Tag Archives: ARIZ. REV. STAT. § 33-1804(B)

Samuel T Paparazzo v. Coronado Ranch Community Association

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Case Summary

Case ID 20F-H2020061-REL
Agency ADRE
Tribunal OAH
Decision Date 2020-09-03
Administrative Law Judge Jenna Clark
Outcome loss
Filing Fees Refunded $2,000.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Samuel T Paparazzo Counsel —
Respondent Coronado Ranch Community Association Counsel Mark Stahl, Esq.

Alleged Violations

ARIZ. REV. STAT. §§ 33-1804(A), 33-1804(B), 33-1804(F), and Association bylaws 2.3, 2.7, and 3.1

Outcome Summary

The Administrative Law Judge concluded that the Respondent HOA acted within the scope of its statutory authority during its April 02, 2020, annual meeting and elections, and denied the Petitioner's petition for failure to sustain the burden of proof regarding alleged statutory and bylaw violations.

Why this result: The ALJ found that notice of the meeting modification (to an online platform due to COVID-19) was timely and proper, and Petitioner's claimed denial of the right to speak was the result of user error of the online platform, not action by the Association. Furthermore, the decision to hold elections for all five open Board positions was deemed appropriate due to carryover vacancies resulting from a lack of quorum in the prior year (2019).

Key Issues & Findings

Alleged violations regarding Annual Meeting notice (change in venue), right to speak, proper call to order, and staggered board voting.

Petitioner filed a quadruple-issue petition alleging the Association violated statutes and bylaws concerning the April 02, 2020, annual meeting, specifically regarding insufficient notice for the venue change (due to COVID-19), denial of the right to speak (via online chat), improper chair delegation, and failure to stagger Board elections.

Orders: Petitioner’s petition is denied.

Filing fee: $2,000.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 33-1804(A)
  • ARIZ. REV. STAT. § 33-1804(B)
  • ARIZ. REV. STAT. § 33-1804(F)
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. ADMIN. CODE R4-9-117
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov

Analytics Highlights

Topics: COVID-19, Virtual Meeting, Notice, Right to Speak, Elections, Bylaws, Quorum, User Error
Additional Citations:

  • ARIZ. REV. STAT. § 33-1804(A)
  • ARIZ. REV. STAT. § 33-1804(B)
  • ARIZ. REV. STAT. § 33-1804(F)
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. ADMIN. CODE R4-9-117

Video Overview

Audio Overview

Decision Documents

20F-H2020061-REL Decision – 819907.pdf

Uploaded 2026-01-23T17:33:45 (149.3 KB)





Briefing Doc – 20F-H2020061-REL


Briefing Document: Paparazzo v. Coronado Ranch Community Association (Case No. 20F-H2020061-REL)

Executive Summary

This document synthesizes the findings from the Administrative Law Judge Decision in the matter of Samuel T. Paparazzo versus the Coronado Ranch Community Association. The central conclusion of the proceeding is the denial of the Petitioner’s claims. The Administrative Law Judge (ALJ) determined that the Petitioner failed to prove by a preponderance of the evidence that the Association violated Arizona state statutes or its own governing bylaws in the conduct of its April 2, 2020, annual meeting.

The critical takeaways from the decision are as follows:

• Meeting Format and Notice: The Association’s decision to move its annual meeting to a virtual platform (ClickMeeting) was deemed a lawful and appropriate response to the COVID-19 pandemic and the Arizona Governor’s related executive orders. The notification methods, which included physical signs and multiple emails, were found to be sufficient.

• Right to Speak: The Petitioner’s claim that he was denied the right to speak because he was “blocked” from the online chat feature was dismissed. The ALJ concluded the issue stemmed from “user error”—the Petitioner typed messages but failed to transmit them by pressing ‘enter’ or ‘send’. The fact that 26 other members successfully used the chat feature demonstrated its functionality.

• Meeting Conduct: The Association’s president properly called the meeting to order before delegating chairing responsibilities to the Association’s Managing Agent, an action the Petitioner conceded was within the president’s authority.

• Board Elections: The election of all five Board of Director positions simultaneously, rather than in staggered terms, was justified by unique circumstances. The Association’s 2019 annual meeting failed to achieve a quorum, preventing an election and resulting in a “carryover of open seats,” which necessitated filling all positions in the 2020 election.

Ultimately, the ALJ found that the Association and its Board acted within the scope of their statutory authority and that the challenges raised by the Petitioner were without merit.

I. Case Overview

This briefing analyzes the Administrative Law Judge Decision issued on September 3, 2020, following an evidentiary hearing held on August 18, 2020.

• Case Number: 20F-H2020061-REL

• Presiding Judge: Administrative Law Judge Jenna Clark

• Petitioner: Samuel T. Paparazzo (Homeowner and Association Member)

• Respondent: Coronado Ranch Community Association (HOA)

• Central Issue: The core of the dispute was whether the Coronado Ranch Community Association violated Arizona Revised Statutes and specific sections of its own bylaws during its annual meeting on April 2, 2020.

II. Petitioner’s Allegations

On May 15, 2020, Samuel Paparazzo filed a quadruple-issue petition alleging that the Association committed the following violations:

1. Improper Notice of Meeting: Providing less than 10-days’ notice regarding a “change in venue” for the annual meeting to only a small portion of the membership, in violation of ARIZ. REV. STAT. § 33-1804(B) and Association Bylaw 2.3.

2. Denial of Right to Speak: Preventing the Petitioner from exercising his right to speak by “blocking” or otherwise disabling his use of the online “chat feature” during the virtual meeting, in violation of ARIZ. REV. STAT. § 33-1804(A).

3. Improper Meeting Conduct: Failing to properly call the annual meeting to order, in violation of Association Bylaw 2.7.

4. Improper Board Election: Conducting the Board of Directors election without the “staggered” terms required by the bylaws, in violation of Association Bylaw 3.1.

III. Factual Chronology and Key Evidence

The decision outlines a clear sequence of events, heavily influenced by the onset of the COVID-19 pandemic.

Feb. 20, 2020

The Association issues its initial notice for the annual meeting, scheduled for April 2, 2020, at Coronado Elementary School.

Mar. 12, 2020

The Association mails election ballots to all Members.

Mar. 19, 2020

Arizona Governor Douglas Ducey issues Executive Order 2020-09, limiting certain business operations to slow the spread of COVID-19.

~Mar. 25, 2020

The Association’s President, Bob Hicks, officially moves the meeting to the virtual ClickMeeting platform.

Mar. 25 – Apr. 1

The Association notifies Members of the change via 12 signs at 6 community entrances and three separate email blasts to approximately 750 Members, which had an average open rate of 63.53%.

Mar. 30, 2020

Governor Ducey issues Executive Order 2020-18, the “Stay Home, Stay Healthy, Stay Connected” order.

Apr. 1, 2020

Two signs are placed at the entrance to the original meeting location, Coronado Elementary School, informing of the change.

Apr. 2, 2020

The Annual Meeting is held via ClickMeeting.
• President Hicks calls the meeting to order and then appoints Managing Agent Kevin Bishop to chair the remainder of the meeting.
• A quorum is achieved based on attendees and absentee ballots.
• An election is held for all 5 open Board positions due to a lack of quorum at the 2019 meeting.
• The Petitioner types messages in the chat window but fails to hit “enter” or click “send” to transmit them. He receives no response to an email for help sent during the meeting.
• At least 26 other Members successfully use the chat feature.

IV. Analysis of Key Issues and Legal Conclusions

The Administrative Law Judge systematically addressed and dismissed each of the Petitioner’s four allegations, concluding that the Board acted lawfully and within its authority.

A. Meeting Notice and Venue Change

• Alleged Violation: ARIZ. REV. STAT. § 33-1804(B) and Bylaw 2.3 (Notice of Meetings).

• Finding: The petition was denied on this point. The ALJ concluded that the notice of the Association’s 2020 annual meeting was “timely and properly noticed.” The move to an online platform was not an arbitrary venue change but a necessary and reasonable measure to comply with the Governor’s executive orders related to the COVID-19 pandemic.

• Supporting Evidence:

◦ The Association made a multi-faceted effort to inform Members through physical signs and repeated emails.

◦ The Petitioner received notice of the modification and, crucially, “failed to raise an objection prior to or during the meeting at issue.”

◦ A Member’s attendance at a meeting waives objections to defective notice, as stated in Bylaw 2.3.

B. Right to Speak

• Alleged Violation: ARIZ. REV. STAT. § 33-1804(A) (Open Meetings and Member Participation).

• Finding: The petition was denied on this point. The ALJ determined the Petitioner’s inability to communicate during the meeting was the result of “user error” and not a deliberate act by the Association to silence him.

• Supporting Evidence:

◦ The Petitioner wrote messages but never finalized the action by hitting the “enter” key or clicking the “send” button.

◦ The chat feature was demonstrably functional, as it was “successfully used by no less than 26 other Members during the annual meeting.”

◦ The decision explicitly states, “The Association is not responsible for Petitioner’s lack of ClickMeeting proficiency.”

C. Conduct of Meeting

• Alleged Violation: Bylaw 2.7 (Organization and Conduct of Meeting).

• Finding: The petition was denied on this point. The meeting was lawfully conducted.

• Supporting Evidence:

◦ The Association President, Bob Hicks, called the meeting to order and took roll before appointing Managing Agent Kevin Bishop to chair the rest of the meeting.

◦ The Petitioner “conceded during cross-examination that President Hicks had the authority task Agent Bishop with chairing the annual meeting.”

D. Board of Directors Election

• Alleged Violation: Bylaw 3.1 (Number and Terms of Office).

• Finding: The petition was denied on this point. The election for all five Board seats was deemed “lawful and appropriate given the circumstances.”

• Supporting Evidence:

◦ The bylaw’s provision for staggered terms could not be implemented because the 2019 annual meeting lacked a quorum, which meant no election took place that year.

◦ This lack of a 2019 vote “resulted in a carryover of open seats,” necessitating a vote for all five Board positions in 2020.

◦ The Petitioner “admitted that it had not been possible for the Association to stagger Board electees in the 2020 vote because no quorum had been reached to vote in 2019.”

V. Final Order and Disposition

Based on the findings of fact and conclusions of law, the Administrative Law Judge issued a final order.

• Order: “IT IS ORDERED that Petitioner’s petition be denied.”

• Legal Standard: The Petitioner bore the burden of proving his case by a “preponderance of the evidence.” The ALJ concluded that the record did not establish any violations and that the Petitioner “failed to sustain his burden of proof in this matter.”

• Date of Order: The decision was issued on September 3, 2020.






Study Guide – 20F-H2020061-REL


Study Guide: Paparazzo v. Coronado Ranch Community Association

This guide is designed to review the key facts, legal arguments, and conclusions presented in the Administrative Law Judge Decision for case number 20F-H2020061-REL, Samuel T Paparazzo v. Coronado Ranch Community Association.

Short-Answer Quiz

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

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

2. What were the four specific allegations the Petitioner made against the Association regarding its Annual Meeting?

3. How did the Association notify its members of the change from an in-person meeting to a virtual one?

4. What was the legal justification for the Association’s decision to move the Annual Meeting to an online platform?

5. What evidence was presented to counter the Petitioner’s claim that he was “blocked” from using the online chat feature?

6. According to the Association’s bylaws, who has the authority to chair the annual meeting and delegate that responsibility?

7. Why did the 2020 Board of Directors election involve voting for all five open positions instead of being staggered?

8. What is the “preponderance of the evidence” standard, and who bore the burden of proof in this hearing?

9. What two key Arizona Revised Statutes (ARIZ. REV. STAT.) relate to member meeting notices and the right to speak?

10. What was the final order issued by the Administrative Law Judge, and what was the core reasoning behind it?

——————————————————————————–

Answer Key

1. The primary parties were Samuel T. Paparazzo, the Petitioner, who is a property owner and member of the Association, and the Coronado Ranch Community Association, the Respondent, which is the homeowners’ association for the subdivision. The Petitioner brought the complaint, and the Respondent defended its actions.

2. The Petitioner alleged that: (i) inadequate notice of the “change in venue” was given; (ii) he was denied his right to speak by being blocked from the online chat feature; (iii) the meeting was not properly called to order; and (iv) the Board of Directors vote was not properly “staggered.”

3. The Association notified members of the move to the ClickMeeting platform by placing 12 signs at 6 common entrances, sending three separate emails to approximately 750 members, and placing 2 signs at the entrance of the originally scheduled location, Coronado Elementary School.

4. The legal justification was the need to comply with executive orders issued by Arizona Governor Douglas Ducey (2020-09, 2020-12, and 2020-18) to slow the spread of COVID-19. The online platform was adopted to allow homeowners to safely access the meeting while adhering to physical distancing mandates.

5. The evidence showed that the Petitioner wrote messages but never hit the “enter” key or “send” button to transmit them. Furthermore, the record indicates that no less than 26 other members successfully used the chat feature during the meeting.

6. According to Bylaw Section 2.7, the President of the Association, Bob Hicks, has the authority to call the meeting to order and chair it. The Petitioner conceded during cross-examination that President Hicks had the authority to delegate the chairing of the meeting to the Association’s Managing Agent, Kevin Bishop.

7. The election involved all five positions because a quorum had not been achieved at the Association’s 2019 annual meeting. This lack of a quorum prevented a vote from taking place, resulting in a carryover of all open board seats to the 2020 election.

8. A “preponderance of the evidence” is the standard of proof required, meaning the evidence must be more probably true than not. In this proceeding, the Petitioner, Samuel Paparazzo, bore the burden of proving his allegations by this standard.

9. ARIZ. REV. STAT. § 33-1804(B) requires notice to be sent not fewer than 10 nor more than 50 days in advance of a meeting. ARIZ. REV. STAT. § 33-1804(A) ensures that all meetings are open to members and that members are permitted to attend and speak at an appropriate time.

10. The final order was that the Petitioner’s petition be denied. The judge reasoned that the Petitioner failed to sustain his burden of proof, as the evidence showed the Association’s actions were lawful and appropriate responses to the circumstances, and the Petitioner’s inability to participate was due to user error.

