The ALJ found that the Respondents violated the CC&Rs by operating a business that created traffic and parking. The Respondents were ordered to cease business operations and pay a $500.00 civil penalty. The Petitioner's request for a refund of its filing fee was denied.
Why this result: Petitioner's request for refund of the filing fee was denied because they cited no authority showing that the refund was within the tribunal’s authority.
Key Issues & Findings
Violation of Residential Use covenant prohibiting traffic/parking generation by business
The Petitioner HOA alleged that the Respondents, co-owners of the unit, violated CC&Rs Article 3, section 3.1 by operating a payroll processing company out of the unit. The ALJ found that the business required two employees to drive to the unit daily, thereby creating traffic and parking, which clearly and unambiguously violates the CC&R provision prohibiting non-residential use that creates traffic or parking.
Orders: Respondents were ordered to cease business operations at the unit (720 E. North Lane, Unit 1) within thirty-five days to comply with CC&R Article 3, section 3.1, and pay a civil penalty of $500.00 to the Department of Real Estate within sixty days. The Petitioner's request for refund of the filing fee was denied.
Filing fee: $0.00, Fee refunded: No, Civil penalty: $500.00
Disposition: petitioner_win
Cited:
ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
ARIZ. ADMIN. CODE § R2-19-119
BLACK’S LAW DICTIONARY 1373 (10th ed. 2014)
Johnson v. The Pointe Community Association, 205 Ariz. 485, 73 P.3d 616 (App. 2003)
The Administrative Law Judge concluded that the HOA violated ARIZ. REV. STAT. § 33-1805 by failing to provide the full requested documentation relating to EDC actions and communications. The Petitioner's request for relief was granted, resulting in the reimbursement of the $500 filing fee and the imposition of a $500 civil penalty against the HOA.
Key Issues & Findings
Whether Desert Ranch Homeowners Association (Respondent) violated A.R.S. § 33-1805 by failing to fulfill a records request.
The Association violated A.R.S. § 33-1805 by failing to fully comply with Petitioner's specific request for EDC records (submissions, requests, and approvals) by providing only a summary table instead of the totality of requested communications within the statutory deadline.
Orders: Petitioner's petition granted. Respondent ordered to reimburse Petitioner's $500.00 filing fee (ARIZ. REV. STAT. § 32-2199.01) and tender a $500.00 civil penalty to the Department (ARIZ. REV. STAT. § 32-2199.02(A)).
Topics: Records Request, HOA Violation, Civil Penalty, Filing Fee Reimbursement
Additional Citations:
ARIZ. REV. STAT. § 33-1805
ARIZ. REV. STAT. § 32-2199.01
ARIZ. REV. STAT. § 32-2199.02(A)
ARIZ. REV. STAT. § 32-2102
ARIZ. REV. STAT. § 32-2199
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 32-2199(2)
ARIZ. REV. STAT. § 32-2199.01(D)
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 41-1092
ARIZ. ADMIN. CODE R2-19-119
ARIZ. REV. STAT. § 1-243
ARIZ. ADMIN. CODE R2-19-107
ARIZ. REV. STAT. § 33-1804
Audio Overview
Decision Documents
19F-H1918037-REL Decision – 700566.pdf
Uploaded 2025-10-08T07:08:27 (149.3 KB)
Briefing Doc – 19F-H1918037-REL
Briefing Document: Barrs v. Desert Ranch Homeowners Association
Executive Summary
This document synthesizes the findings from two Administrative Law Judge (ALJ) Decisions concerning a records request dispute between homeowner Tom Barrs (Petitioner) and the Desert Ranch Homeowners Association (Respondent). The central issue was whether the Association violated Arizona Revised Statute (A.R.S.) § 33-1805 by failing to adequately fulfill a records request submitted by the Petitioner on November 1, 2018.
The initial hearing on March 21, 2019, resulted in an April 10, 2019, decision in favor of the Association. The ALJ concluded that the Petitioner had failed to properly submit his request to all members of the Association’s Board, and thus the Association’s partial response (a summary table) did not constitute a statutory violation.
Following a successful appeal by the Petitioner, a rehearing was held on August 27, 2019. New evidence demonstrated that the Petitioner had followed prior express instructions from the Association regarding who to contact for records requests. Consequently, the ALJ issued a new decision on September 12, 2019, reversing the original order. The final ruling found the Association in violation of A.R.S. § 33-1805. The Association was ordered to reimburse the Petitioner’s $500 filing fee and was assessed a civil penalty of $500.
Whether the Association violated A.R.S. § 33-1805 by failing to fulfill a records request for Environmental Design Committee (EDC) actions, requests, and approvals.
Initial Petition
Filed by Tom Barrs on December 17, 2018.
Initial Hearing
March 21, 2019, before ALJ Jenna Clark.
Rehearing
August 27, 2019, before ALJ Jenna Clark.
Final Outcome
Petition granted in favor of Tom Barrs. The Association was found in violation of state law, ordered to reimburse the filing fee, and fined.
Key Individuals and Entities
Role / Affiliation
Tom Barrs
Petitioner; homeowner in the Desert Ranch subdivision.
Desert Ranch HOA
Respondent; homeowners’ association.
Jenna Clark
Administrative Law Judge, Office of Administrative Hearings.
Brian Schoeffler
Chairman of the Association’s Environmental Design Committee (EDC); appeared on behalf of the Association.
Catherine Overby
President of the Association’s Board of Directors.
Lori Loch-Lee
Vice President of Client Services at Associated Asset Management (AAM), the Association’s accounting/management company.
Jonathan Dessaules, Esq.
Attorney who appeared on behalf of the Petitioner at the rehearing.
The Records Request and Subsequent Dispute
The Initial Request
On November 1, 2018, at 9:40 p.m., Petitioner submitted an electronic records request to Catherine Overby, Brian Schoeffler, and Lori Loch-Lee. The text of the request was as follows:
“Pursuant to ARS 33-1805, I am requesting a copy of all EDC actions, written requests, and written approvals from October 2017 through October 2018. Soft copies via return email are preferable; otherwise, please let me know when hard copies are available for pickup.”
The Association’s Response and Petitioner’s Follow-Up
• November 2, 2018: Lori Loch-Lee from AAM notified the Petitioner she would forward his request to all Board members, noting that AAM was only the Association’s accounting firm.
• November 18, 2018: The Petitioner received a summary table listing some EDC actions, not the complete set of communications and documents requested. At this time, he was advised by Brian Schoeffler that he “needed to copy all Board members on records requests.”
• March 6, 2019: The Petitioner sent a follow-up email, accusing the Association of willful failure and clarifying the specific records he sought beyond the summary table, including “copies of the communications (letters, emails, and application forms) relating to Environmental Design Review (EDC) submissions, requests, complaints and approvals (or denials).”
• March 11, 2019: Mr. Schoeffler replied, arguing that the request had been complied with on November 18, 2018, and directed the Petitioner to “submit a new request” for the additional information.
• March 17, 2019: Mr. Schoeffler reiterated that the original request was only sent to two of four Board members and stated that providing additional documents could be “interpreted as an admission of guilt.”
As of the rehearing date (August 27, 2019), the Petitioner had still not received all the documentation requested on November 1, 2018.
Legal Proceedings and Rulings
Initial Hearing and Decision (April 10, 2019)
In the first hearing, the dispute centered on the validity of the request submission and the adequacy of the Association’s response.
Arguments:
• Petitioner (Barrs): Argued the Association acted in bad faith and willfully failed to fulfill the request, noting a similar dispute had been previously adjudicated. He was concerned with the completeness of the response, not its timeliness.
• Respondent (HOA): Argued it had complied with the request by providing a summary table, consistent with its handling of a previous dispute with the Petitioner. Mr. Schoeffler testified that the response was untimely (provided on the 11th business day) but asserted it was otherwise sufficient.
ALJ Conclusion: The Judge ruled in favor of the Association, denying the Petitioner’s petition. The key finding was that the Petitioner had failed to properly submit his request.
“Because the credible evidence of record reflects that Petitioner failed to properly submit his records request to the Board, Petitioner has failed established by a preponderance of the evidence that the Association was in violation of ARIZ. REV. STAT. § 33-1805 for providing him with a summary table on November 18, 2018.”
The decision also noted that the statute does not legally obligate an HOA to email copies of records.
Rehearing and Final Decision (September 12, 2019)
After the Petitioner’s appeal was granted, a rehearing introduced new evidence that fundamentally changed the outcome.
New Evidence and Concessions:
• July 19, 2017 Instruction: Evidence showed Association President Catherine Overby had previously appointed Brian Schoeffler as the Petitioner’s “primary records request contact.”
• July 18, 2018 Instruction: Evidence showed Ms. Overby had also instructed the Petitioner to direct requests to the management company, AAM.
• Association Concessions: The Respondent conceded that its governing documents do not require all Board members to be copied on records requests and that its own bylaws regarding submission forms are not adhered to or enforced.
ALJ’s Reversed Conclusion: The Judge reversed the prior decision and granted the Petitioner’s petition. The new evidence proved the Petitioner had followed express instructions from the Association.
“Petitioner’s November 01, 2018, records request was not required to be sent to all members of the Association’s Board, as Petitioner had expressly been instructed to only send his records requests to the Association’s EDC Chairman, Mr. Schoeffler, which he did.”
The Judge concluded that the partial response was a clear violation of the law.
“Petitioner is correct that the Association did not fully comply with his specific request, and has established by a preponderance of the evidence that the summary table provided by the Association was a violation of ARIZ. REV. STAT. § 33-1805.”
Final Order and Penalties
The Administrative Law Judge’s Final Order on September 12, 2019, which is binding on the parties, mandated the following:
1. Petition Granted: The Petitioner’s petition was granted.
2. Filing Fee Reimbursement: The Respondent (Desert Ranch HOA) was ordered to reimburse the Petitioner’s $500.00 filing fee.
3. Civil Penalty: The Respondent was ordered to pay a civil penalty of $500.00 to the Arizona Department of Real Estate.
The Administrative Law Judge concluded that the HOA violated ARIZ. REV. STAT. § 33-1805 by failing to provide the full requested documentation relating to EDC actions and communications. The Petitioner's request for relief was granted, resulting in the reimbursement of the $500 filing fee and the imposition of a $500 civil penalty against the HOA.
Key Issues & Findings
Whether Desert Ranch Homeowners Association (Respondent) violated A.R.S. § 33-1805 by failing to fulfill a records request.
The Association violated A.R.S. § 33-1805 by failing to fully comply with Petitioner's specific request for EDC records (submissions, requests, and approvals) by providing only a summary table instead of the totality of requested communications within the statutory deadline.
Orders: Petitioner's petition granted. Respondent ordered to reimburse Petitioner's $500.00 filing fee (ARIZ. REV. STAT. § 32-2199.01) and tender a $500.00 civil penalty to the Department (ARIZ. REV. STAT. § 32-2199.02(A)).
Topics: Records Request, HOA Violation, Civil Penalty, Filing Fee Reimbursement
Additional Citations:
ARIZ. REV. STAT. § 33-1805
ARIZ. REV. STAT. § 32-2199.01
ARIZ. REV. STAT. § 32-2199.02(A)
ARIZ. REV. STAT. § 32-2102
ARIZ. REV. STAT. § 32-2199
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 32-2199(2)
ARIZ. REV. STAT. § 32-2199.01(D)
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 41-1092
ARIZ. ADMIN. CODE R2-19-119
ARIZ. REV. STAT. § 1-243
ARIZ. ADMIN. CODE R2-19-107
ARIZ. REV. STAT. § 33-1804
Video Overview
Audio Overview
Decision Documents
19F-H1918037-REL Decision – 700566.pdf
Uploaded 2025-10-09T03:33:55 (149.3 KB)
Briefing Doc – 19F-H1918037-REL
Briefing Document: Barrs v. Desert Ranch Homeowners Association (Case No. 19F-H1918037-REL)
Executive Summary
This briefing document synthesizes two Administrative Law Judge (ALJ) decisions concerning a records request dispute between homeowner Tom Barrs (Petitioner) and the Desert Ranch Homeowners Association (Respondent). The core of the dispute was the Association’s failure to fully comply with a request for records under Arizona Revised Statutes (A.R.S.) § 33-1805.
The case is notable for its complete reversal upon rehearing. An initial ruling on April 10, 2019, favored the Association, finding that the Petitioner had failed to properly submit his request by not emailing all Board members. However, this decision was overturned in a final, binding order on September 12, 2019. In the rehearing, the Petitioner presented new evidence demonstrating he was following the Association’s own prior written instructions for submitting such requests.
The ALJ ultimately concluded that the Association did violate A.R.S. § 33-1805 by providing only a summary document instead of making the full records available for examination. Consequently, the final order granted the Petitioner’s petition, mandated the full reimbursement of his $500 filing fee, and levied an additional $500 civil penalty against the Association. The case underscores the critical importance of procedural compliance and the weight of documented instructions in governing interactions between homeowners and their associations.
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I. Case Overview
• Parties:
◦ Petitioner: Tom Barrs, a property owner and member of the Association.
◦ Respondent: Desert Ranch Homeowners Association (“the Association”).
• Venue: Arizona Office of Administrative Hearings (OAH).
• Presiding Judge: Administrative Law Judge (ALJ) Jenna Clark.
• Core Allegation: Whether the Desert Ranch Homeowners Association violated A.R.S. § 33-1805 by failing to fulfill a records request submitted by the Petitioner.
• Case Numbers:
◦ 19F-H1918037-REL (Initial Decision)
◦ 19F-H1918037-REL-RHG (Rehearing Decision)
II. Chronology of the Dispute
Jul. 19, 2017
Association President Catherine Overby appoints Environmental Design Committee (EDC) Director Brian Schoeffler as the Petitioner’s primary contact for records requests.
Jul. 18, 2018
Ms. Overby instructs the Petitioner to direct all requests to the Association’s management company, Associated Asset Management (AAM), specifically to Lori Lock-Lee.
Nov. 1, 2018
Petitioner submits the records request at issue via email to Catherine Overby, Brian Schoeffler, and Lori Loch-Lee.
Nov. 2, 2018
Ms. Loch-Lee acknowledges the request, states she will forward it to all Board members, and clarifies that AAM is only the Association’s accounting firm.
Nov. 18, 2018
Mr. Schoeffler responds on behalf of the Association, providing a summary table of EDC actions but not the full records. He also advises the Petitioner that all Board members must be copied on future requests.
Dec. 17, 2018
Petitioner files a single-issue petition against the Association with the Arizona Department of Real Estate, paying a $500 fee.
Mar. 6, 2019
Petitioner sends a follow-up email specifying the exact documents he is seeking, referencing items listed in the summary table he received.
Mar. 11, 2019
Mr. Schoeffler replies, asserting the request was already fulfilled and instructing the Petitioner to submit a new request for the additional items.
Mar. 17, 2019
Mr. Schoeffler emails again, claiming the original request was improperly submitted to only two of four Board members and that providing more documents could be seen as an “admission of guilt.”
Mar. 21, 2019
The first evidentiary hearing is held at the OAH.
Apr. 10, 2019
The initial ALJ Decision is issued, denying the Petitioner’s petition.
Jun. 10, 2019
Petitioner submits an appeal to the Department, which is granted.
Aug. 27, 2019
A rehearing is held at the OAH.
Sep. 12, 2019
The final ALJ Decision is issued, reversing the initial ruling and granting the Petitioner’s petition.
III. The Records Request and Response
Petitioner’s Request (November 1, 2018)
The Petitioner submitted a clear and direct request for specific records via email, citing the relevant statute:
“Pursuant to ARS 33-1805, I am requesting a copy of all EDC actions, written requests, and written approvals from October 2017 through October 2018. Soft copies via return email are preferable; otherwise, please let me know when hard copies are available for pickup.”
Association’s Response (November 18, 2018)
The Association did not provide the requested documents (e.g., letters, emails, applications). Instead, it provided a “summary table listing of some, not all, EDC actions.” As of the August 27, 2019, rehearing, the Petitioner had still not received the full documentation he originally requested.
Petitioner’s Clarification (March 6, 2019)
In an attempt to resolve the issue, the Petitioner sent a detailed follow-up email outlining the specific missing records by referencing the line items in the Association’s own summary table. This demonstrated that his request was not for a vague “list of actions” but for the underlying correspondence. This included requests for:
• Copies of violation notices and “Full Compliance” correspondence.
• Complaint correspondence from homeowners regarding shrubs and subsequent citations.
• Submittal correspondence for a project from Mr. Schoeffler himself, along with approvals.
• Original submittals and approvals for a garage remodel and septic install.
IV. Analysis of the Two Administrative Rulings
The opposite outcomes of the two hearings hinged entirely on the validity of the Petitioner’s original email submission.
A. Initial ALJ Decision (April 10, 2019) – In Favor of Respondent (HOA)
• Central Finding: The Petitioner failed to properly submit his records request because he sent it to only two Board members, not the entire Board.
• Reasoning: The ALJ concluded that because the request was improperly submitted, the Association was not obligated to fulfill it under A.R.S. § 33-1805. Therefore, its failure to provide the full records did not constitute a violation. The decision noted, “Because the credible evidence of record reflects that Petitioner failed to properly submit his records request to the Board, Petitioner has failed established by a preponderance of the evidence that the Association was in violation…”
• Outcome: The petition was denied. The Association was not required to reimburse the Petitioner’s filing fee, and his request for a civil penalty was denied.
B. Rehearing ALJ Decision (September 12, 2019) – In Favor of Petitioner (Barrs)
• Central Finding: The Petitioner did properly submit his records request by emailing the designated contacts.
• Key New Evidence: The Petitioner introduced two exhibits proving he had received explicit instructions from the Association President on where to direct his requests:
1. A July 19, 2017 communication appointing EDC Chairman Brian Schoeffler as his primary records request contact.
2. A July 18, 2018 communication instructing him to direct requests to the management company (AAM).
• Reasoning: The ALJ found this evidence dispositive, stating, “Petitioner’s November 01, 2018, records request was not required to be sent to all members of the Association’s Board, as Petitioner had expressly been instructed to only send his records requests to the Association’s EDC Chairman, Mr. Schoeffler, which he did.” With the submission deemed proper, the focus shifted to the response. The ALJ concluded that providing a summary table was not compliant with the statute’s requirement to make records “reasonably available for examination.”
• Outcome: The initial decision was reversed, and the Petitioner’s petition was granted.
V. Key Arguments and Testimonies
• Petitioner (Tom Barrs):
◦ Argued his dispute was with the adequacy of the Association’s response, not its timeliness.
◦ Alleged the Association acted in bad faith and willfully withheld records, citing a previous OAH adjudication over a similar request.
◦ Successfully demonstrated he had followed the Association’s own prior instructions for submitting requests.
• Respondent (via Brian Schoeffler):
◦ Maintained that the request was invalid because it was not sent to all four Board members, an argument that collapsed during the rehearing.
◦ Admitted the Association’s governing documents do not contain a requirement that all Board members be copied on records requests.
◦ Justified the incomplete response by stating that providing additional documents after the petition was filed could be “interpreted as an admission of guilt.”
◦ Reasoned that the Association acted as it did because a previous, similar dispute had been decided in its favor.
VI. Final Order and Penalties
The binding order issued on September 12, 2019, following the rehearing, mandated the following:
1. Petition Granted: The Petitioner’s petition was granted in its entirety.
2. Filing Fee Reimbursement: The Association was ordered to reimburse the Petitioner’s $500 filing fee.
3. Civil Penalty: The Association was ordered to pay a civil penalty of $500 to the Arizona Department of Real Estate for its violation of A.R.S. § 33-1805.
Study Guide – 19F-H1918037-REL
Study Guide: Barrs v. Desert Ranch Homeowners Association
This guide provides a comprehensive review of the administrative legal case between petitioner Tom Barrs and respondent Desert Ranch Homeowners Association, covering the initial hearing and the subsequent rehearing. It includes a quiz to test factual recall, essay questions for deeper analysis, and a glossary of key terms.
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Short-Answer Quiz
Instructions: Answer the following questions in 2-3 complete sentences based on the provided source documents.
1. Who are the primary parties in this legal dispute, and what are their respective roles?
2. What specific Arizona Revised Statute was the Desert Ranch Homeowners Association accused of violating, and what does this statute generally require?
