Tag Archives: State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968)

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

Key Facts and Main Issues

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

The key facts were largely undisputed:

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

Key Arguments

Petitioner's Arguments (HOA):

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

Respondents' Defense (Owners):

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

Final Decision and Legal Outcome

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

Focus on Legal Points:

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

Outcome and Order:

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

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

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

Key Facts and Background

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

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

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

Main Issues and Arguments

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

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

Legal Conclusion and Outcome

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

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

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

Final Decision

The Petitioner’s petition was granted.

The Administrative Law Judge ORDERED:

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

This summary pertains to the Administrative Law Judge Decision in the case of *Richard E Jewell, Petitioner, vs. Casa Fiesta Townhouses Corp., Respondent* (No. 22F-H2221005-REL), heard on October 7, 2021.

Concise Legal Summary

Key Facts and Issues

Petitioner Richard E. Jewell, a homeowner and member of the Respondent, Casa Fiesta Townhouses Corp. (an Arizona homeowners association or HOA), alleged that the HOA board violated Arizona Revised Statutes (A.R.S.) § 33-1811. The central issue was whether the Board of Directors improperly handled a conflict of interest when voting to hire the sitting Board President, George Pavia, as a salaried office assistant.

The Board voted on July 15, 2021, to employ Mr. Pavia for 40 hours a week at a wage of $15.00 per hour. Petitioner asserted that his only issue was that the Board President failed to personally disclose the conflict of interest prior to the action being taken.

Key Legal Points and Arguments

The relevant statute, A.R.S. § 33-1811, stipulates that if a contract or action for compensation benefits a board member, that member "shall declare a conflict of interest" in an open meeting before discussion or action. A contract entered in violation of this section is void and unenforceable.

During the hearing, the Administrative Law Judge reviewed evidence, including a recording of the July meeting. The evidence showed:

1. At the outset of the virtual meeting, Mr. Pavia indicated he would recuse himself from the discussion.
2. An individual attending the meeting raised the possibility of a conflict of interest.
3. The conflict was discussed at length during the board meeting prior to any vote.
4. Mr. Pavia refrained from participating in the vote.

The Administrative Law Judge concluded that the purpose of A.R.S. § 33-1811 is to ensure HOA members are aware of conflicts prior to discussion. Interpreting the statute to achieve a "fair and sensible result", the Judge determined that the conflict was, in fact, made known and discussed prior to action. The statute's requirement was satisfied, as the fact that Mr. Pavia was not the individual who disclosed the conflict did not negate that the conflict was discussed at length and known to those voting.

Outcome

At the conclusion of the Petitioner’s presentation of evidence, Respondent moved for a directed verdict, arguing the Petitioner failed to sustain his burden of proof. The motion was granted.

The Administrative Law Judge ruled that the Petitioner failed to establish, by a preponderance of the evidence, that Respondent acted in violation of A.R.S. § 33-1811. The Petitioner’s petition was dismissed.

This summary details the Administrative Law Judge (ALJ) Decision in the case of Ronald Borruso, Petitioner, vs. Sunland Village East Association, Respondent (No. 21F-H2121062-REL), heard on September 3, 2021. The Petitioner, Ronald Borruso, alleged that the Association violated its Bylaws and specific provisions of ARIZ. REV. STAT. section 33-1804.

Key Facts and Legal Standard

The Department of Real Estate had jurisdiction over the matter. The Petitioner bore the burden of proving the alleged violations occurred by a preponderance of the evidence. Borruso refined his allegations to two main issues, both centering on the violation of association meeting requirements under ARIZ. REV. STAT. § 33-1804(A) and (C).