——————————————————————————–

Essay Questions

The following questions are designed for deeper analysis of the case. No answers are provided.

1. Analyze the role of the COVID-19 pandemic and the associated executive orders in the events of this case. How did these external factors influence the Association’s actions and the Administrative Law Judge’s final decision?

2. The judge concluded that the Petitioner’s inability to use the chat function was due to “user error.” Discuss the evidence that supports this conclusion and explore the legal line between an association’s responsibility to provide access and a member’s responsibility to utilize the provided tools correctly.

3. Explain the relationship between the Association’s governing documents (CC&Rs and Bylaws) and Arizona state law (ARIZ. REV. STAT.). How did the judge use both to evaluate the legality of the Association’s handling of the annual meeting and election?

4. The Petitioner argued that the online platform constituted a “change in venue” that required more extensive notice. Based on the judge’s decision, evaluate the legal merits of this argument in the context of a virtual meeting necessitated by a public health crisis.

5. Discuss the concept of “quorum” as it applied to both the 2019 and 2020 annual meetings. How did the failure to achieve quorum in one year directly impact the procedures and outcome of the election in the following year?

——————————————————————————–

Glossary of Key Terms

Definition from Context

Administrative Law Judge (ALJ)

An independent judicial officer (Jenna Clark in this case) from the Office of Administrative Hearings who conducts evidentiary hearings and issues decisions on matters referred by state agencies like the Department of Real Estate.

ARIZ. REV. STAT.

Abbreviation for Arizona Revised Statutes, the collection of laws for the state of Arizona. Title 33, Chapter 16, Article 1 specifically regulates planned communities (homeowners’ associations).

Association

The Coronado Ranch Community Association, the homeowners’ association for the residential development in Gilbert, Arizona. It is governed by its CC&Rs and overseen by a Board of Directors.

Bylaws

The governing documents of the Association that detail the structure of day-to-day governance, including voting processes, quorum requirements, meeting provisions, and other operating guidelines.

Covenants, Conditions, and Restrictions. These form an enforceable contract between the Association and each property owner, empowering the Association to control certain aspects of property use within the development.

Declarant Control Period

An initial period in an association’s history where the developer (the “Declarant”) controls the Board of Directors. In this case, this period ended for the Association in 2005.

Department

The Arizona Department of Real Estate, the state agency authorized by statute to receive and decide petitions for hearings from members of homeowners’ associations.

The Office of Administrative Hearings, an independent state agency that was referred this matter to conduct an evidentiary hearing and decide the case.

Petitioner

Samuel T. Paparazzo, the property owner and Association member who filed the petition with the Department, alleging violations by the Association.

Preponderance of the Evidence

The burden of proof required in this hearing. It is defined as proof that convinces the trier of fact that a contention is “more probably true than not,” representing the greater weight of evidence.

Quorum

The minimum number of members required to be present or represented by ballot for a meeting to be valid and for votes to be taken. The failure to achieve quorum at the 2019 meeting resulted in a carryover of open board seats.

Respondent

The Coronado Ranch Community Association, the party against whom the petition was filed. The Respondent denied all allegations and was represented by legal counsel.






Blog Post – 20F-H2020061-REL


He Sued His HOA Over a Virtual Meeting—The Judge’s Ruling Contains 4 Critical Lessons for Every Homeowner

Introduction: The New Battlefield for Neighborhood Disputes

Cast your mind back to the chaotic spring of 2020. The world was locking down, businesses were scrambling to go remote, and the delicate social contracts of our neighborhoods were fraying. For millions living in Homeowners’ Associations, this meant the abrupt cancellation of in-person meetings, replaced by a frantic pivot to unfamiliar virtual platforms. In this pressure cooker of uncertainty and technical glitches, minor grievances quickly escalated into major legal battles.

The case of Paparazzo vs. Coronado Ranch Community Association is a quintessential legal drama of that era. A frustrated homeowner, believing he was silenced and his rights ignored during a virtual meeting, took his HOA to court. The judge’s decision, however, serves as a powerful cautionary tale. It distills four surprising and impactful lessons that every homeowner should understand as community governance becomes increasingly digital.

1. The Takeaway: You Can’t Claim You Were Silenced If You Forgot to Hit ‘Send’

The petitioner, Samuel Paparazzo, leveled a serious charge: that the HOA had denied his right to speak by “blocking” him from using the online chat feature during the annual meeting. In his view, this was an intentional act of suppression.

The digital evidence, however, told a very different story. While Mr. Paparazzo had typed several messages, he had never actually transmitted them by hitting the “enter” key or clicking the “send” button. While he did email for assistance during the meeting without receiving a timely response, the court found the chat feature was fully functional, proven by the fact that at least 26 other members used it successfully. The judge’s ruling was a stark lesson in digital accountability:

Petitioner’s inability to effectively communicate with the Association during the annual meeting was the result of user error. … The Association is not responsible for Petitioner’s lack of ClickMeeting proficiency.

This establishes a critical precedent for our digital age. The analysis here goes beyond simple “user error.” It suggests that a baseline of digital literacy is becoming a prerequisite for effective civic participation. Courts may have little sympathy for claims of disenfranchisement that stem from a failure to master the basic tools of modern communication.

2. The Takeaway: An Emergency Can Justify Last-Minute Changes

Next, the petitioner challenged the HOA on procedural grounds—a classic move in community disputes. He argued that the association failed to provide proper notice for the virtual meeting. The HOA had correctly noticed its in-person meeting for April 2, 2020, back on February 20. But by late March, holding that meeting had become impossible.

The judge’s response to this claim is a masterclass in how legal “reasonableness” can override rigid bylaws during a crisis. The court noted the rapidly evolving timeline of the pandemic: Governor Ducey issued executive orders limiting business operations on March 19, prohibiting the closure of essential services on March 23, and issuing the “Stay Home” order on March 30. Faced with these superseding government mandates, the HOA moved the meeting online on March 25.

Crucially, the HOA’s communication efforts were extensive and documented. They didn’t just send a single email. The board notified its members by:

• Placing 12 signs at 6 common entrances to the community.

• Sending three separate email blasts to approximately 750 members, which had an average open rate of 63.53%.

• Placing 2 additional signs at the entrance to the originally scheduled location, Coronado Elementary School.

The judge concluded that the HOA’s actions were a justifiable response to an unprecedented emergency. This wasn’t a board ignoring its rules; it was a board taking necessary steps to comply with government orders and protect its members, legally justifying the short-notice change in format.

3. The Takeaway: Just Showing Up Can Waive Your Right to Complain

This lesson hinges on a legal concept every homeowner must understand: waiver by attendance. Buried in the association’s bylaws was Section 2.3, which states: “A Member’s attendance at a meeting waives objection to the lack of notice or defective notice of the meeting.”

This is not mere legalese; it’s a common and powerful clause designed to ensure the finality of meetings. It prevents a member from strategically attending a meeting, remaining silent about a potential procedural flaw, and then launching a lawsuit later if they don’t like the outcome. The judge noted that the petitioner attended the virtual meeting but did not object to the notice “prior to or during” the event. By participating without raising a formal objection at the time, he legally accepted the meeting’s procedures and waived his right to challenge them later.

4. The Takeaway: The Past Can Haunt the Present

The petitioner’s final major complaint appeared to be a slam dunk: the election for the Board of Directors was not “staggered” as explicitly required by Bylaws Section 3.1. Instead of a mix of one- and two-year terms to ensure continuity, all five open board positions were elected at once. On its face, this was a clear violation.

But the reason for this anomaly demonstrates the domino effect of governance. The judge found that in the previous year, 2019, the association had failed to achieve a quorum for its annual meeting. Because there was no quorum, no vote could occur, creating a “carryover of open seats.” This failure in 2019 created a governance debt that had to be paid in 2020. The only lawful way to do so was to elect members to all five vacant positions. This shows that an HOA is a continuous legal entity; one year’s procedural failure doesn’t just disappear—it creates unusual but legally necessary circumstances the next.

Conclusion: A Final Thought for the Digital Neighborhood

The case of Paparazzo vs. Coronado Ranch Community Association offers a clear and compelling look at the collision between established community rules, the new realities of digital life, and the chaos of unforeseen global events. It shows that while bylaws and statutes provide a framework, their application can be shaped by emergencies, past events, and even a single user’s technical skills.

As our communities increasingly operate online, who bears the greater responsibility for ensuring effective communication—the organization hosting the meeting, or the individual attending it?


Case Participants

Petitioner Side

  • Samuel Paparazzo (petitioner)
    Also referred to as Samuel T Paparazzo

Respondent Side

  • Mark Stahl (HOA attorney)
    Coronado Ranch Community Association
    Also spelled Mark Sahl in source
  • Timothy Butterfield (HOA attorney)
    Coronado Ranch Community Association
  • Kevin Bishop (community manager)
    Coronado Ranch Community Association
    Appeared as a witness for Respondent; Also referred to as 'Agent Bishop' and chaired part of the annual meeting
  • Bob Hicks (HOA Board President)
    Coronado Ranch Community Association
    Delegated chairing of the annual meeting

Neutral Parties

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

Samuel T Paparazzo v. Coronado Ranch Community Association

Posted on by

Case Summary

Case ID 20F-H2020061-REL
Agency ADRE
Tribunal OAH
Decision Date 2020-09-03
Administrative Law Judge Jenna Clark
Outcome loss
Filing Fees Refunded $2,000.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Samuel T Paparazzo Counsel —
Respondent Coronado Ranch Community Association Counsel Mark Stahl, Esq.

Alleged Violations

ARIZ. REV. STAT. §§ 33-1804(A), 33-1804(B), 33-1804(F), and Association bylaws 2.3, 2.7, and 3.1

Outcome Summary

The Administrative Law Judge concluded that the Respondent HOA acted within the scope of its statutory authority during its April 02, 2020, annual meeting and elections, and denied the Petitioner's petition for failure to sustain the burden of proof regarding alleged statutory and bylaw violations.

Why this result: The ALJ found that notice of the meeting modification (to an online platform due to COVID-19) was timely and proper, and Petitioner's claimed denial of the right to speak was the result of user error of the online platform, not action by the Association. Furthermore, the decision to hold elections for all five open Board positions was deemed appropriate due to carryover vacancies resulting from a lack of quorum in the prior year (2019).

Key Issues & Findings

Alleged violations regarding Annual Meeting notice (change in venue), right to speak, proper call to order, and staggered board voting.

Petitioner filed a quadruple-issue petition alleging the Association violated statutes and bylaws concerning the April 02, 2020, annual meeting, specifically regarding insufficient notice for the venue change (due to COVID-19), denial of the right to speak (via online chat), improper chair delegation, and failure to stagger Board elections.

Orders: Petitioner’s petition is denied.

Filing fee: $2,000.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 33-1804(A)
  • ARIZ. REV. STAT. § 33-1804(B)
  • ARIZ. REV. STAT. § 33-1804(F)
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. ADMIN. CODE R4-9-117
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov

Analytics Highlights

Topics: COVID-19, Virtual Meeting, Notice, Right to Speak, Elections, Bylaws, Quorum, User Error
Additional Citations:

  • ARIZ. REV. STAT. § 33-1804(A)
  • ARIZ. REV. STAT. § 33-1804(B)
  • ARIZ. REV. STAT. § 33-1804(F)
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. ADMIN. CODE R4-9-117

Video Overview

Audio Overview

Decision Documents

20F-H2020061-REL Decision – 819907.pdf

Uploaded 2025-10-09T03:35:29 (149.3 KB)





Briefing Doc – 20F-H2020061-REL


Briefing Document: Paparazzo v. Coronado Ranch Community Association (Case No. 20F-H2020061-REL)

Executive Summary

This document synthesizes the findings from the Administrative Law Judge Decision in the matter of Samuel T. Paparazzo versus the Coronado Ranch Community Association. The central conclusion of the proceeding is the denial of the Petitioner’s claims. The Administrative Law Judge (ALJ) determined that the Petitioner failed to prove by a preponderance of the evidence that the Association violated Arizona state statutes or its own governing bylaws in the conduct of its April 2, 2020, annual meeting.

The critical takeaways from the decision are as follows:

• Meeting Format and Notice: The Association’s decision to move its annual meeting to a virtual platform (ClickMeeting) was deemed a lawful and appropriate response to the COVID-19 pandemic and the Arizona Governor’s related executive orders. The notification methods, which included physical signs and multiple emails, were found to be sufficient.

• Right to Speak: The Petitioner’s claim that he was denied the right to speak because he was “blocked” from the online chat feature was dismissed. The ALJ concluded the issue stemmed from “user error”—the Petitioner typed messages but failed to transmit them by pressing ‘enter’ or ‘send’. The fact that 26 other members successfully used the chat feature demonstrated its functionality.

• Meeting Conduct: The Association’s president properly called the meeting to order before delegating chairing responsibilities to the Association’s Managing Agent, an action the Petitioner conceded was within the president’s authority.

• Board Elections: The election of all five Board of Director positions simultaneously, rather than in staggered terms, was justified by unique circumstances. The Association’s 2019 annual meeting failed to achieve a quorum, preventing an election and resulting in a “carryover of open seats,” which necessitated filling all positions in the 2020 election.

Ultimately, the ALJ found that the Association and its Board acted within the scope of their statutory authority and that the challenges raised by the Petitioner were without merit.

I. Case Overview

This briefing analyzes the Administrative Law Judge Decision issued on September 3, 2020, following an evidentiary hearing held on August 18, 2020.

• Case Number: 20F-H2020061-REL

• Presiding Judge: Administrative Law Judge Jenna Clark

• Petitioner: Samuel T. Paparazzo (Homeowner and Association Member)

• Respondent: Coronado Ranch Community Association (HOA)

• Central Issue: The core of the dispute was whether the Coronado Ranch Community Association violated Arizona Revised Statutes and specific sections of its own bylaws during its annual meeting on April 2, 2020.

