Tag Archives: ARIZ. REV. STAT. § 32-2199.04

Tom Barrs vs Desert Ranch Homeowners Association

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Case Summary

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

Parties & Counsel

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

Alleged Violations

ARIZ. REV. STAT. § 33-1805

Outcome Summary

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

Key Issues & Findings

Failure to timely provide full membership roster

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

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

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

Disposition: petitioner_win

Cited:

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

Analytics Highlights

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

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

Video Overview

Audio Overview

Decision Documents

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

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

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

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

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

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

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

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

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

Executive Summary

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

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

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

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

——————————————————————————–

I. Case Overview and Parties Involved

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

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

• Docket Number: 25F-H2222050-REL-RMD

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

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

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

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

II. Procedural History: From Initial Petitions to Superior Court

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

Petition Filing Date

Alleged Violation

Subject Matter

April 18, 2022

A.R.S. § 33-1805

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

April 18, 2022

A.R.S. § 33-1804(A)

Alleged preclusion of audio recording at a meeting.

April 18, 2022

A.R.S. § 33-1805

Membership roster request from October 2021.

May 12, 2022

A.R.S. § 33-1805

Multiple document requests from Oct 2021 to Mar 2022.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

IV. The Remand Process and Clarification of Scope

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

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

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

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

The Order explicitly narrowed the scope of the hearing:

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

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

V. Final Hearing and Resolution

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

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

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

Stipulation

Details

Violation Admitted

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

Specific Request

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

Untimeliness

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

Monetary Settlement

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

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

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

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

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

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

Questions

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • Records Request
  • Membership List
  • Homeowner Rights

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

A.R.S. § 33-1805(B)(4)

Topic Tags

  • Privacy
  • Records Request
  • Personal Records

Question

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

Short Answer

The HOA has 10 business days to fulfill a request.

Detailed Answer

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

Alj Quote

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

Legal Basis

A.R.S. § 33-1805(A)

Topic Tags

  • Timelines
  • Procedural Requirements

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

The association shall not charge a member or any person designated by the member in writing for making material available for review.

Legal Basis

A.R.S. § 33-1805(A)

Topic Tags

  • Fees
  • Records Request

Question

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

Short Answer

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

Detailed Answer

If a member requests copies of records, the association is legally permitted to charge a fee, but it is capped at fifteen cents per page.

Alj Quote

An association may charge a fee for making copies of not more than fifteen cents per page.

Legal Basis

A.R.S. § 33-1805(A)

Topic Tags

  • Fees
  • Records Request

Question

What records is the HOA allowed to withhold from me?

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

A.R.S. § 33-1805(B)

Topic Tags

  • Exceptions
  • Records Request
  • Privacy

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • Penalties
  • Enforcement
  • Timelines

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

A.R.S. § 32-2199.01

Topic Tags

  • Costs
  • Remedies

Question

Who has to prove that the HOA broke the law?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

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

Alj Quote

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

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • Legal Standards
  • Procedure

Case

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

Questions

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • Records Request
  • Membership List
  • Homeowner Rights

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

A.R.S. § 33-1805(B)(4)

Topic Tags

  • Privacy
  • Records Request
  • Personal Records

Question

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

Short Answer

The HOA has 10 business days to fulfill a request.

Detailed Answer

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

Alj Quote

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

Legal Basis

A.R.S. § 33-1805(A)

Topic Tags

  • Timelines
  • Procedural Requirements

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

The association shall not charge a member or any person designated by the member in writing for making material available for review.

Legal Basis

A.R.S. § 33-1805(A)

Topic Tags

  • Fees
  • Records Request

Question

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

Short Answer

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

Detailed Answer

If a member requests copies of records, the association is legally permitted to charge a fee, but it is capped at fifteen cents per page.

Alj Quote

An association may charge a fee for making copies of not more than fifteen cents per page.

Legal Basis

A.R.S. § 33-1805(A)

Topic Tags

  • Fees
  • Records Request

Question

What records is the HOA allowed to withhold from me?

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

A.R.S. § 33-1805(B)

Topic Tags

  • Exceptions
  • Records Request
  • Privacy

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • Penalties
  • Enforcement
  • Timelines

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

A.R.S. § 32-2199.01

Topic Tags

  • Costs
  • Remedies

Question

Who has to prove that the HOA broke the law?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

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

Alj Quote

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

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • Legal Standards
  • Procedure

Case

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

Case Participants

Petitioner Side

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

Respondent Side

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

Neutral Parties

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

Other Participants

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

VVE-Casa Grande Home Owners Association v. Duane S & Mary L Eitel

Posted on by

Case Summary

Case ID 24F-H003-REL
Agency ADRE
Tribunal OAH
Decision Date 2024-02-22
Administrative Law Judge Jenna Clark
Outcome 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.
Filing Fees Refunded $1,000.00
Civil Penalties $0.00

Parties & Counsel

Petitioner VVE-Casa Grande Home Owners Association Counsel Anthony Rossetti, Esq.
Respondent Duane Eitel & Mary Eitel Counsel Kevin Harper, Esq.

Alleged Violations

CC&Rs Article VII, sections 7.2, 7.3, 7.25, 7.26, 7.28, 7.29, and 7.31

Outcome Summary

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 2026-04-24T12:13:45 (51.0 KB)

24F-H003-REL Decision – 1113338.pdf

Uploaded 2026-04-24T12:13:48 (49.4 KB)

24F-H003-REL Decision – 1125372.pdf

Uploaded 2026-04-24T12:13:52 (65.5 KB)

24F-H003-REL Decision – 1147484.pdf

Uploaded 2026-04-24T12:13:55 (184.8 KB)

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)

This case, *VVE-Casa Grande Home Owners Association v. Duane S & Mary L Eitel* (No. 24F-H003-REL), was heard before Administrative Law Judge (ALJ) Jenna Clark at the Office of Administrative Hearings (OAH).

Key Facts and Issues

The Petitioner, VVE-Casa Grande Home Owners Association (the Association), filed a petition alleging that the Respondents, Duane S. Eitel and Mary L. Eitel, violated several Covenants, Conditions, and Restrictions (CC&Rs) by operating an unauthorized business out of their home and housing cats far in excess of a "reasonable number of household pets".

The primary CC&R sections alleged to be violated were:

  1. 7.2 (Residential Use) & 7.3 (No Commercial Use): Prohibiting commercial use, manufacturing, storing, or vending on the lot.
  2. 7.25 (Animals): Limiting animals to a reasonable number of generally recognized household pets, and stating that state and county laws govern pet numbers, noise, and nuisance.
  3. 7.26, 7.28, 7.29, and 7.31: Related to nuisance, garbage, debris, diseases, and maintaining a safe and orderly condition.

The core factual dispute centered on the operation of Valley Kitten Nursery & Rescue Inc. (VKNR), a 501(c)(3) nonprofit. Respondents historically stored over fifty (50) cats/kittens in their three-car garage pending private adoption. Pinal County had previously determined the operation was an unauthorized use subject to a zoning violation in 2017.

Hearing Proceedings and Arguments

The evidentiary hearing took place on November 14, 2023.

Petitioner's Argument: The Association argued that Respondents were unequivocally running a business. This assertion was supported by evidence that VKNR has an Employer Identification Number (EIN), charges adoption fees ($125 for kittens, $95 for adult cats), and handles cats as "a product," not pets. Furthermore, housing 50+ non-pet animals in the garage was unreasonable and violated residential use restrictions. Petitioner’s witness testified to observing cars, deliveries, and volunteers cleaning cages in the driveway, creating concerns about debris, waste runoff, and biohazardous materials.

Respondent's Argument: Respondents argued that VKNR is a volunteer nonprofit and therefore not a "commercial business" prohibited by CC&R 7.3. They asserted they were fostering animals and that adoption fees merely covered costs. Respondent Duane Eitel (DE) testified that the operation was run so that adopters did not pick up cats at the residence (with limited exceptions), and that the cleaning processes had been moved to the rear yard in response to earlier complaints. They noted that Pinal County had never issued a final violation regarding the number of cats.

Procedural Outcome and Final Decision

Following the presentation of evidence, the ALJ recessed the hearing to encourage settlement, placing the matter in "Status". The status period was extended until February 2, 2024. As the parties were unable to settle, they requested the ALJ issue a decision based on the hearing record.

The ALJ issued the Administrative Law Judge Decision on February 22, 2024, finding that the Petitioner sustained its burden of proof by a preponderance of the evidence.

Key Legal Findings:

  • The ALJ concluded that Respondents' operation of VKNR constituted a "clear business model". The assertion that VKNR is not a "business" because it is a nonprofit was deemed "both technically and legally inaccurate".
  • Respondent DE admitted that the 50+ animals housed in the garage were not pets.
  • The continued operation, including visible debris and the scope of the operation, created a nuisance and traffic issues.
  • The ALJ found violations of CC&R sections 7.2, 7.3, 7.25, 7.26, 7.28, and 7.31 were established. (A violation of 7.29 was not established).

Final Order: The Association's petition was granted. Respondents were ordered to **henceforth abide by CC&R sections 7.2,

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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?

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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

7 sources

Video Overview

Mind Map

Reports

Flashcards

Quiz

Infographic

Slide Deck

Data Table

NotebookLM can be inaccurate; please double check its responses.

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.

Teri S. Morcomb & J. Ted Morcomb v. Sierra Tortuga Homeowner’s

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Case Summary

Case ID 24F-H015-REL
Agency ADRE
Tribunal OAH
Decision Date 2024-01-03
Administrative Law Judge Adam D. Stone
Outcome 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.
Filing Fees Refunded $1,000.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Teri S. Morcomb & J. Ted Morcomb Counsel Jeffrey Brie, Esq.
Respondent Sierra Tortuga Homeowner’s Association Counsel Phillip Brown, Esq. and Kelly Oetinger, Esq.

Alleged Violations

ARIZ. REV. STAT. § 33-1805

Outcome Summary

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.

