Tag Archives: ARIZ. REV. STAT. § 32-2199.02(B)

Tom Barrs vs Desert Ranch Homeowners Association

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Case Summary

Case ID 25F-H2222050-REL-RMD
Agency ADRE
Tribunal OAH
Decision Date 2025-04-01
Administrative Law Judge Jenna Clark
Outcome The Administrative Law Judge Decision granted the remanded petition based on the parties' stipulation that the Respondent Homeowners Association violated ARIZ. REV. STAT. § 33-1805 by failing to timely provide the membership roster. The ALJ ordered Respondent to reimburse the Petitioner $500.00 for the filing fee and assessed a civil penalty of $25.00 against Respondent. All other respects of the previous ALJ Decision issued February 21, 2023, remain unchanged.
Filing Fees Refunded $500.00
Civil Penalties $25.00

Parties & Counsel

Petitioner Tom Barrs Counsel Jonathan A. Dessaules, Esq.
Respondent Desert Ranch Homeowners Association Counsel B. Austin Baillio, Esq.

Alleged Violations

ARIZ. REV. STAT. § 33-1805

Outcome Summary

The Administrative Law Judge Decision granted the remanded petition based on the parties' stipulation that the Respondent Homeowners Association violated ARIZ. REV. STAT. § 33-1805 by failing to timely provide the membership roster. The ALJ ordered Respondent to reimburse the Petitioner $500.00 for the filing fee and assessed a civil penalty of $25.00 against Respondent. All other respects of the previous ALJ Decision issued February 21, 2023, remain unchanged.

Key Issues & Findings

Failure to timely provide full membership roster

The remanded issue concerned whether Respondent failed to timely fulfill records requests, specifically a full roster of Association Member names and corresponding property addresses, in violation of ARS § 33-1805. The parties stipulated that a violation of ARS § 33-1805 occurred.

Orders: Petitioner's remanded petition was granted. Respondent was ordered to reimburse Petitioner $500.00 for the filing fee and pay a $25.00 civil penalty.

Filing fee: $500.00, Fee refunded: Yes, Civil penalty: $25.00

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. § 33-1805
  • ARIZ. REV. STAT. § 32-2199.02(A)

Analytics Highlights

Topics: HOA Records Request, Membership Roster, Records Disclosure, Statutory Violation, Stipulation, Remand
Additional Citations:

  • ARIZ. REV. STAT. § 33-1805
  • ARIZ. REV. STAT. § 32-2199.02(A)
  • ARIZ. REV. STAT. § 32-2199.01
  • ARIZ. REV. STAT. § 33-1804(A)
  • ARIZ. REV. STAT. § 1-243
  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 32-2199.02(B)
  • ARIZ. REV. STAT. § 32-2199.04
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 41-1092
  • ARIZ. REV. STAT. § 41-1092.09(A)(1)

Video Overview

Audio Overview

Decision Documents

25F-H2222050-REL-RMD Decision – 1280942.pdf

Uploaded 2026-04-24T12:56:28 (50.9 KB)

25F-H2222050-REL-RMD Decision – 1285833.pdf

Uploaded 2026-04-24T12:56:32 (107.0 KB)

25F-H2222050-REL-RMD Decision – 1286292.pdf

Uploaded 2026-04-24T12:56:36 (21.7 KB)

25F-H2222050-REL-RMD Decision – 1288559.pdf

Uploaded 2026-04-24T12:56:40 (149.2 KB)

Briefing Document: The Matter of Barrs v. Desert Ranch Homeowners Association

Executive Summary

This briefing document synthesizes the key events, legal arguments, and ultimate resolution of the administrative case Tom Barrs v. Desert Ranch Homeowners Association (No. 25F-H2222050-REL-RMD). The dispute, which progressed through the Arizona Office of Administrative Hearings (OAH) and the Maricopa County Superior Court, centered on a homeowner’s right to access association records, specifically the membership roster.

The case concluded on March 31, 2025, when the Desert Ranch Homeowners Association (HOA) stipulated to a violation of Arizona Revised Statutes (A.R.S.) § 33-1805. The HOA admitted it failed to timely fulfill a records request for the membership roster, which was submitted on October 21, 2021, and not fulfilled until May 2023—a delay of approximately 19 months.

The resolution required the HOA to pay petitioner Tom Barrs a total of $975.00, which included the reimbursement of a $500.00 filing fee. Citing the respondent’s “unconscionable conduct,” the Administrative Law Judge (ALJ) also levied a nominal civil penalty of $25.00 against the association.

A critical turning point in the case was a landmark ruling by the Maricopa County Superior Court on April 4, 2024. The Court reversed an earlier OAH decision, establishing that HOA membership lists containing names and property addresses do not qualify as exempt personal records. The Court reasoned that access to such information is “essential to having a homeowners association” and necessary for members “to actively participate in HOA affairs.” This ruling, however, specified that more private data, such as email addresses and phone numbers, are not subject to mandatory disclosure. The matter was subsequently remanded to the OAH on this single issue, leading to the final stipulated resolution.

——————————————————————————–

I. Case Overview and Parties Involved

This administrative action details a prolonged dispute between a homeowner and his planned community association regarding access to records.

• Case Name: In the Matter of: Tom Barrs, Petitioner, vs. Desert Ranch Homeowners Association, Respondent.

• Docket Number: 25F-H2222050-REL-RMD

• Adjudicating Body: Arizona Office of Administrative Hearings (OAH)

• Presiding Judge: Administrative Law Judge (ALJ) Jenna Clark

• Petitioner: Tom Barrs (Appeared pro per initially, later represented by Jonathan A. Dessaules, Esq.)

• Respondent: Desert Ranch Homeowners Association (Represented by HOA President Michel Olley)

II. Procedural History: From Initial Petitions to Superior Court

The case originated from four separate petitions filed by Mr. Barrs with the Arizona Department of Real Estate, each incurring a $500 filing fee.

Petition Filing Date

Alleged Violation

Subject Matter

April 18, 2022

A.R.S. § 33-1805

Document requests from Apr 2021, Nov 2021, and Feb 2022.

April 18, 2022

A.R.S. § 33-1804(A)

Alleged preclusion of audio recording at a meeting.

April 18, 2022

A.R.S. § 33-1805

Membership roster request from October 2021.

May 12, 2022

A.R.S. § 33-1805

Multiple document requests from Oct 2021 to Mar 2022.

• May 25, 2022: The Department of Real Estate consolidated the matters and referred them to the OAH for an evidentiary hearing.

• January 9-10, 2023: The consolidated hearing takes place before the OAH.

• February 21, 2023: The OAH issues an Administrative Law Judge Decision. It granted portions of the general document request petitions but denied the petitions regarding the audio recording and the membership roster in their entirety. The petitioner’s request for civil penalties was also denied.

• March 26, 2023: As the aggrieved party, Mr. Barrs files a timely Dispute Rehearing Petition with the Department of Real Estate.

• April 18, 2023: The Department of Real Estate issues an order denying the rehearing request.

• June 6, 2023: The Department is notified that Mr. Barrs has appealed its decision to the Maricopa County Superior Court.

III. The Superior Court Ruling: A Key Decision on HOA Record Transparency

On April 4, 2024, the Superior Court issued a pivotal order that reversed the Department of Real Estate’s decision in part, focusing squarely on the issue of membership lists.

The Court concluded that the ALJ had erred in treating the membership roster as exempt personal records. It ruled that such lists, containing names and property addresses, must be made available to all members unless they qualify for a specific statutory exception.

“In this case, Desert Ridge has kept membership lists as a part of their records undoubtedly for a variety of reasons. Unless those records qualify for an exception, they must be made available to all members… Those membership lists containing names and addresses, however, do not appear to fall within the exemption for personal records.”

The Court’s rationale was grounded in the principle of homeowner participation in association governance:

“In addition, in order to actively participate in HOA affairs, all members must have the ability to know who is in the Association and which home or land they own.”

The ruling drew a clear line between public-facing information and private contact details. It affirmed that while names and addresses are necessary for HOA functions, more personal data is not.

“The desire for additional personal information, including email addresses and phone numbers and the like, while understandable, is not necessary for active participation in the affairs of the Association… Email addresses and phone numbers, however, are more personal and less public in nature… While disclosure of names and property addresses… may be essential to having a homeowners association, the disclosure of email addresses and phone numbers is not.”

On August 2, 2024, the Court reaffirmed its ruling and remanded “only the reversed portion of the Department’s Decision” back to the OAH for “proceedings consistent” with its order. The petitioner’s request for attorneys’ fees for his pro per work was denied.

IV. The Remand Process and Clarification of Scope

Following the remand, the OAH scheduled a new hearing for March 31, 2025. A prehearing conference on March 18, 2025, revealed a significant disagreement between the parties on the scope of this new hearing.

• Petitioner’s Position: Mr. Barrs argued that the remand reopened all four of his original petitions for reconsideration.

• Respondent’s Position: Mr. Olley contended that the remand was narrowly focused on the single issue of the membership roster, as specified by the Superior Court.

ALJ Clark noted that the Department of Real Estate’s hearing notice was “deficient” because it failed to specify the issue for adjudication. To resolve the conflict, she issued a clarifying Minute Entry on March 24, 2025.

The Order explicitly narrowed the scope of the hearing:

“IT IS ORDERED that the issue to be addressed at the hearing… is whether Respondent failed to timely fulfill records requests submitted by Petitioner… by providing Petitioner with a full roster of Association Member names and corresponding property addresses per his request(s) in violation of ARIZ. REV. STAT. § 33-1805.”

The order further stated that in all other respects, the original ALJ Decision from February 21, 2023, “remains unchanged and in full force and effect,” thereby validating the respondent’s interpretation.

V. Final Hearing and Resolution

The remanded hearing convened on March 31, 2025. Before testimony could begin, the case moved swiftly to a resolution.

At the outset of the hearing, Mr. Olley, on behalf of the HOA, made a “motion for summary judgment,” conceding a violation of the statute regarding the withholding of the membership roster and offering to reimburse the petitioner’s $500 filing fee. The ALJ treated this as a settlement offer and allowed the parties to confer off the record.

The parties returned having reached a full agreement, which was entered into the record. The key stipulated facts were:

Stipulation

Details

Violation Admitted

The Association violated A.R.S. § 33-1805 by failing to provide the membership roster.

Specific Request

The violation pertains to the request made by Mr. Barrs on October 21, 2021.

Untimeliness

The roster was not provided until May 2023, approximately 19 months after the request.

Monetary Settlement

The Association agreed to pay Mr. Barrs a total of $975.00.

Based on the parties’ stipulations, ALJ Clark issued a final decision on April 1, 2025, formalizing the outcome:

1. Petition Granted: The petitioner’s remanded petition was granted.

2. Civil Penalty: A civil penalty of $25.00 was assessed against the Respondent. In his closing argument, petitioner’s counsel argued this was warranted due to the HOA’s “unconscionable conduct” in delaying compliance for 19 months.

3. Filing Fee Reimbursement: Respondent was ordered to reimburse the petitioner’s $500.00 filing fee, as per the stipulation and statute.

4. Finality: The decision reaffirmed that all other elements of the original February 21, 2023, OAH decision remain in effect.

Questions

Question

Can my HOA refuse to give me a list of other homeowners' names and addresses?

Short Answer

No. Unless an exception applies, membership lists with names and addresses must be made available so members can participate in HOA affairs.

Detailed Answer

The decision clarifies that membership lists containing names and addresses are not considered 'personal records' that can be withheld. Access to this information is deemed necessary for members to actively participate in the association, such as knowing who belongs to the association and which properties they own.

Alj Quote

Those membership lists containing names and addresses, however, do not appear to fall within the exemption for personal records. … In addition, in order to actively participate in HOA affairs, all members must have the ability to know who is in the Association and which home or land they own.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • Records Request
  • Membership List
  • Homeowner Rights

Question

Am I entitled to receive the email addresses and phone numbers of other homeowners?

Short Answer

No. Email addresses and phone numbers are considered personal and private, unlike physical addresses.

Detailed Answer

While names and physical addresses are necessary for HOA participation, the decision states that email addresses and phone numbers are more personal. Disclosure of this contact information is not essential for association business and could lead to harassment or marketing issues.

Alj Quote

The desire for additional personal information, including email addresses and phone numbers and the like, while understandable, is not necessary for active participation in the affairs of the Association. … Email addresses and phone numbers, however, are more personal and less public in nature.

Legal Basis

A.R.S. § 33-1805(B)(4)

Topic Tags

  • Privacy
  • Records Request
  • Personal Records

Question

How quickly must the HOA respond to my request to inspect records?

Short Answer

The HOA has 10 business days to fulfill a request.

Detailed Answer

Arizona law grants the association ten business days to fulfill a request for examination or to provide copies of requested records.

Alj Quote

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

Legal Basis

A.R.S. § 33-1805(A)

Topic Tags

  • Timelines
  • Procedural Requirements

Question

Can the HOA charge me a fee for simply looking at the records?

Short Answer

No. The HOA cannot charge for making materials available for review.

Detailed Answer

The statute explicitly prohibits the association from charging a member for the act of making material available for review. Charges are only permitted for copies.

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

  • Fees
  • Records Request

Question

How much can the HOA charge me for copies of records?

Short Answer

The HOA can charge a maximum of 15 cents per page.

Detailed Answer

If a member requests copies of records, the association is legally permitted to charge a fee, but it is 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

  • Fees
  • Records Request

Question

What records is the HOA allowed to withhold from me?

Short Answer

The HOA can withhold privileged legal communications, pending litigation, closed meeting minutes, and specific personal or employee records.

Detailed Answer

The decision outlines specific statutory exceptions where records can be withheld, including attorney-client privilege, pending litigation, minutes from executive sessions, and personal/health/financial records of members or employees.

Alj Quote

Books and records… may be withheld… to the extent that the portion withheld relates to any of the following: 1. Privileged communication… 2. Pending litigation. 3. Meeting minutes… of a session… not required to be open… 4. Personal, health or financial records…

Legal Basis

A.R.S. § 33-1805(B)

Topic Tags

  • Exceptions
  • Records Request
  • Privacy

Question

Can the HOA be penalized if they delay providing records for a long time?

Short Answer

Yes. Significant delays can result in a violation and civil penalties.

Detailed Answer

In this case, the HOA failed to provide a membership roster for approximately 19 months (from October 2021 to May 2023). This was deemed untimely and resulted in a civil penalty.

Alj Quote

Respondent’s response to Petitioner’s October 21, 2021, records request was untimely, as it was not fulfilled until May 2023. … Petitioner’s request to assess civil penalties totaling $25.00 against Respondent is granted.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • Penalties
  • Enforcement
  • Timelines

Question

If I win my hearing, will the HOA have to reimburse my filing fee?

Short Answer

Yes, the ALJ can order the HOA to reimburse the $500 filing fee.

Detailed Answer

The decision orders the Respondent (HOA) to reimburse the Petitioner's $500 filing fee as required by statute when the Petitioner prevails.

Alj Quote

Respondent shall reimburse Petitioner’s $500.00 filing fee as required by ARIZ. REV. STAT. § 32-2199.01.

Legal Basis

A.R.S. § 32-2199.01

Topic Tags

  • Costs
  • Remedies

Question

Who has to prove that the HOA broke the law?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

The homeowner must prove by a 'preponderance of the evidence' that the HOA violated the statute. This means showing that the contention is more probably true than not.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1805.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • Legal Standards
  • Procedure

Case

Docket No
25F-H2222050-REL-RMD
Case Title
Tom Barrs v. Desert Ranch Homeowners Association
Decision Date
2025-04-01
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Questions

Question

Can my HOA refuse to give me a list of other homeowners' names and addresses?

Short Answer

No. Unless an exception applies, membership lists with names and addresses must be made available so members can participate in HOA affairs.

Detailed Answer

The decision clarifies that membership lists containing names and addresses are not considered 'personal records' that can be withheld. Access to this information is deemed necessary for members to actively participate in the association, such as knowing who belongs to the association and which properties they own.

Alj Quote

Those membership lists containing names and addresses, however, do not appear to fall within the exemption for personal records. … In addition, in order to actively participate in HOA affairs, all members must have the ability to know who is in the Association and which home or land they own.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • Records Request
  • Membership List
  • Homeowner Rights

Question

Am I entitled to receive the email addresses and phone numbers of other homeowners?

Short Answer

No. Email addresses and phone numbers are considered personal and private, unlike physical addresses.

Detailed Answer

While names and physical addresses are necessary for HOA participation, the decision states that email addresses and phone numbers are more personal. Disclosure of this contact information is not essential for association business and could lead to harassment or marketing issues.

