The Administrative Law Judge denied the petition, finding Petitioner failed to prove the Association violated ARIZ. REV. STAT. § 33-1242 regarding due process requirements for violation enforcement, as the Petitioner did not follow the required certified mail procedure to trigger those rights.
Why this result: Petitioner failed to prove by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1242. Petitioner did not follow the statutory requirement of sending a response via certified mail (ARIZ. REV. STAT. § 33-1242(B)).
Key Issues & Findings
Alleged failure to follow due process concerning violation enforcement
Petitioner alleged the Association failed to follow due process when enforcing community documents regarding damage to a semi-common element (carport) before her purchase, leading to a violation notice and subsequent enforcement.
Orders: Petition denied. Respondent shall not reimburse Petitioner's filing fee as required by ARIZ. REV. STAT. § 32-2199.02(A).
Can the Administrative Law Judge decide if I am actually responsible for the damage cited in a violation?
Short Answer
No. The ALJ's jurisdiction is limited to determining if the HOA followed the correct statutory process (due process), not determining the underlying facts of responsibility or 'guilt' regarding the damage.
Detailed Answer
The Tribunal does not have the authority to decide the merits of the violation itself (e.g., who caused the damage). Its role is strictly to determine if the Association violated the specific statutes governing the enforcement process (such as notice and hearing requirements).
Alj Quote
The record is clear that Petitioner was under the erroneous belief that the Tribunal had jurisdiction to determine who, if anyone, was responsible for causing the damage to Unit 16’s carport and was therefore liable for the repairs required. In all actuality, the crux of the matter for hearing is whether Respondent violated ARIZ. REV. STAT. § 33-1242.
Legal Basis
ARIZ. REV. STAT. § 33-1242
Topic Tags
jurisdiction
scope of hearing
violation responsibility
Question
Is it required to send my violation dispute response by certified mail?
Short Answer
Yes. Failing to send a response by certified mail may fail to 'trigger' the specific statutory due process protections afforded by state law.
Detailed Answer
The statute explicitly states that a unit owner 'may' provide a written response by certified mail within 21 days. The decision clarifies that failing to follow this specific requirement (e.g., sending an email instead) means the owner has not met the statutory requirements necessary to trigger protected due process rights under that specific statute.
Alj Quote
The record reflects that Petitioner did not follow the statutory requirements of ARIZ. REV. STAT. § 33-1242 necessary to 'trigger' any protected due process rights.
Legal Basis
ARIZ. REV. STAT. § 33-1242(B)
Topic Tags
certified mail
procedural requirements
contesting violations
Question
What constitutes 'due process' for an HOA violation?
Short Answer
Due process generally consists of being given notice of the violation and an opportunity to be heard by the Board before any penalties are levied.
Detailed Answer
Even if a homeowner misses a technical step (like certified mail), the ALJ may find the HOA acted correctly if the HOA still provided the homeowner with clear notice of their rights/options and allowed them a hearing before the Board prior to issuing fines.
Alj Quote
Respondent nonetheless apprised her of her rights and options, and afforded her an opportunity to be heard before the Board prior to levying penalties/fines over the violation at issue.
Legal Basis
ARIZ. REV. STAT. § 33-1242
Topic Tags
due process
notice
board hearing
Question
Who is responsible for repairing 'Limited Common Elements' like a designated carport?
Short Answer
Typically the Unit Owner. The specific maintenance obligations are defined in the community's Declaration.
Detailed Answer
In this case, the Declaration stated that while the Association maintains Common Elements, Limited Common Elements allocated to a specific unit are the responsibility of that Unit Owner to maintain, repair, and replace.
Alj Quote
[E]ach Owner shall be responsible for the maintenance, repair and replacement of the Limited Common Elements allocated to [their] unit.
Legal Basis
Declaration Article 5.2
Topic Tags
maintenance
limited common elements
carport
Question
Am I financially liable for damage caused by my tenants?
Short Answer
Yes. Owners are generally liable for damages to common elements resulting from the negligence or misconduct of their lessees.
Detailed Answer
The governing documents in this case explicitly stated that the owner is liable for damage to common elements resulting from the negligence or willful misconduct of the owner's lessees, occupants, or invitees.
Alj Quote
Each Owner shall be liable to the Association for any damage to the Common Elements which results from the negligence or willful misconduct of the Owner or of the Owner’s Lessees, Occupants or Invitees.
Legal Basis
Declaration Article 5.3
Topic Tags
tenant liability
rental property
damages
Question
Who has the burden of proof in an administrative hearing against the HOA?
Short Answer
The homeowner (Petitioner) bears the burden of proof.
Detailed Answer
The homeowner must prove by a 'preponderance of the evidence' (meaning it is more probable than not) that the Association violated the relevant statute.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1243.
Legal Basis
ARIZ. ADMIN. CODE R2-19-119
Topic Tags
burden of proof
evidence
legal standard
Question
Can I get my filing fee reimbursed if my petition is denied?
Short Answer
No. If the petition is denied, the ALJ acts under statute to order that the filing fee is not reimbursed.
Detailed Answer
The decision specifically orders that pursuant to state statute, the Respondent (HOA) is not required to reimburse the filing fee when the Petitioner does not prevail.
Alj Quote
IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall not reimburse Petitioner’s filing fee as required by ARIZ. REV. STAT. § 32-2199.01.
Legal Basis
ARIZ. REV. STAT. § 32-2199.02(A)
Topic Tags
filing fees
costs
reimbursement
Case
Docket No
23F-H021-REL
Case Title
Victoria J Whitaker vs. Villas at Sunland Condominium Association
Decision Date
2023-02-22
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE
Questions
Question
Can the Administrative Law Judge decide if I am actually responsible for the damage cited in a violation?
Short Answer
No. The ALJ's jurisdiction is limited to determining if the HOA followed the correct statutory process (due process), not determining the underlying facts of responsibility or 'guilt' regarding the damage.
Detailed Answer
The Tribunal does not have the authority to decide the merits of the violation itself (e.g., who caused the damage). Its role is strictly to determine if the Association violated the specific statutes governing the enforcement process (such as notice and hearing requirements).
Alj Quote
The record is clear that Petitioner was under the erroneous belief that the Tribunal had jurisdiction to determine who, if anyone, was responsible for causing the damage to Unit 16’s carport and was therefore liable for the repairs required. In all actuality, the crux of the matter for hearing is whether Respondent violated ARIZ. REV. STAT. § 33-1242.
Legal Basis
ARIZ. REV. STAT. § 33-1242
Topic Tags
jurisdiction
scope of hearing
violation responsibility
Question
Is it required to send my violation dispute response by certified mail?
Short Answer
Yes. Failing to send a response by certified mail may fail to 'trigger' the specific statutory due process protections afforded by state law.
Detailed Answer
The statute explicitly states that a unit owner 'may' provide a written response by certified mail within 21 days. The decision clarifies that failing to follow this specific requirement (e.g., sending an email instead) means the owner has not met the statutory requirements necessary to trigger protected due process rights under that specific statute.
Alj Quote
The record reflects that Petitioner did not follow the statutory requirements of ARIZ. REV. STAT. § 33-1242 necessary to 'trigger' any protected due process rights.
Legal Basis
ARIZ. REV. STAT. § 33-1242(B)
Topic Tags
certified mail
procedural requirements
contesting violations
Question
What constitutes 'due process' for an HOA violation?
Short Answer
Due process generally consists of being given notice of the violation and an opportunity to be heard by the Board before any penalties are levied.
Detailed Answer
Even if a homeowner misses a technical step (like certified mail), the ALJ may find the HOA acted correctly if the HOA still provided the homeowner with clear notice of their rights/options and allowed them a hearing before the Board prior to issuing fines.
Alj Quote
Respondent nonetheless apprised her of her rights and options, and afforded her an opportunity to be heard before the Board prior to levying penalties/fines over the violation at issue.
Legal Basis
ARIZ. REV. STAT. § 33-1242
Topic Tags
due process
notice
board hearing
Question
Who is responsible for repairing 'Limited Common Elements' like a designated carport?
Short Answer
Typically the Unit Owner. The specific maintenance obligations are defined in the community's Declaration.
Detailed Answer
In this case, the Declaration stated that while the Association maintains Common Elements, Limited Common Elements allocated to a specific unit are the responsibility of that Unit Owner to maintain, repair, and replace.
Alj Quote
[E]ach Owner shall be responsible for the maintenance, repair and replacement of the Limited Common Elements allocated to [their] unit.
Legal Basis
Declaration Article 5.2
Topic Tags
maintenance
limited common elements
carport
Question
Am I financially liable for damage caused by my tenants?
Short Answer
Yes. Owners are generally liable for damages to common elements resulting from the negligence or misconduct of their lessees.
Detailed Answer
The governing documents in this case explicitly stated that the owner is liable for damage to common elements resulting from the negligence or willful misconduct of the owner's lessees, occupants, or invitees.
Alj Quote
Each Owner shall be liable to the Association for any damage to the Common Elements which results from the negligence or willful misconduct of the Owner or of the Owner’s Lessees, Occupants or Invitees.
Legal Basis
Declaration Article 5.3
Topic Tags
tenant liability
rental property
damages
Question
Who has the burden of proof in an administrative hearing against the HOA?
Short Answer
The homeowner (Petitioner) bears the burden of proof.
Detailed Answer
The homeowner must prove by a 'preponderance of the evidence' (meaning it is more probable than not) that the Association violated the relevant statute.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1243.
Legal Basis
ARIZ. ADMIN. CODE R2-19-119
Topic Tags
burden of proof
evidence
legal standard
Question
Can I get my filing fee reimbursed if my petition is denied?
Short Answer
No. If the petition is denied, the ALJ acts under statute to order that the filing fee is not reimbursed.
Detailed Answer
The decision specifically orders that pursuant to state statute, the Respondent (HOA) is not required to reimburse the filing fee when the Petitioner does not prevail.
Alj Quote
IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall not reimburse Petitioner’s filing fee as required by ARIZ. REV. STAT. § 32-2199.01.
Legal Basis
ARIZ. REV. STAT. § 32-2199.02(A)
Topic Tags
filing fees
costs
reimbursement
Case
Docket No
23F-H021-REL
Case Title
Victoria J Whitaker vs. Villas at Sunland Condominium Association
Decision Date
2023-02-22
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Victoria Whitaker(petitioner) Appeared on her own behalf without counsel
Kimball Whitaker(observer) Observed hearing; potential witness for petitioner
Realtor(realtor) Petitioner's realtor (name not provided)
The Petitioner prevailed by showing the Association violated ARIZ. REV. STAT. section 33-1243. The Association was ordered to refund the $500.00 filing fee. Petitioner's requests for voiding election results, assessing a civil penalty, and appointing an administrator were denied.
Key Issues & Findings
Violation of statutory procedure for board member removal concerning ballot tabulation after deadline.
The Association violated the statute by tabulating ballots for a recall election at the August 19, 2021 meeting, as those ballots were only valid for the canceled June 30, 2021 special meeting.
Orders: Respondent must pay the Petitioner his filing fee of $500.00 within thirty days of the Order. Other requested remedies (voiding results, assessing civil penalty, appointing administrator) were denied.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
ARIZ. REV. STAT. § 33-1243
ARIZ. REV. STAT. § 33-1243(H)(4)
ARIZ. REV. STAT. § 33-1250(C)(3)
Analytics Highlights
Topics: HOA board recall, Ballot tabulation, Quorum dispute, Statutory violation, Filing fee refund
Additional Citations:
ARIZ. REV. STAT. § 33-1243
ARIZ. REV. STAT. § 33-1250
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 32-2199.01
ARIZ. ADMIN. CODE § R2-19-119
Whitmer v. Hilton Casitas Homeowners Ass'n
Gutierrez v. Industrial Commission of Arizona
State v. McFall
Video Overview
Audio Overview
Decision Documents
22F-H2221014-REL Decision – 935534.pdf
Uploaded 2026-01-23T17:41:19 (128.9 KB)
22F-H2221014-REL Decision – 945764.pdf
Uploaded 2026-01-23T17:41:24 (48.2 KB)
22F-H2221014-REL Decision – 949683.pdf
Uploaded 2026-01-23T17:41:26 (49.4 KB)
Questions
Question
What is the deadline for an HOA to hold a special meeting after receiving a petition to recall board members?
Short Answer
The meeting must be held within 30 days of receiving the petition.
Detailed Answer
According to Arizona statute, once an HOA receives a petition for the removal of a board member, it is legally required to call, notice, and actually hold the special meeting within a 30-day timeframe.
Alj Quote
The special meeting shall be called, noticed and held within thirty days after receipt of the petition.
Legal Basis
ARIZ. REV. STAT. § 33-1243(H)(4)(c)
Topic Tags
recall election
deadlines
board removal
Question
Can an HOA count ballots collected for a specific meeting date at a later, rescheduled meeting?
Short Answer
No, ballots are only valid for the specific meeting they were issued for.
Detailed Answer
An HOA cannot use ballots collected for a canceled meeting at a subsequent meeting held on a different date. The decision clarified that counting such ballots violates the statute because the ballots are strictly limited to the meeting for which they were originally valid.
Alj Quote
The Association’s decision to count the ballots at the August 19th meeting does not comply with section 33-1243 because those ballots were valid only for the June 30th meeting as evidenced by the ballots, the Notice, and the voting instructions.
Legal Basis
ARIZ. REV. STAT. § 33-1250(C)(3)
Topic Tags
voting
ballots
meetings
Question
Can an Administrative Law Judge (ALJ) void an HOA election or remove board members?
Short Answer
No, the ALJ does not have the authority to void election results or appoint administrators.
Detailed Answer
While an ALJ can determine if a violation occurred and levy penalties, they cannot order an election to be voided or appoint an independent administrator to oversee the HOA. These remedies are outside the tribunal's statutory scope.
Alj Quote
Mr. Iannuzo’s requests that the tribunal void the election results and that an oversight administrator be appointed have not been shown to be within the scope of the tribunal’s authority.
Legal Basis
ARIZ. REV. STAT. § 32-2199.02(A)
Topic Tags
legal remedies
ALJ authority
elections
Question
Is an HOA allowed to determine a quorum based solely on mail-in ballots before the meeting starts?
Short Answer
Likely no; the quorum should be determined based on eligible voters present at the time of the meeting.
Detailed Answer
The ALJ noted that the statute calls for a quorum to be determined based on the number of eligible voters at the time of the meeting, implying that canceling a meeting beforehand based solely on returned ballots is not supported by persuasive legal argument.
Alj Quote
The Association presented no persuasive legal argument or authority showing that in determining whether a quorum existed it was appropriate for the Association to use only the ballots returned by June 29th, rather than using the ballots and the members present at the meeting on June 30th.
Legal Basis
ARIZ. REV. STAT. § 33-1243(H)(4)(d)
Topic Tags
quorum
meetings
voting
Question
If I win my case against the HOA, can I get my filing fee refunded?
Short Answer
Yes, if the homeowner prevails, the HOA must be ordered to pay the filing fee.
Detailed Answer
If the Administrative Law Judge determines that the homeowner has prevailed in proving a violation, the law mandates that the Judge order the HOA to reimburse the petitioner for the filing fee.
Alj Quote
If the petitioner prevails, the administrative law judge shall order the respondent to pay to the petitioner the filing fee required by section 32-2199.01.
Legal Basis
ARIZ. REV. STAT. § 32-2199.02(A)
Topic Tags
fees
penalties
reimbursement
Question
Can an HOA fix a violation for missing the 30-day recall meeting deadline by holding the meeting later?
Short Answer
No, this specific violation cannot be cured after the fact.
Detailed Answer
Once the 30-day window for holding a recall meeting has passed, the violation is established and cannot be retroactively fixed by holding the meeting late.
Alj Quote
And although the Association did not conduct the required meeting within 30 days of receiving the recall petitions, this violation cannot be cured.
Legal Basis
ARIZ. REV. STAT. § 33-1243
Topic Tags
violations
compliance
deadlines
Case
Docket No
22F-H2221014-REL
Case Title
James Iannuzo vs. Moonrise at Starr Pass Community Association
Decision Date
2021-12-30
Alj Name
Thomas Shedden
Tribunal
OAH
Agency
ADRE
Questions
Question
What is the deadline for an HOA to hold a special meeting after receiving a petition to recall board members?
Short Answer
The meeting must be held within 30 days of receiving the petition.
Detailed Answer
According to Arizona statute, once an HOA receives a petition for the removal of a board member, it is legally required to call, notice, and actually hold the special meeting within a 30-day timeframe.
Alj Quote
The special meeting shall be called, noticed and held within thirty days after receipt of the petition.
Legal Basis
ARIZ. REV. STAT. § 33-1243(H)(4)(c)
Topic Tags
recall election
deadlines
board removal
Question
Can an HOA count ballots collected for a specific meeting date at a later, rescheduled meeting?
Short Answer
No, ballots are only valid for the specific meeting they were issued for.
Detailed Answer
An HOA cannot use ballots collected for a canceled meeting at a subsequent meeting held on a different date. The decision clarified that counting such ballots violates the statute because the ballots are strictly limited to the meeting for which they were originally valid.
Alj Quote
The Association’s decision to count the ballots at the August 19th meeting does not comply with section 33-1243 because those ballots were valid only for the June 30th meeting as evidenced by the ballots, the Notice, and the voting instructions.
Legal Basis
ARIZ. REV. STAT. § 33-1250(C)(3)
Topic Tags
voting
ballots
meetings
Question
Can an Administrative Law Judge (ALJ) void an HOA election or remove board members?
Short Answer
No, the ALJ does not have the authority to void election results or appoint administrators.
Detailed Answer
While an ALJ can determine if a violation occurred and levy penalties, they cannot order an election to be voided or appoint an independent administrator to oversee the HOA. These remedies are outside the tribunal's statutory scope.
Alj Quote
Mr. Iannuzo’s requests that the tribunal void the election results and that an oversight administrator be appointed have not been shown to be within the scope of the tribunal’s authority.
Legal Basis
ARIZ. REV. STAT. § 32-2199.02(A)
Topic Tags
legal remedies
ALJ authority
elections
Question
Is an HOA allowed to determine a quorum based solely on mail-in ballots before the meeting starts?
Short Answer
Likely no; the quorum should be determined based on eligible voters present at the time of the meeting.
Detailed Answer
The ALJ noted that the statute calls for a quorum to be determined based on the number of eligible voters at the time of the meeting, implying that canceling a meeting beforehand based solely on returned ballots is not supported by persuasive legal argument.
Alj Quote
The Association presented no persuasive legal argument or authority showing that in determining whether a quorum existed it was appropriate for the Association to use only the ballots returned by June 29th, rather than using the ballots and the members present at the meeting on June 30th.
Legal Basis
ARIZ. REV. STAT. § 33-1243(H)(4)(d)
Topic Tags
quorum
meetings
voting
Question
If I win my case against the HOA, can I get my filing fee refunded?