Filing fee: $1,000.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. § 33-1805
  • Declaration Section F

Analytics Highlights

Topics: setback enforcement, document request, HOA governance, filing fee refund, A.R.S. 33-1805
Additional Citations:

  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et al.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 33-1805
  • ARIZ. ADMIN. CODE R2-19-119
  • ARIZ. REV. STAT. § 41-1092
  • ARIZ. REV. STAT. § 41-1092.09
  • ARIZ. REV. STAT. § 32-2199.02(A)
  • ARIZ. REV. STAT. § 32-2199.04
  • ARIZ. REV. STAT. § 33-1804
  • Declaration Section F

Video Overview

Audio Overview

Decision Documents

24F-H015-REL Decision – 1102948.pdf

Uploaded 2026-01-23T18:02:19 (53.9 KB)

24F-H015-REL Decision – 1116083.pdf

Uploaded 2026-01-23T18:02:23 (50.5 KB)

24F-H015-REL Decision – 1129495.pdf

Uploaded 2026-01-23T18:02:26 (148.2 KB)

This summary addresses the administrative hearing (No. 24F-H015-REL) involving Petitioners Teri S. Morcomb & J. Ted Morcomb and Respondent Sierra Tortuga Homeowner’s Association (HOA). The hearing was conducted by Administrative Law Judge (ALJ) Adam D. Stone on November 22 and December 20, 2023, concerning alleged violations of the community's governing documents and Arizona statutes.

Key Facts and Main Issues

The Petitioners filed a two-issue petition with the Arizona Department of Real Estate:

  1. Setback Enforcement: Violation of the Declaration of Restrictions (specifically Item F of the Second Declaration) by the HOA "not enforcing the 25ft setback provision".
  2. Document Disclosure: Violation of A.R.S. § 33-1805 by failing "to provide documents" requested by the Petitioners.

The central factual dispute revolved around Lot 9 (owned by Marcella Aguilar and Abel Sodto), which shares a property line with the Petitioners' Lot 8. Petitioners alleged that the Lot 9 owners made unapproved improvements—including grading, removal of native vegetation, and placement of large boulders—within the mandatory 25-foot setback. The Declaration requires Architectural Committee (ARC) approval for all improvements and any removal of native growth. An HOA investigation in September 2020 concluded that the Lot 9 improvements were neither submitted nor approved by the ARC, and Lot 9 was directed to submit plans within 30 days. Petitioners testified that Lot 9 failed to comply.

Key Arguments

  • Petitioner's Argument: The Association failed its mandatory duty to enforce the CC&Rs for over three years, particularly since the Lot 9 owner (Mr. Sodto) held influential positions (Director, President, ARC member) during the relevant period. Petitioners sought an order requiring the HOA to remedy the violation (remove boulders, revegetate). Petitioners' civil engineer, Tracy Bogardus, testified that Lot 8 did not cause Lot 9's drainage issues, invalidating the Lot 9 owners’ justification for the grading.
  • Respondent's Argument (HOA): The HOA denied the claims, arguing that Lot 9’s modification (referred to as a "driveway turnaround") was necessary for safety due to the steep lot configuration. The HOA asserted that the board has discretion to grant variances. The HOA also argued that selective enforcement against Lot 9 was inconsistent, as six of the seven built-out lots had similar unapproved turnarounds or improvements in setbacks. The HOA later approved the Lot 9 turnaround retroactively during the hearing proceedings.
  • Document Disclosure: HOA President Robert Lewin testified he did not provide the specific documents (Lot 9 submissions) because they did not exist. However, he admitted he failed to provide the meeting minutes discussing the investigative report.

Final Decision and Outcome

The ALJ found that the Petitioners met the burden of proof by a preponderance of the evidence.

The ALJ issued the following key conclusions:

  • Setback Violation: Lot 9 failed to submit the required improvement request, violating the Declaration. However, the ALJ emphasized that the relevant section of the Declaration (Section H) states the ARC "shall have the right to clear such lot," meaning the ultimate action to remedy the lot remains within the HOA’s discretion, not an obligation.
  • Document Disclosure Violation (A.R.S. § 33-1805): The Respondent violated the statute by failing to produce a copy of the meeting minutes discussing the investigative report. Although no Lot 9 application documents existed, the minutes did.

Order: Petitioner's petition was granted. Pursuant to A.R.S. § 32-2199.02(A), the Respondent HOA was ordered to 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” ] } ] }

{ “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
  • Susan Nicolson (Commissioner)
    ADRE
  • A. Hansen (ADRE staff)
    ADRE
  • V. Nunez (ADRE staff)
    ADRE
  • D. Jones (ADRE staff)
    ADRE
  • L. Abril (ADRE staff)
    ADRE

Ryan McMahon v. Alhambra Terrace Condominium Association

Posted on by

Case Summary

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

Parties & Counsel

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

Alleged Violations

ARIZ. REV. STAT. § 33-1221

Outcome Summary

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

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

Key Issues & Findings

Alleged violation of statute regarding denial of interior modification request.

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

Orders: Petitioner's petition was denied.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

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

Analytics Highlights

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

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

Video Overview

Audio Overview

Decision Documents

23F-H060-REL Decision – 1081134.pdf

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

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

Key Facts

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

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

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

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

Main Issues and Legal Points

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

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

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

Outcome and Final Decision

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

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

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

Questions

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1243.

Legal Basis

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

Topic Tags

  • burden of proof
  • legal standards
  • hearing procedure

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Common Law / Legal Standard

Topic Tags

  • legal standards
  • evidence
  • definitions

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

ARIZ. REV. STAT. § 33-1221(3)

Topic Tags

  • homeowner rights
  • renovations
  • condominiums

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

ARIZ. REV. STAT. §§ 32-2199 et seq.

Topic Tags

  • jurisdiction
  • CC&Rs
  • contract interpretation

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

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

Topic Tags

  • renovations
  • architectural committee
  • expert evidence

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

ARIZ. REV. STAT. § 33-1221(2)

Topic Tags

  • exterior changes
  • architectural control
  • common elements

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Evidence sufficiency

Topic Tags

  • renovations
  • compliance
  • engineering reports

Case

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

Questions

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1243.

Legal Basis

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

Topic Tags

  • burden of proof
  • legal standards
  • hearing procedure

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Common Law / Legal Standard

Topic Tags

  • legal standards
  • evidence
  • definitions

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

ARIZ. REV. STAT. § 33-1221(3)

Topic Tags

  • homeowner rights
  • renovations
  • condominiums

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

ARIZ. REV. STAT. §§ 32-2199 et seq.

Topic Tags

  • jurisdiction
  • CC&Rs
  • contract interpretation

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

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

Topic Tags

  • renovations
  • architectural committee
  • expert evidence

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

ARIZ. REV. STAT. § 33-1221(2)

Topic Tags

  • exterior changes
  • architectural control
  • common elements

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Evidence sufficiency

Topic Tags

  • renovations
  • compliance
  • engineering reports

Case

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

Case Participants

Petitioner Side

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

Respondent Side

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

Neutral Parties

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

Deborah L. Masear v. Paradise Park Condominiums Phase II Homeowners

Posted on by

Case Summary

Case ID 23F-H053-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-07-10
Administrative Law Judge Brian Del Vecchio
Outcome 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.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Deborah L. Masear Counsel —
Respondent 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.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. § 32-2199.02(A)
  • ARIZ. REV. STAT. §§ 32-2102
  • ARIZ. REV. STAT. §§ 32-2199 et seq.

Analytics Highlights

Topics: HOA, Condominium, Annual Meeting, Bylaw Violation, Filing Fee Refund
Additional Citations:

  • ARIZ. REV. STAT. § 32-2199.02(A)
  • 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. § 32-2199.04
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. ADMIN. CODE R2-19-119
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)

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Video Overview

Audio Overview

Decision Documents

23F-H053-REL Decision – 1072068.pdf

Uploaded 2026-04-24T12:09:36 (115.3 KB)

23F-H053-REL Decision – 1072068.pdf

Uploaded 2026-01-23T17:57:32 (115.3 KB)

This summary addresses the legal case hearing concerning Deborah L. Masear v. Paradise Park Condominiums Phase II Homeowners Association (HOA), docket number 23F-H053-REL, which was heard by Administrative Law Judge (ALJ) Brian Del Vecchio on June 19, 2023. The case was referred by the Arizona Department of Real Estate.

Key Facts and Main Issue

The main issue was whether the HOA violated Article II Section 3 of its governing bylaws by failing to hold its 2023 annual meeting as required. The HOA’s bylaws, as amended in 1996, explicitly mandate that the Annual Meeting of Members "shall be held" on the second Monday in March each year. For 2023, the required date was March 13. The Petitioner, Deborah Masear, filed her complaint around April 10, 2023, after the mandated March date had passed without a meeting being scheduled.

Key Arguments and Proceedings

The Petitioner argued that the HOA had been out of compliance regarding the annual meeting schedule for both 2022 and 2023, and that the 2023 meeting was only scheduled *after* she filed her complaint.

The Respondent (HOA) admitted that the meeting was not held on the required March date. However, the HOA argued that the petition should be dismissed because they eventually noticed and held a meeting on May 8, 2023. The HOA further argued that while an election was attempted, no business or election could take place because the members failed to meet the required quorum of 25% (35 members needed), as only 29 members participated. The HOA asserted that the failure to conduct business was due to member non-participation, not a failure of the association itself.

Most Important Legal Points

The ALJ’s determination centered on the interpretation of the HOA’s bylaws. The ALJ emphasized that the phrase "shall be held" within the bylaws is not permissive. Therefore, the HOA was obligated to hold the meeting on the designated March date. The ALJ noted that the May 8, 2023, meeting was 56 days late.

Outcome and Final Decision

The ALJ concluded that the Petitioner sustained her burden of proof. The ALJ found that the Respondent’s conduct violated Article II Section 3 of its bylaws.

The ALJ affirmed the Petitioner’s petition. As relief, the HOA was ordered to reimburse the Petitioner’s filing fee of $500.00. The Petitioner's request to levy a civil penalty against the Respondent was denied. The ALJ's recommendation was set to become the final administrative order unless modified or rejected by the Department of Real Estate within 30 days.

