The petition was dismissed as the Petitioner failed to prove by a preponderance of the evidence that the Association violated CC&R section 7.1(C) or ARIZ. REV. STAT. section 33-1248. The rule limiting sign use was deemed reasonable.
Why this result: Petitioner failed to meet the burden of proof on both issues.
Key Issues & Findings
Alleged unreasonable discrimination in adopting rules regarding common elements (monument sign)
Petitioner alleged the Association violated CC&R 7.1(C) by adopting a rule limiting the use of the common element monument sign to only owners in Building B, arguing this was unreasonable discrimination against Building A owners.
Orders: Petition dismissed for this issue.
Filing fee: $250.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
CC&R section 7.1(C)
CC&R section 6.26(a)
ARIZ. REV. STAT. section 33-1217
Alleged open meeting law violation at the June 10, 2020 Board meeting
Petitioner alleged the Board violated open meeting laws by communicating via email and reaching a decision prior to the June 10, 2020 meeting, claiming the President called for a vote without discussion.
Orders: Petition dismissed for this issue.
Filing fee: $250.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
ARIZ. REV. STAT. section 33-1248
Analytics Highlights
Topics: Condominium, Commercial HOA, Signage rules, Open meeting law, Discrimination
Additional Citations:
ARIZ. REV. STAT. section 33-1248
CC&R section 7.1(C)
ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
ARIZ. ADMIN. CODE § R2-19-119
ARIZ. REV. STAT. § 41-1092.07(F)(6)
Video Overview
Audio Overview
Decision Documents
21F-H2120003-REL Decision – 837073.pdf
Uploaded 2026-01-23T17:34:29 (103.9 KB)
Briefing Doc – 21F-H2120003-REL
Smith v. Sierra Foothills Condominium Association: A Briefing on the Monument Sign Dispute
Executive Summary
This briefing document synthesizes two Administrative Law Judge (ALJ) decisions concerning a dispute between Keith D. Smith, a commercial condominium unit owner, and the Sierra Foothills Condominium Association. The core of the dispute is a rule enacted by the Association on June 10, 2020, which restricts the use of a common element monument sign exclusively to unit owners in one of the property’s two buildings.
Mr. Smith filed a petition alleging two primary violations:
1. Unreasonable Discrimination: The sign rule violated the Association’s Covenants, Conditions, and Restrictions (CC&Rs) by unfairly discriminating against owners in his building.
2. Open Meeting Law Violation: The Association’s Board violated state open meeting laws by allegedly deciding on the rule via email before the public meeting and calling for a vote without discussion.
The Administrative Law Judge dismissed Mr. Smith’s petition in an initial decision on November 16, 2020, and again after a rehearing in a final decision on June 3, 2021. The judge concluded that Mr. Smith failed to meet his burden of proof on both claims. The sign rule was deemed a reasonable measure to address the differing visibility and street frontage of the two buildings. The allegation of an open meeting law violation was dismissed due to a lack of substantial evidence from the petitioner and credible contradictory testimony from the Association’s representatives.
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Case Overview
This matter was adjudicated by the Office of Administrative Hearings for the Arizona Department of Real Estate. The case involves a petition filed by a unit owner against his condominium association regarding rules governing common elements.
July 24, 2020: Petition filed by Keith D. Smith. October 26, 2020: Original hearing conducted. November 16, 2020: Initial decision issued, dismissing the petition. June 3, 2021: Rehearing decision issued, reaffirming dismissal.
Central Issues and Allegations
The dispute centered on a monument sign with space for only five businesses at a commercial condominium property consisting of two buildings, Building A and Building B.
1. The Monument Sign Rule (CC&R Violation)
At a meeting on June 10, 2020, the Association’s Board adopted a rule limiting the use of the monument sign to unit owners in Building B. Mr. Smith, an owner in Building A, alleged this violated the Association’s governing documents.
• Petitioner’s Allegations:
◦ The rule violates CC&R Section 7.1(C), which states that rules “shall not unreasonably discriminate among Owners and Occupants.”
◦ The rule violates the principle of CC&R Section 6.26(a), which requires use restrictions within Article 6 of the CC&Rs to be applicable to all occupants.
◦ As an owner, Mr. Smith holds an undivided interest in the common elements, meaning no owner should have exclusive use of the sign. He argued the rule amounted to an improper “partition” of a common element.
• Respondent’s Position:
◦ The rule is reasonable and non-discriminatory because it addresses a fundamental inequity in property layout: Building A has street frontage for signage, while Building B does not.
◦ The limited space on the monument sign (five slots) necessitates a managed approach to its use.
◦ While initially questioning if the sign was a common element, the Association waived this argument by acknowledging it as such in its official answer.
2. The June 10, 2020 Board Meeting (Open Meeting Law Violation)
Mr. Smith alleged that the Board’s conduct during the meeting at which the rule was passed violated Arizona’s open meeting law, specifically ARIZ. REV. STAT. section 33-1248.
• Petitioner’s Allegations:
◦ The Association’s president called for a vote on the new rule “without discussion,” implying a decision had already been made.
◦ Mr. Smith asserted that Board members must have “Obviously communicated with each other via email and reached their decision without ever hearing my argument.”
• Respondent’s Position:
◦ Association President Stuart Rayburn and witness Harold Bordelon provided “credible testimony” that a “protracted discussion lasting about an hour and a half” occurred before the vote.
◦ They testified that Mr. Smith himself spoke for approximately twenty minutes during this discussion.
Evidence and Proposed Solutions
• Petitioner’s Evidence: Mr. Smith testified on his own behalf and submitted an email from the City of Phoenix regarding signage rules. He also presented two estimates for altering the monument sign to accommodate more businesses—one by reducing the size of existing signs (which he offered to fund) and another by enlarging the monument itself.
• Respondent’s Evidence: The Association presented testimony from its president, Stuart Rayburn, and Harold Bordelon. They submitted Section 705 of the City of Phoenix’s Zoning Ordinance, which they argued showed flexibility in the sign code. Mr. Bordelon testified that some of Mr. Smith’s proposed alterations to the sign did not comply with the city code.
Administrative Law Judge’s Rulings and Rationale
The ALJ’s decisions in both the original hearing and the rehearing were consistent, leading to the dismissal of Mr. Smith’s petition. The core rationale rested on the petitioner’s failure to meet the required burden of proof.
Original Decision (November 16, 2020)
The initial ruling found decisively in favor of the Association.
• On the CC&R Violation: The ALJ concluded that Mr. Smith did not prove a violation of CC&R Section 7.1(C) for two primary reasons:
1. The rule was not unreasonable, as it rationally addressed the physical disadvantage of Building B, which “does not have street frontage,” compared to Building A, which does.
2. Mr. Smith’s reliance on CC&R Section 6.26(a) was misplaced, as “by its express terms, CC&R section 6.26 applies only to CC&R Article 6, and not Article 7,” where the Board’s authority to make rules resides.
• On the Open Meeting Law Violation: The ALJ found the allegation unsupported.
◦ Mr. Smith “offered no substantial evidence” for his claim of pre-meeting communication.
◦ His testimony that the Board called for a vote “without discussion is proven to be in error” based on credible opposing testimony.
Rehearing Decision (June 3, 2021)
Mr. Smith requested a rehearing on several grounds, including alleged irregularities, errors of law, and claims that the findings were arbitrary or not supported by evidence. The ALJ granted the rehearing but ultimately reaffirmed the original decision.
• Scope of the Rehearing: The judge clarified that the rehearing was limited to the two original issues and could not consider new evidence or allegations not raised in the initial petition.
