Case Summary
| Case ID | 20F-H2019018-REL |
|---|---|
| Agency | ADRE |
| Tribunal | OAH |
| Decision Date | 2020-01-29 |
| Administrative Law Judge | Tammy L. Eigenheer |
| Outcome | none |
| Filing Fees Refunded | $0.00 |
| Civil Penalties | $0.00 |
Parties & Counsel
| Petitioner | Robert L Greco | Counsel | — |
|---|---|---|---|
| Respondent | Bellasera Community Association, Inc. | Counsel | Nathan Tennyson |
Alleged Violations
A.R.S. § 33-1803(B)
Outcome Summary
The Administrative Law Judge concluded that Bellasera Community Association, Inc. did not violate A.R.S. § 33-1803(B) because the homeowner received constructive notice of the violation and fine structure, satisfying statutory requirements. The petition was dismissed.
Why this result: Petitioner failed to meet the burden of proving Respondent violated A.R.S. § 33-1803(B), as the evidence showed Petitioner received sufficient constructive notice of the alleged violation and had an opportunity to be heard or appeal.
Key Issues & Findings
Whether the HOA violated statutory requirements regarding notice and imposition of monetary penalties/late fees, resulting in suspension of privileges.
Petitioner alleged the HOA violated A.R.S. § 33-1803(B) by imposing fines and suspending gate/clubhouse access without providing adequate (actual) notice of the violation and hearing opportunity, and by improperly imposing late fees. The ALJ found the HOA provided constructive notice, satisfying the statute, and was entitled to impose cumulative fines for the ongoing violation.
Orders: Petitioner’s petition is dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
- A.R.S. § 33-1803(B)
- A.R.S. § 32-2199 et seq.
- A.A.C. R2-19-119
- BLACK'S LAW DICTIONARY 1220
- BLACK'S LAW DICTIONARY 1090
Analytics Highlights
- A.R.S. § 33-1803(B)
- A.R.S. § 32-2199 et seq.
- A.A.C. R2-19-119
Video Overview
Audio Overview
Decision Documents
20F-H2019018-REL Decision – 766844.pdf
Briefing Document: Greco v. Bellasera Community Association, Inc.
Executive Summary
This document synthesizes the findings and decision in the case of Robert L. Greco (Petitioner) versus the Bellasera Community Association, Inc. (Respondent), heard by the Arizona Office of Administrative Hearings. The Administrative Law Judge dismissed the petition, ruling in favor of the Homeowners Association (HOA).
The core dispute originated from a 2013 violation notice regarding a faded garage door. The Petitioner claimed he did not receive the initial notices and only became aware of the issue upon receiving a letter from the HOA’s attorney. Despite subsequently painting the door, an outstanding balance of $750 in fines remained on his account. For six years, the Petitioner paid his quarterly dues but ignored the outstanding fine balance. In June 2019, after failed settlement negotiations, the HOA deactivated the Petitioner’s security gate fob and clubhouse access, prompting him to file the formal dispute.
The judge’s decision rested on two key legal conclusions. First, the court rejected the Petitioner’s argument that “actual notice” was required for the fines to be valid. It ruled that the multiple notices mailed to the Petitioner’s residence constituted sufficient “constructive notice” under Arizona law, providing both notification of the violation and an opportunity to be heard. Second, the court determined that the $750 charge was not an improper late fee but rather three separate, legitimate fines of $250 each, levied for an ongoing, uncorrected violation as per the HOA’s enforcement policy.
Case Overview
Case Name
Robert L Greco, Petitioner, vs. Bellasera Community Association, Inc., Respondent
Case Number
20F-H2019018-REL
Jurisdiction
Arizona Office of Administrative Hearings
Presiding Judge
Administrative Law Judge Tammy L. Eigenheer
Hearing Date
January 9, 2020
Decision Date
January 29, 2020
Petitioner’s Core Allegation
Respondent violated A.R.S. § 33-1803(B) by imposing penalties and revoking privileges without providing proper notice and an opportunity to be heard.
Core Factual Issue
The denial of automatic gate and clubhouse access to the Petitioner on July 1, 2019, due to unpaid fines from 2013.
Chronology of the Dispute
The conflict between Mr. Greco and the Bellasera Community Association unfolded over six years, escalating from a minor maintenance issue to a formal legal dispute and revocation of privileges.
Initial Violation and Fines (2013)
Details
Feb. 5, 2013
Courtesy Notice
Respondent sent a notice to Petitioner’s address stating his garage door was faded and needed to be repainted, in violation of the Design Guidelines.