Main Issues and Arguments

Issue 1: Member Participation at the May 27, 2021 Special Meeting

• Petitioner's Claim: Borruso alleged that during a special meeting concerning a recall petition, the Board denied members the right to speak at an appropriate time during proceedings, violating § 33-1804(A). He argued the meeting was improperly divided into a "closed" session where members could not offer substantive comments, followed by an "Open Session Q & A" after adjournment.
• Association's Argument: The Association maintained there was only one meeting, and it was not a violation to restrict members’ comments until after the Board provided its statements. They argued they used the term "closed" inartfully, noting that members were allowed to attend the entire 3-hour meeting, and ample opportunity was provided for comments during the Q & A session (lasting about 90 minutes).
• Legal Point: ARIZ. REV. STAT. section 33-1804(A) permits members to attend and speak at an appropriate time during deliberations, and mandates they speak once after the Board discusses an agenda item but before formal action. The ALJ noted that legally, a "closed" meeting refers to an executive session, which the Board did not conduct.

Issue 2: Unnoticed Meeting to Approve Operations Manager Qualifications

• Petitioner's Claim: Borruso alleged the Board held un-noticed meetings to write and approve job qualifications for an Operations Manager, violating sections 33-1804(A) and (C). His primary evidence was a former Board President, Ms. Haynie, confirming in a May 6, 2021 meeting that the Board had written and approved the job description.
• Association's Argument: Current Board members testified credibly that Ms. Haynie was wrong and that the Board had never met or voted on the job description. The description posted was similar to a previous one, and Ms. Haynie had allegedly prepared and posted it without Board approval.

Outcome and Final Decision

The Administrative Law Judge concluded that Mr. Borruso failed to meet the required standard of proof (preponderance of the evidence) on both issues.

1. Regarding the May 27th Meeting: The Petitioner did not prove a violation of § 33-1804(A). Although the Board was not precise in its terminology, members were allowed to attend the entire meeting, and the evidence showed it was a single meeting where members spoke after the Board's presentation.
2. Regarding the Job Qualifications: The Petitioner failed to prove that an un-noticed meeting occurred, as the credible testimony indicated that the former President had been mistaken about the Board’s approval. Therefore, there was no violation of sections 33-1804(A) and (C).

The petition was dismissed.

Briefing Document: Pattarozzi vs. Estrella Vista Homeowners Association (Case No. 19F-H1919047-REL)

Executive Summary

This document provides an analysis of the Administrative Law Judge Decision in the matter of Victor L. Pattarozzi vs. Estrella Vista Homeowners Association, Case No. 19F-H1919047-REL. The central issue was whether the homeowner association’s Architectural Review Committee (ARC) was in violation of Arizona state law by not holding open meetings for its members.

The petition, brought by Mr. Pattarozzi, was ultimately dismissed. The Administrative Law Judge, Thomas Shedden, concluded that the Petitioner failed to prove that the Respondent violated ARIZ. REV. STAT. § 33-1804. The decision hinged on the interpretation of the phrase “regularly scheduled committee meetings.” The Judge found that since the ARC did not meet at fixed, uniform, or recurring intervals, but rather on an as-needed basis to review applications, its meetings were not “regularly scheduled” within the meaning of the statute. Consequently, the legal requirement for such meetings to be open to all association members did not apply. The Judge further determined that the state’s declared policy in favor of open meetings explicitly referenced only the association’s and board of directors’ meetings, not committee meetings, and therefore could not be used to compel the ARC meetings to be open.

Case Overview

Case Number

19F-H1919047-REL

Petitioner

Victor L. Pattarozzi

Respondent

Estrella Vista Homeowners Association

Presiding Judge

Thomas Shedden, Administrative Law Judge

Hearing Date

May 16, 2019

Decision Date

June 5, 2019

Jurisdiction

Office of Administrative Hearings, Arizona Department of Real Estate

Allegation: The Petitioner, Victor L. Pattarozzi, alleged that the Estrella Vista Homeowners Association violated ARIZ. REV. STAT. § 33-1804 by failing to hold open meetings for its Architectural Committee (referred to as the Architectural Review Committee or ARC).

Defense: The Respondent association contended that its ARC meetings were not required to be open to members because the meetings were not “regularly scheduled.”