II. Petitioner’s Allegations

On May 15, 2020, Samuel Paparazzo filed a quadruple-issue petition alleging that the Association committed the following violations:

1. Improper Notice of Meeting: Providing less than 10-days’ notice regarding a “change in venue” for the annual meeting to only a small portion of the membership, in violation of ARIZ. REV. STAT. § 33-1804(B) and Association Bylaw 2.3.

2. Denial of Right to Speak: Preventing the Petitioner from exercising his right to speak by “blocking” or otherwise disabling his use of the online “chat feature” during the virtual meeting, in violation of ARIZ. REV. STAT. § 33-1804(A).

3. Improper Meeting Conduct: Failing to properly call the annual meeting to order, in violation of Association Bylaw 2.7.

4. Improper Board Election: Conducting the Board of Directors election without the “staggered” terms required by the bylaws, in violation of Association Bylaw 3.1.

III. Factual Chronology and Key Evidence

The decision outlines a clear sequence of events, heavily influenced by the onset of the COVID-19 pandemic.

Feb. 20, 2020

The Association issues its initial notice for the annual meeting, scheduled for April 2, 2020, at Coronado Elementary School.

Mar. 12, 2020

The Association mails election ballots to all Members.

Mar. 19, 2020

Arizona Governor Douglas Ducey issues Executive Order 2020-09, limiting certain business operations to slow the spread of COVID-19.

~Mar. 25, 2020

The Association’s President, Bob Hicks, officially moves the meeting to the virtual ClickMeeting platform.

Mar. 25 – Apr. 1

The Association notifies Members of the change via 12 signs at 6 community entrances and three separate email blasts to approximately 750 Members, which had an average open rate of 63.53%.

Mar. 30, 2020

Governor Ducey issues Executive Order 2020-18, the “Stay Home, Stay Healthy, Stay Connected” order.

Apr. 1, 2020

Two signs are placed at the entrance to the original meeting location, Coronado Elementary School, informing of the change.

Apr. 2, 2020

The Annual Meeting is held via ClickMeeting.
• President Hicks calls the meeting to order and then appoints Managing Agent Kevin Bishop to chair the remainder of the meeting.
• A quorum is achieved based on attendees and absentee ballots.
• An election is held for all 5 open Board positions due to a lack of quorum at the 2019 meeting.
• The Petitioner types messages in the chat window but fails to hit “enter” or click “send” to transmit them. He receives no response to an email for help sent during the meeting.
• At least 26 other Members successfully use the chat feature.

IV. Analysis of Key Issues and Legal Conclusions

The Administrative Law Judge systematically addressed and dismissed each of the Petitioner’s four allegations, concluding that the Board acted lawfully and within its authority.

A. Meeting Notice and Venue Change

• Alleged Violation: ARIZ. REV. STAT. § 33-1804(B) and Bylaw 2.3 (Notice of Meetings).

• Finding: The petition was denied on this point. The ALJ concluded that the notice of the Association’s 2020 annual meeting was “timely and properly noticed.” The move to an online platform was not an arbitrary venue change but a necessary and reasonable measure to comply with the Governor’s executive orders related to the COVID-19 pandemic.

• Supporting Evidence:

◦ The Association made a multi-faceted effort to inform Members through physical signs and repeated emails.

◦ The Petitioner received notice of the modification and, crucially, “failed to raise an objection prior to or during the meeting at issue.”

◦ A Member’s attendance at a meeting waives objections to defective notice, as stated in Bylaw 2.3.

B. Right to Speak

• Alleged Violation: ARIZ. REV. STAT. § 33-1804(A) (Open Meetings and Member Participation).

• Finding: The petition was denied on this point. The ALJ determined the Petitioner’s inability to communicate during the meeting was the result of “user error” and not a deliberate act by the Association to silence him.

• Supporting Evidence:

◦ The Petitioner wrote messages but never finalized the action by hitting the “enter” key or clicking the “send” button.

◦ The chat feature was demonstrably functional, as it was “successfully used by no less than 26 other Members during the annual meeting.”

◦ The decision explicitly states, “The Association is not responsible for Petitioner’s lack of ClickMeeting proficiency.”

C. Conduct of Meeting

• Alleged Violation: Bylaw 2.7 (Organization and Conduct of Meeting).

• Finding: The petition was denied on this point. The meeting was lawfully conducted.

• Supporting Evidence:

◦ The Association President, Bob Hicks, called the meeting to order and took roll before appointing Managing Agent Kevin Bishop to chair the rest of the meeting.

◦ The Petitioner “conceded during cross-examination that President Hicks had the authority task Agent Bishop with chairing the annual meeting.”

D. Board of Directors Election

• Alleged Violation: Bylaw 3.1 (Number and Terms of Office).

• Finding: The petition was denied on this point. The election for all five Board seats was deemed “lawful and appropriate given the circumstances.”

• Supporting Evidence:

◦ The bylaw’s provision for staggered terms could not be implemented because the 2019 annual meeting lacked a quorum, which meant no election took place that year.

◦ This lack of a 2019 vote “resulted in a carryover of open seats,” necessitating a vote for all five Board positions in 2020.

◦ The Petitioner “admitted that it had not been possible for the Association to stagger Board electees in the 2020 vote because no quorum had been reached to vote in 2019.”

V. Final Order and Disposition

Based on the findings of fact and conclusions of law, the Administrative Law Judge issued a final order.

• Order: “IT IS ORDERED that Petitioner’s petition be denied.”

• Legal Standard: The Petitioner bore the burden of proving his case by a “preponderance of the evidence.” The ALJ concluded that the record did not establish any violations and that the Petitioner “failed to sustain his burden of proof in this matter.”

• Date of Order: The decision was issued on September 3, 2020.






Study Guide – 20F-H2020061-REL


Study Guide: Paparazzo v. Coronado Ranch Community Association

This guide is designed to review the key facts, legal arguments, and conclusions presented in the Administrative Law Judge Decision for case number 20F-H2020061-REL, Samuel T Paparazzo v. Coronado Ranch Community Association.

Short-Answer Quiz

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

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

2. What were the four specific allegations the Petitioner made against the Association regarding its Annual Meeting?

3. How did the Association notify its members of the change from an in-person meeting to a virtual one?

4. What was the legal justification for the Association’s decision to move the Annual Meeting to an online platform?

5. What evidence was presented to counter the Petitioner’s claim that he was “blocked” from using the online chat feature?

6. According to the Association’s bylaws, who has the authority to chair the annual meeting and delegate that responsibility?

7. Why did the 2020 Board of Directors election involve voting for all five open positions instead of being staggered?

8. What is the “preponderance of the evidence” standard, and who bore the burden of proof in this hearing?

9. What two key Arizona Revised Statutes (ARIZ. REV. STAT.) relate to member meeting notices and the right to speak?

10. What was the final order issued by the Administrative Law Judge, and what was the core reasoning behind it?

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Answer Key

1. The primary parties were Samuel T. Paparazzo, the Petitioner, who is a property owner and member of the Association, and the Coronado Ranch Community Association, the Respondent, which is the homeowners’ association for the subdivision. The Petitioner brought the complaint, and the Respondent defended its actions.

2. The Petitioner alleged that: (i) inadequate notice of the “change in venue” was given; (ii) he was denied his right to speak by being blocked from the online chat feature; (iii) the meeting was not properly called to order; and (iv) the Board of Directors vote was not properly “staggered.”

3. The Association notified members of the move to the ClickMeeting platform by placing 12 signs at 6 common entrances, sending three separate emails to approximately 750 members, and placing 2 signs at the entrance of the originally scheduled location, Coronado Elementary School.

4. The legal justification was the need to comply with executive orders issued by Arizona Governor Douglas Ducey (2020-09, 2020-12, and 2020-18) to slow the spread of COVID-19. The online platform was adopted to allow homeowners to safely access the meeting while adhering to physical distancing mandates.

5. The evidence showed that the Petitioner wrote messages but never hit the “enter” key or “send” button to transmit them. Furthermore, the record indicates that no less than 26 other members successfully used the chat feature during the meeting.

6. According to Bylaw Section 2.7, the President of the Association, Bob Hicks, has the authority to call the meeting to order and chair it. The Petitioner conceded during cross-examination that President Hicks had the authority to delegate the chairing of the meeting to the Association’s Managing Agent, Kevin Bishop.

7. The election involved all five positions because a quorum had not been achieved at the Association’s 2019 annual meeting. This lack of a quorum prevented a vote from taking place, resulting in a carryover of all open board seats to the 2020 election.

8. A “preponderance of the evidence” is the standard of proof required, meaning the evidence must be more probably true than not. In this proceeding, the Petitioner, Samuel Paparazzo, bore the burden of proving his allegations by this standard.

9. ARIZ. REV. STAT. § 33-1804(B) requires notice to be sent not fewer than 10 nor more than 50 days in advance of a meeting. ARIZ. REV. STAT. § 33-1804(A) ensures that all meetings are open to members and that members are permitted to attend and speak at an appropriate time.

10. The final order was that the Petitioner’s petition be denied. The judge reasoned that the Petitioner failed to sustain his burden of proof, as the evidence showed the Association’s actions were lawful and appropriate responses to the circumstances, and the Petitioner’s inability to participate was due to user error.

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Essay Questions

The following questions are designed for deeper analysis of the case. No answers are provided.

1. Analyze the role of the COVID-19 pandemic and the associated executive orders in the events of this case. How did these external factors influence the Association’s actions and the Administrative Law Judge’s final decision?

2. The judge concluded that the Petitioner’s inability to use the chat function was due to “user error.” Discuss the evidence that supports this conclusion and explore the legal line between an association’s responsibility to provide access and a member’s responsibility to utilize the provided tools correctly.

3. Explain the relationship between the Association’s governing documents (CC&Rs and Bylaws) and Arizona state law (ARIZ. REV. STAT.). How did the judge use both to evaluate the legality of the Association’s handling of the annual meeting and election?

4. The Petitioner argued that the online platform constituted a “change in venue” that required more extensive notice. Based on the judge’s decision, evaluate the legal merits of this argument in the context of a virtual meeting necessitated by a public health crisis.

5. Discuss the concept of “quorum” as it applied to both the 2019 and 2020 annual meetings. How did the failure to achieve quorum in one year directly impact the procedures and outcome of the election in the following year?

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Glossary of Key Terms

Definition from Context

Administrative Law Judge (ALJ)

An independent judicial officer (Jenna Clark in this case) from the Office of Administrative Hearings who conducts evidentiary hearings and issues decisions on matters referred by state agencies like the Department of Real Estate.

ARIZ. REV. STAT.

Abbreviation for Arizona Revised Statutes, the collection of laws for the state of Arizona. Title 33, Chapter 16, Article 1 specifically regulates planned communities (homeowners’ associations).

Association

The Coronado Ranch Community Association, the homeowners’ association for the residential development in Gilbert, Arizona. It is governed by its CC&Rs and overseen by a Board of Directors.

Bylaws

The governing documents of the Association that detail the structure of day-to-day governance, including voting processes, quorum requirements, meeting provisions, and other operating guidelines.

Covenants, Conditions, and Restrictions. These form an enforceable contract between the Association and each property owner, empowering the Association to control certain aspects of property use within the development.

Declarant Control Period

An initial period in an association’s history where the developer (the “Declarant”) controls the Board of Directors. In this case, this period ended for the Association in 2005.

Department

The Arizona Department of Real Estate, the state agency authorized by statute to receive and decide petitions for hearings from members of homeowners’ associations.

The Office of Administrative Hearings, an independent state agency that was referred this matter to conduct an evidentiary hearing and decide the case.

Petitioner

Samuel T. Paparazzo, the property owner and Association member who filed the petition with the Department, alleging violations by the Association.

Preponderance of the Evidence

The burden of proof required in this hearing. It is defined as proof that convinces the trier of fact that a contention is “more probably true than not,” representing the greater weight of evidence.

Quorum

The minimum number of members required to be present or represented by ballot for a meeting to be valid and for votes to be taken. The failure to achieve quorum at the 2019 meeting resulted in a carryover of open board seats.

Respondent

The Coronado Ranch Community Association, the party against whom the petition was filed. The Respondent denied all allegations and was represented by legal counsel.






Blog Post – 20F-H2020061-REL


He Sued His HOA Over a Virtual Meeting—The Judge’s Ruling Contains 4 Critical Lessons for Every Homeowner

Introduction: The New Battlefield for Neighborhood Disputes

Cast your mind back to the chaotic spring of 2020. The world was locking down, businesses were scrambling to go remote, and the delicate social contracts of our neighborhoods were fraying. For millions living in Homeowners’ Associations, this meant the abrupt cancellation of in-person meetings, replaced by a frantic pivot to unfamiliar virtual platforms. In this pressure cooker of uncertainty and technical glitches, minor grievances quickly escalated into major legal battles.

The case of Paparazzo vs. Coronado Ranch Community Association is a quintessential legal drama of that era. A frustrated homeowner, believing he was silenced and his rights ignored during a virtual meeting, took his HOA to court. The judge’s decision, however, serves as a powerful cautionary tale. It distills four surprising and impactful lessons that every homeowner should understand as community governance becomes increasingly digital.

1. The Takeaway: You Can’t Claim You Were Silenced If You Forgot to Hit ‘Send’

The petitioner, Samuel Paparazzo, leveled a serious charge: that the HOA had denied his right to speak by “blocking” him from using the online chat feature during the annual meeting. In his view, this was an intentional act of suppression.

The digital evidence, however, told a very different story. While Mr. Paparazzo had typed several messages, he had never actually transmitted them by hitting the “enter” key or clicking the “send” button. While he did email for assistance during the meeting without receiving a timely response, the court found the chat feature was fully functional, proven by the fact that at least 26 other members used it successfully. The judge’s ruling was a stark lesson in digital accountability:

Petitioner’s inability to effectively communicate with the Association during the annual meeting was the result of user error. … The Association is not responsible for Petitioner’s lack of ClickMeeting proficiency.