Mar. 14, 2013
Final Notice & First Fine
A follow-up notice was sent, stating a $250 fine was posted to Petitioner’s account. It warned that an additional $250 fine would be assessed automatically every 14 days if the violation remained uncorrected.
Apr. 2, 2013
Notice of Remedy & Second Fine
A third notice was sent, posting another $250 fine. This letter explicitly warned that the HOA had the “ability to suspend privileges for use of the Recreational Facilities” and informed the Petitioner of his right to appeal within 14 days.
May 7, 2013
Fourth Notice & Third Fine
A fourth notice was sent, posting another $250 fine to the account. It again noted the right to appeal the fine.
Jun. 5, 2013
Letter from HOA Counsel
Attorney Kelly Oetinger sent a letter demanding the garage door be repainted within 15 days. The letter explicitly stated, “If you do not repaint… the Association may disable the transponder you use to enter the community and may disable the fobs you use for the clubhouse.”
Petitioner’s Response and Aftermath (2013)
• July 4, 2013: Petitioner repainted the garage door.
• July 5, 2013: Petitioner sent a letter to the HOA stating the attorney’s letter was his “initial alert of the garage door condition.” He explained his delay by stating, “To effectively manage my workload, I dispose of unsolicited mail… In the future, I will exercise greater caution in disposing of unsolicited mail.”
• July 5, 2013: The HOA sent a letter acknowledging the repainting and offered to settle the $900 in fines for a payment of $500. The letter reiterated the threat to deactivate gate openers and fobs.
• July 17, 2013: The HOA sent a follow-up letter correcting an internal accounting error. The total fines were $750, not $900. A new settlement offer was made: pay $375, and the remaining $375 would be waived.
Period of Inaction (2013 – 2019)
From 2013 to 2019, the Petitioner received quarterly statements from the HOA indicating a $750 balance in addition to current assessments. Each quarter, the Petitioner would physically cross out the $750 balance and pay only the current assessment amount.
Escalation and Revocation of Privileges (2019)
• June 2019: Dennis Carson, a friend of the Petitioner serving on the HOA Board of Directors, informed him that his name was on a penalty list and the Board planned to deactivate his security gate and clubhouse access.
• June 2019: Settlement negotiations failed. The Petitioner offered $100; the Board countered with $250. The Petitioner then offered $251 ($250 for the fine and $1 to rent the clubhouse), which the Board declined.
• July 1, 2019: The Respondent deactivated the Petitioner’s security gate fob and access to the clubhouse.
• October 11, 2019: The Petitioner filed the Homeowners Association Dispute Process Petition, initiating the legal proceedings.
Key Arguments and Legal Findings
The Administrative Law Judge’s decision centered on the interpretation of “notice” as required by state law and the legitimacy of the fines imposed by the HOA.
Petitioner’s Position
1. Lack of Proper Notice: The Petitioner argued that he had not received “actual notice” of the violation or the impending fines until the letter from the HOA’s counsel on June 5, 2013. He asserted that because he acted promptly after receiving that letter, the fines were unjust. His argument implied that warnings in mail he did not personally read could not be held against him.
2. Improper Fines: The Petitioner alleged that the additional $500 in charges on the original $250 fine constituted improper late fees.
Administrative Law Judge’s Conclusions of Law
The Judge systematically refuted the Petitioner’s arguments, concluding that the HOA acted within its rights and in accordance with the law.
1. On the Matter of Notice:
• The governing statute, A.R.S. § 33-1803(B), requires “notice and an opportunity to be heard” before imposing penalties.
• The Judge found no legal authority requiring this to be “actual notice.” To accept this argument would create an unworkable standard where a homeowner could “avoid receiving ‘actual notice’ by simply refusing to sign for a certified mailing.”
• The decision established that the Petitioner received constructive notice through the “multiple mailings that were presumably delivered to his residential address.”
• The notices also informed the Petitioner how to appeal the matter, thereby satisfying the requirement for an “opportunity to be heard.”
• Conclusion: “Accordingly, Petitioner was provided notice and an opportunity to be heard in accordance with A.R.S. § 33-1803(B).”
2. On the Matter of Fines:
• The Judge differentiated between late fees and fines for an ongoing violation.
• The notices sent by the Respondent “clearly stated that an ongoing failure to remedy the violation would result in additional fines every 14 days.”
• The violation persisted from before March 14, 2013 (first fine) until July 5, 2013 (when the door was confirmed painted).
