Tag Archives: 2013

Winter, Alexander vs. Cortina Homeowners Association

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Case Summary

Case ID 13F-H1314001-BFS
Agency DFBLS
Tribunal OAH
Decision Date 2013-12-12
Administrative Law Judge Tammy L. Eigenheer
Outcome yes
Filing Fees Refunded $550.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Alexander Winter Counsel —
Respondent Cortina Homeowners Association Counsel Augustus H. Shaw, IV

Alleged Violations

A.R.S. § 33-1805

Outcome Summary

Petitioner established that Respondent violated A.R.S. § 33-1805 by failing to provide redacted invoices and failing to make contracts available for review within 10 business days. Respondent was ordered to comply and refund the filing fee.

Key Issues & Findings

Failure to provide records

Petitioner alleged Respondent failed to provide requested invoices and contracts within 10 business days. Respondent claimed invoices contained personal info and contracts contained trade secrets.

Orders: Respondent ordered to provide copies of documents (redacted as provided in statute) within 10 days and refund $550 filing fee.

Filing fee: $550.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1805
  • A.R.S. § 44-401

Decision Documents

13F-H1314001-BFS Decision – 374343.pdf

Uploaded 2026-01-25T15:29:01 (114.2 KB)

13F-H1314001-BFS Decision – 378997.pdf

Uploaded 2026-01-25T15:29:01 (59.2 KB)

**Case Summary: 13F-H1314001-BFS**

**Case Title:** *Alexander Winter v. Cortina Homeowners Association*
**Forum:** Office of Administrative Hearings, State of Arizona
**Decision Date:** December 12, 2013 (Certified Final on January 17, 2014)

**Proceedings**
On November 22, 2013, Administrative Law Judge Tammy L. Eigenheer presided over a hearing regarding a dispute between homeowner Alexander Winter (Petitioner) and the Cortina Homeowners Association (Respondent). The Petitioner alleged the Respondent violated A.R.S. § 33-1805 by failing to provide access to requested Association records within the statutory timeframe.

**Key Facts**
* On June 12, 2013, the Petitioner submitted a written request to inspect and copy various records, including budgets, general ledgers, and specific vendor contracts and invoices ("Clean Cuts" and "Renaissance Community Partners").
* On June 21, 2013, the Respondent’s manager, Kevin Bishop, replied via email. He agreed to provide some documents but refused to provide copies of Renaissance invoices, claiming they contained protected financial information of individual members.
* Regarding the contracts, Bishop stated they were viewable for inspection only (no copies) but deferred the inspection until after his return from vacation on July 7, 2013—a date beyond the statutory 10-business-day requirement.
* The Petitioner filed a complaint with the Department of Fire, Building and Life Safety on July 3, 2013, after being unable to access the records.

**Key Arguments**
* **Petitioner:** Argued he was entitled to the records to understand the Association's financial standing. He contended that if invoices contained personal data, he should have received redacted copies rather than a total denial. He further argued he was denied the opportunity to view contracts within the required 10 business days.
* **Respondent:** Argued that the Renaissance invoices contained detailed assessments and late fees related to individual members, making them protected under A.R.S. § 33-1805(B)(4). The Respondent also claimed vendor contracts contained "trade secrets" and that their policy was to allow inspection but not copying.

**Legal Analysis and Findings**
The Administrative Law Judge ruled in favor of the Petitioner, establishing a violation of A.R.S. § 33-1805 based on the following:

1. **Withheld Invoices:** The ALJ acknowledged that A.R.S. § 33-1805(B)(4) protects personal member financial records. However, the Respondent had a statutory obligation to provide *redacted* copies of the invoices rather than withholding the documents entirely.
2. **Delayed Inspection:** Although the Petitioner initially acknowledged that contracts were for inspection only, the Respondent failed to make them available within the statutory 10-business-day window. The manager's vacation caused a delay of 18 business days, constituting a violation of A.R.S. § 33-1805(A).
3. **Available Documents:** For other documents that were copied and made available but not picked up by the Petitioner, no violation was found.

**Outcome and Order**
* The Petition was granted.
* **Order:** The Respondent was ordered to comply with A.R.S. § 33-1805 by providing the Petitioner with copies of the requested documents (appropriately redacted) within ten days.
* **Costs:** The Respondent was

Case Participants

Petitioner Side

  • Alexander Winter (Petitioner)
    Homeowner; owns a landscaping management company

Respondent Side

  • Augustus H. Shaw, IV (HOA attorney)
    Shaw & Lines, LLC
    Represented Cortina Homeowners Association
  • Kevin Bishop (property manager)
    Renaissance Community Partners
    Statutory agent and Manager for Respondent; provided testimony

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
    Office of Administrative Hearings
    Presiding Administrative Law Judge
  • Gene Palma (Director)
    Department of Fire, Building and Life Safety
    Agency Director listed on distribution
  • Cliff J. Vanell (Director)
    Office of Administrative Hearings
    Certified the ALJ decision
  • Joni Cage (Agency Staff)
    Department of Fire, Building and Life Safety
    Listed on distribution for Gene Palma
  • Rosella J. Rodriguez (Clerk)
    Office of Administrative Hearings
    Signed mailing certification

The Center Court Condominiums Association vs. Klissas, Katrina

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Case Summary

Case ID 13F-H1313005-BFS
Agency Department of Fire, Building and Life Safety
Tribunal Office of Administrative Hearings
Decision Date 2013-11-13
Administrative Law Judge M. Douglas
Outcome no
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner The Center Court Condominiums Association Counsel Erin McManis
Respondent Katrina Klissas Counsel James B. Rolle III

Alleged Violations

Rule L-9; CC&R Section 9.09
Rule L-8

Outcome Summary

The HOA's petition was dismissed in its entirety. The Tribunal found the balcony board did not constitute a prohibited enclosure and that the HOA was barred by laches from enforcing the rule after a delay of over 10 years. Regarding wind chimes, the HOA failed to prove the homeowner exceeded the permitted number. The homeowner was deemed the prevailing party.

Why this result: The HOA failed to meet the burden of proof for the wind chimes violation and was barred by laches regarding the balcony board due to inexcusable delay.

Key Issues & Findings

Alleged unauthorized balcony enclosure

Petitioner alleged Respondent maintained an unauthorized enclosure on her balcony. Respondent argued the board was for privacy and existed since 1998.

Orders: Dismissed due to insufficient evidence that the board constituted an enclosure and the doctrine of laches barring the claim due to unreasonable delay.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Excessive wind chimes

Petitioner alleged Respondent had more than the allowed four wind chimes. Respondent testified she had four chimes and the rest were wind spinners.

