CC&Rs Article 7, Section 7.3, and Article 9, Sections 9.3, 9.4, and 9.5
Outcome Summary
The ALJ concluded that Foothills demonstrated Respondents' violation of the community governing documents by commencing and continuing construction of a second-story Addition without obtaining the required Architectural Committee approval. Foothills was deemed the prevailing party, and Respondents' appeal was dismissed.
Key Issues & Findings
Unauthorized 2nd story addition
Respondents constructed a second-story Addition to their property without first obtaining approval from the Foothills Architectural Committee, violating the community governing documents.
Orders: Respondents’ appeal is dismissed, and Foothills is deemed the prevailing party with regard to its Petition.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_win
Cited:
CC&Rs Article 7, Section 7.3
CC&R Article 9, Section 9.3
CC&R Article 9, Section 9.4
CC&R Article 9, Section 9.5
Analytics Highlights
Topics: architectural review, cc&r violation, unapproved construction, second story addition, prevailing party
Additional Citations:
A.R.S. §§ 32-2102
A.R.S. §§ 32-2199 et al.
A.R.S. §§ 32-2199(2)
A.R.S. §§ 32-2199.01(D)
A.R.S. §§ 32-2199.02
A.R.S. § 32-2199.05
A.R.S. § 41-1092
A.R.S. §32-2199.02(B)
A.R.S. § 32-2199.04
A.R.S. § 41-1092.09
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
ARIZ. ADMIN. CODE R2-19-119
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
Video Overview
Audio Overview
Decision Documents
21F-H2120004-REL Decision – 839537.pdf
Uploaded 2026-01-23T17:34:43 (135.4 KB)
Briefing Doc – 21F-H2120004-REL
Briefing Document: Foothills Club West HOA v. Subrahmanyam & Sudhakar Living Trust
Executive Summary
This document synthesizes the findings and decision in the case of Foothills Club West Homeowners Association v. Subrahmanyam & Sudhakar Living Trust (No. 21F-H2120004-REL), adjudicated by the Arizona Office of Administrative Hearings. The core dispute involved the construction of a second-story addition by homeowners (Respondents) without the prior approval of the Homeowners Association (Petitioner), a direct violation of the community’s governing documents.
The Administrative Law Judge (ALJ) found conclusively in favor of the Foothills Club West HOA. The evidence demonstrated that the Respondents not only began construction without seeking approval but continued the project even after receiving a formal denial from the HOA’s Architectural Committee. A subsequent agreement between the parties, wherein the Respondents would demolish the addition in exchange for a waiver of fines, was not honored by the Respondents. The ALJ dismissed the Respondents’ appeal and declared the HOA the prevailing party, validating its authority to enforce the community’s architectural standards as outlined in its Covenants, Conditions, and Restrictions (CC&Rs).
I. Case Overview
• Case Name: Foothills Club West Homeowners Association, Petitioner, v. Subrahmanyam & Sudhakar Living Trust, Respondent.
• Case Number: 21F-H2120004-REL
• Jurisdiction: Arizona Office of Administrative Hearings
• Administrative Law Judge: Kay Abramsohn
• Hearing Date: October 5, 2020
• Decision Date: November 27, 2020
• Central Issue: The petition filed by Foothills HOA on July 24, 2020, alleged that the Respondents constructed an unauthorized and unapproved second-story addition to their property. This action was alleged to be in violation of CC&Rs Article 7, Section 7.3, and Article 9, Sections 9.3, 9.4, and 9.5.
II. Chronology of Key Events
The hearing record established the following undisputed sequence of events:
Oct. 2018
Respondents begin construction of the second-story addition.
Nov. 7, 2018
The City of Phoenix issues a stop-work order, noting a permit is required.
Nov. 7, 2018
Foothills HOA issues a violation notice to the Respondents.
Dec. 17, 2018
Respondents obtain a permit from the City of Phoenix.
Jan. 18, 2019 (approx.)
Respondents submit a request for approval to the Foothills Architectural Committee.
Jan. 18, 2019
Foothills HOA issues a penalty notice to the Respondents, with further notices issued monthly.
Feb. 22, 2019
Foothills HOA issues a formal denial of the application.
Mar. 15, 2019
The City of Phoenix gives final approval to the construction and issues a Certificate of Occupancy.
Post Feb. 2019
The parties reach an agreement for Respondents to demolish the addition in exchange for a waiver of fines.
July 24, 2020
Foothills HOA files its petition, noting Respondents have not complied with the demolition agreement.
Oct. 5, 2020
The administrative hearing is held.
Nov. 27, 2020
The Administrative Law Judge issues the final decision.
III. Arguments of the Parties
A. Petitioner: Foothills Club West HOA
• Violation of CC&Rs: The HOA argued that the Respondents violated CC&R Article 9, Section 9.3 by commencing construction without first obtaining approval from the Architectural Committee.
• Disregard for Denial: The HOA asserted that the Respondents completed the addition after receiving a formal denial of their application.
• Breach of Agreement: The HOA noted that the parties had reached a settlement agreement for demolition, which the Respondents failed to honor. The HOA requested that the Tribunal enforce this agreement.
• Jurisdictional Distinction: The HOA maintained that approval from the City of Phoenix was a separate matter and did not negate the requirement to obtain approval from the HOA as mandated by the governing documents.
B. Respondents: Subrahmanyam & Sudhakar Living Trust
• Initial Ignorance: Respondents claimed they were initially unaware of the HOA approval requirements.
• Attempted Compliance: They argued that once notified, they followed the association’s guidance, met with the Board, and sought approval.
• Vague Denial: Respondents stated they did not understand the meaning of the denial reason, “Fails aesthetics of surrounding community,” or how the addition specifically violated community rules.
• Lack of Due Process: They argued they did not receive a letter indicating an appeal process was available and therefore felt they had not received a final “denial.”
• Demolition Delay: While not disputing the existence of the demolition agreement, Respondents cited COVID-19 issues and safety concerns for their at-risk family as reasons for requesting more time.
• Final Appeal: At the hearing, Respondents reversed their position on the agreement and requested to be allowed to keep the addition.
IV. Analysis of Governing Documents
The decision centered on specific provisions within the Foothills Club West governing documents, which constitute the contract between the HOA and the homeowners.
• CC&R Article 9, Section 9.3 (Architectural Approval): This section was central to the case. It states in pertinent part:
• CC&R Article 9, Section 9.4 (Obligation to Obtain Approval): This provision explicitly sets forth a homeowner’s obligation to secure approval from the Architectural Committee.
• CC&R Article 9, Section 9.5 (Exterior Appearance): This section clarifies that while the HOA cannot limit interior remodeling, it retains jurisdiction over any changes that are “visible from outside such [home] … or affects the exterior appearance of such [home].”
• Amended Architectural Guidelines (2013): These guidelines reinforce the CC&Rs, specifying that a homeowner’s plans must be submitted for approval through the Architectural Committee on a case-by-case basis.
V. Administrative Law Judge’s Decision and Rationale
The ALJ’s conclusions of law provided a clear framework for the final order.
A. Burden of Proof
The ALJ established that in this proceeding, the petitioner (Foothills HOA) bore the burden of proving by a “preponderance of the evidence” that the Respondents had violated the governing documents. A preponderance of the evidence is defined as “proof as convinces the trier of fact that the contention is more probably true than not.”
B. Core Conclusion on Violations
The ALJ found that the HOA had successfully met its burden of proof. The central conclusion of law states:
“The Administrative Law Judge concludes that Foothills has demonstrated Respondents’ violation of the community governing documents, as stated in CC&R Article 9, Sections 9.3, 9.4, and 9.5, because Respondents began to construct a modification, the Addition, to their existing home prior to obtaining approval from Foothills Architectural Committee and, further, Respondents continued to construct the Addition despite receiving a denial of approval from Foothills Architectural Committee.”
This finding affirmed that the Respondents committed two distinct violations: starting work without approval and continuing work after being explicitly denied approval.
VI. Final Order and Implications
Based on the findings of fact and conclusions of law, the ALJ issued a decisive order.
• Order:
• Binding Nature: The decision notes that the order is binding on both parties unless a rehearing is requested. Pursuant to A.R.S. § 41-1092.09, a request for rehearing must be filed with the Commissioner of the Arizona Department of Real Estate within 30 days of the service of the order.
Study Guide – 21F-H2120004-REL
Study Guide: Foothills Club West HOA v. Subrahmanyam & Sudhakar Living Trust
This guide provides a detailed review of the Administrative Law Judge Decision in case No. 21F-H2120004-REL. It includes a short-answer quiz to test factual recall, essay questions for deeper analysis, and a comprehensive glossary of key terms found within the document.
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Short-Answer Quiz
Instructions: Answer the following ten questions in 2-3 sentences each, based on the information provided in the source document.
1. Who are the Petitioner and Respondent in this case, and what is their relationship?
2. What was the single issue raised in the petition filed by Foothills Club West Homeowners Association?
3. According to the Petition, which specific articles and sections of the governing documents did the Respondents allegedly violate?
4. What action did the City of Phoenix take on November 7, 2018, regarding the Respondents’ construction project?
5. What reasons did the Foothills Architectural Committee provide for denying the Respondents’ application on February 22, 2019?
6. Prior to the hearing, what agreement did the parties reach in an attempt to resolve the dispute?
7. What was the Respondents’ primary argument for their actions and for their failure to comply with the association’s denial?
8. What is the legal standard of proof required in this case, and which party bore the burden of meeting it?
9. Explain the difference between the City of Phoenix’s approval and the Foothills Architectural Committee’s approval, as argued by the Petitioner.
10. What was the final order issued by the Administrative Law Judge in this matter?
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Answer Key
1. The Petitioner is the Foothills Club West Homeowners Association (“Foothills”). The Respondent is the Subrahmanyam & Sheila Sudhakar Living Trust. Their relationship is that of a homeowners’ association and a member homeowner residing within the planned community for 22 years.
2. The single issue raised was that the Respondents constructed an unauthorized and unapproved second-story addition to their property. The construction was completed even after the Foothills Architectural Committee had issued a denial of the project.
3. Foothills alleged that the Respondents violated the CC&Rs Article 7, Section 7.3, and Article 9, Sections 9.3, 9.4, and 9.5. These articles pertain to the rights and obligations of the association and the architectural standards requiring prior approval for modifications.
4. On November 7, 2018, the City of Phoenix issued a stop-work order for the Respondents’ construction project. The order noted that the work being performed required a permit, which had not yet been obtained.
5. The Foothills Architectural Committee denied the application because it needed copies of the City permit, the plans were incomplete, and there was no documentation on the roof line or roofing materials. Furthermore, the denial stated that the project “Fails aesthetics of surrounding community.”
6. The parties came to an agreement wherein the Respondents would complete the demolition of the second-story addition. In exchange, Foothills agreed to waive the penalties that had been imposed on the Respondents for the violation.
7. The Respondents argued that they initially did not know what was required and that they cooperated with the association’s Board once notified. They claimed they did not understand what “Fails aesthetics” meant, did not receive a letter about an appeal process, and therefore did not feel they had received a final “denial.”
8. The legal standard of proof is a “preponderance of the evidence,” which is defined as proof that convinces the trier of fact that a contention is more probably true than not. The Petitioner, Foothills, bore the burden of proving the Respondents’ violation by this standard.
9. Foothills argued that approval from the City of Phoenix and approval from the association’s Architectural Committee were two different and separate matters. Even though the Respondents eventually received a City permit and a Certificate of Occupancy, this did not override the CC&R requirement to first obtain approval from Foothills.
10. The Administrative Law Judge ordered that the Respondents’ appeal be dismissed. The Judge deemed Foothills the prevailing party with regard to its petition, finding that Foothills had demonstrated the Respondents’ violation of the community’s governing documents.
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Essay Questions
Instructions: The following questions are designed for longer, more analytical responses. Formulate an essay-style answer for each, drawing evidence and support directly from the provided legal decision.
1. Analyze the arguments presented by both the Petitioner (Foothills) and the Respondents at the hearing. Discuss the key evidence and claims each party used to support their position and explain why the Administrative Law Judge ultimately found the Petitioner’s case more persuasive.
2. Explain the distinct roles and jurisdictions of the Homeowners Association’s Architectural Committee and the City of Phoenix regarding the Respondents’ construction project. Why was obtaining a City permit and a Certificate of Occupancy insufficient for the Respondents to proceed without violating the community’s governing documents?
3. Trace the procedural history of case No. 21F-H2120004-REL, from the filing of the initial petition to the final order. Discuss key filings, motions, and deadlines mentioned in the document, including the Respondents’ attempt to consolidate another case.
4. Discuss the significance of the “contract” between the parties, as defined in footnote 15. How do the CC&Rs and the amended Architectural Guidelines function as this contract, and which specific sections were central to the judge’s conclusion that a violation occurred?
5. Evaluate the Respondents’ attempt to justify their failure to demolish the addition as per their agreement with Foothills, citing COVID-19 issues. How did their request at the hearing to keep the addition conflict with their prior agreement, and what does this reveal about their position in the dispute?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The official, in this case Kay Abramsohn, who presides over administrative hearings at the Office of Administrative Hearings and issues decisions.
Architectural Committee
A committee appointed by the Foothills HOA, as established by CC&R Article 9, with the authority to review, approve, or disapprove plans for construction, modifications, and additions to properties within the community.
An abbreviation for the Declaration of Covenants, Conditions and Restrictions. These are the governing documents that form a binding contract between the homeowners association and the property owners, outlining their rights and obligations.
Disclosure
The formal process by which parties in a legal case provide evidence, exhibits, and information to each other before a hearing. The deadline for disclosure in this case was September 29, 2020.
Governing Documents
The set of rules for the planned community, including the CC&Rs and the amended Architectural Guidelines, which have the same force and effect as association rules.
Petitioner
The party who initiates a legal proceeding by filing a petition. In this case, the Foothills Club West Homeowners Association.
Petition
The formal document filed with the Arizona Department of Real Estate to initiate a hearing concerning violations of community governing documents. In this case, it was a “single-issue petition.”
Preponderance of the Evidence
The standard of proof required in this administrative hearing. It is defined as “proof as convinces the trier of fact that the contention is more probably true than not.”
Respondent
The party against whom a petition is filed and who is required to respond to the allegations. In this case, the Subrahmanyam & Sheila Sudhakar Living Trust.
Tribunal
The Arizona Office of Administrative Hearings, the state agency authorized by statute to hear and decide contested matters referred to it, such as this dispute.
Blog Post – 21F-H2120004-REL
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21F-H2120004-REL
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This text is an Administrative Law Judge Decision from the Arizona Office of Administrative Hearings concerning a dispute between the Foothills Club West Homeowners Association and the Subrahmanyam & Sudhakar Living Trust. The Petitioner, the Foothills Club West Homeowners Association, filed a petition alleging that the Respondents constructed an unauthorized second-story addition to their property in violation of the association’s governing documents, specifically the CC&Rs Article 9, Sections 9.3, 9.4, and 9.5. The Administrative Law Judge determined that the Respondents violated these community documents by beginning construction prior to obtaining approval from the Foothills Architectural Committee and continuing the work despite receiving a denial. The judge ultimately concluded that Foothills was the prevailing party and dismissed the Respondents’ appeal, effectively upholding the violation finding.
What are the specific governing document violations alleged and proven against the homeowners?
How did the legal and administrative process address the unauthorized construction dispute?
What was the final resolution ordered regarding the unapproved second-story home addition?
Based on 1 source
Case Participants
Petitioner Side
John Halk(HOA attorney) BROWN/OLCOTT, PLLC Represented Petitioner Foothills Club West Homeowners Association
Nathan Tennyson(HOA attorney) BROWN/OLCOTT, PLLC Counsel for Petitioner
Respondent Side
Mary T. Hone(Respondent attorney) Mary T. Hone, PLLC Counsel for Respondent Trustees Subrahmanyam & Sheila Sudhakar
Subrahmanyam Sudhakar(respondent) Subrahmanyam & Sheila Sudhakar Living Trust Trustee of the Respondent Living Trust
Sheila Sudhakar(respondent) Subrahmanyam & Sheila Sudhakar Living Trust Trustee of the Respondent Living Trust
Neutral Parties
Kay Abramsohn(ALJ) Office of Administrative Hearings Administrative Law Judge
Judy Lowe(Commissioner) Arizona Department of Real Estate
LDettorre(Agency Staff) Arizona Department of Real Estate Recipient of electronic transmission of Order
AHansen(Agency Staff) Arizona Department of Real Estate Recipient of electronic transmission of Order
djones(Agency Staff) Arizona Department of Real Estate Recipient of electronic transmission of Order
DGardner(Agency Staff) Arizona Department of Real Estate Recipient of electronic transmission of Order
ncano(Agency Staff) Arizona Department of Real Estate Recipient of electronic transmission of Order
The Administrative Law Judge dismissed the petition, finding that the Petitioner failed to meet the burden of proof that the Condominium Association violated its governing documents or state statute regarding record inspection, specifically because the Association did not possess and was not required to create a Membership Register containing unit owners' email addresses.
Why this result: Petitioner failed to establish by a preponderance of the evidence that Respondent violated the provisions of CC&Rs Section 11.4.8, Bylaws Section 10.3, or A.R.S. § 33-1158 (or § 33-1258) because the requested record (a Membership Register containing email addresses) did not exist, and the Association was not obligated to create it.
Key Issues & Findings
Refusal to provide access to the membership register (Owner Roster with emails)
Petitioner alleged the Respondent violated governing documents and statute by refusing access to the membership register containing email addresses. Respondent argued email addresses were protected 'personal records' under A.R.S. § 33-1258(B)(4). The ALJ found the Petitioner failed to prove a violation because the requested document (a Membership Register containing emails) did not exist, and Respondent had no obligation to create it.
Orders: The petition is dismissed and no action is required of Respondent.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 33-1258
CC&Rs 11.4.8
Bylaws 10.3
Analytics Highlights
Topics: records inspection, membership roster, email addresses, HOA records, condominium association, A.R.S. 33-1258
Additional Citations:
A.R.S. § 32-2199.01
A.R.S. § 33-1258
A.R.S. § 33-1258(B)(4)
A.R.S. § 33-1158
CC&Rs 11.4.8
Bylaws 10.3
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.R.S. §32-2199.02(B)
A.R.S. § 41-1092.09
Video Overview
Audio Overview
Decision Documents
20F-H2020055-REL Decision – 807817.pdf
Uploaded 2026-01-23T17:32:44 (107.3 KB)
Briefing Doc – 20F-H2020055-REL
Administrative Hearing Briefing: Tomisak v. Arrowhead Lakes Condominium Association
Executive Summary
This briefing document outlines the findings and decision in the case of Robert Tomisak versus the Arrowhead Lakes Condominium Association (Case No. 20F-H2020055-REL), heard in the Office of Administrative Hearings. The petitioner, Mr. Tomisak, alleged that the Association violated its governing documents and Arizona state law by refusing his request for an owner roster that included member email addresses. The Association countered that email addresses constitute protected personal information and, more critically, that a membership register containing such information no longer exists.
The Administrative Law Judge ultimately dismissed the petition. The decision did not hinge on whether email addresses are “personal records” under the law. Instead, the ruling was based on the factual determination that the Association cannot be compelled to produce a document that it does not maintain. Since the Association had ceased including email addresses in its Membership Register in 2018, the judge concluded that the petitioner had no right to a non-existent record and had failed to meet the burden of proof required to show a violation.
I. Case Overview
Case Name
Robert Tomisak v. Arrowhead Lakes Condominium Association
Case Number
20F-H2020055-REL
Office of Administrative Hearings
Administrative Law Judge
Sondra J. Vanella
Petitioner
Robert Tomisak, Owner of Unit 1902 (Appeared on his own behalf)
Respondent
Arrowhead Lakes Condominium Association (Represented by Property Manager Terri Troy)
Hearing Date
July 9, 2020
Decision Date
July 17, 2020
II. Petitioner’s Allegations
On April 15, 2020, Robert Tomisak filed a single-issue petition alleging that the Arrowhead Lakes Condominium Association had violated its own governing documents and Arizona state law. The core of the complaint was the Association’s refusal to fulfill his March 11, 2020, email request “to provide access to the membership register” containing owner email addresses.
Mr. Tomisak specifically cited violations of the following provisions:
• Covenants, Conditions, and Restrictions (CC&Rs): Article 11, Section 4.8
• Bylaws: Article 10.3
• Arizona Revised Statutes (A.R.S.): § 33-1258
III. Respondent’s Position and Defense
The Association, through its property management company AS&A Property Management, Inc., and represented by Property Manager Terri Troy, denied all allegations. The defense rested on two key arguments:
1. Privacy Exemption: The Association contended that members’ email addresses are “personal records” and therefore exempt from disclosure under A.R.S. § 33-1258(B)(4), which protects the “personal, health or financial records of an individual member.”
2. Non-Existence of the Record: Ms. Troy testified that while the Association would readily provide the official Membership Register (containing names and addresses), this document no longer includes email addresses. This practice of excluding emails from the register began in 2018.
IV. Key Evidence and Testimony
The March 11, 2020 Email Exchange
The dispute originated with a direct email exchange between the petitioner and the property manager.
• Petitioner’s Request (7:33 a.m.): Mr. Tomisak sent an email with the subject line “Owner Roster” stating:
• Respondent’s Denial (8:23 a.m.): Ms. Troy responded with a direct refusal, citing the statutory exemption for personal information:
Hearing Testimony
During the July 9, 2020 hearing, both parties presented their arguments:
• Robert Tomisak (Petitioner): Acknowledged that he already had access to member mailing addresses but specifically required their email addresses. He argued that email addresses are not “personal information” and cited “the internet” and “California case law” as authority for this position.
• Terri Troy (Respondent): Reiterated the Association’s willingness to provide the existing Membership Register, which contains names, addresses, and unit numbers. She explained that email addresses had been removed from this register starting in 2018 and that her refusal was based on the belief that emails are protected “personal records” under A.R.S. § 33-1258(B)(4).
The Administrative Law Judge noted that neither party cited “any relevant or persuasive legal authority” to formally define “personal records” as used in the statute.
V. Legal Framework and Governing Documents
The case centered on the interpretation of three key provisions granting members access to Association records.
Document
Section
Key Provision
11.4.8
“The Association shall make available to Owners… current copies of the Declaration, Articles, Bylaws, rules of the Association and the books, records, and financial statements of the Association.”
Bylaws
“The membership register… shall be made available for inspection and copying by Members of the Association… for a purpose reasonably related to their interests as Members…”
A.R.S.
§ 33-1258(A)
“all financial and other records of the association shall be made reasonably available for examination by any member…”
A.R.S.
§ 33-1258(B)(4)
“Books and records… may be withheld from disclosure to the extent that the portion withheld relates to… Personal, health or financial records of an individual member of the association…”
VI. Administrative Law Judge’s Findings and Order
Burden of Proof
The judge established that the petitioner, Mr. Tomisak, bore the burden of proof to demonstrate by a “preponderance of the evidence” that the Association had committed the alleged violations. A preponderance of evidence is defined as that which is sufficient to “incline a fair and impartial mind to one side of the issue rather than the other.”
Central Conclusion
The judge’s ruling was not based on the privacy argument regarding whether email addresses are “personal records.” Instead, the decision was grounded in a more fundamental point of fact regarding the existence of the requested document. The judge’s decisive conclusion of law stated:
While Petitioner has the right to enforce the requirements of the above provisions, Petitioner does not have the right to a record that does not exist, i.e., a Membership Register containing email addresses. Further, there is no requirement in the above provisions that Respondent has an obligation to create such a document.
