John R. Krahn Living Trust/Janet Krahn Living Trust
Counsel
—
Respondent
Tonto Forest Estates Homeowners Association
Counsel
—
Alleged Violations
CC&R 5.3
Outcome Summary
The Administrative Law Judge granted the Petitioner’s single-issue petition because the HOA Board had not appointed a third member to the Architectural Committee (ARC) to comply with CC&R 5.3 until March 17, 2025. The HOA was ordered to reimburse the Petitioner’s $500.00 filing fee, but no civil penalty was awarded.
Key Issues & Findings
Architectural Committee Composition Requirement
Petitioner alleged violation of CC&R Article 5.3, which mandates the Architectural Committee (ARC) shall consist of three regular members, because the HOA only had two members on the ARC as of the petition date (February 5, 2025). The Tribunal found the HOA failed to appoint a third member to the ARC until March 17, 2025, granting the petition.
Orders: Petition granted; Respondent ordered to reimburse Petitioner's $500.00 filing fee. No civil penalty was awarded.
Briefing Document: Krahn Living Trust v. Tonto Forest Estates Homeowners Association (Case No. 25F-H036-REL)
Executive Summary
This document synthesizes the proceedings and outcome of the administrative case John R Krahn Living Trust/Janet Krahn Living Trust v. Tonto Forest Estates Homeowners Association, Case No. 25F-H036-REL, held before the Arizona Office of Administrative Hearings. The central dispute involved an allegation by the Petitioner that the Tonto Forest Estates Homeowners Association (HOA) violated Article 5.3 of its Covenants, Codes, and Restrictions (CC&Rs), which mandates that its Architectural Committee (ARC) “shall consist of three (3) regular members.”
The Petitioner, John R. Krahn, filed a single-issue petition on February 5, 2025, asserting that the ARC was operating with only two members, thereby violating the governing documents. The Petitioner argued that this violation had persisted for an extended period and that the HOA Board had ignored his own application to fill the vacancy, constituting punitive behavior that warranted civil penalties.
The Respondent, represented by Board President Dwight Jolivette, contended that the governing documents allow for flexibility and that no violation occurred while the Board was actively recruiting a third member. The HOA argued that its interpretation was practical, in the best interest of the homeowners, and consistent with the practices of previous boards.
The Administrative Law Judge (ALJ), Kay A. Abramsohn, ruled in favor of the Petitioner. The decision, issued on June 8, 2025, found that the HOA was in violation of CC&R 5.3 at the time the petition was filed. The ruling was narrowly focused on the number of ARC members and explicitly declined to address secondary arguments about the validity of member appointments, as those were outside the scope of the single-issue petition. Consequently, the HOA was ordered to reimburse the Petitioner’s $500 filing fee. The Petitioner’s request for a civil penalty was denied.
——————————————————————————–
Case Overview
Case Number
25F-H036-REL
Petitioner
John R Krahn Living Trust / Janet Krahn Living Trust (Represented by John R. Krahn)
Respondent
Tonto Forest Estates Homeowners Association (Represented by Dwight Jolivette, Board President)
Arizona Office of Administrative Hearings (OAH)
Presiding Judge
Administrative Law Judge Kay A. Abramsohn
Hearing Date
May 14, 2025
Decision Date
June 8, 2025
Central Dispute: Violation of CC&R Article 5.3
The core of the dispute was the interpretation and application of CC&R Article 5.3 concerning the composition of the Architectural Committee (ARC).
Relevant Text of CC&R 5.3:
“After such time as the rights of Declarant to appoint the members of the Architectural Committee expire or are relinquished by the Declarant, the Architectural Committee shall consist of three (3) regular members, each of whom shall be appointed by the Board. In the event the Board does not appoint an Architectural Committee for any reason, the Board shall exercise the authority granted to the Architectural Committee under this Declaration…”
The Petitioner filed a single-issue petition on February 5, 2025, alleging the HOA was in violation of this article by operating the ARC with only two members.
Petitioner’s Position and Key Arguments
The Petitioner, John R. Krahn, who previously served as ARC Chairman (2019-2021) and Board Secretary (2019-2021), presented the following arguments:
• Mandatory Requirement: The term “shall” in CC&R 5.3 creates a mandatory, non-discretionary obligation for the ARC to have exactly three members.
• Prolonged Non-Compliance: The ARC operated with only two members for approximately 17 months, from at least October 2023 until March 17, 2025. Krahn further argued the period of non-compliance was potentially 42 months, claiming ARC member Mike Ackerly was never lawfully appointed by a formal Board vote in an open meeting.
• Failure to Correct: The HOA Board acknowledged the vacancy at a November 19, 2024 meeting and called for volunteers. Krahn submitted his resume the next day but his application was never discussed or voted upon. He contended this was a missed opportunity to bring the ARC into compliance.
• Punitive Behavior: The Board’s failure to consider his candidacy was described as “personal retaliation” and “punitive governance,” for which a civil penalty was warranted.
• Corrective Action as Admission: The Board’s appointment of a third member on March 17, 2025—after the complaint was filed—was presented as proof of the underlying violation.
Key Testimony (Krahn):“This is not a matter of opinion or interpretation. It’s a binary question of fact and by respondent’s own admission are operating for many months with other than three members.”
Respondent’s Position and Key Arguments
The HOA, represented by Board President Dwight Jolivette, countered with the following arguments:
• Reasonable Interpretation: No board has ever interpreted CC&R 5.3 to mean the ARC is non-viable or must be dissolved if it temporarily falls below three members.
• Active Recruitment: The Board was actively recruiting for the vacant position, as evidenced by the public call for volunteers. During this recruitment period, the two-member committee’s continued function was reasonable and in the community’s best interest.
• Board Authority: The Board has the authority under CC&R 12.5 to interpret the governing documents. Its interpretation that the committee could function with two members during a vacancy was a valid exercise of that authority.
• Appointment Process: The governing documents require members to be “appointed by the Board” but do not explicitly mandate a formal vote.
• Past Precedent: Jolivette argued that the ARC had operated with fewer than three members under prior boards, including one on which Krahn himself served.
Key Testimony (Jolivette):“Our position is that two members is not not necessarily a violation of 5.3 if and when you’re actively recruiting for another member… Nothing in the governing document states that an appointment is equivalent to a vote.”
Hearing and Procedural Timeline
Nov 19, 2024
The HOA Board acknowledges an ARC vacancy and calls for volunteers.
Nov 20, 2024
Petitioner John Krahn submits his resume for the ARC position.
Jan 22, 2025
The HOA’s Community Manager confirms in an email that the ARC has two members: Steve Gauer and Mike Ackerly.
Feb 5, 2025
The Petitioner files a single-issue petition with the Arizona Department of Real Estate.
Mar 17, 2025
The HOA Board formally appoints Alan Damon to the ARC via motion and vote, bringing its membership to three.
May 14, 2025
An evidentiary administrative hearing is held virtually before ALJ Kay Abramsohn.
June 8, 2025
The Administrative Law Judge Decision is issued.
June 29, 2025
An Order Nunc Pro Tunc is issued to correct the number of admitted petitioner exhibits in the original decision.
Administrative Law Judge’s Decision and Order
The ALJ’s decision, issued on June 8, 2025, resolved the dispute by granting the petition but denying the request for a civil penalty.
• Violation Confirmed: The ALJ concluded that the Petitioner met the burden of proof to demonstrate that as of the petition’s filing date (February 5, 2025), the HOA Board had not appointed a third member to the ARC. This constituted a violation of CC&R 5.3.
• Corrective Action Timing: The decision noted that a third member was not appointed until March 17, 2025, more than a month after the petition was filed.
• Limitation of Scope: The ALJ explicitly stated that the Petitioner’s arguments regarding the validity of Mike Ackerly’s appointment process were not addressed. The ruling was confined to the single issue presented in the original petition: whether the ARC had the required number of members. The decision stated, “Petitioner’s arguments regarding the appointment process are not addressed.”
The ALJ issued a three-part order:
1. Petition Granted: The Petitioner’s petition in case 25F-H036-REL was granted on the grounds that the HOA had not appointed a third member to the ARC to comply with CC&R 5.3 until March 17, 2025.
2. Filing Fee Reimbursed: The Respondent (HOA) was ordered to reimburse the Petitioner’s $500.00 filing fee.
3. Civil Penalty Denied: No civil penalty was awarded.
An Order Nunc Pro Tunc was later issued on June 29, 2025, to correct a clerical error in the original decision, changing the record of admitted evidence from “Petitioner’s Exhibits 1 through 22” to “Petitioner’s Exhibits 1 through 26.” This correction was retroactive to the date of the original decision.
Questions
Question
If the CC&Rs state a committee 'shall' have a specific number of members, is the HOA in violation if they operate with fewer?
Short Answer
Yes. If the governing documents mandate a specific number of members (e.g., three), failing to appoint that number is a violation.
Detailed Answer
The ALJ ruled that the HOA violated the CC&Rs because the documents required the Architectural Committee to consist of three members, but the Board had failed to appoint a third member for a period of time. The use of 'shall consist' in the CC&Rs created a mandatory requirement.
Alj Quote
IT IS ORDERED that Petitioner’s petition in 25F-H036-REL be granted because the newly elected HOA Board had yet appointed a third member to the ARC in order to comply with CC&R 5.3 until March 17, 2025.
Legal Basis
CC&R 5.3
Topic Tags
CC&Rs
Committee Requirements
Governance
Question
If the HOA fixes the violation after I file my complaint, do I still win the hearing?
Short Answer
Yes. Correcting the issue after the petition is filed does not erase the fact that the violation existed at the time of filing.
Detailed Answer
The homeowner filed the petition in February. The HOA appointed the missing committee member in March (before the May hearing). The ALJ still granted the petition because the HOA was not in compliance at the time the dispute arose and the petition was filed.
Alj Quote
The Tribunal concludes that that Petitioner has met his burden to demonstrate that, as of February 5, 2025, the newly elected HOA Board had not yet appointed a third member to the ARC… IT IS ORDERED that Petitioner’s petition… be granted because the newly elected HOA Board had yet appointed a third member to the ARC… until March 17, 2025.
Legal Basis
Administrative Law Standards
Topic Tags
Procedural
Compliance
Dispute Resolution
Question
Will the HOA have to pay me back for the filing fee if I win?
Short Answer
Yes. The ALJ typically orders the HOA to reimburse the filing fee if the homeowner prevails.
Detailed Answer
Upon granting the petition and finding the HOA in violation, the judge ordered the HOA to reimburse the homeowner's $500 filing fee as required by Arizona statute.
Alj Quote
IT IS FURTHER ORDERED that Respondent shall reimburse Petitioner’s $500.00 filing fee as required by ARIZ. REV. STAT. § 32-2199.01.
Legal Basis
ARIZ. REV. STAT. § 32-2199.01
Topic Tags
Filing Fees
Remedies
Costs
Question
Does the law require a Board member to serve on the Architectural Committee?
Short Answer
Yes. Arizona statute mandates that at least one board member serve as the chairperson of the design review or architectural committee.
Detailed Answer
Regardless of what the specific community documents say, Arizona state law (A.R.S. § 33-1817) overrides them to require that a board member serve as the chairperson of the architectural committee.
Alj Quote
Membership on a design review committee, an architectural committee or a committee that performs similar functions, however denominated, for the planned community shall include at least one member of the board of directors who shall serve as chairperson of the committee.
Legal Basis
ARIZ. REV. STAT. § 33-1817(B)(1)
Topic Tags
Architectural Committee
Board of Directors
Statutory Requirements
Question
Will I automatically be awarded civil penalties (fines against the HOA) if I prove a violation?
Short Answer
No. Proving a violation does not guarantee that the judge will impose a civil penalty.
Detailed Answer
Although the homeowner successfully proved the HOA violated the CC&Rs regarding committee membership, the ALJ explicitly declined to award any civil penalties.
Alj Quote
IT IS FURTHER ORDERED that no civil penalty is awarded.
Legal Basis
Administrative Discretion
Topic Tags
Penalties
Remedies
Civil Penalty
Question
What is the standard of proof for a homeowner in an HOA administrative hearing?
Short Answer
Preponderance of the evidence.
Detailed Answer
The homeowner must prove that their claim is 'more probably true than not.' It is based on the convincing force and superior weight of the evidence, not just the number of witnesses.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated CC&R 5.3… '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
ARIZ. ADMIN. CODE R2-19-119
Topic Tags
Burden of Proof
Legal Standards
Evidence
Question
How long do I have to request a rehearing if I am unhappy with the decision?
Short Answer
30 days.
Detailed Answer
Any party wishing to request a rehearing must file the request with the Commissioner of the Department of Real Estate within 30 days of the service of the order.