{ “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”: { “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
  • Susan Nicolson (Commissioner)
    ADRE
  • AHansen (ADRE staff)
    ADRE
    Recipient of decision
  • vnunez (ADRE staff)
    ADRE
    Recipient of decision
  • djones (ADRE staff)
    ADRE
    Recipient of decision
  • labril (ADRE staff)
    ADRE
    Recipient of decision

Quail Creek Villas Association, Inc. v. Randall & Gisela White

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Case Summary

Case ID 23F-H042-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-05-09
Administrative Law Judge Jenna Clark
Outcome 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.
Filing Fees Refunded $500.00
Civil Penalties $100.00

Parties & Counsel

Petitioner Quail Creek Villas Association, Inc. Counsel Michael Shupe, Esq.
Respondent Randall & Gisela White Counsel —

Alleged Violations

CC&Rs Section 3(j)

Outcome Summary

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.

Key Issues & Findings

Unauthorized exterior modification (tile installation)

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.

Filing fee: $500.00, Fee refunded: Yes, Civil penalty: $100.00

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. § 33-1805
  • Federoff v. Pioneer Title & Trust Co., 166 Ariz. 393 (1990)
  • Heritage Heights Home Owners Ass’n v. Esser, 115 Ariz. 330 (App. 1977)
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • Flying Diamond Air Park LLC v. Minenberg, 215 Ariz. 44 (App. 2007)

Analytics Highlights

Topics: CC&R violation, Architectural Review Committee (ALC), exterior modification, tile installation, constructive notice, affirmative defense, HOA maintenance
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. § 33-1805
  • ARIZ. REV. STAT. § 41-1092.09
  • ARIZ. REV. STAT. § 32-2199.04
  • ARIZ. REV. STAT. § 32-2199.01
  • ARIZ. REV. STAT. § 33-1803
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • ARIZ. ADMIN. CODE R2-19-119
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
  • Arpaio v. Steinle, 201 Ariz. 353, 355 ¶ 5, 35 P.3d 114, 116 (App. 2001)
  • Gutierrez v. Industrial Commission of Arizona
  • State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968)
  • U.S. Parking v. City of Phoenix, 160 Ariz. 210, 772 P.2d 33 (App. 1989)
  • Deer Valley, v. Houser, 214 Ariz. 293, 296, 152 P.3d 490, 493 (2007)
  • Federoff v. Pioneer Title & Trust Co., 166 Ariz. 393 (1990)
  • Heritage Heights Home Owners Ass’n v. Esser, 115 Ariz. 330 (App. 1977)
  • Flying Diamond Air Park LLC v. Minenberg, 215 Ariz. 44 (App. 2007)

Video Overview

Audio Overview

Decision Documents

23F-H042-REL Decision – 1048063.pdf

Uploaded 2026-04-24T12:07:08 (55.7 KB)

23F-H042-REL Decision – 1055060.pdf

Uploaded 2026-04-24T12:07:25 (219.4 KB)

23F-H042-REL Decision – 1048063.pdf

Uploaded 2026-01-23T17:56:08 (55.7 KB)

23F-H042-REL Decision – 1055060.pdf

Uploaded 2026-01-23T17:56:11 (219.4 KB)

This summary addresses the legal case hearing concerning the Quail Creek Villas Association, Inc. (Petitioner) versus Randall and Gisela White (Respondents) regarding compliance with community documents, held remotely before Administrative Law Judge (ALJ) Jenna Clark on April 27, 2023, under Docket No. 23F-H042-REL.

Key Facts and Main Issues

The central issue was whether the Respondents violated Section 3(j) of the Covenants, Conditions, and Restrictions (CC&Rs) by installing permanent tile on their front porch entryway without prior written approval from the Association's Board of Directors. The Petitioner sought an order confirming the violation, requiring compliance, and imposing a civil penalty.

The key facts were largely undisputed:

  1. Respondents installed large, permanent tile squares in their entryway around May/June 2022.
  2. The Association’s management (Cadden Community Management) advised Mr. White in May 2022 that an Architectural Landscape Committee (ALC) form was required for any exterior modifications.
  3. The Association has a duty to maintain the structural integrity of the concrete, which the Board contended the permanent tile placement compromised, increasing maintenance costs and creating a potential trip hazard.
  4. The Association provided multiple violation notices and extended the compliance deadline from August 2022 to January 31, 2023.

Key Arguments

Petitioner's Arguments (HOA):

Petitioner argued that the Respondents acted in knowing disregard of their obligation to seek approval for exterior modifications, thereby violating the CC&Rs. They asserted that the recorded CC&Rs provide constructive notice of all provisions to all purchasers as a matter of Arizona law, regardless of any perceived defect in the documents provided at closing.

Respondents' Defense (Owners):

Mr. White acknowledged installing the tile but maintained an affirmative defense that the CC&Rs set provided during his closing was "flawed," missing pages 4 and 6, which included the foundational Section 3(j). He claimed that he had no duty to comply with documents he had not received. Mr. White also argued that the tile was not visible (covered by a rug) and that its removal, based on his engineering knowledge, would cause severe damage to the underlying post-tension concrete slab, making enforcement punitive.

Final Decision and Legal Outcome

The ALJ found that the Petitioner established a community document violation by a preponderance of the evidence.

Focus on Legal Points:

The ALJ concluded that the Respondents’ defense regarding the missing CC&Rs pages was insufficient because the Pima County recorded CC&Rs provided constructive notice of all provisions, and the CC&Rs constitute a contract binding upon the owners. Furthermore, Mr. White’s own communications referenced Section 3(j) prior to the permanent installation, confirming actual knowledge of the approval requirement. The ALJ found that allowing the tile to remain would violate the CC&Rs requirements for architectural approval and compatibility/uniformity within the Villas Property.

Outcome and Order:

The ALJ Decision, dated May 9, 2023, granted the petition. The final order mandates that Respondents:

  1. Abide by CC&Rs Section 3(j) henceforth.
  2. Reimburse the Petitioner $500.00 for its filing fee.
  3. Pay a $100.00 civil penalty to the Arizona Department of Real Estate.

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

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

Clifford S Burnes V. Saguaro Crest Homeowners’ Association

Posted on by

Case Summary

Case ID 23F-H031-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-04-13
Administrative Law Judge Adam D. Stone
Outcome The Administrative Law Judge denied the petition, finding that the Petitioner failed to meet the burden of proof that the Saguaro Crest Homeowners Association violated Article 2.1 of the Bylaws by not holding elections. The Bylaw states the annual meeting is for the purpose of 'electing or announcing the results of the election of Directors' and transacting 'other business' (which included dissolution), and the HOA was not required to hold elections if results could have been announced or if dissolution proceedings were underway.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Clifford S Burnes Counsel —
Respondent Saguaro Crest Homeowners' Association Counsel John T. Crotty

Alleged Violations

SCHA Bylaws Article 2.1

Outcome Summary

The Administrative Law Judge denied the petition, finding that the Petitioner failed to meet the burden of proof that the Saguaro Crest Homeowners Association violated Article 2.1 of the Bylaws by not holding elections. The Bylaw states the annual meeting is for the purpose of 'electing or announcing the results of the election of Directors' and transacting 'other business' (which included dissolution), and the HOA was not required to hold elections if results could have been announced or if dissolution proceedings were underway.

Why this result: The Bylaws did not strictly require elections be held, and Petitioner failed to object to the board remaining in place to oversee the dissolution.

Key Issues & Findings

Annual meeting

Petitioner alleged the HOA violated Article 2.1 of the Bylaws by failing to hold Board of Directors elections at the 2021 annual meeting. Respondent argued the language ('for the purpose of electing or announcing the results') did not require elections and that the dissolution vote superseded the immediate need for elections, especially since no one objected at the meeting.

Orders: Petitioner’s petition was denied.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. REV. STAT. § 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)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)

Analytics Highlights

Topics: HOA, Bylaws, Election Dispute, Dissolution, Annual Meeting, Burden of Proof, Waiver
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)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)

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Video Overview

Decision Documents

23F-H031-REL Decision – 1035344.pdf

Uploaded 2026-04-24T12:01:26 (51.8 KB)

23F-H031-REL Decision – 1049021.pdf

Uploaded 2026-04-24T12:01:32 (114.7 KB)

23F-H031-REL Decision – 1035344.pdf

Uploaded 2026-01-23T17:53:49 (51.8 KB)

23F-H031-REL Decision – 1049021.pdf

Uploaded 2026-01-23T17:53:51 (114.7 KB)

This summary concerns the hearing held before Administrative Law Judge (ALJ) Adam D. Stone of the Office of Administrative Hearings (OAH) on March 29, 2023, in the matter of *Clifford S Burnes v. Saguaro Crest Homeowners' Association* (SCHA), Docket No. 23F-H031-REL.

Key Facts and Main Issues

The central issue was whether the Saguaro Crest Homeowners' Association (Respondent) violated its Bylaws, specifically Article 2.1, by failing to hold Board of Directors elections at the annual meeting on December 11, 2021.

Article 2.1 mandates that an annual meeting "shall be held at least every twelve (12) months… for the purpose of electing or announcing the results of the election of Directors and transacting such other business as may properly come before the meeting".

Key facts established during the hearing include:

  1. The annual meeting was held on December 11, 2021.
  2. At that meeting, the voting members properly approved a vote to dissolve the SCHA.
  3. The Board President and Vice President, whose terms were ending, volunteered to remain in their positions to oversee the dissolution process.
  4. No elections were held for the subsequent 2022 calendar year.
  5. Petitioner Clifford S. Burnes was present at the meeting but did not voice an objection to the board members remaining or to the lack of elections at that time.

Key Arguments

Petitioner's Argument: Petitioner Burnes argued that the use of the word "shall" and the phrase "for the purpose of electing" in Article 2.1 constituted a requirement for elections to be held annually, and the SCHA violated this bylaw. Mr. Burnes requested that the ALJ find in his favor, require the SCHA to comply, reimburse his filing fee, and impose a civil fine on the HOA.

Respondent's Argument: The SCHA, represented by John T. Crotty, denied the claim. The Respondent argued that Article 2.1 provided options: either holding elections *or* announcing the results of elections, and also permitted transacting "such other business," which included the majority-approved dissolution. The SCHA argued that had the dissolution vote failed, an election would have been held. Crucially, the SCHA argued that Mr. Burnes waived his claim of violation by failing to object at the meeting, despite his familiarity with the governing documents.