◦ Evidence that Mr. Smith claimed to have (an email supporting the open meeting violation) was not considered because it was not offered at the original hearing.
◦ Arguments related to new statutes (e.g., ARIZ. REV. STAT. section 33-1217 on partitioning common elements) were dismissed as they were not part of the original petition.
• Reaffirmation of Rulings:
◦ The judge reiterated that CC&R Section 6.26(a) explicitly limits its effect to Article 6. He noted that Mr. Smith himself had argued the CC&Rs “should be read and applied as one continuous document unless the document clearly states otherwise,” which it did in this case.
◦ The conclusion that the sign rule was reasonable was upheld.
◦ The dismissal of the open meeting law claim was reaffirmed, as Mr. Smith still presented no substantial evidence, instead relying on a “rhetorical question” about how a vote could be called without prior communication.
Key Legal Standards Applied
The ALJ’s decisions were guided by specific legal principles and administrative codes.
Standard
Application in the Case
Burden of Proof
The Petitioner, Keith D. Smith, bore the burden to prove his allegations by a “preponderance of the evidence.” The ALJ concluded this standard was not met.
Preponderance of the Evidence
Defined as evidence with the “most convincing force” that is sufficient to “incline a fair and impartial mind to one side of the issue rather than the other.”
Substantial Evidence
The standard required for an ALJ’s decision, defined as evidence a “reasonable mind would use to reach a conclusion.”
Scope of Adjudication
The hearing and subsequent decisions were strictly limited to the issues formally raised and paid for in the original petition, pursuant to ARIZ. REV. STAT. § 41-1092.07(F)(6).
Admissibility of Evidence
Evidence not presented at the original hearing cannot be considered in a rehearing, as established by ARIZ. ADMIN. CODE § R2-19-115.
Study Guide – 21F-H2120003-REL
Study Guide: Smith v. Sierra Foothills Condominium Association
This guide provides a comprehensive review of the administrative case Keith D. Smith v. Sierra Foothills Condominium Association, based on the initial Administrative Law Judge Decision and the subsequent Decision on Rehearing. It is designed to test and deepen understanding of the facts, legal arguments, and outcomes of the proceedings.
Quiz: Short Answer Questions
Instructions: Answer the following questions in 2-3 sentences based on the provided case documents.
1. Who were the primary parties in this case, and what were their respective roles?
2. What were the two central allegations Keith D. Smith made against the Sierra Foothills Condominium Association in his petition?
3. What specific action did the Association’s Board take on June 10, 2020, that initiated this dispute?
4. What justification did the Association provide for creating a rule that exclusively benefited the owners of units in Building B?
5. On what grounds did the Administrative Law Judge (ALJ) reject Mr. Smith’s argument that the sign rule violated CC&R section 6.26(a)?
6. What was the “preponderance of the evidence” standard, and who bore the burden of meeting it in this case?
7. Why was Mr. Smith’s allegation of an open meeting law violation dismissed in the original hearing?
8. What were the primary grounds Mr. Smith cited when requesting a rehearing of the initial decision?
9. In the rehearing, Mr. Smith mentioned having an email that supported his open meeting law claim. Why did the ALJ refuse to consider this evidence?
10. What was the final outcome of both the original hearing on October 26, 2020, and the subsequent rehearing decision on June 3, 2021?
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Quiz Answer Key
1. The primary parties were Keith D. Smith, the Petitioner, and the Sierra Foothills Condominium Association, the Respondent. Mr. Smith, an owner of a unit in Building A, filed a petition alleging violations by the Association, which manages the common elements of the condominium complex.
2. Mr. Smith alleged that the Association had violated CC&R section 7.1(C) by creating an unreasonable and discriminatory rule. He also alleged a violation of the open meeting law, ARIZ. REV. STAT. section 33-1248, claiming the Board made its decision before the public meeting.
3. On June 10, 2020, the Association’s Board adopted a new rule regarding the monument sign, a common element. This rule limited the use of the sign, which had space for only five businesses, to the owners of units located in Building B.
4. The Association argued the rule was reasonable because Building A has street frontage where signs can be hung, providing visibility. In contrast, Building B lacks street frontage, making the monument sign a critical advertising tool for its occupants.
5. The ALJ rejected the argument because the text of CC&R section 6.26(a) explicitly states its applicability is limited to the restrictions “contained in this Article 6.” The disputed rule was created under the authority of Article 7, so the non-discrimination clause of Article 6 did not apply.
6. The “preponderance of the evidence” is the standard of proof requiring that the evidence be of greater weight and more convincing force, inclining a fair mind to one side of the issue. In this administrative hearing, the Petitioner, Keith D. Smith, bore the burden of proof to show the alleged violations occurred by this standard.
7. The allegation was dismissed due to a lack of substantial evidence. Mr. Smith acknowledged he had no emails to support his claim of prior communication, and the credible testimony of Stuart Rayburn and Harold Bordelon established that a lengthy discussion did occur at the meeting before the vote was taken.
8. Mr. Smith requested a rehearing on several grounds, including alleged irregularity in the proceedings, abuse of discretion by the ALJ, errors of law (such as in the admission or rejection of evidence), and that the decision was arbitrary, capricious, and not supported by the evidence.
9. The ALJ refused to consider the email because evidence must be presented during the original hearing. Since Mr. Smith did not offer the document at the October 26, 2020 hearing, it could not be introduced for the first time in a request for a rehearing.
10. In both the original hearing decision (November 16, 2020) and the rehearing decision (June 3, 2021), Keith D. Smith’s petition was dismissed. The ALJ consistently found that Mr. Smith had failed to meet his burden of proof for both the CC&R violation and the open meeting law violation.
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Essay Questions
Instructions: Formulate detailed responses to the following prompts, synthesizing evidence and arguments from both administrative decisions.
1. Analyze the legal reasoning employed by Administrative Law Judge Thomas Shedden to conclude that the monument sign rule was not an “unreasonable” discrimination among owners under CC&R section 7.1(c).
2. Trace the evolution of Keith D. Smith’s open meeting law allegation from his initial petition through his request for rehearing. Discuss the specific evidence presented (or lack thereof) and explain why the ALJ found his claims unconvincing at every stage.
3. Explain the concept of procedural limitations in administrative hearings, using Mr. Smith’s case as an example. Focus on why the ALJ could only consider two issues, why new evidence was rejected on rehearing, and why other “perceived deficiencies” were not addressed.
4. Discuss the significance of the “common elements” in this dispute. How did Mr. Smith’s claim of an “undivided interest” in the monument sign contrast with the Association’s right to regulate its use, and how was this conflict ultimately resolved by the ALJ?
5. Evaluate the arguments presented regarding CC&R section 6.26(a). Explain Mr. Smith’s interpretation of the clause and the ALJ’s contrary interpretation based on the explicit text of the document.
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An official who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions. In this case, the ALJ was Thomas Shedden.
ARIZ. REV. STAT.
Abbreviation for Arizona Revised Statutes, which are the codified laws of the state of Arizona. Sections 33-1248 (open meeting law) and 33-1217 (partition of common elements) were cited.
Burden of Proof
The obligation on a party in a legal case to prove their allegations. In this matter, the burden of proof was on the Petitioner, Keith D. Smith.
CC&Rs (Covenants, Conditions & Restrictions)
The governing legal documents that set up the guidelines for a planned community or condominium. The key sections in this case were 6.10, 6.24, 6.26(a), and 7.1(c).
Common Elements
Parts of a condominium property that are owned in common by all unit owners and managed by the association. The monument sign was acknowledged by the Association as a common element.
Monument Sign
A freestanding sign at the property entrance that was the central subject of the dispute. It had space for only five businesses to advertise.
