violated its own community documents (CC&Rs) by imposing a fine based on an inapplicable section. As the prevailing party in one of the two matters, Mr. Holyoak was awarded his $500 filing fee, to be paid by the HOA. The initial decision document required two subsequent nunc pro tunc orders to correct typographical errors.
Key Takeaways:
• Landscaping Petition (Denied): Mr. Holyoak was cited for failing to remove a “dead” olive tree. He argued the tree was merely “in distress.” The judge ruled that a reasonable person would consider the tree dead and that Mr. Holyoak failed to provide sufficient evidence to the contrary. A dead tree was found to be a potential violation of CC&R Section 28, which requires plantings to be “neatly trimmed” and “properly cultivated.”
• Mailbox Petition (Upheld): Mr. Holyoak was cited for an “additional mailbox” that was present when he purchased the property in 2012. The judge found the HOA’s enforcement problematic for two primary reasons:
1. The HOA cited three different CC&R sections across multiple notices.
2. The fine was ultimately based on Section 12, which pertains to “buildings” and was deemed inapplicable to a mailbox.
• Final Order: The HOA was ordered to pay the Petitioner’s $500 filing fee. The decision is binding on the parties.
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Case Overview
The matter involves two petitions filed on February 2, 2018, by Petitioner Jon Paul Holyoak with the Arizona Department of Real Estate against the Respondent, Camelback Country Club Estates I & II Homeowners Association. The petitions alleged that the HOA had improperly cited Mr. Holyoak for violations of the community’s Conditions, Covenants, and Restrictions (CC&Rs). The two cases were consolidated for a single hearing.
This petition alleged that the HOA improperly cited Mr. Holyoak for violating Section 28 of the CC&Rs, which governs landscape maintenance.
HOA Actions and Timeline
The HOA, through its inspection team Associa Arizona, issued a series of notices regarding the landscaping on Mr. Holyoak’s property.
Notice Type
Description
Oct 17, 2017
Courtesy Notice
“Please remove the dead foliage on your lot.”
Dec 13, 2017
Courtesy Notice
“Please remove the dead olive tree in the front yard.”
Dec 13, 2017
Courtesy Notice
“There are several other trees that need to be removed as they have dead branches including the cassia…”
Jan 25, 2018
Notice of Violation
“2nd notice…There are several other trees that need to be removed as they have dead branches…” (Included photo of backyard).
Arguments Presented
• Petitioner’s Position (Holyoak):
◦ The olive tree in the front yard was not “dead” but rather “in distress,” and he was actively trying to nurse it back to health. He eventually had the tree removed on April 25, 2018, after months of effort.
◦ Regarding the backyard photo attached to the fine notice, he argued that the olive tree visible was healthy and that no dead trees were depicted.
◦ He requested that the fine be abated.
• Respondent’s Position (HOA):
◦ Board member Terry Rogers testified that the front yard olive tree had no leaves, appeared dead from the roadway, and was therefore not “properly trimmed” as required.
◦ He stated the backyard notice referred to a eucalyptus tree with several dead branches visible from the sidewalk bordering the property.
Administrative Law Judge’s Findings and Conclusion
The judge ruled in favor of the HOA in this matter.
• Burden of Proof: The Petitioner failed to present sufficient evidence, beyond “his self-serving statements,” that the olive tree was alive.
• Reasonable Interpretation: The judge concluded that “Any reasonable person viewing the olive tree, as depicted in the photographs presented, would understand the tree to be dead.”
• Violation of CC&Rs: A dead tree could reasonably be considered as not being “neatly trimmed” or “properly cultivated” in accordance with Section 28.
• Verdict: The Petitioner’s petition was denied. The judge found that the HOA had not improperly fined him for the landscaping violation.
This petition alleged that the HOA improperly cited Mr. Holyoak for having an “additional mailbox” in violation of the CC&Rs.
HOA Actions and Timeline
The HOA’s notices for the mailbox cited three different sections of the CC&Rs over time.
Notice Type
Description
CC&R Section Cited
Oct 17, 2017
Courtesy Notice
“Please remove the additional mailbox on your lot.”
Section 27
Dec 14, 2017
Courtesy Notice
“…there is an additional mailbox on your lot. In research of our files, there is no architectural application on file for the modification.”
Section 12
Jan 25, 2018
Notice of Violation
“2nd notice…Please remove the mailbox or provide the approved architectural application.” (Mailbox was painted bright pink and yellow at this time).
Section 12
Jan 25, 2018¹
Notice of Violation
“3rd notice…Please remove the mailbox or provide the approved architectural application.”
Section 8
¹The decision document states this notice was sent on January 25, 2018, but references a violation noted on March 15, 2018. The judge’s conclusions later clarify a notice referencing Section 8 was issued April 11, 2018, and was not properly before the tribunal.
Arguments Presented
• Petitioner’s Position (Holyoak):
◦ The freestanding mailbox was already in place when he purchased the home in 2012.
◦ At the time of purchase, he received a statement that there were no known covenant violations on the property.
◦ He argued the mailbox is required by the United States Postal Service (USPS), which no longer provides walking delivery and requires mailboxes to be reachable from a vehicle. The home’s other mailbox, built into a monument, is approximately 15 feet from the curb.
◦ A USPS mail carrier had confirmed this delivery requirement.
• Respondent’s Position (HOA):
◦ Board member Terry Rogers testified that the USPS mail carrier told him he would prefer to deliver to the permanent monument mailbox because the freestanding one was not secure.
◦ The mailbox had become an “eyesore,” as it was faded, peeling, and “listing to one side.”
◦ Of the 61 homes in the community, only three have freestanding mailboxes, and the Petitioner is the only one with two mailboxes.
Administrative Law Judge’s Findings and Conclusion
The judge ruled in favor of the Petitioner in this matter.
• Inconsistent Enforcement: The judge found it “problematic” that the HOA relied on three different sections of the CC&Rs in its notices.
• Pre-existing Structure: The Petitioner established that the mailbox was present at the time of his 2012 home purchase and that he was told of no existing violations. Therefore, the HOA’s argument regarding the lack of an architectural approval was “without merit.”
• Inapplicable CC&R Section: The fine was imposed based on Section 12 of the CC&Rs. The judge determined the plain language of this section relates to a “building” and “cannot be read to apply to Petitioner’s mailbox.”
• Violation by HOA: By imposing a fine based on an inapplicable section, the HOA was in violation of the CC&Rs.
• Verdict: The Petitioner was deemed the prevailing party. The judge noted that the HOA could potentially impose fines for failure to maintain the mailbox or for painting it without approval, but those specific violations were not before the court.
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Final Order and Subsequent Corrections
• Order of May 25, 2018:
1. Petitioner’s petition in Case Number 18F-H1818030-REL (Landscaping) is denied.
2. Petitioner is deemed the prevailing party in Case Number 18F-H1818031-REL (Mailbox).
3. Respondent (HOA) is ordered to pay Petitioner his $500.00 filing fee within thirty days.
• Order Nunc Pro Tunc of May 30, 2018:
◦ This order corrected a typographical error in the original decision. The original text mistakenly stated the petition for the mailbox case (31-REL) was denied.
◦ Correction: The denial was correctly applied to the landscaping case: “it is ORDERED that Petitioner’s petition in Case Number 18F-H1818031-REL 18F-H1818030-REL is denied.”
• Order Nunc Pro Tunc of May 31, 2018:
◦ This order corrected a typographical error in the May 30 order, which had misstated the date of the original decision.
◦ Correction: “On April 26 May 25, 2018, the Administrative Law Judge issued the Administrative Law Judge Decision…”
——————————————————————————–
Key CC&R Sections Cited
• Section 8 (Architectural Control): Requires written approval from the Committee before any “building or other structure” is erected, altered, or repaired. This includes exterior finish, color, and architectural style.
• Section 12 (Buildings): States that “No building may be erected or maintained upon any Lot except one single family dwelling with private appurtenant garage and customary outbuildings” without prior written approval.
• Section 27 (Maintenance): Prohibits any building or structure from falling into disrepair and requires owners to keep them in good condition and adequately painted.
• Section 28 (Landscaping): Requires the owner of each lot to “at all times keep shrubs, trees, grass and plantings of every kind, on his lot mostly trimmed, properly cultivated, and free of trash, weeds and other unsightly material.”
Camelback Country Club Estates I & II Homeowners Association
Counsel
Diana J. Elston, J. Gary Linder
Alleged Violations
CC&Rs Section 12
Outcome Summary
The Administrative Law Judge denied the petition related to landscaping (18F-H1818030-REL), but deemed Petitioner the prevailing party and ordered the refund of the $500 filing fee regarding the petition concerning the additional mailbox (18F-H1818031-REL) because the HOA improperly based the fine on CC&R Section 12.
Why this result: Petitioner failed to prove the olive tree was alive, and a dead tree could be reasonably considered a violation of CC&R Section 28 requiring neatly trimmed/properly cultivated plantings (Case 18F-H1818030-REL).
Key Issues & Findings
Improper fine regarding additional freestanding mailbox
Petitioner challenged fines for an additional mailbox lacking architectural approval. The ALJ found that CC&R Section 12 (related to 'building') could not be applied to a mailbox, rendering the fine imposed under that section a violation by the Respondent. Petitioner was deemed the prevailing party in this docket number (18F-H1818031-REL).
Orders: Respondent ordered to pay Petitioner $500.00 filing fee refund within thirty days.
Briefing Document: Holyoak v. Camelback Country Club Estates HOA
Executive Summary
This briefing document synthesizes the findings and conclusions from an Administrative Law Judge Decision concerning two consolidated petitions filed by homeowner Jon Paul Holyoak against the Camelback Country Club Estates I & II Homeowners Association (HOA). The disputes centered on HOA-issued violations for landscaping maintenance and the presence of a freestanding mailbox.
The final judgment produced a split decision. The Petitioner, Mr. Holyoak, failed to prove the HOA acted improperly in the landscaping case and his petition was denied. However, he was deemed the prevailing party in the mailbox case, with the judge concluding the HOA had violated its own community documents (CC&Rs) by imposing a fine based on an inapplicable section. As the prevailing party in one of the two matters, Mr. Holyoak was awarded his $500 filing fee, to be paid by the HOA. The initial decision document required two subsequent nunc pro tunc orders to correct typographical errors.
Key Takeaways:
• Landscaping Petition (Denied): Mr. Holyoak was cited for failing to remove a “dead” olive tree. He argued the tree was merely “in distress.” The judge ruled that a reasonable person would consider the tree dead and that Mr. Holyoak failed to provide sufficient evidence to the contrary. A dead tree was found to be a potential violation of CC&R Section 28, which requires plantings to be “neatly trimmed” and “properly cultivated.”
• Mailbox Petition (Upheld): Mr. Holyoak was cited for an “additional mailbox” that was present when he purchased the property in 2012. The judge found the HOA’s enforcement problematic for two primary reasons:
1. The HOA cited three different CC&R sections across multiple notices.
2. The fine was ultimately based on Section 12, which pertains to “buildings” and was deemed inapplicable to a mailbox.
• Final Order: The HOA was ordered to pay the Petitioner’s $500 filing fee. The decision is binding on the parties.
——————————————————————————–
Case Overview
The matter involves two petitions filed on February 2, 2018, by Petitioner Jon Paul Holyoak with the Arizona Department of Real Estate against the Respondent, Camelback Country Club Estates I & II Homeowners Association. The petitions alleged that the HOA had improperly cited Mr. Holyoak for violations of the community’s Conditions, Covenants, and Restrictions (CC&Rs). The two cases were consolidated for a single hearing.
This petition alleged that the HOA improperly cited Mr. Holyoak for violating Section 28 of the CC&Rs, which governs landscape maintenance.
HOA Actions and Timeline
The HOA, through its inspection team Associa Arizona, issued a series of notices regarding the landscaping on Mr. Holyoak’s property.
Notice Type
Description
Oct 17, 2017
Courtesy Notice
“Please remove the dead foliage on your lot.”
Dec 13, 2017
Courtesy Notice
“Please remove the dead olive tree in the front yard.”