3. What was the exact nature of the records request Tom Barrs submitted on November 1, 2018?
4. In the initial hearing, what was the key reason the Administrative Law Judge ruled in favor of the Association?
5. What was the Association’s initial response to Barrs’ records request, and why did Barrs consider it incomplete?
6. Upon what grounds was a rehearing of the case granted?
7. What crucial new evidence presented at the rehearing changed the outcome of the case?
8. How did the Association’s own bylaws and concessions during the rehearing weaken its defense?
9. What was the final ruling in the Administrative Law Judge’s decision after the rehearing?
10. What financial penalties were imposed on the Desert Ranch Homeowners Association in the final order?
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Answer Key
1. The primary parties are Tom Barrs, the Petitioner, and the Desert Ranch Homeowners Association, the Respondent. Barrs, a homeowner and member of the Association, filed a petition alleging the Association failed to comply with a records request. The Association, represented in the hearings by Brian Schoeffler, defended its actions against this claim.
2. The Association was accused of violating A.R.S. § 33-1805. This statute requires a homeowners’ association to make its financial and other records reasonably available for examination by a member within ten business days of a request. It also allows the association to charge a fee of not more than fifteen cents per page for copies.
3. On November 1, 2018, Tom Barrs requested “a copy of all EDC actions, written requests, and written approvals from October 2017 through October 2018.” He specified that electronic copies were preferable but that he was also willing to pick up hard copies.
4. In the initial hearing, the judge ruled for the Association because the evidence indicated Barrs had failed to properly submit his request to all members of the Association’s Board. This procedural error meant Barrs failed to establish by a preponderance of the evidence that the Association was in violation of the statute.
5. The Association responded on November 18, 2018, by providing Barrs with a summary table of Environmental Design Committee (EDC) actions. Barrs considered this incomplete because his request was for the underlying communications, including all written requests and approvals, not just a summary list of actions.
6. A rehearing was granted after Petitioner Tom Barrs submitted an appeal to the Arizona Department of Real Estate on June 10, 2019. The Department granted the appeal and referred the matter back to the Office of Administrative Hearings for a new evidentiary hearing.
7. The crucial new evidence showed that the Association’s President had previously appointed Brian Schoeffler as Barrs’ primary contact for records requests. This evidence demonstrated that Barrs had, in fact, followed the specific instructions given to him and was not required to send his request to all board members, directly contradicting the basis for the initial ruling.
8. The Association conceded that its governing documents do not require members to copy all Board members on records requests. It also admitted that its own bylaws regarding the submission of forms for such requests were not adhered to or enforced, which undermined its argument that Barrs had failed to follow proper procedure.
9. The final ruling, issued September 12, 2019, granted the Petitioner’s petition. The Administrative Law Judge concluded that the Association’s conduct violated A.R.S. § 33-1805 because it did not fully comply with Barrs’ specific and properly submitted request.
10. The Association was ordered to reimburse Petitioner Tom Barrs’ $500.00 filing fee. Additionally, a civil penalty of $500.00 was levied against the Association, payable to the Arizona Department of Real Estate.
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Essay Questions
Instructions: The following questions are designed for longer, essay-format answers that require critical thinking and synthesis of information from the case documents. Answers are not provided.
1. Compare and contrast the Findings of Fact and Conclusions of Law in the initial decision (April 10, 2019) with those in the rehearing decision (September 12, 2019). Analyze how specific factual clarifications led to a complete reversal of the legal conclusion.
2. Explain the legal standard of “preponderance of the evidence” as defined in the decisions. Detail why the petitioner initially failed to meet this burden and what specific evidence allowed him to successfully meet it in the rehearing.
3. Analyze the testimony and arguments presented by Brian Schoeffler on behalf of the Association across both hearings. Discuss the consistency of his defense, his reasoning based on prior OAH decisions, and his stated fear that providing more documents could be interpreted as an “admission of guilt.”
4. Trace the complete procedural timeline of case No. 19F-H1918037-REL, from the filing of the initial petition on December 17, 2018, to the final, binding order on September 12, 2019. Highlight the roles of the Arizona Department of Real Estate and the Office of Administrative Hearings (OAH).
5. Using the details of this case, write an analysis of the function and importance of A.R.S. § 33-1805 in regulating the relationship between a homeowner and a homeowners’ association. Discuss the statute’s requirements for both parties and the consequences of non-compliance.
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An independent, impartial judge who presides over administrative hearings at government agencies like the Office of Administrative Hearings. In this case, the ALJ was Jenna Clark.
A.R.S. § 33-1805
The section of the Arizona Revised Statutes that governs a homeowner’s right to access the records of a homeowners’ association. It mandates that an association must make records available for examination within ten business days of a request.
Associated Asset Management (AAM)
The management company that served as the accounting firm for the Desert Ranch Homeowners Association. Petitioner was instructed at one point to direct requests to Lori Lock-Lee at AAM.
Board of Directors (the Board)
The governing body that oversees the operations of the Desert Ranch Homeowners Association.
Covenants, Conditions, and Restrictions (CC&Rs)
The governing legal documents that set up the rules for a planned community or subdivision. The Desert Ranch HOA is governed by its CC&Rs.
Environmental Design Committee (EDC)
A committee within the Desert Ranch Homeowners Association responsible for reviewing and approving architectural and landscaping changes. Brian Schoeffler was the Chairman of the EDC.
Petitioner
The party who files a petition to initiate a legal proceeding. In this case, Tom Barrs is the Petitioner.
Preponderance of the evidence
The standard of proof in this civil administrative case. It is defined as evidence that is more convincing and has superior weight, inclining a fair mind to one side of the issue over the other.
Rehearing
A second hearing of a case, granted upon appeal, to re-examine the issues and evidence. The rehearing in this case took place on August 27, 2019, and resulted in the reversal of the initial decision.
Respondent
The party against whom a petition is filed. In this case, the Desert Ranch Homeowners Association is the Respondent.
Office of Administrative Hearings (OAH)
An independent state agency in Arizona that conducts evidentiary hearings for other state agencies, providing a neutral forum for resolving disputes like the one between Barrs and the Association.
Blog Post – 19F-H1918037-REL
Briefing Document: Barrs v. Desert Ranch Homeowners Association (Case No. 19F-H1918037-REL)
Executive Summary
This briefing document synthesizes two Administrative Law Judge (ALJ) decisions concerning a records request dispute between homeowner Tom Barrs (Petitioner) and the Desert Ranch Homeowners Association (Respondent). The core of the dispute was the Association’s failure to fully comply with a request for records under Arizona Revised Statutes (A.R.S.) § 33-1805.
The case is notable for its complete reversal upon rehearing. An initial ruling on April 10, 2019, favored the Association, finding that the Petitioner had failed to properly submit his request by not emailing all Board members. However, this decision was overturned in a final, binding order on September 12, 2019. In the rehearing, the Petitioner presented new evidence demonstrating he was following the Association’s own prior written instructions for submitting such requests.
The ALJ ultimately concluded that the Association did violate A.R.S. § 33-1805 by providing only a summary document instead of making the full records available for examination. Consequently, the final order granted the Petitioner’s petition, mandated the full reimbursement of his $500 filing fee, and levied an additional $500 civil penalty against the Association. The case underscores the critical importance of procedural compliance and the weight of documented instructions in governing interactions between homeowners and their associations.
——————————————————————————–
I. Case Overview
• Parties:
◦ Petitioner: Tom Barrs, a property owner and member of the Association.
◦ Respondent: Desert Ranch Homeowners Association (“the Association”).
• Venue: Arizona Office of Administrative Hearings (OAH).
• Presiding Judge: Administrative Law Judge (ALJ) Jenna Clark.
• Core Allegation: Whether the Desert Ranch Homeowners Association violated A.R.S. § 33-1805 by failing to fulfill a records request submitted by the Petitioner.
• Case Numbers:
◦ 19F-H1918037-REL (Initial Decision)
◦ 19F-H1918037-REL-RHG (Rehearing Decision)
II. Chronology of the Dispute
Jul. 19, 2017
Association President Catherine Overby appoints Environmental Design Committee (EDC) Director Brian Schoeffler as the Petitioner’s primary contact for records requests.
Jul. 18, 2018
Ms. Overby instructs the Petitioner to direct all requests to the Association’s management company, Associated Asset Management (AAM), specifically to Lori Lock-Lee.
Nov. 1, 2018
Petitioner submits the records request at issue via email to Catherine Overby, Brian Schoeffler, and Lori Loch-Lee.
Nov. 2, 2018
Ms. Loch-Lee acknowledges the request, states she will forward it to all Board members, and clarifies that AAM is only the Association’s accounting firm.
Nov. 18, 2018
Mr. Schoeffler responds on behalf of the Association, providing a summary table of EDC actions but not the full records. He also advises the Petitioner that all Board members must be copied on future requests.
Dec. 17, 2018
Petitioner files a single-issue petition against the Association with the Arizona Department of Real Estate, paying a $500 fee.
Mar. 6, 2019
Petitioner sends a follow-up email specifying the exact documents he is seeking, referencing items listed in the summary table he received.
Mar. 11, 2019
Mr. Schoeffler replies, asserting the request was already fulfilled and instructing the Petitioner to submit a new request for the additional items.
Mar. 17, 2019
Mr. Schoeffler emails again, claiming the original request was improperly submitted to only two of four Board members and that providing more documents could be seen as an “admission of guilt.”
Mar. 21, 2019
The first evidentiary hearing is held at the OAH.
Apr. 10, 2019
The initial ALJ Decision is issued, denying the Petitioner’s petition.
Jun. 10, 2019
Petitioner submits an appeal to the Department, which is granted.
Aug. 27, 2019
A rehearing is held at the OAH.
Sep. 12, 2019
The final ALJ Decision is issued, reversing the initial ruling and granting the Petitioner’s petition.
III. The Records Request and Response
Petitioner’s Request (November 1, 2018)
The Petitioner submitted a clear and direct request for specific records via email, citing the relevant statute:
“Pursuant to ARS 33-1805, I am requesting a copy of all EDC actions, written requests, and written approvals from October 2017 through October 2018. Soft copies via return email are preferable; otherwise, please let me know when hard copies are available for pickup.”
Association’s Response (November 18, 2018)
The Association did not provide the requested documents (e.g., letters, emails, applications). Instead, it provided a “summary table listing of some, not all, EDC actions.” As of the August 27, 2019, rehearing, the Petitioner had still not received the full documentation he originally requested.
Petitioner’s Clarification (March 6, 2019)
In an attempt to resolve the issue, the Petitioner sent a detailed follow-up email outlining the specific missing records by referencing the line items in the Association’s own summary table. This demonstrated that his request was not for a vague “list of actions” but for the underlying correspondence. This included requests for:
• Copies of violation notices and “Full Compliance” correspondence.
• Complaint correspondence from homeowners regarding shrubs and subsequent citations.
• Submittal correspondence for a project from Mr. Schoeffler himself, along with approvals.
• Original submittals and approvals for a garage remodel and septic install.
IV. Analysis of the Two Administrative Rulings
The opposite outcomes of the two hearings hinged entirely on the validity of the Petitioner’s original email submission.
A. Initial ALJ Decision (April 10, 2019) – In Favor of Respondent (HOA)
• Central Finding: The Petitioner failed to properly submit his records request because he sent it to only two Board members, not the entire Board.
• Reasoning: The ALJ concluded that because the request was improperly submitted, the Association was not obligated to fulfill it under A.R.S. § 33-1805. Therefore, its failure to provide the full records did not constitute a violation. The decision noted, “Because the credible evidence of record reflects that Petitioner failed to properly submit his records request to the Board, Petitioner has failed established by a preponderance of the evidence that the Association was in violation…”
• Outcome: The petition was denied. The Association was not required to reimburse the Petitioner’s filing fee, and his request for a civil penalty was denied.
B. Rehearing ALJ Decision (September 12, 2019) – In Favor of Petitioner (Barrs)
• Central Finding: The Petitioner did properly submit his records request by emailing the designated contacts.
• Key New Evidence: The Petitioner introduced two exhibits proving he had received explicit instructions from the Association President on where to direct his requests:
1. A July 19, 2017 communication appointing EDC Chairman Brian Schoeffler as his primary records request contact.
2. A July 18, 2018 communication instructing him to direct requests to the management company (AAM).
• Reasoning: The ALJ found this evidence dispositive, stating, “Petitioner’s November 01, 2018, records request was not required to be sent to all members of the Association’s Board, as Petitioner had expressly been instructed to only send his records requests to the Association’s EDC Chairman, Mr. Schoeffler, which he did.” With the submission deemed proper, the focus shifted to the response. The ALJ concluded that providing a summary table was not compliant with the statute’s requirement to make records “reasonably available for examination.”
• Outcome: The initial decision was reversed, and the Petitioner’s petition was granted.
V. Key Arguments and Testimonies
• Petitioner (Tom Barrs):
◦ Argued his dispute was with the adequacy of the Association’s response, not its timeliness.
◦ Alleged the Association acted in bad faith and willfully withheld records, citing a previous OAH adjudication over a similar request.
◦ Successfully demonstrated he had followed the Association’s own prior instructions for submitting requests.
• Respondent (via Brian Schoeffler):
◦ Maintained that the request was invalid because it was not sent to all four Board members, an argument that collapsed during the rehearing.
◦ Admitted the Association’s governing documents do not contain a requirement that all Board members be copied on records requests.
◦ Justified the incomplete response by stating that providing additional documents after the petition was filed could be “interpreted as an admission of guilt.”
◦ Reasoned that the Association acted as it did because a previous, similar dispute had been decided in its favor.
VI. Final Order and Penalties
The binding order issued on September 12, 2019, following the rehearing, mandated the following:
1. Petition Granted: The Petitioner’s petition was granted in its entirety.
2. Filing Fee Reimbursement: The Association was ordered to reimburse the Petitioner’s $500 filing fee.
3. Civil Penalty: The Association was ordered to pay a civil penalty of $500 to the Arizona Department of Real Estate for its violation of A.R.S. § 33-1805.
Case Participants
Petitioner Side
Tom Barrs(petitioner) Appeared on his own behalf in the initial hearing; appeared as a witness in the rehearing.
Jonathan Dessaules(petitioner attorney) Dessaules Law Group Appeared on behalf of Petitioner in the rehearing.
Respondent Side
Brian Schoeffler(respondent representative / EDC chairman / witness) Desert Ranch Homeowners Association Also identified as a Board Director.
Catherine Overby(HOA president / board member) Desert Ranch Homeowners Association Appointed Mr. Schoeffler as Petitioner’s primary records request contact.
Lori Loch-Lee(property manager) Associated Asset Management (AAM) Vice President of Client Services.
Amanda Shaw(property manager) AAM LLC Contact for Respondent.
B. Austin Baillio(HOA attorney) Maxwell & Morgan, P.C. Received electronic transmission of the rehearing decision.
Neutral Parties
Jenna Clark(ALJ) OAH
Judy Lowe(Commissioner) ADRE
Dan Gardner(ADRE staff) ADRE HOA Coordinator.
Other Participants
Gerard Manieri(observer) Listed as 'G. Mangiero' in initial hearing source.
ARIZ. REV. STAT. § 33-1803; Bylaws Article IV, Section 6
Outcome Summary
The Administrative Law Judge denied the Petitioner's request, finding that the HOA's action to uniformly assess all CR-1 Lots (including Petitioner's two uncombined lots) adhered to the Association Bylaws, which require uniform rates, and did not violate ARS § 33-1803. The governing documents took precedence over any prior reduced assessment granted by a previous Board Order.
Why this result: Petitioner failed to prove the Association’s interpretation of the Bylaws requiring uniform assessment for all CR-1 lots was incorrect or unlawful, as her lots remained separate parcels according to the county map.
Key Issues & Findings
Whether Sin Vacas Property Owners Association (Respondent) arbitrarily and capriciously raised annual assessments for some homeowners and not others in contravention of decades of past board practice and contractual agreements.
Petitioner challenged the Association's decision to raise her assessment from 150% to 200% (full rate for two lots) based on the Association's interpretation that the Bylaws require uniform assessment rates for all CR-1 lots, arguing the new rate violated a long-standing prior Board Order (2003) granting her a reduced rate.
Orders: Petitioner’s petition is denied.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
ARIZ. REV. STAT. § 32-2102
ARIZ. REV. STAT. § 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 32-2199(2)
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199.01(D)
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 41-1092 et seq.
ARIZ. REV. STAT. § 33-1803
ARIZ. REV. STAT. § 33-1802(4)
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Bylaws Article IV, Covenant For Maintenance Assessments, Section 6
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
Video Overview
Audio Overview
Decision Documents
19F-H1918017-REL Decision – 698354.pdf
Uploaded 2026-01-23T17:26:53 (137.2 KB)
Briefing Doc – 19F-H1918017-REL
Briefing Document: Brokaw v. Sin Vacas Property Owners Association (Case No. 19F-H1918017-REL)
Executive Summary
This document synthesizes the findings of the Administrative Law Judge Decision in the case of Loraine Brokaw versus the Sin Vacas Property Owners Association (POA). The central conflict concerned the POA Board’s decision to increase Ms. Brokaw’s annual assessment from 150% to 200% for a single residence constructed across two separate lots.
The Petitioner, Ms. Brokaw, argued that this increase was unlawful and capricious, violating a nearly thirty-year practice that had been formalized by a 2003 Board decision granting her a reduced assessment. The POA contended that its action, taken on the advice of counsel, was necessary to comply with the Association’s governing documents, which mandate uniform assessments for all lots.
The Administrative Law Judge (ALJ) ultimately denied the homeowner’s petition. The decision established a critical legal precedent for the Association: the unambiguous language of the governing Covenants, Conditions, and Restrictions (CC&Rs) takes precedence over any past Board decisions, informal agreements, or long-standing practices, regardless of their duration. Because the Petitioner owns two distinct, legally unconsolidated lots, the ALJ found that the Board’s action to assess each lot at the full, uniform rate was not a violation, but rather a correct and required application of the community’s Bylaws.
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I. Case Overview
• Parties: Loraine Brokaw (Petitioner) vs. Sin Vacas Property Owners Association (Respondent).
• Jurisdiction: Office of Administrative Hearings (OAH), State of Arizona.
• Case Number: 19F-H1918017-REL.
• Presiding Judge: Administrative Law Judge Jenna Clark.
• Hearing Date: March 25, 2019.
• Decision Date: April 01, 2019.
II. Central Issue of the Dispute
The hearing was convened to address the following issue, as stated in the NOTICE OF HEARING:
“Whether Sin Vacas Property Owners Association (Respondent) arbitrarily and capriciously raised annual assessments for some homeowners and not others in contravention of decades of past board practice and contractual agreements based on utterly flawed legal theory, which, in fact, changed from attorney to attorney.”
The core of the dispute was the Association Board’s decision in 2017 to increase the annual assessment for the Petitioner’s property—a single home built across two adjacent lots—from 150% to 200% of the standard single-lot assessment rate. The Petitioner sought to compel the Board to revert to the 150% assessment schedule and reimburse her for costs associated with the petition.
III. Petitioner’s Position and Key Testimony
• Property History: The Petitioner testified that her husband first bought property in Sin Vacas in 1979. In 2003, the couple purchased an adjacent lot and constructed a new home that spanned across both properties (Lots 156 and 157).
• Claim of Lot Combination: The Petitioner claimed to have legally combined the two lots but presented no supporting documentation to the tribunal.
• Historical Assessment Practice: The Petitioner testified that as of 2003, the Association’s practice was to assess properties as follows:
◦ 100%: For a home on a single lot.
◦ 25%: For an undeveloped vacant lot.
◦ 150%: For a residence situated on two lots.
• 2003 Board Decision: On March 24, 2003, the Petitioner received written confirmation from the Board that it had voted to grant her a reduced assessment of 150%, formalizing the existing practice for her property.
• 2017 Assessment Change: On or about December 4, 2017, the Petitioner received a letter from the Association’s management company advising that the Board had decided to raise her assessment to 200%, citing “advice of counsel.”
• Rationale for Increase: The Petitioner stated she was given varying reasons for the change but was ultimately informed that the Board determined all plats needed to be assessed uniformly according to the Association’s governing documents. She was also told that to be assessed as a single lot, she would need to formally combine the lots on the county plat map, a process estimated to cost between $3,000 and $10,000 and require the permission of every other homeowner in the community.
