Tag Archives: A.R.S. § 33-1803(D)

Darryl Jacobson-Barnes & Robert Barnes v. Circle G Ranches 4

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Case Summary

Case ID 21F-H2120022-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-08-24
Administrative Law Judge Velva Moses-Thompson
Outcome The Administrative Law Judge dismissed the petition filed by Darryl L. Jacobson-Barnes and Robert Barnes, finding that the Petitioner failed to prove by a preponderance of the evidence that the Respondent HOA violated any of the cited Arizona Revised Statutes or that the alleged CC&R violation was outside the scope of Article III, § 3.10. The Respondent was deemed the prevailing party.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Darryl Jacobson-Barnes & Robert Barnes Counsel Anthony L. Perez, Esq.
Respondent Circle G Ranches 4 Homeowners Association Counsel Clint G. Goodman, Esq.

Alleged Violations

A.R.S. § 33-1803(D) and (E)
A.R.S. § 33-1804(a)(5)
A.R.S. § 33-1811
Article III, § 3.10 (CC&Rs)

Outcome Summary

The Administrative Law Judge dismissed the petition filed by Darryl L. Jacobson-Barnes and Robert Barnes, finding that the Petitioner failed to prove by a preponderance of the evidence that the Respondent HOA violated any of the cited Arizona Revised Statutes or that the alleged CC&R violation was outside the scope of Article III, § 3.10. The Respondent was deemed the prevailing party.

Why this result: The Petitioner failed to meet the burden of proving by a preponderance of the evidence that the HOA violated A.R.S. §§ 33-1803(D) and (E), 33-1804(5), or 33-1811, or that the alleged unapproved flood light violation was outside the scope of the cited CC&R provision (Article III, § 3.10).

Key Issues & Findings

The Association violated A.R.S.§ 33-1803(D) and (E) by failing to properly respond to the Barnes response to the notice of alleged violation and proceeding with enforcement actions.

Petitioner failed to establish the HOA violated these statutes because the HOA's May 27, 2020 notice contained all required information under A.R.S. § 1803(D)(1)-(4), rendering A.R.S. § 33-1803(E) inapplicable.

Orders: Petition dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1803(D)
  • A.R.S. § 33-1803(E)
  • A.A.C. R2-19-119

The association violated A.R.S. § 33-1804(a)(5) in rendering its decision on the Barnes contest of the notice.

Petitioner failed to establish violation of meeting procedures, as the appeal was discussed in an open session, and the subsequent closed session was justified to allow the HOA to seek legal counsel pursuant to A.R.S. § 33-1804(A)(1).

Orders: Petition dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1804(a)(5)
  • A.R.S. § 33-1804(A)(1)

The alleged violation and resulting penalty imposed are void and unenforceable under A.R.S. § 33-1811.

Petitioner failed to prove violation. A.R.S. § 33-1811 applies only to contracts, decisions, or actions for compensation, and no evidence was presented that the Petitioner's appeal involved such compensation.

Orders: Petition dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1811

The alleged violation is outside the scope of the cited CC&R Article III, § 3.10.

Petitioner failed to prove the violation (installation of an unapproved flood light) was outside the scope of Article III, § 3.10, which requires prior approval for 'other structure[s]'.

Orders: Petition dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • Article III, § 3.10 (CC&Rs)
  • Article IV, 4.6 (CC&Rs)

Analytics Highlights

Topics: Architectural Control Committee, CC&R Enforcement, Floodlight, Meeting Procedure, Statutory Compliance
Additional Citations:

  • A.R.S. § 33-1803(D)
  • A.R.S. § 33-1803(E)
  • A.R.S. § 33-1804(a)(5)
  • A.R.S. § 33-1804(A)(1)
  • A.R.S. § 33-1811
  • Article III, § 3.10 (CC&Rs)
  • A.A.C. R2-19-119

Video Overview

Audio Overview

Decision Documents

21F-H2120022-REL Decision – 895732.pdf

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21F-H2120022-REL Decision – 895827.pdf

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21F-H2120022-REL Decision – 906326.pdf

Uploaded 2026-04-24T11:31:34 (99.4 KB)

21F-H2120022-REL Decision – 895732.pdf

Uploaded 2026-01-23T17:36:00 (39.8 KB)

21F-H2120022-REL Decision – 895827.pdf

Uploaded 2026-01-23T17:36:03 (5.6 KB)

21F-H2120022-REL Decision – 906326.pdf

Uploaded 2026-01-23T17:36:06 (99.4 KB)

This summary addresses the legal case heard in the Office of Administrative Hearings (OAH) concerning Darryl Jacobson-Barnes & Robert Barnes (Petitioner) and Circle G Ranches 4 Homeowners Association (Respondent/HOA). The case number was 21F-H2120022-REL, and the Administrative Law Judge (ALJ) was Velva Moses-Thompson. Hearings were held on January 26, 2021, March 3, 2021, and July 14, 2021, with the record held open until August 4, 2021.

Key Facts and Dispute Background

The dispute originated when a member of the HOA Board of Directors filed a complaint alleging that Petitioner had installed an unapproved floodlight at the back of their home. On May 27, 2020, the HOA issued a violation notice alleging a violation of Article III, Section 3.10 of the HOA CC&Rs, which requires prior approval of design, location, and materials for structures constructed on the property.

Petitioner requested a hearing regarding the notice. After the parties failed to resolve the issue of "excessive light trespass" following an initial July 9, 2020 open appeal session, the Board held another appeal hearing on July 24, 2020. The Board voted on the appeal in a closed, executive session in order to obtain legal advice. The Board notified the Petitioner that their appeal was denied around August 18, 2020. Petitioner subsequently filed a petition with the Arizona Department of Real Estate (Department) outlining four alleged violations by the HOA.

Main Legal Issues

The OAH hearing focused on four issues set for determination:

  1. Whether the HOA violated A.R.S. § 33-1803(D) and (E) by failing to respond properly to the notice contest and proceeding with enforcement.
  2. Whether the HOA violated A.R.S. § 33-1804(a)(5) by rendering its decision on the contest in a closed session.
  3. Whether the alleged violation and resulting penalty were void and unenforceable under A.R.S. § 33-1811.
  4. Whether the alleged violation (the unapproved floodlight) was outside the scope of the cited CC&R Article III, § 3.10.

Key Legal Findings and Decision

The ALJ concluded that the Petitioner failed to prove by a preponderance of the evidence that the Respondent HOA violated A.R.S. § 33-1808.

  • A.R.S. § 33-1803(D) and (E): The ALJ found no violation. The evidence showed the HOA's May 27, 2020 notice of violation provided all the requisite information (including the CC&R provision, observation date, observer name, and contest process) required under A.R.S. § 33-1803(D)(1)-(4). Since the notice was compliant, the requirements of A.R.S. § 33-1803(E) were not triggered and did not apply.
  • A.R.S. § 33-1804(a)(5): The ALJ found no violation. While the Board voted in a closed session, credible testimony demonstrated that the session was closed to allow the HOA to seek legal counsel concerning the decision, which is permissible pursuant to A.R.S. § 33-1804(A)(1).
  • A.R.S. § 33-1811: The ALJ found no violation. This statute pertains to the validity of actions for compensation (contracts, decisions, etc.) taken by the Board, and no evidence was presented that Petitioner’s appeal involved such an action.
  • Scope of CC&R Article III, § 3.10: The ALJ determined the allegation regarding the unapproved floodlight fell within the scope of CC&R Article III, § 3.10. This article governs the construction of structures, including "other structure[s]," requiring prior approval from the Architectural Control Committee.

