Tag Archives: A.R.S. § 33-1805(A)

William M. Brown vs. Terravita Country Club, Inc.

Posted on by

Case Summary

Case ID 17F-H1717032-REL
Agency ADRE
Tribunal OAH
Decision Date 2017-07-14
Administrative Law Judge Velva Moses-Thompson
Outcome The Tribunal concluded that the Respondent violated A.R.S. § 33-1805. The Petitioner was deemed the prevailing party. The Respondent was ordered to comply with the statute within 10 days and refund the $500.00 filing fee. No civil penalty was found appropriate.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner William M. Brown Counsel —
Respondent Terravita Country Club, Inc. Counsel Joshua Bolen, Esq.

Alleged Violations

A.R.S. § 33-1805(A)

Outcome Summary

The Tribunal concluded that the Respondent violated A.R.S. § 33-1805. The Petitioner was deemed the prevailing party. The Respondent was ordered to comply with the statute within 10 days and refund the $500.00 filing fee. No civil penalty was found appropriate.

Key Issues & Findings

Failure to timely provide access to association records

The Respondent failed to fulfill the Petitioner's February 6, 2017, records request within 10 business days. The Respondent argued that disclosure was prohibited under A.R.S. § 33-1805(B)(2) due to pending criminal litigation against the Petitioner. The ALJ determined that the exception applies only to pending litigation between the association and the member, not a criminal case in which the association was not a party.

Orders: Respondent ordered to comply with A.R.S. § 33-1805 regarding the records request within 10 days and pay the Petitioner the $500.00 filing fee within 30 days.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1805
  • A.R.S. § 33-1805(A)
  • A.R.S. § 33-1805(B)(2)

Analytics Highlights

Topics: records request, access to records, pending litigation exception, HOA records, planned community
Additional Citations:

  • A.R.S. § 33-1805
  • A.R.S. § 33-1805(A)
  • A.R.S. § 33-1805(B)(2)
  • A.R.S. § 41-2198.01

Video Overview

Audio Overview

Decision Documents

17F-H1717032-REL Decision – 575932.pdf

Uploaded 2026-01-23T17:20:09 (79.9 KB)

17F-H1717032-REL Decision – 578529.pdf

Uploaded 2026-01-23T17:20:12 (726.4 KB)

17F-H1717032-REL Decision – 586360.pdf

Uploaded 2026-01-23T17:20:15 (95.9 KB)

Briefing Document: Brown v. Terravita Country Club, Inc.

Executive Summary

This briefing document analyzes the administrative case of William M. Brown v. Terravita Country Club, Inc., focusing on a homeowner association’s (HOA) obligation to provide records to a member under Arizona law. The core issue was the interpretation of the “pending litigation” exemption within A.R.S. § 33-1805, which allows an association to withhold certain records.

Terravita Country Club, Inc. (“Terravita”) denied a records request from its member, William M. Brown, citing a pending criminal case against him. However, Terravita was not a party to this criminal litigation. Mr. Brown contended this denial violated state law, arguing the exemption only applies when the association itself is a party to the litigation. Terravita argued for a broader interpretation, claiming the statute did not require the association to be a party.

The Administrative Law Judge (ALJ) ruled decisively in favor of Mr. Brown. The judge concluded that Terravita’s interpretation would lead to an “absurd result,” effectively allowing any HOA to deny records related to any litigation anywhere. The judge established that the sensible and plain meaning of the statute is that the exemption for “pending litigation” applies only to legal disputes between the association and the member.

The Arizona Department of Real Estate adopted the ALJ’s decision in a Final Order. Terravita was found in violation of A.R.S. § 33-1805, ordered to produce the requested records, and mandated to reimburse Mr. Brown’s $500 filing fee.

Case Timeline and Factual Background

The dispute followed a clear sequence of events, beginning with the records request and culminating in a final administrative order.

February 6, 2017

William M. Brown, a member of Terravita, formally requests records from the association.

February 14, 2017

Terravita sends an email to Mr. Brown denying the request. The denial cites a “pending criminal litigation” against him and invokes A.R.S. § 33-1805(B)(2) as justification.

Post-Feb. 6, 2017

Terravita fails to fulfill the records request within the statutory 10-business-day deadline.

April 13, 2017

The Arizona Department of Real Estate receives a Petition for Hearing from Mr. Brown, alleging Terravita’s failure to timely respond.

May 2, 2017

Terravita files its response, formally asserting as an affirmative defense that it was not required to disclose the records due to the pending criminal litigation against Mr. Brown.

May 3, 2017

The Department issues a Notice of Hearing, setting the matter for June 26, 2017, before the Office of Administrative Hearings.

June 26, 2017

The administrative hearing is conducted. Both parties present their arguments.

July 14, 2017

Administrative Law Judge Velva Moses-Thompson issues a decision finding in favor of the Petitioner, Mr. Brown.

July 24, 2017

Judy Lowe, Commissioner of the Department of Real Estate, issues a Final Order adopting the ALJ’s decision in its entirety.

Core Dispute: Interpretation of A.R.S. § 33-1805

The central conflict was the proper application of Arizona Revised Statute § 33-1805, which governs a member’s right to access association records. Subsection (A) mandates that records be made available for examination within 10 business days. Subsection (B) provides exemptions, including for records related to “pending litigation.”

Petitioner’s Position (William M. Brown)

Mr. Brown’s argument was straightforward and focused on a narrow interpretation of the statutory exemption.

• Violation of A.R.S. § 33-1805(A): Terravita failed to fulfill his February 6, 2017 records request within the legally mandated 10 business days.

• Limited Scope of Exemption: He contended that the exemption for “pending litigation” under A.R.S. § 33-1805(B)(2) applies only to litigation in which the association itself is a party.

• Factual Basis: Since Terravita was not a party to the criminal case brought against him by the City of Scottsdale, the exemption was inapplicable.

• Legislative Intent: Mr. Brown noted that the statute had been amended to remove the phrase “contemplated litigation,” suggesting the legislature intended to narrow, not broaden, the scope of the exemption.

Respondent’s Position (Terravita Country Club, Inc.)

Terravita argued for a broader interpretation of the statute, asserting that its non-party status was irrelevant.

• “Plain Meaning” of the Statute: Terravita’s position was that the plain meaning of A.R.S. § 33-1805(B)(2) does not explicitly require the association to be a party to the pending litigation.

• Relevance of the Litigation: The association argued the criminal case was germane because it was “based upon an allegation that Mr. Brown threated Terravita’s board members and property.”

Administrative Law Judge’s Decision and Rationale

The ALJ’s decision provided a comprehensive legal analysis, ultimately rejecting Terravita’s interpretation of the law and finding that Mr. Brown had established his case by a preponderance of the evidence.

Statutory Interpretation and the “Absurd Result” Doctrine

The decision hinged on the principle that legislation must be given a “sensible construction that avoids absurd results.” The judge analyzed the consequences of Terravita’s interpretation:

“Terravita’s interpretation of A.R.S. § 33-1805(B)(2) would allow the association to deny records request of documents that relate to pending litigation between any parties. Such an interpretation would lead to the absurd result of denying records requests of all documents that relate to pending litigation anywhere, between any two parties.”

Based on this reasoning, the judge rejected Terravita’s argument and established a clear standard for applying the exemption.

The Correct Interpretation of the Law

The ALJ articulated the “plain meaning” of the statute, establishing a critical precedent for its application:

“The plain meaning of A.R.S. § 33-1805(B)(2) is that while homeowners’ associations must provide access to financial and other documents to its members within 10 business days, an association may withhold documents that relate to pending litigation between the association and the member.”

Final Conclusion

The judge applied this correct interpretation to the undisputed facts of the case:

1. At the time of Mr. Brown’s request, he was facing criminal charges initiated by the City of Scottsdale.

2. Terravita was not a party to that criminal case.

3. Therefore, the exemption did not apply, and Terravita violated A.R.S. § 33-1805 by failing to fulfill the records request within 10 business days.

Final Order and Mandates

The decision issued by the ALJ on July 14, 2017, became the basis for the Final Order issued by the Arizona Department of Real Estate on July 24, 2017. The Commissioner accepted and adopted the ALJ’s decision, making its mandates binding and effective immediately.

The key directives of the order were:

• Prevailing Party: Petitioner William M. Brown was formally deemed the prevailing party.

• Compliance: Terravita was ordered to comply with the applicable provisions of A.R.S. § 33-1805 regarding the records request within 10 days of the order.

• Reimbursement of Fees: Terravita was ordered to pay Mr. Brown his filing fee of $500.00 directly within 30 days of the order.

• No Civil Penalty: The judge found that a civil penalty was not appropriate in the matter.

Study Guide: Brown v. Terravita Country Club, Inc.

This guide provides a detailed review of the administrative case William M. Brown v. Terravita Country Club, Inc. (No. 17F-H1717032-REL), heard before the Arizona Office of Administrative Hearings. It covers the central conflict, the legal arguments, the statutory interpretations, and the final resolution of the dispute.

——————————————————————————–

Short Answer Quiz

Instructions: Answer the following ten questions based on the provided source documents. Each answer should be approximately 2-3 sentences.

1. What was the initial action taken by William M. Brown on February 6, 2017, and what was Terravita Country Club’s response?

2. On what legal grounds did Terravita justify its refusal to provide the requested records?

3. What was William M. Brown’s primary legal argument against Terravita’s position during the hearing?

4. What was the Administrative Law Judge’s interpretation of Terravita’s argument regarding A.R.S. § 33-1805(B)(2), and why was it rejected?

5. What is the “preponderance of the evidence” standard, and who bore the burden of proof in this case?

6. What key fact regarding the “pending litigation” was central to the Judge’s final decision?

7. What was the final conclusion reached by the Administrative Law Judge regarding Terravita’s actions?

8. Identify the three specific orders issued by the Administrative Law Judge in the “Recommended Order.”

9. What state department adopted the Administrative Law Judge’s decision, making it a “Final Order”?

10. Besides complying with the records request and paying the filing fee, what specific penalty was explicitly not levied against Terravita?

——————————————————————————–

Answer Key

1. On February 6, 2017, William M. Brown requested records from Terravita Country Club. On February 14, 2017, Terravita responded via email, refusing to disclose the records because they were allegedly part of pending criminal litigation against Mr. Brown.

2. Terravita justified its refusal by citing Arizona Revised Statute (A.R.S.) § 33-1805(B)(2). The club argued that this statute allows an association to withhold records related to “pending litigation.”

3. Mr. Brown’s primary argument was that Terravita had violated A.R.S. § 33-1805(A) by failing to provide records within 10 business days. He contended that the exemption for “pending litigation” in § 33-1805(B)(2) applies only when the association itself is a party to that litigation, which Terravita was not in his criminal case.

4. The Judge interpreted Terravita’s argument to mean that an association could deny any records request if the documents related to pending litigation between any two parties anywhere. This interpretation was rejected because it would lead to the “absurd result” of broadly denying access to records, which was not the statute’s intent.

5. “Preponderance of the evidence” is the evidentiary standard where the trier of fact must be convinced that a contention is more probably true than not. In this case, the Petitioner (Mr. Brown) bore the burden of proving that Terravita violated the statute, while the Respondent (Terravita) bore the burden of proving its affirmative defenses.

6. The central fact was that Terravita Country Club was not a party to the criminal case brought against Mr. Brown by the City of Scottsdale. Because the association was not a party, the judge ruled that the statutory exemption for withholding records related to pending litigation did not apply.

7. The Administrative Law Judge concluded that Mr. Brown had established by a preponderance of the evidence that Terravita failed to fulfill his records request within the required 10 business days. Therefore, the Tribunal concluded that Terravita violated the charged provision of A.R.S. § 33-1805.

8. The Judge ordered that: (1) the Petitioner (Mr. Brown) be deemed the prevailing party; (2) Terravita must comply with the records request within 10 days of the Order; and (3) Terravita must pay the Petitioner’s $500.00 filing fee within 30 days of the Order.

9. The Commissioner of the Arizona Department of Real Estate adopted the Administrative Law Judge’s decision. This action, dated July 24, 2017, made the decision a binding Final Order.

10. The Recommended Order, which was adopted as the Final Order, explicitly states that “No Civil Penalty is found to be appropriate in this matter.”

——————————————————————————–

Essay Questions

Instructions: The following questions are designed to test a deeper, more analytical understanding of the case. Formulate a comprehensive response for each, drawing upon the facts, legal principles, and arguments presented in the source documents.

1. Analyze the conflicting interpretations of A.R.S. § 33-1805(B)(2) presented by William M. Brown and Terravita Country Club. Explain the legal reasoning the Administrative Law Judge used to resolve this dispute, including the principle of avoiding “absurd results.”

2. Describe the complete timeline of the case, from the initial records request to the issuance of the Final Order. For each key date, explain the event’s significance to the progression and outcome of the dispute.

3. Discuss the legal standard of “preponderance of the evidence” as defined in the case documents. Explain how this standard was applied to both the Petitioner’s claim and the Respondent’s affirmative defense and why the Judge ultimately found that the Petitioner had met this burden.

4. Examine the role of the Office of Administrative Hearings and the Department of Real Estate in resolving disputes within planned communities, as demonstrated by this case. How does the process flow from an initial petition to a binding order?

5. Based on the Judge’s decision, formulate an argument about the balance between a homeowner’s right to access association records and an association’s right to protect its interests in legal matters. How does A.R.S. § 33-1805 attempt to strike this balance, and how did the ruling in this case clarify its limits?

——————————————————————————–

Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An independent judge who presides over hearings at the Office of Administrative Hearings. In this case, Velva Moses-Thompson served as the ALJ.

Affirmative Defense

A set of facts or legal arguments raised by the respondent that, if proven, can defeat or mitigate the petitioner’s claim. Terravita’s claim that A.R.S. § 33-1805(B)(2) exempted them was their affirmative defense.

A.R.S. § 33-1805(A)

The section of Arizona Revised Statutes that requires a planned community association to make financial and other records available for member examination within 10 business days.

A.R.S. § 33-1805(B)(2)

The section of Arizona Revised Statutes that allows an association to withhold books and records from disclosure if the portion withheld relates to “pending litigation.”

A.R.S. § 41-2198.01

The Arizona statute that permits an owner or planned community organization to file a petition with the Department of Real Estate for a hearing concerning violations of statutes or community documents.

Burden of Proof

The obligation on a party in a trial to produce the evidence that will prove the claims they have made against the other party. The Petitioner bore the burden to prove the violation, and the Respondent bore the burden to establish its defense.

Department of Real Estate

The Arizona state agency that received the Petition for Hearing from Mr. Brown and ultimately adopted the ALJ’s decision, making it final.

Final Order

The binding decision issued by the Commissioner of the Department of Real Estate, which adopted the ALJ’s Recommended Order. This order is an administrative action and is effective immediately upon service.

Office of Administrative Hearings

An independent state agency in Arizona where administrative law judges conduct hearings on disputes, such as the one between Mr. Brown and Terravita.

Petitioner

The party who initiates a lawsuit or hearing by filing a petition. In this case, William M. Brown was the Petitioner.

Preponderance of the Evidence

The standard of proof in most civil cases. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not” and represents “the greater weight of the evidence.”

Prevailing Party

The party who is successful in a legal case. The Final Order deemed William M. Brown the prevailing party.

Recommended Order

The initial decision and orders issued by the Administrative Law Judge following a hearing. This decision is then sent to the relevant state agency (in this case, the Department of Real Estate) for adoption.

Respondent

The party against whom a petition is filed; the party who must respond to the claims. In this case, Terravita Country Club, Inc. was the Respondent.

Your HOA Can’t Use “Pending Litigation” to Hide Records. This Homeowner Proved It.

Introduction: The Wall of Secrecy

For many homeowners, dealing with a Homeowners Association (HOA) can feel like confronting an organization that operates with total authority and little transparency. Board decisions can seem arbitrary, and getting straight answers or access to official documents can be a frustrating, uphill battle. But what happens when an HOA flatly denies a simple request for records, citing a vague legal reason?

One homeowner decided to find out. The case of William M. Brown versus the Terravita Country Club provides a fascinating look at how a single individual challenged his HOA’s interpretation of state law. In doing so, he not only won access to the records he sought but also revealed a crucial limit on an HOA’s power to operate in secret.

The Takeaways: Four Lessons from a Landmark HOA Dispute

This case offers several powerful and practical lessons for any homeowner who has ever felt stonewalled by their association’s board.

Takeaway 1: “Pending Litigation” Isn’t a Blank Check to Deny Records

At the heart of the dispute was a simple request. On February 6, 2017, William M. Brown asked his HOA, Terravita, for access to association records. The HOA denied the request, citing an exemption in Arizona law (A.R.S. § 33-1805(B)(2)) that allows an association to withhold records related to “pending litigation.”

Terravita’s argument was that this exemption applied because of a pending criminal case against Mr. Brown. Crucially, they argued this was not just any unrelated case; the criminal charges stemmed from allegations that Mr. Brown had threatened the HOA’s board members and property. From their perspective, the records request was directly linked to a hostile legal situation involving the association’s leadership. However, the critical fact remained that the HOA itself was not a formal party to the criminal case.

The judge’s ruling was definitive and clear: the “pending litigation” exemption can only be used to withhold records if the litigation is between the association and the member. Because Terravita was not a party to Mr. Brown’s criminal case, it had no legal grounds to use that case as an excuse to withhold its records from him. This ruling draws a bright line: The “pending litigation” shield cannot be borrowed from a separate case, even one that feels highly relevant to the HOA.

Takeaway 2: Legal Interpretations Must Be Sensible, Not Absurd

The HOA argued for a literal interpretation of the law, claiming the statute didn’t explicitly state that the association had to be a party to the litigation. Administrative Law Judge Velva Moses-Thompson rejected this line of reasoning, stating that it would lead to an “absurd result.”

This is a critical lesson for homeowners. Judges are tasked with ensuring laws are applied sensibly. When an HOA’s interpretation of a rule would create an illogical or unfair outcome, it is vulnerable to legal challenge. The judge highlighted the flaw in the HOA’s logic with a powerful statement in her decision:

Terravita’s interpretation of A.R.S. § 33-1805(B)(2) would allow the association to deny records request of documents that relate to pending litigation between any parties. Such an interpretation would lead to the absurd result of denying records requests of all documents that relate to pending litigation anywhere, between any two parties.

Takeaway 3: A Single Homeowner Can Successfully Challenge Their HOA

Perhaps the most empowering aspect of this case is who argued it. The court documents show that while the HOA was represented by legal counsel (“Joshua Bolen, Esq. appeared on behalf of Respondent Terravita Country Club, Inc.”), Mr. Brown represented himself (“Petitioner William M. Brown appeared on behalf of himself”).

Despite being outmatched on paper, Mr. Brown successfully researched the law, presented a logical argument, and held his ground. His victory demonstrates that the legal process is not just for lawyers. A well-researched, logical argument from a homeowner can be more powerful than a law firm’s flawed interpretation of a statute. The judge ultimately found that “Mr. Brown established by a preponderance of the evidence that Terravita failed to fulfill his February 6, 2017 records request within 10 business days.”

Takeaway 4: Misapplying the Law Can Have Financial Consequences

This wasn’t just a moral victory. The final order, adopted by the Arizona Department of Real Estate on July 24, 2017, came with tangible consequences for the HOA. For its failure to correctly apply the law, Terravita faced direct and tangible consequences.

• The HOA was ordered to provide the requested records within 10 days.