Final Ruling
Based on this central finding, the judge held that Mr. Tomisak failed to meet his burden of proof and did not establish that the Association had violated its CC&Rs, its Bylaws, or A.R.S. § 33-1158.
IT IS ORDERED that no action is required of Respondent in this matter and that the petition is dismissed. The order is binding unless a rehearing is requested within 30 days of its service.
Study Guide – 20F-H2020055-REL
Study Guide: Tomisak v. Arrowhead Lakes Condominium Association
This study guide provides a review of the administrative hearing decision in case number 20F-H2020055-REL, involving Petitioner Robert Tomisak and Respondent Arrowhead Lakes Condominium Association. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms to test and deepen understanding of the case.
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Short-Answer Quiz
Instructions: Answer the following ten questions in 2-3 complete sentences, based entirely on the information provided in the case document.
1. Who were the petitioner and the respondent in this case, and what was their established relationship?
2. What specific document and data did the petitioner request from the respondent in his email dated March 11, 2020?
3. On what legal grounds did the respondent deny the petitioner’s request? Cite the specific statutory provision they referenced.
4. Identify the three governing documents or statutes that the petitioner alleged the respondent had violated.
5. What information was the respondent, through its property manager Terri Troy, willing to provide to the petitioner?
6. What was the central reason cited by the Administrative Law Judge in the “Conclusions of Law” for dismissing the petition?
7. Define the “preponderance of the evidence” standard and identify which party had the burden of meeting this standard.
8. What authority did the petitioner cite during the hearing to support his argument that email addresses do not constitute “personal information”?
9. According to Property Manager Terri Troy’s testimony, when and why did the content of the Membership Register change?
10. What was the final order issued by the Administrative Law Judge on July 17, 2020?
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Answer Key
1. The petitioner was Robert Tomisak, who owns condominium unit 1902 in the Arrowhead Lakes development. The respondent was the Arrowhead Lakes Condominium Association, of which the petitioner is a member.
2. The petitioner requested an electronic copy of the “Owner’s Roster with emails.” He specifically wanted a membership list that included the email addresses of the other condominium owners.
3. The respondent denied the request based on A.R.S. § 33-1258(B)(4). They argued that this provision allows an association to withhold the “personal records of an individual member,” and they considered email addresses to fall under this category.
4. The petitioner alleged the respondent violated its Covenants, Conditions, and Restrictions (CC&Rs) Article 11, Section 4.8; its Bylaws, Article 10.3; and Arizona Revised Statute (A.R.S.) § 33-1258.
5. The respondent was willing to provide the Membership Register, which included the names, unit numbers, and mailing addresses of the members. However, this register did not contain email addresses.
6. The judge dismissed the petition because the petitioner did not have the right to a record that does not exist—namely, a Membership Register containing email addresses. The judge concluded there was no requirement in the governing provisions for the respondent to create such a document.
7. A “preponderance of the evidence” is the standard of proof requiring the trier of fact to be convinced that a contention is more probably true than not. The petitioner, Robert Tomisak, bore the burden of establishing his claim by this standard.
8. During the hearing, the petitioner cited “the internet” and “California case law” as his authority for the proposition that email addresses were not considered personal information.
9. Terri Troy testified that the Membership Register previously contained email addresses but that this practice was stopped beginning in 2018. The change was made based on the association’s belief that email addresses were the “personal records” of the owners.
10. The final order stated that no action was required of the respondent and that the petition was dismissed.
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Essay Questions
Instructions: The following questions are designed for a longer, essay-style response. Use the case document to formulate a detailed and well-supported argument.
1. Analyze the central legal conflict in this case. Discuss the petitioner’s interpretation of a member’s right to access records under the CC&Rs, Bylaws, and A.R.S. § 33-1258 versus the respondent’s interpretation, focusing on the exemption for “personal records.”
2. Evaluate the evidence presented by both the petitioner and the respondent during the July 9, 2020 hearing. Explain why the judge ultimately found that the petitioner failed to meet the “preponderance of the evidence” standard.
3. The judge’s decision rested heavily on the finding that the respondent was not obligated to create a document that did not exist. Discuss the significance of this finding. How might the case outcome have differed if the Membership Register still actively contained member email addresses at the time of the request?
4. Discuss the concept of “burden of proof” as it applies to this administrative hearing. Explain why this burden fell upon the petitioner and how the failure to meet this evidentiary standard was a determinative factor in the dismissal of the petition.
5. Examine the roles and interaction of the governing documents (CC&Rs, Bylaws) and state law (A.R.S. § 33-1258) in this dispute. Which provisions offered the petitioner the right to inspect records, and which specific clause provided the strongest defense for the respondent?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The official who presides over the evidentiary hearing at the Office of Administrative Hearings and issues a decision. In this case, Sondra J. Vanella.
A.R.S. § 33-1258
The Arizona Revised Statute that mandates associations make financial and other records “reasonably available” to members, while also providing exceptions for withholding certain information, such as “personal, health or financial records of an individual member.”
Association
The Arrowhead Lakes Condominium Association, a condominium unit owners’ association responsible for managing the Arrowhead Lakes development.
Bylaws
The rules governing the internal operations of the association. Section 10.3 is referenced, which grants members the right to inspect the “membership register” and other books and records.
Covenants, Conditions, and Restrictions. These are the primary governing legal documents for the condominium development. Section 11.4.8 is referenced, which requires the association to make its books and records available to owners.
Membership Register
A formal list of the members of the association. The respondent’s register included names and addresses with unit numbers but, as of 2018, no longer included email addresses.
Petitioner
The party who files a petition to initiate a legal proceeding. In this case, Robert Tomisak, a condominium owner and member of the association.
Preponderance of the Evidence
The standard of proof required in this administrative hearing. It is met when the evidence presented is sufficient to “incline a fair and impartial mind to one side of the issue rather than the other,” making a contention more probably true than not.
Respondent
The party against whom a petition is filed. In this case, the Arrowhead Lakes Condominium Association.
Blog Post – 20F-H2020055-REL
He Sued His Condo Association for an Email List. The Judge’s Reason for Saying No Will Surprise You.
If you live in a condominium or a community governed by a homeowners’ association, you’ve likely wondered what official records you’re entitled to see. From financial statements to meeting minutes, these documents are the backbone of a transparent community. But what happens when the information you want isn’t in a format the association readily provides?
This was the central conflict for Robert Tomisak, a condominium owner in Glendale, Arizona. At 7:33 a.m. on March 11, 2020, he sent an email to his association requesting an electronic copy of the “Owner’s Roster with emails.” Less than an hour later, at 8:23 a.m., the property manager refused. Believing he was legally entitled to the list, Mr. Tomisak sued. When the case went before an administrative law judge, the final decision hinged on a simple but powerful distinction that most people would never see coming. This case reveals some surprising truths about our rights to information and how they are applied in the real world.
1. Takeaway #1: Your right is to inspectexistingrecords, not to have new ones created for you.
The core of the judge’s decision came down to a simple, factual matter. While Mr. Tomisak had a legal right to inspect association records, the specific document he requested—a Membership Register that included email addresses—did not actually exist.
According to testimony from property manager Terri Troy, the association was perfectly willing to provide the official Membership Register, which contained owner names and mailing addresses. However, she clarified that the association had stopped including email addresses in that specific record back in 2018. The judge found this fact to be decisive. While the petitioner had the right to access existing records, the association had no legal duty to create a new one for him. The judge’s “Conclusions of Law” put it in unambiguous terms:
Petitioner does not have the right to a record that does not exist, i.e., a Membership Register containing email addresses. Further, there is no requirement in the above provisions that Respondent has an obligation to create such a document.
This is a counter-intuitive but crucial distinction. Many people assume that if an organization possesses individual pieces of data (like names in one file and emails in another), they are obligated to compile that data into the format you request. This ruling clarifies that the legal obligation is to provide access to records as they are currently maintained, not to perform data-compilation tasks on demand. For association boards, this is a critical clarification of their duties; for homeowners, it’s a lesson in the power of a precise request.
2. Takeaway #2: The legal definition of “personal records” can be surprisingly ambiguous.
The central argument between the two parties revolved around privacy. Mr. Tomisak requested the email list citing an Arizona statute (A.R.S. § 33-1258) that grants members access to association records. In response, Ms. Troy denied the request by citing a specific exemption in that same law—A.R.S. § 33-1258(B)(4)—which allows an association to withhold “personal… records of an individual member.” Ms. Troy believed email addresses fell under this category; Mr. Tomisak argued they did not.
Crucially, Mr. Tomisak acknowledged during the hearing that he already had access to the mailing addresses for all units. His demand was not about the fundamental ability to communicate with his neighbors, but about the specific method. This reframes the dispute away from pure access-to-information and toward convenience and the definition of privacy.
However, when it came time to define “personal records,” both sides faltered. The petitioner cited “the internet” and “California case law” as his authority—a common mistake litigants make, as vague or non-binding sources hold little weight with a judge focused on specific state statutes. The judge noted that “Neither party cited to any relevant or persuasive legal authority to establish the definition of ‘personal records’ as referenced in the relevant statute.” This failure by both parties essentially forced the judge’s hand, allowing her to bypass the murky privacy debate and settle the case on the much clearer, indisputable fact that the requested record did not exist.
3. Takeaway #3: Even with clear rules, the burden of proof is always on the person making the claim.
On paper, the rules seemed to be in the petitioner’s favor. Section 11.4.8 of the community’s CC&Rs, Section 10.3 of its Bylaws, and the state statute A.R.S. § 33-1258 all grant members the right to inspect association records. So why did he lose?
The answer lies in the legal concept of the “burden of proof.” According to the hearing decision, the petitioner “bears the burden of proof to establish that Respondent violated applicable statutes, CC&Rs, and/or Bylaws by a preponderance of the evidence.”
“Preponderance of the evidence” simply means evidence that is more convincing and more likely true than not. In this case, because the petitioner could not prove that the specific document he wanted—a Membership Register containing emails—actually existed, he failed to meet this burden. He could not convince the judge that the association had violated its duties because the duty he claimed they violated (providing a non-existent record) was not one they actually had. This serves as a practical lesson for any homeowner: having a right on paper is not enough; you must be able to prove that the specific right was violated with convincing evidence.
Conclusion: A Lesson in Specificity
The case of Tomisak vs. Arrowhead Lakes Condominium Association is a masterclass in how legal rights and obligations are often more specific and literal than we assume. The final decision wasn’t based on broad principles of privacy versus access, but on the simple, verifiable fact that a non-existent document cannot be produced.
The judge’s final order was to dismiss the petition, requiring no action from the condo association. This case forces every resident and board member to ask a crucial question: Are you fighting over a principle, or are you making a specific request for a real, existing document? In the eyes of the law, only one of those will win you the day.
Case Participants
Petitioner Side
Robert Tomisak(petitioner) Appeared on his own behalf; also testified
Respondent Side
Terri Troy(property manager) Arrowhead Lakes Condominium Association / AS&A Property Management, Inc. Appeared and testified on behalf of Respondent
Neutral Parties
Sondra J. Vanella(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
The Administrative Law Judge dismissed the petition, finding that the Petitioner failed to meet the burden of proof that the Condominium Association violated its governing documents or state statute regarding record inspection, specifically because the Association did not possess and was not required to create a Membership Register containing unit owners' email addresses.
Why this result: Petitioner failed to establish by a preponderance of the evidence that Respondent violated the provisions of CC&Rs Section 11.4.8, Bylaws Section 10.3, or A.R.S. § 33-1158 (or § 33-1258) because the requested record (a Membership Register containing email addresses) did not exist, and the Association was not obligated to create it.
Key Issues & Findings
Refusal to provide access to the membership register (Owner Roster with emails)
Petitioner alleged the Respondent violated governing documents and statute by refusing access to the membership register containing email addresses. Respondent argued email addresses were protected 'personal records' under A.R.S. § 33-1258(B)(4). The ALJ found the Petitioner failed to prove a violation because the requested document (a Membership Register containing emails) did not exist, and Respondent had no obligation to create it.
Orders: The petition is dismissed and no action is required of Respondent.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 33-1258
CC&Rs 11.4.8
Bylaws 10.3
Analytics Highlights
Topics: records inspection, membership roster, email addresses, HOA records, condominium association, A.R.S. 33-1258
Additional Citations:
A.R.S. § 32-2199.01
A.R.S. § 33-1258
A.R.S. § 33-1258(B)(4)
A.R.S. § 33-1158
CC&Rs 11.4.8
Bylaws 10.3
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.R.S. §32-2199.02(B)
A.R.S. § 41-1092.09
Video Overview
Audio Overview
Decision Documents
20F-H2020055-REL Decision – 807817.pdf
Uploaded 2025-10-09T03:35:16 (107.3 KB)
Briefing Doc – 20F-H2020055-REL
Administrative Hearing Briefing: Tomisak v. Arrowhead Lakes Condominium Association
Executive Summary
This briefing document outlines the findings and decision in the case of Robert Tomisak versus the Arrowhead Lakes Condominium Association (Case No. 20F-H2020055-REL), heard in the Office of Administrative Hearings. The petitioner, Mr. Tomisak, alleged that the Association violated its governing documents and Arizona state law by refusing his request for an owner roster that included member email addresses. The Association countered that email addresses constitute protected personal information and, more critically, that a membership register containing such information no longer exists.
The Administrative Law Judge ultimately dismissed the petition. The decision did not hinge on whether email addresses are “personal records” under the law. Instead, the ruling was based on the factual determination that the Association cannot be compelled to produce a document that it does not maintain. Since the Association had ceased including email addresses in its Membership Register in 2018, the judge concluded that the petitioner had no right to a non-existent record and had failed to meet the burden of proof required to show a violation.
I. Case Overview
Case Name
Robert Tomisak v. Arrowhead Lakes Condominium Association
Case Number
20F-H2020055-REL
Office of Administrative Hearings
Administrative Law Judge
Sondra J. Vanella
Petitioner
Robert Tomisak, Owner of Unit 1902 (Appeared on his own behalf)
Respondent
Arrowhead Lakes Condominium Association (Represented by Property Manager Terri Troy)
Hearing Date
July 9, 2020
Decision Date
July 17, 2020
II. Petitioner’s Allegations
On April 15, 2020, Robert Tomisak filed a single-issue petition alleging that the Arrowhead Lakes Condominium Association had violated its own governing documents and Arizona state law. The core of the complaint was the Association’s refusal to fulfill his March 11, 2020, email request “to provide access to the membership register” containing owner email addresses.
Mr. Tomisak specifically cited violations of the following provisions:
• Covenants, Conditions, and Restrictions (CC&Rs): Article 11, Section 4.8
• Bylaws: Article 10.3
• Arizona Revised Statutes (A.R.S.): § 33-1258
III. Respondent’s Position and Defense
The Association, through its property management company AS&A Property Management, Inc., and represented by Property Manager Terri Troy, denied all allegations. The defense rested on two key arguments:
1. Privacy Exemption: The Association contended that members’ email addresses are “personal records” and therefore exempt from disclosure under A.R.S. § 33-1258(B)(4), which protects the “personal, health or financial records of an individual member.”
2. Non-Existence of the Record: Ms. Troy testified that while the Association would readily provide the official Membership Register (containing names and addresses), this document no longer includes email addresses. This practice of excluding emails from the register began in 2018.
IV. Key Evidence and Testimony
The March 11, 2020 Email Exchange
The dispute originated with a direct email exchange between the petitioner and the property manager.
• Petitioner’s Request (7:33 a.m.): Mr. Tomisak sent an email with the subject line “Owner Roster” stating:
• Respondent’s Denial (8:23 a.m.): Ms. Troy responded with a direct refusal, citing the statutory exemption for personal information:
Hearing Testimony
During the July 9, 2020 hearing, both parties presented their arguments:
• Robert Tomisak (Petitioner): Acknowledged that he already had access to member mailing addresses but specifically required their email addresses. He argued that email addresses are not “personal information” and cited “the internet” and “California case law” as authority for this position.
• Terri Troy (Respondent): Reiterated the Association’s willingness to provide the existing Membership Register, which contains names, addresses, and unit numbers. She explained that email addresses had been removed from this register starting in 2018 and that her refusal was based on the belief that emails are protected “personal records” under A.R.S. § 33-1258(B)(4).
The Administrative Law Judge noted that neither party cited “any relevant or persuasive legal authority” to formally define “personal records” as used in the statute.
V. Legal Framework and Governing Documents
The case centered on the interpretation of three key provisions granting members access to Association records.
Document
Section
Key Provision
11.4.8
“The Association shall make available to Owners… current copies of the Declaration, Articles, Bylaws, rules of the Association and the books, records, and financial statements of the Association.”
Bylaws
“The membership register… shall be made available for inspection and copying by Members of the Association… for a purpose reasonably related to their interests as Members…”
A.R.S.
§ 33-1258(A)
“all financial and other records of the association shall be made reasonably available for examination by any member…”
A.R.S.
§ 33-1258(B)(4)
“Books and records… may be withheld from disclosure to the extent that the portion withheld relates to… Personal, health or financial records of an individual member of the association…”
VI. Administrative Law Judge’s Findings and Order
Burden of Proof
The judge established that the petitioner, Mr. Tomisak, bore the burden of proof to demonstrate by a “preponderance of the evidence” that the Association had committed the alleged violations. A preponderance of evidence is defined as that which is sufficient to “incline a fair and impartial mind to one side of the issue rather than the other.”
Central Conclusion
The judge’s ruling was not based on the privacy argument regarding whether email addresses are “personal records.” Instead, the decision was grounded in a more fundamental point of fact regarding the existence of the requested document. The judge’s decisive conclusion of law stated:
While Petitioner has the right to enforce the requirements of the above provisions, Petitioner does not have the right to a record that does not exist, i.e., a Membership Register containing email addresses. Further, there is no requirement in the above provisions that Respondent has an obligation to create such a document.
Final Ruling
Based on this central finding, the judge held that Mr. Tomisak failed to meet his burden of proof and did not establish that the Association had violated its CC&Rs, its Bylaws, or A.R.S. § 33-1158.
IT IS ORDERED that no action is required of Respondent in this matter and that the petition is dismissed. The order is binding unless a rehearing is requested within 30 days of its service.
Study Guide – 20F-H2020055-REL
Study Guide: Tomisak v. Arrowhead Lakes Condominium Association
This study guide provides a review of the administrative hearing decision in case number 20F-H2020055-REL, involving Petitioner Robert Tomisak and Respondent Arrowhead Lakes Condominium Association. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms to test and deepen understanding of the case.
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Short-Answer Quiz
Instructions: Answer the following ten questions in 2-3 complete sentences, based entirely on the information provided in the case document.
1. Who were the petitioner and the respondent in this case, and what was their established relationship?
2. What specific document and data did the petitioner request from the respondent in his email dated March 11, 2020?
3. On what legal grounds did the respondent deny the petitioner’s request? Cite the specific statutory provision they referenced.
4. Identify the three governing documents or statutes that the petitioner alleged the respondent had violated.
5. What information was the respondent, through its property manager Terri Troy, willing to provide to the petitioner?
6. What was the central reason cited by the Administrative Law Judge in the “Conclusions of Law” for dismissing the petition?
7. Define the “preponderance of the evidence” standard and identify which party had the burden of meeting this standard.
8. What authority did the petitioner cite during the hearing to support his argument that email addresses do not constitute “personal information”?
9. According to Property Manager Terri Troy’s testimony, when and why did the content of the Membership Register change?
10. What was the final order issued by the Administrative Law Judge on July 17, 2020?
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Answer Key
1. The petitioner was Robert Tomisak, who owns condominium unit 1902 in the Arrowhead Lakes development. The respondent was the Arrowhead Lakes Condominium Association, of which the petitioner is a member.
2. The petitioner requested an electronic copy of the “Owner’s Roster with emails.” He specifically wanted a membership list that included the email addresses of the other condominium owners.
3. The respondent denied the request based on A.R.S. § 33-1258(B)(4). They argued that this provision allows an association to withhold the “personal records of an individual member,” and they considered email addresses to fall under this category.
4. The petitioner alleged the respondent violated its Covenants, Conditions, and Restrictions (CC&Rs) Article 11, Section 4.8; its Bylaws, Article 10.3; and Arizona Revised Statute (A.R.S.) § 33-1258.
5. The respondent was willing to provide the Membership Register, which included the names, unit numbers, and mailing addresses of the members. However, this register did not contain email addresses.
6. The judge dismissed the petition because the petitioner did not have the right to a record that does not exist—namely, a Membership Register containing email addresses. The judge concluded there was no requirement in the governing provisions for the respondent to create such a document.
7. A “preponderance of the evidence” is the standard of proof requiring the trier of fact to be convinced that a contention is more probably true than not. The petitioner, Robert Tomisak, bore the burden of establishing his claim by this standard.
8. During the hearing, the petitioner cited “the internet” and “California case law” as his authority for the proposition that email addresses were not considered personal information.
9. Terri Troy testified that the Membership Register previously contained email addresses but that this practice was stopped beginning in 2018. The change was made based on the association’s belief that email addresses were the “personal records” of the owners.
10. The final order stated that no action was required of the respondent and that the petition was dismissed.
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Essay Questions
Instructions: The following questions are designed for a longer, essay-style response. Use the case document to formulate a detailed and well-supported argument.
1. Analyze the central legal conflict in this case. Discuss the petitioner’s interpretation of a member’s right to access records under the CC&Rs, Bylaws, and A.R.S. § 33-1258 versus the respondent’s interpretation, focusing on the exemption for “personal records.”
2. Evaluate the evidence presented by both the petitioner and the respondent during the July 9, 2020 hearing. Explain why the judge ultimately found that the petitioner failed to meet the “preponderance of the evidence” standard.
3. The judge’s decision rested heavily on the finding that the respondent was not obligated to create a document that did not exist. Discuss the significance of this finding. How might the case outcome have differed if the Membership Register still actively contained member email addresses at the time of the request?
4. Discuss the concept of “burden of proof” as it applies to this administrative hearing. Explain why this burden fell upon the petitioner and how the failure to meet this evidentiary standard was a determinative factor in the dismissal of the petition.
5. Examine the roles and interaction of the governing documents (CC&Rs, Bylaws) and state law (A.R.S. § 33-1258) in this dispute. Which provisions offered the petitioner the right to inspect records, and which specific clause provided the strongest defense for the respondent?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The official who presides over the evidentiary hearing at the Office of Administrative Hearings and issues a decision. In this case, Sondra J. Vanella.
A.R.S. § 33-1258
The Arizona Revised Statute that mandates associations make financial and other records “reasonably available” to members, while also providing exceptions for withholding certain information, such as “personal, health or financial records of an individual member.”
Association
The Arrowhead Lakes Condominium Association, a condominium unit owners’ association responsible for managing the Arrowhead Lakes development.
Bylaws
The rules governing the internal operations of the association. Section 10.3 is referenced, which grants members the right to inspect the “membership register” and other books and records.
Covenants, Conditions, and Restrictions. These are the primary governing legal documents for the condominium development. Section 11.4.8 is referenced, which requires the association to make its books and records available to owners.
Membership Register
A formal list of the members of the association. The respondent’s register included names and addresses with unit numbers but, as of 2018, no longer included email addresses.