This establishes a critical precedent for our digital age. The analysis here goes beyond simple “user error.” It suggests that a baseline of digital literacy is becoming a prerequisite for effective civic participation. Courts may have little sympathy for claims of disenfranchisement that stem from a failure to master the basic tools of modern communication.

2. The Takeaway: An Emergency Can Justify Last-Minute Changes

Next, the petitioner challenged the HOA on procedural grounds—a classic move in community disputes. He argued that the association failed to provide proper notice for the virtual meeting. The HOA had correctly noticed its in-person meeting for April 2, 2020, back on February 20. But by late March, holding that meeting had become impossible.

The judge’s response to this claim is a masterclass in how legal “reasonableness” can override rigid bylaws during a crisis. The court noted the rapidly evolving timeline of the pandemic: Governor Ducey issued executive orders limiting business operations on March 19, prohibiting the closure of essential services on March 23, and issuing the “Stay Home” order on March 30. Faced with these superseding government mandates, the HOA moved the meeting online on March 25.

Crucially, the HOA’s communication efforts were extensive and documented. They didn’t just send a single email. The board notified its members by:

• Placing 12 signs at 6 common entrances to the community.

• Sending three separate email blasts to approximately 750 members, which had an average open rate of 63.53%.

• Placing 2 additional signs at the entrance to the originally scheduled location, Coronado Elementary School.

The judge concluded that the HOA’s actions were a justifiable response to an unprecedented emergency. This wasn’t a board ignoring its rules; it was a board taking necessary steps to comply with government orders and protect its members, legally justifying the short-notice change in format.

3. The Takeaway: Just Showing Up Can Waive Your Right to Complain

This lesson hinges on a legal concept every homeowner must understand: waiver by attendance. Buried in the association’s bylaws was Section 2.3, which states: “A Member’s attendance at a meeting waives objection to the lack of notice or defective notice of the meeting.”

This is not mere legalese; it’s a common and powerful clause designed to ensure the finality of meetings. It prevents a member from strategically attending a meeting, remaining silent about a potential procedural flaw, and then launching a lawsuit later if they don’t like the outcome. The judge noted that the petitioner attended the virtual meeting but did not object to the notice “prior to or during” the event. By participating without raising a formal objection at the time, he legally accepted the meeting’s procedures and waived his right to challenge them later.

4. The Takeaway: The Past Can Haunt the Present

The petitioner’s final major complaint appeared to be a slam dunk: the election for the Board of Directors was not “staggered” as explicitly required by Bylaws Section 3.1. Instead of a mix of one- and two-year terms to ensure continuity, all five open board positions were elected at once. On its face, this was a clear violation.

But the reason for this anomaly demonstrates the domino effect of governance. The judge found that in the previous year, 2019, the association had failed to achieve a quorum for its annual meeting. Because there was no quorum, no vote could occur, creating a “carryover of open seats.” This failure in 2019 created a governance debt that had to be paid in 2020. The only lawful way to do so was to elect members to all five vacant positions. This shows that an HOA is a continuous legal entity; one year’s procedural failure doesn’t just disappear—it creates unusual but legally necessary circumstances the next.

Conclusion: A Final Thought for the Digital Neighborhood

The case of Paparazzo vs. Coronado Ranch Community Association offers a clear and compelling look at the collision between established community rules, the new realities of digital life, and the chaos of unforeseen global events. It shows that while bylaws and statutes provide a framework, their application can be shaped by emergencies, past events, and even a single user’s technical skills.

As our communities increasingly operate online, who bears the greater responsibility for ensuring effective communication—the organization hosting the meeting, or the individual attending it?


Case Participants

Petitioner Side

  • Samuel Paparazzo (petitioner)
    Also referred to as Samuel T Paparazzo

Respondent Side

  • Mark Stahl (HOA attorney)
    Coronado Ranch Community Association
    Also spelled Mark Sahl in source
  • Timothy Butterfield (HOA attorney)
    Coronado Ranch Community Association
  • Kevin Bishop (community manager)
    Coronado Ranch Community Association
    Appeared as a witness for Respondent; Also referred to as 'Agent Bishop' and chaired part of the annual meeting
  • Bob Hicks (HOA Board President)
    Coronado Ranch Community Association
    Delegated chairing of the annual meeting

Neutral Parties

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

Jay A. Janicek v. Sycamore Vista No. 8 Homeowners

Posted on by
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.

Case Summary

Case ID 19F-H1918001-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-03-25
Administrative Law Judge Jenna Clark
Outcome total
Filing Fees Refunded $500.00
Civil Penalties $250.00

Parties & Counsel

Petitioner Jay A. Janicek Counsel Jake Kubert
Respondent Sycamore Vista No. 8 Homeowners Association Counsel Evan Thompson

Alleged Violations

ARIZ. REV. STAT. § 33-1804(B); Association Bylaws Article III, Sections 3 & 4; Association Bylaws Article VIII, Section 1

Outcome Summary

The ALJ granted the petition, concluding that the HOA Board’s unilateral amendment of the Bylaws on November 20, 2017, was an invalid action taken without the required vote of the Association members and without statutory notice, violating ARIZ. REV. STAT. § 33-1804(B) and the Association’s governing documents. The amendment was invalidated, and the Respondent was ordered to refund the Petitioner's filing fee and pay a $250.00 civil penalty.

Key Issues & Findings

Whether Sycamore Vista No. 8 Homeowners Association (Respondent) violated Association Bylaws Article III, Sections 3 & 4 and Article VIII, Section 1 in an action taken by the board on November 20, 2017.

The Board of Directors attempted a third amendment to the Bylaws on November 20, 2017, specifically changing the requirements for the Association's financial review (audit, review, or compilation). The ALJ concluded that this action was invalid because it was taken in the absence of a quorum of Association members voting in favor of the amendment, violating both the Bylaws and statutory notice requirements.

Orders: The petition was granted. The third amendment to the Association Bylaws taken on November 20, 2017, was invalidated. Respondent was ordered to pay the Petitioner the filing fee required by ARIZ. REV. STAT. § 32-2199.01 and pay a civil penalty of $250.00 to the Planned Community Hearing Office Fund.

Filing fee: $500.00, Fee refunded: Yes, Civil penalty: $250.00

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. § 33-1804(B)
  • Association Bylaws Article III

Analytics Highlights

Topics: HOA Governance, Bylaws Amendment, Open Meeting Law, ARS 33-1804, Membership Vote, Filing Fee Refund
Additional Citations:

  • ARIZ. REV. STAT. § 33-1804(B)
  • ARIZ. REV. STAT. § 32-2199.02(A)
  • ARIZ. REV. STAT. § 32-2199.05
  • Powell v. Washburn, 125 P.3d 373 (Ariz. 2006)
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

Video Overview

Decision Documents

19F-H1918001-REL-RHG Decision – 696205.pdf

Uploaded 2026-01-23T17:25:44 (169.8 KB)

19F-H1918001-REL-RHG Decision – ../19F-H1918001-REL/661797.pdf

Uploaded 2026-01-23T17:25:47 (143.2 KB)





Briefing Doc – 19F-H1918001-REL-RHG


Briefing Document: Janicek v. Sycamore Vista No. 8 Homeowners Association

Executive Summary

This document synthesizes the findings and legal conclusions from the administrative hearings regarding a dispute between Jay A. Janicek (“Petitioner”) and the Sycamore Vista No. 8 Homeowners Association (“Respondent” or “the Association”). The central issue was whether the Association’s Board of Directors acted outside its authority by unilaterally amending the Association’s Bylaws during a Board meeting on November 20, 2017, without a vote from the general membership.

The Administrative Law Judge (ALJ) determined that the Board’s action violated both the Association’s governing documents and Arizona Revised Statutes (A.R.S. § 33-1804). The ruling emphasized that the term “members” in the Bylaws refers specifically to the body of property owners, not the Board of Directors. Consequently, the third amendment to the Bylaws was invalidated, and the Association was ordered to pay a civil penalty and refund the Petitioner’s filing fees. A rehearing in March 2019 reconfirmed these findings, underscoring the necessity of transparency and membership participation in homeowners’ association governance.

Case Overview and Procedural History

Key Fact

Detail

Case Number

19F-H1918001-REL; 19F-H1918001-REL-RHG (Rehearing)

Petitioner

Jay A. Janicek (Sycamore Vista property owner)

Respondent

Sycamore Vista No. 8 Homeowners Association

Initial Hearing Date

September 05, 2018

Initial Decision Date

September 24, 2018

Rehearing Date

March 05, 2019

Final Order Date

March 25, 2019

The Department of Real Estate referred the matter to the Office of Administrative Hearings (OAH) following a petition filed by Mr. Janicek on July 25, 2018. The Respondent initially declined to present witnesses or exhibits, choosing to rely on a dispute over textual interpretation. Following an initial ruling in favor of the Petitioner, the Respondent requested a rehearing, which was granted but ultimately resulted in the same conclusion.

The Core Dispute: Bylaw Amendment Authority

The conflict arose from a Board meeting held on November 20, 2017. During this meeting, the Board voted to approve a third amendment to the Association’s Bylaws.

The Specific Amendment

The Board modified Article VIII, Section 6(d). The original text required the Board to:

• “…cause an annual audit of the Association books to be made by a public accountant at the completion of each fiscal year.”

The Board replaced this with language allowing for:

• “…an annual audit, review, or compilation of the Associations financial records to be made by a public accountant within 180 days after the end of the HOA’s fiscal year.”

Conflicting Interpretations of “Members”

The primary legal dispute centered on the interpretation of Bylaws Article XIII, Section 1, which states:

“These Bylaws may be amended at a regular or special meeting of the Board of Directors of the Association by a vote of a majority of a quorum of members present in person or by proxy.” (Emphasis added).

• Petitioner’s Position: “Members” refers to the general membership of the Association (property owners), as defined in Article II, Section 7 and the Declaration. Petitioner argued that the use of “proxy” in this section further proves it refers to members, as Board Directors are not permitted to vote by proxy.

• Respondent’s Position: “Members” refers to the members of the Board of Directors. The Association argued that because the word was not capitalized in Article XIII, it authorized the Board to amend Bylaws at their own meetings, provided a quorum of Directors was present.

Legal Analysis and Evidence

Governing Statutes and Case Law

The ALJ’s decision was informed by Arizona law and established legal principles:

• A.R.S. § 33-1804 (Open Meeting Law): This statute requires that notice of any meeting where a bylaw amendment is proposed must be sent to all members 10 to 50 days in advance. It also mandates that meetings of the board and association be open to all members.

• A.R.S. § 33-1804(F): The legislative intent of the Open Meeting Law is to promote transparency. Petitioner cited a message from Governor Ducey stating that such laws “provide residents the opportunity to resolve issues as a community rather than seek government intervention.”

• Powell v. Washburn (2006): The Arizona Supreme Court held that restrictive covenants (including Bylaws) must be interpreted to give effect to the intention of the parties based on the document in its entirety.

Findings of Fact regarding Authority

The ALJ identified several factors that invalidated the Board’s unilateral action:

1. Differentiated Terminology: The Bylaws consistently use “Directors” when referring to the Board and “Members” when referring to the homeowners. Article VI, Section 3 explicitly uses “Directors” to define a quorum for the Board, while Article XIII uses “members.”

2. Absence of Express Power: Article VII, which outlines the “Powers and Duties of the Board of Directors,” does not expressly grant the Board the authority to amend Bylaws. This power is reserved for the membership.

3. Lack of Notice: No Association members were present at the November 20, 2017, meeting, and no notice was provided to the general membership regarding a proposed amendment to the Bylaws as required by A.R.S. § 33-1804(B).

Conclusions of Law

The ALJ concluded that the Petitioner sustained the burden of proof by a preponderance of the evidence. The final legal determinations were:

• Avoidance of Absurdity: Bylaws must be construed to avoid an absurdity. The ALJ stated, “The voices of few cannot speak for all, unless all have bestowed those few with the power and authority to speak on their behalf.”

• Violation of Statute: The Board’s action violated A.R.S. § 33-1804(B) due to the lack of transparency and failure to provide notice of a bylaw amendment.

• Violation of Governing Documents: The Board acted outside the authority granted to it by the Bylaws, specifically Article III and Article XIII.

Final Order and Penalties

The Administrative Law Judge issued the following orders:

1. Invalidation: The third amendment to the Association Bylaws, enacted on November 20, 2017, is null and void.

2. Restitution of Fees: The Respondent must pay the Petitioner the cost of his filing fee.

3. Civil Penalty: The Respondent was ordered to pay a sum of $250.00 to the Planned Community Hearing Office Fund as a penalty for the violations.

4. Binding Nature: Following the rehearing, the order became binding, with the only further recourse being judicial review in the Superior Court within 35 days.






Study Guide – 19F-H1918001-REL-RHG


Study Guide: Janicek v. Sycamore Vista No. 8 Homeowners Association

This study guide provides a comprehensive review of the legal proceedings between Jay A. Janicek and the Sycamore Vista No. 8 Homeowners Association. It examines the interpretation of governing documents, the application of Arizona Revised Statutes regarding homeowners’ associations, and the limits of a Board of Directors’ authority to amend bylaws.

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Part I: Short-Answer Quiz

Instructions: Answer the following questions in two to three sentences based on the provided legal documents.

1. Who are the primary parties involved in this administrative hearing, and what is their relationship?

2. What specific action taken by the Board of Directors on November 20, 2017, triggered this dispute?

3. How did the Petitioner define the term “member” according to the Association’s governing documents?

4. What was the Respondent’s primary argument regarding the interpretation of Article XIII, Section 1 of the Bylaws?

5. According to ARIZ. REV. STAT. § 33-1804(B), what must a notice of a membership meeting include if a bylaw amendment is proposed?

6. Why did the Petitioner argue that the use of the word “proxy” in the Bylaws supported his interpretation that only general members could amend the Bylaws?

7. What is the legal significance of the Covenants, Conditions, and Restrictions (CC&Rs) in the context of the relationship between an HOA and a property owner?

