Petitioner was deemed the prevailing party based on the finding that Respondent violated A.R.S. § 33-1804(B) by failing to hold required annual meetings of the Association’s members since 2010. Respondent was ordered to refund the $500 filing fee and comply with A.R.S. § 33-1804. Petitioner failed to establish the remaining alleged violations concerning the Declarant's right to appoint the Board or violations of A.R.S. §§ 33-1810 and 33-1817, or most CC&R sections.
Why this result: Petitioner failed to establish by a preponderance of the evidence that Respondent violated A.R.S. §§ 33-1810 and 33-1817, or the cited sections of the CC&Rs or Bylaws related to the Declarant's power to appoint the board.
Key Issues & Findings
Declarant control, board appointment without vote or meeting, and failure to hold annual meetings
Petitioner alleged Respondent violated multiple statutes and governing documents by allowing the Declarant to solely appoint the Board of Directors and failing to hold annual meetings. The Administrative Law Judge found that the Respondent violated A.R.S. § 33-1804(B) by failing to notice or hold annual members meetings since 2010. All other alleged violations were not established.
Orders: Respondent ordered to pay Petitioner his filing fee of $500.00 and directed to comply with the requirements of A.R.S. § 33-1804 going forward.
Can an HOA stop holding annual meetings if they are unable to get enough members to attend (quorum)?
Short Answer
No. State law requires an annual meeting regardless of past attendance issues.
Detailed Answer
Even if an HOA has failed to reach a quorum for many years, they are still strictly required by Arizona law to notice and hold a meeting of the members at least once each year. Failing to do so is a violation of A.R.S. § 33-1804.
Alj Quote
A.R.S. § 33-1804(B) requires that a meeting of the members' association be held at least once each year.
Legal Basis
A.R.S. § 33-1804(B)
Topic Tags
meetings
quorum
compliance
Question
If I claim the HOA violated the Bylaws, do I have to submit the Bylaws as evidence?
Short Answer
Yes. You must submit the specific governing documents you claim were violated.
Detailed Answer
If a homeowner argues that the HOA violated a specific provision of the Bylaws (such as election procedures), they must enter those Bylaws into evidence. Without the actual document in the record, the judge cannot find a violation.
Alj Quote
Although Petitioner argued in his written closing argument that as of November 18, 2012, elections should have begun by the membership under Article 5 of Respondent’s Bylaws, Petitioner did not submit a copy of Respondent’s Bylaws into evidence, nor was section 5 of the Bylaws submitted with the petition.
Legal Basis
Evidentiary Burden
Topic Tags
evidence
procedure
bylaws
Question
Can the Administrative Law Judge order the HOA to appoint specific homeowners to the Board?
Short Answer
No. The judge's power is limited to ordering compliance with laws and documents.
Detailed Answer
The tribunal does not have the jurisdiction to appoint specific individuals to a 'transition Board' or replace directors. It can only order the HOA to follow the statutes and community documents going forward.
Alj Quote
While Petitioner requested that he and other owners be appointed to a transition Board, the Administrative Law Judge’s jurisdiction in this tribunal is limited to ordering a party to abide by applicable statutes and community documents.
Legal Basis
Jurisdiction
Topic Tags
remedies
board of directors
jurisdiction
Question
What is the standard of proof for a homeowner suing their HOA?
Short Answer
Preponderance of the evidence.
Detailed Answer
The homeowner must prove that their claims are 'more probably true than not.' This is the standard evidentiary burden in administrative hearings.
Alj Quote
Petitioners bear the burden of proof to establish that Respondent violated the Act or Respondent’s CC&Rs by a preponderance of the evidence.
Legal Basis
A.R.S. § 41-1092.07(G)(2)
Topic Tags
legal standards
burden of proof
Question
Does the HOA automatically get fined if the judge finds they violated state law?
Short Answer
No. Civil penalties are not automatic.
Detailed Answer
A judge may find that a violation occurred (such as failing to hold meetings) but still decide that a civil penalty is not appropriate in that specific matter.
Alj Quote
No Civil Penalty is found to be appropriate in this matter.
Legal Basis
Administrative Discretion
Topic Tags
penalties
fines
enforcement
Question
Can I get my $500 filing fee back if I win the hearing?
Short Answer
Yes. The judge can order the HOA to reimburse the filing fee.
Detailed Answer
If the homeowner is deemed the prevailing party, the judge may order the Respondent (HOA) to pay the Petitioner the amount of the filing fee within a set timeframe.
Alj Quote
IT IS FURTHER ORDERED that Respondent pay Petitioner his filing fee of $500.00, to be paid directly to Petitioner within thirty (30) days of this Order.
Legal Basis
Prevailing Party Costs
Topic Tags
fees
reimbursement
costs
Question
Is it illegal for a developer (Declarant) to appoint the Board without an election?
Short Answer
Not necessarily, unless specific statutes or bylaws prohibit it.
Detailed Answer
Simply alleging that a Declarant is appointing the board without a vote is not enough to prove a violation. The homeowner must prove that specific statutes or the community's CC&Rs/Bylaws expressly prohibit this arrangement at the current time.
Alj Quote
Regarding the remaining alleged violations, the statutes listed in the petition do no bar [the Declarant] from appointing the Board members or operating as the President of the Board.
Legal Basis
CC&Rs / Statutes
Topic Tags
declarant control
board appointments
elections
Case
Docket No
24F-H030-REL
Case Title
Michael J. Morris vs. StarPass Master Homeowner Association, Inc.
Decision Date
2024-04-23
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE
Questions
Question
Can an HOA stop holding annual meetings if they are unable to get enough members to attend (quorum)?
Short Answer
No. State law requires an annual meeting regardless of past attendance issues.
Detailed Answer
Even if an HOA has failed to reach a quorum for many years, they are still strictly required by Arizona law to notice and hold a meeting of the members at least once each year. Failing to do so is a violation of A.R.S. § 33-1804.
Alj Quote
A.R.S. § 33-1804(B) requires that a meeting of the members' association be held at least once each year.
Legal Basis
A.R.S. § 33-1804(B)
Topic Tags
meetings
quorum
compliance
Question
If I claim the HOA violated the Bylaws, do I have to submit the Bylaws as evidence?
Short Answer
Yes. You must submit the specific governing documents you claim were violated.
Detailed Answer
If a homeowner argues that the HOA violated a specific provision of the Bylaws (such as election procedures), they must enter those Bylaws into evidence. Without the actual document in the record, the judge cannot find a violation.
Alj Quote
Although Petitioner argued in his written closing argument that as of November 18, 2012, elections should have begun by the membership under Article 5 of Respondent’s Bylaws, Petitioner did not submit a copy of Respondent’s Bylaws into evidence, nor was section 5 of the Bylaws submitted with the petition.
Legal Basis
Evidentiary Burden
Topic Tags
evidence
procedure
bylaws
Question
Can the Administrative Law Judge order the HOA to appoint specific homeowners to the Board?
Short Answer
No. The judge's power is limited to ordering compliance with laws and documents.
Detailed Answer
The tribunal does not have the jurisdiction to appoint specific individuals to a 'transition Board' or replace directors. It can only order the HOA to follow the statutes and community documents going forward.
Alj Quote
While Petitioner requested that he and other owners be appointed to a transition Board, the Administrative Law Judge’s jurisdiction in this tribunal is limited to ordering a party to abide by applicable statutes and community documents.
Legal Basis
Jurisdiction
Topic Tags
remedies
board of directors
jurisdiction
Question
What is the standard of proof for a homeowner suing their HOA?
Short Answer
Preponderance of the evidence.
Detailed Answer
The homeowner must prove that their claims are 'more probably true than not.' This is the standard evidentiary burden in administrative hearings.
Alj Quote
Petitioners bear the burden of proof to establish that Respondent violated the Act or Respondent’s CC&Rs by a preponderance of the evidence.
Legal Basis
A.R.S. § 41-1092.07(G)(2)
Topic Tags
legal standards
burden of proof
Question
Does the HOA automatically get fined if the judge finds they violated state law?
Short Answer
No. Civil penalties are not automatic.
Detailed Answer
A judge may find that a violation occurred (such as failing to hold meetings) but still decide that a civil penalty is not appropriate in that specific matter.
Alj Quote
No Civil Penalty is found to be appropriate in this matter.
Legal Basis
Administrative Discretion
Topic Tags
penalties
fines
enforcement
Question
Can I get my $500 filing fee back if I win the hearing?
Short Answer
Yes. The judge can order the HOA to reimburse the filing fee.
Detailed Answer
If the homeowner is deemed the prevailing party, the judge may order the Respondent (HOA) to pay the Petitioner the amount of the filing fee within a set timeframe.
Alj Quote
IT IS FURTHER ORDERED that Respondent pay Petitioner his filing fee of $500.00, to be paid directly to Petitioner within thirty (30) days of this Order.
Legal Basis
Prevailing Party Costs
Topic Tags
fees
reimbursement
costs
Question
Is it illegal for a developer (Declarant) to appoint the Board without an election?
Short Answer
Not necessarily, unless specific statutes or bylaws prohibit it.
Detailed Answer
Simply alleging that a Declarant is appointing the board without a vote is not enough to prove a violation. The homeowner must prove that specific statutes or the community's CC&Rs/Bylaws expressly prohibit this arrangement at the current time.
Alj Quote
Regarding the remaining alleged violations, the statutes listed in the petition do no bar [the Declarant] from appointing the Board members or operating as the President of the Board.
Legal Basis
CC&Rs / Statutes
Topic Tags
declarant control
board appointments
elections
Case
Docket No
24F-H030-REL
Case Title
Michael J. Morris vs. StarPass Master Homeowner Association, Inc.
Decision Date
2024-04-23
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Michael J. Morris(petitioner) StarPass Master Homeowner Association member; Sub-HOA President
Bruce Prior(witness) StarPass Master Homeowner Association member; past subHOA president
Michael Schmidt(witness) Wildcat Pass HOA Board member Also referred to as Michael Smidt
Respondent Side
F. Christopher Ansley(declarant) StarPass Master Homeowner Association President/Property Manager; Devcon LLC Also referred to as Chris Ansley or mistakenly as Craig Ansley
David Makavoy(lawyer) Ansley's lawyer concerning amendment recording
Neutral Parties
Velva Moses-Thompson(ALJ) Office of Administrative Hearings Also referred to as Alderman Thompson
Brian Larson(CPA) Brian Larson CTA Provided quarterly financial statements for Master HOA
Susan Nicolson(Commissioner) Arizona Department of Real Estate
Other Participants
Jimmy Liscos(board member) StarPass Master Homeowner Association Board of Directors; focus group member Appointed board member who was also part of the focus group/group of seven
Jamie Haw(board member) StarPass Master Homeowner Association Board of Directors; focus group member Appointed board member who resigned
The Meadows at Eagle Ridge Property Owners Association, Inc.
Counsel
—
Alleged Violations
A.R.S. § 33-1804(B)
Outcome Summary
The Administrative Law Judge concluded that the Association violated A.R.S. § 33-1804(B) and the Association's Bylaws by failing to hold an annual members meeting in 2019. The petition was granted, and the Association was ordered to comply in the future and reimburse the Petitioner's $500.00 filing fee.
Key Issues & Findings
Failure to Hold Members Meeting
Petitioner alleged the Association failed to hold an annual members meeting in 2019. The Association admitted no meeting was held due to concerns about obtaining a sufficient amount of votes during the holiday season.