Alj Quote

The desire for additional personal information, including email addresses and phone numbers and the like, while understandable, is not necessary for active participation in the affairs of the Association. … Email addresses and phone numbers, however, are more personal and less public in nature.

Legal Basis

A.R.S. § 33-1805(B)(4)

Topic Tags

  • Privacy
  • Records Request
  • Personal Records

Question

How quickly must the HOA respond to my request to inspect records?

Short Answer

The HOA has 10 business days to fulfill a request.

Detailed Answer

Arizona law grants the association ten business days to fulfill a request for examination or to provide copies of requested records.

Alj Quote

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

Legal Basis

A.R.S. § 33-1805(A)

Topic Tags

  • Timelines
  • Procedural Requirements

Question

Can the HOA charge me a fee for simply looking at the records?

Short Answer

No. The HOA cannot charge for making materials available for review.

Detailed Answer

The statute explicitly prohibits the association from charging a member for the act of making material available for review. Charges are only permitted for copies.

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

  • Fees
  • Records Request

Question

How much can the HOA charge me for copies of records?

Short Answer

The HOA can charge a maximum of 15 cents per page.

Detailed Answer

If a member requests copies of records, the association is legally permitted to charge a fee, but it is 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

  • Fees
  • Records Request

Question

What records is the HOA allowed to withhold from me?

Short Answer

The HOA can withhold privileged legal communications, pending litigation, closed meeting minutes, and specific personal or employee records.

Detailed Answer

The decision outlines specific statutory exceptions where records can be withheld, including attorney-client privilege, pending litigation, minutes from executive sessions, and personal/health/financial records of members or employees.

Alj Quote

Books and records… may be withheld… to the extent that the portion withheld relates to any of the following: 1. Privileged communication… 2. Pending litigation. 3. Meeting minutes… of a session… not required to be open… 4. Personal, health or financial records…

Legal Basis

A.R.S. § 33-1805(B)

Topic Tags

  • Exceptions
  • Records Request
  • Privacy

Question

Can the HOA be penalized if they delay providing records for a long time?

Short Answer

Yes. Significant delays can result in a violation and civil penalties.

Detailed Answer

In this case, the HOA failed to provide a membership roster for approximately 19 months (from October 2021 to May 2023). This was deemed untimely and resulted in a civil penalty.

Alj Quote

Respondent’s response to Petitioner’s October 21, 2021, records request was untimely, as it was not fulfilled until May 2023. … Petitioner’s request to assess civil penalties totaling $25.00 against Respondent is granted.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • Penalties
  • Enforcement
  • Timelines

Question

If I win my hearing, will the HOA have to reimburse my filing fee?

Short Answer

Yes, the ALJ can order the HOA to reimburse the $500 filing fee.

Detailed Answer

The decision orders the Respondent (HOA) to reimburse the Petitioner's $500 filing fee as required by statute when the Petitioner prevails.

Alj Quote

Respondent shall reimburse Petitioner’s $500.00 filing fee as required by ARIZ. REV. STAT. § 32-2199.01.

Legal Basis

A.R.S. § 32-2199.01

Topic Tags

  • Costs
  • Remedies

Question

Who has to prove that the HOA broke the law?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

The homeowner must prove by a 'preponderance of the evidence' that the HOA violated the statute. This means showing that the contention is more probably true than not.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1805.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • Legal Standards
  • Procedure

Case

Docket No
25F-H2222050-REL-RMD
Case Title
Tom Barrs v. Desert Ranch Homeowners Association
Decision Date
2025-04-01
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Tom Barrs (petitioner)
  • Jonathan A. Dessaules (petitioner attorney)
    Dessaules Law Group

Respondent Side

  • Michael Olley (HOA President)
    Desert Ranch Homeowners Association
    Appeared on behalf of Respondent. Also referred to as Michael Ali and Michel Olley.
  • B. Austin Baillio (respondent attorney)
    Maxwell & Morgan P.C.
    Counsel for Respondent in official correspondence.

Neutral Parties

  • Jenna Clark (ALJ)
    OAH
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate
  • Judge Mikitish (Superior Court Judge)
    Superior Court of Arizona – Maricopa County
    Issued minute entries in related Superior Court proceedings.
  • vnunez (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official correspondence.
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official correspondence.
  • labril (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official correspondence.
  • mneat (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official correspondence.
  • lrecchia (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official correspondence.
  • gosborn (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official correspondence.
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official correspondence.

Other Participants

  • Brian Schoeffler (observer)
    Observed the hearing.
  • Stephen Barrs (observer)
    Observed the hearing. Also referred to as Steven Bar and Steven Bars.

Ryan McMahon v. Alhambra Terrace Condominium Association

Posted on by

Case Summary

Case ID 23F-H060-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-08-07
Administrative Law Judge Jenna Clark
Outcome The Administrative Law Judge denied the petition, concluding that Petitioner failed to prove by a preponderance of the evidence that the Alhambra Terrace Condominium Association violated ARIZ. REV. STAT. § 33-1221.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Ryan McMahon Counsel —
Respondent Alhambra Terrace Condominium Association Counsel Mike Yohler

Alleged Violations

ARIZ. REV. STAT. § 33-1221

Outcome Summary

The Administrative Law Judge denied the petition, concluding that Petitioner failed to prove by a preponderance of the evidence that the Alhambra Terrace Condominium Association violated ARIZ. REV. STAT. § 33-1221.

Why this result: Petitioner failed to fully satisfy sub-requirements 6, 7, and/or 8 of the Preliminary Architectural Approval Letter, as the documentation provided (specifically from the plumbing company and designer) lacked the necessary professional weight or specificity required by the Association to address structural and plumbing concerns.

Key Issues & Findings

Alleged violation of statute regarding denial of interior modification request.

Petitioner alleged the Association violated ARS § 33-1221 by denying his request to combine two units and add two bathrooms, claiming the denial was unsupported by facts or governing documents. The ALJ found Petitioner failed to prove the violation.

Orders: Petitioner's petition was denied.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 33-1221
  • ARIZ. REV. STAT. § 33-1243
  • ARIZ. REV. STAT. §§ 32-2102
  • ARIZ. REV. STAT. §§ 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. Title 33, Chapter 9, Article 3
  • ARIZ. REV. STAT. §§ 32-2199(2)
  • ARIZ. REV. STAT. §§ 32-2199.01(A)
  • ARIZ. REV. STAT. §§ 32-2199.01(D)
  • ARIZ. REV. STAT. §§ 32-2199.02
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. ADMIN. CODE R2-19-119

Analytics Highlights

Topics: condominium modification, HOA denial, structural integrity, plumbing concerns, burden of proof, architectural approval
Additional Citations:

  • ARIZ. REV. STAT. § 33-1221
  • ARIZ. REV. STAT. § 33-1243
  • ARIZ. REV. STAT. §§ 32-2102
  • ARIZ. REV. STAT. §§ 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. Title 33, Chapter 9, Article 3
  • ARIZ. REV. STAT. §§ 32-2199(2)
  • ARIZ. REV. STAT. §§ 32-2199.01(A)
  • ARIZ. REV. STAT. §§ 32-2199.01(D)
  • ARIZ. REV. STAT. §§ 32-2199.02
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. ADMIN. CODE R2-19-119
  • ARIZ. REV. STAT. § 32-2199.02(B)
  • ARIZ. REV. STAT. § 32-2199.04
  • ARIZ. REV. STAT. § 41-1092.09
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov

Video Overview

Audio Overview

Decision Documents

23F-H060-REL Decision – 1081134.pdf

Uploaded 2026-01-23T17:59:25 (189.0 KB)

This is a summary of the administrative hearing held on July 19, 2023, regarding Petitioner Ryan McMahon's claim against the Alhamra Terrace Condominium Association (OAD doc number 23 FH060 REL). Administrative Law Judge (ALJ) Jenna Clark presided.

Key Facts

Petitioner Ryan McMahon, who owns Unit B8, and his fiancée, who owns the adjacent Unit B4 below him, sought permission from the Association to combine the two units (B8 and B4) and add two new bathrooms. The Association, governed by its CC&Rs, issued a series of denials based on concerns regarding the structural integrity and the piping system of the condominium.

In June 2022, the Association issued a conditional approval that required Petitioner to provide specific documentation, including an engineer's sign-off on community plumbing concerns, detailing the proper size and condition of the main sewer line, and ensuring the pipes could accommodate up to six bathrooms, four kitchens, and four laundry units. The conditions also required submission of detailed plans for sewer pipe venting and exhaust fans.

Petitioner subsequently submitted documentation, including letters from a licensed structural engineer (Robert A. Young, PE) confirming no structural reason for denial, and correspondence from a plumbing company (Paradise Valley Plumbing Company, Inc.) providing calculations and stating the project would not negatively impact the plumbing or drainage capacity. The City of Scottsdale had reviewed the plans for code conformity but required HOA approval before issuing permits.

The Association, represented by witness Kit Groseth (Board President), denied the request multiple times, asserting the documents submitted were "vague, incomplete, and unreliable". The Association argued that the Petitioner failed to provide information specifically requested by the preliminary approval letter, particularly documentation from a registered plumbing engineer addressing the detailed capacity concerns. The Association admitted it did not hire its own engineer due to the anticipated high cost (estimated $5,000–$10,000).

Main Issues and Legal Points

The core issue was whether the Association violated Arizona Revised Statute (ARIZ. REV. STAT.) § 33-1221 by denying the interior modification request. This statute permits unit owners to make alterations that *do not impair the structural integrity or mechanical systems* of the condominium.

The critical legal point focused on Petitioner's burden of proof. The ALJ was tasked with determining if Petitioner provided a preponderance of the evidence proving the Association acted illegally by denying the request.

The Association argued that while Petitioner provided some engineering support, he did not meet the specific itemized requirements of the conditional approval, particularly regarding specific plumbing engineering reports.

Outcome and Final Decision

The Administrative Law Judge concluded that Petitioner did not sustain his burden of proof.

The ALJ found that Petitioner failed to fully comply with itemized requirements 6, 7, and/or 8 of the Preliminary Architectural Approval Letter. Specifically, the plumbing company providing calculations was not a licensed structural engineering firm, limiting the weight of its attestation. Furthermore, the structural engineer’s reports (Mr. Young) were not offered for consideration regarding the pipes, fans, and vents, as required by the conditional approval.

Based on these findings, the ALJ issued an ORDER that Petitioner's petition be denied. This decision is binding unless a request for rehearing is filed with the Commissioner of the Arizona Department of Real Estate.

Questions

Question

What is the burden of proof for a homeowner alleging an HOA violation?

Short Answer

The homeowner (petitioner) bears the burden of proving the violation by a preponderance of the evidence.

Detailed Answer

In an administrative hearing regarding an HOA dispute, the homeowner filing the petition is responsible for proving their case. They must demonstrate that it is more likely than not that the HOA violated the relevant statutes or community documents.

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. REV. STAT. § 33-1243; ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • burden of proof
  • legal standards
  • hearing procedure

Question

What does 'preponderance of the evidence' mean in an HOA hearing?

Short Answer

It means the evidence must show the claim is more probably true than not.

Detailed Answer

To win a hearing, the evidence presented must carry more weight than the opposing side's evidence. It doesn't necessarily mean having more witnesses, but rather having evidence with superior convincing force that inclines an impartial mind to one side.

Alj Quote

A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.

Legal Basis

Common Law / Legal Standard

Topic Tags

  • legal standards
  • evidence
  • definitions

Question

Can I combine two adjoining condo units I own by removing the wall between them?

Short Answer

Yes, generally, provided the removal does not impair structural integrity or mechanical systems.

Detailed Answer

Arizona law allows a unit owner who acquires an adjoining unit to remove or alter intervening partitions. However, this is strictly conditioned on the requirement that such acts do not weaken the building's structural integrity, mechanical systems, or support.

Alj Quote

After acquiring an adjoining unit… [a unit owner] may remove or alter any intervening partition or create apertures in intervening partitions… if those acts do not impair the structural integrity or mechanical systems or lessen the support of any portion of the condominium.

Legal Basis

ARIZ. REV. STAT. § 33-1221(3)

Topic Tags

  • homeowner rights
  • renovations
  • condominiums

Question

Does the administrative law judge have the power to interpret the HOA's contract (CC&Rs)?

Short Answer

Yes, the Office of Administrative Hearings (OAH) has the authority to interpret the contract between the parties.

Detailed Answer

When a dispute involves the community documents (like CC&Rs), the Administrative Law Judge has the legal authority to interpret those documents to decide the contested case.

Alj Quote

OAH has the authority to hear and decide the contested case at bar. OAH has the authority to interpret the contract between the parties.

Legal Basis

ARIZ. REV. STAT. §§ 32-2199 et seq.

Topic Tags

  • jurisdiction
  • CC&Rs
  • contract interpretation

Question

Can the HOA reject my renovation if I provide a plumber's report instead of the requested structural engineer's report?

Short Answer

Yes, the HOA can reject the request if the specific professional expertise requested (e.g., structural engineering) is not provided.

Detailed Answer

If an HOA requests a specific type of expert opinion (such as a structural engineer) to ensure the integrity of the building, providing a report from a different type of professional (such as a plumbing company) may be considered insufficient evidence, justifying a denial.

Alj Quote

Paradise Valley Plumbing Company, Inc. is not a licensed structural engineering firm, so unfortunately the attestation of its Qualifying Party cannot be afforded much weight, if any.

Legal Basis

Fact-specific determination / ARIZ. REV. STAT. § 33-1221

Topic Tags

  • renovations
  • architectural committee
  • expert evidence

Question

Do I need written permission from the HOA to change the exterior appearance of my condo?

Short Answer

Yes, changing the exterior appearance or common elements requires written permission.

Detailed Answer

State statute explicitly prohibits unit owners from changing the appearance of common elements or the exterior of a unit without obtaining written permission from the association.

Alj Quote

Shall not change the appearance of the common elements, or the exterior appearance of a unit or any other portion of the condominium, without written permission of the association.

Legal Basis

ARIZ. REV. STAT. § 33-1221(2)

Topic Tags

  • exterior changes
  • architectural control
  • common elements

Question

If I hire a structural engineer, must their report specifically address the HOA's stated concerns?

Short Answer

Yes, simply hiring an engineer is not enough; the report must address the specific items requested by the HOA (e.g., integrity of pipes, fans, vents).

Detailed Answer

Submitting an engineer's letter that does not address the specific technical concerns raised by the HOA (such as the condition of pipes or venting plans) may result in a denial because the homeowner failed to meet the burden of proof regarding safety and structural integrity.

Alj Quote

While Mr. Young is undoubtedly a licensed structural engineer… it is unclear if he made determinations regarding the integrity of the Association’s pipes, fans, and vents as required by sub-requirements 6-8 of the Association’s PRELIMINARY ARCHITECTURAL APPROVAL LETTER.

Legal Basis

Evidence sufficiency

Topic Tags

  • renovations
  • compliance
  • engineering reports

Case

Docket No
23F-H060-REL
Case Title
Ryan McMahon vs. Alhambra Terrace Condominium Association
Decision Date
2023-08-07
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Questions

Question

What is the burden of proof for a homeowner alleging an HOA violation?

Short Answer

The homeowner (petitioner) bears the burden of proving the violation by a preponderance of the evidence.

Detailed Answer

In an administrative hearing regarding an HOA dispute, the homeowner filing the petition is responsible for proving their case. They must demonstrate that it is more likely than not that the HOA violated the relevant statutes or community documents.

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. REV. STAT. § 33-1243; ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • burden of proof
  • legal standards
  • hearing procedure

Question

What does 'preponderance of the evidence' mean in an HOA hearing?

Short Answer

It means the evidence must show the claim is more probably true than not.

Detailed Answer

To win a hearing, the evidence presented must carry more weight than the opposing side's evidence. It doesn't necessarily mean having more witnesses, but rather having evidence with superior convincing force that inclines an impartial mind to one side.

Alj Quote

A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.

Legal Basis

Common Law / Legal Standard

Topic Tags

  • legal standards
  • evidence
  • definitions

Question

Can I combine two adjoining condo units I own by removing the wall between them?

Short Answer

Yes, generally, provided the removal does not impair structural integrity or mechanical systems.

Detailed Answer

Arizona law allows a unit owner who acquires an adjoining unit to remove or alter intervening partitions. However, this is strictly conditioned on the requirement that such acts do not weaken the building's structural integrity, mechanical systems, or support.

Alj Quote

After acquiring an adjoining unit… [a unit owner] may remove or alter any intervening partition or create apertures in intervening partitions… if those acts do not impair the structural integrity or mechanical systems or lessen the support of any portion of the condominium.

