ARIZ. REV. STAT. § 33-1803; Bylaws Article IV, Section 6
Outcome Summary
The Administrative Law Judge denied the Petitioner's request, finding that the HOA's action to uniformly assess all CR-1 Lots (including Petitioner's two uncombined lots) adhered to the Association Bylaws, which require uniform rates, and did not violate ARS § 33-1803. The governing documents took precedence over any prior reduced assessment granted by a previous Board Order.
Why this result: Petitioner failed to prove the Association’s interpretation of the Bylaws requiring uniform assessment for all CR-1 lots was incorrect or unlawful, as her lots remained separate parcels according to the county map.
Key Issues & Findings
Whether Sin Vacas Property Owners Association (Respondent) arbitrarily and capriciously raised annual assessments for some homeowners and not others in contravention of decades of past board practice and contractual agreements.
Petitioner challenged the Association's decision to raise her assessment from 150% to 200% (full rate for two lots) based on the Association's interpretation that the Bylaws require uniform assessment rates for all CR-1 lots, arguing the new rate violated a long-standing prior Board Order (2003) granting her a reduced rate.
Orders: Petitioner’s petition is denied.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
ARIZ. REV. STAT. § 32-2102
ARIZ. REV. STAT. § 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 32-2199(2)
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199.01(D)
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 41-1092 et seq.
ARIZ. REV. STAT. § 33-1803
ARIZ. REV. STAT. § 33-1802(4)
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Bylaws Article IV, Covenant For Maintenance Assessments, Section 6
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
Video Overview
Audio Overview
Decision Documents
19F-H1918017-REL Decision – 698354.pdf
Uploaded 2025-10-09T03:33:35 (137.2 KB)
Briefing Doc – 19F-H1918017-REL
Briefing Document: Brokaw v. Sin Vacas Property Owners Association (Case No. 19F-H1918017-REL)
Executive Summary
This document synthesizes the findings of the Administrative Law Judge Decision in the case of Loraine Brokaw versus the Sin Vacas Property Owners Association (POA). The central conflict concerned the POA Board’s decision to increase Ms. Brokaw’s annual assessment from 150% to 200% for a single residence constructed across two separate lots.
The Petitioner, Ms. Brokaw, argued that this increase was unlawful and capricious, violating a nearly thirty-year practice that had been formalized by a 2003 Board decision granting her a reduced assessment. The POA contended that its action, taken on the advice of counsel, was necessary to comply with the Association’s governing documents, which mandate uniform assessments for all lots.
The Administrative Law Judge (ALJ) ultimately denied the homeowner’s petition. The decision established a critical legal precedent for the Association: the unambiguous language of the governing Covenants, Conditions, and Restrictions (CC&Rs) takes precedence over any past Board decisions, informal agreements, or long-standing practices, regardless of their duration. Because the Petitioner owns two distinct, legally unconsolidated lots, the ALJ found that the Board’s action to assess each lot at the full, uniform rate was not a violation, but rather a correct and required application of the community’s Bylaws.
——————————————————————————–
I. Case Overview
• Parties: Loraine Brokaw (Petitioner) vs. Sin Vacas Property Owners Association (Respondent).
• Jurisdiction: Office of Administrative Hearings (OAH), State of Arizona.
• Case Number: 19F-H1918017-REL.
• Presiding Judge: Administrative Law Judge Jenna Clark.
• Hearing Date: March 25, 2019.
• Decision Date: April 01, 2019.
II. Central Issue of the Dispute
The hearing was convened to address the following issue, as stated in the NOTICE OF HEARING:
“Whether Sin Vacas Property Owners Association (Respondent) arbitrarily and capriciously raised annual assessments for some homeowners and not others in contravention of decades of past board practice and contractual agreements based on utterly flawed legal theory, which, in fact, changed from attorney to attorney.”
The core of the dispute was the Association Board’s decision in 2017 to increase the annual assessment for the Petitioner’s property—a single home built across two adjacent lots—from 150% to 200% of the standard single-lot assessment rate. The Petitioner sought to compel the Board to revert to the 150% assessment schedule and reimburse her for costs associated with the petition.
III. Petitioner’s Position and Key Testimony
• Property History: The Petitioner testified that her husband first bought property in Sin Vacas in 1979. In 2003, the couple purchased an adjacent lot and constructed a new home that spanned across both properties (Lots 156 and 157).
• Claim of Lot Combination: The Petitioner claimed to have legally combined the two lots but presented no supporting documentation to the tribunal.
• Historical Assessment Practice: The Petitioner testified that as of 2003, the Association’s practice was to assess properties as follows:
◦ 100%: For a home on a single lot.
◦ 25%: For an undeveloped vacant lot.
◦ 150%: For a residence situated on two lots.
• 2003 Board Decision: On March 24, 2003, the Petitioner received written confirmation from the Board that it had voted to grant her a reduced assessment of 150%, formalizing the existing practice for her property.
• 2017 Assessment Change: On or about December 4, 2017, the Petitioner received a letter from the Association’s management company advising that the Board had decided to raise her assessment to 200%, citing “advice of counsel.”
• Rationale for Increase: The Petitioner stated she was given varying reasons for the change but was ultimately informed that the Board determined all plats needed to be assessed uniformly according to the Association’s governing documents. She was also told that to be assessed as a single lot, she would need to formally combine the lots on the county plat map, a process estimated to cost between $3,000 and $10,000 and require the permission of every other homeowner in the community.
IV. Respondent’s Position
The Sin Vacas Property Owners Association declined to present witnesses or exhibits. Its position at the hearing was that the dispute arose from differing interpretations of the language within the governing Bylaws. The Association’s counsel stated that the matter would be resolved based on the tribunal’s interpretation of the relevant governing texts.
V. Analysis of Governing Documents
The decision rested heavily on the interpretation of the Association’s Covenants, Conditions, and Restrictions (CC&Rs), recorded on April 13, 1978.
Document Section
Key Provision
Relevance to the Case
Bylaws Article I, Section 5
Defines a “Lot” as “any numbered lot shown upon any recorded subdivision map of the Sin Vacas Properties.”
This established that the Petitioner’s two properties, being separately numbered on the subdivision map, constitute two distinct lots for assessment purposes.
Bylaws Article IV, Section 6
“Special assessments must be fixed and apportioned at a uniform rate for all CR-1 lots, SR lots, and each 20,000 square feet of TR lots.”
This clause was central to the Judge’s decision. It establishes a clear mandate for uniformity in assessments across all lots of the same type (CR-1), which the 150% rate violated by treating two CR-1 lots differently from others.
Bylaws Article IV, Section 7
States the Board of Directors shall “fix the amount of the annual assessment against each Lot.”
This empowers the Board to set assessments but reinforces that they must do so on a per-lot basis, consistent with the uniformity requirement.
VI. Judge’s Findings and Conclusions of Law
The Administrative Law Judge made the following key determinations, leading to the denial of the petition:
• Failure to Meet Burden of Proof: The Petitioner failed to prove by a preponderance of the evidence that the Association violated community documents or Arizona statutes.
• Undisputed Material Facts: The Judge found it undisputed that:
1. The Petitioner owns two distinct CR-1 lots (Lot 156 and Lot 157).
2. The lots have never been legally combined or consolidated on the Pima County Assessor’s plat map.
3. The Petitioner’s residence is constructed across both lots.
• Primacy of Governing Documents: The central conclusion of the decision was that the Association’s governing documents supersede any past Board decisions or long-standing informal agreements. The Judge stated:
• Uniformity is Mandatory: The Bylaws require that the Association assess all developed CR-1 lots at a uniform rate. By assessing both of the Petitioner’s lots at the same full rate as every other developed CR-1 lot, the Association was found to be complying with the Declaration.
• Board’s Action as Corrective: The 2017 Board’s action was not a breach of contract or an unlawful act. Instead, it was an appropriate correction of the previous Board’s 2003 order, which was inconsistent with the Bylaws’ uniformity mandate. The Petitioner’s argument that the 2003 order should supersede the 2017 order was deemed inaccurate.
VII. Final Order
Based on the findings and legal conclusions, the Administrative Law Judge ordered that the Petitioner’s petition be denied.
The decision affirmed that the Sin Vacas Property Owners Association Board’s action to uniformly assess all CR-1 lots did not violate Arizona state law (ARIZ. REV. STAT. § 33-1803) or the Association’s Bylaws.
Study Guide – 19F-H1918017-REL
Study Guide: Brokaw v. Sin Vacas Property Owners Association
This guide reviews the key facts, legal arguments, and final ruling in the administrative hearing case No. 19F-H1918017-REL, Loraine Brokaw v. Sin Vacas Property Owners Association.
Short-Answer Quiz
Answer each question in 2-3 sentences, based on the provided source document.
1. Who were the primary parties involved in the hearing, and what were their respective roles?
2. What specific relief did the Petitioner request from the Office of Administrative Hearings?
3. What specific action taken by the Respondent prompted the Petitioner to file her petition?
4. Describe the assessment practice that the Sin Vacas Board had in place for the Petitioner’s property from 2003 until the change in 2017.
5. What was the Association’s stated reason for increasing the Petitioner’s assessment from 150% to 200%?
6. According to the Association’s Bylaws, what is the rule for how special assessments must be fixed and apportioned?
7. On what grounds did the Administrative Law Judge determine that the Petitioner owned two separate lots?
8. What is the legal standard of proof required in this case, and did the Petitioner successfully meet it?
9. Why did the Judge rule that the 2003 Board Order reducing the Petitioner’s assessment was not a binding contract?
10. What was the final order issued by the Administrative Law Judge in this matter?
——————————————————————————–
Answer Key
1. The primary parties were Loraine Brokaw, the Petitioner, who brought the action, and the Sin Vacas Property Owners Association, the Respondent. The case was heard by Administrative Law Judge Jenna Clark from the Office of Administrative Hearings.
2. The Petitioner requested that the Association’s Board be compelled to honor the 30-year assessment schedule and charge her the 150% assessment rate. She also requested that the Board reimburse her for the costs of bringing the petition.
3. The Petitioner filed her petition after receiving a letter on or about December 4, 2017, from the Association’s management company. This letter advised her that the Board had decided to raise her assessment from 150% to 200% based on “advice of counsel.”
4. Beginning in 2003, the Association assessed a home on a single lot at 100%, an undeveloped vacant lot at 25%, and a residence spanning two lots, like the Petitioner’s, at 150%. The Petitioner received written confirmation of her reduced 150% assessment from the Board on March 24, 2003.
5. The Association’s Board increased the assessment after determining that all plats needed to be assessed uniformly, per the Association’s Restatement. The increase was meant to bring her two lots into compliance with the governing documents.
6. Bylaws Article IV, Section 6 states that “Special assessments must be fixed and apportioned at a uniform rate for all CR-1 lots, SR lots, and each 20,000 square feet of TR lots.”
7. The Judge’s conclusion was based on the undisputed fact that the Petitioner’s two properties, Lots 156 and 157, have never been officially combined or consolidated into a single numbered lot on the Pima County Assessor’s Office plat map.
8. The required standard of proof was a “preponderance of the evidence,” which means proving a contention is more probably true than not. The Judge found that the Petitioner failed to sustain her burden of proof.
9. The Judge ruled that the 2003 Board Order was not a binding contract because the Petitioner provided no proof of consideration tendered to the Association. Therefore, the Association’s governing documents took precedence over the informal agreement.
10. The Administrative Law Judge ordered that the Petitioner’s petition be denied. The Judge concluded that the Board’s action to uniformly assess all CR-1 lots did not violate state statutes or the Association’s Bylaws.
——————————————————————————–
Essay Questions
The following questions are designed for longer, more analytical responses. No answers are provided.
1. Analyze the legal reasoning behind the Administrative Law Judge’s decision. Discuss the hierarchy of authority between the Association’s governing documents (CC&Rs) and a Board Order, as interpreted in this case.
2. Explain the concept of “burden of proof” in the context of this hearing. How did the Petitioner’s failure to meet the “preponderance of the evidence” standard lead to the denial of her petition?
3. The Petitioner’s case relied heavily on past practice and a 2003 Board decision to grant her a reduced assessment. Discuss why this argument was ultimately insufficient to overcome the explicit language of the Association’s governing documents.
4. Examine the contractual nature of a homeowners’ association’s CC&Rs as described in the Findings of Fact. How does this contractual relationship between the Association and each property owner shape the obligations and rights of both parties?
5. The Respondent (Sin Vacas POA) declined to present witnesses or exhibits, taking a passive stance at the hearing. Discuss the potential legal strategy behind this approach and how the undisputed material facts of the case made this a viable option.
——————————————————————————–
Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An official, in this case Jenna Clark, who presides over administrative hearings, reviews evidence, makes Findings of Fact and Conclusions of Law, and issues orders.
Association
The Sin Vacas Property Owners Association, a homeowners’ association for the Sin Vacas subdivision in Tucson, Arizona, responsible for managing, maintaining, and improving the property.
Assessment
A fee levied by the Association on property owners to promote the recreation, health, safety, and welfare of residents and for the improvement and maintenance of common areas and private streets.
Bylaws
The specific articles and sections within the CC&Rs that govern the Association’s operations, including definitions, assessment rules, and voting procedures.
CC&Rs (Covenants, Conditions, and Restrictions)
The governing documents for the Association, recorded with Pima County on April 13, 1978. They form an enforceable contract between the Association and each property owner.
Department
The Arizona Department of Real Estate, which is authorized by statute to receive and decide petitions for hearings from members of homeowners’ associations.
Any numbered lot shown upon any recorded subdivision map of the Sin Vacas Properties, with the exception of the Common Area. This case deals specifically with CR-1 lots.
OAH (Office of Administrative Hearings)
An independent state agency to which the Department refers matters for evidentiary hearings. The OAH has the authority to hear and decide contested cases and interpret contracts between parties.
Petitioner
Loraine Brokaw, a property owner in the Sin Vacas subdivision and member of the Association who filed the petition against the Association.
Planned Community
A real estate development where owners of separately owned lots are mandatory members of a nonprofit association and are required to pay assessments for the purpose of managing, maintaining, or improving the property.
Preponderance of the evidence
The standard of proof required for the Petitioner to win her case. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not” and represents the greater weight of evidence.
Respondent
The Sin Vacas Property Owners Association, the entity against whom the petition was filed.
Blog Post – 19F-H1918017-REL
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19F-H1918017-REL
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The provided text is an Administrative Law Judge Decision from the Office of Administrative Hearings regarding a dispute between Loraine Brokaw (Petitioner) and the Sin Vacas Property Owners Association (Respondent). The Petitioner challenged the Association’s decision to raise her annual assessment, arguing that the increase was arbitrary and contravened a decades-long practice of assessing her two lots at a combined 150% rate, rather than the new 200% rate. The decision outlines the Findings of Fact and Conclusions of Law, confirming that the Association is governed by its Covenants, Conditions, and Restrictions (CC&Rs) and Bylaws, which require uniform assessment rates for all developed lots. Ultimately, the Administrative Law Judge concluded that the Petitioner failed to prove the Association violated any community documents or statutes, reasoning that the governing documents take precedence over any prior informal agreement, and denied the Petitioner’s request.
What was the core legal basis for rejecting the petitioner’s assessment challenge?
How did the Association’s governing documents dictate uniform assessment requirements?
What legal implications arose from the Board’s decision to change long-standing practice?
Based on 1 source
Case Participants
Petitioner Side
Loraine Brokaw(petitioner)
Respondent Side
Jason Smith(HOA attorney) Carpenter, Hazlewood, Delgado & Bolen LLP Counsel for Sin Vacas Property Owners Association
Sean Moynihan(HOA attorney) Carpenter, Hazlewood, Delgado & Bolen LLP Counsel for Sin Vacas Property Owners Association
Neutral Parties
Jenna Clark(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
ARIZ. REV. STAT. § 33-1803; Bylaws Article IV, Section 6
Outcome Summary
The Administrative Law Judge denied the Petitioner's request, finding that the HOA's action to uniformly assess all CR-1 Lots (including Petitioner's two uncombined lots) adhered to the Association Bylaws, which require uniform rates, and did not violate ARS § 33-1803. The governing documents took precedence over any prior reduced assessment granted by a previous Board Order.
Why this result: Petitioner failed to prove the Association’s interpretation of the Bylaws requiring uniform assessment for all CR-1 lots was incorrect or unlawful, as her lots remained separate parcels according to the county map.
Key Issues & Findings
Whether Sin Vacas Property Owners Association (Respondent) arbitrarily and capriciously raised annual assessments for some homeowners and not others in contravention of decades of past board practice and contractual agreements.
Petitioner challenged the Association's decision to raise her assessment from 150% to 200% (full rate for two lots) based on the Association's interpretation that the Bylaws require uniform assessment rates for all CR-1 lots, arguing the new rate violated a long-standing prior Board Order (2003) granting her a reduced rate.
Orders: Petitioner’s petition is denied.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
ARIZ. REV. STAT. § 32-2102
ARIZ. REV. STAT. § 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 32-2199(2)
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199.01(D)
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 41-1092 et seq.
ARIZ. REV. STAT. § 33-1803
ARIZ. REV. STAT. § 33-1802(4)
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Bylaws Article IV, Covenant For Maintenance Assessments, Section 6
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
Video Overview
Audio Overview
Decision Documents
19F-H1918017-REL Decision – 698354.pdf
Uploaded 2026-01-23T17:26:53 (137.2 KB)
Briefing Doc – 19F-H1918017-REL
Briefing Document: Brokaw v. Sin Vacas Property Owners Association (Case No. 19F-H1918017-REL)
Executive Summary
This document synthesizes the findings of the Administrative Law Judge Decision in the case of Loraine Brokaw versus the Sin Vacas Property Owners Association (POA). The central conflict concerned the POA Board’s decision to increase Ms. Brokaw’s annual assessment from 150% to 200% for a single residence constructed across two separate lots.
The Petitioner, Ms. Brokaw, argued that this increase was unlawful and capricious, violating a nearly thirty-year practice that had been formalized by a 2003 Board decision granting her a reduced assessment. The POA contended that its action, taken on the advice of counsel, was necessary to comply with the Association’s governing documents, which mandate uniform assessments for all lots.
The Administrative Law Judge (ALJ) ultimately denied the homeowner’s petition. The decision established a critical legal precedent for the Association: the unambiguous language of the governing Covenants, Conditions, and Restrictions (CC&Rs) takes precedence over any past Board decisions, informal agreements, or long-standing practices, regardless of their duration. Because the Petitioner owns two distinct, legally unconsolidated lots, the ALJ found that the Board’s action to assess each lot at the full, uniform rate was not a violation, but rather a correct and required application of the community’s Bylaws.
——————————————————————————–
I. Case Overview
• Parties: Loraine Brokaw (Petitioner) vs. Sin Vacas Property Owners Association (Respondent).
• Jurisdiction: Office of Administrative Hearings (OAH), State of Arizona.
• Case Number: 19F-H1918017-REL.
• Presiding Judge: Administrative Law Judge Jenna Clark.
• Hearing Date: March 25, 2019.
• Decision Date: April 01, 2019.
II. Central Issue of the Dispute
The hearing was convened to address the following issue, as stated in the NOTICE OF HEARING:
“Whether Sin Vacas Property Owners Association (Respondent) arbitrarily and capriciously raised annual assessments for some homeowners and not others in contravention of decades of past board practice and contractual agreements based on utterly flawed legal theory, which, in fact, changed from attorney to attorney.”
The core of the dispute was the Association Board’s decision in 2017 to increase the annual assessment for the Petitioner’s property—a single home built across two adjacent lots—from 150% to 200% of the standard single-lot assessment rate. The Petitioner sought to compel the Board to revert to the 150% assessment schedule and reimburse her for costs associated with the petition.
III. Petitioner’s Position and Key Testimony
• Property History: The Petitioner testified that her husband first bought property in Sin Vacas in 1979. In 2003, the couple purchased an adjacent lot and constructed a new home that spanned across both properties (Lots 156 and 157).
• Claim of Lot Combination: The Petitioner claimed to have legally combined the two lots but presented no supporting documentation to the tribunal.
• Historical Assessment Practice: The Petitioner testified that as of 2003, the Association’s practice was to assess properties as follows:
◦ 100%: For a home on a single lot.
◦ 25%: For an undeveloped vacant lot.
◦ 150%: For a residence situated on two lots.
• 2003 Board Decision: On March 24, 2003, the Petitioner received written confirmation from the Board that it had voted to grant her a reduced assessment of 150%, formalizing the existing practice for her property.
• 2017 Assessment Change: On or about December 4, 2017, the Petitioner received a letter from the Association’s management company advising that the Board had decided to raise her assessment to 200%, citing “advice of counsel.”
• Rationale for Increase: The Petitioner stated she was given varying reasons for the change but was ultimately informed that the Board determined all plats needed to be assessed uniformly according to the Association’s governing documents. She was also told that to be assessed as a single lot, she would need to formally combine the lots on the county plat map, a process estimated to cost between $3,000 and $10,000 and require the permission of every other homeowner in the community.
IV. Respondent’s Position
The Sin Vacas Property Owners Association declined to present witnesses or exhibits. Its position at the hearing was that the dispute arose from differing interpretations of the language within the governing Bylaws. The Association’s counsel stated that the matter would be resolved based on the tribunal’s interpretation of the relevant governing texts.
V. Analysis of Governing Documents
The decision rested heavily on the interpretation of the Association’s Covenants, Conditions, and Restrictions (CC&Rs), recorded on April 13, 1978.
