FISH, GREG vs. FLYNN LANE BILTMORE ASSOC, INC.

Posted on November 24, 2014 by [email protected]

Case Summary

Case ID	14F-H1414007-BFS
Agency	DFBLS
Tribunal	OAH
Decision Date	2014-11-24
Administrative Law Judge	M. Douglas
Outcome	yes
Filing Fees Refunded	$550.00
Civil Penalties	$200.00

Parties & Counsel

Petitioner	Greg Fish	Counsel	—
Respondent	Flynn Lane Biltmore Assoc, Inc.	Counsel	Craig Armstrong

Alleged Violations

CC&R 8(B)

Outcome Summary

The Tribunal found the Respondent violated CC&R 8(B) by not following the percentage-based assessment method. The Petitioner prevailed and was awarded the filing fee reimbursement.

Key Issues & Findings

Incorrect Assessment Method

Petitioner alleged assessments were billed incorrectly as equal splits among units rather than prorated based on proportionate share of Common Expenses as required by CC&Rs. Respondent admitted to the practice but cited historical precedent.

Orders: Respondent shall fully comply with applicable provisions of its CC&Rs in the future. Respondent shall pay Petitioner filing fee of $550.00. Respondent shall pay civil penalty of $200.00.

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

Disposition: petitioner_win

Cited:

CC&R 8(B)
CC&R 7

Decision Documents

14F-H1414007-BFS Decision – 416772.pdf

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14F-H1414007-BFS Decision – 418764.pdf

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14F-H1414007-BFS Decision – 423789.pdf

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**Case Summary: *Greg Fish v. Flynn Lane Biltmore Assoc, Inc.***
**Case No.** 14F-H1414007-BFS
**Forum:** Arizona Office of Administrative Hearings (Department of Fire, Building and Life Safety)
**Date of Hearing:** November 4, 2014
**Administrative Law Judge:** M. Douglas

**Overview and Main Issues**
This case involved a dispute between Petitioner Greg Fish, a unit owner, and Respondent Flynn Lane Biltmore Assoc, Inc. (Biltmore), a condominium association. The central legal issue was whether the Association violated its Covenants, Conditions, and Restrictions (CC&Rs) regarding the calculation of homeowner assessments,. Specifically, the Petitioner alleged that Biltmore billed assessments equally among all units, whereas CC&Rs 7 and 8 required assessments to be prorated based on each unit's proportionate share of ownership of the Common Elements,.

**Key Facts and Arguments**
* **Petitioner’s Position:** Mr. Fish argued that the Association knowingly failed to follow the CC&Rs. He testified that assessments should be based on square footage/percentage ownership. Witnesses for the Petitioner calculated that he had been overcharged approximately $1,860 over the previous six years due to the incorrect billing method,,.
* **Respondent’s Position:** Biltmore admitted that the CC&Rs required prorated assessments. However, the Association argued that equal billing had been the policy for 46 years, originally because the cost difference was negligible (43 cents in 1968). They claimed the majority of owners preferred equalized assessments and that the Resolution Trust Corporation (RTC) had mandated equal assessments in the 1980s,.
* **Testimony:** Both the former community manager and the current Board President admitted they understood Biltmore was not following the CC&Rs but continued the practice anyway,. The current property manager testified that the Board finally voted on November 1, 2014, to implement the correct percentage-based method effective January 1, 2015.

**Legal Findings**
The Administrative Law Judge (ALJ) found the Petitioner’s testimony and evidence credible. The Tribunal concluded that Biltmore knowingly violated CC&R 8(B) by splitting assessments equally rather than using the required percentage of ownership method,. The ALJ noted that the Association persisted in this violation despite knowledge of the requirement.

**Outcome and Order**
The ALJ ruled in favor of the Petitioner, deeming him the prevailing party. The final order mandated the following:
1. **Compliance:** Biltmore must fully comply with the applicable provisions of its CC&Rs in the future.
2. **Restitution:** Biltmore was ordered to reimburse the Petitioner’s filing fee of $550.00.
3. **Penalty:** Biltmore was ordered to pay a civil penalty of $200.00 to the Department.

**Final Status**
The Department of Fire, Building and Life Safety did not reject or modify the ALJ's decision within the statutory timeframe. Consequently, the decision was certified as the final administrative decision on January 8, 2015,.

Case Participants

Petitioner Side

Greg Fish (petitioner)
Flynn Lane Biltmore Assoc, Inc. (Member)
Also referred to as Gregory James Fish
Karen Jackson (witness)
Property manager for Mr. Fish

Respondent Side

Philip Brown (attorney)
Brown Alcott, PLLC
Craig Armstrong (attorney)
Brown Alcott, PLLC / Brown-Olcott, PLLC / The Brown Law Group, PLLC
Maureen Watrous (witness)
Flynn Lane Biltmore Assoc, Inc.
Property manager for Biltmore
Thomas E. Tower (witness)
Flynn Lane Biltmore Assoc, Inc.
Board President

Neutral Parties

M. Douglas (ALJ)
Office of Administrative Hearings
Gene Palma (Agency Director)
Department of Fire, Building and Life Safety
Joni Cage (Agency Staff)
Department of Fire, Building and Life Safety
c/o for Gene Palma
Cruz Serrano (scribe)
Signatory on mailing list
Michael Latz (witness)
Previous community manager for Biltmore
Lewis D. Kowal (Acting Director)
Office of Administrative Hearings
Certified the ALJ Decision
Rosella J. Rodriguez (scribe)
Signatory on mailing list for The Brown Law Group

JO ANN RIPLEY vs. AGUA DOLCE HOMEOWNERS ASSOCIATION

Posted on September 17, 2014 by [email protected]

Case Summary

Case ID	14F-H1414005-BFS
Agency	Department of Fire, Building and Life Safety
Tribunal	OAH
Decision Date	2014-09-17
Administrative Law Judge	M. Douglas
Outcome	no
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Jo Ann Ripley	Counsel	—
Respondent	Agua Dulce Homeowners Association	Counsel	Craig Armstrong

Alleged Violations

A.R.S. § 33-1804(C) and (D)

Outcome Summary

The Administrative Law Judge found that the Petitioner failed to prove by a preponderance of the evidence that the HOA violated A.R.S. § 33-1804. The Petitioner's evidence (recordings) was inaudible, and the HOA's witnesses credibly testified that the minutes were appropriate summary minutes ratified by the Board. The case was dismissed.

Why this result: Petitioner provided inaudible recordings and could not substantiate claims that minutes were inaccurately altered.

Key Issues & Findings

Violation of Open Meeting/Minutes Statutes

Petitioner alleged the HOA Board improperly altered minutes for meetings held in Oct/Nov 2013 and published inaccurate minutes. Petitioner claimed to have recordings proving the discrepancies.

