Tag Archives: 2023

Wanda Swartling v. Val Vista Park Townhome Association of Mesa

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Case Summary

Case ID 23F-H057-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-08-01
Administrative Law Judge Brian Del Vecchio
Outcome The Administrative Law Judge dismissed the Petitioner’s petition because the Petitioner failed to meet her burden of proving that the HOA violated ARS § 33-1804 by failing to hold a properly noticed open board meeting prior to the March 2, 2023, special assessment vote. Evidence suggested issues were discussed in prior committee and board meetings, and Petitioner did not prove informal discussions constituted a violation requiring a finding against the Respondent.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Wanda Swartling Counsel —
Respondent Val Vista Park Townhome Association of Mesa Counsel Chad Gallacher

Alleged Violations

ARIZ. REV. STAT. § 33-1804

Outcome Summary

The Administrative Law Judge dismissed the Petitioner’s petition because the Petitioner failed to meet her burden of proving that the HOA violated ARS § 33-1804 by failing to hold a properly noticed open board meeting prior to the March 2, 2023, special assessment vote. Evidence suggested issues were discussed in prior committee and board meetings, and Petitioner did not prove informal discussions constituted a violation requiring a finding against the Respondent.

Why this result: Petitioner failed to meet her burden of proof by a preponderance of the evidence that the Respondent's conduct violated ARS § 33-1804.

Key Issues & Findings

Failure to hold open board meeting prior to special assessment meeting

Petitioner alleged the HOA violated open meeting law (ARS § 33-1804) by failing to hold an open board meeting prior to the March 2, 2023, special meeting where members voted on a special assessment, arguing that preliminary discussions and decisions were made unilaterally in supposed closed-door meetings or through email/informal discussions.

Orders: Petitioner's petition is dismissed. Petitioner's request to levy a civil penalty against Respondent is denied.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 33-1804

Analytics Highlights

Topics: Open Meeting Law, Special Assessment, Board Meetings, HOA Governance, Committee Meeting
Additional Citations:

  • ARIZ. REV. STAT. § 33-1804
  • 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.
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)

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Video Overview

Audio Overview

Decision Documents

23F-H057-REL Decision – 1071114.pdf

Uploaded 2026-04-24T12:10:30 (5884.7 KB)

23F-H057-REL Decision – 1071115.pdf

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23F-H057-REL Decision – 1071120.pdf

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23F-H057-REL Decision – 1071121.pdf

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23F-H057-REL Decision – 1071122.pdf

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23F-H057-REL Decision – 1071126.pdf

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23F-H057-REL Decision – 1071127.pdf

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23F-H057-REL Decision – 1071503.pdf

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23F-H057-REL Decision – 1079574.pdf

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23F-H057-REL Decision – 1071114.pdf

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23F-H057-REL Decision – 1071115.pdf

Uploaded 2026-01-23T17:58:14 (7935.6 KB)

23F-H057-REL Decision – 1071120.pdf

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23F-H057-REL Decision – 1071121.pdf

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23F-H057-REL Decision – 1071122.pdf

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23F-H057-REL Decision – 1071126.pdf

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23F-H057-REL Decision – 1071127.pdf

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23F-H057-REL Decision – 1071503.pdf

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23F-H057-REL Decision – 1079574.pdf

Uploaded 2026-01-23T17:58:42 (114.8 KB)

This summary concerns the legal case *Wanda Swartling v. Val Vista Park Townhome Association of Mesa*, Docket No. 23F-H057-REL. The evidentiary hearing took place on July 10, 2023, before Administrative Law Judge (ALJ) Brian Del Vecchio.

Key Facts and Main Issues

The Petitioner, Wanda Swartling (a property owner and Association member), filed a single-issue petition on or about April 10, 2023. The core allegation was that the Val Vista Park Townhome Association of Mesa (Respondent) violated ARIZ. REV. STAT. § 33-1804 (the open meeting law for planned communities).

The Petitioner contended that the Board of Directors:

  1. Sent a February 7, 2023, email to homeowners informing them of the intent to hold a special meeting and proposing funding options without first holding an open board meeting.
  2. Held a March 2, 2023, special meeting to vote on a special assessment without having held an open board meeting prior to determining the items to be voted upon.

Petitioner argued that the board unilaterally determined which special assessments would be voted on through "closed door board meetings," thereby denying members the opportunity to be present for the decision-making processes. The March 2, 2023, special assessment vote ultimately failed to pass.