• The homeowner, Mr. Brown, was deemed the “prevailing party.”

• The HOA, Terravita, was ordered to pay Mr. Brown his filing fee of $500.00.

This outcome underscores a critical point: when an HOA oversteps its authority or misinterprets the law, it can be held financially responsible for the costs incurred by the homeowner forced to challenge its actions.

Conclusion: Knowledge is Power

The story of William M. Brown’s dispute with his HOA serves as a powerful reminder that HOAs do not have unlimited power. They are governed by specific state laws, and understanding those laws is the most effective tool a homeowner possesses.

The central lesson is that an HOA’s authority is not absolute, and its interpretation of its own rules—and, more importantly, state law—must be reasonable and sensible. This case affirms the right of members to transparency and proves that a single, well-prepared homeowner can successfully stand up for those rights.

After seeing how one homeowner held his board accountable, will you take the time to learn your rights before you need them?

Case Participants

Petitioner Side

  • William M. Brown (petitioner)
    Appeared on behalf of himself

Respondent Side

  • Joshua Bolen (attorney)
    Carpenter, Hazlewood, Delgado & Bolen, PLC

Neutral Parties

  • Velva Moses-Thompson (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
  • Abby Hansen (HOA coordinator)
    Arizona Department of Real Estate

William M. Brown vs. Terravita Country Club, Inc.

Posted on by

Case Summary

Case ID 17F-H1716005-REL
Agency ADRE
Tribunal OAH
Decision Date 2017-07-10
Administrative Law Judge Velva Moses-Thompson
Outcome The Petitioner was deemed the prevailing party after the Tribunal concluded that the Respondent, Terravita Country Club, Inc., violated A.R.S. § 33-1805 by failing to timely provide access to records within the mandated 10 business days. The Respondent was ordered to comply with the statute and refund the Petitioner's $500.00 filing fee. No civil penalty was imposed.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner William M. Brown Counsel —
Respondent Terravita Country Club, Inc. Counsel Joshua Bolen

Alleged Violations

A.R.S. § 33-1805

Outcome Summary

The Petitioner was deemed the prevailing party after the Tribunal concluded that the Respondent, Terravita Country Club, Inc., violated A.R.S. § 33-1805 by failing to timely provide access to records within the mandated 10 business days. The Respondent was ordered to comply with the statute and refund the Petitioner's $500.00 filing fee. No civil penalty was imposed.

Key Issues & Findings

Failure to timely respond to records request

Petitioner alleged Respondent failed to timely respond to his July 30, 2016 records request, pursuant to A.R.S. § 33-1805(A). The Tribunal found that Petitioner established by a preponderance of the evidence that Respondent failed to fulfill the request for examination of records within 10 business days, violating A.R.S. § 33-1805.

Orders: Respondent is ordered to comply with A.R.S. § 33-1805 regarding Petitioner’s request for records within 10 days of the Order. Respondent is ordered to pay Petitioner his filing fee of $500.00 within thirty (30) days.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1805
  • A.R.S. § 33-1805(A)

Analytics Highlights

Topics: HOA Records Request, Failure to Respond, Statutory Violation, Filing Fee Refund
Additional Citations:

  • A.R.S. § 33-1805
  • A.R.S. § 41-2198.01
  • A.R.S. § 41-1092.01

Video Overview

Audio Overview

Decision Documents

17F-H1716005-REL Decision – 574630.pdf

Uploaded 2026-04-26T09:42:37 (87.9 KB)

17F-H1716005-REL Decision – 575115.pdf

Uploaded 2026-04-26T09:42:43 (789.4 KB)

17F-H1716005-REL Decision – 574630.pdf

Uploaded 2026-01-23T17:17:51 (87.9 KB)

17F-H1716005-REL Decision – 575115.pdf

Uploaded 2026-01-23T17:17:55 (789.4 KB)

Briefing Document: Brown v. Terravita Country Club, Inc.

Executive Summary

This document summarizes the administrative hearing and final order in the case of William M. Brown (Petitioner) versus Terravita Country Club, Inc. (Respondent), Case No. 17F-H1716005-REL. The central issue was Terravita’s failure to respond to a member’s request for records within the 10-business-day timeframe mandated by Arizona Revised Statutes (A.R.S.) § 33-1805.

The Administrative Law Judge (ALJ) found the Petitioner’s testimony and evidence to be credible, establishing that Mr. Brown submitted a valid records request via e-mail on July 30, 2016, to which Terravita did not timely respond. The ALJ found the testimony of Terravita’s key witness to be unreliable and rejected Terravita’s defenses, which included claims of non-receipt, improper submission procedure, and falsified evidence.

Ultimately, the ALJ ruled in favor of the Petitioner, concluding that Terravita violated A.R.S. § 33-1805. The recommended order, which was subsequently adopted as a Final Order by the Commissioner of the Department of Real Estate, mandated that Terravita comply with the records request, reimburse the Petitioner’s $500 filing fee, and deemed the Petitioner the prevailing party. No civil penalty was assessed.

Case Overview

Case Detail

Information

Case Number

17F-H1716005-REL (OAH) / HO 17-16/005 (DRE)

Petitioner

William M. Brown (Appeared on behalf of himself)

Respondent

Terravita Country Club, Inc. (Represented by Joshua Bolen, Esq.)

Adjudicating Body

Arizona Office of Administrative Hearings

Adopting Authority

Arizona Department of Real Estate

Administrative Law Judge

Velva Moses-Thompson

Commissioner

Judy Lowe

Hearing Date

June 19, 2017

ALJ Decision Date

July 10, 2017

Final Order Date

July 11, 2017

Chronology of Events

• February 12, 2016: Anita Bell requests records from Terravita via Mr. Brown’s e-mail account. The request is forwarded to General Manager Tom Forbes.

• February 19, 2016: Mr. Forbes informs Ms. Bell that the records will be ready on February 22.

• March 14, 2016: Ms. Bell submits another records request from Mr. Brown’s e-mail account.

• March 18, 2016: Cici Rausch, Terravita’s Director of Administration, informs Ms. Bell when the records can be retrieved.

• July 29, 2016: Date of the records request at the center of the legal dispute.

• July 30, 2016: Mr. Brown e-mails the records request to Terravita’s Secretary, Fran Wiley. On the same day, he separately requests records from the Terravita Community Association, Inc. (TCA).

• August 6, 2016: Mr. Brown sends another records request to Ms. Wiley.

• August 8, 2016: TCA responds to Mr. Brown’s July 30 request.

• August 12, 2016: Terravita responds to Mr. Brown’s August 6 request.

• August 18, 2016: Mr. Brown files a Petition for Hearing with the Arizona Department of Real Estate, alleging Terravita’s failure to timely respond to his July 30 request.

• September 9, 2016: Terravita files a response, alleging it did not receive the July 30 records request.

• June 19, 2017: The administrative hearing is held.

• July 10, 2017: The ALJ issues a decision finding in favor of Mr. Brown.

• July 11, 2017: The Commissioner of the Department of Real Estate accepts the ALJ’s decision and issues a Final Order.

Analysis of the Central Dispute

The core of the case revolved around whether Terravita violated its statutory duty to respond to Mr. Brown’s records request dated July 29, 2016, which he e-mailed on July 30, 2016.

Petitioner’s Position and Evidence

• Core Allegation: Mr. Brown testified that he sent the records request via e-mail to Terravita’s Secretary, Fran Wiley, on July 30, 2016, and that Terravita failed to respond within the 10-business-day period mandated by law.

• Evidence: Mr. Brown submitted an August 12, 2016 forwarded e-mail (Exhibit P2) that contained the original July 30, 2016 e-mail sent to Ms. Wiley.

• Judicial Finding: The ALJ found Mr. Brown’s testimony to be “credible.”

Respondent’s Defenses and the Court’s Findings

Terravita presented several arguments to contest the allegation, all of which were ultimately unpersuasive to the court.

1. Claim of Non-Receipt: Terravita contended it never received the July 30, 2016 request. Ms. Wiley testified she did not receive a request from Mr. Brown on July 29 or July 30.

◦ Court’s Finding: The ALJ found Ms. Wiley’s testimony to be “unreliable.” The decision noted that Ms. Wiley testified that Terravita was “indirectly” informed around August 5 that “perhaps Mr. Brown had made the request,” which undermined the claim of complete non-awareness.

2. Use of an Incorrect E-mail Address: Ms. Wiley testified that she did not use the e-mail address to which Mr. Brown sent the request for Terravita affairs, claiming she used a different one in her official capacity as Secretary.

◦ Court’s Finding: This argument was implicitly rejected, as the ALJ concluded that Mr. Brown had successfully proven he submitted the request “to its Secretary, Ms. Wiley.”

3. Allegation of Falsified Evidence: Terravita contended that the forwarded e-mail evidence offered by Mr. Brown was falsified.

◦ Court’s Finding: The ALJ noted an inconsistency in Terravita’s position, stating, “Terravita did not contend that the written evidence of Mr. Brown’s August 5, 2016 records request, sent by e-mail to Ms. Wiley, was falsified.” This weakened the credibility of the falsification claim against the July 30 e-mail.

4. Non-Compliance with Internal Policy: Terravita argued that its own Rules, Policies, and Procedures required members to submit records requests to the General Manager and/or Director of Administration, not the Secretary.

◦ Court’s Finding: The decision focused entirely on the violation of the state statute, A.R.S. § 33-1805, indicating that the statutory obligation superseded the association’s internal procedural preferences.

Legal Framework and Conclusions of Law

• Governing Statute: A.R.S. § 33-1805(A) mandates that a homeowners’ association “shall have ten business days to fulfill a request for examination” of its financial and other records by a member.

• Burden of Proof: The Petitioner was required to prove the violation by a “preponderance of the evidence,” defined as “such proof as convinces the trier of fact that the contention is more probably true than not.”

• Conclusion of Law: The ALJ determined that Mr. Brown successfully established by a preponderance of the evidence that:

1. He submitted a request for records to Terravita’s Secretary via e-mail on July 30, 2016.

2. Terravita failed to fulfill this request within the statutory 10-business-day deadline.

• Final Judgment: The Tribunal concluded that “Terravita violated the charged provision of A.R.S. § 33-1805.” It was also noted that Terravita did not contend that any of the statutory exceptions to disclosure, such as privileged communication or pending litigation, applied.

Final Order and Directives

The ALJ’s decision was formally adopted by the Commissioner of the Department of Real Estate on July 11, 2017, making it a Final Order with the following mandates:

• Prevailing Party: Petitioner William M. Brown was deemed the prevailing party.

• Compliance with Request: Terravita was ordered to “comply with the applicable provisions of A.R.S. § 33-1805 regarding Petitioner’s request of Terravita’s records” within 10 days of the Order.

• Reimbursement of Filing Fee: Terravita was ordered to pay the Petitioner his filing fee of $500.00 directly to him within thirty (30) days.

• Civil Penalty: The court determined that “No Civil Penalty is found to be appropriate in this matter.”

• Effective Date: The Order was made effective five (5) days from the date of its certification. The Final Order itself is effective immediately from the date of service, July 11, 2017.

Study Guide: Brown v. Terravita Country Club, Inc. (Case No. 17F-H1716005-REL)

This study guide provides a comprehensive review of the administrative hearing decision concerning William M. Brown’s records request to the Terravita Country Club. The case centers on the interpretation and application of Arizona Revised Statute § 33-1805, which governs a member’s right to access association records. The guide includes a short-answer quiz, essay questions for deeper analysis, and a glossary of key terms as defined and used within the legal documents.

——————————————————————————–

Short-Answer Quiz

Instructions: Answer the following questions in two to three complete sentences, drawing information exclusively from the provided case documents.

1. Who were the Petitioner and Respondent in this case, and what was their established relationship?

2. What specific failure by Terravita Country Club, Inc. led Mr. Brown to file his Petition for Hearing with the Arizona Department of Real Estate?

3. According to A.R.S. § 33-1805, what is the required timeframe for an association to fulfill a member’s request to examine its records?

4. What were the primary arguments Terravita presented to defend its failure to provide the requested records?

5. How did the Administrative Law Judge assess the credibility of the testimony provided by Mr. Brown and Terravita’s witness, Ms. Fran Wiley?

6. What piece of documentary evidence did Mr. Brown submit to prove he had sent the records request on July 30, 2016?

7. What is the standard of proof required in this hearing, and how is that standard defined in the decision?

8. What two specific actions did the final Recommended Order compel Terravita to take as a result of the ruling?

9. Why was Terravita’s argument that Mr. Brown failed to follow its internal rules for submitting records requests ultimately unsuccessful?

10. What was the role of the Commissioner of the Department of Real Estate after the Administrative Law Judge issued her decision?

——————————————————————————–

Answer Key

1. The Petitioner was William M. Brown, and the Respondent was Terravita Country Club, Inc. At all times relevant to the matter, Mr. Brown was a member of the Terravita Country Club.

2. Mr. Brown filed the petition because Terravita failed to respond to his July 30, 2016, request for records within the 10-business-day timeframe mandated by A.R.S. § 33-1805(A). This failure to provide timely access to the records was the central violation alleged.

3. A.R.S. § 33-1805(A) states that the association must fulfill a request for examination of its records within ten business days. If copies are requested, the association has ten business days to provide them and may charge up to fifteen cents per page.

4. Terravita argued that it never received the July 30, 2016, request from Mr. Brown. They also contended that his email evidence was falsified and that he failed to comply with their internal policy requiring such requests be sent to the General Manager or Director of Administration.

5. The Administrative Law Judge found Mr. Brown’s testimony to be credible. Conversely, the Judge found the testimony of Ms. Wiley, who testified on behalf of Terravita, to be unreliable.

6. Mr. Brown submitted an August 12, 2016, forwarded email that contained his original July 30, 2016, email to Ms. Wiley. This original email contained the records request dated July 29, 2016.

7. The standard of proof was a “preponderance of the evidence.” The decision defines this as “such proof as convinces the trier of fact that the contention is more probably true than not” and as having “the most convincing force” or “superior evidentiary weight.”

8. The Recommended Order compelled Terravita to pay Mr. Brown’s $500 filing fee within thirty days of the order. It also ordered Terravita to comply with the records request and provide the documents within ten days of the order.

9. The argument was unsuccessful because the Judge concluded that Terravita violated the plain meaning of the state statute, A.R.S. § 33-1805. The ruling focused on this statutory violation, noting that Terravita did not contend that any of the law’s specific exceptions for withholding records applied.

10. The Commissioner of the Department of Real Estate, Judy Lowe, was responsible for reviewing the Administrative Law Judge’s decision. The Commissioner accepted the decision and issued a Final Order, which made the Judge’s recommendations legally binding and enforceable.

——————————————————————————–

Essay Questions

Instructions: The following questions are designed for a more in-depth analysis of the case. Formulate comprehensive responses based solely on the provided source documents.

1. Analyze Terravita’s defense strategy. Discuss the strengths and weaknesses of their arguments regarding not receiving the email, the alleged falsification of evidence, and the club’s internal policies for records requests.

2. Explain the concept of “preponderance of the evidence” as defined in the case documents. How did the Administrative Law Judge apply this standard to the conflicting testimonies of William Brown and Fran Wiley to reach her conclusion?

3. Discuss the significance of A.R.S. § 33-1805 in the context of planned communities. Based on the details in the case, why is a member’s right to access association records important, and what protections does this statute provide?

4. Trace the procedural path of this dispute from Mr. Brown’s initial records request to the Final Order. What roles did the Petitioner, the Respondent, the Office of Administrative Hearings, and the Department of Real Estate play in this process?

5. The Administrative Law Judge’s decision rested heavily on findings of credibility. Explore the factors detailed in the case documents that might have led the judge to find Mr. Brown’s testimony “credible” and Ms. Wiley’s “unreliable.”

——————————————————————————–

Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

The official (Velva Moses-Thompson) who presides over hearings at the Office of Administrative Hearings, evaluates evidence and testimony, and issues a recommended decision based on the law.

A.R.S. § 33-1805

The Arizona Revised Statute at the heart of the case. It mandates that a planned community association must make all financial and other records reasonably available for a member’s examination within ten business days of a request.

Burden of Proof

The obligation to prove an assertion. The Petitioner (Mr. Brown) bore the burden of proving that the Respondent (Terravita) violated the statute.

Department of Real Estate

The Arizona state agency where Mr. Brown filed his Petition for Hearing. Its Commissioner (Judy Lowe) has the authority to accept an ALJ’s decision and issue a final, binding order.

Office of Administrative Hearings (OAH)

An independent agency that conducts formal hearings for disputes concerning violations of planned community statutes, as authorized by A.R.S. § 41-1092.01.

Petitioner

The party who initiates a legal action by filing a petition. In this matter, the Petitioner was William M. Brown.

Preponderance of the Evidence

The evidentiary standard required for the Petitioner to prove his case. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not” and as evidence with “the most convincing force.”

Prevailing Party

The party who is successful and wins the legal dispute. The Administrative Law Judge’s order deemed the Petitioner, William M. Brown, to be the prevailing party.

Respondent

The party against whom a petition is filed and who must respond to the allegations. In this matter, the Respondent was Terravita Country Club, Inc.

He Sued His HOA Over an Unanswered Email—And Won. Here Are 4 Lessons from the Judge’s Ruling.

1. Introduction: The Black Hole of Bureaucracy

We’ve all been there. You draft a clear, important request, send it to a large organization, and wait. And wait. The silence that follows can feel like your message was sent into a black hole. This frustration is especially common for homeowners dealing with their Homeowners’ Association (HOA), where getting a straight answer or a timely response can seem impossible.

But what if being ignored is more than just frustrating? What if it’s a violation of the law? The case of William M. Brown versus the Terravita Country Club provides a powerful real-world example of one member who fought back against being ignored—and won. His persistence offers crucial lessons for any homeowner who has ever felt powerless against their association’s bureaucracy.

2. Takeaway 1: The “We Never Got the Email” Defense Isn’t Bulletproof

When faced with Mr. Brown’s petition, Terravita’s primary defense was simple: they claimed they never received his July 30, 2016, email requesting association records. They went even further, contending that the email evidence he provided was falsified.

This defense crumbled under scrutiny. Mr. Brown presented a forwarded email as evidence of his original request. In the end, the case came down to witness testimony, and the Administrative Law Judge’s conclusion was direct and unambiguous. The judge made two critical findings on the credibility of the parties involved:

I find Mr. Brown’s testimony to be credible.

And regarding the testimony from Terravita’s representative, the Secretary Ms. Wiley:

I find Ms. Wiley’s testimony to be unreliable.

The judge’s conclusion was not arbitrary; it was based on a clear contradiction in the evidence. Ms. Wiley testified that she did not use the specific email address where Mr. Brown sent the request for association business. However, evidence presented to the court showed that just a few months prior, she had successfully received and processed two separate records requests sent to that very same email address, proving it was a valid and functioning channel for communication. This detail demonstrates how an individual’s careful documentation can expose an organization’s flawed defense.

3. Takeaway 2: State Law Overrules Internal Red Tape

Terravita offered a second line of defense: even if they had received the email, Mr. Brown hadn’t followed their internal “Rules, Policies and Procedures.” The association argued that members were required to submit records requests to the General Manager or Director of Administration, not the association’s Secretary, whom Mr. Brown had emailed.

This argument was deemed irrelevant by the judge. The decision hinged not on Terravita’s internal rules, but on the plain language of Arizona state law, A.R.S. § 33-1805. The statute simply requires the association to make records available within ten business days of a request; it does not specify which officer or employee must receive that request.