Orders: The matter is dismissed. Agua Dulce is deemed the prevailing party.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

A.R.S. § 33-1804(C)
A.R.S. § 33-1804(D)

Decision Documents

14F-H1414005-BFS Decision – 410541.pdf

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14F-H1414005-BFS Decision – 415031.pdf

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**Case Summary: Ripley v. Agua Dulce Homeowners Association**
**Case No.** 14F-H1414005-BFS
**Forum:** Arizona Office of Administrative Hearings
**Hearing Date:** September 2, 2014
**Administrative Law Judge:** M. Douglas

### **Case Overview and Main Issues**
Petitioner Jo Ann Ripley, a homeowner and former Board President of the Agua Dulce Homeowners Association (HOA), filed a petition alleging the HOA violated A.R.S. § 33-1804(C) and (D). The central legal issue was whether the HOA improperly altered previously approved Board meeting minutes and misrepresented Association actions to homeowners.

Ripley specifically alleged that the HOA removed objections, changed votes, and altered minutes regarding Board meetings held on October 30, November 5, and November 26, 2013, before publishing them on the Association’s website.

### **Key Arguments and Testimony**

**Petitioner’s Arguments:**
* Ripley testified that the published minutes omitted items discussed during meetings and added items that were not discussed.
* She claimed the minutes were inconsistent with her personal notes and recordings of the proceedings.
* During the hearing, Ripley attempted to introduce a personal audio recording of the November 26, 2013 meeting as evidence, but the recording was inaudible.

**Respondent’s Arguments:**
* **Nature of Minutes:** Linda Ware, the current Board President, and Daniel Castillo, the property manager, testified that Board minutes are intended to be "bare bones" summaries recording motions and actions, not verbatim transcripts of discussions.
* **Ratification:** The HOA argued that the Board reviewed the contested minutes before officially ratifying them.
* **Lack of Official Recordings:** Witnesses testified that the management company did not maintain a library of recordings; tapes used to draft minutes were routinely erased for reuse.
* **Withholding Evidence:** The HOA noted that Ripley refused multiple requests to provide copies of her personal recordings to the Board prior to the dispute resolution.

### **Legal Findings and Final Decision**

**Burden of Proof:**
The Administrative Law Judge (ALJ) established that the burden of proof rested on the Petitioner to prove the allegations by a "preponderance of the evidence" (more likely true than not).

**Findings:**
* The ALJ noted that the minutes in question were reviewed, approved, and ratified by the HOA Board.
* The audio recording Ripley attempted to present was inaudible and therefore failed to support her claims that the minutes were inaccurate.
* The ALJ concluded that Ripley failed to satisfy her burden of proof that the HOA violated A.R.S. § 33-1804.

**Outcome:**
* **Ruling:** The ALJ ruled in favor of Agua Dulce Homeowners Association, deeming them the prevailing party.
* **Order:** The matter was dismissed.
* **Final Certification:** As the Department of Fire, Building and Life Safety did not reject or modify the decision within the statutory timeframe, the ALJ’s decision was certified as the final administrative decision on October 24, 2014.

Case Participants

Petitioner Side

Jo Ann Ripley (Petitioner)
Agua Dulce Homeowners Association
Homeowner, former Board President, former Information Officer; appeared on own behalf

Respondent Side

Craig Armstrong (HOA Attorney)
Brown Olcott, PLLC / The Brown Law Group, PLLC
Represented Agua Dulce Homeowners Association
Linda Ware (Witness)
Agua Dulce Homeowners Association
Board President; testified regarding minutes and recordings
Daniel Castillo (Witness)
Agua Dulce Homeowners Association
Property Manager; testified regarding minutes and recordings
Mark Carroll (Witness)
Agua Dulce Homeowners Association
Former Board Member; testified regarding recording practices
Phil Brown (HOA Attorney)
Brown Olcott, PLLC
Listed on mailing list for Respondent
Jonathan Olcott (HOA Attorney)
Brown Olcott, PLLC
Listed on mailing list for Respondent

Neutral Parties

M. Douglas (ALJ)
Office of Administrative Hearings
Administrative Law Judge
Gene Palma (Agency Director)
Department of Fire, Building and Life Safety
Director receiving the decision
Cliff J. Vanell (OAH Director)
Office of Administrative Hearings
Certified the ALJ decision
Joni Cage (Agency Staff)
Department of Fire, Building and Life Safety
Listed in mailing address for Gene Palma
Rosella J. Rodriguez (OAH Staff)
Office of Administrative Hearings
Signed the mailing certificate

Legere, Dennis vs. Pinnacle Peak Shadows HOA

Posted on August 19, 2014 by [email protected]

Case Summary

Case ID	14F-H1414001-BFS-rhg
Agency	Department of Fire, Building and Life Safety
Tribunal	Office of Administrative Hearings
Decision Date	2015-04-23
Administrative Law Judge	M. Douglas
Outcome	yes
Filing Fees Refunded	$2,000.00
Civil Penalties	$2,000.00

Parties & Counsel

Petitioner	Dennis J. Legere	Counsel	Tom Rawles
Respondent	Pinnacle Peak Shadows HOA	Counsel	Maria R. Kupillas

Alleged Violations

A.R.S. § 33-1804(A)
A.R.S. § 33-1804(A)
A.R.S. § 33-1804(A)
A.R.S. § 33-1804(A)

Outcome Summary

The Administrative Law Judge ruled that the HOA violated A.R.S. § 33-1804(A) by: 1) preventing members from speaking on agenda items before Board votes; 2) failing to provide notice for architectural committee meetings; and 3) conducting Board business and taking actions via unanimous written consent by email in lieu of open meetings. The ALJ rejected the HOA's defense that A.R.S. § 10-3821 allowed for email actions without meetings, stating that Title 33 open meeting requirements prevail. The HOA was ordered to comply with the statute and pay a $2,000 civil penalty and reimburse $2,000 in filing fees.

Key Issues & Findings

Speaking at Meetings

The Board prevented the petitioner from speaking on action items before the Board took formal action at meetings on November 26, 2013, January 14, 2014, and February 3, 2014.

Orders: HOA ordered to comply with speaking requirements.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

Committee Meeting Notices

Pinnacle conducted regularly scheduled architectural committee meetings without providing notice to members of the association.

Orders: HOA ordered to comply with notice requirements.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

Email Meetings / Action Without Meeting

The Board utilized an email process to take actions by unanimous written consent without holding a meeting, effectively deliberating and voting without member observation or participation.

Orders: HOA ordered to comply with open meeting statutes; corporate statute A.R.S. § 10-3821 does not override A.R.S. § 33-1804(A).