IV. Respondent’s Position
The Sin Vacas Property Owners Association declined to present witnesses or exhibits. Its position at the hearing was that the dispute arose from differing interpretations of the language within the governing Bylaws. The Association’s counsel stated that the matter would be resolved based on the tribunal’s interpretation of the relevant governing texts.
V. Analysis of Governing Documents
The decision rested heavily on the interpretation of the Association’s Covenants, Conditions, and Restrictions (CC&Rs), recorded on April 13, 1978.
Document Section
Key Provision
Relevance to the Case
Bylaws Article I, Section 5
Defines a “Lot” as “any numbered lot shown upon any recorded subdivision map of the Sin Vacas Properties.”
This established that the Petitioner’s two properties, being separately numbered on the subdivision map, constitute two distinct lots for assessment purposes.
Bylaws Article IV, Section 6
“Special assessments must be fixed and apportioned at a uniform rate for all CR-1 lots, SR lots, and each 20,000 square feet of TR lots.”
This clause was central to the Judge’s decision. It establishes a clear mandate for uniformity in assessments across all lots of the same type (CR-1), which the 150% rate violated by treating two CR-1 lots differently from others.
Bylaws Article IV, Section 7
States the Board of Directors shall “fix the amount of the annual assessment against each Lot.”
This empowers the Board to set assessments but reinforces that they must do so on a per-lot basis, consistent with the uniformity requirement.
VI. Judge’s Findings and Conclusions of Law
The Administrative Law Judge made the following key determinations, leading to the denial of the petition:
• Failure to Meet Burden of Proof: The Petitioner failed to prove by a preponderance of the evidence that the Association violated community documents or Arizona statutes.
• Undisputed Material Facts: The Judge found it undisputed that:
1. The Petitioner owns two distinct CR-1 lots (Lot 156 and Lot 157).
2. The lots have never been legally combined or consolidated on the Pima County Assessor’s plat map.
3. The Petitioner’s residence is constructed across both lots.
• Primacy of Governing Documents: The central conclusion of the decision was that the Association’s governing documents supersede any past Board decisions or long-standing informal agreements. The Judge stated:
• Uniformity is Mandatory: The Bylaws require that the Association assess all developed CR-1 lots at a uniform rate. By assessing both of the Petitioner’s lots at the same full rate as every other developed CR-1 lot, the Association was found to be complying with the Declaration.
• Board’s Action as Corrective: The 2017 Board’s action was not a breach of contract or an unlawful act. Instead, it was an appropriate correction of the previous Board’s 2003 order, which was inconsistent with the Bylaws’ uniformity mandate. The Petitioner’s argument that the 2003 order should supersede the 2017 order was deemed inaccurate.
VII. Final Order
Based on the findings and legal conclusions, the Administrative Law Judge ordered that the Petitioner’s petition be denied.
The decision affirmed that the Sin Vacas Property Owners Association Board’s action to uniformly assess all CR-1 lots did not violate Arizona state law (ARIZ. REV. STAT. § 33-1803) or the Association’s Bylaws.
Study Guide – 19F-H1918017-REL
Study Guide: Brokaw v. Sin Vacas Property Owners Association
This guide reviews the key facts, legal arguments, and final ruling in the administrative hearing case No. 19F-H1918017-REL, Loraine Brokaw v. Sin Vacas Property Owners Association.
Short-Answer Quiz
Answer each question in 2-3 sentences, based on the provided source document.
1. Who were the primary parties involved in the hearing, and what were their respective roles?
2. What specific relief did the Petitioner request from the Office of Administrative Hearings?
3. What specific action taken by the Respondent prompted the Petitioner to file her petition?
4. Describe the assessment practice that the Sin Vacas Board had in place for the Petitioner’s property from 2003 until the change in 2017.
5. What was the Association’s stated reason for increasing the Petitioner’s assessment from 150% to 200%?
6. According to the Association’s Bylaws, what is the rule for how special assessments must be fixed and apportioned?
7. On what grounds did the Administrative Law Judge determine that the Petitioner owned two separate lots?
8. What is the legal standard of proof required in this case, and did the Petitioner successfully meet it?
9. Why did the Judge rule that the 2003 Board Order reducing the Petitioner’s assessment was not a binding contract?
10. What was the final order issued by the Administrative Law Judge in this matter?
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Answer Key
1. The primary parties were Loraine Brokaw, the Petitioner, who brought the action, and the Sin Vacas Property Owners Association, the Respondent. The case was heard by Administrative Law Judge Jenna Clark from the Office of Administrative Hearings.
2. The Petitioner requested that the Association’s Board be compelled to honor the 30-year assessment schedule and charge her the 150% assessment rate. She also requested that the Board reimburse her for the costs of bringing the petition.
3. The Petitioner filed her petition after receiving a letter on or about December 4, 2017, from the Association’s management company. This letter advised her that the Board had decided to raise her assessment from 150% to 200% based on “advice of counsel.”
4. Beginning in 2003, the Association assessed a home on a single lot at 100%, an undeveloped vacant lot at 25%, and a residence spanning two lots, like the Petitioner’s, at 150%. The Petitioner received written confirmation of her reduced 150% assessment from the Board on March 24, 2003.
5. The Association’s Board increased the assessment after determining that all plats needed to be assessed uniformly, per the Association’s Restatement. The increase was meant to bring her two lots into compliance with the governing documents.
6. Bylaws Article IV, Section 6 states that “Special assessments must be fixed and apportioned at a uniform rate for all CR-1 lots, SR lots, and each 20,000 square feet of TR lots.”
7. The Judge’s conclusion was based on the undisputed fact that the Petitioner’s two properties, Lots 156 and 157, have never been officially combined or consolidated into a single numbered lot on the Pima County Assessor’s Office plat map.
8. The required standard of proof was a “preponderance of the evidence,” which means proving a contention is more probably true than not. The Judge found that the Petitioner failed to sustain her burden of proof.
9. The Judge ruled that the 2003 Board Order was not a binding contract because the Petitioner provided no proof of consideration tendered to the Association. Therefore, the Association’s governing documents took precedence over the informal agreement.
10. The Administrative Law Judge ordered that the Petitioner’s petition be denied. The Judge concluded that the Board’s action to uniformly assess all CR-1 lots did not violate state statutes or the Association’s Bylaws.
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Essay Questions
The following questions are designed for longer, more analytical responses. No answers are provided.
1. Analyze the legal reasoning behind the Administrative Law Judge’s decision. Discuss the hierarchy of authority between the Association’s governing documents (CC&Rs) and a Board Order, as interpreted in this case.
2. Explain the concept of “burden of proof” in the context of this hearing. How did the Petitioner’s failure to meet the “preponderance of the evidence” standard lead to the denial of her petition?
3. The Petitioner’s case relied heavily on past practice and a 2003 Board decision to grant her a reduced assessment. Discuss why this argument was ultimately insufficient to overcome the explicit language of the Association’s governing documents.
4. Examine the contractual nature of a homeowners’ association’s CC&Rs as described in the Findings of Fact. How does this contractual relationship between the Association and each property owner shape the obligations and rights of both parties?
5. The Respondent (Sin Vacas POA) declined to present witnesses or exhibits, taking a passive stance at the hearing. Discuss the potential legal strategy behind this approach and how the undisputed material facts of the case made this a viable option.
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An official, in this case Jenna Clark, who presides over administrative hearings, reviews evidence, makes Findings of Fact and Conclusions of Law, and issues orders.
Association
The Sin Vacas Property Owners Association, a homeowners’ association for the Sin Vacas subdivision in Tucson, Arizona, responsible for managing, maintaining, and improving the property.
Assessment
A fee levied by the Association on property owners to promote the recreation, health, safety, and welfare of residents and for the improvement and maintenance of common areas and private streets.
Bylaws
The specific articles and sections within the CC&Rs that govern the Association’s operations, including definitions, assessment rules, and voting procedures.
CC&Rs (Covenants, Conditions, and Restrictions)
The governing documents for the Association, recorded with Pima County on April 13, 1978. They form an enforceable contract between the Association and each property owner.
Department
The Arizona Department of Real Estate, which is authorized by statute to receive and decide petitions for hearings from members of homeowners’ associations.
Any numbered lot shown upon any recorded subdivision map of the Sin Vacas Properties, with the exception of the Common Area. This case deals specifically with CR-1 lots.
OAH (Office of Administrative Hearings)
An independent state agency to which the Department refers matters for evidentiary hearings. The OAH has the authority to hear and decide contested cases and interpret contracts between parties.
Petitioner
Loraine Brokaw, a property owner in the Sin Vacas subdivision and member of the Association who filed the petition against the Association.
Planned Community
A real estate development where owners of separately owned lots are mandatory members of a nonprofit association and are required to pay assessments for the purpose of managing, maintaining, or improving the property.
Preponderance of the evidence
The standard of proof required for the Petitioner to win her case. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not” and represents the greater weight of evidence.
Respondent
The Sin Vacas Property Owners Association, the entity against whom the petition was filed.
Blog Post – 19F-H1918017-REL
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19F-H1918017-REL
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The provided text is an Administrative Law Judge Decision from the Office of Administrative Hearings regarding a dispute between Loraine Brokaw (Petitioner) and the Sin Vacas Property Owners Association (Respondent). The Petitioner challenged the Association’s decision to raise her annual assessment, arguing that the increase was arbitrary and contravened a decades-long practice of assessing her two lots at a combined 150% rate, rather than the new 200% rate. The decision outlines the Findings of Fact and Conclusions of Law, confirming that the Association is governed by its Covenants, Conditions, and Restrictions (CC&Rs) and Bylaws, which require uniform assessment rates for all developed lots. Ultimately, the Administrative Law Judge concluded that the Petitioner failed to prove the Association violated any community documents or statutes, reasoning that the governing documents take precedence over any prior informal agreement, and denied the Petitioner’s request.
What was the core legal basis for rejecting the petitioner’s assessment challenge?
How did the Association’s governing documents dictate uniform assessment requirements?
What legal implications arose from the Board’s decision to change long-standing practice?
Based on 1 source
Case Participants
Petitioner Side
Loraine Brokaw(petitioner)
Respondent Side
Jason Smith(HOA attorney) Carpenter, Hazlewood, Delgado & Bolen LLP Counsel for Sin Vacas Property Owners Association
Sean Moynihan(HOA attorney) Carpenter, Hazlewood, Delgado & Bolen LLP Counsel for Sin Vacas Property Owners Association
Neutral Parties
Jenna Clark(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
ARIZ. REV. STAT. § 33-1803; Bylaws Article IV, Section 6
Outcome Summary
The Administrative Law Judge denied the Petitioner's request, finding that the HOA's action to uniformly assess all CR-1 Lots (including Petitioner's two uncombined lots) adhered to the Association Bylaws, which require uniform rates, and did not violate ARS § 33-1803. The governing documents took precedence over any prior reduced assessment granted by a previous Board Order.
Why this result: Petitioner failed to prove the Association’s interpretation of the Bylaws requiring uniform assessment for all CR-1 lots was incorrect or unlawful, as her lots remained separate parcels according to the county map.
Key Issues & Findings
Whether Sin Vacas Property Owners Association (Respondent) arbitrarily and capriciously raised annual assessments for some homeowners and not others in contravention of decades of past board practice and contractual agreements.
Petitioner challenged the Association's decision to raise her assessment from 150% to 200% (full rate for two lots) based on the Association's interpretation that the Bylaws require uniform assessment rates for all CR-1 lots, arguing the new rate violated a long-standing prior Board Order (2003) granting her a reduced rate.
Orders: Petitioner’s petition is denied.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
ARIZ. REV. STAT. § 32-2102
ARIZ. REV. STAT. § 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 32-2199(2)
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199.01(D)
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 41-1092 et seq.
ARIZ. REV. STAT. § 33-1803
ARIZ. REV. STAT. § 33-1802(4)
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Bylaws Article IV, Covenant For Maintenance Assessments, Section 6
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
Video Overview
Audio Overview
Decision Documents
19F-H1918017-REL Decision – 698354.pdf
Uploaded 2025-10-09T03:33:35 (137.2 KB)
Briefing Doc – 19F-H1918017-REL
Briefing Document: Brokaw v. Sin Vacas Property Owners Association (Case No. 19F-H1918017-REL)
Executive Summary
This document synthesizes the findings of the Administrative Law Judge Decision in the case of Loraine Brokaw versus the Sin Vacas Property Owners Association (POA). The central conflict concerned the POA Board’s decision to increase Ms. Brokaw’s annual assessment from 150% to 200% for a single residence constructed across two separate lots.
The Petitioner, Ms. Brokaw, argued that this increase was unlawful and capricious, violating a nearly thirty-year practice that had been formalized by a 2003 Board decision granting her a reduced assessment. The POA contended that its action, taken on the advice of counsel, was necessary to comply with the Association’s governing documents, which mandate uniform assessments for all lots.
The Administrative Law Judge (ALJ) ultimately denied the homeowner’s petition. The decision established a critical legal precedent for the Association: the unambiguous language of the governing Covenants, Conditions, and Restrictions (CC&Rs) takes precedence over any past Board decisions, informal agreements, or long-standing practices, regardless of their duration. Because the Petitioner owns two distinct, legally unconsolidated lots, the ALJ found that the Board’s action to assess each lot at the full, uniform rate was not a violation, but rather a correct and required application of the community’s Bylaws.
——————————————————————————–
I. Case Overview
• Parties: Loraine Brokaw (Petitioner) vs. Sin Vacas Property Owners Association (Respondent).
• Jurisdiction: Office of Administrative Hearings (OAH), State of Arizona.
• Case Number: 19F-H1918017-REL.
• Presiding Judge: Administrative Law Judge Jenna Clark.
• Hearing Date: March 25, 2019.
• Decision Date: April 01, 2019.
II. Central Issue of the Dispute
The hearing was convened to address the following issue, as stated in the NOTICE OF HEARING:
“Whether Sin Vacas Property Owners Association (Respondent) arbitrarily and capriciously raised annual assessments for some homeowners and not others in contravention of decades of past board practice and contractual agreements based on utterly flawed legal theory, which, in fact, changed from attorney to attorney.”
The core of the dispute was the Association Board’s decision in 2017 to increase the annual assessment for the Petitioner’s property—a single home built across two adjacent lots—from 150% to 200% of the standard single-lot assessment rate. The Petitioner sought to compel the Board to revert to the 150% assessment schedule and reimburse her for costs associated with the petition.
III. Petitioner’s Position and Key Testimony
• Property History: The Petitioner testified that her husband first bought property in Sin Vacas in 1979. In 2003, the couple purchased an adjacent lot and constructed a new home that spanned across both properties (Lots 156 and 157).
• Claim of Lot Combination: The Petitioner claimed to have legally combined the two lots but presented no supporting documentation to the tribunal.
• Historical Assessment Practice: The Petitioner testified that as of 2003, the Association’s practice was to assess properties as follows:
◦ 100%: For a home on a single lot.
◦ 25%: For an undeveloped vacant lot.
◦ 150%: For a residence situated on two lots.
• 2003 Board Decision: On March 24, 2003, the Petitioner received written confirmation from the Board that it had voted to grant her a reduced assessment of 150%, formalizing the existing practice for her property.
• 2017 Assessment Change: On or about December 4, 2017, the Petitioner received a letter from the Association’s management company advising that the Board had decided to raise her assessment to 200%, citing “advice of counsel.”
• Rationale for Increase: The Petitioner stated she was given varying reasons for the change but was ultimately informed that the Board determined all plats needed to be assessed uniformly according to the Association’s governing documents. She was also told that to be assessed as a single lot, she would need to formally combine the lots on the county plat map, a process estimated to cost between $3,000 and $10,000 and require the permission of every other homeowner in the community.
IV. Respondent’s Position
The Sin Vacas Property Owners Association declined to present witnesses or exhibits. Its position at the hearing was that the dispute arose from differing interpretations of the language within the governing Bylaws. The Association’s counsel stated that the matter would be resolved based on the tribunal’s interpretation of the relevant governing texts.
V. Analysis of Governing Documents
The decision rested heavily on the interpretation of the Association’s Covenants, Conditions, and Restrictions (CC&Rs), recorded on April 13, 1978.
Document Section
Key Provision
Relevance to the Case
Bylaws Article I, Section 5
Defines a “Lot” as “any numbered lot shown upon any recorded subdivision map of the Sin Vacas Properties.”
This established that the Petitioner’s two properties, being separately numbered on the subdivision map, constitute two distinct lots for assessment purposes.
Bylaws Article IV, Section 6
“Special assessments must be fixed and apportioned at a uniform rate for all CR-1 lots, SR lots, and each 20,000 square feet of TR lots.”
This clause was central to the Judge’s decision. It establishes a clear mandate for uniformity in assessments across all lots of the same type (CR-1), which the 150% rate violated by treating two CR-1 lots differently from others.
Bylaws Article IV, Section 7
States the Board of Directors shall “fix the amount of the annual assessment against each Lot.”
This empowers the Board to set assessments but reinforces that they must do so on a per-lot basis, consistent with the uniformity requirement.
VI. Judge’s Findings and Conclusions of Law
The Administrative Law Judge made the following key determinations, leading to the denial of the petition:
• Failure to Meet Burden of Proof: The Petitioner failed to prove by a preponderance of the evidence that the Association violated community documents or Arizona statutes.
• Undisputed Material Facts: The Judge found it undisputed that:
1. The Petitioner owns two distinct CR-1 lots (Lot 156 and Lot 157).
2. The lots have never been legally combined or consolidated on the Pima County Assessor’s plat map.
3. The Petitioner’s residence is constructed across both lots.
• Primacy of Governing Documents: The central conclusion of the decision was that the Association’s governing documents supersede any past Board decisions or long-standing informal agreements. The Judge stated:
• Uniformity is Mandatory: The Bylaws require that the Association assess all developed CR-1 lots at a uniform rate. By assessing both of the Petitioner’s lots at the same full rate as every other developed CR-1 lot, the Association was found to be complying with the Declaration.
• Board’s Action as Corrective: The 2017 Board’s action was not a breach of contract or an unlawful act. Instead, it was an appropriate correction of the previous Board’s 2003 order, which was inconsistent with the Bylaws’ uniformity mandate. The Petitioner’s argument that the 2003 order should supersede the 2017 order was deemed inaccurate.
VII. Final Order
Based on the findings and legal conclusions, the Administrative Law Judge ordered that the Petitioner’s petition be denied.
The decision affirmed that the Sin Vacas Property Owners Association Board’s action to uniformly assess all CR-1 lots did not violate Arizona state law (ARIZ. REV. STAT. § 33-1803) or the Association’s Bylaws.
Study Guide – 19F-H1918017-REL
Study Guide: Brokaw v. Sin Vacas Property Owners Association
This guide reviews the key facts, legal arguments, and final ruling in the administrative hearing case No. 19F-H1918017-REL, Loraine Brokaw v. Sin Vacas Property Owners Association.
Short-Answer Quiz
Answer each question in 2-3 sentences, based on the provided source document.
1. Who were the primary parties involved in the hearing, and what were their respective roles?
2. What specific relief did the Petitioner request from the Office of Administrative Hearings?
3. What specific action taken by the Respondent prompted the Petitioner to file her petition?
4. Describe the assessment practice that the Sin Vacas Board had in place for the Petitioner’s property from 2003 until the change in 2017.
5. What was the Association’s stated reason for increasing the Petitioner’s assessment from 150% to 200%?
6. According to the Association’s Bylaws, what is the rule for how special assessments must be fixed and apportioned?
7. On what grounds did the Administrative Law Judge determine that the Petitioner owned two separate lots?
8. What is the legal standard of proof required in this case, and did the Petitioner successfully meet it?
9. Why did the Judge rule that the 2003 Board Order reducing the Petitioner’s assessment was not a binding contract?
10. What was the final order issued by the Administrative Law Judge in this matter?
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Answer Key
1. The primary parties were Loraine Brokaw, the Petitioner, who brought the action, and the Sin Vacas Property Owners Association, the Respondent. The case was heard by Administrative Law Judge Jenna Clark from the Office of Administrative Hearings.
2. The Petitioner requested that the Association’s Board be compelled to honor the 30-year assessment schedule and charge her the 150% assessment rate. She also requested that the Board reimburse her for the costs of bringing the petition.
3. The Petitioner filed her petition after receiving a letter on or about December 4, 2017, from the Association’s management company. This letter advised her that the Board had decided to raise her assessment from 150% to 200% based on “advice of counsel.”