Orders: Dismissed due to lack of credible evidence that Respondent exceeded the limit of four wind chimes.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Decision Documents

13F-H1313005-BFS Decision – 369209.pdf

Uploaded 2026-01-25T15:28:56 (87.6 KB)

13F-H1313005-BFS Decision – 376768.pdf

Uploaded 2026-01-25T15:28:56 (60.4 KB)

**Case Title:** *The Center Court Condominiums Association v. Katrina Klissas*
**Case Number:** 13F-H1313005-BFS
**Forum:** Arizona Office of Administrative Hearings
**Date of Final Decision:** January 3, 2014

**Overview**
This administrative hearing addressed a petition filed by The Center Court Condominiums Association (Petitioner) against homeowner Katrina Klissas (Respondent). The Petitioner alleged violations of the community's Rules and Regulations regarding balcony enclosures and the number of wind chimes allowed on the property.

**Key Facts and Arguments**
* **Balcony Enclosure Allegation:** The Petitioner alleged Ms. Klissas maintained an unauthorized balcony enclosure in violation of Rule L-9 and CC&R Section 9.09. Evidence established that a prior owner installed a 3’ by 5’ wooden board across the balcony railing in 1998 for privacy. The Petitioner was aware of the board as early as 2001 and had even painted it to match the building's trim in 2004.
* **Wind Chimes Allegation:** The Petitioner alleged Ms. Klissas possessed more than the permitted four wind chimes (Rule L-8). A neighbor testified the noise was a nuisance. However, the Respondent testified she had exactly four chimes and that other hanging items were silent "wind spinners".

**Legal Findings and Decision**
Administrative Law Judge (ALJ) M. Douglas ruled in favor of the Respondent, dismissing the case based on the following legal conclusions:

1. **Insufficient Evidence of Enclosure:** The ALJ determined the Petitioner failed to meet the burden of proof to establish that the wooden board constituted a balcony "enclosure".
2. **Doctrine of Laches:** The ALJ applied the doctrine of laches, which bars claims when an inexcusable delay results in prejudice against a party. Because the Petitioner waited over a decade (since 1998/2001) to enforce the removal of the board, the delay was deemed unreasonable and prejudicial to Ms. Klissas.
3. **Compliance with Chime Rules:** The Petitioner failed to provide credible proof that Ms. Klissas had more than four wind chimes or that a formal noise complaint had been filed regarding them. Consequently, no violation of Rule L-8 was found.

**Outcome**
The ALJ ordered the matter dismissed and deemed Ms. Klissas the prevailing party. The decision was certified as the final administrative decision of the Department of Fire, Building and Life Safety on January 3, 2014, after the Department took no action to reject or modify the ALJ's ruling within the statutory timeframe.

Case Participants

Petitioner Side

  • Erin McManis (HOA Attorney)
    Mulcahy Law Firm P.C.
  • Timothy Bartlett (Board President)
    The Center Court Condominiums Association
    Testified regarding ongoing dispute and letters since 2001
  • John Foster Flynn (Witness)
    Neighbor/Homeowner
    Complained about wind chimes; owns unit above Respondent

Respondent Side

  • Katrina Klissas (Respondent)
    Homeowner
    Accused of violating balcony rules (enclosure and wind chimes)
  • James B. Rolle III (Respondent Attorney)
    Law Offices of James B. Rolle
  • Mike Weber (Witness)
    Respondent's husband
    Testified regarding privacy board installation history
  • Roberta Piatt (Witness)
    Former Owner
    Installed the balcony board in 1998

Neutral Parties

  • M. Douglas (ALJ)
    Office of Administrative Hearings
    Administrative Law Judge
  • Gene Palma (Director)
    Department of Fire, Building and Life Safety
    Agency Director receiving the decision
  • Cliff J. Vanell (Director)
    Office of Administrative Hearings
    Certified the ALJ decision
  • Joni Cage (Agency Staff)
    Department of Fire, Building and Life Safety
    Listed on service list
  • Rosella J. Rodriguez (Clerk)
    Office of Administrative Hearings
    Signed certification mailing

Randall C. & Lori M. Hack Family Trust vs. The Ranch at Prescott HOA

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Case Summary

Case ID 13F-H1313002-BFS
Agency DFBLS
Tribunal OAH
Decision Date 2013-06-27
Administrative Law Judge M. Douglas
Outcome yes
Filing Fees Refunded $550.00
Civil Penalties $200.00

Parties & Counsel

Petitioner Randall C. and Lori M. Hack Family Trust Counsel —
Respondent The Ranch at Prescott HOA Counsel D. Reid Garrey

Alleged Violations

A.R.S. § 33-1808(F)

Outcome Summary

The Administrative Law Judge found that the HOA violated A.R.S. § 33-1808(F) by prohibiting industry standard wooden sign frames and requiring metal 'H' frames. The statute precludes regulations on 'for sale' signs other than size and commercial production. The Petitioners were deemed the prevailing party.

Key Issues & Findings

Requirement of specific sign frames

Petitioners argued that the HOA violated A.R.S. § 33-1808(F) by requiring the use of specific metal 'H' sign frames. The HOA argued the rule was for aesthetics and safety.

Orders: HOA ordered to comply with A.R.S. § 33-1808(F); HOA ordered to pay Petitioner's filing fee of $550.00; HOA ordered to pay a civil penalty of $200.00.

Filing fee: $550.00, Fee refunded: Yes, Civil penalty: $200.00

Disposition: petitioner_win

Decision Documents

13F-H1313002-BFS Decision – 346760.pdf

Uploaded 2026-01-25T15:28:47 (127.8 KB)

13F-H1313002-BFS Decision – 351822.pdf

Uploaded 2026-01-25T15:28:47 (58.1 KB)

**Case Summary: Randall C. and Lori M. Hack Family Trust v. The Ranch at Prescott HOA**
**Case No.** 13F-H1313002-BFS
**Venue:** Arizona Office of Administrative Hearings
**Date of Hearing:** June 17, 2013

**Overview**
This case involved a dispute between property owners (Petitioners) and their homeowners’ association (Respondent or "The Ranch") regarding the regulation of real estate sign frames. The Administrative Law Judge (ALJ) ruled in favor of the Petitioners, determining that the HOA’s strict requirement for specific sign frames violated Arizona state law.

**Key Facts and Proceedings**
The Petitioners listed their property for sale using a standard white wooden "L" type sign frame installed by their realtor. In January 2013, the Ranch issued a violation letter to the Petitioners, citing a 2012 rule that required the use of metal "H" sign frames provided by the HOA. The Petitioners refused to change the frame and filed a petition with the Department of Fire, Building and Life Safety, alleging the HOA was violating A.R.S. § 33-1808(F).