Legal Outcome and Final Decision

The ALJ determined that the Petitioner bore the burden of proving the violation of Article 2.1 by a preponderance of the evidence.

The ALJ concluded that the Petitioner failed to meet his burden of proof. The legal analysis found that Article 2.1, as written, did not strictly require elections to be held at the meeting itself, as it allowed for results to be announced. Furthermore, the ALJ noted that the clear approval of the dissolution vote meant there would be no need for a new board once the process was complete. The ALJ deemed the Petitioner’s failure to raise an objection at the meeting to be "most harmful" to his claim.

The ALJ issued an Order denying the Petitioner’s petition.

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23F-H031-REL

3 sources

These sources document a legal dispute between Clifford S. Burnes and the Saguaro Crest Homeowners’ Association regarding an alleged violation of community bylaws. The conflict centers on a December 2021 annual meeting where the association voted to dissolve the organization but did not hold new elections for its leadership. Burnes argued that Article 2.1 of the bylaws mandated an election, while the association maintained that the dissolution vote rendered new elections unnecessary. An administrative hearing transcript captures the testimony of both parties, highlighting disagreements over meeting procedures and the legal interpretation of governing documents. Ultimately, the Administrative Law Judge ruled in favor of the association, concluding that no mandatory election requirement was violated. The final decision emphasizes that the petitioner failed to object during the meeting and did not meet the burden of proof for his claims.

What are the legal arguments for and against dissolving the HOA?
How did the judge interpret the ‘purpose’ of the annual meeting?
Explain the role of the Arizona Office of Administrative Hearings.

Thursday, February 12

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23F-H031-REL

3 sources

These sources document a legal dispute between Clifford S. Burnes and the Saguaro Crest Homeowners’ Association regarding an alleged violation of community bylaws. The conflict centers on a December 2021 annual meeting where the association voted to dissolve the organization but did not hold new elections for its leadership. Burnes argued that Article 2.1 of the bylaws mandated an election, while the association maintained that the dissolution vote rendered new elections unnecessary. An administrative hearing transcript captures the testimony of both parties, highlighting disagreements over meeting procedures and the legal interpretation of governing documents. Ultimately, the Administrative Law Judge ruled in favor of the association, concluding that no mandatory election requirement was violated. The final decision emphasizes that the petitioner failed to object during the meeting and did not meet the burden of proof for his claims.

What are the legal arguments for and against dissolving the HOA?
How did the judge interpret the ‘purpose’ of the annual meeting?
Explain the role of the Arizona Office of Administrative Hearings.

Thursday, February 12

Save to note

Today • 2:17 PM

3 sources

Video Overview

Mind Map

Reports

Flashcards

Quiz

Infographic

Slide Deck

Data Table

NotebookLM can be inaccurate; please double check its responses.

Case Participants

Petitioner Side

  • Clifford S. Burnes (petitioner)
    Saguaro Crest Homeowners' Association Member
    Also referred to as Clifford (Norm) Burnes.

Respondent Side

  • John T. Crotty (HOA attorney)
    Saguaro Crest Homeowners' Association
  • Esmerina Martinez (board member)
    Saguaro Crest Homeowners' Association
    President; referred to as Serena Martinez or Esmerelda Martinez in sources.
  • Dave Madill (board member)
    Saguaro Crest Homeowners' Association
    Vice President; referred to as Dave Matt or Dave Mel in testimony.
  • Joseph Martinez (board member)
    Saguaro Crest Homeowners' Association

Neutral Parties

  • Adam D. Stone (ALJ)
    OAH
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official transmittal.
  • vnunez (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official transmittal.
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official transmittal.
  • labril (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official transmittal.

Michael H. Jahr v. Leisure World Community Association

Posted on by

Case Summary

Case ID 23F-H032-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-03-14
Administrative Law Judge Jenna Clark
Outcome The Administrative Law Judge denied Petitioner Michael H. Jahr's petition, concluding that he failed to prove by a preponderance of the evidence that the Association violated ARS § 33-1816, because a clothesline is not a 'solar energy device' under ARS § 44-1761, and ARS § 33-439(a) was inapplicable.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Michael H. Jahr Counsel —
Respondent Leisure World Community Association Counsel —

Alleged Violations

ARIZ. REV. STAT. § 33-1816(a-b)

Outcome Summary

The Administrative Law Judge denied Petitioner Michael H. Jahr's petition, concluding that he failed to prove by a preponderance of the evidence that the Association violated ARS § 33-1816, because a clothesline is not a 'solar energy device' under ARS § 44-1761, and ARS § 33-439(a) was inapplicable.

Why this result: Petitioner failed to sustain his burden of proof that the Association violated ARS § 33-1816. The Tribunal determined that a clothesline does not meet the statutory definition of a solar energy device.

Key Issues & Findings

Alleged violation of ARS § 33-1816 regarding denial of utilizing solar means to reduce energy consumption.

Petitioner alleged the Association violated ARS § 33-1816 by refusing him the ability to utilize solar means (a clothesline) to reduce energy consumption, arguing the clothesline met the definition of a 'solar energy device' under ARS § 44-1761, which the HOA cannot prohibit.

Orders: Petitioner's petition was denied. Respondent was ordered not to owe Petitioner any reimbursement for fees incurred.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • ARIZ. REV. STAT. § 33-1816(a-b)
  • ARIZ. REV. STAT. § 44-1761
  • ARIZ. REV. STAT. § 33-439(a)
  • Association Rules & Regulations 2-304(D)

Analytics Highlights

Topics: HOA Dispute, Solar Energy Device, Clothesline, Planned Community, Statutory Interpretation, Burden of Proof
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. § 32-2199.04
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. REV. STAT. § 41-1092.09
  • ARIZ. ADMIN. CODE R2-19-119
  • ARIZ. REV. STAT. § 33-439(a)
  • ARIZ. REV. STAT. § 33-1808(a)
  • ARIZ. REV. STAT. § 33-1816(a-b)
  • ARIZ. REV. STAT. § 44-1761
  • ARIZ. ADMIN. CODE R2-19-111(4)
  • Association Rules & Regulations 2-304(D)

Video Overview

Audio Overview

Decision Documents

23F-H032-REL Decision – 1041743.pdf

Uploaded 2026-05-01T22:11:14 (161.1 KB)

23F-H032-REL Decision – 1057366.pdf

Uploaded 2026-05-01T22:11:22 (55.7 KB)

23F-H032-REL Decision – 1041743.pdf

Uploaded 2026-01-23T17:53:59 (161.1 KB)

23F-H032-REL Decision – 1057366.pdf

Uploaded 2026-01-23T17:54:04 (55.7 KB)

This is a concise summary of the hearing regarding Michael H. Jahr, Petitioner, versus Leisure World Community Association (LWCA), Respondent, conducted before Administrative Law Judge Jenna Clark on February 27, 2023. The matter concerned OA docket number 23 FH032L.

Key Facts and Issues

The central issue was an alleged violation of Arizona Revised Statute (ARS) § 33-1816, claiming that the Respondent denied the Petitioner the right to utilize solar means to reduce his energy consumption. This dispute revolved specifically around the Association’s denial of Petitioner’s request to use an installed in-ground sleeve for a clothesline.

The Petitioner, a homeowner in the Leisure World planned community, applied to install a sleeve in August 2022, initially listing uses including a clothesline. The request was denied for the clothesline use, but permission was later granted for a “flag pole installation sleeve”. Petitioner subsequently used the sleeve for a clothesline, resulting in an Architectural Control Courtesy Violation Notice dated October 31, 2022, which cited a violation of Association Rules & Regulations 2-304(D) prohibiting clotheslines visible from outside the residence.

Legal Arguments and Proceedings

  1. Jurisdiction and Applicable Statute: Initially, the ALJ noted that the Petitioner incorrectly filed under condominium statutes (ARS § 33-439). The hearing proceeded after confirming the accurate statutory basis for the complaint was the planned community statute, specifically ARS § 33-1816(a-b), which prohibits associations from banning the installation or use of a "solar energy device" as defined in ARS § 44-1761.
  2. Petitioner’s Argument: Petitioner argued that the clothesline qualified as a solar energy device because it uses the sun’s heat (solar means) to evaporate moisture (second law of thermodynamics), thereby reducing energy consumption and fitting the definition of a "system or series of mechanisms". He asserted that the legislative intent behind the statute was to allow homeowners to use solar energy to save financial resources and help with climate issues.
  3. Respondent’s Argument: The Respondent (LWCA), represented by Assistant Community Manager Daniel Clark Collier, argued that their legal counsel determined a clothesline does not meet the definition of a solar energy device found in ARS § 44-1761. LWCA noted that the rules prohibiting clotheslines were in place prior to Petitioner moving in. The Respondent argued that extending the definition to a clothesline would absurdly extend it to nearly any object heated by the sun.
  4. Burden of Proof: The Administrative Law Judge noted that the Petitioner bore the burden of proving, by a preponderance of the evidence, that the Association violated the relevant statute.
  5. Relief Requested: Petitioner requested relief, including reimbursement of his filing fee and injunctive action. The ALJ clarified that monetary relief (other than potential filing fee reimbursement) and injunctive relief (such as a temporary restraining order) were not permissible in this administrative tribunal; the tribunal's authority was limited primarily to ordering a party to abide by the specified statute or imposing a civil penalty.

Outcome and Final Decision

The Administrative Law Judge issued a decision finding that the clothesline is not a solar energy device. The Tribunal found that the Association acted within its lawful authority to deny permission to erect the clothesline.

The final order was that the Petitioner’s petition be denied. Consequently, the Respondent was not ordered to reimburse the Petitioner for any incurred filing fees. The ALJ concluded that the Petitioner failed to sustain his burden of proof that the Association violated ARS § 33-1816. The decision was binding unless a rehearing was granted by the Arizona Department of Real Estate Commissioner. (Note: A subsequent order addressed a poten

Questions

Question

Can my HOA prohibit me from using a clothesline in my backyard?

Short Answer

Yes, if the community rules prohibit them.