Alj Quote
Pursuant to ARIZ. REV. STAT. § 41-1092.09, a request for rehearing in this matter must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of this Order upon the parties.
Legal Basis
ARIZ. REV. STAT. § 41-1092.09
Topic Tags
Appeals
Rehearing
Procedure
Case
Docket No
25F-H036-REL
Case Title
John R. Krahn Living Trust/Janet Krahn Living Trust v. Tonto Forest Estates Homeowners Association
Decision Date
2025-06-08
Alj Name
Kay A. Abramsohn
Tribunal
OAH
Agency
ADRE
Questions
Question
If the CC&Rs state a committee 'shall' have a specific number of members, is the HOA in violation if they operate with fewer?
Short Answer
Yes. If the governing documents mandate a specific number of members (e.g., three), failing to appoint that number is a violation.
Detailed Answer
The ALJ ruled that the HOA violated the CC&Rs because the documents required the Architectural Committee to consist of three members, but the Board had failed to appoint a third member for a period of time. The use of 'shall consist' in the CC&Rs created a mandatory requirement.
Alj Quote
IT IS ORDERED that Petitioner’s petition in 25F-H036-REL be granted because the newly elected HOA Board had yet appointed a third member to the ARC in order to comply with CC&R 5.3 until March 17, 2025.
Legal Basis
CC&R 5.3
Topic Tags
CC&Rs
Committee Requirements
Governance
Question
If the HOA fixes the violation after I file my complaint, do I still win the hearing?
Short Answer
Yes. Correcting the issue after the petition is filed does not erase the fact that the violation existed at the time of filing.
Detailed Answer
The homeowner filed the petition in February. The HOA appointed the missing committee member in March (before the May hearing). The ALJ still granted the petition because the HOA was not in compliance at the time the dispute arose and the petition was filed.
Alj Quote
The Tribunal concludes that that Petitioner has met his burden to demonstrate that, as of February 5, 2025, the newly elected HOA Board had not yet appointed a third member to the ARC… IT IS ORDERED that Petitioner’s petition… be granted because the newly elected HOA Board had yet appointed a third member to the ARC… until March 17, 2025.
Legal Basis
Administrative Law Standards
Topic Tags
Procedural
Compliance
Dispute Resolution
Question
Will the HOA have to pay me back for the filing fee if I win?
Short Answer
Yes. The ALJ typically orders the HOA to reimburse the filing fee if the homeowner prevails.
Detailed Answer
Upon granting the petition and finding the HOA in violation, the judge ordered the HOA to reimburse the homeowner's $500 filing fee as required by Arizona statute.
Alj Quote
IT IS FURTHER ORDERED that Respondent shall reimburse Petitioner’s $500.00 filing fee as required by ARIZ. REV. STAT. § 32-2199.01.
Legal Basis
ARIZ. REV. STAT. § 32-2199.01
Topic Tags
Filing Fees
Remedies
Costs
Question
Does the law require a Board member to serve on the Architectural Committee?
Short Answer
Yes. Arizona statute mandates that at least one board member serve as the chairperson of the design review or architectural committee.
Detailed Answer
Regardless of what the specific community documents say, Arizona state law (A.R.S. § 33-1817) overrides them to require that a board member serve as the chairperson of the architectural committee.
Alj Quote
Membership on a design review committee, an architectural committee or a committee that performs similar functions, however denominated, for the planned community shall include at least one member of the board of directors who shall serve as chairperson of the committee.
Legal Basis
ARIZ. REV. STAT. § 33-1817(B)(1)
Topic Tags
Architectural Committee
Board of Directors
Statutory Requirements
Question
Will I automatically be awarded civil penalties (fines against the HOA) if I prove a violation?
Short Answer
No. Proving a violation does not guarantee that the judge will impose a civil penalty.
Detailed Answer
Although the homeowner successfully proved the HOA violated the CC&Rs regarding committee membership, the ALJ explicitly declined to award any civil penalties.
Alj Quote
IT IS FURTHER ORDERED that no civil penalty is awarded.
Legal Basis
Administrative Discretion
Topic Tags
Penalties
Remedies
Civil Penalty
Question
What is the standard of proof for a homeowner in an HOA administrative hearing?
Short Answer
Preponderance of the evidence.
Detailed Answer
The homeowner must prove that their claim is 'more probably true than not.' It is based on the convincing force and superior weight of the evidence, not just the number of witnesses.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated CC&R 5.3… '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
ARIZ. ADMIN. CODE R2-19-119
Topic Tags
Burden of Proof
Legal Standards
Evidence
Question
How long do I have to request a rehearing if I am unhappy with the decision?
Short Answer
30 days.
Detailed Answer
Any party wishing to request a rehearing must file the request with the Commissioner of the Department of Real Estate within 30 days of the service of the order.
Alj Quote
Pursuant to ARIZ. REV. STAT. § 41-1092.09, a request for rehearing in this matter must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of this Order upon the parties.
Legal Basis
ARIZ. REV. STAT. § 41-1092.09
Topic Tags
Appeals
Rehearing
Procedure
Case
Docket No
25F-H036-REL
Case Title
John R. Krahn Living Trust/Janet Krahn Living Trust v. Tonto Forest Estates Homeowners Association
John R. Krahn Living Trust/Janet Krahn Living Trust
Counsel
—
Respondent
Tonto Forest Estates Homeowners Association
Counsel
—
Alleged Violations
CC&R 5.3
Outcome Summary
The Administrative Law Judge granted the Petitioner’s single-issue petition because the HOA Board had not appointed a third member to the Architectural Committee (ARC) to comply with CC&R 5.3 until March 17, 2025. The HOA was ordered to reimburse the Petitioner’s $500.00 filing fee, but no civil penalty was awarded.
Key Issues & Findings
Architectural Committee Composition Requirement
Petitioner alleged violation of CC&R Article 5.3, which mandates the Architectural Committee (ARC) shall consist of three regular members, because the HOA only had two members on the ARC as of the petition date (February 5, 2025). The Tribunal found the HOA failed to appoint a third member to the ARC until March 17, 2025, granting the petition.
Orders: Petition granted; Respondent ordered to reimburse Petitioner's $500.00 filing fee. No civil penalty was awarded.
Briefing Document: Krahn Living Trust v. Tonto Forest Estates Homeowners Association (Case No. 25F-H036-REL)
Executive Summary
This document synthesizes the proceedings and outcome of the administrative case John R Krahn Living Trust/Janet Krahn Living Trust v. Tonto Forest Estates Homeowners Association, Case No. 25F-H036-REL, held before the Arizona Office of Administrative Hearings. The central dispute involved an allegation by the Petitioner that the Tonto Forest Estates Homeowners Association (HOA) violated Article 5.3 of its Covenants, Codes, and Restrictions (CC&Rs), which mandates that its Architectural Committee (ARC) “shall consist of three (3) regular members.”
The Petitioner, John R. Krahn, filed a single-issue petition on February 5, 2025, asserting that the ARC was operating with only two members, thereby violating the governing documents. The Petitioner argued that this violation had persisted for an extended period and that the HOA Board had ignored his own application to fill the vacancy, constituting punitive behavior that warranted civil penalties.
The Respondent, represented by Board President Dwight Jolivette, contended that the governing documents allow for flexibility and that no violation occurred while the Board was actively recruiting a third member. The HOA argued that its interpretation was practical, in the best interest of the homeowners, and consistent with the practices of previous boards.
The Administrative Law Judge (ALJ), Kay A. Abramsohn, ruled in favor of the Petitioner. The decision, issued on June 8, 2025, found that the HOA was in violation of CC&R 5.3 at the time the petition was filed. The ruling was narrowly focused on the number of ARC members and explicitly declined to address secondary arguments about the validity of member appointments, as those were outside the scope of the single-issue petition. Consequently, the HOA was ordered to reimburse the Petitioner’s $500 filing fee. The Petitioner’s request for a civil penalty was denied.
——————————————————————————–
Case Overview
Case Number
25F-H036-REL
Petitioner
John R Krahn Living Trust / Janet Krahn Living Trust (Represented by John R. Krahn)
Respondent
Tonto Forest Estates Homeowners Association (Represented by Dwight Jolivette, Board President)
Arizona Office of Administrative Hearings (OAH)
Presiding Judge
Administrative Law Judge Kay A. Abramsohn
Hearing Date
May 14, 2025
Decision Date
June 8, 2025
Central Dispute: Violation of CC&R Article 5.3
The core of the dispute was the interpretation and application of CC&R Article 5.3 concerning the composition of the Architectural Committee (ARC).
Relevant Text of CC&R 5.3:
“After such time as the rights of Declarant to appoint the members of the Architectural Committee expire or are relinquished by the Declarant, the Architectural Committee shall consist of three (3) regular members, each of whom shall be appointed by the Board. In the event the Board does not appoint an Architectural Committee for any reason, the Board shall exercise the authority granted to the Architectural Committee under this Declaration…”
The Petitioner filed a single-issue petition on February 5, 2025, alleging the HOA was in violation of this article by operating the ARC with only two members.
Petitioner’s Position and Key Arguments
The Petitioner, John R. Krahn, who previously served as ARC Chairman (2019-2021) and Board Secretary (2019-2021), presented the following arguments:
• Mandatory Requirement: The term “shall” in CC&R 5.3 creates a mandatory, non-discretionary obligation for the ARC to have exactly three members.
• Prolonged Non-Compliance: The ARC operated with only two members for approximately 17 months, from at least October 2023 until March 17, 2025. Krahn further argued the period of non-compliance was potentially 42 months, claiming ARC member Mike Ackerly was never lawfully appointed by a formal Board vote in an open meeting.
• Failure to Correct: The HOA Board acknowledged the vacancy at a November 19, 2024 meeting and called for volunteers. Krahn submitted his resume the next day but his application was never discussed or voted upon. He contended this was a missed opportunity to bring the ARC into compliance.
• Punitive Behavior: The Board’s failure to consider his candidacy was described as “personal retaliation” and “punitive governance,” for which a civil penalty was warranted.
• Corrective Action as Admission: The Board’s appointment of a third member on March 17, 2025—after the complaint was filed—was presented as proof of the underlying violation.
Key Testimony (Krahn):“This is not a matter of opinion or interpretation. It’s a binary question of fact and by respondent’s own admission are operating for many months with other than three members.”
Respondent’s Position and Key Arguments
The HOA, represented by Board President Dwight Jolivette, countered with the following arguments:
• Reasonable Interpretation: No board has ever interpreted CC&R 5.3 to mean the ARC is non-viable or must be dissolved if it temporarily falls below three members.
• Active Recruitment: The Board was actively recruiting for the vacant position, as evidenced by the public call for volunteers. During this recruitment period, the two-member committee’s continued function was reasonable and in the community’s best interest.
• Board Authority: The Board has the authority under CC&R 12.5 to interpret the governing documents. Its interpretation that the committee could function with two members during a vacancy was a valid exercise of that authority.
• Appointment Process: The governing documents require members to be “appointed by the Board” but do not explicitly mandate a formal vote.
• Past Precedent: Jolivette argued that the ARC had operated with fewer than three members under prior boards, including one on which Krahn himself served.
Key Testimony (Jolivette):“Our position is that two members is not not necessarily a violation of 5.3 if and when you’re actively recruiting for another member… Nothing in the governing document states that an appointment is equivalent to a vote.”
Hearing and Procedural Timeline
Nov 19, 2024
The HOA Board acknowledges an ARC vacancy and calls for volunteers.
Nov 20, 2024
Petitioner John Krahn submits his resume for the ARC position.
Jan 22, 2025
The HOA’s Community Manager confirms in an email that the ARC has two members: Steve Gauer and Mike Ackerly.
Feb 5, 2025
The Petitioner files a single-issue petition with the Arizona Department of Real Estate.
Mar 17, 2025
The HOA Board formally appoints Alan Damon to the ARC via motion and vote, bringing its membership to three.
May 14, 2025
An evidentiary administrative hearing is held virtually before ALJ Kay Abramsohn.
June 8, 2025
The Administrative Law Judge Decision is issued.
June 29, 2025
An Order Nunc Pro Tunc is issued to correct the number of admitted petitioner exhibits in the original decision.
Administrative Law Judge’s Decision and Order
The ALJ’s decision, issued on June 8, 2025, resolved the dispute by granting the petition but denying the request for a civil penalty.
• Violation Confirmed: The ALJ concluded that the Petitioner met the burden of proof to demonstrate that as of the petition’s filing date (February 5, 2025), the HOA Board had not appointed a third member to the ARC. This constituted a violation of CC&R 5.3.