Hearing Proceedings and Key Arguments

Respondent (represented by Chad Gallacher, with community manager Steve Cheff testifying) denied the claims. Respondent argued that the claims were factually incorrect and legally insufficient.

Respondent's Legal Defense:

  • There is no legal requirement in ARS § 33-1804 stipulating that an open board meeting must be held before an email is sent to the community or prior to calling a special meeting of the members.
  • The authority to call a special meeting rests with the Board President, as per the association's bylaws (Section 2.2).
  • The issues had been previously discussed: Evidence submitted included meeting minutes showing discussions of capital projects, including painting, roofs, and special assessments, dating back to an Architectural Committee meeting on August 18, 2022, and a subsequent Board meeting on October 11, 2022.

Petitioner’s Burden and ALJ Rulings:

The ALJ emphasized that the Petitioner bore the burden of proving, by a preponderance of the evidence, that the Respondent violated ARS § 33-1804. The ALJ strictly limited the scope of the hearing to the specific violations alleged in the complaint (the process surrounding the February 7th email and March 2nd meeting). Attempts by the Petitioner to introduce evidence demonstrating a *pattern* of closed meetings or to challenge procedural changes related to a prior annual meeting were repeatedly objected to and sustained as irrelevant or beyond the scope of jurisdiction.

Final Decision and Outcome

The ALJ issued a decision on August 1, 2023. The ALJ concluded that the Petitioner failed to meet her burden of proof.

  • The ALJ found that the special assessment voted on March 2, 2023, resulted from maintenance recommendations developed during the August 18, 2022, architectural committee meeting.
  • Regarding claims of informal discussions or emails constituting a violation, the Petitioner failed to provide sufficient evidence that the number of board members involved constituted a quorum necessary to trigger the notice requirement under ARS § 33-1804.

The ALJ ordered that Petitioner’s petition be dismissed and denied the request to levy a civil penalty against the Respondent.

Questions

Question

What is the burden of proof for a homeowner alleging a violation against their HOA?

Short Answer

The homeowner (Petitioner) must prove the violation by a "preponderance of the evidence."

Detailed Answer

In an administrative hearing, the burden is on the homeowner to prove their case. The standard used is 'preponderance of the evidence,' meaning the homeowner must show that their claim is more likely true than not.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1804.

Legal Basis

ARIZ. REV. STAT. § 33-1804

Topic Tags

  • legal standards
  • burden of proof
  • procedure

Question

Do informal discussions or emails between board members automatically violate open meeting laws?

Short Answer

Not necessarily. To constitute a violation, there must be proof that a quorum was present and that board business was actually conducted.

Detailed Answer

While informal discussions or emails might technically constitute a meeting, the homeowner must provide sufficient evidence that a quorum of board members was involved and that they were conducting actual board business to prove a violation of the open meeting statute.

Alj Quote

The informal discussions and emails between board members may have constituted board meetings under ARIZ. REV. STAT. § 33-1804, however, Petitioner failed to provide sufficient evidence the number of board members meeting constituted a quorum which would thereby require notice to homeowners.

Legal Basis

ARIZ. REV. STAT. § 33-1804

Topic Tags

  • open meetings
  • emails
  • board communication

Question

What evidence is required to prove the board held a 'secret' meeting?

Short Answer

The homeowner must provide sufficient evidence that a quorum met and that specific board business was conducted.

Detailed Answer

Allegations of closed-door meetings fail if the homeowner cannot prove that enough board members were present to form a quorum and that they engaged in board business during that time.

Alj Quote

Petitioner failed to provide sufficient evidence the number of board members meeting constituted a quorum which would thereby require notice to homeowners. Furthermore, Petitioner failed to provide sufficient evidence board business was conducted during these putative board meetings.

Legal Basis

ARIZ. REV. STAT. § 33-1804

Topic Tags

  • evidence
  • secret meetings
  • quorum

Question

Can a special assessment vote be based on recommendations from a committee meeting held months earlier?

Short Answer

Yes, if the committee meeting was valid, its recommendations can serve as the basis for a later vote.

Detailed Answer

In this decision, the ALJ found that a special assessment vote in March 2023 was validly based on maintenance recommendations generated during an architectural committee meeting held the previous August.

Alj Quote

The special assessment which was voted on during the March 2, 2023, special meeting were maintenance recommendations from the architectural committee meeting on August 18, 2022.