Orders: Petition granted. Respondent ordered to fully comply with A.R.S. § 33-1804(B) and Article IV, Section 1 of the Association's Bylaws in the future and reimburse the $500.00 filing fee.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1804(B)
A.A.C. R2-19-119
Association Bylaws Article IV, Section 1
Decision Documents
21F-H2121034-REL Decision – 874987.pdf
Uploaded 2026-03-03T16:21:32 (65.7 KB)
**Case Summary: 21F-H2121034-REL**
**Parties:** Robert H. Gelinas (Petitioner) v. The Meadows at Eagle Ridge Property Owners Association, Inc. (Respondent).
**Key Facts and Main Issue:**
The Petitioner, a property owner within the Eagle Ridge development, filed a single-issue petition with the Arizona Department of Real Estate. The central allegation was that the Respondent violated Arizona Revised Statutes (A.R.S.) § 33-1804(B) and Article IV, Section 1 of the Association's Bylaws by failing to hold an annual members meeting during the 2019 calendar year. Instead, the Association held the 2019 members meeting on January 11, 2020. The legal issue was whether this delay constituted a violation of the governing statute and bylaws, with the burden resting on the Petitioner to prove the violation by a preponderance of the evidence.
**Hearing Proceedings and Key Arguments:**
During the evidentiary hearing on April 8, 2021, representatives for the Association admitted that no members meeting took place in 2019. The defense presented two main arguments for this delay:
* The president of the Association's management company testified that she believed it was standard to hold the meeting in January after the financial books close at the end of December.
* Another Association witness testified that a 2019 meeting was avoided due to concerns that holiday season absences would prevent them from securing a sufficient amount of votes.
Despite these practical explanations, the legal requirements outlined in both A.R.S. § 33-1804(B) and the Association's Bylaws are clear, mandating that an annual members meeting must be held at least once every twelve months (each year).
**Final Decision and Outcome:**
Administrative Law Judge Velva Moses-Thompson ruled in favor of the Petitioner. Because it was undisputed that the Association failed to hold a members meeting in 2019, the Judge concluded that the Petitioner successfully established that the Association violated A.R.S. § 33-1804(B) and Article IV, Section 1 of its Bylaws.
**The Administrative Law Judge issued the following orders:**
* **The petition was granted**.
* The Association must **fully comply with A.R.S. § 33-1804(B) and Article IV, Section 1** of its Bylaws in the future.
* The Association must **pay $500.00 to the Petitioner** to reimburse his filing fee within 30 days of the Order.
Case Participants
Petitioner Side
Robert H. Gelinas(petitioner) Appeared on behalf of himself; property owner
Respondent Side
Deborah Bolzano(property manager) DHB Management President of DHB Management; appeared and testified on behalf of the Respondent
Bill Godwin(witness) The Meadows at Eagle Ridge Property Owners Association, Inc. Testified on behalf of the Association
Neutral Parties
Velva Moses-Thompson(ALJ) Office of Administrative Hearings
Judy Lowe(commissioner) Arizona Department of Real Estate
The HOA prevailed on all three complaints regarding records, fee increases, and meeting notices. Petitioner failed to prove violations.
Why this result: Petitioner failed to prove violations by a preponderance of the evidence; HOA complied with statutes regarding record provision and meeting notice mailing; fee increase vote was valid without proxy.
Key Issues & Findings
Records Request Violation
Petitioner alleged HOA failed to provide requested records. ALJ found HOA reasonably clarified burdensome requests and provided available records timely.
Orders: Petitioner's claim denied; HOA prevailed.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 33-1805
Invalid Fee Increase / Proxy Vote
Petitioner alleged a $5 fee increase was invalid due to a proxy vote. ALJ found the proxy vote was not included in final valid count which met 2/3 requirement.
Orders: Petitioner's claim denied; HOA prevailed.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 33-1812(A)
Meeting Notice Violation
Petitioner alleged meeting notice was not received 10 days prior. ALJ ruled mailing at UPS contract postal unit 13 days prior satisfied 'sent' requirement.
**Case Title:** *Gregory L. Czekaj v. Colonia Del Rey HOA, Inc.*
**Case Number:** 19F-H1918040-REL-RHG
**Date of Rehearing Decision:** March 25, 2020
**Procedural Status: Rehearing**
This summary details a **rehearing** of a dispute initially decided on July 8, 2019. The rehearing was granted by the Arizona Department of Real Estate Commissioner after the Petitioner alleged procedural errors regarding the retroactive swearing-in of witnesses during the initial hearing,. This summary distinguishes between the original findings and the rehearing analysis where applicable.
**Background**
The case involves a Homeowners Association (HOA) comprised of nine homes. The Petitioner, a homeowner, filed three complaints alleging statutory violations. The HOA filed a counter-petition (Complaint Four) regarding the Petitioner's conduct,.
**Complaint One: Records Requests**
* **Issue:** Petitioner alleged the HOA failed to provide requested records in violation of A.R.S. § 33-1805.
* **Original Decision:** The Administrative Law Judge (ALJ) ruled the HOA prevailed. The ALJ found Petitioner’s request for "any and all" records burdensome and determined the HOA complied timely with clarified requests,.
* **Rehearing Proceedings:** Petitioner argued his requests were not burdensome and claimed the HOA "refused" access, citing the 1984 CC&Rs and the lack of a physical business office as violations,. The HOA noted it has no office and records are kept in volunteers' homes.
* **Rehearing Outcome:** The ALJ affirmed that the request for "any and all" documents was burdensome. The HOA satisfied its obligations by emailing documents and facilitating a records review session,. The ALJ ruled the HOA never refused records and remained the prevailing party,.
**Complaint Two: Fee Increase Validity**
* **Issue:** Petitioner argued a $5 fee increase was invalid because the vote utilized a proxy, which he claimed violated A.R.S. § 33-1812.
* **Original Decision:** The ALJ found that although a proxy was discussed, it was not counted in the final tally. The valid vote count (5 YES, 1 NO) met the requirement of 2/3 of votes cast.
* **Rehearing Proceedings:** Petitioner argued that passage required six votes (2/3 of the membership). The HOA clarified that the governing documents require 2/3 of *votes cast*. Petitioner also attempted to introduce new arguments regarding ballot formatting, which the
Case Participants
Petitioner Side
Gregory L. Czekaj(Petitioner) Homeowner Appeared on his own behalf
Gary Wolf(Petitioner's Attorney) Contacted HOA attorney regarding records
Respondent Side
Marybeth Andree(HOA President) Colonia Del Rey HOA, Inc. Represented the HOA; also Secretary during some events
Carolyn Goldschmidt(HOA Attorney) Responded to records requests
Phil Oliver(Witness) Colonia Del Rey HOA, Inc. Former HOA President
Susan Sotelo(Witness) Colonia Del Rey HOA, Inc. Former HOA Secretary; testified regarding mailing of notices
Les Andree(Attendee) Marybeth Andree's husband; present at May 6, 2017 meeting
Neutral Parties
Kay Abramsohn(Administrative Law Judge) Office of Administrative Hearings
Mr. Tick(Witness) Insurance Agent Testified regarding HOA insurance policy request
Damian Schaffer(Witness) UPS Store UPS store clerk
Ed Freeman(Tenant) Involved in proxy vote issue; ineligible to vote
Sarah Hitch(Proxy Holder) Tenant who cast proxy vote
Judy Lowe(Commissioner) Arizona Department of Real Estate Recipient of the order
Other Participants
Maryanne Beerling(Member) Colonia Del Rey HOA, Inc. Present at May 6, 2017 meeting
The ALJ ruled in favor of the Petitioner on both counts. It was found that the HOA violated statutes by failing to hold annual meetings in 2017 and 2018 and failing to timely respond to records requests. The HOA was ordered to refund the Petitioner's $1,000.00 filing fee.
Key Issues & Findings
Failure to hold annual meetings
Petitioner alleged Respondent failed to hold annual meetings. Respondent admitted to not holding meetings in 2017 and 2018 due to a belief that a quorum could not be established.
Orders: Violation found. Respondent ordered to comply (implied via prevailing party status).
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
Failure to timely provide records
Petitioner alleged Respondent repeatedly failed to provide requested community documents within the statutory timeframe. Respondent eventually provided documents but not within the required time.
Orders: Violation found.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
Decision Documents
20F-H2019004-REL Decision – 757066.pdf
Uploaded 2026-01-27T21:17:20 (89.0 KB)
**Case Summary: Pursley v. Sycamore Vista No. 7 Homeowners Association, Inc.**
**Case No.** 20F-H2019004-REL
**Date of Decision:** December 4, 2019
**Administrative Law Judge:** Tammy L. Eigenheer
**Proceedings and Parties**
The hearing took place on October 18, 2019, before the Arizona Department of Real Estate. The Petitioner, Michael D. Pursley, a member of the Sycamore Vista No. 7 Homeowners Association (HOA), appeared on his own behalf. The Respondent (the HOA) was represented by counsel.
**Key Facts and Arguments**
The dispute centered on two main allegations regarding the HOA's failure to adhere to statutory governance requirements:
1. **Failure to Hold Meetings:** The Petitioner alleged, and the Respondent acknowledged, that the HOA did not hold annual member meetings in 2017 or 2018.
* *Respondent’s Argument:* The HOA argued that because the lots were undeveloped and uninhabited during those years, they believed they could not achieve the necessary quorum to hold a meeting.
2. **Failure to Provide Records:** The Petitioner sent multiple requests for governing documents (CC&Rs, Bylaws, financials) on January 20, April 6, and June 21, 2019.
* *Respondent’s Action:* The HOA's management company eventually emailed the requested documents on June 27, 2019.
* *Legal Standard:* A.R.S. § 33-1805 requires associations to fulfill records requests within 10 business days.
**Legal Issues**
* **A.R.S. § 33-1804(B):** Whether the HOA violated the statutory requirement to hold a member meeting at least once each year.
* **A.R.S. § 33-1805(A):** Whether the HOA failed to make records reasonably available within the statutory timeframe.
**Tribunal Findings and Decision**
The Administrative Law Judge ruled in favor of the Petitioner, concluding that the HOA violated both statutory provisions:
* **Annual Meetings:** The Tribunal found the Petitioner established by a preponderance of the evidence that the HOA failed to hold the required annual meetings in 2017 and 2018.
* **Records Requests:** The Tribunal found the HOA failed to timely respond to the Petitioner’s document requests as required by law, noting that while the Petitioner eventually received the documents, the response was not within the mandated timeframe.
**Final Outcome and Order**
* **Prevailing Party:** The Petitioner was deemed the prevailing party.
* **Monetary Award:** The Respondent was ordered to pay the Petitioner’s filing fee of $1,000.00 within 30 days.
* **Civil Penalty:** The Judge determined that no civil penalty was appropriate in this matter.
Case Participants
Petitioner Side
Michael D. Pursley(petitioner) Appeared on his own behalf
Respondent Side
Maxwell T. Riddiough(respondent representative) Sycamore Vista No. 7 Homeowners Association, Inc. Represented the Respondent
Bradley P. Miller(Statutory Agent) Sycamore Vista No 7 HOA, Inc. Listed on transmission list
Neutral Parties
Tammy L. Eigenheer(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate Listed on transmission list
Felicia Del Sol(clerk) Office of Administrative Hearings Transmitted the decision
The Petitioner's request for a hearing was denied and the petition was dismissed because the Petitioner failed to prove the Homeowners Association violated A.R.S. § 33-1804(B) or its Bylaw 1.5 by refusing to place a proposed bylaw amendment on the meeting agenda or ballot.