Document Section
Key Provision
Relevance to the Case
Bylaws Article I, Section 5
Defines a “Lot” as “any numbered lot shown upon any recorded subdivision map of the Sin Vacas Properties.”
This established that the Petitioner’s two properties, being separately numbered on the subdivision map, constitute two distinct lots for assessment purposes.
Bylaws Article IV, Section 6
“Special assessments must be fixed and apportioned at a uniform rate for all CR-1 lots, SR lots, and each 20,000 square feet of TR lots.”
This clause was central to the Judge’s decision. It establishes a clear mandate for uniformity in assessments across all lots of the same type (CR-1), which the 150% rate violated by treating two CR-1 lots differently from others.
Bylaws Article IV, Section 7
States the Board of Directors shall “fix the amount of the annual assessment against each Lot.”
This empowers the Board to set assessments but reinforces that they must do so on a per-lot basis, consistent with the uniformity requirement.
VI. Judge’s Findings and Conclusions of Law
The Administrative Law Judge made the following key determinations, leading to the denial of the petition:
• Failure to Meet Burden of Proof: The Petitioner failed to prove by a preponderance of the evidence that the Association violated community documents or Arizona statutes.
• Undisputed Material Facts: The Judge found it undisputed that:
1. The Petitioner owns two distinct CR-1 lots (Lot 156 and Lot 157).
2. The lots have never been legally combined or consolidated on the Pima County Assessor’s plat map.
3. The Petitioner’s residence is constructed across both lots.
• Primacy of Governing Documents: The central conclusion of the decision was that the Association’s governing documents supersede any past Board decisions or long-standing informal agreements. The Judge stated:
• Uniformity is Mandatory: The Bylaws require that the Association assess all developed CR-1 lots at a uniform rate. By assessing both of the Petitioner’s lots at the same full rate as every other developed CR-1 lot, the Association was found to be complying with the Declaration.
• Board’s Action as Corrective: The 2017 Board’s action was not a breach of contract or an unlawful act. Instead, it was an appropriate correction of the previous Board’s 2003 order, which was inconsistent with the Bylaws’ uniformity mandate. The Petitioner’s argument that the 2003 order should supersede the 2017 order was deemed inaccurate.
VII. Final Order
Based on the findings and legal conclusions, the Administrative Law Judge ordered that the Petitioner’s petition be denied.
The decision affirmed that the Sin Vacas Property Owners Association Board’s action to uniformly assess all CR-1 lots did not violate Arizona state law (ARIZ. REV. STAT. § 33-1803) or the Association’s Bylaws.
Study Guide – 19F-H1918017-REL
Study Guide: Brokaw v. Sin Vacas Property Owners Association
This guide reviews the key facts, legal arguments, and final ruling in the administrative hearing case No. 19F-H1918017-REL, Loraine Brokaw v. Sin Vacas Property Owners Association.
Short-Answer Quiz
Answer each question in 2-3 sentences, based on the provided source document.
1. Who were the primary parties involved in the hearing, and what were their respective roles?
2. What specific relief did the Petitioner request from the Office of Administrative Hearings?
3. What specific action taken by the Respondent prompted the Petitioner to file her petition?
4. Describe the assessment practice that the Sin Vacas Board had in place for the Petitioner’s property from 2003 until the change in 2017.
5. What was the Association’s stated reason for increasing the Petitioner’s assessment from 150% to 200%?
6. According to the Association’s Bylaws, what is the rule for how special assessments must be fixed and apportioned?
7. On what grounds did the Administrative Law Judge determine that the Petitioner owned two separate lots?
8. What is the legal standard of proof required in this case, and did the Petitioner successfully meet it?
9. Why did the Judge rule that the 2003 Board Order reducing the Petitioner’s assessment was not a binding contract?
10. What was the final order issued by the Administrative Law Judge in this matter?
——————————————————————————–
Answer Key
1. The primary parties were Loraine Brokaw, the Petitioner, who brought the action, and the Sin Vacas Property Owners Association, the Respondent. The case was heard by Administrative Law Judge Jenna Clark from the Office of Administrative Hearings.
2. The Petitioner requested that the Association’s Board be compelled to honor the 30-year assessment schedule and charge her the 150% assessment rate. She also requested that the Board reimburse her for the costs of bringing the petition.
3. The Petitioner filed her petition after receiving a letter on or about December 4, 2017, from the Association’s management company. This letter advised her that the Board had decided to raise her assessment from 150% to 200% based on “advice of counsel.”
4. Beginning in 2003, the Association assessed a home on a single lot at 100%, an undeveloped vacant lot at 25%, and a residence spanning two lots, like the Petitioner’s, at 150%. The Petitioner received written confirmation of her reduced 150% assessment from the Board on March 24, 2003.
5. The Association’s Board increased the assessment after determining that all plats needed to be assessed uniformly, per the Association’s Restatement. The increase was meant to bring her two lots into compliance with the governing documents.
6. Bylaws Article IV, Section 6 states that “Special assessments must be fixed and apportioned at a uniform rate for all CR-1 lots, SR lots, and each 20,000 square feet of TR lots.”
7. The Judge’s conclusion was based on the undisputed fact that the Petitioner’s two properties, Lots 156 and 157, have never been officially combined or consolidated into a single numbered lot on the Pima County Assessor’s Office plat map.
8. The required standard of proof was a “preponderance of the evidence,” which means proving a contention is more probably true than not. The Judge found that the Petitioner failed to sustain her burden of proof.
9. The Judge ruled that the 2003 Board Order was not a binding contract because the Petitioner provided no proof of consideration tendered to the Association. Therefore, the Association’s governing documents took precedence over the informal agreement.
10. The Administrative Law Judge ordered that the Petitioner’s petition be denied. The Judge concluded that the Board’s action to uniformly assess all CR-1 lots did not violate state statutes or the Association’s Bylaws.
——————————————————————————–
Essay Questions
The following questions are designed for longer, more analytical responses. No answers are provided.
1. Analyze the legal reasoning behind the Administrative Law Judge’s decision. Discuss the hierarchy of authority between the Association’s governing documents (CC&Rs) and a Board Order, as interpreted in this case.
2. Explain the concept of “burden of proof” in the context of this hearing. How did the Petitioner’s failure to meet the “preponderance of the evidence” standard lead to the denial of her petition?
3. The Petitioner’s case relied heavily on past practice and a 2003 Board decision to grant her a reduced assessment. Discuss why this argument was ultimately insufficient to overcome the explicit language of the Association’s governing documents.
4. Examine the contractual nature of a homeowners’ association’s CC&Rs as described in the Findings of Fact. How does this contractual relationship between the Association and each property owner shape the obligations and rights of both parties?
5. The Respondent (Sin Vacas POA) declined to present witnesses or exhibits, taking a passive stance at the hearing. Discuss the potential legal strategy behind this approach and how the undisputed material facts of the case made this a viable option.
——————————————————————————–
Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An official, in this case Jenna Clark, who presides over administrative hearings, reviews evidence, makes Findings of Fact and Conclusions of Law, and issues orders.
Association
The Sin Vacas Property Owners Association, a homeowners’ association for the Sin Vacas subdivision in Tucson, Arizona, responsible for managing, maintaining, and improving the property.
Assessment
A fee levied by the Association on property owners to promote the recreation, health, safety, and welfare of residents and for the improvement and maintenance of common areas and private streets.
Bylaws
The specific articles and sections within the CC&Rs that govern the Association’s operations, including definitions, assessment rules, and voting procedures.
CC&Rs (Covenants, Conditions, and Restrictions)
The governing documents for the Association, recorded with Pima County on April 13, 1978. They form an enforceable contract between the Association and each property owner.
Department
The Arizona Department of Real Estate, which is authorized by statute to receive and decide petitions for hearings from members of homeowners’ associations.
Any numbered lot shown upon any recorded subdivision map of the Sin Vacas Properties, with the exception of the Common Area. This case deals specifically with CR-1 lots.
OAH (Office of Administrative Hearings)
An independent state agency to which the Department refers matters for evidentiary hearings. The OAH has the authority to hear and decide contested cases and interpret contracts between parties.
Petitioner
Loraine Brokaw, a property owner in the Sin Vacas subdivision and member of the Association who filed the petition against the Association.
Planned Community
A real estate development where owners of separately owned lots are mandatory members of a nonprofit association and are required to pay assessments for the purpose of managing, maintaining, or improving the property.
Preponderance of the evidence
The standard of proof required for the Petitioner to win her case. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not” and represents the greater weight of evidence.
Respondent
The Sin Vacas Property Owners Association, the entity against whom the petition was filed.
Blog Post – 19F-H1918017-REL
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19F-H1918017-REL
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The provided text is an Administrative Law Judge Decision from the Office of Administrative Hearings regarding a dispute between Loraine Brokaw (Petitioner) and the Sin Vacas Property Owners Association (Respondent). The Petitioner challenged the Association’s decision to raise her annual assessment, arguing that the increase was arbitrary and contravened a decades-long practice of assessing her two lots at a combined 150% rate, rather than the new 200% rate. The decision outlines the Findings of Fact and Conclusions of Law, confirming that the Association is governed by its Covenants, Conditions, and Restrictions (CC&Rs) and Bylaws, which require uniform assessment rates for all developed lots. Ultimately, the Administrative Law Judge concluded that the Petitioner failed to prove the Association violated any community documents or statutes, reasoning that the governing documents take precedence over any prior informal agreement, and denied the Petitioner’s request.
What was the core legal basis for rejecting the petitioner’s assessment challenge?
How did the Association’s governing documents dictate uniform assessment requirements?
What legal implications arose from the Board’s decision to change long-standing practice?
Based on 1 source
Case Participants
Petitioner Side
Loraine Brokaw(petitioner)
Respondent Side
Jason Smith(HOA attorney) Carpenter, Hazlewood, Delgado & Bolen LLP Counsel for Sin Vacas Property Owners Association
Sean Moynihan(HOA attorney) Carpenter, Hazlewood, Delgado & Bolen LLP Counsel for Sin Vacas Property Owners Association
Neutral Parties
Jenna Clark(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
19F-H1918001-REL
Agency
ADRE
Tribunal
OAH
Decision Date
2019-03-25
Administrative Law Judge
Jenna Clark
Outcome
total
Filing Fees Refunded
$500.00
Civil Penalties
$250.00
Parties & Counsel
Petitioner
Jay A. Janicek
Counsel
Jake Kubert
Respondent
Sycamore Vista No. 8 Homeowners Association
Counsel
Evan Thompson
Alleged Violations
ARIZ. REV. STAT. § 33-1804(B); Association Bylaws Article III, Sections 3 & 4; Association Bylaws Article VIII, Section 1
Outcome Summary
The ALJ granted the petition, concluding that the HOA Board’s unilateral amendment of the Bylaws on November 20, 2017, was an invalid action taken without the required vote of the Association members and without statutory notice, violating ARIZ. REV. STAT. § 33-1804(B) and the Association’s governing documents. The amendment was invalidated, and the Respondent was ordered to refund the Petitioner's filing fee and pay a $250.00 civil penalty.
Key Issues & Findings
Whether Sycamore Vista No. 8 Homeowners Association (Respondent) violated Association Bylaws Article III, Sections 3 & 4 and Article VIII, Section 1 in an action taken by the board on November 20, 2017.
The Board of Directors attempted a third amendment to the Bylaws on November 20, 2017, specifically changing the requirements for the Association's financial review (audit, review, or compilation). The ALJ concluded that this action was invalid because it was taken in the absence of a quorum of Association members voting in favor of the amendment, violating both the Bylaws and statutory notice requirements.
Orders: The petition was granted. The third amendment to the Association Bylaws taken on November 20, 2017, was invalidated. Respondent was ordered to pay the Petitioner the filing fee required by ARIZ. REV. STAT. § 32-2199.01 and pay a civil penalty of $250.00 to the Planned Community Hearing Office Fund.
Briefing Document: Janicek v. Sycamore Vista No. 8 Homeowners Association
Executive Summary
This document synthesizes the findings and legal conclusions from the administrative hearings regarding a dispute between Jay A. Janicek (“Petitioner”) and the Sycamore Vista No. 8 Homeowners Association (“Respondent” or “the Association”). The central issue was whether the Association’s Board of Directors acted outside its authority by unilaterally amending the Association’s Bylaws during a Board meeting on November 20, 2017, without a vote from the general membership.
The Administrative Law Judge (ALJ) determined that the Board’s action violated both the Association’s governing documents and Arizona Revised Statutes (A.R.S. § 33-1804). The ruling emphasized that the term “members” in the Bylaws refers specifically to the body of property owners, not the Board of Directors. Consequently, the third amendment to the Bylaws was invalidated, and the Association was ordered to pay a civil penalty and refund the Petitioner’s filing fees. A rehearing in March 2019 reconfirmed these findings, underscoring the necessity of transparency and membership participation in homeowners’ association governance.
The Department of Real Estate referred the matter to the Office of Administrative Hearings (OAH) following a petition filed by Mr. Janicek on July 25, 2018. The Respondent initially declined to present witnesses or exhibits, choosing to rely on a dispute over textual interpretation. Following an initial ruling in favor of the Petitioner, the Respondent requested a rehearing, which was granted but ultimately resulted in the same conclusion.
The Core Dispute: Bylaw Amendment Authority
The conflict arose from a Board meeting held on November 20, 2017. During this meeting, the Board voted to approve a third amendment to the Association’s Bylaws.
The Specific Amendment
The Board modified Article VIII, Section 6(d). The original text required the Board to:
• “…cause an annual audit of the Association books to be made by a public accountant at the completion of each fiscal year.”
The Board replaced this with language allowing for:
• “…an annual audit, review, or compilation of the Associations financial records to be made by a public accountant within 180 days after the end of the HOA’s fiscal year.”
Conflicting Interpretations of “Members”
The primary legal dispute centered on the interpretation of Bylaws Article XIII, Section 1, which states:
“These Bylaws may be amended at a regular or special meeting of the Board of Directors of the Association by a vote of a majority of a quorum of members present in person or by proxy.” (Emphasis added).
• Petitioner’s Position: “Members” refers to the general membership of the Association (property owners), as defined in Article II, Section 7 and the Declaration. Petitioner argued that the use of “proxy” in this section further proves it refers to members, as Board Directors are not permitted to vote by proxy.
• Respondent’s Position: “Members” refers to the members of the Board of Directors. The Association argued that because the word was not capitalized in Article XIII, it authorized the Board to amend Bylaws at their own meetings, provided a quorum of Directors was present.
Legal Analysis and Evidence
Governing Statutes and Case Law
The ALJ’s decision was informed by Arizona law and established legal principles:
• A.R.S. § 33-1804 (Open Meeting Law): This statute requires that notice of any meeting where a bylaw amendment is proposed must be sent to all members 10 to 50 days in advance. It also mandates that meetings of the board and association be open to all members.
• A.R.S. § 33-1804(F): The legislative intent of the Open Meeting Law is to promote transparency. Petitioner cited a message from Governor Ducey stating that such laws “provide residents the opportunity to resolve issues as a community rather than seek government intervention.”
• Powell v. Washburn (2006): The Arizona Supreme Court held that restrictive covenants (including Bylaws) must be interpreted to give effect to the intention of the parties based on the document in its entirety.
Findings of Fact regarding Authority
The ALJ identified several factors that invalidated the Board’s unilateral action:
1. Differentiated Terminology: The Bylaws consistently use “Directors” when referring to the Board and “Members” when referring to the homeowners. Article VI, Section 3 explicitly uses “Directors” to define a quorum for the Board, while Article XIII uses “members.”
2. Absence of Express Power: Article VII, which outlines the “Powers and Duties of the Board of Directors,” does not expressly grant the Board the authority to amend Bylaws. This power is reserved for the membership.
3. Lack of Notice: No Association members were present at the November 20, 2017, meeting, and no notice was provided to the general membership regarding a proposed amendment to the Bylaws as required by A.R.S. § 33-1804(B).
Conclusions of Law
The ALJ concluded that the Petitioner sustained the burden of proof by a preponderance of the evidence. The final legal determinations were:
• Avoidance of Absurdity: Bylaws must be construed to avoid an absurdity. The ALJ stated, “The voices of few cannot speak for all, unless all have bestowed those few with the power and authority to speak on their behalf.”
• Violation of Statute: The Board’s action violated A.R.S. § 33-1804(B) due to the lack of transparency and failure to provide notice of a bylaw amendment.
• Violation of Governing Documents: The Board acted outside the authority granted to it by the Bylaws, specifically Article III and Article XIII.
Final Order and Penalties
The Administrative Law Judge issued the following orders:
1. Invalidation: The third amendment to the Association Bylaws, enacted on November 20, 2017, is null and void.
2. Restitution of Fees: The Respondent must pay the Petitioner the cost of his filing fee.
3. Civil Penalty: The Respondent was ordered to pay a sum of $250.00 to the Planned Community Hearing Office Fund as a penalty for the violations.
4. Binding Nature: Following the rehearing, the order became binding, with the only further recourse being judicial review in the Superior Court within 35 days.
Study Guide – 19F-H1918001-REL-RHG
Study Guide: Janicek v. Sycamore Vista No. 8 Homeowners Association
This study guide provides a comprehensive review of the legal proceedings between Jay A. Janicek and the Sycamore Vista No. 8 Homeowners Association. It examines the interpretation of governing documents, the application of Arizona Revised Statutes regarding homeowners’ associations, and the limits of a Board of Directors’ authority to amend bylaws.
——————————————————————————–
Part I: Short-Answer Quiz
Instructions: Answer the following questions in two to three sentences based on the provided legal documents.
1. Who are the primary parties involved in this administrative hearing, and what is their relationship?
2. What specific action taken by the Board of Directors on November 20, 2017, triggered this dispute?
3. How did the Petitioner define the term “member” according to the Association’s governing documents?
4. What was the Respondent’s primary argument regarding the interpretation of Article XIII, Section 1 of the Bylaws?
5. According to ARIZ. REV. STAT. § 33-1804(B), what must a notice of a membership meeting include if a bylaw amendment is proposed?
6. Why did the Petitioner argue that the use of the word “proxy” in the Bylaws supported his interpretation that only general members could amend the Bylaws?
7. What is the legal significance of the Covenants, Conditions, and Restrictions (CC&Rs) in the context of the relationship between an HOA and a property owner?
8. What was the “preponderance of the evidence” standard used by the Administrative Law Judge to reach a decision?
9. What specific penalties and orders were issued against the Respondent in the final decision?
10. What reason did the Administrative Law Judge give for concluding that the Board’s interpretation of the Bylaws was incorrect?
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Part II: Answer Key
1. Who are the primary parties involved in this administrative hearing, and what is their relationship? The Petitioner is Jay A. Janicek, a property owner and member of the Sycamore Vista subdivision. The Respondent is the Sycamore Vista No. 8 Homeowners Association, the entity responsible for governing the residential development where the Petitioner’s property is located.
2. What specific action taken by the Board of Directors on November 20, 2017, triggered this dispute? The Board voted to approve a third amendment to the Association’s Bylaws during a regular meeting. This amendment replaced a requirement for a full annual audit by a public accountant with a choice of an audit, review, or compilation to be completed within 180 days of the fiscal year-end.
3. How did the Petitioner define the term “member” according to the Association’s governing documents? The Petitioner asserted that “Member” refers to those persons entitled to membership as defined in the Declaration, specifically every lot owner. He argued that this definition distinguishes general property owners from the “Directors” who serve on the Board.
4. What was the Respondent’s primary argument regarding the interpretation of Article XIII, Section 1 of the Bylaws? The Respondent argued that the term “members” in Article XIII referred specifically to members of the Board of Directors rather than the general membership. They contended that since the word was not capitalized, it authorized the Board to amend Bylaws at any meeting where a quorum of directors was present.
5. According to ARIZ. REV. STAT. § 33-1804(B), what must a notice of a membership meeting include if a bylaw amendment is proposed? The statute requires that notice be sent to every owner 10 to 50 days in advance of the meeting, stating the date, time, and place. Crucially, the notice must also state the purpose of the meeting, including the general nature of any proposed amendments to the declaration or bylaws.
6. Why did the Petitioner argue that the use of the word “proxy” in the Bylaws supported his interpretation that only general members could amend the Bylaws? The Petitioner noted that the Bylaws allow for voting by “proxy,” a mechanism defined in Article III as applying to votes of the general membership. He argued that because Board members are legally prohibited from voting by proxy, the inclusion of the term in the amendment section proved the section applied to general members.
7. What is the legal significance of the Covenants, Conditions, and Restrictions (CC&Rs) in the context of the relationship between an HOA and a property owner? The CC&Rs constitute an enforceable contract between the Association and each individual property owner. By purchasing a residential unit within the development, the buyer agrees to be bound by the terms, powers, and restrictions outlined in these recorded documents.
8. What was the “preponderance of the evidence” standard used by the Administrative Law Judge to reach a decision? This standard requires the Petitioner to prove that his contention is “more probably true than not.” It is defined as the greater weight of the evidence or evidence that possesses the most convincing force, rather than the absolute removal of all doubt.
9. What specific penalties and orders were issued against the Respondent in the final decision? The Administrative Law Judge invalidated the third amendment to the Bylaws and ordered the Respondent to pay a $250.00 civil penalty to the Planned Community Hearing Office Fund. Additionally, the Respondent was ordered to reimburse the Petitioner for his initial filing fee.