Short Answer
Yes, if the homeowner prevails, the HOA must be ordered to pay the filing fee.
Detailed Answer
If the Administrative Law Judge determines that the homeowner has prevailed in proving a violation, the law mandates that the Judge order the HOA to reimburse the petitioner for the filing fee.
Alj Quote
If the petitioner prevails, the administrative law judge shall order the respondent to pay to the petitioner the filing fee required by section 32-2199.01.
Legal Basis
ARIZ. REV. STAT. § 32-2199.02(A)
Topic Tags
fees
penalties
reimbursement
Question
Can an HOA fix a violation for missing the 30-day recall meeting deadline by holding the meeting later?
Short Answer
No, this specific violation cannot be cured after the fact.
Detailed Answer
Once the 30-day window for holding a recall meeting has passed, the violation is established and cannot be retroactively fixed by holding the meeting late.
Alj Quote
And although the Association did not conduct the required meeting within 30 days of receiving the recall petitions, this violation cannot be cured.
Legal Basis
ARIZ. REV. STAT. § 33-1243
Topic Tags
violations
compliance
deadlines
Case
Docket No
22F-H2221014-REL
Case Title
James Iannuzo vs. Moonrise at Starr Pass Community Association
Decision Date
2021-12-30
Alj Name
Thomas Shedden
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
James Iannuzo(petitioner) Appeared and testified on his own behalf
Respondent Side
Jason E. Smith(respondent attorney) Smith & Wamsley, PLLC Counsel for Respondent
Neutral Parties
Thomas Shedden(ALJ) Office of Administrative Hearings
Louis Dettorre(Commissioner) Arizona Department of Real Estate
Miranda Alvarez(clerk) Transmitted Decision
c. serrano(clerk) Transmitted Advisements
AHansen(staff) Arizona Department of Real Estate Recipient of transmission (Attn)
djones(staff) Arizona Department of Real Estate Recipient of transmission (Attn)
DGardner(staff) Arizona Department of Real Estate Recipient of transmission (Attn)
vnunez(staff) Arizona Department of Real Estate Recipient of transmission (Attn)
ARIZ. REV. STAT. § 33-1805; Association Bylaws Article 11.3
Outcome Summary
The Administrative Law Judge denied the petition in its entirety, concluding that the Petitioner failed to meet the burden of proof required to show that the El Rio Community Association violated statutory or community document requirements regarding access to records.
Why this result: Petitioner failed to prove the alleged violations by a preponderance of the evidence.
Key Issues & Findings
Failure to fulfill a records request
Petitioner, a member and Board Director, requested to inspect Association books and records on March 30, 2021. Petitioner alleged the Association failed to completely fulfill the request. The ALJ determined that Petitioner failed to meet the burden of proof to demonstrate a violation of the governing statute or bylaws.
Orders: Petitioner's petition and request to levy a civil penalty against Respondent were denied. Respondent was not ordered to reimburse Petitioner's filing fee.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
Cited:
ARIZ. REV. STAT. § 33-1805
Association Bylaws Article 11.3
Analytics Highlights
Topics: Records Request, HOA Bylaws, A.R.S. 33-1805
Additional Citations:
ARIZ. REV. STAT. § 33-1805
Association Bylaws Article 11.3
ARIZ. REV. STAT. §§ 32-2102
ARIZ. REV. STAT. §§ 32-2199 et al.
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. § 33-1804
ARIZ. REV. STAT. § 32-2199.02(A)
ARIZ. REV. STAT. § 32-2199.01
ARIZ. REV. STAT. § 32-2199.02(B)
ARIZ. REV. STAT. § 32-2199.04
ARIZ. REV. STAT. § 41-1092.09
Video Overview
Audio Overview
Decision Documents
21F-H2121053-REL Decision – 904187.pdf
Uploaded 2026-01-23T17:38:10 (114.1 KB)
Questions
Question
How long does my HOA have to fulfill a request to examine records?
Short Answer
The HOA has ten business days to fulfill a request for examination.
Detailed Answer
According to Arizona statute, an association is granted a period of ten business days to comply with a member's request to examine financial and other records.
Alj Quote
The association shall have ten business days to fulfill a request for examination.
Legal Basis
A.R.S. § 33-1805(A)
Topic Tags
records request
timelines
HOA obligations
Question
Can the HOA charge me a fee to simply look at the books and records?
Short Answer
No, the HOA cannot charge a member for making material available for review.
Detailed Answer
State law prohibits the association from charging a member (or their designated representative) any fee for the act of making records available for inspection.
Alj Quote
The association shall not charge a member or any person designated by the member in writing for making material available for review.
Legal Basis
A.R.S. § 33-1805(A)
Topic Tags
records request
fees
homeowner rights
Question
How much can the HOA charge me if I want copies of the records?
Short Answer
The HOA may charge up to fifteen cents per page for copies.
Detailed Answer
While review is free, if a member requests physical copies of records, the association is legally permitted to charge a fee, capped at fifteen cents per page.
Alj Quote
An association may charge a fee for making copies of not more than fifteen cents per page.
Legal Basis
A.R.S. § 33-1805(A)
Topic Tags
records request
fees
copies
Question
Is the HOA allowed to withhold certain records from me?
Short Answer
Yes, specific categories of records, such as privileged attorney communications or employee records, can be withheld.
Detailed Answer
The law provides exceptions to disclosure for sensitive information, including privileged attorney-client communications, pending litigation, closed session minutes, and personal or financial records of individual members or employees.
Alj Quote
Books and records kept by or on behalf of the association and the board may be withheld from disclosure to the extent that the portion withheld relates to… Privileged communication between an attorney for the association and the association.
Legal Basis
A.R.S. § 33-1805(B)
Topic Tags
records request
exclusions
privacy
Question
Can I see records regarding complaints against specific HOA employees?
Short Answer
No, records regarding specific complaints against individual employees can be withheld.
Detailed Answer
The HOA is not required to disclose records that relate to specific complaints against an individual employee of the association or a contractor.
Alj Quote
Records relating to… specific complaints against an individual employee of the association or an individual employee of a contractor of the association who works under the direction of the association [may be withheld].
Legal Basis
A.R.S. § 33-1805(B)(5)
Topic Tags
records request
employees
privacy
Question
What standard of proof do I need to meet to win a dispute hearing against my HOA?
Short Answer
You must prove your case by a 'preponderance of the evidence.'
Detailed Answer
The petitioner (homeowner) bears the burden of proof. This means you must provide enough evidence to convince the judge that your claim is more probably true than not.
Alj Quote
Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1805.
Legal Basis
Conclusion of Law 3
Topic Tags
hearing procedure
burden of proof
legal standards
Question
If I believe documents are missing from my request, is my belief enough to prove a violation?
Short Answer
No, you must present credible evidence that the specific undisclosed documents actually exist.
Detailed Answer
Merely alleging that documents are missing is insufficient. The homeowner must provide credible evidence demonstrating that the documents requested actually exist and were withheld.
Alj Quote
Petitioner presented no credible evidence that documents existed which were not disclosed.
Legal Basis
Findings of Fact 18
Topic Tags
evidence
records request
burden of proof
Question
Does an HOA Director have different inspection rights than a regular homeowner?
Short Answer
Yes, Directors generally have an absolute right to inspect all books and records at any reasonable time.
Detailed Answer
Association bylaws often grant Directors broader access than general members, allowing them the absolute right to inspect all documents and physical properties at reasonable times.
Alj Quote
Every Director shall have the absolute right at any reasonable time to inspect all books, records, and documents of the Association and the physical properties owned or controlled by the Association.
Legal Basis
Association Bylaws Article 11.3
Topic Tags
board members
directors
inspection rights
Case
Docket No
21F-H2121053-REL
Case Title
Michael E Palacios vs. El Rio Community Association
Decision Date
2021-08-13
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE
Questions
Question
How long does my HOA have to fulfill a request to examine records?
Short Answer
The HOA has ten business days to fulfill a request for examination.
Detailed Answer
According to Arizona statute, an association is granted a period of ten business days to comply with a member's request to examine financial and other records.
Alj Quote
The association shall have ten business days to fulfill a request for examination.
Legal Basis
A.R.S. § 33-1805(A)
Topic Tags
records request
timelines
HOA obligations
Question
Can the HOA charge me a fee to simply look at the books and records?
Short Answer
No, the HOA cannot charge a member for making material available for review.
Detailed Answer
State law prohibits the association from charging a member (or their designated representative) any fee for the act of making records available for inspection.
Alj Quote
The association shall not charge a member or any person designated by the member in writing for making material available for review.
Legal Basis
A.R.S. § 33-1805(A)
Topic Tags
records request
fees
homeowner rights
Question
How much can the HOA charge me if I want copies of the records?
Short Answer
The HOA may charge up to fifteen cents per page for copies.
Detailed Answer
While review is free, if a member requests physical copies of records, the association is legally permitted to charge a fee, capped at fifteen cents per page.
Alj Quote
An association may charge a fee for making copies of not more than fifteen cents per page.
Legal Basis
A.R.S. § 33-1805(A)
Topic Tags
records request
fees
copies
Question
Is the HOA allowed to withhold certain records from me?
Short Answer
Yes, specific categories of records, such as privileged attorney communications or employee records, can be withheld.
Detailed Answer
The law provides exceptions to disclosure for sensitive information, including privileged attorney-client communications, pending litigation, closed session minutes, and personal or financial records of individual members or employees.
Alj Quote
Books and records kept by or on behalf of the association and the board may be withheld from disclosure to the extent that the portion withheld relates to… Privileged communication between an attorney for the association and the association.
Legal Basis
A.R.S. § 33-1805(B)
Topic Tags
records request
exclusions
privacy
Question
Can I see records regarding complaints against specific HOA employees?
Short Answer
No, records regarding specific complaints against individual employees can be withheld.
Detailed Answer
The HOA is not required to disclose records that relate to specific complaints against an individual employee of the association or a contractor.
Alj Quote
Records relating to… specific complaints against an individual employee of the association or an individual employee of a contractor of the association who works under the direction of the association [may be withheld].
Legal Basis
A.R.S. § 33-1805(B)(5)
Topic Tags
records request
employees
privacy
Question
What standard of proof do I need to meet to win a dispute hearing against my HOA?
Short Answer
You must prove your case by a 'preponderance of the evidence.'
Detailed Answer
The petitioner (homeowner) bears the burden of proof. This means you must provide enough evidence to convince the judge that your claim is more probably true than not.
Alj Quote
Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1805.
Legal Basis
Conclusion of Law 3
Topic Tags
hearing procedure
burden of proof
legal standards
Question
If I believe documents are missing from my request, is my belief enough to prove a violation?
Short Answer
No, you must present credible evidence that the specific undisclosed documents actually exist.
Detailed Answer
Merely alleging that documents are missing is insufficient. The homeowner must provide credible evidence demonstrating that the documents requested actually exist and were withheld.
Alj Quote
Petitioner presented no credible evidence that documents existed which were not disclosed.
Legal Basis
Findings of Fact 18
Topic Tags
evidence
records request
burden of proof
Question
Does an HOA Director have different inspection rights than a regular homeowner?
Short Answer
Yes, Directors generally have an absolute right to inspect all books and records at any reasonable time.
Detailed Answer
Association bylaws often grant Directors broader access than general members, allowing them the absolute right to inspect all documents and physical properties at reasonable times.
Alj Quote
Every Director shall have the absolute right at any reasonable time to inspect all books, records, and documents of the Association and the physical properties owned or controlled by the Association.
Legal Basis
Association Bylaws Article 11.3
Topic Tags
board members
directors
inspection rights
Case
Docket No
21F-H2121053-REL
Case Title
Michael E Palacios vs. El Rio Community Association
Decision Date
2021-08-13
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Michael E Palacios(petitioner) Property owner and member of the Association; was appointed to the Board,
Respondent Side
Quinten T. Cupps(HOA attorney) Represented El Rio Community Association
Denise Ferreira(property manager, witness) D & E Management Owns D & E Management and was the manager for the Association
Neutral Parties
Adam D. Stone(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
The final decision affirmed the denial of Issues 1, 2, and 3, and the granting of Issue 4. The Association was found to have violated ARIZ. REV. STAT. § 33-1805 for failing to provide complete records in a timely manner, resulting in the reimbursement of 1/4 of the filing fee.
Why this result: Petitioners failed to sustain the burden of proof regarding alleged violations of CC&Rs Section 5, Architectural Design Guidelines Section 4.0, and A.R.S. § 33-1804(A), (D), and (E).
Key Issues & Findings
Alleged violation of CC&Rs Section 5
Petitioners alleged that the HOA violated the Covenants, Conditions and Restrictions (CC&Rs), Section 5, by allowing construction on Lot 7 without prior ARC approval of required documents.
Orders: Petition denied.
Filing fee: $125.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
CC&Rs Section 5
Alleged violation of Community Agricultural Design Guidelines Section 4.0
Petitioners alleged that the HOA violated the Architectural Design Guidelines, Section 4.0, by failing to require the required $5,000.00 Construction Compliance Deposit for Lot 7.
Orders: Petition denied.
Filing fee: $125.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
Architectural Design Guidelines Section 4.0
ARIZ. REV. STAT. § 10-3821
Alleged violation of A.R.S. § 33-1804(A), (D), and (E)
Petitioners alleged that the Board conducted an unnoticed closed meeting in violation of Arizona open meeting statutes.
Orders: Petition denied.
Filing fee: $125.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
ARIZ. REV. STAT. § 33-1804(A)
ARIZ. REV. STAT. § 33-1804(D)
ARIZ. REV. STAT. § 33-1804(E)
ARIZ. REV. STAT § 10-3821
Alleged violation of A.R.S. § 33-1805
Petitioners alleged that the HOA failed to timely and completely fulfill a records request submitted on June 04, 2020, specifically by failing to provide missing email attachments.
Orders: Respondent must reimburse 1/4 of Petitioners' filing fee ($125.00). Respondent must henceforth comply with A.R.S. § 33-1805 and provide the missing email attachments within 10-business days.
Filing fee: $125.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
ARIZ. REV. STAT. § 33-1805
Analytics Highlights
Topics: HOA Statute Violation, Records Request, Filing Fee Refund, Architectural Review, Open Meetings
Briefing Document: Burnes v. Saguaro Crest Homeowners Association
Executive Summary
This document synthesizes the findings and legal proceedings in the case of Clifford (Norm) and Maria Burnes (“Petitioners”) versus the Saguaro Crest Homeowners Association, Inc. (“Respondent”). The dispute, adjudicated by the Arizona Office of Administrative Hearings (OAH), centered on a four-issue petition filed by the Burnes on July 17, 2020. The allegations concerned construction on a neighboring property (Lot 7), specifically violations of architectural rules, failure to collect a construction deposit, violations of open meeting laws, and failure to fulfill a records request.
The Administrative Law Judge (ALJ) found in favor of the Respondent on the first three issues, concluding that the association had not violated its Covenants, Conditions, and Restrictions (CC&Rs) regarding architectural control, had properly honored a waiver for the construction deposit, and had not violated state open meeting laws. However, the ALJ found that the Respondent did violate Arizona Revised Statute § 33-1805 by failing to provide copies of requested records within the statutory 10-day deadline and by providing an incomplete set of documents.
Following the initial decision, the Petitioners were granted a rehearing on the grounds of newly discovered evidence and an allegedly arbitrary decision. The rehearing affirmed the original findings, as the Petitioners conceded they possessed no new evidence that could not have been produced at the original hearing.
The final order requires the Respondent to reimburse the Petitioners for a portion of their filing fee, to comply with the records request statute moving forward, and to provide the specific missing documents from the original request.
Case Background and Procedural History
The case involves property owners Clifford (Norm) and Maria Burnes, who own Lot 6 in the Saguaro Crest subdivision in Tucson, Arizona, and their homeowners’ association. The dispute arose from the construction of a new home on the adjacent Lot 7.
• July 17, 2020: The Petitioners filed a four-issue petition with the Arizona Department of Real Estate.
• August 11, 2020: The Respondent HOA filed its answer, denying all four claims.
• August 19, 2020: The matter was referred to the Office of Administrative Hearings (OAH) for an evidentiary hearing.
• December 2020 & March 2021: Hearings were conducted before Administrative Law Judge Jenna Clark.
• March 22, 2021: The initial ALJ Decision was issued, denying the Petitioners’ claims on three issues but granting their petition on the fourth issue concerning the records request.
• April 28, 2021: The Petitioners filed a Dispute Rehearing Request on the grounds of “Newly discovered material evidence” and that the decision was “arbitrary, capricious, or an abuse of discretion.”
• May 21, 2021: The Commissioner of the Department of Real Estate granted the rehearing request.
• July 20, 2021: The rehearing was conducted.
• August 09, 2021: A Final Administrative Law Judge Decision was issued, affirming the original decision in its entirety.
Analysis of Allegations and Findings
The petition presented four distinct issues for adjudication. The findings for each are detailed below, based on the evidence presented in the hearings.
Issue 1: Alleged Violation of CC&Rs Section 5 (Architectural Control)
• Allegation: The Petitioners claimed the HOA allowed construction on Lot 7 to proceed without the required submission of documents to the Architectural Review Committee (ARC) for approval, specifically concerning modifications to the originally approved plans.
• Key Evidence:
◦ Petitioner Norm Burnes was a member of the ARC that unanimously approved the initial construction plans for Lot 7 on January 3, 2018.
◦ On October 21, 2018, and again on April 14, 2020, Mr. Burnes expressed concerns to the HOA Board that the placement of the home on Lot 7 deviated from the approved plans, negatively impacting the view and privacy of his own home on Lot 6.
◦ In a letter, Mr. Burnes stated, “Mr. Martinez did not honer the approved plan and has placed the house in the original position,” which he claimed was disharmonious and destroyed his view.
◦ The evidence showed that no additional or modified plans were ever submitted to the ARC for review after the initial January 2018 approval.
◦ The construction plans for Lot 7 were approved by Pima County on May 4, 2018.
• Conclusion:No violation found. The ALJ concluded that the “ARC cannot approve or deny proposed plans unless they are submitted for review.” Since no modified plans were ever presented, the ARC did not violate the CC&Rs. The decision also noted that the construction complied with the local government’s building authority.
• Allegation: The Petitioners claimed the HOA allowed construction on Lot 7 without collecting the required $5,000 refundable Construction Compliance Deposit.
• Key Evidence:
◦ In a meeting on May 3, 2020, the HOA Board of Directors decided to honor a Construction Compliance Deposit Waiver that had been previously granted to the Martinez family (owners of Lot 7).
◦ The rationale for such waivers was that they were granted during an economic downturn to incentivize property purchases in the subdivision.
◦ Crucially, the HOA “does not possess a corporate record that any such Construction Compliance Deposit Waiver was previously granted to the Martinez family.”
• Conclusion:No violation found. The ALJ determined that it was “clear that Lot 7 was granted a construction compliance deposit waiver.” The lack of a documented record explaining the details of the waiver was acknowledged but considered moot because it was not a specifically “noticed issue” in the petition.