**Main Arguments**
* **Petitioners’ Position:** The Petitioners argued that A.R.S. § 33-1808(F) broadly prohibits HOAs from regulating for-sale signs, except for requiring they be commercially produced and of industry standard size. They contended their "L" frame was an industry standard and that the HOA’s attempt to regulate the *frame* itself was an illegal restriction. They also noted the HOA applied the rule inconsistently, waiving requirements for a developer-owned section ("Unit 8").
* **Respondent’s Position:** The HOA argued the rule was implemented for aesthetics and safety, specifically to prevent neglected or fallen signs. They asserted that because the statute did not explicitly mention "sign frames," the HOA retained the authority to regulate them. The HOA claimed they had received legal counsel supporting this interpretation.

**Legal Analysis and Decision**
ALJ M. Douglas rejected the HOA’s arguments, establishing the following legal conclusions:
1. **Burden of Proof:** The Petitioners met the burden of proof by a preponderance of the evidence.
2. **Statutory Interpretation:** The ALJ ruled that A.R.S. § 33-1808(F) allows HOAs to impose *only* two restrictions on real estate signs: they must be (1) standard size and (2) commercially produced. The statute provides that an association "shall not prohibit in any way other than as is specifically authorized… or otherwise regulate" such signs.
3. **Preclusion of Additional Rules:** Consequently, the HOA’s requirement to use a specific, HOA-furnished "H" frame constituted an unauthorized regulation that is precluded by state law. The "L" frame used by Petitioners was deemed an industry standard type.

**Final Outcome**
* **Prevailing Party:** The Petitioners.
* **Orders:** The HOA was ordered to comply with A.R.S. § 33-1808(F), pay the Petitioners' filing fee of $550.00, and pay a civil penalty of $200.00 to the Department.
* **Finality:** The decision was certified as the final administrative decision on August 5, 2013, after the Department of Fire, Building and Life Safety took no action to modify or reject it within the statutory timeframe.

Case Participants

Petitioner Side

  • Randall C. Hack (petitioner)
    Randall C. and Lori M. Hack Family Trust
    Appeared on behalf of the Trust; provided testimony
  • Lori M. Hack (petitioner)
    Randall C. and Lori M. Hack Family Trust
    Provided testimony

Respondent Side

  • D. Reid Garrey (HOA attorney)
    Garrey, Woner, Hoffmaster & Peshek, P.C.
  • Richard John Tetreault (board member)
    The Ranch at Prescott HOA
    Chairman of the Ranch; provided testimony

Neutral Parties

  • M. Douglas (ALJ)
    Office of Administrative Hearings
    Administrative Law Judge
  • Gene Palma (agency director)
    Department of Fire, Building and Life Safety
    Director
  • Cliff J. Vanell (agency director)
    Office of Administrative Hearings
    Director; certified the decision
  • Joni Cage (agency staff)
    Department of Fire, Building and Life Safety
    Recipient of decision copy
  • Rosella J. Rodriguez (clerk)
    Office of Administrative Hearings
    Mailed/faxed copies of the certification

Scheinholtz, Martin F. vs. Corte Bella Country Club Association

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Case Summary

Case ID 13F-H1313001-BFS
Agency DFBLS
Tribunal OAH
Decision Date 2013-06-19
Administrative Law Judge M. Douglas
Outcome no
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Martin F. Scheinholtz Counsel Yvette D. Ansel
Respondent Corte Bella Country Club Association Counsel Troy B. Stratman

Alleged Violations

A.R.S. § 33-1804

Outcome Summary

The Administrative Law Judge ruled in favor of the Respondent, Corte Bella Country Club Association. The ALJ concluded that the Petitioner failed to meet the burden of proof to establish a violation of A.R.S. § 33-1804 or the Bylaws. The Board's appointment of a director during the 'new business' portion of a meeting, though not on the written agenda, was found to be permissible as members were allowed to comment prior to the vote.

Why this result: Petitioner failed to prove the existence of a secret meeting or that the omission of the specific item from the agenda violated the statute or bylaws.

Key Issues & Findings

Open Meeting Law / Agenda Violation

Petitioner alleged that the Board violated A.R.S. § 33-1804 by meeting secretly to decide on a board appointment prior to the open meeting and by failing to list the appointment of a new director on the agenda for the December 11, 2012 meeting.

Orders: The petition is dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • 4
  • 29
  • 46
  • 49

Decision Documents

13F-H1313001-BFS Decision – 344903.pdf

Uploaded 2026-01-25T15:28:43 (151.3 KB)

13F-H1313001-BFS Decision – 350917.pdf

Uploaded 2026-01-25T15:28:43 (59.6 KB)

**Case Summary: Scheinholtz v. Corte Bella Country Club Association (No. 13F-H1313001-BFS)**

**Proceedings and Parties**
The hearing was conducted on June 3, 2013, before Administrative Law Judge M. Douglas at the Office of Administrative Hearings in Phoenix, Arizona. The Petitioner, Martin F. Scheinholtz, is a homeowner and member of the Corte Bella Country Club Association. The Respondent is the Corte Bella Country Club Association, a homeowners' association.

**Key Facts and Arguments**
The Petitioner filed a complaint alleging the Respondent violated A.R.S. § 33-1804 (Open Meeting Law) regarding actions taken during a Board of Directors meeting on December 11, 2012.

* **Petitioner’s Arguments:** The Petitioner alleged that the Board improperly appointed a new director, William Blake, to fill a vacancy during the meeting without listing the item on the agenda. He argued this was a "huge" issue and that the omission prevented members from deciding whether to attend and participate. He further alleged that a quorum of four Board members must have met secretly prior to the open meeting to predetermine the vote.
* **Respondent’s Arguments:** Witnesses for the Respondent testified that the motion to appoint Mr. Blake was raised as "new business" during the open meeting, which is a common practice. While three Board members admitted to discussing the potential motion beforehand, they testified that a quorum (four members) was not involved in any prior discussion or agreement. The Respondent cited Article III, Section 3.6 of the Bylaws, which authorizes the Board to fill vacancies by appointment. Additionally, testimony confirmed that homeowners present at the meeting were allowed to speak on the issue before the Board voted.