10. What reason did the Administrative Law Judge give for concluding that the Board’s interpretation of the Bylaws was incorrect? The Judge ruled that bylaws must be construed to avoid “absurdity” and that the “voices of few cannot speak for all” without express authority. The governing documents clearly differentiated between “members” (owners) and “directors,” and the Board lacked the power to act where authority was reserved for the membership.
——————————————————————————–
Part III: Essay Questions
Instructions: Use the provided source context to develop comprehensive responses to the following prompts.
1. The Distinction Between “Members” and “Directors”: Analyze how the specific terminology used in the Sycamore Vista No. 8 Bylaws (Articles II, III, VI, and XIII) influenced the Administrative Law Judge’s decision. How does the consistent use of these terms throughout the document prevent the Board from claiming the powers of the general membership?
2. Statutory Compliance and Transparency: Discuss the importance of ARIZ. REV. STAT. § 33-1804 (the Open Meeting Law) as it relates to this case. Use Governor Ducey’s message regarding H.B. 2411 to explain the legislative intent behind ensuring transparency and participation in HOA governance.
3. The Role of the Office of Administrative Hearings (OAH): Explain the procedural path of this dispute, from the initial petition to the Department of Real Estate to the final rehearing. What is the scope of the OAH’s authority in interpreting contracts between homeowners and associations?
4. Contractual Interpretation and the “Powell v. Washburn” Precedent: Discuss the significance of the Arizona Supreme Court’s holding in Powell v. Washburn regarding restrictive covenants. How does the requirement to give effect to the “intention of the parties” apply to the interpretation of HOA Bylaws?
5. Limits of Board Authority: Based on the Findings of Fact and Conclusions of Law, evaluate the boundaries of a Board of Directors’ power. Under what circumstances can a Board exercise “all powers, duties, and authority” of the Association, and what serves as the definitive limit to that power?
——————————————————————————–
Part IV: Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
A presiding officer who hears evidence and issues decisions in contested cases involving state agencies.
ARIZ. REV. STAT. § 33-1804
The Arizona statute governing open meetings, notice requirements, and transparency for planned community associations.
Bylaws
The internal rules and regulations that govern the administration and management of an association.
Covenants, Conditions, and Restrictions; the recorded legal documents that establish the rules for a planned community and create a contract between owners and the HOA.
Civil Penalty
A financial fine imposed by a government agency or tribunal as a punishment for a violation of statutes or regulations.
Declarant
The original developer or entity that established the residential subdivision and its governing documents.
Declaration
The primary governing document that defines membership and property rights within a homeowners’ association.
Member
Defined in the source context as a property owner within the Sycamore Vista subdivision who is entitled to membership in the Association.
The Office of Administrative Hearings; an independent state agency that conducts evidentiary hearings for contested cases.
Petitioner
The party who initiates a legal action or petition (in this case, Jay A. Janicek).
Preponderance of the Evidence
The legal standard of proof required in this case, meaning a contention is “more probably true than not.”
A written authorization allowing one person to act or vote on behalf of another, specifically used by Association members.
Quorum
The minimum number of members or directors required to be present at a meeting to legally transact business.
Respondent
The party against whom a legal action or petition is filed (in this case, Sycamore Vista No. 8 HOA).
Restrictive Covenants
Provisions in a deed or other recorded document that limit the use of property and are interpreted to give effect to the intention of the parties.
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“case”: {
“docket_no”: “19F-H1918001-REL-RHG”,
“case_title”: “Jay A. Janicek, Petitioner, vs. Sycamore Vista No. 8 Homeowners Association (FKA New Tucson Unit No. 8 Homeowners Association, Inc.), Respondent.”,
“decision_date”: “March 25, 2019”,
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{
“name”: “Caleb Rhodes”,
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{
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{ “case”: { “agency”: “ADRE”, “tribunal”: “OAH”, “docket_no”: “19F-H1918001-REL”, “case_title”: “Jay A. Janicek vs. Sycamore Vista No. 8 Homeowners Association”, “decision_date”: “2019-03-25”, “alj_name”: “Jenna Clark” }, “parties”: [ { “party_id”: “P1”, “role”: “petitioner”, “name”: “Jay A. Janicek”, “party_type”: “homeowner”, “email”: null, “phone”: null, “attorney_name”: “Jake Kubert”, “attorney_firm”: “Dessaules Law Group”, “attorney_email”: null, “attorney_phone”: null }, { “party_id”: “R1”, “role”: “respondent”, “name”: “Sycamore Vista No. 8 Homeowners Association”, “party_type”: “HOA”, “email”: null, “phone”: null, “attorney_name”: “Evan Thompson”, “attorney_firm”: “Thompson Krone, P.L.C.”, “attorney_email”: null, “attorney_phone”: null } ], “issues”: [ { “issue_id”: “ISS-001”, “type”: “statute_and_bylaws”, “citation”: “ARIZ. REV. STAT. § 33-1804(B); Association Bylaws Article III, Sections 3 & 4; Association Bylaws Article VIII, Section 1”, “caption”: “Whether Sycamore Vista No. 8 Homeowners Association (Respondent) violated Association Bylaws Article III, Sections 3 & 4 and Article VIII, Section 1 in an action taken by the board on November 20, 2017.”, “violation(s)”: “Violation of ARIZ. REV. STAT. § 33-1804(B) and Association Bylaws Article III by amending the Bylaws on November 20, 2017, without proper notice and a vote of the Association membership.”, “summary”: “The Board of Directors attempted a third amendment to the Bylaws on November 20, 2017, specifically changing the requirements for the Association’s financial review (audit, review, or compilation)12. The ALJ concluded that this action was invalid because it was taken in the absence of a quorum of Association members voting in favor of the amendment, violating both the Bylaws and statutory notice requirements34.”, “outcome”: “petitioner_win”, “filing_fee_paid”: 500.0, “filing_fee_refunded”: true, “civil_penalty_amount”: 250.0, “orders_summary”: “The petition was granted. The third amendment to the Association Bylaws taken on November 20, 2017, was invalidated. Respondent was ordered to pay the Petitioner the filing fee required by ARIZ. REV. STAT. § 32-2199.01 and pay a civil penalty of $250.00 to the Planned Community Hearing Office Fund56.”, “why_the_loss”: null, “cited”: [ “ARIZ. REV. STAT. § 33-1804(B)”, “Association Bylaws Article III” ] } ], “money_summary”: { “issues_count”: 1, “total_filing_fees_paid”: 500.0, “total_filing_fees_refunded”: 500.0, “total_civil_penalties”: 250.0 }, “outcomes”: { “petitioner_is_hoa”: false, “petitioner_win”: “total”, “summarize_judgement”: “The ALJ granted the petition, concluding that the HOA Board’s unilateral amendment of the Bylaws on November 20, 2017, was an invalid action taken without the required vote of the Association members and without statutory notice, violating ARIZ. REV. STAT. § 33-1804(B) and the Association’s governing documents47. The amendment was invalidated, and the Respondent was ordered to refund the Petitioner’s filing fee and pay a $250.00 civil penalty56.”, “why_the_loss”: null }, “analytics”: { “cited”: [ “ARIZ. REV. STAT. § 33-1804(B)”, “ARIZ. REV. STAT. § 32-2199.02(A)”, “ARIZ. REV. STAT. § 32-2199.05”, “Powell v. Washburn, 125 P.3d 373 (Ariz. 2006)”, “Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)” ], “tags”: [ “HOA Governance”, “Bylaws Amendment”, “Open Meeting Law”, “ARS 33-1804”, “Membership Vote”, “Filing Fee Refund” ] } }
{ “rehearing”:{ “is_rehearing”:true, “base_case_id”:”19F-H1918001-REL”, “original_decision_status”:”affirmed”, “original_decision_summary”:”The original ALJ decision, issued on September 25, 2018, granted the Petitioner’s request, finding that the Sycamore Vista No. 8 Homeowners Association Board violated ARIZ. REV. STAT. § 33-1804(B) and Association Bylaws by unilaterally amending the Bylaws on November 20, 2017, without first calling for a vote by the Association members1,2,3. The order invalidated the amendment, required the Respondent to refund the Petitioner’s filing fee, and imposed a civil penalty of $250.004,5.”, “rehearing_decision_summary”:”The Department granted Respondent’s request for a rehearing, which was held on March 5, 20196,7. The ALJ affirmed the original decision, concluding that the Board’s action on November 20, 2017, violated ARIZ. REV. STAT. § 33-1804(B) and Article III of the Association Bylaws because the action was taken in the absence of a quorum of Association members voting in favor of the proposed amendment8. The rehearing order re-granted the petition, invalidated the third amendment, and reaffirmed the orders for the filing fee refund and the $250.00 civil penalty8,9.”, “issues_challenged”:[ { “issue_id”: “ISS-001”, “summary”: “Whether the HOA Board violated Association Bylaws Article III, Sections 3 & 4 and Article VIII, Section 1, and ARIZ. REV. STAT. § 33-1804(B) in an action taken to amend the Bylaws on November 20, 201710.”, “outcome”: “affirmed_petitioner_win” } ] } }
The matter, Jay A. Janicek vs. Sycamore Vista No. 8 Homeowners Association (Case No. 19F-H1918001-REL-RHG), involves a dispute over the validity of a Bylaw amendment passed by the homeowners’ association (HOA) Board of Directors12. The inclusion of ‘RHG’ in the case number confirms that the final decision resulted from a rehearing requested by the Respondent Association23.
Procedural History: The initial evidentiary hearing was held on September 5, 201824. The Administrative Law Judge (ALJ) issued a decision on September 24, 2018, granting the Petitioner’s request35. The Respondent requested and was granted a rehearing by the Department of Real Estate on November 7, 201836. The rehearing was held on March 5, 2019, where no new evidence was introduced, and the parties presented legal briefs and closing arguments2….
Key Facts and Core Issue: The dispute centered on the validity of the Board’s third amendment to the Association Bylaws, approved on November 20, 2017910. This amendment changed the financial oversight requirement from an annual audit by a public accountant to an annual audit, review, or compilation of financial records1112.
The main legal issue was whether the Board had the authority to unilaterally amend the Bylaws without a vote of the general membership and whether the Board violated ARIZ. REV. STAT. § 33-1804(B), concerning notice requirements for member meetings3…. The determination hinged on the interpretation of Bylaws Article XIII, Section 1, which permits amendments “by a vote of a majority of a quorum of members present in person or by proxy”1617.
Key Arguments: Petitioner Jay Janicek argued that the term “members” in Article XIII referred exclusively to the Association owners, as supported by the Bylaws’ definition of “Member” and the use of the term “proxy” (which applies to owners, not directors)14…. Petitioner asserted that since the Board acted without calling for a member vote and without statutory notice of the proposed amendment, the action was invalid and violated A.R.S. § 33-1804(B)14….
The Association argued that, based on reading the Bylaws in their entirety, the term “members” in Article XIII referred to the Board of Directors, particularly since the amendment was to occur at a meeting of the Board of Directors24….
Rehearing Decision and Outcome: In both the original decision and the rehearing decision, the ALJ reached the same conclusion, finding that the Petitioner sustained the burden of proof2728. The ALJ determined that the Association’s governing documents clearly differentiate between “members” (the body of owners) and “directors” (the elected Board)28…. The Board lacked the power to amend the Bylaws when that authority was delegated to the membership2930.
The ALJ concluded that the Board’s action on November 20, 2017, violated ARIZ. REV. STAT. § 33-1804(B) and Article III of the Association Bylaws because the amendment was adopted in the absence of a quorum of Association members voting in favor3132.
The final outcome of the rehearing was that the Petitioner’s petition was granted32. The Board’s third amendment to the Bylaws was invalidated532. Additionally, the Respondent Association was ordered to pay the Petitioner’s filing fee and a civil penalty of $250.00 for the violation533.
Case Participants
Petitioner Side
Jay A. Janicek(petitioner) Appeared on own behalf at initial hearing; Observed at rehearing.
Jake Kubert(petitioner attorney) Dessaules Law Group
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
19F-H1918001-REL
Agency
ADRE
Tribunal
OAH
Decision Date
2019-03-25
Administrative Law Judge
Jenna Clark
Outcome
total
Filing Fees Refunded
$500.00
Civil Penalties
$250.00
Parties & Counsel
Petitioner
Jay A. Janicek
Counsel
Jake Kubert
Respondent
Sycamore Vista No. 8 Homeowners Association
Counsel
Evan Thompson
Alleged Violations
ARIZ. REV. STAT. § 33-1804(B); Association Bylaws Article III, Sections 3 & 4; Association Bylaws Article VIII, Section 1
Outcome Summary
The ALJ granted the petition, concluding that the HOA Board’s unilateral amendment of the Bylaws on November 20, 2017, was an invalid action taken without the required vote of the Association members and without statutory notice, violating ARIZ. REV. STAT. § 33-1804(B) and the Association’s governing documents. The amendment was invalidated, and the Respondent was ordered to refund the Petitioner's filing fee and pay a $250.00 civil penalty.
Key Issues & Findings
Whether Sycamore Vista No. 8 Homeowners Association (Respondent) violated Association Bylaws Article III, Sections 3 & 4 and Article VIII, Section 1 in an action taken by the board on November 20, 2017.
The Board of Directors attempted a third amendment to the Bylaws on November 20, 2017, specifically changing the requirements for the Association's financial review (audit, review, or compilation). The ALJ concluded that this action was invalid because it was taken in the absence of a quorum of Association members voting in favor of the amendment, violating both the Bylaws and statutory notice requirements.
Orders: The petition was granted. The third amendment to the Association Bylaws taken on November 20, 2017, was invalidated. Respondent was ordered to pay the Petitioner the filing fee required by ARIZ. REV. STAT. § 32-2199.01 and pay a civil penalty of $250.00 to the Planned Community Hearing Office Fund.
Briefing Document: Janicek v. Sycamore Vista No. 8 Homeowners Association
Executive Summary
This document synthesizes the findings and legal conclusions from the administrative hearings regarding a dispute between Jay A. Janicek (“Petitioner”) and the Sycamore Vista No. 8 Homeowners Association (“Respondent” or “the Association”). The central issue was whether the Association’s Board of Directors acted outside its authority by unilaterally amending the Association’s Bylaws during a Board meeting on November 20, 2017, without a vote from the general membership.
The Administrative Law Judge (ALJ) determined that the Board’s action violated both the Association’s governing documents and Arizona Revised Statutes (A.R.S. § 33-1804). The ruling emphasized that the term “members” in the Bylaws refers specifically to the body of property owners, not the Board of Directors. Consequently, the third amendment to the Bylaws was invalidated, and the Association was ordered to pay a civil penalty and refund the Petitioner’s filing fees. A rehearing in March 2019 reconfirmed these findings, underscoring the necessity of transparency and membership participation in homeowners’ association governance.
The Department of Real Estate referred the matter to the Office of Administrative Hearings (OAH) following a petition filed by Mr. Janicek on July 25, 2018. The Respondent initially declined to present witnesses or exhibits, choosing to rely on a dispute over textual interpretation. Following an initial ruling in favor of the Petitioner, the Respondent requested a rehearing, which was granted but ultimately resulted in the same conclusion.
The Core Dispute: Bylaw Amendment Authority
The conflict arose from a Board meeting held on November 20, 2017. During this meeting, the Board voted to approve a third amendment to the Association’s Bylaws.
The Specific Amendment
The Board modified Article VIII, Section 6(d). The original text required the Board to:
• “…cause an annual audit of the Association books to be made by a public accountant at the completion of each fiscal year.”
The Board replaced this with language allowing for:
• “…an annual audit, review, or compilation of the Associations financial records to be made by a public accountant within 180 days after the end of the HOA’s fiscal year.”
Conflicting Interpretations of “Members”
The primary legal dispute centered on the interpretation of Bylaws Article XIII, Section 1, which states:
“These Bylaws may be amended at a regular or special meeting of the Board of Directors of the Association by a vote of a majority of a quorum of members present in person or by proxy.” (Emphasis added).
• Petitioner’s Position: “Members” refers to the general membership of the Association (property owners), as defined in Article II, Section 7 and the Declaration. Petitioner argued that the use of “proxy” in this section further proves it refers to members, as Board Directors are not permitted to vote by proxy.
• Respondent’s Position: “Members” refers to the members of the Board of Directors. The Association argued that because the word was not capitalized in Article XIII, it authorized the Board to amend Bylaws at their own meetings, provided a quorum of Directors was present.
Legal Analysis and Evidence
Governing Statutes and Case Law
The ALJ’s decision was informed by Arizona law and established legal principles:
• A.R.S. § 33-1804 (Open Meeting Law): This statute requires that notice of any meeting where a bylaw amendment is proposed must be sent to all members 10 to 50 days in advance. It also mandates that meetings of the board and association be open to all members.
• A.R.S. § 33-1804(F): The legislative intent of the Open Meeting Law is to promote transparency. Petitioner cited a message from Governor Ducey stating that such laws “provide residents the opportunity to resolve issues as a community rather than seek government intervention.”
• Powell v. Washburn (2006): The Arizona Supreme Court held that restrictive covenants (including Bylaws) must be interpreted to give effect to the intention of the parties based on the document in its entirety.
Findings of Fact regarding Authority
The ALJ identified several factors that invalidated the Board’s unilateral action:
1. Differentiated Terminology: The Bylaws consistently use “Directors” when referring to the Board and “Members” when referring to the homeowners. Article VI, Section 3 explicitly uses “Directors” to define a quorum for the Board, while Article XIII uses “members.”
2. Absence of Express Power: Article VII, which outlines the “Powers and Duties of the Board of Directors,” does not expressly grant the Board the authority to amend Bylaws. This power is reserved for the membership.
3. Lack of Notice: No Association members were present at the November 20, 2017, meeting, and no notice was provided to the general membership regarding a proposed amendment to the Bylaws as required by A.R.S. § 33-1804(B).
Conclusions of Law
The ALJ concluded that the Petitioner sustained the burden of proof by a preponderance of the evidence. The final legal determinations were:
• Avoidance of Absurdity: Bylaws must be construed to avoid an absurdity. The ALJ stated, “The voices of few cannot speak for all, unless all have bestowed those few with the power and authority to speak on their behalf.”
• Violation of Statute: The Board’s action violated A.R.S. § 33-1804(B) due to the lack of transparency and failure to provide notice of a bylaw amendment.
• Violation of Governing Documents: The Board acted outside the authority granted to it by the Bylaws, specifically Article III and Article XIII.
Final Order and Penalties
The Administrative Law Judge issued the following orders:
1. Invalidation: The third amendment to the Association Bylaws, enacted on November 20, 2017, is null and void.
2. Restitution of Fees: The Respondent must pay the Petitioner the cost of his filing fee.
3. Civil Penalty: The Respondent was ordered to pay a sum of $250.00 to the Planned Community Hearing Office Fund as a penalty for the violations.
4. Binding Nature: Following the rehearing, the order became binding, with the only further recourse being judicial review in the Superior Court within 35 days.
Study Guide – 19F-H1918001-REL-RHG
Study Guide: Janicek v. Sycamore Vista No. 8 Homeowners Association
This study guide provides a comprehensive review of the legal proceedings between Jay A. Janicek and the Sycamore Vista No. 8 Homeowners Association. It examines the interpretation of governing documents, the application of Arizona Revised Statutes regarding homeowners’ associations, and the limits of a Board of Directors’ authority to amend bylaws.
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Part I: Short-Answer Quiz
Instructions: Answer the following questions in two to three sentences based on the provided legal documents.
1. Who are the primary parties involved in this administrative hearing, and what is their relationship?
2. What specific action taken by the Board of Directors on November 20, 2017, triggered this dispute?
3. How did the Petitioner define the term “member” according to the Association’s governing documents?
4. What was the Respondent’s primary argument regarding the interpretation of Article XIII, Section 1 of the Bylaws?
5. According to ARIZ. REV. STAT. § 33-1804(B), what must a notice of a membership meeting include if a bylaw amendment is proposed?
6. Why did the Petitioner argue that the use of the word “proxy” in the Bylaws supported his interpretation that only general members could amend the Bylaws?
7. What is the legal significance of the Covenants, Conditions, and Restrictions (CC&Rs) in the context of the relationship between an HOA and a property owner?
8. What was the “preponderance of the evidence” standard used by the Administrative Law Judge to reach a decision?
9. What specific penalties and orders were issued against the Respondent in the final decision?
10. What reason did the Administrative Law Judge give for concluding that the Board’s interpretation of the Bylaws was incorrect?
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Part II: Answer Key
1. Who are the primary parties involved in this administrative hearing, and what is their relationship? The Petitioner is Jay A. Janicek, a property owner and member of the Sycamore Vista subdivision. The Respondent is the Sycamore Vista No. 8 Homeowners Association, the entity responsible for governing the residential development where the Petitioner’s property is located.
2. What specific action taken by the Board of Directors on November 20, 2017, triggered this dispute? The Board voted to approve a third amendment to the Association’s Bylaws during a regular meeting. This amendment replaced a requirement for a full annual audit by a public accountant with a choice of an audit, review, or compilation to be completed within 180 days of the fiscal year-end.
3. How did the Petitioner define the term “member” according to the Association’s governing documents? The Petitioner asserted that “Member” refers to those persons entitled to membership as defined in the Declaration, specifically every lot owner. He argued that this definition distinguishes general property owners from the “Directors” who serve on the Board.
4. What was the Respondent’s primary argument regarding the interpretation of Article XIII, Section 1 of the Bylaws? The Respondent argued that the term “members” in Article XIII referred specifically to members of the Board of Directors rather than the general membership. They contended that since the word was not capitalized, it authorized the Board to amend Bylaws at any meeting where a quorum of directors was present.