4. Beginning in 2003, the Association assessed a home on a single lot at 100%, an undeveloped vacant lot at 25%, and a residence spanning two lots, like the Petitioner’s, at 150%. The Petitioner received written confirmation of her reduced 150% assessment from the Board on March 24, 2003.
5. The Association’s Board increased the assessment after determining that all plats needed to be assessed uniformly, per the Association’s Restatement. The increase was meant to bring her two lots into compliance with the governing documents.
6. Bylaws Article IV, Section 6 states that “Special assessments must be fixed and apportioned at a uniform rate for all CR-1 lots, SR lots, and each 20,000 square feet of TR lots.”
7. The Judge’s conclusion was based on the undisputed fact that the Petitioner’s two properties, Lots 156 and 157, have never been officially combined or consolidated into a single numbered lot on the Pima County Assessor’s Office plat map.
8. The required standard of proof was a “preponderance of the evidence,” which means proving a contention is more probably true than not. The Judge found that the Petitioner failed to sustain her burden of proof.
9. The Judge ruled that the 2003 Board Order was not a binding contract because the Petitioner provided no proof of consideration tendered to the Association. Therefore, the Association’s governing documents took precedence over the informal agreement.
10. The Administrative Law Judge ordered that the Petitioner’s petition be denied. The Judge concluded that the Board’s action to uniformly assess all CR-1 lots did not violate state statutes or the Association’s Bylaws.
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Essay Questions
The following questions are designed for longer, more analytical responses. No answers are provided.
1. Analyze the legal reasoning behind the Administrative Law Judge’s decision. Discuss the hierarchy of authority between the Association’s governing documents (CC&Rs) and a Board Order, as interpreted in this case.
2. Explain the concept of “burden of proof” in the context of this hearing. How did the Petitioner’s failure to meet the “preponderance of the evidence” standard lead to the denial of her petition?
3. The Petitioner’s case relied heavily on past practice and a 2003 Board decision to grant her a reduced assessment. Discuss why this argument was ultimately insufficient to overcome the explicit language of the Association’s governing documents.
4. Examine the contractual nature of a homeowners’ association’s CC&Rs as described in the Findings of Fact. How does this contractual relationship between the Association and each property owner shape the obligations and rights of both parties?
5. The Respondent (Sin Vacas POA) declined to present witnesses or exhibits, taking a passive stance at the hearing. Discuss the potential legal strategy behind this approach and how the undisputed material facts of the case made this a viable option.
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An official, in this case Jenna Clark, who presides over administrative hearings, reviews evidence, makes Findings of Fact and Conclusions of Law, and issues orders.
Association
The Sin Vacas Property Owners Association, a homeowners’ association for the Sin Vacas subdivision in Tucson, Arizona, responsible for managing, maintaining, and improving the property.
Assessment
A fee levied by the Association on property owners to promote the recreation, health, safety, and welfare of residents and for the improvement and maintenance of common areas and private streets.
Bylaws
The specific articles and sections within the CC&Rs that govern the Association’s operations, including definitions, assessment rules, and voting procedures.
CC&Rs (Covenants, Conditions, and Restrictions)
The governing documents for the Association, recorded with Pima County on April 13, 1978. They form an enforceable contract between the Association and each property owner.
Department
The Arizona Department of Real Estate, which is authorized by statute to receive and decide petitions for hearings from members of homeowners’ associations.
Any numbered lot shown upon any recorded subdivision map of the Sin Vacas Properties, with the exception of the Common Area. This case deals specifically with CR-1 lots.
OAH (Office of Administrative Hearings)
An independent state agency to which the Department refers matters for evidentiary hearings. The OAH has the authority to hear and decide contested cases and interpret contracts between parties.
Petitioner
Loraine Brokaw, a property owner in the Sin Vacas subdivision and member of the Association who filed the petition against the Association.
Planned Community
A real estate development where owners of separately owned lots are mandatory members of a nonprofit association and are required to pay assessments for the purpose of managing, maintaining, or improving the property.
Preponderance of the evidence
The standard of proof required for the Petitioner to win her case. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not” and represents the greater weight of evidence.
Respondent
The Sin Vacas Property Owners Association, the entity against whom the petition was filed.
Blog Post – 19F-H1918017-REL
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19F-H1918017-REL
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The provided text is an Administrative Law Judge Decision from the Office of Administrative Hearings regarding a dispute between Loraine Brokaw (Petitioner) and the Sin Vacas Property Owners Association (Respondent). The Petitioner challenged the Association’s decision to raise her annual assessment, arguing that the increase was arbitrary and contravened a decades-long practice of assessing her two lots at a combined 150% rate, rather than the new 200% rate. The decision outlines the Findings of Fact and Conclusions of Law, confirming that the Association is governed by its Covenants, Conditions, and Restrictions (CC&Rs) and Bylaws, which require uniform assessment rates for all developed lots. Ultimately, the Administrative Law Judge concluded that the Petitioner failed to prove the Association violated any community documents or statutes, reasoning that the governing documents take precedence over any prior informal agreement, and denied the Petitioner’s request.
What was the core legal basis for rejecting the petitioner’s assessment challenge?
How did the Association’s governing documents dictate uniform assessment requirements?
What legal implications arose from the Board’s decision to change long-standing practice?
Based on 1 source
Case Participants
Petitioner Side
Loraine Brokaw(petitioner)
Respondent Side
Jason Smith(HOA attorney) Carpenter, Hazlewood, Delgado & Bolen LLP Counsel for Sin Vacas Property Owners Association
Sean Moynihan(HOA attorney) Carpenter, Hazlewood, Delgado & Bolen LLP Counsel for Sin Vacas Property Owners Association
Neutral Parties
Jenna Clark(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
19F-H1918009-REL-RHG
Agency
ADRE
Tribunal
OAH
Decision Date
2019-03-04
Administrative Law Judge
Velva Moses-Thompson
Outcome
loss
Filing Fees Refunded
$0.00
Civil Penalties
$0.00
Parties & Counsel
Petitioner
Rogelio A. Garcia
Counsel
—
Respondent
Villagio at Tempe Homeowners Association
Counsel
Nathan Tennyson
Alleged Violations
ARIZ. REV. STAT. § 33-1242
Outcome Summary
The Administrative Law Judge dismissed the petition for rehearing, finding that the Petitioner failed to prove that the Respondent HOA violated A.R.S. § 33-1242. The HOA was not required to provide the statutory details or the notice of the right to petition ADRE because the Petitioner failed to submit a written response by certified mail within 21 days of the violation notices.
Why this result: The Petitioner failed to meet the burden of proof to show the HOA violated A.R.S. § 33-1242. The HOA was not required to provide the information listed in A.R.S. § 33-1242 (C) or the notice of right to petition in (D) because the Petitioner did not submit a written response by certified mail within twenty-one days, which is the triggering requirement for those obligations.
Key Issues & Findings
Alleged violation of statutory requirements for homeowner association violation notices.
Petitioner alleged Respondent violated A.R.S. § 33-1242 requirements regarding violation notices. The ALJ found that Petitioner failed to establish the violation because he did not respond by certified mail within the 21-day statutory period, meaning the HOA was not triggered to fulfill its obligations under § 33-1242(C) and (D).
Administrative Hearing Briefing: Garcia vs. Villagio at Tempe HOA
Executive Summary
This briefing document synthesizes the findings, arguments, and conclusions from two administrative law judge decisions concerning a dispute between homeowner Rogelio A. Garcia and the Villagio at Tempe Homeowners Association (“Villagio”). The core of the dispute was Mr. Garcia’s allegation that Villagio violated Arizona Revised Statute (A.R.S.) § 33-1242 in its handling of violation notices related to an alleged breach of short-term rental policies.
The Administrative Law Judge ultimately dismissed Mr. Garcia’s petition in both an initial hearing and a subsequent rehearing, finding that he failed to meet the burden of proof. The decisions consistently hinged on a critical point: Mr. Garcia did not respond to Villagio’s violation notices by certified mail within the 21-day period prescribed by the statute. This failure meant that the HOA’s subsequent obligations under the statute—specifically, to provide the name of the violation’s observer and to give notice of the right to a state administrative hearing—were never triggered. Villagio successfully argued that by including its own internal appeal process in the violation notices, it had fulfilled its legal requirements under the circumstances. The final ruling deemed Villagio the prevailing party, with the decision after rehearing being binding on both parties.
Background of the Dispute
The case, No. 19F-H1918009-REL, was adjudicated by Administrative Law Judge Velva Moses-Thompson within the Arizona Office of Administrative Hearings, following a petition filed by Mr. Garcia with the Arizona Department of Real Estate.
Timeline of Notices and Fines
Villagio issued a series of notices to Mr. Garcia alleging that his unit was being rented in violation of the community’s Covenants, Conditions, and Restrictions (CC&Rs) regarding short-term leases.
Date of Notice
Allegation / Action Taken
Instructions Provided to Homeowner
March 8, 2018
Alleged violation of short-term lease provisions.
“If you wish to contest this notice… file an appeal with the Board of Directors… Requests for an appeal must be received within 10 days of receipt of this notice.”
March 22, 2018
A fine of $1,000 posted to Mr. Garcia’s account for the ongoing violation.
Same instructions to appeal within 10 days. The notice also included the phrase, “Please bring this issue into compliance within 10 days of this notice.”
April 5, 2018
A fine of $2,000 posted to Mr. Garcia’s account for the ongoing violation.
Same instructions to appeal within 10 days.
Procedural History
1. Violation Notices: Villagio sent the three notices in March and April 2018.
2. Homeowner Inaction (Statutory): Mr. Garcia did not respond to any of the notices by sending a certified letter within the 21-day period allowed by A.R.S. § 33-1242(B).
3. Homeowner Action (Internal): Mr. Garcia did eventually file an appeal with Villagio regarding the violation and fines, but the HOA did not change its position.
4. Petition Filed: On or about August 17, 2018, Mr. Garcia filed a petition with the Arizona Department of Real Estate, alleging Villagio violated state statutes.
5. Initial Hearing: An evidentiary hearing was held on October 30, 2018.
6. First Decision: On November 19, 2018, the Administrative Law Judge (ALJ) issued a decision dismissing Mr. Garcia’s petition.
7. Rehearing Granted: Mr. Garcia requested a rehearing, which was granted and scheduled.
8. Rehearing: The rehearing was held on February 12, 2019, with testimony from Mr. Garcia and Tom Gordon, Villagio’s Community Manager.
9. Final Decision: On March 4, 2019, the ALJ issued a final decision again dismissing Mr. Garcia’s petition. This order was declared binding and appealable only to the superior court.
Core Legal Arguments and Statutory Interpretation
The case centered on the interpretation and application of A.R.S. § 33-1242, which governs the process for notifying and responding to violations of condominium documents.
Statutory Framework: A.R.S. § 33-1242
• Section (B): A unit owner receiving a violation notice may provide the association with a written response via certified mail within 21 calendar days of the notice date.
• Section (C):If the owner sends a response as described in Section (B), the association must then respond within 10 business days with specific information, including the name of the person who observed the violation and the process to contest the notice.
• Section (D): An association must give a unit owner written notice of their option to petition for a state administrative hearing unless the information regarding the contest process (required in Section C, paragraph 4) is already provided in the initial violation notice.
Petitioner’s Position (Rogelio A. Garcia)
Mr. Garcia argued that Villagio violated A.R.S. § 33-1242 on several grounds:
• The violation letters did not allow him to respond by certified mail within 21 days.
• The notices failed to include the first and last name of the person(s) who observed the violation.
• The notices failed to inform him of his right to petition for an administrative hearing with the state real estate department.
• During the rehearing, he contended that Villagio effectively prevented him from using the 21-day statutory response period. He claimed the rapid succession of notices (14 days apart) and the language demanding compliance “within 10 days” led him to believe he “would only be 10 days before he would acquire another violation.”
Respondent’s Position (Villagio at Tempe HOA)
Villagio disputed all of Mr. Garcia’s allegations, arguing that its actions were fully compliant with the statute:
• The obligation to provide the observer’s name under Section (C) is only triggered after the homeowner first submits a timely certified mail response, which Mr. Garcia failed to do.
• The obligation to provide notice of the right to a state administrative hearing under Section (D) was not applicable because Villagio did provide its internal process for contesting the notice in every letter sent.
• They did not prevent Mr. Garcia from responding. At the rehearing, Mr. Garcia admitted under cross-examination that he was not prohibited by any court order from sending a response.
• Villagio’s Community Manager, Tom Gordon, testified that while the HOA’s policy gives homeowners 10 days to contest internally, the association does not restrict them from also using the 21-day statutory response period.
• As a further defense in the rehearing, Villagio argued that A.R.S. § 33-1242 was not applicable at all, asserting the statute addresses violations concerning the “condition of the property,” whereas Mr. Garcia’s violation concerned the “use of his property.”
Administrative Law Judge’s Findings and Decision
The Administrative Law Judge’s decisions in both the initial hearing and the rehearing were consistent, ruling decisively in favor of the Respondent, Villagio.
Burden of Proof
In both decisions, the Judge established that Mr. Garcia, as the petitioner, bore the burden of proof to show that a violation occurred. The standard of proof required was a “preponderance of the evidence,” defined as evidence with the “most convincing force.”
Key Conclusions of Law
1. Homeowner’s Failure to Respond Was Decisive: The Judge found it was “undisputed” that Mr. Garcia did not respond to any of the three notices within the 21-day period via certified mail. This failure was the central reason his petition was dismissed.
2. HOA Obligations Were Not Triggered: Because Mr. Garcia did not initiate the process described in A.R.S. § 33-1242(B), Villagio’s corresponding obligation under Section (C) to provide the observer’s name was never activated.
3. Internal Appeal Process Satisfied Statutory Requirement: The Judge concluded that because Villagio included instructions on how to contest the notice (i.e., appeal to the Board of Directors) in its letters, it was not required under Section (D) to provide separate notice of the right to a state administrative hearing.
4. No Evidence of Prevention: The Judge found that Mr. Garcia “provided no evidence to establish that Villagio prevented him from responding.” The issuance of subsequent notices and fines before the 21-day period had lapsed was not found to constitute a legal barrier that prevented Mr. Garcia from exercising his statutory right to respond.
5. Final Order: Mr. Garcia failed to establish that Villagio violated A.R.S. § 33-1242. His petition was ordered to be dismissed, and Villagio was deemed the prevailing party. The order issued after the rehearing on March 4, 2019, is binding on the parties and can only be appealed by seeking judicial review in the superior court within 35 days of service.
Study Guide – 19F-H1918009-REL-RHG
Study Guide: Garcia v. Villagio at Tempe Homeowners Association
Answer the following ten questions in 2-3 sentences each, based on the provided source documents.
1. What was the initial violation alleged by the Villagio at Tempe Homeowners Association (Villagio) against Rogelio A. Garcia?
2. According to ARIZ. REV. STAT. § 33-1242(B), what specific action must a unit owner take after receiving a violation notice to trigger the association’s obligations under subsection C?
3. Who bears the burden of proof in this type of administrative hearing, and what is the standard of proof required?
4. Why did the Administrative Law Judge rule that Villagio was not required to provide Mr. Garcia with the name of the person who observed the violation?
5. What was Mr. Garcia’s primary argument during the February 12, 2019 rehearing for why he felt he was prevented from responding to the violation notices?
6. What argument did Villagio present at the rehearing distinguishing between the “condition” of a property and the “use” of a property?
7. What two fines were imposed on Mr. Garcia’s account, and on what dates were the notices sent?
8. Why did the Judge conclude that Villagio was not obligated to inform Mr. Garcia of his right to petition for an administrative hearing with the state real estate department?
9. What was the testimony of Tom Gordon, the Community Manager for Villagio, regarding the association’s policy for contesting a notice?
10. What was the final outcome of both the initial hearing on October 30, 2018, and the rehearing on February 12, 2019?
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Answer Key
1. What was the initial violation alleged by the Villagio at Tempe Homeowners Association (Villagio) against Rogelio A. Garcia? The initial violation alleged by Villagio was that Mr. Garcia’s unit was being rented in violation of the short-term lease provisions located in Villagio’s Covenants, Conditions, and Restrictions (CC&Rs). The first notice of this violation was mailed to Mr. Garcia on March 8, 2018.
2. According to ARIZ. REV. STAT. § 33-1242(B), what specific action must a unit owner take after receiving a violation notice to trigger the association’s obligations under subsection C? To trigger the association’s obligations, a unit owner who receives a written notice of violation must provide the association with a written response. This response must be sent by certified mail within twenty-one calendar days after the date of the notice.
3. Who bears the burden of proof in this type of administrative hearing, and what is the standard of proof required? The petitioner, Mr. Garcia, bears the burden of proof to show that the respondent committed the alleged violation. The standard of proof is a “preponderance of the evidence,” which is defined as evidence with the most convincing force that is sufficient to incline a fair and impartial mind to one side of the issue.
4. Why did the Administrative Law Judge rule that Villagio was not required to provide Mr. Garcia with the name of the person who observed the violation? The judge ruled that Villagio was not required to provide the observer’s name because that obligation is only triggered after a unit owner responds to the violation notice in writing by certified mail within 21 days. It is undisputed that Mr. Garcia did not respond to the notices within the 21-day period, so Villagio’s obligation was never activated.
5. What was Mr. Garcia’s primary argument during the February 12, 2019 rehearing for why he felt he was prevented from responding to the violation notices? Mr. Garcia argued that Villagio prevented him from responding by certified mail within 21 days because it failed to wait 21 days before issuing additional notices and imposing fines. He stated that the notices’ language requiring compliance within 10 days made him believe he would acquire another violation before the 21-day statutory response period had passed.
6. What argument did Villagio present at the rehearing distinguishing between the “condition” of a property and the “use” of a property? Villagio contended that A.R.S. § 33-1242 does not apply to this case at all because the statute addresses violations related to the “condition” of the property. Villagio argued that it notified Mr. Garcia that the “use” of his property violated its short-term rental policy, not that a physical condition of the property was in violation.
7. What two fines were imposed on Mr. Garcia’s account, and on what dates were the notices sent? A fine of $1,000 was posted to Mr. Garcia’s account, with the notice being sent on March 22, 2018. Subsequently, a $2,000 fine was posted to his account for the same violation, and that notice was sent on April 5, 2018.
8. Why did the Judge conclude that Villagio was not obligated to inform Mr. Garcia of his right to petition for an administrative hearing with the state real estate department? The Judge concluded that Villagio was not obligated to provide this information because A.R.S. § 33-1242(D) only requires it if the association fails to provide the unit owner with the process for contesting the notice. Villagio’s notices all contained instructions on how to contest the violation, specifically by filing an appeal with the Board of Directors via a provided website.
9. What was the testimony of Tom Gordon, the Community Manager for Villagio, regarding the association’s policy for contesting a notice? Tom Gordon testified that homeowners are provided with 10 days to contest a notice with Villagio, pursuant to Villagio’s short-term rental policy. When asked if Villagio would have abided by “this statute” (A.R.S. § 33-1242) if Mr. Garcia had responded in twenty-one days, Mr. Gordon replied, “No.”
10. What was the final outcome of both the initial hearing on October 30, 2018, and the rehearing on February 12, 2019? In both the initial hearing and the rehearing, the Administrative Law Judge found that Mr. Garcia failed to establish that Villagio violated A.R.S. § 33-1242. Consequently, Mr. Garcia’s petition was dismissed in both instances, and Villagio was deemed the prevailing party.
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Essay Questions
Develop detailed essay-format answers to the following prompts, drawing evidence and examples exclusively from the provided source documents.
1. Analyze the central arguments presented by both Rogelio A. Garcia and the Villagio at Tempe Homeowners Association regarding the application of ARIZ. REV. STAT. § 33-1242. How did the Administrative Law Judge interpret the statute in relation to these arguments in the final decision?
2. Discuss the concept of “burden of proof” and “preponderance of the evidence” as applied in this case. Explain how Mr. Garcia’s failure to meet this burden led to the dismissal of his petition in both the initial hearing and the rehearing.
3. Trace the timeline of events from the first notice sent by Villagio on March 8, 2018, to the final order on March 4, 2019. Explain how Mr. Garcia’s actions, or lack thereof, at key moments influenced the legal obligations of the association and the ultimate outcome of the case.