Why this result: The relevant statute and HOA bylaws do not mandate that the Board add a member-proposed amendment to the agenda; the member has the independent recourse of gathering member support (25% or 1/4 of votes) to call a special meeting, a route the Petitioner was aware of but did not pursue.
Key Issues & Findings
Failure to place a proposed bylaw amendment on the agenda of the annual meeting
Petitioner alleged Respondent HOA violated A.R.S. § 33-1804(B) and Bylaw 1.5 by refusing to place his proposed bylaw amendment (Bylaw 3.13, concerning banning directors whose actions resulted in a paid claim) on the agenda or ballot for the annual meeting.
Orders: Petition denied because Petitioner did not establish that Respondent violated the cited statute or bylaw by declining to add the proposed amendment to the agenda or ballot.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 33-1804(B)
Bylaw 1.5
Bylaw 2.2
Analytics Highlights
Topics: HOA, Bylaw Amendment, Meeting Agenda, Director liability, Statute interpretation
Additional Citations:
A.R.S. § 33-1804(B)
A.R.S. § 32-2199(B)
A.R.S. § 41-1092.07(G)(2)
A.R.S. § 41-1092.09
Respondent’s Bylaw 1.5
Respondent’s Bylaw 2.2
Video Overview
Audio Overview
Decision Documents
19F-H1919065-REL Decision – 742075.pdf
Uploaded 2026-01-23T17:29:36 (159.4 KB)
Briefing Doc – 19F-H1919065-REL
Briefing Document: West v. Desert Sage Two Homeowners Association (Case No. 19F-H1919065-REL)
Executive Summary
This document provides a comprehensive analysis of the Administrative Law Judge (ALJ) Decision in the matter of Jason West (Petitioner) versus the Desert Sage Two Homeowners Association (Respondent), Case No. 19F-H1919065-REL. The petition, filed on May 20, 2019, was ultimately denied in a decision issued on October 1, 2019.
The central issue was the Petitioner’s allegation that the Respondent’s Board of Directors violated Arizona statute A.R.S. § 33-1804(B) and its own Bylaw 1.5 by refusing to add his proposed bylaw amendment to the agenda for the annual members’ meeting. The proposed amendment sought to ban directors from serving for five years if their actions resulted in a paid claim against the Association.
The ALJ’s ruling was decisive: the Petitioner failed to meet the burden of proof. The decision rested on a strict interpretation of the relevant statute and bylaws. The ALJ concluded that neither A.R.S. § 33-1804(B) nor the Association’s bylaws compel the Board to place a member-initiated proposal on the agenda of a Board-scheduled meeting. Critically, the bylaws provide a distinct and available remedy for members: Bylaw 2.2 allows members to force a special meeting for any purpose, including bylaw amendments, by gathering the support of 25% of the voting membership. The record showed the Petitioner was aware of this option but did not attempt to use it. Consequently, the petition was dismissed. The Respondent’s request for attorney’s fees was also denied, as the presiding body (the Office of Administrative Hearings) lacks the statutory authority to award them in such proceedings.
1. Case Overview
Case Name
Jason West v. Desert Sage Two Homeowners Association
Case Number
19F-H1919065-REL
Jurisdiction
Office of Administrative Hearings (OAH), Arizona
Presiding Judge
Administrative Law Judge Diane Mihalsky
Hearing Date
September 26, 2019
Decision Date
October 1, 2019
Petitioner
Jason West, appearing on his own behalf
Respondent
Desert Sage Two Homeowners Association, represented by Bradley R. Jardine, Esq.
Core Allegation: The Petitioner alleged that the Respondent’s Board violated state law and its governing documents by refusing to include his proposed bylaw amendment on the agenda and ballot for the annual meeting held in June 2019.
2. The Proposed Bylaw Amendment (Bylaw 3.13)
The Petitioner submitted a proposal to add a new Bylaw 3.13 to the Association’s governing documents. The full text of the proposed amendment is as follows:
Directors whose actions result in a paid claim
In an effort to reduce liability to the Association, any current or former director whose actions have resulted in a paid claim by the Association or its insurance carrier, is banned from serving as a director for a period of five years from the date of the final payment. This five year directorship ban also applies to any other individual co-owning an Association lot with the director. This Amendment is retroactive.
The stated purpose of the amendment was to reduce the Association’s liability. The decision notes that some of the current Board members may have been serving when the Association’s insurance carrier paid legal fees and other costs associated with a previous petition filed by the Petitioner.
3. Chronology of the Dispute
• December 23, 2018: The Petitioner first sent his proposed Bylaw 3.13 amendment to Joanelize Morales, the Association’s property manager.
• January 3 & 4, 2019: The Petitioner emailed Mickey Latz, owner of the management company, demanding the proposal be added to the next meeting’s agenda and ballot. In this correspondence, the Petitioner explicitly stated his awareness of the alternative process, writing, “I can also force the Board to call a Special Meeting of the Members at any time with 10 signatures from members of our Association. This is Article 2.2 of our Bylaws.”
• January – June 2019: Mr. Latz repeatedly informed the Petitioner that the Board, based on legal advice, had decided not to add the proposal to the agenda of a Board-scheduled meeting.
• April 17, 2019: Notice was sent to members for the annual meeting scheduled for June 4, 2019. The agenda was limited to (1) Election of Directors and (2) Approval of 2018 Annual Meeting Minutes. On the same day, the Petitioner re-sent his proposed amendment.
• May 14, 2019: The Petitioner attended a Board meeting and threatened to file a petition with the Department of Real Estate if his amendment was not placed on the agenda.
• May 20, 2019: The Petitioner filed the formal petition that led to this hearing.
• June 3, 2019: A notice was sent rescheduling the meeting to June 20, 2019, with the agenda unchanged.
• June 20, 2019: At the annual meeting, the Petitioner, whose name was on the ballot, was not elected to the Board of Directors.
4. Governing Authorities and Bylaws
The ALJ’s decision centered on the interpretation of one state statute and two specific Association bylaws.
• A.R.S. § 33-1804(B): This Arizona statute governs homeowners’ association meetings. It requires annual meetings and specifies notice requirements. It explicitly provides a mechanism for members to call special meetings: “Special meetings of the members’ association may be called by the president, by a majority of the board of directors or by members having at least twenty-five percent, or any lower percentage specified in the bylaws, of the votes in the association.”
• Bylaw 1.5 (Amendment Process): This bylaw states that amendments can be made “at a regular or special meeting of the Members, by a vote of the Members having a majority (more than 50%) of the votes.” The ALJ found that this bylaw is permissive, allowing for votes on amendments, but does not obligate the Board to place any specific proposal on an agenda.
• Bylaw 2.2 (Special Meetings): This bylaw mirrors the state statute, allowing members to compel a meeting. It states: “Special meetings of the Members may be called at any time … upon written request signed by Members having at least one-fourth (1/4) of the authorized votes… which request shall be delivered to the President or Secretary.”
5. Summary of Key Testimony
The hearing included testimony from the Petitioner and six witnesses he subpoenaed, including property managers and the three current Board members.
• Board Members (Bryan Selna, David Epstein, Linda Seidler): All testified that they consulted with the Association’s attorneys and property management company. Based on the advice received, they collectively decided not to add the Petitioner’s proposal to the agenda.
• Mickey Latz (Property Management Co. Owner): Testified that the Board as a whole, not the secretary, determines the meeting agenda. He affirmed that counsel had advised the Board it was not obligated to add member-requested items. Mr. Latz testified that he explicitly pointed the Petitioner to the process outlined in Bylaw 2.2, which allows members to call their own meetings directly.
• Joanelize Morales (Property Manager): Confirmed that she prepares meeting agendas based on the Board’s instructions. She also testified that the Petitioner never attempted to use the Bylaw 2.2 process to gather the support of his neighbors to schedule a meeting to consider his proposed amendment.
6. Historical Context and Prior Litigation
The decision provides context regarding the Petitioner’s previous interactions with the Association.
• Prior Petition (OAH Case No. 17F-H1716031-REL): In April 2017, the Petitioner filed a petition concerning the Board’s failure to fill vacant positions. On June 28, 2017, an ALJ dismissed that petition, concluding that the Board had done all it could and that vacancies were due in part to the Petitioner’s “obstructionist tactics.”
• Successful Amendment (Bylaw 3.12): In April 2017, the Petitioner proposed a different amendment regarding director resignations. The Board at that time agreed to submit it to a vote, and it was passed by the membership in May 2017.
7. Administrative Law Judge’s Decision and Rationale
The ALJ’s conclusions of law methodically dismantled the Petitioner’s claims, leading to the dismissal of the petition.
• Burden of Proof: The decision established that the Petitioner bore the burden of proving, by a preponderance of the evidence, that the Respondent had violated the statute and bylaw.
• Statutory and Bylaw Interpretation: The ALJ applied a plain-language reading to the governing authorities.
◦ The court found that nothing in the language of A.R.S. § 33-1804(B)requires an HOA board to add an item to an agenda at a member’s request. Instead, it provides the remedy for members to call a meeting themselves.
◦ Similarly, the court concluded that Bylaw 1.5 allows for bylaw amendments to be considered at meetings but does not compel the Board to include such proposals on the agenda of a meeting it has noticed.
◦ The ALJ found that Bylaw 2.2 provides the explicit and proper procedure for a member to bring an issue to a vote when the Board declines to do so: gather support from 25% of the members to call a special meeting.
• Final Ruling: Because the Petitioner failed to establish a violation of any cited statute or bylaw, the petition was ordered to be denied.
• Attorney’s Fees: The Respondent’s request for attorney’s fees was denied. The decision cited legal precedent establishing that administrative bodies like the Department of Real Estate and the OAH are not empowered by the legislature to award attorney’s fees in these types of disputes.
Study Guide – 19F-H1919065-REL
Study Guide: West v. Desert Sage Two Homeowners Association
Short-Answer Quiz
Answer the following questions in 2-3 complete sentences, based on the provided administrative law judge decision.
1. Who are the Petitioner and the Respondent in this case, and what is their relationship?
2. What specific action did the Petitioner, Jason West, allege the Respondent took that violated Arizona statute and the association’s bylaws?
3. Describe the substance of the proposed Bylaw 3.13 that the Petitioner wanted to add to the agenda.
4. What was the Respondent’s primary defense for not adding the proposed bylaw amendment to the annual meeting’s agenda or ballot?
5. According to Bylaw 2.2, what procedural option did the Petitioner have to bring his proposed amendment to a vote without the Board’s approval?
6. What was the outcome of the Petitioner’s previous case against the Respondent in 2017 (OAH Case No. 17F-H1716031-REL)?
7. What two specific authorities did the Petitioner claim the Respondent’s Board violated?
8. According to the Administrative Law Judge’s interpretation, does A.R.S. § 33-1804(B) require an HOA board to add an item to an agenda at a single member’s request?
9. What was the final order of the Administrative Law Judge in this case (No. 19F-H1919065-REL)?
10. What was the judge’s ruling regarding the Respondent’s request for attorney’s fees, and what was the reason for this ruling?