Petitioner
The party who files a petition to initiate a legal proceeding. In this case, Robert Tomisak, a condominium owner and member of the association.
Preponderance of the Evidence
The standard of proof required in this administrative hearing. It is met when the evidence presented is sufficient to “incline a fair and impartial mind to one side of the issue rather than the other,” making a contention more probably true than not.
Respondent
The party against whom a petition is filed. In this case, the Arrowhead Lakes Condominium Association.
Blog Post – 20F-H2020055-REL
He Sued His Condo Association for an Email List. The Judge’s Reason for Saying No Will Surprise You.
If you live in a condominium or a community governed by a homeowners’ association, you’ve likely wondered what official records you’re entitled to see. From financial statements to meeting minutes, these documents are the backbone of a transparent community. But what happens when the information you want isn’t in a format the association readily provides?
This was the central conflict for Robert Tomisak, a condominium owner in Glendale, Arizona. At 7:33 a.m. on March 11, 2020, he sent an email to his association requesting an electronic copy of the “Owner’s Roster with emails.” Less than an hour later, at 8:23 a.m., the property manager refused. Believing he was legally entitled to the list, Mr. Tomisak sued. When the case went before an administrative law judge, the final decision hinged on a simple but powerful distinction that most people would never see coming. This case reveals some surprising truths about our rights to information and how they are applied in the real world.
1. Takeaway #1: Your right is to inspectexistingrecords, not to have new ones created for you.
The core of the judge’s decision came down to a simple, factual matter. While Mr. Tomisak had a legal right to inspect association records, the specific document he requested—a Membership Register that included email addresses—did not actually exist.
According to testimony from property manager Terri Troy, the association was perfectly willing to provide the official Membership Register, which contained owner names and mailing addresses. However, she clarified that the association had stopped including email addresses in that specific record back in 2018. The judge found this fact to be decisive. While the petitioner had the right to access existing records, the association had no legal duty to create a new one for him. The judge’s “Conclusions of Law” put it in unambiguous terms:
Petitioner does not have the right to a record that does not exist, i.e., a Membership Register containing email addresses. Further, there is no requirement in the above provisions that Respondent has an obligation to create such a document.
This is a counter-intuitive but crucial distinction. Many people assume that if an organization possesses individual pieces of data (like names in one file and emails in another), they are obligated to compile that data into the format you request. This ruling clarifies that the legal obligation is to provide access to records as they are currently maintained, not to perform data-compilation tasks on demand. For association boards, this is a critical clarification of their duties; for homeowners, it’s a lesson in the power of a precise request.
2. Takeaway #2: The legal definition of “personal records” can be surprisingly ambiguous.
The central argument between the two parties revolved around privacy. Mr. Tomisak requested the email list citing an Arizona statute (A.R.S. § 33-1258) that grants members access to association records. In response, Ms. Troy denied the request by citing a specific exemption in that same law—A.R.S. § 33-1258(B)(4)—which allows an association to withhold “personal… records of an individual member.” Ms. Troy believed email addresses fell under this category; Mr. Tomisak argued they did not.
Crucially, Mr. Tomisak acknowledged during the hearing that he already had access to the mailing addresses for all units. His demand was not about the fundamental ability to communicate with his neighbors, but about the specific method. This reframes the dispute away from pure access-to-information and toward convenience and the definition of privacy.
However, when it came time to define “personal records,” both sides faltered. The petitioner cited “the internet” and “California case law” as his authority—a common mistake litigants make, as vague or non-binding sources hold little weight with a judge focused on specific state statutes. The judge noted that “Neither party cited to any relevant or persuasive legal authority to establish the definition of ‘personal records’ as referenced in the relevant statute.” This failure by both parties essentially forced the judge’s hand, allowing her to bypass the murky privacy debate and settle the case on the much clearer, indisputable fact that the requested record did not exist.
3. Takeaway #3: Even with clear rules, the burden of proof is always on the person making the claim.
On paper, the rules seemed to be in the petitioner’s favor. Section 11.4.8 of the community’s CC&Rs, Section 10.3 of its Bylaws, and the state statute A.R.S. § 33-1258 all grant members the right to inspect association records. So why did he lose?
The answer lies in the legal concept of the “burden of proof.” According to the hearing decision, the petitioner “bears the burden of proof to establish that Respondent violated applicable statutes, CC&Rs, and/or Bylaws by a preponderance of the evidence.”
“Preponderance of the evidence” simply means evidence that is more convincing and more likely true than not. In this case, because the petitioner could not prove that the specific document he wanted—a Membership Register containing emails—actually existed, he failed to meet this burden. He could not convince the judge that the association had violated its duties because the duty he claimed they violated (providing a non-existent record) was not one they actually had. This serves as a practical lesson for any homeowner: having a right on paper is not enough; you must be able to prove that the specific right was violated with convincing evidence.
Conclusion: A Lesson in Specificity
The case of Tomisak vs. Arrowhead Lakes Condominium Association is a masterclass in how legal rights and obligations are often more specific and literal than we assume. The final decision wasn’t based on broad principles of privacy versus access, but on the simple, verifiable fact that a non-existent document cannot be produced.
The judge’s final order was to dismiss the petition, requiring no action from the condo association. This case forces every resident and board member to ask a crucial question: Are you fighting over a principle, or are you making a specific request for a real, existing document? In the eyes of the law, only one of those will win you the day.
Case Participants
Petitioner Side
Robert Tomisak(petitioner) Appeared on his own behalf; also testified
Respondent Side
Terri Troy(property manager) Arrowhead Lakes Condominium Association / AS&A Property Management, Inc. Appeared and testified on behalf of Respondent
Neutral Parties
Sondra J. Vanella(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
The Petition was upheld on all issues asserted by the Petitioner. The Respondent was found in violation of A.R.S. § 33-1250(C) (failure to provide election documents), A.R.S. § 33-1248(B) (failure to hold an annual meeting in 2019), and Article 3, Section 2 of the Bylaws (improperly prohibiting write-in ballots). Respondent was ordered to supply Petitioner with relevant documents and refund the Petitioner's filing fee of $1,500.00. No Civil Penalty was found appropriate.
Respondent failed to provide Petitioner with the required election materials and documentation from the October 2018 elections, violating statutory requirements for retention and availability of these materials for owner inspection.
Orders: Respondent ordered to supply Petitioner with the relevant documents, pursuant to A.R.S. § 33-1250(C), within ten (10) days of the Order.
Filing fee: $1,500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1250(C)
Open meetings; exceptions
Respondent postponed its required yearly 2019 meeting until January 2020, resulting in a failure to hold a unit owners' association meeting in 2019 as required by statute.
Orders: Petition upheld on this issue.
Filing fee: $1,500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1248(B)
Selection
Respondent's board of directors declared write-in ballots invalid for the November 20, 2019, election. Since the Bylaws were silent on prohibiting write-in ballots, Respondent failed to show how the ballots were invalid.
Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
Video Overview
Audio Overview
Decision Documents
20F-H2019033-REL Decision – 778923.pdf
Uploaded 2026-01-23T17:31:15 (108.5 KB)
Briefing Doc – 20F-H2019033-REL
Briefing Document: Bischoff v. Country Hills West Condominium Association
Executive Summary
This document synthesizes the findings and decision in the case of Donna M. Bischoff v. Country Hills West Condominium Association, Inc. (No. 20F-H2019033-REL), heard by the Arizona Office of Administrative Hearings. The Administrative Law Judge found entirely in favor of the Petitioner, Donna M. Bischoff, concluding that the Respondent, Country Hills West Condominium Association (“the Association”), committed multiple violations of Arizona state statutes and its own governing documents.
The core violations upheld by the court are:
1. Failure to Hold a Required Annual Meeting: The Association violated A.R.S. § 33-1248(B) by failing to hold its required annual meeting within the 2019 calendar year, repeatedly postponing it until January 2020.
2. Failure to Provide Election Records: The Association violated A.R.S. § 33-1250(C) by failing to provide the Petitioner with complete election materials for inspection, including ballots, envelopes, and sign-in sheets from the October 2018 election.
3. Improper Prohibition of Write-In Ballots: The Association violated Article 3, Section 2 of its Bylaws by unilaterally prohibiting write-in ballots for the 2019 election, despite its governing documents being silent on the issue.
As a result, the Association was ordered to provide the requested documents to the Petitioner within ten days and to reimburse her $1,500 filing fee within thirty days. The decision underscores the legal obligation of homeowners’ associations to adhere strictly to statutory requirements for meetings, elections, and record transparency.
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I. Case Overview
The dispute was adjudicated by the Office of Administrative Hearings following a petition filed by homeowner Donna M. Bischoff with the Arizona Department of Real Estate on December 11, 2019.
Case Detail
Information
Case Name
Donna M Bischoff, Petitioner, v. Country Hills West Condominium Association, Inc., Respondent
Case Number
20F-H2019033-REL
Adjudicator
Administrative Law Judge Antara Nath Rivera
Hearing Date
March 10, 2020
Decision Date
March 30, 2020
Petitioner Representative
Donna M. Bischoff (on her own behalf)
Respondent Representative
Doug Meyer, President and Director
II. Petitioner’s Allegations
The Petitioner, Donna M. Bischoff, asserted that the Country Hills West Condominium Association committed violations of state law and its own governing documents. The specific allegations were:
• Violation of A.R.S. § 33-1248(B): Failure to hold the mandatory annual unit owners’ association meeting within the 2019 calendar year.
• Violation of A.R.S. § 33-1250(C): Failure to make election materials, including ballots and related items, available for inspection by a unit owner.
• Violation of Bylaws Article 3, Section 2: Improperly invalidating election ballots by prohibiting write-in candidates without any authority from the governing documents.
The Petitioner bore the burden of proof to establish these violations 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.”
III. Core Issues and Factual Findings
The hearing established several key facts that formed the basis of the Judge’s decision. The testimony from both Ms. Bischoff and the Association’s President, Doug Meyer, was central to these findings.
A. Failure to Hold the 2019 Annual Meeting
• Timeline of Events: The Association’s required annual meeting for 2019 was initially scheduled for November 20, 2019. It was subsequently postponed three times: first to December 19, 2019; then to December 30, 2019; and ultimately held on January 24, 2020.
• Respondent’s Justification: Mr. Meyer testified that the postponements were necessary because write-in candidates appeared on the ballot, which the board had prohibited. He stated that the board “needed time to reprint the ballot and mail them out.”
• Conclusion of Law: The evidence was undisputed that no annual meeting took place during the 2019 calendar year. The Judge concluded that by postponing the meeting into the following year, the Association was in direct violation of A.R.S. § 33-1248(B), which mandates that “A meeting of the unit owners’ association shall be held at least once each year.”
B. Denial of Access to Election Records
• Petitioner’s Request: In October 2018, Ms. Bischoff requested to see the election results from the October 2018 meeting, specifically seeking to know which units had voted.
• Respondent’s Response: The Association initially did not provide the results. A few weeks prior to the March 2020 hearing, it supplied Ms. Bischoff with vote tallies and a list of unit members who voted. However, it failed to provide the full scope of required materials.
• Missing Documentation: The Association did not provide the “ballots, envelopes, related materials, and sign-in sheets” as mandated by statute for inspection.
• Respondent’s Justification: Mr. Meyer argued that no election actually occurred at the October 18, 2018, meeting because there was no quorum. He further made the admission that the Association had not achieved a quorum for any meeting in the preceding 20 years. He claimed that without an election, there was no obligation to publish ballots.
• Conclusion of Law: The Judge found that the Association violated A.R.S. § 33-1250(C). The statute requires that “Ballots, envelopes and related materials… shall be retained… and made available for unit owner inspection for at least one year.” The partial and delayed provision of records was insufficient to meet this legal requirement.
C. Improper Prohibition of Write-In Ballots
• The Dispute: The November 20, 2019, meeting was cancelled because some ballots contained write-in candidates. The board of directors informed members that write-in ballots were prohibited and would be “thrown out.”
• Petitioner’s Argument: Ms. Bischoff argued that the board could not “choose how to interpret a silent document.” She pointed out that the Bylaws and Articles of Incorporation do not prohibit write-in ballots and that the same board had allowed them in a 2017 election.
• Respondent’s Position: Mr. Meyer acknowledged that the Bylaws were silent on the issue but stated the Association needed to “figure out how to handle” them. A membership meeting to discuss the issue was held on December 30, 2019, but failed to achieve a quorum.
• Conclusion of Law: The Judge determined that the Association violated its own Bylaws. The decision states, “absent any clear language in the A.R.S. or the Bylaws prohibiting write in ballots, Respondent failed to show how the ballots were invalid.” The board’s unilateral prohibition was therefore found to be improper.
IV. Legal Conclusions and Final Order
The Administrative Law Judge upheld the petition on all issues, finding that the Petitioner had successfully proven her case by a preponderance of the evidence.
Final Order:
Based on the foregoing conclusions, IT IS ORDERED that:
1. The Petition filed by Donna M. Bischoff is upheld on all issues.
2. The Petitioner is deemed the prevailing party in the matter.
3. The Respondent must supply the Petitioner with the relevant election documents pursuant to A.R.S. § 33-1250(C) within ten (10) days of the Order.
4. The Respondent must pay the Petitioner’s filing fee of $1,500.00 directly to the Petitioner within thirty (30) days of the Order.
5. No Civil Penalty is found to be appropriate in this matter.
The Order is binding on the parties unless a request for rehearing is filed with the Commissioner of the Department of Real Estate within 30 days of the service of the Order.
Study Guide – 20F-H2019033-REL
Study Guide: Bischoff v. Country Hills West Condominium Association, Inc.
This study guide provides a review of the Administrative Law Judge Decision in case number 20F-H2019033-REL, concerning a dispute between a homeowner and a condominium association. It includes a quiz with an answer key, essay questions for deeper analysis, and a glossary of key terms found in the source document.
——————————————————————————–
Short-Answer Quiz
Instructions: Answer the following questions in 2-3 sentences each, based on the provided source document.
1. Who were the primary parties in the legal dispute, and what were their roles?
2. What specific violations did the Petitioner, Donna M. Bischoff, allege against the Respondent?
3. Why was the 2019 yearly meeting for the Country Hills West Condominium Association repeatedly rescheduled?
4. What was the Respondent’s position on the validity of write-in ballots for the November 20, 2019, election?
5. What information did the Petitioner request from the October 2018 election, and what was the initial response?
6. What is the definition of “quorum” according to the association’s Bylaws, and why was it significant in this case?
7. What is the legal standard of proof the Petitioner was required to meet in this hearing?
8. According to the decision, how did the Respondent violate A.R.S. § 33-1248(B) regarding association meetings?
9. According to the decision, how did the Respondent violate A.R.S. § 33-1250(C) regarding election materials?
10. What were the key components of the final Order issued by the Administrative Law Judge?
——————————————————————————–
Answer Key
1. The primary parties were Donna M. Bischoff, the Petitioner, and the Country Hills West Condominium Association, Inc., the Respondent. The Petitioner is the homeowner who filed the complaint, and the Respondent is the homeowners association accused of violations.
2. The Petitioner alleged violations of Arizona Revised Statutes (A.R.S.) § 33-1250(C) and § 33-1248(B), as well as Article 3, Section 2 of the association’s Bylaws. These allegations related to the handling of yearly meetings and elections.
3. The 2019 yearly meeting was initially scheduled for November 20, 2019, but was rescheduled three times, ultimately taking place in January 2020. The first cancellation was because some ballots contained write-in candidates, which the board deemed prohibited.
4. The Respondent’s representative, Doug Meyer, testified that members were informed that write-in ballots were not valid for the November 20, 2019, election. He stated that any ballots with write-in candidates would have been thrown out.
5. The Petitioner requested to see the election results from the October 2018 election, specifically wanting to know which units voted. While she was eventually given the voting tallies, the Respondent did not initially provide the requested results.
6. Quorum is defined in Article 4, Section 3 of the Bylaws. It was significant because the Respondent’s president, Mr. Meyer, acknowledged that the association had not achieved a quorum for its meetings in the last 20 years, and thus no election occurred at the October 18, 2018, meeting.
7. The Petitioner had the burden of proof to establish the alleged violations by a “preponderance of the evidence.” This standard is defined as proof that convinces the trier of fact that a contention is more probably true than not.
8. The Respondent violated A.R.S. § 33-1248(B) by failing to hold a required yearly meeting within the calendar year of 2019. The evidence showed that the meeting scheduled for 2019 was postponed until January 2020.
9. The Respondent violated A.R.S. § 33-1250(C) by failing to provide the Petitioner with all required election materials from the 2018 election. While vote tallies were eventually provided, the statute requires that ballots, envelopes, and related materials be retained and made available for inspection for at least one year.
10. The Administrative Law Judge’s Order upheld the Petition on all issues, deemed the Petitioner the prevailing party, and required the Respondent to supply the relevant documents within 10 days. The Order also mandated that the Respondent reimburse the Petitioner’s filing fee of $1,500.00 within 30 days.
——————————————————————————–
Essay Questions
Instructions: The following questions are designed for longer, more analytical responses. Use the information presented in the source document to construct a comprehensive argument for each prompt.
1. Analyze the Respondent’s handling of the write-in ballot issue for the 2019 election. Discuss the legal basis (or lack thereof) for their actions as presented in the hearing, and explain why the Administrative Law Judge ultimately ruled that their prohibition of these ballots was a violation of the Bylaws.
2. Explain the concept of “quorum” as it relates to this case. How did the association’s failure to achieve a quorum for 20 years impact its governance, specifically regarding the 2018 meeting and the Respondent’s obligation to produce election records?
3. Describe in detail the specific violations of the Arizona Revised Statutes (A.R.S.) that the Country Hills West Condominium Association was found to have committed. For each statute (A.R.S. § 33-1248(B) and A.R.S. § 33-1250(C)), detail the legal requirement and explain how the Respondent’s actions failed to meet that standard.
4. Discuss the legal standard of “preponderance of the evidence.” Using testimony and evidence presented by both the Petitioner and the Respondent, explain how the Petitioner successfully met this burden of proof for her allegations.
5. Outline the final Order issued by the Administrative Law Judge. Beyond the simple outcome, explain the significance of each component of the order, including the validation of the petition, the designation of a “prevailing party,” the directive to supply documents, and the financial remedy awarded.
——————————————————————————–
Glossary of Key Terms
Definition
Administrative Law Judge
An official who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions and orders. In this case, Antara Nath Rivera.
Arizona Department of Real Estate (Department)
The state agency with which a homeowner or planned community organization can file a petition for a hearing concerning violations of community documents or statutes.
Arizona Revised Statutes (A.R.S.)
The collection of laws enacted by the Arizona state legislature. The specific statutes cited were A.R.S. §§ 33-1250(C) and 33-1248(B).
Bylaws
The rules and regulations that govern the internal operations of an organization, such as a homeowners association. In this case, the Bylaws of Country Hills West Association, Inc. were a key document.
Homeowners Association (HOA)
An organization in a subdivision, planned community, or condominium that makes and enforces rules for the properties and its residents.
Office of Administrative Hearings
The state agency where petitions filed with the Department of Real Estate are heard before an Administrative Law Judge.
Petitioner
The party who files a petition or brings a legal action against another party. In this case, Donna M. Bischoff.
Preponderance of the evidence
The standard of proof in this civil administrative case. It is met when the evidence presented is sufficient to “incline a fair and impartial mind to one side of the issue rather than the other.”
Quorum
The minimum number of members of an assembly or society that must be present at any of its meetings to make the proceedings of that meeting valid. The Respondent had not achieved quorum for 20 years.
Respondent
The party against whom a petition is filed or a legal action is brought. In this case, Country Hills West Condominium Association, Inc.
Blog Post – 20F-H2019033-REL
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20F-H2019033-REL
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This source is an Administrative Law Judge Decision from the Office of Administrative Hearings regarding a dispute between Donna M. Bischoff, the Petitioner, and Country Hills West Condominium Association, Inc., the Respondent. The document details the hearing held on March 10, 2020, where the Petitioner alleged the Condominium Association violated Arizona Revised Statutes (A.R.S.) and the association’s Bylaws. Specifically, the Petitioner claimed violations related to the failure to hold a required yearly meeting in 2019, the failure to provide election materials for inspection, and the improper prohibition of write-in ballots where the Bylaws were silent. The Administrative Law Judge ultimately upheld the Petition on all issues, finding the Respondent in violation, and ordered the Association to provide the requested documents and pay the Petitioner’s $1,500.00 filing fee.
What were the specific legal violations found against the Condominium Association regarding meetings and documents?
How did the lack of clarity in the Bylaws regarding write-in ballots impact the association’s actions?
What was the ultimate outcome of this administrative hearing, including the ordered remedies for the petitioner?
Based on 1 source
Case Participants
Petitioner Side
Donna M Bischoff(petitioner) Appeared on her own behalf
Respondent Side
Doug Meyer(president, director, witness) Country Hills West Condominium Association, Inc. Appeared and testified on behalf of Respondent
Neutral Parties
Antara Nath Rivera(ALJ) OAH
Judy Lowe(commissioner) Arizona Department of Real Estate Decision transmitted electronically to Commissioner
The Petition was upheld on all issues asserted by the Petitioner. The Respondent was found in violation of A.R.S. § 33-1250(C) (failure to provide election documents), A.R.S. § 33-1248(B) (failure to hold an annual meeting in 2019), and Article 3, Section 2 of the Bylaws (improperly prohibiting write-in ballots). Respondent was ordered to supply Petitioner with relevant documents and refund the Petitioner's filing fee of $1,500.00. No Civil Penalty was found appropriate.
Respondent failed to provide Petitioner with the required election materials and documentation from the October 2018 elections, violating statutory requirements for retention and availability of these materials for owner inspection.
Orders: Respondent ordered to supply Petitioner with the relevant documents, pursuant to A.R.S. § 33-1250(C), within ten (10) days of the Order.
Filing fee: $1,500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1250(C)
Open meetings; exceptions
Respondent postponed its required yearly 2019 meeting until January 2020, resulting in a failure to hold a unit owners' association meeting in 2019 as required by statute.
Orders: Petition upheld on this issue.
Filing fee: $1,500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1248(B)
Selection
Respondent's board of directors declared write-in ballots invalid for the November 20, 2019, election. Since the Bylaws were silent on prohibiting write-in ballots, Respondent failed to show how the ballots were invalid.
Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
Video Overview
Audio Overview
Decision Documents
20F-H2019033-REL Decision – 778923.pdf
Uploaded 2025-10-09T03:34:47 (108.5 KB)
Briefing Doc – 20F-H2019033-REL
Briefing Document: Bischoff v. Country Hills West Condominium Association
Executive Summary
This document synthesizes the findings and decision in the case of Donna M. Bischoff v. Country Hills West Condominium Association, Inc. (No. 20F-H2019033-REL), heard by the Arizona Office of Administrative Hearings. The Administrative Law Judge found entirely in favor of the Petitioner, Donna M. Bischoff, concluding that the Respondent, Country Hills West Condominium Association (“the Association”), committed multiple violations of Arizona state statutes and its own governing documents.
The core violations upheld by the court are:
1. Failure to Hold a Required Annual Meeting: The Association violated A.R.S. § 33-1248(B) by failing to hold its required annual meeting within the 2019 calendar year, repeatedly postponing it until January 2020.
2. Failure to Provide Election Records: The Association violated A.R.S. § 33-1250(C) by failing to provide the Petitioner with complete election materials for inspection, including ballots, envelopes, and sign-in sheets from the October 2018 election.