Legal Basis

ARIZ. REV. STAT. § 33-1221(3)

Topic Tags

  • homeowner rights
  • renovations
  • condominiums

Question

Does the administrative law judge have the power to interpret the HOA's contract (CC&Rs)?

Short Answer

Yes, the Office of Administrative Hearings (OAH) has the authority to interpret the contract between the parties.

Detailed Answer

When a dispute involves the community documents (like CC&Rs), the Administrative Law Judge has the legal authority to interpret those documents to decide the contested case.

Alj Quote

OAH has the authority to hear and decide the contested case at bar. OAH has the authority to interpret the contract between the parties.

Legal Basis

ARIZ. REV. STAT. §§ 32-2199 et seq.

Topic Tags

  • jurisdiction
  • CC&Rs
  • contract interpretation

Question

Can the HOA reject my renovation if I provide a plumber's report instead of the requested structural engineer's report?

Short Answer

Yes, the HOA can reject the request if the specific professional expertise requested (e.g., structural engineering) is not provided.

Detailed Answer

If an HOA requests a specific type of expert opinion (such as a structural engineer) to ensure the integrity of the building, providing a report from a different type of professional (such as a plumbing company) may be considered insufficient evidence, justifying a denial.

Alj Quote

Paradise Valley Plumbing Company, Inc. is not a licensed structural engineering firm, so unfortunately the attestation of its Qualifying Party cannot be afforded much weight, if any.

Legal Basis

Fact-specific determination / ARIZ. REV. STAT. § 33-1221

Topic Tags

  • renovations
  • architectural committee
  • expert evidence

Question

Do I need written permission from the HOA to change the exterior appearance of my condo?

Short Answer

Yes, changing the exterior appearance or common elements requires written permission.

Detailed Answer

State statute explicitly prohibits unit owners from changing the appearance of common elements or the exterior of a unit without obtaining written permission from the association.

Alj Quote

Shall not change the appearance of the common elements, or the exterior appearance of a unit or any other portion of the condominium, without written permission of the association.

Legal Basis

ARIZ. REV. STAT. § 33-1221(2)

Topic Tags

  • exterior changes
  • architectural control
  • common elements

Question

If I hire a structural engineer, must their report specifically address the HOA's stated concerns?

Short Answer

Yes, simply hiring an engineer is not enough; the report must address the specific items requested by the HOA (e.g., integrity of pipes, fans, vents).

Detailed Answer

Submitting an engineer's letter that does not address the specific technical concerns raised by the HOA (such as the condition of pipes or venting plans) may result in a denial because the homeowner failed to meet the burden of proof regarding safety and structural integrity.

Alj Quote

While Mr. Young is undoubtedly a licensed structural engineer… it is unclear if he made determinations regarding the integrity of the Association’s pipes, fans, and vents as required by sub-requirements 6-8 of the Association’s PRELIMINARY ARCHITECTURAL APPROVAL LETTER.

Legal Basis

Evidence sufficiency

Topic Tags

  • renovations
  • compliance
  • engineering reports

Case

Docket No
23F-H060-REL
Case Title
Ryan McMahon vs. Alhambra Terrace Condominium Association
Decision Date
2023-08-07
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Ryan McMahon (petitioner)
    Full name: Ryan Christopher McMahon
  • Christina Samaras (witness)
    Petitioner's fiance and observer. Also referred to as Christina Cincer.
  • Robert A. Young (engineer/consultant)
    Structural Engineer (PE) providing documentation for Petitioner
  • Scott Olsson (plumber/consultant)
    Paradise Valley Plumbing Company, Inc.
    Licensed plumber/Qualifying Party providing statements for Petitioner
  • Gary Devol (designer/consultant)
    Designs by Devol LLC
    Designer who created the modification plans

Respondent Side

  • Mike Yohler (attorney)
    Farmers Insurance
    Counsel of record for Respondent
  • Kent William Groseth (board member)
    Alhamra Terrace Condominium Association
    Board President and witness
  • Emma (property manager representative)
    AMCOR Property Professionals, Inc.
    Exchanged correspondence with Petitioner regarding denial
  • Mia (board member)
    Alhamra Terrace Condominium Association
    HOA president at the time of initial request
  • Jim Nelson (board member)
    Alhamra Terrace Condominium Association
    Co-vice president
  • Robin (property manager representative)
    AMCOR Property Professionals, Inc.
    Vice President involved in email correspondence
  • Miss Morgan (attorney)
    Previous counsel replaced by Mike Yohler

Neutral Parties

  • Jenna Clark (ALJ)
    OAH
    Administrative Law Judge
  • Susan Nicolson (Commissioner)
    ADRE
    Commissioner of the Arizona Department of Real Estate

Clifford Burnes v. Saguaro Crest Homeowners Association, Inc.

Posted on by

Case Summary

Case ID 22F-H2221010-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-12-09
Administrative Law Judge Tammy L. Eigenheer
Outcome The ALJ granted the Petitioner's petition, finding the Respondent HOA violated A.R.S. § 33-1805 by requiring the Petitioner to inspect records before providing copies and failing to comply with the 10-day statutory deadline. The HOA was ordered to reimburse the Petitioner's $500.00 filing fee.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Clifford Burnes Counsel —
Respondent Saguaro Crest Homeowners Association, Inc. Counsel John T. Crotty

Alleged Violations

ARIZ. REV. STAT. § 33-1805

Outcome Summary

The ALJ granted the Petitioner's petition, finding the Respondent HOA violated A.R.S. § 33-1805 by requiring the Petitioner to inspect records before providing copies and failing to comply with the 10-day statutory deadline. The HOA was ordered to reimburse the Petitioner's $500.00 filing fee.

Key Issues & Findings

Failure to fulfill records request

Petitioner alleged the Association failed to fulfill his request for copies of records within the statutory 10-day period because the Association improperly required him to inspect the documents first. The ALJ found the Association violated A.R.S. § 33-1805, as the statute does not permit an HOA to mandate prior inspection before providing requested copies.

Orders: Petition granted. Respondent ordered to reimburse Petitioner's filing fee of $500.00 in certified funds and ordered to henceforth comply with ARIZ. REV. STAT. § 33-1805.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. § 33-1805
  • ARIZ. REV. STAT. §§ 32-2102 and 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. §§ 32-2199(2), 32-2199.01(A), 32-2199.01(D), 32-2199.02
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • ARIZ. ADMIN. CODE R2-19-119
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
  • Arpaio v. Steinle, 201 Ariz. 353, 355 ¶ 5, 35 P.3d 114, 116 (App. 2001)
  • Gutierrez v. Industrial Commission of Arizona
  • State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968)
  • U.S. Parking v. City of Phoenix, 160 Ariz. 210, 772 P.2d 33 (App. 1989)
  • Deer Valley, v. Houser, 214 Ariz. 293, 296, 152 P.3d 490, 493 (2007)
  • ARIZ. REV. STAT. §32-2199.02(B)
  • ARIZ. REV. STAT. § 32-2199.04
  • ARIZ. REV. STAT. § 41-1092.09

Analytics Highlights

Topics: HOA, Records Request, ARS 33-1805, Records Inspection, Timeliness, Filing Fee Refund
Additional Citations:

  • ARIZ. REV. STAT. § 33-1805
  • ARIZ. REV. STAT. §§ 32-2102 and 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. §§ 32-2199(2), 32-2199.01(A), 32-2199.01(D), 32-2199.02
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • ARIZ. ADMIN. CODE R2-19-119
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
  • Arpaio v. Steinle, 201 Ariz. 353, 355 ¶ 5, 35 P.3d 114, 116 (App. 2001)
  • Gutierrez v. Industrial Commission of Arizona
  • State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968)
  • U.S. Parking v. City of Phoenix, 160 Ariz. 210, 772 P.2d 33 (App. 1989)
  • Deer Valley, v. Houser, 214 Ariz. 293, 296, 152 P.3d 490, 493 (2007)
  • 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

22F-H2221010-REL Decision – 930949.pdf

Uploaded 2026-04-24T11:39:31 (139.0 KB)

22F-H2221010-REL Decision – 930949.pdf

Uploaded 2026-01-23T17:40:34 (139.0 KB)

This summary outlines the Administrative Law Judge Decision in the case of Clifford Burnes v. Saguaro Crest Homeowners Association, Inc..

Key Facts and Background

Petitioner Clifford Burnes, a member of the Saguaro Crest Homeowners Association (HOA), filed a petition alleging the HOA failed to fulfill his request for records in violation of ARIZ. REV. STAT. § 33-1805.

On or about December 31, 2020, Petitioner submitted a certified letter and email requesting COPIES of specific Association documents and acknowledged the statutory fee of fifteen cents per page. The Association received the request on January 5, 2021, meaning the statutory 10-business-day deadline to provide copies expired on or about January 15, 2021.

The Association failed to provide the documents within this deadline. Instead, the HOA made delayed and erroneous attempts to schedule document review and send copies. Early communications were misaddressed or misnamed (using "Norm Burnes" or an incorrect address), delaying the Petitioner's ability to review or receive documents. Petitioner only had the opportunity to inspect the records on February 4, 2021, and did not receive copies until February 27, 2021, after the Association resent the package using his correct legal name, Clifford Burnes.

Main Issues and Arguments

The core legal issue was whether the Respondent HOA violated A.R.S. § 33-1805 by failing to provide copies of requested records within ten business days.

  • Petitioner’s Argument: Petitioner asserted the Association wrongly required him to inspect the documents prior to providing copies and failed to provide copies within the statutory ten-day period. Petitioner sought an order requiring compliance, reimbursement of his filing fee, and imposition of a civil fine.
  • Respondent’s Argument: The Association argued that it interpreted A.R.S. § 33-1805 to allow them to require a homeowner to inspect documents before providing copies for "efficiency". The HOA claimed to have acted in good faith, attempting to shift the blame for mailing errors to the Petitioner's inconsistent use of the name "Norm Burnes," although counsel acknowledged the HOA possessed the Petitioner's correct legal name and address.

Legal Conclusion and Outcome

The Administrative Law Judge (ALJ) concluded that nothing in ARIZ. REV. STAT. § 33-1805 permits a homeowners’ association to require members to first inspect records before providing copies requested by members.

Since the Petitioner specifically requested copies and the statute clearly states the association has ten business days to provide copies "On request for purchase of copies of records," the Association was determined to have failed to comply with the statutory mandate.

The ALJ found that Petitioner sustained his burden of proof by a preponderance of the evidence, establishing that the Association violated A.R.S. § 33-1805.

Final Decision

The Petitioner’s petition was granted.

The Administrative Law Judge ORDERED:

  1. Respondent must reimburse Petitioner’s filing fee of $500.00 in certified funds.
  2. Respondent shall henceforth comply with ARIZ. REV. STAT. § 33-1805.

Questions

Question

Can my HOA force me to inspect records in person before they will provide me with copies?

Short Answer

No. The HOA cannot require an in-person inspection as a prerequisite to providing copies.

Detailed Answer

The Administrative Law Judge ruled that Arizona statute allows homeowners to request copies directly. While the HOA can make records available for inspection, they cannot force a member to inspect them first if the member has requested copies. Doing so violates the statutory requirement to provide copies within ten business days.

Alj Quote

Nothing in ARIZ. REV. STAT. § 33-1805 can be read to permit an HOA to require members to first inspect records before it provides copies of records requested by members.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • records request
  • inspection
  • homeowner rights

Question

How many days does the HOA have to provide copies of records I requested?

Short Answer

The HOA must provide copies within 10 business days.

Detailed Answer

Under Arizona law, once a member requests to purchase copies of records, the association has a strict deadline of ten business days to fulfill that request.

Alj Quote

On request for purchase of copies of records by any member or any person designated by the member in writing as the member's representative, the association shall have ten business days to provide copies of the requested records.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • deadlines
  • records request
  • HOA obligations

Question

What is the maximum amount the HOA can charge me for copies of records?

Short Answer

The HOA cannot charge more than 15 cents per page.

Detailed Answer

The statute limits the fee an association may charge for copying records to a maximum of 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

Topic Tags

  • fees
  • records request
  • costs

Question

Can the HOA charge me a fee just to look at or review records?

Short Answer

No. The HOA cannot charge for making materials available for review.

Detailed Answer

While the HOA can charge for copies, they are explicitly prohibited from charging a member for the act of making the material available for examination/review.

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

Topic Tags

  • fees
  • records review
  • homeowner rights

Question

If I win my hearing against the HOA, can I get my $500 filing fee back?

Short Answer

Yes, the judge can order the HOA to reimburse your filing fee.

Detailed Answer

In this case, because the homeowner prevailed in proving the violation, the Administrative Law Judge ordered the HOA to reimburse the filing fee.

Alj Quote

IT IS FURTHER ORDERED that Respondent reimburse Petitioner’s filing fee of $500.00 in certified funds.

Legal Basis

Order

Topic Tags

  • reimbursement
  • penalties
  • legal costs

Question

Can I authorize someone else to look at the HOA records for me?

Short Answer

Yes, if you designate them in writing.

Detailed Answer

The statute allows records to be examined by the member or any person the member designates in writing as their representative.

Alj Quote

…all financial and other records of the association shall be made reasonably available for examination by any member or any person designated by the member in writing as the member's representative.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • representation
  • records request
  • homeowner rights

Question

What standard of proof do I need to meet to win a case against my HOA?

Short Answer

Preponderance of the evidence.

Detailed Answer

The petitioner (homeowner) must prove that their contention is more probably true than not. It requires superior evidentiary weight, though not necessarily freedom from all doubt.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1805.

Legal Basis

Legal Standard

Topic Tags

  • burden of proof
  • legal standards
  • hearing procedure

Question

Is it a valid excuse if the HOA says mailing the records to the wrong name/address was just a mistake?

Short Answer

No. If the HOA has the correct legal name and address on file, mailing to a nickname or wrong address does not satisfy the requirement to provide records on time.

Detailed Answer

The HOA attempted to shift blame to the homeowner for using a nickname in emails, but the judge noted the HOA had the official member list with the legal name. Failing to use the correct information resulted in a violation of the 10-day deadline.

Alj Quote

Respondent cannot be said to have provided Petitioner with copies of the records he requested within 10 days of his request.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • excuses
  • mailing
  • HOA obligations

Case

Docket No
22F-H2221010-REL
Case Title
Clifford Burnes vs. Saguaro Crest Homeowners Association, Inc.
Decision Date
2021-12-09
Alj Name
Tammy L. Eigenheer
Tribunal
OAH
Agency
ADRE

Questions

Question

Can my HOA force me to inspect records in person before they will provide me with copies?

Short Answer

No. The HOA cannot require an in-person inspection as a prerequisite to providing copies.

Detailed Answer

The Administrative Law Judge ruled that Arizona statute allows homeowners to request copies directly. While the HOA can make records available for inspection, they cannot force a member to inspect them first if the member has requested copies. Doing so violates the statutory requirement to provide copies within ten business days.

Alj Quote

Nothing in ARIZ. REV. STAT. § 33-1805 can be read to permit an HOA to require members to first inspect records before it provides copies of records requested by members.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • records request
  • inspection
  • homeowner rights

Question

How many days does the HOA have to provide copies of records I requested?

Short Answer

The HOA must provide copies within 10 business days.

Detailed Answer

Under Arizona law, once a member requests to purchase copies of records, the association has a strict deadline of ten business days to fulfill that request.

Alj Quote

On request for purchase of copies of records by any member or any person designated by the member in writing as the member's representative, the association shall have ten business days to provide copies of the requested records.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • deadlines
  • records request
  • HOA obligations

Question

What is the maximum amount the HOA can charge me for copies of records?

Short Answer

The HOA cannot charge more than 15 cents per page.

Detailed Answer

The statute limits the fee an association may charge for copying records to a maximum of 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

Topic Tags

  • fees
  • records request
  • costs

Question

Can the HOA charge me a fee just to look at or review records?

Short Answer

No. The HOA cannot charge for making materials available for review.

Detailed Answer

While the HOA can charge for copies, they are explicitly prohibited from charging a member for the act of making the material available for examination/review.

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

Topic Tags

  • fees
  • records review
  • homeowner rights

Question

If I win my hearing against the HOA, can I get my $500 filing fee back?

Short Answer

Yes, the judge can order the HOA to reimburse your filing fee.

Detailed Answer

In this case, because the homeowner prevailed in proving the violation, the Administrative Law Judge ordered the HOA to reimburse the filing fee.