Dec 13, 2017
Courtesy Notice
“There are several other trees that need to be removed as they have dead branches including the cassia…”
Jan 25, 2018
Notice of Violation
“2nd notice…There are several other trees that need to be removed as they have dead branches…” (Included photo of backyard).
Arguments Presented
• Petitioner’s Position (Holyoak):
◦ The olive tree in the front yard was not “dead” but rather “in distress,” and he was actively trying to nurse it back to health. He eventually had the tree removed on April 25, 2018, after months of effort.
◦ Regarding the backyard photo attached to the fine notice, he argued that the olive tree visible was healthy and that no dead trees were depicted.
◦ He requested that the fine be abated.
• Respondent’s Position (HOA):
◦ Board member Terry Rogers testified that the front yard olive tree had no leaves, appeared dead from the roadway, and was therefore not “properly trimmed” as required.
◦ He stated the backyard notice referred to a eucalyptus tree with several dead branches visible from the sidewalk bordering the property.
Administrative Law Judge’s Findings and Conclusion
The judge ruled in favor of the HOA in this matter.
• Burden of Proof: The Petitioner failed to present sufficient evidence, beyond “his self-serving statements,” that the olive tree was alive.
• Reasonable Interpretation: The judge concluded that “Any reasonable person viewing the olive tree, as depicted in the photographs presented, would understand the tree to be dead.”
• Violation of CC&Rs: A dead tree could reasonably be considered as not being “neatly trimmed” or “properly cultivated” in accordance with Section 28.
• Verdict: The Petitioner’s petition was denied. The judge found that the HOA had not improperly fined him for the landscaping violation.
This petition alleged that the HOA improperly cited Mr. Holyoak for having an “additional mailbox” in violation of the CC&Rs.
HOA Actions and Timeline
The HOA’s notices for the mailbox cited three different sections of the CC&Rs over time.
Notice Type
Description
CC&R Section Cited
Oct 17, 2017
Courtesy Notice
“Please remove the additional mailbox on your lot.”
Section 27
Dec 14, 2017
Courtesy Notice
“…there is an additional mailbox on your lot. In research of our files, there is no architectural application on file for the modification.”
Section 12
Jan 25, 2018
Notice of Violation
“2nd notice…Please remove the mailbox or provide the approved architectural application.” (Mailbox was painted bright pink and yellow at this time).
Section 12
Jan 25, 2018¹
Notice of Violation
“3rd notice…Please remove the mailbox or provide the approved architectural application.”
Section 8
¹The decision document states this notice was sent on January 25, 2018, but references a violation noted on March 15, 2018. The judge’s conclusions later clarify a notice referencing Section 8 was issued April 11, 2018, and was not properly before the tribunal.
Arguments Presented
• Petitioner’s Position (Holyoak):
◦ The freestanding mailbox was already in place when he purchased the home in 2012.
◦ At the time of purchase, he received a statement that there were no known covenant violations on the property.
◦ He argued the mailbox is required by the United States Postal Service (USPS), which no longer provides walking delivery and requires mailboxes to be reachable from a vehicle. The home’s other mailbox, built into a monument, is approximately 15 feet from the curb.
◦ A USPS mail carrier had confirmed this delivery requirement.
• Respondent’s Position (HOA):
◦ Board member Terry Rogers testified that the USPS mail carrier told him he would prefer to deliver to the permanent monument mailbox because the freestanding one was not secure.
◦ The mailbox had become an “eyesore,” as it was faded, peeling, and “listing to one side.”
◦ Of the 61 homes in the community, only three have freestanding mailboxes, and the Petitioner is the only one with two mailboxes.
Administrative Law Judge’s Findings and Conclusion
The judge ruled in favor of the Petitioner in this matter.
• Inconsistent Enforcement: The judge found it “problematic” that the HOA relied on three different sections of the CC&Rs in its notices.
• Pre-existing Structure: The Petitioner established that the mailbox was present at the time of his 2012 home purchase and that he was told of no existing violations. Therefore, the HOA’s argument regarding the lack of an architectural approval was “without merit.”
• Inapplicable CC&R Section: The fine was imposed based on Section 12 of the CC&Rs. The judge determined the plain language of this section relates to a “building” and “cannot be read to apply to Petitioner’s mailbox.”
• Violation by HOA: By imposing a fine based on an inapplicable section, the HOA was in violation of the CC&Rs.
• Verdict: The Petitioner was deemed the prevailing party. The judge noted that the HOA could potentially impose fines for failure to maintain the mailbox or for painting it without approval, but those specific violations were not before the court.
——————————————————————————–
Final Order and Subsequent Corrections
• Order of May 25, 2018:
1. Petitioner’s petition in Case Number 18F-H1818030-REL (Landscaping) is denied.
2. Petitioner is deemed the prevailing party in Case Number 18F-H1818031-REL (Mailbox).
3. Respondent (HOA) is ordered to pay Petitioner his $500.00 filing fee within thirty days.
• Order Nunc Pro Tunc of May 30, 2018:
◦ This order corrected a typographical error in the original decision. The original text mistakenly stated the petition for the mailbox case (31-REL) was denied.
◦ Correction: The denial was correctly applied to the landscaping case: “it is ORDERED that Petitioner’s petition in Case Number 18F-H1818031-REL 18F-H1818030-REL is denied.”
• Order Nunc Pro Tunc of May 31, 2018:
◦ This order corrected a typographical error in the May 30 order, which had misstated the date of the original decision.
◦ Correction: “On April 26 May 25, 2018, the Administrative Law Judge issued the Administrative Law Judge Decision…”
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Key CC&R Sections Cited
• Section 8 (Architectural Control): Requires written approval from the Committee before any “building or other structure” is erected, altered, or repaired. This includes exterior finish, color, and architectural style.
• Section 12 (Buildings): States that “No building may be erected or maintained upon any Lot except one single family dwelling with private appurtenant garage and customary outbuildings” without prior written approval.
• Section 27 (Maintenance): Prohibits any building or structure from falling into disrepair and requires owners to keep them in good condition and adequately painted.
• Section 28 (Landscaping): Requires the owner of each lot to “at all times keep shrubs, trees, grass and plantings of every kind, on his lot mostly trimmed, properly cultivated, and free of trash, weeds and other unsightly material.”
Study Guide – 18F-H1818030-REL
Study Guide: Holyoak v. Camelback Country Club Estates I & II HOA
This guide provides a comprehensive review of the administrative hearing case between petitioner Jon Paul Holyoak and the respondent, Camelback Country Club Estates I & II Homeowners Association. It covers the core disputes, arguments, legal interpretations, and the final decision rendered by the Administrative Law Judge.
Short-Answer Quiz
Instructions: Answer the following questions in 2-3 sentences based on the information provided in the case documents.
1. Who were the primary parties in this administrative case, and what were their roles?
2. What were the two distinct case numbers, and what violation did each one address?
3. According to Section 28 of the CC&Rs, what is the responsibility of a lot owner regarding landscaping?
4. What was the petitioner’s primary defense regarding the citation for a “dead” olive tree in his front yard?
5. What was the respondent’s argument for why the olive tree was a violation of the CC&Rs?
6. What key fact did the petitioner establish regarding the freestanding mailbox that was central to the judge’s decision in that matter?
7. Why did the Administrative Law Judge find the respondent’s enforcement actions regarding the mailbox to be “problematic”?
8. On what grounds did the Administrative Law Judge rule that the respondent violated the CC&Rs by fining the petitioner for the mailbox under Section 12?
9. What was the final outcome and financial penalty ordered in the consolidated cases?
10. What is an “Order Nunc Pro Tunc,” and why were two such orders issued after the initial decision?
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Answer Key
1. The primary parties were Jon Paul Holyoak, the homeowner, who acted as the Petitioner. The Respondent was the Camelback Country Club Estates I & II Homeowners Association, which was represented by Gary Linder and Diana Elston.
2. The first case, No. 18F-H1818030-REL, addressed alleged landscaping violations under Section 28 of the CC&Rs concerning dead trees and foliage. The second case, No. 18F-H1818031-REL, addressed an alleged violation for an additional freestanding mailbox, primarily under Section 12 of the CC&Rs.
3. Section 28 of the CC&Rs requires that the owner of each lot shall at all times keep shrubs, trees, grass, and plantings neatly trimmed, properly cultivated, and free of trash, weeds, and other unsightly material.
4. The petitioner testified that the olive tree was not “dead” but was “in distress,” and that he and his landscaper were actively trying to nurse it back to health. He argued he should not be forced to remove a tree with dead branches while attempting to save it.
5. The respondent’s board member, Terry Rogers, testified that the olive tree had no leaves and appeared dead from the roadway. He contended that a dead tree could not be considered “properly trimmed” as required by the CC&Rs.
6. The petitioner established by a preponderance of the evidence that the freestanding mailbox was already in place when he purchased the property in 2012. Furthermore, at the time of purchase, he was notified that there were no known covenant violations on the property.
7. The Judge found the respondent’s actions problematic because, over the course of four notices sent to the petitioner about the mailbox, the respondent relied on three different sections of the CC&Rs (Sections 27, 12, and 8). This inconsistency weakened the respondent’s position.
8. The Judge ruled that the plain language of Section 12 of the CC&Rs relates to a “building,” such as a single-family dwelling or garage. The Judge concluded that a mailbox cannot be considered a “building” under this section, making the fine imposed under this rule a violation of the CC&Rs by the respondent.
9. The petitioner’s petition regarding landscaping (18F-H1818030-REL) was denied. However, the petitioner was deemed the prevailing party in the mailbox case (18F-H1818031-REL), and the respondent was ordered to pay the petitioner’s $500.00 filing fee.
10. “Nunc Pro Tunc” is a legal term for an order that corrects a clerical error in a prior court decision, with the correction being retroactive. The first order corrected the case number in the final ruling, and the second order corrected a date referenced in the first corrective order.
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Essay Questions
Instructions: Consider the following questions. Formulate a detailed response that synthesizes facts and arguments from the case documents to support your position.
1. Explain the concept of “preponderance of the evidence” as defined in the decision and analyze how the petitioner met this burden of proof in the mailbox case but failed to meet it in the landscaping case.
2. Discuss the legal significance of the HOA’s inconsistent application of its CC&Rs in the mailbox dispute. Why did citing three different sections (27, 12, and 8) undermine the HOA’s case?
3. Analyze the Administrative Law Judge’s interpretation of Section 12 of the CC&Rs. How does the “plain language” of the rule factor into the decision that a mailbox is not a “building”?
4. Examine the arguments presented by both parties regarding the freestanding mailbox, including the conflicting accounts of conversations with the USPS mail carrier. Evaluate the strengths and weaknesses of each party’s position.
5. The Judge noted that while the fine under Section 12 was improper, the HOA could potentially impose fines for failure to maintain the mailbox or for painting it without approval. Based on the facts presented, construct a hypothetical argument the HOA could have made that might have been successful.
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Glossary of Key Terms
Definition
To reduce or remove. In the context of the hearing, the Petitioner asked that the fines be abated, meaning he requested they be cancelled or removed.
Administrative Law Judge (ALJ)
An official who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions, similar to a judge in a court of law. In this case, the ALJ was Tammy L. Eigenheer.
Conditions, Covenants, and Restrictions (CC&Rs)
The governing legal documents that set forth the rules and regulations for a planned community or subdivision. The petitioner and respondent both based their arguments on interpretations of these documents.
Conclusions of Law
The section of a legal decision where the judge applies legal principles and rules (like the CC&Rs and state statutes) to the facts of the case to reach a final judgment.
Findings of Fact
The section of a legal decision that establishes the factual record of the case based on the evidence and testimony presented during the hearing.
Jurisdiction
The official power to make legal decisions and judgments. The Arizona Department of Real Estate was determined to have jurisdiction to hear disputes between a property owner and a homeowners association.
Nunc Pro Tunc
A Latin phrase meaning “now for then.” It refers to a legal order that corrects a clerical error in a previous order, making the correction retroactive to the original date of the decision.
Petitioner
The party who initiates a lawsuit or files a petition seeking a legal remedy. In this case, Jon Paul Holyoak was the Petitioner.