**Legal Analysis and Findings**
The Administrative Law Judge (ALJ) evaluated the evidence based on a preponderance of the evidence standard.
* **Secret Meetings:** The Tribunal found no credible evidence that a quorum of the Board met or conducted business regarding the appointment prior to the December 11, 2012, meeting. Evidence showed only three members were aware the matter would "probably" be raised, which does not constitute a quorum violation.
* **Procedural Compliance:** The ALJ determined that the Bylaws explicitly grant the Board the right to declare a vacancy and appoint a successor. The Tribunal noted that the motion passed by a 4-2 vote and that the Board complied with open meeting requirements by allowing member discussion prior to the vote.

**Outcome and Final Decision**
The ALJ concluded that the Petitioner failed to meet the burden of proof to establish a violation of A.R.S. § 33-1804 or the Association's Bylaws.
* **Ruling:** Corte Bella Country Club Association was deemed the prevailing party, and the petition was dismissed.
* **Certification:** The Department of Fire, Building and Life Safety took no action to reject or modify the decision within the statutory timeframe; therefore, the ALJ's decision was certified as the final administrative decision on July 29, 2013.

Case Participants

Petitioner Side

  • Martin F. Scheinholtz (petitioner)
    Corte Bella Country Club Association (Member)
    Homeowner alleging violation of open meeting laws
  • Yvette D. Ansel (attorney)
    Hymson Goldstein & Pantiliat, PLLC

Respondent Side

  • Troy B. Stratman (attorney)
    Mack Watson & Stratman, P.L.C.
  • Regina Shanney-Saborsky (witness)
    Corte Bella Country Club Association
    Board Member; testified she voted against the appointment
  • William Blake (board member)
    Corte Bella Country Club Association
    Appointed to fill vacant director position
  • Robert Moberly (witness)
    Corte Bella Country Club Association
    Board Member
  • Ray Valle (witness)
    Corte Bella Country Club Association
    Former Board Member; testified regarding the motion to appoint Blake
  • Walter E. Kearns (board member)
    Corte Bella Country Club Association
    Mentioned in testimony/proxy
  • Vincent James Petrella (witness)
    Corte Bella Country Club Association
    Former Board Member; admitted to 'orchestrating' the appointment
  • Robert Rosenberg (board member)
    Corte Bella Country Club Association
    Mentioned in testimony as not being aware of the motion beforehand
  • James R. Williams (witness)
    Corte Bella Country Club Association
    Board President

Neutral Parties

  • M. Douglas (ALJ)
    Office of Administrative Hearings
    Administrative Law Judge
  • Gene Palma (agency director)
    Department of Fire, Building and Life Safety
  • Cliff J. Vanell (director)
    Office of Administrative Hearings
    Certified the ALJ decision
  • Joni Cage (recipient)
    Department of Fire, Building and Life Safety
    c/o for Gene Palma
  • Rosella J. Rodriguez (clerk)
    Office of Administrative Hearings
    Mailed/faxed the certification

McConnell, Edward J. & Judith S. vs. Dew Mutual Expense Sharing Group

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Case Summary

Case ID 12F-H1213013-BFS
Agency Department of Fire, Building, and Life Safety
Tribunal Office of Administrative Hearings
Decision Date 2013-04-15
Administrative Law Judge Brian Brendan Tully
Outcome no
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Edward J. McConnell and Judith S. McConnell Counsel —
Respondent Dew Mutual Expense Sharing Group Counsel —

Alleged Violations

A.R.S. § 33-1803(D)

Outcome Summary

The ALJ dismissed the petition. The Petitioners failed to establish that they complied with the certified mail requirement of A.R.S. § 33-1803(C), which meant the HOA was not liable for a violation of § 33-1803(D). Additionally, the evidence showed Petitioners violated the CC&Rs and A.R.S. § 33-1221(2) by altering common elements without written permission.

Why this result: Failure to satisfy burden of proof regarding certified mail service; confirmation of unauthorized alteration of common elements.

Key Issues & Findings

Failure to provide statutory response to violation notice

Petitioners alleged the HOA violated A.R.S. § 33-1803(D) by delaying the denial of their shade structure request and failing to provide required information. The dispute arose after Petitioners installed a shade structure on common elements without prior written approval.

Orders: Petition dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1803(C)
  • A.R.S. § 33-1803(D)
  • A.R.S. § 33-1221(2)
  • A.R.S. § 33-1252

Decision Documents

12F-H1213013-BFS Decision – 334072.pdf

Uploaded 2026-01-25T15:28:38 (112.1 KB)

12F-H1213013-BFS Decision – 339518.pdf

Uploaded 2026-01-25T15:28:38 (59.5 KB)

**Case Summary: McConnell v. Dew Mutual Expense Sharing Group**
**Case No. 12F-H1213013-BFS**

**Proceedings Overview**
This administrative hearing was held on March 26, 2013, before Administrative Law Judge Brian Brendan Tully at the Office of Administrative Hearings in Phoenix, Arizona. The dispute involved Petitioners Edward J. and Judith S. McConnell and the Respondent, Dew Mutual Expense Sharing Group, an unincorporated condominium association. The Petitioners bore the burden of proof by a preponderance of the evidence.

**Key Facts**
On September 12, 2012, the Petitioners requested Board authorization to install an Alumawood™ shade structure on the west side of their condominium. This request followed the significant trimming of a Palo Verde tree in the common elements, which had previously shaded their unit. The Board expressed misgivings on September 17, 2012, but did not formally deny the request until November 14, 2012. Without waiting for written approval, the Petitioners installed the structure in October 2012. The structure was erected on "common elements," which are defined to include land not conveyed with individual units and the exterior of the units.

**Main Issues and Arguments**
* **Petitioners’ Position:** The Petitioners argued that the Association violated A.R.S. § 33-1803(D) by delaying the denial of their request for over two months and failing to provide specific statutory information regarding the violation notice.
* **Respondent’s Position:** The Association contended that the Petitioners violated Section 2.04 of the Rules and Regulations and A.R.S. § 33-1221(2) by making exterior additions to common elements without prior written Board approval.

**Legal Findings**
The Administrative Law Judge ruled in favor of the Respondent regarding the alleged violations. The key legal points were:
1. **Unauthorized Alteration:** The evidence established that the Petitioners erected the structure on common elements without written permission, violating both Association Rule 2.04 and A.R.S. § 33-1221(2). Furthermore, they did not obtain a conveyance of the common elements from 80% of the membership as required by A.R.S. § 33-1252.
2. **Procedural Compliance:** The Judge rejected the Petitioners' claim regarding A.R.S. § 33-1803(D). The statute requires an association to respond within ten days only after receiving a member’s response via *certified mail*. As the Petitioners failed to prove they sent their response by certified mail, the Association was not found in violation of the statutory timeline.