Legal Basis

ARIZ. REV. STAT. § 33-1804

Topic Tags

  • special assessments
  • committees
  • voting

Question

What does 'preponderance of the evidence' mean in an HOA hearing?

Short Answer

It means the evidence shows the claim is more probably true than not.

Detailed Answer

This legal standard requires evidence that has the most convincing force and is sufficient to incline a fair and impartial mind to one side of the issue, even if it doesn't remove all reasonable doubt.

Alj Quote

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”

Legal Basis

Morris K. Udall, Arizona Law of Evidence § 5 (1960)

Topic Tags

  • legal definitions
  • evidence

Question

Which HOA meetings are required by law to be open to all members?

Short Answer

Meetings of the members, the board of directors, and any regularly scheduled committee meetings must be open.

Detailed Answer

Arizona statute explicitly requires that meetings of the members' association, the board of directors, and regularly scheduled committee meetings be open to all association members, notwithstanding contrary bylaws.

Alj Quote

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

Legal Basis

ARIZ. REV. STAT. § 33-1804(A)

Topic Tags

  • open meetings
  • homeowner rights
  • statutes

Case

Docket No
23F-H057-REL
Case Title
Wanda Swartling v Val Vista Park Townhome Association of Mesa
Decision Date
2023-08-01
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE

Questions

Question

What is the burden of proof for a homeowner alleging a violation against their HOA?

Short Answer

The homeowner (Petitioner) must prove the violation by a "preponderance of the evidence."

Detailed Answer

In an administrative hearing, the burden is on the homeowner to prove their case. The standard used is 'preponderance of the evidence,' meaning the homeowner must show that their claim is more likely true than not.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1804.

Legal Basis

ARIZ. REV. STAT. § 33-1804

Topic Tags

  • legal standards
  • burden of proof
  • procedure

Question

Do informal discussions or emails between board members automatically violate open meeting laws?

Short Answer

Not necessarily. To constitute a violation, there must be proof that a quorum was present and that board business was actually conducted.

Detailed Answer

While informal discussions or emails might technically constitute a meeting, the homeowner must provide sufficient evidence that a quorum of board members was involved and that they were conducting actual board business to prove a violation of the open meeting statute.

Alj Quote

The informal discussions and emails between board members may have constituted board meetings under ARIZ. REV. STAT. § 33-1804, however, Petitioner failed to provide sufficient evidence the number of board members meeting constituted a quorum which would thereby require notice to homeowners.

Legal Basis

ARIZ. REV. STAT. § 33-1804

Topic Tags

  • open meetings
  • emails
  • board communication

Question

What evidence is required to prove the board held a 'secret' meeting?

Short Answer

The homeowner must provide sufficient evidence that a quorum met and that specific board business was conducted.

Detailed Answer

Allegations of closed-door meetings fail if the homeowner cannot prove that enough board members were present to form a quorum and that they engaged in board business during that time.

Alj Quote

Petitioner failed to provide sufficient evidence the number of board members meeting constituted a quorum which would thereby require notice to homeowners. Furthermore, Petitioner failed to provide sufficient evidence board business was conducted during these putative board meetings.

Legal Basis

ARIZ. REV. STAT. § 33-1804

Topic Tags

  • evidence
  • secret meetings
  • quorum

Question

Can a special assessment vote be based on recommendations from a committee meeting held months earlier?

Short Answer

Yes, if the committee meeting was valid, its recommendations can serve as the basis for a later vote.

Detailed Answer

In this decision, the ALJ found that a special assessment vote in March 2023 was validly based on maintenance recommendations generated during an architectural committee meeting held the previous August.

Alj Quote

The special assessment which was voted on during the March 2, 2023, special meeting were maintenance recommendations from the architectural committee meeting on August 18, 2022.

Legal Basis

ARIZ. REV. STAT. § 33-1804

Topic Tags

  • special assessments
  • committees
  • voting

Question

What does 'preponderance of the evidence' mean in an HOA hearing?

Short Answer

It means the evidence shows the claim is more probably true than not.

Detailed Answer

This legal standard requires evidence that has the most convincing force and is sufficient to incline a fair and impartial mind to one side of the issue, even if it doesn't remove all reasonable doubt.

Alj Quote

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”

Legal Basis

Morris K. Udall, Arizona Law of Evidence § 5 (1960)

Topic Tags

  • legal definitions
  • evidence

Question

Which HOA meetings are required by law to be open to all members?