Office of Administrative Hearings (OAH)
The state agency where the hearings for this case were conducted.
Open Meeting Law
A state statute (ARIZ. REV. STAT. section 33-1248) requiring that meetings of governing bodies, like an HOA board, be conducted in public with proper notice and opportunity for member input.
Petitioner
The party who files a petition initiating a legal or administrative action. In this case, Keith D. Smith.
Preponderance of the Evidence
The standard of proof in this case, defined as evidence that has the most convincing force and is sufficient to incline a fair and impartial mind to one side of an issue over the other.
Rehearing
A second hearing of a case to reconsider the initial decision, typically granted on specific grounds such as procedural error or a decision contrary to evidence. Mr. Smith’s request for rehearing was granted but the original decision was upheld.
Respondent
The party against whom a petition is filed. In this case, the Sierra Foothills Condominium Association.
Substantial Evidence
Evidence that a reasonable mind would use to reach a conclusion. The ALJ found that Mr. Smith offered no substantial evidence for his open meeting law claim.
Waived
The voluntary relinquishment of a known right or argument. The Association waived its argument that the monument sign was not a common element by acknowledging that it was in its official Answer.
Blog Post – 21F-H2120003-REL
I Read a 17-Page HOA Lawsuit Over a Sign. Here Are 5 Surprising Lessons for Every Homeowner.
Introduction: The Signpost to a Bigger Story
For anyone living in a community with a Homeowner or Condominium Association, the rulebook can feel like a source of endless frustration. The rules often seem complex, arbitrary, and difficult to challenge. But what really happens when an owner decides to fight back?
I recently analyzed the initial ruling and final rehearing decision—17 pages in all—from just such a fight: a formal petition filed by Keith D. Smith against the Sierra Foothills Condominium Association. This wasn’t a residential dispute over lawn ornaments or paint colors; it was a commercial conflict over who was allowed to use a single monument sign. But within this seemingly small micro-drama are universal lessons that are shockingly relevant to any owner navigating a dispute with their association.
Here are five surprising lessons from Mr. Smith’s legal battle that every owner should understand.
1. Read the Fine Print. No,ReallyRead It.
Mr. Smith’s primary argument was one of unfair discrimination. He owned a unit in Building A and was prohibited from using the monument sign, a common element, while owners in Building B were allowed to use it. He pointed to a specific rule in the governing documents, CC&R section 6.26(a), which stated that use restrictions must be applicable to all owners. This seemed like a clear-cut case of the board violating its own rules.
He lost. The reason was a tiny but critical detail in the fine print. The judge found that the non-discrimination clause Mr. Smith cited explicitly stated it only applied to rules “contained in this Article 6.” The board’s authority to create the sign rule came from a different section entirely, “Article 7,” specifically section 7.1(c), which did not contain the same mandate for equal application.
The judge’s finding on the rehearing was conclusive:
“Section 6.26(a) provides that the use restrictions ‘contained in this Article 6’ are applicable to all owners. Consequently, section 6.26(a) cannot be read to require that rules promulgated under section 7.1(c) must apply to all owners.”
The specific structure and wording of your governing documents are paramount. An assumption about a rule’s general intent is not enough. A single phrase—like “in this Article 6″—can make or break an entire legal argument.
2. What Feels Unfair Isn’t Always Legally “Unreasonable”
From Mr. Smith’s perspective, the situation was fundamentally unfair. As a property owner, he had an undivided interest in all common elements, including the monument sign. To be completely excluded from using it felt like a violation of his ownership rights.
However, the Association and the judge saw it differently. The rule was deemed legally “reasonable” for two logical and practical reasons:
1. The sign had a very limited number of spaces—only five businesses could be advertised.
2. Building A, where Mr. Smith’s unit was located, had valuable street frontage where businesses could place their own signs. Building B, in contrast, had no street frontage, making the monument sign the primary and essential tool for visibility for those businesses.
This is where the fine print from the first lesson comes roaring back. The judge noted that the board’s authority under section 7.1(c) “on its face allows discrimination among owners” as long as it wasn’t unreasonable. The specific language of the documents gave the board the explicit power to treat owners differently, provided there was a rational basis—which, in this case, there was. In association disputes, the legal standard is often “reasonableness,” which is evaluated based on context and logic, not just an individual’s feeling of fairness.
3. Suspecting a “Secret Meeting” Isn’t Enough to Prove It
Mr. Smith also alleged that the board violated the open meeting law. He claimed that when the sign issue came up at the board meeting, the president immediately called for a vote without any discussion. This led him to believe the decision had already been made in secret via email.
In his petition, he stated his certainty in plain terms:
“Obviously, the board members communicated with each other via email and reached their decision without ever hearing my argument.”
This claim failed completely. At the hearing, Mr. Smith acknowledged that he had no emails or other documents to support his allegation. Furthermore, the Association’s president and another member presented “credible testimony” that, contrary to Mr. Smith’s recollection, a “protracted” discussion lasting about an hour and a half had, in fact, taken place before the vote was called.
An accusation, no matter how “obvious” it seems to you, is not evidence. To successfully challenge an association’s procedure, you must provide proof. Suspicion and personal interpretation of events are not enough to win a legal claim.
4. Your First Shot Is Often Your Only Shot
After the judge dismissed his initial petition, Mr. Smith filed for a rehearing. In this new request, he tried to introduce new arguments and evidence to bolster his case. Specifically, he raised:
• A brand-new claim that the sign rule violated a state statute (ARIZ. REV. STAT. section 33-1217) concerning the partitioning of common elements.
• A reference to an email he now claimed to possess that would support his open meeting law violation argument.
The judge flatly rejected these new points. The reason was purely procedural: the rules of the legal process require all claims and evidence to be presented in the initial petition and at the original hearing. You cannot hold arguments in reserve to see how the first ruling goes.
The judge’s decision was unequivocal:
“Consequently, evidence that Mr. Smith did not present at the original hearing cannot be considered in this rehearing.”
The legal process is not flexible. You must build your entire case and present all your evidence from the very beginning. Your first shot is often your only shot.
5. The Burden of Proof Is on the Accuser
This may be the most crucial lesson of all. In a dispute like this, the legal responsibility, or “burden of proof,” was on Mr. Smith to prove that the Association had acted improperly. It was not the Association’s job to prove its innocence.
The standard he had to meet was “a preponderance of the evidence.” The judge’s decision included a formal definition of this standard, which clearly explains the high bar an accuser must clear:
“The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”
Ultimately, the judge concluded that Mr. Smith “did not prove” that either of his claims met this standard. His feelings of unfairness and his suspicions of improper procedure were not supported by superior evidentiary weight, and his petition was dismissed. If you decide to formally challenge your association, you are the accuser, and you carry the burden of proof.
Conclusion: Know the Rules of the Game
A seemingly minor dispute over a commercial sign reveals fundamental truths about navigating any rule-based organization, especially an HOA or Condo Association. The outcome hinged on the precise language of the documents, the legal definition of “reasonable,” the high bar for proving misconduct, and the rigid procedures of the hearing process. Mr. Smith’s case serves as a powerful reminder that to successfully challenge the rules, you must first master the rules of the game.
This entire conflict hinged on the specific wording of a few sentences in a thick rulebook. When was the last time you truly read the documents that govern your own community, and what crucial details might be hiding in plain sight?