• Allegation: The Petitioners claimed the HOA Board conducted an unnoticed meeting on or about May 20, 2020, to consider matters relevant to Petitioner Norm Burnes, violating state open meeting laws.
• Key Evidence:
◦ On April 18, 2020, Mr. Burnes requested an urgent meeting with the Board, which was held the following day.
◦ On May 20, 2020, the Board acted via unanimous written consent, as permitted under A.R.S § 10-3821, to restrict Mr. Burnes’s participation as an ARC member only on matters related to Lot 7.
◦ The Board’s written consent stated, “[T]he Board of Directors hereby unanimously agree that [Petitioner] be removed as an ARC Member for all ARC related matters concerning Lot 7.” This action was taken due to Mr. Burnes’s personal complaints against the Lot 7 owner, creating a conflict of interest.
• Conclusion:No violation found. The ALJ found that the Board’s failure to notice the April 19 meeting was an excused exception because the Petitioner himself had requested it as an urgent matter. The action on May 20 was not an illegal meeting but a permissible action taken via written consent without a meeting. Furthermore, the Board did not remove Mr. Burnes from the ARC entirely, but only restricted his involvement on the specific issue where he had a conflict.
Issue 4: Alleged Violation of A.R.S. § 33-1805 (Records Request)
• Allegation: The Petitioners claimed the HOA failed to fulfill a records request in accordance with state law.
• Key Evidence:
◦ On June 4, 2020, the Petitioners submitted a comprehensive request to review “ALL of the documents of the HOA” and for copies of documents falling into 17 specific categories, demanding fulfillment within 10 days.
◦ The statutory deadline for the HOA to comply with both the review and copy requests was June 18, 2020.
◦ The HOA made the documents available for review on June 16, 2020 (within the deadline).
◦ However, the HOA provided copies of the documents only on June 24, 2020, six days past the statutory deadline.
◦ Upon receiving the copies, Mr. Burnes notified the HOA the same day that “[S]ome of the attachments for some emails are not included within in this package from this documentation.” [sic]
• Conclusion:Violation found. The ALJ determined that the HOA violated the statute, which requires copies of requested records to be provided within ten business days. The Respondent’s argument that the Petitioner’s clarification on June 16 reset the deadline was explicitly rejected. The decision also noted that the documents provided were incomplete.
The Rehearing
The Petitioners’ request for a rehearing was granted, but it did not alter the case’s outcome.
• Grounds for Rehearing: The request was based on claims of newly discovered evidence and that the original findings on issues 1-3 were arbitrary or capricious.
• Rehearing Proceedings: During the rehearing, the “Petitioners offered no ‘new’ evidence and instead conceded that they wished to present evidence which they had in their possession during the prior hearing, that they markedly had decided not to present.”
• Outcome: Because no new evidence was presented, the Petitioners were precluded from recalling witnesses or offering additional exhibits. The ALJ found no basis to alter the original findings and affirmed the March 22, 2021, decision.
Final Order
The Final Administrative Law Judge Decision, dated August 9, 2021, affirmed the original order. The Respondent, Saguaro Crest Homeowners Association, is mandated to perform the following actions:
1. Denial and Granting of Petitions: The Petitioners’ petition is denied for Issues 1, 2, and 3. The petition is granted for Issue 4.
2. Reimbursement: The Respondent must reimburse the Petitioners for one-quarter of their filing fee, amounting to $500.00, to be paid in certified funds.
3. Future Compliance: The Respondent must henceforth comply with the requirements of A.R.S. § 33-1805 regarding member access to association records.
4. Provision of Documents: The Respondent must provide the Petitioners with the missing email attachments related to the June 4, 2020, records request within 10 business days of the final order’s effective date.
Study Guide – 21F-H2120002-REL-RHG
Study Guide: Burnes v. Saguaro Crest Homeowners Association, Inc.
Short-Answer Quiz
Instructions: Answer the following ten questions based on the provided source documents. Each answer should be approximately two to three sentences.
1. Identify the primary parties in this legal dispute and describe their relationship within the Saguaro Crest community.
2. What were the four specific allegations the Petitioners filed against the Respondent on July 17, 2020?
3. Explain Petitioner Norm Burnes’s initial role with the Architectural Review Committee (ARC) and how the Board of Directors later altered his participation.
4. Describe the controversy surrounding the $5,000 Construction Compliance Deposit for the construction on Lot 7.
5. What was the central grievance expressed by the Petitioners regarding the placement and construction of the new home on Lot 7?
6. What action did the Board of Directors take on May 20, 2020, without a formal, noticed meeting, and under what legal authority did they act?
7. Summarize the timeline and outcome of the Petitioners’ June 4, 2020, records request to the Association.
8. Why did the Administrative Law Judge ultimately rule in favor of the Petitioners on Issue 4, regarding the violation of ARIZ. REV. STAT. § 33-1805?
9. On what grounds did the Petitioners request a rehearing, and what was the judge’s finding regarding the “new evidence” they wished to present?
10. What was the final, affirmed order issued by the Administrative Law Judge in this case?
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Answer Key
1. The primary parties are Clifford (Norm) S. and Maria Burnes (the “Petitioners”) and the Saguaro Crest Homeowners Association, Inc. (the “Respondent”). The Petitioners are property owners in the Saguaro Crest subdivision, making them members of the Association, which is the governing body for the community.
2. The Petitioners alleged that the Association (1) improperly allowed construction on Lot 7 without required ARC approval in violation of CC&Rs Section 5; (2) allowed this construction without the required Construction Compliance Deposit; (3) conducted an unnoticed meeting in violation of ARIZ. REV. STAT. § 33-1804; and (4) failed to fulfill a records request in violation of ARIZ. REV. STAT. § 33-1805.
3. Petitioner Norm Burnes was named to serve as an Architecture Review Committee (ARC) member effective December 5, 2017, and he participated in the unanimous approval of the Lot 7 construction plans. On May 20, 2020, the Board of Directors restricted his participation as an ARC member for all matters concerning Lot 7 due to his personal complaints, which created a conflict of interest.
4. The Association’s Architectural Design Guidelines require a refundable $5,000 Construction Compliance Deposit. The Board decided to honor a discretionary waiver for Lot 7, which was said to have been granted during an economic downturn to incentivize purchases, though the Association possessed no corporate record of the waiver being granted.
5. The Petitioners’ central grievance was that the house on Lot 7 was placed too close to their backyard (on Lot 6), destroying their views, violating their privacy, and causing stress. They contended that the owner of Lot 7 did not honor the approved plan and built the house in its original, unapproved position.
6. On May 20, 2020, the Board of Directors acted without a noticed meeting to restrict Petitioner Norm Burnes’s participation on the ARC for matters related to Lot 7. They acted under the authority of ARIZ. REV. STAT § 10-3821, which permits action without a meeting if all directors provide written consent, which they obtained via individual signatures.
7. On June 4, 2020, Petitioners requested to review all Association records and receive copies of documents from 17 specific categories. The Association offered a review on June 16 (within the 10-day limit), but did not provide the requested copies until June 24, which was after the statutory deadline of June 18. Furthermore, the copies provided were incomplete, missing some email attachments.
8. The Judge ruled a violation occurred because the Association failed to provide copies of the requested records within the ten business days mandated by the statute. The Judge rejected the Association’s argument that the Petitioner’s clarification on June 16 reset the deadline, stating the Association was obligated to timely clarify and provide the documents.
9. The Petitioners requested a rehearing on the grounds of “Newly discovered material evidence” and that the initial decision was “arbitrary, capricious, or an abuse of discretion.” The judge found that the Petitioners offered no new evidence, but rather wished to present evidence they had possessed but strategically chose not to use in the original hearing.
10. The final, affirmed order granted the Petitioners’ petition regarding Issue 4 and denied it for Issues 1-3. The Respondent was ordered to reimburse the Petitioners for ¼ of their filing fee ($500.00), comply with ARIZ. REV. STAT. § 33-1805 going forward, and provide the missing email attachments from the records request within 10 business days.
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Essay Questions
Instructions: The following questions are designed for a more in-depth, essay-style response. Answers are not provided.
1. Analyze the legal concept of “burden of proof by a preponderance of the evidence” as it was applied in this case. Explain why the Administrative Law Judge concluded that the Petitioners successfully met this burden for the records request violation but failed to do so for their allegations concerning the CC&Rs, the construction deposit, and the open meeting laws.
2. Discuss the role, authority, and limitations of a Homeowners’ Association’s Architectural Review Committee (ARC) as depicted in the source documents. Evaluate the Saguaro Crest ARC’s actions and failures to act regarding the construction on Lot 7, and explain why the Judge determined that no violation of CC&Rs Section 5 had occurred.
3. Examine the conflict of interest involving Petitioner Norm Burnes’s dual roles as an aggrieved neighbor and a member of the ARC. Detail how this conflict emerged, the specific actions the Board of Directors took to address it, and the legal justification for those actions.
4. Trace the full timeline of events related to the Board of Directors’ meetings in April and May 2020. Analyze the Petitioners’ claim that these constituted a violation of Arizona’s open meeting laws (ARIZ. REV. STAT. § 33-1804) and the Judge’s legal reasoning for concluding that no violation was established.
5. Evaluate the Petitioners’ request for a rehearing. Based on the Final Administrative Law Judge Decision, explain the legal standard for granting a rehearing based on “newly discovered material evidence” and why the Petitioners’ offer of proof failed to meet this standard.
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The presiding official (Jenna Clark) at the Office of Administrative Hearings who hears evidence, makes Findings of Fact and Conclusions of Law, and issues orders in the case.
Architectural Review Committee (ARC)
A committee established by the Association’s CC&Rs, charged with implementing Architectural Guidelines to maintain aesthetic standards within the community. In this case, Petitioner Norm Burnes was a member.
Arizona Department of Real Estate (Department)
The state agency authorized to receive and decide petitions for hearings from members of homeowners’ associations in Arizona.
ARIZ. REV. STAT.
Abbreviation for Arizona Revised Statutes, which are the codified laws of the state of Arizona. Specific statutes, such as § 33-1804 (open meeting laws) and § 33-1805 (records access), were central to this case.
Board of Directors (the Board)
The overseeing body of the Saguaro Crest Homeowners Association, comprised of a President, Vice President, and Treasurer.
Burden of Proof
The obligation of a party in a legal proceeding (in this case, the Petitioners) to produce evidence that proves the claims they have made against the other party.
Covenants, Conditions, and Restrictions (CC&Rs)
The governing documents for the Saguaro Crest community that form an enforceable contract between the Association and each property owner, controlling aspects of property use.
Construction Compliance Deposit (CCD)
A refundable $5,000.00 deposit required by Section 4.0 of the Association’s Architectural Design Guidelines, which became a point of contention regarding Lot 7.
Office of Administrative Hearings (OAH)
An independent state agency in Arizona where the evidentiary hearings for this case were held.
Petitioners
Clifford (Norm) S. Burnes and Maria Burnes, the property owners of Lot 6 who filed the petition against the Homeowners Association.
Preponderance of the Evidence
The standard of proof required in this proceeding, defined as evidence that is more convincing and has superior weight, making it more probable that a contention is true than not true.
Respondent
The Saguaro Crest Homeowners Association, Inc., the non-profit corporation governing the subdivision and the party against whom the petition was filed.
Blog Post – 21F-H2120002-REL-RHG
He Sued His HOA and Won… Sort Of. 4 Shocking Lessons from a Neighbor vs. HOA Showdown
Introduction: The Neighbor’s Nightmare
It’s a scenario that sparks anxiety for any homeowner: you look out your window and see the first signs of a new construction project on the property next door. The questions immediately flood your mind. Will it block my view? Will I lose my privacy? Will this new structure change the character of the neighborhood I love?
When a decision by a Homeowners’ Association (HOA) feels threatening, the impulse to fight back is strong. But what does that fight actually look like, and what does it mean to “win”?
The real-life case of the Burnes family versus the Saguaro Crest HOA in Arizona provides a masterclass in the unexpected realities of neighbor-versus-HOA disputes. They took their fight to an administrative hearing, and the official legal decision reveals surprising and counter-intuitive lessons for any homeowner. Here are the four most impactful takeaways from that legal showdown—critical warnings for anyone who thinks going to battle with their HOA is a straightforward affair.
1. He Helped Approve the Plans He Grew to Hate
In a turn of profound irony, the petitioner leading the charge against the HOA, Mr. Norm Burnes, was a serving member of the very committee that set the entire conflict in motion: the HOA’s Architectural Review Committee (ARC).
On January 3, 2018, the ARC, including Mr. Burnes, unanimously approved the construction plans for the neighboring home on Lot 7. At the time, they were just plans on paper. But more than two years would pass before Mr. Burnes raised an alarm—long after the abstract lines on a page had become concrete and steel next door. On April 14, 2020, with construction underway, the reality of the new build became a personal grievance. Mr. Burnes wrote to the board, explaining that the new house was a “constant source of stress” for his family, that his privacy was “violated / gone,” and that his cherished views were “destroyed.”
In his own words, the impact was devastating:
“A large part of the value to me for my house was the view from the back patio. That’s gone now. The view from my kitchen and bedroom windows are destroyed.”
This is a powerful lesson in unintended consequences. It reveals how abstract plans can become deeply personal issues once construction begins. More importantly, it highlights the inherent conflict that can arise when a homeowner acts in an official capacity for the community while also trying to protect their own personal interests.
2. The HOA Won on Substance, But Lost on a Technicality
The Burnes family filed a formal petition with four distinct allegations against their HOA. In a striking outcome, the judge sided with the HOA on the three major, substantive issues at the heart of the dispute.
• Construction Plans: The judge found the HOA was not at fault for the final build. No modified plans were ever submitted for the ARC to review after the initial approval, and the construction itself complied with the local government’s authority.
• $5,000 Deposit: The judge concluded that the Lot 7 owner had been granted a waiver for the required construction deposit, even though the HOA lacked a formal record of it—a stroke of luck for the board that highlights the critical importance of meticulous record-keeping.
• Improper Meeting: The judge determined that the Board had not improperly removed Mr. Burnes from the ARC; they had only “removed [him] as an ARC Member for all ARC related matters concerning Lot 7,” a targeted recusal due to his direct conflict of interest, not a full removal from the committee. Furthermore, the meeting Mr. Burnes complained about was deemed a valid emergency meeting held at his own request.
Despite winning on these core points, the HOA was found in violation of the law on the fourth issue: a simple procedural error. The HOA had violated Arizona statute ARIZ. REV. STAT. § 33-1805 by failing to provide copies of requested records within the legally mandated 10-business day deadline. While the HOA allowed the Burnes family to review the documents on time (on June 16, within the June 18 deadline), they failed to provide the physical copies until June 24, four business days past the legal deadline.
This demonstrates a critical lesson for any organization. An entity can win the arguments on major issues but still be found in violation of the law for a minor administrative slip-up. Procedural diligence isn’t just good practice; it’s a legal requirement that can define the outcome of a case.
3. A Legal “Victory” Doesn’t Always Solve the Real Problem
So, what did the Burnes family “win” after their long and stressful legal battle? The judge’s final order was clear and specific. They received:
• A reimbursement of 1/4 of their filing fee ($500).
• An order for the HOA to provide the missing email attachments from their records request.
• An order for the HOA to comply with the records-request law in the future.
This outcome stands in stark contrast to Mr. Burnes’s original, deeply personal complaint. His fight began because the new house was a “constant source of stress” and had destroyed his backyard view. The legal ruling, however, did nothing to halt or alter the construction on Lot 7. The neighbor’s house, the very source of the entire conflict, remained exactly where it was.
This is a sobering look at the difference between a legal remedy and a practical solution. Winning in an administrative hearing is defined strictly by the letter of the law. The legal system addresses violations of statutes and governing documents, which may not align with—or offer any solution for—the personal grievance that ignited the conflict in the first place.
4. You Don’t Get a Do-Over for a Bad Strategy
Unhappy with the initial decision, the petitioners filed for a rehearing. The official grounds they cited were serious: they claimed to have “Newly discovered material evidence that could not with reasonable diligence have been discovered and produced at the original hearing.”
But when the rehearing began, the reality was quite different. As stated in the final decision, the petitioners conceded that they possessed no new evidence at all. Instead, they admitted they had strategically chosen not to present certain evidence during the first hearing and were now asking for a second chance to do so.
The judge’s response was swift and decisive. The petitioners were “precluded from recalling… witnesses, or offering additional exhibits,” and the original decision was affirmed.
This serves as a stark reminder that legal proceedings are formal and final. A trial or administrative hearing is not a practice run. The petitioners’ admission that they deliberately withheld evidence was a fatal strategic error, turning their request for a second chance into a confirmation of their first failure.
Conclusion: The Letter vs. The Spirit of the Law
The showdown between the Burnes family and the Saguaro Crest HOA is a compelling story of unintended consequences, procedural missteps, and strategic blunders. But taken together, the lessons reveal a single, powerful truth: the legal system is designed to correct violations of law, not to soothe personal grievances. The family won on a paperwork technicality but lost on every issue that mattered to their quality of life. The HOA won on the substance of the dispute but was penalized for failing to follow administrative rules.
The case leaves us with a critical question to consider. When you find yourself in a dispute, is it more important to be legally ‘right,’ or to find a practical resolution? As the Burnes family discovered, the two are not always the same thing.
Case Participants
Petitioner Side
Clifford Burnes(petitioner/ARC member) Saguaro Crest Homeowners Association, Inc. Also known as Norm S. Burnes
Maria Burnes(petitioner) Saguaro Crest Homeowners Association, Inc.
Cynthia F. Burnes(petitioner attorney) Counsel for Petitioners
Jacob A. Kubert(petitioner attorney) Counsel for Petitioners
Debora Brown(witness) Witness for Petitioners
Respondent Side
John Crotty(respondent attorney) Law Offices of Farley, Choate & Wood Counsel for Respondent
Kelsea Dressen(respondent attorney) Law Offices of Farley, Choate & Wood Counsel for Respondent (also listed as Kelsey P. Dressen)
Esmerelda Martinez(board member/witness) Saguaro Crest Homeowners Association, Inc. Board President
Dave Madill(board member) Saguaro Crest Homeowners Association, Inc. Board Vice President
Julie Stevens(board member) Saguaro Crest Homeowners Association, Inc. Board Treasurer
Raul Martinez(lot owner) Saguaro Crest Homeowners Association, Inc. Owner of Lot 7
Ramona Martinez(lot owner) Saguaro Crest Homeowners Association, Inc. Owner of Lot 7
Joseph Martinez(ARC member) Saguaro Crest Homeowners Association, Inc.
Jamie Argueta(ARC member) Saguaro Crest Homeowners Association, Inc.
Jesus Carranza(substitute ARC member) Saguaro Crest Homeowners Association, Inc.