• Corrective Action Timing: The decision noted that a third member was not appointed until March 17, 2025, more than a month after the petition was filed.
• Limitation of Scope: The ALJ explicitly stated that the Petitioner’s arguments regarding the validity of Mike Ackerly’s appointment process were not addressed. The ruling was confined to the single issue presented in the original petition: whether the ARC had the required number of members. The decision stated, “Petitioner’s arguments regarding the appointment process are not addressed.”
The ALJ issued a three-part order:
1. Petition Granted: The Petitioner’s petition in case 25F-H036-REL was granted on the grounds that the HOA had not appointed a third member to the ARC to comply with CC&R 5.3 until March 17, 2025.
2. Filing Fee Reimbursed: The Respondent (HOA) was ordered to reimburse the Petitioner’s $500.00 filing fee.
3. Civil Penalty Denied: No civil penalty was awarded.
An Order Nunc Pro Tunc was later issued on June 29, 2025, to correct a clerical error in the original decision, changing the record of admitted evidence from “Petitioner’s Exhibits 1 through 22” to “Petitioner’s Exhibits 1 through 26.” This correction was retroactive to the date of the original decision.
Study Guide – 25F-H036-REL
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The ALJ still granted the petition because the HOA was not in compliance at the time the dispute arose and the petition was filed.”, “alj_quote”: “The Tribunal concludes that that Petitioner has met his burden to demonstrate that, as of February 5, 2025, the newly elected HOA Board had not yet appointed a third member to the ARC… IT IS ORDERED that Petitioner’s petition… be granted because the newly elected HOA Board had yet appointed a third member to the ARC… until March 17, 2025.”, “legal_basis”: “Administrative Law Standards”, “topic_tags”: [ “Procedural”, “Compliance”, “Dispute Resolution” ] }, { “question”: “Will the HOA have to pay me back for the filing fee if I win?”, “short_answer”: “Yes. The ALJ typically orders the HOA to reimburse the filing fee if the homeowner prevails.”, “detailed_answer”: “Upon granting the petition and finding the HOA in violation, the judge ordered the HOA to reimburse the homeowner’s $500 filing fee as required by Arizona statute.”, “alj_quote”: “IT IS FURTHER ORDERED that Respondent shall reimburse Petitioner’s $500.00 filing fee as required by ARIZ. REV. STAT. § 32-2199.01.”, “legal_basis”: “ARIZ. REV. STAT. § 32-2199.01”, “topic_tags”: [ “Filing Fees”, “Remedies”, “Costs” ] }, { “question”: “Does the law require a Board member to serve on the Architectural Committee?”, “short_answer”: “Yes. Arizona statute mandates that at least one board member serve as the chairperson of the design review or architectural committee.”, “detailed_answer”: “Regardless of what the specific community documents say, Arizona state law (A.R.S. § 33-1817) overrides them to require that a board member serve as the chairperson of the architectural committee.”, “alj_quote”: “Membership on a design review committee, an architectural committee or a committee that performs similar functions, however denominated, for the planned community shall include at least one member of the board of directors who shall serve as chairperson of the committee.”, “legal_basis”: “ARIZ. REV. STAT. § 33-1817(B)(1)”, “topic_tags”: [ “Architectural Committee”, “Board of Directors”, “Statutory Requirements” ] }, { “question”: “Will I automatically be awarded civil penalties (fines against the HOA) if I prove a violation?”, “short_answer”: “No. Proving a violation does not guarantee that the judge will impose a civil penalty.”, “detailed_answer”: “Although the homeowner successfully proved the HOA violated the CC&Rs regarding committee membership, the ALJ explicitly declined to award any civil penalties.”, “alj_quote”: “IT IS FURTHER ORDERED that no civil penalty is awarded.”, “legal_basis”: “Administrative Discretion”, “topic_tags”: [ “Penalties”, “Remedies”, “Civil Penalty” ] }, { “question”: “What is the standard of proof for a homeowner in an HOA administrative hearing?”, “short_answer”: “Preponderance of the evidence.”, “detailed_answer”: “The homeowner must prove that their claim is ‘more probably true than not.’ It is based on the convincing force and superior weight of the evidence, not just the number of witnesses.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated CC&R 5.3… ‘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”: “ARIZ. ADMIN. CODE R2-19-119”, “topic_tags”: [ “Burden of Proof”, “Legal Standards”, “Evidence” ] }, { “question”: “How long do I have to request a rehearing if I am unhappy with the decision?”, “short_answer”: “30 days.”, “detailed_answer”: “Any party wishing to request a rehearing must file the request with the Commissioner of the Department of Real Estate within 30 days of the service of the order.”, “alj_quote”: “Pursuant to ARIZ. REV. STAT. § 41-1092.09, a request for rehearing in this matter must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of this Order upon the parties.”, “legal_basis”: “ARIZ. REV. STAT. § 41-1092.09”, “topic_tags”: [ “Appeals”, “Rehearing”, “Procedure” ] } ] }
Blog Post – 25F-H036-REL
{ “case”: { “docket_no”: “25F-H036-REL”, “case_title”: “John R. Krahn Living Trust/Janet Krahn Living Trust v. Tonto Forest Estates Homeowners Association”, “decision_date”: “2025-06-08”, “alj_name”: “Kay A. Abramsohn”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “If the CC&Rs state a committee ‘shall’ have a specific number of members, is the HOA in violation if they operate with fewer?”, “short_answer”: “Yes. If the governing documents mandate a specific number of members (e.g., three), failing to appoint that number is a violation.”, “detailed_answer”: “The ALJ ruled that the HOA violated the CC&Rs because the documents required the Architectural Committee to consist of three members, but the Board had failed to appoint a third member for a period of time. The use of ‘shall consist’ in the CC&Rs created a mandatory requirement.”, “alj_quote”: “IT IS ORDERED that Petitioner’s petition in 25F-H036-REL be granted because the newly elected HOA Board had yet appointed a third member to the ARC in order to comply with CC&R 5.3 until March 17, 2025.”, “legal_basis”: “CC&R 5.3”, “topic_tags”: [ “CC&Rs”, “Committee Requirements”, “Governance” ] }, { “question”: “If the HOA fixes the violation after I file my complaint, do I still win the hearing?”, “short_answer”: “Yes. Correcting the issue after the petition is filed does not erase the fact that the violation existed at the time of filing.”, “detailed_answer”: “The homeowner filed the petition in February. The HOA appointed the missing committee member in March (before the May hearing). The ALJ still granted the petition because the HOA was not in compliance at the time the dispute arose and the petition was filed.”, “alj_quote”: “The Tribunal concludes that that Petitioner has met his burden to demonstrate that, as of February 5, 2025, the newly elected HOA Board had not yet appointed a third member to the ARC… IT IS ORDERED that Petitioner’s petition… be granted because the newly elected HOA Board had yet appointed a third member to the ARC… until March 17, 2025.”, “legal_basis”: “Administrative Law Standards”, “topic_tags”: [ “Procedural”, “Compliance”, “Dispute Resolution” ] }, { “question”: “Will the HOA have to pay me back for the filing fee if I win?”, “short_answer”: “Yes. The ALJ typically orders the HOA to reimburse the filing fee if the homeowner prevails.”, “detailed_answer”: “Upon granting the petition and finding the HOA in violation, the judge ordered the HOA to reimburse the homeowner’s $500 filing fee as required by Arizona statute.”, “alj_quote”: “IT IS FURTHER ORDERED that Respondent shall reimburse Petitioner’s $500.00 filing fee as required by ARIZ. REV. STAT. § 32-2199.01.”, “legal_basis”: “ARIZ. REV. STAT. § 32-2199.01”, “topic_tags”: [ “Filing Fees”, “Remedies”, “Costs” ] }, { “question”: “Does the law require a Board member to serve on the Architectural Committee?”, “short_answer”: “Yes. Arizona statute mandates that at least one board member serve as the chairperson of the design review or architectural committee.”, “detailed_answer”: “Regardless of what the specific community documents say, Arizona state law (A.R.S. § 33-1817) overrides them to require that a board member serve as the chairperson of the architectural committee.”, “alj_quote”: “Membership on a design review committee, an architectural committee or a committee that performs similar functions, however denominated, for the planned community shall include at least one member of the board of directors who shall serve as chairperson of the committee.”, “legal_basis”: “ARIZ. REV. STAT. § 33-1817(B)(1)”, “topic_tags”: [ “Architectural Committee”, “Board of Directors”, “Statutory Requirements” ] }, { “question”: “Will I automatically be awarded civil penalties (fines against the HOA) if I prove a violation?”, “short_answer”: “No. Proving a violation does not guarantee that the judge will impose a civil penalty.”, “detailed_answer”: “Although the homeowner successfully proved the HOA violated the CC&Rs regarding committee membership, the ALJ explicitly declined to award any civil penalties.”, “alj_quote”: “IT IS FURTHER ORDERED that no civil penalty is awarded.”, “legal_basis”: “Administrative Discretion”, “topic_tags”: [ “Penalties”, “Remedies”, “Civil Penalty” ] }, { “question”: “What is the standard of proof for a homeowner in an HOA administrative hearing?”, “short_answer”: “Preponderance of the evidence.”, “detailed_answer”: “The homeowner must prove that their claim is ‘more probably true than not.’ It is based on the convincing force and superior weight of the evidence, not just the number of witnesses.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated CC&R 5.3… ‘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”: “ARIZ. ADMIN. CODE R2-19-119”, “topic_tags”: [ “Burden of Proof”, “Legal Standards”, “Evidence” ] }, { “question”: “How long do I have to request a rehearing if I am unhappy with the decision?”, “short_answer”: “30 days.”, “detailed_answer”: “Any party wishing to request a rehearing must file the request with the Commissioner of the Department of Real Estate within 30 days of the service of the order.”, “alj_quote”: “Pursuant to ARIZ. REV. STAT. § 41-1092.09, a request for rehearing in this matter must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of this Order upon the parties.”, “legal_basis”: “ARIZ. REV. STAT. § 41-1092.09”, “topic_tags”: [ “Appeals”, “Rehearing”, “Procedure” ] } ] }
Case Participants
Petitioner Side
John R. Krahn(petitioner/representative) John R Krahn Living Trust Appeared on Petitioners’ behalf; former ARC Chairman and Board Secretary.
Janet Krahn(petitioner) Janet Krahn Living Trust Named party in the case title.
Respondent Side
Dwight Jolivette(board president/HOA representative) Tonto Forest Estates Homeowners Association Appeared on Respondent's behalf.
Barbara Bonilla(property manager) Ogden & Company Community Manager for the HOA.
Steve Gauer(board treasurer/ARC member) Tonto Forest Estates Homeowners Association Became Board Treasurer in November 2024; served on ARC.
Mike Ackerly(ARC member) Tonto Forest Estates Homeowners Association Joined the ARC in February 2022.
Alan Damon(ARC member) Tonto Forest Estates Homeowners Association Appointed to the ARC on March 17, 2025.
Kenneth Riley(ARC member (former)) Tonto Forest Estates Homeowners Association Indicated as an ARC member between July and November 2024.
Neutral Parties
Kay A. Abramsohn(ALJ) Office of Administrative Hearings (OAH)
Susan Nicolson(commissioner) Arizona Department of Real Estate (ADRE)
Other Participants
Joe Burns(attendee) Attended the hearing virtually; did not give testimony.
John Fris(ARC member (former)) Mentioned as a former ARC member appointed in February 2021.
Brett(ARC member (former)) Mentioned as a former ARC member whom John (Fris) replaced.
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.
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)
Audio Overview
Decision Documents
25F-H2222050-REL-RMD Decision – 1280942.pdf
Uploaded 2026-01-23T18:27:21 (50.9 KB)
25F-H2222050-REL-RMD Decision – 1285833.pdf
Uploaded 2026-01-23T18:27:25 (107.0 KB)
25F-H2222050-REL-RMD Decision – 1286292.pdf
Uploaded 2026-01-23T18:27:30 (21.7 KB)
25F-H2222050-REL-RMD Decision – 1288559.pdf
Uploaded 2026-01-23T18:27:36 (149.2 KB)
Briefing Doc – 25F-H2222050-REL-RMD
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.
Study Guide – 25F-H2222050-REL-RMD
{ “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” ] } ] }
Blog Post – 25F-H2222050-REL-RMD
{ “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 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.
The Administrative Law Judge denied the petition, concluding that the Association was in compliance with ARIZ. REV. STAT. § 33-1812(7) by providing the electronic data lists received from the voting vendor (Vote HOA Now), as the statute requires storage of 'electronic votes' not necessarily 'electronic ballots' (images).
Why this result: Petitioner failed to prove by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1812(A)(7).