**Outcome and Final Decision**
The Administrative Law Judge recommended that the Petition be dismissed because the Petitioners failed to sustain their burden of proof. Although the Respondent requested an order requiring the removal of the shade structure, the Judge denied this request because the Association had not filed its own petition seeking such relief.

The decision was certified as the final administrative decision of the Department of Fire, Building, and Life Safety on May 21, 2013, after the Department took no action to reject or modify the ALJ’s recommendation within the statutory timeframe.

Case Participants

Petitioner Side

  • Edward J. McConnell (Petitioner)
    Member of Respondent association
  • Judith S. McConnell (Petitioner)
    Member of Respondent association

Respondent Side

  • Kenn MacIntosh (authorized representative)
    Dew Mutual Expense Sharing Group
    Spelled 'Ken Macintosh' in mailing list
  • Ronald Wayne McIntyre (board member)
    Dew Mutual Expense Sharing Group
    Received written request from Petitioners
  • Jan Mayfield (Secretary)
    Dew Mutual Expense Sharing Group
    Listed as 'Dew Condo Group Secretary' on mailing list

Neutral Parties

  • Brian Brendan Tully (ALJ)
    Office of Administrative Hearings
  • Cliff J. Vanell (OAH Director)
    Office of Administrative Hearings
    Certified the ALJ decision
  • Gene Palma (Agency Director)
    Department of Fire, Building, and Life Safety
    Received copy of decision
  • Joni Cage (Agency Staff)
    Department of Fire, Building, and Life Safety
    c/o for Gene Palma on mailing list

Park, Denise vs. Montezuma Fairway Villas Homeowners Association

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Case Summary

Case ID 13F-H1213010-BFS-rhg
Agency Department of Fire, Building and Life Safety
Tribunal Office of Administrative Hearings
Decision Date 2014-01-17
Administrative Law Judge M. Douglas
Outcome partial
Filing Fees Refunded $2,000.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Denise Park Counsel J. Roger Wood
Respondent Montezuma Fairway Villas Homeowners Association Counsel Jonathon V. O’Steen

Alleged Violations

A.R.S. § 33-1247
A.R.S. § 33-1248
A.R.S. § 33-1250
A.R.S. § 33-1258

Outcome Summary

The Director accepted the ALJ's decision on rehearing. The Petitioner prevailed on 2 of 4 issues (maintenance and elections). The Respondent was ordered to pay Petitioner $1,000.00 (half the filing fee) and provide proof of weed control in common areas.

Why this result: Petitioner lost the open meetings issue due to failure to attend despite notice, and the financial records issue due to the one-year statute of limitations.

Key Issues & Findings

Maintenance of common areas

Petitioner alleged the HOA failed to maintain common areas, citing a broken wall, weeds, and overflowing trash containers. The Tribunal found credible evidence of these conditions.

Orders: HOA ordered to comply with statute; eliminate or control weeds within 90 days and provide proof.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • 73
  • 76
  • 133
  • 138
  • 139

Open meetings

Petitioner alleged the HOA failed to conduct open meetings. The Tribunal found notice was mailed but Petitioner failed to attend.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_lose

Cited:

  • 73
  • 134

Proper elections

Petitioner alleged the HOA failed to hold proper elections. The Tribunal found no election was held at the annual meeting.

Orders: HOA ordered to fully comply with election statutes in the future.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • 73
  • 135
  • 138

Financial information

Petitioner alleged the HOA failed to provide requested financial information. While the HOA failed to provide records within 10 days, the claim was barred by the statute of limitations.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_lose

Cited:

  • 73
  • 136
  • 137

Decision Documents

12F-H1213010-BFS Decision – 334123.pdf

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12F-H1213010-BFS Decision – 370568.pdf

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12F-H1213010-BFS Decision – 376532.pdf

Uploaded 2026-01-27T21:10:13 (212.0 KB)

**Case Summary: Denise Park v. Montezuma Fairway Villas Homeowners Association**
**Case No. 12F-H1213010-BFS**

**Overview**
This case involves a petition filed by Denise Park (Petitioner) against the Montezuma Fairway Villas Homeowners Association (Respondent) before the Arizona Office of Administrative Hearings. The Petitioner, an owner of three condominium units, alleged that the Respondent violated multiple provisions of the Arizona Revised Statutes (A.R.S.) regarding planned communities. The proceedings included an initial hearing on March 28, 2013, and a rehearing on November 20, 2013.

**Key Allegations and Issues**
The Petitioner charged the Respondent with four specific violations:
1. **Failure to maintain common areas** (A.R.S. § 33-1247), specifically regarding a broken wall, weeds, peeling paint, and insufficient trash containers.
2. **Failure to conduct open meetings** (A.R.S. § 33-1248).
3. **Failure to hold proper elections** (A.R.S. § 33-1250).
4. **Failure to provide financial information** within the statutory timeframe (A.R.S. § 33-1258).

**Arguments**
* **Petitioner:** Park testified that common areas were neglected, trash bins were overflowing, and she had not received proper notice of meetings or elections. She also argued the Association failed to provide requested financial records until after she filed her petition.
* **Respondent:** The Association argued that maintenance issues resulted from financial struggles caused by unpaid dues, including dues owed by the Petitioner. Regarding meetings, the Treasurer testified that notice for the May 2012 meeting was mailed to Park, but she did not attend. Regarding elections, the Association argued that because only three members attended the meeting—all of whom were current officers willing to continue—no formal election was necessary. On rehearing, the Respondent raised a defense regarding the statute of limitations for the financial records claim.

**Findings of Fact and Legal Conclusions**
The Administrative Law Judge (ALJ) issued a decision on rehearing, which modified the initial findings:

1. **Maintenance (Violation Found):** The ALJ found the Association failed to maintain common areas, citing the broken wall and weeds. Although the Association performed repairs after the initial hearing, the violation was substantiated at the time of the complaint.
2. **Open Meetings (No Violation):** The ALJ found the Association did hold

Case Participants

Petitioner Side

  • Denise Park (petitioner)
    Montezuma Fairway Villas Homeowners Association (Member)
    Owner of three condominium units
  • J. Roger Wood (attorney)
    J. Roger Wood PLLC
    Represented Petitioner in rehearing

Respondent Side

  • Carol Ann Klagge (witness)
    Montezuma Fairway Villas Homeowners Association
    Treasurer; owns three units
  • Jay Klagge (board member)
    Montezuma Fairway Villas Homeowners Association
    Secretary
  • Tony Sturgeon (board member)
    Montezuma Fairway Villas Homeowners Association
    Vice-President
  • Helen Bartels (witness)
    Montezuma Fairway Villas Homeowners Association
    Became board member after March 28, 2013 hearing
  • Jonathon V. O’Steen (attorney)
    O’Steen & Harrison, PLC
    Represented Respondent in rehearing; listed as Petitioner's attorney in initial hearing decision
  • Kevin R. Harper (attorney)
    Harper Law, PLC
    Represented Respondent in initial hearing; Final Order mailing list lists 'Denise Park c/o Harper Law PLC'