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Answer Key
1. The Petitioner is Jason West, who owns a house in the Desert Sage Two development. The Respondent is the Desert Sage Two Homeowners Association, of which the Petitioner is a member.
2. The Petitioner alleged that the Respondent violated A.R.S. § 33-1804(B) and its own Bylaw 1.5. The specific violation was the Board’s failure to place a bylaw amendment proposed by the Petitioner on the agenda of the association’s annual meeting.
3. The proposed Bylaw 3.13 sought to ban any current or former director from serving on the board for five years if their actions resulted in a paid claim by the association or its insurance carrier. This ban would be retroactive and also apply to any individual co-owning a lot with the director.
4. The Respondent’s Board, after consulting with its attorneys and property management company, argued that neither state law nor its bylaws obliged them to add items to an agenda at a single member’s request. They contended that the Petitioner had the option to call a special meeting himself by gathering support from other members.
5. Bylaw 2.2 allows for a special meeting of the members to be called upon a written request signed by members who hold at least one-fourth (25%) of the authorized votes. The Petitioner was aware of this option but had not attempted to use it.
6. In the previous case, the Administrative Law Judge dismissed the Petitioner’s petition. The judge concluded that the Board had done all it could to fill vacant positions and that the Petitioner’s own “obstructionist tactics” were part of the reason no eligible members were willing to serve.
7. The Petitioner claimed the Respondent’s Board violated Arizona Revised Statute § 33-1804(B) and the association’s Bylaw 1.5.
8. No, the judge concluded that nothing in the language of A.R.S. § 33-1804(B) requires a homeowners’ association board to add an item to an agenda or ballot at the request of a single member. The statute only provides that members with at least 25% of the votes can independently call a meeting.
9. The Administrative Law Judge ordered that the Petitioner’s petition be denied. The judge found that the Petitioner had not established that the Respondent’s Board violated either A.R.S. § 33-1804(B) or Bylaw 1.5.
10. The judge ruled that attorney’s fees could not be awarded to the Respondent. The reason given is that the legislature has not empowered the Department of Real Estate or the Office of Administrative Hearings to award attorney’s fees in this type of administrative proceeding.
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Essay Questions
Construct a detailed essay response for each of the following prompts, using only evidence and reasoning found within the case document.
1. Analyze the Administrative Law Judge’s method of statutory construction and interpretation of restrictive covenants. How did the judge apply these principles to A.R.S. § 33-1804(B) and Bylaw 1.5 to reach a conclusion?
2. Discuss the balance of power between an individual HOA member and the Board of Directors as illustrated in this case. What rights and recourses are available to a member who disagrees with a Board decision, according to the Respondent’s Bylaws?
3. Explain the concept of “burden of proof” as it applies to this case. Who held the burden of proof, what was the standard required, and why was the Petitioner unable to meet this standard?
4. Examine the history between the Petitioner and the Respondent as detailed in the “Findings of Fact.” How might this prior history, including the 2017 legal case and a previously successful bylaw amendment, have influenced the actions of both parties in the current dispute?
5. Based on the testimony of Michael David (“Mickey”) Latz and the text of the bylaws, contrast the process for placing an item on the agenda of a Board-scheduled meeting versus the process for calling a member-initiated special meeting. What are the key differences in initiative, requirements, and control?
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Glossary of Key Terms
Definition from Source Context
Administrative Law Judge (ALJ)
An independent official (Diane Mihalsky) from the Office of Administrative Hearings who presides over evidentiary hearings and issues decisions on petitions filed with the Arizona Department of Real Estate.
A.R.S. § 33-1804(B)
An Arizona statute cited by the Petitioner. It stipulates that an HOA members’ meeting must be held at least annually and that special meetings can be called by the president, a board majority, or members with at least 25% of the votes.
Bylaw 1.5
A bylaw of the Desert Sage Two HOA that states the Bylaws may be amended at a regular or special meeting by a majority vote of members present in person or by proxy.
Bylaw 2.2
A bylaw of the Desert Sage Two HOA that allows for special meetings of the members to be called by the president, the Board, or upon written request from members holding at least one-fourth (25%) of the votes.
Department
The Arizona Department of Real Estate, the state body authorized to receive and decide petitions for hearings from members of homeowners’ associations.
Homeowners’ Association
An organization whose members own property and/or residences in a specific development (in this case, Desert Sage Two in Scottsdale, Arizona).
Office of Administrative Hearings (OAH)
An independent state agency to which the Department refers petitions for an evidentiary hearing.
Petitioner
Jason West, the member of the homeowners’ association who filed the petition alleging a violation by the association’s Board.
Petition
A formal complaint filed with the Department of Real Estate by an HOA member or the HOA itself concerning alleged violations.
Preponderance of the evidence
The burden of proof standard required in the hearing. It is defined as “proof as convinces the trier of fact that the contention is more probably true than not” and as evidence with “the most convincing force.”
Respondent
The Desert Sage Two Homeowners Association, the entity against which the petition was filed.
Restrictive Covenant
A rule or provision within community documents, like bylaws, that is enforced to give effect to the intent of the parties if it is unambiguous.
Blog Post – 19F-H1919065-REL
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This text is an Administrative Law Judge Decision from the Arizona Office of Administrative Hearings (OAH) concerning a dispute between a homeowner, Jason West (Petitioner), and his association, the Desert Sage Two Homeowners Association (Respondent). The Petitioner alleged that the Respondent violated Arizona statute (A.R.S. § 33-1804(B)) and an association bylaw by refusing to place his proposed bylaw amendment on the agenda of the annual meeting. The proposed amendment sought to ban directors whose actions resulted in a paid insurance claim from serving for five years, but the Administrative Law Judge (ALJ) found that neither the statute nor the association’s bylaws required the Board to add a member-proposed item to a scheduled agenda or ballot. Therefore, the ALJ concluded that the Petitioner failed to prove a violation and denied the petition.
What was the specific legal and procedural context of this homeowners association dispute?
How did the Petitioner’s proposed bylaw amendment attempt to alter Board member liability?
What statutory and bylaw provisions guided the final Administrative Law Judge decision?
Edward A. Padilla(property manager) Desert Sage Two Homeowners Association Property manager in May 2017; testified for Petitioner; also referred to as 'Eddie'
Joanelize Morales(property manager) Desert Sage Two Homeowners Association Property manager since August 2018; testified for Petitioner
Bryan Robert Selna(board member) Desert Sage Two Homeowners Association Current Vice President of Respondent's Board; testified for Petitioner
David Epstein(board member) Desert Sage Two Homeowners Association Current President of Respondent's Board; testified for Petitioner
Linda Maria Seidler(board member) Desert Sage Two Homeowners Association Current Secretary of Respondent's Board; testified for Petitioner
Michael David Latz(property manager) Golden Valley Property Management Owner of Golden Valley Property Management; testified for Petitioner; also referred to as 'Mickey'
Neutral Parties
Diane Mihalsky(ALJ) Office of Administrative Hearings
Judy Lowe(ADRE Commissioner) Arizona Department of Real Estate
The Petitioner's request for a hearing was denied and the petition was dismissed because the Petitioner failed to prove the Homeowners Association violated A.R.S. § 33-1804(B) or its Bylaw 1.5 by refusing to place a proposed bylaw amendment on the meeting agenda or ballot.
Why this result: The relevant statute and HOA bylaws do not mandate that the Board add a member-proposed amendment to the agenda; the member has the independent recourse of gathering member support (25% or 1/4 of votes) to call a special meeting, a route the Petitioner was aware of but did not pursue.
Key Issues & Findings
Failure to place a proposed bylaw amendment on the agenda of the annual meeting
Petitioner alleged Respondent HOA violated A.R.S. § 33-1804(B) and Bylaw 1.5 by refusing to place his proposed bylaw amendment (Bylaw 3.13, concerning banning directors whose actions resulted in a paid claim) on the agenda or ballot for the annual meeting.
Orders: Petition denied because Petitioner did not establish that Respondent violated the cited statute or bylaw by declining to add the proposed amendment to the agenda or ballot.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 33-1804(B)
Bylaw 1.5
Bylaw 2.2
Analytics Highlights
Topics: HOA, Bylaw Amendment, Meeting Agenda, Director liability, Statute interpretation
Additional Citations:
A.R.S. § 33-1804(B)
A.R.S. § 32-2199(B)
A.R.S. § 41-1092.07(G)(2)
A.R.S. § 41-1092.09
Respondent’s Bylaw 1.5
Respondent’s Bylaw 2.2
Video Overview
Audio Overview
Decision Documents
19F-H1919065-REL Decision – 742075.pdf
Uploaded 2025-10-09T03:34:19 (159.4 KB)
Briefing Doc – 19F-H1919065-REL
Briefing Document: West v. Desert Sage Two Homeowners Association (Case No. 19F-H1919065-REL)
Executive Summary
This document provides a comprehensive analysis of the Administrative Law Judge (ALJ) Decision in the matter of Jason West (Petitioner) versus the Desert Sage Two Homeowners Association (Respondent), Case No. 19F-H1919065-REL. The petition, filed on May 20, 2019, was ultimately denied in a decision issued on October 1, 2019.
The central issue was the Petitioner’s allegation that the Respondent’s Board of Directors violated Arizona statute A.R.S. § 33-1804(B) and its own Bylaw 1.5 by refusing to add his proposed bylaw amendment to the agenda for the annual members’ meeting. The proposed amendment sought to ban directors from serving for five years if their actions resulted in a paid claim against the Association.
The ALJ’s ruling was decisive: the Petitioner failed to meet the burden of proof. The decision rested on a strict interpretation of the relevant statute and bylaws. The ALJ concluded that neither A.R.S. § 33-1804(B) nor the Association’s bylaws compel the Board to place a member-initiated proposal on the agenda of a Board-scheduled meeting. Critically, the bylaws provide a distinct and available remedy for members: Bylaw 2.2 allows members to force a special meeting for any purpose, including bylaw amendments, by gathering the support of 25% of the voting membership. The record showed the Petitioner was aware of this option but did not attempt to use it. Consequently, the petition was dismissed. The Respondent’s request for attorney’s fees was also denied, as the presiding body (the Office of Administrative Hearings) lacks the statutory authority to award them in such proceedings.
1. Case Overview
Case Name
Jason West v. Desert Sage Two Homeowners Association
Case Number
19F-H1919065-REL
Jurisdiction
Office of Administrative Hearings (OAH), Arizona
Presiding Judge
Administrative Law Judge Diane Mihalsky
Hearing Date
September 26, 2019
Decision Date
October 1, 2019
Petitioner
Jason West, appearing on his own behalf
Respondent
Desert Sage Two Homeowners Association, represented by Bradley R. Jardine, Esq.
Core Allegation: The Petitioner alleged that the Respondent’s Board violated state law and its governing documents by refusing to include his proposed bylaw amendment on the agenda and ballot for the annual meeting held in June 2019.
2. The Proposed Bylaw Amendment (Bylaw 3.13)
The Petitioner submitted a proposal to add a new Bylaw 3.13 to the Association’s governing documents. The full text of the proposed amendment is as follows:
Directors whose actions result in a paid claim
In an effort to reduce liability to the Association, any current or former director whose actions have resulted in a paid claim by the Association or its insurance carrier, is banned from serving as a director for a period of five years from the date of the final payment. This five year directorship ban also applies to any other individual co-owning an Association lot with the director. This Amendment is retroactive.