5. According to ARIZ. REV. STAT. § 33-1804(B), what must a notice of a membership meeting include if a bylaw amendment is proposed? The statute requires that notice be sent to every owner 10 to 50 days in advance of the meeting, stating the date, time, and place. Crucially, the notice must also state the purpose of the meeting, including the general nature of any proposed amendments to the declaration or bylaws.
6. Why did the Petitioner argue that the use of the word “proxy” in the Bylaws supported his interpretation that only general members could amend the Bylaws? The Petitioner noted that the Bylaws allow for voting by “proxy,” a mechanism defined in Article III as applying to votes of the general membership. He argued that because Board members are legally prohibited from voting by proxy, the inclusion of the term in the amendment section proved the section applied to general members.
7. What is the legal significance of the Covenants, Conditions, and Restrictions (CC&Rs) in the context of the relationship between an HOA and a property owner? The CC&Rs constitute an enforceable contract between the Association and each individual property owner. By purchasing a residential unit within the development, the buyer agrees to be bound by the terms, powers, and restrictions outlined in these recorded documents.
8. What was the “preponderance of the evidence” standard used by the Administrative Law Judge to reach a decision? This standard requires the Petitioner to prove that his contention is “more probably true than not.” It is defined as the greater weight of the evidence or evidence that possesses the most convincing force, rather than the absolute removal of all doubt.
9. What specific penalties and orders were issued against the Respondent in the final decision? The Administrative Law Judge invalidated the third amendment to the Bylaws and ordered the Respondent to pay a $250.00 civil penalty to the Planned Community Hearing Office Fund. Additionally, the Respondent was ordered to reimburse the Petitioner for his initial filing fee.
10. What reason did the Administrative Law Judge give for concluding that the Board’s interpretation of the Bylaws was incorrect? The Judge ruled that bylaws must be construed to avoid “absurdity” and that the “voices of few cannot speak for all” without express authority. The governing documents clearly differentiated between “members” (owners) and “directors,” and the Board lacked the power to act where authority was reserved for the membership.
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Part III: Essay Questions
Instructions: Use the provided source context to develop comprehensive responses to the following prompts.
1. The Distinction Between “Members” and “Directors”: Analyze how the specific terminology used in the Sycamore Vista No. 8 Bylaws (Articles II, III, VI, and XIII) influenced the Administrative Law Judge’s decision. How does the consistent use of these terms throughout the document prevent the Board from claiming the powers of the general membership?
2. Statutory Compliance and Transparency: Discuss the importance of ARIZ. REV. STAT. § 33-1804 (the Open Meeting Law) as it relates to this case. Use Governor Ducey’s message regarding H.B. 2411 to explain the legislative intent behind ensuring transparency and participation in HOA governance.
3. The Role of the Office of Administrative Hearings (OAH): Explain the procedural path of this dispute, from the initial petition to the Department of Real Estate to the final rehearing. What is the scope of the OAH’s authority in interpreting contracts between homeowners and associations?
4. Contractual Interpretation and the “Powell v. Washburn” Precedent: Discuss the significance of the Arizona Supreme Court’s holding in Powell v. Washburn regarding restrictive covenants. How does the requirement to give effect to the “intention of the parties” apply to the interpretation of HOA Bylaws?
5. Limits of Board Authority: Based on the Findings of Fact and Conclusions of Law, evaluate the boundaries of a Board of Directors’ power. Under what circumstances can a Board exercise “all powers, duties, and authority” of the Association, and what serves as the definitive limit to that power?
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Part IV: Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
A presiding officer who hears evidence and issues decisions in contested cases involving state agencies.
ARIZ. REV. STAT. § 33-1804
The Arizona statute governing open meetings, notice requirements, and transparency for planned community associations.
Bylaws
The internal rules and regulations that govern the administration and management of an association.
Covenants, Conditions, and Restrictions; the recorded legal documents that establish the rules for a planned community and create a contract between owners and the HOA.
Civil Penalty
A financial fine imposed by a government agency or tribunal as a punishment for a violation of statutes or regulations.
Declarant
The original developer or entity that established the residential subdivision and its governing documents.
Declaration
The primary governing document that defines membership and property rights within a homeowners’ association.
Member
Defined in the source context as a property owner within the Sycamore Vista subdivision who is entitled to membership in the Association.
The Office of Administrative Hearings; an independent state agency that conducts evidentiary hearings for contested cases.
Petitioner
The party who initiates a legal action or petition (in this case, Jay A. Janicek).
Preponderance of the Evidence
The legal standard of proof required in this case, meaning a contention is “more probably true than not.”
A written authorization allowing one person to act or vote on behalf of another, specifically used by Association members.
Quorum
The minimum number of members or directors required to be present at a meeting to legally transact business.
Respondent
The party against whom a legal action or petition is filed (in this case, Sycamore Vista No. 8 HOA).
Restrictive Covenants
Provisions in a deed or other recorded document that limit the use of property and are interpreted to give effect to the intention of the parties.
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“case”: {
“docket_no”: “19F-H1918001-REL-RHG”,
“case_title”: “Jay A. Janicek, Petitioner, vs. Sycamore Vista No. 8 Homeowners Association (FKA New Tucson Unit No. 8 Homeowners Association, Inc.), Respondent.”,
“decision_date”: “March 25, 2019”,
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},
“individuals”: [
{
“name”: “Jay A. Janicek”,
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{
“name”: “Jenna Clark”,
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{
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{
“name”: “Dennis Legere”,
“role”: “observer”,
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“notes”: “Observer present at initial hearing.”
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{
“name”: “Becky Nutt”,
“role”: “observer”,
“side”: “unknown”,
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“notes”: “Observer present at initial hearing.”
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{
“name”: “Caleb Rhodes”,
“role”: “observer”,
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{
“name”: “Jake Kubert”,
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{
“name”: “Judy Lowe”,
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“notes”: null
},
{
“name”: “Andrew F. Vizcarra”,
“role”: “property manager”,
“side”: “respondent”,
“affiliation”: “Tucson Realty & Trust Co. Management”,
“notes”: “Listed as representative for service of process for Respondent HOA.”
},
{
“name”: “Maxwell T. Riddiough”,
“role”: “HOA attorney”,
“side”: “respondent”,
“affiliation”: “Thompson Krone, P.L.C.”,
“notes”: null
}
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}
{ “case”: { “agency”: “ADRE”, “tribunal”: “OAH”, “docket_no”: “19F-H1918001-REL”, “case_title”: “Jay A. Janicek vs. Sycamore Vista No. 8 Homeowners Association”, “decision_date”: “2019-03-25”, “alj_name”: “Jenna Clark” }, “parties”: [ { “party_id”: “P1”, “role”: “petitioner”, “name”: “Jay A. Janicek”, “party_type”: “homeowner”, “email”: null, “phone”: null, “attorney_name”: “Jake Kubert”, “attorney_firm”: “Dessaules Law Group”, “attorney_email”: null, “attorney_phone”: null }, { “party_id”: “R1”, “role”: “respondent”, “name”: “Sycamore Vista No. 8 Homeowners Association”, “party_type”: “HOA”, “email”: null, “phone”: null, “attorney_name”: “Evan Thompson”, “attorney_firm”: “Thompson Krone, P.L.C.”, “attorney_email”: null, “attorney_phone”: null } ], “issues”: [ { “issue_id”: “ISS-001”, “type”: “statute_and_bylaws”, “citation”: “ARIZ. REV. STAT. § 33-1804(B); Association Bylaws Article III, Sections 3 & 4; Association Bylaws Article VIII, Section 1”, “caption”: “Whether Sycamore Vista No. 8 Homeowners Association (Respondent) violated Association Bylaws Article III, Sections 3 & 4 and Article VIII, Section 1 in an action taken by the board on November 20, 2017.”, “violation(s)”: “Violation of ARIZ. REV. STAT. § 33-1804(B) and Association Bylaws Article III by amending the Bylaws on November 20, 2017, without proper notice and a vote of the Association membership.”, “summary”: “The Board of Directors attempted a third amendment to the Bylaws on November 20, 2017, specifically changing the requirements for the Association’s financial review (audit, review, or compilation)12. The ALJ concluded that this action was invalid because it was taken in the absence of a quorum of Association members voting in favor of the amendment, violating both the Bylaws and statutory notice requirements34.”, “outcome”: “petitioner_win”, “filing_fee_paid”: 500.0, “filing_fee_refunded”: true, “civil_penalty_amount”: 250.0, “orders_summary”: “The petition was granted. The third amendment to the Association Bylaws taken on November 20, 2017, was invalidated. Respondent was ordered to pay the Petitioner the filing fee required by ARIZ. REV. STAT. § 32-2199.01 and pay a civil penalty of $250.00 to the Planned Community Hearing Office Fund56.”, “why_the_loss”: null, “cited”: [ “ARIZ. REV. STAT. § 33-1804(B)”, “Association Bylaws Article III” ] } ], “money_summary”: { “issues_count”: 1, “total_filing_fees_paid”: 500.0, “total_filing_fees_refunded”: 500.0, “total_civil_penalties”: 250.0 }, “outcomes”: { “petitioner_is_hoa”: false, “petitioner_win”: “total”, “summarize_judgement”: “The ALJ granted the petition, concluding that the HOA Board’s unilateral amendment of the Bylaws on November 20, 2017, was an invalid action taken without the required vote of the Association members and without statutory notice, violating ARIZ. REV. STAT. § 33-1804(B) and the Association’s governing documents47. The amendment was invalidated, and the Respondent was ordered to refund the Petitioner’s filing fee and pay a $250.00 civil penalty56.”, “why_the_loss”: null }, “analytics”: { “cited”: [ “ARIZ. REV. STAT. § 33-1804(B)”, “ARIZ. REV. STAT. § 32-2199.02(A)”, “ARIZ. REV. STAT. § 32-2199.05”, “Powell v. Washburn, 125 P.3d 373 (Ariz. 2006)”, “Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)” ], “tags”: [ “HOA Governance”, “Bylaws Amendment”, “Open Meeting Law”, “ARS 33-1804”, “Membership Vote”, “Filing Fee Refund” ] } }
{ “rehearing”:{ “is_rehearing”:true, “base_case_id”:”19F-H1918001-REL”, “original_decision_status”:”affirmed”, “original_decision_summary”:”The original ALJ decision, issued on September 25, 2018, granted the Petitioner’s request, finding that the Sycamore Vista No. 8 Homeowners Association Board violated ARIZ. REV. STAT. § 33-1804(B) and Association Bylaws by unilaterally amending the Bylaws on November 20, 2017, without first calling for a vote by the Association members1,2,3. The order invalidated the amendment, required the Respondent to refund the Petitioner’s filing fee, and imposed a civil penalty of $250.004,5.”, “rehearing_decision_summary”:”The Department granted Respondent’s request for a rehearing, which was held on March 5, 20196,7. The ALJ affirmed the original decision, concluding that the Board’s action on November 20, 2017, violated ARIZ. REV. STAT. § 33-1804(B) and Article III of the Association Bylaws because the action was taken in the absence of a quorum of Association members voting in favor of the proposed amendment8. The rehearing order re-granted the petition, invalidated the third amendment, and reaffirmed the orders for the filing fee refund and the $250.00 civil penalty8,9.”, “issues_challenged”:[ { “issue_id”: “ISS-001”, “summary”: “Whether the HOA Board violated Association Bylaws Article III, Sections 3 & 4 and Article VIII, Section 1, and ARIZ. REV. STAT. § 33-1804(B) in an action taken to amend the Bylaws on November 20, 201710.”, “outcome”: “affirmed_petitioner_win” } ] } }
The matter, Jay A. Janicek vs. Sycamore Vista No. 8 Homeowners Association (Case No. 19F-H1918001-REL-RHG), involves a dispute over the validity of a Bylaw amendment passed by the homeowners’ association (HOA) Board of Directors12. The inclusion of ‘RHG’ in the case number confirms that the final decision resulted from a rehearing requested by the Respondent Association23.
Procedural History: The initial evidentiary hearing was held on September 5, 201824. The Administrative Law Judge (ALJ) issued a decision on September 24, 2018, granting the Petitioner’s request35. The Respondent requested and was granted a rehearing by the Department of Real Estate on November 7, 201836. The rehearing was held on March 5, 2019, where no new evidence was introduced, and the parties presented legal briefs and closing arguments2….
Key Facts and Core Issue: The dispute centered on the validity of the Board’s third amendment to the Association Bylaws, approved on November 20, 2017910. This amendment changed the financial oversight requirement from an annual audit by a public accountant to an annual audit, review, or compilation of financial records1112.
The main legal issue was whether the Board had the authority to unilaterally amend the Bylaws without a vote of the general membership and whether the Board violated ARIZ. REV. STAT. § 33-1804(B), concerning notice requirements for member meetings3…. The determination hinged on the interpretation of Bylaws Article XIII, Section 1, which permits amendments “by a vote of a majority of a quorum of members present in person or by proxy”1617.
Key Arguments: Petitioner Jay Janicek argued that the term “members” in Article XIII referred exclusively to the Association owners, as supported by the Bylaws’ definition of “Member” and the use of the term “proxy” (which applies to owners, not directors)14…. Petitioner asserted that since the Board acted without calling for a member vote and without statutory notice of the proposed amendment, the action was invalid and violated A.R.S. § 33-1804(B)14….
The Association argued that, based on reading the Bylaws in their entirety, the term “members” in Article XIII referred to the Board of Directors, particularly since the amendment was to occur at a meeting of the Board of Directors24….
Rehearing Decision and Outcome: In both the original decision and the rehearing decision, the ALJ reached the same conclusion, finding that the Petitioner sustained the burden of proof2728. The ALJ determined that the Association’s governing documents clearly differentiate between “members” (the body of owners) and “directors” (the elected Board)28…. The Board lacked the power to amend the Bylaws when that authority was delegated to the membership2930.
The ALJ concluded that the Board’s action on November 20, 2017, violated ARIZ. REV. STAT. § 33-1804(B) and Article III of the Association Bylaws because the amendment was adopted in the absence of a quorum of Association members voting in favor3132.
The final outcome of the rehearing was that the Petitioner’s petition was granted32. The Board’s third amendment to the Bylaws was invalidated532. Additionally, the Respondent Association was ordered to pay the Petitioner’s filing fee and a civil penalty of $250.00 for the violation533.
Case Participants
Petitioner Side
Jay A. Janicek(petitioner) Appeared on own behalf at initial hearing; Observed at rehearing.
Jake Kubert(petitioner attorney) Dessaules Law Group
The Ridge at Diamante del Lago Homeowners Association, Inc.
Counsel
—
Alleged Violations
A.R.S. § 33-1805(A)
Outcome Summary
Petitioner established that Respondent violated A.R.S. § 33-1805(A) by failing to provide access to requested association records within the statutory ten-day period. The petition was granted and Respondent was ordered to reimburse the $500.00 filing fee.
Key Issues & Findings
Failure to provide timely access to association financial records
Petitioner filed a single-issue petition alleging Respondent violated CC&Rs § 4.8 and A.R.S. § 33-1805 by refusing to make available association records or to produce a receipt identifying a contractor and the amount paid for a cinderblock wall built by the community’s clubhouse.
Orders: The petition was granted because Respondent violated A.R.S. § 33-1805(A) by failing to provide access to records within ten days of Petitioner’s September 12, 2018 request. Respondent was ordered to reimburse the $500.00 filing fee.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1805(A)
CC&R § 4.8
Analytics Highlights
Topics: HOA Records, Record Inspection, Timely Disclosure, Statutory Violation, Filing Fee Reimbursement
Additional Citations:
A.R.S. § 33-1805(A)
CC&R § 4.8
A.R.S. § 32-2199(B)
A.R.S. § 33-1803
A.R.S. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
Video Overview
Audio Overview
Decision Documents
19F-H1918034-REL Decision – 692859.pdf
Uploaded 2025-10-09T03:33:53 (151.9 KB)
Briefing Doc – 19F-H1918034-REL
Briefing Document: Curtin v. The Ridge at Diamante del Lago HOA
Executive Summary
This briefing document analyzes the Administrative Law Judge (ALJ) Decision in case number 19F-H1918034-REL, a dispute between homeowner Linda Curtin and The Ridge at Diamante del Lago Homeowners Association, Inc. (HOA). The central conflict arose from the HOA’s failure to provide financial records related to a small construction project within the timeframe mandated by Arizona law.
The petitioner, Ms. Curtin, alleged that the HOA violated its own Covenants, Conditions, and Restrictions (CC&Rs) and Arizona Revised Statutes (A.R.S.) § 33-1805 by not producing an invoice for a $1,000 cinderblock wall project at the community clubhouse. While the HOA did eventually provide the requested records, the ALJ found that it failed to do so within the legally required ten-day period following Ms. Curtin’s formal written request on September 12, 2018.
Consequently, the ALJ granted the petition in favor of Ms. Curtin, ruling that the HOA was in violation of A.R.S. § 33-1805(A). The HOA was ordered to reimburse Ms. Curtin for her $500 petition filing fee. However, the ALJ dismissed all of the petitioner’s ancillary complaints, including suspicions of forgery, concerns about the contractor’s licensing status, and other issues of HOA governance, deeming them either unsubstantiated or outside the narrow scope of the single-issue petition. The ruling underscores the strict procedural compliance required of HOAs regarding member record requests while limiting the scope of such legal challenges to the specific violations alleged.
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I. Case Overview
• Case Number: 19F-H1918034-REL
• Forum: Arizona Office of Administrative Hearings
• Petitioner: Linda Curtin (“Complainant”), a homeowner and HOA member.
• Respondent: The Ridge at Diamante del Lago Homeowners Association, Inc. (“HOA”), represented by Community Manager Tracy Schofield.
• Administrative Law Judge: Diane Mihalsky
• Core Allegation: The HOA violated its governing documents and state law by failing to make association records available to a member upon request. Specifically, the petitioner sought a receipt and contractor details for a cinderblock wall built at the community clubhouse.
II. Governing Rules and Statutes
The case centered on the interpretation and enforcement of the HOA’s internal rules and a specific Arizona statute governing planned communities.
Rule/Statute
Key Provision
CC&R § 4.8
Requires the HOA Board to keep “true and correct records of account in accordance with generally accepted accounting principles” and to make such books and records available for inspection by all owners upon request during normal business hours.
A.R.S. § 33-1805(A)
Mandates that all financial and other association records be made “reasonably available for examination” by any member. The statute explicitly requires the association to fulfill a request for examination within ten business days. A similar ten-day deadline applies for providing copies of records.
The respondent did not claim any legal privilege under A.R.S. § 33-1805(B) that would permit it to withhold the requested documents.
III. Chronology of the Dispute
The conflict unfolded over several months, beginning with an informal inquiry and escalating to a formal legal petition.
• August 1, 2018: Petitioner Linda Curtin first emails Community Manager Tracy Schofield for a contractor recommendation.
• August 2 – September 11, 2018: In a subsequent email exchange, Ms. Curtin asks who built the garbage can walls at the clubhouse. Ms. Schofield provides the name “Roberto” but is unable to provide a contact number, stating that the Board’s Treasurer, Jim Mackiewicz, had arranged the work. The petitioner later characterized this exchange as “evasive.”
• September 12, 2018: Ms. Curtin sends a formal written letter requesting “a copy of the invoice submitted to The Ridge HOA” for the wall construction. This action officially started the ten-day clock under A.R.S. § 33-1805(A).
• September 24, 2018: Ms. Schofield responds, stating that she does not have the invoices at her office as records are retained “in the community.” She provides a printout of payments made to contractor Gualberto Castro, which includes a $1,000 check dated November 1, 2017, for “Block work – clubhouse.”
• November 5, 2018: Ms. Curtin requests that the invoice be brought to that day’s HOA board meeting. The document is not provided.
• November 28, 2018: After making an additional 15 phone calls regarding related meeting minutes without a satisfactory response, Ms. Curtin files a single-issue petition with the Arizona Department of Real Estate.
• December 10, 2018: The HOA files its answer, claiming the issue has been resolved. On the same day, Ms. Schofield emails the contractor’s invoice to Ms. Curtin. The invoice, from ValleyWide Custom Painting Inc. and dated November 2, 2017, details the $1,000 job.
• December 11, 2018: Ms. Curtin requests additional documents, including a copy of the cashed check and the Architectural Control Committee (ACC) application for the project. Ms. Schofield is reported to have stated that ACC approval was not applicable to work on common areas.
• Post-December 11, 2018: Ms. Schofield eventually provides a copy of the cancelled check for $1,000 made payable to Mr. Castro.
• February 20, 2019: An evidentiary hearing is held before the ALJ.
IV. Analysis of Evidence and Arguments
A. Petitioner’s Position
Ms. Curtin’s case was built on the initial failure to produce records and expanded to include broader suspicions about the HOA’s conduct.
• Primary Claim: The HOA violated state law by failing to fulfill her September 12, 2018 request for records within the ten-day statutory period.
• Suspicions about Documentation: The petitioner expressed dissatisfaction with the documents eventually provided. She opined that the November 2, 2017 receipt “appeared to have two different kinds of handwriting and might be a forgery.” She also pointed to the fact that the check for payment was dated one day before the invoice date.
• Ancillary Governance Concerns: Ms. Curtin raised several issues beyond the scope of her petition, including:
◦ The contractor, Mr. Castro, was not licensed as required by the Registrar of Contractors.
◦ The Board meeting minutes did not show authorization for the $1,000 expenditure.
◦ The HOA’s ACC approval process was not followed for the wall.