8. What was the “preponderance of the evidence” standard used by the Administrative Law Judge to reach a decision?

9. What specific penalties and orders were issued against the Respondent in the final decision?

10. What reason did the Administrative Law Judge give for concluding that the Board’s interpretation of the Bylaws was incorrect?

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Part II: Answer Key

1. Who are the primary parties involved in this administrative hearing, and what is their relationship? The Petitioner is Jay A. Janicek, a property owner and member of the Sycamore Vista subdivision. The Respondent is the Sycamore Vista No. 8 Homeowners Association, the entity responsible for governing the residential development where the Petitioner’s property is located.

2. What specific action taken by the Board of Directors on November 20, 2017, triggered this dispute? The Board voted to approve a third amendment to the Association’s Bylaws during a regular meeting. This amendment replaced a requirement for a full annual audit by a public accountant with a choice of an audit, review, or compilation to be completed within 180 days of the fiscal year-end.

3. How did the Petitioner define the term “member” according to the Association’s governing documents? The Petitioner asserted that “Member” refers to those persons entitled to membership as defined in the Declaration, specifically every lot owner. He argued that this definition distinguishes general property owners from the “Directors” who serve on the Board.

4. What was the Respondent’s primary argument regarding the interpretation of Article XIII, Section 1 of the Bylaws? The Respondent argued that the term “members” in Article XIII referred specifically to members of the Board of Directors rather than the general membership. They contended that since the word was not capitalized, it authorized the Board to amend Bylaws at any meeting where a quorum of directors was present.

5. According to ARIZ. REV. STAT. § 33-1804(B), what must a notice of a membership meeting include if a bylaw amendment is proposed? The statute requires that notice be sent to every owner 10 to 50 days in advance of the meeting, stating the date, time, and place. Crucially, the notice must also state the purpose of the meeting, including the general nature of any proposed amendments to the declaration or bylaws.

6. Why did the Petitioner argue that the use of the word “proxy” in the Bylaws supported his interpretation that only general members could amend the Bylaws? The Petitioner noted that the Bylaws allow for voting by “proxy,” a mechanism defined in Article III as applying to votes of the general membership. He argued that because Board members are legally prohibited from voting by proxy, the inclusion of the term in the amendment section proved the section applied to general members.

7. What is the legal significance of the Covenants, Conditions, and Restrictions (CC&Rs) in the context of the relationship between an HOA and a property owner? The CC&Rs constitute an enforceable contract between the Association and each individual property owner. By purchasing a residential unit within the development, the buyer agrees to be bound by the terms, powers, and restrictions outlined in these recorded documents.

8. What was the “preponderance of the evidence” standard used by the Administrative Law Judge to reach a decision? This standard requires the Petitioner to prove that his contention is “more probably true than not.” It is defined as the greater weight of the evidence or evidence that possesses the most convincing force, rather than the absolute removal of all doubt.

9. What specific penalties and orders were issued against the Respondent in the final decision? The Administrative Law Judge invalidated the third amendment to the Bylaws and ordered the Respondent to pay a $250.00 civil penalty to the Planned Community Hearing Office Fund. Additionally, the Respondent was ordered to reimburse the Petitioner for his initial filing fee.

10. What reason did the Administrative Law Judge give for concluding that the Board’s interpretation of the Bylaws was incorrect? The Judge ruled that bylaws must be construed to avoid “absurdity” and that the “voices of few cannot speak for all” without express authority. The governing documents clearly differentiated between “members” (owners) and “directors,” and the Board lacked the power to act where authority was reserved for the membership.

——————————————————————————–

Part III: Essay Questions

Instructions: Use the provided source context to develop comprehensive responses to the following prompts.

1. The Distinction Between “Members” and “Directors”: Analyze how the specific terminology used in the Sycamore Vista No. 8 Bylaws (Articles II, III, VI, and XIII) influenced the Administrative Law Judge’s decision. How does the consistent use of these terms throughout the document prevent the Board from claiming the powers of the general membership?

2. Statutory Compliance and Transparency: Discuss the importance of ARIZ. REV. STAT. § 33-1804 (the Open Meeting Law) as it relates to this case. Use Governor Ducey’s message regarding H.B. 2411 to explain the legislative intent behind ensuring transparency and participation in HOA governance.

3. The Role of the Office of Administrative Hearings (OAH): Explain the procedural path of this dispute, from the initial petition to the Department of Real Estate to the final rehearing. What is the scope of the OAH’s authority in interpreting contracts between homeowners and associations?

4. Contractual Interpretation and the “Powell v. Washburn” Precedent: Discuss the significance of the Arizona Supreme Court’s holding in Powell v. Washburn regarding restrictive covenants. How does the requirement to give effect to the “intention of the parties” apply to the interpretation of HOA Bylaws?

5. Limits of Board Authority: Based on the Findings of Fact and Conclusions of Law, evaluate the boundaries of a Board of Directors’ power. Under what circumstances can a Board exercise “all powers, duties, and authority” of the Association, and what serves as the definitive limit to that power?

——————————————————————————–

Part IV: Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

A presiding officer who hears evidence and issues decisions in contested cases involving state agencies.

ARIZ. REV. STAT. § 33-1804

The Arizona statute governing open meetings, notice requirements, and transparency for planned community associations.

Bylaws

The internal rules and regulations that govern the administration and management of an association.

Covenants, Conditions, and Restrictions; the recorded legal documents that establish the rules for a planned community and create a contract between owners and the HOA.

Civil Penalty

A financial fine imposed by a government agency or tribunal as a punishment for a violation of statutes or regulations.

Declarant

The original developer or entity that established the residential subdivision and its governing documents.

Declaration

The primary governing document that defines membership and property rights within a homeowners’ association.

Member

Defined in the source context as a property owner within the Sycamore Vista subdivision who is entitled to membership in the Association.

The Office of Administrative Hearings; an independent state agency that conducts evidentiary hearings for contested cases.

Petitioner

The party who initiates a legal action or petition (in this case, Jay A. Janicek).

Preponderance of the Evidence

The legal standard of proof required in this case, meaning a contention is “more probably true than not.”

A written authorization allowing one person to act or vote on behalf of another, specifically used by Association members.

Quorum

The minimum number of members or directors required to be present at a meeting to legally transact business.

Respondent

The party against whom a legal action or petition is filed (in this case, Sycamore Vista No. 8 HOA).

Restrictive Covenants

Provisions in a deed or other recorded document that limit the use of property and are interpreted to give effect to the intention of the parties.






Blog Post – 19F-H1918001-REL-RHG


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{
“case”: {
“docket_no”: “19F-H1918001-REL-RHG”,
“case_title”: “Jay A. Janicek, Petitioner, vs. Sycamore Vista No. 8 Homeowners Association (FKA New Tucson Unit No. 8 Homeowners Association, Inc.), Respondent.”,
“decision_date”: “March 25, 2019”,
“tribunal”: “OAH”,
“agency”: “ADRE”
},
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{
“name”: “Jay A. Janicek”,
“role”: “petitioner”,
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{
“name”: “Jenna Clark”,
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“notes”: null
},
{
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},
{
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{
“name”: “Caleb Rhodes”,
“role”: “observer”,
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{
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“name”: “Judy Lowe”,
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},
{
“name”: “Andrew F. Vizcarra”,
“role”: “property manager”,
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“affiliation”: “Tucson Realty & Trust Co. Management”,
“notes”: “Listed as representative for service of process for Respondent HOA.”
},
{
“name”: “Maxwell T. Riddiough”,
“role”: “HOA attorney”,
“side”: “respondent”,
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“notes”: null
}
]
}

{ “case”: { “agency”: “ADRE”, “tribunal”: “OAH”, “docket_no”: “19F-H1918001-REL”, “case_title”: “Jay A. Janicek vs. Sycamore Vista No. 8 Homeowners Association”, “decision_date”: “2019-03-25”, “alj_name”: “Jenna Clark” }, “parties”: [ { “party_id”: “P1”, “role”: “petitioner”, “name”: “Jay A. Janicek”, “party_type”: “homeowner”, “email”: null, “phone”: null, “attorney_name”: “Jake Kubert”, “attorney_firm”: “Dessaules Law Group”, “attorney_email”: null, “attorney_phone”: null }, { “party_id”: “R1”, “role”: “respondent”, “name”: “Sycamore Vista No. 8 Homeowners Association”, “party_type”: “HOA”, “email”: null, “phone”: null, “attorney_name”: “Evan Thompson”, “attorney_firm”: “Thompson Krone, P.L.C.”, “attorney_email”: null, “attorney_phone”: null } ], “issues”: [ { “issue_id”: “ISS-001”, “type”: “statute_and_bylaws”, “citation”: “ARIZ. REV. STAT. § 33-1804(B); Association Bylaws Article III, Sections 3 & 4; Association Bylaws Article VIII, Section 1”, “caption”: “Whether Sycamore Vista No. 8 Homeowners Association (Respondent) violated Association Bylaws Article III, Sections 3 & 4 and Article VIII, Section 1 in an action taken by the board on November 20, 2017.”, “violation(s)”: “Violation of ARIZ. REV. STAT. § 33-1804(B) and Association Bylaws Article III by amending the Bylaws on November 20, 2017, without proper notice and a vote of the Association membership.”, “summary”: “The Board of Directors attempted a third amendment to the Bylaws on November 20, 2017, specifically changing the requirements for the Association’s financial review (audit, review, or compilation)12. The ALJ concluded that this action was invalid because it was taken in the absence of a quorum of Association members voting in favor of the amendment, violating both the Bylaws and statutory notice requirements34.”, “outcome”: “petitioner_win”, “filing_fee_paid”: 500.0, “filing_fee_refunded”: true, “civil_penalty_amount”: 250.0, “orders_summary”: “The petition was granted. The third amendment to the Association Bylaws taken on November 20, 2017, was invalidated. Respondent was ordered to pay the Petitioner the filing fee required by ARIZ. REV. STAT. § 32-2199.01 and pay a civil penalty of $250.00 to the Planned Community Hearing Office Fund56.”, “why_the_loss”: null, “cited”: [ “ARIZ. REV. STAT. § 33-1804(B)”, “Association Bylaws Article III” ] } ], “money_summary”: { “issues_count”: 1, “total_filing_fees_paid”: 500.0, “total_filing_fees_refunded”: 500.0, “total_civil_penalties”: 250.0 }, “outcomes”: { “petitioner_is_hoa”: false, “petitioner_win”: “total”, “summarize_judgement”: “The ALJ granted the petition, concluding that the HOA Board’s unilateral amendment of the Bylaws on November 20, 2017, was an invalid action taken without the required vote of the Association members and without statutory notice, violating ARIZ. REV. STAT. § 33-1804(B) and the Association’s governing documents47. The amendment was invalidated, and the Respondent was ordered to refund the Petitioner’s filing fee and pay a $250.00 civil penalty56.”, “why_the_loss”: null }, “analytics”: { “cited”: [ “ARIZ. REV. STAT. § 33-1804(B)”, “ARIZ. REV. STAT. § 32-2199.02(A)”, “ARIZ. REV. STAT. § 32-2199.05”, “Powell v. Washburn, 125 P.3d 373 (Ariz. 2006)”, “Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)” ], “tags”: [ “HOA Governance”, “Bylaws Amendment”, “Open Meeting Law”, “ARS 33-1804”, “Membership Vote”, “Filing Fee Refund” ] } }

{ “rehearing”:{ “is_rehearing”:true, “base_case_id”:”19F-H1918001-REL”, “original_decision_status”:”affirmed”, “original_decision_summary”:”The original ALJ decision, issued on September 25, 2018, granted the Petitioner’s request, finding that the Sycamore Vista No. 8 Homeowners Association Board violated ARIZ. REV. STAT. § 33-1804(B) and Association Bylaws by unilaterally amending the Bylaws on November 20, 2017, without first calling for a vote by the Association members1,2,3. The order invalidated the amendment, required the Respondent to refund the Petitioner’s filing fee, and imposed a civil penalty of $250.004,5.”, “rehearing_decision_summary”:”The Department granted Respondent’s request for a rehearing, which was held on March 5, 20196,7. The ALJ affirmed the original decision, concluding that the Board’s action on November 20, 2017, violated ARIZ. REV. STAT. § 33-1804(B) and Article III of the Association Bylaws because the action was taken in the absence of a quorum of Association members voting in favor of the proposed amendment8. The rehearing order re-granted the petition, invalidated the third amendment, and reaffirmed the orders for the filing fee refund and the $250.00 civil penalty8,9.”, “issues_challenged”:[ { “issue_id”: “ISS-001”, “summary”: “Whether the HOA Board violated Association Bylaws Article III, Sections 3 & 4 and Article VIII, Section 1, and ARIZ. REV. STAT. § 33-1804(B) in an action taken to amend the Bylaws on November 20, 201710.”, “outcome”: “affirmed_petitioner_win” } ] } }

{
“case”: {
“docket_no”: “19F-H1918001-REL”,
“case_title”: “Jay A. Janicek, Petitioner, vs. Sycamore Vista No. 8 Homeowners Association (FKA New Tucson Unit No. 8 Homeowners Association, Inc.), Respondent.”,
“decision_date”: “2019-03-25”,
“tribunal”: “OAH”,
“agency”: “ADRE”
},
“individuals”: [
{
“name”: “Jay A. Janicek”,
“role”: “petitioner”,
“side”: “petitioner”,
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},
{
“name”: “Jenna Clark”,
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“affiliation”: “Office of Administrative Hearings”,
“notes”: null
},
{
“name”: “Evan Thompson”,
“role”: “HOA attorney”,
“side”: “respondent”,
“affiliation”: “Thompson Krone, P.L.C.”,
“notes”: null
},
{
“name”: “Jake Kubert”,
“role”: “petitioner attorney”,
“side”: “petitioner”,
“affiliation”: “Dessaules Law Group”,
“notes”: null
},
{
“name”: “Maxwell T. Riddiough”,
“role”: “HOA attorney”,
“side”: “respondent”,
“affiliation”: “Thompson Krone, P.L.C.”,
“notes”: null
},
{
“name”: “Andrew F. Vizcarra”,
“role”: “property manager”,
“side”: “respondent”,
“affiliation”: “Tucson Realty & Trust Co. Management”,
“notes”: “Listed as contact for Respondent HOA”
},
{
“name”: “Judy Lowe”,
“role”: “Commissioner”,
“side”: “neutral”,
“affiliation”: “Arizona Department of Real Estate”,
“notes”: null
},
{
“name”: “Dennis Legere”,
“role”: “observer”,
“side”: “unknown”,
“affiliation”: null,
“notes”: null
},
{
“name”: “Becky Nutt”,
“role”: “observer”,
“side”: “unknown”,
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“notes”: null
},
{
“name”: “Caleb Rhodes”,
“role”: “observer”,
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“notes”: null
}
]
}

The matter, Jay A. Janicek vs. Sycamore Vista No. 8 Homeowners Association (Case No. 19F-H1918001-REL-RHG), involves a dispute over the validity of a Bylaw amendment passed by the homeowners’ association (HOA) Board of Directors12. The inclusion of ‘RHG’ in the case number confirms that the final decision resulted from a rehearing requested by the Respondent Association23.