Preponderance of the Evidence
The standard of proof in most civil cases. It means the greater weight of the evidence shows that a fact is more likely than not to be true. The Petitioner bore this burden of proof.
Prevailing Party
The party in a lawsuit who is found to have won the legal dispute. In case 18F-H1818031-REL, the Petitioner was deemed the prevailing party, which entitled him to have his filing fee reimbursed.
Respondent
The party against whom a petition is filed; the defending party. In this case, the Camelback Country Club Estates I & II Homeowners Association was the Respondent.
Blog Post – 18F-H1818030-REL
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18F-H1818030-REL
3 sources
The sources document an Administrative Law Judge Decision concerning a dispute between Jon Paul Holyoak (Petitioner) and the Camelback Country Club Estates I & II Homeowners Association (Respondent), along with subsequent orders correcting clerical errors. The initial decision addresses two consolidated petitions: one regarding landscaping violations (dead trees) under CC&R Section 28, and a second concerning a disputed mailbox under various CC&R sections, particularly Section 12. While the Petitioner failed to prove the association improperly fined him for the dead tree, the judge determined the association was in violation of the CC&Rs for improperly citing Section 12 for the mailbox issue, leading the Petitioner to be deemed the prevailing party in the mailbox case and awarded his $500 filing fee. The subsequent documents, titled Order Nunc Pro Tunc, are procedural corrections to typographical errors found in the original decision’s text and date.
Based on 3 sources
Case Participants
Petitioner Side
John Paul Holyoak(petitioner) Also appears as 'Jon Paul Holyoak'
Respondent Side
Terry Rogers(board member) Camelback Country Club Estates I & II HOA Testified at hearing
Gary Linder(attorney) Jones, Skelton & Hochuli, P.L.C. Also listed as 'J. Gary Linder'
Diana J. Elston(attorney) Jones, Skelton & Hochuli, P.L.C.
Neutral Parties
Tammy L. Eigenheer(ALJ)
Judy Lowe(commissioner) Arizona Department of Real Estate (ADRE)
Felicia Del Sol(clerk) Transmitting agent
LDettorre(ADRE staff) Arizona Department of Real Estate (ADRE)
AHansen(ADRE staff) Arizona Department of Real Estate (ADRE)
djones(ADRE staff) Arizona Department of Real Estate (ADRE)
DGardner(ADRE staff) Arizona Department of Real Estate (ADRE)
ncano(ADRE staff) Arizona Department of Real Estate (ADRE)
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
18F-H1817005-REL-RHG
Agency
ADRE
Tribunal
OAH
Decision Date
2018-05-10
Administrative Law Judge
Tammy L. Eigenheer
Outcome
loss
Filing Fees Refunded
$0.00
Civil Penalties
$0.00
Parties & Counsel
Petitioner
Gary W. Moselle
Counsel
—
Respondent
Desert Mountain Master Association
Counsel
Curtis Ekmark
Alleged Violations
A.R.S. § 33-1804(A)
Outcome Summary
The ALJ denied the Petitioner's petition, concluding that the DMMA Communications committee meeting was not subject to the open meetings law because the committee did not hold 'regularly scheduled' meetings.
Why this result: Petitioner failed to prove by a preponderance of the evidence that the Respondent violated A.R.S. § 33-1804, as the committee meeting in question did not meet the definition of a 'regularly scheduled committee meeting' required to be open to members.
Key Issues & Findings
Whether the Respondent violated the open meeting statute by closing a committee meeting.
Petitioner alleged that the DMMA Communications committee meeting was improperly closed and subject to open meeting laws. The ALJ determined the committee did not hold 'regularly scheduled' meetings (defined as meetings occurring at regular intervals) and was therefore not subject to A.R.S. § 33-1804.
Orders: Petitioner’s petition is denied.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
A.R.S. § 33-1804
A.R.S. § 32-2199 et seq.
A.A.C. R2-19-119
State ex rel. Thomas v. Contes, 216 Ariz. 525, 527, 169 P.3d 115, 117 (App. 2007)
Marsoner v. Pima County, 166 Ariz. 486, 488, 803 P.2d 897, 899 (1991)
Analytics Highlights
Topics: HOA Open Meetings Law, Committee Meeting, Regularly Scheduled
Additional Citations:
A.R.S. § 33-1804
A.R.S. § 32-2199 et seq.
A.A.C. R2-19-119
State ex rel. Thomas v. Contes, 216 Ariz. 525, 527, 169 P.3d 115, 117 (App. 2007)
Marsoner v. Pima County, 166 Ariz. 486, 488, 803 P.2d 897, 899 (1991)
Briefing on the Moselle v. Desert Mountain Master Association Case
Executive Summary
This document synthesizes two Administrative Law Judge Decisions regarding a dispute between homeowner Gary W. Moselle (Petitioner) and the Desert Mountain Master Association (DMMA or Respondent). The core of the case, No. 18F-H1817005-REL, is the legal interpretation of the phrase “regularly scheduled committee meetings” as it appears in Arizona’s open meeting statute for planned communities, A.R.S. § 33-1804.
The conflict arose when the DMMA Communications Committee held a closed meeting on September 6, 2017, which Mr. Moselle was barred from attending. He contended this violated the statute’s open meeting requirements. The DMMA argued the committee was exempt because its meetings were infrequent and not held at fixed intervals.
In two separate decisions—an initial ruling on December 7, 2017, and a second after a rehearing on May 10, 2018—Administrative Law Judge Tammy L. Eigenheer consistently ruled in favor of the DMMA. The judge concluded that “regularly scheduled” applies to meetings that occur at regular, predictable intervals (e.g., monthly, quarterly). Since the Communications Committee met only four times in two years without a set schedule, it was not subject to the open meeting law. The judge determined that the statute’s general policy favoring openness does not override its more specific provisions. Ultimately, the petitioner’s petition was denied.
Case Background and Timeline
The dispute proceeded through the Arizona Department of Real Estate and the Office of Administrative Hearings, culminating in a definitive ruling after a granted rehearing.
September 1, 2017
Gary W. Moselle files a petition with the Arizona Department of Real Estate, alleging DMMA violated open meeting laws.
September 6, 2017
The DMMA Communications Committee holds a closed meeting, which Mr. Moselle is not permitted to attend.
September 18, 2017
DMMA files an answer denying all allegations.
November 17, 2017
An initial hearing is conducted before Administrative Law Judge (ALJ) Tammy L. Eigenheer.
December 7, 2017
The ALJ issues a decision denying Mr. Moselle’s petition.
January 4, 2018
Mr. Moselle files a request for rehearing, citing “newly discovered material evidence” and arguing the decision was contrary to law.
January 26, 2018
The Department of Real Estate grants the request for a rehearing.
April 20, 2018
A rehearing is conducted before the ALJ.
May 10, 2018
The ALJ issues a final decision after rehearing, again denying Mr. Moselle’s petition.
Core Legal Issue: Interpretation of A.R.S. § 33-1804
The central legal question was whether the DMMA Communications Committee was subject to the open meeting requirements mandated by Arizona Revised Statute § 33-1804. The resolution of the case hinged on the interpretation of specific language within the statute.
Relevant Statutory Provisions
• A.R.S. § 33-1804(A): “Notwithstanding any provision in the declaration, bylaws or other documents to the contrary, all meetings of the members’ association and the board of directors, and any regularly scheduled committee meetings, are open to all members of the association…”
• A.R.S. § 33-1804(F): “It is the policy of this state as reflected in this section that all meetings of a planned community… be conducted openly… Toward this end, any person or entity that is charged with the interpretation of these provisions… shall take into account this declaration of policy and shall construe any provision of this section in favor of open meetings.”
Arguments Presented by the Parties
The petitioner and respondent presented starkly different interpretations of the phrase “regularly scheduled.”
Petitioner’s Position (Gary W. Moselle)
• Definition of “Regularly Scheduled”: Mr. Moselle argued that “regularly scheduled” should be interpreted to mean a meeting scheduled in a “normal manner” or “ordinary fashion,” not necessarily one that recurs at fixed intervals.
• Primacy of Openness Policy: He emphasized the policy statement in A.R.S. § 33-1804(F), asserting that the statute’s clear preference for open meetings should guide the interpretation of any ambiguous terms.
• Arguments for Rehearing: In his request for a rehearing, Mr. Moselle cited newly discovered evidence (an email sent by the DMMA after the first hearing) and suggested the ALJ should evaluate whether the DMMA had misled the court regarding the Board’s actions on the committee’s recommendation.
Respondent’s Position (Desert Mountain Master Association)
• Definition of “Regularly Scheduled”: DMMA contended that the phrase “regularly scheduled” plainly refers to meetings that occur at regular, predictable intervals, “such as on the third Thursday of every month, quarterly, or even annually.”
• Evidence of Infrequent Meetings: As evidence, the DMMA testified that its Communications Committee met infrequently and without a fixed pattern, holding only four meetings in 2016 and 2017 (twice in April 2016, once in June 2017, and the contested meeting of September 6, 2017).
• Lack of Board Action: The DMMA further argued that a recommendation from the committee to the Board of Directors was not acted upon, which it presented as evidence that the committee was not “conducting any actual business of the Board.”
Administrative Law Judge’s Analysis and Rulings
Across both decisions, the Administrative Law Judge (ALJ) provided a consistent legal analysis that ultimately favored the respondent’s interpretation of the statute.
Initial Decision (December 7, 2017)
• The ALJ concluded that the DMMA Communications Committee does not hold “regularly scheduled meetings.”
• Based on this finding, the committee was deemed not subject to the open meetings law.
• The decision to hold a closed meeting on September 6, 2017, was therefore ruled not to be a violation of A.R.S. § 33-1804.
• The petitioner’s petition was denied.
Decision After Rehearing (May 10, 2018)
• Statutory Interpretation: The ALJ reaffirmed the conclusion that the “plain language” of A.R.S. § 33-1804(A) applies to meetings that “occur at regular intervals.” While acknowledging that “regularly scheduled” could have multiple meanings, the ALJ settled on this interpretation.
• Policy vs. Specifics: The decision explicitly states that the general policy favoring open meetings in subsection (F) “does not override the specific provisions of A.R.S. § 33-1804(A) that only ‘regularly scheduled’ committee meetings must be open to the members.”
• Petitioner’s Testimony: The ALJ noted that during the rehearing, Mr. Moselle’s own testimony on cross-examination appeared to support the court’s interpretation. When questioned about other DMMA committees, Mr. Moselle stated that five of them “meet at the request of the chair and they’re not regularly scheduled.”
• Final Ruling: The ALJ again concluded that the DMMA Communication Committee did not hold “regularly scheduled” meetings at the time of the incident and was therefore not in violation of the statute. The petition was denied for a final time.
Final Disposition
The petition filed by Gary W. Moselle against the Desert Mountain Master Association was denied. The Administrative Law Judge’s order of May 10, 2018, issued after the rehearing, was declared binding on the parties. As per the final notice, any further appeal would require a party to seek judicial review in superior court within thirty-five days of the order.
Study Guide – 18F-H1817005-REL-RHG
Study Guide: Moselle v. Desert Mountain Master Association
This guide provides a comprehensive review of the administrative case between Gary W. Moselle (Petitioner) and the Desert Mountain Master Association (Respondent) concerning Arizona’s open meetings law for planned communities. 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 two to three sentences, based on the information provided in the case documents.
1. Who were the primary parties in this case, and what were their respective roles?
2. What specific event on September 6, 2017, prompted the Petitioner to file his complaint?
3. What specific Arizona statute did the Petitioner allege the Respondent had violated?
4. What was the Respondent’s primary argument for why its Communications Committee was not subject to the open meetings law?
5. How did the Petitioner, Gary W. Moselle, interpret the key statutory phrase “regularly scheduled committee meetings”?
6. What evidence did the Respondent present regarding the frequency of the Communications Committee’s meetings in 2016 and 2017?
7. What is the “preponderance of the evidence” standard, and which party had the responsibility to meet it?
8. What was the Administrative Law Judge’s final conclusion regarding the meaning of “regularly scheduled” in the context of the statute?