Central Legal Issue: The Definition of “Regularly Scheduled”

The case revolved entirely around the interpretation of a key phrase within Arizona’s planned community statutes.

Governing Statute: ARIZ. REV. STAT. § 33-1804(A) states:

“Notwithstanding any provision in the declaration, bylaws or other documents to the contrary, all meetings of the members’ association and the board of directors, and any regularly scheduled committee meetings, are open to all members of the association….”

The core legal question was whether the ARC’s method of conducting business constituted “regularly scheduled” meetings.

Competing Arguments

• Petitioner’s Position (Mr. Pattarozzi):

◦ Mr. Pattarozzi argued that the association could hold weekly ARC meetings and simply cancel them if no applications were pending for review.

◦ He supplied dictionary definitions for “regular” and “regularly” to support his interpretation:

▪ Regularly: (1) “in a regular manner”; (2) “on a regular basis: at regular intervals”.

▪ Regular: (1) “constituted, conducted, scheduled, or done in conformity with established or prescribed usages, rules, or discipline”; (2) “recurring, attending, or functioning at fixed, uniform, or normal intervals”.

◦ He also contended that the state’s declared policy in favor of open meetings, as outlined in subsection 33-1804(F), should be broadly construed to require ARC meetings to be open.

• Respondent’s Position (Estrella Vista HOA):

◦ The association maintained that its ARC meetings were not required to be open because they do not occur on a set schedule. Instead, they are convened only as needed when applications are received.

Findings of Fact

The decision outlined the specific operational procedures of the Architectural Review Committee.

• Composition and Process: The ARC consists of five members. It does not meet on a predetermined schedule. Instead, applications are forwarded by the management company to the Board President, Stuart Glenn.

• “Rubber Stamp” Approvals: The ARC has a pre-approved “rubber stamp” process for certain requests, such as solar panel installations and repainting with a pre-approved color. These requests are approved without further review by the full committee.

• Application Volume: As of the May 16, 2019 hearing, the ARC had received twelve applications in 2019. Of these, eight were subject to the “rubber stamp” approval process.

• Non-Standard Applications: For any application not meeting the rubber-stamp criteria, Mr. Glenn forwards it to the other four ARC members, who individually report back on their approval or disapproval.

Legal Reasoning and Decision

The Administrative Law Judge’s conclusions of law provided a detailed statutory interpretation that led to the dismissal of the petition.

Interpretation of “Regularly Scheduled”

The Judge determined that the legislature intentionally distinguished between different types of meetings. While the law mandates that all meetings of the members’ association and the board of directors must be open, it applies a specific qualifier—”regularly scheduled”—to committee meetings. This implies that not all committee meetings must be open.

The Judge adopted the Petitioner’s second definition of “regular”: “recurring, attending, or functioning at fixed, uniform, or normal intervals.” This interpretation was deemed to provide a fair and sensible result.

The Judge explicitly rejected the Petitioner’s first definition—”done in conformity with established or prescribed usages, rules, or discipline”—on the grounds that it would render the word “regular” redundant. The Judge reasoned that all committee meetings are presumed to be conducted according to established rules, so applying this definition would make the statutory language trivial.

Rejection of the “Open Meeting Policy” Argument

The Petitioner argued that subsection 33-1804(F), which declares a state policy in favor of open meetings, should apply. The Judge rejected this argument based on the specific text of the statute:

“It is the policy of this state as reflected in this section that all meetings of a planned community, whether meetings of the members’ association or meetings of the board of directors of the association, be conducted openly ….”

The Judge noted that this policy statement explicitly references only meetings of the “members’ association” and the “board of directors,” and omits any mention of committee meetings. Therefore, the policy could not be used to compel the ARC meetings to be open.

Final Order

Ruling: IT IS ORDERED that Victor L. Pattarozzi’s petition is dismissed.