Procedural History: The initial evidentiary hearing was held on September 5, 201824. The Administrative Law Judge (ALJ) issued a decision on September 24, 2018, granting the Petitioner’s request35. The Respondent requested and was granted a rehearing by the Department of Real Estate on November 7, 201836. The rehearing was held on March 5, 2019, where no new evidence was introduced, and the parties presented legal briefs and closing arguments2….

Key Facts and Core Issue: The dispute centered on the validity of the Board’s third amendment to the Association Bylaws, approved on November 20, 2017910. This amendment changed the financial oversight requirement from an annual audit by a public accountant to an annual audit, review, or compilation of financial records1112.

The main legal issue was whether the Board had the authority to unilaterally amend the Bylaws without a vote of the general membership and whether the Board violated ARIZ. REV. STAT. § 33-1804(B), concerning notice requirements for member meetings3…. The determination hinged on the interpretation of Bylaws Article XIII, Section 1, which permits amendments “by a vote of a majority of a quorum of members present in person or by proxy”1617.

Key Arguments: Petitioner Jay Janicek argued that the term “members” in Article XIII referred exclusively to the Association owners, as supported by the Bylaws’ definition of “Member” and the use of the term “proxy” (which applies to owners, not directors)14…. Petitioner asserted that since the Board acted without calling for a member vote and without statutory notice of the proposed amendment, the action was invalid and violated A.R.S. § 33-1804(B)14….

The Association argued that, based on reading the Bylaws in their entirety, the term “members” in Article XIII referred to the Board of Directors, particularly since the amendment was to occur at a meeting of the Board of Directors24….

Rehearing Decision and Outcome: In both the original decision and the rehearing decision, the ALJ reached the same conclusion, finding that the Petitioner sustained the burden of proof2728. The ALJ determined that the Association’s governing documents clearly differentiate between “members” (the body of owners) and “directors” (the elected Board)28…. The Board lacked the power to amend the Bylaws when that authority was delegated to the membership2930.

The ALJ concluded that the Board’s action on November 20, 2017, violated ARIZ. REV. STAT. § 33-1804(B) and Article III of the Association Bylaws because the amendment was adopted in the absence of a quorum of Association members voting in favor3132.

The final outcome of the rehearing was that the Petitioner’s petition was granted32. The Board’s third amendment to the Bylaws was invalidated532. Additionally, the Respondent Association was ordered to pay the Petitioner’s filing fee and a civil penalty of $250.00 for the violation533.


Case Participants

Petitioner Side

  • Jay A. Janicek (petitioner)
    Appeared on own behalf at initial hearing; Observed at rehearing.
  • Jake Kubert (petitioner attorney)
    Dessaules Law Group

Respondent Side

  • Evan Thompson (HOA attorney)
    Thompson Krone, P.L.C.
  • Maxwell T. Riddiough (HOA attorney)
    Thompson Krone, P.L.C.
  • Andrew F. Vizcarra (property manager)
    Tucson Realty & Trust Co. Management
    Listed as contact for Respondent HOA

Neutral Parties

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

Other Participants

  • Dennis Legere (observer)
  • Becky Nutt (observer)
  • Caleb Rhodes (observer)

Jay A. Janicek v. Sycamore Vista No. 8 Homeowners

Posted on by
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.

Case Summary

Case ID 19F-H1918001-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-03-25
Administrative Law Judge Jenna Clark
Outcome total
Filing Fees Refunded $500.00
Civil Penalties $250.00

Parties & Counsel

Petitioner Jay A. Janicek Counsel Jake Kubert
Respondent Sycamore Vista No. 8 Homeowners Association Counsel Evan Thompson

Alleged Violations

ARIZ. REV. STAT. § 33-1804(B); Association Bylaws Article III, Sections 3 & 4; Association Bylaws Article VIII, Section 1

Outcome Summary

The ALJ granted the petition, concluding that the HOA Board’s unilateral amendment of the Bylaws on November 20, 2017, was an invalid action taken without the required vote of the Association members and without statutory notice, violating ARIZ. REV. STAT. § 33-1804(B) and the Association’s governing documents. The amendment was invalidated, and the Respondent was ordered to refund the Petitioner's filing fee and pay a $250.00 civil penalty.

Key Issues & Findings

Whether Sycamore Vista No. 8 Homeowners Association (Respondent) violated Association Bylaws Article III, Sections 3 & 4 and Article VIII, Section 1 in an action taken by the board on November 20, 2017.

The Board of Directors attempted a third amendment to the Bylaws on November 20, 2017, specifically changing the requirements for the Association's financial review (audit, review, or compilation). The ALJ concluded that this action was invalid because it was taken in the absence of a quorum of Association members voting in favor of the amendment, violating both the Bylaws and statutory notice requirements.

Orders: The petition was granted. The third amendment to the Association Bylaws taken on November 20, 2017, was invalidated. Respondent was ordered to pay the Petitioner the filing fee required by ARIZ. REV. STAT. § 32-2199.01 and pay a civil penalty of $250.00 to the Planned Community Hearing Office Fund.

Filing fee: $500.00, Fee refunded: Yes, Civil penalty: $250.00

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. § 33-1804(B)
  • Association Bylaws Article III

Analytics Highlights

Topics: HOA Governance, Bylaws Amendment, Open Meeting Law, ARS 33-1804, Membership Vote, Filing Fee Refund
Additional Citations:

  • ARIZ. REV. STAT. § 33-1804(B)
  • ARIZ. REV. STAT. § 32-2199.02(A)
  • ARIZ. REV. STAT. § 32-2199.05
  • Powell v. Washburn, 125 P.3d 373 (Ariz. 2006)
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

Video Overview

Audio Overview

Decision Documents

19F-H1918001-REL-RHG Decision – 696205.pdf

Uploaded 2025-10-09T03:33:15 (169.8 KB)

19F-H1918001-REL-RHG Decision – ../19F-H1918001-REL/661797.pdf

Uploaded 2026-01-20T13:48:23 (143.2 KB)





Briefing Doc – 19F-H1918001-REL-RHG


Briefing Document: Janicek v. Sycamore Vista No. 8 Homeowners Association

Executive Summary

This document synthesizes the findings and legal conclusions from the administrative hearings regarding a dispute between Jay A. Janicek (“Petitioner”) and the Sycamore Vista No. 8 Homeowners Association (“Respondent” or “the Association”). The central issue was whether the Association’s Board of Directors acted outside its authority by unilaterally amending the Association’s Bylaws during a Board meeting on November 20, 2017, without a vote from the general membership.

The Administrative Law Judge (ALJ) determined that the Board’s action violated both the Association’s governing documents and Arizona Revised Statutes (A.R.S. § 33-1804). The ruling emphasized that the term “members” in the Bylaws refers specifically to the body of property owners, not the Board of Directors. Consequently, the third amendment to the Bylaws was invalidated, and the Association was ordered to pay a civil penalty and refund the Petitioner’s filing fees. A rehearing in March 2019 reconfirmed these findings, underscoring the necessity of transparency and membership participation in homeowners’ association governance.

Case Overview and Procedural History

Key Fact

Detail

Case Number

19F-H1918001-REL; 19F-H1918001-REL-RHG (Rehearing)

Petitioner

Jay A. Janicek (Sycamore Vista property owner)

Respondent

Sycamore Vista No. 8 Homeowners Association

Initial Hearing Date

September 05, 2018

Initial Decision Date

September 24, 2018

Rehearing Date

March 05, 2019

Final Order Date

March 25, 2019

The Department of Real Estate referred the matter to the Office of Administrative Hearings (OAH) following a petition filed by Mr. Janicek on July 25, 2018. The Respondent initially declined to present witnesses or exhibits, choosing to rely on a dispute over textual interpretation. Following an initial ruling in favor of the Petitioner, the Respondent requested a rehearing, which was granted but ultimately resulted in the same conclusion.

The Core Dispute: Bylaw Amendment Authority

The conflict arose from a Board meeting held on November 20, 2017. During this meeting, the Board voted to approve a third amendment to the Association’s Bylaws.

The Specific Amendment

The Board modified Article VIII, Section 6(d). The original text required the Board to:

• “…cause an annual audit of the Association books to be made by a public accountant at the completion of each fiscal year.”

The Board replaced this with language allowing for:

• “…an annual audit, review, or compilation of the Associations financial records to be made by a public accountant within 180 days after the end of the HOA’s fiscal year.”

Conflicting Interpretations of “Members”

The primary legal dispute centered on the interpretation of Bylaws Article XIII, Section 1, which states:

“These Bylaws may be amended at a regular or special meeting of the Board of Directors of the Association by a vote of a majority of a quorum of members present in person or by proxy.” (Emphasis added).

• Petitioner’s Position: “Members” refers to the general membership of the Association (property owners), as defined in Article II, Section 7 and the Declaration. Petitioner argued that the use of “proxy” in this section further proves it refers to members, as Board Directors are not permitted to vote by proxy.

• Respondent’s Position: “Members” refers to the members of the Board of Directors. The Association argued that because the word was not capitalized in Article XIII, it authorized the Board to amend Bylaws at their own meetings, provided a quorum of Directors was present.

Legal Analysis and Evidence

Governing Statutes and Case Law

The ALJ’s decision was informed by Arizona law and established legal principles:

• A.R.S. § 33-1804 (Open Meeting Law): This statute requires that notice of any meeting where a bylaw amendment is proposed must be sent to all members 10 to 50 days in advance. It also mandates that meetings of the board and association be open to all members.

• A.R.S. § 33-1804(F): The legislative intent of the Open Meeting Law is to promote transparency. Petitioner cited a message from Governor Ducey stating that such laws “provide residents the opportunity to resolve issues as a community rather than seek government intervention.”

• Powell v. Washburn (2006): The Arizona Supreme Court held that restrictive covenants (including Bylaws) must be interpreted to give effect to the intention of the parties based on the document in its entirety.

Findings of Fact regarding Authority

The ALJ identified several factors that invalidated the Board’s unilateral action:

1. Differentiated Terminology: The Bylaws consistently use “Directors” when referring to the Board and “Members” when referring to the homeowners. Article VI, Section 3 explicitly uses “Directors” to define a quorum for the Board, while Article XIII uses “members.”

2. Absence of Express Power: Article VII, which outlines the “Powers and Duties of the Board of Directors,” does not expressly grant the Board the authority to amend Bylaws. This power is reserved for the membership.

3. Lack of Notice: No Association members were present at the November 20, 2017, meeting, and no notice was provided to the general membership regarding a proposed amendment to the Bylaws as required by A.R.S. § 33-1804(B).

Conclusions of Law

The ALJ concluded that the Petitioner sustained the burden of proof by a preponderance of the evidence. The final legal determinations were:

• Avoidance of Absurdity: Bylaws must be construed to avoid an absurdity. The ALJ stated, “The voices of few cannot speak for all, unless all have bestowed those few with the power and authority to speak on their behalf.”

• Violation of Statute: The Board’s action violated A.R.S. § 33-1804(B) due to the lack of transparency and failure to provide notice of a bylaw amendment.

• Violation of Governing Documents: The Board acted outside the authority granted to it by the Bylaws, specifically Article III and Article XIII.

Final Order and Penalties

The Administrative Law Judge issued the following orders:

1. Invalidation: The third amendment to the Association Bylaws, enacted on November 20, 2017, is null and void.

2. Restitution of Fees: The Respondent must pay the Petitioner the cost of his filing fee.

3. Civil Penalty: The Respondent was ordered to pay a sum of $250.00 to the Planned Community Hearing Office Fund as a penalty for the violations.

4. Binding Nature: Following the rehearing, the order became binding, with the only further recourse being judicial review in the Superior Court within 35 days.






Study Guide – 19F-H1918001-REL-RHG


Study Guide: Janicek v. Sycamore Vista No. 8 Homeowners Association

This study guide provides a comprehensive review of the legal proceedings between Jay A. Janicek and the Sycamore Vista No. 8 Homeowners Association. It examines the interpretation of governing documents, the application of Arizona Revised Statutes regarding homeowners’ associations, and the limits of a Board of Directors’ authority to amend bylaws.

——————————————————————————–

Part I: Short-Answer Quiz

Instructions: Answer the following questions in two to three sentences based on the provided legal documents.

1. Who are the primary parties involved in this administrative hearing, and what is their relationship?

2. What specific action taken by the Board of Directors on November 20, 2017, triggered this dispute?

3. How did the Petitioner define the term “member” according to the Association’s governing documents?

4. What was the Respondent’s primary argument regarding the interpretation of Article XIII, Section 1 of the Bylaws?

5. According to ARIZ. REV. STAT. § 33-1804(B), what must a notice of a membership meeting include if a bylaw amendment is proposed?

6. Why did the Petitioner argue that the use of the word “proxy” in the Bylaws supported his interpretation that only general members could amend the Bylaws?