9. On what grounds did the Petitioner successfully request a rehearing after the initial decision was issued on December 7, 2017?
10. How did the judge weigh the general policy statement in A.R.S. § 33-1804(F) against the specific language in A.R.S. § 33-1804(A)?
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Answer Key
1. The primary parties were Gary W. Moselle, the Petitioner, and the Desert Mountain Master Association (DMMA), the Respondent. Mr. Moselle was a homeowner who filed a petition against the DMMA, which is the homeowners association for the community.
2. The Petitioner filed his complaint after he was not allowed to attend a “closed” meeting of the DMMA Communications Committee that was held on September 6, 2017. He alleged this violated Arizona’s open meeting statute.
3. The Petitioner alleged that the Respondent had violated Arizona Revised Statute (A.R.S.) § 33-1804. This statute governs open meetings for planned communities, such as homeowners associations.
4. The Respondent argued that the Communications Committee did not meet at regular, established intervals and therefore its meetings were not “regularly scheduled” as required by the statute to be open. They also asserted that the committee’s recommendation was not acted upon by the Board, suggesting it was not conducting official business.
5. The Petitioner argued that “regularly scheduled” should be interpreted to mean a meeting that was scheduled in a normal or ordinary fashion. He asserted this interpretation was supported by the statute’s general policy favoring open meetings.
6. The Respondent provided testimony that the Communications Committee met infrequently and without a set interval, having held only four meetings in 2016 and 2017. These meetings occurred twice in April 2016, once in June 2017, and on September 6, 2017.
7. “Preponderance of the evidence” is the standard of proof requiring evidence to show that a fact is more probable than not. In this proceeding, the Petitioner, Gary W. Moselle, bore the burden of proving the Respondent’s violation by a preponderance of the evidence.
8. The Administrative Law Judge concluded that the plain language of the statute meant “regularly scheduled” referred to meetings that occur at regular intervals, such as monthly, quarterly, or annually. The judge rejected the Petitioner’s alternate interpretation.
9. The Petitioner was granted a rehearing by citing newly discovered material evidence (an email sent after the first hearing) and arguing the need to evaluate whether the Respondent had misled the judge. He also contended that the initial decision was contrary to law.
10. The judge acknowledged the state’s policy favoring open meetings as stated in subsection (F). However, the judge ruled that this general policy statement did not override the specific provision in subsection (A) that only “regularly scheduled” committee meetings are required to be open.
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Essay Questions
Instructions: The following questions are designed for longer, more analytical responses. Formulate an essay-style answer for each, drawing upon the facts, arguments, and legal reasoning presented in the case documents.
1. Analyze the conflicting interpretations of the phrase “regularly scheduled” as presented by the Petitioner and the Respondent. Discuss the principles of statutory construction used by the Administrative Law Judge to resolve this dispute and explain why one interpretation was favored over the other.
2. Examine the procedural history of this case, from the initial petition filed with the Arizona Department of Real Estate to the final order issued after the rehearing. What were the key legal steps, decisions, and turning points in the process?
3. Discuss the evidence presented by the Desert Mountain Master Association to support its case. How did testimony regarding meeting frequency and the Board’s actions on committee recommendations contribute to the final outcome?
4. Explain the legal relationship between A.R.S. § 33-1804(A) and A.R.S. § 33-1804(F). Based on the judge’s decision, what is the hierarchy between a statute’s specific provisions and its general policy declarations?
5. During the rehearing, the Petitioner’s own testimony about other committees was noted by the Administrative Law Judge. Explain this apparent contradiction in the Petitioner’s argument and discuss its potential impact on the case.
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An official who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions on behalf of a government agency.
A.R.S. § 33-1804
The specific Arizona Revised Statute at the center of the dispute, which governs open meetings for planned communities and their boards of directors and committees.
Burden of Proof
The obligation of a party in a legal case to provide sufficient evidence to prove their allegations. In this case, the burden was on the Petitioner.
Conclusions of Law
The judge’s application of legal principles to the facts of the case to reach a decision.
Department of Real Estate
The Arizona state agency with jurisdiction to hear disputes between property owners and homeowners associations under A.R.S. § 32-2199 et seq.
Desert Mountain Master Association (DMMA)
The Respondent in the case; a homeowners association located in Scottsdale, Arizona, classified as a Planned Unit Development.
Findings of Fact
The determination of factual events made by a judge from the evidence presented in a trial or hearing.
Gary W. Moselle
The Petitioner in the case; a homeowner within the DMMA who filed the complaint.
Jurisdiction
The official power of a court or agency to hear a case and make legal decisions and judgments.
Open Meetings Law
A law, in this case A.R.S. § 33-1804, that requires meetings of certain entities to be open to all members or the public.
Petition
The formal written request filed with an administrative body or court to initiate a case.
Petitioner
The party who files a petition and initiates a legal action.
Planned Unit Development (PUD)
A type of real estate development and community governed by specific state laws, such as those in A.R.S. Title 33, Chapter 16.
Preponderance of the Evidence
The standard of proof in most civil and administrative cases, defined as evidence that is more convincing and shows a fact is more probable than not.
Rehearing
A second hearing of a case to reconsider the previous decision, typically granted due to new evidence or an argument of legal error.
Regularly Scheduled
The key statutory phrase in dispute. The judge interpreted it to mean meetings that occur at regular, established intervals (e.g., monthly, quarterly).
Respondent
The party against whom a petition is filed; the party defending against the complaint.
Statutory Construction
The process by which judges interpret and apply legislation. The primary goal is to ascertain the legislature’s intent, starting with the plain text of the statute.
Blog Post – 18F-H1817005-REL-RHG
Your HOA Committee Might Be Meeting in Secret—And It Could Be Perfectly Legal
As a homeowner in a planned community, you likely know you have the right to attend your HOA’s board of directors meetings. But what about the committee meetings? The finance, architectural, or communications committees often lay the critical groundwork for decisions that ultimately affect your property and fees. Do you have a right to observe their deliberations?
A recent legal case in Scottsdale, Arizona, hinged on the interpretation of a single, seemingly straightforward phrase and exposed a surprising rule about HOA transparency. The case, Moselle v. Desert Mountain Master Association, reveals critical lessons for any homeowner about the letter of the law and how it can sometimes create legal loopholes that allow committee meetings to happen behind closed doors.
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1. The Crucial Loophole: “Regularly Scheduled” Doesn’t Mean What You Think
The entire dispute rested on how to interpret the phrase “regularly scheduled committee meetings” as written in Arizona statute A.R.S. § 33-1804, which governs open meetings for planned communities.
The Homeowner’s Argument The petitioner, homeowner Gary Moselle, argued that when the Communications Committee of the Desert Mountain Master Association (DMMA) scheduled a meeting for September 6, 2017, it should be open to all members. His logic was simple: a meeting that is formally scheduled and placed on the calendar is, by any common-sense definition, a “regularly scheduled” meeting.
The HOA’s Counter-Argument The DMMA countered with a different interpretation. They argued that the phrase “regularly scheduled” implies a recurring, predictable pattern, such as meetings held monthly, quarterly, or on the third Thursday of every month. The association presented evidence that its Communications Committee met infrequently and without a set pattern, having convened only four times in 2016 and 2017. Because the meetings were sporadic, the HOA contended they were not “regularly scheduled” and therefore not subject to the open meeting law.
To bolster its case, the HOA added a second point: the committee’s work wasn’t essential to board business anyway. They noted that a recommendation from the committee was never acted upon by the board, suggesting the committee was not conducting “any actual business of the Board” and thus did not require the same level of transparency.
The Surprising Verdict Administrative Law Judge Tammy L. Eigenheer sided with the HOA. The final decision concluded that “regularly scheduled” refers to meetings that occur at regular intervals. This created a legal distinction: HOA committees that meet on a fixed, recurring schedule must be open, but those that meet on an as-needed basis may not be.
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2. A Law’s “Spirit” Can Be Trumped by Its “Letter”
Adding another layer to the case was the law’s own powerful statement about its intent. The petitioner pointed to a specific section of the statute designed to ensure transparency.
The Policy Statement The Arizona law contains a strong policy statement declaring that all HOA meetings should be conducted openly. It explicitly directs anyone interpreting the law to favor open meetings.
It is the policy of this state as reflected in this section that all meetings of a planned community… be conducted openly… Toward this end, any person or entity that is charged with the interpretation of these provisions… shall take into account this declaration of policy and shall construe any provision of this section in favor of open meetings.
The Legal Reasoning Despite this clear declaration, Judge Eigenheer ruled that a general policy statement does not override the specific and explicit language of the law. The statute does not say all committee meetings must be open; it says “regularly scheduled committee meetings” must be open. The judge concluded that this specific wording created a clear exception, and the broad policy in favor of transparency could not erase it.
The Impact This is a critical takeaway for understanding how laws are interpreted. This outcome reflects a fundamental principle of statutory construction: while the “spirit” or stated policy of a law provides guidance, it cannot override the plain meaning of the specific words—the “letter”—that the legislature chose to write.
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3. A Cautionary Tale: How a Petitioner Undermined His Own Case
The petitioner was granted a rehearing, giving him another chance to argue his case. However, a statement he made during his own testimony dramatically weakened his position.
The Key Testimony During the rehearing on April 20, 2018, the petitioner was asked about other committees within the DMMA. In explaining how they operated, he unintentionally adopted the very definition of “regularly scheduled” that the HOA was using against him. The judge recorded his exact words in the final decision:
…five of the committees listed in the Volunteer Request page “meet at the request of the chair and they’re not regularly scheduled.”
The Consequence The judge seized on this admission in the final ruling. The decision notes that while “regularly scheduled” could have multiple meanings, the petitioner himself used the phrase to differentiate between committees that meet at fixed intervals and those that do not. By describing committees that “meet at the request of the chair” as being “not regularly scheduled,” he validated the very interpretation the court was now adopting.
The Lesson This moment serves as a dramatic lesson in the power and precision of language in legal proceedings. In an attempt to describe the function of other committees, the petitioner inadvertently validated his opponent’s core legal argument.
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Conclusion: A Question of Transparency
The ruling in Moselle v. Desert Mountain Master Association clarifies a significant point in HOA governance. Under this legal interpretation, committees that meet on an ad-hoc basis or “at the call of the chair” may not be subject to open meeting laws. Only those committees that meet on a fixed, recurring schedule are explicitly required to be open to homeowners.
This ruling draws a bright line between standing committees with fixed schedules and ad-hoc committees that meet “at the call of the chair.” Homeowners should now ask: Which of our committees fall into this second category, and are we comfortable with decisions being shaped behind closed doors?
Case Participants
Petitioner Side
Gary W. Moselle(petitioner) Appeared on his own behalf
Respondent Side
Desert Mountain Master Association(respondent) Organizational party (HOA)
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
18F-H1817005-REL-RHG
Agency
ADRE
Tribunal
OAH
Decision Date
2018-05-10
Administrative Law Judge
Tammy L. Eigenheer
Outcome
loss
Filing Fees Refunded
$0.00
Civil Penalties
$0.00
Parties & Counsel
Petitioner
Gary W. Moselle
Counsel
—
Respondent
Desert Mountain Master Association
Counsel
Curtis Ekmark
Alleged Violations
A.R.S. § 33-1804
Outcome Summary
The Administrative Law Judge denied the petition, ruling that the DMMA Communication Committee was not subject to the open meetings law (A.R.S. § 33-1804) because it did not hold 'regularly scheduled meetings',,,.
Why this result: The committee met too infrequently and without regular intervals to be deemed 'regularly scheduled' for the purposes of A.R.S. § 33-1804(A),,.
Key Issues & Findings
Whether a Communications Committee meeting must be open to members under the open meetings law.
Petitioner alleged that Respondent violated the open meetings statute by closing the September 6, 2017 meeting of the Communications Committee. The issue was whether this committee constituted a 'regularly scheduled committee meeting' subject to A.R.S. § 33-1804(A),,,,.