Case Participants
Petitioner Side
Keith D Smith(petitioner) Appeared on his own behalf; Unit Owner
Respondent Side
Stuart Rayburn(association president) Sierra Foothills Condominium Association Representative for Respondent
Harold Bordelon(witness) Sierra Foothills Condominium Association Testified for the Association
Neutral Parties
Thomas Shedden(ALJ) Office of Administrative Hearings
Judy Lowe(commissioner) Arizona Department of Real Estate Recipient of transmission
LDettorre(ADRE staff) Arizona Department of Real Estate Recipient of transmission (email handle)
AHansen(ADRE staff) Arizona Department of Real Estate Recipient of transmission (email handle)
djones(ADRE staff) Arizona Department of Real Estate Recipient of transmission (email handle)
DGardner(ADRE staff) Arizona Department of Real Estate Recipient of transmission (email handle)
ncano(ADRE staff) Arizona Department of Real Estate Recipient of transmission (email handle)
The Administrative Law Judge concluded that the Association's conduct did not violate ARIZ. REV. STAT. § 33-1805 because the Petitioner did not prove by a preponderance of the evidence that the requested records were in existence and subject to disclosure.
Why this result: Petitioner failed to establish that the requested records (communications) were in existence and subject to disclosure.
Key Issues & Findings
Failing to fulfill Petitioner’s records request
Petitioner claimed the HOA failed to provide copies of all communications (written/electronic) related to information requests, open meeting law compliance, and changes to bylaws, arguing they were not exempt from disclosure under ARIZ. REV. STAT. § 33-1805(B). The HOA asserted no disclosable records existed.
Orders: Petitioner's petition and request for civil penalty are denied. Respondent shall not reimburse Petitioner's filing fee.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
ARIZ. REV. STAT. § 33-1805
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199.02(A)
Analytics Highlights
Topics: HOA Records Request, Records Disclosure, ARIZ. REV. STAT. 33-1805, Burden of Proof, Preponderance of Evidence
Additional Citations:
ARIZ. REV. STAT. § 33-1805
ARIZ. REV. STAT. § 32-2199 et al.
ARIZ. REV. STAT. § 32-2199.01
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 41-1092
Video Overview
Audio Overview
Decision Documents
21F-H2120006-REL Decision – 834142.pdf
Uploaded 2026-01-23T17:34:55 (147.6 KB)
Briefing Doc – 21F-H2120006-REL
Administrative Law Judge Decision: Kupel vs. Hidden Valley Association
Executive Summary
The Administrative Law Judge (ALJ) for the Arizona Office of Administrative Hearings denied a petition filed by homeowner Douglas E. Kupel against the Hidden Valley Association (HVA). The core of the dispute was Kupel’s allegation that HVA violated Arizona statute ARIZ. REV. STAT. § 33-1805 by failing to completely fulfill a comprehensive records request. While HVA provided its records retention policy and legal invoices, it withheld two categories of electronic and hard copy communications, claiming no such disclosable records existed.
Kupel argued that statements made in emails by HVA Board President Gary Freed—specifically that certain communications would be “filed as an HVA business record”—proved the existence of the requested records. HVA countered that this statement was a mistake on Freed’s part, resulting from an initial misunderstanding of retention requirements, and that no records subject to disclosure actually existed.
The ALJ ultimately concluded that Kupel failed to meet the “preponderance of the evidence” standard required to prove his claim. The judge found that the evidence presented was not sufficient to prove that the requested records existed and were being improperly withheld. Consequently, the petition was denied, and Kupel’s requests for reimbursement of his filing fee and the imposition of a civil penalty against HVA were also denied.
Case Overview
Case Name
Douglas E Kupel, Petitioner, vs. Hidden Valley Association, Respondent
Case Number
21F-H2120006-REL
Jurisdiction
Arizona Office of Administrative Hearings (OAH)
Presiding Judge
Administrative Law Judge Adam D. Stone
Hearing Date
October 22, 2020
Decision Date
October 30, 2020
Key Parties
Douglas E. Kupel (Petitioner), Hidden Valley Association (Respondent), Gary Freed (HVA Board President)
Core Dispute: The Records Request
The central issue of the hearing was whether the Hidden Valley Association violated ARIZ. REV. STAT. § 33-1805 by failing to fully comply with a records request submitted by Kupel on June 22, 2020. HVA, through its community manager HOAMCO, provided a partial response on July 1, 2020.
Breakdown of the Records Request:
• Request 1 (Fulfilled): A copy of the HVA records retention policy adopted on January 15, 2020.
• Request 2 (Denied): Copies of all communications (email and hard copy) to or from current and former HVA Board and committee members regarding “information requests or open meeting law compliance” from July 2019 to the present.
• Request 3 (Denied): Copies of all communications (email and hard copy) to or from current and former HVA Board and committee members regarding any proposed, discussed, or adopted changes to the Association bylaws from January 2019 to the present.
• Request 4 (Fulfilled): Copies of invoices, billing statements, and payment records for legal services associated with revisions to the Association bylaws from January 2019 to the present.
HVA and its President, Gary Freed, asserted that the denied communications were not subject to disclosure under the exceptions outlined in ARIZ. REV. STAT. § 33-1805(B).
Petitioner’s Position and Evidence (Douglas E. Kupel)
• Allegation: Kupel accused HVA of willfully failing to fulfill his request, alleging that non-exempt records did exist and should have been disclosed.
• Primary Evidence: Kupel submitted several email messages from HVA President Gary Freed which contained the statement: “This communication has been received, and will be filed as an HVA business record in the files maintained by HOAMCO for the benefit of HVA” or substantially similar language.
• Argument: Kupel testified that these emails proved the existence of communications that did not meet the statutory exclusions and, therefore, HVA had failed to fully respond to his request.
• Requested Relief:
1. An order compelling HVA to abide by ARIZ. REV. STAT. § 33-1805.
2. Reimbursement of the $500 filing fee.
3. The levying of a civil penalty against HVA.
Respondent’s Position and Evidence (Hidden Valley Association)
• Witness Testimony: HVA Board President Gary Freed testified on behalf of the association.
• Core Defense: Freed testified that based on HVA’s records retention policy and his understanding of open meeting laws, “no records existed which were subject to disclosure.”
• Explanation of Contested Emails: Freed explained that his prior email statements about filing all communications were a mistake. He testified that he initially believed all communications needed to be retained but later learned this was incorrect.
• Search Process: Freed admitted that neither he nor other board members conducted a one-by-one search of every single email. However, he testified that he “may have scanned his personal e-mail” and did not dismiss the petitioner’s request “out-of-hand.”
• Association Practices: Freed asserted that HVA business was conducted via open meetings, with the exception of a single emergency situation, implying that no discoverable email correspondence regarding official business would exist.
Administrative Law Judge’s Analysis and Conclusion
The ALJ’s decision rested on the legal standard of “preponderance of the evidence,” defined as proof convincing the trier of fact that a contention is more probably true than not. The petitioner, Kupel, bore the burden of meeting this standard.
• Evaluation of Evidence: The judge found Kupel’s primary argument unpersuasive. The decision states, “Essentially, Petitioner is claiming that there must be other records in existence because of the language that Mr. Freed used… This is not persuasive as there was no evidence presented by Petitioner to prove that the records were in existence.”
• Credibility of Testimony: The judge gave weight to Freed’s testimony that he had been mistaken about record-keeping protocols. The decision also noted that HVA’s official records retention policy, adopted six months prior to the request, specifically outlined which communications were to be kept.
• Lack of Proof: The judge concluded that Freed believed any documents that might have existed were subject to statutory exemptions and that all relevant business was conducted in open meetings. Ultimately, Kupel failed to provide sufficient proof that discoverable records actually existed.
• Final Ruling: The ALJ concluded that “the Association’s conduct, as outlined above, did not violate the charged provisions of ARIZ. REV. STAT. § 33-1805.”