Outcome

The ALJ concluded that the petition filed by Darryl L. Jacobson-Barnes and Robert Barnes should be dismissed.

IT IS ORDERED that the petition is dismissed, and the Circle G Ranches 4 Homeowners Association is deemed the prevailing party in this matter. The decision was signed on August 24, 2021.

Questions

Question

What specific information must be included in a violation notice for it to be legally sufficient?

Short Answer

The notice must include the provision violated, the date of observation, the name of the observer, and the process to contest it.

Detailed Answer

An HOA violation notice is considered sufficient if it includes four key pieces of information: the specific community document provision alleged to be violated, the date the violation was observed, the first and last name of the person who observed it, and the process the member must follow to contest the notice. If these are present, the HOA has met its obligation.

Alj Quote

The weight of the evidence shows that the HOA notified Petitioner of the provision of the community documents that had allegedly been violated, the date the violation was observed, the first and last name of the person who observed the violation, and the process the member must follow to contest the notice through the May 27, 2020 notice.

Legal Basis

A.R.S. § 33-1803(D)

Topic Tags

  • violation notices
  • due process
  • HOA procedures

Question

Does the HOA have to send a second 'explanation' letter after I receive a violation notice?

Short Answer

No, not if the original notice already contained all the legally required details.

Detailed Answer

Under Arizona law, the requirement for an HOA to provide a written explanation (often detailed in A.R.S. § 33-1803(E)) is only triggered if the initial violation notice was missing required information. If the initial notice fully satisfied the statutory requirements (provision, date, observer, contest process), the HOA is not required to send further explanation letters before proceeding.

Alj Quote

If a homeowner’s association satisfies the requirements in A.R.S. § 1803(D) (1)-(4) in its notice of violation, A.R.S. § 33-1803 (E) is not triggered and does not apply.

Legal Basis

A.R.S. § 33-1803(E)

Topic Tags

  • violation notices
  • legal requirements

Question

Can the HOA Board go into a closed session to decide on my appeal?

Short Answer

Yes, if the closed session is used to seek legal counsel regarding the decision.

Detailed Answer

While appeals generally involve open discussion, the Board is permitted to adjourn to an executive (closed) session to deliberate if they need to obtain legal advice concerning the decision. This does not violate the open meeting requirement of A.R.S. § 33-1804.

Alj Quote

The preponderance of the evidence does not show that Respondent violated A.R.S. § 33-1804(5) because Petitioner’s appeal was discussed in an open session. Moreover, the HOA presented credible testimony that the session was closed to allow the HOA to seek legal counsel concerning its decision in Petitioner’s appeal

Legal Basis

A.R.S. § 33-1804(A)(1)

Topic Tags

  • board meetings
  • open meeting law
  • executive session

Question

Do I need architectural approval to install a floodlight?

Short Answer

Yes, floodlights can be considered 'structures' or changes requiring approval under CC&Rs.

Detailed Answer

Even if not a building, items like floodlights attached to a home can fall under the scope of CC&R restrictions regarding 'structures' or unapproved changes. The ALJ found that an allegation of an unapproved floodlight falls within the scope of architectural control provisions.

Alj Quote

Respondent alleged that an unapproved flood light was installed at the back of Petitioner’s home. Such allegation falls within the scope of CC&R Article III, § 3.10.

Legal Basis

CC&R Article III, § 3.10

Topic Tags

  • architectural control
  • home improvements
  • lighting

Question

Can I use A.R.S. § 33-1811 to void a penalty if I disagree with the violation?

Short Answer

Generally no, unless the decision involved a conflict of interest or compensation for a board member.

Detailed Answer

A.R.S. § 33-1811 specifically addresses the validity of contracts or decisions involving compensation/conflicts of interest. It is not a catch-all statute to void standard violation penalties where no such compensation or conflict exists.

Alj Quote

A.R.S. § 33-1811 applies to the validity of any contract, decision, or action for compensation taken by or on behalf of the Board. There was no evidence presented at hearing that the Petitioner’s appeal involved a contract, decision or other action for compensation.

Legal Basis

A.R.S. § 33-1811

Topic Tags

  • conflicts of interest
  • penalties
  • statutory interpretation

Question

What is the burden of proof for a homeowner suing their HOA in an administrative hearing?

Short Answer

The homeowner must prove the HOA violated the law by a 'preponderance of the evidence'.

Detailed Answer

In these administrative proceedings, the burden is on the petitioner (the homeowner) to provide evidence that carries greater weight or is more convincing than the evidence offered by the HOA.

Alj Quote

At this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated A.R.S. § 33-1808.

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • legal standards
  • hearings
  • burden of proof

Case

Docket No
21F-H2120022-REL
Case Title
Darryl Jacobson-Barnes & Robert Barnes vs. Circle G Ranches 4 Homeowners Association
Decision Date
2021-08-24
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Questions

Question

What specific information must be included in a violation notice for it to be legally sufficient?

Short Answer

The notice must include the provision violated, the date of observation, the name of the observer, and the process to contest it.

Detailed Answer

An HOA violation notice is considered sufficient if it includes four key pieces of information: the specific community document provision alleged to be violated, the date the violation was observed, the first and last name of the person who observed it, and the process the member must follow to contest the notice. If these are present, the HOA has met its obligation.

Alj Quote

The weight of the evidence shows that the HOA notified Petitioner of the provision of the community documents that had allegedly been violated, the date the violation was observed, the first and last name of the person who observed the violation, and the process the member must follow to contest the notice through the May 27, 2020 notice.

Legal Basis

A.R.S. § 33-1803(D)

Topic Tags

  • violation notices
  • due process
  • HOA procedures

Question

Does the HOA have to send a second 'explanation' letter after I receive a violation notice?

Short Answer

No, not if the original notice already contained all the legally required details.

Detailed Answer

Under Arizona law, the requirement for an HOA to provide a written explanation (often detailed in A.R.S. § 33-1803(E)) is only triggered if the initial violation notice was missing required information. If the initial notice fully satisfied the statutory requirements (provision, date, observer, contest process), the HOA is not required to send further explanation letters before proceeding.

Alj Quote

If a homeowner’s association satisfies the requirements in A.R.S. § 1803(D) (1)-(4) in its notice of violation, A.R.S. § 33-1803 (E) is not triggered and does not apply.

Legal Basis

A.R.S. § 33-1803(E)

Topic Tags

  • violation notices
  • legal requirements

Question

Can the HOA Board go into a closed session to decide on my appeal?

Short Answer

Yes, if the closed session is used to seek legal counsel regarding the decision.

Detailed Answer

While appeals generally involve open discussion, the Board is permitted to adjourn to an executive (closed) session to deliberate if they need to obtain legal advice concerning the decision. This does not violate the open meeting requirement of A.R.S. § 33-1804.

Alj Quote

The preponderance of the evidence does not show that Respondent violated A.R.S. § 33-1804(5) because Petitioner’s appeal was discussed in an open session. Moreover, the HOA presented credible testimony that the session was closed to allow the HOA to seek legal counsel concerning its decision in Petitioner’s appeal

Legal Basis

A.R.S. § 33-1804(A)(1)

Topic Tags

  • board meetings
  • open meeting law
  • executive session

Question

Do I need architectural approval to install a floodlight?

Short Answer

Yes, floodlights can be considered 'structures' or changes requiring approval under CC&Rs.

Detailed Answer

Even if not a building, items like floodlights attached to a home can fall under the scope of CC&R restrictions regarding 'structures' or unapproved changes. The ALJ found that an allegation of an unapproved floodlight falls within the scope of architectural control provisions.