Orders: Petitioner's petition was denied. The Administrative Law Judge concluded that the DMMA Communication committee did not hold 'regularly scheduled' meetings, meaning it was not subject to the open meetings law under A.R.S. § 33-1804,,,.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
A.R.S. § 33-1804
A.R.S. Title 33, Chapter 16
A.R.S. § 32-2199 et seq.
A.A.C. R2-19-119
BLACK'S LAW DICTIONARY 1182 (6th ed. 1990)
State ex rel. Thomas v. Contes, 216 Ariz. 525, 527, 169 P.3d 115, 117 (App. 2007)
Marsoner v. Pima County, 166 Ariz. 486, 488, 803 P.2d 897, 899 (1991)
Analytics Highlights
Topics: HOA, Open Meetings Law, Committee Meetings, Statutory Interpretation, Planned Community
Additional Citations:
A.R.S. § 33-1804
A.R.S. Title 33, Chapter 16, Sections 33-1801 to 33-1818
A.R.S. § 32-2199 et seq.
A.A.C. R2-19-119
State ex rel. Thomas v. Contes, 216 Ariz. 525, 527, 169 P.3d 115, 117 (App. 2007)
Marsoner v. Pima County, 166 Ariz. 486, 488, 803 P.2d 897, 899 (1991)
Briefing on the Moselle v. Desert Mountain Master Association Case
Executive Summary
This document synthesizes two Administrative Law Judge Decisions regarding a dispute between homeowner Gary W. Moselle (Petitioner) and the Desert Mountain Master Association (DMMA or Respondent). The core of the case, No. 18F-H1817005-REL, is the legal interpretation of the phrase “regularly scheduled committee meetings” as it appears in Arizona’s open meeting statute for planned communities, A.R.S. § 33-1804.
The conflict arose when the DMMA Communications Committee held a closed meeting on September 6, 2017, which Mr. Moselle was barred from attending. He contended this violated the statute’s open meeting requirements. The DMMA argued the committee was exempt because its meetings were infrequent and not held at fixed intervals.
In two separate decisions—an initial ruling on December 7, 2017, and a second after a rehearing on May 10, 2018—Administrative Law Judge Tammy L. Eigenheer consistently ruled in favor of the DMMA. The judge concluded that “regularly scheduled” applies to meetings that occur at regular, predictable intervals (e.g., monthly, quarterly). Since the Communications Committee met only four times in two years without a set schedule, it was not subject to the open meeting law. The judge determined that the statute’s general policy favoring openness does not override its more specific provisions. Ultimately, the petitioner’s petition was denied.
Case Background and Timeline
The dispute proceeded through the Arizona Department of Real Estate and the Office of Administrative Hearings, culminating in a definitive ruling after a granted rehearing.
September 1, 2017
Gary W. Moselle files a petition with the Arizona Department of Real Estate, alleging DMMA violated open meeting laws.
September 6, 2017
The DMMA Communications Committee holds a closed meeting, which Mr. Moselle is not permitted to attend.
September 18, 2017
DMMA files an answer denying all allegations.
November 17, 2017
An initial hearing is conducted before Administrative Law Judge (ALJ) Tammy L. Eigenheer.
December 7, 2017
The ALJ issues a decision denying Mr. Moselle’s petition.
January 4, 2018
Mr. Moselle files a request for rehearing, citing “newly discovered material evidence” and arguing the decision was contrary to law.
January 26, 2018
The Department of Real Estate grants the request for a rehearing.
April 20, 2018
A rehearing is conducted before the ALJ.
May 10, 2018
The ALJ issues a final decision after rehearing, again denying Mr. Moselle’s petition.
Core Legal Issue: Interpretation of A.R.S. § 33-1804
The central legal question was whether the DMMA Communications Committee was subject to the open meeting requirements mandated by Arizona Revised Statute § 33-1804. The resolution of the case hinged on the interpretation of specific language within the statute.
Relevant Statutory Provisions
• A.R.S. § 33-1804(A): “Notwithstanding any provision in the declaration, bylaws or other documents to the contrary, all meetings of the members’ association and the board of directors, and any regularly scheduled committee meetings, are open to all members of the association…”
• A.R.S. § 33-1804(F): “It is the policy of this state as reflected in this section that all meetings of a planned community… be conducted openly… Toward this end, any person or entity that is charged with the interpretation of these provisions… shall take into account this declaration of policy and shall construe any provision of this section in favor of open meetings.”
Arguments Presented by the Parties
The petitioner and respondent presented starkly different interpretations of the phrase “regularly scheduled.”
Petitioner’s Position (Gary W. Moselle)
• Definition of “Regularly Scheduled”: Mr. Moselle argued that “regularly scheduled” should be interpreted to mean a meeting scheduled in a “normal manner” or “ordinary fashion,” not necessarily one that recurs at fixed intervals.
• Primacy of Openness Policy: He emphasized the policy statement in A.R.S. § 33-1804(F), asserting that the statute’s clear preference for open meetings should guide the interpretation of any ambiguous terms.
• Arguments for Rehearing: In his request for a rehearing, Mr. Moselle cited newly discovered evidence (an email sent by the DMMA after the first hearing) and suggested the ALJ should evaluate whether the DMMA had misled the court regarding the Board’s actions on the committee’s recommendation.
Respondent’s Position (Desert Mountain Master Association)
• Definition of “Regularly Scheduled”: DMMA contended that the phrase “regularly scheduled” plainly refers to meetings that occur at regular, predictable intervals, “such as on the third Thursday of every month, quarterly, or even annually.”
• Evidence of Infrequent Meetings: As evidence, the DMMA testified that its Communications Committee met infrequently and without a fixed pattern, holding only four meetings in 2016 and 2017 (twice in April 2016, once in June 2017, and the contested meeting of September 6, 2017).
• Lack of Board Action: The DMMA further argued that a recommendation from the committee to the Board of Directors was not acted upon, which it presented as evidence that the committee was not “conducting any actual business of the Board.”
Administrative Law Judge’s Analysis and Rulings
Across both decisions, the Administrative Law Judge (ALJ) provided a consistent legal analysis that ultimately favored the respondent’s interpretation of the statute.
Initial Decision (December 7, 2017)
• The ALJ concluded that the DMMA Communications Committee does not hold “regularly scheduled meetings.”
• Based on this finding, the committee was deemed not subject to the open meetings law.
• The decision to hold a closed meeting on September 6, 2017, was therefore ruled not to be a violation of A.R.S. § 33-1804.
• The petitioner’s petition was denied.
Decision After Rehearing (May 10, 2018)
• Statutory Interpretation: The ALJ reaffirmed the conclusion that the “plain language” of A.R.S. § 33-1804(A) applies to meetings that “occur at regular intervals.” While acknowledging that “regularly scheduled” could have multiple meanings, the ALJ settled on this interpretation.
• Policy vs. Specifics: The decision explicitly states that the general policy favoring open meetings in subsection (F) “does not override the specific provisions of A.R.S. § 33-1804(A) that only ‘regularly scheduled’ committee meetings must be open to the members.”
• Petitioner’s Testimony: The ALJ noted that during the rehearing, Mr. Moselle’s own testimony on cross-examination appeared to support the court’s interpretation. When questioned about other DMMA committees, Mr. Moselle stated that five of them “meet at the request of the chair and they’re not regularly scheduled.”
• Final Ruling: The ALJ again concluded that the DMMA Communication Committee did not hold “regularly scheduled” meetings at the time of the incident and was therefore not in violation of the statute. The petition was denied for a final time.
Final Disposition
The petition filed by Gary W. Moselle against the Desert Mountain Master Association was denied. The Administrative Law Judge’s order of May 10, 2018, issued after the rehearing, was declared binding on the parties. As per the final notice, any further appeal would require a party to seek judicial review in superior court within thirty-five days of the order.
Study Guide – 18F-H1817005-REL-RHG
Study Guide: Moselle v. Desert Mountain Master Association
This guide provides a comprehensive review of the administrative case between Gary W. Moselle (Petitioner) and the Desert Mountain Master Association (Respondent) concerning Arizona’s open meetings law for planned communities. 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 two to three sentences, based on the information provided in the case documents.
1. Who were the primary parties in this case, and what were their respective roles?
2. What specific event on September 6, 2017, prompted the Petitioner to file his complaint?
3. What specific Arizona statute did the Petitioner allege the Respondent had violated?
4. What was the Respondent’s primary argument for why its Communications Committee was not subject to the open meetings law?
5. How did the Petitioner, Gary W. Moselle, interpret the key statutory phrase “regularly scheduled committee meetings”?
6. What evidence did the Respondent present regarding the frequency of the Communications Committee’s meetings in 2016 and 2017?
7. What is the “preponderance of the evidence” standard, and which party had the responsibility to meet it?
8. What was the Administrative Law Judge’s final conclusion regarding the meaning of “regularly scheduled” in the context of the statute?
9. On what grounds did the Petitioner successfully request a rehearing after the initial decision was issued on December 7, 2017?
10. How did the judge weigh the general policy statement in A.R.S. § 33-1804(F) against the specific language in A.R.S. § 33-1804(A)?
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Answer Key
1. The primary parties were Gary W. Moselle, the Petitioner, and the Desert Mountain Master Association (DMMA), the Respondent. Mr. Moselle was a homeowner who filed a petition against the DMMA, which is the homeowners association for the community.
2. The Petitioner filed his complaint after he was not allowed to attend a “closed” meeting of the DMMA Communications Committee that was held on September 6, 2017. He alleged this violated Arizona’s open meeting statute.
3. The Petitioner alleged that the Respondent had violated Arizona Revised Statute (A.R.S.) § 33-1804. This statute governs open meetings for planned communities, such as homeowners associations.
4. The Respondent argued that the Communications Committee did not meet at regular, established intervals and therefore its meetings were not “regularly scheduled” as required by the statute to be open. They also asserted that the committee’s recommendation was not acted upon by the Board, suggesting it was not conducting official business.
5. The Petitioner argued that “regularly scheduled” should be interpreted to mean a meeting that was scheduled in a normal or ordinary fashion. He asserted this interpretation was supported by the statute’s general policy favoring open meetings.
6. The Respondent provided testimony that the Communications Committee met infrequently and without a set interval, having held only four meetings in 2016 and 2017. These meetings occurred twice in April 2016, once in June 2017, and on September 6, 2017.
7. “Preponderance of the evidence” is the standard of proof requiring evidence to show that a fact is more probable than not. In this proceeding, the Petitioner, Gary W. Moselle, bore the burden of proving the Respondent’s violation by a preponderance of the evidence.
8. The Administrative Law Judge concluded that the plain language of the statute meant “regularly scheduled” referred to meetings that occur at regular intervals, such as monthly, quarterly, or annually. The judge rejected the Petitioner’s alternate interpretation.
9. The Petitioner was granted a rehearing by citing newly discovered material evidence (an email sent after the first hearing) and arguing the need to evaluate whether the Respondent had misled the judge. He also contended that the initial decision was contrary to law.
10. The judge acknowledged the state’s policy favoring open meetings as stated in subsection (F). However, the judge ruled that this general policy statement did not override the specific provision in subsection (A) that only “regularly scheduled” committee meetings are required to be open.
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Essay Questions
Instructions: The following questions are designed for longer, more analytical responses. Formulate an essay-style answer for each, drawing upon the facts, arguments, and legal reasoning presented in the case documents.
1. Analyze the conflicting interpretations of the phrase “regularly scheduled” as presented by the Petitioner and the Respondent. Discuss the principles of statutory construction used by the Administrative Law Judge to resolve this dispute and explain why one interpretation was favored over the other.
2. Examine the procedural history of this case, from the initial petition filed with the Arizona Department of Real Estate to the final order issued after the rehearing. What were the key legal steps, decisions, and turning points in the process?
3. Discuss the evidence presented by the Desert Mountain Master Association to support its case. How did testimony regarding meeting frequency and the Board’s actions on committee recommendations contribute to the final outcome?
4. Explain the legal relationship between A.R.S. § 33-1804(A) and A.R.S. § 33-1804(F). Based on the judge’s decision, what is the hierarchy between a statute’s specific provisions and its general policy declarations?