Filing fee: $500.00, Fee refunded: Yes, Civil penalty: $2,000.00

Disposition: petitioner_win

Cited:

Closed Sessions

Petitioner alleged Board conducted non-privileged business in closed sessions. The Tribunal deemed Petitioner the prevailing party and awarded full filing fees.

Orders: Petitioner deemed prevailing party.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

Decision Documents

14F-H1414001-BFS Decision – 406623.pdf

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14F-H1414001-BFS Decision – 437956.pdf

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14F-H1414001-BFS Decision – 443321.pdf

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**Case Summary: *Dennis J. Legere vs. Pinnacle Peak Shadows HOA***
**Case No. 14F-H1414001-BFS**

**Overview**
This administrative case involves a dispute between Dennis J. Legere (Petitioner) and the Pinnacle Peak Shadows HOA (Respondent) regarding violations of Arizona’s planned community open meeting laws. The matter was heard by the Office of Administrative Hearings for the Department of Fire, Building and Life Safety. The proceedings culminated in a decision on rehearing in April 2015, which was certified as final in June 2015,.

**Key Facts and Allegations**
The Petitioner, a homeowner and former board member, alleged that the HOA Board violated A.R.S. § 33-1804 on multiple counts,. The primary allegations included:
* **Closed Sessions via Email:** The Board routinely conducted business and voted on action items via email to avoid holding public meetings, citing efficiency and "unanimous consent" provisions in the Bylaws and corporate statutes,.
* **Denial of Right to Speak:** The Board refused to allow members to speak on agenda items during open meetings (specifically in November 2013, January 2014, and February 2014) prior to the Board taking a vote,.
* **Unnoticed Committee Meetings:** The Architectural Review Committee met regularly without providing notice to members or allowing them to attend,.

**Main Arguments and Legal Issues**
The central legal tension involved a conflict between general corporate statutes and specific HOA statutes.
* **Respondent’s Defense:** The HOA argued that under its Bylaws and A.R.S. § 10-3821 (non-profit corporation statutes), the Board could take action without a meeting if they obtained unanimous written consent from all directors,. They also argued that financial information and delinquency reports required closed sessions.
* **Petitioner’s Argument:** Legere argued that using email votes and unanimous consent provisions to conduct business in secret violated the specific open meeting mandates of A.R.S. § 33-1804, precluding member observation and participation,.
* **Rehearing on Jurisdiction:** The Administrative Law Judge (ALJ) initially declined to rule on the validity of the "email meetings" under A.R.S. § 10-3821. Legere successfully petitioned for a rehearing to resolve whether corporate statutes could legally bypass HOA open meeting requirements.

**Findings and Conclusions of Law**
The ALJ ruled in favor of the Petitioner, establishing several key legal points:

1. **Conflict of Laws:** The Tribunal ruled that A.R.S. § 33-1804 (Title 33) specifically governs planned communities and mandates open meetings. This specific statute overrides the general non-profit corporate statute (A.R.S. § 10-3821) found in Title 10. The HOA cannot use corporate laws or Bylaws to impliedly repeal the open meeting protections guaranteed to homeowners in Title 33. Therefore, the practice of taking action via email "unanimous consent" violated the law.
2. **Right to Speak:** The ALJ found the HOA violated the law by preventing the Petitioner from speaking *after* the Board discussed items but *before* a vote was taken. While reasonable time restrictions are permitted, members must be allowed to speak before formal action is taken.
3. **Committee Meetings:** The Tribunal ruled that all regularly scheduled committee meetings, such as the Architectural Review Committee, must be noticed and open to members.
4. **Statute of Limitations:** A one-year statute of limitations (A.R.S. § 12-541) applied, barring claims for violations occurring prior to March 9, 2013.

**Outcome and Order**
Dennis J. Legere was deemed the prevailing party. The ALJ ordered the following:
* **Compliance:** The HOA was ordered to comply with A.R.S. § 33-1804(A) in the future, effectively ending the practice of secret email meetings.
* **Filing Fee:** The HOA was ordered to reimburse the Petitioner’s $2,000 filing fee.
* **Civil Penalty:** The HOA was ordered to pay a $2,000 civil penalty to the Department (which the HOA paid during the rehearing process).

The decision was certified

Case Participants

Petitioner Side

Dennis J. Legere (petitioner)
Pinnacle Peak Shadows HOA (Member)
Appeared on his own behalf at rehearing; former board member
Tom Rawles (attorney)
Represented Petitioner at the July 31, 2014 hearing

Respondent Side

Troy Stratman (attorney)
Mack, Watson & Stratman, PLC
Represented Respondent at the July 31, 2014 hearing; listed as 'Tony Stratman' in service list
Maria R. Kupillas (attorney)
Farley, Seletos & Choate
Represented Respondent at the March 31, 2015 rehearing
Michelle O’Robinson (witness)
Vision Community Management
Field operations supervisor/manager for HOA
James T. Foxworthy (witness)
Pinnacle Peak Shadows HOA (Board)
Board President at time of first hearing
John Edgar Schuler (witness)
Pinnacle Peak Shadows HOA (Board)
Board President as of March 10, 2015

Neutral Parties

M. Douglas (ALJ)
Office of Administrative Hearings
Administrative Law Judge
Gene Palma (Director)
Department of Fire, Building and Life Safety
Agency Director
Greg Hanchett (Interim Director)
Office of Administrative Hearings
Certified the decision
Joni Cage (administrative staff)
Department of Fire, Building and Life Safety
Recipient of transmitted decision
Rosella J. Rodriguez (clerk)
Office of Administrative Hearings
Signed copy distribution

Duffett, Rex E. -v- Suntech Patio Homes Inc.

Posted on August 4, 2014 by [email protected]

Case Summary

Case ID	14F-H1414006-BFS
Agency	DFBLS
Tribunal	OAH
Decision Date	2014-08-04
Administrative Law Judge	M. Douglas
Outcome	yes
Filing Fees Refunded	$550.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Rex E. Duffett	Counsel	—
Respondent	Suntech Patio Homes Inc.	Counsel	—

Alleged Violations

A.R.S. § 33-1805

Outcome Summary

The Administrative Law Judge ruled in favor of the Petitioner, finding that the Respondent violated A.R.S. § 33-1805 by failing to respond to records requests within ten business days. The Respondent was ordered to pay the Petitioner's filing fee.

Key Issues & Findings

Failure to provide association records (meeting minutes, notices, rules)

Petitioner requested meeting minutes, notices regarding fee increases, and governing documents (rules/guidelines) on multiple occasions. Respondent failed to provide the documents within the statutory 10-day timeframe.