4. Evaluate Villagio’s argument that A.R.S. § 33-1242 applies only to the “condition” of a property and not its “use.” Although the judge’s decision did not ultimately hinge on this point, discuss the potential implications of this distinction in homeowner association disputes.
5. Explain the two distinct procedural paths available to a unit owner after receiving a violation notice as outlined in this case: the association’s internal appeal process and the statutory process under A.R.S. § 33-1242. Why did the path Mr. Garcia chose fail to trigger the statutory protections he sought?
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Glossary
Definition
Administrative Law Judge (ALJ)
The official who presides over the administrative hearing and rehearing, evaluates evidence, and issues a decision. In this case, Velva Moses-Thompson.
ARIZ. REV. STAT. (A.R.S.)
The abbreviation for Arizona Revised Statutes, which are the codified laws of the state of Arizona that regulate condominiums and planned communities.
Arizona Department of Real Estate (Department)
The state agency that has authority over homeowner association disputes and with which homeowners may petition for a hearing.
Burden of Proof
The obligation of a party in a legal proceeding to prove their allegations. In this case, Mr. Garcia bore the burden of proof.
Covenants, Conditions, and Restrictions (CC&Rs)
The governing documents of the Villagio at Tempe Homeowners Association, which contain the short-term lease provisions Mr. Garcia was alleged to have violated.
Office of Administrative Hearings
The venue where the evidentiary hearing and rehearing for this matter were held.
Petitioner
The party who initiates a legal action by filing a petition. In this case, Rogelio A. Garcia.
Preponderance of the Evidence
The standard of proof required in this matter, defined as “The greater weight of the evidence…that has the most convincing force…sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”
Rehearing
A second hearing on a matter, granted in this case at Mr. Garcia’s request after the initial Administrative Law Judge Decision was issued.
Respondent
The party against whom a petition is filed and who must respond to the allegations. In this case, Villagio at Tempe Homeowners Association.
Blog Post – 19F-H1918009-REL-RHG
He Fought His HOA and Followed Their Rules. Here’s Why He Still Lost.
1.0 Introduction: The Dreaded Letter
For many homeowners, it’s a familiar and unwelcome sight: a crisp envelope from the Homeowners Association (HOA) containing a formal, intimidating violation notice. Your first instinct is to act, to follow the instructions, and to fight back against what feels like an unfair accusation. You read the letter, see a process for an appeal, and dutifully follow it, believing you are protecting your rights. But what if the process outlined in the letter isn’t the one that truly matters under the law?
This isn’t a theoretical warning. It’s the hard lesson learned by a real homeowner in Arizona, Rogelio A. Garcia, who took on his HOA, Villagio at Tempe. He believed the association had violated his rights, and unlike many homeowners, he didn’t ignore the notices—he took action. He filed an appeal with the HOA, just as their letter instructed. Yet, he lost his case, not because he was wrong on the facts, but because he fell into a subtle procedural trap, following the HOA’s internal process while missing a separate, more powerful one defined by state law.
This article breaks down the top three legal takeaways from that court decision. It reveals how taking the wrong action can be just as costly as taking no action at all, offering crucial strategic insights for any homeowner facing a dispute with their association.
2.0 Takeaway 1: Your Rights Often Have an ‘On’ Switch You Must Flip First
Mr. Garcia’s primary complaint was that the HOA failed to provide him with the name of the person who reported his alleged violation—a requirement under Arizona statute A.R.S. § 33-1242. On the surface, this seems like a clear-cut right afforded to homeowners.
However, the court revealed a counter-intuitive legal reality. The HOA’s legal obligation to provide the reporter’s name was not automatic. That right only became active—the obligation was only triggered—if the homeowner first took a specific, formal step: sending a written response to the violation notice via certified mail within 21 calendar days. The record was clear that Mr. Garcia did not send such a response to the March 8, March 22, or April 5 notices. This single procedural failure was fatal to his claim.
The judge’s finding on this point was direct and unambiguous:
“Because Mr. Garcia did not respond in the 21 day period, Villagio was not required to provide Mr. Garcia with the first and last name of the person or persons who observed the violation.”
This illustrates a critical principle: your most important legal rights may exist in state law, but they often lie dormant. To activate them, you must flip the “on” switch by taking the precise action required by statute, which may be entirely different from the process described in the HOA’s notice.
3.0 Takeaway 2: An Internal Process Can Legally Replace—and Distract From—a State-Level One
So why would an engaged homeowner like Mr. Garcia, who went so far as to file an appeal, neglect to send the critical 21-day certified letter? The answer lies in the second key takeaway: the HOA’s violation notice offered its own, separate appeal process with a much shorter deadline, creating a critical and costly distraction.
Mr. Garcia’s second major argument was that Villagio violated the law by not informing him of his right to petition for an administrative hearing with the state real estate department. Again, the law contained a crucial nuance. Under A.R.S. § 33-1242(D), an HOA is only required to notify a homeowner of the state hearing option if it fails to provide its own process for contesting the notice. Villagio’s letters did include a process: the homeowner could “file an appeal with the Board of Directors… within 10 days of receipt of this notice.”
Court records show Mr. Garcia followed this path and “filed an appeal with Villagio.” By doing so, he engaged with the HOA on their terms, likely focusing all his energy on meeting that urgent 10-day deadline. Because Villagio provided this internal process, the judge concluded it had met its legal obligation and was not required to inform Mr. Garcia about the alternative state-level hearing. This created a procedural trap: the HOA satisfied its legal requirement by offering an internal process that simultaneously diverted the homeowner’s attention from the more powerful, but less obvious, 21-day statutory deadline that would have unlocked his other rights.
4.0 Takeaway 3: Conflicting Deadlines Can Create a Legal Minefield
During a rehearing, Mr. Garcia argued that the HOA’s communication style effectively “prevented” him from using his full 21-day statutory response window. The notices demanded compliance within 10 days and were sent every 14 days with escalating fines. He felt the rapid succession of notices created a pressure cooker, making it impossible to properly exercise his rights.
The court flatly rejected this argument, highlighting a harsh legal truth. The judge found no evidence that Villagio had explicitly told Mr. Garcia he could not respond or had physically prevented him from sending a certified letter. The issuance of a second notice with a demanding 10-day timeline did not legally nullify the 21-day window he had to respond to the first. When asked directly if he was prohibited by a court order from sending a response, Mr. Garcia answered, “No.”
This reveals a common tactic, whether intentional or not, in HOA disputes. The violation notices contained two conflicting timelines: a prominent, urgent “10 days to comply” demand and the less obvious, but legally superior, 21-day statutory right to respond. This conflict creates confusion and pressure, causing homeowners to focus on the immediate threat (the 10-day deadline) while missing the most important legal one. The court, however, places the burden squarely on the homeowner to navigate this minefield, as feeling pressured is not a legal defense for failing to meet a statutory deadline.
5.0 Conclusion: Know the Rules Before You Play the Game
The case of Mr. Garcia versus the Villagio at Tempe HOA is a powerful reminder that successfully challenging an HOA is not about being “right,” or even about taking action. It is about taking the correct, procedurally perfect action defined by law.
Mr. Garcia was not passive; he engaged and appealed the violation. His case was lost because he followed the path laid out for him by the HOA, not the one laid out for him by state statute. This crucial distinction—between an association’s internal process and the homeowner’s statutory rights—can mean the difference between victory and defeat. Before you act on any violation notice, you must first understand the precise rules of engagement, which may not be written in the notice itself.
If you received a violation notice today, would you know whether the appeal process in the letter is your only option, or a potential distraction from the legal first step required to truly protect your rights?
Case Participants
Petitioner Side
Rogelio A. Garcia(petitioner) Appeared on behalf of himself
Respondent Side
Nathan Tennyson(HOA attorney) Brown Olcott, PLLC
Tom Gordon(community manager) Villagio / AAMAZ Testified as witness for Villagio
Amanda Shaw(property manager/agent) AAM LLC Listed as agent for Villagio at Tempe Homeowners Association
Neutral Parties
Velva Moses-Thompson(ALJ) Office of Administrative Hearings
Judy Lowe(ADRE Commissioner) Arizona Department of Real Estate
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
19F-H1918009-REL-RHG
Agency
ADRE
Tribunal
OAH
Decision Date
2019-03-04
Administrative Law Judge
Velva Moses-Thompson
Outcome
loss
Filing Fees Refunded
$0.00
Civil Penalties
$0.00
Parties & Counsel
Petitioner
Rogelio A. Garcia
Counsel
—
Respondent
Villagio at Tempe Homeowners Association
Counsel
Nathan Tennyson
Alleged Violations
ARIZ. REV. STAT. section 33-1242
Outcome Summary
The Administrative Law Judge dismissed the petition based on a rehearing, concluding that the Petitioner failed to prove the HOA violated A.R.S. § 33-1242 because the Petitioner's failure to respond by certified mail within 21 days meant the HOA's duties to provide further information or notice of the right to petition ADRE were never triggered.
Why this result: The Petitioner failed to carry the burden of proof to show that the Respondent committed the alleged violation of A.R.S. § 33-1242. The HOA was deemed not obligated to provide the specific statutory disclosures because the Petitioner did not respond to the notices of violation by certified mail within 21 calendar days.
Key Issues & Findings
Alleged violation of HOA notice requirements
Petitioner alleged Respondent violated A.R.S. § 33-1242 by failing to provide specific information (observer name, notice of ADRE petition right) and restricting the 21-day response period in violation notices concerning short term lease provisions. The ALJ found that because the Petitioner did not respond by certified mail within 21 days, the HOA was not required to provide the information under A.R.S. § 33-1242(C) or the notice of administrative hearing option under A.R.S. § 33-1242(D).
Orders: Petitioner’s petition is dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
ARIZ. REV. STAT. section 33-1242
ARIZ. REV. STAT. section 32-2199.01
ARIZ. REV. STAT. section 32-2199.02
ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
ARIZ. ADMIN. CODE § R2-19-119
Analytics Highlights
Topics: HOA, notice of violation, statutory interpretation, right to respond, administrative hearing
Administrative Hearing Briefing: Garcia vs. Villagio at Tempe HOA
Executive Summary
This briefing document synthesizes the findings, arguments, and conclusions from two administrative law judge decisions concerning a dispute between homeowner Rogelio A. Garcia and the Villagio at Tempe Homeowners Association (“Villagio”). The core of the dispute was Mr. Garcia’s allegation that Villagio violated Arizona Revised Statute (A.R.S.) § 33-1242 in its handling of violation notices related to an alleged breach of short-term rental policies.
The Administrative Law Judge ultimately dismissed Mr. Garcia’s petition in both an initial hearing and a subsequent rehearing, finding that he failed to meet the burden of proof. The decisions consistently hinged on a critical point: Mr. Garcia did not respond to Villagio’s violation notices by certified mail within the 21-day period prescribed by the statute. This failure meant that the HOA’s subsequent obligations under the statute—specifically, to provide the name of the violation’s observer and to give notice of the right to a state administrative hearing—were never triggered. Villagio successfully argued that by including its own internal appeal process in the violation notices, it had fulfilled its legal requirements under the circumstances. The final ruling deemed Villagio the prevailing party, with the decision after rehearing being binding on both parties.
Background of the Dispute
The case, No. 19F-H1918009-REL, was adjudicated by Administrative Law Judge Velva Moses-Thompson within the Arizona Office of Administrative Hearings, following a petition filed by Mr. Garcia with the Arizona Department of Real Estate.
Timeline of Notices and Fines
Villagio issued a series of notices to Mr. Garcia alleging that his unit was being rented in violation of the community’s Covenants, Conditions, and Restrictions (CC&Rs) regarding short-term leases.
Date of Notice
Allegation / Action Taken
Instructions Provided to Homeowner
March 8, 2018
Alleged violation of short-term lease provisions.
“If you wish to contest this notice… file an appeal with the Board of Directors… Requests for an appeal must be received within 10 days of receipt of this notice.”
March 22, 2018
A fine of $1,000 posted to Mr. Garcia’s account for the ongoing violation.
Same instructions to appeal within 10 days. The notice also included the phrase, “Please bring this issue into compliance within 10 days of this notice.”
April 5, 2018
A fine of $2,000 posted to Mr. Garcia’s account for the ongoing violation.
Same instructions to appeal within 10 days.
Procedural History
1. Violation Notices: Villagio sent the three notices in March and April 2018.
2. Homeowner Inaction (Statutory): Mr. Garcia did not respond to any of the notices by sending a certified letter within the 21-day period allowed by A.R.S. § 33-1242(B).
3. Homeowner Action (Internal): Mr. Garcia did eventually file an appeal with Villagio regarding the violation and fines, but the HOA did not change its position.
4. Petition Filed: On or about August 17, 2018, Mr. Garcia filed a petition with the Arizona Department of Real Estate, alleging Villagio violated state statutes.
5. Initial Hearing: An evidentiary hearing was held on October 30, 2018.
6. First Decision: On November 19, 2018, the Administrative Law Judge (ALJ) issued a decision dismissing Mr. Garcia’s petition.
7. Rehearing Granted: Mr. Garcia requested a rehearing, which was granted and scheduled.
8. Rehearing: The rehearing was held on February 12, 2019, with testimony from Mr. Garcia and Tom Gordon, Villagio’s Community Manager.
9. Final Decision: On March 4, 2019, the ALJ issued a final decision again dismissing Mr. Garcia’s petition. This order was declared binding and appealable only to the superior court.
Core Legal Arguments and Statutory Interpretation
The case centered on the interpretation and application of A.R.S. § 33-1242, which governs the process for notifying and responding to violations of condominium documents.
Statutory Framework: A.R.S. § 33-1242
• Section (B): A unit owner receiving a violation notice may provide the association with a written response via certified mail within 21 calendar days of the notice date.
• Section (C):If the owner sends a response as described in Section (B), the association must then respond within 10 business days with specific information, including the name of the person who observed the violation and the process to contest the notice.
• Section (D): An association must give a unit owner written notice of their option to petition for a state administrative hearing unless the information regarding the contest process (required in Section C, paragraph 4) is already provided in the initial violation notice.
Petitioner’s Position (Rogelio A. Garcia)
Mr. Garcia argued that Villagio violated A.R.S. § 33-1242 on several grounds:
• The violation letters did not allow him to respond by certified mail within 21 days.
• The notices failed to include the first and last name of the person(s) who observed the violation.
• The notices failed to inform him of his right to petition for an administrative hearing with the state real estate department.
• During the rehearing, he contended that Villagio effectively prevented him from using the 21-day statutory response period. He claimed the rapid succession of notices (14 days apart) and the language demanding compliance “within 10 days” led him to believe he “would only be 10 days before he would acquire another violation.”
Respondent’s Position (Villagio at Tempe HOA)
Villagio disputed all of Mr. Garcia’s allegations, arguing that its actions were fully compliant with the statute:
• The obligation to provide the observer’s name under Section (C) is only triggered after the homeowner first submits a timely certified mail response, which Mr. Garcia failed to do.
• The obligation to provide notice of the right to a state administrative hearing under Section (D) was not applicable because Villagio did provide its internal process for contesting the notice in every letter sent.
• They did not prevent Mr. Garcia from responding. At the rehearing, Mr. Garcia admitted under cross-examination that he was not prohibited by any court order from sending a response.
• Villagio’s Community Manager, Tom Gordon, testified that while the HOA’s policy gives homeowners 10 days to contest internally, the association does not restrict them from also using the 21-day statutory response period.
• As a further defense in the rehearing, Villagio argued that A.R.S. § 33-1242 was not applicable at all, asserting the statute addresses violations concerning the “condition of the property,” whereas Mr. Garcia’s violation concerned the “use of his property.”
Administrative Law Judge’s Findings and Decision
The Administrative Law Judge’s decisions in both the initial hearing and the rehearing were consistent, ruling decisively in favor of the Respondent, Villagio.
Burden of Proof
In both decisions, the Judge established that Mr. Garcia, as the petitioner, bore the burden of proof to show that a violation occurred. The standard of proof required was a “preponderance of the evidence,” defined as evidence with the “most convincing force.”
Key Conclusions of Law
1. Homeowner’s Failure to Respond Was Decisive: The Judge found it was “undisputed” that Mr. Garcia did not respond to any of the three notices within the 21-day period via certified mail. This failure was the central reason his petition was dismissed.
2. HOA Obligations Were Not Triggered: Because Mr. Garcia did not initiate the process described in A.R.S. § 33-1242(B), Villagio’s corresponding obligation under Section (C) to provide the observer’s name was never activated.
3. Internal Appeal Process Satisfied Statutory Requirement: The Judge concluded that because Villagio included instructions on how to contest the notice (i.e., appeal to the Board of Directors) in its letters, it was not required under Section (D) to provide separate notice of the right to a state administrative hearing.
4. No Evidence of Prevention: The Judge found that Mr. Garcia “provided no evidence to establish that Villagio prevented him from responding.” The issuance of subsequent notices and fines before the 21-day period had lapsed was not found to constitute a legal barrier that prevented Mr. Garcia from exercising his statutory right to respond.
5. Final Order: Mr. Garcia failed to establish that Villagio violated A.R.S. § 33-1242. His petition was ordered to be dismissed, and Villagio was deemed the prevailing party. The order issued after the rehearing on March 4, 2019, is binding on the parties and can only be appealed by seeking judicial review in the superior court within 35 days of service.
Study Guide – 19F-H1918009-REL-RHG
Study Guide: Garcia v. Villagio at Tempe Homeowners Association
Answer the following ten questions in 2-3 sentences each, based on the provided source documents.
1. What was the initial violation alleged by the Villagio at Tempe Homeowners Association (Villagio) against Rogelio A. Garcia?
2. According to ARIZ. REV. STAT. § 33-1242(B), what specific action must a unit owner take after receiving a violation notice to trigger the association’s obligations under subsection C?
3. Who bears the burden of proof in this type of administrative hearing, and what is the standard of proof required?
4. Why did the Administrative Law Judge rule that Villagio was not required to provide Mr. Garcia with the name of the person who observed the violation?
5. What was Mr. Garcia’s primary argument during the February 12, 2019 rehearing for why he felt he was prevented from responding to the violation notices?
6. What argument did Villagio present at the rehearing distinguishing between the “condition” of a property and the “use” of a property?
7. What two fines were imposed on Mr. Garcia’s account, and on what dates were the notices sent?
8. Why did the Judge conclude that Villagio was not obligated to inform Mr. Garcia of his right to petition for an administrative hearing with the state real estate department?
9. What was the testimony of Tom Gordon, the Community Manager for Villagio, regarding the association’s policy for contesting a notice?
10. What was the final outcome of both the initial hearing on October 30, 2018, and the rehearing on February 12, 2019?
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Answer Key
1. What was the initial violation alleged by the Villagio at Tempe Homeowners Association (Villagio) against Rogelio A. Garcia? The initial violation alleged by Villagio was that Mr. Garcia’s unit was being rented in violation of the short-term lease provisions located in Villagio’s Covenants, Conditions, and Restrictions (CC&Rs). The first notice of this violation was mailed to Mr. Garcia on March 8, 2018.
2. According to ARIZ. REV. STAT. § 33-1242(B), what specific action must a unit owner take after receiving a violation notice to trigger the association’s obligations under subsection C? To trigger the association’s obligations, a unit owner who receives a written notice of violation must provide the association with a written response. This response must be sent by certified mail within twenty-one calendar days after the date of the notice.
3. Who bears the burden of proof in this type of administrative hearing, and what is the standard of proof required? The petitioner, Mr. Garcia, bears the burden of proof to show that the respondent committed the alleged violation. The standard of proof is a “preponderance of the evidence,” which is defined as evidence with the most convincing force that is sufficient to incline a fair and impartial mind to one side of the issue.
4. Why did the Administrative Law Judge rule that Villagio was not required to provide Mr. Garcia with the name of the person who observed the violation? The judge ruled that Villagio was not required to provide the observer’s name because that obligation is only triggered after a unit owner responds to the violation notice in writing by certified mail within 21 days. It is undisputed that Mr. Garcia did not respond to the notices within the 21-day period, so Villagio’s obligation was never activated.
5. What was Mr. Garcia’s primary argument during the February 12, 2019 rehearing for why he felt he was prevented from responding to the violation notices? Mr. Garcia argued that Villagio prevented him from responding by certified mail within 21 days because it failed to wait 21 days before issuing additional notices and imposing fines. He stated that the notices’ language requiring compliance within 10 days made him believe he would acquire another violation before the 21-day statutory response period had passed.