Neutral Parties

  • M. Douglas (ALJ)
    Office of Administrative Hearings
  • Gene Palma (Director)
    Department of Fire, Building and Life Safety
  • Joni Cage (Complaint Program Manager)
    Department of Fire, Building and Life Safety

Kirschner, Stuart vs. Trilogy at Vistancia Community Association

Posted on by

Case Summary

Case ID 11F-H1112008-BFS
Agency DFBLS
Tribunal OAH
Decision Date 2012-03-20
Administrative Law Judge M. Douglas
Outcome no
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Stuart Kirschner Counsel Kevin R. Harper
Respondent Trilogy at Vistancia Community Association Counsel Todd M. Allison

Alleged Violations

Fine Policy and Appeal Process

Outcome Summary

The ALJ dismissed the petition, concluding that the HOA acted reasonably and within its authority under the CC&Rs and Fine Policy when it suspended the homeowner's club privileges for 60 days following a code-of-conduct violation where the homeowner used profane language and aggressive behavior.

Why this result: The Petitioner was found to have violated the code of conduct, and the HOA followed proper procedures in imposing the suspension; the Petitioner also waived his right to a hearing during the internal process.

Key Issues & Findings

Failure to adhere to discipline policies regarding code-of-conduct violation

Petitioner alleged that the Respondent failed to adhere to its policies when it disciplined him for an alleged personal code-of-conduct violation involving a confrontation with a developer's employee at the community club.

Orders: The Petition is dismissed. No action is required of the Respondent.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_lost

Cited:

  • Fine Policy and Appeal Process
  • CC&Rs 5.3
  • Rule 3.3.2

Decision Documents

11F-H1112008-BFS Decision – 289547.pdf

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11F-H1112008-BFS Decision – 292439.pdf

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**Case Summary: Kirschner v. Trilogy at Vistancia Community Association**
**Case No. 11F-H1112008-BFS**

**Overview**
This case involves a petition filed by homeowner Stuart Kirschner (Petitioner) against the Trilogy at Vistancia Community Association (Respondent) regarding disciplinary actions taken against him. The hearing was conducted on March 12, 2012, before Administrative Law Judge M. Douglas at the Office of Administrative Hearings for the Arizona Department of Fire, Building and Life Safety.

**Key Facts**
On September 18, 2011, the Petitioner, who was recovering from hip surgery, confronted Kelly Young, a sales associate for the developer, outside the community’s Kiva Club. The Petitioner was upset that a sales golf cart was parked near the entrance while he could not find handicapped parking.

Witness testimony established that the Petitioner approached Ms. Young and yelled at her to move the cart, using profanity such as "damn" and "God damn". Ms. Young testified that the Petitioner’s behavior was loud and aggressive, causing her to feel embarrassed and fearful. The Petitioner admitted to raising his voice and using the word "damn" but denied being abusive.

**Procedural History**
Following the incident, the Respondent notified the Petitioner of a Code of Conduct violation and his right to a hearing. The Petitioner initially requested a hearing but subsequently waived that right via email on October 10, 2011. The Board of Directors reviewed the evidence, found that the Petitioner’s erratic behavior constituted a danger to persons, and suspended his Kiva Club privileges for 60 days. The Petitioner challenged the Association’s adherence to its policies and the denial of his subsequent attempt to appeal the suspension.

**Key Legal Arguments and Findings**
The Administrative Law Judge evaluated whether the Respondent followed its governing documents, specifically the CC&Rs and the Fine Policy and Appeal Process.

1. **Code of Conduct Violation:** The Judge found that the Respondent’s rules prohibit loud, profane, or abusive language. Based on the evidence, the Judge concluded that the Petitioner violated this code by confronting Ms. Young in a profane manner that caused her fear.
2. **Reasonableness of Sanction:** The Judge determined that the 60-day suspension was a reasonable and justified response to behavior that presented

Case Participants

Petitioner Side

  • Stuart Kirschner (petitioner)
    Trilogy at Vistancia Community Association (Member)
    Homeowner; hip replacement patient
  • Kevin R. Harper (attorney)
    Harper Law P.L.C.

Respondent Side

  • Todd M. Allison (attorney)
    Fennemore Craig, P.C.
  • Kelly Young (witness)
    Shea Homes (Developer)
    Sales associate involved in the altercation
  • Robert Williams (board member)
    Trilogy at Vistancia Community Association
    Also General Manager/Sales Manager for the development
  • Jeffrey Dixon (property manager)
    Management Company
    Onsite manager; investigated the violation

Neutral Parties

  • M. Douglas (ALJ)
    Office of Administrative Hearings
  • Gene Palma (agency director)
    Department of Fire, Building and Life Safety
    Director receiving the decision
  • Cliff J. Vanell (agency director)
    Office of Administrative Hearings
    Director certifying the decision
  • Beth Soliere (agency staff)
    Department of Fire, Building and Life Safety
    Recipient of transmitted decision

Walter, Margo vs. Kingswood Owners Association

Posted on by

Case Summary

Case ID 12F-H1213012-BFS
Agency DFBLS
Tribunal OAH
Decision Date 2013-05-10
Administrative Law Judge Brian Brendan Tully
Outcome false
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Margo L. Walter Counsel —
Respondent Kingswood Owners Association Counsel —

Alleged Violations

A.R.S. § 33-1802(4)

Outcome Summary

The petition was dismissed because the HOA does not own any real property (common elements) and therefore does not qualify as a 'planned community' under Arizona law, depriving the agency of jurisdiction.

Why this result: Lack of jurisdiction; Respondent is not a planned community pursuant to A.R.S. § 33-1802(4).

Key Issues & Findings

Maintenance of private property / Jurisdiction

Petitioner alleged the HOA maintained private driveways in violation of CC&Rs despite the streets being annexed by the city. Respondent moved to dismiss on grounds that it does not own real property and is not a planned community.