Orders: Respondent ordered to comply with A.R.S. § 33-1805 in the future and pay Petitioner $550.00 for filing fees.

Filing fee: $550.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

A.R.S. § 33-1805

Decision Documents

14F-H1414006-BFS Decision – 404592.pdf

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14F-H1414006-BFS Decision – 409884.pdf

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**Case Summary: Rex E. Duffett vs. Suntech Patio Homes Inc.**
**Case No. 14F-H1414006-BFS**

**Proceedings and Parties**
An administrative hearing was held on July 24, 2014, before the Arizona Office of Administrative Hearings regarding a petition filed by Rex E. Duffett ("Petitioner") against Suntech Patio Homes Inc. ("Respondent"). The Petitioner appeared in person to present testimony and evidence, while the Respondent failed to appear.

**Key Facts and Arguments**
The Petitioner, a homeowner and member of the Suntech planned community association, alleged that the Respondent violated Arizona Revised Statutes (A.R.S.) § 33-1805 regarding the inspection of association records,.

The dispute arose after the Petitioner received notice of a homeowner association fee increase in November 2013. Suspecting a violation of open meeting laws, the Petitioner requested meeting notices and minutes regarding the increase. After repeated requests and threats of legal action, the management company informed him that no minutes existed as no meeting had occurred.

Additionally, on March 23, 2014, and again on June 16, 2014, the Petitioner requested copies of the association's Rules and Regulations and Architectural Guidelines. The Petitioner testified that the Respondent failed to provide the requested documents in a timely manner, with a delay of nearly three months before receiving copies of the By-Laws.

**Legal Issues and Findings**
The central legal issue was compliance with A.R.S. § 33-1805, which mandates that an association make records available or provide copies within ten business days of a member's request,.

The Administrative Law Judge (ALJ) found that the Petitioner met the burden of proof by a preponderance of the evidence,. Based on undisputed testimony, the ALJ concluded that Suntech failed to respond to the document requests within the statutory ten-day period, thereby violating A.R.S. § 33-1805.

**Outcome and Final Decision**
The ALJ ruled in favor of the Petitioner, designating him the prevailing party. The Tribunal issued the following orders:
* **Compliance:** Suntech was ordered to comply with the provisions of A.R.S. § 33-1805 in the future.
* **Monetary Relief:** Suntech was ordered to reimburse the Petitioner’s filing fee of $550.00 within 30 days.
* **Penalties:** No civil penalty was imposed.

The Department of Fire, Building and Life Safety did not reject or modify the ALJ's decision within the statutory review period. Consequently, the decision was certified as the final administrative decision on September 11, 2014,.

Case Participants

Petitioner Side

Rex E. Duffett (petitioner)
Suntech Patio Homes Inc. (member)
Appeared on his own behalf and testified

Neutral Parties

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

Saxton, Nancy vs. The Lakes Community Association

Posted on June 2, 2014 by [email protected]

Case Summary

Case ID	13F-H1314007-BFS
Agency	ADRE
Tribunal	OAH
Decision Date	2014-06-02
Administrative Law Judge	M. Douglas
Outcome	false
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Nancy Saxton	Counsel	Steven W. Cheifetz
Respondent	The Lakes Community Association	Counsel	Charles E. Maxwell

Alleged Violations

A.R.S. § 33-1805

Outcome Summary

The Administrative Law Judge ruled in favor of the Respondent and dismissed the case. The Judge found that the Petitioner was contractually obligated to arbitrate disputes under the Association's bylaws, that the petition was filed after the one-year statute of limitations had expired, and that the Respondent had lawfully complied with A.R.S. § 33-1805 by offering inspection of unredacted records.

Why this result: Jurisdictional bar due to mandatory arbitration clause; statute of limitations expiration; finding of compliance by Respondent.

Key Issues & Findings

Request to Review Association Records

Petitioner alleged the Respondent violated statutes by providing heavily redacted financial records and failing to provide unredacted copies for review upon demand.

Orders: The matter was dismissed. The Tribunal found the Petitioner was required to arbitrate, the claim was barred by the statute of limitations, and the Respondent had complied with the statute by making records reasonably available.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

Decision Documents

13F-H1314007-BFS Decision – 396509.pdf

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13F-H1314007-BFS Decision – 401319.pdf

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13F-H1314007-BFS Decision – 404479.pdf

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13F-H1314007-BFS Decision – 404483.pdf

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**Case Title:** *Nancy Saxton v. The Lakes Community Association*
**Case Number:** 13F-H1314007-BFS
**Forum:** Office of Administrative Hearings, State of Arizona

**Proceedings and Background**
The hearing was held on April 29, 2014, before Administrative Law Judge M. Douglas,. Petitioner Nancy Saxton, a homeowner, filed a petition alleging The Lakes Community Association (HOA) violated A.R.S. § 33-1805 regarding the inspection of financial records,. The HOA filed motions to dismiss based on jurisdiction, the statute of limitations, and prior compliance.

**Key Facts**
* **Records Request:** Saxton submitted demands to inspect the HOA's financial records in November 2012,.
* **Production:** The HOA provided approximately 3,700 pages of documents,.
* **Redactions:** The documents contained numerous redactions. The HOA claimed these were necessary to protect personal and payroll information as permitted by statute,. Saxton argued the redactions precluded a proper evaluation of the HOA’s expenditures,.
* **Offer to Inspect:** Upon receiving complaints about the redactions, the HOA offered to allow Saxton to review un-redacted documents at the HOA attorney's office. Saxton declined this offer, feeling it would be "futile" or intimidating,.

**Key Legal Arguments and Issues**
1. **Arbitration:** The HOA argued that an "Alternative Dispute Resolution" amendment to its Bylaws required binding arbitration for governance disputes, precluding administrative action,.
2. **Statute of Limitations:** The HOA contended the claim was barred by the one-year statute of limitations under A.R.S. § 12-541(5) for liabilities created by statute,.
3. **Compliance:** The HOA argued it satisfied its statutory obligation to make records "reasonably available" by providing copies and offering an in-person review of un-redacted files,.

**Administrative Law Judge Decision**
The ALJ ruled in favor of the Respondent (the HOA) on all three major points:

1. **Arbitration Clause Enforced:** The ALJ concluded that under the HOA's Bylaws and Arizona common law, Saxton was required to submit her claims to arbitration. The arbitration clause was deemed valid and enforceable.
2. **Statute of Limitations Expired:** The ALJ determined the cause of action accrued ten business days after Saxton’s November 5, 2012 demand. Because the petition was filed on November 25, 2013, it fell outside the one-year limitation period prescribed by A.R.S. § 12-541(5).
3. **Substantive Compliance:** The ALJ found that the HOA had complied with A.R.S. § 33-1805. By providing redacted copies and subsequently making un-redacted versions available for review at their attorney's office, the HOA satisfied the requirement to make records "reasonably available".