Alj Quote

Respondent alleged that an unapproved flood light was installed at the back of Petitioner’s home. Such allegation falls within the scope of CC&R Article III, § 3.10.

Legal Basis

CC&R Article III, § 3.10

Topic Tags

  • architectural control
  • home improvements
  • lighting

Question

Can I use A.R.S. § 33-1811 to void a penalty if I disagree with the violation?

Short Answer

Generally no, unless the decision involved a conflict of interest or compensation for a board member.

Detailed Answer

A.R.S. § 33-1811 specifically addresses the validity of contracts or decisions involving compensation/conflicts of interest. It is not a catch-all statute to void standard violation penalties where no such compensation or conflict exists.

Alj Quote

A.R.S. § 33-1811 applies to the validity of any contract, decision, or action for compensation taken by or on behalf of the Board. There was no evidence presented at hearing that the Petitioner’s appeal involved a contract, decision or other action for compensation.

Legal Basis

A.R.S. § 33-1811

Topic Tags

  • conflicts of interest
  • penalties
  • statutory interpretation

Question

What is the burden of proof for a homeowner suing their HOA in an administrative hearing?

Short Answer

The homeowner must prove the HOA violated the law by a 'preponderance of the evidence'.

Detailed Answer

In these administrative proceedings, the burden is on the petitioner (the homeowner) to provide evidence that carries greater weight or is more convincing than the evidence offered by the HOA.

Alj Quote

At this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated A.R.S. § 33-1808.

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • legal standards
  • hearings
  • burden of proof

Case

Docket No
21F-H2120022-REL
Case Title
Darryl Jacobson-Barnes & Robert Barnes vs. Circle G Ranches 4 Homeowners Association
Decision Date
2021-08-24
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Darryl Jacobson-Barnes (petitioner)
    Also referred to as Darryl Lynn Barnes–Jacobson and Darryl Barnes
  • Robert Barnes (petitioner)
    Also referred to as Robert A Barnes and Bob Barnes
  • Anthony L. Perez (petitioner attorney)
    Boyes Legal, PC

Respondent Side

  • Clint G. Goodman (respondent attorney)
    Goodman Holmgren Law Group
  • Michelle Mooney (board member)
    Circle G Ranches 4 Homeowners Association Board of Directors
    Filed complaint against Petitioner
  • Jennifer Amundson (property manager)
    VISION Community Management
    Also referred to as Jen Amundson; inspected violation
  • Amanda Stewart (board member)
    Circle G Ranches 4 Homeowners Association Board of Directors
    Board President

Neutral Parties

  • Velva Moses-Thompson (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (ADRE contact)
    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
  • c. serrano (administrative staff)
    Transmitted July 14, 2021 Order
  • Miranda Alvarez (administrative staff)
    Transmitted August 24, 2021 Order

McConnell, Edward J. & Judith S. vs. Dew Mutual Expense Sharing Group

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Case Summary

Case ID 12F-H1213013-BFS
Agency Department of Fire, Building, and Life Safety
Tribunal Office of Administrative Hearings
Decision Date 2013-04-15
Administrative Law Judge Brian Brendan Tully
Outcome The ALJ dismissed the petition. The Petitioners failed to establish that they complied with the certified mail requirement of A.R.S. § 33-1803(C), which meant the HOA was not liable for a violation of § 33-1803(D). Additionally, the evidence showed Petitioners violated the CC&Rs and A.R.S. § 33-1221(2) by altering common elements without written permission.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Edward J. McConnell and Judith S. McConnell Counsel —
Respondent Dew Mutual Expense Sharing Group Counsel —

Alleged Violations

A.R.S. § 33-1803(D)

Outcome Summary

The ALJ dismissed the petition. The Petitioners failed to establish that they complied with the certified mail requirement of A.R.S. § 33-1803(C), which meant the HOA was not liable for a violation of § 33-1803(D). Additionally, the evidence showed Petitioners violated the CC&Rs and A.R.S. § 33-1221(2) by altering common elements without written permission.

Why this result: Failure to satisfy burden of proof regarding certified mail service; confirmation of unauthorized alteration of common elements.

Key Issues & Findings

Failure to provide statutory response to violation notice

Petitioners alleged the HOA violated A.R.S. § 33-1803(D) by delaying the denial of their shade structure request and failing to provide required information. The dispute arose after Petitioners installed a shade structure on common elements without prior written approval.

Orders: Petition dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1803(C)
  • A.R.S. § 33-1803(D)
  • A.R.S. § 33-1221(2)
  • A.R.S. § 33-1252

Video Overview

Audio Overview

Decision Documents

12F-H1213013-BFS Decision – 334072.pdf

Uploaded 2026-04-24T10:45:29 (112.1 KB)

12F-H1213013-BFS Decision – 339518.pdf

Uploaded 2026-04-24T10:45:34 (59.5 KB)

12F-H1213013-BFS Decision – 334072.pdf

Uploaded 2026-01-25T15:28:38 (112.1 KB)

12F-H1213013-BFS Decision – 339518.pdf

Uploaded 2026-01-25T15:28:38 (59.5 KB)

Administrative Law Judge Decision Briefing: McConnell v. Dew Mutual Expense Sharing Group

Executive Summary

This briefing document analyzes the administrative legal dispute between homeowners Edward J. and Judith S. McConnell (Petitioners) and the Dew Mutual Expense Sharing Group (Respondent), an unincorporated condominium association in Sun City, Arizona. The central conflict arose from the Petitioners’ unauthorized installation of an Alumawood™ shade structure on common elements following the trimming of a Palo Verde tree that previously provided shade to their unit.

Following an evidentiary hearing held on March 26, 2013, Administrative Law Judge (ALJ) Brian Brendan Tully determined that the Petitioners failed to sustain their burden of proof. The ALJ found that the Petitioners violated association rules and state statutes by erecting a structure on common elements without written board approval or the required 80% membership conveyance. Conversely, the Petitioners' claims of statutory violations by the Board were dismissed due to procedural failures on the part of the Petitioners. On May 21, 2013, the Office of Administrative Hearings certified the ALJ’s decision as the final administrative action.

Detailed Analysis of Key Themes

1. Compliance with Governing Documents and Architectural Control

The core of the dispute involves the interpretation of Rules & Regulations, Article 2.04 and CC&Rs Paragraph 11. These provisions strictly mandate that no exterior additions or alterations to buildings or structures may be commenced until plans are submitted to and approved in writing by the Board of Management.

  • The Petitioners' Argument: They contended that since the Board’s initial response on September 17, 2012, "neither approved nor denied" their request, the subsequent installation was not a clear violation.
  • The Legal Finding: The ALJ concluded that the absence of an explicit denial does not constitute a "de facto" approval. Because written approval was never granted, the installation of the shade structure on October 24, 2012, was a direct violation of Section 2.04.
2. Jurisdiction over Common Elements

A critical factor in the ruling was the location of the shade structure. The evidence established that the structure was erected outside the condominium unit in the "common elements."

  • Defining Common Elements: Under Paragraph 10 of the CC&Rs, common elements include land not specifically conveyed with individual units, trees, and pavements. In this case, common elements extended from the exterior of the units to the sidewalk.
  • Statutory Requirements (A.R.S. § 33-1252 & § 33-1221): Arizona law prohibits members from changing the appearance of common elements without written permission. Furthermore, erecting a permanent structure on common elements requires a conveyance of that portion of the elements by at least 80% of the association's members. The Petitioners did not seek or obtain this conveyance.
3. Procedural Technicalities and Statutory Interpretation

The Petitioners alleged that the Board violated A.R.S. § 33-1803(D) by failing to provide a timely and detailed response to their inquiries.