3. Improper Prohibition of Write-In Ballots: The Association violated Article 3, Section 2 of its Bylaws by unilaterally prohibiting write-in ballots for the 2019 election, despite its governing documents being silent on the issue.
As a result, the Association was ordered to provide the requested documents to the Petitioner within ten days and to reimburse her $1,500 filing fee within thirty days. The decision underscores the legal obligation of homeowners’ associations to adhere strictly to statutory requirements for meetings, elections, and record transparency.
——————————————————————————–
I. Case Overview
The dispute was adjudicated by the Office of Administrative Hearings following a petition filed by homeowner Donna M. Bischoff with the Arizona Department of Real Estate on December 11, 2019.
Case Detail
Information
Case Name
Donna M Bischoff, Petitioner, v. Country Hills West Condominium Association, Inc., Respondent
Case Number
20F-H2019033-REL
Adjudicator
Administrative Law Judge Antara Nath Rivera
Hearing Date
March 10, 2020
Decision Date
March 30, 2020
Petitioner Representative
Donna M. Bischoff (on her own behalf)
Respondent Representative
Doug Meyer, President and Director
II. Petitioner’s Allegations
The Petitioner, Donna M. Bischoff, asserted that the Country Hills West Condominium Association committed violations of state law and its own governing documents. The specific allegations were:
• Violation of A.R.S. § 33-1248(B): Failure to hold the mandatory annual unit owners’ association meeting within the 2019 calendar year.
• Violation of A.R.S. § 33-1250(C): Failure to make election materials, including ballots and related items, available for inspection by a unit owner.
• Violation of Bylaws Article 3, Section 2: Improperly invalidating election ballots by prohibiting write-in candidates without any authority from the governing documents.
The Petitioner bore the burden of proof to establish these violations 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.”
III. Core Issues and Factual Findings
The hearing established several key facts that formed the basis of the Judge’s decision. The testimony from both Ms. Bischoff and the Association’s President, Doug Meyer, was central to these findings.
A. Failure to Hold the 2019 Annual Meeting
• Timeline of Events: The Association’s required annual meeting for 2019 was initially scheduled for November 20, 2019. It was subsequently postponed three times: first to December 19, 2019; then to December 30, 2019; and ultimately held on January 24, 2020.
• Respondent’s Justification: Mr. Meyer testified that the postponements were necessary because write-in candidates appeared on the ballot, which the board had prohibited. He stated that the board “needed time to reprint the ballot and mail them out.”
• Conclusion of Law: The evidence was undisputed that no annual meeting took place during the 2019 calendar year. The Judge concluded that by postponing the meeting into the following year, the Association was in direct violation of A.R.S. § 33-1248(B), which mandates that “A meeting of the unit owners’ association shall be held at least once each year.”
B. Denial of Access to Election Records
• Petitioner’s Request: In October 2018, Ms. Bischoff requested to see the election results from the October 2018 meeting, specifically seeking to know which units had voted.
• Respondent’s Response: The Association initially did not provide the results. A few weeks prior to the March 2020 hearing, it supplied Ms. Bischoff with vote tallies and a list of unit members who voted. However, it failed to provide the full scope of required materials.
• Missing Documentation: The Association did not provide the “ballots, envelopes, related materials, and sign-in sheets” as mandated by statute for inspection.
• Respondent’s Justification: Mr. Meyer argued that no election actually occurred at the October 18, 2018, meeting because there was no quorum. He further made the admission that the Association had not achieved a quorum for any meeting in the preceding 20 years. He claimed that without an election, there was no obligation to publish ballots.
• Conclusion of Law: The Judge found that the Association violated A.R.S. § 33-1250(C). The statute requires that “Ballots, envelopes and related materials… shall be retained… and made available for unit owner inspection for at least one year.” The partial and delayed provision of records was insufficient to meet this legal requirement.
C. Improper Prohibition of Write-In Ballots
• The Dispute: The November 20, 2019, meeting was cancelled because some ballots contained write-in candidates. The board of directors informed members that write-in ballots were prohibited and would be “thrown out.”
• Petitioner’s Argument: Ms. Bischoff argued that the board could not “choose how to interpret a silent document.” She pointed out that the Bylaws and Articles of Incorporation do not prohibit write-in ballots and that the same board had allowed them in a 2017 election.
• Respondent’s Position: Mr. Meyer acknowledged that the Bylaws were silent on the issue but stated the Association needed to “figure out how to handle” them. A membership meeting to discuss the issue was held on December 30, 2019, but failed to achieve a quorum.
• Conclusion of Law: The Judge determined that the Association violated its own Bylaws. The decision states, “absent any clear language in the A.R.S. or the Bylaws prohibiting write in ballots, Respondent failed to show how the ballots were invalid.” The board’s unilateral prohibition was therefore found to be improper.
IV. Legal Conclusions and Final Order
The Administrative Law Judge upheld the petition on all issues, finding that the Petitioner had successfully proven her case by a preponderance of the evidence.
Final Order:
Based on the foregoing conclusions, IT IS ORDERED that:
1. The Petition filed by Donna M. Bischoff is upheld on all issues.
2. The Petitioner is deemed the prevailing party in the matter.
3. The Respondent must supply the Petitioner with the relevant election documents pursuant to A.R.S. § 33-1250(C) within ten (10) days of the Order.
4. The Respondent must pay the Petitioner’s filing fee of $1,500.00 directly to the Petitioner within thirty (30) days of the Order.
5. No Civil Penalty is found to be appropriate in this matter.
The Order is binding on the parties unless a request for rehearing is filed with the Commissioner of the Department of Real Estate within 30 days of the service of the Order.
Study Guide – 20F-H2019033-REL
Study Guide: Bischoff v. Country Hills West Condominium Association, Inc.
This study guide provides a review of the Administrative Law Judge Decision in case number 20F-H2019033-REL, concerning a dispute between a homeowner and a condominium association. It includes a quiz with an answer key, essay questions for deeper analysis, and a glossary of key terms found in the source document.
——————————————————————————–
Short-Answer Quiz
Instructions: Answer the following questions in 2-3 sentences each, based on the provided source document.
1. Who were the primary parties in the legal dispute, and what were their roles?
2. What specific violations did the Petitioner, Donna M. Bischoff, allege against the Respondent?
3. Why was the 2019 yearly meeting for the Country Hills West Condominium Association repeatedly rescheduled?
4. What was the Respondent’s position on the validity of write-in ballots for the November 20, 2019, election?
5. What information did the Petitioner request from the October 2018 election, and what was the initial response?
6. What is the definition of “quorum” according to the association’s Bylaws, and why was it significant in this case?
7. What is the legal standard of proof the Petitioner was required to meet in this hearing?
8. According to the decision, how did the Respondent violate A.R.S. § 33-1248(B) regarding association meetings?
9. According to the decision, how did the Respondent violate A.R.S. § 33-1250(C) regarding election materials?
10. What were the key components of the final Order issued by the Administrative Law Judge?
——————————————————————————–
Answer Key
1. The primary parties were Donna M. Bischoff, the Petitioner, and the Country Hills West Condominium Association, Inc., the Respondent. The Petitioner is the homeowner who filed the complaint, and the Respondent is the homeowners association accused of violations.
2. The Petitioner alleged violations of Arizona Revised Statutes (A.R.S.) § 33-1250(C) and § 33-1248(B), as well as Article 3, Section 2 of the association’s Bylaws. These allegations related to the handling of yearly meetings and elections.
3. The 2019 yearly meeting was initially scheduled for November 20, 2019, but was rescheduled three times, ultimately taking place in January 2020. The first cancellation was because some ballots contained write-in candidates, which the board deemed prohibited.
4. The Respondent’s representative, Doug Meyer, testified that members were informed that write-in ballots were not valid for the November 20, 2019, election. He stated that any ballots with write-in candidates would have been thrown out.
5. The Petitioner requested to see the election results from the October 2018 election, specifically wanting to know which units voted. While she was eventually given the voting tallies, the Respondent did not initially provide the requested results.
6. Quorum is defined in Article 4, Section 3 of the Bylaws. It was significant because the Respondent’s president, Mr. Meyer, acknowledged that the association had not achieved a quorum for its meetings in the last 20 years, and thus no election occurred at the October 18, 2018, meeting.
7. The Petitioner had the burden of proof to establish the alleged violations by a “preponderance of the evidence.” This standard is defined as proof that convinces the trier of fact that a contention is more probably true than not.
8. The Respondent violated A.R.S. § 33-1248(B) by failing to hold a required yearly meeting within the calendar year of 2019. The evidence showed that the meeting scheduled for 2019 was postponed until January 2020.
9. The Respondent violated A.R.S. § 33-1250(C) by failing to provide the Petitioner with all required election materials from the 2018 election. While vote tallies were eventually provided, the statute requires that ballots, envelopes, and related materials be retained and made available for inspection for at least one year.
10. The Administrative Law Judge’s Order upheld the Petition on all issues, deemed the Petitioner the prevailing party, and required the Respondent to supply the relevant documents within 10 days. The Order also mandated that the Respondent reimburse the Petitioner’s filing fee of $1,500.00 within 30 days.
——————————————————————————–
Essay Questions
Instructions: The following questions are designed for longer, more analytical responses. Use the information presented in the source document to construct a comprehensive argument for each prompt.
1. Analyze the Respondent’s handling of the write-in ballot issue for the 2019 election. Discuss the legal basis (or lack thereof) for their actions as presented in the hearing, and explain why the Administrative Law Judge ultimately ruled that their prohibition of these ballots was a violation of the Bylaws.
2. Explain the concept of “quorum” as it relates to this case. How did the association’s failure to achieve a quorum for 20 years impact its governance, specifically regarding the 2018 meeting and the Respondent’s obligation to produce election records?
3. Describe in detail the specific violations of the Arizona Revised Statutes (A.R.S.) that the Country Hills West Condominium Association was found to have committed. For each statute (A.R.S. § 33-1248(B) and A.R.S. § 33-1250(C)), detail the legal requirement and explain how the Respondent’s actions failed to meet that standard.
4. Discuss the legal standard of “preponderance of the evidence.” Using testimony and evidence presented by both the Petitioner and the Respondent, explain how the Petitioner successfully met this burden of proof for her allegations.
5. Outline the final Order issued by the Administrative Law Judge. Beyond the simple outcome, explain the significance of each component of the order, including the validation of the petition, the designation of a “prevailing party,” the directive to supply documents, and the financial remedy awarded.
——————————————————————————–
Glossary of Key Terms
Definition
Administrative Law Judge
An official who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions and orders. In this case, Antara Nath Rivera.
Arizona Department of Real Estate (Department)
The state agency with which a homeowner or planned community organization can file a petition for a hearing concerning violations of community documents or statutes.
Arizona Revised Statutes (A.R.S.)
The collection of laws enacted by the Arizona state legislature. The specific statutes cited were A.R.S. §§ 33-1250(C) and 33-1248(B).
Bylaws
The rules and regulations that govern the internal operations of an organization, such as a homeowners association. In this case, the Bylaws of Country Hills West Association, Inc. were a key document.
Homeowners Association (HOA)
An organization in a subdivision, planned community, or condominium that makes and enforces rules for the properties and its residents.
Office of Administrative Hearings
The state agency where petitions filed with the Department of Real Estate are heard before an Administrative Law Judge.
Petitioner
The party who files a petition or brings a legal action against another party. In this case, Donna M. Bischoff.
Preponderance of the evidence
The standard of proof in this civil administrative case. It is met when the evidence presented is sufficient to “incline a fair and impartial mind to one side of the issue rather than the other.”
Quorum
The minimum number of members of an assembly or society that must be present at any of its meetings to make the proceedings of that meeting valid. The Respondent had not achieved quorum for 20 years.
Respondent
The party against whom a petition is filed or a legal action is brought. In this case, Country Hills West Condominium Association, Inc.
Blog Post – 20F-H2019033-REL
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20F-H2019033-REL
1 source
This source is an Administrative Law Judge Decision from the Office of Administrative Hearings regarding a dispute between Donna M. Bischoff, the Petitioner, and Country Hills West Condominium Association, Inc., the Respondent. The document details the hearing held on March 10, 2020, where the Petitioner alleged the Condominium Association violated Arizona Revised Statutes (A.R.S.) and the association’s Bylaws. Specifically, the Petitioner claimed violations related to the failure to hold a required yearly meeting in 2019, the failure to provide election materials for inspection, and the improper prohibition of write-in ballots where the Bylaws were silent. The Administrative Law Judge ultimately upheld the Petition on all issues, finding the Respondent in violation, and ordered the Association to provide the requested documents and pay the Petitioner’s $1,500.00 filing fee.
What were the specific legal violations found against the Condominium Association regarding meetings and documents?
How did the lack of clarity in the Bylaws regarding write-in ballots impact the association’s actions?
What was the ultimate outcome of this administrative hearing, including the ordered remedies for the petitioner?
Based on 1 source
Case Participants
Petitioner Side
Donna M Bischoff(petitioner) Appeared on her own behalf
Respondent Side
Doug Meyer(president, director, witness) Country Hills West Condominium Association, Inc. Appeared and testified on behalf of Respondent
Neutral Parties
Antara Nath Rivera(ALJ) OAH
Judy Lowe(commissioner) Arizona Department of Real Estate Decision transmitted electronically to Commissioner
CC&Rs Article VII Membership and Voting section 7.3.1 Voting Classes
Outcome Summary
The ALJ dismissed the petition because the Petitioner failed to sustain the burden of proof that the Vistoso Community Association committed a violation of Article VII, Section 7.3.1 by allowing certain owners to vote. The ALJ reasoned that the specific restriction on voting for those paying reduced assessments was inapplicable in this case.
Why this result: The restriction on voting found in Section 7.3.1 applies only when the owner is paying a reduced assessment 'pursuant to Section 8.3.' Since the reduced assessment period permitted under Section 8.3 had expired for the developer owners, they were not paying reduced assessments 'pursuant to Section 8.3,' and were therefore entitled to vote.
Key Issues & Findings
Alleged violation of community document regarding the voting rights of Developer Owners paying reduced assessments.
Petitioner filed a Homeowners Association (HOA) Dispute Process Petition alleging the Respondent HOA violated the community documents (CC&Rs Article VII, Section 7.3.1) by allowing Developer Owners (Vistoso Highlands and Pulte) to vote in an election while they were paying reduced assessments, which Petitioner argued was prohibited.
Orders: Petitioner’s petition is dismissed.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
A.R.S. § 32-2199
A.R.S. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)
Vazanno v. Superior Court
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5
BLACK’S LAW DICTIONARY
Analytics Highlights
Topics: HOA Election, Voting Rights, Reduced Assessment, Community Document Violation
Additional Citations:
A.R.S. § 32-2199
CC&Rs Article VII, Section 7.3.1
CC&Rs Article VIII, Section 8.3
A.R.S. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)
Vazanno v. Superior Court
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5
BLACK’S LAW DICTIONARY
A.R.S. § 32-2199.02(B)
A.R.S. § 32-2199.04
A.R.S. § 41-1092.09
Video Overview
Audio Overview
Decision Documents
20F-H2019014-REL Decision – 766242.pdf
Uploaded 2026-01-23T17:30:28 (48.3 KB)
20F-H2019014-REL Decision – 766243.pdf
Uploaded 2026-01-23T17:30:31 (109.1 KB)
Briefing Doc – 20F-H2019014-REL
Administrative Hearing Briefing: Moffett vs. Vistoso Community Association (Case No. 20F-H2019014-REL)
Executive Summary
On January 27, 2020, Administrative Law Judge Tammy L. Eigenheer of the Arizona Office of Administrative Hearings dismissed a petition filed by Paul L. Moffett against the Vistoso Community Association. The core of the dispute was the validity of 207 votes cast by two developer-owners, Vistoso Highlands and Pulte, in a Board of Directors election held on March 29, 2019.
The petitioner argued that because these entities were paying reduced assessments on their lots, they were prohibited from voting under the community’s governing documents (CC&Rs). The respondent association contended that the voting prohibition was narrowly tied to a specific provision allowing reduced assessments for a limited time, a period which had long expired for both entities.
The judge ruled in favor of the Vistoso Community Association, concluding that the votes were valid. The decision hinged on a strict interpretation of the CC&Rs. Although the developers were factually paying reduced assessments, they were not doing so pursuant to the specific section that triggers the voting prohibition. The judge noted that the failure to collect full assessments was a separate “financial concern for the association,” but it did not invalidate the votes cast in the election. The petitioner failed to meet the burden of proof required to establish a violation of the community documents.
Case Overview
This briefing analyzes the Administrative Law Judge Decision in the matter between petitioner Paul L. Moffett and respondent Vistoso Community Association concerning an alleged violation of community CC&Rs.
Detail
Information
Case Name
Paul L Moffett vs. Vistoso Community Association
Case Number
20F-H2019014-REL
Adjudicating Body
Arizona Office of Administrative Hearings
Administrative Law Judge
Tammy L. Eigenheer
Petition Filed
On or about September 25, 2019
Hearing Date
December 16, 2019
Decision & Order Date
January 27, 2020
Petitioner
Paul L. Moffett
Petitioner’s Counsel
Richard M. Rollman, Gabroy, Rollman & Bosse, P.C.
Respondent
Vistoso Community Association
Respondent’s Counsel
Jason E. Smith, CARPENTER HAZLEWOOD DELGADO & WOOD, PLC
The Core Dispute: Voter Eligibility and Reduced Assessments
Petitioner’s Allegation
On September 25, 2019, Paul L. Moffett filed a petition with the Arizona Department of Real Estate, alleging that the Vistoso Community Association violated its own governing documents. The specific violation cited was of Article VII, Section 7.3.1 (Voting Classes) of the community’s Declaration.
The dispute centered on the Board of Directors election held on March 29, 2019. In the days leading up to the election, property management solicited votes from two developer-owners:
• Vistoso Highlands: Owner of 39 lots.
• Pulte: Owner of 168 lots.
Both entities cast their total available votes—207 votes—for three candidates: Sarah Nelson, Patrick Straney, and Dennis Ottley. Mr. Moffett’s petition argued that these 207 votes were invalid because, at the time of the election, both Vistoso Highlands and Pulte were paying reduced assessments on their lots, which he contended made them ineligible to vote under the CC&Rs.
Analysis of Arguments and Key Provisions
The decision in this case rested entirely on the interpretation of two interlinked sections within the Vistoso Community Association’s Declaration.
Key Governing Document Provisions
• Article VII, Section 7.3.1 (Voting Prohibition): This section states, in pertinent part, that “a Class A Member shall not be entitled to vote with respect to any Lots, Parcels or Apartment Units in regard to which the Owner is paying only a reduced Assessment pursuant to Section 8.3.”
• Article VIII, Section 8.3 (Reduced Assessment Eligibility): This section permits a Developer Owner to pay a reduced assessment on lots for a maximum of two years after the initial Developer Owner obtains ownership from the Declarant.
Petitioner’s Position (Paul L. Moffett)
The petitioner’s argument was straightforward:
• Vistoso Highlands and Pulte were paying reduced assessments.
• Section 7.3.1 prohibits voting for members who pay reduced assessments.
• Therefore, their votes should not have been counted.
Respondent’s Position (Vistoso Community Association)
The respondent’s argument focused on the precise qualifying language in the CC&Rs:
• The voting prohibition in Section 7.3.1 is conditional and applies only when members are paying reduced assessments specifically “pursuant to Section 8.3.”
• The eligibility window for paying reduced assessments under Section 8.3 had expired years prior for both entities.
• Therefore, although they were factually paying reduced assessments, this was not being done under the authority or conditions of Section 8.3.
• Consequently, the voting prohibition of Section 7.3.1 was not applicable to them.
Established Findings of Fact
The evidence presented at the hearing established a clear timeline regarding the ownership of the lots and the expiration of the reduced assessment periods.
• March 20, 2007: Vistoso Highlands obtained ownership of 39 lots from the Declarant.
• March 20, 2009: The two-year maximum period for Vistoso Highlands to pay reduced assessments under Section 8.3 officially terminated.
• August 21 & October 14, 2014: Pulte’s predecessor obtained ownership of 168 lots from the Declarant.
• October 14, 2016: The two-year maximum period for these 168 lots to have reduced assessments under Section 8.3 officially terminated.
• January 2, 2019: Pulte obtained ownership of the 168 lots from its predecessor.
• March 29, 2019: The Board of Directors election was held.
• Key Fact: The judge found that “For whatever reason, neither Vistoso Highlands nor Pulte had been paying the full assessment as required by the Declaration as of the date of the election.”
The Administrative Law Judge’s Decision and Rationale
The Administrative Law Judge (ALJ) sided with the respondent’s interpretation of the governing documents, leading to the dismissal of the petition.
Legal Interpretation
The ALJ concluded that the two articles could not be read in isolation. The critical legal finding was that the voting prohibition was explicitly and inextricably linked to the conditions set forth in Section 8.3.
The decision states:
“Because Vistoso Highlands and Pulte were paying reduced assessments but not pursuant to Section 8.3, the prohibition on them voting found in Section 7.3.1. was not applicable to them.”
The judge reasoned that since the eligibility period under Section 8.3 had expired in 2009 and 2016, respectively, the developers were no longer paying reduced fees “pursuant to” that section at the time of the 2019 election.
Acknowledgment of Financial Discrepancy
The ALJ acknowledged the underlying issue that the developers were not paying the full assessments they owed. However, this was deemed a separate matter from voter eligibility. The judge noted that the failure to be invoiced for and to pay the full amount “is certainly a financial concern for the association as a whole,” but “that does not necessitate a finding that Vistoso Highlands and Pulte were not entitled to cast votes in the election.”
Final Order
Based on this legal interpretation, the ALJ found that the petitioner, Paul L. Moffett, failed to sustain his burden of proof to establish a violation of the community documents by a preponderance of the evidence.
• Official Order: “IT IS ORDERED that Petitioner’s petition is dismissed.”
• Notice: The decision is binding on the parties unless a request for rehearing is filed with the Commissioner of the Department of Real Estate within 30 days of the service of the order.
Study Guide – 20F-H2019014-REL
Study Guide: Moffett v. Vistoso Community Association (Case No. 20F-H2019014-REL)
This guide provides a comprehensive review of the administrative law case between Petitioner Paul L. Moffett and Respondent Vistoso Community Association, based on the Administrative Law Judge Decision issued on January 27, 2020. It is designed to test and deepen understanding of the facts, legal arguments, and final ruling of the case.
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Short-Answer Quiz
Instructions: Answer the following questions in two to three complete sentences, using only information provided in the source documents.
1. Who were the primary parties in this case, and what were their respective roles?
2. What specific article and section of the community documents did the Petitioner allege was violated?
3. When was the Board of Directors election held, and what was the total number of votes cast by Pulte and Vistoso Highlands?
4. According to the community’s Declaration, under what specific condition is a Class A Member not entitled to vote?
5. What did Article VIII, Section 8.3 of the Declaration allow for, and what was the maximum time limit for this provision?
6. Based on the timeline provided, when should the reduced assessment period have ended for Vistoso Highlands and for Pulte?
7. What was the Petitioner’s core argument for why Pulte and Vistoso Highlands should not have been allowed to vote?
8. How did the Respondent counter the Petitioner’s argument regarding the voting rights of Pulte and Vistoso Highlands?
9. What was the Administrative Law Judge’s final conclusion regarding the voting eligibility of Vistoso Highlands and Pulte, and what was the reasoning?