Alj Quote

IT IS FURTHER ORDERED that Respondent reimburse Petitioner’s filing fee of $500.00 in certified funds.

Legal Basis

Order

Topic Tags

  • reimbursement
  • penalties
  • legal costs

Question

Can I authorize someone else to look at the HOA records for me?

Short Answer

Yes, if you designate them in writing.

Detailed Answer

The statute allows records to be examined by the member or any person the member designates in writing as their representative.

Alj Quote

…all financial and other records of the association shall be made reasonably available for examination by any member or any person designated by the member in writing as the member's representative.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • representation
  • records request
  • homeowner rights

Question

What standard of proof do I need to meet to win a case against my HOA?

Short Answer

Preponderance of the evidence.

Detailed Answer

The petitioner (homeowner) must prove that their contention is more probably true than not. It requires superior evidentiary weight, though not necessarily freedom from all doubt.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1805.

Legal Basis

Legal Standard

Topic Tags

  • burden of proof
  • legal standards
  • hearing procedure

Question

Is it a valid excuse if the HOA says mailing the records to the wrong name/address was just a mistake?

Short Answer

No. If the HOA has the correct legal name and address on file, mailing to a nickname or wrong address does not satisfy the requirement to provide records on time.

Detailed Answer

The HOA attempted to shift blame to the homeowner for using a nickname in emails, but the judge noted the HOA had the official member list with the legal name. Failing to use the correct information resulted in a violation of the 10-day deadline.

Alj Quote

Respondent cannot be said to have provided Petitioner with copies of the records he requested within 10 days of his request.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • excuses
  • mailing
  • HOA obligations

Case

Docket No
22F-H2221010-REL
Case Title
Clifford Burnes vs. Saguaro Crest Homeowners Association, Inc.
Decision Date
2021-12-09
Alj Name
Tammy L. Eigenheer
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Clifford Burnes (petitioner)
    Appeared on his own behalf; also identified as Clifford (Norm) Burnes or Norm Burnes,,,.

Respondent Side

  • John T. Crotty (respondent attorney)
    Farley, Choate & Wood
    Represented Saguaro Crest Homeowners Association,,.

Neutral Parties

  • Jenna Clark (ALJ)
    Listed as Administrative Law Judge.
  • Tammy L. Eigenheer (ALJ)
    Signed the Administrative Law Judge Decision.
  • Louis Dettorre (Commissioner)
    Arizona Department of Real Estate
    Recipient of transmission of the Decision.
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Email contact listed for transmission ([email protected]).
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Email contact listed for transmission ([email protected]).
  • DGardner (ADRE staff)
    Arizona Department of Real Estate
    Email contact listed for transmission ([email protected]).
  • vnunez (ADRE staff)
    Arizona Department of Real Estate
    Email contact listed for transmission ([email protected]).

Other Participants

  • Joseph Martinez (unknown)
    Petitioner verbally notified him regarding the undelivered certified mail package.

Rodney F Kirby v. Dove Cove Estates Homeowners Association

Posted on by

Case Summary

Case ID 21F-H2121049-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-10-12
Administrative Law Judge Jenna Clark
Outcome total
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Rodney & Patricia Kirby Counsel —
Respondent Dove Cove Estates Homeowners Association Counsel Lydia Peirce Linsmeier and Kaylee Ivy

Alleged Violations

CC&Rs Article IV, Section 4.1.1

Outcome Summary

The ALJ granted the Petitioners' petition, finding that the HOA violated CC&Rs Article IV section 4.1.1 by failing its duty to maintain common area landscaping (sissoo trees) in a state that did not cause damage or undue financial/health burden to the Petitioners' property. The HOA was ordered to refund the Petitioners' $500.00 filing fee.

Key Issues & Findings

Whether Dove Cove Estates Homeowners Association (Respondent) are in violation of CC&Rs Article IV, Sections 4.1, 4.1.1, 4.1.2, and 4.1.3 for failing to remove two (2) trees on community property, at the rear of Petitioners’ retaining wall, which have caused damage to Petitioners’ pool and patio slab.

Petitioners filed a single-issue petition alleging the Association violated CC&Rs Article IV sections 4.1, 4.1.1, 4.1.2, and 4.1.3 by refusing to remove two sissoo trees located on community property behind Petitioners’ residence, which caused debris, clogged pool pump, and caused complications with their retaining wall and back patio. The ALJ concluded the Association violated Article IV section 4.1.1 because the trees' condition caused damage and financial/health burden to Petitioners.

Orders: Petitioners' petition is granted. Respondent is ordered to pay Petitioners their filing fee of $500.00 within thirty (30) days. The Respondent is ordered to abide by the specified section of the planned community (Article IV section 4.1.1). No civil penalty shall be imposed.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. ADMIN. CODE R2-19-119
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

Analytics Highlights

Topics: HOA maintenance duty, CC&R violation, sissoo trees, filing fee refund, common area landscaping, pool damage
Additional Citations:

  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2199.02(B)
  • ARIZ. REV. STAT. § 41-1092.08(H)
  • ARIZ. REV. STAT. § 12-904(A)
  • ARIZ. REV. STAT. § 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. ADMIN. CODE R2-19-119
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

Video Overview

Audio Overview

Decision Documents

21F-H2121049-REL Decision – 940829.pdf

Uploaded 2026-04-24T11:35:22 (47.0 KB)

21F-H2121049-REL Decision – 950132.pdf

Uploaded 2026-04-24T11:35:29 (41.0 KB)

21F-H2121049-REL Decision – 916848.pdf

Uploaded 2026-04-24T11:35:33 (118.5 KB)

21F-H2121049-REL Decision – 917026.pdf

Uploaded 2026-04-24T11:35:36 (124.9 KB)

21F-H2121049-REL Decision – 916848.pdf

Uploaded 2026-01-23T17:37:48 (118.5 KB)

21F-H2121049-REL Decision – 917026.pdf

Uploaded 2026-01-23T17:37:51 (124.9 KB)

This summary details the hearing before Administrative Law Judge Jenna Clark at the Office of Administrative Hearings (OAH) on September 22, 2021, concerning a dispute between homeowners and their association.

Key Facts and Parties

The Petitioners, Rodney and Patricia Kirby, are property owners and members of the Dove Cove Estates Homeowners Association (HOA/Respondent). The Petitioners, who are retired and use their pool daily for exercise, filed a petition alleging the Association violated its Covenants, Conditions, and Restrictions (CC&Rs). The dispute centered on the Association's refusal to remove two sissoo trees, approximately 35 feet high, located on Common Area property just behind the Petitioners’ residence.

The Petitioners testified that since around 2017, the trees caused substantial problems: debris, including leaves and small dead animals, fell into their pool, clogging the pump, which had to be replaced multiple times. Furthermore, roots from the trees caused damage to their retaining wall and back patio slab.

Main Issue and Arguments

The core issue was whether the Association was in violation of CC&Rs Article IV, Sections 4.1 and 4.1.1 for failing to remove the two sissoo trees. CC&R Article IV required the Association to maintain and keep in good condition and repair the Common Area, including the maintenance, repair, and replacement of all landscaping and structures situated upon it.

The Respondent (HOA) denied the complaint, arguing that its duty of maintenance was fulfilled through its landscaping contractor, ProQual Landscaping. The HOA contended that it reasonably relied on ProQual's expert advice; ProQual had inspected the trees in April 2021 and advised that removal was unnecessary, instead leaving them on a regular trimming schedule.

The Petitioners argued that the Association’s inadequate maintenance endangered their health and welfare due to the debris and financial burdens incurred from pool and pump repairs and increased cleaning costs. They asserted that the Association had not given their request proper consideration.

Legal Points and Outcome

The OAH determined it had jurisdiction to hear the dispute and interpret the CC&Rs, which form an enforceable contract between the Association and property owners. Petitioners bore the burden of proof by a preponderance of the evidence.

The ALJ concluded that Petitioners sustained their burden of proof. The decision emphasized that the Association's duty to maintain the Common Area does not end at the boundary line. The evidence established that *but for* the sissoo trees being situated and maintained in their current state, the degree of debris causing damage or harm to Petitioners’ property would not exist.

Final Decision

The ALJ concluded that the Association had violated Article IV section 4.1.1 of the CC&Rs.

IT IS ORDERED that Petitioners’ petition is granted. The Respondent was FURTHER ORDERED to pay Petitioners their filing fee of $500.00 within thirty days. The OAH clarified that while it lacked statutory authority to grant declaratory or injunctive relief, the decision acts to "Order Respondent to abide by the section of the planned community specified".

Questions

Question

Does the HOA's duty to maintain common areas end strictly at the property line?

Short Answer

No. The HOA is responsible if common area elements (like trees) cause damage to adjacent private property.

Detailed Answer

The ALJ determined that the Association's responsibility for maintenance extends beyond the physical boundary if conditions on the common area negatively impact a homeowner's property. In this case, debris from common area trees caused damage to a private pool and patio.

Alj Quote

The Association’s duty to maintain the Common Area does not end at the boundary line of the Common Area.

Legal Basis

CC&Rs Article IV

Topic Tags

  • maintenance
  • common_area
  • liability

Question

Can the HOA avoid liability for damage by claiming they relied on a professional landscaping company's advice?

Short Answer

Not necessarily. Even if the HOA pays for regular maintenance and follows vendor advice, they may still be in violation if damage persists.

Detailed Answer

The HOA argued it was not in violation because it relied on its landscaper's (arborist's) recommendation not to remove the trees. The ALJ rejected this, ruling that despite the payments and advice, the damage caused to the homeowner proved a failure to maintain the common area properly under the CC&Rs.

Alj Quote

Despite the Association’s payment to ProQual for regular arbor maintenance, the sissoo trees still caused debris of all kinds to fill Petitioners’ pool and backyard… Petitioners established a violation of Article IV section 4.1.1 of the CC&Rs

Legal Basis

Contract Law / CC&Rs

Topic Tags

  • vendor_reliance
  • negligence
  • defenses

Question

What is the 'burden of proof' for a homeowner in an administrative hearing?

Short Answer

The homeowner must prove their case by a 'preponderance of the evidence'.

Detailed Answer

The petitioner (homeowner) is responsible for providing enough evidence to show that their claim is more likely true than not. It is not based on the number of witnesses, but the convincing force of the evidence.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated a community document.

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • burden_of_proof
  • evidence
  • procedure

Question

Can the Administrative Law Judge order the HOA to perform a specific act, like cutting down a tree?

Short Answer

Generally, no. The Tribunal lacks statutory authority to grant injunctive relief.

Detailed Answer

The ALJ cannot issue an injunction or declaratory relief (specific orders to do or not do a specific act). Instead, the order generally directs the HOA to 'abide by' the specific section of the community documents, leaving the specific method of compliance somewhat open.

Alj Quote

Because this Tribunal has no statutory authority to grant Petitioners’ declaratory or injunctive relief, this decision is expressly issued to 'Order Respondent to abide by the section of the planned community specified.'

Legal Basis

Statutory Authority

Topic Tags

  • remedies
  • injunctive_relief
  • alj_powers

Question

If I win my hearing against the HOA, can I get my filing fee back?

Short Answer

Yes, the ALJ can order the HOA to reimburse the filing fee.

Detailed Answer

In this decision, the ALJ ordered the Association to pay the $500.00 filing fee directly to the Petitioners within 30 days.

Alj Quote

IT IS FURTHER ORDERED that Respondent pay Petitioners their filing fee of $500.00, to be paid directly to Petitioners within thirty (30) days of this ORDER.

Legal Basis

Administrative Order

Topic Tags

  • fees
  • reimbursement
  • costs

Question

What kind of damage is required to prove the HOA failed to maintain the common area?

Short Answer

The homeowner must show actual damage, harm, or financial burden caused by the condition.

Detailed Answer

The decision noted that the debris caused a financial burden (cleaning costs, pump replacement) and potential health risks. The mere presence of trees wasn't the issue; it was the specific damage and harm resulting from them.

Alj Quote

The record does reflect that, but for the sissoo trees being situated where they are and in the state they are in, there would not be debris to a degree on Petitioners’ property that caused any amount of damage or harm.

Legal Basis

Evidence of Damages

Topic Tags

  • damages
  • nuisance
  • evidence

Question

Who has the authority to hear disputes between a homeowner and an HOA?

Short Answer

The Arizona Department of Real Estate (ADRE) and the Office of Administrative Hearings (OAH).

Detailed Answer

Statutes authorize the Department to receive petitions regarding violations of community documents or statutes regulating planned communities.

Alj Quote

The Department is authorized by statute to receive and to decide petitions for hearings from members of homeowners’ associations and from homeowners’ associations in Arizona.

Legal Basis

ARIZ. REV. STAT. §§ 32-2102

Topic Tags

  • jurisdiction
  • adre
  • oah

Case

Docket No
21F-H2121049-REL
Case Title
Rodney & Patricia Kirby vs. Dove Cove Estates Homeowners Association
Decision Date
2021-10-12
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Questions

Question

Does the HOA's duty to maintain common areas end strictly at the property line?

Short Answer

No. The HOA is responsible if common area elements (like trees) cause damage to adjacent private property.

Detailed Answer

The ALJ determined that the Association's responsibility for maintenance extends beyond the physical boundary if conditions on the common area negatively impact a homeowner's property. In this case, debris from common area trees caused damage to a private pool and patio.

Alj Quote

The Association’s duty to maintain the Common Area does not end at the boundary line of the Common Area.

Legal Basis

CC&Rs Article IV

Topic Tags

  • maintenance
  • common_area
  • liability

Question

Can the HOA avoid liability for damage by claiming they relied on a professional landscaping company's advice?

Short Answer

Not necessarily. Even if the HOA pays for regular maintenance and follows vendor advice, they may still be in violation if damage persists.

Detailed Answer

The HOA argued it was not in violation because it relied on its landscaper's (arborist's) recommendation not to remove the trees. The ALJ rejected this, ruling that despite the payments and advice, the damage caused to the homeowner proved a failure to maintain the common area properly under the CC&Rs.

Alj Quote

Despite the Association’s payment to ProQual for regular arbor maintenance, the sissoo trees still caused debris of all kinds to fill Petitioners’ pool and backyard… Petitioners established a violation of Article IV section 4.1.1 of the CC&Rs

Legal Basis

Contract Law / CC&Rs

Topic Tags

  • vendor_reliance
  • negligence
  • defenses

Question

What is the 'burden of proof' for a homeowner in an administrative hearing?

Short Answer

The homeowner must prove their case by a 'preponderance of the evidence'.

Detailed Answer

The petitioner (homeowner) is responsible for providing enough evidence to show that their claim is more likely true than not. It is not based on the number of witnesses, but the convincing force of the evidence.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated a community document.

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • burden_of_proof
  • evidence
  • procedure

Question

Can the Administrative Law Judge order the HOA to perform a specific act, like cutting down a tree?

Short Answer

Generally, no. The Tribunal lacks statutory authority to grant injunctive relief.

Detailed Answer

The ALJ cannot issue an injunction or declaratory relief (specific orders to do or not do a specific act). Instead, the order generally directs the HOA to 'abide by' the specific section of the community documents, leaving the specific method of compliance somewhat open.

Alj Quote

Because this Tribunal has no statutory authority to grant Petitioners’ declaratory or injunctive relief, this decision is expressly issued to 'Order Respondent to abide by the section of the planned community specified.'

Legal Basis

Statutory Authority

Topic Tags

  • remedies
  • injunctive_relief
  • alj_powers

Question

If I win my hearing against the HOA, can I get my filing fee back?

Short Answer

Yes, the ALJ can order the HOA to reimburse the filing fee.

Detailed Answer

In this decision, the ALJ ordered the Association to pay the $500.00 filing fee directly to the Petitioners within 30 days.

Alj Quote

IT IS FURTHER ORDERED that Respondent pay Petitioners their filing fee of $500.00, to be paid directly to Petitioners within thirty (30) days of this ORDER.

Legal Basis

Administrative Order

Topic Tags

  • fees
  • reimbursement
  • costs

Question

What kind of damage is required to prove the HOA failed to maintain the common area?

Short Answer

The homeowner must show actual damage, harm, or financial burden caused by the condition.

Detailed Answer

The decision noted that the debris caused a financial burden (cleaning costs, pump replacement) and potential health risks. The mere presence of trees wasn't the issue; it was the specific damage and harm resulting from them.

Alj Quote

The record does reflect that, but for the sissoo trees being situated where they are and in the state they are in, there would not be debris to a degree on Petitioners’ property that caused any amount of damage or harm.

Legal Basis

Evidence of Damages

Topic Tags

  • damages
  • nuisance
  • evidence

Question

Who has the authority to hear disputes between a homeowner and an HOA?