Final Order
Based on the findings of fact and conclusions of law, the Administrative Law Judge issued the following orders:
Outcome
Petitioner’s Petition
Denied
Request for Civil Penalty
Denied
Reimbursement of Filing Fee
Denied (Respondent shall not reimburse Petitioner’s fee)
The decision is binding on the parties unless a request for rehearing is filed with the Commissioner of the Arizona Department of Real Estate within thirty days of the order’s service.
Study Guide – 21F-H2120006-REL
Study Guide: Kupel v. Hidden Valley Association, No. 21F-H2120006-REL
This study guide provides a review of the administrative hearing decision in the matter of Douglas E. Kupel versus the Hidden Valley Association. It includes a quiz with an answer key to test comprehension of the facts, a set of essay questions for deeper analysis, and a glossary of key terms.
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Quiz: Short-Answer Questions
Answer the following questions in 2-3 sentences based on the provided source document.
1. Who were the primary parties involved in this hearing, and what were their respective roles?
2. What was the specific violation alleged by the Petitioner in his petition to the Department of Real Estate?
3. What four categories of records did the Petitioner request from the Hidden Valley Association (HVA) on June 22, 2020?
4. Which parts of the Petitioner’s records request did the HVA fulfill, and which parts did it deny?
5. What was the Petitioner’s central piece of evidence to argue that the HVA was improperly withholding existing communications?
6. How did HVA Board President Gary Freed explain the discrepancy between his email statements and the association’s refusal to provide the requested communications?
7. What is the “preponderance of the evidence” standard, and which party was required to meet this standard?
8. According to Mr. Freed’s testimony, where was all official HVA business conducted?
9. What was the Administrative Law Judge’s final conclusion regarding the HVA’s conduct in this matter?
10. What three specific outcomes were mandated by the final ORDER issued on October 30, 2020?
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Answer Key
1. The primary parties were the Petitioner, Douglas E. Kupel, a property owner and member of the Hidden Valley Association, and the Respondent, the Hidden Valley Association (HVA). The Petitioner brought the complaint against the Respondent, alleging a violation of state law.
2. The Petitioner alleged that the Hidden Valley Association violated ARIZ. REV. STAT. § 33-1805 by failing to completely fulfill his records request. Specifically, he claimed the association improperly withheld communications records.
3. The Petitioner requested: (1) the records retention policy; (2) communications regarding information requests or open meeting law compliance; (3) communications regarding proposed changes to the association bylaws; and (4) legal invoices and payment records related to bylaw revisions.
4. The HVA fulfilled the request for the records retention policy and the legal invoices. It denied the two requests for communications between board and committee members, claiming the requested records were not subject to disclosure.
5. The Petitioner’s central evidence consisted of several emails from HVA Board President Gary Freed in which Mr. Freed stated, “[t]his communication has been received, and will be filed as an HVA business record.” The Petitioner argued this proved that such communications existed and were official records.
6. Mr. Freed testified that he was initially mistaken in his belief that all communications needed to be retained and that this was why he included that language in his emails. He clarified that based on the HVA’s records retention policy and open meeting laws, no disclosable records of the type requested existed.
7. “Preponderance of the evidence” is the standard of proof requiring the evidence to convince the trier of fact that a contention is more probably true than not. The Petitioner, Douglas E. Kupel, bore the burden of proving his case by this standard.
8. Mr. Freed testified that all HVA business was conducted via open meetings. He stated that there were no meetings conducted solely by email, with the exception of a single emergency situation.
9. The Administrative Law Judge concluded that the Petitioner failed to establish by a preponderance of the evidence that the HVA was in violation of ARIZ. REV. STAT. § 33-1805. The judge found the HVA’s conduct did not violate the charged statute.
10. The final ORDER (1) denied the Petitioner’s petition, (2) denied the Petitioner’s request for a civil penalty against the Respondent, and (3) ordered that the Respondent shall not be required to reimburse the Petitioner’s $500.00 filing fee.
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Essay Questions
The following questions are designed for in-depth analysis and discussion. Answers are not provided.
1. Analyze the legal arguments presented by both the Petitioner, Douglas E. Kupel, and the Respondent, Hidden Valley Association. How did each party use the evidence and ARIZ. REV. STAT. § 33-1805 to support their position?
2. Discuss the significance of the “preponderance of the evidence” standard in this case. Explain how the Administrative Law Judge determined that the Petitioner failed to meet this burden of proof.
3. Evaluate the testimony of HVA Board President Gary Freed. How did his explanations regarding his email statements and the association’s record-keeping practices influence the judge’s final decision?
4. Examine ARIZ. REV. STAT. § 33-1805(B), which outlines the exceptions for withholding records. Based on the case details, explain why the communications requested by the Petitioner were ultimately deemed non-disclosable or non-existent under this statute.
5. Describe the complete procedural history of the case, from the initial filing of the petition to the final order. Include key dates, entities involved (such as the Department of Real Estate and the Office of Administrative Hearings), and the final remedies sought by the Petitioner versus the actual outcome.
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An official who presides over administrative hearings and makes decisions on behalf of a government agency. In this case, the ALJ was Adam D. Stone.
ARIZ. REV. STAT. § 33-1805
The Arizona Revised Statute that governs the examination and disclosure of a homeowners’ association’s financial and other records by its members. It outlines the process for requests, a ten-business-day fulfillment window, and specific exemptions allowing an association to withhold certain records.
ARIZ. REV. STAT. § 32-2199.01(A)
The Arizona Revised Statute cited by the Petitioner that allows an administrative law judge to levy a civil penalty against a party found to be in violation of the law.
Burden of Proof
The obligation on a party in a legal case to provide sufficient evidence to prove their allegations. In this case, the Petitioner bore the burden of proof.
Covenants, Conditions, and Restrictions (CC&Rs)
The official governing documents that establish the rules and obligations for a homeowners’ association and its members.
Department of Real Estate (“Department”)
The Arizona state agency authorized to receive and decide petitions for hearings involving disputes between homeowners and their associations.
Hidden Valley Association (HVA)
The Respondent in the case; a homeowners’ association for the Hidden Valley Ranch subdivision in Prescott, Arizona, governed by CC&Rs and a Board of Directors.
HOAMCO
The company that served as the Community Manager for the Hidden Valley Association and initially responded to the Petitioner’s records request.
Office of Administrative Hearings (OAH)
An independent state agency in Arizona to which the Department of Real Estate referred this matter for an evidentiary hearing.
Petitioner
The party who files a petition to initiate a legal proceeding. In this case, the Petitioner was Douglas E. Kupel, a homeowner and member of the HVA.
Preponderance of the Evidence
The standard of proof required in this hearing. It is defined as evidence that is sufficient to incline a fair and impartial mind to one side of the issue rather than the other, making the contention more probably true than not.
Respondent
The party against whom a petition is filed and who is required to respond to the allegations. In this case, the Respondent was the Hidden Valley Association.
Blog Post – 21F-H2120006-REL
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The provided text is an Administrative Law Judge Decision from the Office of Administrative Hearings in Arizona, concerning a dispute between Petitioner Douglas E. Kupel and the Hidden Valley Association (HVA), a homeowners’ association. The core issue of the hearing, held on October 22, 2020, was whether the HVA violated ARIZ. REV. STAT. § 33-1805 by failing to fulfill Kupel’s records request for communications regarding open meeting law compliance and bylaw changes. Petitioner Kupel argued that undisclosed records existed based on emails sent by HVA Board President Gary Freed, while Freed testified that no disclosable records existed due to statutory exceptions and a mistaken belief about record retention. Ultimately, the Administrative Law Judge denied the Petitioner’s claim, concluding that Kupel failed to prove by a preponderance of the evidence that the Association violated the statute, thereby also denying his request for reimbursement and civil penalties.