10. What was the final order in this case, and what recourse was available to the parties after the decision?
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Answer Key
1. The primary parties were Paul L. Moffett, who served as the Petitioner, and the Vistoso Community Association, which was the Respondent. Moffett initiated the dispute by filing a petition against the association.
2. The Petitioner alleged a violation of “Article VII Membership and Voting, Section 7.3.1 Voting Classes” of the community documents (CC&Rs). This was the single issue presented for the hearing.
3. The Board of Directors election was held on or about March 29, 2019. In that election, Pulte and Vistoso Highlands collectively cast 207 votes for candidates Sarah Nelson, Patrick Straney, and Dennis Ottley.
4. According to Article VII, Section 7.3.1 of the Declaration, a Class A Member is not entitled to vote with respect to any lots for which the owner is paying only a reduced assessment “pursuant to Section 8.3.”
5. Article VIII, Section 8.3 of the Declaration allowed Developer Owners to pay a reduced assessment on lots purchased from the Declarant. This provision was permitted for a maximum period of two years (24 months) after the initial Developer Owner obtained ownership.
6. The reduced assessment period for Vistoso Highlands should have terminated on March 20, 2009. For the lots owned by Pulte, the reduced assessments should have terminated on October 14, 2016.
7. The Petitioner argued that because Vistoso Highlands and Pulte were, in fact, paying reduced assessments at the time of the election, they were not entitled to vote. The argument was based on the fact that they were paying reduced fees, regardless of whether they were supposed to be.
8. The Respondent argued that the voting prohibition in Section 7.3.1 was not applicable. Their reasoning was that while Pulte and Vistoso Highlands were paying reduced assessments, they were not doing so “pursuant to Section 8.3” because the time limit for that provision had long expired.
9. The Judge concluded that Vistoso Highlands and Pulte were entitled to vote in the election. The reasoning was that the prohibition in Section 7.3.1 only applied to reduced assessments paid as authorized by Section 8.3; since the authorization period had passed, the prohibition no longer applied, even if they were improperly paying a lower rate.
10. The final order was that the Petitioner’s petition was dismissed. After the order was served, the parties had 30 days to file a request for a rehearing with the Commissioner of the Department of Real Estate pursuant to A.R.S. § 41-1092.09.
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Essay Questions
Instructions: The following questions are designed for a more in-depth, essay-style response. Use the source material to construct a thorough and well-supported argument.
1. Analyze the Administrative Law Judge’s interpretation of the phrase “pursuant to Section 8.3” from Article VII, Section 7.3.1. Explain how this interpretation was central to the case’s outcome and discuss the distinction made between paying a reduced assessment and paying a reduced assessment under the authority of Section 8.3.
2. Describe the timeline of property ownership and assessment obligations for both Vistoso Highlands and Pulte. Explain how the failure to adhere to the timeline for ending reduced assessments created the central conflict in this dispute.
3. Discuss the concept of “burden of proof” as it applied in this case. Who held the burden, what was the standard required (preponderance of the evidence), and why did the Administrative Law Judge ultimately find that the Petitioner failed to meet this burden?
4. The judge noted that the failure to collect full assessments from Vistoso Highlands and Pulte was a “financial concern for the association as a whole.” Elaborate on the potential implications of this financial issue for the Vistoso Community Association, even though it did not affect the outcome of the election dispute.
5. Outline the procedural history of the case, starting from the filing of the petition. Include key dates, the entities involved (Petitioner, Respondent, Department of Real Estate, Office of Administrative Hearings), the legal representatives, and the final step available to the parties after the judge’s order.
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Glossary of Key Terms and Entities
Term / Entity
Definition
Administrative Law Judge (ALJ)
An official, in this case Tammy L. Eigenheer, who presides over hearings at the Office of Administrative Hearings and makes decisions on disputes.
Arizona Department of Real Estate (Department)
The state agency with which the Petitioner filed the initial Homeowners Association (HOA) Dispute Process Petition.
Article VII, Section 7.3.1
The section of the Vistoso Community Association Declaration that prohibits a Class A Member from voting on lots for which they are paying a reduced assessment “pursuant to Section 8.3.”
Article VIII, Section 8.3
The section of the Declaration that permits a Developer Owner to pay a reduced assessment for a maximum of two years after purchasing a parcel from the Declarant.
Burden of Proof
The obligation of a party in a legal case to provide sufficient evidence to support their claim. In this case, the Petitioner bore the burden of proof.
Declarant
The original entity that owned the land before selling lots to Developer Owners like Vistoso Highlands and Pulte’s predecessor.
Developer Owner
An owner, such as Vistoso Highlands or Pulte, who obtained lots from the Declarant and was eligible for reduced assessments for a limited time under Section 8.3.
Homeowners Association (HOA) Dispute Process Petition
The formal document filed by Paul L. Moffett with the Arizona Department of Real Estate on September 25, 2019, to initiate the legal dispute.
Office of Administrative Hearings (OAH)
The state office where the formal hearing for this case was conducted before an Administrative Law Judge.
Petitioner
The party who initiates a lawsuit or petition. In this case, Paul L. Moffett.
Preponderance of the Evidence
The standard of proof required in this case, defined as evidence that is more convincing and has superior weight, inclining an impartial mind to one side over the other.
Respondent
The party against whom a petition is filed. In this case, the Vistoso Community Association.
Blog Post – 20F-H2019014-REL
The Legal Loophole That Flipped an HOA Election on Its Head
For anyone living in a planned community, the thick binder of Homeowners Association (HOA) rules is a familiar reality. These documents govern everything from mailbox colors to lawn maintenance, and their dense language can be a source of constant confusion. But beyond the day-to-day frustrations lies a deeper legal truth: the precise wording of these documents is absolute. This principle, known in contract law as strict constructionism, holds that a text’s literal meaning must be followed, even if it leads to an outcome that seems unfair.
This is the story of a homeowner who believed he had uncovered a clear-cut violation during a critical HOA election. Developers who were underpaying their dues had cast hundreds of votes, seemingly in direct contravention of the community’s own governing documents. But when the case was adjudicated, the outcome hinged on a single phrase, providing a textbook example of how strict constructionism can create a mind-bending loophole and turn a seemingly open-and-shut case completely upside down.
The Rule Seemed Simple: Pay a Discount, You Don’t Get a Vote
The petitioner, Paul L. Moffett, filed a formal complaint against the Vistoso Community Association, alleging a violation of a specific clause in the governing documents: “Article VII Membership and Voting, Section 7.3.1 Voting Classes.” His case was built on what appeared to be a straightforward set of rules designed to ensure fairness.
The community’s governing documents contained two key sections:
• Article VIII, Section 8.3: This rule allowed “Developer Owners” who purchased property from the original Declarant to pay a reduced assessment. However, this discount was explicitly limited to a maximum of two years.
• Article VII, Section 7.3.1: This rule stated that any member paying a reduced assessment pursuant to Section 8.3 was not entitled to vote with respect to those properties.
On the surface, the logic was simple and equitable: if you aren’t paying your full share as authorized by the rules, you don’t get a say in the community’s governance.
The Smoking Gun: Developers Were Underpaying for Years
The petitioner presented evidence that seemed to prove his case conclusively. Two developers, Vistoso Highlands and Pulte, owned a combined 207 lots. According to the two-year limit, their eligibility for reduced assessments should have ended long ago.
• Vistoso Highlands’ reduced assessment period should have terminated on March 20, 2009.
• Pulte’s predecessor’s reduced assessment period should have terminated on October 14, 2016.
However, at the time of the Board of Directors election on March 29, 2019, both developers were still paying the discounted rate—years after their eligibility had expired. Making matters worse, the evidence showed that in the days preceding the election, the property management staff had actively reached out to both developers to obtain their votes. They cast all 207 of them, which appeared to be a direct violation of the rule prohibiting voting by members paying reduced fees.
The Twist: A Single Phrase Created a Mind-Bending Loophole
This is where the case took a sharp, unexpected turn. The Administrative Law Judge (ALJ) assigned to the case did not focus on the fact that the developers were underpaying, but on the precise legal language connecting the two rules. The dispositive element of the case was the phrase “pursuant to Section 8.3.”
The ALJ noted that, “for whatever reason,” the developers had been underpaying for years. However, she reasoned that because the two-year time limit for reduced payments under Section 8.3 had long since expired, the developers were no longer paying their reduced fees “pursuant to Section 8.3.” They were, in fact, simply underpaying their dues improperly and in violation of the documents.
In essence, the developers’ long-term violation of the payment rule served as their shield against the voting penalty. By breaking the rule governing their assessment amount, they had inadvertently immunized themselves from the rule governing voting rights. The voting prohibition in Section 7.3.1 only applied to members who were correctly paying a reduced assessment as authorized by Section 8.3. Since their discount was no longer authorized, the voting ban no longer applied.
The ALJ summarized this stunning conclusion in the final decision:
Because Vistoso Highlands and Pulte were paying reduced assessments but not pursuant to Section 8.3, the prohibition on them voting found in Section 7.3.1. was not applicable to them.
The Verdict: A Financial Problem Doesn’t Invalidate a Vote
Ultimately, the petition was dismissed, and all 207 votes cast by the developers were deemed valid. The ALJ acknowledged that the developers’ failure to pay their full assessments was a serious financial issue for the association but clarified that it was a separate matter from their right to vote.
The ALJ effectively severed the financial issue from the question of voting eligibility. This separation of issues is a fundamental tenet of legal analysis, preventing one breach of contract (underpaying dues) from automatically triggering penalties associated with a completely different clause (voting rights).
While the failure to be invoiced and to pay a full assessment on the 207 parcels at issue is certainly a financial concern for the association as a whole, that does not necessitate a finding that Vistoso Highlands and Pulte were not entitled to cast votes in the election.
This highlights a critical aspect of legal interpretation: issues that seem causally linked in a common-sense way can be treated as entirely distinct under a strict reading of the law.
Conclusion: The Devil is Always in the Details
This case serves as a powerful reminder that in the world of legal documents, every single word matters. It is a perfect demonstration of strict constructionism, where an outcome that seems to defy logic and fairness can be perfectly valid based on the literal, unambiguous phrasing of a rule. What appeared to be a clear prohibition on voting was undone by a loophole created by the developers’ own long-term failure to comply with assessment rules.
The outcome forces us to confront a difficult question at the heart of our legal system: When the literal interpretation of a contract conflicts with our sense of fairness, which should prevail? This case provides a clear, if unsettling, answer.
Case Participants
Petitioner Side
Paul L Moffett(petitioner) Appeared at hearing and testified on his own behalf
Richard M. Rollman(petitioner attorney) Gabroy, Rollman & Bosse, P.C.
Alyssa Leverette(legal staff) Gabroy, Rollman & Bosse, P.C. Listed below Petitioner's attorney on service list
Respondent Side
Jason E. Smith(respondent attorney) CARPENTER HAZLEWOOD DELGADO & WOOD, PLC
Kimberly Rubly(witness) Vice President of Southern Region (testified for Respondent)
Sean K. Moynihan(respondent attorney) CARPENTER HAZLEWOOD DELGADO & WOOD, PLC Recipient of Order
Neutral Parties
Tammy L. Eigenheer(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
LDettorre(ADRE staff) Arizona Department of Real Estate Recipient of Order
AHansen(ADRE staff) Arizona Department of Real Estate Recipient of Order
djones(ADRE staff) Arizona Department of Real Estate Recipient of Order
DGardner(ADRE staff) Arizona Department of Real Estate Recipient of Order
ncano(ADRE staff) Arizona Department of Real Estate Recipient of Order
Other Participants
Sarah Nelson(board member (elected)) Vistoso Community Association Recipient of votes in disputed election
Patrick Straney(board member (elected)) Vistoso Community Association Recipient of votes in disputed election
Dennis Ottley(board member (elected)) Vistoso Community Association Recipient of votes in disputed election
CC&Rs Article VII Membership and Voting section 7.3.1 Voting Classes
Outcome Summary
The ALJ dismissed the petition because the Petitioner failed to sustain the burden of proof that the Vistoso Community Association committed a violation of Article VII, Section 7.3.1 by allowing certain owners to vote. The ALJ reasoned that the specific restriction on voting for those paying reduced assessments was inapplicable in this case.
Why this result: The restriction on voting found in Section 7.3.1 applies only when the owner is paying a reduced assessment 'pursuant to Section 8.3.' Since the reduced assessment period permitted under Section 8.3 had expired for the developer owners, they were not paying reduced assessments 'pursuant to Section 8.3,' and were therefore entitled to vote.
Key Issues & Findings
Alleged violation of community document regarding the voting rights of Developer Owners paying reduced assessments.
Petitioner filed a Homeowners Association (HOA) Dispute Process Petition alleging the Respondent HOA violated the community documents (CC&Rs Article VII, Section 7.3.1) by allowing Developer Owners (Vistoso Highlands and Pulte) to vote in an election while they were paying reduced assessments, which Petitioner argued was prohibited.
Orders: Petitioner’s petition is dismissed.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
A.R.S. § 32-2199
A.R.S. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)
Vazanno v. Superior Court
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5
BLACK’S LAW DICTIONARY
Analytics Highlights
Topics: HOA Election, Voting Rights, Reduced Assessment, Community Document Violation
Additional Citations:
A.R.S. § 32-2199
CC&Rs Article VII, Section 7.3.1
CC&Rs Article VIII, Section 8.3
A.R.S. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)
Vazanno v. Superior Court
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5
BLACK’S LAW DICTIONARY
A.R.S. § 32-2199.02(B)
A.R.S. § 32-2199.04
A.R.S. § 41-1092.09
Video Overview
Audio Overview
Decision Documents
20F-H2019014-REL Decision – 766242.pdf
Uploaded 2025-10-09T03:34:33 (48.3 KB)
20F-H2019014-REL Decision – 766243.pdf
Uploaded 2025-10-09T03:34:33 (109.1 KB)
Briefing Doc – 20F-H2019014-REL
Administrative Hearing Briefing: Moffett vs. Vistoso Community Association (Case No. 20F-H2019014-REL)
Executive Summary
On January 27, 2020, Administrative Law Judge Tammy L. Eigenheer of the Arizona Office of Administrative Hearings dismissed a petition filed by Paul L. Moffett against the Vistoso Community Association. The core of the dispute was the validity of 207 votes cast by two developer-owners, Vistoso Highlands and Pulte, in a Board of Directors election held on March 29, 2019.
The petitioner argued that because these entities were paying reduced assessments on their lots, they were prohibited from voting under the community’s governing documents (CC&Rs). The respondent association contended that the voting prohibition was narrowly tied to a specific provision allowing reduced assessments for a limited time, a period which had long expired for both entities.
The judge ruled in favor of the Vistoso Community Association, concluding that the votes were valid. The decision hinged on a strict interpretation of the CC&Rs. Although the developers were factually paying reduced assessments, they were not doing so pursuant to the specific section that triggers the voting prohibition. The judge noted that the failure to collect full assessments was a separate “financial concern for the association,” but it did not invalidate the votes cast in the election. The petitioner failed to meet the burden of proof required to establish a violation of the community documents.
Case Overview
This briefing analyzes the Administrative Law Judge Decision in the matter between petitioner Paul L. Moffett and respondent Vistoso Community Association concerning an alleged violation of community CC&Rs.
Detail
Information
Case Name
Paul L Moffett vs. Vistoso Community Association
Case Number
20F-H2019014-REL
Adjudicating Body
Arizona Office of Administrative Hearings
Administrative Law Judge
Tammy L. Eigenheer
Petition Filed
On or about September 25, 2019
Hearing Date
December 16, 2019
Decision & Order Date
January 27, 2020
Petitioner
Paul L. Moffett
Petitioner’s Counsel
Richard M. Rollman, Gabroy, Rollman & Bosse, P.C.
Respondent
Vistoso Community Association
Respondent’s Counsel
Jason E. Smith, CARPENTER HAZLEWOOD DELGADO & WOOD, PLC
The Core Dispute: Voter Eligibility and Reduced Assessments
Petitioner’s Allegation
On September 25, 2019, Paul L. Moffett filed a petition with the Arizona Department of Real Estate, alleging that the Vistoso Community Association violated its own governing documents. The specific violation cited was of Article VII, Section 7.3.1 (Voting Classes) of the community’s Declaration.
The dispute centered on the Board of Directors election held on March 29, 2019. In the days leading up to the election, property management solicited votes from two developer-owners:
• Vistoso Highlands: Owner of 39 lots.
• Pulte: Owner of 168 lots.
Both entities cast their total available votes—207 votes—for three candidates: Sarah Nelson, Patrick Straney, and Dennis Ottley. Mr. Moffett’s petition argued that these 207 votes were invalid because, at the time of the election, both Vistoso Highlands and Pulte were paying reduced assessments on their lots, which he contended made them ineligible to vote under the CC&Rs.
Analysis of Arguments and Key Provisions
The decision in this case rested entirely on the interpretation of two interlinked sections within the Vistoso Community Association’s Declaration.
Key Governing Document Provisions
• Article VII, Section 7.3.1 (Voting Prohibition): This section states, in pertinent part, that “a Class A Member shall not be entitled to vote with respect to any Lots, Parcels or Apartment Units in regard to which the Owner is paying only a reduced Assessment pursuant to Section 8.3.”
• Article VIII, Section 8.3 (Reduced Assessment Eligibility): This section permits a Developer Owner to pay a reduced assessment on lots for a maximum of two years after the initial Developer Owner obtains ownership from the Declarant.
Petitioner’s Position (Paul L. Moffett)
The petitioner’s argument was straightforward:
• Vistoso Highlands and Pulte were paying reduced assessments.
• Section 7.3.1 prohibits voting for members who pay reduced assessments.
• Therefore, their votes should not have been counted.
Respondent’s Position (Vistoso Community Association)
The respondent’s argument focused on the precise qualifying language in the CC&Rs:
• The voting prohibition in Section 7.3.1 is conditional and applies only when members are paying reduced assessments specifically “pursuant to Section 8.3.”
• The eligibility window for paying reduced assessments under Section 8.3 had expired years prior for both entities.
• Therefore, although they were factually paying reduced assessments, this was not being done under the authority or conditions of Section 8.3.
• Consequently, the voting prohibition of Section 7.3.1 was not applicable to them.
Established Findings of Fact
The evidence presented at the hearing established a clear timeline regarding the ownership of the lots and the expiration of the reduced assessment periods.
• March 20, 2007: Vistoso Highlands obtained ownership of 39 lots from the Declarant.
• March 20, 2009: The two-year maximum period for Vistoso Highlands to pay reduced assessments under Section 8.3 officially terminated.
• August 21 & October 14, 2014: Pulte’s predecessor obtained ownership of 168 lots from the Declarant.
• October 14, 2016: The two-year maximum period for these 168 lots to have reduced assessments under Section 8.3 officially terminated.
• January 2, 2019: Pulte obtained ownership of the 168 lots from its predecessor.
• March 29, 2019: The Board of Directors election was held.
• Key Fact: The judge found that “For whatever reason, neither Vistoso Highlands nor Pulte had been paying the full assessment as required by the Declaration as of the date of the election.”
The Administrative Law Judge’s Decision and Rationale
The Administrative Law Judge (ALJ) sided with the respondent’s interpretation of the governing documents, leading to the dismissal of the petition.
Legal Interpretation
The ALJ concluded that the two articles could not be read in isolation. The critical legal finding was that the voting prohibition was explicitly and inextricably linked to the conditions set forth in Section 8.3.
The decision states:
“Because Vistoso Highlands and Pulte were paying reduced assessments but not pursuant to Section 8.3, the prohibition on them voting found in Section 7.3.1. was not applicable to them.”
The judge reasoned that since the eligibility period under Section 8.3 had expired in 2009 and 2016, respectively, the developers were no longer paying reduced fees “pursuant to” that section at the time of the 2019 election.
Acknowledgment of Financial Discrepancy
The ALJ acknowledged the underlying issue that the developers were not paying the full assessments they owed. However, this was deemed a separate matter from voter eligibility. The judge noted that the failure to be invoiced for and to pay the full amount “is certainly a financial concern for the association as a whole,” but “that does not necessitate a finding that Vistoso Highlands and Pulte were not entitled to cast votes in the election.”
Final Order
Based on this legal interpretation, the ALJ found that the petitioner, Paul L. Moffett, failed to sustain his burden of proof to establish a violation of the community documents by a preponderance of the evidence.
• Official Order: “IT IS ORDERED that Petitioner’s petition is dismissed.”
• Notice: The decision is binding on the parties unless a request for rehearing is filed with the Commissioner of the Department of Real Estate within 30 days of the service of the order.
Study Guide – 20F-H2019014-REL
Study Guide: Moffett v. Vistoso Community Association (Case No. 20F-H2019014-REL)
This guide provides a comprehensive review of the administrative law case between Petitioner Paul L. Moffett and Respondent Vistoso Community Association, based on the Administrative Law Judge Decision issued on January 27, 2020. It is designed to test and deepen understanding of the facts, legal arguments, and final ruling of the case.
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Short-Answer Quiz
Instructions: Answer the following questions in two to three complete sentences, using only information provided in the source documents.
1. Who were the primary parties in this case, and what were their respective roles?
2. What specific article and section of the community documents did the Petitioner allege was violated?
3. When was the Board of Directors election held, and what was the total number of votes cast by Pulte and Vistoso Highlands?
4. According to the community’s Declaration, under what specific condition is a Class A Member not entitled to vote?
5. What did Article VIII, Section 8.3 of the Declaration allow for, and what was the maximum time limit for this provision?
6. Based on the timeline provided, when should the reduced assessment period have ended for Vistoso Highlands and for Pulte?
7. What was the Petitioner’s core argument for why Pulte and Vistoso Highlands should not have been allowed to vote?
8. How did the Respondent counter the Petitioner’s argument regarding the voting rights of Pulte and Vistoso Highlands?
9. What was the Administrative Law Judge’s final conclusion regarding the voting eligibility of Vistoso Highlands and Pulte, and what was the reasoning?
10. What was the final order in this case, and what recourse was available to the parties after the decision?
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Answer Key
1. The primary parties were Paul L. Moffett, who served as the Petitioner, and the Vistoso Community Association, which was the Respondent. Moffett initiated the dispute by filing a petition against the association.
2. The Petitioner alleged a violation of “Article VII Membership and Voting, Section 7.3.1 Voting Classes” of the community documents (CC&Rs). This was the single issue presented for the hearing.
3. The Board of Directors election was held on or about March 29, 2019. In that election, Pulte and Vistoso Highlands collectively cast 207 votes for candidates Sarah Nelson, Patrick Straney, and Dennis Ottley.
4. According to Article VII, Section 7.3.1 of the Declaration, a Class A Member is not entitled to vote with respect to any lots for which the owner is paying only a reduced assessment “pursuant to Section 8.3.”
5. Article VIII, Section 8.3 of the Declaration allowed Developer Owners to pay a reduced assessment on lots purchased from the Declarant. This provision was permitted for a maximum period of two years (24 months) after the initial Developer Owner obtained ownership.
6. The reduced assessment period for Vistoso Highlands should have terminated on March 20, 2009. For the lots owned by Pulte, the reduced assessments should have terminated on October 14, 2016.
7. The Petitioner argued that because Vistoso Highlands and Pulte were, in fact, paying reduced assessments at the time of the election, they were not entitled to vote. The argument was based on the fact that they were paying reduced fees, regardless of whether they were supposed to be.