By failing to respond, Terravita violated the statute, regardless of its own procedural preferences. This is a critical reminder for all homeowners: your rights are often enshrined in state law, and those rights cannot be diminished or negated by an HOA’s internal bylaws or policies.

4. Takeaway 3: A Simple Request Has a Firm Deadline

The core violation in this case was a failure to meet a specific, legally mandated deadline. Under Arizona law A.R.S. § 33-1805, an association has ten business days to fulfill a member’s request for the examination of records.

The timeline of events was clear:

• Mr. Brown sent his records request via email on July 30, 2016.

• The judge found that “Terravita did not respond to Mr. Brown’s records request within 10 business days.”

Adding weight to this was the fact that the association had previously proven itself more than capable of handling requests sent from Mr. Brown’s email account. Earlier that year, another individual had successfully requested records through the same channel. In those instances, Terravita had been prompt, often acknowledging requests within a day or two and making records available well within the legal deadline. This history undermined any claim of inability to respond. The law’s ten-day deadline is not a vague guideline; it is a specific and enforceable protection for members’ right to information.

5. Takeaway 4: Persistence Can Literally Pay Off

After reviewing the evidence, the judge ruled that Mr. Brown was the “prevailing party.” This victory was not just symbolic; it came with concrete orders that held the association accountable.

The judge’s final decision included the following orders:

• Terravita was ordered to comply with the records request within 10 days.

• Terravita was ordered to pay Mr. Brown his filing fee of $500.00.

Mr. Brown’s persistence didn’t just get him the documents he was legally entitled to; it also resulted in the full reimbursement of his filing costs. This outcome serves as a powerful example that standing up for your rights as a homeowner is not always a futile or expensive endeavor. With proper documentation and an understanding of the law, a single member can hold their association accountable.

6. Conclusion: Your Rights Are Written in Law

While homeowners are obligated to follow their HOA’s rules, the association is equally obligated to follow state law. These laws provide clear rights and protections designed to ensure transparency and fairness. The case of William M. Brown is a testament to the power of a single, well-documented request and the importance of understanding the laws that govern your association.

The next time you feel ignored by a large organization, what’s the one simple step you can take to ensure your request is not only heard, but documented?

Case Participants

Petitioner Side

  • William M. Brown (petitioner)
    Appeared on behalf of himself
  • Anita Bell (records requester)
    Requested records via Mr. Brown's e-mail account

Respondent Side

  • Joshua Bolen (attorney)
    Carpenter, Hazlewood, Delgado & Bolen, PLC
    Appeared for Respondent Terravita Country Club, Inc.
  • Fran Wiley (secretary/witness)
    Terravita Country Club, Inc.
    Terravita Secretary; testified on behalf of Terravita
  • Tom Forbes (general manager)
    Terravita Country Club, Inc.
  • Cici Rausch (director of administration)
    Terravita Country Club, Inc.

Neutral Parties

  • Velva Moses-Thompson (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (commissioner)
    Arizona Department of Real Estate
    Signed the Final Order
  • Abby Hansen (HOA coordinator)
    Arizona Department of Real Estate
    Addressed for rehearing requests and signed mailing notice

Nelson, Paula J. vs. Landings Homeowners Association

Posted on by

Case Summary

Case ID 13F-H1314003-BFS
Agency Department of Fire, Building and Life Safety
Tribunal OAH
Decision Date 2014-02-14
Administrative Law Judge M. Douglas
Outcome The Administrative Law Judge ruled in favor of the Respondent, Landings Homeowners Association. The Judge found that the Association made its records reasonably available for examination and was not required to produce documents (specifically roofing binders and photos) that it did not possess or that were privileged. The Petition was dismissed.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Paula J. Nelson Counsel —
Respondent Landings Homeowners Association Counsel Mark Saul

Alleged Violations

A.R.S. § 33-1805(A)

Outcome Summary

The Administrative Law Judge ruled in favor of the Respondent, Landings Homeowners Association. The Judge found that the Association made its records reasonably available for examination and was not required to produce documents (specifically roofing binders and photos) that it did not possess or that were privileged. The Petition was dismissed.

Why this result: The Petitioner failed to prove by a preponderance of the evidence that the Association violated A.R.S. § 33-1805(A). The evidence showed the Association made available the records it possessed, and the specific missing records (roofing binders created by a third party) were not proven to be in the Association's possession.

Key Issues & Findings

Failure to provide records

Petitioner alleged the Association failed to provide specific records, including roofing binders, photographs, and individual roof assessments, within the statutory timeframe. The Association argued it made records reasonably available and could not produce documents it did not possess.

Orders: The Petition is dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Video Overview

Audio Overview

Decision Documents

13F-H1314003-BFS Decision – 382722.pdf

Uploaded 2026-04-24T10:47:16 (114.5 KB)

13F-H1314003-BFS Decision – 388443.pdf

Uploaded 2026-04-24T10:47:24 (59.2 KB)

13F-H1314003-BFS Decision – 382722.pdf

Uploaded 2026-01-25T15:29:18 (114.5 KB)

13F-H1314003-BFS Decision – 388443.pdf

Uploaded 2026-01-25T15:29:18 (59.2 KB)

Briefing Document: Paula J. Nelson v. Landings Homeowners Association (Case No. 13F-H1314003-BFS)

Executive Summary

This briefing document details the administrative hearing and subsequent final agency action regarding a dispute between Paula J. Nelson (Petitioner) and the Landings Homeowners Association (Respondent/Association). Ms. Nelson alleged that the Association violated Arizona Revised Statute (A.R.S.) § 33-1805(A) by failing to provide copies of requested association records within the mandated ten-day period.

The core of the dispute centered on Ms. Nelson's request for comprehensive roofing assessments and photographs following a community-wide roofing project. While the Association maintained that records were made "reasonably available for examination" at their management office, Ms. Nelson argued that specific binders and spreadsheets she believed existed were being withheld.

The Administrative Law Judge (ALJ) ultimately determined that Ms. Nelson failed to prove by a preponderance of evidence that the Association violated the statute. The ALJ found that the Association complied with the records request in a reasonable manner and that the Petitioner failed to demonstrate the existence or possession of the specific documents she claimed were missing. The decision, issued February 14, 2014, was certified as a final administrative action on March 31, 2014.

Analysis of Key Themes

1. Statutory Compliance and the Definition of "Reasonably Available"

A central theme of the case was the interpretation of A.R.S. § 33-1805(A). The Association argued that their obligation was met by allowing the Petitioner to review documents at the management company’s office.

Statute Component Provision Details
Availability Records must be made "reasonably available for examination" by a member or their representative.
Timeline The association has ten business days to fulfill a request for examination or provide copies.
Format The statute does not explicitly require an association to provide documents in a specific digital format (e.g., email) chosen by the member.
Fees Associations may not charge for the review of materials but may charge up to $0.15 per page for copies.

The ALJ concluded that the Association’s invitation for Ms. Nelson to review records at the office satisfied the requirement of making records "reasonably available," even though Ms. Nelson preferred electronic delivery via email as had been done in the past.

2. Possession of Records and the Burden of Proof

Ms. Nelson asserted that the Association was withholding specific "binders and spreadsheets" containing individual roof assessments and photographs created by a former board representative, Tom Minor.

  • Petitioner's Claim: Evidence of payment to Mr. Minor for the creation of these materials proved the Association should possess them.
  • Respondent's Defense: The Association denied possessing such specific unit-by-unit assessments. They offered Ms. Nelson the opportunity to review the binders they did possess, which were held by their attorney.
  • ALJ Finding: The ALJ ruled that payment for the creation of documents does not equate to proof that the documents were actually created or delivered to the Association. Because Ms. Nelson never scheduled an appointment to review the binders the Association did proffer, she could not prove they were not the documents she sought.
3. Exclusions from Disclosure

The proceedings highlighted the legal limits of records requests under A.R.S. § 33-1805(B). The Association successfully argued that certain communications were protected. The ALJ reaffirmed that:

  • Privileged Communications: Associations are not required to disclose communications between the association and its attorney.
  • Other Protected Records: The statute also protects pending litigation, specific board meeting minutes, and personal, health, or financial records of individual members or employees.

Important Quotes and Contextual Analysis

On the Association's Duty to Provide Records

"A.R.S. § 33-1805(A) does not require that a planned community email documents or provide documents in a certain format chosen by the member. Instead, a planned community must simply make its records 'reasonably available for examination.'"

  • Context: This was the Association's primary defense against Ms. Nelson's claim that they violated the law by refusing to email documents as they had done previously.
On the Burden of Proof

"The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement… Proof by 'preponderance of the evidence' means that it is sufficient to persuade the finder of fact that the proposition is 'more likely true than not.'"

  • Context: This legal standard was used to evaluate Ms. Nelson's claims. The ALJ found that her assertions regarding the "missing" binders did not meet this threshold.
On the Non-Existence of Requested Documents

"The fact that the association may have paid Mr. Minor to create binders with photographs and individual assessments of the roofs… does not establish that such binders were created by Mr. Minor and delivered to the association."

  • Context: The ALJ noted that an association cannot be held liable for failing to produce records that it does not actually possess, regardless of whether it paid for their creation.

Final Agency Action and Procedural History

The case followed a strict administrative timeline leading to the final certification of the ALJ's decision.

  • Hearing Date: January 31, 2014.
  • ALJ Decision Issued: February 14, 2014.
  • Transmittal: The decision was sent to the Department of Fire, Building and Life Safety on February 18, 2014.
  • Certification: Under A.R.S. § 41-1092.08, the Department had until March 25, 2014, to accept, reject, or modify the decision. Since no action was taken by the Department by that date, the ALJ decision was certified as the final administrative decision on March 31, 2014.

Actionable Insights for Association Records Management

Based on the findings and conclusions of the ALJ in this matter, the following insights can be derived regarding the handling of association records requests:

  • Standardize Inspection Protocols: Associations fulfill their statutory duty by making records available for physical inspection within ten business days. While digital delivery is a courtesy, it is not a statutory requirement under A.R.S. § 33-1805(A).
  • Maintain Clear Possession Records: The dispute over the "Minor Binders" underscores the importance of associations maintaining a clear chain of custody for records created by third-party contractors or individual board members.
  • Proactive Proffer of Records: The Association’s defense was strengthened by the fact that they explicitly offered Ms. Nelson the opportunity to review the records they did possess (held by their attorney).
  • Distinguish Between Records and Formats: If a member requests a specific format (e.g., spreadsheets or binders), the association is only obligated to provide the data/records they actually have, regardless of the requested format or whether the association previously paid for the creation of such a format.
  • Assert Privileges Early: Records requests involving legal correspondence should be filtered through the lens of A.R.S. § 33-1805(B) to ensure attorney-client privilege is maintained.

Study Guide: Paula J. Nelson vs. Landings Homeowners Association

This study guide examines the administrative hearing and subsequent decision regarding the legal dispute between Paula J. Nelson and the Landings Homeowners Association. It focuses on Arizona statutes governing homeowners' associations (HOAs), specifically concerning the production of and access to association records.

I. Case Overview and Core Themes

The case of Paula J. Nelson vs. Landings Homeowners Association (No. 13F-H1314003-BFS) centers on a dispute regarding the transparency and accessibility of records within a planned community. The Petitioner, Ms. Nelson, alleged that the Respondent, Landings Homeowners Association, failed to comply with statutory requirements for providing requested documents related to a significant roofing project.

Key Entities
Entity Description
Paula J. Nelson Petitioner; a homeowner and member of the Landings Homeowners Association.
Landings Homeowners Association Respondent; a planned community organization located in Mesa, Arizona.
Office of Administrative Hearings (OAH) The Arizona agency responsible for hearing petitions regarding HOA violations.
Sprayfoam Southwest Inc. The vendor selected to perform roofing replacement work for the association.
Department of Fire, Building and Life Safety The state department authorized to receive petitions and certify OAH decisions.

II. Relevant Statutes and Legal Provisions

The primary legal focus of the case is A.R.S. § 33-1805, which dictates how associations must manage and disclose records.

A.R.S. § 33-1805(A): Records Availability
  • Examination: All financial and other records must be made "reasonably available for examination" by a member or their designated representative.
  • Timeframe: The association has ten business days to fulfill a request for examination or to provide copies of records.
  • Fees: An association may not charge for the review of records but may charge up to fifteen cents ($0.15) per page for copies.
A.R.S. § 33-1805(B): Statutory Exemptions

Records may be withheld from disclosure if they relate to:

  1. Privileged Communication: Discussions between the association and its attorney.
  2. Pending Litigation: Documents related to ongoing legal disputes.
  3. Executive Sessions: Minutes or records of board meetings not required to be open to members under A.R.S. § 33-1804.
  4. Personal Information: Health or financial records of individual members, employees, or contractor employees.
  5. Employment Records: Job performance, compensation, or specific complaints regarding employees.

III. Summary of Testimony and Findings

Petitioner’s Claims

Ms. Nelson asserted that the association violated the law by:

  • Failing to provide records within the ten-day statutory window.
  • Refusing to provide documents via email (insisting on in-person review first).
  • Withholding specific "binders and spreadsheets" containing individual roof assessments and photographs created by a former board member, Mr. Minor.
Association’s Defense

Landings Homeowners Association argued:

  • They made documents "reasonably available" by offering an appointment for review within ten days.
  • The law does not require the association to provide documents in a specific format (e.g., email) chosen by the member.
  • They produced all documents in their possession and offered Ms. Nelson the opportunity to review binders held by their attorney.
Witness Highlights
  • Robyn McRae: Testified that some documents were missing during a pickup appointment and were promised within another ten days.
  • Robert William Timmons (Sprayfoam): Testified that a condensed assessment report was provided to the board, but he had "no idea" if the association possessed his full internal records or the hundreds of photos taken. He confirmed that no unit-by-unit individual assessment reports were ever created.
Judicial Conclusion

The Administrative Law Judge (ALJ) concluded that:

  1. The association complied with requests in a reasonable manner.
  2. The fact that the association paid for the creation of binders does not prove those binders were ever actually completed or delivered to the association.
  3. The Petitioner failed to review the binders offered by the association's attorney, undermining the claim that they were being withheld.

IV. Short-Answer Practice Questions

1. According to A.R.S. § 33-1805(A), how long does an association have to provide copies of requested records?

Answer: Ten business days.

2. What is the maximum fee per page an HOA can charge for making copies?

Answer: Fifteen cents ($0.15).

3. Under what circumstances can an association legally withhold records from a member?

Answer: If the records involve privileged attorney-client communication, pending litigation, private personal/health/financial info of members/employees, or records from closed board sessions.

4. Does A.R.S. § 33-1805(A) require an HOA to provide documents in a specific digital format like email?

Answer: No. The statute requires the association to make records "reasonably available for examination" and provide copies upon request, but it does not mandate a specific format.

5. Who bears the burden of proof in an administrative hearing regarding HOA violations?

Answer: The party asserting the claim (in this case, the Petitioner).

6. What is the "standard of proof" used in these administrative hearings?

Answer: A "preponderance of the evidence," meaning the claim is more likely true than not.

V. Essay Prompts for Deeper Exploration

1. The Concept of "Reasonable Availability" The Respondent argued that by offering an appointment for records review, they satisfied the requirement to make documents "reasonably available." Compare this to the Petitioner's demand for emailed copies. Based on the ALJ's decision, analyze the balance between a homeowner's right to information and an association's management of record-keeping.

2. Evidentiary Standards in Administrative Law The ALJ noted that the Petitioner failed to prove the association actually possessed the "missing" binders. Discuss the legal challenges a Petitioner faces when alleging that an organization is withholding documents that may or may not exist. How does the "preponderance of the evidence" standard apply to such claims?

3. Statutory Protections and Limitations Examine the exemptions listed in A.R.S. § 33-1805(B). Why are these specific protections (attorney-client privilege, personal health records, etc.) necessary for the functioning of a homeowners' association? Discuss how these exemptions might come into conflict with a member's desire for full transparency.

VI. Glossary of Important Terms

  • Administrative Law Judge (ALJ): An official who presides over an administrative hearing and makes findings of fact and conclusions of law.
  • A.R.S. § 33-1805: The Arizona Revised Statute governing the inspection and copying of association records in planned communities.
  • Certification of Decision: The process by which the Director of the OAH finalizes the ALJ's decision after a period of review by the relevant state department.
  • Petitioner: The party who files a petition or claim (in this case, Paula J. Nelson).
  • Preponderance of the Evidence: A legal standard of proof where the evidence shows that a claim is "more likely true than not."
  • Privileged Communication: Information shared in confidence between a client (the association) and their legal counsel, which is protected from disclosure.
  • Respondent: The party against whom a petition or claim is filed (in this case, Landings Homeowners Association).
  • Tribunal: A person or institution with authority to judge, adjudicate on, or determine claims or disputes.

Understanding HOA Record Requests: Key Lessons from Nelson v. Landings Homeowners Association

The legal obligations surrounding the production of records in Arizona homeowners associations (HOAs) are a frequent source of friction between residents and boards. The case of Paula J. Nelson vs. Landings Homeowners Association (Case No. 13F-H1314003-BFS) serves as a definitive case study for both parties. Heard before the Arizona Office of Administrative Hearings, this dispute clarifies the statutory requirements of record production and, more importantly, highlights the procedural pitfalls that can dismantle a homeowner’s claim.

The Core Conflict: Email Requests vs. Physical Inspection

The dispute arose when the Petitioner, Ms. Nelson, alleged that Landings Homeowners Association violated A.R.S. § 33-1805(A) by failing to provide requested records within the statutory ten-day window. The conflict centered not only on the existence of certain documents but also on the manner in which they were to be delivered.

  • The Homeowner’s Stance: Ms. Nelson submitted a voluminous records request and demanded that the association deliver copies via email within ten business days. She specifically alleged that the HOA failed to produce "roofing binders" containing unit-by-unit assessments and photographs related to a community-wide roofing project.
  • The Association’s Defense: The HOA maintained that it fulfilled its legal duty by making the records "reasonably available" for inspection at the management company’s office. Critically, the HOA demonstrated punctuality: after receiving the initial request on April 12, the community manager responded by April 22—fitting precisely within the 10-day window. The association argued that Arizona law does not mandate delivery in a specific digital format chosen by the member, nor is an HOA obligated to produce records that do not exist.

The Legal Standard: Decoding A.R.S. § 33-1805(A)

In evaluating the case, the Administrative Law Judge (ALJ) looked to the specific language of the Arizona Revised Statutes. The law provides a clear timeline but also defines the standard of "availability."

"Except as provided in subsection B of this section, all financial and other records of the association shall be made reasonably available for examination by any member or any person designated by the member in writing as the member's representative… The association shall have ten business days to fulfill a request for examination. On request for purchase of copies of records by any member… the association shall have ten business days to provide copies of the requested records." — A.R.S. § 33-1805(A)

While transparency is the default, A.R.S. § 33-1805(B) identifies five specific categories of records that an association is legally permitted to withhold from disclosure:

  1. Privileged communications between the association and its attorney.
  2. Pending litigation.
  3. Meeting minutes or records of board sessions not required to be open to all members.
  4. Personal, health, or financial records of an individual member or employee.
  5. Records regarding job performance, compensation, or specific complaints against employees or contractors.

The Evidence: Testimonies from the Hearing

Establishing the facts required testimony from the homeowner, a third-party witness, and the roofing contractor to determine what documents actually existed and where they were located.