Detailed Answer

The ALJ determined that an HOA can prohibit clotheslines because they do not qualify as protected solar energy devices under Arizona law. In this case, the association's rules explicitly prohibited clotheslines visible from outside the residence.

Alj Quote

Based on the relevant and credible evidence of record… the Tribunal finds that a clothesline is not a solar energy device. Moreover, Petitioner knew or should have known that clotheslines were prohibited by the Association under Rules & Regulations 2-304(D).

Legal Basis

Rules & Regulations 2-304(D); ARS 33-1816

Topic Tags

  • architectural_control
  • prohibited_items
  • solar_energy

Question

Is a clothesline considered a 'solar energy device' legally protected by Arizona statute?

Short Answer

No, a clothesline does not meet the statutory definition of a solar energy device.

Detailed Answer

The decision clarified that a clothesline does not fit the legal definition of a 'solar energy device' (specifically a 'system or series of mechanisms') under A.R.S. § 44-1761, and therefore does not enjoy the statutory protection that voids HOA restrictions on solar devices.

Alj Quote

Based on the relevant and credible evidence of record, including the aforementioned germane statutory definitions, and lacking any binding citations offered from a court of competent jurisdiction, the Tribunal finds that a clothesline is not a solar energy device.

Legal Basis

ARS 44-1761(8); ARS 33-439(a)

Topic Tags

  • solar_energy
  • definitions
  • statutory_interpretation

Question

What is the burden of proof for a homeowner challenging an HOA decision?

Short Answer

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

Detailed Answer

When a homeowner petitions for a hearing, they bear the burden of proving that the HOA violated community documents or statutes. The standard is 'preponderance of the evidence,' meaning it is more probable than not that the violation occurred.

Alj Quote

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

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • burden_of_proof
  • legal_standards
  • hearing_procedure

Question

Can I be reimbursed for my filing fees if I lose the hearing?

Short Answer

No, reimbursement is generally not awarded if the petition is denied.

Detailed Answer

The ALJ ordered that because the petition was denied, the HOA did not owe the homeowner any reimbursement for fees incurred during the filing process.

Alj Quote

IT IS FURTHER ORDERED that Respondent does not owe Petitioner any reimbursement(s) for fees incurred in association with the filing of this petition.

Legal Basis

Order

Topic Tags

  • fees
  • reimbursement
  • penalties

Question

Are CC&Rs considered a binding contract?

Short Answer

Yes, CC&Rs form an enforceable contract between the HOA and the homeowner.

Detailed Answer

The decision affirms that when a property is purchased within a planned community, the buyer agrees to be bound by the CC&Rs, which function as a contract.

Alj Quote

Thus, the CC&Rs form an enforceable contract between the Association and each property owner.

Legal Basis

Common Law

Topic Tags

  • cc&rs
  • contract_law
  • governing_documents

Question

Can I use a flag pole sleeve for something other than a flag, like a clothesline?

Short Answer

No, if the permit was granted specifically for a flag pole.

Detailed Answer

In this case, the homeowner obtained a permit for a flag pole sleeve but used it for a clothesline. The HOA was entitled to issue a violation notice because the use differed from the approved purpose and violated other rules.

Alj Quote

Respondent did, however, grant Petitioner’s sleeve request with the explicit instruction that its use was for the purpose of flag display… As such, the Association’s October 31, 2022, VIOLATION NOTICE was not issued unlawfully or in error.

Legal Basis

ARS 33-1808(a)

Topic Tags

  • architectural_requests
  • permits
  • flag_poles

Question

How do courts interpret words in statutes that aren't explicitly defined?

Short Answer

They use the ordinary meaning of the words, often consulting dictionaries.

Detailed Answer

The ALJ looked to the 'natural, obvious, and ordinary meaning' of words. Since the statute did not define 'clothesline,' the judge consulted Merriam Webster to define terms like 'system' and 'mechanism' to see if a clothesline fit the description.

Alj Quote

Words should be given 'their natural, obvious, and ordinary meaning.'… BLACK’S LAW DICTIONARY does not define 'clothesline' or 'solar energy device.' Per Merriam Webster, however, 'system' means a regularly interacting or interdependent group of items forming a unified whole

Legal Basis

Statutory Construction Principles

Topic Tags

  • legal_standards
  • definitions
  • interpretation

Question

What is the deadline for filing a request for a rehearing?

Short Answer

30 days from the service of the order.

Detailed Answer

If a party wishes to request a rehearing, they must file it with the Commissioner of the Arizona Department of Real Estate within 30 days of the decision.

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 Arizona Department of Real Estate within 30 days of the service of this ORDER upon the parties.

Legal Basis

ARS 41-1092.09

Topic Tags

  • appeals
  • deadlines
  • procedural_requirements

Case

Docket No
23F-H032-REL
Case Title
Michael H. Jahr vs. Leisure World Community Association
Decision Date
2023-03-14
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Questions

Question

Can my HOA prohibit me from using a clothesline in my backyard?

Short Answer

Yes, if the community rules prohibit them.

Detailed Answer

The ALJ determined that an HOA can prohibit clotheslines because they do not qualify as protected solar energy devices under Arizona law. In this case, the association's rules explicitly prohibited clotheslines visible from outside the residence.

Alj Quote

Based on the relevant and credible evidence of record… the Tribunal finds that a clothesline is not a solar energy device. Moreover, Petitioner knew or should have known that clotheslines were prohibited by the Association under Rules & Regulations 2-304(D).

Legal Basis

Rules & Regulations 2-304(D); ARS 33-1816

Topic Tags

  • architectural_control
  • prohibited_items
  • solar_energy

Question

Is a clothesline considered a 'solar energy device' legally protected by Arizona statute?

Short Answer

No, a clothesline does not meet the statutory definition of a solar energy device.

Detailed Answer

The decision clarified that a clothesline does not fit the legal definition of a 'solar energy device' (specifically a 'system or series of mechanisms') under A.R.S. § 44-1761, and therefore does not enjoy the statutory protection that voids HOA restrictions on solar devices.

Alj Quote

Based on the relevant and credible evidence of record, including the aforementioned germane statutory definitions, and lacking any binding citations offered from a court of competent jurisdiction, the Tribunal finds that a clothesline is not a solar energy device.

Legal Basis

ARS 44-1761(8); ARS 33-439(a)

Topic Tags

  • solar_energy
  • definitions
  • statutory_interpretation

Question

What is the burden of proof for a homeowner challenging an HOA decision?

Short Answer

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

Detailed Answer

When a homeowner petitions for a hearing, they bear the burden of proving that the HOA violated community documents or statutes. The standard is 'preponderance of the evidence,' meaning it is more probable than not that the violation occurred.

Alj Quote

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

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • burden_of_proof
  • legal_standards
  • hearing_procedure

Question

Can I be reimbursed for my filing fees if I lose the hearing?

Short Answer

No, reimbursement is generally not awarded if the petition is denied.

Detailed Answer

The ALJ ordered that because the petition was denied, the HOA did not owe the homeowner any reimbursement for fees incurred during the filing process.

Alj Quote

IT IS FURTHER ORDERED that Respondent does not owe Petitioner any reimbursement(s) for fees incurred in association with the filing of this petition.

Legal Basis

Order

Topic Tags

  • fees
  • reimbursement
  • penalties

Question

Are CC&Rs considered a binding contract?

Short Answer

Yes, CC&Rs form an enforceable contract between the HOA and the homeowner.

Detailed Answer

The decision affirms that when a property is purchased within a planned community, the buyer agrees to be bound by the CC&Rs, which function as a contract.

Alj Quote

Thus, the CC&Rs form an enforceable contract between the Association and each property owner.

Legal Basis

Common Law

Topic Tags

  • cc&rs
  • contract_law
  • governing_documents

Question

Can I use a flag pole sleeve for something other than a flag, like a clothesline?

Short Answer

No, if the permit was granted specifically for a flag pole.

Detailed Answer

In this case, the homeowner obtained a permit for a flag pole sleeve but used it for a clothesline. The HOA was entitled to issue a violation notice because the use differed from the approved purpose and violated other rules.

Alj Quote

Respondent did, however, grant Petitioner’s sleeve request with the explicit instruction that its use was for the purpose of flag display… As such, the Association’s October 31, 2022, VIOLATION NOTICE was not issued unlawfully or in error.

Legal Basis

ARS 33-1808(a)

Topic Tags

  • architectural_requests
  • permits
  • flag_poles

Question

How do courts interpret words in statutes that aren't explicitly defined?

Short Answer

They use the ordinary meaning of the words, often consulting dictionaries.

Detailed Answer

The ALJ looked to the 'natural, obvious, and ordinary meaning' of words. Since the statute did not define 'clothesline,' the judge consulted Merriam Webster to define terms like 'system' and 'mechanism' to see if a clothesline fit the description.

Alj Quote

Words should be given 'their natural, obvious, and ordinary meaning.'… BLACK’S LAW DICTIONARY does not define 'clothesline' or 'solar energy device.' Per Merriam Webster, however, 'system' means a regularly interacting or interdependent group of items forming a unified whole

Legal Basis

Statutory Construction Principles

Topic Tags

  • legal_standards
  • definitions
  • interpretation

Question

What is the deadline for filing a request for a rehearing?

Short Answer

30 days from the service of the order.

Detailed Answer

If a party wishes to request a rehearing, they must file it with the Commissioner of the Arizona Department of Real Estate within 30 days of the decision.

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 Arizona Department of Real Estate within 30 days of the service of this ORDER upon the parties.