What are the legal requirements governing homeowner association record disclosure in Arizona?
What was the core dispute between the petitioner and the homeowner association?
How did the Administrative Law Judge decide the outcome of this specific case?
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Case Participants
Petitioner Side
Douglas E. Kupel(petitioner) Appeared on his own behalf
Respondent Side
Timothy Butterfield(HOA attorney) Hidden Valley Association Represented Respondent
Gary Freed(board member) Hidden Valley Association Hidden Valley Ranch Association Board President and witness for HVA
Mark K. Sahl(HOA attorney) CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP Received service of the Order
Neutral Parties
Adam D. Stone(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate Recipient of the Administrative Law Judge Decision
The petition was dismissed because the Petitioner failed to demonstrate a violation by the Association, conceding that the Association was not in violation of the cited CC&R section.
Why this result: Petitioner acknowledged the Association was not in violation of CC&R section 2.7, the single issue raised in the petition.
Key Issues & Findings
Alleged violation of CC&R section 2.7 by the Association (later asserted as estoppel regarding enforcement)
Petitioner alleged the Respondent Association violated CC&R section 2.7. At the hearing, Petitioner acknowledged the Association was not actually in violation of section 2.7, but argued the Association was estopped from enforcing the provision requiring a six-foot gate for RV storage. Petitioner sought invalidation of outstanding fines.
The petition was dismissed because the Petitioner failed to demonstrate a violation by the Association, conceding that the Association was not in violation of the cited CC&R section.
Why this result: Petitioner acknowledged the Association was not in violation of CC&R section 2.7, the single issue raised in the petition.
Key Issues & Findings
Alleged violation of CC&R section 2.7 by the Association (later asserted as estoppel regarding enforcement)
Petitioner alleged the Respondent Association violated CC&R section 2.7. At the hearing, Petitioner acknowledged the Association was not actually in violation of section 2.7, but argued the Association was estopped from enforcing the provision requiring a six-foot gate for RV storage. Petitioner sought invalidation of outstanding fines.
The petition was dismissed because the Petitioner failed to demonstrate a violation by the Association, conceding that the Association was not in violation of the cited CC&R section.
Why this result: Petitioner acknowledged the Association was not in violation of CC&R section 2.7, the single issue raised in the petition.
Key Issues & Findings
Alleged violation of CC&R section 2.7 by the Association (later asserted as estoppel regarding enforcement)
Petitioner alleged the Respondent Association violated CC&R section 2.7. At the hearing, Petitioner acknowledged the Association was not actually in violation of section 2.7, but argued the Association was estopped from enforcing the provision requiring a six-foot gate for RV storage. Petitioner sought invalidation of outstanding fines.
The petition was dismissed because the Petitioner failed to demonstrate a violation by the Association, conceding that the Association was not in violation of the cited CC&R section.
Why this result: Petitioner acknowledged the Association was not in violation of CC&R section 2.7, the single issue raised in the petition.
Key Issues & Findings
Alleged violation of CC&R section 2.7 by the Association (later asserted as estoppel regarding enforcement)
Petitioner alleged the Respondent Association violated CC&R section 2.7. At the hearing, Petitioner acknowledged the Association was not actually in violation of section 2.7, but argued the Association was estopped from enforcing the provision requiring a six-foot gate for RV storage. Petitioner sought invalidation of outstanding fines.
The petition was dismissed because the Petitioner failed to demonstrate a violation by the Association, conceding that the Association was not in violation of the cited CC&R section.
Why this result: Petitioner acknowledged the Association was not in violation of CC&R section 2.7, the single issue raised in the petition.
Key Issues & Findings
Alleged violation of CC&R section 2.7 by the Association (later asserted as estoppel regarding enforcement)
Petitioner alleged the Respondent Association violated CC&R section 2.7. At the hearing, Petitioner acknowledged the Association was not actually in violation of section 2.7, but argued the Association was estopped from enforcing the provision requiring a six-foot gate for RV storage. Petitioner sought invalidation of outstanding fines.
The petition was dismissed because the Petitioner failed to demonstrate a violation by the Association, conceding that the Association was not in violation of the cited CC&R section.
Why this result: Petitioner acknowledged the Association was not in violation of CC&R section 2.7, the single issue raised in the petition.
Key Issues & Findings
Alleged violation of CC&R section 2.7 by the Association (later asserted as estoppel regarding enforcement)
Petitioner alleged the Respondent Association violated CC&R section 2.7. At the hearing, Petitioner acknowledged the Association was not actually in violation of section 2.7, but argued the Association was estopped from enforcing the provision requiring a six-foot gate for RV storage. Petitioner sought invalidation of outstanding fines.
The petition was dismissed because the Petitioner failed to demonstrate a violation by the Association, conceding that the Association was not in violation of the cited CC&R section.
Why this result: Petitioner acknowledged the Association was not in violation of CC&R section 2.7, the single issue raised in the petition.
Key Issues & Findings
Alleged violation of CC&R section 2.7 by the Association (later asserted as estoppel regarding enforcement)
Petitioner alleged the Respondent Association violated CC&R section 2.7. At the hearing, Petitioner acknowledged the Association was not actually in violation of section 2.7, but argued the Association was estopped from enforcing the provision requiring a six-foot gate for RV storage. Petitioner sought invalidation of outstanding fines.
Orders: Don France's petition is dismissed.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
ARIZ. ADMIN. CODE § R2-19-119
ARIZ. REV. STAT. § 32-2199.02(A)
ARIZ. REV. STAT. § 41-1092.07(F)(6)
ARIZ. REV. STAT. section 32-2199.02(B)
ARIZ. REV. STAT. section 32-2199.04
ARIZ. REV. STAT. section 41-1092.09
Analytics Highlights
Topics: CC&R, RV storage, Estoppel, Fines
Additional Citations:
ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
ARIZ. ADMIN. CODE § R2-19-119
ARIZ. REV. STAT. § 32-2199.02(A)
ARIZ. REV. STAT. § 41-1092.07(F)(6)
ARIZ. REV. STAT. section 32-2199.02(B)
ARIZ. REV. STAT. section 32-2199.04
ARIZ. REV. STAT. section 41-1092.09
Video Overview
Audio Overview
Decision Documents
20F-H2020056-REL Decision – 823714.pdf
Uploaded 2025-10-09T03:35:18 (96.1 KB)
Briefing Doc – 20F-H2020056-REL
Administrative Hearing Briefing: France v. Mesa East Property Owners Association
Executive Summary
This document provides a detailed analysis of the administrative hearing decision in case number 20F-H2020056-REL, involving petitioner Don France and respondent Mesa East Property Owners Association (the “Association”). The core of the dispute was the Association’s enforcement of its Covenants, Conditions, and Restrictions (CC&Rs), specifically section 2.7, which requires a six-foot-high gate for Recreational Vehicles (RVs) stored on a property.
The petitioner, Mr. France, was fined by the Association in 2019 for not having the required gate on an RV structure that the Association itself had approved in 2014. Mr. France initially filed a petition alleging the Association was in violation of its own CC&Rs. However, at the September 1, 2020 hearing, he conceded this was not the case and instead argued the Association was “estopped”—or legally prevented—from enforcing the rule due to its prior approval.
The Administrative Law Judge ultimately dismissed Mr. France’s petition on procedural grounds. The judge determined that since Mr. France acknowledged his petition’s central claim was incorrect, he had failed to meet his burden of proof. The new arguments concerning estoppel and the legality of the fines were deemed not properly before the tribunal because they were not included in the original petition. The decision underscores the critical importance of aligning claims made in a formal petition with the arguments presented at a hearing.