**Outcome**
The matter was dismissed, and The Lakes Community Association was deemed the prevailing party. The decision was certified as the final administrative decision on July 10

Case Participants

Petitioner Side

Nancy Saxton (petitioner)
The Lakes Community Association (Member)
Homeowner
Steven W. Cheifetz (attorney)
Cheifetz, Iannitelli Marcolini, P.C.
Listed as 'Heifetz' in mailing list

Respondent Side

Charles E. Maxwell (attorney)
Maxwell & Morgan, P.C.
Christine Green Baldanza (community manager)
The Lakes Community Association
Community Manager in 2012 and early 2013

Neutral Parties

M. Douglas (ALJ)
Office of Administrative Hearings
Cliff J. Vanell (director)
Office of Administrative Hearings
Signed Certification of Decision
Gene Palma (director)
Department of Fire, Building and Life Safety
Agency Director
Joni Cage (agency staff)
Department of Fire, Building and Life Safety
c/o for Gene Palma
Rosella J. Rodriguez (clerk)
Office of Administrative Hearings
Mailed/transmitted decision

Other Participants

Marsha Hill (witness)
The Lakes Community Association
CPA; Former chairman of budget and finance committee
Maureen Harrison (witness)
The Lakes Community Association
Former Board Member (1993-2000, 2011-2012)

Strike, Kristyne P. vs. Las Torres Homeowners Association

Posted on May 16, 2014 by [email protected]

Case Summary

Case ID	13F-H1314009-BFS
Agency	Department of Fire, Building and Life Safety
Tribunal	OAH
Decision Date	2014-05-16
Administrative Law Judge	M. Douglas
Outcome	no
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Krystine P. Strike	Counsel	—
Respondent	Las Torres Homeowners Association	Counsel	Mark K. Sahl, Esq.

Alleged Violations

A.R.S. § 33-1221, A.R.S. § 33-1218

Outcome Summary

The Respondent (HOA) was deemed the prevailing party and the matter was dismissed. The ALJ concluded that the Petitioner's claim regarding the unauthorized concrete slab in the common area was barred by the one-year statute of limitations because the slab had been in existence since 1998 and the Petitioner had owned her unit since 2007, filing the petition in 2013.

Why this result: Statute of limitations (A.R.S. § 12-541) expired.

Key Issues & Findings

Unauthorized alteration of common area

Petitioner alleged the Association violated statutes by allowing a neighbor to maintain and use a concrete slab in the common area as a private patio without proper consent or authorization.

Orders: The matter is dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Decision Documents

13F-H1314009-BFS Decision – 394719.pdf

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13F-H1314009-BFS Decision – 399395.pdf

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**Case Summary: Strike v. Las Torres Homeowners Association**
**Case No:** 13F-H1314009-BFS
**Forum:** Arizona Office of Administrative Hearings
**Date:** May 6, 2014 (Hearing); June 24, 2014 (Final Certification)

**Key Facts**
Petitioner Krystine P. Strike, owner of Unit 603, filed a dispute against Las Torres Homeowners Association (HOA) regarding a concrete slab situated in the common area connecting her unit to Unit 604. The slab was constructed in 1998 by previous owners who owned both units, with approval from the City of Carefree and tacit approval from the HOA.

Ms. Strike purchased Unit 603 in 2007, at which point the slab had existed for nine years. In 2012, the current owner of Unit 604 petitioned to enlarge the slab, which was denied, but continued to place patio furniture on the existing slab. The HOA issued multiple letters to the owner of Unit 604 requesting the removal of furniture when not in use, asserting the slab was a common area not approved for exclusive private use.

**Main Issues and Arguments**
* **Petitioner’s Claims:** Ms. Strike alleged the HOA violated A.R.S. § 33-1221 and § 33-1218 by allowing a neighbor to alter and encroach upon the common area without consent. She requested the common area be restored to its unaltered state. Regarding timeliness, she argued she was previously barred from filing a unilateral action due to a Code of Conduct she signed while serving on the HOA Board.
* **Respondent’s Defense:** The HOA argued the cited statutes were inapplicable because the slab was a General Common Element rather than a Limited Common Element. They further argued the Department lacked jurisdiction to grant injunctive relief (removal of the slab) and that the Petitioner’s claim was barred by the statute of limitations.

**Legal Findings**
Administrative Law Judge (ALJ) M. Douglas dismissed the case, ruling in favor of the Respondent based on the following:

1. **Statute of Limitations:** Under A.R.S. § 12-54

Case Participants

Petitioner Side

Krystine P. Strike (petitioner)
Unit 603 Owner
Appeared on her own behalf; former Board member

Respondent Side

Mark K. Sahl (attorney)
Carpenter, Hazlewood, Delgado & Bolen, PLC
Attorney for Las Torres Homeowners Association
Pamela A. Dixon (witness)
Las Torres Homeowners Association
Board Member
Marc Vasquez (witness)
Las Torres Homeowners Association
Testified regarding Board meetings and violation letters

Neutral Parties

M. Douglas (ALJ)
Office of Administrative Hearings
Presiding Administrative Law Judge
Gene Palma (Director)
Department of Fire, Building and Life Safety
Listed on transmission of decision
Cliff J. Vanell (Director)
Office of Administrative Hearings
Signed Certification of Decision
Joni Cage (agency staff)
Department of Fire, Building and Life Safety
c/o for Gene Palma
Rosella J. Rodriguez (administrative staff)
Office of Administrative Hearings
Mailed/faxed the certification

Denapoli, Cindy vs. Southern Ridge Condominium Association

Posted on April 25, 2014 by [email protected]

Case Summary

Case ID	13F-H1314006-BFS
Agency	Department of Fire, Building and Life Safety
Tribunal	OAH
Decision Date	2014-04-25
Administrative Law Judge	M. Douglas
Outcome	yes
Filing Fees Refunded	$550.00
Civil Penalties	$200.00

Parties & Counsel

Petitioner	Cindy Denapoli	Counsel	—
Respondent	Southern Ridge Condominium Association	Counsel	Maria R. Kupillas

Alleged Violations

A.R.S. § 33-1255(C)(2)

Outcome Summary

The Administrative Law Judge ruled in favor of the Petitioner, concluding that the Association violated A.R.S. § 33-1255(C)(2) by paying management fees for the 'Rental Pool' (investor-owned units) out of general funds rather than assessing those costs exclusively to the units benefited. The Association was ordered to correct the practice and pay penalties and costs.