Short Answer

Meetings of the members, the board of directors, and any regularly scheduled committee meetings must be open.

Detailed Answer

Arizona statute explicitly requires that meetings of the members' association, the board of directors, and regularly scheduled committee meetings be open to all association members, notwithstanding contrary bylaws.

Alj Quote

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

Legal Basis

ARIZ. REV. STAT. § 33-1804(A)

Topic Tags

  • open meetings
  • homeowner rights
  • statutes

Case

Docket No
23F-H057-REL
Case Title
Wanda Swartling v Val Vista Park Townhome Association of Mesa
Decision Date
2023-08-01
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Wanda Swartling (petitioner)
    Val Vista Park Townhome Association
    Homeowner, VVP Unit 82

Respondent Side

  • Chad Gallacher (HOA attorney)
    Maxwell & Morgan, P.C.
  • Steve Cheff (property manager / witness)
    Heywood Community Management
    Also community manager
  • Patti Locks (board member)
    Val Vista Park HOA
    Also listed as candidate/incumbent
  • Stephanie Hamrock (board member / witness)
    Val Vista Park HOA
  • Troy Goudeau (board member)
    Val Vista Park HOA
    Elected director
  • Paul Wilcox (board member)
    Val Vista Park HOA
    Elected director
  • Bettie Smiley (board member)
    Val Vista Park HOA
  • Carlee Collins (administrative assistant)
    Heywood Community Management
  • Alli (attorney)
    Maxwell & Morgan, P.C.
    Associate attorney

Neutral Parties

  • Brian Del Vecchio (ALJ)
    OAH
  • Susan Nicolson (ADRE Commissioner)
    ADRE
  • A. Hansen (ADRE staff)
    ADRE
  • V. Nunez (ADRE staff)
    ADRE
  • D. Jones (ADRE staff)
    ADRE
  • L. Abril (ADRE staff)
    ADRE

Other Participants

  • Shelley Dusek (candidate)
    Val Vista Park HOA
    Candidate for Board of Directors
  • Lori Solomon (candidate)
    Val Vista Park HOA
    Candidate for Board of Directors
  • Tanya (committee attendee)
    Val Vista Park HOA
    Attended Building Architectural Committee meeting
  • David Clem Sr (homeowner)
    Val Vista Park Townhomes
    Email recipient

Felicia Woodward v. The Pointe South Mountain Residential Association

Posted on by

Case Summary

Case ID 23F-H054-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-07-28
Administrative Law Judge Adam D. Stone
Outcome The Administrative Law Judge denied the single-issue petition, concluding that the Petitioner failed to prove the Association violated A.R.S. § 33-1804(D). The ALJ found that the gathering was a 'workshop' and not necessarily a formal 'meeting of the board of directors,' and further found that the Petitioner had received sufficient notice regardless.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Felicia Woodward Counsel —
Respondent The Pointe South Mountain Residential Association Counsel Jonathan D. Ebertshauser

Alleged Violations

ARIZ. REV. STAT. § 33-1804

Outcome Summary

The Administrative Law Judge denied the single-issue petition, concluding that the Petitioner failed to prove the Association violated A.R.S. § 33-1804(D). The ALJ found that the gathering was a 'workshop' and not necessarily a formal 'meeting of the board of directors,' and further found that the Petitioner had received sufficient notice regardless.

Why this result: Petitioner failed to meet the burden of proof required by a preponderance of the evidence for the alleged violation of A.R.S. § 33-1804(D). The tribunal determined the meeting was advertised as a workshop and not a statutory board meeting, and the Petitioner had timely opened the notice email a week prior.

Key Issues & Findings

Petitioner alleges the Respondent has violated A.R.S. § 33-1804 by holding a meeting that 'had not been properly noticed…'

Petitioner alleged that the March 14, 2023 meeting was not properly noticed because customary channels (email, calendar, sandwich boards) were not used, and the notice provided did not include the meeting location. Respondent argued notice was given through email survey and the community calendar, meeting the statutory requirements, and that the event was a workshop.

Orders: Petitioner's petition was denied. Respondent shall not reimburse Petitioner's filing fee pursuant to A.R.S. § 32-2199.02(A).