Neutral Parties
Jenna Clark(ALJ) OAH
Judy Lowe(Commissioner) Arizona Department of Real Estate
Dan Gardener(ADRE staff) Arizona Department of Real Estate Recipient of order transmission (listed as DGardner)
c. serrano(administrative staff) Transmitted decision/order
The final decision affirmed the denial of Issues 1, 2, and 3, and the granting of Issue 4. The Association was found to have violated ARIZ. REV. STAT. § 33-1805 for failing to provide complete records in a timely manner, resulting in the reimbursement of 1/4 of the filing fee.
Why this result: Petitioners failed to sustain the burden of proof regarding alleged violations of CC&Rs Section 5, Architectural Design Guidelines Section 4.0, and A.R.S. § 33-1804(A), (D), and (E).
Key Issues & Findings
Alleged violation of CC&Rs Section 5
Petitioners alleged that the HOA violated the Covenants, Conditions and Restrictions (CC&Rs), Section 5, by allowing construction on Lot 7 without prior ARC approval of required documents.
Orders: Petition denied.
Filing fee: $125.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
CC&Rs Section 5
Alleged violation of Community Agricultural Design Guidelines Section 4.0
Petitioners alleged that the HOA violated the Architectural Design Guidelines, Section 4.0, by failing to require the required $5,000.00 Construction Compliance Deposit for Lot 7.
Orders: Petition denied.
Filing fee: $125.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
Architectural Design Guidelines Section 4.0
ARIZ. REV. STAT. § 10-3821
Alleged violation of A.R.S. § 33-1804(A), (D), and (E)
Petitioners alleged that the Board conducted an unnoticed closed meeting in violation of Arizona open meeting statutes.
Orders: Petition denied.
Filing fee: $125.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
ARIZ. REV. STAT. § 33-1804(A)
ARIZ. REV. STAT. § 33-1804(D)
ARIZ. REV. STAT. § 33-1804(E)
ARIZ. REV. STAT § 10-3821
Alleged violation of A.R.S. § 33-1805
Petitioners alleged that the HOA failed to timely and completely fulfill a records request submitted on June 04, 2020, specifically by failing to provide missing email attachments.
Orders: Respondent must reimburse 1/4 of Petitioners' filing fee ($125.00). Respondent must henceforth comply with A.R.S. § 33-1805 and provide the missing email attachments within 10-business days.
Filing fee: $125.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
ARIZ. REV. STAT. § 33-1805
Analytics Highlights
Topics: HOA Statute Violation, Records Request, Filing Fee Refund, Architectural Review, Open Meetings
Additional Citations:
ARIZ. REV. STAT. § 32-2102
ARIZ. REV. STAT. § 32-2199
ARIZ. REV. STAT. § 32-2199.01
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 33-1804(A)
ARIZ. REV. STAT. § 33-1804(D)
ARIZ. REV. STAT. § 33-1804(E)
ARIZ. REV. STAT. § 33-1805
ARIZ. REV. STAT. § 10-3821
CC&Rs Section 5
Architectural Design Guidelines Section 4.0
Video Overview
Audio Overview
Decision Documents
21F-H2120002-REL Decision – 866263.pdf
Uploaded 2025-12-09T10:06:10 (268.5 KB)
21F-H2120002-REL Decision – 902726.pdf
Uploaded 2025-10-09T03:35:42 (239.9 KB)
Briefing Doc – 21F-H2120002-REL
Briefing Document: Burnes v. Saguaro Crest Homeowners Association, Final Decision
Executive Summary
This document synthesizes the Final Administrative Law Judge Decision in the case of Clifford and Maria Burnes (“Petitioners”) versus the Saguaro Crest Homeowners Association (“Respondent”), case number 21F-H2120002-REL-RHG. The dispute centered on a four-issue petition alleging violations by the Association related to new construction on a neighboring property (Lot 7), an unnoticed Board meeting, and the fulfillment of a records request.
Following an initial hearing and a subsequent rehearing, the Administrative Law Judge (ALJ) largely affirmed the original decision. The Petitioners failed to meet their burden of proof on three of the four issues, with the judge finding no violations by the Association regarding architectural controls, the waiver of a construction deposit, or the conduct of a Board meeting.
However, the Petitioners successfully proved that the Association violated Arizona Revised Statute § 33-1805 by failing to timely and completely fulfill a comprehensive records request. The final order requires the Association to reimburse the Petitioners for a portion of their filing fee ($500), comply with the records statute moving forward, and provide the specific missing documents (email attachments) from the original request. The rehearing was granted on the basis of “newly discovered evidence,” but the Petitioners conceded during the proceeding that they possessed no new evidence, leading the ALJ to rely solely on the record from the first hearing.
I. Background and Procedural History
The case involves a dispute between property owners Clifford and Maria Burnes and their homeowners’ association, Saguaro Crest, located in Tucson, Arizona. The Association is governed by Covenants, Conditions, and Restrictions (CC&Rs) recorded in 2006 and Architectural Design Guidelines adopted in 2018.
Procedural Timeline
July 17, 2020
Petitioners file a 4-issue petition with the Arizona Department of Real Estate.
August 11, 2020
Respondent (HOA) denies all claims in its answer.
Dec 11, 2020 & Mar 1-2, 2021
An evidentiary hearing is held before the Office of Administrative Hearings (OAH).
March 22, 2021
The Administrative Law Judge (ALJ) issues the initial decision.
April 28, 2021
Petitioners file a dispute rehearing request, alleging newly discovered evidence.
May 21, 2021
The Commissioner of the Department of Real Estate grants the rehearing request.
July 20, 2021
The rehearing is held. Petitioners concede they have no “new” evidence.
August 09, 2021
The Final Administrative Law Judge Decision is issued, affirming the initial ruling.
Key Parties
Name / Entity
Clifford & Maria Burnes
Petitioners; owners of Lot 6.
Cynthia F. Burnes, Esq.
Counsel for Petitioners.
Saguaro Crest HOA, Inc.
Respondent.
John Crotty, Esq.
Counsel for Respondent.
Norm Burnes
Petitioner; appointed to the Architectural Review Committee (ARC) in 2017.
Raul & Ramona Martinez
Owners of Lot 7, the property under construction.
Jenna Clark
Administrative Law Judge (ALJ).
II. Analysis of Allegations and Findings
The petition presented four distinct issues for adjudication. The Petitioners bore the burden of proving each violation by a preponderance of the evidence.
Issue 1: Alleged Violation of CC&Rs Section 5 (Architectural Control)
• Petitioners’ Allegation: The Association improperly allowed construction on Lot 7 to proceed without required documents being submitted to the Architectural Review Committee (ARC) for approval.
• Factual Record:
◦ The ARC, which included Petitioner Norm Burnes, unanimously approved construction plans for Lot 7 on January 3, 2018.
◦ Construction began sometime in 2018. Pima County approved the plans on May 4, 2018.
◦ On April 14, 2020, Petitioner Burnes sent a formal letter of concern to the Board, stating the placement of the home on Lot 7 was not per the approved plan and had destroyed their view and privacy. The letter included the following statement:
• Conclusion of Law:No violation found. The ALJ determined that while the construction on Lot 7 was not per the plans the ARC approved on January 3, 2018, no subsequent or modified plans were ever submitted to the ARC for review. The decision states, “The ARC cannot approve or deny proposed plans unless they are submitted for review.” Furthermore, the record shows the construction complies with the local government’s building authority.
• Petitioners’ Allegation: The Association allowed construction on Lot 7 without collecting the required $5,000.00 Construction Compliance Deposit.
• Factual Record:
◦ On May 3, 2020, the Board of Directors decided to honor a Construction Compliance Deposit waiver that had been previously granted to the Martinez family.
◦ This discretionary waiver was reportedly granted during an economic downturn to incentivize property purchases.
◦ Critically, the Association “does not possess a corporate record that any such Construction Compliance Deposit Waiver was previously granted to the Martinez family.”
• Conclusion of Law:No violation found. The ALJ concluded it was “clear that Lot 7 was granted a construction compliance deposit waiver.” The lack of a documented record was noted, but the inquiry was deemed moot as it was not a noticed issue in the petition.
Issue 3: Alleged Violation of A.R.S. § 33-1804 (Unnoticed Meeting)
• Petitioners’ Allegation: The Board of Directors conducted an unnoticed meeting on or about May 20, 2020, to consider matters relevant to Petitioner Norm Burnes.
• Factual Record:
◦ On April 18, 2020, Petitioner requested an urgent meeting with the Board, which was held the next day.
◦ On May 20, 2020, the Board acted with unanimous consent (obtained via individual signatures) to restrict Petitioner Burnes’s participation as an ARC member “regarding all issued related to the construction of Lot 7.”
◦ The Board’s notes state: “[T]he Board of Directors hereby unanimously agree that [Petitioner] be removed as an ARC Member for all ARC related matters concerning Lot 7.”
• Conclusion of Law:No violation found. The judge ruled that the Board’s failure to notice the April 19 meeting was excused as an exception because the Petitioner himself had requested it on an urgent basis. Regarding the May 20 action, the record shows Mr. Burnes was not removed from the ARC entirely, but only recused from matters concerning the Lot 7 dispute in which he had a direct conflict of interest.
Issue 4: Alleged Violation of A.R.S. § 33-1805 (Records Request)
• Petitioners’ Allegation: The Association failed to properly fulfill a records request.
• Factual Record:
◦ On June 4, 2020, Petitioners submitted a comprehensive, 17-point records request and demanded fulfillment within the statutory 10-day period.
◦ On June 16, 2020, the Association made 342 pages of documents available for in-person review but prohibited Petitioners from using their own scanning equipment.
◦ The statutory deadline for compliance was June 18, 2020.
◦ On June 24, 2020, after Petitioners paid a $51.30 fee, the Association provided copies of the documents.
◦ Later that day, Petitioners notified the Association that the document package was incomplete, as “attachments for some emails are not included.”
• Conclusion of Law:Violation established. The ALJ found that the Association failed to comply with the statute. The documents were made available for review within the 10-day window, but the copies were not provided until June 24, after the deadline. More importantly, the copies provided were incomplete. The judge rejected the Association’s argument that a clarification from the Petitioner reset the statutory clock.
III. Final Order and Directives
The Final Administrative Law Judge Decision, issued after the rehearing, affirmed the conclusions of the initial March 22, 2021 decision.
• Petition Status: The petition was granted in part (on Issue 4) and denied in part (on Issues 1, 2, and 3).
• Financial Reimbursement: The Respondent (Saguaro Crest HOA) is ordered to reimburse the Petitioners for one-quarter of their filing fee, amounting to $500.00.
• Statutory Compliance: The Respondent is ordered to henceforth comply with the requirements of A.R.S. § 33-1805 regarding records requests.
• Document Production: The Respondent is ordered to provide the Petitioners with the missing email attachments related to the June 4, 2020 records request within 10 business days of the final order’s effective date.
Study Guide – 21F-H2120002-REL
Study Guide: Burnes v. Saguaro Crest Homeowners Association, Inc.
This study guide provides a detailed review of the Final Administrative Law Judge Decision in the case of Clifford and Maria Burnes versus the Saguaro Crest Homeowners Association, Inc. (No. 21F-H2120002-REL-RHG). The guide includes a short-answer quiz with an answer key, a set of essay questions for deeper analysis, and a comprehensive glossary of key terms used in the legal proceedings.
Short-Answer Quiz
Instructions: Answer the following questions in 2-3 sentences based on the information provided in the case document.
1. Who are the Petitioners and the Respondent in this case, and what is their fundamental relationship?
2. List the four distinct issues the Petitioners alleged against the Respondent in their initial petition.
3. On what grounds did the Petitioners request and receive a rehearing after the initial decision was issued on March 22, 2021?
4. What was the outcome of the Petitioners’ attempt to present new witnesses and exhibits during the rehearing on July 20, 2021?
5. Why did the Administrative Law Judge conclude that the Respondent had not violated Section 5 of the CC&Rs regarding the construction on Lot 7?
6. Explain the controversy surrounding the $5,000 Construction Compliance Deposit and the court’s ultimate finding on the matter.
7. What action did the Board of Directors take against Petitioner Norm Burnes on May 20, 2020, and why was this action not considered a violation of A.R.S. § 33-1804?
8. Which of the four allegations was ultimately successful for the Petitioners, and what specific failures by the Respondent led to this finding?
9. What were the four key orders issued by the Administrative Law Judge in the Final Order?
10. What was Petitioner Norm Burnes’s official role within the Saguaro Crest community, and how did this position create a conflict of interest in the dispute?
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Quiz Answer Key
1. The Petitioners are Clifford and Maria Burnes, who are property owners in the Saguaro Crest subdivision and members of the homeowners’ association. The Respondent is the Saguaro Crest Homeowners Association, Inc. (HOA), which is the governing body for the subdivision.
2. The four issues were: (1) The HOA allowed construction on Lot 7 without required ARC document submission in violation of CC&Rs Section 5; (2) The HOA allowed construction without a required Construction Compliance Deposit; (3) The Board conducted an unnoticed meeting in violation of A.R.S. § 33-1804; (4) The HOA failed to fulfill a records request in violation of A.R.S. § 33-1805.
3. The Petitioners requested a rehearing on the grounds of having “Newly discovered material evidence that could not with reasonable diligence have been discovered and produced at the original hearing.” They also alleged that the original decision was “arbitrary, capricious, or an abuse of discretion.”
4. At the rehearing, the Petitioners conceded they possessed no “newly discovered” evidence, but rather evidence they had strategically chosen not to present previously. Because they did not provide a satisfactory offer of proof for new evidence, they were precluded from recalling witnesses or offering additional exhibits.
5. The Judge found that while the construction on Lot 7 was not per the plans approved by the ARC on January 3, 2018, no additional plans had been submitted for the ARC’s consideration. The Judge reasoned that the ARC cannot approve or deny plans that are not submitted, and the build complied with the local government’s building authority.
6. The Architectural Design Guidelines required a $5,000 deposit, but the owners of Lot 7 had been granted a waiver. Although the HOA did not possess a corporate record of the waiver, the Board voted to honor it. The court found no violation because the waiver had been granted, and the lack of documentation was not the specific issue being litigated.
7. On May 20, 2020, the Board held an unnoticed meeting and, via unanimous consent, restricted Petitioner Burnes’s participation as an ARC member for all matters related to Lot 7. This was not a violation because the failure to notice was excused as an exception, and the Board only removed him from matters concerning Lot 7, not from the ARC entirely.
8. Issue #4, the records request violation, was successful for the Petitioners. The Respondent failed to provide copies of the requested documents within the statutory 10-day deadline, providing them on June 24, 2020, when the deadline was June 18, 2020. Furthermore, the documents provided were incomplete, as they were missing email attachments.
9. The Final Order affirmed the previous decision, ordered the Respondent to reimburse the Petitioners for 1/4 of their filing fee ($500.00), ordered the Respondent to comply with A.R.S. § 33-1805 going forward, and ordered the Respondent to provide the missing email attachments within 10 business days.
10. Petitioner Norm Burnes was a member of the Association’s Architectural Review Committee (ARC). This created a conflict of interest because he was part of the committee that initially approved the Lot 7 construction plans, but he later raised formal complaints against that same construction project due to its impact on his own property (Lot 6).
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Essay Questions
Instructions: The following questions are designed for a more in-depth analysis of the case. No answers are provided.
1. Analyze the concept of “burden of proof” by a “preponderance of the evidence” as it applies to this case. How did the Petitioners succeed in meeting this burden for Issue #4 but fail for the other three issues?
2. Discuss the powers and limitations of a Homeowners’ Association Board and its Architectural Review Committee as illustrated in this case, specifically concerning construction approval, enforcement authority, and the management of member conflicts of interest.
3. The Petitioners’ request for a rehearing was based on “newly discovered material evidence.” Explain why this request ultimately failed to change the outcome and discuss the strategic decisions made by the Petitioners regarding the presentation of evidence.
4. Examine the conflict between a homeowner’s desire for privacy and unobstructed views (as expressed by the Petitioners) and the rights of a neighboring property owner to develop their land. How did the community’s governing documents and the final legal decision address this conflict?
5. Trace the timeline of the records request dispute (Issue #4). What were the specific actions and inactions by the Respondent that led to a finding of a statutory violation, and what does this illustrate about an HOA’s administrative and statutory responsibilities to its members?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An independent judge who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions. In this case, the ALJ was Jenna Clark.
Architectural Review Committee (ARC)
A committee charged by an HOA’s CC&Rs with implementing architectural guidelines to maintain aesthetic standards and preserve property values. Petitioner Norm Burnes was a member of this committee.
Arizona Department of Real Estate (Department)
The state agency authorized to receive and decide petitions for hearings from members of homeowners’ associations in Arizona.
Arizona Revised Statute (ARIZ. REV. STAT. or A.R.S.)
The codified laws of the State of Arizona. Specific statutes cited include § 33-1804 (regarding open meetings) and § 33-1805 (regarding association records).
Burden of Proof
The obligation on a party in a legal case to prove their allegations. In this proceeding, the Petitioners bore the burden of proving their claims by a preponderance of the evidence.
Covenants, Conditions, and Restrictions (CC&Rs)
The governing legal documents that set up the rules for a planned community. They form an enforceable contract between the HOA and each property owner.
Homeowners’ Association (HOA)
The organization that makes and enforces rules for a subdivision or planned community. In this case, the Saguaro Crest Homeowners Association, Inc. is the Respondent.
Offer of Proof
A presentation of evidence made to a judge to demonstrate the substance and relevance of evidence that a party seeks to introduce. The Petitioners’ offer of proof regarding new evidence was found to be unsatisfactory.
Office of Administrative Hearings (OAH)
An independent state agency that conducts evidentiary hearings for other state agencies. This matter was referred to the OAH by the Department of Real Estate.
Petitioners
The party that initiates a legal action or petition. In this case, Clifford and Maria Burnes are the Petitioners.
Preponderance of the Evidence
The standard of proof in most civil cases. It means that the evidence presented is sufficient to convince the trier of fact that a contention is more probably true than not.
Respondent
The party against whom a petition is filed. In this case, the Saguaro Crest Homeowners Association, Inc. is the Respondent.
Blog Post – 21F-H2120002-REL
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21F-H2120002-REL-RHG
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The provided text is a Final Administrative Law Judge Decision from the Office of Administrative Hearings in Arizona, detailing a dispute between petitioners Clifford and Maria Burnes and the Saguaro Crest Homeowners Association, Inc. The case involved four specific allegations of violations by the Association, including allowing unapproved construction on Lot 7, failing to collect a required construction deposit, conducting an unnoticed meeting, and failing to fulfill a records request. This document affirms an earlier decision, concluding that the Petitioners failed to sustain the burden of proof for the first three issues but succeeded on the fourth issue regarding the violation of Arizona law concerning records requests. Consequently, the Association was ordered to comply with the relevant statute, provide missing email attachments, and reimburse a portion of the Petitioners’ filing fee.