• Conclusion: The Respondent was entitled to impose three separate fines for the “ongoing condition of the garage door,” making the total of $750 legitimate.
Final Order and Implications
Based on the analysis of the evidence and law, the Administrative Law Judge reached a definitive conclusion.
• Final Ruling: “This Tribunal concludes that Respondent did not violate the provisions of A.R.S. § 33-1803(B).”
• Order: “IT IS ORDERED that Petitioner’s petition is dismissed.”
• Binding Nature: The order, dated January 29, 2020, is binding on the parties unless a rehearing is requested with the Commissioner of the Department of Real Estate within 30 days of the service of the order.
Study Guide: Greco v. Bellasera Community Association, Inc.
This guide provides a comprehensive review of the Administrative Law Judge Decision in the case of Robert L. Greco (Petitioner) versus Bellasera Community Association, Inc. (Respondent), Case No. 20F-H2019018-REL. It includes a short-answer quiz to test your knowledge, an answer key for review, a set of essay questions for deeper analysis, and a glossary of key terms.
Short-Answer Quiz
Answer the following questions in 2-3 sentences each based on the information provided in the case document.
1. Who were the Petitioner and Respondent in this case, and what was the Petitioner’s central complaint that initiated the legal action?
2. What specific violation of the community’s rules was the Petitioner initially accused of, and which governing documents were cited as being violated?
3. Describe the timeline of notices and fines issued by the Respondent between February and May 2013.
4. What was the Petitioner’s explanation for not responding to the initial violation notices from the Respondent before receiving a letter from the association’s attorney?
5. What actions did the Respondent take in or around June 2019 that led the Petitioner to file his petition with the Arizona Department of Real Estate?
6. What was the Petitioner’s primary legal argument regarding the “notice” required by the Arizona statute A.R.S. § 33-1803(B)?
7. How did the Administrative Law Judge differentiate between “actual notice” and “constructive notice” in her decision?
8. Why did the judge ultimately conclude that the Respondent had provided the Petitioner with adequate “notice and an opportunity to be heard”?
9. Explain the Petitioner’s allegation about improper late fees and the reason the judge rejected this argument.
10. What was the final order of the Administrative Law Judge in this case, and what recourse was available to the parties?
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Answer Key
1. The Petitioner was homeowner Robert L. Greco, and the Respondent was the Bellasera Community Association, Inc. (the HOA). Greco’s central complaint, filed on October 11, 2019, was that the HOA had denied him automatic gate access and use of clubhouse facilities on July 1, 2019, despite his being a long-term resident with timely payment of all quarterly dues.
2. The Petitioner was accused of having a faded garage door that needed to be repainted. The violation was cited as being contrary to the CC&Rs (Covenants, Conditions and Restrictions), specifically Article V, Section 5.2, and the community’s Design Guidelines, specifically Article III, Section J.
3. The Respondent sent an initial “Courtesy Notice” on February 5, 2013. This was followed by a “Final Notice” with a $250 fine on March 14, a “Notice of Remedy” with another $250 fine on April 2, and a “Fourth Notice of Non-Compliance” with another $250 fine on May 7, 2013.
4. The Petitioner claimed that the attorney’s letter, received around June 5, 2013, was his “initial alert” regarding the garage door condition. He stated that he routinely disposes of unsolicited mail without reading it and had inadvertently discarded the previous notices sent by the Respondent.
5. In June 2019, after failed settlement negotiations over the outstanding $750 in fines from 2013, the Respondent deactivated the Petitioner’s security gate fob and his access to the clubhouse. This action prompted the Petitioner to file his dispute petition.
6. The Petitioner’s primary argument was that he did not receive “actual notice” of the violation until the attorney’s letter. He contended that because he acted promptly to correct the violation after receiving actual notice, he should not have been fined.
7. The judge used definitions from Black’s Law Dictionary. “Actual notice” was defined as notice given directly to, or personally received by, a party. “Constructive notice” was defined as notice arising by presumption of law from facts and circumstances that a party had a duty to take notice of.
8. The judge concluded that the multiple notices mailed to the Petitioner’s residential address constituted “constructive notice” of the violation. Because the relevant statute, A.R.S. § 33-1803(B), does not explicitly require “actual notice,” and the mailings also advised him of his right to appeal, the judge found the Respondent had fulfilled its obligation to provide notice and an opportunity to be heard.
9. The Petitioner alleged that the additional $500 in fines were improper late fees on the original $250 fine. The judge rejected this, clarifying that the Respondent’s notices stated that additional fines would be assessed every 14 days for an ongoing failure to remedy the violation. Therefore, the additional charges were three separate fines for the “ongoing condition of the garage door,” not late fees.