  • The Certified Mail Requirement: Under A.R.S. § 33-1803(C) and (D), the association's obligation to provide a detailed written explanation (including the specific rule violated and the observer of the violation) is triggered only after the member sends a response to a violation notice via certified mail.
  • The Ruling: Because the Petitioners failed to prove they sent their November 18, 2012, response by certified mail, the Board was not legally held to the ten-day response requirement or the specific disclosure mandates of the statute.
4. Administrative Outcomes and Limitations

While the Petitioners lost their case, the Board was also denied its request for an order requiring the immediate removal of the structure.

  • Reasoning: The ALJ noted that the Respondent (the Board) had not filed its own petition with the Department seeking removal. The hearing was limited to the issues raised in the Petitioners’ filing; therefore, the ALJ lacked the authority to grant the Board affirmative relief for removal in this specific proceeding.

Important Quotes with Context

Quote Context
"The response letter we received from the board dated September 17, 2012 neither denied nor approved our request." Petitioners' Argument: Used to justify proceeding with construction despite the lack of formal written permission.
"Respondent’s Board expressed its 'misgivings regarding the . . . proposal for an Alumawood™ shade structure . . .' and requested that Petitioners 'explore other options less obtrusive.'" Board's Initial Response: Evidence that the Board did not grant approval and explicitly asked the owners to seek alternatives.
"No building shall be constructed on any part of the common elements." CC&Rs Paragraph 10: The foundational restriction that prohibited the Petitioners from placing a structure on the land surrounding their unit.
"Since Petitioners did not establish that their response had been sent to Respondent by certified mail, it is concluded that Respondent did not violate the provisions of A.R.S. § 33-1803(D)." Legal Conclusion: Highlights the impact of procedural strictness in Arizona homeowners association law.

Actionable Insights

For Homeowners
  • Verification of Property Boundaries: Homeowners must explicitly confirm where their individual unit ends and "common elements" begin before planning any exterior improvements.
  • Written Approval is Non-Negotiable: Under standard HOA/Condominium CC&Rs, the absence of a "no" is not a "yes." Construction should never commence without an affirmative written approval from the Board or Architectural Committee.
  • Strict Statutory Adherence: When disputing a violation notice, homeowners must use certified mail as required by A.R.S. § 33-1803 to preserve their rights and trigger the association's statutory obligations.
For Association Boards
  • Clear Communication: While "expressing misgivings" was sufficient to show non-approval in this case, explicit denials coupled with references to specific rules (like Section 2.04) provide stronger protection against claims of ambiguity.
  • Filing Cross-Petitions: If an association wants an administrative order to compel a homeowner to take action (like removing a structure), it must file its own petition or cross-petition rather than simply requesting it in an answering brief.
  • Common Element Protection: Boards must be aware that any conveyance of common elements for private use (like a permanent shade structure) typically requires a high threshold of membership approval (80% in this jurisdiction).

Procedural History

  • Petition Filed: December 20, 2012
  • Hearing Date: March 26, 2013
  • ALJ Decision Transmitted: April 15, 2013
  • Final Certification: May 21, 2013 (Certified by Cliff J. Vanell, Director of the Office of Administrative Hearings, after the Department of Fire, Building, and Life Safety took no action to modify the decision).

Study Guide: McConnell v. Dew Mutual Expense Sharing Group

This study guide provides a comprehensive overview of the administrative hearing between Edward J. and Judith S. McConnell and the Dew Mutual Expense Sharing Group. It explores the legal complexities of homeowner association (HOA) governance, architectural control, and the statutory requirements governing disputes within a condominium association.

Key Case Overview

The case centers on a dispute regarding the unauthorized installation of a shade structure in the common elements of a 24-unit condominium association in Sun City, Arizona.

Element Detail
Petitioners Edward J. and Judith S. McConnell
Respondent Dew Mutual Expense Sharing Group (Unincorporated Association)
Case Number 12F-H1213013-BFS
Presiding Judge Administrative Law Judge Brian Brendan Tully
Primary Issue Alleged violation of Rules and Regulations Article 2.04 regarding architectural approval.

Core Themes and Legal Principles

1. Architectural Control and Approval Processes

The governing documents of the association, specifically the Covenants, Conditions, and Restrictions (CC&Rs) and the Rules and Regulations, mandate that no exterior additions or alterations can be made without prior written approval from the Board of Management.

  • Article 2.04: Requires plans and specifications (nature, shape, height, location, and cost) to be submitted and approved in writing before construction begins.
  • CC&R Paragraph 11: Emphasizes that design and location must be in "conformity and harmony" with existing structures.
2. Common Elements vs. Individual Units

The definition and use of "common elements" are central to this dispute.

  • Definition: Land not specifically conveyed with individual units, including trees, pavements, streets, and utility lines. It also includes the exterior of condominium units up to the sidewalk.
  • Restriction: No buildings shall be constructed on any part of the common elements.
  • Conveyance: Under A.R.S. § 33-1252(A), a portion of the common elements cannot be conveyed or subjected to a security interest without the agreement of at least 80% of the association members.
3. Burden of Proof and Legal Standards

In administrative hearings of this nature, the petitioner bears the burden of proof.

  • Preponderance of the Evidence: The standard used to determine if a contention is "more probably true than not."
  • A.R.S. § 33-1221(2): Explicitly prohibits members from changing the appearance of common elements or the exterior of a unit without written permission.
4. Statutory Notification Requirements (A.R.S. § 33-1803)

The case highlights specific procedural requirements for communications between members and associations regarding violations:

  • A member must send a written response to a violation notice via certified mail within ten business days.
  • The association must then respond within ten business days of receiving that certified mail with specific information, including the person who observed the violation and the process to contest the notice.

Short-Answer Practice Questions

  1. What event prompted the Petitioners to request a shade structure?

The trimming of a Palo Verde tree in the common elements that previously provided shade to the Petitioners’ kitchen and breakfast room.

  1. On what date did the Petitioners install the shade structure?

October 24, 2012.

  1. What was the Board’s initial response to the Petitioners’ September 12 request?

A letter dated September 17, 2012, expressing "misgivings" and requesting that the Petitioners explore less obtrusive options.

  1. According to the ALJ, why did the Respondent not violate A.R.S. § 33-1803(D)?

Because the Petitioners failed to prove they sent their response to the Board's violation notice via certified mail, which is a statutory prerequisite for triggering the association's response requirements.

  1. What percentage of association members must approve the conveyance of common elements?

At least 80%.

  1. Why was the Respondent’s request to have the shade structure removed denied by the ALJ?

The Respondent had not filed its own petition with the Department seeking an order for removal; the hearing was limited to the single issue raised by the Petitioners.

  1. What was the final outcome of the Petition?

The Administrative Law Judge recommended dismissal of the petition because the Petitioners failed to sustain their burden of proof.

Essay Prompts for Deeper Exploration

  1. The Ambiguity of Informal Communication: Analyze the Petitioners' claim that the Board's September 17 letter was neither a denial nor an approval. Discuss how the lack of a formal "Yes" or "No" contributed to the escalation of the conflict and the legal implications of proceeding with construction during a period of perceived ambiguity.
  2. Common Elements and Property Rights: Explore the definition of "common elements" provided in the CC&Rs. Contrast the individual homeowner's right to property enjoyment (e.g., seeking shade) with the collective ownership rights of the 24-unit association. How does A.R.S. § 33-1252 protect the collective interest?
  3. Procedural Compliance in HOA Disputes: Evaluate the importance of A.R.S. § 33-1803(C) and (D). Why does the law mandate specific methods of communication (like certified mail)? Discuss how a failure to adhere to these procedural "technicalities" can determine the outcome of a legal dispute regardless of the underlying facts.