8. The Respondent argued that the voting prohibition in Section 7.3.1 was not applicable. Their reasoning was that while Pulte and Vistoso Highlands were paying reduced assessments, they were not doing so “pursuant to Section 8.3” because the time limit for that provision had long expired.
9. The Judge concluded that Vistoso Highlands and Pulte were entitled to vote in the election. The reasoning was that the prohibition in Section 7.3.1 only applied to reduced assessments paid as authorized by Section 8.3; since the authorization period had passed, the prohibition no longer applied, even if they were improperly paying a lower rate.
10. The final order was that the Petitioner’s petition was dismissed. After the order was served, the parties had 30 days to file a request for a rehearing with the Commissioner of the Department of Real Estate pursuant to A.R.S. § 41-1092.09.
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Essay Questions
Instructions: The following questions are designed for a more in-depth, essay-style response. Use the source material to construct a thorough and well-supported argument.
1. Analyze the Administrative Law Judge’s interpretation of the phrase “pursuant to Section 8.3” from Article VII, Section 7.3.1. Explain how this interpretation was central to the case’s outcome and discuss the distinction made between paying a reduced assessment and paying a reduced assessment under the authority of Section 8.3.
2. Describe the timeline of property ownership and assessment obligations for both Vistoso Highlands and Pulte. Explain how the failure to adhere to the timeline for ending reduced assessments created the central conflict in this dispute.
3. Discuss the concept of “burden of proof” as it applied in this case. Who held the burden, what was the standard required (preponderance of the evidence), and why did the Administrative Law Judge ultimately find that the Petitioner failed to meet this burden?
4. The judge noted that the failure to collect full assessments from Vistoso Highlands and Pulte was a “financial concern for the association as a whole.” Elaborate on the potential implications of this financial issue for the Vistoso Community Association, even though it did not affect the outcome of the election dispute.
5. Outline the procedural history of the case, starting from the filing of the petition. Include key dates, the entities involved (Petitioner, Respondent, Department of Real Estate, Office of Administrative Hearings), the legal representatives, and the final step available to the parties after the judge’s order.
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Glossary of Key Terms and Entities
Term / Entity
Definition
Administrative Law Judge (ALJ)
An official, in this case Tammy L. Eigenheer, who presides over hearings at the Office of Administrative Hearings and makes decisions on disputes.
Arizona Department of Real Estate (Department)
The state agency with which the Petitioner filed the initial Homeowners Association (HOA) Dispute Process Petition.
Article VII, Section 7.3.1
The section of the Vistoso Community Association Declaration that prohibits a Class A Member from voting on lots for which they are paying a reduced assessment “pursuant to Section 8.3.”
Article VIII, Section 8.3
The section of the Declaration that permits a Developer Owner to pay a reduced assessment for a maximum of two years after purchasing a parcel from the Declarant.
Burden of Proof
The obligation of a party in a legal case to provide sufficient evidence to support their claim. In this case, the Petitioner bore the burden of proof.
Declarant
The original entity that owned the land before selling lots to Developer Owners like Vistoso Highlands and Pulte’s predecessor.
Developer Owner
An owner, such as Vistoso Highlands or Pulte, who obtained lots from the Declarant and was eligible for reduced assessments for a limited time under Section 8.3.
Homeowners Association (HOA) Dispute Process Petition
The formal document filed by Paul L. Moffett with the Arizona Department of Real Estate on September 25, 2019, to initiate the legal dispute.
Office of Administrative Hearings (OAH)
The state office where the formal hearing for this case was conducted before an Administrative Law Judge.
Petitioner
The party who initiates a lawsuit or petition. In this case, Paul L. Moffett.
Preponderance of the Evidence
The standard of proof required in this case, defined as evidence that is more convincing and has superior weight, inclining an impartial mind to one side over the other.
Respondent
The party against whom a petition is filed. In this case, the Vistoso Community Association.
Blog Post – 20F-H2019014-REL
The Legal Loophole That Flipped an HOA Election on Its Head
For anyone living in a planned community, the thick binder of Homeowners Association (HOA) rules is a familiar reality. These documents govern everything from mailbox colors to lawn maintenance, and their dense language can be a source of constant confusion. But beyond the day-to-day frustrations lies a deeper legal truth: the precise wording of these documents is absolute. This principle, known in contract law as strict constructionism, holds that a text’s literal meaning must be followed, even if it leads to an outcome that seems unfair.
This is the story of a homeowner who believed he had uncovered a clear-cut violation during a critical HOA election. Developers who were underpaying their dues had cast hundreds of votes, seemingly in direct contravention of the community’s own governing documents. But when the case was adjudicated, the outcome hinged on a single phrase, providing a textbook example of how strict constructionism can create a mind-bending loophole and turn a seemingly open-and-shut case completely upside down.
The Rule Seemed Simple: Pay a Discount, You Don’t Get a Vote
The petitioner, Paul L. Moffett, filed a formal complaint against the Vistoso Community Association, alleging a violation of a specific clause in the governing documents: “Article VII Membership and Voting, Section 7.3.1 Voting Classes.” His case was built on what appeared to be a straightforward set of rules designed to ensure fairness.
The community’s governing documents contained two key sections:
• Article VIII, Section 8.3: This rule allowed “Developer Owners” who purchased property from the original Declarant to pay a reduced assessment. However, this discount was explicitly limited to a maximum of two years.
• Article VII, Section 7.3.1: This rule stated that any member paying a reduced assessment pursuant to Section 8.3 was not entitled to vote with respect to those properties.
On the surface, the logic was simple and equitable: if you aren’t paying your full share as authorized by the rules, you don’t get a say in the community’s governance.
The Smoking Gun: Developers Were Underpaying for Years
The petitioner presented evidence that seemed to prove his case conclusively. Two developers, Vistoso Highlands and Pulte, owned a combined 207 lots. According to the two-year limit, their eligibility for reduced assessments should have ended long ago.
• Vistoso Highlands’ reduced assessment period should have terminated on March 20, 2009.
• Pulte’s predecessor’s reduced assessment period should have terminated on October 14, 2016.
However, at the time of the Board of Directors election on March 29, 2019, both developers were still paying the discounted rate—years after their eligibility had expired. Making matters worse, the evidence showed that in the days preceding the election, the property management staff had actively reached out to both developers to obtain their votes. They cast all 207 of them, which appeared to be a direct violation of the rule prohibiting voting by members paying reduced fees.
The Twist: A Single Phrase Created a Mind-Bending Loophole
This is where the case took a sharp, unexpected turn. The Administrative Law Judge (ALJ) assigned to the case did not focus on the fact that the developers were underpaying, but on the precise legal language connecting the two rules. The dispositive element of the case was the phrase “pursuant to Section 8.3.”
The ALJ noted that, “for whatever reason,” the developers had been underpaying for years. However, she reasoned that because the two-year time limit for reduced payments under Section 8.3 had long since expired, the developers were no longer paying their reduced fees “pursuant to Section 8.3.” They were, in fact, simply underpaying their dues improperly and in violation of the documents.
In essence, the developers’ long-term violation of the payment rule served as their shield against the voting penalty. By breaking the rule governing their assessment amount, they had inadvertently immunized themselves from the rule governing voting rights. The voting prohibition in Section 7.3.1 only applied to members who were correctly paying a reduced assessment as authorized by Section 8.3. Since their discount was no longer authorized, the voting ban no longer applied.
The ALJ summarized this stunning conclusion in the final decision:
Because Vistoso Highlands and Pulte were paying reduced assessments but not pursuant to Section 8.3, the prohibition on them voting found in Section 7.3.1. was not applicable to them.
The Verdict: A Financial Problem Doesn’t Invalidate a Vote
Ultimately, the petition was dismissed, and all 207 votes cast by the developers were deemed valid. The ALJ acknowledged that the developers’ failure to pay their full assessments was a serious financial issue for the association but clarified that it was a separate matter from their right to vote.
The ALJ effectively severed the financial issue from the question of voting eligibility. This separation of issues is a fundamental tenet of legal analysis, preventing one breach of contract (underpaying dues) from automatically triggering penalties associated with a completely different clause (voting rights).
While the failure to be invoiced and to pay a full assessment on the 207 parcels at issue is certainly a financial concern for the association as a whole, that does not necessitate a finding that Vistoso Highlands and Pulte were not entitled to cast votes in the election.
This highlights a critical aspect of legal interpretation: issues that seem causally linked in a common-sense way can be treated as entirely distinct under a strict reading of the law.
Conclusion: The Devil is Always in the Details
This case serves as a powerful reminder that in the world of legal documents, every single word matters. It is a perfect demonstration of strict constructionism, where an outcome that seems to defy logic and fairness can be perfectly valid based on the literal, unambiguous phrasing of a rule. What appeared to be a clear prohibition on voting was undone by a loophole created by the developers’ own long-term failure to comply with assessment rules.
The outcome forces us to confront a difficult question at the heart of our legal system: When the literal interpretation of a contract conflicts with our sense of fairness, which should prevail? This case provides a clear, if unsettling, answer.
Case Participants
Petitioner Side
Paul L Moffett(petitioner) Appeared at hearing and testified on his own behalf
Richard M. Rollman(petitioner attorney) Gabroy, Rollman & Bosse, P.C.
Alyssa Leverette(legal staff) Gabroy, Rollman & Bosse, P.C. Listed below Petitioner's attorney on service list
Respondent Side
Jason E. Smith(respondent attorney) CARPENTER HAZLEWOOD DELGADO & WOOD, PLC
Kimberly Rubly(witness) Vice President of Southern Region (testified for Respondent)
Sean K. Moynihan(respondent attorney) CARPENTER HAZLEWOOD DELGADO & WOOD, PLC Recipient of Order
Neutral Parties
Tammy L. Eigenheer(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
LDettorre(ADRE staff) Arizona Department of Real Estate Recipient of Order
AHansen(ADRE staff) Arizona Department of Real Estate Recipient of Order
djones(ADRE staff) Arizona Department of Real Estate Recipient of Order
DGardner(ADRE staff) Arizona Department of Real Estate Recipient of Order
ncano(ADRE staff) Arizona Department of Real Estate Recipient of Order
Other Participants
Sarah Nelson(board member (elected)) Vistoso Community Association Recipient of votes in disputed election
Patrick Straney(board member (elected)) Vistoso Community Association Recipient of votes in disputed election
Dennis Ottley(board member (elected)) Vistoso Community Association Recipient of votes in disputed election
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
19F-H1918042-REL
Agency
ADRE
Tribunal
OAH
Decision Date
2020-01-15
Administrative Law Judge
Kay A. Abramsohn
Outcome
loss
Filing Fees Refunded
$0.00
Civil Penalties
$0.00
Parties & Counsel
Petitioner
Joan A. Tober
Counsel
—
Respondent
Civano 1 Neighborhood 1 Homeowners Association
Counsel
Diana J. Elston
Alleged Violations
A.R.S. § 33-1805
Outcome Summary
The Administrative Law Judge concluded that the Civano 1 Neighborhood 1 Homeowners Association (HOA) was the prevailing party. The ALJ found that the HOA acted in compliance with A.R.S. § 33-1805(A) and (B) because the specific attorney letter requested was privileged and could be withheld,, and Petitioner's request for additional 'background information' was unreasonably broad and unclarified,.
Why this result: Petitioner failed to establish a violation of A.R.S. § 33-1805(A) as the HOA lawfully withheld privileged documents under A.R.S. § 33-1805(B) and was not required to guess what records were requested due to the vague nature of the demand for 'any and all documentation'.
Key Issues & Findings
HOA violation of requirement to provide association records.
Petitioner alleged the HOA failed to provide all requested documentation, specifically an attorney letter concerning the North Ridge wall, and failed to comply with the 10-business day response period required for record requests.
Orders: The HOA was deemed the prevailing party on rehearing and Petitioner's appeal was dismissed. The HOA acted in compliance with A.R.S. § 33-1805(A) and (B). The requested attorney letter was privileged communication and could be withheld.
Briefing Document: Tober v. Civano 1 Homeowners Association
Executive Summary
This document synthesizes the legal proceedings and outcomes of the case Joan A. Tober v. Civano 1 Neighborhood 1 Homeowners Association (No. 19F-H1918042-REL), adjudicated by the Arizona Office of Administrative Hearings. The core of the dispute was Petitioner Joan A. Tober’s demand for records from her Homeowners Association (HOA), specifically a legal opinion letter concerning the “North Ridge wall.”
The Petitioner argued that the HOA violated Arizona statute A.R.S. § 33-1805 by failing to provide this letter and other “background information.” She contended the HOA waived attorney-client privilege by discussing the letter in an open board meeting and, in a subsequent rehearing, failed to provide records within the statutorily required 10-day timeframe.
The HOA maintained that the letter was a privileged communication with its attorney and therefore exempt from disclosure under A.R.S. § 33-1805(B). The HOA also argued that the Petitioner’s broader request for “any and all documentation” was overly vague and that she failed to clarify the request when asked.
Administrative Law Judge Kay Abramsohn ultimately ruled in favor of the HOA in both the initial hearing and a subsequent rehearing. The final decision affirmed that the legal letter was privileged and could be withheld. Crucially, the judge concluded the HOA did not violate the 10-day provision because the Petitioner’s request was “unreasonably broad” and she failed to respond to the HOA’s request for clarification, thereby preventing the HOA from being able to “reasonably make records available.” The HOA was declared the prevailing party in both instances.
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Case Overview
This matter involves a formal dispute between a homeowner and her homeowners’ association, brought before the Arizona Department of Real Estate and heard by the Office of Administrative Hearings (OAH).
Case Name
Joan A. Tober, Petitioner, vs. Civano 1 Neighborhood 1 Homeowners Association, Respondent.
Case Number
19F-H1918042-REL
Adjudicating Body
Office of Administrative Hearings (OAH)
Administrative Law Judge
Kay A. Abramsohn
Core Issue
Alleged violation of A.R.S. § 33-1805, which governs member access to association records.
Initial Hearing Date
June 5, 2019
Initial Decision Date
July 29, 2019
Rehearing Date
December 11, 2019
Final Decision Date
January 15, 2020
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Key Parties and Individuals
• Petitioner: Joan A. Tober
◦ A homeowner in the Civano 1 Neighborhood since 2001.
◦ Previously worked for the company that developed the land/homes in the association area.
◦ Has served as a past Board member for the HOA.
◦ Served as an alternate member on the Finance Committee in 2018.
◦ Exhibits a high level of engagement with HOA affairs, having taped and often transcribed every meeting since 2008.
• Respondent: Civano 1 Neighborhood 1 Homeowners Association (HOA)
◦ The governing body for the planned community.
◦ Represented by Diana J. Elston, Esq., of Jones, Skelton & Hochuli, P.L.C.
• Adjudicator: Kay Abramsohn
◦ The Administrative Law Judge for the Office of Administrative Hearings who presided over both the initial hearing and the rehearing.
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Chronology of the Dispute
Nov 20, 2018
At an HOA Board meeting, the Board President mentions receiving a letter (“the Letter”) from its attorney regarding the North Ridge wall, states it concerns the HOA’s legal responsibility, and suggests it can be sent out to residents.
Nov 26, 2018
Petitioner sends her first email request for a copy of the Letter.
Nov 27, 2018
Petitioner sends a second request. The HOA replies that it is waiting for clarification from its attorney.
Nov 29, 2018
At 4:58 a.m., Petitioner sends a third, formal request citing A.R.S. § 33-1805, demanding “any and all documentation to include the letter… regarding the structural integrity and the Association members’ responsibility for same and all background information.”
Nov 29, 2018
At 9:44 a.m., the HOA responds, stating the President misspoke and the Letter is a privileged legal opinion. The HOA asks if Petitioner needs a copy of “the original engineer report.” The judge later finds no evidence that Petitioner responded to this clarification query.
Dec 13, 2018
Petitioner writes to the Board, stating she will use “all means… to obtain the requested materials, to include a formal complaint.”
Dec 26, 2018
Petitioner files her single-issue petition with the Arizona Department of Real Estate.
Jan 15-16, 2019
The HOA forwards to Petitioner the “Civano historical erosion reports” (2013 and 2014) and an invoice related to the 2014 study.
June 5, 2019
The initial administrative hearing is held.
July 29, 2019
Initial Decision Issued: The Administrative Law Judge (ALJ) finds the Letter is privileged and the HOA is the prevailing party.
Aug 5, 2019
Petitioner files a request for rehearing, arguing the initial decision “did not address the timeliness aspect of the law.”
Aug 23, 2019
The Commissioner of the Arizona Department of Real Estate grants the rehearing request.
Dec 11, 2019
The rehearing is conducted.
Jan 15, 2020
Final Decision Issued: The ALJ again finds for the HOA, concluding it did not violate the statute because Petitioner’s request was overly broad and she failed to clarify it. The appeal is dismissed.
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Core Dispute and Arguments
Petitioner’s Position (Joan A. Tober)
1. Waiver of Privilege: The Petitioner’s central argument was that the HOA intentionally waived attorney-client privilege regarding the Letter when the Board President mentioned it in an open meeting and offered to distribute it, with the other Board members not objecting, thereby showing “unanimous consent to waive confidentiality.”
2. Right to “Background Information”: Petitioner argued that because the North Ridge wall issue had been ongoing since 2013, her request for “any and all documents” and “background information” was justified, and that more than just two prior engineering reports must exist.
3. Untimely Response (Rehearing Argument): In her request for rehearing, Petitioner’s primary argument shifted to timeliness, asserting that even if the HOA “eventually” provided some records, it failed to do so within the 10-business-day period mandated by A.R.S. § 33-1805(A).
Respondent’s Position (Civano 1 HOA)
1. Attorney-Client Privilege: The HOA’s primary defense was that the Letter constituted “privileged communication between an attorney for the association and the association,” which may be withheld from members under A.R.S. § 33-1805(B).
2. No Waiver: The HOA contended that the “mere mention” of the Letter by the Board President at a meeting did not constitute a legal waiver of the attorney-client privilege.
3. Vague and Overly Broad Request: The HOA argued that the Petitioner’s request for “any and all” documents was too broad to know what she wanted.
4. Prior Possession of Documents: The HOA indicated that it could be determined from the Petitioner’s own exhibits that she had already received or possessed copies of key requested documents, such as the 2013 and 2014 erosion reports.
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Key Findings of Fact and Evidence
The Administrative Law Judge made several critical findings of fact based on the evidence presented across both hearings.
• The Nature of the “Letter”: The document at the center of the dispute was confirmed to be a legal opinion from the HOA’s attorney. It had been discussed by the Board in an executive session prior to the November 20, 2018 meeting. The letter advised that the HOA was responsible for the land below the wall and recommended hiring a “licensed bonded engineer.”
• Petitioner’s Pre-existing Knowledge: The Petitioner was well-informed on the North Ridge wall issue. She acknowledged at the rehearing that at the time of her November 29, 2018 request, she already possessed copies of the 2013 and 2014 engineering reports, which she had obtained from the city in 2014.
• Petitioner’s Request and Failure to Clarify:
◦ The Petitioner’s initial requests on November 26 and 27 were solely for the attorney’s Letter.
◦ Her formal request on November 29 expanded to “any and all documentation… and all background information.”
◦ On the same day, the HOA asked for clarification, specifically inquiring if she “still need[ed] a copy of the original engineer report.”
◦ The ALJ found “no document supporting” the Petitioner’s claim that she responded to this email. During the rehearing, the Petitioner was unable to produce such a response. This failure to clarify was a key factor in the final ruling.
• Lack of Other Documents: The hearing record contained no evidence of any other erosion reports besides the 2013 and 2014 reports. The HOA President, Mr. Mastrosimone, testified that “there were no documents other than the Letter that would have been responsive” to the request.
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Legal Rulings and Conclusions of Law
Initial Decision (July 29, 2019)
• Jurisdiction: The OAH confirmed its authority to hear the dispute under Arizona statutes.
• Privilege: The ALJ concluded that under A.R.S. § 33-1805(B), “privileged communication between an attorney for the association and the association” may be withheld. Therefore, the HOA was “not statutorily required to provide access or a copy of the Letter to Petitioner.”
• Outcome: The ALJ concluded that the HOA provided records in compliance with the statute and was deemed the prevailing party.
Final Decision on Rehearing (January 15, 2020)
• Issue for Rehearing: The sole issue on rehearing was whether the HOA violated A.R.S. § 33-1805 by failing to provide access to records within 10 business days.
• Privileged Communication: The ALJ reaffirmed that the Letter was privileged communication and the HOA was not required to provide it “within any time period.”
• Unreasonably Broad Request: The ALJ concluded that the Petitioner’s formal request was “unreasonably broad and remained unclarified.”
• Failure to Clarify: The ruling explicitly states: “Petitioner failed to respond to the HOA request for clarification of her unreasonably broad request, preventing the HOA from being able to reasonably make records available. An association is not required to guess what records are being requested.”
• No Violation of Timeliness: Because the request was unclarified, the ALJ found the HOA did not violate the 10-day rule in A.R.S. § 33-1805(A). The decision notes that the initial ruling “inartfully stated” that the HOA had provided records in compliance, and that it “should have simply stated that the HOA acted in compliance with A.R.S. § 33-1805.”
• Final Outcome: The ALJ concluded that the HOA acted in compliance with both subsections (A) and (B) of the statute. The HOA was again declared the prevailing party, and the Petitioner’s appeal was dismissed. The decision was declared binding on the parties, subject to judicial review in superior court.
Study Guide – 19F-H1918042-REL-RHG
Study Guide: Tober v. Civano 1 Neighborhood 1 Homeowners Association
This study guide provides a comprehensive review of the administrative case No. 19F-H1918042-REL, involving Petitioner Joan A. Tober and Respondent Civano 1 Neighborhood 1 Homeowners Association. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms to facilitate a thorough understanding of the case’s facts, legal arguments, and procedural history.
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Short Answer Quiz
Instructions: Answer the following questions in 2-3 sentences, using only information provided in the source documents.
1. What specific event prompted Joan Tober to first request documents from the HOA in November 2018?
2. What was the HOA’s primary legal justification for refusing to provide a copy of “the Letter” to the Petitioner?
3. According to Arizona statute A.R.S. § 33-1805(A), what is the required timeframe for an HOA to make records available to a member after a written request?
4. What was the Petitioner’s core argument for why the HOA had forfeited its right to keep “the Letter” confidential?
5. On what grounds did the Petitioner file her request for a rehearing after the initial decision on July 29, 2019?
6. How did the Petitioner’s document request evolve between her first communication on November 26, 2018, and her third request on November 29, 2018?
7. What crucial step did the Administrative Law Judge conclude the Petitioner failed to take after the HOA’s email on November 29, 2018?
8. Besides “the Letter,” what other key documents related to the North Ridge wall did the Petitioner already possess when she filed her formal request?
9. Describe the Petitioner’s long-standing involvement and activities within the Civano 1 HOA community.
10. What was the final ruling in the Administrative Law Judge Decision on Rehearing, issued January 15, 2020?
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Answer Key
1. The request was prompted by the HOA Board meeting on November 20, 2018. At this meeting, the Board President mentioned receiving a letter from the HOA’s attorney regarding the North Ridge wall, stated its legal conclusion, and indicated, “I believe we can … send it out … so people can have it.”
2. The HOA’s primary justification was that the document was a privileged attorney-client communication. The HOA argued that the letter contained legal analysis and advice to the Board and was therefore exempt from disclosure under Arizona statute A.R.S. § 33-1805(B).