Short Answer

The Arizona Department of Real Estate (ADRE) and the Office of Administrative Hearings (OAH).

Detailed Answer

Statutes authorize the Department to receive petitions regarding violations of community documents or statutes regulating planned communities.

Alj Quote

The Department is authorized by statute to receive and to decide petitions for hearings from members of homeowners’ associations and from homeowners’ associations in Arizona.

Legal Basis

ARIZ. REV. STAT. §§ 32-2102

Topic Tags

  • jurisdiction
  • adre
  • oah

Case

Docket No
21F-H2121049-REL
Case Title
Rodney & Patricia Kirby vs. Dove Cove Estates Homeowners Association
Decision Date
2021-10-12
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Rodney Kirby (petitioner)
  • Patricia Kirby (petitioner)

Respondent Side

  • Lydia Peirce Linsmeier (HOA attorney)
    Carpenter, Hazelwood, Delgado & Bolen LLP
  • Kaylee Ivy (HOA attorney)
    Carpenter, Hazelwood, Delgado & Bolen LLP
  • Regis Salazar (witness)

Neutral Parties

  • Jenna Clark (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate

Michael E Palacios v. El Rio Community Association

Posted on by

Case Summary

Case ID 21F-H2121053-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-08-13
Administrative Law Judge Adam D. Stone
Outcome 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.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Michael E Palacios Counsel —
Respondent El Rio Community Association Counsel Quinten T. Cupps

Alleged Violations

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)

This summary details the Administrative Law Judge (ALJ) Decision in the case of Michael E Palacios v. El Rio Community Association, No. 21F-H2121053-REL. The hearing took place on August 4, 2021, before Administrative Law Judge Adam D. Stone.

Key Facts and Proceedings

The Petitioner, Michael E. Palacios, is a property owner and member of the El Rio Community Association (Association). After being appointed to the Board on March 24, 2021, the Petitioner filed a single-issue petition with the Department of Real Estate on May 10, 2021, asserting that the Association failed to fulfill a records request made on March 30, 2021. The Respondent Association denied all claims. The Department referred the matter to the Office of Administrative Hearings (OAH) for an evidentiary hearing. OAH has the authority to hear contested cases concerning disputes between an owner and a planned community association regarding violations of community documents or statutes.

Main Issue and Legal Points

The central issue addressed was whether the Association violated A.R.S. § 33-1805 and the Association Bylaws Article 11.3 by failing to fulfill the records request. Under the relevant statute, associations must make financial and other records reasonably available to members, typically within ten business days. The Association Bylaws Article 11.3 further grants every Director (which the Petitioner was) an absolute right to inspect all books and records. Petitioner bore the burden of proving the violation by a preponderance of the evidence.

Key Arguments

  1. Petitioner’s Arguments: Petitioner Palacios testified that the Association failed to completely fulfill his March 30 request, alleging he received only about 5% of the documents initially. Specifically, he claimed he did not receive the property management contract (D & E Management), attorney contracts, landscaper contracts, Board minutes, cancelled checks, and ledgers. He also asserted that some provided documents might be false or forged because they contained the incorrect association name ("El Rio Estates Homeowners Association").
  1. Respondent’s Arguments: Denise Ferreira, the manager for the Association's management company (D & E), testified that the Association fully complied with the request, though the compliance was untimely regarding copies of checks due to the bank needing time to prepare the large request. Ferreira explained that there were no ongoing contracts with attorneys or landscapers, and payments related to these services were disclosed through the checks and ledgers provided. Regarding the incorrect name, Ferreira attributed it to an ongoing controversy where some Board members attempted to change the name, but instructions were given to cease using the incorrect name until it was formally modified.

Outcome and Final Decision

The Administrative Law Judge determined that the material facts were not in dispute. The ALJ found that the Petitioner had made a proper request, and the Respondent timely responded, informing the Petitioner of potential delays. Crucially, the ALJ concluded that Petitioner presented no credible evidence that documents existed which were not disclosed.

Therefore, the Petitioner failed to meet the burden of proof required to demonstrate that the Association violated ARIZ. REV. STAT. § 33-1805 or Article 11.3 of the Bylaws.

The final order denied the Petitioner’s petition and his request to levy a civil penalty against the Respondent. Furthermore, the Respondent was not required to reimburse the Petitioner’s filing fee. The decision was transmitted on August 13, 2021.

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

Sandra Swanson & Robert Barnes v. Circle G Ranches 4 Homeowners

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Case Summary

Case ID 21F-H2120020-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2022-02-02
Administrative Law Judge Jenna Clark
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Sandra Swanson & Robert Barnes Counsel Kristin Roebuck Bethell, Esq.
Respondent Circle G Ranches 4 Homeowners Association Counsel Samantha Cote, Esq.

Alleged Violations

ARIZ. REV. STAT. § 33-1805

Outcome Summary

The Administrative Law Judge denied the Petitioners' petition, concluding they failed to prove by a preponderance of the evidence that the Homeowners Association violated ARIZ. REV. STAT. § 33-1805 regarding the availability of voting records.

Why this result: Petitioners failed to demonstrate that the HOA violated the statute through its NDA request or its method of providing the records (redacted ballots and separate unredacted envelopes) and failed to prove the records were not made reasonably available within the required statutory time frame.

Key Issues & Findings

Failure to comply with voting records request (regarding assessment and cumulative voting records)

Petitioners alleged the Association violated ARIZ. REV. STAT. § 33-1805 by requiring an NDA and providing redacted ballots and separate unredacted envelopes, which prevented Petitioners from cross-referencing votes with voters. Respondent argued it timely provided the totality of the requested information and that the manner of delivery did not violate the statute.

Orders: Petitioners' petition is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 33-1805
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2199.02(B)
  • ARIZ. REV. STAT. § 41-1092.08(H)
  • ARIZ. REV. STAT. § 12-904(A)
  • ARIZ. ADMIN. CODE R2-19-119

Analytics Highlights

Topics: Records Request, HOA Governance, Statute Violation, Voting Records, Non-Disclosure Agreement (NDA)
Additional Citations:

  • ARIZ. REV. STAT. § 33-1805

Video Overview

Audio Overview

Decision Documents

21F-H2120020-REL Decision – 944169.pdf

Uploaded 2026-04-24T11:31:09 (184.1 KB)

21F-H2120020-REL Decision – 944171.pdf

Uploaded 2026-04-24T11:31:17 (184.1 KB)

21F-H2120020-REL Decision – 881665.pdf

Uploaded 2026-04-24T11:31:20 (167.3 KB)

Administrative Law Judge Decision: Swanson & Barnes v. Circle G Ranches 4 HOA

Executive Summary

This briefing document analyzes the Administrative Law Judge (ALJ) Decision in case number 21F-H2120020-REL-RHG, a dispute between homeowners Sandra Swanson & Robert Barnes (“Petitioners”) and the Circle G Ranches 4 Homeowners Association (“Respondent”). The core issue was whether the Association violated Arizona Revised Statute (ARIZ. REV. STAT.) § 33-1805 by its handling of the Petitioners’ request for voting records.

The final order, issued on February 2, 2022, denied the petition. The ALJ concluded that the Petitioners failed to sustain their burden of proof that a statutory violation occurred. The decision found that the Association’s method of providing the requested documents—redacted ballots in one stack and unredacted envelopes in another—was a “reasonable” approach that balanced the Petitioners’ right to examination with the Association’s duty to protect member privacy. While acknowledging this methodology was “not ideal,” the ALJ determined it made the totality of the requested information “reasonably available” as required by law and was not a violation. The ruling also established that the Association’s initial request for the Petitioners to sign a non-disclosure agreement did not constitute a statutory violation.

Case Overview

Entity

Details

Case Number

21F-H2120020-REL-RHG

Adjudicating Body

Arizona Office of Administrative Hearings (OAH)

Administrative Law Judge

Jenna Clark

Petitioners

Sandra Swanson & Robert Barnes

Respondent

Circle G Ranches 4 Homeowners Association

Central Allegation

Respondent failed to comply with a January 16, 2020, voting records request, violating ARIZ. REV. STAT. § 33-1805.

Final Order Date

February 2, 2022

Outcome

Petition Denied.

Chronology of Key Events

• October 4, 2017: The Association’s Board of Directors adopts the “Rule Requiring Secret Ballots” for votes on special assessments.

• October 28, 2019 (approx.): A vote occurs regarding an increase in association dues.

• December 2019: A vote occurs regarding a proposed CC&R amendment to prohibit cumulative voting.

• January 6, 2020: Petitioners submit a written request to view the votes for the cumulative voting amendment.

• January 13, 2020: The Association’s Board votes 8:1 to require Petitioners to sign a nondisclosure agreement (NDA) before viewing the ballots, citing member privacy concerns. Petitioners decline to sign the NDA.

• January 16, 2020: Counsel for Petitioners submits a formal written request for all ballots and related documents for both the dues increase vote and the cumulative voting amendment.

• January 30, 2020: The Association’s counsel responds, stating the Association must “balance your clients’ requests against the privacy and safety of all Owners” and that the records will be made available for inspection.

• February 7, 2020: Petitioners inspect documents at the office of the Association’s counsel. They are provided with two stacks of documents: redacted ballots and unredacted envelopes. They review the cumulative voting records for approximately 3.5 hours but cannot match specific ballots to specific voter envelopes.

• August 5, 2020: Petitioners issue a new demand for “unredacted ballots” and all related documents. No additional documentation is provided.

• September 22, 2020: Petitioners file a petition with the Arizona Department of Real Estate, initiating the formal dispute process.

• May 17, 2021: An initial ALJ Decision is issued.

• June 22, 2021: Petitioners file a request for a rehearing on the grounds that the decision was “arbitrary, capricious, or an abuse of discretion.”

• July 15, 2021: The rehearing request is granted.

• January 13, 2022: The evidentiary rehearing is held before the OAH.

• February 2, 2022: The final ALJ Decision is issued, again denying the Petitioners’ petition.

Central Legal Arguments

The rehearing focused on oral arguments from both parties regarding the interpretation of ARIZ. REV. STAT. § 33-1805, which mandates that association records be made “reasonably available” for member examination.

Petitioners’ Position

• Unredacted Records Required: The statute requires the production of unredacted copies of requested documents, and the Association’s failure to provide original, unaltered documents was a violation.

• Methodology Impeded Access: By providing redacted ballots and separate unredacted envelopes, the Respondent prevented the Petitioners from cross-referencing votes with voters. This action meant the documents were not made “reasonably available.”

• NDA Was an Unlawful Barrier: The Association’s demand for an NDA was not supported by any enumerated exception in the statute and constituted an unlawful barrier to accessing records.

• No Expectation of Privacy: Petitioners argued that the ballots were not truly “secret ballots” because some had names or signatures on them, meaning voters “could not have reasonably held an expectation of privacy.”

Respondent’s Position

• Statute is Silent on Method: The statute does not specify how records must be made available, only that they must be. Respondent argued it had complied by providing the “totality of records” requested in a timely fashion.

• Balancing of Duties: The Association devised a method to satisfy its dual obligations: complying with the records request and protecting its members’ privacy and safety. This concern was heightened by complaints from other homeowners about “harassing” behaviors by the Petitioners.

• Information Was Provided: The two sets of documents (redacted ballots, unredacted envelopes) amounted to one complete set of unredacted records, allowing Petitioners to “cross reference and discern the information they sought.”

• NDA Was Reasonable: The NDA was proposed to protect member privacy regarding their secret ballot votes. Respondent argued it was ultimately irrelevant to the case, as the records were provided even after Petitioners declined to sign it.

Administrative Law Judge’s Analysis and Final Order

The ALJ’s decision rested on a direct interpretation of ARIZ. REV. STAT. § 33-1805 and a finding that the Petitioners did not meet their evidentiary burden.

Key Rulings and Conclusions of Law

1. Burden of Proof: The Petitioners bore the burden of proving by a “preponderance of the evidence” that the Association violated the statute. The ALJ concluded they failed to do so.

2. On the NDA: The Judge explicitly held that “Respondent’s request that Petitioners sign an NDA does not constitute a violation of ARIZ. REV. STAT. § 33-1805.”

3. On Timeliness: The Association’s response on January 30, 2020, to the January 16, 2020, request was within the 10-business-day statutory deadline (which ended January 31, 2020). The Petitioners did not establish that the documents were unavailable for review prior to the February 7 inspection date.

4. On the Method of Disclosure: This was the central finding. The decision states that the manner in which the documents were provided did not violate the statute. The ALJ found that the record reflected that “Petitioners timely received the totality of the documents from their records request(s).” Because there was no evidence that the documents were not made “reasonably available,” a violation could not be concluded.

5. Reasonableness of Association’s Actions: The ALJ offered a final assessment of the Association’s methodology: “While Respondent’s methodology of document delivery to Petitioners may have not been ideal, under the totality of underlying circumstances the decision reasonable and within the requirements of the applicable statute(s).”

Final Order

Based on the finding that the Petitioners did not sustain their burden of proof, the final order was unambiguous: “IT IS ORDERED that Petitioners’ petition is denied.”

The order is binding on the parties, who were notified of their right to seek judicial review by filing an appeal with the Superior Court within 35 days from the date of service.

Study Guide: Swanson & Barnes v. Circle G Ranches 4 HOA

This guide provides a comprehensive review of the Administrative Law Judge Decision in case number 21F-H2120020-REL-RHG. It is designed to test and reinforce understanding of the key parties, events, arguments, and legal principles outlined in the case.

Short-Answer Quiz

Answer the following questions in 2-3 complete sentences, drawing exclusively from the information provided in the case documents.

1. Who are the primary parties involved in this legal dispute, and what are their respective roles?

2. What specific statute did the Petitioners allege the Respondent violated, and what is the core requirement of that statute?

3. What two specific sets of voting records did the Petitioners request from the Association in their January 16, 2020 letter?

4. What action did the Association’s Board of Directors take on January 13, 2020, in response to the Petitioners’ initial request, and what was their stated reason for doing so?

5. Describe the method the Association used to provide the requested voting records to the Petitioners on February 7, 2020.

6. What was the Petitioners’ main argument for why the Association’s method of providing the documents failed to comply with the law?

7. What was the Association’s primary defense for the way it provided the records and for its overall actions?

8. According to the “Conclusions of Law,” who bears the burden of proof in this proceeding, and what is the standard required to meet that burden?

9. What was the Administrative Law Judge’s final conclusion regarding the Association’s request that the Petitioners sign a nondisclosure agreement (NDA)?

10. What was the ultimate outcome of the case as determined by the Administrative Law Judge in the final order issued on February 2, 2022?

——————————————————————————–

Answer Key

1. The primary parties are Sandra Swanson & Robert Barnes, who are the “Petitioners,” and the Circle G Ranches 4 Homeowners Association, which is the “Respondent.” The Petitioners are property owners and members of the Association who filed a complaint against it. The Association is the governing body for the residential development, managed by Vision Community Management, LLC.

2. The Petitioners alleged a violation of Arizona Revised Statutes (ARIZ. REV. STAT.) § 33-1805. The core requirement of this statute is that all financial and other records of a homeowners’ association must be made “reasonably available” for examination by any member within ten business days of a request.

3. The January 16, 2020 letter requested all ballots and related documents from the vote regarding the increase in dues that occurred around October 28, 2019. It also requested all written consent forms and ballots for the Proposed Declaration Amendment regarding cumulative voting, which occurred in December 2019.

4. On January 13, 2020, the Board of Directors voted 8 to 1 to require the Petitioners to sign a nondisclosure agreement (NDA) before viewing the ballots. Their stated reason was a concern for members’ expectation of privacy regarding non-public information and a fear that members could be harassed based on their votes.

5. The Association provided the Petitioners with two separate stacks of documents. One stack contained redacted ballots, and the other stack contained unredacted envelopes that the ballots had been mailed in. This method separated the vote from the identity of the voter.

6. The Petitioners argued that by providing redacted copies and separate envelopes, the Respondent had not made the documents “reasonably available” as required by statute. They contended this method created an unlawful barrier because they were unable to cross-reference the ballots with the purported voters to verify the vote.

7. The Association defended its actions by arguing that the statute does not specify the how records should be produced, only that they be made available. It contended that it provided the totality of the information requested in a timely manner while also fulfilling its duty to protect the privacy and safety of its members from potential harassment.

8. The Petitioners bear the burden of proving by a “preponderance of the evidence” that the Respondent violated the statute. A preponderance of the evidence is defined as proof that convinces the trier of fact that a contention is more probably true than not.