Glossary of Important Terms

  • Alumawood™: A specific brand or type of material used for shade structures, characterized in this case as an exterior addition.
  • Covenants, Conditions, and Restrictions (CC&Rs): The legal documents that lay out the rules for a real estate development and the responsibilities of the homeowners' association.
  • Common Elements: Areas of a condominium project intended for the use and enjoyment of all owners, rather than being owned by a single individual unit owner.
  • Conveyance: The legal process of transferring property or rights from one party to another.
  • Preponderance of the Evidence: A legal standard of proof that is met when the evidence shows that the fact sought to be proved is more likely than not.
  • Respondent: The party against whom a petition is filed (in this case, the Dew Mutual Expense Sharing Group).
  • Unincorporated Association: A group of individuals who act together for a common purpose without a formal corporate charter, such as the condominium group in this case.
  • Violation Notice: A formal communication from an HOA Board informing a member that a condition of their property violates the community documents.

The Shade Structure Saga: Lessons in HOA Compliance and Common Elements

Introduction: A Cautionary Tale of Condominium Living

In many Arizona communities, the desert sun makes shade a precious commodity. For Edward and Judith McConnell, residents of the Dew Mutual Expense Sharing Group in Sun City, the quest for relief began when a Palo Verde tree in the common area—which previously shaded their kitchen and breakfast room—was trimmed back significantly due to unhealthy limbs. Seeking to reclaim their cool interior, the McConnells decided to install a permanent Alumawood™ shade structure.

What followed was a nearly year-long legal dispute (spanning August 2012 to May 2013) that reached the Office of Administrative Hearings (Case No. 12F-H1213013-BFS). This case serves as a high-stakes cautionary tale, illustrating the emotional and financial drain that occurs when homeowners bypass Governing Documents. For the McConnells, the conflict involved multiple filings with state agencies and a formal evidentiary hearing, all over a structure that lacked the one thing every HOA project requires: a formal "yes."

The Timeline of a Dispute

The conflict between the McConnells and their association provides a clear map of how compliance failures escalate into legal battles:

  • August 2012: A common-area Palo Verde tree is trimmed, removing natural shade from the Petitioners' unit.
  • September 12, 2012: The Petitioners submit a written request for an Alumawood™ shade structure. During this exchange, Board member Ronald Wayne McIntyre testified that Mr. McConnell stated they would build the structure "with or without the Board's approval."
  • September 17, 2012: The Board responds in writing, expressing "misgivings" and asking the Petitioners to "explore other options less obtrusive."
  • October 24, 2012: Despite the lack of approval, the Petitioners proceed with the installation.
  • November 14, 2012: The Board issues a formal denial and orders the structure dismantled, citing a violation of Section 2.04 of the Rules and Regulations.
  • November 18, 2012: The McConnells respond, doubling down by stating their choice was "the most attractive and the least obtrusive one," despite the formal denial.

The Critical Error: The Petitioners mistook a dialogue about "misgivings" for a green light. In an HOA, proceeding with construction without an explicit, written approval is a gamble that homeowners rarely win.

Understanding "Common Elements" and Rule 2.04

A central issue in this case was the physical location of the structure. The association established that the shade structure was erected within "common elements," a legal distinction that limits homeowner autonomy.

Under Paragraph 10 of the CC&Rs, "common elements" are defined specifically as:

"…including, but not limited to, land not otherwise specifically conveyed with individual units, community and commercial facilities, if any, swimming pools, pumps, trees, pavements, streets, pipes, wires, conduits and other public utility lines."

The legal hurdles for private construction on shared ground are nearly insurmountable:

  • The 80% Rule (A.R.S. § 33-1252): Because the structure was built on common elements, it was legally considered a private use of shared property. Under Arizona law, this requires a conveyance approved by at least 80% of the association members. The McConnells failed to obtain this.
  • Section 2.04 Requirements: The association's rules explicitly state that no exterior additions or alterations shall be commenced until plans showing the nature, height, and location are submitted to and approved in writing by the Board.
The Legal Turning Point: The "Certified Mail" Pivot

The McConnells’ legal strategy relied on holding the Board to the strict requirements of A.R.S. § 33-1803(D). They argued the Board failed to respond within 10 business days and failed to provide specific information required by law, such as the observer’s name, the date of the violation, and the contest process (paragraphs 2, 3, and 4 of the statute).

However, the Administrative Law Judge (ALJ) ruled that the Petitioners' entire case collapsed on a single procedural technicality. Under A.R.S. § 33-1803(C), a homeowner responding to a violation notice must send their response via certified mail.

The McConnells sent a response, but they did not use certified mail. Consequently, the Board was never legally triggered to provide the detailed response required by Section (D). This "Aha!" moment in court proved that "sending a letter" is not the same as fulfilling a statutory requirement.

Consultant's Rule: The Statute is Your Script In Arizona HOA law, your rights are often tied to specific delivery methods. If the law says "certified mail," an email or standard letter—no matter how well-written—is legally invisible. Follow the statute to the letter to preserve your right to a defense.

The Judge’s Decision and Final Certification

The ALJ concluded that the Petitioners failed to sustain their burden of proof. The evidence was clear: they had built a permanent structure on common elements without written permission or an 80% member conveyance.

The "Recommended Order" contained a final lesson in procedural irony. While the Judge dismissed the McConnells' petition, he also denied the Board’s request to force the removal of the structure. Why? Because the Board had only filed an "Answer" to the complaint rather than filing their own formal cross-petition for removal. This serves as a reminder that everyone—both homeowners and Boards—is bound by the strict procedural rules of the court.

On May 21, 2013, Director Cliff J. Vanell of the Office of Administrative Hearings certified the decision as the final administrative action, officially dismissing the case.

Key Takeaways for Homeowners
  1. Silence is Not Consent: A Board's "misgivings" or a delay in their response is never a substitute for a written approval letter.
  2. Know Your Boundaries: Understand that "common elements" often include everything from the exterior paint of your unit to the ground beneath your feet. Private use of shared land is a high legal bar.
  3. Technicalities Matter: In legal disputes, the method of delivery (certified mail) is just as important as the facts of the case.
  4. Written Approval is Mandatory: Never proceed based on verbal conversations. As the McIntyre testimony showed, a "willful violation" (building with or without approval) creates a difficult narrative to overcome in court.
Conclusion

The "Shade Structure Saga" highlights the delicate balance between individual comfort and collective governance. While the McConnells simply wanted to enjoy their kitchen without the glare of the sun, their decision to ignore the technical and procedural requirements of the CC&Rs led to an exhausting and ultimately unsuccessful legal journey. In a community association, following the process is not just a suggestion—it is a prerequisite for every nail, bolt, and beam.