3. A.R.S. § 33-1805(A) states that a homeowners association has “ten business days” to fulfill a written request for examination of its financial and other records.
4. The Petitioner argued that the HOA had intentionally waived confidentiality. She contended that because the Board President mentioned the letter in an open meeting and the other Board members did not object, they showed unanimous consent to waive the attorney-client privilege.
5. The Petitioner requested a rehearing on the grounds that the initial Administrative Law Judge ruling “did not address the timeliness aspect of the law.” She argued that while the HOA eventually provided access to some records, it had not done so within the required 10-business day period.
6. The Petitioner’s request evolved from a specific ask for a copy of “the Letter” on November 26 and 27 to a much broader request on November 29. Her third request asked for “any and all documentation to include the letter… regarding the structural integrity and the Association members’ responsibility for same and all background information.”
7. The Judge concluded that the Petitioner failed to respond to the HOA’s request for clarification in its November 29 email. The HOA had asked if she needed a copy of the “original engineer report,” and the Judge found no evidence in the hearing records that the Petitioner ever answered this question, thus preventing the HOA from being able to reasonably make records available.
8. The Petitioner already possessed the 2013 Engineering report and the 2014 report concerning erosion issues with the North Ridge wall. She acknowledged at the rehearing that she had obtained these from the city in 2014.
9. The Petitioner worked for the company that developed the land, purchased her home in 2001, and has been a past Board member. At the time of the dispute, she was an alternate member of the Finance Committee and had been taping and often transcribing every HOA meeting since 2008.
10. The final ruling was that the HOA was the prevailing party and had not violated A.R.S. § 33-1805. The Judge concluded the HOA was not required to provide the privileged letter and that its failure to provide other documents within 10 days was excused because the Petitioner’s request was “unreasonably broad” and she failed to clarify it. The Petitioner’s appeal was dismissed.
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Essay Questions
Instructions: The following questions are designed for a longer, essay-format response. No answers are provided.
1. Analyze the concept of “waiver” of attorney-client privilege as it was argued in this case. Discuss the Petitioner’s claim that the President’s public comments constituted a waiver and contrast this with the Administrative Law Judge’s implicit and explicit findings on the matter.
2. Trace the procedural history of this case, beginning with the initial petition filing on December 26, 2018, and concluding with the final notice of appeal rights in the January 15, 2020 order. Identify the key legal proceedings, decisions, and dates that marked the progression of the dispute.
3. Discuss the legal standard of “preponderance of the evidence” as defined in the court documents. Explain how the Administrative Law Judge applied this standard to the evidence presented by the Petitioner and why the Petitioner ultimately failed to meet her burden of proof in both the initial hearing and the rehearing.
4. Examine the role and interpretation of Arizona statute A.R.S. § 33-1805 in this dispute. How did the two key subsections, (A) and (B), create the central legal conflict between the Petitioner’s right to access records and the HOA’s right to withhold privileged information?
5. Evaluate the Administrative Law Judge’s reasoning that the Petitioner’s November 29, 2018 request was “unreasonably broad.” How did this determination, combined with the Petitioner’s alleged failure to clarify her request, become the deciding factor in the rehearing?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The official, in this case Kay Abramsohn, who presides over hearings at the Office of Administrative Hearings and issues legal decisions and orders.
Arizona Department of Real Estate (“the Department”)
The state agency authorized by statute to receive and decide Petitions for Hearings from members of homeowners’ associations in Arizona.
A.R.S. § 33-1805
The Arizona Revised Statute governing access to homeowners’ association records. Subsection (A) requires records be made “reasonably available” within ten business days, while subsection (B) allows for withholding of privileged attorney-client communications.
Attorney-Client Privilege
A legal concept that allows for certain communications between an attorney and their client (in this case, the HOA) to be kept confidential. The HOA cited this privilege as the reason for withholding “the Letter.”
Burden of Proof
The obligation of a party in a legal proceeding to prove their allegations. In this case, the Petitioner bore the burden of proving by a preponderance of the evidence that the HOA violated statutes or community documents.
Executive Session
A private meeting of a board of directors. “The Letter” had been discussed by the HOA Board in an executive session prior to the public meeting where it was mentioned.
An acronym for Homeowners Association. In this case, the Respondent is the Civano 1 Neighborhood 1 Homeowners Association.
Office of Administrative Hearings (OAH)
The office with the legal authority to hear and decide contested cases involving disputes between homeowners and planned community associations in Arizona.
Petition
The formal, single-issue complaint filed by the Petitioner with the Department of Real Estate on December 26, 2018, which initiated the legal proceedings.
Petitioner
The party who files a petition initiating a legal action. In this case, the Petitioner is Joan A. Tober.
Preponderance of the Evidence
The standard of proof required in this proceeding. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not,” and “the greater weight of the evidence.”
Rehearing
A second hearing granted to re-examine a legal case after an initial decision has been made. A rehearing was granted in this case to address the Petitioner’s claim that the initial ruling did not consider the “timeliness aspect of the law.”
Respondent
The party against whom a petition is filed. In this case, the Respondent is the Civano 1 Neighborhood 1 Homeowners Association.
The Letter
The specific document at the heart of the dispute: a privileged legal opinion letter from the HOA’s attorneys to the Board regarding the North Ridge wall, which was “disclosed and discussed” at the November 20, 2018, Board meeting.
Blog Post – 19F-H1918042-REL-RHG
She Recorded Every HOA Meeting for a Decade and Still Lost. Here’s What Every Homeowner Can Learn.
Introduction: The Fight for Information
Many homeowners have felt the frustration of seeking information from their Homeowners Association (HOA), only to feel that the board is being less than transparent. It’s a common story that often ends in resignation. But for one Arizona homeowner, it ended in a formal administrative hearing.
This is the story of Joan A. Tober, a remarkably dedicated resident who filed a petition against her HOA with the Arizona Department of Real Estate over access to documents related to a retaining wall. She was a former board member, sat on the finance committee, and, most astoundingly, had personally recorded and often transcribed every single HOA meeting for over a decade. Yet, despite her exhaustive personal record-keeping, her petition was denied. The surprising and counter-intuitive lessons from her story offer a masterclass for any homeowner navigating a dispute with their association.
1. Takeaway #1: The “Attorney-Client Privilege” Shield is Stronger Than You Think.
The central conflict revolved around a single document: a letter from the HOA’s attorney. During an open board meeting, the Board President mentioned the letter, which concerned the association’s responsibility for a retaining wall, and created an expectation of transparency, stating: “I believe we can … send it out … so people can have it.”
Ms. Tober argued that by openly discussing the letter and offering to distribute it, the board had waived its confidentiality, and she was therefore entitled to a copy. It seems like a logical assumption. However, the Administrative Law Judge (ALJ) disagreed, pointing directly to the law. Under Arizona law (A.R.S. § 33-1805(B)), “privileged communication between an attorney for the association and the association” can be legally withheld from members.
The tribunal found that the mere mention of the letter in a public meeting—even with the president’s comment—did not break that legal privilege. This is a critical point for homeowners to understand. The law protects the board’s ability to seek and receive candid legal advice to govern the association effectively. While it may feel like a lack of transparency, this shield is a fundamental and legally protected aspect of HOA operations.
2. Takeaway #2: Asking for “Everything” Can Get You Nothing.
Beyond the privileged letter, the evolution and wording of Ms. Tober’s request became a major factor in the denial of her petition. The timeline shows how a homeowner’s frustration can lead to a fatal strategic error. On November 26 and 27, 2018, she made two specific requests for the attorney’s letter. The HOA responded that it was seeking clarification from its attorney.
After this delay, Ms. Tober’s third request, dated November 29, escalated significantly. She now asked for: “any and all documentation to include the letter that was disclosed and discussed… and all background information.”
In response, the HOA asked for clarification, but according to the hearing record, Ms. Tober could not provide evidence that she ever replied to narrow her request. This failure proved fatal. The Administrative Law Judge found the request to be “unreasonably broad.” The judge’s decision on the matter was blunt and serves as a powerful warning:
An association is not required to guess what records are being requested.
The ultimate reason for the denial synthesized both issues: “Petitioner failed to respond to the HOA request for clarification of her unreasonably broad request, preventing the HOA from being able to reasonably make records available.” This demonstrates that the legal burden falls squarely on the homeowner to articulate a request the association can reasonably fulfill. As the ALJ noted, an association is not required to be a mind reader.
3. Takeaway #3: Diligence Alone Doesn’t Guarantee a Win.
What makes this story so compelling is the extraordinary diligence of the petitioner. Joan Tober was not a casual observer. The hearing records establish her deep involvement in the community: she was a former Board member, a member of the Finance Committee, and had even worked for the company that originally developed the community.
But one fact, noted in the ALJ’s decision, highlights her stunning level of dedication:
Since 2008, Petitioner has taped every meeting and she often creates a transcript of the meetings.
Despite this decade of meticulous personal record-keeping and her clear passion for the issue, her petition was denied—not just once, but twice, on the initial hearing and again on the rehearing. This presents a sobering reality for all homeowners. While passion, engagement, and even a mountain of personal documentation are valuable, they cannot overcome fundamental legal principles. The outcome of a formal hearing is determined by the strength of the legal argument, not the volume of personal effort expended.
Conclusion: Strategy Over Sheer Effort
The petition of Joan A. Tober is a powerful reminder that when dealing with an HOA, effectiveness is not always measured by effort. Her story provides three critical takeaways for every homeowner: attorney-client privilege provides HOAs with a strong legal shield, record requests must be specific and targeted to be enforceable, and meticulous personal diligence must be paired with a sound legal strategy to succeed in a formal dispute.
This case leaves every homeowner with a critical question: when you have a dispute, are you channeling your energy into the most effective strategy, or simply into the most effort?
Case Participants
Petitioner Side
Joan A. Tober(petitioner) Former Board member; current Finance Committee member
Respondent Side
Diana J. Elston(HOA attorney) Jones, Skelton & Hochuli, P.L.C.
Mr. Mastrosimone(Board President) Civano 1 Neighborhood 1 Homeowners Association Testified at rehearing
Neutral Parties
Kay A. Abramsohn(ALJ)
Judy Lowe(Commissioner) Arizona Department of Real Estate
c. serrano(Clerk)
Felicia Del Sol(Clerk)
LDettorre(ADRE staff) Arizona Department of Real Estate Addressed in transmittal
AHansen(ADRE staff) Arizona Department of Real Estate Addressed in transmittal
djones(ADRE staff) Arizona Department of Real Estate Addressed in transmittal
DGardner(ADRE staff) Arizona Department of Real Estate Addressed in transmittal
ncano(ADRE staff) Arizona Department of Real Estate Addressed in transmittal
The Petitioner's request for a hearing was denied and the petition was dismissed because the Petitioner failed to prove the Homeowners Association violated A.R.S. § 33-1804(B) or its Bylaw 1.5 by refusing to place a proposed bylaw amendment on the meeting agenda or ballot.
Why this result: The relevant statute and HOA bylaws do not mandate that the Board add a member-proposed amendment to the agenda; the member has the independent recourse of gathering member support (25% or 1/4 of votes) to call a special meeting, a route the Petitioner was aware of but did not pursue.
Key Issues & Findings
Failure to place a proposed bylaw amendment on the agenda of the annual meeting
Petitioner alleged Respondent HOA violated A.R.S. § 33-1804(B) and Bylaw 1.5 by refusing to place his proposed bylaw amendment (Bylaw 3.13, concerning banning directors whose actions resulted in a paid claim) on the agenda or ballot for the annual meeting.
Orders: Petition denied because Petitioner did not establish that Respondent violated the cited statute or bylaw by declining to add the proposed amendment to the agenda or ballot.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 33-1804(B)
Bylaw 1.5
Bylaw 2.2
Analytics Highlights
Topics: HOA, Bylaw Amendment, Meeting Agenda, Director liability, Statute interpretation
Additional Citations:
A.R.S. § 33-1804(B)
A.R.S. § 32-2199(B)
A.R.S. § 41-1092.07(G)(2)
A.R.S. § 41-1092.09
Respondent’s Bylaw 1.5
Respondent’s Bylaw 2.2
Video Overview
Audio Overview
Decision Documents
19F-H1919065-REL Decision – 742075.pdf
Uploaded 2026-01-23T17:29:36 (159.4 KB)
Briefing Doc – 19F-H1919065-REL
Briefing Document: West v. Desert Sage Two Homeowners Association (Case No. 19F-H1919065-REL)
Executive Summary
This document provides a comprehensive analysis of the Administrative Law Judge (ALJ) Decision in the matter of Jason West (Petitioner) versus the Desert Sage Two Homeowners Association (Respondent), Case No. 19F-H1919065-REL. The petition, filed on May 20, 2019, was ultimately denied in a decision issued on October 1, 2019.
The central issue was the Petitioner’s allegation that the Respondent’s Board of Directors violated Arizona statute A.R.S. § 33-1804(B) and its own Bylaw 1.5 by refusing to add his proposed bylaw amendment to the agenda for the annual members’ meeting. The proposed amendment sought to ban directors from serving for five years if their actions resulted in a paid claim against the Association.
The ALJ’s ruling was decisive: the Petitioner failed to meet the burden of proof. The decision rested on a strict interpretation of the relevant statute and bylaws. The ALJ concluded that neither A.R.S. § 33-1804(B) nor the Association’s bylaws compel the Board to place a member-initiated proposal on the agenda of a Board-scheduled meeting. Critically, the bylaws provide a distinct and available remedy for members: Bylaw 2.2 allows members to force a special meeting for any purpose, including bylaw amendments, by gathering the support of 25% of the voting membership. The record showed the Petitioner was aware of this option but did not attempt to use it. Consequently, the petition was dismissed. The Respondent’s request for attorney’s fees was also denied, as the presiding body (the Office of Administrative Hearings) lacks the statutory authority to award them in such proceedings.
1. Case Overview
Case Name
Jason West v. Desert Sage Two Homeowners Association
Case Number
19F-H1919065-REL
Jurisdiction
Office of Administrative Hearings (OAH), Arizona
Presiding Judge
Administrative Law Judge Diane Mihalsky
Hearing Date
September 26, 2019
Decision Date
October 1, 2019
Petitioner
Jason West, appearing on his own behalf
Respondent
Desert Sage Two Homeowners Association, represented by Bradley R. Jardine, Esq.
Core Allegation: The Petitioner alleged that the Respondent’s Board violated state law and its governing documents by refusing to include his proposed bylaw amendment on the agenda and ballot for the annual meeting held in June 2019.
2. The Proposed Bylaw Amendment (Bylaw 3.13)
The Petitioner submitted a proposal to add a new Bylaw 3.13 to the Association’s governing documents. The full text of the proposed amendment is as follows:
Directors whose actions result in a paid claim
In an effort to reduce liability to the Association, any current or former director whose actions have resulted in a paid claim by the Association or its insurance carrier, is banned from serving as a director for a period of five years from the date of the final payment. This five year directorship ban also applies to any other individual co-owning an Association lot with the director. This Amendment is retroactive.
The stated purpose of the amendment was to reduce the Association’s liability. The decision notes that some of the current Board members may have been serving when the Association’s insurance carrier paid legal fees and other costs associated with a previous petition filed by the Petitioner.
3. Chronology of the Dispute
• December 23, 2018: The Petitioner first sent his proposed Bylaw 3.13 amendment to Joanelize Morales, the Association’s property manager.
• January 3 & 4, 2019: The Petitioner emailed Mickey Latz, owner of the management company, demanding the proposal be added to the next meeting’s agenda and ballot. In this correspondence, the Petitioner explicitly stated his awareness of the alternative process, writing, “I can also force the Board to call a Special Meeting of the Members at any time with 10 signatures from members of our Association. This is Article 2.2 of our Bylaws.”
• January – June 2019: Mr. Latz repeatedly informed the Petitioner that the Board, based on legal advice, had decided not to add the proposal to the agenda of a Board-scheduled meeting.
• April 17, 2019: Notice was sent to members for the annual meeting scheduled for June 4, 2019. The agenda was limited to (1) Election of Directors and (2) Approval of 2018 Annual Meeting Minutes. On the same day, the Petitioner re-sent his proposed amendment.
• May 14, 2019: The Petitioner attended a Board meeting and threatened to file a petition with the Department of Real Estate if his amendment was not placed on the agenda.
• May 20, 2019: The Petitioner filed the formal petition that led to this hearing.
• June 3, 2019: A notice was sent rescheduling the meeting to June 20, 2019, with the agenda unchanged.
• June 20, 2019: At the annual meeting, the Petitioner, whose name was on the ballot, was not elected to the Board of Directors.
4. Governing Authorities and Bylaws
The ALJ’s decision centered on the interpretation of one state statute and two specific Association bylaws.
• A.R.S. § 33-1804(B): This Arizona statute governs homeowners’ association meetings. It requires annual meetings and specifies notice requirements. It explicitly provides a mechanism for members to call special meetings: “Special meetings of the members’ association may be called by the president, by a majority of the board of directors or by members having at least twenty-five percent, or any lower percentage specified in the bylaws, of the votes in the association.”
• Bylaw 1.5 (Amendment Process): This bylaw states that amendments can be made “at a regular or special meeting of the Members, by a vote of the Members having a majority (more than 50%) of the votes.” The ALJ found that this bylaw is permissive, allowing for votes on amendments, but does not obligate the Board to place any specific proposal on an agenda.
• Bylaw 2.2 (Special Meetings): This bylaw mirrors the state statute, allowing members to compel a meeting. It states: “Special meetings of the Members may be called at any time … upon written request signed by Members having at least one-fourth (1/4) of the authorized votes… which request shall be delivered to the President or Secretary.”
5. Summary of Key Testimony
The hearing included testimony from the Petitioner and six witnesses he subpoenaed, including property managers and the three current Board members.
• Board Members (Bryan Selna, David Epstein, Linda Seidler): All testified that they consulted with the Association’s attorneys and property management company. Based on the advice received, they collectively decided not to add the Petitioner’s proposal to the agenda.
• Mickey Latz (Property Management Co. Owner): Testified that the Board as a whole, not the secretary, determines the meeting agenda. He affirmed that counsel had advised the Board it was not obligated to add member-requested items. Mr. Latz testified that he explicitly pointed the Petitioner to the process outlined in Bylaw 2.2, which allows members to call their own meetings directly.
• Joanelize Morales (Property Manager): Confirmed that she prepares meeting agendas based on the Board’s instructions. She also testified that the Petitioner never attempted to use the Bylaw 2.2 process to gather the support of his neighbors to schedule a meeting to consider his proposed amendment.
6. Historical Context and Prior Litigation
The decision provides context regarding the Petitioner’s previous interactions with the Association.
• Prior Petition (OAH Case No. 17F-H1716031-REL): In April 2017, the Petitioner filed a petition concerning the Board’s failure to fill vacant positions. On June 28, 2017, an ALJ dismissed that petition, concluding that the Board had done all it could and that vacancies were due in part to the Petitioner’s “obstructionist tactics.”
• Successful Amendment (Bylaw 3.12): In April 2017, the Petitioner proposed a different amendment regarding director resignations. The Board at that time agreed to submit it to a vote, and it was passed by the membership in May 2017.
7. Administrative Law Judge’s Decision and Rationale
The ALJ’s conclusions of law methodically dismantled the Petitioner’s claims, leading to the dismissal of the petition.
• Burden of Proof: The decision established that the Petitioner bore the burden of proving, by a preponderance of the evidence, that the Respondent had violated the statute and bylaw.
• Statutory and Bylaw Interpretation: The ALJ applied a plain-language reading to the governing authorities.
◦ The court found that nothing in the language of A.R.S. § 33-1804(B)requires an HOA board to add an item to an agenda at a member’s request. Instead, it provides the remedy for members to call a meeting themselves.
◦ Similarly, the court concluded that Bylaw 1.5 allows for bylaw amendments to be considered at meetings but does not compel the Board to include such proposals on the agenda of a meeting it has noticed.
◦ The ALJ found that Bylaw 2.2 provides the explicit and proper procedure for a member to bring an issue to a vote when the Board declines to do so: gather support from 25% of the members to call a special meeting.
• Final Ruling: Because the Petitioner failed to establish a violation of any cited statute or bylaw, the petition was ordered to be denied.
• Attorney’s Fees: The Respondent’s request for attorney’s fees was denied. The decision cited legal precedent establishing that administrative bodies like the Department of Real Estate and the OAH are not empowered by the legislature to award attorney’s fees in these types of disputes.
Study Guide – 19F-H1919065-REL
Study Guide: West v. Desert Sage Two Homeowners Association
Short-Answer Quiz
Answer the following questions in 2-3 complete sentences, based on the provided administrative law judge decision.
1. Who are the Petitioner and the Respondent in this case, and what is their relationship?
2. What specific action did the Petitioner, Jason West, allege the Respondent took that violated Arizona statute and the association’s bylaws?
3. Describe the substance of the proposed Bylaw 3.13 that the Petitioner wanted to add to the agenda.
4. What was the Respondent’s primary defense for not adding the proposed bylaw amendment to the annual meeting’s agenda or ballot?
5. According to Bylaw 2.2, what procedural option did the Petitioner have to bring his proposed amendment to a vote without the Board’s approval?
6. What was the outcome of the Petitioner’s previous case against the Respondent in 2017 (OAH Case No. 17F-H1716031-REL)?
7. What two specific authorities did the Petitioner claim the Respondent’s Board violated?
8. According to the Administrative Law Judge’s interpretation, does A.R.S. § 33-1804(B) require an HOA board to add an item to an agenda at a single member’s request?
9. What was the final order of the Administrative Law Judge in this case (No. 19F-H1919065-REL)?
10. What was the judge’s ruling regarding the Respondent’s request for attorney’s fees, and what was the reason for this ruling?
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Answer Key
1. The Petitioner is Jason West, who owns a house in the Desert Sage Two development. The Respondent is the Desert Sage Two Homeowners Association, of which the Petitioner is a member.
2. The Petitioner alleged that the Respondent violated A.R.S. § 33-1804(B) and its own Bylaw 1.5. The specific violation was the Board’s failure to place a bylaw amendment proposed by the Petitioner on the agenda of the association’s annual meeting.
3. The proposed Bylaw 3.13 sought to ban any current or former director from serving on the board for five years if their actions resulted in a paid claim by the association or its insurance carrier. This ban would be retroactive and also apply to any individual co-owning a lot with the director.
4. The Respondent’s Board, after consulting with its attorneys and property management company, argued that neither state law nor its bylaws obliged them to add items to an agenda at a single member’s request. They contended that the Petitioner had the option to call a special meeting himself by gathering support from other members.
5. Bylaw 2.2 allows for a special meeting of the members to be called upon a written request signed by members who hold at least one-fourth (25%) of the authorized votes. The Petitioner was aware of this option but had not attempted to use it.
6. In the previous case, the Administrative Law Judge dismissed the Petitioner’s petition. The judge concluded that the Board had done all it could to fill vacant positions and that the Petitioner’s own “obstructionist tactics” were part of the reason no eligible members were willing to serve.
7. The Petitioner claimed the Respondent’s Board violated Arizona Revised Statute § 33-1804(B) and the association’s Bylaw 1.5.
8. No, the judge concluded that nothing in the language of A.R.S. § 33-1804(B) requires a homeowners’ association board to add an item to an agenda or ballot at the request of a single member. The statute only provides that members with at least 25% of the votes can independently call a meeting.