Legal Basis

ARS 41-1092.09

Topic Tags

  • appeals
  • deadlines
  • procedural_requirements

Case

Docket No
23F-H032-REL
Case Title
Michael H. Jahr vs. Leisure World Community Association
Decision Date
2023-03-14
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Michael H. Jahr (petitioner)

Respondent Side

  • Daniel Clark Collier (assistant community manager)
    Leisure World Community Association
    Appeared on behalf of Respondent and testified as a witness
  • Regis Salazar (witness)
    Testified for Respondent

Neutral Parties

  • Jenna Clark (ALJ)
    OAH
  • Susan Nicolson (commissioner)
    ADRE
    Recipient of recommended decision

Other Participants

  • AHansen (ADRE staff)
    ADRE
    Recipient of electronic transmission
  • vnunez (ADRE staff)
    ADRE
    Recipient of electronic transmission
  • djones (ADRE staff)
    ADRE
    Recipient of electronic transmission
  • labril (ADRE staff)
    ADRE
    Recipient of electronic transmission

Robert C. Ochs v. The Camelview Greens Homeowners Association

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Case Summary

Case ID 22F-H2222048-REL
Agency ADRE
Tribunal OAH
Decision Date 2022-10-04
Administrative Law Judge Jenna Clark
Outcome The Administrative Law Judge denied the petition, finding that the Petitioner failed to prove the Association violated ARIZ. REV. STAT. § 33-1805, concluding that the requested materials lists and specifications were not 'financial and other records of the association' that the HOA was legally required to possess and provide within 10 business days.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Robert C. Ochs Counsel —
Respondent The Camelview Greens Homeowners Association Counsel Ashley Moscarello, Esq.

Alleged Violations

ARIZ. REV. STAT. § 33-1805 A

Outcome Summary

The Administrative Law Judge denied the petition, finding that the Petitioner failed to prove the Association violated ARIZ. REV. STAT. § 33-1805, concluding that the requested materials lists and specifications were not 'financial and other records of the association' that the HOA was legally required to possess and provide within 10 business days.

Why this result: Petitioner failed to sustain the burden of proof that the Respondent violated the records request statute.

Key Issues & Findings

Alleged violation of records request statute (failure to timely provide materials lists/specifications related to roof replacement/repairs).

Petitioner requested materials lists and specifications regarding recent (Sept 2021) and past (since 1986) roof work on February 27, 2022. The Association provided a scope of work document from the vendor on May 11, 2022, after the petition was filed. The ALJ determined the requested documents were not established to be 'financial and other records of the association' as contemplated by the statute, and TMT was not in possession of them at the time of the request.

Orders: Petitioner's petition and request for a civil penalty were denied. Respondent was not ordered to reimburse Petitioner's filing fee.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 33-1805 A
  • ARIZ. REV. STAT. § 32-2199.02 A
  • ARIZ. REV. STAT. § 32-2199.05

Analytics Highlights

Topics: HOA records request, Planned Community Act, Roof Repair/Replacement, Condominium, Burden of Proof
Additional Citations:

  • ARIZ. REV. STAT. § 33-1805
  • ARIZ. REV. STAT. § 32-2199.02
  • 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. § 41-1092 et seq.
  • ARIZ. REV. STAT. § 32-2199.04
  • ARIZ. REV. STAT. § 41-1092.09

Video Overview

Audio Overview

Decision Documents

22F-H2222048-REL Decision – 1003691.pdf

Uploaded 2026-01-23T17:48:15 (160.6 KB)

22F-H2222048-REL Decision – 979940.pdf

Uploaded 2026-01-23T17:48:17 (49.4 KB)

22F-H2222048-REL Decision – 979959.pdf

Uploaded 2026-01-23T17:48:18 (7.1 KB)

22F-H2222048-REL Decision – 985762.pdf

Uploaded 2026-01-23T17:48:20 (52.8 KB)

22F-H2222048-REL Decision – 986375.pdf

Uploaded 2026-01-23T17:48:22 (52.8 KB)

This summary focuses on the hearing held on September 19, 2022, before Administrative Law Judge Jenna Clark, regarding Petitioner Robert C. Ochs versus the Camel View Green Homeowners Association (HOA), concerning an alleged violation of Arizona Revised Statute (ARIZ. REV. STAT.) § 33-1805 subsection A.

Key Facts and Underlying Dispute

The dispute arose after Petitioner Ochs' investment property sustained over $30,000 in interior damage following a severe storm in July 2021, necessitating roof replacement by the HOA's vendor around September/October 2021. When the roof leaked again in February 2022, Petitioner sought documentation regarding the repairs.

On February 27, 2022, Petitioner submitted a two-part records request to the HOA's management company (TMT), seeking: (1) materials lists and specifications for the most recent roof replacement, and (2) materials lists and specifications for all past replacements/repairs since 1986. The HOA manager replied on March 3, 2022, indicating she was "working on" the request. Petitioner filed a petition on or about April 24, 2022, after receiving no further documentation or substantive response. The HOA's legal counsel finally provided a "scope of work" document from the roofing vendor (dated September 7, 2021) on May 11, 2022, after the petition was filed.

Main Issues and Legal Arguments

The central issue was whether the HOA violated ARIZ. REV. STAT. § 33-1805A, which requires an association to make "all financial and other records of the association" reasonably available for examination within ten business days of a request.

  1. Petitioner's Argument: Petitioner argued the HOA violated the 10-day requirement. He contended that the materials lists and specifications related to the recent repair were "other records of the association" because the HOA (Camel View Greens) would have received and retained this documentation (like the "scope of work") to verify and pay the vendor's invoice by the end of 2021.
  2. Respondent's Argument: The HOA denied the violation. They argued that the materials lists and specifications requested are not "association records" contemplated by the statute, nor are they records the nonprofit corporation keeps in the ordinary course of business (unlike meeting minutes or financial records). These records belong to the vendor, who is not subject to the 10-day statutory requirement. Furthermore, the witness (Carl Westlund) testified that the management company (TMT, which started managing in 2018) did not possess the specific documents requested at the time of the request.

Legal Points and Findings

The Administrative Law Judge (ALJ) concluded that the Petitioner did not meet the burden of proof.

  • The ALJ found that the request for 35 years of prior records (since 1986) was unreasonable because the current management company (TMT) confirmed it did not obtain those records from its predecessor.
  • Regarding the records for the recent replacement, the request was not unreasonable, but the documents sought were not records kept in the ordinary course of business.
  • The record did not establish *when* the HOA or TMT received the "scope of work" from the vendor (Ideal Roofing), so it could not be proven that the document should have been supplied within the 10-day statutory window (March 11, 2022).
  • The Petitioner failed to establish that the documents were "financial" or constituted "other records of the association" as required by ARIZ. REV. STAT. § 33-1805.

Outcome

The Administrative Law Judge issued a decision on October 4, 2022, concluding that the Association's conduct was not in violation of ARIZ. REV. STAT. § 33-1805. Petitioner's petition and the request for a civil penalty were denied, and the Respondent was not required to reimburse the Petitioner's filing fee.

{ “case”: { “docket_no”: “22F-H2222048-REL”, “case_title”: “Robert C. Ochs vs. The Camelview Greens Homeowners Association”, “decision_date”: “2022-10-04”, “alj_name”: “Jenna Clark”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “If my HOA does not have a specific document I requested, are they required to obtain it from a vendor to fulfill my request?”, “short_answer”: “No. The HOA is not obligated to produce records it does not possess or keep in the ordinary course of business.”, “detailed_answer”: “If an HOA management company is not in possession of a specific document (such as a materials list held by a third-party contractor) at the time of the request, they are not legally obligated to obtain it or provide it within the 10-day statutory window. A failure to provide a document the HOA never possessed is not a statutory violation.”, “alj_quote”: “What the record reflects is that TMT was never in possession of the documents in Petitioner’s request. While TMT could have provided notice of such within 10 business days, they were under no legal obligation to do so. No statutory violation(s) exist.”, “legal_basis”: “A.R.S. § 33-1805”, “topic_tags”: [ “records request”, “vendor documents”, “HOA obligations” ] }, { “question”: “Is the HOA required to mail or email me copies of the records I request?”, “short_answer”: “Not necessarily. The primary statutory requirement is to make records available for examination.”, “detailed_answer”: “The Administrative Law Judge clarified that the statute strictly requires the HOA to reasonably permit a homeowner to examine records. While providing copies is common, the explicit statutory requirement is for examination.”, “alj_quote”: “Notably, ARIZ. REV. STAT. § 33-1805 does not require a Homeowner’s Association to provide copies of records upon request of a homeowner. Rather, the statute requires only that the association reasonably permit a homeowner to examine records.”, “legal_basis”: “A.R.S. § 33-1805”, “topic_tags”: [ “records request”, “procedural requirements”, “copies vs examination” ] }, { “question”: “Can I request historical records dating back several decades?”, “short_answer”: “Requests for very old records may be deemed unreasonable, especially if management companies have changed.”, “detailed_answer”: “A request for records spanning 35 years was found to be unreasonable in this case, particularly because the current management company testified they did not receive such records from the previous management company.”, “alj_quote”: “Petitioner’s secondary request for 35 years’ worth records was unreasonable, as uncontroverted testimony established that TMT did not obtain any records from its predecessor upon the commencement of its position.”, “legal_basis”: “Reasonableness standard”, “topic_tags”: [ “historical records”, “reasonableness”, “management transition” ] }, { “question”: “How many days does the HOA have to fulfill a request to examine records?”, “short_answer”: “The HOA has ten business days.”, “detailed_answer”: “Under Arizona law, an association must allow a member to examine financial and other records within ten business days of the request.”, “alj_quote”: “The association shall have ten business days to fulfill a request for examination.”, “legal_basis”: “A.R.S. § 33-1805(A)”, “topic_tags”: [ “deadlines”, “statutory requirements” ] }, { “question”: “Do detailed materials lists from contractors count as ‘official records’ of the association?”, “short_answer”: “Not automatically. If they are not kept in the ordinary course of business, they may not be considered association records.”, “detailed_answer”: “The ALJ found that specific materials lists and specifications from a vendor, which were not kept by the HOA in the ordinary course of business, did not constitute ‘financial’ or ‘other records of the association’ that the HOA was mandated to provide.”, “alj_quote”: “Petitioner did not establish that the documents in his records request were ‘financial’ or constituted ‘other records of the association’ as required by law.”, “legal_basis”: “A.R.S. § 33-1805”, “topic_tags”: [ “definition of records”, “contractor documents” ] }, { “question”: “Who is responsible for proving that the HOA violated the law?”, “short_answer”: “The homeowner (petitioner) bears the burden of proof.”, “detailed_answer”: “In an administrative hearing regarding an HOA dispute, the homeowner filing the petition must prove by a ‘preponderance of the evidence’ that the HOA violated the statute.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1805.”, “legal_basis”: “A.A.C. R2-19-119”, “topic_tags”: [ “burden of proof”, “legal standards”, “hearing procedures” ] } ] }