Case Participants

Petitioner Side

  • Edward J. McConnell (Petitioner)
    Member of Respondent association
  • Judith S. McConnell (Petitioner)
    Member of Respondent association

Respondent Side

  • Kenn MacIntosh (authorized representative)
    Dew Mutual Expense Sharing Group
    Spelled 'Ken Macintosh' in mailing list
  • Ronald Wayne McIntyre (board member)
    Dew Mutual Expense Sharing Group
    Received written request from Petitioners
  • Jan Mayfield (Secretary)
    Dew Mutual Expense Sharing Group
    Listed as 'Dew Condo Group Secretary' on mailing list

Neutral Parties

  • Brian Brendan Tully (ALJ)
    Office of Administrative Hearings
  • Cliff J. Vanell (OAH Director)
    Office of Administrative Hearings
    Certified the ALJ decision
  • Gene Palma (Agency Director)
    Department of Fire, Building, and Life Safety
    Received copy of decision
  • Joni Cage (Agency Staff)
    Department of Fire, Building, and Life Safety
    c/o for Gene Palma on mailing list

Steadman, Lorinda and John -v- Esquire Village Homeowners Association

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Case Summary

Case ID 11F-H1112004-BFS
Agency Department of Fire, Building and Life Safety
Tribunal OAH
Decision Date 2012-04-09
Administrative Law Judge Lewis D. Kowal
Outcome The ALJ ruled in favor of the Petitioners, finding that the Gadsden flag is a protected flag under A.R.S. § 33-1808 as it was historically an official flag of the Marine Corps. The HOA's determination of a violation was improper, and the fines were ordered withdrawn. The HOA was ordered to refund the Petitioners' filing fee.
Filing Fees Refunded $550.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Lorinda and John Steadman Counsel J. Roger Wood
Respondent Esquire Village Homeowners Association Counsel Joseph Tadano

Alleged Violations

A.R.S. § 33-1808

Outcome Summary

The ALJ ruled in favor of the Petitioners, finding that the Gadsden flag is a protected flag under A.R.S. § 33-1808 as it was historically an official flag of the Marine Corps. The HOA's determination of a violation was improper, and the fines were ordered withdrawn. The HOA was ordered to refund the Petitioners' filing fee.

Key Issues & Findings

Restriction on flying the Gadsden flag

Petitioners challenged the HOA's assessment of fines for flying the Gadsden flag. The HOA argued the flag was not protected under A.R.S. § 33-1808. The ALJ determined that because the Gadsden flag was historically an official flag of the U.S. Marine Corps, it fell under the statutory protection for official service flags, regardless of whether it is currently used as the primary official flag.

Orders: Respondent is to take appropriate action to reflect that the flying of the Gadsden flag was not a violation and withdraw the assessment of any fees imposed. Respondent shall pay Petitioners their filing fee of $550.00.

Filing fee: $550.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1808
  • A.R.S. § 33-1803(D)

Video Overview

Audio Overview

Decision Documents

11F-H1112004-BFS Decision – 289742.pdf

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11F-H1112004-BFS Decision – 292654.pdf

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Administrative Law Judge Decision: Steadman v. Esquire Village Homeowners Association

Executive Summary

This briefing document analyzes the administrative law case Lorinda and John Steadman v. Esquire Village Homeowners Association (No. 11F-H1112004-BFS). The central conflict involved the assessment of fines by the Esquire Village Homeowners Association (the "Association") against the Steadmans for flying the Gadsden flag in their backyard.

The Administrative Law Judge (ALJ), Lewis D. Kowal, ruled in favor of the Petitioners (the Steadmans), concluding that the Gadsden flag was protected under the version of A.R.S. § 33-1808 in effect at the time of the dispute. The ruling established that because the Gadsden flag served as an official flag of the United States Marine Corps at one point in history, it fell under statutory protections regardless of its "current" status. Consequently, the Association was ordered to rescind the fines and reimburse the Petitioners' $550.00 filing fee.

Detailed Analysis of Key Themes

1. Statutory Interpretation of A.R.S. § 33-1808

The crux of the legal dispute was the interpretation of Arizona Revised Statute § 33-1808, which limits the power of homeowners associations to prohibit the display of certain flags.

  • The "Official" vs. "Current" Distinction: The Association argued that the Gadsden flag was not a "protected" flag because it was not currently identified as an official flag in modern military manuals. However, the ALJ focused on the specific text of the statute: "an official or replica flag of the United States army, navy, air force, marine corps."
  • The Indefinite Article "An": The ALJ noted that the use of the word "an" suggests any one of a number of official flags, rather than a single, current iteration.
  • Historical Protection: Because the statute lacked the word "current," the ALJ determined that if a flag was ever an official flag of a military branch, it met the criteria for protection. The Petitioners successfully argued that the Gadsden flag was, at some time, an official flag of the U.S. Marine Corps.
2. The Evolution of Legislative Protections

The timing of the dispute coincided with a change in Arizona law.

  • Pre-Amendment Context: The violations and fines were issued between November 2010 and February 2011, under a version of the statute that did not explicitly name the Gadsden flag.
  • The 2011 Amendment: In April 2011 (effective July 2011), the statute was amended to specifically identify the Gadsden flag as a protected flag.
  • Legal Sufficiency: While the Association believed they were within their rights because the Gadsden flag was not yet explicitly named in the statute during the violation period, the ALJ found the broader language of the existing statute already provided sufficient protection.
3. Evidentiary Standards and Burden of Proof

The case highlighted a disparity in the quality of evidence presented by the parties:

  • Respondent’s Evidence: The Association President, Julie Frost, conducted personal research in military manuals and claimed to have spoken with Arizona legislative counsel. However, the ALJ gave this "little weight" because no formal legal opinion was produced, and the counsel did not testify.
  • Petitioners’ Evidence: The Steadmans provided legal opinions from the ACLU of Arizona, references to historical records, and an Arizona State Senate Issue Brief. They also presented testimony from Pat Haruff, a homeowner advocate.
4. HOA Governance and Procedural Compliance

The management company, Renaissance Community Partners, issued the violation notices and fines at the direction of the Board. The Petitioners raised concerns regarding procedural failures, including:

  • Failure to respond to each individual appeal.
  • Failure to identify the specific persons who observed the violations.
  • Failure to provide information on the challenge procedure.
  • Outcome on Procedure: Because the ALJ ruled that the flags were protected by law, these procedural issues were deemed moot.

Important Quotes with Context

Quote Context
"Absent from the statute is any requirement that the flag in question be the sole official flag of any of the armed forces." ALJ Analysis: Explaining why the Gadsden flag qualifies for protection even if it is not the primary current flag of a military branch.
"Noticeably absent is any requirement than an official flag be a 'current' official flag of such forces." ALJ Analysis: The reasoning used to justify historical flags (like the Gadsden) as protected under the broad language of A.R.S. § 33-1808.
"The Administrative Law Judge concludes that under the law existing at the time at issue, Petitioners could fly the Gadsden flag." Ruling: The final determination that the Association's fines were improperly assessed based on the law as it stood in 2010-2011.
"Respondent’s determinations that violations occurred were improperly made and the fees were improperly assessed." Conclusion of Law: The formal invalidation of the Association's disciplinary actions against the Steadmans.

Actionable Insights

For Homeowners Associations (HOAs)
  • Broad Statutory Interpretation: HOAs should interpret state-protected categories (like flags) broadly. Relying on a narrow "current use" definition can lead to legal liability if the statute does not explicitly include the word "current."
  • Verification of Legal Advice: Relying on informal conversations with legislative counsel or press releases from other communities is insufficient for a legal defense. Boards should obtain formal, written legal opinions before issuing fines on contested statutory issues.
  • Impact of Pending Legislation: Even if a specific item (like a flag) is not yet explicitly protected by name, its impending addition to a statute (as seen in the 2011 amendment) often indicates how a judge will interpret existing, broader language.
For Homeowners
  • Burden of Proof: Homeowners bear the burden of proving a violation of state law by a preponderance of the evidence. Comprehensive documentation, including historical context and expert opinions (such as those from the ACLU), is critical to meeting this burden.
  • Administrative Recourse: The Department of Fire, Building and Life Safety provides a venue for challenging HOA actions. While there is a filing fee (in this case, $550.00), the prevailing party is entitled to reimbursement of that fee.
Legal Precedent Established
  • Historical Military Flags: This case reinforces that historical flags of the U.S. military branches carry the same statutory protections as current flags in Arizona, provided they were "official" at some point in the branch's history.