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • ARIZ. REV. STAT. § 33-1804(D)
  • ARIZ. REV. STAT. § 32-2199.02(A)

Analytics Highlights

Topics: Notice Requirements, HOA Board Meeting, Workshop, Filing Fee Reimbursement
Additional Citations:

  • ARIZ. REV. STAT. § 33-1804
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 32-2199.01

Video Overview

Audio Overview

Decision Documents

23F-H054-REL Decision – 1068018.pdf

Uploaded 2026-04-24T12:09:44 (54.7 KB)

23F-H054-REL Decision – 1078258.pdf

Uploaded 2026-04-24T12:09:47 (113.6 KB)

23F-H054-REL Decision – 1068018.pdf

Uploaded 2026-01-23T17:57:36 (54.7 KB)

23F-H054-REL Decision – 1078258.pdf

Uploaded 2026-01-23T17:57:40 (113.6 KB)

This summary addresses the legal case hearing held on July 14, 2023, concerning the matter of Felicia Woodward (Petitioner) versus The Pointe South Mountain Residential Association (Respondent). The hearing was conducted before Administrative Law Judge (ALJ) Adam D. Stone at the Office of Administrative Hearings (OAH).

Key Facts and Main Issues

The central issue was whether the Association violated A.R.S. § 33-1804 by failing to properly notice a community event—the Courthome Improvement Workshop—held on March 14, 2023. Arizona Revised Statute § 33-1804(D) mandates that notice for board meetings must be given at least 48 hours in advance by newsletter, conspicuous posting, or other reasonable means, and must state the date, time, and place of the meeting.

Hearing Arguments

Petitioner’s Case:

Petitioner Felicia Woodward argued that the notice was improper because the Association failed to follow customary notice methods (community-wide email, portal calendar, and sandwich boards). Although she received an email survey more than 48 hours prior to the meeting, she alleged that the link provided the date and time, but did not include the location (the Zoom link). She presented evidence suggesting the meeting was not listed on the community calendar 24 hours prior. Woodward also noted that a board member questioned the adequacy of the notice at the meeting.

Respondent’s Case:

The Association, represented by Jonathan D. Ebertshauser and Marcus R. Martinez, argued that the Association complied with A.R.S. § 33-1804, noting that the statute does not require consistent notice methods. The General Manager, Erin Busey, testified that the March 14th event was a workshop, not a regular monthly board meeting, explaining why costly sandwich boards were not used. Busey stated that the meeting information, including the date, time, and location (the Zoom link), was entered into the system and sent via email survey on March 7, 2023, exceeding the 48-hour requirement. Furthermore, evidence showed the Petitioner actually opened the survey email and clicked the link. Counsel emphasized the legal point that the failure of any member to receive *actual* notice does not affect the validity of actions taken, provided notice was issued.

Final Decision and Outcome

The Administrative Law Judge determined that the Petitioner did not meet her burden of proving a violation of A.R.S. § 33-1804(D) by a preponderance of the evidence.

  1. Nature of the Meeting: The tribunal was not convinced the workshop was a formal “meeting of the board of directors” under the statute, as it was intended for discussion and review of survey results, with no expectation of voting or decisions.
  2. Sufficiency of Notice: Even if the event were considered a board meeting, the Petitioner was found to have had sufficient notice, having opened the email containing the survey and link on March 7, 2023, a week before the workshop.

The ALJ issued an Order denying the Petitioner’s petition. Furthermore, the Association was not required to reimburse the Petitioner’s filing fee.

Questions

Question

Does an HOA workshop count as a 'board meeting' that requires formal legal notice?

Short Answer

Not necessarily. If no votes are taken or decisions made, it may not be considered a meeting of the board of directors under the statute.

Detailed Answer

The ALJ determined that an event advertised as a 'workshop,' where comments and survey results were discussed but no items were voted on or decisions made, did not qualify as a 'meeting of the board of directors' requiring statutory notice.

Alj Quote

The tribunal was not convinced that this was a 'meeting of the board of directors' under the statute. … There was no expectation that items would be voted on or decisions made.

Legal Basis

A.R.S. § 33-1804

Topic Tags

  • meetings
  • workshops
  • definitions

Question

What is the burden of proof for a homeowner filing a petition against their HOA?

Short Answer

The homeowner (Petitioner) bears the burden of proving the violation by a 'preponderance of the evidence.'

Detailed Answer

In an administrative hearing, the homeowner must convince the trier of fact that their contention is 'more probably true than not.'

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1804(D).

Legal Basis

A.R.S. § 32-2199

Topic Tags

  • legal standards
  • burden of proof
  • procedure

Question

Does a member's failure to see a meeting notice invalidate the actions taken at that meeting?