  • Robyn McRae: Ms. McRae, who accompanied the Petitioner to the management office, testified that several requested documents were allegedly missing during their visit. She noted a management representative’s statement that certain files were with another individual and would require additional time to produce.
  • Robert William Timmons: As the representative for Sprayfoam Southwest Inc., the roofing contractor, Mr. Timmons provided testimony that was fatal to several of the Petitioner's claims. While hundreds of photos were taken, he testified that he worked directly with a former board member, Mr. Minor, and that he had no idea if the management company possessed those specific files. Crucially, Mr. Timmons testified that there were no unit-by-unit assessment reports—the very documents Ms. Nelson insisted were being withheld.
  • Paula J. Nelson: Ms. Nelson admitted that the majority of the requested records were eventually provided. However, she acknowledged a significant strategic oversight: although the association’s attorney had informed her that the roofing binders were available for review at the attorney’s office, she never scheduled an appointment to inspect them.

The Mystery of the Missing Binders: Why the Petition Failed

The ALJ’s decision rested on the "burden of proof." In administrative hearings, the Petitioner must prove their case by a "preponderance of the evidence"—meaning the claim is more likely true than not.

Ms. Nelson’s claim regarding the roofing binders failed for two primary reasons. First, the association cannot be found in violation for failing to produce documents it does not possess; while Ms. Nelson proved the HOA had paid Mr. Minor for the creation of binders, she could not prove those binders were ever actually delivered to or remained in the possession of the current board or management.

Second, the Petitioner’s refusal to inspect the binders offered by the association’s attorney was a fatal strategic error. The ALJ noted that because Ms. Nelson chose not to review the materials proffered, she could not legally prove they were insufficient or that the HOA was withholding information.

Final Ruling and Practical Takeaways

The Administrative Law Judge ordered the dismissal of the petition and certified Landings Homeowners Association as the prevailing party. The ruling concluded that by providing physical access and responding to the initial request within 10 days, the association acted in a reasonable manner.

Key Takeaways for Homeowners and HOAs
  • Reasonable Availability: "Available for examination" is the statutory standard. This does not mandate that the association must provide records in a specific digital format, such as email, unless the community's own governing documents require it.
  • The 10-Day Clock and the "Moving Target": While the 10-day response window is strict, homeowners must realize that subsequent or expanded requests create a "moving target." The ALJ viewed the association's response to Ms. Nelson’s repeated, evolving inquiries as evidence of reasonable compliance.
  • Burden of Proof: The burden lies with the petitioner to provide credible evidence that the association actually possesses the records in question. One cannot demand the production of documents, such as unit-by-unit assessments, that never existed in the first place.
  • Review Before Redress: Filing a legal petition without first exhausting the available means of inspection is a high-risk strategy. If an association offers an inspection—even at an attorney's office—the member must review those materials before claiming they are insufficient. Failure to do so almost guarantees a dismissal and the likelihood of being labeled the non-prevailing party.

Note on Certification and Finality

This decision was certified as the final administrative action of the Department of Fire, Building and Life Safety on March 31, 2014. Under A.R.S. § 41-1092.08(D), the ALJ’s decision became final after the Department took no action to modify or reject the ruling within the statutory timeframe following its initial filing in February 2014.

Case Participants

Petitioner Side

  • Paula J. Nelson (Petitioner)
    Landings Homeowners Association (Member)
    Appeared on her own behalf
  • Robyn McRae (Witness)
    Drove Petitioner to management company; testified regarding document availability
  • Robert William Timmons (Witness)
    Sprayfoam Southwest Inc.
    Subpoenaed by Petitioner; representative for roofing contractor

Respondent Side

  • Mark K. Sahl (HOA Attorney)
    Carpenter, Hazelwood, Delgado & Bolen, PLC
    Listed as 'Mark Saul' in ALJ Decision appearances; 'Mark K. Sahl' in certification mailing list
  • Jo Seashols (Community Manager)
    Landings Homeowners Association (Management Company)
  • Renee (Employee)
    Management Company
    Mentioned by management staff as having possession of photographs
  • Tom Minor (Former Representative)
    Landings Homeowners Association
    Former board member/representative on construction project

Neutral Parties

  • M. Douglas (ALJ)
    Office of Administrative Hearings
    Administrative Law Judge
  • Cliff J. Vanell (Director)
    Office of Administrative Hearings
    Certified the ALJ decision
  • Gene Palma (Director)
    Department of Fire, Building and Life Safety
    Recipient of decision
  • Joni Cage (Agency Staff)
    Department of Fire, Building and Life Safety
    c/o for Gene Palma
  • Rosella J. Rodriguez (Clerk)
    Office of Administrative Hearings
    Mailed/processed the certification

Brown, William vs. Terravita Community Association, Inc.

Posted on by

Case Summary

Case ID 12F-H1212014-BFS
Agency Department of Fire, Building and Life Safety
Tribunal OAH
Decision Date 2012-10-04
Administrative Law Judge Brian Brendan Tully
Outcome The Administrative Law Judge granted the Respondent's Motion for Summary Judgment for Mootness. The ALJ concluded the Petitioner was not entitled to view the requested records because they were either non-existent, privileged attorney-client communications, or confidential executive session minutes.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner William M. Brown Counsel —
Respondent Terravita Community Association, Inc. Counsel Curtis S. Ekmark, Esq.; Jason F. Wood, Esq.

Alleged Violations

A.R.S. § 33-1805(A)

Outcome Summary

The Administrative Law Judge granted the Respondent's Motion for Summary Judgment for Mootness. The ALJ concluded the Petitioner was not entitled to view the requested records because they were either non-existent, privileged attorney-client communications, or confidential executive session minutes.

Why this result: The requested records were legally protected from disclosure by attorney-client privilege and statutes governing executive session confidentiality.

Key Issues & Findings

Failure to provide requested records (engagement letter and executive session minutes)

Petitioner requested an engagement letter between the Association and its counsel, and minutes from two executive session meetings. Respondent argued the engagement letter did not exist or was privileged, and executive session minutes are protected from disclosure.

Orders: Respondent's Motion for Summary Judgment for Mootness granted.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1805(A)
  • A.R.S. § 33-1805(B)
  • A.R.S. § 33-1804(A)
  • A.R.S. § 33-1805(B)(3)

Video Overview

Audio Overview

Decision Documents

12F-H1212014-BFS Decision – 309140.pdf

Uploaded 2026-04-24T10:42:55 (89.1 KB)

12F-H1212014-BFS Decision – 313671.pdf

Uploaded 2026-04-24T10:43:07 (59.0 KB)

12F-H1212014-BFS Decision – 309140.pdf

Uploaded 2026-01-25T15:27:34 (89.1 KB)

12F-H1212014-BFS Decision – 313671.pdf

Uploaded 2026-01-25T15:27:34 (59.0 KB)

Administrative Law Judge Decision and Certification: William M. Brown v. Terravita Community Association, Inc.

Executive Summary

On October 4, 2012, Administrative Law Judge (ALJ) Brian Brendan Tully issued a decision in the matter of William M. Brown v. Terravita Community Association, Inc. (No. 12F-H1212014-BFS). The Petitioner, William M. Brown, alleged that the Respondent, Terravita Community Association, Inc., violated A.R.S. § 33-1805(A) by failing to provide specific records requested on May 25, 2012.

The ALJ granted the Respondent’s Motion for Summary Judgment for Mootness, concluding that the Petitioner was not legally entitled to the records requested—specifically legal engagement letters and executive session meeting minutes—regardless of their existence. This decision was officially certified as the final administrative action on November 13, 2012, after the Department of Fire, Building and Life Safety declined to modify or reject the ruling.

Detailed Analysis of Key Themes

1. Limits of Homeowner Records Requests (A.R.S. § 33-1805)

The primary conflict centered on the interpretation of A.R.S. § 33-1805, which governs the production of association records to members. The Petitioner argued that the association failed to fulfill a request for professional service contracts and executive session minutes. The Respondent successfully argued that these specific categories of documents are protected from disclosure under the "plain language" of the statute.

2. Attorney-Client Privilege and Professional Service Contracts

The Petitioner requested the engagement letter and fee schedule between the Association and its legal counsel, Ekmark & Ekmark, L.L.C. The ruling established two defensive pillars for the Association:

  • Non-Existence: The Respondent stated no such engagement letter existed.
  • Legal Privilege: The ALJ ruled that even if such a document existed, it would be protected by attorney-client privilege under A.R.S. § 33-1805(B). Disclosure to a third party (the Petitioner) would require an express waiver of privilege by the Association.
3. Confidentiality of Executive Session Minutes

The Petitioner sought minutes from executive session meetings held on March 27, 2012, and April 24, 2012. The ALJ's analysis focused on the distinction between open meetings and executive sessions:

  • A.R.S. § 33-1804(A): Establishes that executive sessions are not open to the public or non-Board members.
  • A.R.S. § 33-1805(B)(3): Explicitly protects executive session minutes from being treated as public records available to members.

The ALJ noted that since the Petitioner would have been legally excluded from the meeting itself, he remains excluded from the minutes documenting those meetings.

4. Procedural Finality and Agency Oversight

The case highlights the procedural path of administrative hearings in Arizona:

  • The Office of Administrative Hearings (OAH) conducts the evidentiary review.
  • The resulting ALJ decision is transmitted to the relevant department (in this case, the Department of Fire, Building and Life Safety).
  • The Department has a statutory window to accept, reject, or modify the decision. If no action is taken within the timeframe (by November 8, 2012, in this matter), the ALJ’s decision becomes the final agency action by default.

Important Quotes and Context

Quote Context
"Petitioner is not entitled to receive or view the requested records, whether they exist or not." The ALJ’s ultimate conclusion, clarifying that the legal nature of the documents (privileged/confidential) supersedes the question of their physical existence.
"Even if an engagement letter did exist, the engagement letter would be protected by attorney/client privilege that could not be disclosed to any third party…" Legal justification regarding the protection of records related to legal services under A.R.S. § 33-1805(B).
"The minutes of Respondent’s Board’s executive session meeting… are not public minutes available to Petitioner or any other non-Board member, pursuant to A.R.S. § 33-1805(B)(3)." Interpretation of the law regarding the confidentiality of board executive sessions.
"Respondent’s understanding [of] the ‘plain language’ of A.R.S. § 33-1805(B)(3) is as mistaken as Respondent’s affirmation [of compliance]." The Petitioner's argument against the Association, which the ALJ ultimately rejected due to a lack of legal authority provided by the Petitioner.

Actionable Insights

For Community Associations
  • Statutory Protections: Associations can rely on A.R.S. § 33-1805(B) to protect sensitive documents, such as legal fee schedules and executive session minutes, from general member requests.
  • Documentation Existence: If a requested record does not exist, the Association should explicitly state this in its response, which can serve as grounds for a motion of mootness.
  • Privilege Maintenance: Associations should be cautious not to waive attorney-client privilege, as doing so could potentially open those records to member inspection.
For Petitioners/Homeowners
  • Legal Authority Requirement: Merely filing a petition is insufficient; the Petitioner must provide specific legal authority to support the right to view restricted documents. In this case, the Petitioner's failure to provide legal authority was noted by the ALJ.
  • Understanding Statutory Limits: Homeowners should recognize that the right to examine association records is not absolute and does not extend to executive sessions or privileged legal communications.
Procedural Rights
  • Rehearing and Appeals: Once a decision is certified as final, parties have the right to request a rehearing from the Department (A.R.S. § 41-1092.09(A)) or appeal to the Superior Court (A.R.S. § 41-1092.08(H)). These actions must be taken in a "timely manner" to avoid the loss of rights.

Legal Analysis and Study Guide: Brown v. Terravita Community Association, Inc.

This study guide provides a comprehensive overview of the administrative law case William M. Brown v. Terravita Community Association, Inc. (No. 12F-H1212014-BFS). It explores the legal standards governing records requests within community associations, the protections afforded to privileged legal documents, and the confidentiality of executive board sessions under Arizona law.

Case Overview and Key Entities

Entity Role
William M. Brown Petitioner; the individual requesting association records.
Terravita Community Association, Inc. Respondent; the community association denying the records request.
Ekmark & Ekmark, L.L.C. The law firm representing the Respondent.
Office of Administrative Hearings (OAH) The independent agency that conducted the evidentiary review.
Department of Fire, Building and Life Safety The state department overseeing the petition and final agency action.

Core Legal Concepts

1. Records Requests and Statutory Exemptions

Under A.R.S. § 33-1805(A), members of a community association generally have the right to request and examine association records. However, this right is not absolute. A.R.S. § 33-1805(B) outlines specific categories of information that are protected from disclosure.

  • Attorney-Client Privilege: Legal service agreements, engagement letters, and fee schedules are protected by attorney-client privilege. Unless the association explicitly waives this privilege, these documents cannot be disclosed to third parties.
  • Executive Session Records: Minutes from board meetings held in executive session are explicitly protected under A.R.S. § 33-1805(B)(3).
2. Executive Sessions

Pursuant to A.R.S. § 33-1804(A), a Board of Directors may hold executive sessions that are not open to the public or non-Board members. Because the meetings themselves are closed to maintain confidentiality, the minutes resulting from those meetings are not considered public documents and are not available for examination by non-Board members.

3. Summary Judgment for Mootness

A motion for summary judgment for mootness may be granted if the issues in the petition no longer require an evidentiary hearing. In this case, the Administrative Law Judge (ALJ) determined that even if the requested records existed, the Petitioner had no legal right to view them, rendering a hearing unnecessary.

4. Final Agency Action

An ALJ decision is transmitted to the relevant Department (in this case, the Department of Fire, Building and Life Safety). If the Department does not accept, reject, or modify the decision within a specific timeframe (governed by A.R.S. § 41-1092.08), the ALJ’s decision is certified as the final administrative decision.

Short-Answer Practice Questions

1. What two specific categories of records did William M. Brown request from the Terravita Community Association?

Answer: 1) Engagement letters, retainer agreements, or professional service contracts between the association and the law firm Ekmark & Ekmark, L.L.C. 2) Minutes from the board of directors' executive session meetings held on March 27, 2012, and April 24, 2012.

2. On what grounds did the Respondent claim the March 27, 2012, executive session minutes were protected?

Answer: The Respondent argued they were protected under the plain language of A.R.S. § 33-1805(B)(3), which shields executive session minutes from disclosure.

3. Why was the request for the April 24, 2012, minutes denied regardless of the law?

Answer: The Respondent contended that no executive session meeting actually took place on that date, meaning the records did not exist.

4. According to the ALJ, what is required for a third party to view an engagement letter between an association and its counsel?

Answer: The association must explicitly waive its attorney/client privilege.

5. What happened when the Department of Fire, Building and Life Safety failed to act on the ALJ's decision by November 8, 2012?

Answer: Pursuant to A.R.S. § 41-1092.08(D), the ALJ's decision was certified as the final administrative decision of the Department.

6. What are the two primary avenues for a party to challenge a final administrative decision?

Answer: A party may request a rehearing from the Department (A.R.S. § 41-1092.09(A)) or appeal the matter to the Superior Court (A.R.S. § 41-1092.08(H)).

Essay Prompts for Deeper Exploration

  1. Transparency vs. Confidentiality in HOAs: Analyze the tension between a member's right to access association records under A.R.S. § 33-1805(A) and the association’s right to maintain privileged communications under A.R.S. § 33-1805(B). Is the balance struck by the statutes appropriate for maintaining community trust?
  2. The Role of the Administrative Law Judge: Discuss the ALJ's rationale for granting the Motion for Summary Judgment for Mootness. Evaluate whether the determination that "Petitioner is not entitled to receive or view the requested records, whether they exist or not" is an efficient use of judicial resources or an obstacle to discovery.
  3. The Certification Process: Explain the procedural journey of an administrative decision from the Office of Administrative Hearings to "final agency action." Focus on the significance of statutory deadlines and the implications of departmental inaction.

Glossary of Important Terms

  • A.R.S. (Arizona Revised Statutes): The codified laws of the state of Arizona.
  • Administrative Law Judge (ALJ): An official who presides over an administrative hearing and issues a decision based on evidence and law.
  • Attorney-Client Privilege: A legal principle that keeps communications between an attorney and their client confidential and protected from disclosure to third parties.
  • Certification: The process by which an ALJ decision becomes a final, binding administrative order, often due to the passage of time without departmental intervention.
  • Executive Session: A portion of a board meeting that is closed to the general membership, typically used to discuss legal advice, personnel matters, or sensitive litigation.
  • Mootness: A legal status where a matter no longer presents a justiciable controversy, often because the legal relief sought would have no practical effect.
  • Petitioner: The party who initiates a legal action or petition (in this case, William M. Brown).
  • Respondent: The party against whom a legal action or petition is filed (in this case, Terravita Community Association, Inc.).
  • Summary Judgment: A legal determination made by a judge without a full trial or evidentiary hearing, usually because there are no disputed material facts or the law clearly favors one side.

Understanding HOA Record Disclosure: Lessons from the Terravita Case

1. Introduction: The Tension Between Transparency and Privacy

In the realm of Homeowners Association (HOA) governance, a perennial friction exists between a member’s desire for transparency and a Board’s fiduciary duty to protect sensitive information. While Arizona law establishes a broad right for members to examine association records, that right is not unlimited. Navigating these boundaries requires a precise understanding of the statutory exemptions that shield certain documents from disclosure.

The case of William M. Brown vs. Terravita Community Association, Inc. (Case No. 12F-H1212014-BFS) serves as a definitive case study in this area of administrative law. This ruling clarifies exactly where the line is drawn under Arizona Revised Statutes, reinforcing a Board's ability to maintain confidentiality even when faced with aggressive litigation. The following analysis distills the Administrative Law Judge's (ALJ) decision to clarify which records an HOA is legally permitted—and in some cases, required—to withhold.

2. The Records Request: What Started the Dispute?

The dispute originated from a records request submitted by the Petitioner, William M. Brown, on May 25, 2012. Mr. Brown sought to examine and obtain copies of specific association documents, citing his rights under A.R.S. § 33-1805(A).

The request specifically targeted:

  • Legal Engagement Documentation: The engagement letter, retainer agreement, or professional services contract (including the current fee schedule) between Terravita Community Association, Inc. and the law firm Ekmark & Ekmark, L.L.C.
  • Executive Session Records: Minutes from the Board of Directors' executive session meetings held on March 27, 2012, and April 24, 2012.

When the Association declined to produce these records, the Petitioner filed a grievance alleging a violation of the statutory duty to provide records for examination. Practice Pointer: A critical failure in the Petitioner’s strategy, as noted by the ALJ, was the failure to provide any specific legal authority that would override the statutory protections granted to these specific categories of documents.

3. The Legal Shield: Protecting Attorney-Client Privilege

Regarding the request for legal service agreements and fee schedules, the ALJ upheld a "dual-layered defense" presented by the Association. This defense provides a robust framework for Boards facing similar demands:

  1. Factual Non-existence: The Association asserted that a specific engagement letter as described did not exist.
  2. Statutory Protection: More importantly, the ALJ ruled that even if such a document existed, it would be protected under A.R.S. § 33-1805(B).

In HOA governance, attorney-client privilege is not limited merely to emails or advice; it extends to the very foundation of the legal relationship. The ALJ's decision reinforces that the financial terms, fee schedules, and professional services contracts between an Association and its counsel are privileged. These documents are shielded from disclosure to third parties—including homeowners—unless the Board voluntarily chooses to waive that privilege.