5. During the rehearing, the Petitioner’s own testimony about other committees was noted by the Administrative Law Judge. Explain this apparent contradiction in the Petitioner’s argument and discuss its potential impact on the case.
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An official who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions on behalf of a government agency.
A.R.S. § 33-1804
The specific Arizona Revised Statute at the center of the dispute, which governs open meetings for planned communities and their boards of directors and committees.
Burden of Proof
The obligation of a party in a legal case to provide sufficient evidence to prove their allegations. In this case, the burden was on the Petitioner.
Conclusions of Law
The judge’s application of legal principles to the facts of the case to reach a decision.
Department of Real Estate
The Arizona state agency with jurisdiction to hear disputes between property owners and homeowners associations under A.R.S. § 32-2199 et seq.
Desert Mountain Master Association (DMMA)
The Respondent in the case; a homeowners association located in Scottsdale, Arizona, classified as a Planned Unit Development.
Findings of Fact
The determination of factual events made by a judge from the evidence presented in a trial or hearing.
Gary W. Moselle
The Petitioner in the case; a homeowner within the DMMA who filed the complaint.
Jurisdiction
The official power of a court or agency to hear a case and make legal decisions and judgments.
Open Meetings Law
A law, in this case A.R.S. § 33-1804, that requires meetings of certain entities to be open to all members or the public.
Petition
The formal written request filed with an administrative body or court to initiate a case.
Petitioner
The party who files a petition and initiates a legal action.
Planned Unit Development (PUD)
A type of real estate development and community governed by specific state laws, such as those in A.R.S. Title 33, Chapter 16.
Preponderance of the Evidence
The standard of proof in most civil and administrative cases, defined as evidence that is more convincing and shows a fact is more probable than not.
Rehearing
A second hearing of a case to reconsider the previous decision, typically granted due to new evidence or an argument of legal error.
Regularly Scheduled
The key statutory phrase in dispute. The judge interpreted it to mean meetings that occur at regular, established intervals (e.g., monthly, quarterly).
Respondent
The party against whom a petition is filed; the party defending against the complaint.
Statutory Construction
The process by which judges interpret and apply legislation. The primary goal is to ascertain the legislature’s intent, starting with the plain text of the statute.
Blog Post – 18F-H1817005-REL-RHG
Your HOA Committee Might Be Meeting in Secret—And It Could Be Perfectly Legal
As a homeowner in a planned community, you likely know you have the right to attend your HOA’s board of directors meetings. But what about the committee meetings? The finance, architectural, or communications committees often lay the critical groundwork for decisions that ultimately affect your property and fees. Do you have a right to observe their deliberations?
A recent legal case in Scottsdale, Arizona, hinged on the interpretation of a single, seemingly straightforward phrase and exposed a surprising rule about HOA transparency. The case, Moselle v. Desert Mountain Master Association, reveals critical lessons for any homeowner about the letter of the law and how it can sometimes create legal loopholes that allow committee meetings to happen behind closed doors.
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1. The Crucial Loophole: “Regularly Scheduled” Doesn’t Mean What You Think
The entire dispute rested on how to interpret the phrase “regularly scheduled committee meetings” as written in Arizona statute A.R.S. § 33-1804, which governs open meetings for planned communities.
The Homeowner’s Argument The petitioner, homeowner Gary Moselle, argued that when the Communications Committee of the Desert Mountain Master Association (DMMA) scheduled a meeting for September 6, 2017, it should be open to all members. His logic was simple: a meeting that is formally scheduled and placed on the calendar is, by any common-sense definition, a “regularly scheduled” meeting.
The HOA’s Counter-Argument The DMMA countered with a different interpretation. They argued that the phrase “regularly scheduled” implies a recurring, predictable pattern, such as meetings held monthly, quarterly, or on the third Thursday of every month. The association presented evidence that its Communications Committee met infrequently and without a set pattern, having convened only four times in 2016 and 2017. Because the meetings were sporadic, the HOA contended they were not “regularly scheduled” and therefore not subject to the open meeting law.
To bolster its case, the HOA added a second point: the committee’s work wasn’t essential to board business anyway. They noted that a recommendation from the committee was never acted upon by the board, suggesting the committee was not conducting “any actual business of the Board” and thus did not require the same level of transparency.
The Surprising Verdict Administrative Law Judge Tammy L. Eigenheer sided with the HOA. The final decision concluded that “regularly scheduled” refers to meetings that occur at regular intervals. This created a legal distinction: HOA committees that meet on a fixed, recurring schedule must be open, but those that meet on an as-needed basis may not be.
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2. A Law’s “Spirit” Can Be Trumped by Its “Letter”
Adding another layer to the case was the law’s own powerful statement about its intent. The petitioner pointed to a specific section of the statute designed to ensure transparency.
The Policy Statement The Arizona law contains a strong policy statement declaring that all HOA meetings should be conducted openly. It explicitly directs anyone interpreting the law to favor open meetings.
It is the policy of this state as reflected in this section that all meetings of a planned community… be conducted openly… Toward this end, any person or entity that is charged with the interpretation of these provisions… shall take into account this declaration of policy and shall construe any provision of this section in favor of open meetings.
The Legal Reasoning Despite this clear declaration, Judge Eigenheer ruled that a general policy statement does not override the specific and explicit language of the law. The statute does not say all committee meetings must be open; it says “regularly scheduled committee meetings” must be open. The judge concluded that this specific wording created a clear exception, and the broad policy in favor of transparency could not erase it.
The Impact This is a critical takeaway for understanding how laws are interpreted. This outcome reflects a fundamental principle of statutory construction: while the “spirit” or stated policy of a law provides guidance, it cannot override the plain meaning of the specific words—the “letter”—that the legislature chose to write.
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3. A Cautionary Tale: How a Petitioner Undermined His Own Case
The petitioner was granted a rehearing, giving him another chance to argue his case. However, a statement he made during his own testimony dramatically weakened his position.
The Key Testimony During the rehearing on April 20, 2018, the petitioner was asked about other committees within the DMMA. In explaining how they operated, he unintentionally adopted the very definition of “regularly scheduled” that the HOA was using against him. The judge recorded his exact words in the final decision:
…five of the committees listed in the Volunteer Request page “meet at the request of the chair and they’re not regularly scheduled.”
The Consequence The judge seized on this admission in the final ruling. The decision notes that while “regularly scheduled” could have multiple meanings, the petitioner himself used the phrase to differentiate between committees that meet at fixed intervals and those that do not. By describing committees that “meet at the request of the chair” as being “not regularly scheduled,” he validated the very interpretation the court was now adopting.
The Lesson This moment serves as a dramatic lesson in the power and precision of language in legal proceedings. In an attempt to describe the function of other committees, the petitioner inadvertently validated his opponent’s core legal argument.
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Conclusion: A Question of Transparency
The ruling in Moselle v. Desert Mountain Master Association clarifies a significant point in HOA governance. Under this legal interpretation, committees that meet on an ad-hoc basis or “at the call of the chair” may not be subject to open meeting laws. Only those committees that meet on a fixed, recurring schedule are explicitly required to be open to homeowners.
This ruling draws a bright line between standing committees with fixed schedules and ad-hoc committees that meet “at the call of the chair.” Homeowners should now ask: Which of our committees fall into this second category, and are we comfortable with decisions being shaped behind closed doors?
Case Participants
Petitioner Side
Gary W. Moselle(petitioner) Appeared on his own behalf
Respondent Side
Desert Mountain Master Association(respondent) Organizational party (HOA)
Petitioner won the statutory claim regarding access to association documents (A.R.S. § 33-1805(A)) and was refunded the $500 filing fee. Petitioner lost the claim regarding the failure to maintain exterior walls (CC&Rs) due to insufficient evidence.
Why this result: Petitioner failed to prove the maintenance issue by a preponderance of the evidence (for case 18F-H1818025-REL).
Key Issues & Findings
Failure to repair and maintain exterior walls
Petitioner alleged the HOA failed to repair damage (crack) to the exterior wall of his unit as required by the CC&Rs. The ALJ found that Petitioner failed to present sufficient evidence (black and white photographs did not clearly show the damage) to establish a violation.
Orders: Petitioner's petition in Case Number 18F-H1818025-REL is denied.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
CC&Rs
5
17
Failure to provide requested association records
Petitioner requested meeting notices and minutes in December 2017. Respondent's former management company failed to respond in a timely fashion. Petitioner established by a preponderance of the evidence that Respondent violated the statute.
Orders: Petitioner deemed the prevailing party in Case Number 18F-H1818027-REL. Respondent ordered to comply with A.R.S. § 33-1805(A) in the future and pay Petitioner the filing fee of $500.00.
Administrative Hearing Brief: Duffett vs. Suntech Patio Homes HOA
Executive Summary
This briefing document analyzes the Administrative Law Judge Decision in two consolidated cases filed by homeowner Rex E. Duffett against the Suntech Patio Homes Homeowners Association (HOA). The ruling presents a split decision, with the petitioner prevailing on one claim while failing to provide sufficient evidence for the other.
The first petition, concerning the HOA’s alleged failure to repair exterior walls, was denied. The petitioner failed to meet the burden of proof, as the submitted photographic evidence was unclear and did not sufficiently establish the existence or severity of the damage requiring immediate repair.
The second petition, concerning the HOA’s failure to provide association records upon request, was upheld. The judge found that the HOA, through its former management company, violated state law (A.R.S. § 33-1805(A)) by not responding to a formal document request within the mandated ten-business-day window.
As a result, Mr. Duffett was deemed the prevailing party in the records-request case. The HOA was ordered to pay his $500 filing fee and to ensure future compliance with the relevant statutes. The case highlights critical issues of evidence quality in homeowner disputes and demonstrates the legal liability an HOA retains for the failures of its management agents, particularly during periods of transition.
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Case Overview
Case Numbers
18F-H1818025-REL and 18F-H1818027-REL (Consolidated)
Petitioner
Rex E. Duffett
Respondent
Suntech Patio Homes Homeowners Association
Hearing Date
April 4, 2018
Decision Date
April 24, 2018
Presiding Judge
Administrative Law Judge Tammy L. Eigenheer
The hearing addressed two separate petitions filed by Rex E. Duffett with the Arizona Department of Real Estate:
1. Petition 1 (18F-H1818025-REL): Alleged the HOA violated community CC&Rs by failing to repair exterior walls of the petitioner’s unit.
2. Petition 2 (18F-H1818027-REL): Alleged the HOA violated A.R.S. § 33-1805(A) by failing to provide requested documents.
Petition 1: Failure to Repair Exterior Walls (Denied)
Petitioner’s Allegations and Evidence
• Core Claim: The petitioner alleged the HOA failed its duty, as defined by a March 1993 amendment to the CC&Rs, to maintain the exterior walls of his unit. The CC&Rs state, “The Suntech Patio Homeowners Association shall be responsible for the painting and maintenance of the following: A) Exterior walls of all units . . . .”
• Initial Request (July 14, 2017): Mr. Duffett faxed the HOA’s management company, The Management Trust, stating, “While inspecting the outside of my property I noticed a crack in the exterior wall. Please inspect, repair and paint the wall as soon as possible to prevent any damage which could result from rain water in the interior of the wall.”
• Follow-Up Request (August 21, 2017): In a certified letter, Mr. Duffett provided more detail, identifying a crack in the entryway wall allowing “rain water to seep into the interior wall,” a “bare concrete” area on the garage, and a previously cracked garage wall that had been repaired by a roofing company but not painted.
• Hearing Testimony: Mr. Duffett testified that a roofing company he hired to find a leak in his garage ceiling determined the source was not the roof but a crack in the exterior wall.
• Submitted Evidence: The petitioner submitted five black-and-white photographs of his home’s exterior across his two communications.
Respondent’s Position and Evidence
• Management Transition: Pride Community Management took over from The Management Trust on February 1, 2018. The new manager, Rebecca Stowers, and owner, Frank Peake, testified to a difficult transition where The Management Trust initially provided only one box of records, later discovering seven or eight more boxes in storage. Mr. Peake stated that Pride had not seen the petitioner’s communications regarding the damage until the hearing.