7. What is the legal significance of the Covenants, Conditions, and Restrictions (CC&Rs) in the context of the relationship between an HOA and a property owner?

8. What was the “preponderance of the evidence” standard used by the Administrative Law Judge to reach a decision?

9. What specific penalties and orders were issued against the Respondent in the final decision?

10. What reason did the Administrative Law Judge give for concluding that the Board’s interpretation of the Bylaws was incorrect?

——————————————————————————–

Part II: Answer Key

1. Who are the primary parties involved in this administrative hearing, and what is their relationship? The Petitioner is Jay A. Janicek, a property owner and member of the Sycamore Vista subdivision. The Respondent is the Sycamore Vista No. 8 Homeowners Association, the entity responsible for governing the residential development where the Petitioner’s property is located.

2. What specific action taken by the Board of Directors on November 20, 2017, triggered this dispute? The Board voted to approve a third amendment to the Association’s Bylaws during a regular meeting. This amendment replaced a requirement for a full annual audit by a public accountant with a choice of an audit, review, or compilation to be completed within 180 days of the fiscal year-end.

3. How did the Petitioner define the term “member” according to the Association’s governing documents? The Petitioner asserted that “Member” refers to those persons entitled to membership as defined in the Declaration, specifically every lot owner. He argued that this definition distinguishes general property owners from the “Directors” who serve on the Board.

4. What was the Respondent’s primary argument regarding the interpretation of Article XIII, Section 1 of the Bylaws? The Respondent argued that the term “members” in Article XIII referred specifically to members of the Board of Directors rather than the general membership. They contended that since the word was not capitalized, it authorized the Board to amend Bylaws at any meeting where a quorum of directors was present.

5. According to ARIZ. REV. STAT. § 33-1804(B), what must a notice of a membership meeting include if a bylaw amendment is proposed? The statute requires that notice be sent to every owner 10 to 50 days in advance of the meeting, stating the date, time, and place. Crucially, the notice must also state the purpose of the meeting, including the general nature of any proposed amendments to the declaration or bylaws.

6. Why did the Petitioner argue that the use of the word “proxy” in the Bylaws supported his interpretation that only general members could amend the Bylaws? The Petitioner noted that the Bylaws allow for voting by “proxy,” a mechanism defined in Article III as applying to votes of the general membership. He argued that because Board members are legally prohibited from voting by proxy, the inclusion of the term in the amendment section proved the section applied to general members.

7. What is the legal significance of the Covenants, Conditions, and Restrictions (CC&Rs) in the context of the relationship between an HOA and a property owner? The CC&Rs constitute an enforceable contract between the Association and each individual property owner. By purchasing a residential unit within the development, the buyer agrees to be bound by the terms, powers, and restrictions outlined in these recorded documents.

8. What was the “preponderance of the evidence” standard used by the Administrative Law Judge to reach a decision? This standard requires the Petitioner to prove that his contention is “more probably true than not.” It is defined as the greater weight of the evidence or evidence that possesses the most convincing force, rather than the absolute removal of all doubt.

9. What specific penalties and orders were issued against the Respondent in the final decision? The Administrative Law Judge invalidated the third amendment to the Bylaws and ordered the Respondent to pay a $250.00 civil penalty to the Planned Community Hearing Office Fund. Additionally, the Respondent was ordered to reimburse the Petitioner for his initial filing fee.

10. What reason did the Administrative Law Judge give for concluding that the Board’s interpretation of the Bylaws was incorrect? The Judge ruled that bylaws must be construed to avoid “absurdity” and that the “voices of few cannot speak for all” without express authority. The governing documents clearly differentiated between “members” (owners) and “directors,” and the Board lacked the power to act where authority was reserved for the membership.

——————————————————————————–

Part III: Essay Questions

Instructions: Use the provided source context to develop comprehensive responses to the following prompts.

1. The Distinction Between “Members” and “Directors”: Analyze how the specific terminology used in the Sycamore Vista No. 8 Bylaws (Articles II, III, VI, and XIII) influenced the Administrative Law Judge’s decision. How does the consistent use of these terms throughout the document prevent the Board from claiming the powers of the general membership?

2. Statutory Compliance and Transparency: Discuss the importance of ARIZ. REV. STAT. § 33-1804 (the Open Meeting Law) as it relates to this case. Use Governor Ducey’s message regarding H.B. 2411 to explain the legislative intent behind ensuring transparency and participation in HOA governance.

3. The Role of the Office of Administrative Hearings (OAH): Explain the procedural path of this dispute, from the initial petition to the Department of Real Estate to the final rehearing. What is the scope of the OAH’s authority in interpreting contracts between homeowners and associations?

4. Contractual Interpretation and the “Powell v. Washburn” Precedent: Discuss the significance of the Arizona Supreme Court’s holding in Powell v. Washburn regarding restrictive covenants. How does the requirement to give effect to the “intention of the parties” apply to the interpretation of HOA Bylaws?

5. Limits of Board Authority: Based on the Findings of Fact and Conclusions of Law, evaluate the boundaries of a Board of Directors’ power. Under what circumstances can a Board exercise “all powers, duties, and authority” of the Association, and what serves as the definitive limit to that power?

——————————————————————————–

Part IV: Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

A presiding officer who hears evidence and issues decisions in contested cases involving state agencies.

ARIZ. REV. STAT. § 33-1804

The Arizona statute governing open meetings, notice requirements, and transparency for planned community associations.

Bylaws

The internal rules and regulations that govern the administration and management of an association.

Covenants, Conditions, and Restrictions; the recorded legal documents that establish the rules for a planned community and create a contract between owners and the HOA.

Civil Penalty

A financial fine imposed by a government agency or tribunal as a punishment for a violation of statutes or regulations.

Declarant

The original developer or entity that established the residential subdivision and its governing documents.

Declaration

The primary governing document that defines membership and property rights within a homeowners’ association.

Member

Defined in the source context as a property owner within the Sycamore Vista subdivision who is entitled to membership in the Association.

The Office of Administrative Hearings; an independent state agency that conducts evidentiary hearings for contested cases.

Petitioner

The party who initiates a legal action or petition (in this case, Jay A. Janicek).

Preponderance of the Evidence

The legal standard of proof required in this case, meaning a contention is “more probably true than not.”

A written authorization allowing one person to act or vote on behalf of another, specifically used by Association members.

Quorum

The minimum number of members or directors required to be present at a meeting to legally transact business.

Respondent

The party against whom a legal action or petition is filed (in this case, Sycamore Vista No. 8 HOA).

Restrictive Covenants

Provisions in a deed or other recorded document that limit the use of property and are interpreted to give effect to the intention of the parties.






Blog Post – 19F-H1918001-REL-RHG


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{
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The matter, Jay A. Janicek vs. Sycamore Vista No. 8 Homeowners Association (Case No. 19F-H1918001-REL-RHG), involves a dispute over the validity of a Bylaw amendment passed by the homeowners’ association (HOA) Board of Directors12. The inclusion of ‘RHG’ in the case number confirms that the final decision resulted from a rehearing requested by the Respondent Association23.

Procedural History: The initial evidentiary hearing was held on September 5, 201824. The Administrative Law Judge (ALJ) issued a decision on September 24, 2018, granting the Petitioner’s request35. The Respondent requested and was granted a rehearing by the Department of Real Estate on November 7, 201836. The rehearing was held on March 5, 2019, where no new evidence was introduced, and the parties presented legal briefs and closing arguments2….

Key Facts and Core Issue: The dispute centered on the validity of the Board’s third amendment to the Association Bylaws, approved on November 20, 2017910. This amendment changed the financial oversight requirement from an annual audit by a public accountant to an annual audit, review, or compilation of financial records1112.

The main legal issue was whether the Board had the authority to unilaterally amend the Bylaws without a vote of the general membership and whether the Board violated ARIZ. REV. STAT. § 33-1804(B), concerning notice requirements for member meetings3…. The determination hinged on the interpretation of Bylaws Article XIII, Section 1, which permits amendments “by a vote of a majority of a quorum of members present in person or by proxy”1617.

Key Arguments: Petitioner Jay Janicek argued that the term “members” in Article XIII referred exclusively to the Association owners, as supported by the Bylaws’ definition of “Member” and the use of the term “proxy” (which applies to owners, not directors)14…. Petitioner asserted that since the Board acted without calling for a member vote and without statutory notice of the proposed amendment, the action was invalid and violated A.R.S. § 33-1804(B)14….

The Association argued that, based on reading the Bylaws in their entirety, the term “members” in Article XIII referred to the Board of Directors, particularly since the amendment was to occur at a meeting of the Board of Directors24….

Rehearing Decision and Outcome: In both the original decision and the rehearing decision, the ALJ reached the same conclusion, finding that the Petitioner sustained the burden of proof2728. The ALJ determined that the Association’s governing documents clearly differentiate between “members” (the body of owners) and “directors” (the elected Board)28…. The Board lacked the power to amend the Bylaws when that authority was delegated to the membership2930.

The ALJ concluded that the Board’s action on November 20, 2017, violated ARIZ. REV. STAT. § 33-1804(B) and Article III of the Association Bylaws because the amendment was adopted in the absence of a quorum of Association members voting in favor3132.

The final outcome of the rehearing was that the Petitioner’s petition was granted32. The Board’s third amendment to the Bylaws was invalidated532. Additionally, the Respondent Association was ordered to pay the Petitioner’s filing fee and a civil penalty of $250.00 for the violation533.


Case Participants

Petitioner Side

  • Jay A. Janicek (petitioner)
    Appeared on own behalf at initial hearing; Observed at rehearing.
  • Jake Kubert (petitioner attorney)
    Dessaules Law Group

Respondent Side

  • Evan Thompson (HOA attorney)
    Thompson Krone, P.L.C.
  • Maxwell T. Riddiough (HOA attorney)
    Thompson Krone, P.L.C.
  • Andrew F. Vizcarra (property manager)
    Tucson Realty & Trust Co. Management
    Listed as contact for Respondent HOA

Neutral Parties

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

Other Participants

  • Dennis Legere (observer)
  • Becky Nutt (observer)
  • Caleb Rhodes (observer)

Jay A. Janicek vs. Sycamore Vista NO. 8 Homeowners Association

Posted on by

Case Summary

Case ID 19F-H1918001-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-03-25
Administrative Law Judge Jenna Clark
Outcome total
Filing Fees Refunded $500.00
Civil Penalties $250.00

Parties & Counsel

Petitioner Jay A. Janicek Counsel Jake Kubert
Respondent Sycamore Vista No. 8 Homeowners Association Counsel Evan Thompson

Alleged Violations

ARIZ. REV. STAT. § 33-1804(B); Association Bylaws Article III, Sections 3 & 4; Association Bylaws Article VIII, Section 1

Outcome Summary

The ALJ granted the petition, concluding that the HOA Board’s unilateral amendment of the Bylaws on November 20, 2017, was an invalid action taken without the required vote of the Association members and without statutory notice, violating ARIZ. REV. STAT. § 33-1804(B) and the Association’s governing documents. The amendment was invalidated, and the Respondent was ordered to refund the Petitioner's filing fee and pay a $250.00 civil penalty.

Key Issues & Findings

Whether Sycamore Vista No. 8 Homeowners Association (Respondent) violated Association Bylaws Article III, Sections 3 & 4 and Article VIII, Section 1 in an action taken by the board on November 20, 2017.

The Board of Directors attempted a third amendment to the Bylaws on November 20, 2017, specifically changing the requirements for the Association's financial review (audit, review, or compilation). The ALJ concluded that this action was invalid because it was taken in the absence of a quorum of Association members voting in favor of the amendment, violating both the Bylaws and statutory notice requirements.

Orders: The petition was granted. The third amendment to the Association Bylaws taken on November 20, 2017, was invalidated. Respondent was ordered to pay the Petitioner the filing fee required by ARIZ. REV. STAT. § 32-2199.01 and pay a civil penalty of $250.00 to the Planned Community Hearing Office Fund.

Filing fee: $500.00, Fee refunded: Yes, Civil penalty: $250.00

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. § 33-1804(B)
  • Association Bylaws Article III

Analytics Highlights

Topics: HOA Governance, Bylaws Amendment, Open Meeting Law, ARS 33-1804, Membership Vote, Filing Fee Refund
Additional Citations:

  • ARIZ. REV. STAT. § 33-1804(B)
  • ARIZ. REV. STAT. § 32-2199.02(A)
  • ARIZ. REV. STAT. § 32-2199.05
  • Powell v. Washburn, 125 P.3d 373 (Ariz. 2006)
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

Video Overview

Audio Overview

Decision Documents

19F-H1918001-REL Decision – 661797.pdf

Uploaded 2026-01-23T17:25:37 (143.2 KB)

19F-H1918001-REL Decision – 696205.pdf

Uploaded 2026-01-23T17:25:40 (169.8 KB)





Briefing Doc – 19F-H1918001-REL


Briefing Document: Janicek v. Sycamore Vista No. 8 Homeowners Association

Executive Summary

This document provides a comprehensive analysis of the Administrative Law Judge (ALJ) Decision in the case of Jay A. Janicek v. Sycamore Vista No. 8 Homeowners Association (No. 19F-H1918001-REL-RHG). The central issue was the validity of a bylaw amendment enacted by the Association’s Board of Directors on November 20, 2017, without a vote of the general homeowner membership.

The ALJ ruled decisively in favor of the Petitioner, Jay Janicek, finding that the Board’s action was invalid. The decision hinged on a critical interpretation of the Association’s governing documents, concluding that the term “members” in the context of bylaw amendments unambiguously refers to the homeowner membership, not the Board of Directors. The ruling established that the Board does not have the authority to amend bylaws where that power is reserved for the membership.

Furthermore, the ALJ concluded that the Board’s action violated Arizona’s Open Meeting Law (A.R.S. § 33-1804) by failing to provide the required notice to homeowners for a meeting concerning a proposed bylaw amendment. As a result, the amendment was invalidated, and the Association was ordered to pay the Petitioner’s filing fee and a civil penalty of $250.