Key Issues & Findings
Failure to provide voting records (electronic ballots) for inspection
Petitioner alleged the Association failed to provide all voting materials, specifically images of each actual online ballot, in response to the February 28, 2024, inspection request, arguing this violated ARIZ. REV. STAT. § 33-1812(A)(7).
Orders: Petitioner's petition is denied.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
Cited:
ARIZ. REV. STAT. § 33-1812(A)(7)
ARIZ. REV. STAT. § 10-3708(F)
ARIZ. REV. STAT. § 33-1812
ARIZ. REV. STAT. § 33-1258
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.
Analytics Highlights
Topics: Voting Records, Electronic Voting, HOA Records Inspection, Statutory Interpretation, ARS 33-1812
Additional Citations:
ARIZ. REV. STAT. § 33-1812(A)(7)
ARIZ. REV. STAT. § 10-3708(F)
ARIZ. REV. STAT. § 33-1812
ARIZ. REV. STAT. § 33-1258
ARIZ. REV. STAT. §§ 32-2102
ARIZ. REV. STAT. §§ 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. §§ 32-2199(2)
ARIZ. REV. STAT. §§ 32-2199.01(A)
ARIZ. REV. STAT. §§ 32-2199.01(D)
ARIZ. REV. STAT. §§ 32-2199.02
ARIZ. REV. STAT. § 41-1092 et seq.
ARIZ. REV. STAT. § 32-2199.02(B)
ARIZ. REV. STAT. § 41-1092.09
ARIZ. REV. STAT. § 32-2199.04
Video Overview
Audio Overview
Decision Documents
24F-H047-REL-RMD Decision – 1240168.pdf
Uploaded 2026-01-23T18:10:22 (184.8 KB)
24F-H047-REL-RMD Decision – 1330098.pdf
Uploaded 2026-01-23T18:10:26 (48.9 KB)
24F-H047-REL-RMD Decision – 1330115.pdf
Uploaded 2026-01-23T18:10:30 (6.2 KB)
24F-H047-REL-RMD Decision – 1338932.pdf
Uploaded 2026-01-23T18:10:35 (56.6 KB)
24F-H047-REL-RMD Decision – 1340272.pdf
Uploaded 2026-01-23T18:10:38 (53.7 KB)
24F-H047-REL-RMD Decision – 1357165.pdf
Uploaded 2026-01-23T18:10:42 (59.5 KB)
24F-H047-REL-RMD Decision – 1358023.pdf
Uploaded 2026-01-23T18:10:50 (12.1 KB)
Questions
Question
If I challenge my HOA's election procedures, do I have to prove they did something wrong, or do they have to prove they did it right?
Short Answer
The burden of proof falls on the homeowner (Petitioner) to prove the violation.
Detailed Answer
In an administrative hearing regarding an HOA dispute, the homeowner filing the petition bears the burden of proving, by a preponderance of the evidence, that the HOA violated the relevant statutes.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1812(A)(7).
Legal Basis
A.R.S. § 33-1812(A)(7); A.A.C. R2-19-119
Topic Tags
Burden of Proof
Legal Procedure
Question
Is my HOA required to provide me with the actual visual image of every electronic ballot cast in an election?
Short Answer
No. The HOA is only required to store and provide 'electronic votes,' typically in data list format, not the visual 'ballot' image.
Detailed Answer
The ALJ determined that statutes require the storage of 'electronic votes' for inspection, but this does not mean the HOA must retain a visual image of the specific screen or ballot seen by the voter. Data lists that document the vote satisfy the requirement.
Alj Quote
ARIZ. REV. STAT. § 10-3708(F)(4) requires storage of 'electronic votes' not electronic ballots.
Legal Basis
A.R.S. § 10-3708(F)(4)
Topic Tags
Electronic Voting
Records Inspection
Question
Does a spreadsheet or data list of votes count as a valid record of 'ballots' for inspection purposes?
Short Answer
Yes. Data lists generated by voting software are considered compliant records of electronic ballots.
Detailed Answer
When an HOA uses a third-party vendor for online voting, retaining the data lists provided by that vendor (which show member information and votes cast) satisfies the statutory requirement to retain materials in an 'electronic format'.
Alj Quote
Association is in compliance with ARIZ. REV. STAT. § 33-1812(7) by retaining the Vote HOA Now data lists which demonstrate the electronic ballots 'in electronic … format.'
Legal Basis
A.R.S. § 33-1812(7)
Topic Tags
Records Inspection
Electronic Voting
Question
How long must an HOA keep election materials like ballots and sign-in sheets?
Short Answer
The HOA must retain these materials for at least one year.
Detailed Answer
State law mandates that ballots, envelopes, sign-in sheets, and related materials be kept and made available for member inspection for a minimum of one year following the election.
Alj Quote
Ballots, envelopes and related materials, including sign-in sheets if used, shall be retained in electronic or paper format and made available for member inspection for at least one year after completion of the election.
Legal Basis
A.R.S. § 33-1812(A)(7)
Topic Tags
Record Retention
Elections
Question
What specific features must an online voting system have to be legal?
Short Answer
It must authenticate identity, ensure validity, send a receipt, and store votes.
Detailed Answer
An online voting system is legally permitted if it authenticates the member's identity, ensures the vote is not altered in transit, transmits a receipt to the voter, and stores the electronic votes for recount or inspection.
Alj Quote
online voting system that does all of the following: a. Authenticates the member's identity; b. Authenticates the validity of each electronic vote… c. Transmits a receipt… and d. Stores electronic votes for recount, inspection and review purposes.
Legal Basis
A.R.S. § 10-3708(F)
Topic Tags
Electronic Voting
HOA Obligations
Question
Can I use 'secret ballots' if I am voting by mail or absentee?
Short Answer
Yes, but your name/address must still appear on the envelope.
Detailed Answer
If community documents allow for secret ballots, the ballot itself does not need the voter's signature, but the outer envelope must contain the name, address, and signature to verify eligibility.
Alj Quote
The completed ballot shall contain the name, address and signature of the person voting, except that if the community documents permit secret ballots, only the envelope shall contain the name, address and signature of the voter.
Legal Basis
A.R.S. § 33-1812(A)(6)
Topic Tags
Voting Rights
Privacy
Question
How does the law define 'preponderance of the evidence' in these hearings?
Short Answer
It means the claim is 'more probably true than not'.
Detailed Answer
The standard of proof requires evidence that has the most convincing force and inclines a fair mind to one side of the issue, even if it doesn't remove all doubt.
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
Case Law (Morris K. Udall)
Topic Tags
Legal Standards
Definitions
Case
Docket No
24F-H047-REL
Case Title
AZNH Revocable Trust v. Sunland Springs Village Homeowners Association
Decision Date
2024-11-05
Alj Name
Kay A. Abramsohn
Tribunal
OAH
Agency
ADRE
Questions
Question
If I challenge my HOA's election procedures, do I have to prove they did something wrong, or do they have to prove they did it right?
Short Answer
The burden of proof falls on the homeowner (Petitioner) to prove the violation.
Detailed Answer
In an administrative hearing regarding an HOA dispute, the homeowner filing the petition bears the burden of proving, by a preponderance of the evidence, that the HOA violated the relevant statutes.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1812(A)(7).
Legal Basis
A.R.S. § 33-1812(A)(7); A.A.C. R2-19-119
Topic Tags
Burden of Proof
Legal Procedure
Question
Is my HOA required to provide me with the actual visual image of every electronic ballot cast in an election?
Short Answer
No. The HOA is only required to store and provide 'electronic votes,' typically in data list format, not the visual 'ballot' image.
Detailed Answer
The ALJ determined that statutes require the storage of 'electronic votes' for inspection, but this does not mean the HOA must retain a visual image of the specific screen or ballot seen by the voter. Data lists that document the vote satisfy the requirement.
Alj Quote
ARIZ. REV. STAT. § 10-3708(F)(4) requires storage of 'electronic votes' not electronic ballots.
Legal Basis
A.R.S. § 10-3708(F)(4)
Topic Tags
Electronic Voting
Records Inspection
Question
Does a spreadsheet or data list of votes count as a valid record of 'ballots' for inspection purposes?
Short Answer
Yes. Data lists generated by voting software are considered compliant records of electronic ballots.
Detailed Answer
When an HOA uses a third-party vendor for online voting, retaining the data lists provided by that vendor (which show member information and votes cast) satisfies the statutory requirement to retain materials in an 'electronic format'.
Alj Quote
Association is in compliance with ARIZ. REV. STAT. § 33-1812(7) by retaining the Vote HOA Now data lists which demonstrate the electronic ballots 'in electronic … format.'
Legal Basis
A.R.S. § 33-1812(7)
Topic Tags
Records Inspection
Electronic Voting
Question
How long must an HOA keep election materials like ballots and sign-in sheets?
Short Answer
The HOA must retain these materials for at least one year.
Detailed Answer
State law mandates that ballots, envelopes, sign-in sheets, and related materials be kept and made available for member inspection for a minimum of one year following the election.
Alj Quote
Ballots, envelopes and related materials, including sign-in sheets if used, shall be retained in electronic or paper format and made available for member inspection for at least one year after completion of the election.
Legal Basis
A.R.S. § 33-1812(A)(7)
Topic Tags
Record Retention
Elections
Question
What specific features must an online voting system have to be legal?
Short Answer
It must authenticate identity, ensure validity, send a receipt, and store votes.
Detailed Answer
An online voting system is legally permitted if it authenticates the member's identity, ensures the vote is not altered in transit, transmits a receipt to the voter, and stores the electronic votes for recount or inspection.
Alj Quote
online voting system that does all of the following: a. Authenticates the member's identity; b. Authenticates the validity of each electronic vote… c. Transmits a receipt… and d. Stores electronic votes for recount, inspection and review purposes.
Legal Basis
A.R.S. § 10-3708(F)
Topic Tags
Electronic Voting
HOA Obligations
Question
Can I use 'secret ballots' if I am voting by mail or absentee?
Short Answer
Yes, but your name/address must still appear on the envelope.
Detailed Answer
If community documents allow for secret ballots, the ballot itself does not need the voter's signature, but the outer envelope must contain the name, address, and signature to verify eligibility.
Alj Quote
The completed ballot shall contain the name, address and signature of the person voting, except that if the community documents permit secret ballots, only the envelope shall contain the name, address and signature of the voter.
Legal Basis
A.R.S. § 33-1812(A)(6)
Topic Tags
Voting Rights
Privacy
Question
How does the law define 'preponderance of the evidence' in these hearings?
Short Answer
It means the claim is 'more probably true than not'.
Detailed Answer
The standard of proof requires evidence that has the most convincing force and inclines a fair mind to one side of the issue, even if it doesn't remove all doubt.
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
Case Law (Morris K. Udall)
Topic Tags
Legal Standards
Definitions
Case
Docket No
24F-H047-REL
Case Title
AZNH Revocable Trust v. Sunland Springs Village Homeowners Association
Decision Date
2024-11-05
Alj Name
Kay A. Abramsohn
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
John F. Sullivan(Petitioner Attorney) AZNH Revocable Trust Counsel for Susan Sullivan/AZNH Trust
Susan Sullivan(Petitioner Trustee) AZNH Revocable Trust
Respondent Side
Chad M. Gallacher(Respondent Attorney) Sunland Springs Village Homeowners Association Affiliated with MAXWELL & MORGAN, P.C.
Kathy Fowers(General Manager/Witness) Sunland Springs Village Homeowners Association Custodian of Records
Cathy Braun(Association Secretary/Treasurer) Sunland Springs Village Homeowners Association Referenced in emails regarding documents inspection
Paul Minda(Board President/Board Member) Sunland Springs Village Homeowners Association Present at rehearing
Mar(Board Vice President/Board Member) Sunland Springs Village Homeowners Association Partial name only; present at rehearing
Mrs. Holden(Affiliate/Witness) Sunland Springs Village Homeowners Association Present at Superior Court argument
Neutral Parties
Kay A. Abramsohn(ALJ) Office of Administrative Hearings
Judge McKish(Superior Court Judge) Maricopa County Superior Court Presided over appeal/remand process
Susan Nicolson(ADRE Commissioner) Arizona Department of Real Estate
Other Participants
vnunez(ADRE Staff) Arizona Department of Real Estate Recipient of electronic transmission; partial name
djones(ADRE Staff) Arizona Department of Real Estate Recipient of electronic transmission; partial name
labril(ADRE Staff) Arizona Department of Real Estate Recipient of electronic transmission; partial name
mneat(ADRE Staff) Arizona Department of Real Estate Recipient of electronic transmission; partial name
lrecchia(ADRE Staff) Arizona Department of Real Estate Recipient of electronic transmission; partial name
gosborn(ADRE Staff) Arizona Department of Real Estate Recipient of electronic transmission; partial name
The Administrative Law Judge denied the petition, concluding that the Association was in compliance with ARIZ. REV. STAT. § 33-1812(7) by providing the electronic data lists received from the voting vendor (Vote HOA Now), as the statute requires storage of 'electronic votes' not necessarily 'electronic ballots' (images).