10. The final order was that the Petitioner’s petition be dismissed. The parties were notified that this order was binding unless a request for rehearing was filed with the Commissioner of the Department of Real Estate within 30 days.
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Essay Questions
The following questions are designed for deeper analysis and discussion. No answers are provided.
1. Analyze the Administrative Law Judge’s reasoning for favoring “constructive notice” over “actual notice” in the context of A.R.S. § 33-1803(B). Discuss the potential consequences for homeowners and HOAs if the ruling had required “actual notice.”
2. Trace the negotiation attempts between the Petitioner and the Respondent in 2013 and 2019. Evaluate the effectiveness of these attempts and discuss whether the dispute could have been resolved without formal legal proceedings.
3. The Petitioner argued that the fines imposed after the initial $250 were improper late fees. The judge, however, characterized them as new fines for an “ongoing condition.” Based on the evidence presented in the notices, construct an argument supporting both the Petitioner’s and the judge’s interpretation.
4. Discuss the concept of “burden of proof” in this case. Explain what “preponderance of the evidence” means and identify the key pieces of evidence that allowed the judge to conclude the Respondent did not violate the statute.
5. Examine the roles of the various community governing documents cited in this case (CC&Rs, Design Guidelines, Violation Enforcement policy). Explain how these documents worked together to grant the Respondent the authority to take action against the Petitioner.
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Glossary of Key Terms
Definition
A.R.S. § 33-1803(B)
The Arizona Revised Statute central to this case, which permits an HOA board to impose reasonable monetary penalties for violations after providing “notice and an opportunity to be heard.”
Actual Notice
As defined in the decision, it is “[n]otice given directly to, or received personally by, a party.”
Administrative Law Judge (ALJ)
The official who presides over administrative hearings, makes findings of fact and conclusions of law, and issues a decision. In this case, it was Tammy L. Eigenheer.
Bellasera Community Association, Inc.
The Respondent in the case; the homeowners association (HOA) for the Bellasera Community in Arizona.
An acronym for Declaration of Covenants, Conditions and Restrictions. These are the governing legal documents for the community, which the Petitioner was found to have violated (specifically Article V, Section 5.2).
Constructive Notice
As defined in the decision, it is “[n]otice arising by presumption of law from the existence of facts and circumstances that a party had a duty to take notice of.” The judge ruled that mail sent to a residence constitutes this form of notice.
Design Guidelines
A set of rules established by the HOA governing the aesthetic appearance of properties. The Petitioner was found in violation of Article III, Section J of these guidelines.
Petitioner
The party who initiates a legal action or petition seeking a ruling. In this case, it was the homeowner, Robert L. Greco.
Preponderance of the evidence
The standard of proof required in this hearing. It is defined as “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force.”
Respondent
The party against whom a petition is filed and who must respond to the allegations. In this case, it was the HOA.
He Threw Away His Mail for Years. His HOA’s Response Is a Warning to Every Homeowner.
That official-looking envelope from your Homeowners Association sits on the counter, a silent challenge. It’s easy to dismiss it as a newsletter or a bland reminder, just another piece of paper to be sorted later. But what if it isn’t? What if that envelope is a legal summons in disguise, the first shot in a battle you don’t even know you’re fighting?
For Robert L. Greco, a resident in his community for 17 years, this hypothetical became a harsh reality. He learned that ignoring HOA correspondence can ignite a conflict that smolders for years before erupting into severe consequences. Originating from a maintenance issue as simple as a faded garage door, his case offers a masterclass in the powerful lessons every homeowner should heed.
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1. The “I Didn’t Read It” Defense Doesn’t Work
The central pillar of the homeowner’s defense was disarmingly simple: he claimed he never received the first four violation notices because he habitually throws away what he considers “unsolicited mail.” He argued that without having read the warnings, he couldn’t be held responsible for the fines.
The judge’s ruling, however, invoked a foundational legal concept that extends far beyond HOA disputes into areas like property deeds and public records: the difference between “actual notice” and “constructive notice.” While actual notice means you personally saw the information, constructive notice presumes you have knowledge of something because it was delivered properly—in this case, mailed to the correct address. Whether you open the envelope is irrelevant.
In a July 5, 2013 letter, the homeowner unwittingly sealed his own fate by describing his mail-handling routine:
Routinely, Saturdays are my mail-pick-up days, and invariably, I walk straight to the re-cyclable container, and deposit the mail in the receptacle… I was astonished to learn that my garage door failed inspection. This is my initial alert of the garage door condition.