Key Issues & Findings

Improper Allocation of Common Expenses

Petitioner alleged that management fees of approximately $9,666/month were being assessed to all owners as part of HOA dues, despite these fees directly benefitting only those units participating in a separate 'Rental Pool'. The ALJ found that the fees benefited fewer than all units and should have been assessed exclusively against the benefited units.

Orders: Respondent must fully comply with A.R.S. § 33-1255(C)(2); Respondent must pay Petitioner $550.00 filing fee; Respondent must pay Department $200.00 civil penalty.

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

Disposition: petitioner_win

Decision Documents

13F-H1314006-BFS Decision – 391902.pdf

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13F-H1314006-BFS Decision – 396527.pdf

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**Case Summary: *Cindy Denapoli vs. Southern Ridge Condominium Association***
**Case No. 13F-H1314006-BFS**

**Proceedings Overview**
This hearing took place on April 10, 2014, before the Arizona Office of Administrative Hearings regarding a petition filed by Cindy Denapoli (Petitioner) against the Southern Ridge Condominium Association (Respondent). The Petitioner appeared on her own behalf, while the Respondent was represented by counsel. The decision was certified as final on June 2, 2014, after the Department of Fire, Building and Life Safety took no action to modify or reject the Administrative Law Judge's decision.

**Background and Key Facts**
* **Association Structure:** Southern Ridge is a condominium association located in Mesa, Arizona. It is entirely investor-owned with no owner-occupants.
* **The "Rental Pool":** The majority of unit owners (102 of 113) formed a "Rental Pool" to share non-common expenses and distribute net profits,. The Petitioner is a unit owner but is not a member of this Rental Pool.
* **Management:** "Preferred Communities" handles the Association's accounting, while "Professional Equity Management" (PEM) serves as the management company,.
* **The Disputed Practice:** The Association’s accounting firm issued a monthly check of approximately $9,666 for management fees directly to the Rental Pool (aka "Southern Ridge Apartments") rather than to the management company,. The Rental Pool would then pay PEM and distribute remaining funds or profits to Rental Pool members only,.

**Main Issues and Arguments**
The Petitioner alleged that the Association violated **A.R.S. § 33-1255(C)(2)**. She argued that the monthly fees assessed to all owners as "HOA dues" were being paid to the Rental Pool, thereby financially subsidizing the Rental Pool members,. She asserted that the fee benefitted only the Rental Pool units, yet she was required to contribute to it despite receiving no distribution from the Rental Pool,.

The Respondent denied the allegations but admitted through testimony that the $9,666 monthly fee was paid to the Rental Pool,. Mr. Watkins, the Association's treasurer, testified that PEM objected to direct payment from the Association and that the Rental Pool paid PEM for services. He acknowledged that net profits from the Rental Pool were distributed only to its members and not to other owners.

**Legal Analysis**
The Administrative Law Judge focused on **A.R.S. § 33-1255(C)(2)**, which states that "[a]ny common expense or portion of a common expense benefitting fewer than all of the units shall be assessed exclusively against the units benefitted".

The Judge found that:
1. The monthly check was issued to the Rental Pool, which is not a corporate entity or LLC.
2. The Rental Pool used these funds to pay expenses and distributed net profits on a pro-rata basis to its members.
3. No distributions were made to condominium owners who were not part of the Rental Pool.

**Final Decision and Outcome**
The Tribunal concluded that Southern Ridge Condominium Association violated **A.R.S. § 33-1255(C)(2)** by assessing expenses against all units that benefitted only the Rental Pool members.

**Order:**
* The Petitioner was deemed the prevailing party.
* The Respondent was ordered to fully comply with A.R.S. § 33-1255(C)(2) in the future.
* The Respondent was ordered to pay the Petitioner’s filing fee of **$550.00**.
* The Respondent was ordered to pay a civil penalty of **$200.00** to the Department.

Case Participants

Petitioner Side

Cindy Denapoli (Petitioner)
Southern Ridge Condominium Association (Owner)
Appeared on her own behalf; owner of a unit not in the Rental Pool

Respondent Side

Maria R. Kupillas (attorney)
Farley, Seletos & Choate
Attorney for Southern Ridge Condominium Association
William J. Watkins (witness)
Southern Ridge Condominium Association
Board member and Treasurer; member of the Rental Pool

Neutral Parties

M. Douglas (ALJ)
Office of Administrative Hearings
Administrative Law Judge who presided over the hearing and issued the decision
Cliff J. Vanell (Director)
Office of Administrative Hearings
Certified the ALJ decision as final
Gene Palma (Director)
Department of Fire, Building and Life Safety
Recipient of the transmitted decision
Joni Cage (Agency Staff)
Department of Fire, Building and Life Safety
Addressed in the mailing list
Rosella J. Rodriguez (Clerk)
Office of Administrative Hearings
Signed the mailing certificate

Winter, Alexander vs. Cortina Homeowners Association

Posted on April 17, 2014 by [email protected]

Case Summary

Case ID	13F-H1314005-BFS
Agency	DFBLS
Tribunal	OAH
Decision Date	2014-04-17
Administrative Law Judge	M. Douglas
Outcome	no
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Alexander Winter	Counsel	—
Respondent	Cortina Homeowners Association	Counsel	Mark Sahl

Alleged Violations

A.R.S. § 33-1804(D); A.R.S. § 33-1248(D)

Outcome Summary

The ALJ dismissed the petition because the Petitioner provided insufficient evidence that the Board authorized payments in an executive session within the statutory timeframe (one year). Furthermore, the ALJ concluded that even if such a meeting occurred, matters relating to contractor compensation are permitted in closed executive sessions under A.R.S. § 33-1804(A)(4).

Why this result: Insufficient evidence of timing; subject matter (compensation) is exempt from open meeting laws.

Key Issues & Findings

Open Meeting Violation (Vendor Compensation)

Petitioner alleged the Board authorized a $50/hour fee for a management vendor in executive session, violating open meeting statutes.

Orders: Petition dismissed; Respondent deemed prevailing party.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

A.R.S. § 33-1804(D)
A.R.S. § 33-1248(D)
A.R.S. § 33-1804(A)(4)
A.R.S. § 12-541

Decision Documents

13F-H1314005-BFS Decision – 385229.pdf

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13F-H1314005-BFS Decision – 391125.pdf

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13F-H1314005-BFS Decision – 395982.pdf

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**Case Overview**
In the matter of *Alexander Winter v. Cortina Homeowners Association* (Case No. 13F-H1314005-BFS), the Arizona Office of Administrative Hearings adjudicated a dispute regarding compliance with open meeting laws. The hearing was conducted on March 6, 2014, before Administrative Law Judge (ALJ) M. Douglas.