The stated purpose of the amendment was to reduce the Association’s liability. The decision notes that some of the current Board members may have been serving when the Association’s insurance carrier paid legal fees and other costs associated with a previous petition filed by the Petitioner.
3. Chronology of the Dispute
• December 23, 2018: The Petitioner first sent his proposed Bylaw 3.13 amendment to Joanelize Morales, the Association’s property manager.
• January 3 & 4, 2019: The Petitioner emailed Mickey Latz, owner of the management company, demanding the proposal be added to the next meeting’s agenda and ballot. In this correspondence, the Petitioner explicitly stated his awareness of the alternative process, writing, “I can also force the Board to call a Special Meeting of the Members at any time with 10 signatures from members of our Association. This is Article 2.2 of our Bylaws.”
• January – June 2019: Mr. Latz repeatedly informed the Petitioner that the Board, based on legal advice, had decided not to add the proposal to the agenda of a Board-scheduled meeting.
• April 17, 2019: Notice was sent to members for the annual meeting scheduled for June 4, 2019. The agenda was limited to (1) Election of Directors and (2) Approval of 2018 Annual Meeting Minutes. On the same day, the Petitioner re-sent his proposed amendment.
• May 14, 2019: The Petitioner attended a Board meeting and threatened to file a petition with the Department of Real Estate if his amendment was not placed on the agenda.
• May 20, 2019: The Petitioner filed the formal petition that led to this hearing.
• June 3, 2019: A notice was sent rescheduling the meeting to June 20, 2019, with the agenda unchanged.
• June 20, 2019: At the annual meeting, the Petitioner, whose name was on the ballot, was not elected to the Board of Directors.
4. Governing Authorities and Bylaws
The ALJ’s decision centered on the interpretation of one state statute and two specific Association bylaws.
• A.R.S. § 33-1804(B): This Arizona statute governs homeowners’ association meetings. It requires annual meetings and specifies notice requirements. It explicitly provides a mechanism for members to call special meetings: “Special meetings of the members’ association may be called by the president, by a majority of the board of directors or by members having at least twenty-five percent, or any lower percentage specified in the bylaws, of the votes in the association.”
• Bylaw 1.5 (Amendment Process): This bylaw states that amendments can be made “at a regular or special meeting of the Members, by a vote of the Members having a majority (more than 50%) of the votes.” The ALJ found that this bylaw is permissive, allowing for votes on amendments, but does not obligate the Board to place any specific proposal on an agenda.
• Bylaw 2.2 (Special Meetings): This bylaw mirrors the state statute, allowing members to compel a meeting. It states: “Special meetings of the Members may be called at any time … upon written request signed by Members having at least one-fourth (1/4) of the authorized votes… which request shall be delivered to the President or Secretary.”
5. Summary of Key Testimony
The hearing included testimony from the Petitioner and six witnesses he subpoenaed, including property managers and the three current Board members.
• Board Members (Bryan Selna, David Epstein, Linda Seidler): All testified that they consulted with the Association’s attorneys and property management company. Based on the advice received, they collectively decided not to add the Petitioner’s proposal to the agenda.
• Mickey Latz (Property Management Co. Owner): Testified that the Board as a whole, not the secretary, determines the meeting agenda. He affirmed that counsel had advised the Board it was not obligated to add member-requested items. Mr. Latz testified that he explicitly pointed the Petitioner to the process outlined in Bylaw 2.2, which allows members to call their own meetings directly.
• Joanelize Morales (Property Manager): Confirmed that she prepares meeting agendas based on the Board’s instructions. She also testified that the Petitioner never attempted to use the Bylaw 2.2 process to gather the support of his neighbors to schedule a meeting to consider his proposed amendment.
6. Historical Context and Prior Litigation
The decision provides context regarding the Petitioner’s previous interactions with the Association.
• Prior Petition (OAH Case No. 17F-H1716031-REL): In April 2017, the Petitioner filed a petition concerning the Board’s failure to fill vacant positions. On June 28, 2017, an ALJ dismissed that petition, concluding that the Board had done all it could and that vacancies were due in part to the Petitioner’s “obstructionist tactics.”
• Successful Amendment (Bylaw 3.12): In April 2017, the Petitioner proposed a different amendment regarding director resignations. The Board at that time agreed to submit it to a vote, and it was passed by the membership in May 2017.
7. Administrative Law Judge’s Decision and Rationale
The ALJ’s conclusions of law methodically dismantled the Petitioner’s claims, leading to the dismissal of the petition.
• Burden of Proof: The decision established that the Petitioner bore the burden of proving, by a preponderance of the evidence, that the Respondent had violated the statute and bylaw.
• Statutory and Bylaw Interpretation: The ALJ applied a plain-language reading to the governing authorities.
◦ The court found that nothing in the language of A.R.S. § 33-1804(B)requires an HOA board to add an item to an agenda at a member’s request. Instead, it provides the remedy for members to call a meeting themselves.
◦ Similarly, the court concluded that Bylaw 1.5 allows for bylaw amendments to be considered at meetings but does not compel the Board to include such proposals on the agenda of a meeting it has noticed.
◦ The ALJ found that Bylaw 2.2 provides the explicit and proper procedure for a member to bring an issue to a vote when the Board declines to do so: gather support from 25% of the members to call a special meeting.
• Final Ruling: Because the Petitioner failed to establish a violation of any cited statute or bylaw, the petition was ordered to be denied.
• Attorney’s Fees: The Respondent’s request for attorney’s fees was denied. The decision cited legal precedent establishing that administrative bodies like the Department of Real Estate and the OAH are not empowered by the legislature to award attorney’s fees in these types of disputes.
Study Guide – 19F-H1919065-REL
Study Guide: West v. Desert Sage Two Homeowners Association
Short-Answer Quiz
Answer the following questions in 2-3 complete sentences, based on the provided administrative law judge decision.
1. Who are the Petitioner and the Respondent in this case, and what is their relationship?
2. What specific action did the Petitioner, Jason West, allege the Respondent took that violated Arizona statute and the association’s bylaws?
3. Describe the substance of the proposed Bylaw 3.13 that the Petitioner wanted to add to the agenda.
4. What was the Respondent’s primary defense for not adding the proposed bylaw amendment to the annual meeting’s agenda or ballot?
5. According to Bylaw 2.2, what procedural option did the Petitioner have to bring his proposed amendment to a vote without the Board’s approval?
6. What was the outcome of the Petitioner’s previous case against the Respondent in 2017 (OAH Case No. 17F-H1716031-REL)?
7. What two specific authorities did the Petitioner claim the Respondent’s Board violated?
8. According to the Administrative Law Judge’s interpretation, does A.R.S. § 33-1804(B) require an HOA board to add an item to an agenda at a single member’s request?
9. What was the final order of the Administrative Law Judge in this case (No. 19F-H1919065-REL)?
10. What was the judge’s ruling regarding the Respondent’s request for attorney’s fees, and what was the reason for this ruling?
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Answer Key
1. The Petitioner is Jason West, who owns a house in the Desert Sage Two development. The Respondent is the Desert Sage Two Homeowners Association, of which the Petitioner is a member.
2. The Petitioner alleged that the Respondent violated A.R.S. § 33-1804(B) and its own Bylaw 1.5. The specific violation was the Board’s failure to place a bylaw amendment proposed by the Petitioner on the agenda of the association’s annual meeting.
3. The proposed Bylaw 3.13 sought to ban any current or former director from serving on the board for five years if their actions resulted in a paid claim by the association or its insurance carrier. This ban would be retroactive and also apply to any individual co-owning a lot with the director.
4. The Respondent’s Board, after consulting with its attorneys and property management company, argued that neither state law nor its bylaws obliged them to add items to an agenda at a single member’s request. They contended that the Petitioner had the option to call a special meeting himself by gathering support from other members.
5. Bylaw 2.2 allows for a special meeting of the members to be called upon a written request signed by members who hold at least one-fourth (25%) of the authorized votes. The Petitioner was aware of this option but had not attempted to use it.
6. In the previous case, the Administrative Law Judge dismissed the Petitioner’s petition. The judge concluded that the Board had done all it could to fill vacant positions and that the Petitioner’s own “obstructionist tactics” were part of the reason no eligible members were willing to serve.
7. The Petitioner claimed the Respondent’s Board violated Arizona Revised Statute § 33-1804(B) and the association’s Bylaw 1.5.
8. No, the judge concluded that nothing in the language of A.R.S. § 33-1804(B) requires a homeowners’ association board to add an item to an agenda or ballot at the request of a single member. The statute only provides that members with at least 25% of the votes can independently call a meeting.
9. The Administrative Law Judge ordered that the Petitioner’s petition be denied. The judge found that the Petitioner had not established that the Respondent’s Board violated either A.R.S. § 33-1804(B) or Bylaw 1.5.
10. The judge ruled that attorney’s fees could not be awarded to the Respondent. The reason given is that the legislature has not empowered the Department of Real Estate or the Office of Administrative Hearings to award attorney’s fees in this type of administrative proceeding.
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Essay Questions
Construct a detailed essay response for each of the following prompts, using only evidence and reasoning found within the case document.
1. Analyze the Administrative Law Judge’s method of statutory construction and interpretation of restrictive covenants. How did the judge apply these principles to A.R.S. § 33-1804(B) and Bylaw 1.5 to reach a conclusion?
2. Discuss the balance of power between an individual HOA member and the Board of Directors as illustrated in this case. What rights and recourses are available to a member who disagrees with a Board decision, according to the Respondent’s Bylaws?
3. Explain the concept of “burden of proof” as it applies to this case. Who held the burden of proof, what was the standard required, and why was the Petitioner unable to meet this standard?
4. Examine the history between the Petitioner and the Respondent as detailed in the “Findings of Fact.” How might this prior history, including the 2017 legal case and a previously successful bylaw amendment, have influenced the actions of both parties in the current dispute?
5. Based on the testimony of Michael David (“Mickey”) Latz and the text of the bylaws, contrast the process for placing an item on the agenda of a Board-scheduled meeting versus the process for calling a member-initiated special meeting. What are the key differences in initiative, requirements, and control?
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Glossary of Key Terms
Definition from Source Context
Administrative Law Judge (ALJ)
An independent official (Diane Mihalsky) from the Office of Administrative Hearings who presides over evidentiary hearings and issues decisions on petitions filed with the Arizona Department of Real Estate.
A.R.S. § 33-1804(B)
An Arizona statute cited by the Petitioner. It stipulates that an HOA members’ meeting must be held at least annually and that special meetings can be called by the president, a board majority, or members with at least 25% of the votes.
Bylaw 1.5
A bylaw of the Desert Sage Two HOA that states the Bylaws may be amended at a regular or special meeting by a majority vote of members present in person or by proxy.
Bylaw 2.2
A bylaw of the Desert Sage Two HOA that allows for special meetings of the members to be called by the president, the Board, or upon written request from members holding at least one-fourth (25%) of the votes.
Department
The Arizona Department of Real Estate, the state body authorized to receive and decide petitions for hearings from members of homeowners’ associations.
Homeowners’ Association
An organization whose members own property and/or residences in a specific development (in this case, Desert Sage Two in Scottsdale, Arizona).
Office of Administrative Hearings (OAH)
An independent state agency to which the Department refers petitions for an evidentiary hearing.