Short Answer

No. The validity of actions taken at a meeting is not affected if a member fails to receive actual notice.

Detailed Answer

Arizona statute explicitly states that if a member does not receive actual notice, it does not void the meeting's actions, provided the notice was properly issued.

Alj Quote

The failure of any member to receive actual notice of a meeting of the board of directors does not affect the validity of any action taken at that meeting.

Legal Basis

A.R.S. § 33-1804(D)

Topic Tags

  • notice
  • validity
  • homeowner rights

Question

How far in advance must an HOA provide notice for a board meeting?

Short Answer

Notice must be given at least 48 hours in advance of the meeting.

Detailed Answer

Unless emergency circumstances exist, the board must provide notice to members via newsletter, conspicuous posting, or other reasonable means at least 48 hours prior.

Alj Quote

notice to members of meetings of the board of directors shall be given at least forty-eight hours in advance of the meeting

Legal Basis

A.R.S. § 33-1804(D)

Topic Tags

  • notice
  • timelines
  • HOA obligations

Question

Can a Zoom link be considered the 'location' of a meeting for notice purposes?

Short Answer

Yes, providing a Zoom link can satisfy the requirement for a meeting location.

Detailed Answer

The decision accepted testimony that a reminder notice containing a Zoom link was considered the location of the meeting, contributing to sufficient notice.

Alj Quote

Ms. Busey testified that a reminder notice was sent out the day of the workshop with the Zoom link, which was considered the 'location' of the meeting.

Legal Basis

A.R.S. § 33-1804

Topic Tags

  • virtual meetings
  • notice
  • technology

Question

If I lose my hearing against the HOA, will I get my filing fee back?

Short Answer

No. If the petition is denied, the filing fee is generally not reimbursed.

Detailed Answer

The order specifically stated that because the petition was denied, the Respondent (HOA) was not required to reimburse the Petitioner's filing fee.

Alj Quote

IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall not reimburse Petitioner’s filing fee

Legal Basis

A.R.S. § 32-2199.02(A)

Topic Tags

  • fees
  • penalties
  • outcomes

Question

Can opening an email with a survey link constitute receiving notice of a meeting?

Short Answer

Yes. Evidence that a homeowner opened an email/link about the event in advance can establish sufficient notice.

Detailed Answer

The ALJ found that because the Petitioner clicked a survey link related to the workshop a week prior, they had sufficient notice of the event.

Alj Quote

Petitioner opened the email regarding the survey and clicked on the link on March 7, 2023, a week prior to the workshop. Therefore, even if this were considered a 'board meeting' Petitioner would have had sufficient notice.

Legal Basis

A.R.S. § 33-1804

Topic Tags

  • notice
  • email
  • digital communication

Case

Docket No
23F-H054-REL
Case Title
Felicia Woodward vs The Pointe South Mountain Residential Association
Decision Date
2023-07-28
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Questions

Question

Does an HOA workshop count as a 'board meeting' that requires formal legal notice?

Short Answer

Not necessarily. If no votes are taken or decisions made, it may not be considered a meeting of the board of directors under the statute.

Detailed Answer

The ALJ determined that an event advertised as a 'workshop,' where comments and survey results were discussed but no items were voted on or decisions made, did not qualify as a 'meeting of the board of directors' requiring statutory notice.

Alj Quote

The tribunal was not convinced that this was a 'meeting of the board of directors' under the statute. … There was no expectation that items would be voted on or decisions made.

Legal Basis

A.R.S. § 33-1804

Topic Tags

  • meetings
  • workshops
  • definitions

Question

What is the burden of proof for a homeowner filing a petition against their HOA?

Short Answer

The homeowner (Petitioner) bears the burden of proving the violation by a 'preponderance of the evidence.'

Detailed Answer

In an administrative hearing, the homeowner must convince the trier of fact that their contention is 'more probably true than not.'

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1804(D).

Legal Basis

A.R.S. § 32-2199

Topic Tags

  • legal standards
  • burden of proof
  • procedure

Question

Does a member's failure to see a meeting notice invalidate the actions taken at that meeting?

Short Answer

No. The validity of actions taken at a meeting is not affected if a member fails to receive actual notice.

Detailed Answer

Arizona statute explicitly states that if a member does not receive actual notice, it does not void the meeting's actions, provided the notice was properly issued.

Alj Quote

The failure of any member to receive actual notice of a meeting of the board of directors does not affect the validity of any action taken at that meeting.