9. The Administrative Law Judge ordered that the Petitioner’s petition be denied. The judge found that the Petitioner had not established that the Respondent’s Board violated either A.R.S. § 33-1804(B) or Bylaw 1.5.
10. The judge ruled that attorney’s fees could not be awarded to the Respondent. The reason given is that the legislature has not empowered the Department of Real Estate or the Office of Administrative Hearings to award attorney’s fees in this type of administrative proceeding.
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Essay Questions
Construct a detailed essay response for each of the following prompts, using only evidence and reasoning found within the case document.
1. Analyze the Administrative Law Judge’s method of statutory construction and interpretation of restrictive covenants. How did the judge apply these principles to A.R.S. § 33-1804(B) and Bylaw 1.5 to reach a conclusion?
2. Discuss the balance of power between an individual HOA member and the Board of Directors as illustrated in this case. What rights and recourses are available to a member who disagrees with a Board decision, according to the Respondent’s Bylaws?
3. Explain the concept of “burden of proof” as it applies to this case. Who held the burden of proof, what was the standard required, and why was the Petitioner unable to meet this standard?
4. Examine the history between the Petitioner and the Respondent as detailed in the “Findings of Fact.” How might this prior history, including the 2017 legal case and a previously successful bylaw amendment, have influenced the actions of both parties in the current dispute?
5. Based on the testimony of Michael David (“Mickey”) Latz and the text of the bylaws, contrast the process for placing an item on the agenda of a Board-scheduled meeting versus the process for calling a member-initiated special meeting. What are the key differences in initiative, requirements, and control?
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Glossary of Key Terms
Definition from Source Context
Administrative Law Judge (ALJ)
An independent official (Diane Mihalsky) from the Office of Administrative Hearings who presides over evidentiary hearings and issues decisions on petitions filed with the Arizona Department of Real Estate.
A.R.S. § 33-1804(B)
An Arizona statute cited by the Petitioner. It stipulates that an HOA members’ meeting must be held at least annually and that special meetings can be called by the president, a board majority, or members with at least 25% of the votes.
Bylaw 1.5
A bylaw of the Desert Sage Two HOA that states the Bylaws may be amended at a regular or special meeting by a majority vote of members present in person or by proxy.
Bylaw 2.2
A bylaw of the Desert Sage Two HOA that allows for special meetings of the members to be called by the president, the Board, or upon written request from members holding at least one-fourth (25%) of the votes.
Department
The Arizona Department of Real Estate, the state body authorized to receive and decide petitions for hearings from members of homeowners’ associations.
Homeowners’ Association
An organization whose members own property and/or residences in a specific development (in this case, Desert Sage Two in Scottsdale, Arizona).
Office of Administrative Hearings (OAH)
An independent state agency to which the Department refers petitions for an evidentiary hearing.
Petitioner
Jason West, the member of the homeowners’ association who filed the petition alleging a violation by the association’s Board.
Petition
A formal complaint filed with the Department of Real Estate by an HOA member or the HOA itself concerning alleged violations.
Preponderance of the evidence
The burden of proof standard required in the hearing. It is defined as “proof as convinces the trier of fact that the contention is more probably true than not” and as evidence with “the most convincing force.”
Respondent
The Desert Sage Two Homeowners Association, the entity against which the petition was filed.
Restrictive Covenant
A rule or provision within community documents, like bylaws, that is enforced to give effect to the intent of the parties if it is unambiguous.
Blog Post – 19F-H1919065-REL
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19F-H1919065-REL
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This text is an Administrative Law Judge Decision from the Arizona Office of Administrative Hearings (OAH) concerning a dispute between a homeowner, Jason West (Petitioner), and his association, the Desert Sage Two Homeowners Association (Respondent). The Petitioner alleged that the Respondent violated Arizona statute (A.R.S. § 33-1804(B)) and an association bylaw by refusing to place his proposed bylaw amendment on the agenda of the annual meeting. The proposed amendment sought to ban directors whose actions resulted in a paid insurance claim from serving for five years, but the Administrative Law Judge (ALJ) found that neither the statute nor the association’s bylaws required the Board to add a member-proposed item to a scheduled agenda or ballot. Therefore, the ALJ concluded that the Petitioner failed to prove a violation and denied the petition.
What was the specific legal and procedural context of this homeowners association dispute?
How did the Petitioner’s proposed bylaw amendment attempt to alter Board member liability?
What statutory and bylaw provisions guided the final Administrative Law Judge decision?
Edward A. Padilla(property manager) Desert Sage Two Homeowners Association Property manager in May 2017; testified for Petitioner; also referred to as 'Eddie'
Joanelize Morales(property manager) Desert Sage Two Homeowners Association Property manager since August 2018; testified for Petitioner
Bryan Robert Selna(board member) Desert Sage Two Homeowners Association Current Vice President of Respondent's Board; testified for Petitioner
David Epstein(board member) Desert Sage Two Homeowners Association Current President of Respondent's Board; testified for Petitioner
Linda Maria Seidler(board member) Desert Sage Two Homeowners Association Current Secretary of Respondent's Board; testified for Petitioner
Michael David Latz(property manager) Golden Valley Property Management Owner of Golden Valley Property Management; testified for Petitioner; also referred to as 'Mickey'
Neutral Parties
Diane Mihalsky(ALJ) Office of Administrative Hearings
Judy Lowe(ADRE Commissioner) Arizona Department of Real Estate
The Petitioner's request for a hearing was denied and the petition was dismissed because the Petitioner failed to prove the Homeowners Association violated A.R.S. § 33-1804(B) or its Bylaw 1.5 by refusing to place a proposed bylaw amendment on the meeting agenda or ballot.
Why this result: The relevant statute and HOA bylaws do not mandate that the Board add a member-proposed amendment to the agenda; the member has the independent recourse of gathering member support (25% or 1/4 of votes) to call a special meeting, a route the Petitioner was aware of but did not pursue.
Key Issues & Findings
Failure to place a proposed bylaw amendment on the agenda of the annual meeting
Petitioner alleged Respondent HOA violated A.R.S. § 33-1804(B) and Bylaw 1.5 by refusing to place his proposed bylaw amendment (Bylaw 3.13, concerning banning directors whose actions resulted in a paid claim) on the agenda or ballot for the annual meeting.
Orders: Petition denied because Petitioner did not establish that Respondent violated the cited statute or bylaw by declining to add the proposed amendment to the agenda or ballot.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 33-1804(B)
Bylaw 1.5
Bylaw 2.2
Analytics Highlights
Topics: HOA, Bylaw Amendment, Meeting Agenda, Director liability, Statute interpretation
Additional Citations:
A.R.S. § 33-1804(B)
A.R.S. § 32-2199(B)
A.R.S. § 41-1092.07(G)(2)
A.R.S. § 41-1092.09
Respondent’s Bylaw 1.5
Respondent’s Bylaw 2.2
Video Overview
Audio Overview
Decision Documents
19F-H1919065-REL Decision – 742075.pdf
Uploaded 2025-10-09T03:34:19 (159.4 KB)
Briefing Doc – 19F-H1919065-REL
Briefing Document: West v. Desert Sage Two Homeowners Association (Case No. 19F-H1919065-REL)
Executive Summary
This document provides a comprehensive analysis of the Administrative Law Judge (ALJ) Decision in the matter of Jason West (Petitioner) versus the Desert Sage Two Homeowners Association (Respondent), Case No. 19F-H1919065-REL. The petition, filed on May 20, 2019, was ultimately denied in a decision issued on October 1, 2019.
The central issue was the Petitioner’s allegation that the Respondent’s Board of Directors violated Arizona statute A.R.S. § 33-1804(B) and its own Bylaw 1.5 by refusing to add his proposed bylaw amendment to the agenda for the annual members’ meeting. The proposed amendment sought to ban directors from serving for five years if their actions resulted in a paid claim against the Association.
The ALJ’s ruling was decisive: the Petitioner failed to meet the burden of proof. The decision rested on a strict interpretation of the relevant statute and bylaws. The ALJ concluded that neither A.R.S. § 33-1804(B) nor the Association’s bylaws compel the Board to place a member-initiated proposal on the agenda of a Board-scheduled meeting. Critically, the bylaws provide a distinct and available remedy for members: Bylaw 2.2 allows members to force a special meeting for any purpose, including bylaw amendments, by gathering the support of 25% of the voting membership. The record showed the Petitioner was aware of this option but did not attempt to use it. Consequently, the petition was dismissed. The Respondent’s request for attorney’s fees was also denied, as the presiding body (the Office of Administrative Hearings) lacks the statutory authority to award them in such proceedings.
1. Case Overview
Case Name
Jason West v. Desert Sage Two Homeowners Association
Case Number
19F-H1919065-REL
Jurisdiction
Office of Administrative Hearings (OAH), Arizona
Presiding Judge
Administrative Law Judge Diane Mihalsky
Hearing Date
September 26, 2019
Decision Date
October 1, 2019
Petitioner
Jason West, appearing on his own behalf
Respondent
Desert Sage Two Homeowners Association, represented by Bradley R. Jardine, Esq.
Core Allegation: The Petitioner alleged that the Respondent’s Board violated state law and its governing documents by refusing to include his proposed bylaw amendment on the agenda and ballot for the annual meeting held in June 2019.
2. The Proposed Bylaw Amendment (Bylaw 3.13)
The Petitioner submitted a proposal to add a new Bylaw 3.13 to the Association’s governing documents. The full text of the proposed amendment is as follows:
Directors whose actions result in a paid claim
In an effort to reduce liability to the Association, any current or former director whose actions have resulted in a paid claim by the Association or its insurance carrier, is banned from serving as a director for a period of five years from the date of the final payment. This five year directorship ban also applies to any other individual co-owning an Association lot with the director. This Amendment is retroactive.
The stated purpose of the amendment was to reduce the Association’s liability. The decision notes that some of the current Board members may have been serving when the Association’s insurance carrier paid legal fees and other costs associated with a previous petition filed by the Petitioner.
3. Chronology of the Dispute
• December 23, 2018: The Petitioner first sent his proposed Bylaw 3.13 amendment to Joanelize Morales, the Association’s property manager.
• January 3 & 4, 2019: The Petitioner emailed Mickey Latz, owner of the management company, demanding the proposal be added to the next meeting’s agenda and ballot. In this correspondence, the Petitioner explicitly stated his awareness of the alternative process, writing, “I can also force the Board to call a Special Meeting of the Members at any time with 10 signatures from members of our Association. This is Article 2.2 of our Bylaws.”
• January – June 2019: Mr. Latz repeatedly informed the Petitioner that the Board, based on legal advice, had decided not to add the proposal to the agenda of a Board-scheduled meeting.
• April 17, 2019: Notice was sent to members for the annual meeting scheduled for June 4, 2019. The agenda was limited to (1) Election of Directors and (2) Approval of 2018 Annual Meeting Minutes. On the same day, the Petitioner re-sent his proposed amendment.
• May 14, 2019: The Petitioner attended a Board meeting and threatened to file a petition with the Department of Real Estate if his amendment was not placed on the agenda.
• May 20, 2019: The Petitioner filed the formal petition that led to this hearing.
• June 3, 2019: A notice was sent rescheduling the meeting to June 20, 2019, with the agenda unchanged.
• June 20, 2019: At the annual meeting, the Petitioner, whose name was on the ballot, was not elected to the Board of Directors.
4. Governing Authorities and Bylaws
The ALJ’s decision centered on the interpretation of one state statute and two specific Association bylaws.
• A.R.S. § 33-1804(B): This Arizona statute governs homeowners’ association meetings. It requires annual meetings and specifies notice requirements. It explicitly provides a mechanism for members to call special meetings: “Special meetings of the members’ association may be called by the president, by a majority of the board of directors or by members having at least twenty-five percent, or any lower percentage specified in the bylaws, of the votes in the association.”
• Bylaw 1.5 (Amendment Process): This bylaw states that amendments can be made “at a regular or special meeting of the Members, by a vote of the Members having a majority (more than 50%) of the votes.” The ALJ found that this bylaw is permissive, allowing for votes on amendments, but does not obligate the Board to place any specific proposal on an agenda.
• Bylaw 2.2 (Special Meetings): This bylaw mirrors the state statute, allowing members to compel a meeting. It states: “Special meetings of the Members may be called at any time … upon written request signed by Members having at least one-fourth (1/4) of the authorized votes… which request shall be delivered to the President or Secretary.”
5. Summary of Key Testimony
The hearing included testimony from the Petitioner and six witnesses he subpoenaed, including property managers and the three current Board members.
• Board Members (Bryan Selna, David Epstein, Linda Seidler): All testified that they consulted with the Association’s attorneys and property management company. Based on the advice received, they collectively decided not to add the Petitioner’s proposal to the agenda.
• Mickey Latz (Property Management Co. Owner): Testified that the Board as a whole, not the secretary, determines the meeting agenda. He affirmed that counsel had advised the Board it was not obligated to add member-requested items. Mr. Latz testified that he explicitly pointed the Petitioner to the process outlined in Bylaw 2.2, which allows members to call their own meetings directly.
• Joanelize Morales (Property Manager): Confirmed that she prepares meeting agendas based on the Board’s instructions. She also testified that the Petitioner never attempted to use the Bylaw 2.2 process to gather the support of his neighbors to schedule a meeting to consider his proposed amendment.
6. Historical Context and Prior Litigation
The decision provides context regarding the Petitioner’s previous interactions with the Association.
• Prior Petition (OAH Case No. 17F-H1716031-REL): In April 2017, the Petitioner filed a petition concerning the Board’s failure to fill vacant positions. On June 28, 2017, an ALJ dismissed that petition, concluding that the Board had done all it could and that vacancies were due in part to the Petitioner’s “obstructionist tactics.”
• Successful Amendment (Bylaw 3.12): In April 2017, the Petitioner proposed a different amendment regarding director resignations. The Board at that time agreed to submit it to a vote, and it was passed by the membership in May 2017.
7. Administrative Law Judge’s Decision and Rationale
The ALJ’s conclusions of law methodically dismantled the Petitioner’s claims, leading to the dismissal of the petition.
• Burden of Proof: The decision established that the Petitioner bore the burden of proving, by a preponderance of the evidence, that the Respondent had violated the statute and bylaw.
• Statutory and Bylaw Interpretation: The ALJ applied a plain-language reading to the governing authorities.
◦ The court found that nothing in the language of A.R.S. § 33-1804(B)requires an HOA board to add an item to an agenda at a member’s request. Instead, it provides the remedy for members to call a meeting themselves.
◦ Similarly, the court concluded that Bylaw 1.5 allows for bylaw amendments to be considered at meetings but does not compel the Board to include such proposals on the agenda of a meeting it has noticed.
◦ The ALJ found that Bylaw 2.2 provides the explicit and proper procedure for a member to bring an issue to a vote when the Board declines to do so: gather support from 25% of the members to call a special meeting.
• Final Ruling: Because the Petitioner failed to establish a violation of any cited statute or bylaw, the petition was ordered to be denied.
• Attorney’s Fees: The Respondent’s request for attorney’s fees was denied. The decision cited legal precedent establishing that administrative bodies like the Department of Real Estate and the OAH are not empowered by the legislature to award attorney’s fees in these types of disputes.
Study Guide – 19F-H1919065-REL
Study Guide: West v. Desert Sage Two Homeowners Association
Short-Answer Quiz
Answer the following questions in 2-3 complete sentences, based on the provided administrative law judge decision.
1. Who are the Petitioner and the Respondent in this case, and what is their relationship?
2. What specific action did the Petitioner, Jason West, allege the Respondent took that violated Arizona statute and the association’s bylaws?
3. Describe the substance of the proposed Bylaw 3.13 that the Petitioner wanted to add to the agenda.
4. What was the Respondent’s primary defense for not adding the proposed bylaw amendment to the annual meeting’s agenda or ballot?
5. According to Bylaw 2.2, what procedural option did the Petitioner have to bring his proposed amendment to a vote without the Board’s approval?
6. What was the outcome of the Petitioner’s previous case against the Respondent in 2017 (OAH Case No. 17F-H1716031-REL)?
7. What two specific authorities did the Petitioner claim the Respondent’s Board violated?
8. According to the Administrative Law Judge’s interpretation, does A.R.S. § 33-1804(B) require an HOA board to add an item to an agenda at a single member’s request?
9. What was the final order of the Administrative Law Judge in this case (No. 19F-H1919065-REL)?
10. What was the judge’s ruling regarding the Respondent’s request for attorney’s fees, and what was the reason for this ruling?
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Answer Key
1. The Petitioner is Jason West, who owns a house in the Desert Sage Two development. The Respondent is the Desert Sage Two Homeowners Association, of which the Petitioner is a member.
2. The Petitioner alleged that the Respondent violated A.R.S. § 33-1804(B) and its own Bylaw 1.5. The specific violation was the Board’s failure to place a bylaw amendment proposed by the Petitioner on the agenda of the association’s annual meeting.
3. The proposed Bylaw 3.13 sought to ban any current or former director from serving on the board for five years if their actions resulted in a paid claim by the association or its insurance carrier. This ban would be retroactive and also apply to any individual co-owning a lot with the director.
4. The Respondent’s Board, after consulting with its attorneys and property management company, argued that neither state law nor its bylaws obliged them to add items to an agenda at a single member’s request. They contended that the Petitioner had the option to call a special meeting himself by gathering support from other members.
5. Bylaw 2.2 allows for a special meeting of the members to be called upon a written request signed by members who hold at least one-fourth (25%) of the authorized votes. The Petitioner was aware of this option but had not attempted to use it.
6. In the previous case, the Administrative Law Judge dismissed the Petitioner’s petition. The judge concluded that the Board had done all it could to fill vacant positions and that the Petitioner’s own “obstructionist tactics” were part of the reason no eligible members were willing to serve.
7. The Petitioner claimed the Respondent’s Board violated Arizona Revised Statute § 33-1804(B) and the association’s Bylaw 1.5.
8. No, the judge concluded that nothing in the language of A.R.S. § 33-1804(B) requires a homeowners’ association board to add an item to an agenda or ballot at the request of a single member. The statute only provides that members with at least 25% of the votes can independently call a meeting.
9. The Administrative Law Judge ordered that the Petitioner’s petition be denied. The judge found that the Petitioner had not established that the Respondent’s Board violated either A.R.S. § 33-1804(B) or Bylaw 1.5.
10. The judge ruled that attorney’s fees could not be awarded to the Respondent. The reason given is that the legislature has not empowered the Department of Real Estate or the Office of Administrative Hearings to award attorney’s fees in this type of administrative proceeding.
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Essay Questions
Construct a detailed essay response for each of the following prompts, using only evidence and reasoning found within the case document.
1. Analyze the Administrative Law Judge’s method of statutory construction and interpretation of restrictive covenants. How did the judge apply these principles to A.R.S. § 33-1804(B) and Bylaw 1.5 to reach a conclusion?
2. Discuss the balance of power between an individual HOA member and the Board of Directors as illustrated in this case. What rights and recourses are available to a member who disagrees with a Board decision, according to the Respondent’s Bylaws?
3. Explain the concept of “burden of proof” as it applies to this case. Who held the burden of proof, what was the standard required, and why was the Petitioner unable to meet this standard?
4. Examine the history between the Petitioner and the Respondent as detailed in the “Findings of Fact.” How might this prior history, including the 2017 legal case and a previously successful bylaw amendment, have influenced the actions of both parties in the current dispute?
5. Based on the testimony of Michael David (“Mickey”) Latz and the text of the bylaws, contrast the process for placing an item on the agenda of a Board-scheduled meeting versus the process for calling a member-initiated special meeting. What are the key differences in initiative, requirements, and control?
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Glossary of Key Terms
Definition from Source Context
Administrative Law Judge (ALJ)
An independent official (Diane Mihalsky) from the Office of Administrative Hearings who presides over evidentiary hearings and issues decisions on petitions filed with the Arizona Department of Real Estate.
A.R.S. § 33-1804(B)
An Arizona statute cited by the Petitioner. It stipulates that an HOA members’ meeting must be held at least annually and that special meetings can be called by the president, a board majority, or members with at least 25% of the votes.
Bylaw 1.5
A bylaw of the Desert Sage Two HOA that states the Bylaws may be amended at a regular or special meeting by a majority vote of members present in person or by proxy.
Bylaw 2.2
A bylaw of the Desert Sage Two HOA that allows for special meetings of the members to be called by the president, the Board, or upon written request from members holding at least one-fourth (25%) of the votes.
Department
The Arizona Department of Real Estate, the state body authorized to receive and decide petitions for hearings from members of homeowners’ associations.
Homeowners’ Association
An organization whose members own property and/or residences in a specific development (in this case, Desert Sage Two in Scottsdale, Arizona).
Office of Administrative Hearings (OAH)
An independent state agency to which the Department refers petitions for an evidentiary hearing.
Petitioner
Jason West, the member of the homeowners’ association who filed the petition alleging a violation by the association’s Board.
Petition
A formal complaint filed with the Department of Real Estate by an HOA member or the HOA itself concerning alleged violations.
Preponderance of the evidence
The burden of proof standard required in the hearing. It is defined as “proof as convinces the trier of fact that the contention is more probably true than not” and as evidence with “the most convincing force.”
Respondent
The Desert Sage Two Homeowners Association, the entity against which the petition was filed.
Restrictive Covenant
A rule or provision within community documents, like bylaws, that is enforced to give effect to the intent of the parties if it is unambiguous.
Blog Post – 19F-H1919065-REL
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19F-H1919065-REL
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This text is an Administrative Law Judge Decision from the Arizona Office of Administrative Hearings (OAH) concerning a dispute between a homeowner, Jason West (Petitioner), and his association, the Desert Sage Two Homeowners Association (Respondent). The Petitioner alleged that the Respondent violated Arizona statute (A.R.S. § 33-1804(B)) and an association bylaw by refusing to place his proposed bylaw amendment on the agenda of the annual meeting. The proposed amendment sought to ban directors whose actions resulted in a paid insurance claim from serving for five years, but the Administrative Law Judge (ALJ) found that neither the statute nor the association’s bylaws required the Board to add a member-proposed item to a scheduled agenda or ballot. Therefore, the ALJ concluded that the Petitioner failed to prove a violation and denied the petition.
What was the specific legal and procedural context of this homeowners association dispute?
How did the Petitioner’s proposed bylaw amendment attempt to alter Board member liability?
What statutory and bylaw provisions guided the final Administrative Law Judge decision?
Edward A. Padilla(property manager) Desert Sage Two Homeowners Association Property manager in May 2017; testified for Petitioner; also referred to as 'Eddie'
Joanelize Morales(property manager) Desert Sage Two Homeowners Association Property manager since August 2018; testified for Petitioner
Bryan Robert Selna(board member) Desert Sage Two Homeowners Association Current Vice President of Respondent's Board; testified for Petitioner
David Epstein(board member) Desert Sage Two Homeowners Association Current President of Respondent's Board; testified for Petitioner
Linda Maria Seidler(board member) Desert Sage Two Homeowners Association Current Secretary of Respondent's Board; testified for Petitioner
Michael David Latz(property manager) Golden Valley Property Management Owner of Golden Valley Property Management; testified for Petitioner; also referred to as 'Mickey'
Neutral Parties
Diane Mihalsky(ALJ) Office of Administrative Hearings
Judy Lowe(ADRE Commissioner) Arizona Department of Real Estate