• Inspection: Ms. Stowers testified that she inspected the petitioner’s home on March 27, 2018. While she noted “a missing area of stucco on the front of the garage that needed to be repaired,” she “denied being able to identify a crack in the stucco anywhere else on the front of the house.”
• Community-Wide Repair Plan: Ms. Stowers stated that the HOA intended to repair the stucco and paint all exterior walls in the community during the 2018 calendar year at a projected cost of $46,000, to be funded potentially through a special assessment due to the HOA being underfunded.
Conclusion of Law and Ruling
• Burden of Proof: The Administrative Law Judge (ALJ) determined that the petitioner bore the burden of proving his claim by a preponderance of the evidence.
• Evidence Failure: The ALJ found the submitted evidence insufficient. The decision states: “The black and white photographs submitted at hearing did not clearly show the crack Petitioner alleged existed on the exterior wall of his unit… The Administrative Law Judge was unable to identify the location or severity of the alleged crack, and therefore, cannot conclude that such a crack exists and/or that it is necessary to be repaired immediately.”
• Final Ruling: The petitioner failed to meet his burden of proof. The petition in Case Number 18F-H1818025-REL was denied.
Petition 2: Failure to Provide Association Records (Upheld)
Petitioner’s Allegations and Evidence
• Core Claim: The petitioner alleged that the HOA violated A.R.S. § 33-1805(A), which requires an association to fulfill a request for records within ten business days.
• The Request (December 22, 2017): Mr. Duffett faxed The Management Trust a request for specific documents, citing a statement made by the HOA in a separate case. He requested copies of:
◦ Meeting notices and minutes for all meetings where “rules and regulations were discussed” in August/September 2017.
◦ Meeting notices and minutes for meetings where the last HOA dues increase was discussed.
◦ A copy of the notice for the last association rate increase.
Respondent’s Position and Evidence
• Lack of Awareness: The HOA’s initial response on January 29, 2018, indicated it had only become aware of the request upon receiving notice of the petition. The current management company, Pride, testified they had not seen the original communication from the petitioner.
• Vagueness of Request: Frank Peake of Pride testified that the request for minutes of meetings “where the rules and regulations were discussed” was unclear “because rules and regulations are discussed in some form at virtually every meeting of the association.”
• Claim of Privilege: The initial response from The Management Trust on January 29, 2018, claimed that the requested minutes were for “closed executive meetings and were only available to Board members.”
Conclusion of Law and Ruling
• Statutory Violation: The ALJ concluded that the petitioner clearly made a request for documents and that the HOA, via its former management company, failed to act as required by law.
• Failure of Former Management: The decision explicitly faults the prior management company: “The Management Trust should have responded or requested additional clarification of what documents Petitioner was requesting as it was the management company during the ten day window Respondent had to respond pursuant to the statute.”
• Final Ruling: The petitioner successfully established by a preponderance of the evidence that the HOA violated A.R.S. § 33-1805(A). Mr. Duffett was deemed the prevailing party in Case Number 18F-H1818027-REL.
Final Order and Implications
The Administrative Law Judge issued the following orders based on the conclusions of law:
Case Number
Subject
Ruling
18F-H1818025-REL
Exterior Wall Repairs
Petition Denied
18F-H1818027-REL
Document Request
Petitioner Deemed Prevailing Party
Directives to the Respondent (Suntech Patio Homes HOA):
1. Future Compliance: The HOA must comply with the provisions of A.R.S. § 33-1805(A) going forward.
2. Payment of Filing Fee: The HOA must pay the petitioner his filing fee of $500.00 within thirty (30) days of the order.
This order is considered binding on the parties unless a rehearing is granted.
Petitioner won the statutory claim regarding access to association documents (A.R.S. § 33-1805(A)) and was refunded the $500 filing fee. Petitioner lost the claim regarding the failure to maintain exterior walls (CC&Rs) due to insufficient evidence.
Why this result: Petitioner failed to prove the maintenance issue by a preponderance of the evidence (for case 18F-H1818025-REL).
Key Issues & Findings
Failure to repair and maintain exterior walls
Petitioner alleged the HOA failed to repair damage (crack) to the exterior wall of his unit as required by the CC&Rs. The ALJ found that Petitioner failed to present sufficient evidence (black and white photographs did not clearly show the damage) to establish a violation.
Orders: Petitioner's petition in Case Number 18F-H1818025-REL is denied.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
CC&Rs
5
17
Failure to provide requested association records
Petitioner requested meeting notices and minutes in December 2017. Respondent's former management company failed to respond in a timely fashion. Petitioner established by a preponderance of the evidence that Respondent violated the statute.
Orders: Petitioner deemed the prevailing party in Case Number 18F-H1818027-REL. Respondent ordered to comply with A.R.S. § 33-1805(A) in the future and pay Petitioner the filing fee of $500.00.
Administrative Hearing Brief: Duffett vs. Suntech Patio Homes HOA
Executive Summary
This briefing document analyzes the Administrative Law Judge Decision in two consolidated cases filed by homeowner Rex E. Duffett against the Suntech Patio Homes Homeowners Association (HOA). The ruling presents a split decision, with the petitioner prevailing on one claim while failing to provide sufficient evidence for the other.
The first petition, concerning the HOA’s alleged failure to repair exterior walls, was denied. The petitioner failed to meet the burden of proof, as the submitted photographic evidence was unclear and did not sufficiently establish the existence or severity of the damage requiring immediate repair.
The second petition, concerning the HOA’s failure to provide association records upon request, was upheld. The judge found that the HOA, through its former management company, violated state law (A.R.S. § 33-1805(A)) by not responding to a formal document request within the mandated ten-business-day window.
As a result, Mr. Duffett was deemed the prevailing party in the records-request case. The HOA was ordered to pay his $500 filing fee and to ensure future compliance with the relevant statutes. The case highlights critical issues of evidence quality in homeowner disputes and demonstrates the legal liability an HOA retains for the failures of its management agents, particularly during periods of transition.
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Case Overview
Case Numbers
18F-H1818025-REL and 18F-H1818027-REL (Consolidated)
Petitioner
Rex E. Duffett
Respondent
Suntech Patio Homes Homeowners Association
Hearing Date
April 4, 2018
Decision Date
April 24, 2018
Presiding Judge
Administrative Law Judge Tammy L. Eigenheer
The hearing addressed two separate petitions filed by Rex E. Duffett with the Arizona Department of Real Estate:
1. Petition 1 (18F-H1818025-REL): Alleged the HOA violated community CC&Rs by failing to repair exterior walls of the petitioner’s unit.
2. Petition 2 (18F-H1818027-REL): Alleged the HOA violated A.R.S. § 33-1805(A) by failing to provide requested documents.
Petition 1: Failure to Repair Exterior Walls (Denied)
Petitioner’s Allegations and Evidence
• Core Claim: The petitioner alleged the HOA failed its duty, as defined by a March 1993 amendment to the CC&Rs, to maintain the exterior walls of his unit. The CC&Rs state, “The Suntech Patio Homeowners Association shall be responsible for the painting and maintenance of the following: A) Exterior walls of all units . . . .”
• Initial Request (July 14, 2017): Mr. Duffett faxed the HOA’s management company, The Management Trust, stating, “While inspecting the outside of my property I noticed a crack in the exterior wall. Please inspect, repair and paint the wall as soon as possible to prevent any damage which could result from rain water in the interior of the wall.”
• Follow-Up Request (August 21, 2017): In a certified letter, Mr. Duffett provided more detail, identifying a crack in the entryway wall allowing “rain water to seep into the interior wall,” a “bare concrete” area on the garage, and a previously cracked garage wall that had been repaired by a roofing company but not painted.
• Hearing Testimony: Mr. Duffett testified that a roofing company he hired to find a leak in his garage ceiling determined the source was not the roof but a crack in the exterior wall.
• Submitted Evidence: The petitioner submitted five black-and-white photographs of his home’s exterior across his two communications.
Respondent’s Position and Evidence
• Management Transition: Pride Community Management took over from The Management Trust on February 1, 2018. The new manager, Rebecca Stowers, and owner, Frank Peake, testified to a difficult transition where The Management Trust initially provided only one box of records, later discovering seven or eight more boxes in storage. Mr. Peake stated that Pride had not seen the petitioner’s communications regarding the damage until the hearing.
• Inspection: Ms. Stowers testified that she inspected the petitioner’s home on March 27, 2018. While she noted “a missing area of stucco on the front of the garage that needed to be repaired,” she “denied being able to identify a crack in the stucco anywhere else on the front of the house.”
• Community-Wide Repair Plan: Ms. Stowers stated that the HOA intended to repair the stucco and paint all exterior walls in the community during the 2018 calendar year at a projected cost of $46,000, to be funded potentially through a special assessment due to the HOA being underfunded.
Conclusion of Law and Ruling
• Burden of Proof: The Administrative Law Judge (ALJ) determined that the petitioner bore the burden of proving his claim by a preponderance of the evidence.
• Evidence Failure: The ALJ found the submitted evidence insufficient. The decision states: “The black and white photographs submitted at hearing did not clearly show the crack Petitioner alleged existed on the exterior wall of his unit… The Administrative Law Judge was unable to identify the location or severity of the alleged crack, and therefore, cannot conclude that such a crack exists and/or that it is necessary to be repaired immediately.”
• Final Ruling: The petitioner failed to meet his burden of proof. The petition in Case Number 18F-H1818025-REL was denied.
Petition 2: Failure to Provide Association Records (Upheld)
Petitioner’s Allegations and Evidence
• Core Claim: The petitioner alleged that the HOA violated A.R.S. § 33-1805(A), which requires an association to fulfill a request for records within ten business days.
• The Request (December 22, 2017): Mr. Duffett faxed The Management Trust a request for specific documents, citing a statement made by the HOA in a separate case. He requested copies of:
◦ Meeting notices and minutes for all meetings where “rules and regulations were discussed” in August/September 2017.
◦ Meeting notices and minutes for meetings where the last HOA dues increase was discussed.
◦ A copy of the notice for the last association rate increase.
Respondent’s Position and Evidence
• Lack of Awareness: The HOA’s initial response on January 29, 2018, indicated it had only become aware of the request upon receiving notice of the petition. The current management company, Pride, testified they had not seen the original communication from the petitioner.
• Vagueness of Request: Frank Peake of Pride testified that the request for minutes of meetings “where the rules and regulations were discussed” was unclear “because rules and regulations are discussed in some form at virtually every meeting of the association.”
• Claim of Privilege: The initial response from The Management Trust on January 29, 2018, claimed that the requested minutes were for “closed executive meetings and were only available to Board members.”
Conclusion of Law and Ruling
• Statutory Violation: The ALJ concluded that the petitioner clearly made a request for documents and that the HOA, via its former management company, failed to act as required by law.
• Failure of Former Management: The decision explicitly faults the prior management company: “The Management Trust should have responded or requested additional clarification of what documents Petitioner was requesting as it was the management company during the ten day window Respondent had to respond pursuant to the statute.”
• Final Ruling: The petitioner successfully established by a preponderance of the evidence that the HOA violated A.R.S. § 33-1805(A). Mr. Duffett was deemed the prevailing party in Case Number 18F-H1818027-REL.
Final Order and Implications
The Administrative Law Judge issued the following orders based on the conclusions of law:
Case Number
Subject
Ruling
18F-H1818025-REL
Exterior Wall Repairs
Petition Denied
18F-H1818027-REL
Document Request
Petitioner Deemed Prevailing Party
Directives to the Respondent (Suntech Patio Homes HOA):
1. Future Compliance: The HOA must comply with the provisions of A.R.S. § 33-1805(A) going forward.
2. Payment of Filing Fee: The HOA must pay the petitioner his filing fee of $500.00 within thirty (30) days of the order.
This order is considered binding on the parties unless a rehearing is granted.