Petitioner
Jason West, the member of the homeowners’ association who filed the petition alleging a violation by the association’s Board.
Petition
A formal complaint filed with the Department of Real Estate by an HOA member or the HOA itself concerning alleged violations.
Preponderance of the evidence
The burden of proof standard required in the hearing. It is defined as “proof as convinces the trier of fact that the contention is more probably true than not” and as evidence with “the most convincing force.”
Respondent
The Desert Sage Two Homeowners Association, the entity against which the petition was filed.
Restrictive Covenant
A rule or provision within community documents, like bylaws, that is enforced to give effect to the intent of the parties if it is unambiguous.
Blog Post – 19F-H1919065-REL
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This text is an Administrative Law Judge Decision from the Arizona Office of Administrative Hearings (OAH) concerning a dispute between a homeowner, Jason West (Petitioner), and his association, the Desert Sage Two Homeowners Association (Respondent). The Petitioner alleged that the Respondent violated Arizona statute (A.R.S. § 33-1804(B)) and an association bylaw by refusing to place his proposed bylaw amendment on the agenda of the annual meeting. The proposed amendment sought to ban directors whose actions resulted in a paid insurance claim from serving for five years, but the Administrative Law Judge (ALJ) found that neither the statute nor the association’s bylaws required the Board to add a member-proposed item to a scheduled agenda or ballot. Therefore, the ALJ concluded that the Petitioner failed to prove a violation and denied the petition.
What was the specific legal and procedural context of this homeowners association dispute?
How did the Petitioner’s proposed bylaw amendment attempt to alter Board member liability?
What statutory and bylaw provisions guided the final Administrative Law Judge decision?
Edward A. Padilla(property manager) Desert Sage Two Homeowners Association Property manager in May 2017; testified for Petitioner; also referred to as 'Eddie'
Joanelize Morales(property manager) Desert Sage Two Homeowners Association Property manager since August 2018; testified for Petitioner
Bryan Robert Selna(board member) Desert Sage Two Homeowners Association Current Vice President of Respondent's Board; testified for Petitioner
David Epstein(board member) Desert Sage Two Homeowners Association Current President of Respondent's Board; testified for Petitioner
Linda Maria Seidler(board member) Desert Sage Two Homeowners Association Current Secretary of Respondent's Board; testified for Petitioner
Michael David Latz(property manager) Golden Valley Property Management Owner of Golden Valley Property Management; testified for Petitioner; also referred to as 'Mickey'
Neutral Parties
Diane Mihalsky(ALJ) Office of Administrative Hearings
Judy Lowe(ADRE Commissioner) Arizona Department of Real Estate
Petitioner failed to prove HOA violated records, voting, or notice statutes. HOA failed to prove Petitioner violated Bylaws by misrepresenting himself as an officer.
Why this result: Petitioner's interpretations of statutes regarding notice and voting were incorrect, and HOA complied with records requests. HOA lacked evidence for its claim against Petitioner.
Key Issues & Findings
Failure to provide records
Petitioner alleged HOA failed to provide requested organizational, business, corporate, and financial records.
Orders: The HOA was deemed the prevailing party. Petitioner bears his filing fees.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Invalid fee increase due to proxy vote
Petitioner alleged a $5 fee increase was invalid because a proxy vote was used in violation of statutes and rules.
Orders: The HOA was deemed the prevailing party. Petitioner bears his filing fees.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Failure to provide ten-day meeting notice
Petitioner alleged HOA failed to give ten-day notice for a meeting to vote on Bylaws amendments.
Orders: The HOA was deemed the prevailing party. Petitioner bears his filing fees.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Petitioner exceeded rights as member
HOA alleged Petitioner misrepresented himself as an officer to obtain insurance and tax information.
Orders: The HOA did not prevail. HOA bears its filing fee.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_win
Decision Documents
19F-H1919054-REL Decision – 720897.pdf
Uploaded 2026-02-11T06:34:36 (224.6 KB)
**Case Summary: Czekaj v. Colonia Del Rey HOA, Inc.**
**Case Nos:** 19F-H1918040-REL & 19F-H1919054-REL
**Forum:** Arizona Office of Administrative Hearings
**Date:** July 8, 2019
**Overview**
This administrative hearing addressed four consolidated complaints involving a nine-unit homeowners association (HOA) in Tucson, Arizona. Three complaints were filed by homeowner Gregory L. Czekaj (Petitioner) regarding records access, fee increases, and meeting notices. One cross-complaint was filed by the HOA alleging the Petitioner exceeded his authority as a member.
**Complaint One: Access to Records**
* **Issue:** Petitioner alleged the HOA failed to provide requested financial and organizational records in violation of A.R.S. § 33-1805.
* **Key Facts:** Petitioner submitted multiple requests in 2018. The HOA requested he narrow "burdensome" requests, provided electronic documents, and hosted a physical records review session in November 2018. Petitioner argued the HOA "withheld" documents.
* **Decision:** The Administrative Law Judge (ALJ) ruled in favor of the **HOA**. The evidence showed the HOA timely provided records or opportunities for review. The ALJ noted that once the Petitioner acknowledged receipt of documents, the HOA correctly deemed the request satisfied until new requests were made.
**Complaint Two: Validity of Fee Increase**
* **Issue:** Petitioner argued a May 2017 $5.00 assessment increase was invalid because it relied on a proxy vote, which he claimed violated A.R.S. § 33-1812(A).
* **Key Facts:** The initial meeting minutes contained errors regarding vote counts and requirements. However, amended minutes and testimony clarified that the final tally was 5 "YES" and 1 "NO," excluding the disputed proxy.
* **Legal Analysis:** The HOA’s CC&Rs require approval by two-thirds of the *votes cast*, provided a quorum is present. With six members present (constituting a quorum), the 5-1 vote satisfied the two-thirds requirement without utilizing the proxy.
* **Decision:** The ALJ ruled in favor of the **HOA**. The fee increase was validly approved based on the votes of members present.
**Complaint Three: Meeting Notice Timeliness**
* **Issue:** Petitioner claimed the HOA violated A.R.S. § 33-1804(B) regarding a November 2018 meeting to amend Bylaws. He argued the Bylaws were invalid because he *received* the notice less than ten days before the meeting.
* **Legal Analysis:** The statute requires the HOA to "cause notice to be hand-delivered or sent prepaid by mail" not fewer than ten days in advance. The statute expressly states that failure of a member to receive actual notice does not invalidate the meeting.
* **Decision:** The ALJ ruled in favor of the **HOA**. Evidence proved the HOA mailed notices on November 5, thirteen days prior to the November 18 meeting, satisfying the statutory requirement [
Case Participants
Petitioner Side
Gregory L. Czekaj(petitioner) Homeowner Appeared on his own behalf; also Respondent in consolidated counter-claim
Gary Wolf(petitioner's attorney) Contacted HOA attorney regarding records request
Respondent Side
Marybeth Andree(HOA President) Colonia Del Rey HOA, Inc. Represented the HOA; testified at hearing
Carolyn Goldschmidt(HOA attorney) Responded to Petitioner's attorney regarding records
Sarah Hitch(proxy holder) Colonia Del Rey HOA, Inc. Member who cast a proxy vote for Ed Freeman
Phil Oliver(board member) Colonia Del Rey HOA, Inc. Provided email clarification regarding the vote; wrote letter regarding irregularities
Susan Sotelo(HOA secretary) Colonia Del Rey HOA, Inc. Mailed the ballots for the meeting
Neutral Parties
Kay Abramsohn(ALJ) Office of Administrative Hearings Administrative Law Judge presiding over the hearing
Mr. Tick(witness) State Farm (implied) HOA insurance agent; testified regarding Petitioner's request for policy
Ed Freeman(tenant) Tenant living in Oregon; subject of proxy vote dispute
Judy Lowe(Commissioner) Arizona Department of Real Estate Recipient of the transmitted order
Petitioner failed to prove HOA violated records, voting, or notice statutes. HOA failed to prove Petitioner violated Bylaws by misrepresenting himself as an officer.
Why this result: Petitioner's interpretations of statutes regarding notice and voting were incorrect, and HOA complied with records requests. HOA lacked evidence for its claim against Petitioner.
Key Issues & Findings
Failure to provide records
Petitioner alleged HOA failed to provide requested organizational, business, corporate, and financial records.
Orders: The HOA was deemed the prevailing party. Petitioner bears his filing fees.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Invalid fee increase due to proxy vote
Petitioner alleged a $5 fee increase was invalid because a proxy vote was used in violation of statutes and rules.
Orders: The HOA was deemed the prevailing party. Petitioner bears his filing fees.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Failure to provide ten-day meeting notice
Petitioner alleged HOA failed to give ten-day notice for a meeting to vote on Bylaws amendments.
Orders: The HOA was deemed the prevailing party. Petitioner bears his filing fees.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Petitioner exceeded rights as member
HOA alleged Petitioner misrepresented himself as an officer to obtain insurance and tax information.
Orders: The HOA did not prevail. HOA bears its filing fee.
The Petitioner's petition was granted. The Administrative Law Judge found that the Respondent HOA violated A.R.S. § 33-1804(B) by failing to hold the required annual meeting for several years. The Respondent was ordered to hold a meeting, refund the filing fee to the Petitioner, and pay a $250.00 civil penalty.
Key Issues & Findings
Failure to hold required annual meeting
Petitioner, a homeowner, alleged the HOA had not held an annual meeting since April 1, 2014, violating A.R.S. § 33-1804(B). The unconverted evidence established that Respondent violated A.R.S. § 33-1804(B) by failing to hold the statutorily required annual meeting for several years.
Orders: Petitioner's petition was granted. Respondent was ordered to hold a meeting in accordance with the planned community statutes as currently scheduled on December 28, 2017. Respondent was ordered to pay the filing fee to the Petitioner pursuant to A.R.S. § 32-2199.02(A), and pay a $250.00 civil penalty to the planned community hearing office fund.
Topics: HOA annual meeting violation, statutory requirement, default judgment
Additional Citations:
A.R.S. § 33-1804
A.R.S. § 32-2199 et seq.
A.R.S. § 32-2199.01
A.R.S. § 32-2199.02
A.R.S. § 32-2199.05
A.A.C. R2-19-119(B)
A.A.C. R2-19-119(A)
Video Overview
Audio Overview
Decision Documents
18F-H1717036-REL Decision – 586602.pdf
Uploaded 2026-01-23T17:21:12 (65.3 KB)
18F-H1717036-REL Decision – 588549.pdf
Uploaded 2026-01-23T17:21:16 (592.6 KB)
Briefing Doc – 18F-H1717036-REL
Administrative Hearing Briefing: Wheeler v. Beaver Dam Estates Homeowners Association
Executive Summary
This briefing document synthesizes the findings and orders from the case of Jerry Wheeler versus the Beaver Dam Estates Homeowners Association (HOA). The central issue was the HOA’s failure to conduct annual meetings as legally required by Arizona state law. The petitioner, Jerry Wheeler, provided uncontested evidence that the HOA had not held a meeting for several years, specifically since his tenure began on April 1, 2014.
The case was complicated by the death of the HOA’s president prior to the hearing and the association’s subsequent failure to appoint a new representative or appear at the proceedings. The Administrative Law Judge (ALJ) conducted the hearing in the respondent’s absence and ruled decisively in favor of the petitioner.