For homeowners, the takeaway is a stark one: in the eyes of the law, your recycling bin is not a valid legal defense. The burden doesn’t fall on an HOA to ensure you read your mail, only to send it. The responsibility to open and review all official correspondence rests squarely on the homeowner.
2. A Tiny Issue Can Snowball into a Years-Long Standoff
The timeline of this dispute reveals a classic case of conflict avoidance, where a minor, fixable problem was allowed to spiral into a major legal battle. The cost of a can of paint and a Saturday afternoon of work was ultimately dwarfed by a six-year, $750 dispute that cost the homeowner his access to his own community.
• February 5, 2013: The HOA sends its first “Courtesy Notice” regarding a faded garage door in need of repainting.
• March – May 2013: After no response, the HOA issues three more notices, levying escalating fines that total $750.
• 2013 to 2019: For six years, the homeowner receives quarterly statements showing the $750 balance. Each time, he would “cross out the $750.00 balance and pay the current assessment.”
• June/July 2019: The HOA finally forces the issue by deactivating his security gate fob and his access to the clubhouse.
This progression shows how a simple lack of communication transformed a weekend chore into a years-long standoff. By ignoring the notices and the subsequent fines, the homeowner allowed a molehill to grow into a mountain of conflict.
3. “Continuing Violation” Fines Are Not Late Fees
The homeowner contended that the HOA was improperly stacking late fees on top of an initial $250 penalty. However, the administrative law judge highlighted a critical distinction embedded in the association’s rules.
The HOA wasn’t charging late fees on a single, past-due penalty. It was levying new fines for a “continuing violation.” The notice sent on March 14, 2013, explicitly warned that “an additional fine of $250 will be assessed automatically every 14 days… if the violation remains uncorrected.”
This is a crucial detail found in many HOA bylaws. An unpainted garage door is not a one-time offense; it is an ongoing breach of community standards. A homeowner who thinks they are simply letting a single fine sit unpaid may actually be incurring entirely new violations over time, dramatically increasing their financial liability.
4. Failed Negotiations Can Cost More Than Money
Twice, this dispute could have been resolved. The breakdown in negotiations, however, reveals how ego and principle can prove more costly than the fines themselves.
The first attempt came in 2013, after the homeowner had finally painted the garage. The HOA initially offered to settle a supposed $900 balance for $500. This, however, was based on an “internal accounting error.” In a subsequent letter, the HOA apologized, corrected the record to show the true balance was $750, and made a formal offer: pay half—just $375—and the matter would be closed. The offer was not accepted. Including this error shows the HOA was not infallible, making the subsequent stalemate more complex.
The second negotiation occurred in 2019, prompted by a friend on the Board who urged a settlement. The homeowner offered $100. The Board countered with $250. The homeowner’s final offer was exquisitely specific: “$251.00, $250.00 to settle the outstanding fines and $1.00 to rent the clubhouse on a specific date.”
This offer was a tactical and psychological blunder. That extra dollar wasn’t about money; it was a message. Whether intended as a sarcastic jab or a principled stand to assert his rights as a member, it transformed a financial negotiation into a battle of wills. For a Board of Directors, accepting such an offer could be seen as capitulating to a petty gesture, setting a precedent that defiance works. They declined. Shortly after, the homeowner’s access to community facilities was cut off, leading to the legal petition he ultimately lost.
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Conclusion: A Lesson in Communication
This case serves as a powerful warning. The legal force of “constructive notice” makes you responsible for the mail you receive, not just the mail you read. The six-year standoff over a can of paint shows how inaction can have disproportionate consequences. And the failed $251 offer demonstrates that good-faith negotiation is paramount.
Ultimately, the homeowner was left still owing the money and locked out of his own amenities—a casualty of a battle he prolonged at every turn. It leaves every homeowner with a critical question to consider: in a dispute with your HOA, where is the line between standing on principle and causing yourself unnecessary harm?
Case Participants
Petitioner Side
- Robert L Greco (petitioner)
Respondent Side
- Nathan Tennyson (attorney)
Brown|Olcott, PLLC - David Reid (board member)
Testified for Respondent - Annette McCarthy (manager)
Acting Manager; Testified for Respondent - Kelly Oetinger (attorney)
Counsel for Respondent in 2013 - Dennis Carson (board member)
Neutral Parties
- Tammy L. Eigenheer (ALJ)
- Judy Lowe (Commissioner)
ADRE