Case Overview
Case Number
No. 20F-H2020056-REL
In the Office of Administrative Hearings
Petitioner
Don France
Respondent
Mesa East Property Owners Association
Respondent’s Counsel
B. Austin Bailio, Esq.
Administrative Law Judge
Thomas Shedden
Hearing Date
September 1, 2020
Decision Date
September 21, 2020
The central issue of the case revolves around the enforcement of CC&R section 2.7, which mandates that RVs stored on a property must be screened behind a structure with a six-foot-high gate. This requirement is mirrored by a City of Mesa municipal code.
Chronology of Key Events
• 2014: Mr. France applies for and receives approval from the Association’s Architectural Review Committee (ARC) to build an RV port. In his application, he acknowledges he will abide by deed restrictions and City of Mesa codes.
• October 21, 2014: The Association issues its final approval for the structure, which is built without a gate.
• Circa 2018: Following threats of litigation from other residents over non-enforcement of the CC&Rs, the Association begins a new enforcement campaign for the six-foot gate rule. The City of Mesa denies the Association’s request to “grandfather in” non-compliant homes.
• 2019: The deadline for residents to come into compliance passes.
• March 11, 2019: The Association issues a Notice of Violation (NOV) to Mr. France for lacking the required gate.
• April 5, 2019: Through an attorney, Mr. France asserts that the Association is estopped from enforcing the rule due to its 2014 approval.
• May 15, 2019: The Association’s attorney rejects the estoppel claim and informs Mr. France’s attorney that fines of $500 per week will be assessed.
• May 31, 2019: The Association assesses a $500 fine against Mr. France, with additional fines assessed later.
• July 24, 2019: The City of Mesa issues its own NOV to Mr. France, citing a violation of city code 11-34-5(B), which also requires a six-foot screening fence for RVs.
• April 16, 2020: Mr. France files a petition alleging the Association is in violation of CC&R section 2.7.
• Prior to Hearing: To comply with the City of Mesa’s NOV, Mr. France installs a temporary gate at a cost of approximately $800.
• September 1, 2020: The administrative hearing is conducted.
Analysis of Arguments and Testimonies
Petitioner’s Position (Don France)
• Initial Petition: The formal petition, filed on April 16, 2020, was based on the single issue that the Mesa East Property Owners Association had violated its own CC&R section 2.7.
• Revised Argument at Hearing: During the hearing, Mr. France acknowledged that the Association was not, in fact, violating section 2.7. His argument shifted to a claim of estoppel, asserting that the Association could not enforce the rule against him because its own ARC had approved his gateless structure in 2014.
• Requested Relief: Mr. France asked the judge to rule that the Association could not require him to install a gate and to invalidate any outstanding fines levied against him.
• Supporting Testimony: Joann Van Kirk, the chairperson of the ARC in 2014, testified on Mr. France’s behalf. She stated that she had been informed by a past chair that no gate was required for structures like Mr. France’s, citing other properties that had RV shelters without gates. She also testified that she called the City of Mesa at the time and was told a gate was not required if the structure was attached to the house.
Respondent’s Position (Mesa East POA)
• Basis for Enforcement: The Association began strictly enforcing the gate requirement around 2018 after being threatened with lawsuits by other members for failing to enforce the CC&Rs.
• Enforcement Actions: After an unsuccessful attempt to have the City of Mesa grandfather in non-compliant properties, the Association notified members of the requirement via its newsletter and online, setting a compliance deadline of 2019. When Mr. France did not comply, the Association issued an NOV and subsequently began assessing fines.
• Legal Stance: The Association’s counsel formally rejected Mr. France’s estoppel argument in May 2019.
• Supporting Testimony: Donald Smith testified that at the time the NOV was issued to Mr. France, eleven other residents were also non-compliant. By the hearing date, six remained in violation, five of whom had agreed to comply. This testimony was intended to show that the enforcement was not targeted solely at Mr. France.
Independent Municipal Action
The City of Mesa’s regulations played a significant and independent role in the matter.
• City Code: The City of Mesa has its own ordinance, Code section 11-34-5(B), which requires RVs taller than six feet to be screened by a six-foot-tall fence.
• Notice of Violation: On July 24, 2019, the City issued its own NOV to Mr. France for violating this code.
• Consequence: This municipal enforcement action compelled Mr. France to install a temporary gate to avoid penalties from the City, regardless of the outcome of his dispute with the Property Owners Association.
Administrative Law Judge’s Decision and Rationale
Final Order: IT IS ORDERED that Don France’s petition is dismissed.
The judge’s decision to dismiss the case was based on a precise legal and procedural rationale, rather than the merits of the estoppel argument.
• Failure of the Core Claim: The judge noted that Mr. France’s petition was limited to the single claim that the Association had violated CC&R section 2.7. At the hearing, Mr. France himself admitted this was not the case. As the petitioner, Mr. France bore the burden of proof, and his own testimony demonstrated that the “preponderance of the evidence shows that there is no violation.”
• Jurisdictional Limitation: The new issues raised by Mr. France at the hearing—namely the estoppel argument and the legality of the fines—were declared “not properly before the tribunal.” The judge reasoned that these claims were not included in the original petition, a separate filing fee was not paid for a second issue, and the claims were not listed in the official Notice of Hearing. This procedural failure prevented the judge from ruling on the substance of these arguments.
Conclusion and Post-Decision Protocol
The dismissal of Mr. France’s petition represents a conclusive finding in favor of the respondent based on the specific claims filed. The decision illustrates that the scope of an administrative hearing is strictly defined by the issues raised in the initial petition.
According to the decision document, the order is binding on both parties unless a rehearing is granted. A request for a rehearing must be filed with the Commissioner of the Arizona Department of Real Estate within 30 days of the service of the order, pursuant to Arizona Revised Statutes.
Study Guide – 20F-H2020056-REL
Study Guide: France v. Mesa East Property Owners Association (No. 20F-H2020056-REL)
This guide provides a comprehensive review of the administrative hearing decision in the case between Don France (Petitioner) and the Mesa East Property Owners Association (Respondent), as decided by Administrative Law Judge Thomas Shedden.
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Short-Answer Questions
Instructions: Answer the following questions in two to three complete sentences, drawing all information directly from the provided legal decision.
1. Who are the primary parties in this case, and what was the single issue alleged in the Petitioner’s original petition filed on April 16, 2020?
2. According to CC&R section 2.7 and the City of Mesa’s code, what is the specific requirement for storing a recreational vehicle (RV) on a property?
3. What enforcement actions did the Mesa East Property Owners Association take against Don France in the spring of 2019?
4. What was Don France’s primary legal argument against the Association’s enforcement, which he revealed at the September 1, 2020 hearing?
5. What was the state of compliance on Mr. France’s property regarding the RV gate as of the hearing date, and what prompted this action?
6. According to the testimony of Donald Smith, what prompted the Association to begin enforcing the six-foot gate requirement around 2018?
7. What key information did Joann Van Kirk, the 2014 chairperson of the Architectural Review Committee, provide in her testimony?
8. How did the Petitioner’s argument at the hearing differ from the allegation in his initial petition, and why was this difference critical to the case’s outcome?
9. Why did the Administrative Law Judge decline to rule on the legality of the fines the Association had levied against Mr. France?
10. What was the ultimate order issued by the Administrative Law Judge, and what was the legal reasoning behind this decision?
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Answer Key for Short-Answer Questions
1. The primary parties are Don France, the Petitioner, and the Mesa East Property Owners Association, the Respondent. The single issue alleged in Mr. France’s petition was that the Association was in violation of its own CC&R section 2.7.