◦ A separate, unrelated $125,000 pool remodel project was approved improperly (this was refuted by Ms. Schofield’s testimony that it required a membership vote).
B. Respondent’s Position
The HOA, through Ms. Schofield, acknowledged the delay but argued it had ultimately complied and faced logistical constraints.
• Eventual Compliance: The HOA’s primary defense was that it eventually provided all the documents in its possession related to the expenditure, thereby resolving the complaint.
• Logistical Challenges: Ms. Schofield testified that she is an off-site community manager for numerous associations and does not keep records in her office. She stated that the HOA’s records are stored “in the community” at a separate depository.
• Commitment to Future Compliance: Ms. Schofield testified that for any future requests, she would schedule a time for the petitioner to review records at the depository within the ten-day window.
• Communication: Ms. Schofield maintained that she “communicated with Petitioner on every issue” and provided what information she had available.
V. Administrative Law Judge’s Decision and Rationale
The ALJ’s decision was narrowly focused on the statutory violation, setting aside the petitioner’s other grievances.
A. Conclusions of Law
1. Violation Confirmed: The judge concluded that the petitioner successfully established by a preponderance of the evidence that the HOA violated A.R.S. § 33-1805(A). The HOA “acknowledged that it did not provide the documents or provide access to Petitioner to view the documents within ten days of Petitioner’s September 12, 2018 request.”
2. Scope of Relief Limited: The ALJ determined that the statute only requires that records be kept and made available in a timely manner. The law “has not authorized the Department… that HOAs produce records that satisfy all of a members’ stated concerns.”
3. Ancillary Claims Dismissed: The judge explicitly rejected the petitioner’s broader concerns, stating: “Petitioner’s concern with ‘transparency’ and dissatisfaction and suspicions about the records that were eventually provided do not entitle her to any additional relief in this forum.” The forgery claim was dismissed for lack of evidence, as Ms. Curtin did not present the opinion of a handwriting expert. The issues related to contractor licensing and internal HOA procedures were deemed outside the jurisdiction of the hearing for an HOA petition.
B. Recommended Order
Based on the findings, the ALJ issued a two-part order:
1. Petition Granted: The petition was granted on the grounds that Ms. Curtin had proven the HOA violated A.R.S. § 33-1805(A).
2. Reimbursement of Filing Fee: The HOA was ordered to reimburse the petitioner the $500.00 she paid to file the single-issue petition.
The order, issued on March 5, 2019, was declared binding on both parties unless a request for rehearing was filed within 30 days.
Study Guide – 19F-H1918034-REL
Study Guide: Curtin v. The Ridge at Diamante del Lago Homeowners Association, Inc.
This guide provides a detailed review of the Administrative Law Judge Decision in case number 19F-H1918034-REL, involving Petitioner Linda Curtin and Respondent The Ridge at Diamante del Lago Homeowners Association, Inc. It includes a quiz with an answer key to test comprehension, a set of essay questions for deeper analysis, and a glossary of key terms.
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Short-Answer Quiz
Instructions: Answer the following questions in two to three sentences, based exclusively on the information provided in the case document.
1. Who are the primary parties involved in this case and what are their respective roles?
2. What was the central allegation in the single-issue petition filed by Linda Curtin on November 28, 2018?
3. Which specific Arizona Revised Statute and CC&R section did the Petitioner claim the Respondent violated?
4. How did the HOA, through its community manager, initially attempt to resolve the records request that led to the petition?
5. What additional documents did Ms. Curtin request after receiving the contractor’s invoice on December 10, 2018?
6. What were Ms. Curtin’s specific suspicions and complaints regarding the quality and validity of the documents she eventually received?
7. What was Community Manager Tracy Schofield’s testimony regarding her role and the location of the association’s records?
8. According to the “Conclusions of Law,” what is the primary requirement of A.R.S. § 33-1805(A) regarding member requests for records?
9. On what specific point did the Administrative Law Judge find that the Respondent had violated the statute?
10. What was the final Recommended Order issued by the Administrative Law Judge in this case?
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Answer Key
1. The primary parties are Linda Curtin, the Petitioner and a homeowner, and The Ridge at Diamante del Lago Homeowners Association, Inc., the Respondent. Tracy Schofield appeared for the HOA as its Community Manager, and Diane Mihalsky served as the Administrative Law Judge.
2. The central allegation was that the HOA violated its own rules and state law by refusing to make association records available. Specifically, Ms. Curtin sought a receipt identifying the contractor and the amount paid for a cinderblock wall built by the community clubhouse.
3. The Petitioner claimed the Respondent violated CC&R § 4.8, concerning the keeping and availability of accounting records, and A.R.S. § 33-1805, which governs the examination of association records by members.
4. On September 24, 2018, Ms. Schofield responded to Ms. Curtin’s written request by stating she did not have invoices at her office. She did, however, provide a printout of payments made to the contractor, Gaulberto Castro, which included a $1,000.00 payment for “Block work – clubhouse.”
5. After receiving the invoice, Ms. Curtin requested a copy of the cashed check (front and back), the payee’s mailing address, and the completed Architectural Control Committee Application for the project, including the contractor’s address, license number, and insurance company.
6. Ms. Curtin complained that the contractor, Mr. Castro, was not licensed and that the job did not meet the exemption requirements for the Registrar of Contractors. She also opined that the receipt from November 2, 2017, appeared to be a forgery with two different kinds of handwriting.
7. Ms. Schofield testified that she is not an onsite manager, works for numerous associations, and does not keep any association records in her office. She stated that for future requests, she would schedule a time for Ms. Curtin to view the records at the Respondent’s records depository.
8. The primary requirement of A.R.S. § 33-1805(A) is that all financial and other records of an association must be made reasonably available for examination by any member. The statute mandates that the association has ten business days to fulfill a request for examination or to provide copies.
9. The Judge found that the Respondent violated A.R.S. § 33-1805(A) because, while it eventually provided all documents in its possession, it failed to provide the documents or access to them within the statutorily required ten-day period following Ms. Curtin’s September 12, 2018 request.
10. The Judge ordered that the Petitioner’s petition be granted because she established the violation of A.R.S. § 33-1805(A). The Judge further ordered that the Respondent reimburse Ms. Curtin the $500.00 she paid to file her single-issue petition.
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Essay Questions
Instructions: The following questions are designed to encourage a deeper analysis of the case. Formulate comprehensive responses using only the evidence and legal reasoning presented in the source document.
1. Analyze the timeline of communication between Linda Curtin and Tracy Schofield, from the initial informal inquiry on August 1, 2018, to the formal petition. How did the nature of the requests and the quality of the responses contribute to the escalation of the dispute?
2. Discuss the legal standard of “preponderance of the evidence” as it is defined and applied in this case. Explain how the Administrative Law Judge used this standard to find the Respondent in violation of the ten-day rule while simultaneously dismissing the Petitioner’s other concerns about transparency and forgery.
3. The Petitioner raised several issues during the hearing that were not part of her original single-issue petition, such as the contractor’s licensing status, the lack of Board meeting minutes authorizing the project, and a proposed $125,000 pool remodel. Why did the Administrative Law Judge deem these points irrelevant to the final decision?
4. Evaluate the responsibilities of a Homeowners Association regarding record-keeping and member access as outlined in CC&R § 4.8 and A.R.S. § 33-1805(A). Based on the testimony and evidence, describe the specific procedural failures of The Ridge at Diamante del Lago HOA in this matter.
5. The Judge’s decision explicitly states that the Petitioner’s “dissatisfaction and suspicions about the records that were eventually provided do not entitle her to any additional relief in this forum.” Explore the distinction the ruling makes between a procedural violation (timeliness of access) and the substantive content or perceived legitimacy of the records themselves.
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An independent judge who presides over administrative hearings. In this case, Diane Mihalsky of the Office of Administrative Hearings served as the ALJ.
A.R.S. § 33-1805
An Arizona Revised Statute requiring that all financial and other records of a homeowners association be made reasonably available for examination by any member within ten business days of a request.
Complainant
An alternative term used in the document to refer to the Petitioner, Linda Curtin.
Covenants, Conditions, and Restrictions (CC&Rs)
The governing documents that create and define the rules for a planned community. In this case, CC&R § 4.8, which deals with accounting records, was cited.
Department (The)
Refers to the Arizona Department of Real Estate, the state agency authorized to receive and decide petitions for hearings from HOA members and HOAs.
Evidentiary Hearing
A formal proceeding where evidence is presented and testimony is given before an administrative law judge to resolve a factual dispute. The hearing in this case took place on February 20, 2019.
Homeowners’ Association (HOA)
An organization in a planned community that creates and enforces rules for the properties and its members. The Respondent is The Ridge at Diamante del Lago Homeowners Association, Inc.
Office of Administrative Hearings (OAH)
An independent state agency in Arizona that conducts evidentiary hearings for other state agencies, such as the Department of Real Estate.
Petitioner
The party who files a petition initiating a legal action. In this case, the Petitioner is Linda Curtin, a homeowner and member of the Respondent HOA.
Preponderance of the Evidence
The standard of proof required in this case, defined as evidence that is more convincing and has greater weight, inclining an impartial mind to one side of the issue rather than the other. The Petitioner bears this burden of proof.
Respondent
The party against whom a petition is filed. In this case, the Respondent is The Ridge at Diamante del Lago Homeowners Association, Inc.
Restrictive Covenants
Legal obligations imposed in a deed upon the buyer of real estate. The document notes that if unambiguous, they are enforced to give effect to the intent of the parties.
Case Participants
Petitioner Side
Linda Curtin(petitioner) Also referred to as 'Complainant'; testified on her own behalf
Respondent Side
Tracy Schofield(community manager) The Ridge at Diamante del Lago Homeowners Association Appeared for Respondent and testified as Community Manager
Jim Mackiewicz(board member) The Ridge at Diamante del Lago Homeowners Association Board Treasurer
Mitch Kellogg(statutory agent) The Ridge at Diamante del Lago Homeowners Association, Inc.
Neutral Parties
Diane Mihalsky(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
Other Participants
Gualberto Castro(contractor) Gualberto Stucco & Repairs Contractor involved in the disputed work
Felicia Del Sol(administrative staff) Transmitted decision electronically
The Ridge at Diamante del Lago Homeowners Association, Inc.
Counsel
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Alleged Violations
A.R.S. § 33-1805(A)
Outcome Summary
Petitioner established that Respondent violated A.R.S. § 33-1805(A) by failing to provide access to requested association records within the statutory ten-day period. The petition was granted and Respondent was ordered to reimburse the $500.00 filing fee.
Key Issues & Findings
Failure to provide timely access to association financial records
Petitioner filed a single-issue petition alleging Respondent violated CC&Rs § 4.8 and A.R.S. § 33-1805 by refusing to make available association records or to produce a receipt identifying a contractor and the amount paid for a cinderblock wall built by the community’s clubhouse.
Orders: The petition was granted because Respondent violated A.R.S. § 33-1805(A) by failing to provide access to records within ten days of Petitioner’s September 12, 2018 request. Respondent was ordered to reimburse the $500.00 filing fee.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1805(A)
CC&R § 4.8
Analytics Highlights
Topics: HOA Records, Record Inspection, Timely Disclosure, Statutory Violation, Filing Fee Reimbursement
Additional Citations:
A.R.S. § 33-1805(A)
CC&R § 4.8
A.R.S. § 32-2199(B)
A.R.S. § 33-1803
A.R.S. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
Video Overview
Audio Overview
Decision Documents
19F-H1918034-REL Decision – 692859.pdf
Uploaded 2026-01-23T17:28:04 (151.9 KB)
Briefing Doc – 19F-H1918034-REL
Briefing Document: Curtin v. The Ridge at Diamante del Lago HOA
Executive Summary
This briefing document analyzes the Administrative Law Judge (ALJ) Decision in case number 19F-H1918034-REL, a dispute between homeowner Linda Curtin and The Ridge at Diamante del Lago Homeowners Association, Inc. (HOA). The central conflict arose from the HOA’s failure to provide financial records related to a small construction project within the timeframe mandated by Arizona law.
The petitioner, Ms. Curtin, alleged that the HOA violated its own Covenants, Conditions, and Restrictions (CC&Rs) and Arizona Revised Statutes (A.R.S.) § 33-1805 by not producing an invoice for a $1,000 cinderblock wall project at the community clubhouse. While the HOA did eventually provide the requested records, the ALJ found that it failed to do so within the legally required ten-day period following Ms. Curtin’s formal written request on September 12, 2018.
Consequently, the ALJ granted the petition in favor of Ms. Curtin, ruling that the HOA was in violation of A.R.S. § 33-1805(A). The HOA was ordered to reimburse Ms. Curtin for her $500 petition filing fee. However, the ALJ dismissed all of the petitioner’s ancillary complaints, including suspicions of forgery, concerns about the contractor’s licensing status, and other issues of HOA governance, deeming them either unsubstantiated or outside the narrow scope of the single-issue petition. The ruling underscores the strict procedural compliance required of HOAs regarding member record requests while limiting the scope of such legal challenges to the specific violations alleged.
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I. Case Overview
• Case Number: 19F-H1918034-REL
• Forum: Arizona Office of Administrative Hearings
• Petitioner: Linda Curtin (“Complainant”), a homeowner and HOA member.
• Respondent: The Ridge at Diamante del Lago Homeowners Association, Inc. (“HOA”), represented by Community Manager Tracy Schofield.
• Administrative Law Judge: Diane Mihalsky
• Core Allegation: The HOA violated its governing documents and state law by failing to make association records available to a member upon request. Specifically, the petitioner sought a receipt and contractor details for a cinderblock wall built at the community clubhouse.
II. Governing Rules and Statutes
The case centered on the interpretation and enforcement of the HOA’s internal rules and a specific Arizona statute governing planned communities.
Rule/Statute
Key Provision
CC&R § 4.8
Requires the HOA Board to keep “true and correct records of account in accordance with generally accepted accounting principles” and to make such books and records available for inspection by all owners upon request during normal business hours.
A.R.S. § 33-1805(A)
Mandates that all financial and other association records be made “reasonably available for examination” by any member. The statute explicitly requires the association to fulfill a request for examination within ten business days. A similar ten-day deadline applies for providing copies of records.
The respondent did not claim any legal privilege under A.R.S. § 33-1805(B) that would permit it to withhold the requested documents.
III. Chronology of the Dispute
The conflict unfolded over several months, beginning with an informal inquiry and escalating to a formal legal petition.
• August 1, 2018: Petitioner Linda Curtin first emails Community Manager Tracy Schofield for a contractor recommendation.
• August 2 – September 11, 2018: In a subsequent email exchange, Ms. Curtin asks who built the garbage can walls at the clubhouse. Ms. Schofield provides the name “Roberto” but is unable to provide a contact number, stating that the Board’s Treasurer, Jim Mackiewicz, had arranged the work. The petitioner later characterized this exchange as “evasive.”
• September 12, 2018: Ms. Curtin sends a formal written letter requesting “a copy of the invoice submitted to The Ridge HOA” for the wall construction. This action officially started the ten-day clock under A.R.S. § 33-1805(A).
• September 24, 2018: Ms. Schofield responds, stating that she does not have the invoices at her office as records are retained “in the community.” She provides a printout of payments made to contractor Gualberto Castro, which includes a $1,000 check dated November 1, 2017, for “Block work – clubhouse.”
• November 5, 2018: Ms. Curtin requests that the invoice be brought to that day’s HOA board meeting. The document is not provided.
• November 28, 2018: After making an additional 15 phone calls regarding related meeting minutes without a satisfactory response, Ms. Curtin files a single-issue petition with the Arizona Department of Real Estate.
• December 10, 2018: The HOA files its answer, claiming the issue has been resolved. On the same day, Ms. Schofield emails the contractor’s invoice to Ms. Curtin. The invoice, from ValleyWide Custom Painting Inc. and dated November 2, 2017, details the $1,000 job.
• December 11, 2018: Ms. Curtin requests additional documents, including a copy of the cashed check and the Architectural Control Committee (ACC) application for the project. Ms. Schofield is reported to have stated that ACC approval was not applicable to work on common areas.
• Post-December 11, 2018: Ms. Schofield eventually provides a copy of the cancelled check for $1,000 made payable to Mr. Castro.
• February 20, 2019: An evidentiary hearing is held before the ALJ.
IV. Analysis of Evidence and Arguments
A. Petitioner’s Position
Ms. Curtin’s case was built on the initial failure to produce records and expanded to include broader suspicions about the HOA’s conduct.
• Primary Claim: The HOA violated state law by failing to fulfill her September 12, 2018 request for records within the ten-day statutory period.
• Suspicions about Documentation: The petitioner expressed dissatisfaction with the documents eventually provided. She opined that the November 2, 2017 receipt “appeared to have two different kinds of handwriting and might be a forgery.” She also pointed to the fact that the check for payment was dated one day before the invoice date.
• Ancillary Governance Concerns: Ms. Curtin raised several issues beyond the scope of her petition, including:
◦ The contractor, Mr. Castro, was not licensed as required by the Registrar of Contractors.
◦ The Board meeting minutes did not show authorization for the $1,000 expenditure.
◦ The HOA’s ACC approval process was not followed for the wall.
◦ A separate, unrelated $125,000 pool remodel project was approved improperly (this was refuted by Ms. Schofield’s testimony that it required a membership vote).
B. Respondent’s Position
The HOA, through Ms. Schofield, acknowledged the delay but argued it had ultimately complied and faced logistical constraints.
• Eventual Compliance: The HOA’s primary defense was that it eventually provided all the documents in its possession related to the expenditure, thereby resolving the complaint.
• Logistical Challenges: Ms. Schofield testified that she is an off-site community manager for numerous associations and does not keep records in her office. She stated that the HOA’s records are stored “in the community” at a separate depository.
• Commitment to Future Compliance: Ms. Schofield testified that for any future requests, she would schedule a time for the petitioner to review records at the depository within the ten-day window.
• Communication: Ms. Schofield maintained that she “communicated with Petitioner on every issue” and provided what information she had available.
V. Administrative Law Judge’s Decision and Rationale
The ALJ’s decision was narrowly focused on the statutory violation, setting aside the petitioner’s other grievances.
A. Conclusions of Law
1. Violation Confirmed: The judge concluded that the petitioner successfully established by a preponderance of the evidence that the HOA violated A.R.S. § 33-1805(A). The HOA “acknowledged that it did not provide the documents or provide access to Petitioner to view the documents within ten days of Petitioner’s September 12, 2018 request.”
2. Scope of Relief Limited: The ALJ determined that the statute only requires that records be kept and made available in a timely manner. The law “has not authorized the Department… that HOAs produce records that satisfy all of a members’ stated concerns.”
3. Ancillary Claims Dismissed: The judge explicitly rejected the petitioner’s broader concerns, stating: “Petitioner’s concern with ‘transparency’ and dissatisfaction and suspicions about the records that were eventually provided do not entitle her to any additional relief in this forum.” The forgery claim was dismissed for lack of evidence, as Ms. Curtin did not present the opinion of a handwriting expert. The issues related to contractor licensing and internal HOA procedures were deemed outside the jurisdiction of the hearing for an HOA petition.
B. Recommended Order
Based on the findings, the ALJ issued a two-part order:
1. Petition Granted: The petition was granted on the grounds that Ms. Curtin had proven the HOA violated A.R.S. § 33-1805(A).
2. Reimbursement of Filing Fee: The HOA was ordered to reimburse the petitioner the $500.00 she paid to file the single-issue petition.
The order, issued on March 5, 2019, was declared binding on both parties unless a request for rehearing was filed within 30 days.
Study Guide – 19F-H1918034-REL
Study Guide: Curtin v. The Ridge at Diamante del Lago Homeowners Association, Inc.
This guide provides a detailed review of the Administrative Law Judge Decision in case number 19F-H1918034-REL, involving Petitioner Linda Curtin and Respondent The Ridge at Diamante del Lago Homeowners Association, Inc. It includes a quiz with an answer key to test comprehension, a set of essay questions for deeper analysis, and a glossary of key terms.
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Short-Answer Quiz
Instructions: Answer the following questions in two to three sentences, based exclusively on the information provided in the case document.
1. Who are the primary parties involved in this case and what are their respective roles?
2. What was the central allegation in the single-issue petition filed by Linda Curtin on November 28, 2018?
3. Which specific Arizona Revised Statute and CC&R section did the Petitioner claim the Respondent violated?
4. How did the HOA, through its community manager, initially attempt to resolve the records request that led to the petition?
5. What additional documents did Ms. Curtin request after receiving the contractor’s invoice on December 10, 2018?
6. What were Ms. Curtin’s specific suspicions and complaints regarding the quality and validity of the documents she eventually received?
7. What was Community Manager Tracy Schofield’s testimony regarding her role and the location of the association’s records?
8. According to the “Conclusions of Law,” what is the primary requirement of A.R.S. § 33-1805(A) regarding member requests for records?
9. On what specific point did the Administrative Law Judge find that the Respondent had violated the statute?
10. What was the final Recommended Order issued by the Administrative Law Judge in this case?
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Answer Key
1. The primary parties are Linda Curtin, the Petitioner and a homeowner, and The Ridge at Diamante del Lago Homeowners Association, Inc., the Respondent. Tracy Schofield appeared for the HOA as its Community Manager, and Diane Mihalsky served as the Administrative Law Judge.
2. The central allegation was that the HOA violated its own rules and state law by refusing to make association records available. Specifically, Ms. Curtin sought a receipt identifying the contractor and the amount paid for a cinderblock wall built by the community clubhouse.