Case Study Analysis: Lorinda and John Steadman vs. Esquire Village Homeowners Association

This study guide provides a comprehensive overview of the administrative law case involving the right of homeowners to display certain flags within a Homeowners Association (HOA) community. It examines the legal interpretations of Arizona Revised Statutes (A.R.S.), the burden of proof in administrative hearings, and the specific facts of the dispute between the Steadman family and the Esquire Village Homeowners Association.

I. Executive Case Summary

Case Number: 11F-H1112004-BFS Parties: Lorinda and John Steadman (Petitioners) vs. Esquire Village Homeowners Association (Respondent) Administrative Law Judge: Lewis D. Kowal Final Certification Date: May 15, 2012

The core of this dispute involved the assessment of fines by the Esquire Village Homeowners Association against Lorinda and John Steadman for flying the Gadsden flag in their backyard. The Association argued the flag was not protected under state law at the time of the violation, while the Petitioners argued it qualified as an official military flag. The Administrative Law Judge (ALJ) ultimately ruled in favor of the Petitioners, determining that the fines were improperly assessed based on a textual interpretation of the existing statute.

II. Key Legal Concepts and Statutes

A.R.S. § 33-1808: Flag Display Protections

At the time of the dispute, this statute prohibited HOAs from restricting the outdoor display of specific flags, notwithstanding any provisions in community documents (CC&Rs). Protected flags included:

  • The American flag.
  • An official or replica flag of the United States army, navy, air force, marine corps, or coast guard.
  • The POW/MIA flag.
  • The Arizona state flag.
  • An Arizona Indian nation flag.

Statutory Amendment: In April 2011 (effective July 2011), the statute was amended to specifically name the Gadsden flag as a protected flag. However, the violations in this case occurred under the version of the statute in effect prior to this amendment.

A.R.S. § 33-1803(D): Violation Procedures

This statute outlines the requirements for an association when notifying a member of a violation, including the procedure for appeals. The Petitioners challenged the Association's compliance with these procedures, though the ALJ eventually found this issue moot due to the primary ruling.

Legal Standards
  • Burden of Proof: In this administrative proceeding, the Petitioners bore the burden of proving that the Respondent violated the law.
  • Preponderance of the Evidence: The standard of proof required. It is defined as evidence of greater weight or more convincing than the evidence offered in opposition; showing that the fact to be proved is "more probable than not."

III. Factual Timeline and Evidence

Chronology of Events
Date Event
February 4, 2008 Petitioners apply to the Architectural Review Committee for a 20-foot flagpole.
March 4, 2008 Application approved, subject to the list of flags in A.R.S. § 33-1808.
November 9, 2010 Association sends a letter informing Petitioners of a violation for flying the Gadsden flag.
February 9, 2011 Association issues a $50.00 fine; Petitioners appeal to the Board.
February 23, 2011 Association issues a second $50.00 fine; Petitioners appeal to the Board.
August 29, 2011 Petitioners file a Petition with the Department of Fire, Building and Life Safety.
March 22, 2012 Administrative hearing held.
April 9, 2012 ALJ issues decision in favor of Petitioners.
May 15, 2012 Decision certified as final.
Evidence and Testimony
  • Respondent’s Research: Board President Julie Frost testified she researched military manuals and spoke with legislative counsel. She concluded the Gadsden flag was not an "official" flag. The ALJ gave the legislative counsel's alleged opinion "little weight" as it was not corroborated by formal testimony or a written legal opinion.
  • Petitioners’ Evidence: Petitioners provided legal opinions from hired counsel and the ACLU of Arizona, a Wikipedia reference, and an Arizona State Senate Issue Brief from August 2010.
  • Expert Testimony: Pat Haruff, Director of the Coalition of HomeOwners for Rights and Education, testified that she had advised the Association's management company (Renaissance Community Partners) that the flag should be allowed.

IV. The ALJ’s Interpretation and Ruling

The ALJ’s decision rested on a "textual analysis" of A.R.S. § 33-1808(A)(1).

  1. The "An" vs. "The" Distinction: The statute protected "an" official flag of the marine corps, not "the" official flag. This suggests that any one of multiple official flags (past or present) is protected.
  2. Lack of Recency Requirement: The statute did not require a flag to be a "current" official flag.
  3. Determination: Because evidence showed the Gadsden flag was, at some time, an official flag of the U.S. Marine Corps, it fell under the protection of the statute even before the 2011 amendment specifically named it.

Final Order:

  • The Association was ordered to withdraw all fees and violation notices regarding the Gadsden flag.
  • The Association was ordered to reimburse the Petitioners for their $550.00 filing fee.

V. Short-Answer Practice Questions

  1. What was the specific amount of the filing fee the Petitioners had to pay to the Department?
  • Answer: $550.00.
  1. Under which management company did the Association issue the violation notices?
  • Answer: Renaissance Community Partners.
  1. Why did the ALJ give "little weight" to Julie Frost’s testimony regarding her conversation with legislative counsel?
  • Answer: There was no corroborating testimony from the counsel, no written analysis provided, and no evidence that it constituted a formal legal opinion.
  1. What was the Association's primary justification for regulating the flagpole and flags under the CC&Rs?
  • Answer: Section 11.1 of the CC&Rs, which granted the Architectural Review Committee authority over aesthetic improvements visible from the street.
  1. Identify the specific date the 2011 amendment to A.R.S. § 33-1808 became effective.
  • Answer: July 2011.
  1. What was the total amount in fines specifically identified in the findings of fact?
  • Answer: Two fines of $50.00 each, totaling $100.00.
  1. What organization did Pat Haruff represent?
  • Answer: Coalition of HomeOwners for Rights and Education.
  1. According to the ALJ’s interpretation, did the Gadsden flag need to be the "current" official flag of the Marine Corps to be protected?
  • Answer: No; the statute only required it to have been "an" official flag at some time.

VI. Essay Prompts for Deeper Exploration

  1. Statutory Interpretation: Analyze the ALJ's decision to use a textualist approach to interpret A.R.S. § 33-1808. How did the distinction between the articles "an" and "the" change the outcome of the case? Discuss how this interpretation impacts the rights of HOAs to regulate historical versus modern military flags.
  2. The Burden of Proof in Administrative Law: Explain the "preponderance of the evidence" standard as applied in this case. Compare the evidence provided by the Association (internal research and uncorroborated conversations) with the evidence provided by the Petitioners (legal opinions and historical briefs). Why was the Petitioners' evidence more "convincing" in the eyes of the court?
  3. The Impact of Legislative Amendments: The Gadsden flag was specifically added to the statute shortly after this dispute began. Discuss the legal implications of flying a flag that is not yet specifically named in a statute but may fall under a broader category. Should the Association have paused enforcement given the pending legislative change?

VII. Glossary of Important Terms

  • A.R.S. (Arizona Revised Statutes): The codified laws of the state of Arizona.
  • ALJ (Administrative Law Judge): An official who presides over administrative hearings, hears evidence, and issues decisions on disputes involving state agencies.
  • Architectural Review Committee: A body within an HOA responsible for approving or denying changes to the aesthetic appearance of properties (e.g., flagpoles, fences).
  • CC&Rs (Covenants, Conditions, and Restrictions): The governing documents of a homeowners association that dictate what a homeowner can and cannot do with their property.
  • Gadsden Flag: A historical American flag depicting a rattlesnake with the words "Don't Tread on Me," used by the U.S. Marine Corps in its early history.
  • Preponderance of the Evidence: The standard of proof in most civil and administrative cases; it means that a fact is more likely to be true than not.
  • Respondent: The party against whom a petition or complaint is filed (in this case, the Esquire Village Homeowners Association).
  • Petitioner: The party who initiates a legal action or petition (in this case, the Steadmans).