Why this result: Petitioner failed to prove by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1812(A)(7).
Key Issues & Findings
Failure to provide voting records (electronic ballots) for inspection
Petitioner alleged the Association failed to provide all voting materials, specifically images of each actual online ballot, in response to the February 28, 2024, inspection request, arguing this violated ARIZ. REV. STAT. § 33-1812(A)(7).
Orders: Petitioner's petition is denied.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
Cited:
ARIZ. REV. STAT. § 33-1812(A)(7)
ARIZ. REV. STAT. § 10-3708(F)
ARIZ. REV. STAT. § 33-1812
ARIZ. REV. STAT. § 33-1258
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.
Analytics Highlights
Topics: Voting Records, Electronic Voting, HOA Records Inspection, Statutory Interpretation, ARS 33-1812
If I challenge my HOA's election procedures, do I have to prove they did something wrong, or do they have to prove they did it right?
Short Answer
The burden of proof falls on the homeowner (Petitioner) to prove the violation.
Detailed Answer
In an administrative hearing regarding an HOA dispute, the homeowner filing the petition bears the burden of proving, by a preponderance of the evidence, that the HOA violated the relevant statutes.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1812(A)(7).
Legal Basis
A.R.S. § 33-1812(A)(7); A.A.C. R2-19-119
Topic Tags
Burden of Proof
Legal Procedure
Question
Is my HOA required to provide me with the actual visual image of every electronic ballot cast in an election?
Short Answer
No. The HOA is only required to store and provide 'electronic votes,' typically in data list format, not the visual 'ballot' image.
Detailed Answer
The ALJ determined that statutes require the storage of 'electronic votes' for inspection, but this does not mean the HOA must retain a visual image of the specific screen or ballot seen by the voter. Data lists that document the vote satisfy the requirement.
Alj Quote
ARIZ. REV. STAT. § 10-3708(F)(4) requires storage of 'electronic votes' not electronic ballots.
Legal Basis
A.R.S. § 10-3708(F)(4)
Topic Tags
Electronic Voting
Records Inspection
Question
Does a spreadsheet or data list of votes count as a valid record of 'ballots' for inspection purposes?
Short Answer
Yes. Data lists generated by voting software are considered compliant records of electronic ballots.
Detailed Answer
When an HOA uses a third-party vendor for online voting, retaining the data lists provided by that vendor (which show member information and votes cast) satisfies the statutory requirement to retain materials in an 'electronic format'.
Alj Quote
Association is in compliance with ARIZ. REV. STAT. § 33-1812(7) by retaining the Vote HOA Now data lists which demonstrate the electronic ballots 'in electronic … format.'
Legal Basis
A.R.S. § 33-1812(7)
Topic Tags
Records Inspection
Electronic Voting
Question
How long must an HOA keep election materials like ballots and sign-in sheets?
Short Answer
The HOA must retain these materials for at least one year.
Detailed Answer
State law mandates that ballots, envelopes, sign-in sheets, and related materials be kept and made available for member inspection for a minimum of one year following the election.
Alj Quote
Ballots, envelopes and related materials, including sign-in sheets if used, shall be retained in electronic or paper format and made available for member inspection for at least one year after completion of the election.
Legal Basis
A.R.S. § 33-1812(A)(7)
Topic Tags
Record Retention
Elections
Question
What specific features must an online voting system have to be legal?
Short Answer
It must authenticate identity, ensure validity, send a receipt, and store votes.
Detailed Answer
An online voting system is legally permitted if it authenticates the member's identity, ensures the vote is not altered in transit, transmits a receipt to the voter, and stores the electronic votes for recount or inspection.
Alj Quote
online voting system that does all of the following: a. Authenticates the member's identity; b. Authenticates the validity of each electronic vote… c. Transmits a receipt… and d. Stores electronic votes for recount, inspection and review purposes.
Legal Basis
A.R.S. § 10-3708(F)
Topic Tags
Electronic Voting
HOA Obligations
Question
Can I use 'secret ballots' if I am voting by mail or absentee?
Short Answer
Yes, but your name/address must still appear on the envelope.
Detailed Answer
If community documents allow for secret ballots, the ballot itself does not need the voter's signature, but the outer envelope must contain the name, address, and signature to verify eligibility.
Alj Quote
The completed ballot shall contain the name, address and signature of the person voting, except that if the community documents permit secret ballots, only the envelope shall contain the name, address and signature of the voter.
Legal Basis
A.R.S. § 33-1812(A)(6)
Topic Tags
Voting Rights
Privacy
Question
How does the law define 'preponderance of the evidence' in these hearings?
Short Answer
It means the claim is 'more probably true than not'.
Detailed Answer
The standard of proof requires evidence that has the most convincing force and inclines a fair mind to one side of the issue, even if it doesn't remove all doubt.
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
Case Law (Morris K. Udall)
Topic Tags
Legal Standards
Definitions
Case
Docket No
24F-H047-REL
Case Title
AZNH Revocable Trust v. Sunland Springs Village Homeowners Association
Decision Date
2024-11-05
Alj Name
Kay A. Abramsohn
Tribunal
OAH
Agency
ADRE
Questions
Question
If I challenge my HOA's election procedures, do I have to prove they did something wrong, or do they have to prove they did it right?
Short Answer
The burden of proof falls on the homeowner (Petitioner) to prove the violation.
Detailed Answer
In an administrative hearing regarding an HOA dispute, the homeowner filing the petition bears the burden of proving, by a preponderance of the evidence, that the HOA violated the relevant statutes.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1812(A)(7).
Legal Basis
A.R.S. § 33-1812(A)(7); A.A.C. R2-19-119
Topic Tags
Burden of Proof
Legal Procedure
Question
Is my HOA required to provide me with the actual visual image of every electronic ballot cast in an election?
Short Answer
No. The HOA is only required to store and provide 'electronic votes,' typically in data list format, not the visual 'ballot' image.
Detailed Answer
The ALJ determined that statutes require the storage of 'electronic votes' for inspection, but this does not mean the HOA must retain a visual image of the specific screen or ballot seen by the voter. Data lists that document the vote satisfy the requirement.
Alj Quote
ARIZ. REV. STAT. § 10-3708(F)(4) requires storage of 'electronic votes' not electronic ballots.
Legal Basis
A.R.S. § 10-3708(F)(4)
Topic Tags
Electronic Voting
Records Inspection
Question
Does a spreadsheet or data list of votes count as a valid record of 'ballots' for inspection purposes?
Short Answer
Yes. Data lists generated by voting software are considered compliant records of electronic ballots.
Detailed Answer
When an HOA uses a third-party vendor for online voting, retaining the data lists provided by that vendor (which show member information and votes cast) satisfies the statutory requirement to retain materials in an 'electronic format'.
Alj Quote
Association is in compliance with ARIZ. REV. STAT. § 33-1812(7) by retaining the Vote HOA Now data lists which demonstrate the electronic ballots 'in electronic … format.'
Legal Basis
A.R.S. § 33-1812(7)
Topic Tags
Records Inspection
Electronic Voting
Question
How long must an HOA keep election materials like ballots and sign-in sheets?
Short Answer
The HOA must retain these materials for at least one year.
Detailed Answer
State law mandates that ballots, envelopes, sign-in sheets, and related materials be kept and made available for member inspection for a minimum of one year following the election.
Alj Quote
Ballots, envelopes and related materials, including sign-in sheets if used, shall be retained in electronic or paper format and made available for member inspection for at least one year after completion of the election.
Legal Basis
A.R.S. § 33-1812(A)(7)
Topic Tags
Record Retention
Elections
Question
What specific features must an online voting system have to be legal?
Short Answer
It must authenticate identity, ensure validity, send a receipt, and store votes.
Detailed Answer
An online voting system is legally permitted if it authenticates the member's identity, ensures the vote is not altered in transit, transmits a receipt to the voter, and stores the electronic votes for recount or inspection.
Alj Quote
online voting system that does all of the following: a. Authenticates the member's identity; b. Authenticates the validity of each electronic vote… c. Transmits a receipt… and d. Stores electronic votes for recount, inspection and review purposes.
Legal Basis
A.R.S. § 10-3708(F)
Topic Tags
Electronic Voting
HOA Obligations
Question
Can I use 'secret ballots' if I am voting by mail or absentee?
Short Answer
Yes, but your name/address must still appear on the envelope.
Detailed Answer
If community documents allow for secret ballots, the ballot itself does not need the voter's signature, but the outer envelope must contain the name, address, and signature to verify eligibility.
Alj Quote
The completed ballot shall contain the name, address and signature of the person voting, except that if the community documents permit secret ballots, only the envelope shall contain the name, address and signature of the voter.
Legal Basis
A.R.S. § 33-1812(A)(6)
Topic Tags
Voting Rights
Privacy
Question
How does the law define 'preponderance of the evidence' in these hearings?
Short Answer
It means the claim is 'more probably true than not'.
Detailed Answer
The standard of proof requires evidence that has the most convincing force and inclines a fair mind to one side of the issue, even if it doesn't remove all doubt.
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
Case Law (Morris K. Udall)
Topic Tags
Legal Standards
Definitions
Case
Docket No
24F-H047-REL
Case Title
AZNH Revocable Trust v. Sunland Springs Village Homeowners Association
Decision Date
2024-11-05
Alj Name
Kay A. Abramsohn
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
John F. Sullivan(Attorney) AZNH Revocable Trust Counsel for Petitioner
Susan Sullivan(Petitioner Trustee) AZNH Revocable Trust Filed motion for peremptory change of judge
Respondent Side
Chad M. Gallacher(HOA attorney) MAXWELL & MORGAN, P.C. Counsel for Sunland Springs Village Homeowners Association
Kathy Fowers(General Manager) Sunland Springs Village Homeowners Association Custodian of Records; Present at hearing
Paul Minda(board member) Sunland Springs Village Homeowners Association Board President
Mar(board member) Sunland Springs Village Homeowners Association Vice President (Partial name identified)
Cathy Braun(Association Secretary/Treasurer) Sunland Springs Village Homeowners Association Exchanged emails with Petitioner regarding inspection request
Neutral Parties
Kay A. Abramsohn(ALJ) OAH Administrative Law Judge
Susan Nicolson(ADRE Commissioner) Arizona Department of Real Estate
Judge McKish(Judge) Superior Court Superior Court Judge who handled remand; also referred to as Judge McKittish
Other Participants
Mrs. Holden(witness) Present at Superior Court argument with Respondent representatives
Petitioner sustained its burden of proof establishing that Respondents violated CC&Rs sections 7.2, 7.3, 7.25, 7.26, 7.28, and 7.31 by operating a cat rescue business (VKNR) from their residence, which involved unauthorized commercial activity, excessive non-pet animals, and creating a nuisance. Violation of 7.29 was not established. The petition was granted.
Key Issues & Findings
Violation of CC&Rs by operating an unauthorized business out of their home and housing dozens of cats in excess of a reasonable number of household pets, creating a nuisance.
Respondents operated a nonprofit cat rescue (VKNR) from their single-family residence, housing 50+ cats in a 3-car garage, which constituted an unauthorized commercial use, exceeded a reasonable number of pets, and created traffic and waste nuisances.
Orders: Petitioner's petition is granted. Respondents must henceforth abide by CC&Rs sections 7.2, 7.3, 7.25, 7.26, 7.28, and 7.31.
Filing fee: $1,000.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
CC&Rs section 7.2
CC&Rs section 7.3
CC&Rs section 7.25
CC&Rs section 7.26
CC&Rs section 7.28
CC&Rs section 7.31
Analytics Highlights
Topics: Home Business, Pets/Animals, Nuisance, CC&Rs, Enforcement, HOA
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(2)
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199.01(D)
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. §§ 41-1092 et seq.