3. The Petitioner claimed the Respondent violated CC&R § 4.8, concerning the keeping and availability of accounting records, and A.R.S. § 33-1805, which governs the examination of association records by members.
4. On September 24, 2018, Ms. Schofield responded to Ms. Curtin’s written request by stating she did not have invoices at her office. She did, however, provide a printout of payments made to the contractor, Gaulberto Castro, which included a $1,000.00 payment for “Block work – clubhouse.”
5. After receiving the invoice, Ms. Curtin requested a copy of the cashed check (front and back), the payee’s mailing address, and the completed Architectural Control Committee Application for the project, including the contractor’s address, license number, and insurance company.
6. Ms. Curtin complained that the contractor, Mr. Castro, was not licensed and that the job did not meet the exemption requirements for the Registrar of Contractors. She also opined that the receipt from November 2, 2017, appeared to be a forgery with two different kinds of handwriting.
7. Ms. Schofield testified that she is not an onsite manager, works for numerous associations, and does not keep any association records in her office. She stated that for future requests, she would schedule a time for Ms. Curtin to view the records at the Respondent’s records depository.
8. The primary requirement of A.R.S. § 33-1805(A) is that all financial and other records of an association must be made reasonably available for examination by any member. The statute mandates that the association has ten business days to fulfill a request for examination or to provide copies.
9. The Judge found that the Respondent violated A.R.S. § 33-1805(A) because, while it eventually provided all documents in its possession, it failed to provide the documents or access to them within the statutorily required ten-day period following Ms. Curtin’s September 12, 2018 request.
10. The Judge ordered that the Petitioner’s petition be granted because she established the violation of A.R.S. § 33-1805(A). The Judge further ordered that the Respondent reimburse Ms. Curtin the $500.00 she paid to file her single-issue petition.
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Essay Questions
Instructions: The following questions are designed to encourage a deeper analysis of the case. Formulate comprehensive responses using only the evidence and legal reasoning presented in the source document.
1. Analyze the timeline of communication between Linda Curtin and Tracy Schofield, from the initial informal inquiry on August 1, 2018, to the formal petition. How did the nature of the requests and the quality of the responses contribute to the escalation of the dispute?
2. Discuss the legal standard of “preponderance of the evidence” as it is defined and applied in this case. Explain how the Administrative Law Judge used this standard to find the Respondent in violation of the ten-day rule while simultaneously dismissing the Petitioner’s other concerns about transparency and forgery.
3. The Petitioner raised several issues during the hearing that were not part of her original single-issue petition, such as the contractor’s licensing status, the lack of Board meeting minutes authorizing the project, and a proposed $125,000 pool remodel. Why did the Administrative Law Judge deem these points irrelevant to the final decision?
4. Evaluate the responsibilities of a Homeowners Association regarding record-keeping and member access as outlined in CC&R § 4.8 and A.R.S. § 33-1805(A). Based on the testimony and evidence, describe the specific procedural failures of The Ridge at Diamante del Lago HOA in this matter.
5. The Judge’s decision explicitly states that the Petitioner’s “dissatisfaction and suspicions about the records that were eventually provided do not entitle her to any additional relief in this forum.” Explore the distinction the ruling makes between a procedural violation (timeliness of access) and the substantive content or perceived legitimacy of the records themselves.
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An independent judge who presides over administrative hearings. In this case, Diane Mihalsky of the Office of Administrative Hearings served as the ALJ.
A.R.S. § 33-1805
An Arizona Revised Statute requiring that all financial and other records of a homeowners association be made reasonably available for examination by any member within ten business days of a request.
Complainant
An alternative term used in the document to refer to the Petitioner, Linda Curtin.
Covenants, Conditions, and Restrictions (CC&Rs)
The governing documents that create and define the rules for a planned community. In this case, CC&R § 4.8, which deals with accounting records, was cited.
Department (The)
Refers to the Arizona Department of Real Estate, the state agency authorized to receive and decide petitions for hearings from HOA members and HOAs.
Evidentiary Hearing
A formal proceeding where evidence is presented and testimony is given before an administrative law judge to resolve a factual dispute. The hearing in this case took place on February 20, 2019.
Homeowners’ Association (HOA)
An organization in a planned community that creates and enforces rules for the properties and its members. The Respondent is The Ridge at Diamante del Lago Homeowners Association, Inc.
Office of Administrative Hearings (OAH)
An independent state agency in Arizona that conducts evidentiary hearings for other state agencies, such as the Department of Real Estate.
Petitioner
The party who files a petition initiating a legal action. In this case, the Petitioner is Linda Curtin, a homeowner and member of the Respondent HOA.
Preponderance of the Evidence
The standard of proof required in this case, defined as evidence that is more convincing and has greater weight, inclining an impartial mind to one side of the issue rather than the other. The Petitioner bears this burden of proof.
Respondent
The party against whom a petition is filed. In this case, the Respondent is The Ridge at Diamante del Lago Homeowners Association, Inc.
Restrictive Covenants
Legal obligations imposed in a deed upon the buyer of real estate. The document notes that if unambiguous, they are enforced to give effect to the intent of the parties.
Case Participants
Petitioner Side
Linda Curtin(petitioner) Also referred to as 'Complainant'; testified on her own behalf
Respondent Side
Tracy Schofield(community manager) The Ridge at Diamante del Lago Homeowners Association Appeared for Respondent and testified as Community Manager
Jim Mackiewicz(board member) The Ridge at Diamante del Lago Homeowners Association Board Treasurer
Mitch Kellogg(statutory agent) The Ridge at Diamante del Lago Homeowners Association, Inc.
Neutral Parties
Diane Mihalsky(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
Other Participants
Gualberto Castro(contractor) Gualberto Stucco & Repairs Contractor involved in the disputed work
Felicia Del Sol(administrative staff) Transmitted decision electronically
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
19F-H1918009-REL-RHG
Agency
ADRE
Tribunal
OAH
Decision Date
2019-03-04
Administrative Law Judge
Velva Moses-Thompson
Outcome
loss
Filing Fees Refunded
$0.00
Civil Penalties
$0.00
Parties & Counsel
Petitioner
Rogelio A. Garcia
Counsel
—
Respondent
Villagio at Tempe Homeowners Association
Counsel
Nathan Tennyson
Alleged Violations
ARIZ. REV. STAT. § 33-1242
Outcome Summary
The Administrative Law Judge dismissed the petition for rehearing, finding that the Petitioner failed to prove that the Respondent HOA violated A.R.S. § 33-1242. The HOA was not required to provide the statutory details or the notice of the right to petition ADRE because the Petitioner failed to submit a written response by certified mail within 21 days of the violation notices.
Why this result: The Petitioner failed to meet the burden of proof to show the HOA violated A.R.S. § 33-1242. The HOA was not required to provide the information listed in A.R.S. § 33-1242 (C) or the notice of right to petition in (D) because the Petitioner did not submit a written response by certified mail within twenty-one days, which is the triggering requirement for those obligations.
Key Issues & Findings
Alleged violation of statutory requirements for homeowner association violation notices.
Petitioner alleged Respondent violated A.R.S. § 33-1242 requirements regarding violation notices. The ALJ found that Petitioner failed to establish the violation because he did not respond by certified mail within the 21-day statutory period, meaning the HOA was not triggered to fulfill its obligations under § 33-1242(C) and (D).
Administrative Hearing Briefing: Garcia vs. Villagio at Tempe HOA
Executive Summary
This briefing document synthesizes the findings, arguments, and conclusions from two administrative law judge decisions concerning a dispute between homeowner Rogelio A. Garcia and the Villagio at Tempe Homeowners Association (“Villagio”). The core of the dispute was Mr. Garcia’s allegation that Villagio violated Arizona Revised Statute (A.R.S.) § 33-1242 in its handling of violation notices related to an alleged breach of short-term rental policies.
The Administrative Law Judge ultimately dismissed Mr. Garcia’s petition in both an initial hearing and a subsequent rehearing, finding that he failed to meet the burden of proof. The decisions consistently hinged on a critical point: Mr. Garcia did not respond to Villagio’s violation notices by certified mail within the 21-day period prescribed by the statute. This failure meant that the HOA’s subsequent obligations under the statute—specifically, to provide the name of the violation’s observer and to give notice of the right to a state administrative hearing—were never triggered. Villagio successfully argued that by including its own internal appeal process in the violation notices, it had fulfilled its legal requirements under the circumstances. The final ruling deemed Villagio the prevailing party, with the decision after rehearing being binding on both parties.
Background of the Dispute
The case, No. 19F-H1918009-REL, was adjudicated by Administrative Law Judge Velva Moses-Thompson within the Arizona Office of Administrative Hearings, following a petition filed by Mr. Garcia with the Arizona Department of Real Estate.
Timeline of Notices and Fines
Villagio issued a series of notices to Mr. Garcia alleging that his unit was being rented in violation of the community’s Covenants, Conditions, and Restrictions (CC&Rs) regarding short-term leases.
Date of Notice
Allegation / Action Taken
Instructions Provided to Homeowner
March 8, 2018
Alleged violation of short-term lease provisions.
“If you wish to contest this notice… file an appeal with the Board of Directors… Requests for an appeal must be received within 10 days of receipt of this notice.”
March 22, 2018
A fine of $1,000 posted to Mr. Garcia’s account for the ongoing violation.
Same instructions to appeal within 10 days. The notice also included the phrase, “Please bring this issue into compliance within 10 days of this notice.”
April 5, 2018
A fine of $2,000 posted to Mr. Garcia’s account for the ongoing violation.
Same instructions to appeal within 10 days.
Procedural History
1. Violation Notices: Villagio sent the three notices in March and April 2018.
2. Homeowner Inaction (Statutory): Mr. Garcia did not respond to any of the notices by sending a certified letter within the 21-day period allowed by A.R.S. § 33-1242(B).
3. Homeowner Action (Internal): Mr. Garcia did eventually file an appeal with Villagio regarding the violation and fines, but the HOA did not change its position.
4. Petition Filed: On or about August 17, 2018, Mr. Garcia filed a petition with the Arizona Department of Real Estate, alleging Villagio violated state statutes.
5. Initial Hearing: An evidentiary hearing was held on October 30, 2018.
6. First Decision: On November 19, 2018, the Administrative Law Judge (ALJ) issued a decision dismissing Mr. Garcia’s petition.
7. Rehearing Granted: Mr. Garcia requested a rehearing, which was granted and scheduled.
8. Rehearing: The rehearing was held on February 12, 2019, with testimony from Mr. Garcia and Tom Gordon, Villagio’s Community Manager.
9. Final Decision: On March 4, 2019, the ALJ issued a final decision again dismissing Mr. Garcia’s petition. This order was declared binding and appealable only to the superior court.
Core Legal Arguments and Statutory Interpretation
The case centered on the interpretation and application of A.R.S. § 33-1242, which governs the process for notifying and responding to violations of condominium documents.
Statutory Framework: A.R.S. § 33-1242
• Section (B): A unit owner receiving a violation notice may provide the association with a written response via certified mail within 21 calendar days of the notice date.
• Section (C):If the owner sends a response as described in Section (B), the association must then respond within 10 business days with specific information, including the name of the person who observed the violation and the process to contest the notice.
• Section (D): An association must give a unit owner written notice of their option to petition for a state administrative hearing unless the information regarding the contest process (required in Section C, paragraph 4) is already provided in the initial violation notice.
Petitioner’s Position (Rogelio A. Garcia)
Mr. Garcia argued that Villagio violated A.R.S. § 33-1242 on several grounds:
• The violation letters did not allow him to respond by certified mail within 21 days.
• The notices failed to include the first and last name of the person(s) who observed the violation.
• The notices failed to inform him of his right to petition for an administrative hearing with the state real estate department.
• During the rehearing, he contended that Villagio effectively prevented him from using the 21-day statutory response period. He claimed the rapid succession of notices (14 days apart) and the language demanding compliance “within 10 days” led him to believe he “would only be 10 days before he would acquire another violation.”
Respondent’s Position (Villagio at Tempe HOA)
Villagio disputed all of Mr. Garcia’s allegations, arguing that its actions were fully compliant with the statute:
• The obligation to provide the observer’s name under Section (C) is only triggered after the homeowner first submits a timely certified mail response, which Mr. Garcia failed to do.
• The obligation to provide notice of the right to a state administrative hearing under Section (D) was not applicable because Villagio did provide its internal process for contesting the notice in every letter sent.
• They did not prevent Mr. Garcia from responding. At the rehearing, Mr. Garcia admitted under cross-examination that he was not prohibited by any court order from sending a response.
• Villagio’s Community Manager, Tom Gordon, testified that while the HOA’s policy gives homeowners 10 days to contest internally, the association does not restrict them from also using the 21-day statutory response period.
• As a further defense in the rehearing, Villagio argued that A.R.S. § 33-1242 was not applicable at all, asserting the statute addresses violations concerning the “condition of the property,” whereas Mr. Garcia’s violation concerned the “use of his property.”
Administrative Law Judge’s Findings and Decision
The Administrative Law Judge’s decisions in both the initial hearing and the rehearing were consistent, ruling decisively in favor of the Respondent, Villagio.
Burden of Proof
In both decisions, the Judge established that Mr. Garcia, as the petitioner, bore the burden of proof to show that a violation occurred. The standard of proof required was a “preponderance of the evidence,” defined as evidence with the “most convincing force.”
Key Conclusions of Law
1. Homeowner’s Failure to Respond Was Decisive: The Judge found it was “undisputed” that Mr. Garcia did not respond to any of the three notices within the 21-day period via certified mail. This failure was the central reason his petition was dismissed.
2. HOA Obligations Were Not Triggered: Because Mr. Garcia did not initiate the process described in A.R.S. § 33-1242(B), Villagio’s corresponding obligation under Section (C) to provide the observer’s name was never activated.
3. Internal Appeal Process Satisfied Statutory Requirement: The Judge concluded that because Villagio included instructions on how to contest the notice (i.e., appeal to the Board of Directors) in its letters, it was not required under Section (D) to provide separate notice of the right to a state administrative hearing.
4. No Evidence of Prevention: The Judge found that Mr. Garcia “provided no evidence to establish that Villagio prevented him from responding.” The issuance of subsequent notices and fines before the 21-day period had lapsed was not found to constitute a legal barrier that prevented Mr. Garcia from exercising his statutory right to respond.
5. Final Order: Mr. Garcia failed to establish that Villagio violated A.R.S. § 33-1242. His petition was ordered to be dismissed, and Villagio was deemed the prevailing party. The order issued after the rehearing on March 4, 2019, is binding on the parties and can only be appealed by seeking judicial review in the superior court within 35 days of service.
Study Guide – 19F-H1918009-REL-RHG
Study Guide: Garcia v. Villagio at Tempe Homeowners Association
Answer the following ten questions in 2-3 sentences each, based on the provided source documents.
1. What was the initial violation alleged by the Villagio at Tempe Homeowners Association (Villagio) against Rogelio A. Garcia?
2. According to ARIZ. REV. STAT. § 33-1242(B), what specific action must a unit owner take after receiving a violation notice to trigger the association’s obligations under subsection C?
3. Who bears the burden of proof in this type of administrative hearing, and what is the standard of proof required?
4. Why did the Administrative Law Judge rule that Villagio was not required to provide Mr. Garcia with the name of the person who observed the violation?
5. What was Mr. Garcia’s primary argument during the February 12, 2019 rehearing for why he felt he was prevented from responding to the violation notices?
6. What argument did Villagio present at the rehearing distinguishing between the “condition” of a property and the “use” of a property?
7. What two fines were imposed on Mr. Garcia’s account, and on what dates were the notices sent?
8. Why did the Judge conclude that Villagio was not obligated to inform Mr. Garcia of his right to petition for an administrative hearing with the state real estate department?
9. What was the testimony of Tom Gordon, the Community Manager for Villagio, regarding the association’s policy for contesting a notice?
10. What was the final outcome of both the initial hearing on October 30, 2018, and the rehearing on February 12, 2019?
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Answer Key
1. What was the initial violation alleged by the Villagio at Tempe Homeowners Association (Villagio) against Rogelio A. Garcia? The initial violation alleged by Villagio was that Mr. Garcia’s unit was being rented in violation of the short-term lease provisions located in Villagio’s Covenants, Conditions, and Restrictions (CC&Rs). The first notice of this violation was mailed to Mr. Garcia on March 8, 2018.
2. According to ARIZ. REV. STAT. § 33-1242(B), what specific action must a unit owner take after receiving a violation notice to trigger the association’s obligations under subsection C? To trigger the association’s obligations, a unit owner who receives a written notice of violation must provide the association with a written response. This response must be sent by certified mail within twenty-one calendar days after the date of the notice.
3. Who bears the burden of proof in this type of administrative hearing, and what is the standard of proof required? The petitioner, Mr. Garcia, bears the burden of proof to show that the respondent committed the alleged violation. The standard of proof is a “preponderance of the evidence,” which is defined as evidence with the most convincing force that is sufficient to incline a fair and impartial mind to one side of the issue.
4. Why did the Administrative Law Judge rule that Villagio was not required to provide Mr. Garcia with the name of the person who observed the violation? The judge ruled that Villagio was not required to provide the observer’s name because that obligation is only triggered after a unit owner responds to the violation notice in writing by certified mail within 21 days. It is undisputed that Mr. Garcia did not respond to the notices within the 21-day period, so Villagio’s obligation was never activated.
5. What was Mr. Garcia’s primary argument during the February 12, 2019 rehearing for why he felt he was prevented from responding to the violation notices? Mr. Garcia argued that Villagio prevented him from responding by certified mail within 21 days because it failed to wait 21 days before issuing additional notices and imposing fines. He stated that the notices’ language requiring compliance within 10 days made him believe he would acquire another violation before the 21-day statutory response period had passed.
6. What argument did Villagio present at the rehearing distinguishing between the “condition” of a property and the “use” of a property? Villagio contended that A.R.S. § 33-1242 does not apply to this case at all because the statute addresses violations related to the “condition” of the property. Villagio argued that it notified Mr. Garcia that the “use” of his property violated its short-term rental policy, not that a physical condition of the property was in violation.
7. What two fines were imposed on Mr. Garcia’s account, and on what dates were the notices sent? A fine of $1,000 was posted to Mr. Garcia’s account, with the notice being sent on March 22, 2018. Subsequently, a $2,000 fine was posted to his account for the same violation, and that notice was sent on April 5, 2018.
8. Why did the Judge conclude that Villagio was not obligated to inform Mr. Garcia of his right to petition for an administrative hearing with the state real estate department? The Judge concluded that Villagio was not obligated to provide this information because A.R.S. § 33-1242(D) only requires it if the association fails to provide the unit owner with the process for contesting the notice. Villagio’s notices all contained instructions on how to contest the violation, specifically by filing an appeal with the Board of Directors via a provided website.
9. What was the testimony of Tom Gordon, the Community Manager for Villagio, regarding the association’s policy for contesting a notice? Tom Gordon testified that homeowners are provided with 10 days to contest a notice with Villagio, pursuant to Villagio’s short-term rental policy. When asked if Villagio would have abided by “this statute” (A.R.S. § 33-1242) if Mr. Garcia had responded in twenty-one days, Mr. Gordon replied, “No.”
10. What was the final outcome of both the initial hearing on October 30, 2018, and the rehearing on February 12, 2019? In both the initial hearing and the rehearing, the Administrative Law Judge found that Mr. Garcia failed to establish that Villagio violated A.R.S. § 33-1242. Consequently, Mr. Garcia’s petition was dismissed in both instances, and Villagio was deemed the prevailing party.
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Essay Questions
Develop detailed essay-format answers to the following prompts, drawing evidence and examples exclusively from the provided source documents.
1. Analyze the central arguments presented by both Rogelio A. Garcia and the Villagio at Tempe Homeowners Association regarding the application of ARIZ. REV. STAT. § 33-1242. How did the Administrative Law Judge interpret the statute in relation to these arguments in the final decision?
2. Discuss the concept of “burden of proof” and “preponderance of the evidence” as applied in this case. Explain how Mr. Garcia’s failure to meet this burden led to the dismissal of his petition in both the initial hearing and the rehearing.
3. Trace the timeline of events from the first notice sent by Villagio on March 8, 2018, to the final order on March 4, 2019. Explain how Mr. Garcia’s actions, or lack thereof, at key moments influenced the legal obligations of the association and the ultimate outcome of the case.
4. Evaluate Villagio’s argument that A.R.S. § 33-1242 applies only to the “condition” of a property and not its “use.” Although the judge’s decision did not ultimately hinge on this point, discuss the potential implications of this distinction in homeowner association disputes.
5. Explain the two distinct procedural paths available to a unit owner after receiving a violation notice as outlined in this case: the association’s internal appeal process and the statutory process under A.R.S. § 33-1242. Why did the path Mr. Garcia chose fail to trigger the statutory protections he sought?
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Glossary
Definition
Administrative Law Judge (ALJ)
The official who presides over the administrative hearing and rehearing, evaluates evidence, and issues a decision. In this case, Velva Moses-Thompson.
ARIZ. REV. STAT. (A.R.S.)
The abbreviation for Arizona Revised Statutes, which are the codified laws of the state of Arizona that regulate condominiums and planned communities.
Arizona Department of Real Estate (Department)
The state agency that has authority over homeowner association disputes and with which homeowners may petition for a hearing.
Burden of Proof
The obligation of a party in a legal proceeding to prove their allegations. In this case, Mr. Garcia bore the burden of proof.