Flag Rights and HOA Overreach: The Case of the Gadsden Flag

1. Introduction: A Battle in the Backyard

The legal showdown between Lorinda and John Steadman and the Esquire Village Homeowners Association represents a critical victory for property owners against the encroaching tide of arbitrary private governance. At the heart of this dispute was the Gadsden flag—the yellow banner featuring a coiled rattlesnake and the defiant motto "Don't Tread on Me." What began as a simple act of expression in a private backyard escalated into a punitive campaign of fines and notices.

The Association’s decision to penalize the Steadmans rested on a legally deficient and overly restrictive interpretation of state law. By claiming the Gadsden flag was not "protected," the HOA attempted to override a homeowner’s statutory rights. This case—and the subsequent ruling—serves as a masterclass in how precise textual analysis of A.R.S. § 33-1808 can be used to dismantle HOA overreach and defend the right to display historical symbols of American service.

2. The Dispute: Fines, Flags, and Formalities

The facts of case No. 11F-H1112004-BFS reveal an enforcement process characterized by a lack of independent oversight. Notably, the Association’s Architectural Review Committee (ARC) was not an independent body but was comprised of the Board members themselves, creating an environment ripe for confirmation bias in enforcement.

Key Events and Factual Negligence:

  • February 4, 2008: The Steadmans applied to install a 20-foot aluminum flagpole in their rear yard.
  • March 4, 2008: The ARC (the Board) approved the application, provided the flags flown were limited to those protected by A.R.S. § 33-1808.
  • November 9, 2010: The Association initiated a violation notice against the Steadmans specifically for flying the Gadsden flag.
  • February 2011: Under the direction of the Board, Kevin Bishop, President of the management company Renaissance Community Partners, issued two separate $50.00 fines.
  • Procedural Failing: Throughout the dispute, the Association failed to identify specific provisions in the community's governing documents that would support a violation, relying instead on their flawed interpretation of state law.

3. The Legal Pivot: Interpreting A.R.S. § 33-1808

The Association’s defense was built on the premise that the Gadsden flag was not explicitly listed in the version of A.R.S. § 33-1808 then in effect. However, Administrative Law Judge Lewis D. Kowal utilized a sophisticated textual analysis to expose the Association’s error.

The statute protected the display of "the American flag or an official or replica flag of the United States army, navy, air force, [or] marine corps." The judge identified a crucial grammatical distinction found in Footnote 4 of the decision:

  • "The" vs. "An": The use of the definite article "the" for the American flag implies a specific, singular, and current version. However, the use of the indefinite article "an" for military flags implies any one of a number of official flags.
  • Historical Inclusion: Because the statute did not require a flag to be the current or sole official flag, any flag that was "at some time" an official flag of a military branch qualified for protection.

The judge concluded that the Gadsden flag, as a historical flag of the U.S. Marine Corps, was protected under A.R.S. § 33-1808 at all relevant times. This analysis effectively blocked the HOA from using a "current-only" standard to suppress historical expression.

4. Evidence and Testimony: Research vs. Reality

The hearing highlighted the disparity between the Association’s amateur research and the substantiated evidence provided by the homeowners.

HOA/Respondent (Board Defense) Steadman/Petitioners (Property Rights Defense)
Julie Frost (President) conducted research in military manuals; ironically, she testified that the Gadsden flag was mentioned in the Marine Corps manual—providing the very evidence used against the HOA. Legal opinion from the ACLU of Arizona supporting the homeowners' right to fly the flag as a protected military symbol.
Reliance on uncorroborated hearsay from a conversation with legislative counsel. The judge gave this "little weight" as it was not a formal legal opinion. Inclusion of Wikipedia as a reference tool, which was stipulated into evidence to establish the flag's historical military status.
Consideration of a press release from a private law firm regarding a different community, rather than seeking a binding legal ruling. An Arizona State Senate Issue Brief (August 24, 2010) clarifying that HOAs cannot prohibit military flags.
Testimony from Kevin Bishop confirming the Association's refusal to resolve the matter despite homeowner appeals. Testimony from Pat Haruff, Director of the Coalition of HomeOwners for Rights and Education, who advocated for the Steadmans' rights.

5. The Final Verdict: Accountability for the HOA

On April 9, 2012, Judge Kowal ruled in favor of the Steadmans, a decision certified as final on May 15, 2012. The ruling was a total rebuke of the Association’s actions. The judge noted that while the Petitioners bore the burden of proof, they met it by a preponderance of the evidence—showing it was more probable than not that the flag held official military status.

The Association was ordered to:

  • Withdraw all assessments: Rescind all fines and fees related to the Gadsden flag.
  • Correct Official Records: Update Association records to explicitly show that flying the flag was not a violation of the ARC’s approval.
  • Financial Penalty: In a significant move for accountability, the Association was ordered to reimburse the Steadmans $550.00 for their filing fee, shifting the financial burden of the HOA’s legal error back onto the Board.

6. Conclusion: Key Takeaways for Homeowners

The Steadman case provides a blueprint for homeowners facing HOA overreach regarding A.R.S. § 33-1808:

  1. Statutory Interpretation is a Shield: Small words like "an" can have massive legal consequences. Never accept an HOA's restrictive reading of the law without a professional textual analysis.
  2. Vindicating Legislative Response: While the judge ruled the Gadsden flag was already protected under the "official flag" umbrella, the Arizona legislature responded to this type of overreach by amending A.R.S. § 33-1808 in July 2011 to explicitly list the Gadsden flag, removing any shadow of a doubt for future residents.
  3. The Standard of Evidence: Homeowners do not need absolute certainty to win; they must only meet the preponderance of the evidence standard. Thorough documentation and the use of resources like Senate Briefs and expert advocacy can tilt the scales.

Ultimately, this case proves that the balance of power in a managed community does not reside solely with the Board. When an Association attempts to "tread" on the statutory rights of its members, the law provides a robust mechanism for accountability and the restoration of property rights.

Case Participants

Petitioner Side

  • Lorinda Steadman (petitioner)
    Homeowner
  • John Steadman (petitioner)
    Homeowner
  • L. Roger Wood (attorney)
    The Law Offices of J. Roger Wood, PLLC
    Listed as 'L. Roger Wood' in appearances and 'J. Roger Wood' in service list
  • Pat Haruff (witness)
    Coalition of HomeOwners for Rights and Education
    Director of Coalition; advocate for homeowners

Respondent Side

  • Esquire Village Homeowners Association (respondent)
    Entity named as Respondent
  • Joseph Tadano (attorney)
    Farley Sletos & Choate
  • Kevin Bishop (witness)
    Renaissance Community Partners
    President of the management company
  • Julie Frost (board member)
    Esquire Village Homeowners Association
    Board President; testified at hearing

Neutral Parties

  • Lewis D. Kowal (ALJ)
    Office of Administrative Hearings
  • Gene Palma (agency director)
    Department of Fire, Building and Life Safety
    Listed on transmission of decision
  • Cliff J. Vanell (agency director)
    Office of Administrative Hearings
    Certified the decision
  • Beth Soliere (agency staff)
    Department of Fire, Building and Life Safety
    ATTN recipient for transmission