6. What argument did Villagio present at the rehearing distinguishing between the “condition” of a property and the “use” of a property? Villagio contended that A.R.S. § 33-1242 does not apply to this case at all because the statute addresses violations related to the “condition” of the property. Villagio argued that it notified Mr. Garcia that the “use” of his property violated its short-term rental policy, not that a physical condition of the property was in violation.
7. What two fines were imposed on Mr. Garcia’s account, and on what dates were the notices sent? A fine of $1,000 was posted to Mr. Garcia’s account, with the notice being sent on March 22, 2018. Subsequently, a $2,000 fine was posted to his account for the same violation, and that notice was sent on April 5, 2018.
8. Why did the Judge conclude that Villagio was not obligated to inform Mr. Garcia of his right to petition for an administrative hearing with the state real estate department? The Judge concluded that Villagio was not obligated to provide this information because A.R.S. § 33-1242(D) only requires it if the association fails to provide the unit owner with the process for contesting the notice. Villagio’s notices all contained instructions on how to contest the violation, specifically by filing an appeal with the Board of Directors via a provided website.
9. What was the testimony of Tom Gordon, the Community Manager for Villagio, regarding the association’s policy for contesting a notice? Tom Gordon testified that homeowners are provided with 10 days to contest a notice with Villagio, pursuant to Villagio’s short-term rental policy. When asked if Villagio would have abided by “this statute” (A.R.S. § 33-1242) if Mr. Garcia had responded in twenty-one days, Mr. Gordon replied, “No.”
10. What was the final outcome of both the initial hearing on October 30, 2018, and the rehearing on February 12, 2019? In both the initial hearing and the rehearing, the Administrative Law Judge found that Mr. Garcia failed to establish that Villagio violated A.R.S. § 33-1242. Consequently, Mr. Garcia’s petition was dismissed in both instances, and Villagio was deemed the prevailing party.
——————————————————————————–
Essay Questions
Develop detailed essay-format answers to the following prompts, drawing evidence and examples exclusively from the provided source documents.
1. Analyze the central arguments presented by both Rogelio A. Garcia and the Villagio at Tempe Homeowners Association regarding the application of ARIZ. REV. STAT. § 33-1242. How did the Administrative Law Judge interpret the statute in relation to these arguments in the final decision?
2. Discuss the concept of “burden of proof” and “preponderance of the evidence” as applied in this case. Explain how Mr. Garcia’s failure to meet this burden led to the dismissal of his petition in both the initial hearing and the rehearing.
3. Trace the timeline of events from the first notice sent by Villagio on March 8, 2018, to the final order on March 4, 2019. Explain how Mr. Garcia’s actions, or lack thereof, at key moments influenced the legal obligations of the association and the ultimate outcome of the case.
4. Evaluate Villagio’s argument that A.R.S. § 33-1242 applies only to the “condition” of a property and not its “use.” Although the judge’s decision did not ultimately hinge on this point, discuss the potential implications of this distinction in homeowner association disputes.
5. Explain the two distinct procedural paths available to a unit owner after receiving a violation notice as outlined in this case: the association’s internal appeal process and the statutory process under A.R.S. § 33-1242. Why did the path Mr. Garcia chose fail to trigger the statutory protections he sought?
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Glossary
Definition
Administrative Law Judge (ALJ)
The official who presides over the administrative hearing and rehearing, evaluates evidence, and issues a decision. In this case, Velva Moses-Thompson.
ARIZ. REV. STAT. (A.R.S.)
The abbreviation for Arizona Revised Statutes, which are the codified laws of the state of Arizona that regulate condominiums and planned communities.
Arizona Department of Real Estate (Department)
The state agency that has authority over homeowner association disputes and with which homeowners may petition for a hearing.
Burden of Proof
The obligation of a party in a legal proceeding to prove their allegations. In this case, Mr. Garcia bore the burden of proof.
Covenants, Conditions, and Restrictions (CC&Rs)
The governing documents of the Villagio at Tempe Homeowners Association, which contain the short-term lease provisions Mr. Garcia was alleged to have violated.
Office of Administrative Hearings
The venue where the evidentiary hearing and rehearing for this matter were held.
Petitioner
The party who initiates a legal action by filing a petition. In this case, Rogelio A. Garcia.
Preponderance of the Evidence
The standard of proof required in this matter, defined as “The greater weight of the evidence…that has the most convincing force…sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”
Rehearing
A second hearing on a matter, granted in this case at Mr. Garcia’s request after the initial Administrative Law Judge Decision was issued.
Respondent
The party against whom a petition is filed and who must respond to the allegations. In this case, Villagio at Tempe Homeowners Association.
Blog Post – 19F-H1918009-REL-RHG
He Fought His HOA and Followed Their Rules. Here’s Why He Still Lost.
1.0 Introduction: The Dreaded Letter
For many homeowners, it’s a familiar and unwelcome sight: a crisp envelope from the Homeowners Association (HOA) containing a formal, intimidating violation notice. Your first instinct is to act, to follow the instructions, and to fight back against what feels like an unfair accusation. You read the letter, see a process for an appeal, and dutifully follow it, believing you are protecting your rights. But what if the process outlined in the letter isn’t the one that truly matters under the law?
This isn’t a theoretical warning. It’s the hard lesson learned by a real homeowner in Arizona, Rogelio A. Garcia, who took on his HOA, Villagio at Tempe. He believed the association had violated his rights, and unlike many homeowners, he didn’t ignore the notices—he took action. He filed an appeal with the HOA, just as their letter instructed. Yet, he lost his case, not because he was wrong on the facts, but because he fell into a subtle procedural trap, following the HOA’s internal process while missing a separate, more powerful one defined by state law.
This article breaks down the top three legal takeaways from that court decision. It reveals how taking the wrong action can be just as costly as taking no action at all, offering crucial strategic insights for any homeowner facing a dispute with their association.
2.0 Takeaway 1: Your Rights Often Have an ‘On’ Switch You Must Flip First
Mr. Garcia’s primary complaint was that the HOA failed to provide him with the name of the person who reported his alleged violation—a requirement under Arizona statute A.R.S. § 33-1242. On the surface, this seems like a clear-cut right afforded to homeowners.
However, the court revealed a counter-intuitive legal reality. The HOA’s legal obligation to provide the reporter’s name was not automatic. That right only became active—the obligation was only triggered—if the homeowner first took a specific, formal step: sending a written response to the violation notice via certified mail within 21 calendar days. The record was clear that Mr. Garcia did not send such a response to the March 8, March 22, or April 5 notices. This single procedural failure was fatal to his claim.
The judge’s finding on this point was direct and unambiguous:
“Because Mr. Garcia did not respond in the 21 day period, Villagio was not required to provide Mr. Garcia with the first and last name of the person or persons who observed the violation.”
This illustrates a critical principle: your most important legal rights may exist in state law, but they often lie dormant. To activate them, you must flip the “on” switch by taking the precise action required by statute, which may be entirely different from the process described in the HOA’s notice.
3.0 Takeaway 2: An Internal Process Can Legally Replace—and Distract From—a State-Level One
So why would an engaged homeowner like Mr. Garcia, who went so far as to file an appeal, neglect to send the critical 21-day certified letter? The answer lies in the second key takeaway: the HOA’s violation notice offered its own, separate appeal process with a much shorter deadline, creating a critical and costly distraction.
Mr. Garcia’s second major argument was that Villagio violated the law by not informing him of his right to petition for an administrative hearing with the state real estate department. Again, the law contained a crucial nuance. Under A.R.S. § 33-1242(D), an HOA is only required to notify a homeowner of the state hearing option if it fails to provide its own process for contesting the notice. Villagio’s letters did include a process: the homeowner could “file an appeal with the Board of Directors… within 10 days of receipt of this notice.”
Court records show Mr. Garcia followed this path and “filed an appeal with Villagio.” By doing so, he engaged with the HOA on their terms, likely focusing all his energy on meeting that urgent 10-day deadline. Because Villagio provided this internal process, the judge concluded it had met its legal obligation and was not required to inform Mr. Garcia about the alternative state-level hearing. This created a procedural trap: the HOA satisfied its legal requirement by offering an internal process that simultaneously diverted the homeowner’s attention from the more powerful, but less obvious, 21-day statutory deadline that would have unlocked his other rights.
4.0 Takeaway 3: Conflicting Deadlines Can Create a Legal Minefield
During a rehearing, Mr. Garcia argued that the HOA’s communication style effectively “prevented” him from using his full 21-day statutory response window. The notices demanded compliance within 10 days and were sent every 14 days with escalating fines. He felt the rapid succession of notices created a pressure cooker, making it impossible to properly exercise his rights.
The court flatly rejected this argument, highlighting a harsh legal truth. The judge found no evidence that Villagio had explicitly told Mr. Garcia he could not respond or had physically prevented him from sending a certified letter. The issuance of a second notice with a demanding 10-day timeline did not legally nullify the 21-day window he had to respond to the first. When asked directly if he was prohibited by a court order from sending a response, Mr. Garcia answered, “No.”
This reveals a common tactic, whether intentional or not, in HOA disputes. The violation notices contained two conflicting timelines: a prominent, urgent “10 days to comply” demand and the less obvious, but legally superior, 21-day statutory right to respond. This conflict creates confusion and pressure, causing homeowners to focus on the immediate threat (the 10-day deadline) while missing the most important legal one. The court, however, places the burden squarely on the homeowner to navigate this minefield, as feeling pressured is not a legal defense for failing to meet a statutory deadline.
5.0 Conclusion: Know the Rules Before You Play the Game
The case of Mr. Garcia versus the Villagio at Tempe HOA is a powerful reminder that successfully challenging an HOA is not about being “right,” or even about taking action. It is about taking the correct, procedurally perfect action defined by law.
Mr. Garcia was not passive; he engaged and appealed the violation. His case was lost because he followed the path laid out for him by the HOA, not the one laid out for him by state statute. This crucial distinction—between an association’s internal process and the homeowner’s statutory rights—can mean the difference between victory and defeat. Before you act on any violation notice, you must first understand the precise rules of engagement, which may not be written in the notice itself.
If you received a violation notice today, would you know whether the appeal process in the letter is your only option, or a potential distraction from the legal first step required to truly protect your rights?
Case Participants
Petitioner Side
Rogelio A. Garcia(petitioner) Appeared on behalf of himself
Respondent Side
Nathan Tennyson(HOA attorney) Brown Olcott, PLLC
Tom Gordon(community manager) Villagio / AAMAZ Testified as witness for Villagio
Amanda Shaw(property manager/agent) AAM LLC Listed as agent for Villagio at Tempe Homeowners Association
Neutral Parties
Velva Moses-Thompson(ALJ) Office of Administrative Hearings
Judy Lowe(ADRE Commissioner) Arizona Department of Real Estate
The Administrative Law Judge ruled partially in favor of Petitioner Warren R. Brown, finding that Mogollon Airpark, Inc. violated ARIZ. REV. STAT. section 33-1803(A) by imposing a $25 late payment fee, and ordered the fee rescinded and the $500 filing fee refunded,,,. The ALJ ruled against both Petitioners (Brown and Stevens) regarding the challenge to the $325 assessment increase, dismissing those petitions because they failed to prove the HOA violated A.R.S. § 33-1803(A),,,.
Why this result: Petitioners Warren R. Brown and Brad W. Stevens failed to prove by a preponderance of the evidence that the combined $325 assessment increase violated ARIZ. REV. STAT. section 33-1803(A) because their definition of 'regular assessment' as encompassing all assessments enacted through proper procedures was not supported by statutory construction principles,.
Key Issues & Findings
Challenge to assessment increase exceeding 20% limit (Brown Docket 18F-H1818029-REL-RHG)
Petitioner Brown alleged the combined $325 increase, consisting of a $116 regular increase and a $209 special assessment, violated A.R.S. § 33-1803(A) because 'regular assessment' refers to the creation process, making the total increase subject to the 20% cap,,,,.
Orders: Petition dismissed. Respondent Mogollon Airpark, Inc. deemed the prevailing party in the 029 matter,,,.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
Cited:
4
6
32
33
35
36
73
74
76
77
Challenge to assessment increase exceeding 20% limit (Stevens Docket 18F-H1818054-REL)
Petitioner Stevens alleged the total $325 assessment increase violated A.R.S. § 33-1803(A) and raised accompanying allegations of deceptive accounting and lack of authority to impose special assessments,,.
Orders: Petition dismissed. Respondent deemed the prevailing party in the 054 matter,,,,.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
Cited:
7
20
32
33
35
36
38
61
73
74
76
77
79
94
99
101
Challenge to late payment charges (Brown Docket 18F-H1818045-REL)
Petitioner Brown alleged that the $25 late fee and 18% interest charged by Mogollon violated the statutory limits set forth in A.R.S. § 33-1803(A),,. The ALJ found the $25 late charge violated the statute because the limit applies to all 'assessments',.
Orders: Petitioner Warren R. Brown deemed the prevailing party. Mogollon Airpark Inc. must rescind the $25 late fee and pay Mr. Brown his filing fee of $500.00 within thirty days,.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
5
7
32
34
37
46
47
59
73
75
78
Analytics Highlights
Topics: HOA assessment cap, Late fee violation, Statutory construction, Regular assessment definition, Special assessment, Filing fee refund
Additional Citations:
ARIZ. REV. STAT. section 33-1803(A)
ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
ARIZ. ADMIN. CODE § R2-19-119
McNally v. Sun Lakes Homeowners Ass’n #1, Inc., 241 Ariz. 1, 382 P.3d 1216 (2016 App.)
Deer Valley, v. Houser, 214 Ariz. 293, 296, 152 P.3d 490, 493 (2007)
U.S. Parking Sys v. City of Phoenix, 160 Ariz. 210, 211, 772 P.2d 33, 34 (App. 1989)
Briefing Document: Brown and Stevens vs. Mogollon Airpark, Inc.
Executive Summary
This document synthesizes the findings and conclusions from a consolidated administrative law case involving petitioners Warren R. Brown and Brad W. Stevens against their homeowners’ association (HOA), Mogollon Airpark, Inc. The central dispute concerned a 2018 assessment increase of $325, which represented a 39.4% increase over the previous year, and the imposition of a new $25 late fee.
The petitioners argued that the entire assessment increase violated Arizona Revised Statute § 33-1803(A), which limits annual regular assessment increases to 20%. They contended that the term “regular” describes the procedural enactment of an assessment, making the entire 325increaseasingleregularassessment.Conversely,theHOAassertedthatithadbifurcatedtheincreaseintoacompliant14.1116) regular assessment increase and a separate $209 special assessment, which is not subject to the 20% statutory cap.
The Administrative Law Judge (ALJ) ultimately sided with Mogollon Airpark on the assessment increase, dismissing the petitions of both Mr. Brown and Mr. Stevens. The ALJ’s rationale, based on principles of statutory construction, was that “regular assessment” refers to a type of assessment, distinct from a “special assessment,” and that to rule otherwise would render the word “regular” meaningless in the statute. A subsequent rehearing requested by Mr. Stevens was also denied on the same grounds.
However, the ALJ ruled in favor of Mr. Brown on the matter of the late fee. The decision found that the statutory limit on late fees applies to all “assessments,” not just regular ones, making the HOA’s $25 fee a clear violation. Underlying the legal challenges were substantial allegations by the petitioners of deceptive accounting and financial mismanagement by the HOA to create a “fabricated shortfall,” though the ALJ noted these issues were outside the narrow scope of the administrative hearing and better suited for civil court.
Case Overview and Parties Involved
This matter consolidates three separate petitions filed with the Arizona Department of Real Estate, which were heard by the Office of Administrative Hearings.
• Petitioners:
◦ Warren R. Brown (Docket Nos. 18F-H1818029-REL-RHG & 18F-H1818045-REL)
◦ Brad W. Stevens (Docket No. 18F-H1818054-REL)
• Respondent:
◦ Mogollon Airpark, Inc.
• Venue and Adjudication:
◦ Tribunal: Office of Administrative Hearings, Phoenix, Arizona
◦ Administrative Law Judge: Thomas Shedden
◦ Hearing Date (Consolidated Matters): September 28, 2018
◦ Rehearing Date (Stevens Matter): February 11, 2019
Key Financial Figures
Amount/Rate
Calculation/Note
Previous Year’s Assessment (2017)
The baseline for calculating the increase percentage.
Total 2018 Assessment Increase
The total amount disputed by the petitioners.
Total Increase Percentage
($325 / $825)
“Regular Assessment” Increase
As classified by Mogollon Airpark, Inc. (14.1% increase).
“Special Assessment”
As classified by Mogollon Airpark, Inc.
New Late Fee
Challenged as exceeding statutory limits.
New Interest Rate
For past-due accounts.
Statutory Late Fee Limit
Greater of $15 or 10%
Per ARIZ. REV. STAT. § 33-1803(A).
Statutory Assessment Increase Limit
20% over prior year
Per ARIZ. REV. STAT. § 33-1803(A), applies to regular assessments.
Analysis of Core Legal Disputes
The hearings focused on two primary violations of Arizona statute alleged by the petitioners.
The 2018 Assessment Increase (39.4%)
The crux of the case in dockets 029 and 054 was the interpretation of the term “regular assessment” within ARIZ. REV. STAT. § 33-1803(A).
• Petitioners’ Position (Brown & Stevens):
◦ The total $325 increase, constituting a 39.4% hike, is a clear violation of the 20% statutory cap.
◦ The term “regular assessment” as used in the statute refers to the process by which an assessment is created (i.e., by motion, second, and vote). As the entire $325 was passed via this standard procedure, it constitutes a single regular assessment.
◦ They further argued that Mogollon Airpark, Inc.’s governing documents (Bylaws and CC&Rs) do not provide any explicit authority to impose “special assessments,” meaning any assessment levied must be a regular one.
• Respondent’s Position (Mogollon Airpark, Inc.):
◦ The assessment was properly bifurcated into two distinct parts: a $116 increase to the regular assessment (a 14.1% increase, well within the 20% limit) and a $209 special assessment.
◦ “Regular assessment” and “special assessment” are established terms of art in the HOA industry, denoting different types of assessments, not the process of their creation.
◦ The existence of both terms in other parts of Arizona law, such as § 33-1806, demonstrates the legislature’s intent to treat them as separate categories.
Late Fees and Interest Charges
In docket 045, Mr. Brown challenged the legality of the newly instituted penalties for late payments.
• Petitioner’s Position (Brown):
◦ The statute explicitly limits late fees to “the greater of fifteen dollars or ten percent of the amount of the unpaid assessment.”
◦ The HOA’s imposition of a flat $25 late fee is a direct violation of this provision. An invoice provided as evidence showed Mr. Brown was charged this $25 fee plus $1.57 in interest.
• Respondent’s Position (Mogollon Airpark, Inc.):
◦ The HOA argued that the statutory limitation on late fees applied only to regular assessments, not to special assessments. This argument was explicitly rejected by the ALJ.
Underlying Allegations of Financial Misconduct
While the administrative hearings were limited to the specific statutory violations, the petitions were motivated by deep-seated concerns over the HOA’s financial management. These allegations were not adjudicated but were noted by the ALJ.
• Core Allegation: The petitioners claimed the HOA treasurer and others engaged in “deceptive and nonstandard accounting methods” to manufacture a financial crisis and justify the assessment increase.
• Specific Claims:
◦ Mr. Brown alleged that the accounting was “deliberately misleading” to obscure the fact that the 2016 board left the treasury approximately “$200,000 better off.”
◦ Mr. Stevens submitted a 45-page petition with over 600 pages of exhibits detailing the alleged improprieties, including “keeping two sets of books,” to create a “fabricated shortfall.” He testified that he believed the HOA possessed over $1 million and did not need an increase.
• Judicial Comment: The ALJ noted that these complex financial allegations were not addressed in the hearing and suggested that “the civil courts may be better suited than an administrative tribunal to address the issues they raise.”
Judicial Decisions and Rationale
The ALJ issued separate findings and orders for each docket, culminating in a split decision. The rulings on the assessment increase were further solidified in a subsequent rehearing.
Summary of Outcomes
Docket No.
Petitioner
Core Issue
Ruling
Prevailing Party
18F-H1818029-REL-RHG
Warren R. Brown
Assessment Increase
Petition Dismissed
Mogollon Airpark, Inc.
18F-H1818054-REL
Brad W. Stevens
Assessment Increase
Petition Dismissed
Mogollon Airpark, Inc.