Covenants, Conditions, and Restrictions (CC&Rs)
The governing documents of the Villagio at Tempe Homeowners Association, which contain the short-term lease provisions Mr. Garcia was alleged to have violated.
Office of Administrative Hearings
The venue where the evidentiary hearing and rehearing for this matter were held.
Petitioner
The party who initiates a legal action by filing a petition. In this case, Rogelio A. Garcia.
Preponderance of the Evidence
The standard of proof required in this matter, defined as “The greater weight of the evidence…that has the most convincing force…sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”
Rehearing
A second hearing on a matter, granted in this case at Mr. Garcia’s request after the initial Administrative Law Judge Decision was issued.
Respondent
The party against whom a petition is filed and who must respond to the allegations. In this case, Villagio at Tempe Homeowners Association.
Blog Post – 19F-H1918009-REL-RHG
He Fought His HOA and Followed Their Rules. Here’s Why He Still Lost.
1.0 Introduction: The Dreaded Letter
For many homeowners, it’s a familiar and unwelcome sight: a crisp envelope from the Homeowners Association (HOA) containing a formal, intimidating violation notice. Your first instinct is to act, to follow the instructions, and to fight back against what feels like an unfair accusation. You read the letter, see a process for an appeal, and dutifully follow it, believing you are protecting your rights. But what if the process outlined in the letter isn’t the one that truly matters under the law?
This isn’t a theoretical warning. It’s the hard lesson learned by a real homeowner in Arizona, Rogelio A. Garcia, who took on his HOA, Villagio at Tempe. He believed the association had violated his rights, and unlike many homeowners, he didn’t ignore the notices—he took action. He filed an appeal with the HOA, just as their letter instructed. Yet, he lost his case, not because he was wrong on the facts, but because he fell into a subtle procedural trap, following the HOA’s internal process while missing a separate, more powerful one defined by state law.
This article breaks down the top three legal takeaways from that court decision. It reveals how taking the wrong action can be just as costly as taking no action at all, offering crucial strategic insights for any homeowner facing a dispute with their association.
2.0 Takeaway 1: Your Rights Often Have an ‘On’ Switch You Must Flip First
Mr. Garcia’s primary complaint was that the HOA failed to provide him with the name of the person who reported his alleged violation—a requirement under Arizona statute A.R.S. § 33-1242. On the surface, this seems like a clear-cut right afforded to homeowners.
However, the court revealed a counter-intuitive legal reality. The HOA’s legal obligation to provide the reporter’s name was not automatic. That right only became active—the obligation was only triggered—if the homeowner first took a specific, formal step: sending a written response to the violation notice via certified mail within 21 calendar days. The record was clear that Mr. Garcia did not send such a response to the March 8, March 22, or April 5 notices. This single procedural failure was fatal to his claim.
The judge’s finding on this point was direct and unambiguous:
“Because Mr. Garcia did not respond in the 21 day period, Villagio was not required to provide Mr. Garcia with the first and last name of the person or persons who observed the violation.”
This illustrates a critical principle: your most important legal rights may exist in state law, but they often lie dormant. To activate them, you must flip the “on” switch by taking the precise action required by statute, which may be entirely different from the process described in the HOA’s notice.
3.0 Takeaway 2: An Internal Process Can Legally Replace—and Distract From—a State-Level One
So why would an engaged homeowner like Mr. Garcia, who went so far as to file an appeal, neglect to send the critical 21-day certified letter? The answer lies in the second key takeaway: the HOA’s violation notice offered its own, separate appeal process with a much shorter deadline, creating a critical and costly distraction.
Mr. Garcia’s second major argument was that Villagio violated the law by not informing him of his right to petition for an administrative hearing with the state real estate department. Again, the law contained a crucial nuance. Under A.R.S. § 33-1242(D), an HOA is only required to notify a homeowner of the state hearing option if it fails to provide its own process for contesting the notice. Villagio’s letters did include a process: the homeowner could “file an appeal with the Board of Directors… within 10 days of receipt of this notice.”
Court records show Mr. Garcia followed this path and “filed an appeal with Villagio.” By doing so, he engaged with the HOA on their terms, likely focusing all his energy on meeting that urgent 10-day deadline. Because Villagio provided this internal process, the judge concluded it had met its legal obligation and was not required to inform Mr. Garcia about the alternative state-level hearing. This created a procedural trap: the HOA satisfied its legal requirement by offering an internal process that simultaneously diverted the homeowner’s attention from the more powerful, but less obvious, 21-day statutory deadline that would have unlocked his other rights.
4.0 Takeaway 3: Conflicting Deadlines Can Create a Legal Minefield
During a rehearing, Mr. Garcia argued that the HOA’s communication style effectively “prevented” him from using his full 21-day statutory response window. The notices demanded compliance within 10 days and were sent every 14 days with escalating fines. He felt the rapid succession of notices created a pressure cooker, making it impossible to properly exercise his rights.
The court flatly rejected this argument, highlighting a harsh legal truth. The judge found no evidence that Villagio had explicitly told Mr. Garcia he could not respond or had physically prevented him from sending a certified letter. The issuance of a second notice with a demanding 10-day timeline did not legally nullify the 21-day window he had to respond to the first. When asked directly if he was prohibited by a court order from sending a response, Mr. Garcia answered, “No.”
This reveals a common tactic, whether intentional or not, in HOA disputes. The violation notices contained two conflicting timelines: a prominent, urgent “10 days to comply” demand and the less obvious, but legally superior, 21-day statutory right to respond. This conflict creates confusion and pressure, causing homeowners to focus on the immediate threat (the 10-day deadline) while missing the most important legal one. The court, however, places the burden squarely on the homeowner to navigate this minefield, as feeling pressured is not a legal defense for failing to meet a statutory deadline.
5.0 Conclusion: Know the Rules Before You Play the Game
The case of Mr. Garcia versus the Villagio at Tempe HOA is a powerful reminder that successfully challenging an HOA is not about being “right,” or even about taking action. It is about taking the correct, procedurally perfect action defined by law.
Mr. Garcia was not passive; he engaged and appealed the violation. His case was lost because he followed the path laid out for him by the HOA, not the one laid out for him by state statute. This crucial distinction—between an association’s internal process and the homeowner’s statutory rights—can mean the difference between victory and defeat. Before you act on any violation notice, you must first understand the precise rules of engagement, which may not be written in the notice itself.
If you received a violation notice today, would you know whether the appeal process in the letter is your only option, or a potential distraction from the legal first step required to truly protect your rights?
Case Participants
Petitioner Side
Rogelio A. Garcia(petitioner) Appeared on behalf of himself
Respondent Side
Nathan Tennyson(HOA attorney) Brown Olcott, PLLC
Tom Gordon(community manager) Villagio / AAMAZ Testified as witness for Villagio
Amanda Shaw(property manager/agent) AAM LLC Listed as agent for Villagio at Tempe Homeowners Association
Neutral Parties
Velva Moses-Thompson(ALJ) Office of Administrative Hearings
Judy Lowe(ADRE Commissioner) Arizona Department of Real Estate
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
19F-H1918009-REL-RHG
Agency
ADRE
Tribunal
OAH
Decision Date
2019-03-04
Administrative Law Judge
Velva Moses-Thompson
Outcome
loss
Filing Fees Refunded
$0.00
Civil Penalties
$0.00
Parties & Counsel
Petitioner
Rogelio A. Garcia
Counsel
—
Respondent
Villagio at Tempe Homeowners Association
Counsel
Nathan Tennyson
Alleged Violations
ARIZ. REV. STAT. section 33-1242
Outcome Summary
The Administrative Law Judge dismissed the petition based on a rehearing, concluding that the Petitioner failed to prove the HOA violated A.R.S. § 33-1242 because the Petitioner's failure to respond by certified mail within 21 days meant the HOA's duties to provide further information or notice of the right to petition ADRE were never triggered.
Why this result: The Petitioner failed to carry the burden of proof to show that the Respondent committed the alleged violation of A.R.S. § 33-1242. The HOA was deemed not obligated to provide the specific statutory disclosures because the Petitioner did not respond to the notices of violation by certified mail within 21 calendar days.
Key Issues & Findings
Alleged violation of HOA notice requirements
Petitioner alleged Respondent violated A.R.S. § 33-1242 by failing to provide specific information (observer name, notice of ADRE petition right) and restricting the 21-day response period in violation notices concerning short term lease provisions. The ALJ found that because the Petitioner did not respond by certified mail within 21 days, the HOA was not required to provide the information under A.R.S. § 33-1242(C) or the notice of administrative hearing option under A.R.S. § 33-1242(D).
Orders: Petitioner’s petition is dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
ARIZ. REV. STAT. section 33-1242
ARIZ. REV. STAT. section 32-2199.01
ARIZ. REV. STAT. section 32-2199.02
ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
ARIZ. ADMIN. CODE § R2-19-119
Analytics Highlights
Topics: HOA, notice of violation, statutory interpretation, right to respond, administrative hearing
Administrative Hearing Briefing: Garcia vs. Villagio at Tempe HOA
Executive Summary
This briefing document synthesizes the findings, arguments, and conclusions from two administrative law judge decisions concerning a dispute between homeowner Rogelio A. Garcia and the Villagio at Tempe Homeowners Association (“Villagio”). The core of the dispute was Mr. Garcia’s allegation that Villagio violated Arizona Revised Statute (A.R.S.) § 33-1242 in its handling of violation notices related to an alleged breach of short-term rental policies.
The Administrative Law Judge ultimately dismissed Mr. Garcia’s petition in both an initial hearing and a subsequent rehearing, finding that he failed to meet the burden of proof. The decisions consistently hinged on a critical point: Mr. Garcia did not respond to Villagio’s violation notices by certified mail within the 21-day period prescribed by the statute. This failure meant that the HOA’s subsequent obligations under the statute—specifically, to provide the name of the violation’s observer and to give notice of the right to a state administrative hearing—were never triggered. Villagio successfully argued that by including its own internal appeal process in the violation notices, it had fulfilled its legal requirements under the circumstances. The final ruling deemed Villagio the prevailing party, with the decision after rehearing being binding on both parties.
Background of the Dispute
The case, No. 19F-H1918009-REL, was adjudicated by Administrative Law Judge Velva Moses-Thompson within the Arizona Office of Administrative Hearings, following a petition filed by Mr. Garcia with the Arizona Department of Real Estate.
Timeline of Notices and Fines
Villagio issued a series of notices to Mr. Garcia alleging that his unit was being rented in violation of the community’s Covenants, Conditions, and Restrictions (CC&Rs) regarding short-term leases.
Date of Notice
Allegation / Action Taken
Instructions Provided to Homeowner
March 8, 2018
Alleged violation of short-term lease provisions.
“If you wish to contest this notice… file an appeal with the Board of Directors… Requests for an appeal must be received within 10 days of receipt of this notice.”
March 22, 2018
A fine of $1,000 posted to Mr. Garcia’s account for the ongoing violation.
Same instructions to appeal within 10 days. The notice also included the phrase, “Please bring this issue into compliance within 10 days of this notice.”
April 5, 2018
A fine of $2,000 posted to Mr. Garcia’s account for the ongoing violation.
Same instructions to appeal within 10 days.
Procedural History
1. Violation Notices: Villagio sent the three notices in March and April 2018.
2. Homeowner Inaction (Statutory): Mr. Garcia did not respond to any of the notices by sending a certified letter within the 21-day period allowed by A.R.S. § 33-1242(B).
3. Homeowner Action (Internal): Mr. Garcia did eventually file an appeal with Villagio regarding the violation and fines, but the HOA did not change its position.
4. Petition Filed: On or about August 17, 2018, Mr. Garcia filed a petition with the Arizona Department of Real Estate, alleging Villagio violated state statutes.
5. Initial Hearing: An evidentiary hearing was held on October 30, 2018.
6. First Decision: On November 19, 2018, the Administrative Law Judge (ALJ) issued a decision dismissing Mr. Garcia’s petition.
7. Rehearing Granted: Mr. Garcia requested a rehearing, which was granted and scheduled.
8. Rehearing: The rehearing was held on February 12, 2019, with testimony from Mr. Garcia and Tom Gordon, Villagio’s Community Manager.
9. Final Decision: On March 4, 2019, the ALJ issued a final decision again dismissing Mr. Garcia’s petition. This order was declared binding and appealable only to the superior court.
Core Legal Arguments and Statutory Interpretation
The case centered on the interpretation and application of A.R.S. § 33-1242, which governs the process for notifying and responding to violations of condominium documents.
Statutory Framework: A.R.S. § 33-1242
• Section (B): A unit owner receiving a violation notice may provide the association with a written response via certified mail within 21 calendar days of the notice date.
• Section (C):If the owner sends a response as described in Section (B), the association must then respond within 10 business days with specific information, including the name of the person who observed the violation and the process to contest the notice.
• Section (D): An association must give a unit owner written notice of their option to petition for a state administrative hearing unless the information regarding the contest process (required in Section C, paragraph 4) is already provided in the initial violation notice.
Petitioner’s Position (Rogelio A. Garcia)
Mr. Garcia argued that Villagio violated A.R.S. § 33-1242 on several grounds:
• The violation letters did not allow him to respond by certified mail within 21 days.
• The notices failed to include the first and last name of the person(s) who observed the violation.
• The notices failed to inform him of his right to petition for an administrative hearing with the state real estate department.
• During the rehearing, he contended that Villagio effectively prevented him from using the 21-day statutory response period. He claimed the rapid succession of notices (14 days apart) and the language demanding compliance “within 10 days” led him to believe he “would only be 10 days before he would acquire another violation.”
Respondent’s Position (Villagio at Tempe HOA)
Villagio disputed all of Mr. Garcia’s allegations, arguing that its actions were fully compliant with the statute:
• The obligation to provide the observer’s name under Section (C) is only triggered after the homeowner first submits a timely certified mail response, which Mr. Garcia failed to do.
• The obligation to provide notice of the right to a state administrative hearing under Section (D) was not applicable because Villagio did provide its internal process for contesting the notice in every letter sent.
• They did not prevent Mr. Garcia from responding. At the rehearing, Mr. Garcia admitted under cross-examination that he was not prohibited by any court order from sending a response.
• Villagio’s Community Manager, Tom Gordon, testified that while the HOA’s policy gives homeowners 10 days to contest internally, the association does not restrict them from also using the 21-day statutory response period.
• As a further defense in the rehearing, Villagio argued that A.R.S. § 33-1242 was not applicable at all, asserting the statute addresses violations concerning the “condition of the property,” whereas Mr. Garcia’s violation concerned the “use of his property.”
Administrative Law Judge’s Findings and Decision
The Administrative Law Judge’s decisions in both the initial hearing and the rehearing were consistent, ruling decisively in favor of the Respondent, Villagio.
Burden of Proof
In both decisions, the Judge established that Mr. Garcia, as the petitioner, bore the burden of proof to show that a violation occurred. The standard of proof required was a “preponderance of the evidence,” defined as evidence with the “most convincing force.”
Key Conclusions of Law
1. Homeowner’s Failure to Respond Was Decisive: The Judge found it was “undisputed” that Mr. Garcia did not respond to any of the three notices within the 21-day period via certified mail. This failure was the central reason his petition was dismissed.
2. HOA Obligations Were Not Triggered: Because Mr. Garcia did not initiate the process described in A.R.S. § 33-1242(B), Villagio’s corresponding obligation under Section (C) to provide the observer’s name was never activated.
3. Internal Appeal Process Satisfied Statutory Requirement: The Judge concluded that because Villagio included instructions on how to contest the notice (i.e., appeal to the Board of Directors) in its letters, it was not required under Section (D) to provide separate notice of the right to a state administrative hearing.
4. No Evidence of Prevention: The Judge found that Mr. Garcia “provided no evidence to establish that Villagio prevented him from responding.” The issuance of subsequent notices and fines before the 21-day period had lapsed was not found to constitute a legal barrier that prevented Mr. Garcia from exercising his statutory right to respond.
5. Final Order: Mr. Garcia failed to establish that Villagio violated A.R.S. § 33-1242. His petition was ordered to be dismissed, and Villagio was deemed the prevailing party. The order issued after the rehearing on March 4, 2019, is binding on the parties and can only be appealed by seeking judicial review in the superior court within 35 days of service.
Study Guide – 19F-H1918009-REL-RHG
Study Guide: Garcia v. Villagio at Tempe Homeowners Association
Answer the following ten questions in 2-3 sentences each, based on the provided source documents.
1. What was the initial violation alleged by the Villagio at Tempe Homeowners Association (Villagio) against Rogelio A. Garcia?
2. According to ARIZ. REV. STAT. § 33-1242(B), what specific action must a unit owner take after receiving a violation notice to trigger the association’s obligations under subsection C?
3. Who bears the burden of proof in this type of administrative hearing, and what is the standard of proof required?
4. Why did the Administrative Law Judge rule that Villagio was not required to provide Mr. Garcia with the name of the person who observed the violation?
5. What was Mr. Garcia’s primary argument during the February 12, 2019 rehearing for why he felt he was prevented from responding to the violation notices?
6. What argument did Villagio present at the rehearing distinguishing between the “condition” of a property and the “use” of a property?
7. What two fines were imposed on Mr. Garcia’s account, and on what dates were the notices sent?
8. Why did the Judge conclude that Villagio was not obligated to inform Mr. Garcia of his right to petition for an administrative hearing with the state real estate department?
9. What was the testimony of Tom Gordon, the Community Manager for Villagio, regarding the association’s policy for contesting a notice?
10. What was the final outcome of both the initial hearing on October 30, 2018, and the rehearing on February 12, 2019?
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Answer Key
1. What was the initial violation alleged by the Villagio at Tempe Homeowners Association (Villagio) against Rogelio A. Garcia? The initial violation alleged by Villagio was that Mr. Garcia’s unit was being rented in violation of the short-term lease provisions located in Villagio’s Covenants, Conditions, and Restrictions (CC&Rs). The first notice of this violation was mailed to Mr. Garcia on March 8, 2018.
2. According to ARIZ. REV. STAT. § 33-1242(B), what specific action must a unit owner take after receiving a violation notice to trigger the association’s obligations under subsection C? To trigger the association’s obligations, a unit owner who receives a written notice of violation must provide the association with a written response. This response must be sent by certified mail within twenty-one calendar days after the date of the notice.
3. Who bears the burden of proof in this type of administrative hearing, and what is the standard of proof required? The petitioner, Mr. Garcia, bears the burden of proof to show that the respondent committed the alleged violation. The standard of proof is a “preponderance of the evidence,” which is defined as evidence with the most convincing force that is sufficient to incline a fair and impartial mind to one side of the issue.
4. Why did the Administrative Law Judge rule that Villagio was not required to provide Mr. Garcia with the name of the person who observed the violation? The judge ruled that Villagio was not required to provide the observer’s name because that obligation is only triggered after a unit owner responds to the violation notice in writing by certified mail within 21 days. It is undisputed that Mr. Garcia did not respond to the notices within the 21-day period, so Villagio’s obligation was never activated.
5. What was Mr. Garcia’s primary argument during the February 12, 2019 rehearing for why he felt he was prevented from responding to the violation notices? Mr. Garcia argued that Villagio prevented him from responding by certified mail within 21 days because it failed to wait 21 days before issuing additional notices and imposing fines. He stated that the notices’ language requiring compliance within 10 days made him believe he would acquire another violation before the 21-day statutory response period had passed.
6. What argument did Villagio present at the rehearing distinguishing between the “condition” of a property and the “use” of a property? Villagio contended that A.R.S. § 33-1242 does not apply to this case at all because the statute addresses violations related to the “condition” of the property. Villagio argued that it notified Mr. Garcia that the “use” of his property violated its short-term rental policy, not that a physical condition of the property was in violation.
7. What two fines were imposed on Mr. Garcia’s account, and on what dates were the notices sent? A fine of $1,000 was posted to Mr. Garcia’s account, with the notice being sent on March 22, 2018. Subsequently, a $2,000 fine was posted to his account for the same violation, and that notice was sent on April 5, 2018.
8. Why did the Judge conclude that Villagio was not obligated to inform Mr. Garcia of his right to petition for an administrative hearing with the state real estate department? The Judge concluded that Villagio was not obligated to provide this information because A.R.S. § 33-1242(D) only requires it if the association fails to provide the unit owner with the process for contesting the notice. Villagio’s notices all contained instructions on how to contest the violation, specifically by filing an appeal with the Board of Directors via a provided website.
9. What was the testimony of Tom Gordon, the Community Manager for Villagio, regarding the association’s policy for contesting a notice? Tom Gordon testified that homeowners are provided with 10 days to contest a notice with Villagio, pursuant to Villagio’s short-term rental policy. When asked if Villagio would have abided by “this statute” (A.R.S. § 33-1242) if Mr. Garcia had responded in twenty-one days, Mr. Gordon replied, “No.”
10. What was the final outcome of both the initial hearing on October 30, 2018, and the rehearing on February 12, 2019? In both the initial hearing and the rehearing, the Administrative Law Judge found that Mr. Garcia failed to establish that Villagio violated A.R.S. § 33-1242. Consequently, Mr. Garcia’s petition was dismissed in both instances, and Villagio was deemed the prevailing party.
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Essay Questions
Develop detailed essay-format answers to the following prompts, drawing evidence and examples exclusively from the provided source documents.
1. Analyze the central arguments presented by both Rogelio A. Garcia and the Villagio at Tempe Homeowners Association regarding the application of ARIZ. REV. STAT. § 33-1242. How did the Administrative Law Judge interpret the statute in relation to these arguments in the final decision?