Orders: Petition dismissed for lack of jurisdiction. Respondent's request for attorney fees denied.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1802(4)
  • A.R.S. § 41-2198.01

Decision Documents

12F-H1213012-BFS Decision – 332161.pdf

Uploaded 2026-01-25T15:28:33 (72.1 KB)

12F-H1213012-BFS Decision – 337656.pdf

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**Case Summary: Walter v. Kingswood Owners Association**
**Case No:** 12F-H1213012-BFS
**Forum:** Arizona Office of Administrative Hearings
**Date:** March 29, 2013 (Decision); May 10, 2013 (Final Certification)

**Background and Key Facts**
Petitioner Margo L. Walter filed a complaint with the Arizona Department of Fire, Building, and Life Safety (the "Department") against the Kingswood Owners Association ("Respondent"). The Petitioner alleged that the Respondent was violating its Articles and CC&Rs by using HOA membership dues to maintain private property—specifically providing snow removal and crack sealing for six private driveways—despite the fact that the City of Prescott had annexed the community's private streets on June 9, 2000.

**Key Arguments and Issues**
The central issue was whether the Department possessed subject matter jurisdiction to adjudicate the dispute.

* **Respondent’s Argument:** The Respondent filed a Motion to Dismiss, contending that the Department lacked jurisdiction under A.R.S. § 41-2198.01. The Respondent argued it was neither a condominium nor a "planned community" because the Association did not own any real property.
* **Petitioner’s Argument:** The Petitioner opposed the motion and requested the matter proceed to a hearing.

**Legal Analysis and Findings**
Administrative Law Judge Brian Brendan Tully issued a decision focusing on the statutory definition of the entities under the Department's purview.

1. **Statutory Authority:** The Department is authorized to adjudicate disputes involving mobile home parks, condominiums, and planned communities.
2. **Definition of Planned Community:** Under A.R.S. § 33-1802(4), a "planned community" is defined as a real estate development that includes real estate "owned and operated" by the association.
3. **Application to Facts:** The ALJ found it uncontroverted that the Respondent is a nonprofit corporation that does not own any real estate, having sold its private streets to the City of Prescott in 2000.
4. **Conclusion:** Because the Respondent does not own real estate, it does not meet the statutory definition of a "planned community" pursuant to A.R.S. § 33-1802(4). Consequently, the Department lacked jurisdiction over the Respondent.

**Final Decision and Outcome**
* **Dismissal:** The Administrative Law Judge ordered that the Petition be dismissed due to lack of jurisdiction.
* **Costs and Fees:** The Respondent's request for attorney’s fees and costs was denied. The Tribunal noted that the statute cited by the Respondent (A.R.S. § 41-1092.12) applies to the Department of Environmental Quality, not the Department of Fire, Building, and Life Safety.
* **Certification:** The Department took no action to reject or modify the ALJ's decision within the statutory review period. Therefore, the decision was certified as the final administrative decision on May 10, 2013

Case Participants

Petitioner Side

  • Margo L. Walter (Petitioner)
    Also spelled 'Walters' in distribution list

Respondent Side

  • Beth Mulcahy (attorney)
    Mulcahy Law Firm (implied by context of letter)
    Former counsel for Respondent; wrote opinion letter dated Oct 31, 2011

Neutral Parties

  • Brian Brendan Tully (ALJ)
    Office of Administrative Hearings
    Administrative Law Judge
  • Gene Palma (Director)
    Department of Fire, Building, and Life Safety
    Agency Director
  • Cliff J. Vanell (Director)
    Office of Administrative Hearings
    Signed Certification of Decision
  • Joni Cage (staff)
    Department of Fire, Building, and Life Safety
    Care of for Gene Palma in distribution list

Cavanaugh, William vs. Agua Dulce Homeowners Association

Posted on by

Case Summary

Case ID 12F-H1213005-BFS
Agency DFBLS
Tribunal OAH
Decision Date 2013-03-11
Administrative Law Judge M. Douglas
Outcome no
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner William Cavanaugh Counsel —
Respondent Agua Dulce Homeowners Association Counsel Douglas W. Glasson

Alleged Violations

A.R.S. § 33-1205

Outcome Summary

The ALJ dismissed the petition finding that the Department of Fire, Building and Life Safety did not have jurisdiction over zoning code allegations and the Petitioner failed to prove violations of the CC&Rs or statutes.

Why this result: Lack of jurisdiction over local zoning ordinances and failure to meet the burden of proof regarding CC&R violations.

Key Issues & Findings

Applicability of local ordinances

Petitioner alleged the HOA violated zoning laws and CC&Rs regarding approved vegetation types, specifically allowing non-native and high-pollen plants.

Orders: The Petition is dismissed; no action is required of the Respondent.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1205
  • Pima County Zoning Code Co9-85-50

Decision Documents

12F-H1213005-BFS Decision – 329125.pdf

Uploaded 2026-01-25T15:28:14 (99.4 KB)

12F-H1213005-BFS Decision – 334511.pdf

Uploaded 2026-01-25T15:28:14 (59.5 KB)

**Case Title:** William Cavanaugh v. Agua Dulce Homeowners Association
**Case Number:** 12F-H1213005-BFS
**Forum:** Office of Administrative Hearings, State of Arizona

**Hearing Proceedings and Key Facts**
The hearing took place on February 4, 2013, before Administrative Law Judge (ALJ) M. Douglas,. Petitioner William Cavanaugh, a homeowner and member of the Agua Dulce Homeowners Association ("Agua"), filed a petition alleging that Agua violated A.R.S. § 33-1205, Pima County Zoning Laws, and the association's CC&Rs,.

The central dispute involved vegetation within the community. The Petitioner alleged that Agua allowed homeowners to plant non-native plants that were not "low-pollen" or "low-water" vegetation, contrary to lists approved by Pima County,. He testified that this vegetation caused him health issues and argued Agua had the authority to force the removal of such plants.

**Key Arguments**
* **Respondent's Defense:** Agua argued that the Department of Fire, Building and Life Safety lacked subject-matter jurisdiction to interpret or enforce Pima County Zoning Codes.
* **Witness Testimony:**
* Linda Ware, a member of the Architectural Review Committee (ARC), testified that while Agua is strict regarding front yards, implementing the Petitioner's suggested changes for private backyards would be costly.
* Betty Blaylock, Board President, testified that Pima County officials had indicated they were not concerned with vegetation in private backyards within Agua,.
* Terry Anderson, a homeowner, expressed concern that the removal of established vegetation would infringe on private property rights and incur significant costs,.

**Legal Analysis and Issues**
The ALJ identified the standard of proof as a "preponderance of the evidence," which rests on the party asserting the claim. The tribunal addressed two main legal points:

1. **Jurisdiction:** The ALJ concluded that the Department of Fire, Building and Life Safety does not have jurisdiction over alleged violations of Pima County Zoning Ordinances.
2. **Evidence of Violation:** The ALJ found that the Petitioner failed to present credible evidence that Agua violated its own CC&Rs or any state statutes regulating homeowners' associations.