ARIZ. REV. STAT. § 32-2199.04
ARIZ. REV. STAT. § 41-1092.09
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
24F-H003-REL Decision – 1094853.pdf
Uploaded 2026-01-23T18:00:39 (51.0 KB)
24F-H003-REL Decision – 1113338.pdf
Uploaded 2026-01-23T18:00:44 (49.4 KB)
24F-H003-REL Decision – 1125372.pdf
Uploaded 2026-01-23T18:00:48 (65.5 KB)
24F-H003-REL Decision – 1147484.pdf
Uploaded 2026-01-23T18:00:51 (184.8 KB)
Study Guide – 24F-H003-REL
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1094853.pdf
1113338.pdf
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1113417.aac
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24F-H003-REL
7 sources
In a legal dispute before the Arizona Department of Real Estate, the VVE-Casa Grande Home Owners Association alleged that residents Duane and Mary Eitel violated community CC&Rs by operating an unauthorized cat rescue from their garage. The association contended that housing dozens of animals constituted an illegal business and a nuisance that impacted the neighborhood’s residential character. While the homeowners argued their nonprofit fostering was a charitable endeavor rather than a commercial enterprise, the Administrative Law Judge ruled that the large-scale operation exceeded the “reasonable number of pets” allowed. Evidence from Pinal County inspections and neighbor testimony confirmed that the garage held over 50 cats, leading to concerns over traffic, sanitation, and debris. Ultimately, the judge found the homeowners in violation of multiple governing documents and ordered them to cease operations.
What were the main legal arguments regarding the cat rescue?
How did the court define a home-based business versus a nonprofit?
What specific HOA rules were the homeowners found to have violated?
Thursday, February 12
Save to note
Today • 3:04 PM
Video Overview
Mind Map
Reports
Flashcards
Quiz
Infographic
Slide Deck
Data Table
Blog Post – 24F-H003-REL
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1094853.pdf
1113338.pdf
1113415.aac
1113416.aac
1113417.aac
1125372.pdf
1147484.pdf
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24F-H003-REL
7 sources
In a legal dispute before the Arizona Department of Real Estate, the VVE-Casa Grande Home Owners Association alleged that residents Duane and Mary Eitel violated community CC&Rs by operating an unauthorized cat rescue from their garage. The association contended that housing dozens of animals constituted an illegal business and a nuisance that impacted the neighborhood’s residential character. While the homeowners argued their nonprofit fostering was a charitable endeavor rather than a commercial enterprise, the Administrative Law Judge ruled that the large-scale operation exceeded the “reasonable number of pets” allowed. Evidence from Pinal County inspections and neighbor testimony confirmed that the garage held over 50 cats, leading to concerns over traffic, sanitation, and debris. Ultimately, the judge found the homeowners in violation of multiple governing documents and ordered them to cease operations.
What were the main legal arguments regarding the cat rescue?
How did the court define a home-based business versus a nonprofit?
What specific HOA rules were the homeowners found to have violated?
Thursday, February 12
Save to note
Today • 3:04 PM
Video Overview
Mind Map
Reports
Flashcards
Quiz
Infographic
Slide Deck
Data Table
Case Participants
Petitioner Side
Anthony Rossetti(petitioner attorney, property manager) Rossetti Management & Realty Services Represented Petitioner and owned the newly hired management company.
Douglas Karolak(witness, homeowner) VVE-Casa Grande HOA Member Testified on behalf of Petitioner.
Nicole Elliot(property manager) Norris Management Former HOA management committee/manager who issued warning letters.
CD Mai(homeowner/neighbor) VVE-Casa Grande HOA Member Mentioned by Karolak as a vocal opponent/adjacent neighbor to the Eitels.
Respondent Side
Duane Eitel(respondent, witness) VVE-Casa Grande HOA Member Referred to as Duane S Eitel in earlier documents; DE in the decision.
Mary Eitel(respondent) VVE-Casa Grande HOA Member, CEO/Director of Valley Kitten Nursery & Rescue Inc. Referred to as Mary L Eitel in earlier documents.
Kevin Harper(respondent attorney) Harper Law, PLC
Neutral Parties
Jenna Clark(ALJ) Office of Administrative Hearings
Susan Nicolson(commissioner) Arizona Department of Real Estate
AHansen(ADRE staff) Arizona Department of Real Estate
vnunez(ADRE staff) Arizona Department of Real Estate
djones(ADRE staff) Arizona Department of Real Estate
labril(ADRE staff) Arizona Department of Real Estate
Christopher Sinco(code compliance officer) Pinal County Animal Control Involved in the 2017/2018 county inspection.
Other Participants
Scott Lenderman(property manager) HOA management administrator (prior to Rossetti) Mentioned as the first HOA management administrator.
Petitioner met the burden of proof for both alleged violations: violation of the Declaration (not enforcing the 25ft setback) and violation of A.R.S. § 33-1805 (failing to provide documents). The petition was granted, and Respondent was ordered to reimburse the $1,000.00 filing fee.
Key Issues & Findings
Failure to provide documents
Respondent failed to produce documents requested by Petitioner, specifically meeting minutes discussing the investigative report, within the statutory timeframe, violating A.R.S. § 33-1805.
Orders: Respondent was found in violation of A.R.S. § 33-1805 and Declaration Section F. Respondent shall reimburse Petitioner’s filing fee of $1,000.00.
{ “case”: { “docket_no”: “24F-H015-REL”, “case_title”: “Teri S. Morcomb & J. Ted Morcomb v. Sierra Tortuga Homeowner’s Association”, “decision_date”: “2024-01-03”, “alj_name”: “Adam D. Stone”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “If I win my case against the HOA, can I get my filing fee reimbursed?”, “short_answer”: “Yes, the ALJ can order the HOA to reimburse the filing fee if the petition is granted.”, “detailed_answer”: “Under Arizona law, if a homeowner prevails in their petition against the association, the Administrative Law Judge has the authority to order the respondent (HOA) to reimburse the petitioner’s filing fee.”, “alj_quote”: “IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall reimburse Petitioner’s filing fee of $1,000.00 as required by ARIZ. REV. STAT. § 32-2199.01.”, “legal_basis”: “A.R.S. § 32-2199.02(A)”, “topic_tags”: [ “filing fees”, “reimbursement”, “penalties” ] }, { “question”: “What is the timeline for an HOA to provide records after a homeowner requests them?”, “short_answer”: “The HOA has ten business days to fulfill a request for examination or provide copies of records.”, “detailed_answer”: “Arizona statute requires that an association make financial and other records reasonably available for examination. When a member requests to examine or purchase copies of records, the association must comply within ten business days.”, “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”: [ “records request”, “deadlines”, “homeowner rights” ] }, { “question”: “Can an HOA refuse to provide meeting minutes by claiming other documents regarding a specific issue don’t exist?”, “short_answer”: “No, even if specific architectural files don’t exist, the HOA must still provide related meeting minutes if requested.”, “detailed_answer”: “In this case, while the HOA claimed no documents existed regarding a specific architectural submission (because none was made), they were still found in violation for failing to produce the meeting minutes where the issue and an investigative report were discussed.”, “alj_quote”: “From the evidence presented, and Mr. Lewin admitted, that Respondent failed to produce a copy of the meeting minutes discussing the investigative report.”, “legal_basis”: “A.R.S. § 33-1805”, “topic_tags”: [ “meeting minutes”, “records access”, “HOA obligations” ] }, { “question”: “Does the ALJ have the authority to order the HOA to physically clear a violation from a neighbor’s lot?”, “short_answer”: “Not necessarily, if the CC&Rs grant the HOA the ‘right’ rather than the ‘duty’ to clear the lot, it remains a discretionary action.”, “detailed_answer”: “Although the ALJ found the HOA in violation of the CC&Rs for the setback issue, the judge disagreed that the HOA must clear the lot. The specific language of the governing documents gave the Architectural Committee the ‘right’ to clear the lot, which the judge interpreted as discretionary.”, “alj_quote”: “However, the tribunal disagrees with Petitioner that Respondent must clear the lot. Section H of the Declaration merely states that the Architectural Committee ‘shall have the right to clear such lot’. Thus, it is still within the Architectural Committee’s discretion to act on that right.”, “legal_basis”: “CC&Rs Interpretation”, “topic_tags”: [ “enforcement”, “remedies”, “CC&Rs” ] }, { “question”: “What is the burden of proof in an HOA administrative hearing?”, “short_answer”: “The petitioner must prove their case by a ‘preponderance of the evidence’.”, “detailed_answer”: “The homeowner bringing the complaint bears the burden of proving that the HOA violated the community documents or statutes. The standard is a ‘preponderance of the evidence,’ meaning 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 the item F of the Declarations and ARIZ. REV. STAT. § 33-1805.”, “legal_basis”: “A.A.C. R2-19-119”, “topic_tags”: [ “burden of proof”, “legal standards”, “procedure” ] }, { “question”: “Can the HOA be found in violation for a neighbor’s unapproved improvements?”, “short_answer”: “Yes, if the HOA fails to enforce setback requirements against unapproved improvements.”, “detailed_answer”: “The ALJ found the Board in violation of the Declaration (setback rules) because the neighbor never submitted a request for the improvements, the improvements did not comply with setbacks, and the Board failed to enforce the requirement.”, “alj_quote”: “Petitioner has met the burden of proof in demonstrating that the Board was in violation of Section F of the Declaration and ARIZ. REV. STAT. § 33-1805.”, “legal_basis”: “CC&Rs (Section F)”, “topic_tags”: [ “architectural control”, “setbacks”, “violations” ] }, { “question”: “Do HOA directors have the right to inspect association records?”, “short_answer”: “Yes, directors generally have an absolute right to inspect all books and records at any reasonable time.”, “detailed_answer”: “The decision cites the Association Bylaws which grant every Director the absolute right to inspect all books, records, documents, and physical properties of the Association.”, “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”, “records inspection”, “bylaws” ] } ] }
Blog Post – 24F-H015-REL
{ “case”: { “docket_no”: “24F-H015-REL”, “case_title”: “Teri S. Morcomb & J. Ted Morcomb v. Sierra Tortuga Homeowner’s Association”, “decision_date”: “2024-01-03”, “alj_name”: “Adam D. Stone”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “If I win my case against the HOA, can I get my filing fee reimbursed?”, “short_answer”: “Yes, the ALJ can order the HOA to reimburse the filing fee if the petition is granted.”, “detailed_answer”: “Under Arizona law, if a homeowner prevails in their petition against the association, the Administrative Law Judge has the authority to order the respondent (HOA) to reimburse the petitioner’s filing fee.”, “alj_quote”: “IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall reimburse Petitioner’s filing fee of $1,000.00 as required by ARIZ. REV. STAT. § 32-2199.01.”, “legal_basis”: “A.R.S. § 32-2199.02(A)”, “topic_tags”: [ “filing fees”, “reimbursement”, “penalties” ] }, { “question”: “What is the timeline for an HOA to provide records after a homeowner requests them?”, “short_answer”: “The HOA has ten business days to fulfill a request for examination or provide copies of records.”, “detailed_answer”: “Arizona statute requires that an association make financial and other records reasonably available for examination. When a member requests to examine or purchase copies of records, the association must comply within ten business days.”, “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”: [ “records request”, “deadlines”, “homeowner rights” ] }, { “question”: “Can an HOA refuse to provide meeting minutes by claiming other documents regarding a specific issue don’t exist?”, “short_answer”: “No, even if specific architectural files don’t exist, the HOA must still provide related meeting minutes if requested.”, “detailed_answer”: “In this case, while the HOA claimed no documents existed regarding a specific architectural submission (because none was made), they were still found in violation for failing to produce the meeting minutes where the issue and an investigative report were discussed.”, “alj_quote”: “From the evidence presented, and Mr. Lewin admitted, that Respondent failed to produce a copy of the meeting minutes discussing the investigative report.”, “legal_basis”: “A.R.S. § 33-1805”, “topic_tags”: [ “meeting minutes”, “records access”, “HOA obligations” ] }, { “question”: “Does the ALJ have the authority to order the HOA to physically clear a violation from a neighbor’s lot?”, “short_answer”: “Not necessarily, if the CC&Rs grant the HOA the ‘right’ rather than the ‘duty’ to clear the lot, it remains a discretionary action.”, “detailed_answer”: “Although the ALJ found the HOA in violation of the CC&Rs for the setback issue, the judge disagreed that the HOA must clear the lot. The specific language of the governing documents gave the Architectural Committee the ‘right’ to clear the lot, which the judge interpreted as discretionary.”, “alj_quote”: “However, the tribunal disagrees with Petitioner that Respondent must clear the lot. Section H of the Declaration merely states that the Architectural Committee ‘shall have the right to clear such lot’. Thus, it is still within the Architectural Committee’s discretion to act on that right.”, “legal_basis”: “CC&Rs Interpretation”, “topic_tags”: [ “enforcement”, “remedies”, “CC&Rs” ] }, { “question”: “What is the burden of proof in an HOA administrative hearing?”, “short_answer”: “The petitioner must prove their case by a ‘preponderance of the evidence’.”, “detailed_answer”: “The homeowner bringing the complaint bears the burden of proving that the HOA violated the community documents or statutes. The standard is a ‘preponderance of the evidence,’ meaning 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 the item F of the Declarations and ARIZ. REV. STAT. § 33-1805.”, “legal_basis”: “A.A.C. R2-19-119”, “topic_tags”: [ “burden of proof”, “legal standards”, “procedure” ] }, { “question”: “Can the HOA be found in violation for a neighbor’s unapproved improvements?”, “short_answer”: “Yes, if the HOA fails to enforce setback requirements against unapproved improvements.”, “detailed_answer”: “The ALJ found the Board in violation of the Declaration (setback rules) because the neighbor never submitted a request for the improvements, the improvements did not comply with setbacks, and the Board failed to enforce the requirement.”, “alj_quote”: “Petitioner has met the burden of proof in demonstrating that the Board was in violation of Section F of the Declaration and ARIZ. REV. STAT. § 33-1805.”, “legal_basis”: “CC&Rs (Section F)”, “topic_tags”: [ “architectural control”, “setbacks”, “violations” ] }, { “question”: “Do HOA directors have the right to inspect association records?”, “short_answer”: “Yes, directors generally have an absolute right to inspect all books and records at any reasonable time.”, “detailed_answer”: “The decision cites the Association Bylaws which grant every Director the absolute right to inspect all books, records, documents, and physical properties of the Association.”, “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”, “records inspection”, “bylaws” ] } ] }
Case Participants
Petitioner Side
Teri S. Morcomb(petitioner) Lot 8 owner, testified
J. Ted Morcomb(petitioner) Lot 8 owner
Jeffrey T. Brei(petitioner attorney)
Tracy Allen Bogardis(witness) Civil Engineer Testified regarding drainage/hydrology
Respondent Side
Phillip Brown(HOA attorney)
Kelly Oetinger(HOA attorney)
Robert Leuen(board president) Sierra Tortuga HOA Testified
Marcella Bernadette Aguilar(witness) Sierra Tortuga HOA Lot 9 owner, testified
Abel Sodto(lot owner) Sierra Tortuga HOA Lot 9 owner, former Board/ARC member, subject of violation
Clint Stoddard(board member) Sierra Tortuga HOA Investigator
Benny Medina(board member) Sierra Tortuga HOA Investigator, former president
Joseph D. Martino(ARC member) Sierra Tortuga HOA Former Architectural Committee Head
Chris Stler(board member) Sierra Tortuga HOA Vice President of HOA
Yvon Posche(board member) Sierra Tortuga HOA Secretary of HOA
Steve Brockam(board member) Sierra Tortuga HOA Board Director
Perry Terren(ARC chair) Sierra Tortuga HOA ARC Chairman and Board Director
Jeremy Thompson(law clerk) HOA Attorney's office
Mike Shupe(former HOA attorney)
Neutral Parties
Adam D. Stone(ALJ) OAH
Tim Ross(board member) Sierra Tortuga HOA Former board/investigator, criticized current board actions
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)
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.