Justification: The Petitioner, who bore the burden of proof, did not establish by a preponderance of the evidence that the Estrella Vista Homeowners Association violated ARIZ. REV. STAT. § 33-1804. The Judge concluded that the ARC “does not hold ‘regularly scheduled’ meetings within the meaning of” the statute.

Next Steps: The decision is binding unless a party files a request for rehearing with the Commissioner of the Department of Real Estate within 30 days of the service of the Order.

Briefing Document: Administrative Law Judge Decision in Barrs v. Desert Ranch Homeowners Association

Executive Summary

This document synthesizes the findings and conclusions of the Administrative Law Judge (ALJ) in case number 18F-H1817008-REL, involving Petitioner Thomas Barrs and Respondent Desert Ranch Homeowners Association (HOA). The central outcome of the December 1, 2017 hearing was the complete dismissal of Mr. Barrs’ petition. The ALJ determined that Mr. Barrs failed to prove by a preponderance of the evidence that the HOA violated Arizona Revised Statutes § 33-1805 regarding member access to association records.

The decision hinged on a key statutory interpretation: ARIZ. REV. STAT. § 33-1805 requires an HOA to make records “reasonably available for examination” and to provide copies upon request, but it does not obligate the association to email documents to members. The Judge found that the HOA’s offers to allow Mr. Barrs to inspect records in person were legally sufficient. The failure to access records was ultimately attributed to the petitioner’s own actions, including a self-initiated communication breakdown with a key Board member and a subsequent refusal of the HOA’s offers for in-person inspection. The Judge concluded that for each of the contested allegations, the HOA had either fulfilled its statutory duty, the requested records did not exist, or its attempts to provide access were declined by the petitioner.

Case Overview

Case Name

Thomas Barrs (Petitioner) v. Desert Ranch Homeowners Association (Respondent)

Case Number

18F-H1817008-REL

Arizona Office of Administrative Hearings

Administrative Law Judge

Thomas Shedden

Hearing Date

December 1, 2017

Decision Date

December 27, 2017

Central Allegation

The Petitioner alleged nine instances where the Respondent violated ARIZ. REV. STAT. § 33-1805 by failing to accommodate requests to inspect or receive via email various HOA records.

Final Disposition

The Petitioner’s petition was dismissed. The Respondent was deemed the prevailing party.

Analysis of Petitioner’s Allegations and Findings

The petition, filed on September 4, 2017, contained nine specific allegations of statutory violations by the HOA. These issues and the ALJ’s findings are detailed below.

Summary of Allegations

Request

Date of Request

Finding of Fact

View April 29, 2017 Board election documents

May 19, 2017

No violation; request fulfilled within statutory time limit.

View March 18, 2017 Board election documents

June 17, 2017

No violation; HOA cured any potential breach with offers to inspect, which were declined.

Email copies of insurance policies

July 11, 2017

No violation; HOA offered inspection, which fulfills statutory duty.

Insurance company phone number & policy number

Aug 26, 2017

No violation; Petitioner acknowledged receipt of information.

Email Secretary’s shorthand notes from March 18 meeting

July 11, 2017

No violation; the requested notes do not exist.

Email the annual budget

July 11, 2017

No violation; HOA offered inspection, which fulfills statutory duty.

Email written record of EDC actions after July 2016

July 11, 2017

No violation; HOA offered inspection, which fulfills statutory duty.

Email name of EDC chairperson

July 11, 2017

Withdrawn by Petitioner at the hearing.

Email list of Board meeting dates

July 11, 2017

Withdrawn by Petitioner at the hearing.

Detailed Findings by Issue

At the hearing, the Petitioner withdrew his allegations concerning the name of the EDC chairperson (Issue 8) and the list of past Board meeting dates (Issue 9).

• Issue 4 (Insurance Information): The Judge noted that Mr. Barrs “effectively acknowledged that he has received the insurance company’s phone number and the policy number.” No violation was found.

• Issue 5 (Shorthand Meeting Notes): The evidence demonstrated that no shorthand notes from the March 18, 2017 meeting exist. The Board had previously informed Mr. Barrs of this fact. Consequently, the Judge found no violation.