Legal Basis

A.R.S. § 33-1804(D)

Topic Tags

  • notice
  • validity
  • homeowner rights

Question

How far in advance must an HOA provide notice for a board meeting?

Short Answer

Notice must be given at least 48 hours in advance of the meeting.

Detailed Answer

Unless emergency circumstances exist, the board must provide notice to members via newsletter, conspicuous posting, or other reasonable means at least 48 hours prior.

Alj Quote

notice to members of meetings of the board of directors shall be given at least forty-eight hours in advance of the meeting

Legal Basis

A.R.S. § 33-1804(D)

Topic Tags

  • notice
  • timelines
  • HOA obligations

Question

Can a Zoom link be considered the 'location' of a meeting for notice purposes?

Short Answer

Yes, providing a Zoom link can satisfy the requirement for a meeting location.

Detailed Answer

The decision accepted testimony that a reminder notice containing a Zoom link was considered the location of the meeting, contributing to sufficient notice.

Alj Quote

Ms. Busey testified that a reminder notice was sent out the day of the workshop with the Zoom link, which was considered the 'location' of the meeting.

Legal Basis

A.R.S. § 33-1804

Topic Tags

  • virtual meetings
  • notice
  • technology

Question

If I lose my hearing against the HOA, will I get my filing fee back?

Short Answer

No. If the petition is denied, the filing fee is generally not reimbursed.

Detailed Answer

The order specifically stated that because the petition was denied, the Respondent (HOA) was not required to reimburse the Petitioner's filing fee.

Alj Quote

IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall not reimburse Petitioner’s filing fee

Legal Basis

A.R.S. § 32-2199.02(A)

Topic Tags

  • fees
  • penalties
  • outcomes

Question

Can opening an email with a survey link constitute receiving notice of a meeting?

Short Answer

Yes. Evidence that a homeowner opened an email/link about the event in advance can establish sufficient notice.

Detailed Answer

The ALJ found that because the Petitioner clicked a survey link related to the workshop a week prior, they had sufficient notice of the event.

Alj Quote

Petitioner opened the email regarding the survey and clicked on the link on March 7, 2023, a week prior to the workshop. Therefore, even if this were considered a 'board meeting' Petitioner would have had sufficient notice.

Legal Basis

A.R.S. § 33-1804

Topic Tags

  • notice
  • email
  • digital communication

Case

Docket No
23F-H054-REL
Case Title
Felicia Woodward vs The Pointe South Mountain Residential Association
Decision Date
2023-07-28
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Felicia Woodward (petitioner)
    Property owner/Association member
    Full name is Felicia Anne Woodward; Appeared via Google Meet.

Respondent Side

  • Jonathan D. Ebertshauser (attorney)
    Carpenter, Hazlewood, Delgado, & Bolen
    Represented Respondent.
  • Marcus R. Martinez (attorney)
    Carpenter, Hazlewood, Delgado, & Bolen
    Represented Respondent.
  • Erin Busey (witness/general manager)
    First Service Residential (The Pointe South Mountain Residential Association)
    Called as a witness by Respondent; Identified herself as Aaron Ducy during testimony.

Neutral Parties

  • Adam D. Stone (ALJ)
    Office of Administrative Hearings
  • Susan Nicolson (commissioner)
    Arizona Department of Real Estate
    Recipient of official transmission.
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official transmission.
  • vnunez (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official transmission.
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official transmission.
  • labril (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official transmission.

Other Participants

  • Debbie Robinson (witness)
    Referenced by Petitioner as the person who took a screenshot exhibit; Presence/testimony not confirmed in hearing record.

R.L. Whitmer v. Hilton Casitas Council of Homeowners

Posted on by

Case Summary

Case ID 23F-H036-REL
Agency —
Tribunal —
Decision Date 2023-07-10
Administrative Law Judge —
Outcome —
Filing Fees Refunded —
Civil Penalties —

Parties & Counsel

Petitioner R.L. Whitmer Counsel —
Respondent Hilton Casitas Council of Homeowners Counsel —

Alleged Violations

No violations listed

Video Overview

Audio Overview

Decision Documents

23F-H036-REL Decision – 1040709.pdf

Uploaded 2026-04-24T12:03:54 (46.5 KB)

23F-H036-REL Decision – 1044686.pdf

Uploaded 2026-04-24T12:03:58 (45.2 KB)

23F-H036-REL Decision – 1072349.pdf

Uploaded 2026-04-24T12:04:03 (125.2 KB)

Case Briefing: R.L. Whitmer vs. Hilton Casitas Council of Homeowners (No. 23F-H036-REL)

Executive Summary

The legal dispute between R.L. Whitmer (Petitioner) and the Hilton Casitas Council of Homeowners (Respondent) centered on the procedural requirements for approving management contracts within a condominium association. The Petitioner alleged that the Respondent violated Section 17.1 of the Declaration of Horizontal Property Regime by entering into a management contract with Arizona Community Management Services, LLC (AZCMS) without obtaining the mandated prior approval from a majority of the homeowners.