18F-H1818045-REL
Warren R. Brown
$25 Late Fee
Violation Found
Warren R. Brown
Rationale for Initial Decision (October 18, 2018)
• On the Assessment Increase: The ALJ found that the petitioners failed to prove by a preponderance of the evidence that a violation occurred. The ruling rested on statutory interpretation:
◦ The petitioners’ definition of “regular assessment” as a process was rejected because it would render the word “regular” in the statute “trivial or void,” as all assessments are presumed to follow a regular process.
◦ The only “fair and sensible result” that gives meaning to every word in the statute is to interpret “regular” and “special” as distinct types of assessments.
• On the Late Fees: The ALJ found that Mr. Brown successfully proved a violation.
◦ The statutory text on late fees applies to “assessments” generally, without the qualifier “regular.”
◦ Mogollon’s argument required adding the word “regular” where the legislature did not use it, which violates principles of statutory construction.
◦ Order: Mogollon was ordered to rescind the $25 fee assessed against Mr. Brown and reimburse his $500 filing fee.
Rationale for Rehearing Decision (March 1, 2019)
Mr. Stevens’s request for a rehearing on his dismissed petition was granted but ultimately denied again.
• Mr. Stevens’s Rehearing Arguments: He argued the ALJ erred by not applying a definition of “special assessment” from the case Northwest Fire District v. U.S. Home of Arizona and reasserted that an assessment unauthorized by the HOA’s documents must logically be a regular one.
• ALJ’s Rejection:
◦ The reliance on Northwest Fire District was “misplaced” because that case applies to special taxing districts created under a different state title, not private HOAs.
◦ The argument that an unauthorized special assessment becomes a regular one was deemed “nonsensical.” The ALJ noted, “More reasonably, if Mogollon has no authority to issue a special assessment, any such assessment would be void.”
◦ The core statutory interpretation from the initial hearing was affirmed. The petition was dismissed a final time.
Study Guide – 18F-H1818054-REL-RHG
Study Guide: Brown and Stevens v. Mogollon Airpark, Inc.
Short Answer Quiz
Instructions: Answer the following questions in 2-3 sentences each, based on the provided legal documents.
1. Identify the petitioners and the respondent in this consolidated legal matter and describe their relationship.
2. What specific financial changes did Mogollon Airpark, Inc. implement in 2018 that led to the legal dispute?
3. What was the central legal argument presented by petitioners Warren R. Brown and Brad W. Stevens regarding the assessment increase?
4. How did Mogollon Airpark, Inc. justify its total assessment increase of $325 in the face of the legal challenge?
5. Explain the Administrative Law Judge’s primary reason for dismissing the petitions concerning the assessment increase (the 029 and 054 matters).
6. What was the specific subject of the petition in the 045 matter, and what was the final ruling in that case?
7. What was the judge’s legal reasoning for finding Mogollon’s $25 late fee to be in violation of the statute?
8. Why did the hearing not address the petitioners’ underlying allegations of deceptive accounting and financial impropriety?
9. What is the standard of proof required in this matter, and which parties were responsible for meeting it?
10. In the rehearing for the 054 matter, what was Brad Stevens’s argument regarding the definition of “special assessment,” and why did the judge find his reliance on the Northwest Fire District case to be misplaced?
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Quiz Answer Key
1. The petitioners were Warren R. Brown and Brad W. Stevens, who were members of the homeowners’ association (HOA). The respondent was Mogollon Airpark, Inc., the HOA itself. The dispute arose from actions taken by the HOA board that the petitioners, as members, believed to be unlawful.
2. In 2018, Mogollon Airpark, Inc. raised its total annual assessment by $325 over the previous year’s $825. Additionally, the HOA instituted a new late payment fee of $25 and began charging 18% interest on past-due accounts.
3. The petitioners’ central argument was that the total $325 assessment increase, representing a 39.4% hike over the prior year, violated ARIZ. REV. STAT. section 33-1803(A). This statute prohibits an HOA from imposing a “regular assessment” that is more than 20% greater than the previous year’s assessment without member approval.
4. Mogollon Airpark, Inc. argued that the $325 increase was composed of two separate parts: a $116 increase to the “regular assessment” (14.1%) and a $209 “special assessment.” They contended that the 20% statutory limit in section 33-1803(A) applies only to regular assessments, not special assessments, and therefore their actions were lawful.
5. The judge dismissed the petitions based on principles of statutory construction. He concluded that “regular assessment” is a specific type of assessment, distinct from a “special assessment,” and that if “regular” merely referred to the process of passing an assessment (motion, second, vote), the word would be redundant and meaningless in the statute. Since the regular assessment portion of the increase was below the 20% threshold, no violation occurred.
6. The 045 matter, filed by Warren R. Brown, specifically challenged Mogollon’s new $25 late fee and 18% interest charge. The judge ruled in favor of Mr. Brown, deeming him the prevailing party, and ordered Mogollon to rescind the $25 late fee and refund his $500 filing fee.
7. The judge found the $25 late fee violated the statute because the section of ARIZ. REV. STAT. section 33-1803(A) limiting late charges applies to “assessments” generally, not just “regular assessments.” Unlike the clause on assessment increases, the legislature did not use the limiting word “regular,” so applying that limitation would violate principles of statutory construction.
8. The hearing did not address the allegations of deceptive accounting because the petitions filed by Mr. Brown (029) and Mr. Stevens (054) were “single-issue petitions.” This limited the scope of the hearing strictly to the question of whether Mogollon violated the specific statute, section 33-1803(A). The judge noted that civil courts may be a more suitable venue for the financial allegations.
9. The standard of proof required was a “preponderance of the evidence.” The burden of proof was on the petitioners, Messrs. Brown and Stevens, to prove their respective allegations against the respondent, Mogollon Airpark, Inc.
10. Mr. Stevens argued that the definition of “special assessment” from the case Northwest Fire District v. U.S. Home of Arizona should be applied, which it failed to meet. The judge found this reliance misplaced because that case applies to special taxing districts created under ARIZ. REV. STAT. Title 48, and Mogollon Airpark, Inc. is an HOA, not such a taxing district.
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Essay Questions
Instructions: The following questions are designed for a more in-depth, essay-format response. Do not provide answers.
1. Analyze the competing interpretations of the term “regular assessment” as presented by the petitioners and the respondent. Discuss the Administrative Law Judge’s final interpretation and the principles of statutory construction used to arrive at that conclusion.
2. The Administrative Law Judge’s decision distinguishes between the legality of the assessment increase and the legality of the late fee. Explain the legal reasoning behind this split decision, focusing on the specific wording of ARIZ. REV. STAT. section 33-1803(A) and the different statutory construction applied to each clause.
3. Discuss the procedural limitations of the hearings as described in the legal decision, specifically referencing the concept of a “single-issue petition.” How did this limitation affect the scope of the case and prevent the judge from ruling on certain serious allegations made by Brown and Stevens?
4. Based on the “Findings of Fact,” describe the background allegations of financial misconduct made by the petitioners against Mogollon’s treasurer and board. Although not ruled upon, explain how these allegations served as the primary motivation for their legal challenges regarding the assessment and fee increases.
5. Trace the procedural history of the “029 matter,” from its original petition and dismissal to the eventual rehearing and final order. What does this process reveal about the requirements for filing a successful petition with the Office of Administrative Hearings?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An official who presides over administrative hearings, weighs evidence, and makes legal rulings and decisions, in this case, Judge Thomas Shedden.
ARIZ. REV. STAT. section 33-1803(A)
The specific Arizona statute at the heart of the dispute. It limits HOA regular assessment increases to 20% over the prior year and caps late payment charges to the greater of $15 or 10% of the unpaid assessment.
Assessment
A fee or charge levied by a homeowners’ association on its members to cover operating expenses, reserve funds, and other costs.
Bylaws
A set of rules adopted by an organization, like an HOA, to govern its internal management and operations. Part of the governing documents.
Covenants, Conditions & Restrictions. These are legal obligations recorded in the deed of a property, governing its use and maintenance. Part of the governing documents.
Consolidated Matter
A legal procedure where multiple separate cases or petitions involving common questions of law or fact are combined into a single hearing to promote efficiency.
Docket Number
A unique number assigned by a court or administrative office to identify a specific case. The matters in this case were identified as 029, 045, and 054.
Governing Documents
The collection of legal documents, including CC&Rs and Bylaws, that establish the rules and authority of a homeowners’ association.
Petitioner
The party who files a petition initiating a legal action in an administrative or court proceeding. In this case, Warren R. Brown and Brad W. Stevens.
Preponderance of the Evidence
The standard of proof in this case. It means the greater weight of the evidence shows that a fact is more likely than not to be true.
Regular Assessment
As interpreted by the ALJ, a specific type of recurring annual assessment for an HOA’s general operating budget, subject to the 20% increase limit in section 33-1803(A).
Respondent
The party against whom a petition is filed. In this case, Mogollon Airpark, Inc.
Single-Issue Petition
A petition that limits the scope of the administrative hearing to a single, specific legal question or alleged violation, as was the case for the 029 and 054 matters.
Special Assessment
As interpreted by the ALJ, a one-time or non-recurring assessment levied for a specific purpose (e.g., replenishing a reserve fund). The ALJ found it is not subject to the 20% annual increase cap that applies to regular assessments.
Statutory Construction
The process and principles used by judges to interpret and apply legislation. The judge used these principles to determine the meaning of “regular” and “assessment” in the statute.
Blog Post – 18F-H1818054-REL-RHG
How One Word Let an HOA Raise Dues by 40%—And 4 Surprising Lessons for Every Homeowner
Imagine opening your annual bill from your Homeowner’s Association (HOA) and discovering your dues have skyrocketed by nearly 40% overnight. This isn’t a hypothetical scenario. It’s precisely what happened to homeowners in the Mogollon Airpark community in Arizona when their HOA board raised the annual assessment by $325, from $825 to $1,150—a staggering 39.4% increase.
But the homeowners weren’t just angry about the amount; they alleged the increase was justified by a “fabricated shortfall” created through “deceptive and nonstandard accounting methods.” At first glance, the hike also seemed legally impossible. Arizona state law, specifically ARIZ. REV. STAT. section 33-1803(A), clearly states that an HOA cannot impose a regular assessment that is more than 20% greater than the previous year’s. So how did the Mogollon Airpark board legally circumvent this cap? The answer, found in the fine print of an administrative law judge’s decision, reveals critical lessons for every homeowner about the power of language, legal strategy, and reading the fine print.
1. The Power of a Name: The “Special Assessment” Loophole
The HOA’s strategy was deceptively simple. Instead of raising the annual assessment by the full $325, the Mogollon Airpark board split the increase into two distinct parts. First, it raised the “regular assessment” by $116. This amounted to a 14.1% increase over the previous year’s $825, keeping it well within the 20% legal limit. The remaining $209 was then levied as a separate fee, which the board classified as a “special assessment.”
When homeowners challenged this, the Administrative Law Judge sided with the HOA. The judge’s ruling was based on a strict reading of the statute: the 20% cap applies only to “regular assessments,” not “special assessments.” By simply calling a portion of the increase a “special assessment,” the HOA legally circumvented the very law designed to protect homeowners from massive, sudden fee hikes.
Lesson 1 for Homeowners: The name of a fee is everything. State-mandated caps on “regular” assessments offer zero protection if your HOA can simply reclassify an increase as a “special” assessment.
2. Every Word Is a Battlefield: “Regular” Doesn’t Mean What You Think
The homeowners, petitioners Warren Brown and Brad Stevens, built their case on a common-sense interpretation of the law. They argued that the term “regular assessment” in the statute referred to the process by which an assessment is created—that is, any fee approved through a regular motion, second, and vote by the board. By this logic, the entire $325 increase was a single “regular assessment” and therefore violated the 20% cap. They also argued that the HOA had no authority under its own governing documents to impose a special assessment in the first place.
The judge, however, rejected this definition. The judge reasoned that lawmakers don’t add words to statutes for no reason. If “regular” simply meant “voted on normally,” the word would be redundant, as all assessments are assumed to be passed this way. To give the word meaning, it must refer to a specific type of assessment. To support this interpretation, the judge pointed to another Arizona statute, 33-1806, which explicitly uses the distinct terms “regular assessments” and “special assessment[s].” This proved that the state legislature intended for them to be entirely different categories of fees, cementing the HOA’s victory on the main issue.
Lesson 2 for Homeowners: Every word in a statute has a purpose. Courts assume lawmakers don’t use words accidentally, and a layperson’s “common-sense” definition of a term can be easily defeated by established principles of legal interpretation.
3. A Small Victory on a Technicality: Why You Should Still Read the Fine Print
While the homeowners lost the battle over the 39.4% dues increase, one petitioner, Mr. Brown, secured a small but significant win on a separate issue: late fees. The Mogollon Airpark board had instituted a new $25 late fee, which Mr. Brown challenged.
Arizona law limits late fees to “the greater of fifteen dollars or ten percent of the amount of the unpaid assessment.” The HOA argued that this limit, like the 20% cap, only applied to regular assessments. This time, the judge disagreed. The judge’s logic was a textbook example of statutory interpretation: when lawmakers include a specific word in one part of a law but omit it from another, courts assume the omission was deliberate. In the section of the law governing late fees, the limit applies to “assessments” in general; the word “regular” is conspicuously absent.
Because the HOA’s $25 fee exceeded the legal limit, the judge ruled in favor of Mr. Brown. The court ordered the HOA to rescind the illegal late fee and, importantly, to reimburse Mr. Brown for his $500 filing fee.
Lesson 3 for Homeowners: The fine print cuts both ways. While one word can create a loophole for an HOA, the absence of that same word elsewhere can be your most powerful weapon.
4. Fighting the Right Battle in the Right Place: The Allegations a Judge Couldn’t Hear
Underlying the dispute over the 20% cap were much more serious allegations. The homeowners’ petitions claimed the HOA board used “deceptive and nonstandard accounting methods,” including keeping “two sets of books,” to create a “fabricated shortfall” and justify the massive fee increase.
Yet, none of these explosive claims were ever addressed during the hearing. The reason was a crucial matter of legal procedure. The homeowners had filed what are known as “single-issue petitions,” which focused narrowly and exclusively on the violation of the 20% assessment cap in statute 33-1803(A). This strategic choice legally prevented the judge from considering the broader allegations of financial mismanagement, regardless of their merit.
In a pointed footnote, the judge highlighted the procedural constraints and suggested the homeowners had chosen the wrong legal venue for their most serious claims:
Considering the nature of Messrs. Brown and Stevens’s allegations, the civil courts may be better suited than an administrative tribunal to address the issues they raise.
Lesson 4 for Homeowners: Your legal strategy is as important as your evidence. Choosing the right claims to file and the right venue to file them in can determine whether a judge is even allowed to hear your most compelling arguments.
Conclusion: Your Most Powerful Tool
The case of Mogollon Airpark is a powerful illustration of how legal battles are won and lost not on broad principles of fairness, but on the precise definitions of individual words. The presence of the word “regular” in one clause of the law cost the homeowners their central fight, allowing the HOA to circumvent the 20% cap. In a stunning contrast, the absence of that very same word in another clause handed them a clear victory on late fees.
This case is a stark reminder of the power hidden in legal definitions and fine print. It leaves every homeowner with a critical question: Do you really know what your governing documents—and the state laws that bind them—truly allow?
Case Participants
Petitioner Side
Warren R. Brown(petitioner) Appeared pro se
Brad W. Stevens(petitioner) Appeared pro se; presented testimony/evidence
Respondent Side
Gregory A. Stein(respondent attorney) CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP
Mark K. Sahl(respondent attorney) CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP Spelled Mark K. Saul in some transmissions
Neutral Parties
Thomas Shedden(ALJ) OAH
Judy Lowe(Commissioner) Arizona Department of Real Estate
The Administrative Law Judge dismissed the petition, ruling that the Petitioner failed to meet the burden of proof that the HOA violated ARS § 33-1803(A). The increase in the regular assessment (14.1%) was below the statutory 20% limit, and the overall increase included a special assessment which the statute does not cover.
Why this result: The Petitioner's definition of 'regular assessment' was rejected as not supported by statutory construction principles, and the issue was limited to the definition and application of ARS § 33-1803(A).
Key Issues & Findings
Whether the HOA violated ARS § 33-1803(A) by increasing the regular assessment more than 20%.
Petitioner alleged that the HOA's total assessment increase of $325 (which was 39.4% over the previous assessment of $825) constituted an unlawful increase of the 'regular assessment' under ARS § 33-1803(A). The HOA argued the increase to the 'regular assessment' was only 14.1% ($116 increase), and the remaining $209 was a separate, one-time assessment.
Orders: Petitioner Brad W. Stevens’s petition is dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
ARIZ. REV. STAT. section 33-1803(A)
ARIZ. ADMIN. CODE § R2-19-119
ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
ARIZ. REV. STAT. section 33-1806
Northwest Fire District v. U.S. Home of Arizona, 215 Ariz. 492 (2007)
Gutierrez v. Industrial Commission of Arizona
State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968)
Deer Valley, v. Houser, 214 Ariz. 293, 296, 152 P.3d 490, 493 (2007)
McNally v. Sun Lakes Homeowners Ass’n #1, Inc., 241 Ariz. 1, 382 P.3d 1216 (2016 App.)
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Analytics Highlights
Topics: HOA Assessment, Statutory Interpretation, Regular Assessment, Special Assessment, ARS 33-1803(A)
Additional Citations:
ARIZ. REV. STAT. section 33-1803(A)
ARIZ. ADMIN. CODE § R2-19-119
ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
ARIZ. REV. STAT. section 33-1806
Northwest Fire District v. U.S. Home of Arizona, 215 Ariz. 492 (2007)
Gutierrez v. Industrial Commission of Arizona
State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968)
Deer Valley, v. Houser, 214 Ariz. 293, 296, 152 P.3d 490, 493 (2007)
McNally v. Sun Lakes Homeowners Ass’n #1, Inc., 241 Ariz. 1, 382 P.3d 1216 (2016 App.)
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Audio Overview
Decision Documents
18F-H1818054-REL-RHG Decision – 692388.pdf
Uploaded 2025-10-08T07:06:21 (102.8 KB)
Briefing Doc – 18F-H1818054-REL-RHG
Briefing Document: Stevens v. Mogollon Airpark, Inc. (Case No. 18F-H1818054-REL-RHG)
Executive Summary
This document summarizes the Administrative Law Judge (ALJ) Decision in the matter of Brad W. Stevens versus Mogollon Airpark, Inc., a case centered on the legality of a homeowner association (HOA) assessment increase. The ALJ, Thomas Shedden, ultimately dismissed the petition filed by Mr. Stevens, finding he failed to prove by a preponderance of the evidence that Mogollon Airpark violated Arizona state law.
The core of the dispute was a $325 increase to the annual assessment for 2018, which represented a 39.4% increase over the previous year’s $825 fee. The petitioner alleged this violated ARIZ. REV. STAT. § 33-1803(A), which prohibits HOAs from increasing a “regular assessment” by more than 20% without member approval. The respondent, Mogollon Airpark, argued the increase was composed of two distinct parts: a 14.1% ($116) increase to the regular assessment to cover a budget shortfall, and a separate $209 one-time “special assessment” to replenish a reserve fund.
The ALJ’s decision rested on a critical interpretation of statutory language, concluding that “regular assessments” and “special assessments” are legally distinct categories. The judge rejected the petitioner’s argument that “regular” refers to the process of an assessment rather than its type, deeming this interpretation contrary to principles of statutory construction and nonsensical. Furthermore, the judge found the petitioner’s legal citations to be inapplicable and confirmed that the scope of the hearing was limited strictly to the alleged violation of the 20% rule, not the HOA’s general authority to levy special assessments.
Case Background and Procedural History
• Parties:
◦ Petitioner: Brad W. Stevens
◦ Respondent: Mogollon Airpark, Inc. (HOA)
• Adjudicating Body: Arizona Office of Administrative Hearings, on behalf of the Arizona Department of Real Estate.
• Presiding Judge: Administrative Law Judge Thomas Shedden.
• Timeline:
◦ June 7, 2018: Mr. Stevens files a single-issue petition with the Department of Real Estate.
◦ September 28, 2018: An initial hearing is conducted on the matter, consolidated with two others.
◦ January 2, 2019: The Department of Real Estate issues a Notice of Rehearing.