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.
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.
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.
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
Paradise Park Condominiums Phase II Homeowners Association
Counsel
Ashley N. Moscarello
Alleged Violations
Article II Section 3 of Respondent’s bylaws
Outcome Summary
The Administrative Law Judge affirmed the Petitioner's claim, finding that the HOA violated Article II Section 3 of its bylaws by failing to hold the Annual Meeting on the second Monday of March (March 13, 2023). The HOA was ordered to reimburse the Petitioner's $500.00 filing fee, but a request for a civil penalty was denied.
Key Issues & Findings
Failure to hold an annual meeting as required by bylaws
The HOA failed to hold the mandatory annual meeting on March 13, 2023, as explicitly required by the amended bylaws (Article II Section 3). The meeting was subsequently scheduled for May 8, 2023, 56 days late, constituting a violation, even though the later meeting failed to meet quorum.
Orders: Petitioner’s petition is affirmed. Respondent shall reimburse Petitioner’s filing fee of $500.00. Petitioner’s request to levy a civil penalty against Respondent is denied.
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
Video Overview
Audio Overview
Decision Documents
23F-H053-REL Decision – 1072068.pdf
Uploaded 2026-01-23T17:57:32 (115.3 KB)
Study Guide – 23F-H053-REL
{ “case”: { “docket_no”: “23F-H053-REL”, “case_title”: “Deborah L. Masear v. Paradise Park Condominiums Phase II Homeowners Association”, “decision_date”: “2023-07-10”, “alj_name”: “Brian Del Vecchio”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “If the bylaws state a specific date for the annual meeting, can the HOA board reschedule it to a different month?”, “short_answer”: “No. If the bylaws use mandatory language like “shall,” the HOA cannot change the date.”, “detailed_answer”: “The ALJ determined that when bylaws state a meeting “shall be held” on a specific date, this language is mandatory and not permissive. The HOA does not have the discretion to change the date of the annual meeting if the governing documents specify exactly when it must occur.”, “alj_quote”: “Respondent’s Bylaws state, ‘[t]he annual meeting of the members shall be held,’ at the designated date and time annually. The phrase ‘shall be held’ is not permissive; there is no changing the date of the annual meeting.”, “legal_basis”: “Bylaws Article II Section 3”, “topic_tags”: [ “Annual Meetings”, “Bylaws Interpretation”, “HOA Obligations” ] }, { “question”: “Does a meeting count as being ‘held’ if the HOA schedules it but fails to reach a quorum?”, “short_answer”: “No. If a quorum is not present, the meeting is legally considered not to have been held.”, “detailed_answer”: “Even if the HOA sends notice and attempts to convene, the failure to achieve a quorum means the meeting cannot conduct business. The ALJ ruled that in such cases, the meeting was not actually held, resulting in a violation if the bylaws required a meeting on that date.”, “alj_quote”: “Respondent attempted to hold an annual meeting on May 8, 2023, and but for the lack of quorum, the meeting was not held.”, “legal_basis”: “Findings of Fact”, “topic_tags”: [ “Quorum”, “Annual Meetings”, “Procedural Requirements” ] }, { “question”: “If I win my dispute against the HOA, will I get my $500 filing fee back?”, “short_answer”: “Yes. The ALJ has the authority to order the HOA to reimburse the filing fee to the prevailing homeowner.”, “detailed_answer”: “In this decision, after ruling in favor of the homeowner regarding the failure to hold the annual meeting, the judge ordered the HOA to reimburse the $500 filing fee the homeowner paid to initiate the case.”, “alj_quote”: “IT IS FURTHER ORDERED Respondent shall reimburse Petitioner’s filing fee of $500.00 pursuant to ARIZ. REV. STAT. § 32-2199.02(A).”, “legal_basis”: “ARIZ. REV. STAT. § 32-2199.02(A)”, “topic_tags”: [ “Remedies”, “Filing Fees”, “Costs” ] }, { “question”: “Will the HOA automatically be fined a civil penalty if they are found to have violated the bylaws?”, “short_answer”: “No. The ALJ may deny a request for civil penalties even if they find that a violation occurred.”, “detailed_answer”: “While the homeowner in this case requested a civil penalty be levied against the HOA for the violation, the ALJ explicitly denied this request in the final order, despite ruling that the HOA had violated the bylaws.”, “alj_quote”: “IT IS FURTHER ORDERED that Petitioner’s request to levy a civil penalty against Respondent is denied.”, “legal_basis”: “Administrative Discretion”, “topic_tags”: [ “Penalties”, “Remedies”, “Enforcement” ] }, { “question”: “Who has to prove that the HOA violated the rules?”, “short_answer”: “The homeowner (Petitioner) bears the burden of proof.”, “detailed_answer”: “In an administrative hearing before the OAH, the person bringing the complaint must prove their case by a ‘preponderance of the evidence.’ It is not up to the HOA to prove they are innocent; the homeowner must prove the violation occurred.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated Article II Section 3 of the Bylaws.”, “legal_basis”: “ARIZ. ADMIN. CODE R2-19-119”, “topic_tags”: [ “Burden of Proof”, “Legal Standards”, “Hearing Procedures” ] }, { “question”: “What kind of HOA disputes can I file with the Arizona Department of Real Estate?”, “short_answer”: “You can file petitions regarding violations of community documents (CC&Rs, bylaws) or state statutes regulating planned communities.”, “detailed_answer”: “The Department has jurisdiction to hear disputes between owners and associations specifically concerning violations of the community’s governing documents or the relevant Arizona statutes regulating these communities.”, “alj_quote”: “The owner or association may petition the department for a hearing concerning violations of community documents or violations of the statutes that regulate planned communities…”, “legal_basis”: “ARIZ. REV. STAT. §§ 32-2102 and 32-2199 et seq.”, “topic_tags”: [ “Jurisdiction”, “ADRE”, “Filing a Complaint” ] } ] }
Blog Post – 23F-H053-REL
{ “case”: { “docket_no”: “23F-H053-REL”, “case_title”: “Deborah L. Masear v. Paradise Park Condominiums Phase II Homeowners Association”, “decision_date”: “2023-07-10”, “alj_name”: “Brian Del Vecchio”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “If the bylaws state a specific date for the annual meeting, can the HOA board reschedule it to a different month?”, “short_answer”: “No. If the bylaws use mandatory language like “shall,” the HOA cannot change the date.”, “detailed_answer”: “The ALJ determined that when bylaws state a meeting “shall be held” on a specific date, this language is mandatory and not permissive. The HOA does not have the discretion to change the date of the annual meeting if the governing documents specify exactly when it must occur.”, “alj_quote”: “Respondent’s Bylaws state, ‘[t]he annual meeting of the members shall be held,’ at the designated date and time annually. The phrase ‘shall be held’ is not permissive; there is no changing the date of the annual meeting.”, “legal_basis”: “Bylaws Article II Section 3”, “topic_tags”: [ “Annual Meetings”, “Bylaws Interpretation”, “HOA Obligations” ] }, { “question”: “Does a meeting count as being ‘held’ if the HOA schedules it but fails to reach a quorum?”, “short_answer”: “No. If a quorum is not present, the meeting is legally considered not to have been held.”, “detailed_answer”: “Even if the HOA sends notice and attempts to convene, the failure to achieve a quorum means the meeting cannot conduct business. The ALJ ruled that in such cases, the meeting was not actually held, resulting in a violation if the bylaws required a meeting on that date.”, “alj_quote”: “Respondent attempted to hold an annual meeting on May 8, 2023, and but for the lack of quorum, the meeting was not held.”, “legal_basis”: “Findings of Fact”, “topic_tags”: [ “Quorum”, “Annual Meetings”, “Procedural Requirements” ] }, { “question”: “If I win my dispute against the HOA, will I get my $500 filing fee back?”, “short_answer”: “Yes. The ALJ has the authority to order the HOA to reimburse the filing fee to the prevailing homeowner.”, “detailed_answer”: “In this decision, after ruling in favor of the homeowner regarding the failure to hold the annual meeting, the judge ordered the HOA to reimburse the $500 filing fee the homeowner paid to initiate the case.”, “alj_quote”: “IT IS FURTHER ORDERED Respondent shall reimburse Petitioner’s filing fee of $500.00 pursuant to ARIZ. REV. STAT. § 32-2199.02(A).”, “legal_basis”: “ARIZ. REV. STAT. § 32-2199.02(A)”, “topic_tags”: [ “Remedies”, “Filing Fees”, “Costs” ] }, { “question”: “Will the HOA automatically be fined a civil penalty if they are found to have violated the bylaws?”, “short_answer”: “No. The ALJ may deny a request for civil penalties even if they find that a violation occurred.”, “detailed_answer”: “While the homeowner in this case requested a civil penalty be levied against the HOA for the violation, the ALJ explicitly denied this request in the final order, despite ruling that the HOA had violated the bylaws.”, “alj_quote”: “IT IS FURTHER ORDERED that Petitioner’s request to levy a civil penalty against Respondent is denied.”, “legal_basis”: “Administrative Discretion”, “topic_tags”: [ “Penalties”, “Remedies”, “Enforcement” ] }, { “question”: “Who has to prove that the HOA violated the rules?”, “short_answer”: “The homeowner (Petitioner) bears the burden of proof.”, “detailed_answer”: “In an administrative hearing before the OAH, the person bringing the complaint must prove their case by a ‘preponderance of the evidence.’ It is not up to the HOA to prove they are innocent; the homeowner must prove the violation occurred.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated Article II Section 3 of the Bylaws.”, “legal_basis”: “ARIZ. ADMIN. CODE R2-19-119”, “topic_tags”: [ “Burden of Proof”, “Legal Standards”, “Hearing Procedures” ] }, { “question”: “What kind of HOA disputes can I file with the Arizona Department of Real Estate?”, “short_answer”: “You can file petitions regarding violations of community documents (CC&Rs, bylaws) or state statutes regulating planned communities.”, “detailed_answer”: “The Department has jurisdiction to hear disputes between owners and associations specifically concerning violations of the community’s governing documents or the relevant Arizona statutes regulating these communities.”, “alj_quote”: “The owner or association may petition the department for a hearing concerning violations of community documents or violations of the statutes that regulate planned communities…”, “legal_basis”: “ARIZ. REV. STAT. §§ 32-2102 and 32-2199 et seq.”, “topic_tags”: [ “Jurisdiction”, “ADRE”, “Filing a Complaint” ] } ] }
Case Participants
Petitioner Side
Deborah Masear(petitioner) Paradise Park Condominiums Phase II HOA Member Also referred to as Deborah Maer
Respondent Side
Ashley Moscarello(HOA attorney) Goodman Law Group Appeared on behalf of Respondent
Carl Westlund(witness) Management Trust Community Manager for the HOA
Neutral Parties
Brian Del Vecchio(ALJ) OAH Also referred to as Judge Delio
The HOA's petition was granted. Respondents were found to have violated CC&Rs Section 3(j) by installing tile without approval and were ordered to comply with the CC&Rs, reimburse the $500 filing fee, and pay a $100 civil penalty.