**Key Facts and Allegations**
Petitioner Alexander Winter, a homeowner, filed a petition alleging that the Cortina Homeowners Association (Cortina) Board of Directors violated A.R.S. §§ 33-1804(D) and 33-1248(D). The core allegation was that the Board improperly authorized financial compensation increases for a vendor, Renaissance Community Partners (RCP), during a closed executive session rather than an open public meeting.

Specifically, Winter testified that the community manager informed him that the Board had authorized hourly fees—$50.00 for staff and $75.00 for the manager—to handle homeowner information requests. Winter claimed this authorization occurred during a June 2013 executive session. However, Winter admitted he was not present at the meeting, did not know if a quorum was present, and possessed no written evidence or minutes confirming the authorization occurred during the relevant timeframe.

**Legal Issues and Analysis**
The primary legal question was whether the Board was required to approve the vendor's fee increase in an open session. The ALJ analyzed the case based on the burden of proof and statutory exemptions for executive sessions.

* **Statutory Exemptions:** A.R.S. § 33-1804(A) generally requires HOA meetings to be open to members. However, A.R.S. § 33-1804(A)(4) specifically exempts matters relating to the "job performance of, compensation of… an individual employee of a contractor of the association".
* **Burden of Proof:** The Petitioner bore the burden of proving the violation by a preponderance of the evidence.

**Decision and Rationale**
The ALJ ruled in favor of the Respondent, dismissing the petition. The decision relied on two main conclusions:
1. **Lack of Evidence:** The Petitioner failed to provide sufficient evidence that the alleged executive meeting actually occurred within the one-year statute of limitations (September 2012 to September 2013). The ALJ noted that Winter relied on hearsay and lacked first-hand knowledge or documentation of the Board's actions.
2. **Legal Exemption:** The ALJ determined that even if the meeting had occurred as alleged, the subject matter—compensation for a contractor's employee—is expressly permitted to be discussed in a closed executive session under A.R.S. § 33-1804(A)(4). Therefore, the Petitioner failed to prove a violation of the open meeting statutes.

Case Participants

Petitioner Side

Alexander Winter (Petitioner)
Cortina Homeowners Association (Member)
Appeared on his own behalf

Respondent Side

Mark Sahl (attorney)
Carpenter, Hazlewood, Delgado & Bolen, PLC; Shaw & Lines, LLC
Represented Cortina Homeowners Association
Kevin Bishop (property manager)
Renaissance Community Partners
Manager mentioned in testimony regarding compensation
Mr. Shaw (attorney)
Previous legal counsel for Cortina

Neutral Parties

M. Douglas (ALJ)
Office of Administrative Hearings
Gene Palma (Agency Director)
Department of Fire, Building and Life Safety
Joni Cage (Agency Staff)
Department of Fire, Building and Life Safety
c/o for Gene Palma
Cliff J. Vanell (Director)
Office of Administrative Hearings
Certified the decision
Rosella J. Rodriguez (Agency Staff)
Office of Administrative Hearings
Signed certification mailing

Winter, Alexander vs. Cortina Homeowners Association

Posted on March 21, 2014 by [email protected]

Case Summary

Case ID	13F-H1314004-BFS
Agency	DFBLS
Tribunal	OAH
Decision Date	2014-03-21
Administrative Law Judge	M. Douglas
Outcome	no
Filing Fees Refunded	$550.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Alexander Winter	Counsel	—
Respondent	Cortina Homeowners Association	Counsel	Mark K. Sahl

Alleged Violations

A.R.S. § 33-1805

Outcome Summary

The ALJ found that the Petitioner failed to prove by a preponderance of the evidence that the specific requested documents (Delinquency Reports, 2007-2008 budgets, specific vendor bids) existed or were withheld. Claims regarding documents addressed in a prior hearing (Docket No. 13F-H1314001-BFS) were barred by collateral estoppel.

Why this result: The Petitioner failed to meet the burden of proof regarding the existence of records, and attempted to relitigate issues decided in a prior case.

Key Issues & Findings

Failure to provide requested records (Delinquency Reports, Budgets, Contracts)

Petitioner alleged the HOA failed to provide Delinquency Reports, Operation Budgets (2007-2008), Duford Contract/Invoice, JSJ Enterprises Contract/Bid, and C&G communications bid. Petitioner also sought records (CleanCuts and RCP contracts) previously litigated.

Orders: The matter was dismissed. Respondent was deemed the prevailing party.

Filing fee: $550.00, Fee refunded: No

Disposition: petitioner_loss

Decision Documents

13F-H1314004-BFS Decision – 387230.pdf

Uploaded 2026-01-25T15:29:23 (149.4 KB)

13F-H1314004-BFS Decision – 392642.pdf

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**Case Summary: Winter v. Cortina Homeowners Association**
**Case No.** 13F-H1314004-BFS
**Forum:** Arizona Office of Administrative Hearings
**Date of Final Action:** May 1, 2014

**Overview and Procedural History**
On August 21, 2013, Petitioner Alexander Winter filed a petition with the Arizona Department of Fire, Building and Life Safety alleging that the Respondent, Cortina Homeowners Association (HOA), violated A.R.S. § 33-1805. The Petitioner claimed the HOA failed to provide requested records within the statutory ten-day timeframe.

This hearing followed a prior administrative action between the same parties (Docket No. 13F-H1314001-BFS), which had resulted in an order requiring the HOA to provide redacted documents.

**Key Facts and Arguments**
The Petitioner sought various records, including delinquency reports, operating budgets (2007–2013), and specific contracts and invoices (Duford, JSJ Enterprises, C&G Communication, CleanCuts, and Renaissance Community Partners).

* **Petitioner’s Position:** Mr. Winter argued that the HOA failed to fulfill his requests within ten business days. He asserted that certain records, such as delinquency reports and vendor bids, "should exist" and challenged the HOA's claim that they did not possess them. He acknowledged that issues regarding CleanCuts and Renaissance Community Partners (RCP) were addressed in the prior hearing but claimed his current requests were distinct.
* **Respondent’s Defense:** The HOA argued that it had complied with the order from the previous hearing by providing approximately 3,200 pages of documents. Regarding the new allegations, the HOA testified that the specific delinquency reports, older budgets (2007–2008), and certain vendor contracts (Duford, JSJ, C&G) simply did not exist or were not in their possession. They argued that the requests regarding CleanCuts and RCP were barred by the previous litigation.

**Main Legal Issues**
1. **Existence of Records:** Whether the Petitioner could prove the existence of documents the HOA claimed it did not possess.
2. **Collateral Estoppel:** Whether the claims regarding CleanCuts and RCP contracts were precluded because they were already adjudicated in the prior administrative hearing.