The final judgment, adopted by the Arizona Department of Real Estate, found the Beaver Dam Estates HOA in violation of A.R.S. § 33-1804(B). The HOA was ordered to hold a meeting on a specified date, reimburse the petitioner’s filing fee, and pay a civil penalty of $250.00 for the violation.
Case Overview
The matter was initiated by a petition filed with the Arizona Department of Real Estate and was subsequently referred to the Office of Administrative Hearings for a formal hearing and decision.
Case Detail
Information
Petitioner
Jerry Wheeler
Respondent
Beaver Dam Estates Homeowners Association
Case Number (OAH)
18F-H1717036-REL
Case Number (Dept. of Real Estate)
HO 17-17/036
Petition Filed
June 8, 2017
Hearing Date
September 5, 2017
ALJ Decision Date
September 6, 2017
Final Order Date
September 13, 2017
Presiding Judge
Suzanne Marwil, Administrative Law Judge (ALJ)
Adopting Authority
Judy Lowe, Commissioner, Arizona Department of Real Estate
Petitioner’s Allegations and Evidence
The petitioner’s case was built on the central allegation that the Beaver Dam Estates HOA had failed to comply with its statutory duty to hold annual meetings.
• Core Allegation: The HOA was in violation of Arizona Revised Statutes (A.R.S.) § 33-1804(B), which mandates that a members’ association meeting “shall be held at least once each year.”
• Petitioner Testimony: Jerry Wheeler testified that since moving into the community on April 1, 2014, the HOA had not held a single meeting. He also testified regarding his numerous efforts to compel the HOA president, Randy Hawk, to convene a meeting for the purpose of reviewing the association’s financial statements with homeowners.
• Supporting Evidence: The petitioner submitted numerous written statements from other homeowners within the Beaver Dam Estates community. These statements corroborated his testimony, confirming that no HOA meeting had been held for several years. This evidence was referred to as “Exhibit B” in the proceedings.
Respondent’s Actions and Procedural Failures
The respondent’s engagement with the legal process was minimal and ultimately ceased, leading to a judgment in its absence.
• Initial Response: The HOA’s then-president, Randy Hawk, initially responded to the petition by agreeing to hold a meeting.
• First Meeting Attempt: A meeting was scheduled for July 18, 2017. However, only about ten people attended, prompting Hawk to reschedule for December 28, 2017. A letter was sent to all members notifying them of the new date and the intent to hold an election for a new president and vice president.
• Death of Representative: The petitioner subsequently informed the Tribunal that Randy Hawk had passed away, leaving the HOA without a clear representative for the legal matter.
• Failure to Appoint New Representative: On August 16, 2017, the Tribunal issued an order, mailed to the respondent’s address of record, requesting that the HOA name a new representative. The HOA failed to do so.
• Failure to Appear: The respondent did not appear for the scheduled hearing on September 5, 2017, nor did it request to appear telephonically. After a 20-minute grace period, the ALJ proceeded with the hearing in the respondent’s absence.
Legal Framework and Conclusions of Law
The ALJ’s decision was based on a clear statutory requirement and the uncontested evidence presented by the petitioner. The burden of proof was on the petitioner, with the standard of proof being a preponderance of the evidence.
• Statutory Violation: The central finding was that the respondent violated A.R.S. § 33-1804(B). The pertinent text of the statute states:
• Key Conclusion: The ALJ determined that “The unconverted evidence established that Respondent violated A.R.S. § 33-1804(B) by failing to hold the statutorily required annual meeting of Respondent for several years prior to the filing of the petition.”
• Recommended Action: Based on this conclusion, the ALJ stated that the respondent “should hold an annual meeting in accordance with the planned community statutes.”
Final Order and Penalties
The ALJ’s decision was formally adopted by the Commissioner of the Department of Real Estate, making it a binding Final Order. The order mandated several actions by the respondent.
IT IS ORDERED that:
1. The petitioner’s petition is granted.
2. The respondent must hold a meeting in accordance with planned community statutes as scheduled on December 28, 2017.
3. Pursuant to A.R.S. § 32-2199.02(A), the respondent shall pay the petitioner the filing fee required by section 32-2199.01.
4. The respondent shall pay to the planned community hearing office fund a civil penalty of $250.00 for the violation.
This Final Order was declared a final administrative action, effective immediately upon service on September 13, 2017. The parties were notified of their right to apply for a rehearing within thirty days or to appeal the decision by filing a complaint for judicial review.
Study Guide – 18F-H1717036-REL
Study Guide for Wheeler v. Beaver Dam Estates HOA
Short Answer Quiz
Instructions: Answer the following ten questions based on the provided legal documents. Each answer should be approximately 2-3 sentences.
1. Who were the primary parties in the case Wheeler v. Beaver Dam Estates Homeowners Association, and what were their roles?
2. What was the central allegation made by the Petitioner against the Respondent?
3. According to the Findings of Fact, how long had the Petitioner lived in the community, and why is this duration significant?
4. What specific Arizona Revised Statute (A.R.S.) did the Respondent violate, and what does this statute require?
5. What event involving the Respondent’s president, Randy Hawk, complicated the case proceedings?
6. What was the outcome of the hearing held on September 5, 2017, regarding the Respondent’s attendance?
7. What standard of proof was required in this matter, and which party had the burden of proof?
8. Describe the key components of the Order issued by the Administrative Law Judge.
9. What two monetary penalties were imposed on the Beaver Dam Estates Homeowners Association?
10. According to the Final Order, what steps could an aggrieved party take after the decision was issued?
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Answer Key
1. The primary parties were Jerry Wheeler, the Petitioner, and the Beaver Dam Estates Homeowners Association, the Respondent. As the Petitioner, Mr. Wheeler initiated the legal action by filing a petition, while the Homeowners Association was the entity required to respond to the allegations.
2. The central allegation was that the Respondent had violated state law by failing to hold a meeting of the members’ association for several years. The Petitioner specifically sought to have the association convene a meeting to review financial statements.
3. The Petitioner, Jerry Wheeler, testified that he had moved into the community on April 1, 2014. This duration is significant because he stated that no meeting of the association had been held during his entire tenure, providing a multi-year timeframe for the alleged violation.
4. The Respondent violated A.R.S. § 33-1804(B). This statute mandates that, notwithstanding any provisions in community documents, a meeting of the members’ association must be held at least once each year within the state of Arizona.
5. After responding to the petition and scheduling a future meeting, the Respondent’s president, Randy Hawk, passed away. The Petitioner informed the Tribunal of this event, which created uncertainty about who could serve as the Respondent’s representative in the matter.
6. The Respondent, Beaver Dam Estates Homeowners Association, failed to appear for the hearing on September 5, 2017. After a 20-minute grace period, the Administrative Law Judge proceeded with the hearing in the Respondent’s absence.
7. The standard of proof was a “preponderance of the evidence,” as stated in A.A.C. R2-19-119(A). Pursuant to A.A.C. R2-19-119(B), the Petitioner, Jerry Wheeler, had the burden of proving his case.
8. The Order granted the Petitioner’s petition and mandated that the Respondent hold a meeting on the currently scheduled date of December 28, 2017. It also imposed financial penalties on the Respondent and affirmed that the order was binding on the parties unless a rehearing was granted.
9. The Respondent was ordered to pay the Petitioner’s filing fee required by section 32-2199.01. Additionally, the Respondent was ordered to pay a civil penalty of $250.00 to the planned community hearing office fund.
10. A person aggrieved by the decision could apply for a rehearing by filing a petition with the Commissioner within thirty (30) days. The Final Order is also considered a final administrative action, which a party may appeal by filing a complaint for judicial review.
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Essay Questions
Instructions: The following questions are designed to test a deeper, more comprehensive understanding of the case. Formulate a detailed essay-style response for each.
1. Trace the procedural history of case No. 18F-H1717036-REL from the initial petition filing to the issuance of the Final Order. Discuss the key dates, actions taken by the parties and the Tribunal, and the legal significance of each step.
2. Analyze the legal reasoning behind the Administrative Law Judge’s decision. Explain how the “Findings of Fact” supported the “Conclusions of Law,” with a specific focus on the violation of A.R.S. § 33-1804(B) and the application of the “preponderance of the evidence” standard.
3. Discuss the role and authority of the Office of Administrative Hearings and the Department of Real Estate in this dispute. How do the statutes cited (e.g., A.R.S. § 32-2199 et seq.) empower these bodies to adjudicate disputes and enforce compliance among homeowners associations?
4. Evaluate the impact of the Respondent’s failure to appear at the September 5, 2017 hearing. How did this absence affect the proceedings and the evidence presented, and in what way did it likely influence the final outcome?
5. Examine the remedies and enforcement mechanisms outlined in the Final Order. Discuss the specific purpose of ordering a meeting, reimbursing the filing fee, and imposing a civil penalty, and explain the legal process for appealing the decision.
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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. In this case, Suzanne Marwil served as the ALJ.
A.R.S. (Arizona Revised Statutes)
The codified collection of laws for the state of Arizona. The case frequently cites statutes within Title 32 and Title 33, such as A.R.S. § 33-1804(B), which governs HOA meetings.
A.A.C. (Arizona Administrative Code)
The official compilation of rules and regulations of Arizona state agencies. A.A.C. R2-19-119 established the burden and standard of proof for the hearing.
Burden of Proof
The legal obligation of a party in a dispute to provide sufficient evidence to prove their claim. In this matter, the burden of proof was on the Petitioner.
Civil Penalty
A monetary fine imposed by a government agency for a violation of a law or regulation. The Respondent was ordered to pay a $250.00 civil penalty.
Conclusions of Law
The section of a legal decision that applies the relevant laws and legal principles to the established facts of the case to reach a judgment.
Final Administrative Action
A final decision by an administrative agency that is legally binding and can be appealed to a court through a process of judicial review.
Findings of Fact
The section of a legal decision that details the factual circumstances of the case as determined by the judge based on the evidence presented.
A formal directive from a judge or administrative body that requires a party to perform a specific act or refrain from doing so. The final decision in this case included an Order for the Respondent to hold a meeting and pay penalties.
Petitioner
The party who initiates a legal proceeding by filing a petition. In this case, the Petitioner was Jerry Wheeler.
Preponderance of the Evidence
The standard of proof in most civil cases, which requires that the evidence presented by one side is more convincing and likely to be true than the evidence of the opposing side.
Rehearing
A request to have a case heard again by the same administrative body or court, typically based on new evidence or an error in the original proceeding. A party had 30 days to petition for a rehearing.
Respondent
The party against whom a petition is filed and who is required to respond to the allegations. In this case, the Respondent was the Beaver Dam Estates Homeowners Association.
Tribunal
A general term for a body, including a court or administrative hearing office, that has the authority to judge or determine claims and disputes.
Blog Post – 18F-H1717036-REL
4 Key Lessons from One Homeowner’s Winning Fight Against His HOA
Introduction: When Your HOA Becomes Dysfunctional
For many homeowners, a Homeowners Association (HOA) is a background presence, collecting dues and ensuring community standards. But what happens when the HOA itself fails in its duties? When legally required meetings stop, financial transparency disappears, and the leadership becomes unresponsive, residents can feel powerless. It’s a common frustration that leaves homeowners wondering what recourse they have when the very organization meant to maintain order violates its own governing laws.