4. Behind Closed Doors: Why Executive Session Minutes are Private

The Petitioner’s demand for executive session minutes was denied based on the fundamental distinction between open meetings and confidential Board business. The ALJ emphasized that because non-Board members are legally excluded from attending executive sessions under A.R.S. § 33-1804(A), they have no derivative right to the records of those sessions.

The following table summarizes the statutory framework that separates general membership rights from executive confidentiality:

Access to Meetings vs. Access to Minutes

Category Statutory Rule (A.R.S. §) Legal Standing for Non-Board Members Consultant’s Note
Executive Session Meetings 33-1804(A) Explicitly excluded; no right to attend. Confidentiality of the meeting is the primary shield.
Executive Session Minutes 33-1805(B)(3) Explicitly excluded from records "open to examination." Statutory protection applies regardless of whether the meeting date is disputed.

This ruling reinforces that the "open to examination" requirement of A.R.S. § 33-1805(A) is strictly qualified by subsection (B)(3), which keeps executive minutes confidential to protect the Board's ability to discuss sensitive legal, health, or personal matters.

5. The Final Verdict: Summary Judgment and Certification

The Association moved for Summary Judgment for Mootness, a motion the ALJ granted in full. The core of this "mootness" ruling is a powerful legal principle: The Threshold of Statutory Entitlement.

The ALJ determined that because the Petitioner was not legally entitled to the records under Arizona law, any factual dispute over whether the documents existed (such as the disputed April 24 meeting minutes) was irrelevant. Consequently, the evidentiary hearing was vacated because there were no triable issues of fact that could change the legal outcome.

The Procedural Timeline:

  • October 4, 2012: The ALJ signed the initial decision granting Summary Judgment.
  • November 8, 2012: The statutory deadline by which the Department of Fire, Building and Life Safety was required to accept, reject, or modify the ALJ decision. The Department took no action.
  • November 13, 2012: Having received no modification from the Department by the Nov. 8 deadline, Cliff J. Vanell, Director of the Office of Administrative Hearings, officially certified the decision as the final administrative action.
6. Conclusion: Key Takeaways for Homeowners and Boards

The Terravita case offers a roadmap for community associations navigating the complexities of A.R.S. § 33-1804 and § 33-1805. The following takeaways are essential for maintaining proper governance:

  1. Privilege Includes Financial Terms: Legal service agreements and current fee schedules are protected by attorney-client privilege. Boards are not required to disclose the financial nuances of their legal counsel's contracts to the membership.
  2. Statutory Exclusion is Absolute: A.R.S. § 33-1805(B)(3) is an explicit carve-out. Executive session minutes are not "association records" for the purposes of member examination.
  3. Existence is Secondary to Entitlement: If a homeowner does not have a legal right to a document, the Association is not required to prove its existence or non-existence in an evidentiary hearing. The law protects the record regardless of its status.

Understanding these statutory protections allows Boards to operate with the necessary confidentiality while ensuring homeowners have realistic expectations regarding their rights to transparency.

Case Participants

Petitioner Side

  • William M. Brown (petitioner)

Respondent Side

  • Curtis S. Ekmark (attorney)
    Ekmark & Ekmark L.L.C.
  • Jason F. Wood (attorney)
    Ekmark & Ekmark L.L.C.

Neutral Parties

  • Brian Brendan Tully (ALJ)
    Office of Administrative Hearings
  • Gene Palma (Agency Director)
    Department of Fire, Building and Life Safety
  • Cliff J. Vanell (OAH Director)
    Office of Administrative Hearings
    Signed Certification of Decision
  • Holly Textor (agency staff)
    Department of Fire, Building and Life Safety
    Listed as c/o for Gene Palma

Portonova, Carol vs. Tenth Avenue Missions Homeowners Association

Posted on by

Case Summary

Case ID 12F-H1212013-BFS
Agency DFBLS
Tribunal OAH
Decision Date 2012-10-02
Administrative Law Judge Lewis D. Kowal
Outcome The Administrative Law Judge concluded that Petitioner failed to prove that Respondent violated A.R.S. § 33-1805(A). The judge found that Petitioner failed to prove she made a request to examine or purchase copies of Association records in June 2011 or November 2011,. Consequently, the Petition was dismissed.
Filing Fees Refunded $550.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Carol Portonova Counsel —
Respondent Tenth Avenue Missions Homeowners Association, Inc. Counsel Michael Orcutt

Alleged Violations

A.R.S. § 33-1805(A)

Outcome Summary

The Administrative Law Judge concluded that Petitioner failed to prove that Respondent violated A.R.S. § 33-1805(A). The judge found that Petitioner failed to prove she made a request to examine or purchase copies of Association records in June 2011 or November 2011,. Consequently, the Petition was dismissed.

Why this result: Failure to prove a records request was made

Key Issues & Findings

Failure to provide records regarding monies received to satisfy a judgment

Petitioner alleged that the Association violated the statute by not providing records pertaining to monies the Association received to satisfy a judgment it obtained against Petitioner.

Orders: The Petition is dismissed and no action is required of Respondent.

Filing fee: $550.00, Fee refunded: No

Disposition: petitioner_lose

Video Overview

Audio Overview

Decision Documents

12F-H1212013-BFS Decision – 308933.pdf

Uploaded 2026-04-24T10:42:08 (69.6 KB)

12F-H1212013-BFS Decision – 313665.pdf

Uploaded 2026-04-24T10:42:29 (59.0 KB)

12F-H1212013-BFS Decision – 308933.pdf

Uploaded 2026-01-25T15:27:29 (69.6 KB)

12F-H1212013-BFS Decision – 313665.pdf

Uploaded 2026-01-25T15:27:29 (59.0 KB)

Briefing: Portonova v. Tenth Avenue Missions Homeowners Association, Inc.

Executive Summary

This document details the administrative hearing and subsequent final agency action regarding Case No. 12F-H1212013-BFS. The matter involved a dispute between Carol Portonova (Petitioner) and the Tenth Avenue Missions Homeowners Association, Inc. (Respondent/Association).

The Petitioner alleged that the Association violated A.R.S. § 33-1805(A) by failing to provide access to financial records concerning a judgment the Association had previously obtained against her. The Administrative Law Judge (ALJ), Lewis D. Kowal, ruled that the Petitioner failed to provide a preponderance of evidence that a formal request for these records was ever made. Consequently, the petition was dismissed. This decision was certified as the final administrative action on November 13, 2012, after the Department of Fire, Building and Life Safety took no action to modify or reject the ALJ's initial ruling.

Detailed Analysis of Key Themes

Statutory Compliance and Record Access

The central legal theme of the case is the interpretation and application of A.R.S. § 33-1805(A). This statute mandates that all financial and other records of a homeowners association must be made "reasonably available for examination" by any member or their designated representative.

Key provisions of this statute include:

  • Timeframe: The association has 10 business days to fulfill a request for examination.
  • Costs: Review of materials must be free, though associations may charge up to $0.15 per page for physical copies.
  • Scope: The law covers "all financial and other records," which in this case included accounting for monies received to satisfy a legal judgment and associated attorney fees.
Evidentiary Burden and Conflict of Testimony

The ruling turned on the "preponderance of the evidence" standard. The Petitioner claimed she had made requests for records in two specific instances:

  1. A November 2011 Meeting: Petitioner implied she requested records during a Homeowners Association meeting.
  2. A May 3, 2012 Letter: Petitioner submitted a letter directed to Association officers, including Mario Capriotti, Jr., as evidence of a formal request.

However, the Respondent offered conflicting testimony. Mario Capriotti, Jr. testified that he never received the May 3 letter and that no request for records was made at the November 2011 meeting. The ALJ found that the Petitioner could not provide sufficient proof (such as evidence of receipt or specific dates) to outweigh the Respondent's denials.

Administrative Process and Finality

The case highlights the procedural flow of Arizona administrative law:

  • Initial Petition: Filed June 4, 2012, with a $550.00 filing fee.
  • ALJ Hearing: Held September 19, 2012, focusing on factual determinations.
  • Certification: Under A.R.S. § 41-1092.08, the ALJ's decision is transmitted to the relevant agency (Department of Fire, Building and Life Safety). If the agency does not accept, reject, or modify the decision within a set timeframe (in this case, by November 7, 2012), the ALJ's decision is certified as final.

Important Quotes and Legal Definitions

Concept / Item Context Source Quote
Statutory Obligation The legal requirement for associations to provide records. "Except as provided in subsection B… all financial and other records of the association shall be made reasonably available for examination by any member…" (A.R.S. § 33-1805(A))
Burden of Proof The standard of evidence required for the Petitioner to win the case. "Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated A.R.S. § 33-1805(A)."
Preponderance of Evidence Definition used by the court to weigh the conflicting testimony. "Evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not."
The Ruling The ALJ's conclusion regarding the lack of evidence. "Petitioner failed to establish by a preponderance of the evidence that she or a designated representative made a request to Respondent to examine or provide records…"

Actionable Insights

For Association Members
  • Formalize Record Requests: To ensure statutory compliance under A.R.S. § 33-1805(A), members should submit record requests in a manner that provides proof of delivery (e.g., certified mail or signed receipt).
  • Document Timeline: Members should keep precise records of when requests are made and when the 10-business-day window for fulfillment expires.
  • Specific Evidence: When alleging a violation, a member must provide more than oral testimony if that testimony is disputed; physical evidence of the request is critical to meeting the burden of proof.
For Homeowners Associations
  • Verification Systems: Associations should have a consistent system for logging incoming member correspondence and requests to examine records to defend against claims of non-compliance.
  • Adherence to Deadlines: Once a verified request is received, the association has a strict 10-business-day window to provide access or copies to avoid potential administrative penalties or litigation.
  • Clarity on Fees: Associations should remain aware that they cannot charge for the review of documents, only for the reproduction of copies (capped at $0.15 per page).
For Administrative Appeals
  • Rehearing Rights: Parties dissatisfied with an ALJ decision have the right to request a rehearing from the Department of Fire, Building and Life Safety pursuant to A.R.S. § 41-1092.09(A).
  • Superior Court Recourse: Following the exhaustion of administrative remedies (like a rehearing), the matter may be appealed to the Superior Court. However, failure to act within statutory timelines may result in the loss of these rights.

Study Guide: Carol Portonova v. Tenth Avenue Missions Homeowners Association, Inc.

This study guide provides a comprehensive overview of the administrative hearing case regarding the access to records within a homeowners association. It outlines the legal standards for record requests in Arizona, the burden of proof required in administrative proceedings, and the procedural lifecycle of an Administrative Law Judge (ALJ) decision.

Core Concepts and Case Overview

Case Summary

In Case No. 12F-H1212013-BFS, Petitioner Carol Portonova alleged that Tenth Avenue Missions Homeowners Association, Inc. (the "Association") violated state law by failing to provide financial records. These records pertained to a judgment the Association had obtained against the Petitioner, including accounting for monies received to satisfy that judgment and associated attorney fees.

Legal Standards for Association Records

Under A.R.S. § 33-1805(A), homeowners associations are mandated to make their financial and other records available to members under specific conditions:

  • Availability: All records must be made reasonably available for examination by a member or their designated representative.
  • Review Fees: The association is prohibited from charging a member for making materials available for review.
  • Timeline for Review: The association has ten business days to fulfill a request for examination.
  • Timeline for Copies: If a member requests to purchase copies, the association has ten business days to provide them.
  • Copying Fees: Associations may charge a fee for copies, but it cannot exceed fifteen cents per page.
The Burden of Proof

In administrative proceedings of this nature, the Petitioner bears the burden of proving the violation by a preponderance of the evidence (per A.A.C. R2-19-119). This is defined as evidence that is of greater weight or more convincing than the opposing evidence, making the fact sought to be proved "more probable than not."

Procedural Lifecycle of a Decision
  1. Hearing and Decision: The ALJ conducts a hearing and issues a decision.
  2. Transmission: The decision is transmitted to the relevant state agency (in this case, the Department of Fire, Building and Life Safety).
  3. Agency Review: The Department has a specific window (approximately 35 days) to accept, reject, or modify the ALJ’s decision.
  4. Certification: If the agency takes no action within the statutory timeframe, the ALJ decision is certified as the final administrative decision.
  5. Effective Date: The Order typically becomes effective five days after certification.
  6. Appeals: Parties have the right to request a rehearing or appeal the matter to the Superior Court.

Short-Answer Practice Questions

  1. How many units are contained within the Tenth Avenue Missions community?
  2. What was the specific amount of the filing fee paid by the Petitioner to the Arizona Department of Fire, Building and Life Safety?
  3. According to A.R.S. § 33-1805(A), how many business days does an association have to provide copies of records once requested?
  4. What is the maximum fee per page an association can charge for making copies of records?
  5. Why did the ALJ conclude that the Petitioner failed to prove a violation of the law?
  6. Who was the witness that testified he did not receive the May 3, 2012, letter requesting records?
  7. If a state agency takes no action on an ALJ decision within the timeframe prescribed by A.R.S. § 41-1092.08, what happens to that decision?
  8. What was the Petitioner’s primary concern regarding the "Satisfaction of Judgment" obtained by the Association?

Essay Prompts for Deeper Exploration

  1. The Preponderance of Evidence in Administrative Law: Analyze the role of the "preponderance of the evidence" standard in this case. Discuss how the conflicting testimony between Carol Portonova and Mario Capriotti, Jr. influenced the ALJ's final ruling, and why the Petitioner's evidence was deemed insufficient to meet this legal threshold.
  2. Statutory Obligations of Homeowners Associations: Examine the requirements placed on HOAs by A.R.S. § 33-1805(A). Discuss the balance the law attempts to strike between a member's right to transparency and the association's administrative timeline.
  3. The Administrative Appeals Process: Describe the steps a party must take after an ALJ decision is certified as final. Include references to the Department of Fire, Building and Life Safety, the right to a rehearing, and the eventual path to the Superior Court.

Glossary of Important Terms

Term Definition
A.R.S. § 33-1805(A) The Arizona Revised Statute governing the availability of financial and other association records to members.
Administrative Law Judge (ALJ) The presiding official who hears evidence and issues a ruling in administrative disputes.
Burden of Proof The obligation of a party to provide sufficient evidence to support their claim; in this case, held by the Petitioner.
Certification The process by which an ALJ decision becomes the final administrative action after agency review or inaction.
Patio Homes The specific type of housing units (6 in total) located within the Tenth Avenue Missions community.
Preponderance of the Evidence A legal standard meaning the evidence shows that the fact to be proved is "more probable than not."
Respondent The party against whom a petition is filed; in this case, Tenth Avenue Missions Homeowners Association, Inc.
Satisfaction of Judgment A legal document indicating that a debt or judgment has been paid in full.
Superior Court The judicial body where a party may appeal a final administrative decision.

Understanding Your Rights to HOA Records: Lessons from Portonova v. Tenth Avenue Missions

1. Introduction: The Power Struggle Over Association Records

In the complex ecosystem of planned communities, transparency is often the only thing preventing a neighborly disagreement from escalating into a costly legal war. A classic pitfall for homeowners is the assumption that their right to see financial records is self-executing. In reality, the bridge between a homeowner’s request and an association’s compliance is built on specific legal procedures that, if ignored, can lead to devastating consequences.

The case of Carol Portonova vs. Tenth Avenue Missions Homeowners Association, Inc. (Case No. 12F-H1212013-BFS) serves as a stark warning for homeowners. The dispute highlights the tension that arises when a member seeks to verify how their payments—specifically those intended to satisfy a legal judgment involving attorneys' fees—are being handled by the Board. For Carol Portonova, what began as a quest for financial accountability ended in a dismissive ruling and a significant financial loss.

2. The Legal Framework: What is A.R.S. § 33-1805(A)?

Arizona law provides homeowners with a powerful tool for oversight through Arizona Revised Statute § 33-1805(A). This statute is the primary shield against Board secrecy, mandating that records be accessible under strict conditions.

As defined in the statute:

"Except as provided in subsection B of this section, all financial and other records of the association shall be made reasonably available for examination by any member or any person designated by the member in writing as the member's representative. The association shall not charge a member or any person designated by the member in writing for making material available for review. The association shall have ten business days to fulfill a request for examination. On request for purchase of copies of records by any member or any person designated by the member in writing as the member's representative, the association shall have ten business days to provide copies of the requested records. An association may charge a fee for making copies of not more than fifteen cents per page."

Key "Rules of the Road" for Record Requests:
  • The 10-Day Clock: Once a written request is received, the association has exactly 10 business days to either provide the records for examination or deliver requested copies.
  • The Right to Inspect: Homeowners have the absolute right to examine records at no charge.
  • Strict Copy Fees: If you want physical copies, the association cannot gouge you; the law caps fees at $0.15 per page.

3. Inside the Case: The Dispute Over "Satisfaction of Judgment"

The dispute took place within Tenth Avenue Missions, an intimate Tempe community consisting of only six units. In such small associations, record-keeping often occurs at kitchen tables rather than professional offices, which can lead to a dangerous informality.

Following a lawsuit in which the association obtained a "Satisfaction of Judgment" against Portonova and her husband, Portonova sought to verify the accounting of the monies paid, including the association’s legal fees. On June 4, 2012, she took the high-stakes step of filing a petition with the Arizona Department of Fire, Building and Life Safety, paying a $550.00 filing fee to have her grievances heard.

During the hearing on September 19, 2012, Portonova’s case rested on three primary claims:

  1. An alleged failure to provide records dating back to June 2011.
  2. A verbal request made during a November 2011 association meeting.
  3. A written request via a letter dated May 3, 2012, addressed to association officers.

However, the Association’s representative, Mario Capriotti, Jr., offered a flat denial, testifying that he never received the May 3 letter and that no request was made during the November meeting. Furthermore, the Petitioner’s credibility was weakened when it was revealed she had actually received a copy of the 2012 budget at some point, yet she could not recall when. This inconsistency suggested that the Association was not entirely unresponsive, casting doubt on her claims of a total records blackout.

4. The Legal Turning Point: Defining the "Preponderance of the Evidence"

The "Advocate’s Bite" in this case lies in the Administrative Law Judge's (ALJ) application of the burden of proof. In these proceedings, the Petitioner must prove their case by a "Preponderance of the Evidence."

As cited by ALJ Lewis D. Kowal from Black’s Law Dictionary, a preponderance is:

“Evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.”

The ALJ’s logic was a clinical exercise in "he-said, she-said" jurisprudence. Because Portonova had no proof of delivery for her May 3 letter—no certified mail receipt, no signed acknowledgment—and because her testimony regarding the June 2011 date didn't match her evidence, she could not tilt the scales. In the absence of a paper trail, the Association wins by default. The Judge concluded that Portonova failed to prove she even made a valid request, meaning the Association could not have violated a law it was never formally triggered to follow.

5. The Final Verdict and Certification

On October 2, 2012, ALJ Lewis D. Kowal issued an Order dismissing the petition entirely. No action was required of Tenth Avenue Missions.

The decision was then subjected to a formal certification process. Gene Palma, Director of the Department of Fire, Building and Life Safety, had until November 7, 2012, to accept, reject, or modify the decision. When no action was taken by that deadline, the decision was certified as final on November 13, 2012, by Cliff J. Vanell, Director of the Office of Administrative Hearings (OAH).

Parties were notified of two remaining paths, though both carried further risk and cost:

  • Rehearing: A request for a second look by the Department under A.R.S. § 41-1092.09(A).
  • Appeal: Taking the matter to Superior Court under A.R.S. § 41-1092.08(H).

6. Key Takeaways for Homeowners and Boards

This case is an expensive lesson in the importance of formal procedure over informal assumptions.