**Final Decision**
The ALJ recommended that the petition be dismissed, ordering that no action was required of Agua. On April 17, 2013, the Office of Administrative Hearings certified the ALJ's decision as the final administrative decision of the Department of Fire, Building and Life Safety, as the Department had not accepted, rejected, or modified the decision within the statutory timeframe provided by A.R.S. § 41-1092.08,.

Case Participants

Petitioner Side

  • William Cavanaugh (Petitioner)
    Agua Dulce Homeowners Association (Member)
    Appeared on his own behalf; former ARC member

Respondent Side

  • Douglas W. Glasson (Attorney)
    The Curl Law Firm, P.L.C.
    Attorney for Agua Dulce Homeowners Association
  • Linda Ware (Witness)
    Agua Dulce Homeowners Association (ARC Member)
    Testified regarding vegetation and property values
  • Betty Blaylock (Board President)
    Agua Dulce Homeowners Association
    Testified regarding ARC meeting and county information
  • Terry Anderson (Witness)
    Agua Dulce Homeowners Association (Homeowner)
    Testified regarding concern for private property rights and costs

Neutral Parties

  • M. Douglas (ALJ)
    Office of Administrative Hearings
  • Gene Palma (Agency Director)
    Department of Fire, Building and Life Safety
    Director to whom the decision was transmitted
  • Cliff J. Vanell (OAH Director)
    Office of Administrative Hearings
    Certified the ALJ decision
  • Joni Cage (Administrative Staff)
    Department of Fire, Building and Life Safety
    c/o for Gene Palma

Varhely, Emry & Muriel vs. Eighth Street Townhouse Association

Posted on by

Case Summary

Case ID 12F-H1213009-BFS
Agency Department of Fire, Building and Life Safety
Tribunal OAH
Decision Date 2013-03-01
Administrative Law Judge Tammy L. Eigenheer
Outcome no
Filing Fees Refunded $550.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Emry & Muriel Varhely Counsel —
Respondent Eighth Street Square Townhouse Association Counsel Nikita Patel

Alleged Violations

A.R.S. § 33-1806

Outcome Summary

The ALJ dismissed the petition because the Respondent, having fewer than 50 units, was not statutorily required to provide the specific disclosure statement regarding unit alterations or improvements that the Petitioners claimed was missing.

Why this result: The Respondent successfully established that it governs a community with fewer than 50 units, which exempted it from the specific disclosure requirement alleged by the Petitioners.

Key Issues & Findings

Failure to provide statement regarding existing violations at sale

Petitioners alleged the HOA violated A.R.S. § 33-1806 by failing to provide a statement as to whether association records reflected any alterations or improvements to the unit that violated the declaration prior to closing escrow.

Orders: The Petition is dismissed; no action is required of Respondent.

Filing fee: $550.00, Fee refunded: No

Disposition: respondent_win

Decision Documents

12F-H1213009-BFS Decision – 327965.pdf

Uploaded 2026-01-25T15:28:22 (86.7 KB)

12F-H1213009-BFS Decision – 333516.pdf

Uploaded 2026-01-25T15:28:23 (57.9 KB)

**Case Summary: Varhely v. Eighth Street Square Townhouse Association**
**Case No:** 12F-H1213009-BFS
**Forum:** Office of Administrative Hearings, State of Arizona

**Proceedings and Parties**
This administrative hearing, held on February 13, 2013, involved a dispute between home buyers Emry and Muriel Varhely (Petitioners) and the Eighth Street Square Townhouse Association (Respondent). The Petitioners appeared on their own behalf, while the Respondent was represented by counsel.

**Key Facts**
* **The Purchase:** In February 2012, Petitioners entered a contract to buy a unit in the Eighth Street Square community, which was owned by ING Bank FSB following a foreclosure.
* **Community Size:** The planned community consists of 48 units.
* **Disclosure Dispute:** On March 13, 2012, the Respondent provided information to the escrow company indicating violations existed. However, the Petitioners claimed that prior to closing escrow on that same day, they did not receive a specific statement from the Association regarding alterations or improvements that violated the Declaration.
* **The Allegation:** Petitioners filed a complaint alleging the Association violated A.R.S. § 33-1806 by failing to notify them of existing violations at the time of purchase.

**Main Arguments**
* **Petitioners' Argument:** The Petitioners argued that because the Respondent provided some documents required under the statute, it was obligated to provide all of them, including the statement on violations. They contended they relied on the documents provided and that since the seller (the bank) likely lacked knowledge of the violations, the Association was responsible for notifying them.
* **Respondent's Defense:** The Association maintained that because the community contained fewer than 50 units, the specific statutory requirement for the Association to provide a statement regarding existing violations did not apply.

**Legal Analysis and Findings**
The Administrative Law Judge (ALJ) focused on the specific applicability of A.R.S. § 33-1806 regarding community size.

1. **Statutory Distinction:** The ALJ noted that for planned communities with *fewer than 50 units*, A.R.S. § 33-1806(A) directs that a "member" (seller) shall mail or deliver the required disclosures to the purchaser.
2. **Association's Obligation:** The Judge clarified that if the community had 50 or more units, the Association would have been required to provide an affirmative statement regarding violations. However, because Eighth Street Square has only 48 units, the Respondent had no obligation under the statute to notify the Petitioners of the known violation, regardless of whether the seller knew of the violation or whether the Association provided other documents.
3. **Burden of Proof:** The Petitioners failed to meet the burden of proving by a preponderance of the evidence that the Respondent violated the statute.

**Final Decision and Outcome**
* **Ruling:** The ALJ ordered that the Petition be dismissed, concluding that no action was required of the Respondent.
* **Certification:** The Department of Fire, Building and Life Safety took no action to modify or reject the decision within the statutory timeframe. Consequently, the ALJ’s decision was certified as the final administrative decision on April 10, 2013.

Case Participants

Petitioner Side

  • Emry Varhely (petitioner)
    Spelled 'Varhaly' in Source 2 mailing list
  • Muriel Varhely (petitioner)
    Appeared on behalf of Petitioners

Respondent Side

  • Nikita Patel (attorney)
    Carpenter, Hazlewood, Delgado & Bolen, PLC
    Represented Respondent

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
    Office of Administrative Hearings
  • Gene Palma (Director)
    Department of Fire, Building and Life Safety
  • Cliff J. Vanell (Director)
    Office of Administrative Hearings
    Signed Certification of Decision
  • Joni Cage (administrative staff)
    Department of Fire, Building and Life Safety
    Listed c/o for Gene Palma