9. The Administrative Law Judge concluded that the Respondent’s request for the Petitioners to sign an NDA did not constitute a violation of ARIZ. REV. STAT. § 33-1805. The judge also noted the NDA was ultimately irrelevant to the outcome because the Association provided the documents even though the Petitioners declined to sign it.

10. The Administrative Law Judge denied the Petitioners’ petition. The judge concluded that the Petitioners did not sustain their burden of proof to show that the Association had committed a violation of ARIZ. REV. STAT. § 33-1805, finding the Association’s actions to be reasonable under the circumstances.

——————————————————————————–

Essay Questions

The following questions are designed to encourage deeper analysis of the case. Formulate a comprehensive response for each prompt, citing specific facts and arguments from the case documents.

1. Analyze the central legal conflict over the interpretation of the phrase “reasonably available” in ARIZ. REV. STAT. § 33-1805. Contrast the arguments made by the Petitioners and the Respondent, and explain how the Administrative Law Judge ultimately resolved this conflict in the decision.

2. Discuss the competing interests the Circle G Ranches 4 Homeowners Association attempted to balance in its response to the records request. Evaluate the measures it took, including the proposed NDA and the method of document delivery, in light of its duties to both the Petitioners and its general membership.

3. Trace the procedural history of the case from the initial petition filing on September 22, 2020, to the final order on February 2, 2022. What does this timeline reveal about the administrative hearing and appeals process for HOA disputes in Arizona?

4. The Petitioners argued that the ballots in question were not truly “secret ballots” and that voters could not have had a reasonable expectation of privacy. Based on the evidence presented, construct an argument supporting this position and a counter-argument defending the Association’s stance on member privacy.

5. Examine the legal reasoning employed by the Administrative Law Judge in the “Conclusions of Law.” How did principles of statutory construction and the “preponderance of the evidence” standard directly influence the final order denying the Petitioners’ petition?

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Glossary of Key Terms

Definition in the Context of the Document

Administrative Law Judge (ALJ)

The official, in this case Jenna Clark, who presides over the evidentiary hearing at the Office of Administrative Hearings and issues a decision based on findings of fact and conclusions of law.

ARIZ. REV. STAT. § 33-1805

The specific Arizona statute at the heart of the dispute, which mandates that a homeowners’ association’s records be made “reasonably available” for member examination within ten business days of a request.

Association / Respondent

The Circle G Ranches 4 Homeowners Association, the governing body for the residential development and the party against whom the petition was filed.

Board of Directors (the Board)

The group that oversees the Association and is responsible for its governance. The Board voted to require an NDA before releasing voting records.

Burden of Proof

The obligation of a party in a trial (in this case, the Petitioners) to produce the evidence that will prove the claims they have made against the other party.

Covenants, Conditions, and Restrictions. These are the governing documents for the Circle G Ranches 4 Homeowners Association.

Department

The Arizona Department of Real Estate, the state agency authorized to receive and decide on petitions for hearings involving homeowners’ associations.

Nondisclosure Agreement (NDA)

A legal contract proposed by the Association’s Board that would have required the Petitioners to keep the voting information confidential. The Petitioners declined to sign it.

Office of Administrative Hearings (OAH)

An independent state agency to which the Department refers HOA dispute cases for an evidentiary hearing before an Administrative Law Judge.

Petitioners

Sandra Swanson and Robert Barnes, members of the Association who filed the petition alleging a violation of state law by the Association.

Preponderance of the Evidence

The evidentiary standard required for the Petitioners to win their case. It is defined as proof that convinces the judge that a contention is more probably true than not.

Redacted

Edited to remove or black out confidential or private information. The Association provided redacted ballots to the Petitioners to protect member privacy.

Vision Community Management, LLC (Vision)

The management company hired by and acting on behalf of the Association.

Your HOA Can Legally Keep Secrets From You. Here’s How.

Introduction: The Fight for Transparency

As a homeowner in an association, you assume a right to see the records. Transparency, after all, is the bedrock of accountability. But a recent legal dispute in Arizona offers a masterclass in how the gap between a right to information and the reality of obtaining it can be vast. The case demonstrates how a determined HOA, armed with a nuanced legal strategy and a literal interpretation of the law, can fulfill its obligation to provide records while ensuring they reveal almost nothing. It’s a story of escalation that began not with redacted documents, but with a demand for a nondisclosure agreement, setting the stage for a battle over what it truly means for records to be “available.”

1. The Two-Pile Shuffle: How “Access” Doesn’t Always Mean “Answers”

The conflict began with a standard request from a group of homeowners (the Petitioners) to examine their HOA’s voting records. The Board’s response, however, was anything but standard. Citing privacy concerns, the Board voted 8-to-1 on a crucial first move: it would require the homeowners to sign a nondisclosure agreement (NDA) before they could view the ballots. The homeowners refused, creating a standoff.

Forced to provide access but unwilling to yield on its privacy stance, the HOA (the Respondent) devised a clever workaround. When the homeowners arrived to inspect the approximately 122 pages of records, they weren’t handed a coherent set of documents. Instead, after spending roughly three and a half hours sifting through the materials, they discovered they had been given two separate stacks: one containing redacted ballots with the votes visible but the names blacked out, and another containing the unredacted envelopes they arrived in.

This “two-pile shuffle” made it impossible to match a ballot to a voter, effectively neutralizing the homeowners’ ability to verify the vote. They argued that this method failed to make the documents “reasonably available” as required by Arizona statute. The HOA’s strategy proved legally astute, leading to a court case that hinged on the very definition of access.

2. The Privacy Shield: A Proactive Defense

The HOA’s justification for its actions was a proactive and layered defense rooted in protecting its members. The Board’s initial demand for an NDA was not a retroactive excuse, but its opening move, signaling a deep-seated concern that releasing the voting information could lead to conflict within the community.

This concern was not merely abstract. Faced with multiple homeowner complaints labeling the Petitioners’ behavior as “harassing,” the Board first attempted to manage the information release by requiring the nondisclosure agreement. When that failed, it developed the two-pile system. The HOA’s legal position was that it had a duty to balance the homeowners’ request against the “privacy and safety of all Owners.” In a letter, the association’s counsel articulated this position clearly:

The Association’s position is that it has to balance your clients’ requests against the privacy and safety of all Owners within the Association. The Board is concerned with the personal information contained on the written consent forms or other documents and fears that individual members will be retaliated against or harassed based on a member’s decision to support, or not support, the matters up for a decision.

This defense, framed as a duty to protect the community from internal strife, became the cornerstone of the HOA’s successful legal argument.

3. The “Reasonably Available” Loophole

The entire legal battle was ultimately decided by the interpretation of a single phrase in Arizona Revised Statute § 33-1805, which requires an association to make its records “reasonably available.” The case exposed a critical ambiguity in the law.

• The Homeowners’ View: They argued that “reasonably available” implies usability. To be meaningful, the records had to be provided in a way that allowed them to cross-reference votes with voters. A deliberately disorganized release, they contended, was not reasonable.

• The HOA’s View: The association countered with a brilliant legal distinction: the statute dictates what records must be produced, not how they must be presented. By providing all the components—the ballots and the envelopes—they had fulfilled their duty, even if they were separated.

In a decision that highlights the judiciary’s deference to the literal text of a statute, the Administrative Law Judge sided with the HOA. The judge’s ruling found no violation because, in the end, the homeowners had received everything they asked for. The legal linchpin of the decision was the finding that “the record reflects that Petitioners timely received the totality of the documents from their records request(s).” This interpretation effectively created a loophole, allowing the HOA to comply with the letter of the law while completely withholding the context the homeowners sought.

Conclusion: When “Legal” Isn’t the Whole Story

This case is a stark reminder that a legally defensible action can still feel like an affront to the spirit of community governance. The HOA’s victory demonstrates that in a dispute over transparency, the side with the more precise reading of the law, rather than the more open approach, may prevail. It reveals the profound tension between a homeowner’s right to know, an association’s duty to protect its members from potential harassment, and the powerful ambiguities hidden in legal statutes. An HOA can, with careful legal maneuvering, use privacy as a shield to deliver information in a way that obscures more than it reveals—and do so without breaking the law.

In a community governed by rules, what’s more important: absolute transparency, or the protection of every member’s privacy?

Case Participants

Petitioner Side

  • Sandra Swanson (petitioner)
  • Robert Barnes (petitioner)
  • Kristin Roebuck Bethell (petitioner attorney)
    Horne Siaton, PLLC
    Also listed as Kristin Roebuck, Esq.,

Respondent Side

  • Jeremy Johnson (respondent attorney)
    Joes, Skelton & Hochuli, PLC
  • Samantha Cote (respondent attorney)
    Joes, Skelton & Hochuli, PLC
    Also listed as Sam Cote, Esq.,
  • Patricia Ahler (witness)
    Circle G Ranches 4 Homeowners Association
  • Amanda Stewart (witness)
    Circle G Ranches 4 Homeowners Association
  • Jennifer Amundson (witness)
    Circle G Ranches 4 Homeowners Association
  • Regis Salazar (witness)
    Circle G Ranches 4 Homeowners Association
  • Clint Goodman (HOA attorney)
    Vision Community Management, LLC
    Attorney for Vision, the HOA's property manager,

Neutral Parties

  • Jenna Clark (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
    Commissioner during initial decision phase
  • Louis Dettorre (Commissioner)
    Arizona Department of Real Estate
    Commissioner during final/rehearing decision phase,
  • Dan Gardner (ADRE Staff)
    Arizona Department of Real Estate
    ADRE contact c/o Commissioner,,

Wendy Ellsworth v. Vincenz Homeowners’ Association

Posted on by

Case Summary

Case ID 20F-H2020043-REL
Agency ADRE
Tribunal OAH
Decision Date 2020-09-08
Administrative Law Judge Velva Moses-Thompson
Outcome The petition concerning the alleged violation of CC&R section 10.11.1 by the HOA was dismissed because the Petitioner failed to meet the burden of proof, and the tribunal lacked jurisdiction over the declaratory judgment request regarding waiver of enforcement.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Wendy Ellsworth Counsel Brian Hatch
Respondent Vincenz Homeowners' Association Counsel Mark K. Sahl

Alleged Violations

VHA CC&R Article 10 § 10.11.1

Outcome Summary

The petition concerning the alleged violation of CC&R section 10.11.1 by the HOA was dismissed because the Petitioner failed to meet the burden of proof, and the tribunal lacked jurisdiction over the declaratory judgment request regarding waiver of enforcement.

Why this result: Petitioner failed to establish that VHA violated CC&R section 10.11.1 by a preponderance of the evidence. Furthermore, the tribunal lacked jurisdiction to rule on the declaratory judgment requested by the Petitioner regarding VHA's waiver of its enforcement rights.

Key Issues & Findings

Violation of CC&R Article 10, Section 10.11.1 regarding parking enforcement and waiver

Petitioner alleged VHA waived its right to enforce CC&R 10.11.1 (parking prohibition) because violations had been frequent since inception. The tribunal found Petitioner failed to establish VHA violated section 10.11.1, and the tribunal lacked jurisdiction regarding the requested declaratory judgment on waiver of enforcement.

Orders: The petition is dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199(B)
  • ARIZ. REV. STAT. § 33-1803
  • ARIZ. REV. STAT. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • ARIZ. REV. STAT. § 32-2199.02(B)
  • ARIZ. REV. STAT. § 32-2199.04
  • ARIZ. REV. STAT. § 41-1092.09

Analytics Highlights

Topics: HOA Enforcement, CC&R Violation, Parking, Waiver, Jurisdiction
Additional Citations:

  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199(B)
  • ARIZ. REV. STAT. § 33-1803
  • ARIZ. REV. STAT. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • 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

20F-H2020043-REL Decision – 820839.pdf

Uploaded 2026-04-24T11:25:22 (95.4 KB)

20F-H2020043-REL Decision – 820839.pdf

Uploaded 2026-01-23T17:31:39 (95.4 KB)

Briefing: Ellsworth v. Vincenz Homeowners’ Association (No. 20F-H2020043-REL)

Executive Summary

This briefing analyzes the Administrative Law Judge Decision in the case of Wendy Ellsworth versus the Vincenz Homeowners’ Association (VHA). The case centered on Ms. Ellsworth’s petition alleging that the VHA had waived its right to enforce a specific parking restriction outlined in its Covenants, Conditions, and Restrictions (CC&Rs). The Administrative Law Judge dismissed the petition in its entirety.

The dismissal was based on two fundamental conclusions. First, the petitioner, Ms. Ellsworth, failed to meet her burden of proof. Her petition did not allege, nor did she provide evidence, that the VHA itself had violated the parking rule. Instead, her claim focused on the VHA’s alleged failure to enforce the rule against others. Second, and more decisively, the judge determined that the Office of Administrative Hearings (OAH) lacks the jurisdiction to issue a declaratory judgment. Ms. Ellsworth was effectively asking the tribunal to declare that the VHA had waived its enforcement rights, a legal determination beyond the OAH’s statutory authority. The VHA successfully argued that the OAH’s jurisdiction is limited to hearing alleged violations committed by the association, not to adjudicating the association’s future enforcement capabilities.

Case Background

• Petitioner: Wendy Ellsworth, a property owner within the Vincenz community.

• Respondent: Vincenz Homeowners’ Association (VHA).

• Tribunal: Arizona Office of Administrative Hearings (OAH).

• Presiding Judge: Administrative Law Judge Velva Moses-Thompson.

• Filing Date: Ms. Ellsworth filed a petition with the Arizona Department of Real Estate on or about January 15, 2020.

• Hearing Date: An evidentiary hearing was held on August 19, 2020.

• Decision Date: The final decision was issued on September 8, 2020.

The matter was referred to the OAH to determine whether VHA was in violation of its community documents as alleged by the petitioner.

Central Dispute: CC&R Article 10, Section 10.11.1

The entire dispute revolved around the enforcement of a specific vehicle parking rule within the VHA’s Covenants, Conditions, and Restrictions.

Article 10 § 10.11.1 provides:

Vehicles. No private passenger automobiles or pickup trucks shall be parked upon the Property or any roadway adjacent thereto except within a garage, in a private driveway appurtenant to a Dwelling Unit, or within areas designated for such purpose by the Board.

This provision explicitly restricts the parking of personal vehicles to approved locations: garages, private driveways, or other areas specifically designated by the VHA Board.

Positions of the Parties

Petitioner’s Position (Wendy Ellsworth)

Ms. Ellsworth’s central argument was not that the VHA had violated the parking rule, but that it had lost the ability to enforce it through inaction.

• Core Allegation: The petition claimed VHA had waived its ability to enforce Article 10, Section 10.11.1.

• Stated Rationale: Ms. Ellsworth intended to prove that “violations of the street parking prohibition have been ‘frequent’ since Vincenz’s inception” and that the community’s CC&Rs “do not contain a relevant non-waiver provision.”

• Testimony: At the August 19, 2020 hearing, Ms. Ellsworth initially testified that the VHA had never enforced the parking rule. However, under cross-examination, she later conceded that she was unsure whether the VHA had ever enforced it.

Respondent’s Position (Vincenz Homeowners’ Association)

The VHA argued for a complete dismissal of the petition, primarily on procedural and jurisdictional grounds.

• Core Argument: The petition failed to state a valid claim because it did not contend that VHA itself had improperly parked a vehicle in violation of the CC&Rs.

• Jurisdictional Challenge: VHA contended that the OAH’s jurisdiction, granted under ARIZ. REV. STAT. § 32-2199.01(A), is strictly limited to hearing petitions about alleged violations of community documents or state statutes by the association.

• Declaratory Judgment: The VHA characterized Ms. Ellsworth’s request as one for a “declaratory judgment”—a ruling on the VHA’s legal right to enforce the rule—which it argued the OAH has no legal authority to issue.

Administrative Law Judge’s Findings and Conclusions

The Administrative Law Judge (ALJ) sided entirely with the Respondent, concluding that the petition must be dismissed. The decision was based on a failure of proof by the petitioner and a critical lack of jurisdiction by the tribunal.

Legal Standards Applied

Standard

Description

Burden of Proof

The Petitioner bears the burden to prove a violation by a preponderance of the evidence.

Preponderance of the Evidence

Defined as “such proof as convinces the trier of fact that the contention is more probably true than not,” or evidence with “the most convincing force.”

Covenant Interpretation

In Arizona, unambiguous restrictive covenants are enforced to give effect to the intent of the parties and must be interpreted as a whole.

Conclusion 1: Failure to Establish a Violation

The ALJ found that Ms. Ellsworth failed to meet her burden of proof. The decision notes:

• Ms. Ellsworth “did not even allege that VHA parked an automobile or a truck in a roadway, garage, or in an area that has not been designated for parking by the Board.”