Study Guide – 18F-H1818025-REL
Study Guide: Duffett v. Suntech Patio Homes HOA
This guide provides a comprehensive review of the Administrative Law Judge Decision in the consolidated cases of Rex E. Duffett v. Suntech Patio Homes Homeowners Association, Case Numbers 18F-H1818025-REL and 18F-H1818027-REL. The decision, issued by the Arizona Office of Administrative Hearings, addresses two separate petitions filed by a homeowner against his Homeowners Association (HOA), one concerning property maintenance and the other concerning access to association records.
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Quiz: Short-Answer Questions
Instructions: Answer the following questions in 2-3 complete sentences, drawing all information directly from the case decision.
1. Who were the primary parties in this administrative hearing, and what were their respective roles?
2. What were the two distinct allegations made by the Petitioner in the petitions that were consolidated for this hearing?
3. According to the community’s governing documents (CC&Rs), what specific responsibility did the HOA have regarding the exterior of residential units?
4. On what grounds did the Administrative Law Judge rule against the Petitioner in his claim for wall repairs (Case No. 18F-H1818025-REL)?
5. What specific Arizona statute did the Petitioner claim the HOA violated in his second petition regarding access to records (Case No. 18F-H1818027-REL)?
6. Describe the roles and performance of the two management companies, The Management Trust and Pride Community Management, as detailed in the hearing evidence.
7. What was the final outcome of the petition concerning the HOA’s failure to provide documents, and who was named the prevailing party?
8. What specific types of documents did the Petitioner request from the HOA in his fax dated December 22, 2017?
9. What was the legal standard of proof the Petitioner was required to meet, and for which petition did he successfully meet it?
10. What financial penalty was imposed upon the Respondent as part of the final Order?
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Answer Key
1. The Petitioner was Rex E. Duffett, a homeowner who filed the petitions. The Respondent was the Suntech Patio Homes Homeowners Association, the entity Mr. Duffett alleged had violated community rules and state law.
2. The first petition alleged that the HOA violated the CC&Rs by failing to respond to repeated requests for repairs to the exterior walls of his unit. The second petition alleged the HOA violated A.R.S. § 33-1805(A) by failing to provide requested association documents.
3. A March 1993 amendment to the CC&Rs states that the Suntech Patio Homeowners Association “shall be responsible for the painting and maintenance of the… Exterior walls of all units.”
4. The judge ruled against the Petitioner because he failed to establish his claim by a preponderance of the evidence. The black and white photographs submitted did not clearly show the alleged crack’s location or severity, so the judge could not conclude that a repair was immediately necessary.
5. The Petitioner claimed the HOA violated A.R.S. § 33-1805(A). This statute requires an association to make records reasonably available for examination and to provide copies of requested records within ten business days.
6. The Management Trust was the HOA’s management company when the incidents occurred and failed to properly respond to the Petitioner’s requests. Pride Community Management took over on February 1, 2018, and testified that the transition was difficult due to the sparse documentation initially provided by The Management Trust.
7. The judge ruled in favor of the Petitioner, deeming him the prevailing party in Case Number 18F-H1818027-REL. The judge ordered the HOA to comply with the applicable statute in the future.
8. The Petitioner requested copies of meeting notices and minutes for meetings where rules and regulations were discussed and where the last HOA dues increase was discussed. He also requested a copy of the notice of the last rate increase and any associated signed written consents.
9. The legal standard was “preponderance of the evidence,” defined as evidence with the most convincing force. The Petitioner failed to meet this standard for the wall repair petition but successfully met it for the document request petition.
10. The Respondent (HOA) was ordered to pay the Petitioner his filing fee of $500.00. The payment was to be made directly to the Petitioner within thirty days of the Order.
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Suggested Essay Questions
Instructions: The following questions are designed for a more in-depth analysis of the case. Formulate a response using only the information and evidence presented in the provided decision.
1. Analyze the concept of “preponderance of the evidence” as it is defined and applied in this case. How did the quality of evidence submitted by the Petitioner lead to two different outcomes for his two petitions?
2. Discuss the role and responsibilities of a homeowners association’s management company, using the actions of The Management Trust and the subsequent challenges faced by Pride Community Management as primary examples. How did the transition between these two companies impact the case?
3. Evaluate the Respondent’s arguments and actions in both petitions. In the wall repair case, what was their stated plan, and why was it ultimately not considered by the judge? In the document request case, what was their defense, and why did it fail?
4. Based on the text of A.R.S. § 33-1805(A), explain the specific obligations of an HOA regarding member requests for records. Detail how the Suntech Patio Homes HOA, through its management, failed to meet these obligations, leading to the ruling against them.
5. Examine the communication breakdown between the Petitioner and the Respondent. Citing specific examples from the “Findings of Fact” and “Hearing Evidence” sections, explain how miscommunication and lack of timely response exacerbated the conflict.
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An official who presides over administrative hearings, weighs evidence, and issues a legally binding decision. In this case, the ALJ was Tammy L. Eigenheer.
A.R.S. § 33-1805(A)
An Arizona Revised Statute that legally requires homeowners associations to make financial and other records available for member examination and to provide copies upon request within ten business days.
A.R.S. § 32-2199 et seq.
The section of the Arizona Revised Statutes that grants jurisdiction to the Arizona Department of Real Estate to hear disputes between homeowners and their associations.
Conditions, Covenants and Restrictions (CC&Rs)
The governing legal documents that establish the rules, obligations, and restrictions for a planned community and its homeowners association.
Consolidated for Hearing
A procedural step where two or more separate legal cases involving the same parties are combined into a single hearing for efficiency.
Department
Within the context of this case, refers to the Arizona Department of Real Estate, the state agency where the Petitioner initially filed his petitions.
The final, legally binding ruling issued by the Administrative Law Judge at the conclusion of the hearing.
Petitioner
The party who initiates a legal action by filing a petition. In this case, homeowner Rex E. Duffett.
Preponderance of the Evidence
The standard of proof required in this proceeding. It is met when the evidence presented has “the most convincing force” and is more likely true than not.
Prevailing Party
The party who is found to have won the legal dispute. The Petitioner was deemed the prevailing party in the document request case.
Respondent
The party against whom a petition is filed and who must respond to the allegations. In this case, the Suntech Patio Homes Homeowners Association.
Blog Post – 18F-H1818025-REL
A Homeowner Sued His HOA Over a Cracked Wall. He Lost Because of Bad Photocopies.
Introduction: The David vs. Goliath Battle Against Your HOA
For many homeowners, a dispute with their Homeowners Association (HOA) can feel like an uphill battle. It’s a common story of frustration, complex rules, and feeling unheard. The legal case of Rex E. Duffett versus the Suntech Patio Homes HOA is a perfect example, but with a twist. This isn’t just a story about winning or losing; it’s a fascinating cautionary tale filled with surprising lessons for any homeowner navigating a conflict with their association. This breakdown of the real-life administrative court decision reveals the unexpected details that can make or break a case.
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1. Takeaway #1: The Quality of Your Proof Matters More Than the Truth
The dispute began when Rex Duffett filed a petition alleging his HOA had failed to repair a crack in his exterior wall that he claimed was causing a water leak. According to the association’s own CC&Rs, maintaining exterior walls was the HOA’s responsibility. To document the problem, he diligently sent faxes and certified mail to the management company, including photographs of the damage.
Despite his efforts, the Administrative Law Judge denied his petition for repairs.
The reason was as surprising as it was simple: the evidence he submitted was not clear enough. The black and white copies of the photographs he provided at the hearing “did not clearly show any damage.” The judge’s finding was blunt and highlights a critical point for any legal dispute:
The Administrative Law Judge was unable to identify the location or severity of the alleged crack, and therefore, cannot conclude that such a crack exists and/or that it is necessary to be repaired immediately.
The lesson here is critical. In a legal dispute, having proof is not enough; the proof must be clear, convincing, and well-presented. Mr. Duffett’s primary case failed not because he was necessarily wrong, but because his evidence failed to persuade the judge. In an administrative hearing, a handful of high-resolution color photographs, or even a short video, would have provided irrefutable evidence and could have changed the entire outcome of his primary petition.
2. Takeaway #2: Your HOA is on the Hook for Its Management Company’s Failures
Mr. Duffett also filed a second petition against the HOA for failing to provide records he requested, such as meeting minutes. Under Arizona law (A.R.S. § 33-1805(A)), an association must fulfill such a request within ten business days. The HOA failed to do so.
The root of the problem was the HOA’s previous management company, “The Management Trust.” This company not only failed to respond to the homeowner’s request but also failed to notify the new management company about it. The relationship between the HOA and this vendor was so poor that the HOA had previously tried to terminate the contract, but the management company “refused to acknowledge the termination and held Respondent to the full two year contract.” The transition was chaotic; the old company initially provided only one box of information before later discovering “seven or eight more boxes” in storage.
Even though the management company was clearly at fault, the Judge ruled that the HOA violated the law. This provides a powerful insight for both boards and homeowners: an HOA cannot blame its vendors. Legally, the association is the responsible party. Hiring an incompetent or unresponsive management company creates significant legal and financial liability for the association and, by extension, every homeowner. This is not an abstract risk; in this case, the management company’s failure to forward a simple request directly led to a legal violation that cost the association—and thus, its members—the $500 filing fee ordered by the judge.
3. Takeaway #3: A “Win” Can Be More Complicated Than It Looks
When you look at the final outcome, Mr. Duffett’s case presents a nuanced picture of what a “win” really means in an HOA dispute. The judge issued a split decision:
• Petition for Repairs: Denied. The homeowner lost.
• Petition for Documents: The homeowner was deemed the “prevailing party.” He won.
As the prevailing party in the second petition, the homeowner received a clear victory. The judge ordered the HOA to comply with the document access law in the future and, crucially, to pay the homeowner back his $500 filing fee.
This highlights a common reality in legal disputes: a homeowner can secure a clear procedural victory (enforcing the right to documents and recovering fees) while simultaneously failing to achieve their core substantive goal (getting the wall repaired). The outcome shows that legal victories can be partial and may not address the real-world problem that initiated the dispute in the first place.
4. Takeaway #4: Vague Requests and Messy Records Create Chaos
This case is a masterclass in how poor communication from both sides can create a perfect storm of dysfunction.
First, the homeowner’s request for documents was “somewhat vague.” The new management company testified it was “unclear because rules and regulations are discussed in some form at virtually every meeting.” While the HOA still violated the law by failing to respond at all, this highlights a crucial lesson for homeowners: be as specific and clear as possible in all written communication to avoid ambiguity.
This vague request then ran headlong into the second problem: the HOA’s institutional chaos. The new Community Manager testified that the only relevant document they possessed was the minutes from a single meeting, and that “seven or eight more boxes” of records were missing after a disastrous transition between management companies. The homeowner’s ambiguous request met an organization that likely couldn’t have responded effectively even if it wanted to.
For both sides, meticulous documentation is a shield. For homeowners, a clear, specific, and undeniable paper trail strengthens their position. For HOA boards, organized records are essential for smooth operations, seamless transitions between management companies, and, most importantly, avoiding legal liability.
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Conclusion: The Devil is in the Details
The case of Duffett v. Suntech Patio Homes HOA is a powerful reminder that in legal disputes, the outcome often hinges on the small stuff. Small details—the quality of a photocopy, the precise wording of a request, the competence of a vendor, the location of a box of files—can have massive consequences. They can mean the difference between winning and losing, between getting a problem solved and walking away with only a partial victory.
This case shows how easily things can go wrong. The next time you’re in a dispute, what’s the one small detail you might be overlooking that could change everything?
Case Participants
Petitioner Side
Rex E. Duffett(petitioner)
Respondent Side
Nathan Tennyson(attorney) BROWN/OLCOTT, PLLC
Rebecca Stowers(property manager) Pride Community Management Community Manager
Frank Peake(property manager) Pride Community Management Owner of Pride
Shawn Mason(property manager) The Management Trust Former management company staff
Neutral Parties
Tammy L. Eigenheer(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
LDettorre(ADRE staff) Arizona Department of Real Estate
AHansen(ADRE staff) Arizona Department of Real Estate
djones(ADRE staff) Arizona Department of Real Estate
DGardner(ADRE staff) Arizona Department of Real Estate
ncano(ADRE staff) Arizona Department of Real Estate