Case Participants
Petitioner Side
Clifford (Norm) S. Burnes(petitioner) Saguaro Crest subdivision property owner; ARC Member
Maria Burnes(petitioner) Saguaro Crest subdivision property owner
Jacob A. Kubert(attorney)
Cynthia F. Burnes(attorney)
Debora Brown(witness)
Respondent Side
John Crotty(attorney) Law Offices of Farley, Choate & Wood
Kelsea Dressen(attorney) Law Offices of Farley, Choate & Wood
Esmerelda Martinez(board president; witness) Saguaro Crest HOA Board of Directors President of the Board
Dave Madill(board member) Saguaro Crest HOA Board of Directors Vice President of the Board
Julie Stevens(board member) Saguaro Crest HOA Board of Directors Treasurer of the Board
Raul Martinez(property owner) Owner of Lot 7 and 13 Construction on his property (Lot 7) is subject of the dispute
Ramona Martinez(property owner) Owner of Lot 7
Neutral Parties
Jenna Clark(ALJ) Office of Administrative Hearings
Sadot Negreté(observer)
Judy Lowe(ADRE Commissioner) Arizona Department of Real Estate
Dan Gardener(ADRE contact) Arizona Department of Real Estate Also listed as DGardner
c. serrano(administrative staff) Office of Administrative Hearings
Other Participants
Jamie Argueta(ARC member; property seller) Saguaro Crest HOA Architectural Review Committee Sold Lots 7 and 13 to Martinez family
Joseph Martinez(ARC member) Saguaro Crest HOA Architectural Review Committee
Jesus Carranza(substitute ARC member) Saguaro Crest HOA Architectural Review Committee Substitute for Petitioner during Lot 7 discussion
The Administrative Law Judge concluded that the Association's conduct did not violate ARIZ. REV. STAT. § 33-1805 because the Petitioner did not prove by a preponderance of the evidence that the requested records were in existence and subject to disclosure.
Why this result: Petitioner failed to establish that the requested records (communications) were in existence and subject to disclosure.
Key Issues & Findings
Failing to fulfill Petitioner’s records request
Petitioner claimed the HOA failed to provide copies of all communications (written/electronic) related to information requests, open meeting law compliance, and changes to bylaws, arguing they were not exempt from disclosure under ARIZ. REV. STAT. § 33-1805(B). The HOA asserted no disclosable records existed.
Orders: Petitioner's petition and request for civil penalty are denied. Respondent shall not reimburse Petitioner's filing fee.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
ARIZ. REV. STAT. § 33-1805
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199.02(A)
Analytics Highlights
Topics: HOA Records Request, Records Disclosure, ARIZ. REV. STAT. 33-1805, Burden of Proof, Preponderance of Evidence
Additional Citations:
ARIZ. REV. STAT. § 33-1805
ARIZ. REV. STAT. § 32-2199 et al.
ARIZ. REV. STAT. § 32-2199.01
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 41-1092
Video Overview
Audio Overview
Decision Documents
21F-H2120006-REL Decision – 834142.pdf
Uploaded 2026-01-23T17:34:55 (147.6 KB)
Briefing Doc – 21F-H2120006-REL
Administrative Law Judge Decision: Kupel vs. Hidden Valley Association
Executive Summary
The Administrative Law Judge (ALJ) for the Arizona Office of Administrative Hearings denied a petition filed by homeowner Douglas E. Kupel against the Hidden Valley Association (HVA). The core of the dispute was Kupel’s allegation that HVA violated Arizona statute ARIZ. REV. STAT. § 33-1805 by failing to completely fulfill a comprehensive records request. While HVA provided its records retention policy and legal invoices, it withheld two categories of electronic and hard copy communications, claiming no such disclosable records existed.
Kupel argued that statements made in emails by HVA Board President Gary Freed—specifically that certain communications would be “filed as an HVA business record”—proved the existence of the requested records. HVA countered that this statement was a mistake on Freed’s part, resulting from an initial misunderstanding of retention requirements, and that no records subject to disclosure actually existed.
The ALJ ultimately concluded that Kupel failed to meet the “preponderance of the evidence” standard required to prove his claim. The judge found that the evidence presented was not sufficient to prove that the requested records existed and were being improperly withheld. Consequently, the petition was denied, and Kupel’s requests for reimbursement of his filing fee and the imposition of a civil penalty against HVA were also denied.
Case Overview
Case Name
Douglas E Kupel, Petitioner, vs. Hidden Valley Association, Respondent
Case Number
21F-H2120006-REL
Jurisdiction
Arizona Office of Administrative Hearings (OAH)
Presiding Judge
Administrative Law Judge Adam D. Stone
Hearing Date
October 22, 2020
Decision Date
October 30, 2020
Key Parties
Douglas E. Kupel (Petitioner), Hidden Valley Association (Respondent), Gary Freed (HVA Board President)
Core Dispute: The Records Request
The central issue of the hearing was whether the Hidden Valley Association violated ARIZ. REV. STAT. § 33-1805 by failing to fully comply with a records request submitted by Kupel on June 22, 2020. HVA, through its community manager HOAMCO, provided a partial response on July 1, 2020.
Breakdown of the Records Request:
• Request 1 (Fulfilled): A copy of the HVA records retention policy adopted on January 15, 2020.
• Request 2 (Denied): Copies of all communications (email and hard copy) to or from current and former HVA Board and committee members regarding “information requests or open meeting law compliance” from July 2019 to the present.
• Request 3 (Denied): Copies of all communications (email and hard copy) to or from current and former HVA Board and committee members regarding any proposed, discussed, or adopted changes to the Association bylaws from January 2019 to the present.
• Request 4 (Fulfilled): Copies of invoices, billing statements, and payment records for legal services associated with revisions to the Association bylaws from January 2019 to the present.
HVA and its President, Gary Freed, asserted that the denied communications were not subject to disclosure under the exceptions outlined in ARIZ. REV. STAT. § 33-1805(B).
Petitioner’s Position and Evidence (Douglas E. Kupel)
• Allegation: Kupel accused HVA of willfully failing to fulfill his request, alleging that non-exempt records did exist and should have been disclosed.
• Primary Evidence: Kupel submitted several email messages from HVA President Gary Freed which contained the statement: “This communication has been received, and will be filed as an HVA business record in the files maintained by HOAMCO for the benefit of HVA” or substantially similar language.
• Argument: Kupel testified that these emails proved the existence of communications that did not meet the statutory exclusions and, therefore, HVA had failed to fully respond to his request.
• Requested Relief:
1. An order compelling HVA to abide by ARIZ. REV. STAT. § 33-1805.
2. Reimbursement of the $500 filing fee.
3. The levying of a civil penalty against HVA.
Respondent’s Position and Evidence (Hidden Valley Association)
• Witness Testimony: HVA Board President Gary Freed testified on behalf of the association.
• Core Defense: Freed testified that based on HVA’s records retention policy and his understanding of open meeting laws, “no records existed which were subject to disclosure.”
• Explanation of Contested Emails: Freed explained that his prior email statements about filing all communications were a mistake. He testified that he initially believed all communications needed to be retained but later learned this was incorrect.
• Search Process: Freed admitted that neither he nor other board members conducted a one-by-one search of every single email. However, he testified that he “may have scanned his personal e-mail” and did not dismiss the petitioner’s request “out-of-hand.”
• Association Practices: Freed asserted that HVA business was conducted via open meetings, with the exception of a single emergency situation, implying that no discoverable email correspondence regarding official business would exist.
Administrative Law Judge’s Analysis and Conclusion
The ALJ’s decision rested on the legal standard of “preponderance of the evidence,” defined as proof convincing the trier of fact that a contention is more probably true than not. The petitioner, Kupel, bore the burden of meeting this standard.
• Evaluation of Evidence: The judge found Kupel’s primary argument unpersuasive. The decision states, “Essentially, Petitioner is claiming that there must be other records in existence because of the language that Mr. Freed used… This is not persuasive as there was no evidence presented by Petitioner to prove that the records were in existence.”
• Credibility of Testimony: The judge gave weight to Freed’s testimony that he had been mistaken about record-keeping protocols. The decision also noted that HVA’s official records retention policy, adopted six months prior to the request, specifically outlined which communications were to be kept.
• Lack of Proof: The judge concluded that Freed believed any documents that might have existed were subject to statutory exemptions and that all relevant business was conducted in open meetings. Ultimately, Kupel failed to provide sufficient proof that discoverable records actually existed.
• Final Ruling: The ALJ concluded that “the Association’s conduct, as outlined above, did not violate the charged provisions of ARIZ. REV. STAT. § 33-1805.”
Final Order
Based on the findings of fact and conclusions of law, the Administrative Law Judge issued the following orders:
Outcome
Petitioner’s Petition
Denied
Request for Civil Penalty
Denied
Reimbursement of Filing Fee
Denied (Respondent shall not reimburse Petitioner’s fee)
The decision is binding on the parties unless a request for rehearing is filed with the Commissioner of the Arizona Department of Real Estate within thirty days of the order’s service.
Study Guide – 21F-H2120006-REL
Study Guide: Kupel v. Hidden Valley Association, No. 21F-H2120006-REL
This study guide provides a review of the administrative hearing decision in the matter of Douglas E. Kupel versus the Hidden Valley Association. It includes a quiz with an answer key to test comprehension of the facts, a set of essay questions for deeper analysis, and a glossary of key terms.
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Quiz: Short-Answer Questions
Answer the following questions in 2-3 sentences based on the provided source document.
1. Who were the primary parties involved in this hearing, and what were their respective roles?
2. What was the specific violation alleged by the Petitioner in his petition to the Department of Real Estate?
3. What four categories of records did the Petitioner request from the Hidden Valley Association (HVA) on June 22, 2020?
4. Which parts of the Petitioner’s records request did the HVA fulfill, and which parts did it deny?
5. What was the Petitioner’s central piece of evidence to argue that the HVA was improperly withholding existing communications?
6. How did HVA Board President Gary Freed explain the discrepancy between his email statements and the association’s refusal to provide the requested communications?
7. What is the “preponderance of the evidence” standard, and which party was required to meet this standard?
8. According to Mr. Freed’s testimony, where was all official HVA business conducted?
9. What was the Administrative Law Judge’s final conclusion regarding the HVA’s conduct in this matter?
10. What three specific outcomes were mandated by the final ORDER issued on October 30, 2020?
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Answer Key
1. The primary parties were the Petitioner, Douglas E. Kupel, a property owner and member of the Hidden Valley Association, and the Respondent, the Hidden Valley Association (HVA). The Petitioner brought the complaint against the Respondent, alleging a violation of state law.
2. The Petitioner alleged that the Hidden Valley Association violated ARIZ. REV. STAT. § 33-1805 by failing to completely fulfill his records request. Specifically, he claimed the association improperly withheld communications records.
3. The Petitioner requested: (1) the records retention policy; (2) communications regarding information requests or open meeting law compliance; (3) communications regarding proposed changes to the association bylaws; and (4) legal invoices and payment records related to bylaw revisions.
4. The HVA fulfilled the request for the records retention policy and the legal invoices. It denied the two requests for communications between board and committee members, claiming the requested records were not subject to disclosure.
5. The Petitioner’s central evidence consisted of several emails from HVA Board President Gary Freed in which Mr. Freed stated, “[t]his communication has been received, and will be filed as an HVA business record.” The Petitioner argued this proved that such communications existed and were official records.
6. Mr. Freed testified that he was initially mistaken in his belief that all communications needed to be retained and that this was why he included that language in his emails. He clarified that based on the HVA’s records retention policy and open meeting laws, no disclosable records of the type requested existed.
7. “Preponderance of the evidence” is the standard of proof requiring the evidence to convince the trier of fact that a contention is more probably true than not. The Petitioner, Douglas E. Kupel, bore the burden of proving his case by this standard.
8. Mr. Freed testified that all HVA business was conducted via open meetings. He stated that there were no meetings conducted solely by email, with the exception of a single emergency situation.
9. The Administrative Law Judge concluded that the Petitioner failed to establish by a preponderance of the evidence that the HVA was in violation of ARIZ. REV. STAT. § 33-1805. The judge found the HVA’s conduct did not violate the charged statute.
10. The final ORDER (1) denied the Petitioner’s petition, (2) denied the Petitioner’s request for a civil penalty against the Respondent, and (3) ordered that the Respondent shall not be required to reimburse the Petitioner’s $500.00 filing fee.
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Essay Questions
The following questions are designed for in-depth analysis and discussion. Answers are not provided.
1. Analyze the legal arguments presented by both the Petitioner, Douglas E. Kupel, and the Respondent, Hidden Valley Association. How did each party use the evidence and ARIZ. REV. STAT. § 33-1805 to support their position?
2. Discuss the significance of the “preponderance of the evidence” standard in this case. Explain how the Administrative Law Judge determined that the Petitioner failed to meet this burden of proof.
3. Evaluate the testimony of HVA Board President Gary Freed. How did his explanations regarding his email statements and the association’s record-keeping practices influence the judge’s final decision?
4. Examine ARIZ. REV. STAT. § 33-1805(B), which outlines the exceptions for withholding records. Based on the case details, explain why the communications requested by the Petitioner were ultimately deemed non-disclosable or non-existent under this statute.
5. Describe the complete procedural history of the case, from the initial filing of the petition to the final order. Include key dates, entities involved (such as the Department of Real Estate and the Office of Administrative Hearings), and the final remedies sought by the Petitioner versus the actual outcome.
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An official who presides over administrative hearings and makes decisions on behalf of a government agency. In this case, the ALJ was Adam D. Stone.
ARIZ. REV. STAT. § 33-1805
The Arizona Revised Statute that governs the examination and disclosure of a homeowners’ association’s financial and other records by its members. It outlines the process for requests, a ten-business-day fulfillment window, and specific exemptions allowing an association to withhold certain records.
ARIZ. REV. STAT. § 32-2199.01(A)
The Arizona Revised Statute cited by the Petitioner that allows an administrative law judge to levy a civil penalty against a party found to be in violation of the law.
Burden of Proof
The obligation on a party in a legal case to provide sufficient evidence to prove their allegations. In this case, the Petitioner bore the burden of proof.
Covenants, Conditions, and Restrictions (CC&Rs)
The official governing documents that establish the rules and obligations for a homeowners’ association and its members.
Department of Real Estate (“Department”)
The Arizona state agency authorized to receive and decide petitions for hearings involving disputes between homeowners and their associations.
Hidden Valley Association (HVA)
The Respondent in the case; a homeowners’ association for the Hidden Valley Ranch subdivision in Prescott, Arizona, governed by CC&Rs and a Board of Directors.
HOAMCO
The company that served as the Community Manager for the Hidden Valley Association and initially responded to the Petitioner’s records request.
Office of Administrative Hearings (OAH)
An independent state agency in Arizona to which the Department of Real Estate referred this matter for an evidentiary hearing.
Petitioner
The party who files a petition to initiate a legal proceeding. In this case, the Petitioner was Douglas E. Kupel, a homeowner and member of the HVA.
Preponderance of the Evidence
The standard of proof required in this hearing. It is defined as evidence that is sufficient to incline a fair and impartial mind to one side of the issue rather than the other, making the contention more probably true than not.
Respondent
The party against whom a petition is filed and who is required to respond to the allegations. In this case, the Respondent was the Hidden Valley Association.
Blog Post – 21F-H2120006-REL
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The provided text is an Administrative Law Judge Decision from the Office of Administrative Hearings in Arizona, concerning a dispute between Petitioner Douglas E. Kupel and the Hidden Valley Association (HVA), a homeowners’ association. The core issue of the hearing, held on October 22, 2020, was whether the HVA violated ARIZ. REV. STAT. § 33-1805 by failing to fulfill Kupel’s records request for communications regarding open meeting law compliance and bylaw changes. Petitioner Kupel argued that undisclosed records existed based on emails sent by HVA Board President Gary Freed, while Freed testified that no disclosable records existed due to statutory exceptions and a mistaken belief about record retention. Ultimately, the Administrative Law Judge denied the Petitioner’s claim, concluding that Kupel failed to prove by a preponderance of the evidence that the Association violated the statute, thereby also denying his request for reimbursement and civil penalties.
What are the legal requirements governing homeowner association record disclosure in Arizona?
What was the core dispute between the petitioner and the homeowner association?
How did the Administrative Law Judge decide the outcome of this specific case?
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Case Participants
Petitioner Side
Douglas E. Kupel(petitioner) Appeared on his own behalf
Respondent Side
Timothy Butterfield(HOA attorney) Hidden Valley Association Represented Respondent
Gary Freed(board member) Hidden Valley Association Hidden Valley Ranch Association Board President and witness for HVA
Mark K. Sahl(HOA attorney) CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP Received service of the Order
Neutral Parties
Adam D. Stone(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate Recipient of the Administrative Law Judge Decision
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
20F-H2019032-REL-RHG
Agency
ADRE
Tribunal
OAH
Decision Date
2020-08-11
Administrative Law Judge
Thomas Shedden
Outcome
loss
Filing Fees Refunded
$500.00
Civil Penalties
$0.00
Parties & Counsel
Petitioner
John R Ashley
Counsel
—
Respondent
Rancho Reyes II Community Association, Inc.
Counsel
Wendy Erlich
Alleged Violations
Bylaws Article III, Section 4
Outcome Summary
The ALJ dismissed the petition upon rehearing, finding that the Petitioner failed to prove by a preponderance of the evidence that Respondent violated Bylaws Article III, Section 4, because that provision is unambiguous and applies only to member quorums, not requiring a quorum of Board members at membership meetings.
Why this result: Petitioner failed to carry the burden of proof. The Bylaws were interpreted as a contract whose unambiguous terms (Article III, Section 4) do not support the Petitioner's claim regarding Board quorum at member meetings.
Key Issues & Findings
Failure to establish a quorum of Board members at membership meetings
Petitioner alleged Respondent violated Bylaws Article III, Section 4 by conducting member-meetings without a quorum of Board members present. The ALJ concluded the cited Bylaw provision was unambiguous and imposed no such requirement, only defining a quorum as 1/10th of the membership votes for action at a member meeting.
Orders: The Administrative Law Judge dismissed the petition following the rehearing, concluding the Petitioner had not shown the Respondent violated the cited Bylaws provision.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
McNally v. Sun Lakes Homeowners Ass’n #1, Inc., 241 Ariz. 1, 382 P.3d 1216 (2016 App.)
Grubb & Ellis Management Services, Inc. v. 407417 B.C., L.L.C., 213 Ariz. 83, 138 P.3d 1210 (App. 2006)
Rowland v. Union Hills Country Club, 157 Ariz. 301, 757 P.2d 105 (1988 App.)
Briefing Document: Ashley v. Rancho Reyes II Community Association, Inc.
Executive Summary
This document synthesizes the key facts, arguments, and legal rulings in the administrative case of John R Ashley v. Rancho Reyes II Community Association, Inc. (No. 20F-H2019032-REL). The central issue revolved around Petitioner John R. Ashley’s allegation that the Respondent, his homeowners’ association, violated its bylaws by conducting member meetings without a quorum of its Board of Directors present.