  1. Certified Mail is the "Gold Standard": Never rely on a regular letter or a verbal request. If you do not have a return receipt or a signed proof of delivery, the law treats your request as if it never happened. This proof is the only way to meet the "preponderance of the evidence" standard.
  2. Consistency is King: The Petitioner’s inability to remember when she received the 2012 budget and her failure to align her evidence with the dates in her petition (June 2011) proved fatal. Keep a meticulous log of all interactions with the Board.
  3. The High Cost of Losing: Filing a petition is not a low-cost endeavor. Portonova lost her $550.00 filing fee in addition to the time and stress of litigation. Homeowners must ensure their "paper trail" is bulletproof before initiating a legal fight.
  4. Small Associations Need Formal Rules: In a six-unit community, it is tempting to handle business "as neighbors." However, when legal judgments and attorney fees are on the line, both Boards and homeowners must treat the relationship as a business to avoid the "friendship vs. business" trap that leads to the courtroom.

7. Conclusion: The Importance of Transparency and Documentation

The Portonova case serves as a reminder that transparency in a Homeowners Association is not just a moral obligation—it is a procedural one. Whether a community consists of six units or six hundred, the rights afforded by A.R.S. § 33-1805(A) are only as strong as the documentation a homeowner keeps.

By insisting on formal, written communication and maintaining a precise record of all requests, homeowners can protect their $550 "tuition" and ensure their right to oversight is respected. Boards, in turn, can protect themselves from litigation by adhering strictly to the 10-day statutory window, ensuring that the community remains a place of residence rather than a theater for legal battle.

Case Participants

Petitioner Side

  • Carol Portonova (petitioner)
    Appeared on her own behalf

Respondent Side

  • Michael Orcutt (attorney)
    Tenth Avenue Missions Homeowners Association, Inc.
    Esq.
  • Mario Capriotti, Jr. (officer/witness)
    Tenth Avenue Missions Homeowners Association, Inc.
    Officer of the Association; testified at hearing

Neutral Parties

  • Lewis D. Kowal (ALJ)
    Office of Administrative Hearings
    Administrative Law Judge
  • Gene Palma (Agency Director)
    Department of Fire, Building and Life Safety
  • Cliff J. Vanell (OAH Director)
    Office of Administrative Hearings
    Certified the decision
  • Holly Textor (staff)
    Department of Fire, Building and Life Safety
    c/o for Gene Palma

Brown, William M. vs. Terravita Country Club Inc.

Posted on by

Case Summary

Case ID 11F-H1112007-BFS
Agency Department of Fire Building and Life Safety
Tribunal OAH
Decision Date 2012-05-08
Administrative Law Judge Lewis D. Kowal
Outcome The Administrative Law Judge concluded that Respondent violated A.R.S. § 33-1805(A) because, although it provided the policy, it did not do so within the mandatory ten business days. The late delivery was attributed to an unintentional computer error. Petitioner was deemed the prevailing party and awarded the $550.00 filing fee, but no civil penalties were assessed against the Respondent.
Filing Fees Refunded $550.00
Civil Penalties $0.00

Parties & Counsel

Petitioner William M. Brown Counsel —
Respondent Terravita Country Club, Inc. Counsel Joshua M. Bolen

Alleged Violations

A.R.S. § 33-1805(A)

Outcome Summary

The Administrative Law Judge concluded that Respondent violated A.R.S. § 33-1805(A) because, although it provided the policy, it did not do so within the mandatory ten business days. The late delivery was attributed to an unintentional computer error. Petitioner was deemed the prevailing party and awarded the $550.00 filing fee, but no civil penalties were assessed against the Respondent.

Key Issues & Findings

Failure to provide records (Directors and Officers Liability Insurance Policy) within ten business days

Petitioner requested a copy of the Respondent's Directors and Officers Liability Insurance Policy. Respondent failed to provide the policy within the statutory ten business day period, allegedly due to a computer error where the email became stuck in an outbox.

Orders: Respondent shall pay Petitioner his filing fee of $550.00. No civil penalty imposed as Respondent attempted to comply.

Filing fee: $550.00, Fee refunded: Yes

Disposition: petitioner_win

Video Overview

Audio Overview

Decision Documents

11F-H125885-BFS Decision – 292130.pdf

Uploaded 2026-04-24T10:39:17 (81.4 KB)

11F-H125885-BFS Decision – 295358.pdf

Uploaded 2026-04-24T10:39:22 (60.5 KB)

11F-H125885-BFS Decision – 292130.pdf

Uploaded 2026-01-25T15:25:36 (81.4 KB)

11F-H125885-BFS Decision – 295358.pdf

Uploaded 2026-01-25T15:25:36 (60.5 KB)

Case Briefing: William M. Brown vs. Terravita Country Club, Inc.

Executive Summary

This briefing document analyzes the administrative law proceedings and final decision in the matter of William M. Brown v. Terravita Country Club, Inc. (No. 11F-H1112007-BFS). The case centered on a records request made by Petitioner William M. Brown for the Respondent’s Directors and Officers Liability Insurance Policy.

The Administrative Law Judge (ALJ), Lewis D. Kowal, determined that Terravita Country Club, Inc. violated Arizona Revised Statutes (A.R.S.) § 33-1805(A) by failing to provide the requested records within the mandatory ten-business-day window. While the Respondent cited technical "computer errors" and a lack of clarity regarding the request, the ALJ held the Respondent accountable for the delay. Ultimately, the Respondent was ordered to reimburse the Petitioner’s $550 filing fee, though no additional civil penalties were imposed due to evidence of the Respondent’s attempt to comply with the law. The decision was certified as the final administrative decision of the Department of Fire Building and Life Safety on June 14, 2012.

Statutory Framework

The legal foundation for this case is A.R.S. § 33-1805(A), which governs the availability of records for planned communities. The statute mandates the following:

  • Access to Records: All financial and other records of an association must be made reasonably available for examination by any member or their designated representative.
  • Cost: Associations may not charge for making materials available for review. However, they may charge a fee of no more than fifteen cents per page for copies.
  • Fulfillment Timeline: The association has ten business days to fulfill a request for examination or to provide copies of requested records.

Key Themes and Analysis

1. The Mandatory Nature of Statutory Deadlines

The primary issue in this case was the failure to meet the ten-business-day requirement. Despite the Respondent receiving the request on October 21, 2011, the actual policy was not successfully delivered until November 7, 2011.

  • Analysis: The ALJ found that even though the Respondent attempted to send the email on November 4 (the final day of the statutory period), the failure of that email to leave the outbox meant the association remained in violation. This emphasizes that the burden of delivery rests with the association, and technical failures do not absolve them of statutory timelines.
2. Clarity of Records Requests

The Respondent’s staff, specifically the Custodian of Records (Cici Rausch), testified that they did not initially understand the Petitioner’s request for the "Not-For-Profit Individual and Organization Insurance Policy."

  • Analysis: The ALJ noted that the record was unclear as to why the staff did not understand the request, especially since the Petitioner provided specific details, including a policy number in subsequent communications. The ruling suggests that associations must act diligently to clarify and fulfill requests rather than allowing confusion to delay the statutory clock.
3. Mitigation of Sanctions

The Respondent argued that the delay was due to an unintentional computer error and that the Petitioner should have contacted them to confirm receipt.

  • Analysis: While the ALJ rejected the argument that the Petitioner was responsible for following up, he did use the "unintentional" nature of the error to determine the severity of the penalty. Because the Respondent thought they had complied on November 4, the ALJ declined to impose additional civil sanctions, ordering only the reimbursement of the filing fee.
4. Credibility and Post-Hearing Allegations

Following the hearing, the Petitioner alleged that the Custodian of Records, Cici Rausch, committed perjury regarding her legal name and her involvement in other civil litigation (specifically a divorce proceeding).

  • Analysis: The ALJ dismissed these claims, finding that Ms. Rausch’s use of the name "Cici" was supported by documentary evidence and that her belief that a family court divorce was not "civil litigation" was a reasonable misunderstanding. This aspect of the case highlights the high bar required to prove perjury in administrative hearings.

Significant Case Timeline

Date Event
Oct 21, 2011 (10:09 AM) Petitioner emails initial request for insurance policy records.
Oct 21, 2011 (4:22 PM) Respondent sends a Certificate of Insurance, which is not the full policy.
Oct 21, 2011 (4:48 PM) Petitioner repeats request, providing a specific policy number (PHSD646331).
Oct 28, 2011 General Manager Tom Forbes emails the Policy to the Custodian of Records.
Nov 4, 2011 Statutory deadline for the initial Oct 21 request.
Nov 4, 2011 (Evening) Custodian attempts to email Policy; email becomes "stuck" in the outbox.
Nov 7, 2011 Custodian realizes the error and re-sends the Policy.
Apr 9, 2012 Administrative hearing held.
May 8, 2012 ALJ issues decision finding a violation of A.R.S. § 33-1805(A).
June 14, 2012 Decision certified as the final administrative decision.

Important Quotes with Context

"The association shall have ten business days to fulfill a request for examination. On request for purchase of copies of records… the association shall have ten business days to provide copies of the requested records."

— A.R.S. § 33-1805(A), cited as the governing law.

"The Administrative Law Judge concludes that while Respondent provided Petitioner with a copy of the Policy, that did not occur within ten business days of his request and, therefore, Respondent violated A.R.S. § 33-1805(A)."

— Conclusion of Law, Paragraph 3. This establishes the core finding of the case.

"Respondent’s argument that Petitioner should be estopped from pursuing the instant matter because Petitioner did not contact Respondent fails."

— Conclusion of Law, Paragraph 4. This clarifies that the burden of compliance is on the association, not the member making the request.

"The evidence of record established that Respondent attempted to comply with the law, which the Administrative Law Judge has taken into consideration in determining whether any civil penalty should be imposed."

— Conclusion of Law, Paragraph 5. This explains why the Respondent was only ordered to pay the filing fee rather than further sanctions.

Actionable Insights

  • Establish Clear Protocols for Records Requests: Organizations should ensure that the Custodian of Records is trained to identify and clarify legal requests immediately. Any ambiguity in a request should be resolved through prompt communication to avoid missing statutory deadlines.
  • Verify Delivery of Electronic Documents: Reliance on the "send" button is insufficient for legal compliance. Organizations should implement a verification process—such as requesting a read receipt or checking the "Sent" folder—to ensure that records have actually left the outbox.
  • Calculate Statutory Deadlines Immediately: Upon receipt of a records request, the ten-business-day window should be calculated and marked on a calendar to prevent last-minute technical failures from causing a legal violation.
  • Documentation of Technical Issues: If a delay occurs due to technical reasons, maintaining a clear paper trail (such as timestamps and IT logs) may help mitigate civil penalties, even if a violation is technically found.
  • Cost of Non-Compliance: Even in cases of "unintentional" error, the prevailing party is entitled to the reimbursement of filing fees (in this case, $550). This serves as a financial incentive for associations to prioritize timely records disclosure.

Study Guide: Administrative Law Case Study – Brown v. Terravita Country Club, Inc.

This study guide provides a comprehensive overview of the administrative hearing between William M. Brown and Terravita Country Club, Inc. (No. 11F-H1112007-BFS). It examines the application of Arizona Revised Statutes (A.R.S.) regarding records requests in planned communities, the burden of proof in administrative hearings, and the finality of Administrative Law Judge decisions.

Key Concepts and Legal Standards

Statutory Requirement: A.R.S. § 33-1805(A)

This statute governs the availability of records for homeowners' associations in planned communities. Its core provisions include:

  • Access: Financial and other records must be made "reasonably available" for examination by any member or their designated representative.
  • Timelines: The association has ten business days to fulfill a request for examination or to provide copies of requested records.
  • Fees: Associations may not charge for the review of materials but may charge up to fifteen cents per page for physical copies.
Burden of Proof: Preponderance of the Evidence

In these proceedings, the Petitioner (the person bringing the claim) bears the burden of proof.

  • Legal Definition: According to Black’s Law Dictionary, as cited in the case, "preponderance of the evidence" means evidence that is of greater weight or more convincing than the evidence offered in opposition.
  • Application: It must be shown that the fact sought to be proved is "more probable than not."
Administrative Finality

An Administrative Law Judge (ALJ) issues a decision that can be accepted, rejected, or modified by the relevant state department (in this case, the Department of Fire Building and Life Safety). If the department takes no action within a specific timeframe (e.g., approximately 30 days), the ALJ’s decision is certified as the final administrative decision.

Case Summary: Brown v. Terravita Country Club, Inc.

The Dispute

Petitioner William M. Brown, a resident of the Terravita Country Club community, requested a copy of the Respondent's Directors and Officers Liability Insurance Policy. While the Respondent eventually provided the document, the Petitioner alleged they failed to do so within the ten-business-day window required by A.R.S. § 33-1805(A).

Timeline of Events
Date Event
Oct 21, 2011 (10:09 AM) Petitioner emails his first request for the insurance policy.
Oct 21, 2011 (4:22 PM) Respondent provides a "Certificate of Insurance," which is not the full policy.
Oct 21, 2011 (4:48 PM) Petitioner sends a second request specifying the policy number (PHSD646331).
Oct 28, 2011 The General Manager emails the Policy to the Custodian of Records (Ms. Rausch).
Nov 4, 2011 (4:55 PM) Petitioner sends a third request as the records have still not been received.
Nov 4, 2011 Ms. Rausch attempts to email the Policy, but the email becomes "stuck" in her outbox due to a computer error.
Nov 7, 2011 Ms. Rausch discovers the error and re-sends the Policy. Petitioner receives it.
The Ruling

The ALJ concluded that the Respondent violated A.R.S. § 33-1805(A) because the document was not delivered within ten business days of the initial request.

  • Sanctions: No civil penalties were imposed because the Respondent demonstrated an attempt to comply, and the delay was attributed to an unintentional computer error.
  • Remedy: As the prevailing party, the Petitioner was awarded his $550.00 filing fee, to be paid by the Respondent.
  • Credibility Issues: The Petitioner alleged the Respondent's witness (Ms. Rausch) committed perjury regarding her name and involvement in other civil litigation. The ALJ dismissed these claims, finding her explanations (regarding her use of the name "Cici" and her understanding of family court vs. civil litigation) to be reasonable.

Short-Answer Practice Questions

  1. According to A.R.S. § 33-1805(A), how many business days does an association have to provide copies of requested records?
  2. What was the specific document requested by William M. Brown that led to this litigation?
  3. What was the "computer error" that occurred on November 4, 2011?
  4. Why did the Administrative Law Judge decline to impose civil penalties against Terravita Country Club, Inc.?
  5. What was the total filing fee that the Respondent was ordered to pay to the Petitioner?
  6. Who bears the burden of proof in this administrative proceeding?
  7. What was the Respondent's unsuccessful argument regarding why the Petitioner should be "estopped" (prevented) from pursuing the matter?

Essay Prompts for Deeper Exploration

  1. The Role of Intent in Statutory Violations: Analyze the ALJ’s decision to find a violation of A.R.S. § 33-1805(A) while simultaneously refusing to issue sanctions. Does the lack of intent to violate the law excuse the violation itself, or only the punishment? Use the "stuck" email incident as the basis for your argument.
  2. Statutory Compliance vs. Certificate of Insurance: In this case, the Respondent initially provided a "Certificate of Insurance" instead of the requested "Policy." Discuss the legal and practical differences between these two documents in the context of a member's right to examine association records.
  3. The Impact of Witness Credibility: The Petitioner challenged the credibility of the Custodian of Records based on her name and her involvement in family court. Evaluate the ALJ's reasoning in maintaining the witness's credibility. How does an ALJ distinguish between intentional perjury and a "reasonable explanation" for inconsistent testimony?

Glossary of Important Terms

  • Administrative Law Judge (ALJ): A judge who over-sees hearings and makes decisions in disputes involving government agency rules or specific state statutes.
  • A.R.S. § 33-1805(A): The Arizona Revised Statute governing the right of members in a planned community to inspect and copy association records.
  • Certificate of Insurance: A document providing proof of insurance coverage but not containing the full terms, conditions, or endorsements of the actual insurance policy.
  • Custodian of Records: The individual designated by an organization to maintain and manage its official documents and respond to records requests.
  • Estoppel: A legal principle that prevents someone from arguing something or asserting a right that contradicts what they previously said or agreed to by law.
  • Petitioner: The party who initiates a lawsuit or petition; in this case, William M. Brown.
  • Preponderance of the Evidence: The standard of proof used in most civil and administrative cases, requiring that a fact is more likely than not to be true.
  • Respondent: The party against whom a petition is filed; in this case, Terravita Country Club, Inc.
  • Sanctions: Penalties or other means of enforcement used to provide incentives for obedience with the law or with rules and regulations.

The 10-Day Clock: Lessons in Transparency from Brown v. Terravita Country Club

1. Introduction: The Power of Record Requests

For homeowners in Arizona planned communities, the right to inspect association records is not a courtesy—it is a statutory mandate. This transparency is the bedrock of a healthy relationship between a Board of Directors and the residents they serve. When an HOA fails to provide requested documents, it isn't just a breach of trust; it is a legal violation that carries financial consequences.

The case of William M. Brown vs. Terravita Country Club, Inc. provides a masterclass in the pitfalls of administrative delay. This dispute demonstrates that in the eyes of an Administrative Law Judge (ALJ), "intent to comply" and "technical difficulties" do not stop the clock. For homeowners, this case is a reminder of their rights; for Boards, it is a cautionary tale: the 10-day deadline is absolute, and the burden of compliance rests entirely on the association.

2. The Legal Foundation: Understanding A.R.S. § 33-1805(A)

Arizona law is remarkably clear regarding the accessibility of records. Under A.R.S. § 33-1805(A), all financial and other records must be made "reasonably available" to members or their designated representatives.

As a consumer advocate, I always emphasize that homeowners should understand the specific parameters of this law. To remain in compliance, an association must follow these three strict standards:

  • The Examination Timeline: The association has exactly 10 business days to fulfill a request to examine records. (Note: "Business days" exclude weekends and legal holidays).
  • The Delivery Timeline: If a homeowner requests physical or electronic copies, the association has 10 business days to provide them.
  • The Cost Ceiling: The association cannot overcharge for transparency. They are limited to a maximum fee of fifteen cents ($0.15) per page.
3. Anatomy of a Delay: A Timeline of the Dispute

The conflict in Brown v. Terravita Country Club began with a simple request for an insurance policy but devolved into a legal battle due to internal mismanagement and missed deadlines.

  • October 21, 2011 (10:09 a.m.): Mr. Brown emails the Custodian of Records, Cici Rausch, requesting the Directors and Officers (D&O) Liability Insurance Policy.
  • October 21, 2011 (4:22 p.m.): Ms. Rausch responds with a Certificate of Insurance. This is a common error—a Certificate is merely a summary, not the actual policy contract the homeowner is legally entitled to see.
  • October 21, 2011 (4:48 p.m.): Mr. Brown immediately clarifies his request, providing the exact document title and Policy Number PHSD646331.
  • October 24, 2011: Ms. Rausch acknowledges the request but states she must follow up with the Controller.
  • October 28, 2011: The General Manager emails the requested policy to Ms. Rausch at 5:18 p.m. Crucially, the internal process stalled here; Ms. Rausch could not recall when she even opened this email, and the document sat for a full week without being forwarded to the homeowner.
  • November 4, 2011: The 10th business day. This was the legal deadline for delivery. Mr. Brown sends a third request. Ms. Rausch attempts to email the policy at the end of the day, but the email becomes "stuck" in her outbox.
  • November 7, 2011: On the 11th business day, the association finally discovers the error and successfully delivers the policy.
4. The "Stuck Email" Defense: Why Technical Glitches Aren't Legal Excuses

The association’s primary defense was a "computer error." They argued that because the staff member pressed "send" on the deadline date (November 4), the failure to deliver was unintentional.