• Because no violation by the VHA was alleged or proven, the core requirement for a successful petition was absent.

Conclusion 2: Lack of Jurisdiction

The most significant finding was that the tribunal lacked the authority to grant the relief Ms. Ellsworth sought.

• The ALJ explicitly stated: “To the extent that Ms. Ellsworth is requesting a declaratory judgment that VHA has waived its right to enforce CC&R Article 10, Section 10.11.1., this tribunal does not have jurisdiction to make such a determination.”

• This conclusion affirmed the VHA’s central argument that the OAH is not the proper forum for determining an association’s prospective enforcement rights.

Final Order and Implications

Based on the findings, the final order was unambiguous:

“IT IS ORDERED, the petition is dismissed.”

The decision document includes a notice outlining the next steps available to the parties. Pursuant to Arizona Revised Statutes, the order is binding unless a party files a request for a rehearing with the Commissioner of the Department of Real Estate within 30 days of the service of the order.

Study Guide: Ellsworth v. Vincenz Homeowners’ Association (Case No. 20F-H2020043-REL)

This guide provides a comprehensive review of the Administrative Law Judge Decision in the case between Petitioner Wendy Ellsworth and Respondent Vincenz Homeowners’ Association (VHA). It covers the key facts, legal arguments, and the final ruling of the Office of Administrative Hearings (OAH).

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Review Quiz

Instructions: Answer the following questions in 2-3 sentences, based on the information provided in the case document.

1. Who were the primary parties in this case, and what were their respective roles?

2. What specific rule, or covenant, was at the center of the dispute?

3. What was the core allegation made by the petitioner, Wendy Ellsworth, in her initial petition?

4. What was the primary legal argument made by the respondent, Vincenz Homeowners’ Association, for why the petition should be dismissed?

5. What change occurred in Ms. Ellsworth’s testimony during the hearing?

6. According to the decision, what is the legal standard for the “burden of proof” in this type of hearing?

7. How does Arizona law interpret “restrictive covenants” when their language is unambiguous?

8. What two key reasons did the Administrative Law Judge give for dismissing the petition?

9. Which government body has jurisdiction to hear petitions from homeowners concerning violations of planned community documents?

10. What action could the parties take after the order was issued, and within what timeframe?

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Answer Key

1. The primary parties were Petitioner Wendy Ellsworth, a homeowner, and Respondent Vincenz Homeowners’ Association (VHA). Ms. Ellsworth initiated the legal action by filing a petition against the VHA.

2. The rule at the center of the dispute was Article 10, Section 10.11.1 of the VHA’s Covenants, Conditions, and Restrictions (CC&Rs). This section prohibits the parking of private passenger automobiles or pickup trucks on the property or adjacent roadways, except in garages, private driveways, or other Board-designated areas.

3. Ms. Ellsworth’s core allegation was that the VHA had waived its ability to enforce the street parking prohibition (CC&R 10.11.1). She claimed that violations had been “frequent” since the community’s inception and that the VHA’s CC&Rs lacked a relevant non-waiver provision.

4. The VHA argued that the petition should be dismissed because Ms. Ellsworth never alleged that the VHA itself had violated the parking rule. The VHA contended that the OAH only has jurisdiction over alleged violations by the association, not over a homeowner’s request for a declaratory judgment on the right to enforce a rule.

5. During the hearing, Ms. Ellsworth initially testified that the VHA had never enforced the parking rule. However, upon cross-examination, she admitted that she was unsure whether the VHA had ever enforced it.

6. The legal standard for the burden of proof is “a preponderance of the evidence.” This standard requires the petitioner to provide proof that convinces the trier of fact that their contention is more probably true than not.

7. In Arizona, if a restrictive covenant is unambiguous, it is enforced to give effect to the intent of the parties. The covenants must be construed as a whole and interpreted in view of their underlying purposes.

8. The judge dismissed the petition for two main reasons. First, Ms. Ellsworth failed to establish that the VHA itself had violated section 10.11.1. Second, the tribunal (the OAH) does not have the jurisdiction to issue a declaratory judgment stating that the VHA has waived its right to enforce the covenant.

9. The Arizona Department of Real Estate is the government body that receives petitions for hearings concerning violations of planned community documents. These hearings are then referred to the Office of Administrative Hearings (OAH).

10. After the order was issued on September 8, 2020, either party could file a request for a rehearing with the Commissioner of the Department of Real Estate. This request had to be filed within 30 days of the service of the Order.

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Essay Questions

Instructions: The following questions are designed for longer, more analytical responses. Use the facts and legal principles from the case to construct your arguments. No answer key is provided.

1. Explain the concept of “waiver” as argued by the petitioner. Why was this argument ultimately ineffective before the Office of Administrative Hearings in this specific case?

2. Analyze the jurisdictional limitations of the Office of Administrative Hearings (OAH) as demonstrated in this decision. Discuss the difference between adjudicating a violation of community documents and issuing a declaratory judgment.

3. Describe the “preponderance of the evidence” standard and explain how the petitioner, Wendy Ellsworth, failed to meet this burden of proof. Consider both her initial claim and her testimony during the hearing.

4. Evaluate the petitioner’s legal strategy. What was the central flaw in her petition that prevented the Administrative Law Judge from ruling on the merits of her non-enforcement claim?

5. Based on the legal precedent cited (Powell v. Washburn), discuss the principles Arizona courts use to interpret CC&Rs. How did the judge apply this principle to the specific language of Article 10, Section 10.11.1?

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An official (in this case, Velva Moses-Thompson) who presides over hearings at an administrative agency (like the OAH) and issues decisions.

Affirmative Defense

A set of facts other than those alleged by the petitioner which, if proven by the respondent, defeats or mitigates the legal consequences of the respondent’s otherwise unlawful conduct.

ARIZ. REV. STAT. (A.R.S.)

Abbreviation for Arizona Revised Statutes, which are the codified laws of the state of Arizona.

Burden of Proof

The obligation on a party in a legal case to prove their allegations. In this case, the petitioner had the burden to prove the VHA violated its CC&Rs.

Covenants, Conditions, and Restrictions. These are the governing legal documents that set up the rules for a planned community or subdivision.

Declaratory Judgment

A binding judgment from a court defining the legal relationship between parties and their rights in a matter before any actual harm has occurred. The OAH determined it lacked jurisdiction to issue such a judgment in this case.

Jurisdiction

The official power to make legal decisions and judgments. The OAH’s jurisdiction was limited to hearing alleged violations of community documents, not requests for declaratory judgments.

Office of Administrative Hearings (OAH)

The state agency where the evidentiary hearing for this case was held. It conducts hearings for other state agencies.

Petitioner

The party who initiates a lawsuit or files a petition to start a legal action. In this case, Wendy Ellsworth.

Preponderance of the Evidence

The standard of proof in most civil cases, meaning that the evidence presented is more convincing and likely to be true than not. It is a lower standard than “beyond a reasonable doubt.”

Respondent

The party against whom a petition is filed; the party who must respond to the petitioner’s claims. In this case, Vincenz Homeowners’ Association.

Restrictive Covenant

A provision in a deed or a set of CC&Rs that limits the use of the property and prohibits certain uses.

Waiver

The intentional or voluntary relinquishment of a known right. The petitioner argued that the VHA, through its inaction, had waived its right to enforce the parking rule.

Why This Homeowner’s Lawsuit Against Her HOA Was Doomed From the Start: 3 Critical Lessons

The frustration is real. You see your neighbors breaking the rules—parking on the street, letting their lawn go—and it feels like your Homeowners’ Association (HOA) is doing nothing about it. This sense of inconsistent enforcement is one of the most common complaints homeowners have. For Wendy Ellsworth, this frustration led her to file a legal petition against the Vincenz Homeowners’ Association (VHA).

Her case, however, was dismissed. It wasn’t lost on a minor technicality or a surprise piece of evidence. It was doomed from the start because of fundamental strategic errors. By examining where she went wrong, we can uncover three powerful lessons for any homeowner considering a similar fight.

Lesson 1: You Must Accuse the Right Party of the Right Violation

Ms. Ellsworth’s core grievance was that the VHA was not enforcing its own on-street parking rules against other residents. Her formal petition, however, made a critical mistake: it accused the HOA itself of violating the community’s parking rule, CC&R Article 10 § 10.11.1.

This was a fatal flaw. That specific rule governs the actions of homeowners—prohibiting them from parking automobiles or trucks on roadways except in designated areas. It places no duty on the HOA. In her legal filing, Ms. Ellsworth failed to point to any specific rule that the HOA, as an entity, had actually broken. Her petition essentially accused the HOA of illegally parking a car, which was not her complaint at all. The judge noted this fundamental disconnect:

“Ms. Ellsworth did not even allege that VHA parked an automobile or a truck in a roadway, garage, or in an area that has not been designated for parking by the Board.”

A viable petition would have needed to identify a completely different rule—one that placed a specific duty on the HOA Board to enforce the community documents—and then allege that the Board had violated that duty. This fundamental error of misidentifying the violation was compounded by the fact that she was asking the tribunal for a remedy it had no power to grant. Accusing the wrong party of breaking the wrong rule can cause an entire case to be dismissed before its merits are even considered.

Lesson 2: The “Burden of Proof” is More Than Just a Legal Phrase

In any legal action, the person making the claim (the “petitioner”) has the “burden of proof.” This means it is their responsibility to present evidence that convinces the judge their claim is true. Ms. Ellsworth, as the petitioner, was responsible for proving her case by a “preponderance of the evidence.”

The court defined this standard as:

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”

Making an accusation is easy; proving it is hard. Ms. Ellsworth’s own testimony failed to meet this standard. At the hearing, she initially testified that the VHA had never enforced the parking rule. However, when questioned further during cross-examination, she admitted that she was “unsure” whether the HOA had ever enforced it. This admission transformed her claim from an assertion of fact into mere speculation. In court, “I’m unsure” is the equivalent of having no evidence at all on that point, making it impossible for the judge to conclude her version of events was “more probably true than not.”

The lesson here is that winning requires more than just a belief you are right. You must present evidence that is solid, consistent, and more convincing than the other side’s. Weak or self-contradictory testimony undermines your own credibility and makes it nearly impossible to meet the burden of proof.

Lesson 3: You Have to Knock on the Right Legal Door

The legal system is highly specialized, and different courts and tribunals have the authority—or “jurisdiction”—to hear different types of cases. A major part of Ms. Ellsworth’s petition was the request for a “declaratory judgment,” essentially asking the judge to declare that the VHA had waived its right to enforce the parking rule in the future because of its alleged past non-enforcement.

The problem was that she brought this request to the wrong venue. The Office of Administrative Hearings (OAH) is designed to answer a simple question: “Did the HOA violate an existing rule?” Ms. Ellsworth was asking a far more complex question: “Based on past behavior, should the court declare that this rule is no longer enforceable in the future?” That forward-looking request for a “declaratory judgment” belongs in a court of general jurisdiction (like a state Superior Court), which has broader powers to interpret contracts and establish future rights, not in a specialized administrative tribunal.

The Administrative Law Judge made this point unequivocally:

“To the extent that Ms. Ellsworth is requesting a declaratory judgment that VHA has waived its right to enforce CC&R Article 10, Section 10.11.1., this tribunal does not have jurisdiction to make such a determination.”

Even if her argument about waiver had merit, it was brought before a body that was legally powerless to grant her request. This serves as a crucial reminder: filing a case in the wrong court is an automatic loss. Understanding the specific jurisdiction of the court or tribunal you are petitioning is a non-negotiable step in legal strategy.

Conclusion: Thinking Like a Lawyer, Not Just a Homeowner

Ms. Ellsworth’s case failed not because of three separate errors, but because of a single, comprehensive breakdown in legal strategy. The “what” (the specific accusation), the “how” (the burden of proof), and the “where” (the legal venue) were all fundamentally misaligned with her ultimate goal. This misalignment created a case that was legally impossible to win, regardless of how valid her underlying frustration may have been.

While a homeowner’s anger may be entirely justified, this case demonstrates that passion alone doesn’t win lawsuits. A sound legal strategy is essential. Before you challenge your HOA, have you moved past the frustration to build a case that can actually win?

Case Participants

Petitioner Side

  • Wendy Ellsworth (petitioner)
    Testified at hearing
  • Brian Hatch (petitioner attorney)
    Brian A. Hatch PLLC

Respondent Side

  • Mark K. Sahl (HOA attorney)
    CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP

Neutral Parties

  • Velva Moses-Thompson (ALJ)
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate

Dina R. Galassini vs. Plaza Waterfront Condominiums Owners

Posted on by

Case Summary

Case ID 18F-H1818032-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2018-08-22
Administrative Law Judge Thomas Shedden
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Dina R. Galassini Counsel —
Respondent Plaza Waterfront Condominium Owners Association, Inc. Counsel —

Alleged Violations

ARIZ. REV. STAT. § 32-2199.01; ARIZ. REV. STAT. § 33-1202

Outcome Summary

The Administrative Law Judge dismissed Petitioner’s petition for rehearing, concluding that the OAH has the authority, pursuant to statute and precedent, to resolve disputes involving the interpretation of condominium documents and related regulating statutes, rejecting Petitioner's constitutional claims regarding separation of powers. Respondent's request for attorney's fees was denied.

Why this result: Petitioner's argument that the original ALJ decision was contrary to law due to separation of powers violation was dismissed, as the OAH confirmed its statutory authority (ARIZ. REV. STAT. § 32-2199.01) to interpret condominium documents and regulating statutes.

Key Issues & Findings

Whether the Respondent Association correctly posted owner assessments for the 2018 parking lot budget

Petitioner sought rehearing arguing the ALJ lacked constitutional authority (separation of powers) to interpret condominium documents (contracts) and statutory definitions of common/limited common elements (ARIZ. REV. STAT. § 33-1202) related to the posting of the 2018 parking lot budget assessment.

Orders: Petitioner’s petition is dismissed. Respondent’s request for attorney’s fees is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 32-2199.01
  • ARIZ. REV. STAT. § 33-1202
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • Ariz. Cannabis Nurses Ass'n v. Ariz. Dep't of Health Servs., 242 Ariz. 62, 67, 392 P.3d 506, 511 (App. 2017)

Analytics Highlights

Topics: HOA Dispute, Assessment, Jurisdiction, ALJ Authority, Condominium Documents, Separation of Powers
Additional Citations:

  • ARIZ. REV. STAT. § 32-2199.01
  • ARIZ. REV. STAT. § 33-1202
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • Ariz. Cannabis Nurses Ass'n v. Ariz. Dep't of Health Servs., 242 Ariz. 62, 67, 392 P.3d 506, 511 (App. 2017)
  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. REV. STAT. § 32-2199.02(B)
  • ARIZ. CONST. Art. 3

Video Overview

Audio Overview

Decision Documents

18F-H1818032-REL Decision – 655375.pdf

Uploaded 2026-04-26T09:46:00 (65.7 KB)

18F-H1818032-REL Decision – 636950.pdf

Uploaded 2026-04-26T09:46:08 (128.6 KB)

18F-H1818032-REL Decision – 655375.pdf

Uploaded 2026-04-24T11:11:36 (65.7 KB)

18F-H1818032-REL Decision – 636950.pdf

Uploaded 2026-04-24T11:11:39 (128.6 KB)

Briefing Document: Galassini v. Plaza Waterfront Condominium Owners Association, Inc. (Case No. 18F-H1818032-REL-RHG)

Executive Summary

This document analyzes the Administrative Law Judge (ALJ) Decision in case number 18F-H1818032-REL-RHG, which dismissed a petition filed by Dina R. Galassini against the Plaza Waterfront Condominium Owners Association, Inc. The central conflict revolved around the jurisdictional authority of the Office of Administrative Hearings (OAH). The Petitioner, Ms. Galassini, argued that the OAH, as part of the executive branch, violated the constitutional separation of powers by interpreting private condominium documents, a power she claimed was reserved exclusively for the judicial branch.

The ALJ, Thomas Shedden, rejected this argument and dismissed the petition as a matter of law. The decision affirms that the OAH is statutorily empowered by Arizona Revised Statutes to hear disputes concerning alleged violations of condominium documents. The ALJ’s rationale rests on established legal precedent, citing Tierra Ranchos Homeowners Ass’n v. Kitchukov to confirm that condominium documents are a contract and Ariz. Cannabis Nurses Ass’n v. Ariz. Dep’t of Health Servs. to support an agency’s authority to take actions reasonably implied by its governing statutes. Consequently, the Petitioner’s core constitutional challenge was deemed “unfounded,” leading to the dismissal of her petition. While the petition was dismissed, the Respondent’s request for attorney’s fees was denied.