The Administrative Law Judge (ALJ) ultimately dismissed the petition, a decision that was upheld after a full rehearing. The core of the ruling rested on a plain-text interpretation of the association’s bylaws. The ALJ found that Bylaws Article III, Section 4 unambiguously defines a quorum for member meetings as one-tenth (1/10th) of the general membership, with no requirement for a Board quorum. The separate requirements for a Board quorum are distinctly located in Article VI, which governs meetings of the Directors.
The Petitioner’s arguments—that the Board constituted a separate “class of member” requiring a quorum and that Robert’s Rules of Order should apply—were found to be unsubstantiated by evidence. The ALJ concluded that the Petitioner failed to meet his burden of proof, and the Respondent association was deemed the prevailing party in the matter.
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Case Background and Procedural History
Parties Involved
Entity / Individual
Petitioner
John R. Ashley
Respondent
Rancho Reyes II Community Association, Inc.
Attorney for Respondent
Wendy Erlich, Esq.
Tribunal
Arizona Office of Administrative Hearings (OAH)
Presiding Judge
Thomas Shedden, Administrative Law Judge
Oversight Agency
Arizona Department of Real Estate
Core Allegation
The petitioner, John R. Ashley, filed a single-issue petition on or around December 9, 2019. He alleged that the Rancho Reyes II Community Association, Inc. violated its bylaws, specifically Article III, Section 4, by failing to establish a quorum of its Board of Directors at the annual membership meetings held in December 2017 and December 2018.
Procedural Timeline
• c. December 9, 2019: John R. Ashley files a petition with the Arizona Department of Real Estate.
• February 10, 2020: The Respondent files a Motion to Dismiss Petition, arguing that the cited bylaw does not require a Board quorum at member meetings.
• February 18, 2020: Mr. Ashley files a notice confirming his single issue is the alleged violation of Article III, Section 4.
• March 3, 2020: The ALJ, Thomas Shedden, grants the Respondent’s Motion to Dismiss. The hearing scheduled for March 16, 2020 is vacated.
• March 10, 2020: Mr. Ashley files a Request for Rehearing with the Department of Real Estate.
• March 27, 2020: The Department of Real Estate issues an Order Granting Rehearing.
• July 28, 2020: A full rehearing is conducted at the OAH. Mr. Ashley testifies on his own behalf; the Respondent is represented by counsel but presents no witnesses.
• August 11, 2020: The ALJ issues a final decision after the rehearing, once again dismissing Mr. Ashley’s petition.
Analysis of the Central Dispute: Bylaw Interpretation
The case hinged entirely on the interpretation of the quorum requirements as defined in the association’s bylaws. The Petitioner and Respondent presented conflicting views on the applicability of these rules to member meetings versus director meetings.
Petitioner’s Position (John R. Ashley)
• Primary Argument: Mr. Ashley asserted that Article III, Section 4 required a quorum of the Board of Directors to be present at all meetings of the general membership.
• “Board Membership Class” Theory: He argued that the Board of Directors constituted a third “class of member” alongside homeowners and the original developers. Under this theory, this “class” would need its own quorum at member meetings. The ALJ found no substantial evidence to support the existence of this class in the bylaws.
• Reliance on Robert’s Rules of Order: Mr. Ashley referenced Robert’s Rules of Order to support his position. However, he presented no evidence to show that these rules were incorporated into the association’s Articles of Incorporation, Declaration, or Bylaws, making them inapplicable under the tribunal’s statutory authority.
Respondent’s Position (Rancho Reyes II Community Association, Inc.)
• Plain Text Interpretation: The Respondent argued that Article III, Section 4 is unambiguous and applies solely to the quorum requirements for the general membership, not the Board of Directors.
• Distinct Quorum Rules: The association contended that the bylaws clearly separate the rules for member meetings (Article III) from the rules for director meetings (Article VI). Article VI, Section 3 explicitly sets the quorum for the transaction of business by the Board of Directors.
Controlling Bylaw Provisions
Article
Pertinent Text / Description
Article III, Section 4
Meetings of Members; Quorum
“The presence at the meeting of Members entitled to cast, or of proxies entitled to cast, one-tenth (1/10th) of the votes of each class of membership will constitute a quorum for any action except as otherwise provided…”
Article VI, Section 3
Meetings of Directors; Quorum
Sets out the quorum requirements specifically for Board of Director meetings, showing that a majority of Directors constitutes a quorum for the transaction of business.
Administrative Law Judge’s Findings and Rulings
The ALJ’s decisions, both in the initial dismissal and the final order after rehearing, were consistent and based on established principles of contract law and the evidence presented.
Initial Dismissal (March 3, 2020)
In the initial order, the ALJ granted the Respondent’s Motion to Dismiss based on a direct reading of the bylaws. The ruling stated:
• The bylaws are a contract between the parties.
• The terms of Article III, Section 4 are unambiguous and contain “no requirement for a quorum of Board members to be present at a meeting of the membership.”
• Because the bylaw does not contain the requirement alleged by Mr. Ashley, a violation could not have occurred.
Rehearing Decision (August 11, 2020)
The rehearing allowed for a more extensive review but ultimately affirmed the initial conclusion. The ALJ made several key Conclusions of Law:
• Burden of Proof: Mr. Ashley, as the petitioner, bore the burden of proving his case by a preponderance of the evidence.
• Bylaws as Contract: Citing legal precedent (McNally v. Sun Lakes Homeowners Ass’n #1, Inc.), the decision reiterated that bylaws function as a binding contract.
• Unambiguous Terms: The tribunal is required to give effect to the unambiguous terms of a contract. Article III, Section 4 was found to be clear and unambiguous in its meaning.
• Lack of Evidence: Mr. Ashley failed to present substantial evidence for his key claims:
◦ He did not show that Robert’s Rules of Order were applicable to the matter.
◦ He did not show that the bylaws included a “Board membership class.”
• Final Conclusion: Because Article III, Section 4 does not require a quorum of Board members at a member meeting, Mr. Ashley failed to prove by a preponderance of the evidence that the Respondent had violated it.
Final Order and Implications
Based on the findings from the rehearing, the Administrative Law Judge issued a final, binding order on August 11, 2020.
• Order: “IT IS ORDERED that Petitioner John R. Ashley’s petition is dismissed.”
• Prevailing Party: The Respondent, Rancho Reyes II Community Association, Inc., was deemed the prevailing party in the matter.
• Appeal Rights: The order noted that, as a decision resulting from a rehearing, it is binding on the parties. Any further appeal must be sought through judicial review by filing with the superior court within thirty-five days from the date of service, as prescribed by Arizona Revised Statutes.
Study Guide – 20F-H2019032-REL-RHG
Study Guide: Case No. 20F-H2019032-REL
This guide is designed to review the key facts, legal arguments, and procedural history of the administrative case involving John R. Ashley and the Rancho Reyes II Community Association, Inc.
Short-Answer Quiz
Instructions: Answer the following questions in two to three sentences, using only the information provided in the source documents.
1. Who were the Petitioner and Respondent in case No. 20F-H2019032-REL, and what was the primary institution hearing the case?
2. What was the central allegation made by John R. Ashley in his initial petition filed on December 9, 2019?
3. According to the provided documents, what did Bylaws Article III, Section 4 actually require to establish a quorum for a meeting of the members?
4. On what grounds did the Respondent, Rancho Reyes II Community Association, Inc., file its Motion to Dismiss?
5. What was the initial outcome of Mr. Ashley’s petition, as decided in the Administrative Law Judge Decision dated March 3, 2020?
6. Upon what legal standard did the Administrative Law Judge state that bylaws should be interpreted, and what two court cases were cited to support this principle?
7. During the rehearing, Mr. Ashley introduced an argument about different “classes of membership.” What was this argument, and why was it rejected?
8. What role did Robert’s Rules of Order play in Mr. Ashley’s arguments, and what was the tribunal’s official position on construing these rules?
9. What is the standard of proof required in this matter, and which party bore the burden of meeting it?
10. What was the final order issued on August 11, 2020, and what was the specified recourse for a party wishing to appeal it?
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Answer Key
1. The Petitioner was John R. Ashley, and the Respondent was Rancho Reyes II Community Association, Inc. The case was heard in the State of Arizona’s Office of Administrative Hearings (OAH).
2. Mr. Ashley’s central allegation was that the Respondent violated its own Bylaws, specifically Article III, Section 4, by conducting member meetings in December 2017 and December 2018 without a quorum of Board members present.
3. Bylaws Article III, Section 4 required the presence of members or proxies entitled to cast one-tenth (1/10th) of the votes of each class of membership. It contained no provision requiring a quorum of the Board of Directors to be present at a member meeting.
4. The Respondent filed its Motion to Dismiss on the grounds that the petition should be dismissed because Article III, Section 4 of the Bylaws is unambiguous and does not require a quorum of Board members to be present for a meeting of the members.
5. The Administrative Law Judge granted the Respondent’s Motion to Dismiss in an order dated March 3, 2020. Mr. Ashley’s petition was dismissed, and the hearing scheduled for March 16, 2020, was vacated.
6. The judge stated that the Bylaws are a contract between the parties, and unambiguous terms must be given effect. The cases cited were McNally v. Sun Lakes Homeowners Ass’n #1, Inc. and Grubb & Ellis Management Services, Inc. v. 407417 B.C., L.L.C.
7. Mr. Ashley argued that a “Board membership class” existed and that Article III, Section 4 required a quorum of this class. The argument was rejected because he presented no substantial evidence that the Bylaws included such a class.
8. Mr. Ashley argued that Robert’s Rules of Order supported his position. The tribunal determined that construing these rules was not within the scope of its authority and noted that Mr. Ashley failed to provide evidence showing the rules were part of the association’s governing documents.
9. The standard of proof was a “preponderance of the evidence.” The Petitioner, Mr. Ashley, bore the burden of proof on all issues in the matter.
10. The final order, issued after the rehearing, was that Mr. Ashley’s petition was dismissed and the Respondent was deemed the prevailing party. A party wishing to appeal the order was required to seek judicial review with the superior court within thirty-five days from the date the order was served.
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Essay Questions
Instructions: The following questions are designed to test a deeper, synthesized understanding of the case. Formulate comprehensive responses based on the details in the source documents.
1. Discuss the legal reasoning used by the Administrative Law Judge to dismiss the petition, referencing the specific bylaws (Article III, Section 4 and Article VI, Section 3) and legal precedents cited in the decision.
2. Analyze the evolution of John R. Ashley’s arguments from his initial petition to the rehearing. How did his claims change, and why were they ultimately unsuccessful according to the final decision?
3. Explain the distinction between a quorum for a “Meeting of Members” and a “Meeting of Directors” as outlined in the Rancho Reyes II Community Association’s Bylaws. How was this distinction central to the case’s outcome?
4. Describe the procedural timeline of the case from the initial filing on December 9, 2019, to the final order after rehearing on August 11, 2020. What were the key procedural steps and decisions made by the Office of Administrative Hearings and the Department of Real Estate?
5. Based on the legal standards cited in the decision, explain the concepts of “burden of proof” and “preponderance of the evidence.” How did these standards apply to Mr. Ashley’s case and contribute to its dismissal?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An official who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions, such as Thomas Shedden in this case.
Burden of Proof
The obligation of a party in a legal case to provide sufficient evidence to support their claim. In this matter, the burden of proof was on the Petitioner, John R. Ashley.
Bylaws
A set of rules governing the internal management of an organization, such as a homeowners association. In this case, they are treated as a binding contract between the association and its members.
Department of Real Estate
The Arizona state agency that has authority over planned communities and homeowner associations, and which granted Mr. Ashley’s request for a rehearing.
Judicial Review
The process by which a party can appeal a decision from an administrative agency (like the OAH) to a court of law (the superior court).
Motion to Dismiss
A formal request filed by a party asking for a case to be dismissed. In this matter, the Respondent filed one arguing that the petitioner’s claim had no legal basis under the Bylaws.
Office of Administrative Hearings (OAH)
The state agency that conducts impartial hearings for other state agencies. The OAH is located at 1740 West Adams Street, Phoenix, Arizona.
Petitioner
The party who initiates a legal action or petition. In this case, John R. Ashley.
Preponderance of the Evidence
The standard of proof in this case, 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 a legal dispute. The Respondent was deemed the prevailing party in the final order.
Quorum
The minimum number of members of an assembly or society that must be present at any of its meetings to make the proceedings of that meeting valid.
Rehearing
A second hearing of a case, granted in this matter by the Department of Real Estate after the initial petition was dismissed.
Respondent
The party against whom a petition is filed. In this case, Rancho Reyes II Community Association, Inc.
Blog Post – 20F-H2019032-REL-RHG
4 Surprising Legal Lessons from One Man’s Fight With His Homeowners Association
Introduction: The Rules We All Live By
If you live in a planned community, condominium, or cooperative, you live by a set of rules. For the most part, we assume these governing documents—like the bylaws of a Homeowners Association (HOA)—are straightforward. We pay our dues, keep our lawns tidy, and expect the association to manage the common areas.
But what happens when there’s a disagreement over what those rules actually mean? Disputes can arise from simple misunderstandings, and the consequences can be more complex than anyone anticipates.
A close look at a real administrative case, the dispute between John R. Ashley and the Rancho Reyes II Community Association, reveals some surprisingly impactful lessons about how community rules are interpreted in a legal setting. His fight provides a playbook of critical legal principles, revealing how the literal text of community documents can override common assumptions and even procedural standards.
The Takeaways
Here are the core lessons that emerged from the Administrative Law Judge’s decisions in the case.
The most fundamental principle guiding the judge’s decision was simple: an HOA’s bylaws are not just a set of community guidelines. They are a formal, legally binding contract between the association and its members. This concept was directly referenced from a previous case, McNally v. Sun Lakes Homeowners Ass’n #1, Inc.
This contractual nature means that the exact terms must be followed to the letter by both parties—the homeowners and the association’s board. This means that when a document’s language is unambiguous, a court will not consider outside evidence or ‘common sense’ understandings to alter its meaning. The words on the page are all that matters. The judge’s decision underscored this point with a powerful statement:
and the parties are required to comply with the terms of that contract.
A core legal principle is that when the terms of a contract are clear and unambiguous, they must be given their plain and ordinary meaning. You cannot add requirements that simply aren’t there.
Mr. Ashley’s entire case rested on his belief that a quorum of the Board of Directors was required to be present at member meetings. However, the Administrative Law Judge dismissed this argument by pointing directly to the text of the bylaws. Article III, Section 4, which governs member meetings, only required a quorum of “one-tenth (1/10th) of the votes of each class of membership.”
A separate section, Article VI, set the quorum requirements for Board meetings. The judge noted this clear distinction, stating that the tribunal is required to “give effect to those unambiguous terms.” This demonstrates a crucial principle of contract law: the structure of the document is part of its meaning. A requirement located under the ‘Meetings of Directors’ article cannot be unilaterally applied to the ‘Meetings of Members’ article.
In his petition, Mr. Ashley referenced Robert’s Rules of Order to support his position on meeting procedures. Many organizations use this manual as a standard for conducting business, and it’s often assumed to be a universal default.
However, the judge found this argument irrelevant. Why? Because Mr. Ashley “presented no evidence to show that Roberts Rules are part of the ‘Articles of Incorporation, the Declaration, or [the] Bylaws.'” The judge also noted that interpreting such external rules was not within the tribunal’s authority. This provides a critical lesson: external standards, no matter how common, only apply if an organization’s own governing documents explicitly adopt them.
Just as external rules can’t be imported without being explicitly adopted, internal rules cannot be invented out of thin air, as Mr. Ashley’s next argument demonstrated.
During a rehearing, Mr. Ashley presented a creative but ultimately unsuccessful argument. He claimed that the Board of Directors constituted a “third class of member” and, therefore, required its own separate quorum at member meetings according to the language in Article III, Section 4.
The Administrative Law Judge swiftly rejected this novel interpretation. The decision concluded that Mr. Ashley “did not present substantial evidence that the Bylaws include a ‘Board membership class.'” This final point reinforces the central theme: arguments must be grounded in the literal text of the contract (the bylaws). This underscores the ultimate lesson: the burden of proof was on Mr. Ashley to show his interpretations were supported by the text. His failure to do so, both in referencing Robert’s Rules and in proposing a new ‘Board membership class,’ was the foundation of the judge’s decision.
Conclusion: Read the Fine Print
The dismissal of John R. Ashley’s petition is a stark reminder for every homeowner living under association rules. In the world of community governance, good intentions, common practices, and creative interpretations take a back seat. Precision, clarity, and—above all—the literal text of the governing documents are paramount.
When was the last time you read the specific documents that govern your own community?
Case Participants
Petitioner Side
John R Ashley(petitioner) Appeared on his own behalf
Respondent Side
Wendy Erlich(respondent attorney) Wendy Erlich Attorney PLLC Represented Rancho Reyes II Community Association, Inc.
Neutral Parties
Thomas Shedden(ALJ) Office of Administrative Hearings
Judy Lowe(commissioner) Arizona Department of Real Estate
LDettorre(ADRE staff recipient) Arizona Department of Real Estate Recipient of final order transmission
AHansen(ADRE staff recipient) Arizona Department of Real Estate Recipient of final order transmission
djones(ADRE staff recipient) Arizona Department of Real Estate Recipient of final order transmission
DGardner(ADRE staff recipient) Arizona Department of Real Estate Recipient of final order transmission
ncano(ADRE staff recipient) Arizona Department of Real Estate Recipient of final order transmission
Other Participants
A. Leverette(clerical staff) Signed document transmission in initial order
The ALJ dismissed the petition upon rehearing, finding that the Petitioner failed to prove by a preponderance of the evidence that Respondent violated Bylaws Article III, Section 4, because that provision is unambiguous and applies only to member quorums, not requiring a quorum of Board members at membership meetings.
Why this result: Petitioner failed to carry the burden of proof. The Bylaws were interpreted as a contract whose unambiguous terms (Article III, Section 4) do not support the Petitioner's claim regarding Board quorum at member meetings.
Key Issues & Findings
Failure to establish a quorum of Board members at membership meetings
Petitioner alleged Respondent violated Bylaws Article III, Section 4 by conducting member-meetings without a quorum of Board members present. The ALJ concluded the cited Bylaw provision was unambiguous and imposed no such requirement, only defining a quorum as 1/10th of the membership votes for action at a member meeting.
Orders: The Administrative Law Judge dismissed the petition following the rehearing, concluding the Petitioner had not shown the Respondent violated the cited Bylaws provision.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
McNally v. Sun Lakes Homeowners Ass’n #1, Inc., 241 Ariz. 1, 382 P.3d 1216 (2016 App.)
Grubb & Ellis Management Services, Inc. v. 407417 B.C., L.L.C., 213 Ariz. 83, 138 P.3d 1210 (App. 2006)
Rowland v. Union Hills Country Club, 157 Ariz. 301, 757 P.2d 105 (1988 App.)