The petitioner requested to view documents related to the April 29, 2017, election via an email sent at 8:59 p.m. on Friday, May 19, 2017. The Judge determined that this request was effectively received on the next business day, Monday, May 22, 2017. Under the statute, the HOA had ten business days, until June 5, 2017, to fulfill the request. The HOA made the documents available for Mr. Barrs’ inspection on June 3, 2017, which was within the required timeframe. The decision also dismissed related claims by Mr. Barrs regarding a “late ballot” (which was actually a nomination petition) and “undeliverable ballots” (which did not exist as mailing envelopes had no return address). The Judge concluded the HOA did not violate the statute.

These issues center on a series of requests made in June and July 2017 and a significant communication failure initiated by the Petitioner.

Background: In March 2017, after HOA Board member Brian Schoeffler asked to be removed from a resident email thread, Mr. Barrs ceased all email communication with Mr. Schoeffler and blocked his email address, preventing him from receiving any emails sent by Mr. Schoeffler.

Timeline of Events:

• June 17, 2017: Mr. Barrs requested to view the March 18 election ballots (Issue 2). On June 19, Board President Catherine Overby informed him the materials were with Mr. Schoeffler and that he should contact him.

• July 11, 2017: Mr. Barrs emailed the Board (excluding Mr. Schoeffler) requesting that the insurance policies (Issue 3), annual budget (Issue 6), and EDC records (Issue 7) be emailed to him.

• July 12, 2017: Ms. Overby responded that she would forward the request to Mr. Schoeffler and later stated that Mr. Barrs should go to Mr. Schoeffler’s house to view the records. On the same day, Mr. Schoeffler emailed Mr. Barrs—an email Mr. Barrs did not receive—offering to meet and provide copies.

• July 25, 2017: Mr. Barrs informed the Board for the first time that he had blocked Mr. Schoeffler’s emails.

• July 28, 2017: Mr. Schoeffler sent another email, offering dates to meet and explaining that the statute required only that documents be made “reasonably available.”

• July 29, 2017: Mr. Barrs responded to the Board, stating he “will not stipulate to the preconditions” set by Mr. Schoeffler and concluding that the documents were “apparently” not available.

Finding: The Judge found that the Board responded to the July 11 requests in a timely manner (on July 12) and continued to try and accommodate them. However, Mr. Barrs “initially delayed matters by refusing to contact Mr. Schoeffler and he then declined Respondent’s offers.” For Issue 2, the Judge concluded that even if the HOA had initially failed to provide access within ten days, it had “cured its breach” with the subsequent offers of inspection on July 12 and July 28, which Mr. Barrs declined.

Central Legal Conclusions

The ALJ’s decision rested on several key conclusions of law regarding statutory interpretation and the burden of proof.

• Burden of Proof: Mr. Barrs, as the petitioner, bore the burden of proving the alleged violations by a preponderance of the evidence. The Judge concluded that he failed to meet this standard on all counts.

• Interpretation of ARIZ. REV. STAT. § 33-1805(A): This was the pivotal legal finding. The statute reads, in part:

• The ALJ concluded that this language does not obligate an HOA to email records to a member. The statutory requirement is satisfied when the association makes the records “reasonably available” for in-person inspection and allows the member to purchase copies (for a fee of not more than fifteen cents per page).

• Application to the Case: The HOA’s offer for Mr. Barrs to examine the requested documents at Mr. Schoeffler’s residence and to have copies made fulfilled its legal duty. Mr. Barrs’ insistence on receiving documents via email and his ultimate refusal of the in-person inspection offer were the reasons he did not gain access to the records.

Final Order

Based on the findings of fact and conclusions of law, the Administrative Law Judge issued the following order:

“IT IS ORDERED that Thomas Barrs’ petition is dismissed.”

The decision is binding on the parties unless a rehearing is filed with the Commissioner of the Department of Real Estate within 30 days of the service of the order.