The ALJ was unpersuaded for two critical reasons. First, the 10-day window is a hard deadline; by the time the email was actually delivered on November 7, the law had already been violated. Second, the ALJ rejected the association's "estoppel" argument—the claim that Mr. Brown should have called to check on his records. Because Ms. Rausch’s email on the afternoon of November 4 indicated she was leaving for the weekend, the Judge ruled that the homeowner had no duty to "chase" the association. The burden of ensuring a record is delivered remains 100% on the HOA.

The case also featured side allegations regarding whether the custodian committed "perjury" by using the nickname "Cici" instead of "Celia" or by failing to categorize a divorce as "civil litigation." The ALJ dismissed these as distractions, noting that using a common nickname and misunderstanding legal terminology did not undermine the witness's credibility or change the fact of the timeline violation.

5. The Verdict: Costs and Consequences

The ALJ ruled that Terravita Country Club violated A.R.S. § 33-1805(A). This case highlights an important distinction between a "violation" and "sanctions."

While the Judge acknowledged the association's "attempted compliance" (the effort to send the email on November 4), this intent did not excuse the violation. It only served to mitigate the penalty, meaning the Judge chose not to impose additional civil fines. However, a violation is still a loss for the association.

The financial sting for the community was immediate:

  • Reimbursement Ordered: The association was ordered to pay Mr. Brown $550.00 to reimburse his filing fee.

From an advocate's perspective, this $550 represents a completely preventable waste of community resources caused by a week of internal administrative silence between October 28 and November 4.

6. Key Takeaways for Homeowners and Boards

This ruling provides three essential lessons for navigating record requests in Arizona:

Precision Matters

If you are a homeowner, do not just ask for "insurance info." Follow Mr. Brown’s lead: identify the specific document and, if possible, the policy number. By being exact, you eliminate the association's ability to claim they didn't understand the request.

The Clock is Absolute

The 10-business-day deadline expires at the end of the tenth day. Associations should treat the eighth or ninth day as their internal deadline to account for technical glitches. To protect the community, Boards should require staff to use "Read Receipts" or "Delivery Confirmations" for all statutory disclosures to avoid the "stuck in the outbox" trap.

Filing Fees are at Risk

Even if a Board has "good intentions," a late response is a losing response in court. When an association loses a records dispute, they are typically on the hook for the petitioner's filing fees. Boards must realize that administrative negligence is a direct hit to the association's budget.

7. Compelling Conclusion

The decision in Brown v. Terravita Country Club serves as a vital reminder that transparency in a planned community is governed by the calendar, not by convenience. Statutory timelines are the safeguards that prevent associations from "slow-walking" information to their members. By prioritizing clear communication and respecting the 10-day clock, HOAs can avoid unnecessary legal fees and build a culture of accountability that serves the entire community.

Case Participants

Petitioner Side

  • William M. Brown (Petitioner)

Respondent Side

  • Joshua M. Bolen (Attorney)
    Carpenter Hazelwood, Delgado, & Bolen, PLC
    Representing Terravita Country Club, Inc.
  • Cici Rausch (Custodian of Records)
    Terravita Country Club, Inc.
    Also identified as Celia Anne Rausch; testified at hearing
  • Tom Forbes (General Manager)
    Terravita Country Club, Inc.
  • Raquel Shull (Controller)
    Terravita Country Club, Inc.

Neutral Parties

  • Lewis D. Kowal (ALJ)
    Office of Administrative Hearings
    Administrative Law Judge
  • Gene Palma (Director)
    Department of Fire, Building and Life Safety
  • Cliff J. Vanell (Director)
    Office of Administrative Hearings
    Certified the decision
  • Beth Soliere (Agency Staff)
    Department of Fire, Building and Life Safety
    Recipient of transmitted copy

Leach, Gregory E. vs. Coronado Pointe Townhomes HOA

Posted on by

Case Summary

Case ID 11F-H1112009-BFS
Agency Department of Fire, Building and Life Safety
Tribunal OAH
Decision Date 2012-04-30
Administrative Law Judge Sondra J. Vanella
Outcome The ALJ dismissed the Petition entirely. The claims were found to be barred by the one-year statute of limitations because the request for records/audits occurred in 2009 and the petition was filed in 2011. Alternatively, on the merits, the Petitioner failed to prove violations of A.R.S. § 33-1810 or A.R.S. § 33-1805(A).
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Gregory E. Leach Counsel —
Respondent Coronado Pointe Townhomes HOA Counsel —

Alleged Violations

A.R.S. § 33-1810
A.R.S. § 33-1805(A)

Outcome Summary

The ALJ dismissed the Petition entirely. The claims were found to be barred by the one-year statute of limitations because the request for records/audits occurred in 2009 and the petition was filed in 2011. Alternatively, on the merits, the Petitioner failed to prove violations of A.R.S. § 33-1810 or A.R.S. § 33-1805(A).

Why this result: The Petition was time-barred by the statute of limitations. Furthermore, the Petitioner failed to meet the burden of proof regarding the requirements of the CC&Rs for audits and the availability of records.

Key Issues & Findings

Financial Audit Requirement

Petitioner alleged the Board refused to provide CPA audited statements. The ALJ ruled the claim was time-barred. On the merits, Petitioner failed to prove the CC&Rs required a CPA audit, which is a prerequisite for a violation of the statute when the documents do not require it.

Orders: Petition dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1810
  • A.R.S. § 12-541(5)

Association Records

Petitioner alleged records were inadequate or unavailable. Evidence showed Petitioner and another homeowner reviewed records at the HOA attorney's office in 2010.

Orders: Petition dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1805(A)

Video Overview

Audio Overview

Decision Documents

11F-H1112009-BFS Decision – 291388.pdf

Uploaded 2026-04-24T10:38:51 (80.1 KB)

11F-H1112009-BFS Decision – 294580.pdf

Uploaded 2026-04-24T10:38:55 (57.9 KB)

11F-H1112009-BFS Decision – 291388.pdf

Uploaded 2026-01-25T15:25:27 (80.1 KB)

11F-H1112009-BFS Decision – 294580.pdf

Uploaded 2026-01-25T15:25:27 (57.9 KB)

Case Summary: Leach v. Coronado Pointe Townhomes HOA Case No. 11F-H1112009-BFS Forum: Arizona Office of Administrative Hearings Date of Decision: April 30, 2012 (Certified Final June 6, 2012)

Overview and Proceedings The Petitioner, Gregory E. Leach, a homeowner in the Coronado Pointe Townhomes planned community, filed a petition against the Respondent, Coronado Pointe Townhomes HOA12. The hearing was conducted on April 11, 2012, before Administrative Law Judge (ALJ) Sondra J. Vanella2. The Petitioner appeared on his own behalf, while the Respondent was represented by Board members Dimitrios and Vikki Boukalis2.

Key Facts and Arguments The Petitioner alleged that the HOA Board had refused to provide “CPA Audited Annual Financial Statements” from June 2000 to the present, asserting that the Board was defrauding homeowners and violating governing statutes34. He argued that existing documents were inadequate and requested an accountant review the records5.

The Respondent argued that the Petitioner’s claims were barred by a one-year statute of limitations6. Additionally, the Respondent provided evidence that the Petitioner had been granted access to review the Association’s financial records at the HOA attorney’s office on May 21, 201045.

Main Legal Issues and Analysis The ALJ addressed three primary legal issues:

1. Statute of Limitations (A.R.S. § 12-541(5)): The ALJ concluded the petition was time-barred. The statute creates a one-year limitation for liabilities created by statute. The Petitioner requested the financial statements in December 2009 but did not file the petition until November 25, 2011, nearly two years later78.

2. Audit Requirement (A.R.S. § 33-1810): The ALJ found that while the Petitioner demanded a CPA audit, the statute only requires a general “financial audit” unless the community’s specific documents (CC&Rs) mandate a CPA. The Petitioner failed to prove that the Coronado CC&Rs required a certified public accountant to perform the audit89.

3. Access to Records (A.R.S. § 33-1805(A)): The statute requires associations to make records “reasonably available” for examination. The ALJ found that because the Petitioner had reviewed the financial records on May 21, 2010, the Respondent had complied with the statute910.

Outcome and Final Decision The ALJ ordered that the petition be dismissed, ruling that no action was required of the Respondent10. The decision was based on the expiration of the statute of limitations and the Petitioner’s failure to establish violations of the relevant statutes by a preponderance of the evidence7….

The decision became the final administrative decision of the Department of Fire, Building and Life Safety on June 6, 2012, after the Department took no action to reject or modify the ALJ’s ruling within the statutory timeframe12.

Study Guide: Gregory E. Leach v. Coronado Pointe Townhomes HOA

This study guide provides a comprehensive overview of the administrative hearing and subsequent decision regarding the dispute between Gregory E. Leach and the Coronado Pointe Townhomes Homeowners Association (HOA). It covers the factual background, legal issues, and the final administrative outcome.

1. Case Overview and Key Entities

Parties Involved
  • Petitioner: Gregory E. Leach, a resident and homeowner at Coronado Pointe Townhomes who purchased his unit in 2004.
  • Respondent: Coronado Pointe Townhomes HOA ("Coronado"), a planned community consisting of 26 townhomes.
  • The Board of Directors: At the time of the dispute, the Board was composed entirely of the Boukalis family:
  • Dimitrios Boukalis: President and developer of the community.
  • Fueronia Boukalis: Secretary (wife of Dimitrios).
  • Vikki Boukalis: Treasurer (daughter of Dimitrios and Fueronia).
  • Note: The Boukalis family owned 14 of the 26 townhomes in the community.
Administrative Oversight
  • Administrative Law Judge (ALJ): Sondra J. Vanella.
  • Office of Administrative Hearings: The venue for the hearing held on April 11, 2012.
  • Department of Fire, Building and Life Safety: The agency responsible for final action on the ALJ's decision.

2. The Core Dispute

In November 2011, Gregory E. Leach filed a petition alleging that the Board of Directors had failed to provide CPA-audited annual financial statements to the members of the association since June 2000.

Petitioner's Arguments
  • The Board knowingly defrauded homeowners.
  • The Board failed to comply with the association’s Declaration of Covenants, Conditions, and Restrictions (CC&Rs) and state statutes.
  • Homeowners required financial statements to verify "who has paid what" regarding association funds.
  • The documents provided during a prior records review were "inadequate."
Respondent's Defense
  • Statute of Limitations: The HOA asserted that the one-year statute of limitations for statutory violations barred the claim.
  • Access to Records: The HOA provided evidence that Mr. Leach was granted access to financial records at the association attorney’s office on May 21, 2010.
  • Statutory Compliance: The HOA maintained they had complied with the requirements for making records available.

3. Legal Framework and Analysis

The Administrative Law Judge evaluated the case based on several Arizona Revised Statutes (A.R.S.) and administrative rules:

Burden of Proof

Under A.A.C. R2-19-119, the Petitioner (Mr. Leach) bore the burden of proving the violations by a preponderance of the evidence (showing the facts sought to be proved are more probable than not).

Statute of Limitations
  • A.R.S. § 12-541(5): Establishes a one-year statute of limitations for liabilities created by statute.
  • Application: Mr. Leach made his request for financial statements on December 11, 2009, but did not file his petition until November 25, 2011 (nearly two years later). The ALJ ruled the petition was time-barred.
Statutory Applicability
  • Condominium vs. Planned Community: Mr. Leach initially cited A.R.S. §§ 33-1243 and 33-1258. However, the parties stipulated that Coronado is a planned community, making those specific condominium statutes inapplicable.
  • A.R.S. § 33-1810 (Audits): Requires an annual financial audit unless the community's documents require a CPA audit. The ALJ found that Mr. Leach failed to prove the CC&Rs required a CPA-specific audit.
  • A.R.S. § 33-1805(A) (Records Access): Requires financial records to be "reasonably available" for examination. Evidence showed Mr. Leach had reviewed records at the attorney’s office in May 2010, satisfying this requirement.

4. Final Decision and Certification

On April 30, 2012, ALJ Sondra J. Vanella recommended that the petition be dismissed.

  • Final Agency Action: Because the Department of Fire, Building and Life Safety took no action to reject or modify the ALJ's decision by June 5, 2012, the decision was certified as final on June 6, 2012, by Cliff J. Vanell, Director of the Office of Administrative Hearings.
  • Effective Date: The order became effective five days after certification (June 11, 2012).

5. Short-Answer Practice Questions

Q1: Why did the ALJ determine that A.R.S. §§ 33-1243 and 33-1258 were inapplicable to this case? Answer: These statutes apply specifically to condominiums. Since both parties agreed that Coronado Pointe Townhomes is a "planned community," these statutes did not apply.

Q2: What was the specific timeframe that barred Mr. Leach’s petition? Answer: Under A.R.S. § 12-541(5), there is a one-year statute of limitations. Mr. Leach requested records in December 2009 but did not file his petition until November 2011, exceeding the one-year limit.

Q3: Describe the composition of the Coronado Pointe Townhomes HOA Board at the time of the hearing. Answer: The Board was controlled by the Boukalis family: Dimitrios (President), his wife Fueronia (Secretary), and their daughter Vikki (Treasurer). They owned 14 of the 26 units in the community.

Q4: What evidence did the Respondent provide to prove they had complied with A.R.S. § 33-1805(A)? Answer: They submitted a letter from their attorney and testimony from Vikki Boukalis confirming that Mr. Leach and another homeowner had visited the attorney’s office on May 21, 2010, to review financial records and sign confidentiality agreements.

6. Essay Prompts for Deeper Exploration

  1. Statutory Interpretation in HOA Governance: Discuss the significance of the distinction between a "planned community" and a "condominium" in the context of Arizona law. How did this distinction impact the legal requirements for Coronado Pointe Townhomes regarding financial reporting?
  2. The Role of the Statute of Limitations: Evaluate the ALJ’s decision to dismiss the petition based on A.R.S. § 12-541(5). Why is a statute of limitations necessary in administrative law, and how did it function as a primary defense for the HOA in this instance?
  3. Transparency vs. Compliance: Mr. Leach argued that the records provided to him were "inadequate." Analyze the difference between a Board making records "reasonably available" (as required by A.R.S. § 33-1805) and providing records that satisfy a homeowner’s specific expectations for transparency.

7. Glossary of Important Terms

Term Definition
A.R.S. Arizona Revised Statutes; the codified laws of the state of Arizona.
Arguendo A Latin term meaning "for the sake of argument." Used by the judge to address a point even if the primary ruling (like the statute of limitations) already decided the case.
CC&Rs Declaration of Covenants, Conditions, and Restrictions; the governing documents that dictate the rules and operations of a common-interest community.
CPA Audit An audit performed by a Certified Public Accountant. The Petitioner argued this was required, but the ALJ found no evidence in the CC&Rs to support that specific requirement.
Petition The formal written request or complaint filed by Mr. Leach to initiate the administrative hearing process.
Planned Community A real estate development where owners are subject to the rules of an HOA, distinct from a condominium in its legal classification and applicable statutes.
Preponderance of the Evidence The standard of proof in civil and administrative cases, meaning that the evidence shows a fact is "more probable than not."
Statute of Limitations A law that sets the maximum time after an event within which legal proceedings may be initiated.

HOA Transparency and the Law: Lessons from Leach v. Coronado Pointe Townhomes

1. Introduction: A Homeowner’s Quest for Accountability

The relationship between a homeowner and their Homeowners Association (HOA) board is built on a foundation of trust and transparency. However, when a board is perceived as an insular entity, that trust can quickly erode, leading to protracted legal battles. In Phoenix, Arizona, a decade-long dispute at the Coronado Pointe Townhomes provides a cautionary tale for both residents and governance boards regarding the limits of statutory obligations and the necessity of timely action.

The case of Gregory E. Leach v. Coronado Pointe Townhomes HOA highlights a homeowner’s persistent quest to obtain audited financial statements from a board with a highly concentrated power structure. Mr. Leach, a resident of Scottsdale, Arizona, found himself at odds with a board composed entirely of the Boukalis family. As the community developer, Dimitrios Boukalis (President) and his family—including his wife Fueronia (Secretary) and daughter Vikki (Treasurer)—owned 14 of the 26 units. This 54% ownership stake created a unique governance environment that eventually led to a formal petition for administrative relief.

2. The Conflict at Coronado Pointe: Claims of Fraud and Secrecy

In November 2011, Mr. Leach filed a petition with the Arizona Department of Fire, Building and Life Safety, alleging that the Board had systematically withheld financial transparency. His grievances were not merely about paperwork; they were rooted in deep-seated suspicions regarding the financial integrity of the association.

Mr. Leach’s primary allegations included:

  • Refusal of Audited Statements: The Board allegedly failed to provide CPA-audited annual financial statements dating back to June 2000.
  • Allegations of Fraud: Mr. Leach claimed the Board knowingly defrauded homeowners and violated the community’s Covenants, Conditions, and Restrictions (CC&Rs) as well as state statutes.
  • A "Who Has Paid What" Inquiry: The synthesized goal of Leach’s request was to determine which unit owners were current on their assessments. By seeking a forensic look at the bank statements, Leach intended to facilitate a civil lawsuit to force the association—and by extension, the developer-controlled board—to reimburse the community for any unpaid dues or misappropriated funds.

3. The Legal Framework: Statutes and Timelines

To resolve the dispute, the Administrative Law Judge (ALJ) relied on Arizona’s legal standards for statutory liability and the specific timelines required for filing a claim. A critical component of the Board’s defense was that Mr. Leach had simply waited too long to seek a legal remedy.

Legal Note: A.R.S. § 12-541(5) Arizona law imposes a strict one-year statute of limitations for any "liability created by statute." In this context, the HOA’s obligation to provide records or conduct audits is a statutory duty. If a homeowner believes the HOA has failed in this duty, the clock starts ticking the moment the request is denied or ignored.

The ALJ determined the petition was "time-barred." The evidence showed that Mr. Leach had made formal requests for the records as early as December 11 and December 29, 2009. However, he did not file his petition until November 25, 2011—nearly two years later. Because the filing fell well outside the one-year window mandated by A.R.S. § 12-541(5), his claims regarding those specific record requests were legally extinguished.

4. The Reality of Record Access: Evidence vs. Allegations

The case also examined whether the Board had actually denied Leach access to records. While the Petitioner characterized the Board’s responses as "unprofessional" and the records as "inadequate," the Board provided evidence of cooperation.

The HOA testified that on May 21, 2010, Mr. Leach and another homeowner were granted a meeting at the HOA attorney’s office to review financial records. The Board produced a letter and signed confidentiality agreements proving that this review had occurred. This evidence shifted the narrative from one of total secrecy to one of a disagreement over the quality and format of the audit.

Evidence Summary
Issue Finding
Record Access Evidence confirmed Leach reviewed records at the attorney’s office on May 21, 2010, and signed a confidentiality agreement.
Audit Requirements A.R.S. § 33-1810 defaults to a standard annual audit; Leach failed to prove the CC&Rs specifically required a CPA-certified audit.
Applicability of Statutes A.R.S. §§ 33-1243 and 33-1258 were ruled inapplicable because they govern Condominiums; Coronado is a Planned Community governed by Title 33, Chapter 16.