{ “case”: { “docket_no”: “22F-H2222048-REL”, “case_title”: “Robert C. Ochs vs. The Camelview Greens Homeowners Association”, “decision_date”: “2022-10-04”, “alj_name”: “Jenna Clark”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “If my HOA does not have a specific document I requested, are they required to obtain it from a vendor to fulfill my request?”, “short_answer”: “No. The HOA is not obligated to produce records it does not possess or keep in the ordinary course of business.”, “detailed_answer”: “If an HOA management company is not in possession of a specific document (such as a materials list held by a third-party contractor) at the time of the request, they are not legally obligated to obtain it or provide it within the 10-day statutory window. A failure to provide a document the HOA never possessed is not a statutory violation.”, “alj_quote”: “What the record reflects is that TMT was never in possession of the documents in Petitioner’s request. While TMT could have provided notice of such within 10 business days, they were under no legal obligation to do so. No statutory violation(s) exist.”, “legal_basis”: “A.R.S. § 33-1805”, “topic_tags”: [ “records request”, “vendor documents”, “HOA obligations” ] }, { “question”: “Is the HOA required to mail or email me copies of the records I request?”, “short_answer”: “Not necessarily. The primary statutory requirement is to make records available for examination.”, “detailed_answer”: “The Administrative Law Judge clarified that the statute strictly requires the HOA to reasonably permit a homeowner to examine records. While providing copies is common, the explicit statutory requirement is for examination.”, “alj_quote”: “Notably, ARIZ. REV. STAT. § 33-1805 does not require a Homeowner’s Association to provide copies of records upon request of a homeowner. Rather, the statute requires only that the association reasonably permit a homeowner to examine records.”, “legal_basis”: “A.R.S. § 33-1805”, “topic_tags”: [ “records request”, “procedural requirements”, “copies vs examination” ] }, { “question”: “Can I request historical records dating back several decades?”, “short_answer”: “Requests for very old records may be deemed unreasonable, especially if management companies have changed.”, “detailed_answer”: “A request for records spanning 35 years was found to be unreasonable in this case, particularly because the current management company testified they did not receive such records from the previous management company.”, “alj_quote”: “Petitioner’s secondary request for 35 years’ worth records was unreasonable, as uncontroverted testimony established that TMT did not obtain any records from its predecessor upon the commencement of its position.”, “legal_basis”: “Reasonableness standard”, “topic_tags”: [ “historical records”, “reasonableness”, “management transition” ] }, { “question”: “How many days does the HOA have to fulfill a request to examine records?”, “short_answer”: “The HOA has ten business days.”, “detailed_answer”: “Under Arizona law, an association must allow a member to examine financial and other records within ten business days of the request.”, “alj_quote”: “The association shall have ten business days to fulfill a request for examination.”, “legal_basis”: “A.R.S. § 33-1805(A)”, “topic_tags”: [ “deadlines”, “statutory requirements” ] }, { “question”: “Do detailed materials lists from contractors count as ‘official records’ of the association?”, “short_answer”: “Not automatically. If they are not kept in the ordinary course of business, they may not be considered association records.”, “detailed_answer”: “The ALJ found that specific materials lists and specifications from a vendor, which were not kept by the HOA in the ordinary course of business, did not constitute ‘financial’ or ‘other records of the association’ that the HOA was mandated to provide.”, “alj_quote”: “Petitioner did not establish that the documents in his records request were ‘financial’ or constituted ‘other records of the association’ as required by law.”, “legal_basis”: “A.R.S. § 33-1805”, “topic_tags”: [ “definition of records”, “contractor documents” ] }, { “question”: “Who is responsible for proving that the HOA violated the law?”, “short_answer”: “The homeowner (petitioner) bears the burden of proof.”, “detailed_answer”: “In an administrative hearing regarding an HOA dispute, the homeowner filing the petition must prove by a ‘preponderance of the evidence’ that the HOA violated the statute.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1805.”, “legal_basis”: “A.A.C. R2-19-119”, “topic_tags”: [ “burden of proof”, “legal standards”, “hearing procedures” ] } ] }

Case Participants

Petitioner Side

  • Robert C. Ochs (petitioner)
    Appeared on his own behalf

Respondent Side

  • Ashley N. Moscarello (HOA attorney)
    Goodman Holmgren
    Appeared on behalf of respondent
  • Carl Westlund (witness)
    The Management Trust
    Division Vice President of Community Management at TMT
  • Shauna Carr (property manager)
    The Management Trust
    Former executive community manager for Camel View Greens
  • Dameon Cons (HOA attorney)
    Goodman Holmgren
    Sent response letter to Petitioner
  • Mark A. Holmgren (HOA attorney)
    Goodman Holmgren
    Counsel for Respondent listed on transmittals

Neutral Parties

  • Jenna Clark (ALJ)
    OAH
  • Louis Dettorre (Commissioner)
    ADRE
  • Miranda Alvarez (Legal Secretary)
    OAH
    Transmitted orders/minute entries
  • AHansen (ADRE Staff)
    ADRE
    Recipient of official documents
  • vnunez (ADRE Staff)
    ADRE
    Recipient of official documents
  • djones (ADRE Staff)
    ADRE
    Recipient of official documents
  • labril (ADRE Staff)
    ADRE
    Recipient of official documents

Other Participants

  • Jeff Centers (vendor/project manager)
    Vendor
    Contractor hired by the community

John J Balaco v. Sun City Oro Valley Community Association, Inc.

Posted on by

Case Summary

Case ID 22F-H2221011-REL
Agency ADRE
Tribunal OAH
Decision Date 2022-03-21
Administrative Law Judge Jenna Clark
Outcome The Petitioner's claim was denied because the ALJ concluded that the alleged violation of the 5th Amended Master Declaration Article 6.7 was not proven by a preponderance of the evidence; the argument was premature as the action (substantial change in use) had not yet come to fruition.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner John J Balaco Counsel —
Respondent Sun City Oro Valley Community Association, Inc. Counsel Nicholas Nogami, Esq. & Sami Farhat, Esq.

Alleged Violations

5th Amended Master Declaration Article 6.7

Outcome Summary

The Petitioner's claim was denied because the ALJ concluded that the alleged violation of the 5th Amended Master Declaration Article 6.7 was not proven by a preponderance of the evidence; the argument was premature as the action (substantial change in use) had not yet come to fruition.

Why this result: Petitioner failed to meet the burden of proof; the argument was not ripe and predicated on actions that have yet to occur.

Key Issues & Findings

Change in Use of Common Area

Petitioner alleged that the Association violated Article 6.7 by modifying renovation plans for the Activity Center's coffee bar to include the sale of alcoholic beverages (cafe wine bar) without the requisite 60% membership vote, arguing this converted common area into a restricted commercial bar.

Orders: Petitioners' petition is denied.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. ADMIN. CODE R2-19-119
  • ARIZ. REV. STAT. § 32-2199.04
  • ARIZ. REV. STAT. § 41-1092.09
  • 5th Amended Master Declaration Article 6.7

Analytics Highlights

Topics: HOA, Master Declaration, Change of Use, Common Area, Liquor License, Renovation, Ripeness, Cafe Wine Bar
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. ADMIN. CODE R2-19-119
  • ARIZ. REV. STAT. § 32-2199.04
  • ARIZ. REV. STAT. § 41-1092.09

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Video Overview

Audio Overview

Decision Documents

22F-H2221011-REL Decision – 935334.pdf

Uploaded 2026-04-24T11:39:39 (49.3 KB)

22F-H2221011-REL Decision – 956246.pdf

Uploaded 2026-04-24T11:39:42 (138.2 KB)

22F-H2221011-REL Decision – 935334.pdf

Uploaded 2026-01-23T17:40:43 (49.3 KB)

22F-H2221011-REL Decision – 956246.pdf

Uploaded 2026-01-23T17:40:48 (138.2 KB)

The legal case involved Petitioner John J Balaco challenging the Sun City Oro Valley Community Association, Inc. (Respondent). The hearing took place over two sessions, on December 29, 2021, and a further hearing on March 1, 2022, presided over by Administrative Law Judge Jenna Clark.

Key Facts and Main Issues

The central legal issue was whether the Association violated Article 6.7 of the 5th Amended Master Declaration for substantially changing the use of a portion of the Common Area without approval of at least 60% of Members voting on the matter.

The specific action challenged was the modification of plans to renovate the 34-year-old Activity Center's coffee bar (approximately 1,400 square feet) to include the sale of alcoholic beverages, creating a café wine bar component.

Hearing Proceedings and Key Arguments

  1. Association's (Respondent's) Position:
  • The Association argued that offering wine sales was a minor component of the overall renovation of the approximately 22,000 square foot Activity Center and did not constitute a substantial change in use.
  • Association witnesses (including General Manager Mark Wade and Controller/Liquor License Agent Randy Trenary) testified that information regarding the renovation, including the wine bar component, was presented to members via multiple forums, presentations, and weekly newsletters.
  • Crucially, the membership voted on the renovation project, including the wine bar, on March 23, 2021. The vote passed with 1,121 votes (65%) in favor (only 859 votes were required to pass), thereby satisfying and exceeding the 60% requirement stipulated in Article 6.7.
  1. Petitioner's Position:
  • Petitioner Balaco argued that adding an Arizona liquor license to any portion of the common area significantly changes the character and nature of its use.
  • He contended that the license imposes restrictions, such as prohibiting the consumption of personal alcohol (BYOB) in the designated area and restricting access for minors unless accompanied by an adult 21 or older, thus restricting use residents had previously enjoyed.
  • Petitioner also argued that the board made a mistake, asserting that the area was covered by an existing license when, in fact, the Department of Liquor License and Control later confirmed no part of the activity center was currently covered. Petitioner requested an order requiring a specific resident vote prior to the board applying for any liquor license extension.

Final Decision and Legal Points

The Administrative Law Judge (ALJ) concluded that the Petitioner did not sustain his burden of proving a violation of Article 6.7 by a preponderance of the evidence.