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
19F-H1918037-REL-RHG
Agency
ADRE
Tribunal
OAH
Decision Date
2019-09-12
Administrative Law Judge
Jenna Clark
Outcome
full
Filing Fees Refunded
$500.00
Civil Penalties
$500.00
Parties & Counsel
Petitioner
Tom Barrs
Counsel
Jonathan Dessaules, Esq.
Respondent
Desert Ranch Homeowners Association
Counsel
B. Austin Baillio
Alleged Violations
ARIZ. REV. STAT. § 33-1805
Outcome Summary
The Administrative Law Judge concluded that the Desert Ranch Homeowners Association violated ARIZ. REV. STAT. § 33-1805 by failing to fully comply with Tom Barrs' records request. The petition was granted, requiring the Association to reimburse the Petitioner's $500.00 filing fee and pay a $500.00 civil penalty.
Why this result: The Association failed to provide the full requested documentation (EDC actions, written requests, and approvals) within the deadline, providing only a summary table,. The Association's justification for non-compliance based on improper submission was rejected because the Petitioner had been directed by the Association to send requests to the EDC Chairman.
Key Issues & Findings
Whether Desert Ranch Homeowners Association (Respondent) violated A.R.S. § 33-1805 by failing to fulfill a records request.
Petitioner requested EDC records (submissions, requests, and approvals) for October 2017 through October 2018 on November 1, 2018,. The Association responded with only a summary table on November 18, 2018, which did not include the totality of the communications requested. The ALJ concluded that the Association's summary table provided was a violation of the statute,, especially since the Petitioner was not required to send the request to all Board members due to previous instructions.
Orders: Petitioner's petition was granted. Respondent was ordered to reimburse the $500.00 filing fee pursuant to ARIZ. REV. STAT. § 32-2199.01 and tender a $500.00 civil penalty to the Department pursuant to ARIZ. REV. STAT. § 32-2199.02(A),.
Briefing on Barrs v. Desert Ranch Homeowners Association
Executive Summary
This briefing synthesizes the legal proceedings and outcomes of case number 19F-H1918037-REL, a dispute between homeowner Tom Barrs (“Petitioner”) and the Desert Ranch Homeowners Association (“Respondent”). The core issue was the Association’s alleged violation of Arizona Revised Statutes (A.R.S.) § 33-1805 for failing to completely fulfill a records request submitted by the Petitioner on November 1, 2018.
An initial hearing on March 21, 2019, resulted in a decision in favor of the Association. Administrative Law Judge Jenna Clark found that the Petitioner had failed to properly submit his request to all members of the Association’s Board, and therefore the Association’s provision of a summary table did not constitute a statutory violation.
Following an appeal by the Petitioner, a rehearing was held on August 27, 2019. New evidence was introduced demonstrating that the Petitioner had previously been expressly instructed by the Association’s President to direct records requests specifically to the Environmental Design Committee (EDC) Chairman, Brian Schoeffler, a directive the Petitioner followed. Consequently, Judge Clark reversed the initial decision, concluding that the request was properly submitted and the Association’s failure to provide the full records—offering only a summary table—was a clear violation of A.R.S. § 33-1805. The final order granted the Petitioner’s petition, ordered the reimbursement of his $500 filing fee, and levied a $500 civil penalty against the Association.
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Case Overview
Parties Involved
Name/Entity
Key Individuals
Tom Barrs
Petitioner, Homeowner
Represented himself initially; later by Jonathan Dessaules, Esq.
Desert Ranch Homeowners Assoc.
Respondent, HOA
Governed by CC&Rs and a Board of Directors.
Brian Schoeffler
Witness for Respondent
Chairman of the Environmental Design Committee (EDC).
Jenna Clark
Administrative Law Judge
Presided over both the initial hearing and the rehearing.
Catherine Overby
Association President
Appointed Schoeffler as Petitioner’s primary records contact.
Lori Loch-Lee
VP, Associated Asset Management (AAM)
Recipient of records request; AAM acted as the Association’s accounting firm.
Core Legal Issue
The central question adjudicated was whether the Desert Ranch Homeowners Association violated A.R.S. § 33-1805 by failing to fulfill a records request. This statute requires that an association’s records be made “reasonably available for examination” and that a request for copies be fulfilled within ten business days.
Timeline of Key Events
July 19, 2017
Association President Catherine Overby appoints EDC Director Brian Schoeffler as Petitioner’s primary records contact.
November 1, 2018
Petitioner emails a records request to Schoeffler, Overby, and Lori Loch-Lee.
November 18, 2018
The Association provides a summary table of EDC actions, not the full records requested.
December 17, 2018
Petitioner files a formal petition against the Association with the Arizona Department of Real Estate.
March 6, 2019
Petitioner follows up via email, specifying the exact communications and documents he is seeking.
March 11, 2019
Schoeffler responds, asserting the request was fulfilled and directing Petitioner to submit a new one.
March 21, 2019
The first evidentiary hearing is held at the Office of Administrative Hearings (OAH).
April 10, 2019
The initial ALJ Decision is issued, denying the petition.
June 10, 2019
Petitioner submits a successful appeal to the Department.
August 27, 2019
A rehearing is held at the OAH.
September 12, 2019
The final ALJ Decision is issued, reversing the prior decision and ruling in favor of the Petitioner.
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Initial Hearing and Decision (No. 19F-H1918037-REL)
Petitioner’s Position (Tom Barrs)
• On November 1, 2018, Barrs requested “a copy of all EDC actions, written requests, and written approvals from October 2017 through October 2018.”
• The Association’s response on November 18, 2018, was a “summary table listing of some, not all, EDC actions,” which did not include the totality of communications requested.
• Barrs argued the Association willfully failed to comply, citing a similar previous dispute that required OAH adjudication.
• The dispute was clarified to be about the completeness of the response, not its timeliness.
Respondent’s Position (Desert Ranch HOA)
• Represented by Brian Schoeffler, the HOA argued it had fully, though untimelily, complied with the request.
• The core of the defense was that the request was improperly submitted because Barrs only sent it to two of the four Board members.
• Schoeffler reasoned that the Association’s response was guided by a prior OAH decision in a similar case that had been returned in the Association’s favor.
• Schoeffler also stated that fulfilling the more detailed request from March 6, 2019, could be interpreted as an “admission of guilt,” which is why he asked for a new request.
Initial Findings and Order (April 10, 2019)
• Key Finding: The Administrative Law Judge (ALJ) concluded that the Petitioner failed to properly submit his records request to all members of the Association’s Board.
• Legal Conclusion: “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.”
• Order: The Petitioner’s petition was denied. His request for a civil penalty and reimbursement of his filing fee was also denied.
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Rehearing and Final Decision (No. 19F-H1918037-REL-RHG)
Basis for Rehearing
The Petitioner successfully appealed the initial decision, leading the Department of Real Estate to refer the matter back to the OAH for a new evidentiary hearing on the same issue.
New Evidence and Revised Testimony
• Petitioner’s New Evidence: Crucially, the Petitioner introduced evidence (Petitioner Exhibit 11) showing that on July 19, 2017, Association President Catherine Overby had appointed Brian Schoeffler as the Petitioner’s primary records request contact.
• Respondent’s Concession: The Association conceded that its governing documents do not require all Board members to be copied on records requests. It also conceded that its own bylaws regarding the submission of forms for records requests were not adhered to or enforced.
• Persistent Failure to Comply: It was established that as of the date of the rehearing (August 27, 2019), the Petitioner had still not received all of the documentation requested on November 1, 2018.
Final Findings and Order (September 12, 2019)
• Revised Key Finding: The ALJ found that the Petitioner’s request was not required to be sent to all Board members. Instead, the Petitioner had “expressly been instructed to only send his records requests to the Association’s EDC Chairman, Mr. Schoeffler, which he did.”
• Final Legal Conclusion: “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:
1. The Petitioner’s petition was granted.
2. The Respondent was ordered to reimburse the Petitioner’s $500.00 filing fee.
3. A civil penalty of $500.00 was levied against the Respondent, payable to the Department of Real Estate.
Key Judicial Quotes
On the Improper Submission Argument (First Decision): “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…”
On the Proper Submission Argument (Final Decision): “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.”
On the Violation (Final Decision): “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.”
Study Guide – 19F-H1918037-REL-RHG
Study Guide: Barrs v. Desert Ranch Homeowners Association
This study guide provides a comprehensive review of the administrative legal case Tom Barrs v. Desert Ranch Homeowners Association, Docket No. 19F-H1918037-REL. It covers the initial hearing, the subsequent rehearing, the key arguments, the relevant statutes, and the final outcome of the dispute. The case centers on a homeowner’s records request and the association’s legal obligations under Arizona state law.
Short-Answer Quiz
Instructions: Answer the following questions in two to three sentences, drawing all information from the provided case documents.
1. Who are the Petitioner and Respondent in this case, and what is their relationship?
2. What was the central legal issue presented for adjudication at the Office of Administrative Hearings?
3. What specific records did the Petitioner, Tom Barrs, request from the Association on November 1, 2018?
4. What was the Association’s initial response to the Petitioner’s records request, and when was it provided?
5. What was the outcome of the first hearing on March 21, 2019, as detailed in the decision issued on April 10, 2019?
6. Why did the Administrative Law Judge initially rule in favor of the Respondent?
7. What new evidence presented at the rehearing on August 27, 2019, proved critical to reversing the initial decision?
8. According to Arizona Revised Statute § 33-1805, what is the time frame for an association to fulfill a request for examination or copies of records?
9. What was the final outcome of the case after the rehearing, as ordered on September 12, 2019?
10. What specific penalties and reimbursements were levied against the Respondent in the final order?
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Answer Key
1. The Petitioner is Tom Barrs, a property owner in the Desert Ranch subdivision and a member of its homeowners’ association. The Respondent is the Desert Ranch Homeowners Association (“the Association”), the governing body for the subdivision.
2. The central issue was whether the Desert Ranch Homeowners Association violated Arizona Revised Statute (A.R.S.) § 33-1805 by failing to properly and completely fulfill a records request submitted by the Petitioner.
3. The Petitioner requested a copy of all Environmental Design Committee (EDC) actions, written requests, and written approvals from October 2017 through October 2018. He later clarified this included communications like letters, emails, and application forms related to specific EDC decisions.
4. On November 18, 2018, the Association provided the Petitioner with a summary table listing some EDC actions. This response did not include the full scope of communications and underlying documents that the Petitioner had requested.
5. Following the first hearing, the Administrative Law Judge denied the Petitioner’s petition. The judge ruled that the Association’s conduct did not violate A.R.S. § 33-1805, denied the request for a civil penalty, and ordered that the Association did not have to reimburse the Petitioner’s filing fee.
6. The judge initially ruled for the Respondent because the evidence suggested the Petitioner had failed to properly submit his request to all members of the Association’s Board. This procedural error was seen as the reason the Association’s response (the summary table) was not a violation of the statute.
7. At the rehearing, evidence was introduced showing that on July 19, 2017, the Association’s President had explicitly appointed Brian Schoeffler, the EDC Chairman, as the Petitioner’s primary records request contact. This demonstrated that the Petitioner was not required to send his request to all Board members and had followed prior instructions correctly.
8. A.R.S. § 33-1805 states that an association has ten business days to fulfill a request for examination of records. It also specifies that the association has ten business days to provide copies of requested records upon request.
9. After the rehearing, the Administrative Law Judge granted the Petitioner’s petition. The judge concluded that the Association’s conduct did violate A.R.S. § 33-1805 by providing only a summary table instead of the full records requested.
10. In the final order, the Respondent was ordered to reimburse the Petitioner’s $500.00 filing fee. Additionally, a civil penalty of $500.00 was levied against the Respondent, payable to the Arizona Department of Real Estate.
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Essay Questions
Instructions: The following questions are designed to test a deeper, more analytical understanding of the case. Formulate a detailed response for each, synthesizing facts and arguments presented in the source documents.
1. Compare and contrast the findings of fact and conclusions of law from the first hearing (April 10, 2019 decision) with those from the rehearing (September 12, 2019 decision). What specific evidence or legal reasoning led to the reversal of the initial order?
2. Analyze the arguments presented by both the Petitioner, Tom Barrs, and the Respondent’s representative, Brian Schoeffler. Discuss the strengths and weaknesses of each party’s position across both hearings.
3. Explain the role and significance of Arizona Revised Statute § 33-1805 in this case. How did the interpretation of the Association’s obligations under this statute differ between the initial ruling and the final ruling?
4. Trace the timeline of events from the initial records request on November 1, 2018, to the final order on September 12, 2019. Highlight the key communications and procedural steps that influenced the case’s progression and ultimate outcome.
5. Discuss the legal standard of “preponderance of the evidence” as it is defined in the case documents. How did the Petitioner successfully meet this burden of proof in the rehearing after failing to do so in the initial hearing?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An independent judge who presides over administrative hearings, reviews evidence, makes findings of fact and conclusions of law, and issues orders. In this case, the ALJ was Jenna Clark.
A.R.S. § 33-1805
The section of the Arizona Revised Statutes that governs the rights of homeowners’ association members to access association records. It mandates that records be made “reasonably available for examination” and establishes a ten-business-day deadline for associations to fulfill such requests.
Associated Asset Management (AAM)
The management company that served as the Association’s accounting firm. Petitioner was at one point instructed to direct requests to an AAM representative.
Board of Directors (the Board)
The group that oversees the Desert Ranch Homeowners Association. The dispute involved questions about whether a records request needed to be sent to all members of the Board.
Covenants, Conditions, and Restrictions (CC&Rs)
The governing documents for the Desert Ranch Homeowners Association.
Environmental Design Committee (EDC)
A committee within the Desert Ranch Homeowners Association, chaired by Brian Schoeffler. The records requested by the Petitioner pertained to the actions and decisions of this committee.
Office of Administrative Hearings (OAH)
An independent state agency in Arizona responsible for conducting evidentiary hearings for disputes referred by other state agencies, such as the Department of Real Estate.
Petitioner
The party who files a petition initiating a legal action. In this case, Tom Barrs.
Preponderance of the evidence
The burden of proof in this case. It is defined as “proof as convinces the trier of fact that the contention is more probably true than not” and represents the “greater weight of the evidence.”
Respondent
The party against whom a petition is filed. In this case, the Desert Ranch Homeowners Association.
Blog Post – 19F-H1918037-REL-RHG
He Fought His HOA Over Public Records and Lost. Then One Old Email Changed Everything.
1.0 Introduction: The Familiar Frustration of Fighting the System
Almost everyone has a story about the maddening frustration of dealing with a bureaucratic organization. The rules can seem arbitrary, the answers vague, and the entire process engineered to make you give up. For homeowners, that organization is often their Homeowners Association (HOA). This was precisely the situation for Tom Barrs, a homeowner in Scottsdale, Arizona, when he made what seemed like a simple request for records from his HOA, the Desert Ranch Homeowners Association. His straightforward request ignited a surprising legal battle, where an initial, demoralizing defeat in court was ultimately overturned by a single, crucial piece of evidence exhumed from the past.
2.0 Takeaway 1: The First Verdict Isn’t Always the Final Word
The dispute began with a formal records request. In November 2018, Tom Barrs asked to see documents related to the HOA’s Environmental Design Committee (EDC). His request was clear, specific, and cited the relevant state law:
“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 HOA refused to provide the records, and the case went before Administrative Law Judge Jenna Clark on March 21, 2019. The judge denied Mr. Barrs’s petition. The ruling was based on what seemed to be a fatal procedural error: the judge concluded that Mr. Barrs had failed to properly submit his request because he did not email it to all members of the Association’s Board.
Adding a potent dose of irony, the HOA’s representative at the hearing—Brian Schoeffler, the very EDC Chairman to whom Barrs had sent the request—successfully argued that a prior case meant Barrs “knew or should have known the requirements.” For many people, this initial loss, buttressed by the HOA weaponizing their past behavior against them, would have been the end of the road. But for Mr. Barrs, it was only the first chapter.
3.0 Takeaway 2: The Paper Trail is Your Most Powerful Weapon
Unwilling to accept the verdict, Mr. Barrs appealed and was granted a rehearing. The case was heard again before the very same judge, Jenna Clark. This time, however, Mr. Barrs had a new piece of evidence—a single, forgotten email that would force the judge to re-evaluate her own initial conclusion.
The case hinged on a communication from sixteen months prior. In July 2017, the Association’s President, Catherine Overby, had sent an email specifically appointing EDC Chairman Brian Schoeffler as Mr. Barrs’s “primary records request contact.”
This single document completely dismantled the HOA’s central argument. It proved that a specific, documented protocol existed that superseded any unwritten procedure the HOA later tried to enforce. Based on this prior instruction, Judge Clark’s new conclusion was decisive: Mr. Barrs was not required to send his request to the entire board. He had, in fact, followed the HOA’s own explicit directive perfectly. The HOA’s argument, built on chastising Mr. Barrs for not knowing the rules, crumbled under the weight of a rule they themselves had established and forgotten.
4.0 Takeaway 3: A “Summary” Isn’t the Same as “The Records”
Another key issue was the HOA’s attempt to control the information it released. Instead of providing the actual letters, emails, and applications Mr. Barrs had asked for, the HOA sent him a “summary table” of the EDC’s actions.
This defense initially worked. In the first ruling, Judge Clark concluded that because the request itself was improperly submitted, the summary table was not a violation of the statute. The HOA’s failure to provide the actual records was excused on a technicality.
But once the old email proved the request was valid, that technicality vanished and the summary table argument collapsed. In her final ruling, Judge Clark determined that providing a summary was a clear violation of Arizona law (ARIZ. REV. STAT. § 33-1805). The statute is unambiguous: records must be made “reasonably available for examination,” and copies must be provided upon request. The HOA’s attempt to substitute its interpretation of the records for the records themselves was not just unhelpful—it was illegal.
5.0 Takeaway 4: Resistance Can Be More Costly Than Compliance
The final, reversed decision was issued on September 12, 2019. Mr. Barrs’s petition was granted, and the HOA faced direct financial consequences for its stonewalling. The Desert Ranch HOA was ordered to:
• Reimburse Mr. Barrs’s $500.00 filing fee.
• Pay a separate $500.00 civil penalty to the Arizona Department of Real Estate.
For the price of a few photocopies, the HOA chose instead to pay for a protracted legal battle, a public loss, and $1,000 in fees and penalties—a steep cost for refusing transparency. The outcome is a stark reminder that an organization’s attempt to obstruct access to information can be far more damaging to its finances and reputation than simple compliance.
6.0 Conclusion: The Power of a Single Fact
The story of Tom Barrs’s dispute offers powerful, practical lessons for anyone facing a similar challenge. It highlights the importance of persistence, the legal weight of true transparency, and, above all, the critical power of documentation. One old email—one documented fact—was enough to level the playing field, force a judge to reverse her own decision, and ensure the rules were applied fairly. It leaves us with a compelling question to consider.
How might meticulous record-keeping change the outcome of a dispute in your own life?