5. The Final Decision: Dismissal and Its Implications

On April 30, 2012, Administrative Law Judge Sondra J. Vanella recommended the dismissal of the petition. The ruling emphasized that Mr. Leach failed to meet the burden of proof required to show a violation of A.R.S. § 33-1805(A) (access to records) or A.R.S. § 33-1810 (annual audits).

The decision was certified as the final administrative order on June 6, 2012. The judge ordered that no further action was required of the Coronado Pointe Townhomes HOA Board. The dismissal effectively signaled that while the homeowner’s suspicions were high, the legal requirements for transparency—as defined by the statutes for planned communities—had been technically met by the Board.

6. Key Takeaways for Homeowners and HOA Boards

The Leach v. Coronado Pointe decision provides essential lessons for navigating the complexities of community governance:

  1. Know Your Statute of Limitations: You cannot sit on your rights. If an HOA denies a statutory request, you must file a petition within one year or lose the ability to enforce that specific request in court.
  2. The "CPA" Distinction Matters: Under A.R.S. § 33-1810, an HOA is required to provide an annual financial audit. However, unless your community's CC&Rs explicitly state the audit must be performed by a Certified Public Accountant (CPA), the board is not obligated to meet that higher (and more expensive) standard.
  3. Understand Your Community Type: Legal rights vary significantly between Condominiums and Planned Communities. This case failed in part because the petitioner cited condominium statutes that did not apply to his planned community townhome.
  4. Reasonable Access is the Standard: Providing records at a professional location, such as an attorney's office, and requiring a confidentiality agreement is generally considered making records "reasonably available" under the law.

7. Conclusion: Navigating Community Governance

The dismissal of Mr. Leach’s petition underscores that in the eyes of the law, procedural compliance often outweighs a homeowner's suspicions of mismanagement. Even in communities where power is concentrated in a single developer family, boards can protect themselves by offering documented, reasonable access to records and adhering to the specific audit requirements of their CC&Rs.

For homeowners, this case is a reminder that accountability requires more than just allegations; it requires a precise understanding of which laws apply to your community and the discipline to act within strict legal timelines. The balance of power in an HOA is maintained not just by the governing documents, but by the vigilance and legal accuracy of the residents who live there.

Case Participants

Petitioner Side

  • Gregory E. Leach (Petitioner)
    Coronado Pointe Townhomes
    Appeared on own behalf; Homeowner

Respondent Side

  • Dimitrios Boukalis (Board President)
    Coronado Pointe Townhomes HOA
    Appeared on behalf of Respondent; Developer
  • Vikki Boukalis (Board Treasurer)
    Coronado Pointe Townhomes HOA
    Appeared on behalf of Respondent; Daughter of Dimitrios Boukalis
  • Fueronia Boukalis (Board Secretary)
    Coronado Pointe Townhomes HOA
    Wife of Dimitrios Boukalis

Neutral Parties

  • Sondra J. Vanella (ALJ)
    Office of Administrative Hearings
  • Michael Kollias (Homeowner)
    Coronado Pointe Townhomes
    Accompanied Petitioner to review financial records
  • Cliff J. Vanell (Director)
    Office of Administrative Hearings
    Signed Certification of Decision
  • Gene Palma (Director)
    Department of Fire, Building and Life Safety
    Recipient of decision transmission
  • Beth Soliere (Agency Staff)
    Department of Fire, Building and Life Safety
    Recipient of decision transmission

Sellers, John and Deborah -v- The Crossings At Willow Creek

Posted on by

Case Summary

Case ID 08F-H078005-BFS
Agency DFBLS
Tribunal OAH
Decision Date 2007-12-13
Administrative Law Judge Lewis D. Kowal
Outcome The ALJ ruled in favor of the Petitioners, determining that the Association violated A.R.S. § 33-1805(A) by failing to provide unredacted records. The ALJ rejected the Association's argument that the records contained confidential personal information.
Filing Fees Refunded $550.00
Civil Penalties $0.00

Parties & Counsel

Petitioner John and Deborah Sellers Counsel —
Respondent The Crossings at Willow Creek Counsel Maria R. Kupilas

Alleged Violations

A.R.S. § 33-1805(A)

Outcome Summary

The ALJ ruled in favor of the Petitioners, determining that the Association violated A.R.S. § 33-1805(A) by failing to provide unredacted records. The ALJ rejected the Association's argument that the records contained confidential personal information.

Key Issues & Findings

Records Request Violation

Petitioners requested unredacted copies of a 'Courtesy Notice' regarding ATV usage. The Association withheld the document claiming it contained personal information protected under A.R.S. § 33-1805(B)(4). The ALJ found the information was not personal in nature and should have been disclosed.

Orders: Association ordered to provide unredacted copy of Courtesy Notice dated July 12, 2007 within 40 days and reimburse $550 filing fee.

Filing fee: $550.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1805(A)
  • A.R.S. § 33-1805(B)(4)

Video Overview

Audio Overview

Decision Documents

08F-H078005-BFS Decision – 181959.pdf

Uploaded 2026-04-24T04:47:10 (100.0 KB)

08F-H078005-BFS Decision – 181959.pdf

Uploaded 2026-01-25T15:21:03 (100.0 KB)

Briefing Document: Sellers v. The Crossings at Willow Creek (Case No. 08F-H078005-BFS)

Executive Summary

This document synthesizes the findings and legal conclusions from the Administrative Law Judge (ALJ) decision in the matter of John and Deborah Sellers v. The Crossings at Willow Creek. The central dispute concerned the Association’s refusal to provide unredacted copies of community records, specifically “courtesy notice” letters regarding ATV usage, citing the “personal records” exemption under Arizona Revised Statutes (A.R.S.) § 33-1805(B)(4).

The ALJ ruled in favor of the Petitioners, establishing that the names and addresses of lot owners receiving violation notices do not constitute “personal information” that would justify withholding records from other members. The decision clarified the narrow scope of the personal records exemption and reinforced the Association’s statutory obligation to provide records within ten business days. The Association was ordered to produce the unredacted documents and reimburse the Petitioners’ filing fees.

Case Overview

Attribute

Details

Case Name

John and Deborah Sellers vs. The Crossings at Willow Creek

Case Number

08F-H078005-BFS

Hearing Date

December 3, 2007

Administrative Law Judge

Lewis D. Kowal

Primary Statute at Issue

A.R.S. § 33-1805 (Records Disclosure)

Findings of Fact

The dispute originated from a document request submitted by John and Deborah Sellers on August 16, 2007. The following timeline and status of records were established:

• Compliant Disclosures: The Association timely provided draft records of the Board of Director’s June 7, 2007 meeting and documents related to the retention of legal counsel (Mr. Adams).

• Non-Compliant Disclosures: The Association failed to provide correspondence or notices relating to “the Behns.”

• The Redacted Document: On October 24, 2007 (exceeding the 10-day statutory limit), the Association sent copies of letters regarding ATV usage. However, these documents were redacted to hide “personal information,” specifically the names and addresses of the lot owners receiving the notices.

• The “Courtesy Notice”: After the petition was filed, the Association provided a redacted courtesy notice letter dated July 12, 2007. The core issue of the hearing was the Association’s withholding of the unredacted version of this document.

Legal Analysis and Interpretation

Statutory Requirements (A.R.S. § 33-1805)

The ALJ emphasized that under A.R.S. § 33-1805(A), all financial and other records of an association must be made “reasonably available for examination” within ten business days of a request. An association may only charge a maximum of fifteen cents per page for copies.

The Scope of the “Personal Records” Exclusion

The Association argued that names and addresses in violation notices are “personal information” excluded from disclosure under A.R.S. § 33-1805(B)(4). The ALJ rejected this interpretation based on several factors:

• Contractual Context: When individuals join a homeowner’s association, they enter a contract and agree to be bound by the Declaration of Covenants, Conditions and Restrictions (CC&Rs). Enforcement of these rules is a business function of the Association.

• Publicly Available Information: The ALJ noted that the identity of a lot owner is public information available through various public entities.

• Business vs. Private Information: The ALJ distinguished between “personal records” and “business records”:

◦ Protected (Confidential): Sensitive information such as Social Security numbers, birth dates, and specific times when a member might be away from home.

◦ Unprotected (Disclosable): Citations, notices of violations, and documents reflecting the general business of the Association.

• Policy Implications: If violation notices were considered private, a complaining member would be unable to verify if the Association had taken any action against an offending lot owner.

Limitations of Administrative Jurisdiction

The ALJ clarified that the Office of Administrative Hearings has limited jurisdiction. It cannot consider:

• The Arizona Constitution.

• A.R.S. Title 10 (Corporations).

• Common law or inherent powers.

• California case law (e.g., Chantiles v. Lake Forest II), as it is distinguishable and outside the ALJ’s statutory authority.

The ALJ’s role is strictly limited to determining violations of A.R.S. Title 33, Chapter 9 or 16, or the planned community’s specific governing documents.

Final Decision and Order

The ALJ concluded that the Association failed to meet its burden of proof and violated A.R.S. § 33-1805(A). Specifically, the Association did not provide the requested documents within the ten-day limit and improperly withheld unredacted copies of business-related notices.

Mandated Actions

1. Unredacted Disclosure: The Association was ordered to provide the Petitioners with an unredacted copy of the July 12, 2007 Courtesy Notice within forty days.

2. Financial Restitution: As the prevailing party, the Petitioners were awarded their filing fee of $550.00, to be reimbursed by the Association within forty days.

This decision is the final administrative action and is enforceable through contempt of court proceedings.

Study Guide: Sellers v. The Crossings at Willow Creek

This study guide examines the administrative law proceedings and legal interpretations regarding the disclosure of association records under Arizona law. It focuses on the specific case of John and Deborah Sellers versus The Crossings at Willow Creek, highlighting statutory requirements, jurisdictional boundaries, and the definition of personal information in community management.

1. What was the central dispute between the Petitioners and the Association in this case? The primary conflict involved a records request filed by the Petitioners for various Association documents, specifically regarding a “Courtesy Notice” about ATV usage. While some documents were provided, the Association withheld an unredacted copy of one notice, claiming that the names and addresses of lot owners constituted protected personal information.

2. According to A.R.S. § 33-1805(A), what are the time requirements and potential costs for fulfilling a records request? The statute requires an association to fulfill a request for the examination of records within ten business days. If the member requests copies of these records, the association also has ten business days to provide them and may charge a fee of no more than fifteen cents per page.

3. What is the legal standard for “preponderance of the evidence” as defined in the document? Drawing from Black’s Law Dictionary, the document defines a preponderance of the evidence as evidence that carries greater weight or is more convincing than the opposing evidence. It essentially means that the facts sought to be proved are shown to be more probable than not.

4. Under what specific conditions does A.R.S. § 33-1805(B)(4) allow an association to withhold records? Records may be withheld to the extent they relate to the personal, health, or financial information of an individual member of the association, an employee of the association, or an employee of a contractor for the association. This includes records directly related to such sensitive individual data.

5. Why did the Administrative Law Judge (ALJ) determine that the Chantiles v. Lake Forest II Master Homeowner’s Assoc. case was not applicable? The ALJ found the case distinguishable because the Office of Administrative Hearings (OAH) has limited jurisdiction and cannot consider constitutional privacy rights as the California court did. The OAH is strictly confined to determining violations of specific Arizona statutes and planned community documents.

6. How does the Office of Administrative Hearings (OAH) derive its authority, and what are the limits of that authority? The OAH is an administrative agency whose powers are limited to those granted by statute; it possesses no common law or inherent powers. In this context, its jurisdiction is limited to determining if an association violated its own governing documents or specific chapters of A.R.S. Title 33.

7. How did the ALJ define the term “personal” in the context of A.R.S. § 33-1805? Using a dictionary definition, “personal” was defined as “of or relating to a particular person.” However, the ALJ emphasized that the term must be interpreted within the context of what is being regulated, namely the business and records of a homeowner’s association.

8. What reasoning did the ALJ provide for concluding that violation notices do not constitute confidential “personal” records? The ALJ noted that the identity of lot owners is public information and that the Association’s own policy reveals the identity of complainants in initial notices. Furthermore, by analogy, legal proceedings involving violations are generally public unless specifically made confidential by statute.

9. What types of information did the ALJ identify as legitimately falling under the “personal records” exclusion? The ALJ specified that sensitive information a reasonable person would expect to remain confidential—such as social security numbers, birth dates, and specific schedules of when a member will be away from their home—would be subject to the disclosure exclusion.

10. What was the final order issued by the ALJ regarding the “Courtesy Notice” and the filing fees? The ALJ ordered the Association to provide the Petitioners with an unredacted copy of the July 12, 2007, Courtesy Notice within forty days. Additionally, the Association was ordered to reimburse the Petitioners for their $550.00 filing fee within the same timeframe.

Answer Key

1. The dispute concerned the withholding of unredacted records (names and addresses) in an association notice regarding ATV usage.

2. The deadline is ten business days for both examination and copies, with a maximum copy fee of fifteen cents per page.

3. It is evidence that is more convincing or has greater weight than the opposition, making a fact more probable than not.

4. When records contain personal, health, or financial information of an individual member or employee.

5. The OAH lacks the jurisdiction to apply constitutional privacy balancing tests used in other states, as it is restricted to specific Arizona statutes.

6. Authority is granted strictly by statute; the OAH cannot consider legal authorities like the Arizona Constitution or Title 10 in these cases.

7. It means “of or relating to a particular person,” interpreted specifically within the context of association management.

8. Lot owner identities are already public, and the Association’s own compliance policies disclose such information during enforcement.

9. Social security numbers, birth dates, and sensitive details like home vacancy schedules.

10. The Association had to provide the unredacted document and pay the Petitioners $550.00 to cover the filing fee.

Essay Questions

1. The Scope of Administrative Jurisdiction: Discuss the limitations placed on the Administrative Law Judge in this case. How does the restricted jurisdiction of the OAH impact the types of legal arguments (e.g., constitutional vs. statutory) that can be successfully used in homeowner association disputes?

2. Defining Privacy in a Contractual Community: Analyze the Association’s argument regarding the privacy of its members versus the ALJ’s conclusion that homeowners enter into a contract that necessitates certain disclosures. How does the act of moving into a planned community alter an individual’s expectation of privacy regarding rule violations?

3. Statutory Interpretation of “Personal Records”: Evaluate the ALJ’s method of defining “personal” information. Compare the types of data the ALJ deemed “sensitive” (like SSNs) versus data deemed “business-related” (like violation notices). Is this distinction sufficient to protect members?

4. Transparency in Association Governance: A.R.S. § 33-1805(A) mandates that records be “reasonably available.” Explore the importance of this transparency in the context of a member’s ability to verify that an association is fairly enforcing its own Covenants, Conditions, and Restrictions (CC&Rs).

5. The Consequences of Non-Compliance: Using the case as a reference, discuss the legal and financial repercussions for an association that fails to adhere to the ten-day statutory window for records requests. What does this suggest about the legislature’s intent regarding the promptness of association transparency?

Glossary of Key Terms

• A.R.S. § 33-1805: The Arizona Revised Statute that governs the inspection and copying of association records by members, including specific exceptions for withholding information.

• In Camera: A legal term referring to a judge’s private review of evidence (such as the redacted document in this case) to determine its admissibility or status before it is shown to the other parties.

• Limited Jurisdiction: A legal principle where a court or tribunal’s authority is restricted to specific types of cases or specific statutory violations, rather than having broad or inherent power.

• Planned Community Documents: The collective term for the governing rules of an association, including the Articles of Incorporation, Bylaws, and Covenants, Conditions, and Restrictions (CC&Rs).

• Preponderance of the Evidence: The burden of proof in civil and administrative cases, requiring that a claim be more likely true than not.

• Redacted: The process of censoring or obscuring specific parts of a document (such as names or addresses) before it is released to a requesting party.

• Respondent: The party against whom a petition is filed; in this case, The Crossings at Willow Creek.

• Summary Judgment: A legal motion where one party asks the judge to decide the case based on written arguments and stipulated facts without a full trial or evidentiary hearing.

Case Title: John and Deborah Sellers v. The Crossings at Willow Creek Case No.: 08F-H078005-BFS Forum: Office of Administrative Hearings Date of Decision: December 13, 2007

Proceedings and Key Facts On December 3, 2007, Administrative Law Judge Lewis D. Kowal presided over a hearing regarding a records request dispute1. The Petitioners, John and Deborah Sellers, submitted a request to the Respondent, The Crossings at Willow Creek (the “Association”), on August 16, 20072. While the Association provided some records, it withheld an unredacted copy of a “Courtesy Notice” letter dated July 12, 2007, regarding ATV usage3. The Association had redacted the names and addresses of the lot owners to whom the letters were addressed34.

Main Issues The primary legal issues were:

1. Whether the Association violated A.R.S. § 33-1805(A) by failing to provide requested records within the statutory ten-day period56.

2. Whether the redacted names and addresses constituted “personal… records” under the statutory exception in A.R.S. § 33-1805(B)(4), thereby justifying the Association’s refusal to disclose them78.

Key Arguments

• Petitioners: Argued that the Association failed to comply with the statute by not providing all requested documents within ten business days8.

• Respondent: Argued that the names and addresses of members receiving violation notices constitute “personal information.” They contended that disclosure was prohibited under the A.R.S. § 33-1805(B)(4) exception for personal records8. The Association cited Chantiles v. Lake Forest II Master Homeowner’s Assoc. and constitutional privacy rights to support withholding the information9.

Legal Analysis and Findings The Administrative Law Judge (ALJ) rejected the Association’s arguments on the following grounds:

• Jurisdiction: The ALJ noted that the Tribunal’s jurisdiction is limited to specific statutes (A.R.S. Title 33) and does not extend to constitutional privacy claims or common law; therefore, the Chantiles case was distinguishable and not controlling1011.

• Definition of “Personal”: The ALJ determined that “personal records” in the context of the statute refers to sensitive data such as social security numbers, health information, or dates a member is away from home12.

• Public Nature of Violations: The identity of lot owners is public information13. The ALJ reasoned that violation notices regarding Association rules are not inherently “personal” or confidential14. Furthermore, allowing the Association to withhold such information would prevent members from verifying if the Association is properly enforcing rules against other members13.

Final Decision and Outcome The ALJ ruled in favor of the Petitioners, concluding that the Association violated A.R.S. § 33-1805(A)6. The Tribunal found that the document in question did not fall within the “personal records” classification and was subject to disclosure15.

1. The Association was ordered to provide the Petitioners with an unredacted copy of the July 12, 2007 Courtesy Notice within 40 days6.

2. The Association was ordered to reimburse the Petitioners their filing fee of $550.00 within 40 days16.

Case Participants

Petitioner Side

  • John Sellers (petitioner)
    Appeared on his own behalf
  • Deborah Sellers (petitioner)
    Appeared on her own behalf; deferred presentation to husband

Respondent Side

  • Maria R. Kupilas (HOA attorney)
    Elmark & Elmark, L.L.C.
    Listed in distribution; Respondent filed Motion for Summary Judgment
  • Mr. Adams (attorney)
    Subject of records request regarding retention as legal counsel

Neutral Parties

  • Lewis D. Kowal (ALJ)
    Office of Administrative Hearings
  • Robert Barger (Director)
    Department of Fire Building and Life Safety
    Listed in distribution
  • Debra Blake (agency staff)
    Department of Fire Building and Life Safety
    Listed in distribution