Case Background and Procedural History

Parties and Jurisdiction

• Petitioner: Jay A. Janicek, a property owner within the Sycamore Vista subdivision and a member of the Respondent Association.

• Respondent: Sycamore Vista No. 8 Homeowners Association (“the Association”), a homeowners’ association in Tucson, Arizona, governed by its Covenants, Conditions, and Restrictions (CC&Rs) and overseen by a Board of Directors.

• Adjudicating Body: The Arizona Office of Administrative Hearings (OAH), an independent state agency, which received the case on referral from the Arizona Department of Real Estate.

The Central Dispute

The core of the dispute was an action taken by the Association’s Board of Directors during a regular meeting on November 20, 2017. At this meeting, the Board, with three of five directors present, voted to approve a third amendment to the Association’s Bylaws. The amendment altered Article VIII Section 6(d), changing the requirement for an annual financial check from:

“cause an annual audit of the Association books to be made by a public accountant at the completion of each fiscal year”

“cause an annual audit, review, or compilation of the Associations financial records to be made by a public accountant within 180 days after the end of the HOA’s fiscal year.”

The Petitioner contended this action was invalid because it was undertaken without a vote of the general Association membership, as he believed the governing documents required.

Timeline of Adjudication

1. July 25, 2018: Petitioner files a petition with the Arizona Department of Real Estate.

2. September 05, 2018: An initial evidentiary hearing is held before the OAH.

3. September 25, 2018: The OAH issues an ALJ Decision in the Petitioner’s favor.

4. October 23, 2018: The Respondent submits a Request for Rehearing.

5. November 07, 2018: The Department grants the rehearing request and refers the matter back to the OAH.

6. March 05, 2019: A rehearing is conducted, based on legal briefs and closing arguments without new evidence.

7. March 25, 2019: The final ALJ Decision is issued, reaffirming the initial ruling in favor of the Petitioner.

Analysis of Governing Documents and Statutes

The case decision rested on the interpretation of specific articles within the Association’s Bylaws and relevant Arizona state statutes.

Key Bylaw Provisions

Article

Section

Description

Article IV

Section 1

States that the “affairs of this Association shall be managed by a Board of not less than three (3) nor more than five (5) directors.”

Article VI

Section 1

Establishes that regular meetings of the Board of Directors shall be held monthly without notice.

Article VI

Section 2

Governs special meetings of the Board, requiring not less than three days’ notice to each Director.

Article VI

Section 3

Defines a quorum for Board meetings as “a majority of the number of Directors.”

Article VII

Section 1

Outlines the Powers and Duties of the Board of Directors. This section does not explicitly grant the Board the power to amend the Bylaws.

Article XIII

Section 1

(The central provision in the dispute) States: “These Bylaws may be amended at a regular or special meeting of the Board of Directors of the Association by a vote of a majority of a quorum of members present in person or by proxy.”

Relevant Arizona Statutes

• A.R.S. § 33-1804 (Open Meeting Law): This statute was central to the Petitioner’s argument and the ALJ’s final decision.

◦ Subsection (A): Requires that all meetings of the members’ association and the board of directors be open to all members of the association.

◦ Subsection (B): Mandates specific notice requirements for any meeting of the members, stating that notice “shall also state the purpose for which the meeting is called, including the general nature of any proposed amendment to the declaration or bylaws.”

◦ Subsection (F): The ALJ noted that this section codifies the legislative intent of the statute, which, as cited from a Governor’s message, is to “promote transparency and participation for all residents in homeowners’ association governance.”

Arguments of the Parties

Petitioner’s Position (Jay Janicek)

The Petitioner’s case was built on a textual interpretation of the Bylaws and adherence to state law.

• Interpretation of “Members”: The Petitioner argued that the word “members” in Article XIII, Section 1 refers to the general homeowner membership of the Association, not the members of the Board of Directors.

• Textual Differentiation: The drafters of the Bylaws intentionally used the words “members” and “directors” distinctly throughout the document. Where the intent was to refer to the Board, the word “Director” was specifically used (e.g., Article VI).

• Proxy Voting: The inclusion of the term “proxy” in Article XIII supports the argument that the vote is for the general membership, as Board members are not permitted to vote by proxy.

• Lack of Explicit Power: Article VII, which details the Board’s powers, does not grant the authority to amend the Bylaws, implying such power is reserved for the membership.

• Statutory Violation: The Board’s action violated A.R.S. § 33-1804 because the required notice for a meeting concerning a bylaw amendment was not provided to the general membership.

• Legal Precedent: The Petitioner cited Powell v. Washburn, an Arizona Supreme Court case holding that restrictive covenants (which he argued include the Bylaws) should be interpreted to give effect to the intention of the parties as determined from the entire document.

Respondent’s Position (Sycamore Vista No. 8 HOA)

The Association argued that its actions were a valid exercise of the Board’s authority.

• Broad Authority: The Respondent cited Article IV, which states the “affairs of this Association shall be managed by a Board,” to assert its general authority.

• Valid Board Meeting: The amendment occurred at a regular monthly Board meeting as allowed by Article VI. The meeting had three directors present, which constituted a valid quorum for transacting business.

• Interpretation of Article XIII: The Respondent argued that the phrase “at a regular or special meeting of the Board of Directors” in Article XIII indicates that the Board is the body empowered to make the amendment, and the word “members” in that context refers to the members of the Board.

• No Open Meeting Law Violation: The Respondent contended its conduct was not a violation because the action occurred during a regular Board meeting with a proper quorum of directors.

Administrative Law Judge’s Decision and Rationale

The ALJ’s conclusions were unequivocal, fully adopting the Petitioner’s interpretation of the governing documents and state law.

Conclusions of Law

• Burden of Proof: The ALJ found that the Petitioner successfully sustained his burden of proving by a preponderance of the evidence that the Respondent violated A.R.S. § 33-1804.

• Interpretation of “Members” vs. “Directors”: The decision states that the governing documents are clear: “‘members’ refers to the body of owners who make up the membership of the Association, and ‘directors’ refers to the few who are elected to the membership’s Board.” The ALJ found the differentiation to be intentional by the drafters.

• Avoiding Absurdity: The decision holds that construing the Bylaws to allow the Board to amend them would create an absurdity. The ALJ wrote, “The voices of few cannot speak for all, unless all have bestowed those few with the power and authority to speak on their behalf.”

• Violation of Statute and Bylaws: The ALJ concluded that the Board’s action on November 20, 2017, violated both A.R.S. § 33-1804(B) due to a lack of notice and Article III of the Association Bylaws.

• Rejection of Respondent’s Argument: The decision explicitly states, “The Tribunal is not swayed by Respondent’s closing arguments.”

Final Order

Based on the findings and conclusions, the ALJ issued the following binding order:

1. Petition Granted: The Petitioner’s petition was officially granted.

2. Amendment Invalidated: The third amendment to the Association Bylaws, as enacted on November 20, 2017, was invalidated.

3. Fees and Penalties: The Respondent was ordered to pay the Petitioner’s filing fee and a civil penalty of $250.00 to the Planned Community Hearing Office Fund.






Study Guide – 19F-H1918001-REL


Study Guide: Janicek v. Sycamore Vista No. 8 Homeowners Association

Short-Answer Quiz

1. Who were the primary parties in the case No. 19F-H1918001-REL-RHG, and what were their respective roles?

2. What specific action taken by the Respondent on November 20, 2017, prompted the Petitioner to file a complaint?

3. According to the Petitioner, what was the crucial difference in meaning between the terms “members” and “directors” as used in the Association’s Bylaws?

4. What was the Respondent’s central argument for why the Board of Directors had the authority to amend the Bylaws at its regular meeting?

5. What is Arizona’s Open Meeting Law, and how did the Petitioner argue that the Respondent violated it?

6. What was the financial concern that the Petitioner argued could potentially impact him as a homeowner due to the Board’s amendment?

7. Describe the procedural history of this case after the initial Administrative Law Judge (ALJ) Decision on September 25, 2018.

8. What case did the Petitioner cite regarding the interpretation of restrictive covenants, and what principle did it establish?

9. What is the legal standard of proof required in this proceeding, and how is it defined in the document?

10. What was the final outcome of the case, including the specific orders issued by the Administrative Law Judge?

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Answer Key

1. The primary parties were Jay A. Janicek, the Petitioner, and the Sycamore Vista No. 8 Homeowners Association, the Respondent. The Petitioner is a property owner and member of the Association who brought the legal action, while the Respondent is the homeowners’ association governed by a Board of Directors.

2. On November 20, 2017, the Respondent’s Board of Directors held a regular meeting where they voted to approve a third amendment to the Association’s Bylaws. This amendment changed the requirement for an “annual audit…by a public accountant” to an “annual audit, review, or compilation” of financial records.

3. The Petitioner argued that the term “members” in Article XIII of the Bylaws refers to the entire body of property owners in the Association, not the Board of Directors. He contended that if the drafter had intended to give amendment power to the Board, the specific word “directors” would have been used, as it was in other sections of the Bylaws.

4. The Respondent argued that its actions were proper because the Bylaws empower the Board to manage the Association’s affairs at regular monthly meetings. They contended that since a quorum of three directors was present at the November 20, 2017 meeting, the Board was empowered to transact business, which they interpreted to include amending the bylaws as described in Article XIII.

5. Arizona’s Open Meeting Law is ARIZ. REV. STAT. § 33-1804, which requires meetings of a homeowners’ association’s board and members to be open to all members. The Petitioner argued the Respondent violated this by amending a bylaw without proper notice to the full membership, which is required for any proposed bylaw amendment, thus undermining the law’s legislative intent of transparency.

6. The Petitioner was concerned that the amendment weakened the financial oversight of the Association. It modified a requirement for a third-party audit to a less stringent “review, or compilation,” creating a risk that the Association could perform its own financial checks, and as a homeowner, he had an interest in ensuring the Association’s financials were correct.

7. After the initial decision in the Petitioner’s favor on September 25, 2018, the Respondent submitted a Request for Rehearing on October 23, 2018. The Department of Real Estate granted this request on November 7, 2018, and the matter was referred back to the Office of Administrative Hearings for a rehearing, which ultimately took place on March 5, 2019.

8. The Petitioner cited Powell v. Washburn. This case established the principle that restrictive covenants should be interpreted to give effect to the intention of the parties, as determined from the language of the entire document and the purpose for which the covenants were created.

9. The legal standard of proof was a “preponderance of the evidence.” The document defines this as “such proof as convinces the trier of fact that the contention is more probably true than not” and as evidence with the most “convincing force” that inclines an impartial mind to one side of an issue.

10. The final outcome was a ruling in favor of the Petitioner. The ALJ granted the petition, invalidated the third amendment to the Bylaws that was passed on November 20, 2017, and ordered the Respondent to pay the Petitioner’s filing fee and a civil penalty of $250.00.

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Essay Questions

1. Analyze the Administrative Law Judge’s reasoning in differentiating between the terms “members” and “directors.” How did the principle of avoiding absurdity and considering the drafter’s intent, as seen throughout the Bylaws, contribute to the final decision?

2. Discuss the interplay between the Association’s governing documents (CC&Rs and Bylaws) and state law (ARIZ. REV. STAT. § 33-1804). Explain which authority took precedence in this case and why the Board’s actions were found to violate both.

3. Evaluate the legal strategy employed by the Petitioner, Jay A. Janicek. Consider his use of specific Bylaw articles, the citation of Powell v. Washburn, and his argument regarding the legislative intent of the Open Meeting Law.

4. Examine the arguments presented by the Respondent, Sycamore Vista No. 8 Homeowners Association. Why did the Judge find their interpretation of the Bylaws unconvincing, despite their claims that the Board was empowered to transact business with a quorum present?

5. Based on the text, discuss the broader implications of this ruling for homeowners’ associations in Arizona. How does this decision reinforce the principles of transparency and the limitations of a Board’s power relative to the association’s general membership?

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An independent judge, in this case Jenna Clark, who presides over administrative hearings at the Office of Administrative Hearings (OAH).

ARIZ. REV. STAT. § 33-1804

A section of the Arizona Revised Statutes, also known as Arizona’s Open Meeting Law, which mandates that meetings of an HOA’s members and board of directors must be open to all members and requires specific notice for meetings where bylaw amendments will be considered.

Bylaws

A set of rules that govern the internal operations of the homeowners’ association. In this case, key articles discussed include Article VI (Meeting of Directors), Article VII (Powers of the Board), and Article XIII (Amendments).

Covenants, Conditions, and Restrictions. These are governing documents that form an enforceable contract between the Association and each property owner, empowering the Association to control certain aspects of property use.

Member

As defined in the Association’s documents, a person entitled to membership by virtue of being a property owner within the Sycamore Vista subdivision. The Judge concluded this term refers to the body of owners, not the Board of Directors.

Office of Administrative Hearings (OAH)

An independent state agency in Arizona, unaffiliated with the parties, responsible for conducting evidentiary hearings and making legal decisions in disputes like this one.

Petitioner

The party who files a petition initiating a legal case. In this matter, the Petitioner was Jay A. Janicek, a homeowner in the Association.

Preponderance of the evidence

The burden of proof in this case. It is defined as evidence that is more likely true than not and has the most convincing force, sufficient to incline a fair and impartial mind to one side of an issue.

The authority to represent someone else, especially in voting. The document notes that the term “proxy” applies to votes of the members, as members of the Board are not permitted to vote by proxy.

Quorum

The minimum number of members of a deliberative assembly necessary to conduct the business of that group. For the Respondent’s Board of Directors, a quorum is defined as a majority of the number of Directors.

Respondent

The party against whom a petition is filed. In this matter, the Respondent was the Sycamore Vista No. 8 Homeowners Association.

Restrictive Covenants

Legal obligations imposed in a deed to real property to do or not do something. The Petitioner argued this term included the CC&Rs, Bylaws, and rules of the Association.

Tribunal

A body established to settle certain types of dispute. In this document, it refers to the Administrative Law Judge at the Office of Administrative Hearings.






Blog Post – 19F-H1918001-REL



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