The ALJ emphasized the following legal points:

  • The Petitioner’s argument was not ripe.
  • As of the hearing date, no construction or structural modification of the coffee bar had taken place, and the Association had not submitted a new application to the DLLC to extend its liquor service area.
  • The ALJ found that the crux of the Petitioner’s grievance was "theoretical and predicated on action(s) that have yet to occur".
  • Therefore, the ALJ could not reasonably conclude that the Association had "substantially changed the use of a portion of a common area".

Outcome: The Petitioner’s petition was denied. The matter was taken under advisement on March 1, 2022, and the decision was issued on March 21, 2022.

Questions

Question

Who is responsible for proving that the HOA violated the community documents?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

In an administrative hearing regarding an HOA dispute, the burden falls on the homeowner filing the petition to prove that a violation occurred. The HOA does not have to disprove the claim; the petitioner must provide sufficient evidence to support their allegations.

Alj Quote

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

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • burden of proof
  • legal standards
  • procedure

Question

How much evidence is required to win a case against an HOA?

Short Answer

A preponderance of the evidence.

Detailed Answer

The standard of proof is 'preponderance of the evidence,' which means the evidence must show that the homeowner's claim is more likely true than not. It is based on the convincing force of the evidence rather than the quantity of witnesses.

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

MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5

Topic Tags

  • evidence
  • legal standards

Question

Can I file a petition against my HOA for a violation that hasn't happened yet but is planned?

Short Answer

Generally, no. The dispute must be 'ripe' and not theoretical.

Detailed Answer

Administrative Law Judges generally cannot rule on grievances that are theoretical or based on actions that have not yet occurred. If a construction project or change has not physically started, a claim that it 'will' cause a violation may be dismissed as not ripe.

Alj Quote

The crux of Petitioner’s is theoretical and predicated on action(s) that have yet to occur… Therefore, it cannot reasonably be concluded that the Association substantially changed the use of a portion of a common area.

Legal Basis

Ripeness Doctrine

Topic Tags

  • ripeness
  • future violations
  • construction

Question

Can the Administrative Law Judge order an injunction to stop the HOA from doing something?

Short Answer

No, injunctive relief is unavailable in this administrative process.

Detailed Answer

The administrative hearing process in Arizona for HOA disputes does not grant the ALJ the authority to issue injunctions (orders to stop an action) or declaratory relief. The ALJ determines if a violation occurred based on past or present facts.

Alj Quote

Based on Petitioner’s arguments in closing, it is apparent that he is seeking injunctive and/or declaratory relief that is unavailable for litigants in the administrative hearing process in the State of Arizona.

Legal Basis

Administrative Hearing Limits

Topic Tags

  • injunctions
  • remedies
  • legal relief

Question

Does a renovation of a common area facility automatically count as a 'substantial change in use'?

Short Answer

Not necessarily, especially if the change hasn't occurred yet or doesn't alter the character of the area.

Detailed Answer

Whether a renovation is a 'substantial change in use' (which often requires a member vote) depends on if it changes the character and nature of the area. However, if the project is not yet built, an ALJ may be unable to determine if the change is substantial.

Alj Quote

Notably, the undersigned cannot make any determinations about whether the Association’s proposed voter-approved construction would alter the character and nature of the common area to such an extent that it would create a “substantial change of use” to the area.

Legal Basis

Master Declaration Article 6.7 (cited in decision)

Topic Tags

  • common areas
  • renovations
  • change of use

Question

Is the decision made by the Administrative Law Judge final and binding?

Short Answer

Yes, unless a rehearing is granted.

Detailed Answer

The ALJ's order is binding on both the homeowner and the HOA unless one party successfully files for a rehearing within 30 days of service of the order.

Alj Quote

Pursuant to ARIZ. REV. STAT. § 32-2199.02(B), this Order is binding on the parties unless a rehearing is granted pursuant to ARIZ. REV. STAT. § 32-2199.04.

Legal Basis

ARIZ. REV. STAT. § 32-2199.02(B)

Topic Tags

  • appeals
  • binding order
  • procedure

Case

Docket No
22F-H2221011-REL
Case Title
John J Balaco vs. Sun City Oro Valley Community Association, Inc.
Decision Date
2022-03-21
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Questions

Question

Who is responsible for proving that the HOA violated the community documents?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

In an administrative hearing regarding an HOA dispute, the burden falls on the homeowner filing the petition to prove that a violation occurred. The HOA does not have to disprove the claim; the petitioner must provide sufficient evidence to support their allegations.

Alj Quote

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

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • burden of proof
  • legal standards
  • procedure

Question

How much evidence is required to win a case against an HOA?

Short Answer

A preponderance of the evidence.

Detailed Answer

The standard of proof is 'preponderance of the evidence,' which means the evidence must show that the homeowner's claim is more likely true than not. It is based on the convincing force of the evidence rather than the quantity of witnesses.

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

MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5

Topic Tags

  • evidence
  • legal standards

Question

Can I file a petition against my HOA for a violation that hasn't happened yet but is planned?

Short Answer

Generally, no. The dispute must be 'ripe' and not theoretical.

Detailed Answer

Administrative Law Judges generally cannot rule on grievances that are theoretical or based on actions that have not yet occurred. If a construction project or change has not physically started, a claim that it 'will' cause a violation may be dismissed as not ripe.

Alj Quote

The crux of Petitioner’s is theoretical and predicated on action(s) that have yet to occur… Therefore, it cannot reasonably be concluded that the Association substantially changed the use of a portion of a common area.

Legal Basis

Ripeness Doctrine

Topic Tags

  • ripeness
  • future violations
  • construction

Question

Can the Administrative Law Judge order an injunction to stop the HOA from doing something?

Short Answer

No, injunctive relief is unavailable in this administrative process.

Detailed Answer

The administrative hearing process in Arizona for HOA disputes does not grant the ALJ the authority to issue injunctions (orders to stop an action) or declaratory relief. The ALJ determines if a violation occurred based on past or present facts.

Alj Quote

Based on Petitioner’s arguments in closing, it is apparent that he is seeking injunctive and/or declaratory relief that is unavailable for litigants in the administrative hearing process in the State of Arizona.

Legal Basis

Administrative Hearing Limits

Topic Tags

  • injunctions
  • remedies
  • legal relief

Question

Does a renovation of a common area facility automatically count as a 'substantial change in use'?

Short Answer

Not necessarily, especially if the change hasn't occurred yet or doesn't alter the character of the area.

Detailed Answer

Whether a renovation is a 'substantial change in use' (which often requires a member vote) depends on if it changes the character and nature of the area. However, if the project is not yet built, an ALJ may be unable to determine if the change is substantial.

Alj Quote

Notably, the undersigned cannot make any determinations about whether the Association’s proposed voter-approved construction would alter the character and nature of the common area to such an extent that it would create a “substantial change of use” to the area.

Legal Basis

Master Declaration Article 6.7 (cited in decision)

Topic Tags

  • common areas
  • renovations
  • change of use

Question

Is the decision made by the Administrative Law Judge final and binding?

Short Answer

Yes, unless a rehearing is granted.

Detailed Answer

The ALJ's order is binding on both the homeowner and the HOA unless one party successfully files for a rehearing within 30 days of service of the order.

Alj Quote

Pursuant to ARIZ. REV. STAT. § 32-2199.02(B), this Order is binding on the parties unless a rehearing is granted pursuant to ARIZ. REV. STAT. § 32-2199.04.

Legal Basis

ARIZ. REV. STAT. § 32-2199.02(B)

Topic Tags

  • appeals
  • binding order
  • procedure

Case

Docket No
22F-H2221011-REL
Case Title
John J Balaco vs. Sun City Oro Valley Community Association, Inc.
Decision Date
2022-03-21
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • John J Balaco (petitioner)
  • Diane Paton (witness)
  • James Gearhart (helper / observer)
    Assisted Petitioner with documents; observed hearing

Respondent Side

  • Nicholas Nogami (attorney)
    Carpenter Hazlewood Delgado & Bolen LLP
    Counsel for Respondent
  • Sami Farhat (attorney)
    Carpenter Hazlewood Delgado & Bolen LLP
    Counsel for Respondent
  • Mark Wade (general manager / witness)
  • Randall Jean Trenary (controller / witness)
    Liquor license agent
  • James Henry Mitchell (witness)
    Also referred to as Jim Mitchell or Randall James Mitchell

Neutral Parties

  • Jenna Clark (ALJ)
    OAH
  • Louis Dettorre (Commissioner)
    Arizona Department of Real Estate
  • DGardner (ADRE staff)
    Arizona Department of Real Estate
    Contact for appeal procedure
  • c. serrano (OAH staff)
    OAH
    Transmitter of Minute Entry
  • Miranda Alvarez (OAH staff)
    OAH
    Transmitter of ALJ Decision

Other Participants

  • Marla Balaco (observer)
  • Janet Ambrosio (observer)
  • Sheila Helmuth (observer)
  • Sherokee Ilse (observer)
  • Edward Zwerling (observer)
  • Robin Coulter (observer)
  • Rocky Gedrose (observer)
  • Thelma LaFleur (observer)
  • Tim Kelley (observer)
  • Vicki McFadden (observer)
  • Allan Mashburn (observer)
  • Cathy Winje (observer)
  • Chris Ludwig (observer)
  • Dan Edward (observer)
  • Dibri Ruiz (observer)
  • Donna Harting (observer)
  • Eric Meyers (observer)
  • Anthony Denaro (observer)
  • Melanie Stenson (observer)
  • Bertha Medina (observer)
  • Carol Johnson (observer)
  • Rita Petterson (observer)
  • David Sullivan (observer)
  • Gary Lurch (observer)
  • Janet Keller (observer)
  • Joanne Keck (observer)
  • Kaaren Brent (observer)
  • Karen Roche (observer)
  • Ken Sandrick (observer)
  • Kristi Halverson (observer)
  • Lindsay Welbers (observer)
  • Marie Scarpulla (observer)
  • Maxine Yunker (observer)
  • Pamela Sarpalius (observer)
  • Phyliss Austin (observer)
  • Robert Watson (observer)
  • Sandra Fischer (observer)
  • Sharon Kennedy (observer)
  • Vicki McFadin (observer)
  • William Whitney (observer)