This was the exact situation faced by Jerry Wheeler, a resident of Beaver Dam Estates in Arizona. After years of his HOA failing to hold its legally required annual meeting, he decided he had enough. Instead of letting his frustration simmer, he took formal action, setting in motion a legal process that offers powerful lessons for any homeowner living in a planned community. His story is a clear example of how one determined individual can hold an association accountable.
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1. One Determined Homeowner Can Hold an Entire HOA Accountable
It can feel daunting to challenge an organization, but Jerry Wheeler’s case proves that a single person can be the catalyst for change. The core of his dispute extended beyond procedure into a fundamental issue of financial transparency. On June 8, 2017, Wheeler filed a petition because since moving in on April 1, 2014, no annual meeting had been held. His stated goal was clear: he wanted the HOA to convene a meeting to “review Respondent’s financial statements with the homeowners.”
Initially, the HOA president, Randy Hawk, responded to the petition by agreeing to hold a meeting. However, the execution faltered. A meeting scheduled for July 18, 2017, failed when only about ten people attended. Hawk then rescheduled for December 28, 2017. While Wheeler initiated the petition alone, he strengthened his case by presenting numerous written statements from other homeowners confirming no annual meetings had been held for several years. This demonstrates that one person’s courageous action, aimed at securing accountability and supported by the community, can successfully trigger the legal mechanisms designed to protect homeowners’ rights.
2. Annual Meetings Aren’t Just a Suggestion—They’re the Law
The core of Jerry Wheeler’s complaint wasn’t based on a simple grievance; it was rooted in a specific violation of Arizona state law. The Administrative Law Judge’s decision found that the Beaver Dam Estates HOA was in direct violation of a statute requiring annual meetings. This law is not a guideline or a best practice—it is a legal mandate.
For any homeowner in Arizona, the relevant section of the law is crystal clear:
A.R.S. § 33-1804(B)
Notwithstanding any provision in the community documents, all meetings of the members’ association and the board shall be held in this state. A meeting of the members’ association shall be held at least once each year…
This statute is a cornerstone of transparency and accountability for planned communities. It ensures that residents have a regular, guaranteed opportunity to hear from the board, review financials, elect new leadership, and have their voices heard. Understanding that this is a legal requirement—not just a courtesy—is critical knowledge for any homeowner.
3. Ignoring the Process Has Financial Consequences
The Beaver Dam Estates HOA’s strategy of inaction ultimately backfired, resulting in financial penalties. The association’s failure to appear at its own hearing on September 5, 2017, meant that Wheeler’s evidence was uncontested, leading directly to a default judgment and the resulting financial penalties. The judge’s final order wasn’t just a request to do better; it was a binding decision with specific consequences.
Because the judge granted the petitioner’s petition, the HOA was ordered to take three specific actions:
• Hold the legally required meeting as scheduled on December 28, 2017.
• Pay the Petitioner (Jerry Wheeler) back for his filing fee.
• Pay a civil penalty of $250.00 to the planned community hearing office fund.
This outcome makes it clear that avoiding legal and administrative responsibilities is not a viable strategy. The process is designed to proceed with or without the respondent’s participation, and ignoring it leads directly to mandated actions and financial penalties.
4. The System Can Work, Even Under Strange Circumstances
The proceedings in this case were complicated by unusual and unfortunate events, yet the legal framework proved resilient. After attempting to schedule the required meetings, the HOA’s president, Randy Hawk, passed away. The tribunal ordered the association to name a new representative, but it failed to do so. Compounding the issue, no one from the HOA showed up for the scheduled hearing.
Despite these significant obstacles—the death of the board’s president and the association’s complete failure to participate—the process did not grind to a halt. The Administrative Law Judge was able to conduct the hearing, review the uncontested evidence presented by Jerry Wheeler, make official Findings of Fact, and issue a final, binding order. This remarkable persistence shows that the administrative system is robust and designed to deliver a resolution, ensuring that a petitioner’s rights are upheld even when a respondent organization is in disarray.
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Conclusion: Know Your Rights
The case of Jerry Wheeler vs. Beaver Dam Estates is a powerful reminder that community living is governed by rules that apply to everyone—including the association itself. An HOA cannot simply cease to function or ignore its legal obligations without consequence. The systems in place, from state statutes to administrative hearings, are designed to provide a path for homeowners to seek and achieve recourse.
This case serves as an empowering example of how knowledge and determination can lead to accountability. It underscores the importance of understanding the specific laws that govern your community association. This case was in Arizona, but it raises a universal question: Do you know the specific laws that govern your own HOA, and is your board in compliance?
Case Participants
Petitioner Side
Jerry Wheeler(petitioner)
Respondent Side
Randy Hawk(president) Beaver Dam Estates Homeowners Association
Neutral Parties
Suzanne Marwil(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
The Petitioner's petition was granted. The Administrative Law Judge found that the Respondent HOA violated A.R.S. § 33-1804(B) by failing to hold the required annual meeting for several years. The Respondent was ordered to hold a meeting, refund the filing fee to the Petitioner, and pay a $250.00 civil penalty.
Key Issues & Findings
Failure to hold required annual meeting
Petitioner, a homeowner, alleged the HOA had not held an annual meeting since April 1, 2014, violating A.R.S. § 33-1804(B). The unconverted evidence established that Respondent violated A.R.S. § 33-1804(B) by failing to hold the statutorily required annual meeting for several years.
Orders: Petitioner's petition was granted. Respondent was ordered to hold a meeting in accordance with the planned community statutes as currently scheduled on December 28, 2017. Respondent was ordered to pay the filing fee to the Petitioner pursuant to A.R.S. § 32-2199.02(A), and pay a $250.00 civil penalty to the planned community hearing office fund.
Topics: HOA annual meeting violation, statutory requirement, default judgment
Additional Citations:
A.R.S. § 33-1804
A.R.S. § 32-2199 et seq.
A.R.S. § 32-2199.01
A.R.S. § 32-2199.02
A.R.S. § 32-2199.05
A.A.C. R2-19-119(B)
A.A.C. R2-19-119(A)
Audio Overview
Decision Documents
18F-H1717036-REL Decision – 586602.pdf
Uploaded 2025-10-08T06:58:28 (65.3 KB)
18F-H1717036-REL Decision – 588549.pdf
Uploaded 2025-10-08T06:58:28 (592.6 KB)
Briefing Doc – 18F-H1717036-REL
Administrative Hearing Briefing: Wheeler v. Beaver Dam Estates Homeowners Association
Executive Summary
This briefing document synthesizes the findings and orders from the case of Jerry Wheeler versus the Beaver Dam Estates Homeowners Association (HOA). The central issue was the HOA’s failure to conduct annual meetings as legally required by Arizona state law. The petitioner, Jerry Wheeler, provided uncontested evidence that the HOA had not held a meeting for several years, specifically since his tenure began on April 1, 2014.
The case was complicated by the death of the HOA’s president prior to the hearing and the association’s subsequent failure to appoint a new representative or appear at the proceedings. The Administrative Law Judge (ALJ) conducted the hearing in the respondent’s absence and ruled decisively in favor of the petitioner.
The final judgment, adopted by the Arizona Department of Real Estate, found the Beaver Dam Estates HOA in violation of A.R.S. § 33-1804(B). The HOA was ordered to hold a meeting on a specified date, reimburse the petitioner’s filing fee, and pay a civil penalty of $250.00 for the violation.
Case Overview
The matter was initiated by a petition filed with the Arizona Department of Real Estate and was subsequently referred to the Office of Administrative Hearings for a formal hearing and decision.
Case Detail
Information
Petitioner
Jerry Wheeler
Respondent
Beaver Dam Estates Homeowners Association
Case Number (OAH)
18F-H1717036-REL
Case Number (Dept. of Real Estate)
HO 17-17/036
Petition Filed
June 8, 2017
Hearing Date
September 5, 2017
ALJ Decision Date
September 6, 2017
Final Order Date
September 13, 2017
Presiding Judge
Suzanne Marwil, Administrative Law Judge (ALJ)
Adopting Authority
Judy Lowe, Commissioner, Arizona Department of Real Estate
Petitioner’s Allegations and Evidence
The petitioner’s case was built on the central allegation that the Beaver Dam Estates HOA had failed to comply with its statutory duty to hold annual meetings.
• Core Allegation: The HOA was in violation of Arizona Revised Statutes (A.R.S.) § 33-1804(B), which mandates that a members’ association meeting “shall be held at least once each year.”
• Petitioner Testimony: Jerry Wheeler testified that since moving into the community on April 1, 2014, the HOA had not held a single meeting. He also testified regarding his numerous efforts to compel the HOA president, Randy Hawk, to convene a meeting for the purpose of reviewing the association’s financial statements with homeowners.
• Supporting Evidence: The petitioner submitted numerous written statements from other homeowners within the Beaver Dam Estates community. These statements corroborated his testimony, confirming that no HOA meeting had been held for several years. This evidence was referred to as “Exhibit B” in the proceedings.
Respondent’s Actions and Procedural Failures
The respondent’s engagement with the legal process was minimal and ultimately ceased, leading to a judgment in its absence.
• Initial Response: The HOA’s then-president, Randy Hawk, initially responded to the petition by agreeing to hold a meeting.
• First Meeting Attempt: A meeting was scheduled for July 18, 2017. However, only about ten people attended, prompting Hawk to reschedule for December 28, 2017. A letter was sent to all members notifying them of the new date and the intent to hold an election for a new president and vice president.
• Death of Representative: The petitioner subsequently informed the Tribunal that Randy Hawk had passed away, leaving the HOA without a clear representative for the legal matter.
• Failure to Appoint New Representative: On August 16, 2017, the Tribunal issued an order, mailed to the respondent’s address of record, requesting that the HOA name a new representative. The HOA failed to do so.
• Failure to Appear: The respondent did not appear for the scheduled hearing on September 5, 2017, nor did it request to appear telephonically. After a 20-minute grace period, the ALJ proceeded with the hearing in the respondent’s absence.
Legal Framework and Conclusions of Law
The ALJ’s decision was based on a clear statutory requirement and the uncontested evidence presented by the petitioner. The burden of proof was on the petitioner, with the standard of proof being a preponderance of the evidence.
• Statutory Violation: The central finding was that the respondent violated A.R.S. § 33-1804(B). The pertinent text of the statute states:
• Key Conclusion: The ALJ determined that “The unconverted evidence established that Respondent violated A.R.S. § 33-1804(B) by failing to hold the statutorily required annual meeting of Respondent for several years prior to the filing of the petition.”
• Recommended Action: Based on this conclusion, the ALJ stated that the respondent “should hold an annual meeting in accordance with the planned community statutes.”
Final Order and Penalties
The ALJ’s decision was formally adopted by the Commissioner of the Department of Real Estate, making it a binding Final Order. The order mandated several actions by the respondent.
IT IS ORDERED that:
1. The petitioner’s petition is granted.
2. The respondent must hold a meeting in accordance with planned community statutes as scheduled on December 28, 2017.
3. Pursuant to A.R.S. § 32-2199.02(A), the respondent shall pay the petitioner the filing fee required by section 32-2199.01.
4. The respondent shall pay to the planned community hearing office fund a civil penalty of $250.00 for the violation.
This Final Order was declared a final administrative action, effective immediately upon service on September 13, 2017. The parties were notified of their right to apply for a rehearing within thirty days or to appeal the decision by filing a complaint for judicial review.