◦ February 11, 2019: The rehearing is conducted.
◦ March 1, 2019: The Administrative Law Judge Decision is issued, dismissing the petition.
The matter came before the Office of Administrative Hearings for a rehearing after Mr. Stevens alleged errors of law and an abuse of discretion in the original hearing’s decision.
The Core Dispute: The 2018 Assessment Increase
The central facts of the case revolve around a decision made at a Mogollon Airpark board meeting in November 2017. To address a shortage in its operating budget and to replenish approximately $53,000 borrowed from its reserve fund, the Board approved a two-part increase to its annual fees.
Assessment Component
Previous Year (2017)
2018 Increase
Justification
Percentage Increase
Regular Assessment
+ $116
Cover operating budget shortfall
Special Assessment
+ $209
Replenish reserve fund
Total Assessment
+ $325
Total for 2018
This total 39.4% increase formed the basis of Mr. Stevens’s legal challenge under A.R.S. § 33-1803(A), which limits increases to “regular assessments” to 20% over the preceding fiscal year.
Analysis of Arguments
Petitioner’s Position (Brad W. Stevens)
Mr. Stevens’s case was built on the assertion that the entire $325 increase constituted a single “regular assessment” and was therefore illegal. His key arguments were:
• Definition of “Regular”: He contended that “regular” in the statute refers to the process by which an assessment is created—i.e., one that is “according to rule.” He argued that it does not denote a type of assessment (e.g., recurring vs. one-time).
• Lack of Authority for Special Assessments: Mr. Stevens argued that Mogollon Airpark has no authority to issue special assessments. Therefore, any assessment it imposes, regardless of its label, must legally be considered a “regular assessment.”
• Legal Precedent: He cited Northwest Fire District v. U.S. Home of Arizona to define a “special assessment,” arguing that the $209 charge did not qualify because he received no “particularized benefit” as required by that case. He also presented definitions from Black’s Law Dictionary.
Respondent’s Position (Mogollon Airpark, Inc.)
Mogollon Airpark’s defense was straightforward and relied on the distinction between the two components of the assessment increase:
• Statutory Limitation: The respondent argued that A.R.S. § 33-1803(A) applies only to “regular assessments.”
• Compliance with Statute: The increase to the regular assessment was $116, a 14.1% rise over the previous year’s $825 fee. This amount is well within the 20% statutory limit.
• Distinct Nature of Assessments: The $209 charge was a separate, one-time “special assessment” intended for a specific purpose (replenishing the reserve fund) and is not subject to the 20% limitation governing regular assessments.
Administrative Law Judge’s Findings and Conclusions
The ALJ systematically dismantled the petitioner’s arguments, finding they were not supported by evidence or principles of statutory construction.
Rejection of Petitioner’s Statutory Interpretation
• The ALJ found that Mr. Stevens’s definition of “regular” as referring to the assessment process was an insupportable interpretation. If all validly passed assessments were “regular,” the word “regular” in the statute would be “void, inert, redundant, or trivial.”
• To support this conclusion, the decision points to A.R.S. § 33-1806, where the legislature explicitly references “regular assessments” and “special assessment[s],” demonstrating a clear intent to treat them as different types of assessments.
• The judge characterized the petitioner’s logic as leading to a “nonsensical result.” Under Mr. Stevens’s reasoning, an unauthorized special assessment would become a valid regular assessment, a position deemed not to be a “sensible interpretation of the statute.” A more reasonable conclusion, the judge noted, would be that an unauthorized assessment is simply void.
Misapplication of Legal Precedent
• The petitioner’s reliance on Northwest Fire District was deemed “misplaced.” The judge clarified that this case applies to special taxing districts created under ARIZ. REV. STAT. Title 48, a legal framework that does not govern an HOA like Mogollon Airpark.
Scope of the Hearing and Burden of Proof
• The ALJ emphasized that the hearing was limited by the petitioner’s “single-issue petition.” The only question properly before the tribunal was whether A.R.S. § 33-1803(A) had been violated.
• Consequently, the broader question of whether Mogollon Airpark’s bylaws grant it the authority to impose special assessments was “not at issue.” This rendered the various definitions of “special assessment” offered by Mr. Stevens as having “no substantial probative value” to the case at hand.
• The final legal conclusion was that Mr. Stevens, who bore the burden of proof, failed to show by a “preponderance of the evidence” that Mogollon Airpark violated the statute.
Final Order and Disposition
Based on the findings and conclusions, the Administrative Law Judge ordered the following:
• Order: The petition of Brad W. Stevens is dismissed.
• Prevailing Party: Mogollon Airpark, Inc. is deemed the prevailing party.
• Binding Nature: The decision, issued as a result of a rehearing, is binding on the parties.
• Appeal Process: Any appeal must be filed for judicial review with the superior court within thirty-five days from the date the order was served.
The Petitioner's claim that the Respondent HOA violated A.R.S. § 33-1803(E) was dismissed, as the notice issued was determined to be a Notice of Non-Compliance (courtesy letter) and not a Notice of Violation required to carry the specific disclosure.
Why this result: The Petitioner failed to meet the burden of proof to show that the Respondent violated A.R.S. § 33-1803(E).
Key Issues & Findings
Whether the HOA violated A.R.S. § 33-1803(E) by failing to include notice of the option to petition for an administrative hearing in a Notice of Non-Compliance.
Petitioner alleged that the Respondent's Notice of Non-Compliance regarding dead vegetation was actually a Notice of Violation and lacked the statutory disclosure required by A.R.S. § 33-1803(E). The ALJ found the document was a courtesy letter and not a Notice of Violation, and even if it were, the statute did not require the disclosure in this context because the Petitioner filed the petition before Respondent took enforcement action or completed the statutory response exchange.
Orders: Petitioner Nathan Brown's petition is dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
ARIZ. REV. STAT. section 33-1803(E)
ARIZ. REV. STAT. section 32-2199.01
ARIZ. REV. STAT. section 33-1803(C)
ARIZ. REV. STAT. section 33-1803(D)
ARIZ. ADMIN. CODE § R2-19-119
ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
Analytics Highlights
Topics: statutory interpretation, violation notice, non-compliance, courtesy letter, right to petition
Additional Citations:
33-1803(E)
32-2199.01
33-1803(C)
33-1803(D)
R2-19-119
Video Overview
Audio Overview
Decision Documents
19F-H1918029-REL Decision – 686796.pdf
Uploaded 2026-01-23T17:27:46 (88.4 KB)
Briefing Doc – 19F-H1918029-REL
Brown v. Val Vista Lakes Community Association: Case Briefing
Executive Summary
This document provides a detailed analysis of the Administrative Law Judge (ALJ) Decision in case No. 19F-H1918029-REL, wherein Petitioner Nathan Brown’s petition against the Val Vista Lakes Community Association was dismissed. The central issue was whether an initial “Notice of Non-Compliance” sent by the Association constituted a formal “Notice of Violation” under Arizona Revised Statutes (A.R.S.) section 33-1803(E), thereby requiring immediate disclosure of the member’s right to an administrative hearing.
The ALJ ruled decisively in favor of the Respondent Association. The decision rested on two primary conclusions: First, a reasonable reading of the document in question showed it to be a preliminary “courtesy letter” and not a formal Notice of Violation, as it explicitly warned that a Notice of Violation would be issued later if the issue was not remedied. Second, the ALJ determined that even if the document were considered a Notice of Violation, a plain reading of the statute does not require the disclosure of hearing rights to be included in the initial notice itself. The statute allows for this information to be provided at a later stage in the process, specifically after the member has submitted a formal response. The Petitioner’s failure to follow the statutory response procedure was a key factor in the ruling that the Association had not yet been required to provide the disclosure. Ultimately, the Petitioner failed to meet the burden of proof, and his petition was dismissed.
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Case Overview
Case Number
19F-H1918029-REL
Parties
Petitioner: Nathan Brown Respondent: Val Vista Lakes Community Association
Adjudicator
Administrative Law Judge Thomas Shedden
Office of Administrative Hearings, Phoenix, Arizona
Hearing Date
January 16, 2019
Decision Date
February 4, 2019
Final Outcome
Petition Dismissed; Respondent deemed the prevailing party.
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Background and Timeline of Events
• October 18, 2018: The Val Vista Lakes Community Association mailed a “Notice of Non-Compliance” to Nathan Brown regarding dead vegetation in his yard. The notice requested that the situation be remedied by November 1, 2018, and warned that failure to do so would result in the issuance of a “Notice of Violation that may involve fines.”
• October 24, 2018 (approx.): Mr. Brown filed a petition with the Arizona Department of Real Estate, initiating the legal matter.
• November 11, 2018: The Association issued a formal “Notice of Violation” to Mr. Brown concerning the same issue raised in the initial notice.
• November 27, 2018: The Arizona Department of Real Estate issued a Notice of Hearing.
• January 16, 2019: An administrative hearing was held, with Mr. Brown representing himself and Clint Goodman, Esq. representing the Association. Testimony was heard from Mr. Brown and Simone McGinnis, the Association’s general manager.
• February 4, 2019: ALJ Thomas Shedden issued a decision dismissing Mr. Brown’s petition.
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Core Legal Dispute and Arguments
The dispute centered on the interpretation and application of A.R.S. § 33-1803, which governs the process for notifying homeowners of violations of community documents.
Petitioner’s Position (Nathan Brown)
• Central Claim: The “Notice of Non-Compliance” received on October 18, 2018, was functionally and legally a “Notice of Violation.”
• Alleged Violation: The notice violated A.R.S. § 33-1803(E) because it failed to include “written notice of the member’s option to petition for an administrative hearing on the matter in the state real estate department.”
Respondent’s Position (Val Vista Lakes Community Association)
• Central Claim: The “Notice of Non-Compliance” was not a formal “Notice of Violation” but rather a “courtesy letter,” which is a common industry practice permitted by the Association’s governing documents.
• Defense: Because the initial letter was not a statutory Notice of Violation, the requirements of A.R.S. § 33-1803 were not applicable to that specific communication.
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Administrative Law Judge’s Analysis and Decision
The ALJ concluded that the Petitioner, Mr. Brown, bore the burden of proof by a preponderance of the evidence and failed to meet that standard. The decision was based on a series of factual findings and legal conclusions drawn from a “fair and sensible” interpretation of the statute.
Key Findings of Fact
• The Association mailed Mr. Brown a Notice of Non-Compliance on October 18, 2018.
• This notice informed Mr. Brown of a CC&R violation (dead vegetation) and stated that a failure to remedy the issue would result in a subsequent “Notice of Violation” with potential fines.
• Mr. Brown did not send a written response to the Association regarding the Notice of Non-Compliance, a step outlined in A.R.S. § 33-1803(C).
• Mr. Brown was later issued a formal Notice of Violation on November 11, 2018.
Conclusions of Law (Legal Rationale)
The ALJ’s decision to dismiss the petition was founded on three distinct legal interpretations:
1. Distinction Between Notices: The judge ruled that the initial communication was not a statutory Notice of Violation.
◦ The ruling states, “a reasonable reading of the Notice of Non-Compliance shows that it is not a Notice of Violation, because it informs Mr. Brown that a Notice of Violation would be issued if he did not appropriately address the ‘situation.'”
◦ This established the letter as a preliminary courtesy notice, distinct from the formal enforcement action that triggers statutory requirements.
2. Statutory Interpretation of A.R.S. § 33-1803: The judge concluded that even if the initial notice was a Notice of Violation, the Association still did not violate the statute.
◦ The decision notes, “a plain reading of ARIZ. REV. STAT. section 33-1803 shows that a Notice of Violation is not required to include notice of the right to petition the Department of Real Estate because subsections D and E both show that any required notice can be given at other times.”
◦ The statute outlines a process where the member can respond via certified mail, and the Association’s duty to provide information about contesting the notice (including the right to a hearing) arises from that exchange.
3. Petitioner’s Procedural Failure: The judge found that the Association’s obligations under the statute were never triggered because Mr. Brown bypassed the prescribed process.
◦ The decision highlights that Mr. Brown did not file a written response with the Association but instead filed his petition with the Department just a few days after receiving the initial notice.
◦ The ruling concludes, “a sensible reading of the statute shows that the Respondent was not required to provide Mr. Brown with notice of a right to petition the Department at any time pertinent to this matter.”
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Final Order and Implications
• Order: The ALJ ordered that “Petitioner Nathan Brown’s petition is dismissed.”
• Prevailing Party: The Respondent, Val Vista Lakes Community Association, was deemed the prevailing party in the matter.
• Further Action: The decision is binding unless a party files for a rehearing with the Commissioner of the Department of Real Estate within 30 days of the service of the order, as stipulated by A.R.S. §§ 32-2199.02(B), 32-2199.04, and 41-1092.09.
Study Guide – 19F-H1918029-REL
Study Guide: Brown v. Val Vista Lakes Community Association (No. 19F-H1918029-REL)
Short Answer Quiz
Instructions: Answer the following questions in 2-3 complete sentences, drawing all information from the provided case decision.
1. Who were the primary parties involved in case No. 19F-H1918029-REL, and what were their roles?
2. What specific statute did the Petitioner, Nathan Brown, allege that the Respondent violated?
3. What was the initial issue that prompted the Respondent to contact Mr. Brown on October 18, 2018?
4. What was Nathan Brown’s central legal argument concerning the “Notice of Non-Compliance”?
5. How did the Val Vista Lakes Community Association characterize the “Notice of Non-Compliance,” and why was this distinction critical to its defense?
6. According to the Findings of Fact, what procedural step did Mr. Brown fail to take after receiving the initial notice from the association?
7. What is the standard of proof required in this matter, and which party was responsible for meeting it?
8. What were the Administrative Law Judge’s two primary legal conclusions that led to the dismissal of the petition?
9. What was the final Order issued by the Administrative Law Judge on February 4, 2019?
10. What recourse was available to the parties following the judge’s Order, and what was the specified time limit for that action?
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Answer Key
1. The primary parties were Nathan Brown, who served as the Petitioner, and the Val Vista Lakes Community Association, which was the Respondent. Mr. Brown brought the complaint against the association, which was defending its actions.
2. Nathan Brown alleged that the Respondent violated ARIZ. REV. STAT. section 33-1803(E). This section concerns an association’s obligation to provide a member with written notice of their option to petition for an administrative hearing.
3. The Respondent contacted Mr. Brown regarding dead vegetation in his yard, which was considered a violation of the community’s CC&Rs. The “Notice of Non-Compliance” requested that he remedy the situation by November 1, 2018.
4. Mr. Brown’s central argument was that the “Notice of Non-Compliance” was, in fact, a “Notice of Violation.” Therefore, he contended it should have included written notice of his option to petition for an administrative hearing with the state real estate department, as required by statute.
5. The Association characterized the notice as a “courtesy letter,” which is a common practice for providing an initial warning before formal action. This distinction was critical because the Association argued that as a mere courtesy letter and not a formal “Notice of Violation,” it was not subject to the statutory disclosure requirements of ARIZ. REV. STAT. section 33-1803.
6. Mr. Brown did not send a written response to the Respondent via certified mail within 21 calendar days of the notice. This response is an option provided to members under ARIZ. REV. STAT. section 33-1803(C).
7. The standard of proof was a “preponderance of the evidence.” The burden of proof was on the Petitioner, Nathan Brown, to show that the Respondent had violated the statute.
8. First, the judge concluded that a reasonable reading of the document shows it was not a “Notice of Violation” because it explicitly threatened that one would be issued later. Second, the judge concluded that even if it were a “Notice of Violation,” the statute does not require the hearing disclosure to be in the initial notice, and since Mr. Brown did not follow the response procedure, the Respondent’s obligation to provide that disclosure had not yet been triggered.
9. The final Order was that Petitioner Nathan Brown’s petition be dismissed. The judge also deemed the Respondent to be the prevailing party in the matter.
10. A party could file a request for a rehearing with the Commissioner of the Department of Real Estate. Pursuant to ARIZ. REV. STAT. section 41-1092.09, this request had to be filed within 30 days of the service of the Order.
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Essay Questions
Instructions: Consider the following questions. Formulate comprehensive, evidence-based answers using only the information and legal reasoning presented in the case decision.
1. Analyze the distinction between a “Notice of Non-Compliance” (or “courtesy letter”) and a “Notice of Violation” as presented in this case. Discuss why this distinction was the central point of contention and how the Administrative Law Judge’s interpretation of the document’s plain language resolved the issue.
2. Explain the legal standard of “preponderance of the evidence” as defined in the decision. Discuss how Nathan Brown’s failure to meet this standard, as the party with the burden of proof, was fundamental to the dismissal of his petition.
3. Examine the Administrative Law Judge’s interpretation of the procedural requirements outlined in ARIZ. REV. STAT. section 33-1803(C), (D), and (E). How does the judge’s “sensible reading” of the statute’s timeline and reciprocal obligations undermine the Petitioner’s claim, even setting aside the debate over the notice’s title?
4. Describe the complete procedural timeline of this case, from the initial notice sent by the association to the final order from the Administrative Law Judge. Identify the key dates and actions taken by each party and by the Office of Administrative Hearings.
5. Discuss the role of statutory interpretation in this legal decision. How did the judge apply established legal principles, such as aiming for a “fair and sensible result” and avoiding “absurd and unreasonable construction,” to support the final ruling against the Petitioner?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The official, in this case Thomas Shedden, who presides over administrative hearings and makes legal decisions.
ARIZ. REV. STAT.
Abbreviation for Arizona Revised Statutes, which are the codified laws of the state of Arizona. The specific statute at the center of this case is section 33-1803.
Burden of Proof
The obligation of a party in a legal case to prove their allegations. In this matter, the burden of proof was on the Petitioner, Nathan Brown.
An acronym for Covenants, Conditions, and Restrictions. The decision implies these are the governing community documents that Mr. Brown was accused of violating due to dead vegetation.
Courtesy Letter
A term used by the Respondent to describe the “Notice of Non-Compliance.” It is characterized as a common industry practice to inform a resident of an issue before issuing a formal Notice of Violation.
Notice of Non-Compliance
The specific document dated October 18, 2018, sent to Mr. Brown. It informed him of dead vegetation, requested a remedy, and warned that a “Notice of Violation” could follow.
Notice of Violation
A formal notification that a violation has occurred. The decision establishes this as a distinct and more serious step than a “Notice of Non-Compliance,” and one was issued to Mr. Brown on November 11, 2018.
Petitioner
The party who files a petition initiating a legal action. In this case, Nathan Brown was the Petitioner.
Preponderance of the Evidence
The standard of proof required in this hearing. It is defined as “The greater weight of the evidence… sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”
Prevailing Party
The party who wins the legal case. The Administrative Law Judge deemed the Respondent to be the prevailing party.
Rehearing
A legal process to have a case heard again. The parties were notified of their right to request a rehearing with the Commissioner of the Department of Real Estate within 30 days.
Respondent
The party against whom a petition is filed. In this case, the Val Vista Lakes Community Association was the Respondent.
Blog Post – 19F-H1918029-REL
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19F-H1918029-REL
1 source
This source is the Administrative Law Judge Decision for a case titled Nathan Brown vs. Val Vista Lakes Community Association, heard by the Arizona Office of Administrative Hearings. The dispute centers on whether a Notice of Non-Compliance sent to Mr. Brown regarding dead vegetation in his yard constitutes a Notice of Violation under ARIZ. REV. STAT. section 33-1803(E). Mr. Brown argued that the Association violated this statute by failing to include written notice of his option to petition for an administrative hearing in the initial notice. However, the Administrative Law Judge found that the initial document was merely a courtesy letter and not a formal Notice of Violation, and further concluded that the statute does not require the disclosure of the right to petition the Department of Real Estate within the initial violation notice. Ultimately, the judge determined that the Association was not required to provide Mr. Brown with the notice of his right to petition at any relevant time and dismissed Mr. Brown’s petition.
Case Participants
Petitioner Side
Nathan Brown(petitioner) Appeared on his own behalf
Respondent Side
Clint Goodman(HOA attorney) Goodman Law Group Appeared for the Respondent
Simone McGinnis(general manager) Val Vista Lakes Community Association Presented testimony
Ashley N. Moscarello(HOA attorney) Goodman Law Group Recipient of transmission
Clint Brown(HOA attorney) Goodman Law Group Recipient of transmission (listed separately from Clint Goodman)
Neutral Parties
Thomas Shedden(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