1. Case Background and Procedural History

The case involves a dispute between a condominium owner and a condominium association, brought before the Arizona Office of Administrative Hearings.

• Parties:

◦ Petitioner: Dina R. Galassini

◦ Respondent: Plaza Waterfront Condominium Owners Association, Inc.

• Forum: Office of Administrative Hearings, Phoenix, Arizona

• Presiding Judge: Thomas Shedden, Administrative Law Judge

• Decision Date: August 22, 2018

The matter arrived before Judge Shedden following a series of procedural steps initiated after an original ALJ decision.

• June 26, 2018: The Petitioner filed a Request for Rehearing with the Department of Real Estate.

• July 20, 2018: The Department of Real Estate issued an Order Granting Rehearing, based on the reasons outlined in the Petitioner’s request.

• August 15, 2018: The Respondent filed a Motion to Vacate Rehearing, arguing the case could be resolved as a matter of law.

• August 21, 2018: The Petitioner filed an Opposition to the Respondent’s motion.

2. Core Dispute: Petitioner’s Jurisdictional Challenge

The Petitioner’s request for a rehearing was founded on a direct constitutional challenge to the authority of the Administrative Law Judge. The underlying substantive issue concerned the association’s handling of “owner assessments for the 2018 parking lot budget,” which turned on the interpretation of “common element” versus “limited common element.”

Petitioner’s Arguments

• Violation of Separation of Powers: The Petitioner contended that the original ALJ decision was “contrary to law” because it involved the interpretation of private contracts (the condominium documents). She argued this function is reserved exclusively for the judicial branch under Arizona’s Constitution, Article 3 (Separation of Powers).

• Due Process Violation: By interpreting the contract, the ALJ allegedly committed a “due process violation.” The Petitioner stated, “For the ALJ to definitively interpret actual contracts between two private parties is a due process violation (separation of powers).”

• Improper Delegation of Power: The Petitioner claimed the ALJ’s action “redistributed interpreted power from the Judiciary to the Executive and this is a congressional encroachment on my rights.”

3. The Administrative Law Judge’s Legal Rationale and Decision

The ALJ agreed with the Respondent that the case could be resolved as a matter of law, focusing entirely on the jurisdictional question raised by the Petitioner. The decision systematically refutes the Petitioner’s separation of powers argument by outlining the OAH’s legal authority.

Statutory Authority

The decision establishes the OAH’s jurisdiction through Arizona state law:

• ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11: This statute describes the administrative process for referring disputes between owners and condominium associations to the OAH.

• ARIZ. REV. STAT. § 32-2199.01(A): This section specifically grants the OAH authority to conduct hearings for alleged “violations of condominium documents … or violations of the statutes that regulate condominiums….”

• ARIZ. REV. STAT. § 33-1202: The decision notes that analyzing the Petitioner’s claim inherently requires interpreting definitions found in the statutes that regulate condominiums, such as this section defining “common element” and “limited common element.”

Precedent from Case Law

The ALJ grounded the OAH’s interpretive authority in two key Arizona appellate court decisions:

1. Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007): This case is cited to establish the legal principle that “the condominium documents are a contract between the parties.” By defining the documents as a contract, the decision links the dispute directly to the type of documents the OAH is empowered to review.

2. Ariz. Cannabis Nurses Ass’n v. Ariz. Dep’t of Health Servs., 242 Ariz. 62, 392 P.3d 506 (App. 2017): This case is cited to support the broader principle of administrative authority. The ruling states, “[I]t is the law of this state that an agency may” take such action “which may be reasonably implied from ‘a consideration of the statutory scheme as a whole.’” This supports the conclusion that the OAH’s authority to hear disputes over condominium documents implies the authority to interpret them.

Conclusion of the Court

Based on the cited statutes and case law, the ALJ concluded that the OAH possesses the necessary authority to interpret both the condominium documents and the relevant state statutes. Therefore, the Petitioner’s central argument that the original decision was “contrary to law” was declared “unfounded,” and dismissing the matter was deemed appropriate.

4. Final Orders and Directives

The Administrative Law Judge issued the following final orders on August 22, 2018:

Outcome

Petitioner’s Petition

Dismissed

Respondent’s Request for Attorney’s Fees

Denied

The decision also included the following legally mandated notices for the parties:

• Binding Nature: The order is binding on the parties as a result of the rehearing, per ARIZ. REV. STAT. § 32-2199.02(B).

• Appeal Rights: A party wishing to appeal the order must seek judicial review by filing with the superior court within thirty-five (35) days from the date the order was served. The appeal process is prescribed by ARIZ. REV. STAT. title 12, chapter 7, article 6 and § 12-904(A).

Study Guide: Galassini v. Plaza Waterfront Condominium Owners Association, Inc.

This study guide provides a detailed review of the Administrative Law Judge Decision in case number 18F-H1818032-REL-RHG, issued by the Arizona Office of Administrative Hearings. It is designed to assess comprehension of the case’s key arguments, legal precedents, and procedural history.

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Short-Answer Quiz

Instructions: Answer the following ten questions in two to three complete sentences, using only information provided in the source document.

1. Identify the Petitioner and the Respondent in this case and state the official case number.

2. What was the Petitioner’s core legal argument for requesting a rehearing, as detailed in her filing on June 26, 2018?

3. On what grounds did the Respondent file a Motion to Vacate Rehearing on August 15, 2018?

4. According to the Petitioner’s Response, what was the specific issue that the Department’s Commissioner had ordered the rehearing to address?

5. Which Arizona Revised Statute section is cited as describing the process for hearings on disputes between owners and condominium associations?

6. To resolve the Petitioner’s claim, the Administrative Law Judge (ALJ) needed to interpret the definitions of what two key terms from the Arizona Revised Statutes?

7. What legal precedent was cited in the decision to establish that condominium documents are considered a contract between the parties?

8. What was the final decision issued by Administrative Law Judge Thomas Shedden on August 22, 2018, regarding the Petitioner’s petition and the Respondent’s request for attorney’s fees?

9. According to ARIZ. REV. STAT. section 32-2199.02(B), what is the legal status of an administrative law judge order that has been issued as the result of a rehearing?

10. What specific steps must a party take to appeal this order, including the timeframe and the court where the appeal must be filed?

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Answer Key

1. The Petitioner is Dina R. Galassini, and the Respondent is Plaza Waterfront Condominium Owners Association, Inc. The official case number is 18F-H1818032-REL-RHG.

2. The Petitioner argued that the original Administrative Law Judge’s decision was contrary to law because it violated the principle of separation of powers. She claimed that by interpreting contracts between private parties, the ALJ, part of the Executive branch, encroached upon the power of the Judiciary, resulting in a due process violation.

3. The Respondent argued that the matter could be resolved as a matter of law. This argument was based on ARIZ. REV. STAT. section 32-2199.01, which governs administrative hearings for condominium disputes.

4. The Petitioner asserted in her Response that the Department’s Commissioner had ordered a rehearing specifically on the issue of whether the Respondent Association had correctly posted owner assessments for the 2018 parking lot budget.

5. ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11, specifically section 32-2199.01(A), is cited as governing the process. It states that hearings are conducted for alleged “violations of condominium documents … or violations of the statutes that regulate condominiums.”

6. To analyze the Petitioner’s claim, the ALJ needed to interpret the definitions of “common element” and “limited common element.” These definitions are found in ARIZ. REV. STAT. section 33-1202.

7. The case Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007) was cited to support the legal principle that condominium documents (like CC&Rs) constitute a contract between the parties involved.

8. Administrative Law Judge Thomas Shedden ordered that the Petitioner’s petition be dismissed. He further ordered that the Respondent’s request for attorney’s fees be denied.

9. According to the statute, an administrative law judge order issued as a result of a rehearing is binding on the parties.

10. A party wishing to appeal the order must seek judicial review as prescribed by ARIZ. REV. STAT. title 12, chapter 7, article 6. The appeal must be filed 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 for a more in-depth, essay-style response. Answers are not provided.

1. Analyze the Petitioner’s “separation of powers” argument. Explain why she believed the ALJ’s decision constituted a due process violation and a congressional encroachment on her rights, and discuss how the final decision legally refuted this claim.

2. Detail the legal basis and precedents cited by the Administrative Law Judge to establish the authority of the Office of Administrative Hearings (OAH). Explain how ARIZ. REV. STAT. section 32-2199.01(A) and the cases Tierra Ranchos Homeowners Ass’n v. Kitchukov and Ariz. Cannabis Nurses Ass’n v. Ariz. Dep’t of Health Servs. were used to justify the OAH’s jurisdiction in this matter.

3. Trace the procedural history of this case from the Petitioner’s Request for Rehearing to the final Administrative Law Judge Decision. Include key dates, motions filed by both parties, and the reasoning behind the Department of Real Estate’s initial decision to grant a rehearing.

4. Discuss the relationship between condominium documents and state statutes as presented in this decision. How does the ruling define condominium documents, and what authority does it grant the OAH in interpreting both these documents and the statutes that regulate condominiums?

5. Based on the final decision and the provided notice, explain the legal options available to the Petitioner following the dismissal of her petition. What specific steps must be taken to pursue an appeal, and what legal standard is established by ARIZ. REV. STAT. section 32-2199.02(B) regarding the finality of the ALJ’s order?

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An official who presides over administrative hearings. In this case, Thomas Shedden of the Office of Administrative Hearings.

Common Element

A term defined in ARIZ. REV. STAT. section 33-1202. The interpretation of this term was central to the Petitioner’s original dispute.

Condominium Documents

The governing documents of a condominium association (e.g., CC&Rs). The decision establishes these as a contract between the parties, citing Tierra Ranchos Homeowners Ass’n v. Kitchukov.

Department of Real Estate

The state agency that issued the Order Granting Rehearing in this matter on July 20, 2018.

Due Process Violation

An alleged infringement of legal rights. The Petitioner claimed this occurred when the ALJ interpreted a contract between private parties.

Judicial Review

The legal process by which a party can appeal an administrative order to a court. The decision specifies this must be done by filing with the superior court within 35 days.

Limited Common Element

A term defined in ARIZ. REV. STAT. section 33-1202. The interpretation of this term was central to the Petitioner’s original dispute.

Motion to Vacate Rehearing

A formal request filed by the Respondent on August 15, 2018, arguing that the case could be resolved as a matter of law.

Office of Administrative Hearings (OAH)

The state office where disputes between owners and condominium associations are referred for hearings, as per ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11.

Petitioner

The party initiating a legal petition. In this case, Dina R. Galassini.

Request for Rehearing

A formal request filed by the Petitioner on June 26, 2018, after an initial decision, which was granted by the Department of Real Estate.

Respondent

The party against whom a petition is filed. In this case, Plaza Waterfront Condominium Owners Association, Inc.

Separation of Powers

A constitutional principle cited by the Petitioner. She argued that only the judicial branch, not the executive branch (where the OAH resides), can make decisions that legally bind private parties.

4 Surprising Legal Lessons from a Condo Parking Lot Dispute

Introduction: The Anatomy of a Neighborhood Fight

Disputes with a Condominium or Homeowner’s Association are a common, and often frustrating, part of modern life. But what happens when a seemingly minor conflict over assessments for the 2018 parking lot budget escalates into a direct challenge to the power of the state?

The case of Dina R. Galassini vs. the Plaza Waterfront Condominium Owners Association, Inc. did just that. This neighborhood fight quickly grew to question fundamental legal principles, revealing some counter-intuitive truths about the power and jurisdiction of administrative agencies. The final court decision provides a masterclass in administrative law, a powerful, court-like system designed for efficiency that operates with more flexibility and authority than most people realize. Here are the top surprising takeaways from the final ruling.

Takeaway 1: Administrative Agencies Can Act Like Courts

At the heart of her appeal, Ms. Galassini made a powerful constitutional argument: she believed that only a judge in the judicial branch—not an administrator in the executive branch—had the authority to interpret a private contract like her condominium documents.

In her “Request for Rehearing,” she argued forcefully:

The decision by the administrative law judge (ALJ) is contrary to law, and the decision that was handed down to me only belongs in the judicial branch. Regarding what is a common element or a limited common element (see Exhibit C) should only be decided upon by a judge. For the ALJ to definitively interpret actual contracts between two private parties is a due process violation (separation of powers). In doing so the ALJ redistributed interpreted power from the Judiciary to the Executive and this is a congressional encroachment on my rights. According to Arizona’s Constitution Article 3, Separation of Powers—only the judicial branch can make decisions that make decisions that bind private parties as law.

The surprising outcome was that the Administrative Law Judge (ALJ) rejected this argument entirely. The judge found that the Office of Administrative Hearings was specifically empowered by Arizona statutes (ARIZ. REV. STAT. section 32-2199.01(A)) to handle disputes involving “violations of condominium documents.” Creating specialized administrative bodies like this is a common legislative strategy. It provides expert, efficient resolution for specific types of disputes, preventing the judicial courts from being overwhelmed.

Takeaway 2: Your Condo Agreement is a Legally Binding Contract

The ALJ’s authority to reject such a powerful constitutional claim hinged on a foundational question: what exactly are a condo’s governing documents in the eyes of the law? The answer is what gives administrative bodies their power in these disputes.

The decision affirms that these documents are not just community guidelines, but a formal, legally binding contract between the unit owner and the association. To support this, the judge referenced the legal precedent set in Tierra Ranchos Homeowners Ass’n v. Kitchukov, which established that “the condominium documents are a contract between the parties.”

This is a critical takeaway because by defining these governing documents as a contract, it provides the legal foundation for an administrative body, like the Office of Administrative Hearings, to step in and resolve disputes using principles of contract law.

Takeaway 3: An Agency’s Power Can Be “Reasonably Implied”

Another surprising lesson from the decision is that a government agency’s authority doesn’t always have to be spelled out word-for-word for every possible action it might take.

To make a broader point about administrative law, the judge cited a separate case, Ariz. Cannabis Nurses Ass’n v. Ariz. Dep’t of Health Servs. The principle from that case is that an agency can take actions that “may be reasonably implied from ‘a consideration of the statutory scheme as a whole.’”

This concept is crucial for government to function. Legislatures cannot possibly foresee and explicitly write laws for every conceivable scenario an agency might face. This doctrine of “implied power” allows agencies the flexibility to adapt and act effectively within the spirit of the law, fulfilling their duties based on the overall purpose of the statutes they enforce.

Takeaway 4: Winning a Rehearing Isn’t Winning the War

The case’s procedure offers a fascinating lesson in legal strategy. The Department of Real Estate initially granted the petitioner’s request for a rehearing, a decision made, crucially, “for the reasons outlined in Petitioner’s Request for Rehearing.” This shows the Department initially found her legal argument about separation of powers compelling enough to warrant a second look.

However, the outcome was deeply ironic. Instead of re-arguing the facts, the respondent (the Condo Association) “filed a Motion to Vacate Rehearing, arguing that… this matter can be resolved as a matter of law” (meaning no facts were in dispute, only the interpretation of the statutes and contracts).

The ALJ agreed. The petitioner, by winning the rehearing, had inadvertently given the respondent a perfect platform to argue the case on purely legal grounds—the respondent’s strength. The rehearing forced the core jurisdictional issue to the forefront, leading directly to the dismissal of the petitioner’s case. It’s a stark reminder that a procedural victory doesn’t guarantee a final win.

Conclusion: The Law in Your Daily Life

Born from a dispute over a parking lot, this single case reveals the hidden legal machinery designed to resolve specific conflicts efficiently, without overburdening the traditional court system. It demonstrates how everyday disagreements can touch upon complex principles of constitutional power, contract law, and implied statutory authority. From a simple assessment, we see a system where administrative bodies act with court-like power, a power built upon the contractual nature of community rules and the flexibility of implied authority. It’s a powerful reminder of the intricate legal frameworks operating just beneath the surface of our daily lives.

What hidden legal complexities might be shaping the rules and agreements in your own life?

Case Participants

Petitioner Side

  • Dina R. Galassini (petitioner)

Respondent Side

  • Jim Flood (board member)
  • Roger Isaacs (witness)
  • Gary Pedersen (witness, statutory agent)

Neutral Parties

  • Jenna Clark (ALJ)
  • Thomas Shedden (ALJ)
  • Judy Lowe (Commissioner)

Other Participants

  • Peter Saiia (observer)
  • Suzanne Isaacs (observer)
  • Paul Blessing (observer)
  • Felicia Del Sol (unknown)