2. Discuss the concept of “burden of proof” and “preponderance of the evidence” as applied in this case. Explain how Mr. Garcia’s failure to meet this burden led to the dismissal of his petition in both the initial hearing and the rehearing.
3. Trace the timeline of events from the first notice sent by Villagio on March 8, 2018, to the final order on March 4, 2019. Explain how Mr. Garcia’s actions, or lack thereof, at key moments influenced the legal obligations of the association and the ultimate outcome of the case.
4. Evaluate Villagio’s argument that A.R.S. § 33-1242 applies only to the “condition” of a property and not its “use.” Although the judge’s decision did not ultimately hinge on this point, discuss the potential implications of this distinction in homeowner association disputes.
5. Explain the two distinct procedural paths available to a unit owner after receiving a violation notice as outlined in this case: the association’s internal appeal process and the statutory process under A.R.S. § 33-1242. Why did the path Mr. Garcia chose fail to trigger the statutory protections he sought?
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Glossary
Definition
Administrative Law Judge (ALJ)
The official who presides over the administrative hearing and rehearing, evaluates evidence, and issues a decision. In this case, Velva Moses-Thompson.
ARIZ. REV. STAT. (A.R.S.)
The abbreviation for Arizona Revised Statutes, which are the codified laws of the state of Arizona that regulate condominiums and planned communities.
Arizona Department of Real Estate (Department)
The state agency that has authority over homeowner association disputes and with which homeowners may petition for a hearing.
Burden of Proof
The obligation of a party in a legal proceeding to prove their allegations. In this case, Mr. Garcia bore the burden of proof.
Covenants, Conditions, and Restrictions (CC&Rs)
The governing documents of the Villagio at Tempe Homeowners Association, which contain the short-term lease provisions Mr. Garcia was alleged to have violated.
Office of Administrative Hearings
The venue where the evidentiary hearing and rehearing for this matter were held.
Petitioner
The party who initiates a legal action by filing a petition. In this case, Rogelio A. Garcia.
Preponderance of the Evidence
The standard of proof required in this matter, defined as “The greater weight of the evidence…that has the most convincing force…sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”
Rehearing
A second hearing on a matter, granted in this case at Mr. Garcia’s request after the initial Administrative Law Judge Decision was issued.
Respondent
The party against whom a petition is filed and who must respond to the allegations. In this case, Villagio at Tempe Homeowners Association.
Blog Post – 19F-H1918009-REL-RHG
He Fought His HOA and Followed Their Rules. Here’s Why He Still Lost.
1.0 Introduction: The Dreaded Letter
For many homeowners, it’s a familiar and unwelcome sight: a crisp envelope from the Homeowners Association (HOA) containing a formal, intimidating violation notice. Your first instinct is to act, to follow the instructions, and to fight back against what feels like an unfair accusation. You read the letter, see a process for an appeal, and dutifully follow it, believing you are protecting your rights. But what if the process outlined in the letter isn’t the one that truly matters under the law?
This isn’t a theoretical warning. It’s the hard lesson learned by a real homeowner in Arizona, Rogelio A. Garcia, who took on his HOA, Villagio at Tempe. He believed the association had violated his rights, and unlike many homeowners, he didn’t ignore the notices—he took action. He filed an appeal with the HOA, just as their letter instructed. Yet, he lost his case, not because he was wrong on the facts, but because he fell into a subtle procedural trap, following the HOA’s internal process while missing a separate, more powerful one defined by state law.
This article breaks down the top three legal takeaways from that court decision. It reveals how taking the wrong action can be just as costly as taking no action at all, offering crucial strategic insights for any homeowner facing a dispute with their association.
2.0 Takeaway 1: Your Rights Often Have an ‘On’ Switch You Must Flip First
Mr. Garcia’s primary complaint was that the HOA failed to provide him with the name of the person who reported his alleged violation—a requirement under Arizona statute A.R.S. § 33-1242. On the surface, this seems like a clear-cut right afforded to homeowners.
However, the court revealed a counter-intuitive legal reality. The HOA’s legal obligation to provide the reporter’s name was not automatic. That right only became active—the obligation was only triggered—if the homeowner first took a specific, formal step: sending a written response to the violation notice via certified mail within 21 calendar days. The record was clear that Mr. Garcia did not send such a response to the March 8, March 22, or April 5 notices. This single procedural failure was fatal to his claim.
The judge’s finding on this point was direct and unambiguous:
“Because Mr. Garcia did not respond in the 21 day period, Villagio was not required to provide Mr. Garcia with the first and last name of the person or persons who observed the violation.”
This illustrates a critical principle: your most important legal rights may exist in state law, but they often lie dormant. To activate them, you must flip the “on” switch by taking the precise action required by statute, which may be entirely different from the process described in the HOA’s notice.
3.0 Takeaway 2: An Internal Process Can Legally Replace—and Distract From—a State-Level One
So why would an engaged homeowner like Mr. Garcia, who went so far as to file an appeal, neglect to send the critical 21-day certified letter? The answer lies in the second key takeaway: the HOA’s violation notice offered its own, separate appeal process with a much shorter deadline, creating a critical and costly distraction.
Mr. Garcia’s second major argument was that Villagio violated the law by not informing him of his right to petition for an administrative hearing with the state real estate department. Again, the law contained a crucial nuance. Under A.R.S. § 33-1242(D), an HOA is only required to notify a homeowner of the state hearing option if it fails to provide its own process for contesting the notice. Villagio’s letters did include a process: the homeowner could “file an appeal with the Board of Directors… within 10 days of receipt of this notice.”
Court records show Mr. Garcia followed this path and “filed an appeal with Villagio.” By doing so, he engaged with the HOA on their terms, likely focusing all his energy on meeting that urgent 10-day deadline. Because Villagio provided this internal process, the judge concluded it had met its legal obligation and was not required to inform Mr. Garcia about the alternative state-level hearing. This created a procedural trap: the HOA satisfied its legal requirement by offering an internal process that simultaneously diverted the homeowner’s attention from the more powerful, but less obvious, 21-day statutory deadline that would have unlocked his other rights.
4.0 Takeaway 3: Conflicting Deadlines Can Create a Legal Minefield
During a rehearing, Mr. Garcia argued that the HOA’s communication style effectively “prevented” him from using his full 21-day statutory response window. The notices demanded compliance within 10 days and were sent every 14 days with escalating fines. He felt the rapid succession of notices created a pressure cooker, making it impossible to properly exercise his rights.
The court flatly rejected this argument, highlighting a harsh legal truth. The judge found no evidence that Villagio had explicitly told Mr. Garcia he could not respond or had physically prevented him from sending a certified letter. The issuance of a second notice with a demanding 10-day timeline did not legally nullify the 21-day window he had to respond to the first. When asked directly if he was prohibited by a court order from sending a response, Mr. Garcia answered, “No.”
This reveals a common tactic, whether intentional or not, in HOA disputes. The violation notices contained two conflicting timelines: a prominent, urgent “10 days to comply” demand and the less obvious, but legally superior, 21-day statutory right to respond. This conflict creates confusion and pressure, causing homeowners to focus on the immediate threat (the 10-day deadline) while missing the most important legal one. The court, however, places the burden squarely on the homeowner to navigate this minefield, as feeling pressured is not a legal defense for failing to meet a statutory deadline.
5.0 Conclusion: Know the Rules Before You Play the Game
The case of Mr. Garcia versus the Villagio at Tempe HOA is a powerful reminder that successfully challenging an HOA is not about being “right,” or even about taking action. It is about taking the correct, procedurally perfect action defined by law.
Mr. Garcia was not passive; he engaged and appealed the violation. His case was lost because he followed the path laid out for him by the HOA, not the one laid out for him by state statute. This crucial distinction—between an association’s internal process and the homeowner’s statutory rights—can mean the difference between victory and defeat. Before you act on any violation notice, you must first understand the precise rules of engagement, which may not be written in the notice itself.
If you received a violation notice today, would you know whether the appeal process in the letter is your only option, or a potential distraction from the legal first step required to truly protect your rights?
Case Participants
Petitioner Side
Rogelio A. Garcia(petitioner) Appeared on behalf of himself
Respondent Side
Nathan Tennyson(HOA attorney) Brown Olcott, PLLC
Tom Gordon(community manager) Villagio / AAMAZ Testified as witness for Villagio
Amanda Shaw(property manager/agent) AAM LLC Listed as agent for Villagio at Tempe Homeowners Association
Neutral Parties
Velva Moses-Thompson(ALJ) Office of Administrative Hearings
Judy Lowe(ADRE Commissioner) Arizona Department of Real Estate
The Administrative Law Judge dismissed the petition, ruling that the Petitioner failed to meet the burden of proof that the HOA violated ARS § 33-1803(A). The increase in the regular assessment (14.1%) was below the statutory 20% limit, and the overall increase included a special assessment which the statute does not cover.
Why this result: The Petitioner's definition of 'regular assessment' was rejected as not supported by statutory construction principles, and the issue was limited to the definition and application of ARS § 33-1803(A).
Key Issues & Findings
Whether the HOA violated ARS § 33-1803(A) by increasing the regular assessment more than 20%.
Petitioner alleged that the HOA's total assessment increase of $325 (which was 39.4% over the previous assessment of $825) constituted an unlawful increase of the 'regular assessment' under ARS § 33-1803(A). The HOA argued the increase to the 'regular assessment' was only 14.1% ($116 increase), and the remaining $209 was a separate, one-time assessment.
Orders: Petitioner Brad W. Stevens’s petition is dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
ARIZ. REV. STAT. section 33-1803(A)
ARIZ. ADMIN. CODE § R2-19-119
ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
ARIZ. REV. STAT. section 33-1806
Northwest Fire District v. U.S. Home of Arizona, 215 Ariz. 492 (2007)
Gutierrez v. Industrial Commission of Arizona
State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968)
Deer Valley, v. Houser, 214 Ariz. 293, 296, 152 P.3d 490, 493 (2007)
McNally v. Sun Lakes Homeowners Ass’n #1, Inc., 241 Ariz. 1, 382 P.3d 1216 (2016 App.)
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Analytics Highlights
Topics: HOA Assessment, Statutory Interpretation, Regular Assessment, Special Assessment, ARS 33-1803(A)
Additional Citations:
ARIZ. REV. STAT. section 33-1803(A)
ARIZ. ADMIN. CODE § R2-19-119
ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
ARIZ. REV. STAT. section 33-1806
Northwest Fire District v. U.S. Home of Arizona, 215 Ariz. 492 (2007)
Gutierrez v. Industrial Commission of Arizona
State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968)
Deer Valley, v. Houser, 214 Ariz. 293, 296, 152 P.3d 490, 493 (2007)
McNally v. Sun Lakes Homeowners Ass’n #1, Inc., 241 Ariz. 1, 382 P.3d 1216 (2016 App.)
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Audio Overview
Decision Documents
18F-H1818054-REL-RHG Decision – 692388.pdf
Uploaded 2025-10-08T07:06:21 (102.8 KB)
Briefing Doc – 18F-H1818054-REL-RHG
Briefing Document: Stevens v. Mogollon Airpark, Inc. (Case No. 18F-H1818054-REL-RHG)
Executive Summary
This document summarizes the Administrative Law Judge (ALJ) Decision in the matter of Brad W. Stevens versus Mogollon Airpark, Inc., a case centered on the legality of a homeowner association (HOA) assessment increase. The ALJ, Thomas Shedden, ultimately dismissed the petition filed by Mr. Stevens, finding he failed to prove by a preponderance of the evidence that Mogollon Airpark violated Arizona state law.
The core of the dispute was a $325 increase to the annual assessment for 2018, which represented a 39.4% increase over the previous year’s $825 fee. The petitioner alleged this violated ARIZ. REV. STAT. § 33-1803(A), which prohibits HOAs from increasing a “regular assessment” by more than 20% without member approval. The respondent, Mogollon Airpark, argued the increase was composed of two distinct parts: a 14.1% ($116) increase to the regular assessment to cover a budget shortfall, and a separate $209 one-time “special assessment” to replenish a reserve fund.
The ALJ’s decision rested on a critical interpretation of statutory language, concluding that “regular assessments” and “special assessments” are legally distinct categories. The judge rejected the petitioner’s argument that “regular” refers to the process of an assessment rather than its type, deeming this interpretation contrary to principles of statutory construction and nonsensical. Furthermore, the judge found the petitioner’s legal citations to be inapplicable and confirmed that the scope of the hearing was limited strictly to the alleged violation of the 20% rule, not the HOA’s general authority to levy special assessments.
Case Background and Procedural History
• Parties:
◦ Petitioner: Brad W. Stevens
◦ Respondent: Mogollon Airpark, Inc. (HOA)
• Adjudicating Body: Arizona Office of Administrative Hearings, on behalf of the Arizona Department of Real Estate.
• Presiding Judge: Administrative Law Judge Thomas Shedden.
• Timeline:
◦ June 7, 2018: Mr. Stevens files a single-issue petition with the Department of Real Estate.
◦ September 28, 2018: An initial hearing is conducted on the matter, consolidated with two others.
◦ January 2, 2019: The Department of Real Estate issues a Notice of Rehearing.
◦ February 11, 2019: The rehearing is conducted.
◦ March 1, 2019: The Administrative Law Judge Decision is issued, dismissing the petition.
The matter came before the Office of Administrative Hearings for a rehearing after Mr. Stevens alleged errors of law and an abuse of discretion in the original hearing’s decision.
The Core Dispute: The 2018 Assessment Increase
The central facts of the case revolve around a decision made at a Mogollon Airpark board meeting in November 2017. To address a shortage in its operating budget and to replenish approximately $53,000 borrowed from its reserve fund, the Board approved a two-part increase to its annual fees.
Assessment Component
Previous Year (2017)
2018 Increase
Justification
Percentage Increase
Regular Assessment
+ $116
Cover operating budget shortfall
Special Assessment
+ $209
Replenish reserve fund
Total Assessment
+ $325
Total for 2018
This total 39.4% increase formed the basis of Mr. Stevens’s legal challenge under A.R.S. § 33-1803(A), which limits increases to “regular assessments” to 20% over the preceding fiscal year.
Analysis of Arguments
Petitioner’s Position (Brad W. Stevens)
Mr. Stevens’s case was built on the assertion that the entire $325 increase constituted a single “regular assessment” and was therefore illegal. His key arguments were:
• Definition of “Regular”: He contended that “regular” in the statute refers to the process by which an assessment is created—i.e., one that is “according to rule.” He argued that it does not denote a type of assessment (e.g., recurring vs. one-time).
• Lack of Authority for Special Assessments: Mr. Stevens argued that Mogollon Airpark has no authority to issue special assessments. Therefore, any assessment it imposes, regardless of its label, must legally be considered a “regular assessment.”
• Legal Precedent: He cited Northwest Fire District v. U.S. Home of Arizona to define a “special assessment,” arguing that the $209 charge did not qualify because he received no “particularized benefit” as required by that case. He also presented definitions from Black’s Law Dictionary.
Respondent’s Position (Mogollon Airpark, Inc.)
Mogollon Airpark’s defense was straightforward and relied on the distinction between the two components of the assessment increase:
• Statutory Limitation: The respondent argued that A.R.S. § 33-1803(A) applies only to “regular assessments.”
• Compliance with Statute: The increase to the regular assessment was $116, a 14.1% rise over the previous year’s $825 fee. This amount is well within the 20% statutory limit.
• Distinct Nature of Assessments: The $209 charge was a separate, one-time “special assessment” intended for a specific purpose (replenishing the reserve fund) and is not subject to the 20% limitation governing regular assessments.
Administrative Law Judge’s Findings and Conclusions
The ALJ systematically dismantled the petitioner’s arguments, finding they were not supported by evidence or principles of statutory construction.
Rejection of Petitioner’s Statutory Interpretation
• The ALJ found that Mr. Stevens’s definition of “regular” as referring to the assessment process was an insupportable interpretation. If all validly passed assessments were “regular,” the word “regular” in the statute would be “void, inert, redundant, or trivial.”
• To support this conclusion, the decision points to A.R.S. § 33-1806, where the legislature explicitly references “regular assessments” and “special assessment[s],” demonstrating a clear intent to treat them as different types of assessments.
• The judge characterized the petitioner’s logic as leading to a “nonsensical result.” Under Mr. Stevens’s reasoning, an unauthorized special assessment would become a valid regular assessment, a position deemed not to be a “sensible interpretation of the statute.” A more reasonable conclusion, the judge noted, would be that an unauthorized assessment is simply void.
Misapplication of Legal Precedent
• The petitioner’s reliance on Northwest Fire District was deemed “misplaced.” The judge clarified that this case applies to special taxing districts created under ARIZ. REV. STAT. Title 48, a legal framework that does not govern an HOA like Mogollon Airpark.
Scope of the Hearing and Burden of Proof
• The ALJ emphasized that the hearing was limited by the petitioner’s “single-issue petition.” The only question properly before the tribunal was whether A.R.S. § 33-1803(A) had been violated.
• Consequently, the broader question of whether Mogollon Airpark’s bylaws grant it the authority to impose special assessments was “not at issue.” This rendered the various definitions of “special assessment” offered by Mr. Stevens as having “no substantial probative value” to the case at hand.
• The final legal conclusion was that Mr. Stevens, who bore the burden of proof, failed to show by a “preponderance of the evidence” that Mogollon Airpark violated the statute.
Final Order and Disposition
Based on the findings and conclusions, the Administrative Law Judge ordered the following:
• Order: The petition of Brad W. Stevens is dismissed.
• Prevailing Party: Mogollon Airpark, Inc. is deemed the prevailing party.
• Binding Nature: The decision, issued as a result of a rehearing, is binding on the parties.
• Appeal Process: Any appeal must be filed for judicial review with the superior court within thirty-five days from the date the order was served.
The ALJ ruled that Mogollon Airpark, Inc. violated A.R.S. § 33-1803(A) by charging a $25 late fee, as the statutory limit applies to all assessments,. However, the ALJ found no violation regarding the $325 assessment increase because the $209 portion was a special assessment and the remaining regular increase did not exceed the 20% limit,,.
Why this result: The Petitioners' primary loss on the assessment cap issue was due to a failed legal interpretation that 'regular assessment' encompasses all assessments, a view the ALJ found would render statutory language redundant,.
Key Issues & Findings
Challenge to $325 Assessment Increase (Docket 029-RHG)
Petitioner Brown argued that 'regular assessment' refers to the procedure (motion, second, vote) and thus the entire $325 increase should be subject to the 20% cap,. The ALJ rejected this, finding that $116 was a regular increase (14.1%) and $209 was a special assessment, to which the cap did not apply,.
Orders: Petition in Docket No. 18F-H1818029-REL-RHG is dismissed.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 33-1803(A)
Deer Valley v. Houser
Excessive Late Fee and Interest (Docket 045)
Petitioner Brown alleged that the $25 late charge and interest rate exceeded the limits of A.R.S. § 33-1803(A). The ALJ ruled that the statutory limit on late fees applies to all 'assessments', not just 'regular assessments', and found the HOA in violation,.
Orders: Respondent must rescind the $25 late fee and pay Petitioner his $500 filing fee within thirty days.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1803(A)
U.S. Parking Sys v. City of Phoenix
Challenge to $325 Assessment Increase (Docket 054 & Rehearing)
Petitioner Stevens argued the entire $325 must be a regular assessment because the HOA lacked authority to impose special assessments or used deceptive accounting to justify the increase,,. The ALJ found that 'regular assessment' is a specific type of assessment and the $116 increase (14.1%) did not exceed the cap,,.
Orders: Petition in Docket No. 18F-H1818054-REL and the subsequent rehearing are dismissed,.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 33-1803(A)
A.R.S. § 33-1806
Northwest Fire District v. U.S. Home of Arizona
Analytics Highlights
Topics: Assessment Increase Cap, Regular Assessment vs Special Assessment, Late Fee Limit, Statutory Construction, Accounting Impropriety Allegations, Rehearing, Consolidated Matter
Additional Citations:
A.R.S. § 33-1803(A)
A.R.S. § 33-1806
A.R.S. § 32-2199.02(B)
A.R.S. Title 32, Ch. 20, Art. 11
A.A.C. § R2-19-119
Deer Valley v. Houser, 214 Ariz. 293, 296, 152 P.3d 490, 493 (2007)
U.S. Parking Sys v. City of Phoenix, 160 Ariz. 210, 211, 772 P.2d 33, 34 (App. 1989)
McNally v. Sun Lakes Homeowners Ass’n #1, Inc., 241 Ariz. 1, 382 P.3d 1216 (2016 App.)
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Gutierrez v. Industrial Commission of Arizona
State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968)
Northwest Fire District v. U.S. Home of Arizona, 215 Ariz. 492 (2007)
Decision Documents
18F-H1818054-REL Decision – 666285.pdf
Uploaded 2025-12-19T15:21:24 (151.9 KB)
18F-H1818054-REL Decision – 672623.pdf
Uploaded 2025-12-19T15:21:25 (144.6 KB)
Case Participants
Petitioner Side
Warren R. Brown(petitioner) Appeared on his own behalf
Brad W. Stevens(petitioner) Appeared on his own behalf and testified
Respondent Side
Gregory A. Stein(respondent attorney) CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP Counsel for Respondent, referred to as Greg Stein in rehearing
Mark K. Sahl(respondent attorney) CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP Counsel for Respondent (also spelled Sahl/Saul)
Neutral Parties
Thomas Shedden(ALJ) Office of Administrative Hearings
Judy Lowe(commissioner) Arizona Department of Real Estate