Why this result: Respondents admitted to the alleged conduct and failed to establish a sufficient affirmative defense (incomplete CC&Rs) against the violation, as the recorded CC&Rs provided constructive notice of all provisions. Respondents' conduct during testimony was also considered a factor in aggravation.
Respondents permanently installed tile on their front porch entryway without obtaining prior written approval. The ALJ rejected the Respondents' defense regarding missing CC&R pages, noting the HOA sustained its burden of proving a community document violation by a preponderance of the evidence.
Orders: Respondents must henceforth abide by CC&Rs Section 3(j), reimburse the Petitioner $500.00 for the filing fee, and pay a $100.00 civil penalty to the Department.
Am I excused from HOA rules if pages were missing from the copy of the CC&Rs I received at closing?
Short Answer
No. Recorded CC&Rs provide constructive notice of all provisions to homeowners, regardless of errors in the specific copy provided at closing.
Detailed Answer
The ALJ ruled that missing pages in the document package provided by a disclosure company or previous owner do not excuse a homeowner from compliance. Because CC&Rs are recorded public documents, homeowners are deemed to have 'constructive notice' of all rules contained within the recorded version.
Alj Quote
The Tribunal is not swayed by Mr. White’s incorrect legal interpretations regarding the annotated CC&Rs received by HomeWise, as the Pima County recorded CC&Rs provide constructive notice of all provisions contained within the community documents
Legal Basis
Constructive Notice
Topic Tags
CC&Rs
disclosure
compliance
Question
Can the HOA regulate changes to my property even if they aren't visible from the street or neighboring properties?
Short Answer
Yes, especially if the HOA is responsible for maintaining the exterior surfaces.
Detailed Answer
The decision upheld the HOA's authority to regulate exterior modifications regardless of visibility, particularly noting that when an owner acquires a lot where the HOA performs maintenance, they may give up rights to control the appearance of those areas.
Alj Quote
Each Owner of a Villas Lot understands, acknowledges and agrees that by acquiring an interest in a Lot in which landscaping and exterior maintenance is performed or arranged by the Villas Association, such Owner is giving up rights to control the appearance and use of the outside areas of such Owner’s Villas Lot.
Legal Basis
CC&Rs Contractual Obligations
Topic Tags
architectural control
maintenance
visibility
Question
Can I fix a violation for unapproved flooring by simply covering it with a rug?
Short Answer
No. Covering an unapproved permanent installation with a removable item like a rug does not cure the underlying violation.
Detailed Answer
The ALJ rejected the homeowner's argument that placing a custom rug over unapproved tiles resolved the issue. The violation (the unapproved installation) persisted despite being hidden from view.
Alj Quote
The Tribunal is not swayed… by Mr. White’s placement of a custom cut rug in lieu of paying the fine to the Association.
Legal Basis
Remedy of Violation
Topic Tags
violations
remedies
architectural control
Question
Who has the burden of proof in an administrative hearing regarding an HOA dispute?
Short Answer
The Petitioner (the party bringing the case) bears the burden of proof.
Detailed Answer
The Petitioner must prove their case by a 'preponderance of the evidence' (meaning it is more likely true than not). Conversely, if the Respondent claims an affirmative defense (a legal excuse), they bear the burden of proving that defense.
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. Respondents bear the burden of establishing any affirmative defenses by the same evidentiary burden.
Legal Basis
ARIZ. ADMIN. CODE R2-19-119
Topic Tags
procedural
burden of proof
evidence
Question
If I lose the hearing, do I have to reimburse the HOA for their filing fee?
Short Answer
Yes. The prevailing party is typically entitled to reimbursement of the filing fee.
Detailed Answer
The ALJ ordered the losing homeowner to reimburse the HOA for the $500 filing fee they paid to bring the case. This is a statutory requirement under Arizona law.
Alj Quote
IT IS FURTHER ORDERED that Respondents shall reimburse Petitioner its filing fee of $500.00, to be paid directly to Petitioner within thirty (30) days of this ORDER, as required by ARIZ. REV. STAT. § 32-2199.01.
Legal Basis
A.R.S. § 32-2199.01
Topic Tags
fees
costs
penalties
Question
Can the ALJ order me to pay a penalty to the state in addition to reimbursing the HOA?
Short Answer
Yes. The ALJ has the authority to impose a civil penalty payable to the Arizona Department of Real Estate.
Detailed Answer
In this decision, in addition to ordering compliance and fee reimbursement to the HOA, the ALJ ordered the homeowner to pay a $100 civil penalty directly to the Department of Real Estate.
Alj Quote
IT IS FURTHER ORDERED that Respondents shall pay a $100.00 civil penalty in certified funds to the Department within thirty (30) days of this ORDER, as authorized by ARIZ. REV. STAT. § 32-2199.02.
Legal Basis
A.R.S. § 32-2199.02
Topic Tags
civil penalty
fines
ADRE
Question
Does my behavior during the dispute process affect the judge's decision?
Short Answer
Yes. Obfuscating or evasive conduct can be considered an aggravating factor against you.
Detailed Answer
The ALJ specifically noted that the homeowner's conduct during testimony was 'obfuscating' (confusing or unclear) and weighed this as a factor in aggravation when making the final ruling.
Alj Quote
Moreover, Mr. White’s conduct during the testimony was obfuscating, and is considered a factor in aggravation.
Legal Basis
Judicial Discretion
Topic Tags
conduct
hearing process
aggravating factors
Case
Docket No
23F-H042-REL
Case Title
Quail Creek Villas Association, Inc. vs. Randall & Gisela White
Decision Date
2023-05-09
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE
Questions
Question
Am I excused from HOA rules if pages were missing from the copy of the CC&Rs I received at closing?
Short Answer
No. Recorded CC&Rs provide constructive notice of all provisions to homeowners, regardless of errors in the specific copy provided at closing.
Detailed Answer
The ALJ ruled that missing pages in the document package provided by a disclosure company or previous owner do not excuse a homeowner from compliance. Because CC&Rs are recorded public documents, homeowners are deemed to have 'constructive notice' of all rules contained within the recorded version.
Alj Quote
The Tribunal is not swayed by Mr. White’s incorrect legal interpretations regarding the annotated CC&Rs received by HomeWise, as the Pima County recorded CC&Rs provide constructive notice of all provisions contained within the community documents
Legal Basis
Constructive Notice
Topic Tags
CC&Rs
disclosure
compliance
Question
Can the HOA regulate changes to my property even if they aren't visible from the street or neighboring properties?
Short Answer
Yes, especially if the HOA is responsible for maintaining the exterior surfaces.
Detailed Answer
The decision upheld the HOA's authority to regulate exterior modifications regardless of visibility, particularly noting that when an owner acquires a lot where the HOA performs maintenance, they may give up rights to control the appearance of those areas.
Alj Quote
Each Owner of a Villas Lot understands, acknowledges and agrees that by acquiring an interest in a Lot in which landscaping and exterior maintenance is performed or arranged by the Villas Association, such Owner is giving up rights to control the appearance and use of the outside areas of such Owner’s Villas Lot.
Legal Basis
CC&Rs Contractual Obligations
Topic Tags
architectural control
maintenance
visibility
Question
Can I fix a violation for unapproved flooring by simply covering it with a rug?
Short Answer
No. Covering an unapproved permanent installation with a removable item like a rug does not cure the underlying violation.
Detailed Answer
The ALJ rejected the homeowner's argument that placing a custom rug over unapproved tiles resolved the issue. The violation (the unapproved installation) persisted despite being hidden from view.
Alj Quote
The Tribunal is not swayed… by Mr. White’s placement of a custom cut rug in lieu of paying the fine to the Association.
Legal Basis
Remedy of Violation
Topic Tags
violations
remedies
architectural control
Question
Who has the burden of proof in an administrative hearing regarding an HOA dispute?
Short Answer
The Petitioner (the party bringing the case) bears the burden of proof.
Detailed Answer
The Petitioner must prove their case by a 'preponderance of the evidence' (meaning it is more likely true than not). Conversely, if the Respondent claims an affirmative defense (a legal excuse), they bear the burden of proving that defense.
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. Respondents bear the burden of establishing any affirmative defenses by the same evidentiary burden.
Legal Basis
ARIZ. ADMIN. CODE R2-19-119
Topic Tags
procedural
burden of proof
evidence
Question
If I lose the hearing, do I have to reimburse the HOA for their filing fee?
Short Answer
Yes. The prevailing party is typically entitled to reimbursement of the filing fee.
Detailed Answer
The ALJ ordered the losing homeowner to reimburse the HOA for the $500 filing fee they paid to bring the case. This is a statutory requirement under Arizona law.
Alj Quote
IT IS FURTHER ORDERED that Respondents shall reimburse Petitioner its filing fee of $500.00, to be paid directly to Petitioner within thirty (30) days of this ORDER, as required by ARIZ. REV. STAT. § 32-2199.01.
Legal Basis
A.R.S. § 32-2199.01
Topic Tags
fees
costs
penalties
Question
Can the ALJ order me to pay a penalty to the state in addition to reimbursing the HOA?
Short Answer
Yes. The ALJ has the authority to impose a civil penalty payable to the Arizona Department of Real Estate.
Detailed Answer
In this decision, in addition to ordering compliance and fee reimbursement to the HOA, the ALJ ordered the homeowner to pay a $100 civil penalty directly to the Department of Real Estate.
Alj Quote
IT IS FURTHER ORDERED that Respondents shall pay a $100.00 civil penalty in certified funds to the Department within thirty (30) days of this ORDER, as authorized by ARIZ. REV. STAT. § 32-2199.02.
Legal Basis
A.R.S. § 32-2199.02
Topic Tags
civil penalty
fines
ADRE
Question
Does my behavior during the dispute process affect the judge's decision?
Short Answer
Yes. Obfuscating or evasive conduct can be considered an aggravating factor against you.
Detailed Answer
The ALJ specifically noted that the homeowner's conduct during testimony was 'obfuscating' (confusing or unclear) and weighed this as a factor in aggravation when making the final ruling.
Alj Quote
Moreover, Mr. White’s conduct during the testimony was obfuscating, and is considered a factor in aggravation.
Legal Basis
Judicial Discretion
Topic Tags
conduct
hearing process
aggravating factors
Case
Docket No
23F-H042-REL
Case Title
Quail Creek Villas Association, Inc. vs. Randall & Gisela White
Decision Date
2023-05-09
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Michael Shupe(HOA attorney) Goldschmidt Shupe, PLLC Appeared as counsel for Petitioner
Carolyn B. Goldschmidt(HOA attorney) Goldschmidt Shupe, PLLC Legal counsel for the Association; communication contact listed
Lori Don Woullet(Property Manager/Witness) Cadden Community Management Senior Community Association Manager
Diane Patricia Weber(Former Board Member/Witness) Quail Creek Villas Association, Inc. Former Board Treasurer
Lynn Birleffi(Witness) Quail Creek Villas Association, Inc. Called as a witness for Petitioner
Respondent Side
Randall White(Respondent) Quail Creek Villas Association, Inc. Appeared pro se and testified
Gisela White(Respondent) Quail Creek Villas Association, Inc. Appearance waived
Neutral Parties
Jenna Clark(ALJ) Office of Administrative Hearings Presiding Administrative Law Judge
Susan Nicolson(ADRE Commissioner) Arizona Department of Real Estate