Case Participants
Petitioner Side
Tom Barrs(petitioner/witness) Appeared on his own behalf initially; appeared as witness at rehearing
Jonathan Dessaules(attorney) Dessaules Law Group Appeared on behalf of Petitioner at rehearing
Respondent Side
Desert Ranch Homeowners Association(respondent)
Brian Schoeffler(EDC chairman/witness) Desert Ranch Homeowners Association Appeared on behalf of Respondent; Chairman of the Association’s EDC
Catherine Overby(HOA president) Desert Ranch Homeowners Association Association President; records request recipient
Lori Loch-Lee(VP Client Services) Associated Asset Management (AAM) Management company contact; records request recipient
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
19F-H1918037-REL-RHG
Agency
ADRE
Tribunal
OAH
Decision Date
2019-09-12
Administrative Law Judge
Jenna Clark
Outcome
full
Filing Fees Refunded
$500.00
Civil Penalties
$500.00
Parties & Counsel
Petitioner
Tom Barrs
Counsel
Jonathan A. Dessaules
Respondent
Desert Ranch Homeowners Association
Counsel
B. Austin Baillio
Alleged Violations
A.R.S. § 33-1805
Outcome Summary
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)).
Briefing on Barrs v. Desert Ranch Homeowners Association
Executive Summary
This briefing synthesizes the legal proceedings and outcomes of case number 19F-H1918037-REL, a dispute between homeowner Tom Barrs (“Petitioner”) and the Desert Ranch Homeowners Association (“Respondent”). The core issue was the Association’s alleged violation of Arizona Revised Statutes (A.R.S.) § 33-1805 for failing to completely fulfill a records request submitted by the Petitioner on November 1, 2018.
An initial hearing on March 21, 2019, resulted in a decision in favor of the Association. Administrative Law Judge Jenna Clark found that the Petitioner had failed to properly submit his request to all members of the Association’s Board, and therefore the Association’s provision of a summary table did not constitute a statutory violation.
Following an appeal by the Petitioner, a rehearing was held on August 27, 2019. New evidence was introduced demonstrating that the Petitioner had previously been expressly instructed by the Association’s President to direct records requests specifically to the Environmental Design Committee (EDC) Chairman, Brian Schoeffler, a directive the Petitioner followed. Consequently, Judge Clark reversed the initial decision, concluding that the request was properly submitted and the Association’s failure to provide the full records—offering only a summary table—was a clear violation of A.R.S. § 33-1805. The final order granted the Petitioner’s petition, ordered the reimbursement of his $500 filing fee, and levied a $500 civil penalty against the Association.
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Case Overview
Parties Involved
Name/Entity
Key Individuals
Tom Barrs
Petitioner, Homeowner
Represented himself initially; later by Jonathan Dessaules, Esq.
Desert Ranch Homeowners Assoc.
Respondent, HOA
Governed by CC&Rs and a Board of Directors.
Brian Schoeffler
Witness for Respondent
Chairman of the Environmental Design Committee (EDC).
Jenna Clark
Administrative Law Judge
Presided over both the initial hearing and the rehearing.
Catherine Overby
Association President
Appointed Schoeffler as Petitioner’s primary records contact.
Lori Loch-Lee
VP, Associated Asset Management (AAM)
Recipient of records request; AAM acted as the Association’s accounting firm.
Core Legal Issue
The central question adjudicated was whether the Desert Ranch Homeowners Association violated A.R.S. § 33-1805 by failing to fulfill a records request. This statute requires that an association’s records be made “reasonably available for examination” and that a request for copies be fulfilled within ten business days.
Timeline of Key Events
July 19, 2017
Association President Catherine Overby appoints EDC Director Brian Schoeffler as Petitioner’s primary records contact.
November 1, 2018
Petitioner emails a records request to Schoeffler, Overby, and Lori Loch-Lee.
November 18, 2018
The Association provides a summary table of EDC actions, not the full records requested.
December 17, 2018
Petitioner files a formal petition against the Association with the Arizona Department of Real Estate.
March 6, 2019
Petitioner follows up via email, specifying the exact communications and documents he is seeking.
March 11, 2019
Schoeffler responds, asserting the request was fulfilled and directing Petitioner to submit a new one.
March 21, 2019
The first evidentiary hearing is held at the Office of Administrative Hearings (OAH).
April 10, 2019
The initial ALJ Decision is issued, denying the petition.
June 10, 2019
Petitioner submits a successful appeal to the Department.
August 27, 2019
A rehearing is held at the OAH.
September 12, 2019
The final ALJ Decision is issued, reversing the prior decision and ruling in favor of the Petitioner.
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Initial Hearing and Decision (No. 19F-H1918037-REL)
Petitioner’s Position (Tom Barrs)
• On November 1, 2018, Barrs requested “a copy of all EDC actions, written requests, and written approvals from October 2017 through October 2018.”
• The Association’s response on November 18, 2018, was a “summary table listing of some, not all, EDC actions,” which did not include the totality of communications requested.
• Barrs argued the Association willfully failed to comply, citing a similar previous dispute that required OAH adjudication.
• The dispute was clarified to be about the completeness of the response, not its timeliness.
Respondent’s Position (Desert Ranch HOA)
• Represented by Brian Schoeffler, the HOA argued it had fully, though untimelily, complied with the request.
• The core of the defense was that the request was improperly submitted because Barrs only sent it to two of the four Board members.
• Schoeffler reasoned that the Association’s response was guided by a prior OAH decision in a similar case that had been returned in the Association’s favor.
• Schoeffler also stated that fulfilling the more detailed request from March 6, 2019, could be interpreted as an “admission of guilt,” which is why he asked for a new request.
Initial Findings and Order (April 10, 2019)
• Key Finding: The Administrative Law Judge (ALJ) concluded that the Petitioner failed to properly submit his records request to all members of the Association’s Board.
• Legal Conclusion: “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.”
• Order: The Petitioner’s petition was denied. His request for a civil penalty and reimbursement of his filing fee was also denied.
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Rehearing and Final Decision (No. 19F-H1918037-REL-RHG)
Basis for Rehearing
The Petitioner successfully appealed the initial decision, leading the Department of Real Estate to refer the matter back to the OAH for a new evidentiary hearing on the same issue.
New Evidence and Revised Testimony
• Petitioner’s New Evidence: Crucially, the Petitioner introduced evidence (Petitioner Exhibit 11) showing that on July 19, 2017, Association President Catherine Overby had appointed Brian Schoeffler as the Petitioner’s primary records request contact.
• Respondent’s Concession: The Association conceded that its governing documents do not require all Board members to be copied on records requests. It also conceded that its own bylaws regarding the submission of forms for records requests were not adhered to or enforced.
• Persistent Failure to Comply: It was established that as of the date of the rehearing (August 27, 2019), the Petitioner had still not received all of the documentation requested on November 1, 2018.
Final Findings and Order (September 12, 2019)
• Revised Key Finding: The ALJ found that the Petitioner’s request was not required to be sent to all Board members. Instead, the Petitioner had “expressly been instructed to only send his records requests to the Association’s EDC Chairman, Mr. Schoeffler, which he did.”
• Final Legal Conclusion: “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:
1. The Petitioner’s petition was granted.
2. The Respondent was ordered to reimburse the Petitioner’s $500.00 filing fee.
3. A civil penalty of $500.00 was levied against the Respondent, payable to the Department of Real Estate.
Key Judicial Quotes
On the Improper Submission Argument (First Decision): “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…”
On the Proper Submission Argument (Final Decision): “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.”
On the Violation (Final Decision): “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.”
Study Guide – 19F-H1918037-REL-RHG
Study Guide: Barrs v. Desert Ranch Homeowners Association
This study guide provides a comprehensive review of the administrative legal case Tom Barrs v. Desert Ranch Homeowners Association, Docket No. 19F-H1918037-REL. It covers the initial hearing, the subsequent rehearing, the key arguments, the relevant statutes, and the final outcome of the dispute. The case centers on a homeowner’s records request and the association’s legal obligations under Arizona state law.
Short-Answer Quiz
Instructions: Answer the following questions in two to three sentences, drawing all information from the provided case documents.
1. Who are the Petitioner and Respondent in this case, and what is their relationship?
2. What was the central legal issue presented for adjudication at the Office of Administrative Hearings?
3. What specific records did the Petitioner, Tom Barrs, request from the Association on November 1, 2018?
4. What was the Association’s initial response to the Petitioner’s records request, and when was it provided?
5. What was the outcome of the first hearing on March 21, 2019, as detailed in the decision issued on April 10, 2019?
6. Why did the Administrative Law Judge initially rule in favor of the Respondent?
7. What new evidence presented at the rehearing on August 27, 2019, proved critical to reversing the initial decision?
8. According to Arizona Revised Statute § 33-1805, what is the time frame for an association to fulfill a request for examination or copies of records?
9. What was the final outcome of the case after the rehearing, as ordered on September 12, 2019?
10. What specific penalties and reimbursements were levied against the Respondent in the final order?
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Answer Key
1. The Petitioner is Tom Barrs, a property owner in the Desert Ranch subdivision and a member of its homeowners’ association. The Respondent is the Desert Ranch Homeowners Association (“the Association”), the governing body for the subdivision.
2. The central issue was whether the Desert Ranch Homeowners Association violated Arizona Revised Statute (A.R.S.) § 33-1805 by failing to properly and completely fulfill a records request submitted by the Petitioner.
3. The Petitioner requested a copy of all Environmental Design Committee (EDC) actions, written requests, and written approvals from October 2017 through October 2018. He later clarified this included communications like letters, emails, and application forms related to specific EDC decisions.
4. On November 18, 2018, the Association provided the Petitioner with a summary table listing some EDC actions. This response did not include the full scope of communications and underlying documents that the Petitioner had requested.
5. Following the first hearing, the Administrative Law Judge denied the Petitioner’s petition. The judge ruled that the Association’s conduct did not violate A.R.S. § 33-1805, denied the request for a civil penalty, and ordered that the Association did not have to reimburse the Petitioner’s filing fee.
6. The judge initially ruled for the Respondent because the evidence suggested the Petitioner had failed to properly submit his request to all members of the Association’s Board. This procedural error was seen as the reason the Association’s response (the summary table) was not a violation of the statute.
7. At the rehearing, evidence was introduced showing that on July 19, 2017, the Association’s President had explicitly appointed Brian Schoeffler, the EDC Chairman, as the Petitioner’s primary records request contact. This demonstrated that the Petitioner was not required to send his request to all Board members and had followed prior instructions correctly.
8. A.R.S. § 33-1805 states that an association has ten business days to fulfill a request for examination of records. It also specifies that the association has ten business days to provide copies of requested records upon request.
9. After the rehearing, the Administrative Law Judge granted the Petitioner’s petition. The judge concluded that the Association’s conduct did violate A.R.S. § 33-1805 by providing only a summary table instead of the full records requested.
10. In the final order, the Respondent was ordered to reimburse the Petitioner’s $500.00 filing fee. Additionally, a civil penalty of $500.00 was levied against the Respondent, payable to the Arizona Department of Real Estate.
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Essay Questions
Instructions: The following questions are designed to test a deeper, more analytical understanding of the case. Formulate a detailed response for each, synthesizing facts and arguments presented in the source documents.
1. Compare and contrast the findings of fact and conclusions of law from the first hearing (April 10, 2019 decision) with those from the rehearing (September 12, 2019 decision). What specific evidence or legal reasoning led to the reversal of the initial order?
2. Analyze the arguments presented by both the Petitioner, Tom Barrs, and the Respondent’s representative, Brian Schoeffler. Discuss the strengths and weaknesses of each party’s position across both hearings.
3. Explain the role and significance of Arizona Revised Statute § 33-1805 in this case. How did the interpretation of the Association’s obligations under this statute differ between the initial ruling and the final ruling?
4. Trace the timeline of events from the initial records request on November 1, 2018, to the final order on September 12, 2019. Highlight the key communications and procedural steps that influenced the case’s progression and ultimate outcome.
5. Discuss the legal standard of “preponderance of the evidence” as it is defined in the case documents. How did the Petitioner successfully meet this burden of proof in the rehearing after failing to do so in the initial hearing?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An independent judge who presides over administrative hearings, reviews evidence, makes findings of fact and conclusions of law, and issues orders. In this case, the ALJ was Jenna Clark.
A.R.S. § 33-1805
The section of the Arizona Revised Statutes that governs the rights of homeowners’ association members to access association records. It mandates that records be made “reasonably available for examination” and establishes a ten-business-day deadline for associations to fulfill such requests.
Associated Asset Management (AAM)
The management company that served as the Association’s accounting firm. Petitioner was at one point instructed to direct requests to an AAM representative.
Board of Directors (the Board)
The group that oversees the Desert Ranch Homeowners Association. The dispute involved questions about whether a records request needed to be sent to all members of the Board.
Covenants, Conditions, and Restrictions (CC&Rs)
The governing documents for the Desert Ranch Homeowners Association.
Environmental Design Committee (EDC)
A committee within the Desert Ranch Homeowners Association, chaired by Brian Schoeffler. The records requested by the Petitioner pertained to the actions and decisions of this committee.
Office of Administrative Hearings (OAH)
An independent state agency in Arizona responsible for conducting evidentiary hearings for disputes referred by other state agencies, such as the Department of Real Estate.
Petitioner
The party who files a petition initiating a legal action. In this case, Tom Barrs.
Preponderance of the evidence
The burden of proof in this case. It is defined as “proof as convinces the trier of fact that the contention is more probably true than not” and represents the “greater weight of the evidence.”
Respondent
The party against whom a petition is filed. In this case, the Desert Ranch Homeowners Association.
Blog Post – 19F-H1918037-REL-RHG
He Fought His HOA Over Public Records and Lost. Then One Old Email Changed Everything.
1.0 Introduction: The Familiar Frustration of Fighting the System
Almost everyone has a story about the maddening frustration of dealing with a bureaucratic organization. The rules can seem arbitrary, the answers vague, and the entire process engineered to make you give up. For homeowners, that organization is often their Homeowners Association (HOA). This was precisely the situation for Tom Barrs, a homeowner in Scottsdale, Arizona, when he made what seemed like a simple request for records from his HOA, the Desert Ranch Homeowners Association. His straightforward request ignited a surprising legal battle, where an initial, demoralizing defeat in court was ultimately overturned by a single, crucial piece of evidence exhumed from the past.
2.0 Takeaway 1: The First Verdict Isn’t Always the Final Word
The dispute began with a formal records request. In November 2018, Tom Barrs asked to see documents related to the HOA’s Environmental Design Committee (EDC). His request was clear, specific, and cited the relevant state law:
“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 HOA refused to provide the records, and the case went before Administrative Law Judge Jenna Clark on March 21, 2019. The judge denied Mr. Barrs’s petition. The ruling was based on what seemed to be a fatal procedural error: the judge concluded that Mr. Barrs had failed to properly submit his request because he did not email it to all members of the Association’s Board.
Adding a potent dose of irony, the HOA’s representative at the hearing—Brian Schoeffler, the very EDC Chairman to whom Barrs had sent the request—successfully argued that a prior case meant Barrs “knew or should have known the requirements.” For many people, this initial loss, buttressed by the HOA weaponizing their past behavior against them, would have been the end of the road. But for Mr. Barrs, it was only the first chapter.
3.0 Takeaway 2: The Paper Trail is Your Most Powerful Weapon
Unwilling to accept the verdict, Mr. Barrs appealed and was granted a rehearing. The case was heard again before the very same judge, Jenna Clark. This time, however, Mr. Barrs had a new piece of evidence—a single, forgotten email that would force the judge to re-evaluate her own initial conclusion.
The case hinged on a communication from sixteen months prior. In July 2017, the Association’s President, Catherine Overby, had sent an email specifically appointing EDC Chairman Brian Schoeffler as Mr. Barrs’s “primary records request contact.”
This single document completely dismantled the HOA’s central argument. It proved that a specific, documented protocol existed that superseded any unwritten procedure the HOA later tried to enforce. Based on this prior instruction, Judge Clark’s new conclusion was decisive: Mr. Barrs was not required to send his request to the entire board. He had, in fact, followed the HOA’s own explicit directive perfectly. The HOA’s argument, built on chastising Mr. Barrs for not knowing the rules, crumbled under the weight of a rule they themselves had established and forgotten.
4.0 Takeaway 3: A “Summary” Isn’t the Same as “The Records”
Another key issue was the HOA’s attempt to control the information it released. Instead of providing the actual letters, emails, and applications Mr. Barrs had asked for, the HOA sent him a “summary table” of the EDC’s actions.
This defense initially worked. In the first ruling, Judge Clark concluded that because the request itself was improperly submitted, the summary table was not a violation of the statute. The HOA’s failure to provide the actual records was excused on a technicality.
But once the old email proved the request was valid, that technicality vanished and the summary table argument collapsed. In her final ruling, Judge Clark determined that providing a summary was a clear violation of Arizona law (ARIZ. REV. STAT. § 33-1805). The statute is unambiguous: records must be made “reasonably available for examination,” and copies must be provided upon request. The HOA’s attempt to substitute its interpretation of the records for the records themselves was not just unhelpful—it was illegal.
5.0 Takeaway 4: Resistance Can Be More Costly Than Compliance
The final, reversed decision was issued on September 12, 2019. Mr. Barrs’s petition was granted, and the HOA faced direct financial consequences for its stonewalling. The Desert Ranch HOA was ordered to:
• Reimburse Mr. Barrs’s $500.00 filing fee.
• Pay a separate $500.00 civil penalty to the Arizona Department of Real Estate.
For the price of a few photocopies, the HOA chose instead to pay for a protracted legal battle, a public loss, and $1,000 in fees and penalties—a steep cost for refusing transparency. The outcome is a stark reminder that an organization’s attempt to obstruct access to information can be far more damaging to its finances and reputation than simple compliance.
6.0 Conclusion: The Power of a Single Fact
The story of Tom Barrs’s dispute offers powerful, practical lessons for anyone facing a similar challenge. It highlights the importance of persistence, the legal weight of true transparency, and, above all, the critical power of documentation. One old email—one documented fact—was enough to level the playing field, force a judge to reverse her own decision, and ensure the rules were applied fairly. It leaves us with a compelling question to consider.
How might meticulous record-keeping change the outcome of a dispute in your own life?
Case Participants
Petitioner Side
Tom Barrs(petitioner/witness) Appeared on his own behalf initially; appeared as witness at rehearing
Jonathan Dessaules(attorney) Dessaules Law Group Appeared on behalf of Petitioner at rehearing
Respondent Side
Desert Ranch Homeowners Association(respondent)
Brian Schoeffler(EDC chairman/witness) Desert Ranch Homeowners Association Appeared on behalf of Respondent; Chairman of the Association’s EDC
Catherine Overby(HOA president) Desert Ranch Homeowners Association Association President; records request recipient
Lori Loch-Lee(VP Client Services) Associated Asset Management (AAM) Management company contact; records request recipient