**Findings and Conclusions**
The Administrative Law Judge (ALJ) ruled in favor of the Respondent on all counts:

* **Burden of Proof regarding Existence of Records:** The ALJ found the evidence insufficient to prove that the requested delinquency reports, Duford contract, JSJ contract/bid, and C&G bid actually existed. The ALJ ruled that the HOA cannot be held responsible for producing documents it does not possess and noted there was no credible evidence that the HOA withheld existing documents.
* **Collateral Estoppel:** The ALJ determined that the requests concerning CleanCuts and RCP documents were specifically addressed in the prior order (Docket No. 13F-H1314001-BFS). The ALJ applied the doctrine of collateral estoppel, which precludes relitigating facts or issues previously

Case Participants

Petitioner Side

Alexander Winter (Petitioner)
Cortina Homeowners Association member
Appeared on his own behalf

Respondent Side

Mark K. Sahl (Attorney)
Carpenter, Hazlewood, Delgado & Bolen, P.L.C.
Represented Respondent at the hearing
Kevin H. Bishop (Witness)
Renaissance Community Partners (RCP)
President of RCP; Community Manager and Statutory Agent for Cortina
Christopher Scott Puckett (Witness)
Cortina Homeowners Association
President of the Board of Directors

Neutral Parties

M. Douglas (Administrative Law Judge)
Office of Administrative Hearings
Presided over the hearing and issued the decision
Tammy L. Eigenheer (Administrative Law Judge)
Office of Administrative Hearings
Presided over the prior administrative hearing (Docket No. 13F-H1314001-BFS)
Gene Palma (Agency Director)
Department of Fire, Building and Life Safety
Recipient of the transmitted decision
Cliff J. Vanell (OAH Director)
Office of Administrative Hearings
Certified the ALJ decision
Joni Cage (Agency Staff)
Department of Fire, Building and Life Safety
Listed in mailing address for Gene Palma
Rosella J. Rodriguez (Clerk/Staff)
Office of Administrative Hearings
Signed the mailing certificate

Babington, Nancy L. vs. Park Scottsdale II Townhouse HOA

Posted on March 11, 2014 by [email protected]

Case Summary

Case ID	13F-H1313004-BFS
Agency	Department of Fire, Building and Life Safety
Tribunal	OAH
Decision Date	2014-03-11
Administrative Law Judge	M. Douglas
Outcome	yes
Filing Fees Refunded	$550.00
Civil Penalties	$200.00

Parties & Counsel

Petitioner	Nancy L. Babington	Counsel	—
Respondent	Park Scottsdale II Townhouse HOA	Counsel	Charlene Cruz

Alleged Violations

A.R.S. § 33-1248(B)

Outcome Summary

The ALJ ruled in favor of the Petitioner, finding that the HOA violated A.R.S. § 33-1248(B) by failing to hold annual meetings for five consecutive years. The HOA was ordered to hold a meeting, reimburse the Petitioner's filing fee, and pay a civil penalty.

Key Issues & Findings

Failure to hold annual meetings

Petitioner alleged the HOA failed to hold annual meetings or any open meetings since 2010. Respondent admitted no annual meetings were held for years 2010-2013 and 2014 failed for lack of quorum.

Orders: Respondent must schedule an annual meeting within 60 days, pay Petitioner $550.00 for filing fees, and pay the Department a $200.00 civil penalty.

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

Disposition: petitioner_win

Cited:

A.R.S. § 33-1248(B)

Decision Documents

13F-H1313004-BFS Decision – 386095.pdf

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13F-H1313004-BFS Decision – 391198.pdf

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**Case Summary: Babington vs. Park Scottsdale II Townhouse HOA**
**Case No:** 13F-H1313004-BFS
**Forum:** Arizona Office of Administrative Hearings
**Date of Hearing:** March 10, 2014

**Overview and Proceedings**
Petitioner Nancy L. Babington filed a petition against Respondent Park Scottsdale II Townhouse HOA ("Park"), alleging violations of state statutes regarding homeowners' association meetings. The hearing took place before Administrative Law Judge M. Douglas, with the Petitioner appearing on her own behalf and the Respondent represented by legal counsel.

**Key Arguments and Facts**
The central issue was whether Park violated A.R.S. § 33-1248(B) by failing to hold required annual meetings.

* **Petitioner’s Position:** Ms. Babington argued that the association had not held an annual meeting or board election since 2009. She testified that the current Board consisted of individuals who were either never elected or whose terms had expired, and that repeated attempts to force a meeting had been ignored.
* **Respondent’s Position:** Park admitted in its Amended Answer that it did not hold annual meetings in 2010, 2011, 2012, or 2013. A Board member testified that the Board "chose not to have annual meetings" due to the association's poor financial situation. The Respondent noted an attempt to hold a meeting in 2014 failed due to a lack of quorum and stated that the Board currently only held executive sessions.

**Legal Findings**
The Administrative Law Judge (ALJ) relied on A.R.S. § 33-1248(B), which mandates that a "meeting of the unit owners' association shall be held at least once each year" regardless of provisions in condominium documents.

The ALJ found the Petitioner met the burden of proof by a preponderance of the evidence. The tribunal concluded that Park violated A.R.S. § 33-1248(B) by failing to hold annual meetings for five consecutive years (2010 through 2014).

**Final Decision and Order**
The ALJ ruled in favor of the Petitioner and issued the following orders:
1. **Compliance:** Park was ordered to comply with A.R.S. § 33-1248(B) and schedule an annual meeting within 60 days of the order's effective date.
2. **Restitution:** Park was ordered to reimburse the Petitioner’s filing fee of $550.00 within 30 days.
3. **Civil Penalty:** Park was assessed a $200.00 civil penalty payable to the Department of Fire, Building and Life Safety.

**Certification**
Because the Department of Fire, Building and Life Safety took no action to accept, reject, or modify the decision within the statutory timeframe, the ALJ’s decision was certified as the final administrative decision on April 18, 2014.

Case Participants

Petitioner Side

Nancy L. Babington (petitioner)
Park Scottsdale II Townhouse HOA (Member)
Appeared on her own behalf

Respondent Side

Charlene Cruz (HOA attorney)
Mulcahy Law Firm, P.C.
Represented Respondent
Joe Silberschlag (board member)
Park Scottsdale II Townhouse HOA
Witness; testified he was elected to the Board in 2009
Beth Mulcahy (HOA attorney)
Mulcahy Law Firm, PC
Listed on mailing distribution

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 (OAH director)
Office of Administrative Hearings
Signed Certification of Decision
Joni Cage (agency staff)
Department of Fire Building and Life Safety
c/o for Gene Palma
Rosella J. Rodriguez (OAH staff)
Office of Administrative Hearings
Signed mailing/transmission