2. Both CC&R section 2.7 (the 1994 version) and the City of Mesa’s code (section 11-34-5(B)) require that RVs stored on a property must be screened behind a structure with a gate that is at least six feet high. The CC&Rs also specified the fence and gate must be tall enough to prevent a person from seeing the RV.
3. On March 11, 2019, the Association issued a Notice of Violation to Mr. France because his RV structure lacked a six-foot gate. Subsequently, on May 31, 2019, the Association fined him $500 for the same violation.
4. At the hearing, Mr. France’s primary argument was that the Association was “estopped” from finding him in violation of section 2.7. He argued this because the Association’s Architectural Review Committee had approved his RV structure in 2014 without the gate.
5. As of the hearing date, Mr. France had installed a temporary six-foot gate at a cost of about $800. This action was taken to comply with a Notice of Violation issued to him by the City of Mesa on July 24, 2019.
6. Donald Smith testified that around 2018, people were threatening to sue the Association if it did not enforce the CC&Rs. After meeting with the City of Mesa, which would not allow non-compliant homes to be grandfathered in, the Association began enforcing the gate requirement.
7. Joann Van Kirk testified that in 2014, she had learned from the past ARC chair that no gate was required because other owners had shelters without gates. She also testified that she called the City of Mesa and was told no gate was required if the structure was attached to the house.
8. While his petition alleged the Association had violated section 2.7, at the hearing Mr. France acknowledged this was not the case and argued instead that the Association was estopped from enforcing that section against him. This was critical because the judge could only rule on the single issue raised in the petition, which Mr. France conceded had no merit.
9. The judge declined to rule on the legality of the fines because the issue was not raised in Mr. France’s original petition. Therefore, it was not properly before the tribunal as a filing fee had not been paid for a second issue and it was not included in the Notice of Hearing.
10. The judge ordered that Don France’s petition be dismissed. The reasoning was that the petition was limited to the single issue of whether the Association had violated CC&R section 2.7, and Mr. France himself acknowledged at the hearing that no such violation by the Association had occurred.
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Essay Questions
Instructions: The following questions are designed for a more in-depth analysis of the case. Formulate a comprehensive essay-format response for each, citing specific facts from the case decision to support your arguments.
1. Analyze the concept of estoppel as it applies to this case. Explain why Don France believed the Association was estopped from enforcing the gate requirement, referencing the 2014 approvals, and discuss why the Association disagreed and proceeded with enforcement actions.
2. Discuss the procedural limitations that shaped the outcome of this hearing. How did the specific wording of Mr. France’s initial petition and the rules governing administrative hearings ultimately prevent the judge from considering the central issues of estoppel and the validity of the fines?
3. Examine the conflict between a property owner’s reliance on past approvals and a Property Owners Association’s duty to enforce its CC&Rs. Use the testimony of Joann Van Kirk and Donald Smith to illustrate the differing perspectives and pressures that led to this dispute.
4. Trace the timeline of events from Mr. France’s 2014 application to the 2020 hearing. Detail the key actions taken by Mr. France, the Association’s Architectural Review Committee, the Association’s Board, and the City of Mesa, and explain how their interactions created the legal conflict.
5. Evaluate the standard of proof required in this case, the “preponderance of the evidence.” Although the case was dismissed on a procedural issue, discuss which party presented a more convincing case regarding the underlying dispute over the RV gate, and why.
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An official (Thomas Shedden in this case) who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions and orders.
Architectural Review Committee (ARC)
A committee within the Property Owners Association responsible for reviewing and approving applications for property improvements, such as Mr. France’s RV port in 2014.
Burden of Proof
The responsibility of a party in a legal case to prove their allegations. In this matter, Mr. France bore the burden of proof to show the Association violated its CC&Rs.
Covenants, Conditions, and Restrictions. These are the governing community documents that set rules for property use, such as section 2.7 which requires a six-foot gate for RV storage.
Conclusions of Law
The section of the judge’s decision that applies legal principles and statutes to the established facts of the case to reach a final ruling.
Estoppel
A legal principle asserted by Mr. France arguing that the Association should be prevented from enforcing a rule (the gate requirement) against him because of its prior action (approving his structure without a gate in 2014).
Findings of Fact
A formal, numbered list of facts in the judge’s decision that are established by the evidence and testimony presented during the hearing.
Notice of Violation (NOV)
A formal notice issued by the Association or the City of Mesa to a property owner informing them that they are in violation of a specific rule or code.
Petitioner
The party who initiates a legal action by filing a petition. In this case, Don France is the Petitioner.
Preponderance of the Evidence
The standard of proof required in this hearing. It is defined as evidence with “the most convincing force” that is sufficient to incline an impartial mind to one side of an issue over the other.
Respondent
The party against whom a petition is filed. In this case, the Mesa East Property Owners Association is the Respondent.
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20F-H2020056-REL
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The provided text is an Administrative Law Judge Decision from the Office of Administrative Hearings concerning the case of Don France versus the Mesa East Property Owners Association. The document details a dispute where Petitioner Don France alleged that the Respondent Association violated a community covenant regarding the storage of recreational vehicles (RVs), specifically CC&R section 2.7, which requires RVs to be stored behind a six-foot gate. Although Mr. France initially brought the petition alleging the Association violated the rule, he ultimately argued that the Association was estopped from enforcing the rule against him due to past approval of his RV structure without a gate. The decision includes a summary of the Findings of Fact related to Mr. France’s structure, the Association’s attempts to enforce the gate requirement against him and other residents, and the resulting fines he incurred before installing a gate to comply with a separate City of Mesa Notice of Violation. Ultimately, the Administrative Law Judge determined that Mr. France failed to meet the burden of proof to show the Association violated the CC&Rs, and his petition was dismissed because he acknowledged the Association was not actually in violation of section 2.7.
What were the legal and factual grounds for the case’s dismissal?
How did the Association’s past actions relate to the estoppel claim?
What was the core conflict between the homeowner, HOA, and city codes?
Based on 1 source
Case Participants
Petitioner Side
Don France(petitioner) Appeared on his own behalf and testified
Joann Van Kirk(witness) Testified for Petitioner; was chairperson of Architectural Review Committee ('ARC') in 2014
Respondent Side
B. Austin Bailio(HOA attorney) Maxwell & Morgan, P.C. Attorney for Respondent Mesa East Property Owners Association
Michael Estey(witness) Testified for Respondent
Donald Smith(witness) Testified for Respondent
Neutral Parties
Thomas Shedden(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
20F-H2020056-REL
Agency
ADRE
Tribunal
OAH
Decision Date
2020-09-21
Administrative Law Judge
Thomas Shedden
Outcome
loss
Filing Fees Refunded
$500.00
Civil Penalties
$0.00
Parties & Counsel
Petitioner
Don France
Counsel
—
Respondent
Mesa East Property Owners Association
Counsel
B. Austin Bailio
Alleged Violations
CC&R section 2.7
Outcome Summary
The petition was dismissed because the Petitioner failed to demonstrate a violation by the Association, conceding that the Association was not in violation of the cited CC&R section.
Why this result: Petitioner acknowledged the Association was not in violation of CC&R section 2.7, the single issue raised in the petition.
Key Issues & Findings
Alleged violation of CC&R section 2.7 by the Association (later asserted as estoppel regarding enforcement)
Petitioner alleged the Respondent Association violated CC&R section 2.7. At the hearing, Petitioner acknowledged the Association was not actually in violation of section 2.7, but argued the Association was estopped from enforcing the provision requiring a six-foot gate for RV storage. Petitioner sought invalidation of outstanding fines.