The Administrative Law Judge (ALJ), Tammy L. Eigenheer, determined that the plain language of the association’s governing documents required homeowner approval before a contract becomes effective. The Respondent’s attempt to retroactively ratify the contract more than two years after its execution was found insufficient to cure the initial breach. Consequently, the Petitioner was granted summary judgment, the Respondent was ordered to reimburse the Petitioner’s filing fee, and the association was directed to strictly adhere to the Declaration’s approval requirements for all future management contracts.

Analysis of Key Themes

1. Interpretation of Governing Documents as Contracts

The case reinforces the legal principle that an association’s governing documents—Declarations, Bylaws, and Articles of Incorporation—constitute a binding contract between the association and its members. The ALJ emphasized that when the language of such a contract is "clear and unambiguous," it must be enforced according to its plain meaning without further interpretation.

2. The Scope of "Prior Approval"

A central theme was the temporal requirement of "prior approval." The Respondent argued that the issue was moot because the owners eventually ratified the management contract in January 2023. However, the court ruled that ratification does not satisfy a "prior approval" requirement. The decision established that "prior" explicitly means before the effective date of the contract, and a vote taken two years into the contract's term cannot retroactively fulfill that condition.

3. Administrative Jurisdiction and Petition Scope

The proceedings highlighted the procedural limitations of the Office of Administrative Hearings (OAH). While the Petitioner attempted to raise concerns regarding the eligibility of board members (arguing they were not record owners and thus not members), the ALJ refused to address these allegations. The judge clarified that the scope of the decision is strictly limited to the specific violations alleged in the original petition. To address board qualifications, a separate petition would have been required.

4. Financial and Civil Penalties in HOA Disputes

The ruling distinguished between compensatory measures and punitive penalties. While the Respondent was ordered to reimburse the Petitioner’s $500 filing fee (a standard result when a violation is found), the ALJ denied the request for additional civil penalties. The transcript suggests that civil penalties require a higher threshold of evidence regarding their appropriateness, which was not met in this summary judgment phase.

Important Quotes and Context

On Governing Document Requirements

"The Council may employ a responsible individual, corporation, partnership or other entity as Manager… subject to prior approval of any such management contract by a majority of the Owners." — Section 17.1 of the Declaration

Context: This is the specific provision at the heart of the dispute. It limits the Board's power by requiring homeowner consent for management hires.

On the Respondent's Defense of Ratification

"I would just reiterate from the association's perspective that you know this issue is moot at this point. given the overwhelming approval and it's just wasting everyone's money um to continue furthering the issue in light of that approval." — Edith Rudder, Counsel for Respondent (March 29, 2023 Transcript)

Context: The Respondent argued that since the owners eventually voted to approve the contract in January 2023, the previous lack of approval no longer mattered.

On the Nature of Breach and Retroactivity

"The reality is is they're in breach of the contract and to try to retroactively uh approve it doesn't cure the breach." — R.L. Whitmer, Petitioner (March 29, 2023 Transcript)

Context: The Petitioner’s counter-argument, which the judge ultimately upheld, asserting that a past violation of the Declaration remains a violation regardless of subsequent actions.

On the Limitation of the Legal Issue

"What I have is the management contract and whether or not that was properly executed and approved by the owners. So, um I will not be addressing the qualifications of the board members… That's not before me in this matter." — Judge Tammy L. Eigenheer (March 29, 2023 Transcript)

Context: The Judge clarifies that she will only rule on the specific management contract approval issue, ignoring secondary arguments about board member eligibility.

Actionable Insights

For Homeowners Associations (HOAs)
  • Strict Compliance with "Prior" Mandates: Associations must identify any provisions in their Declarations that require homeowner approval before taking action. "Ratification" after the fact is not a legal substitute for "prior approval" and leaves the association vulnerable to litigation.
  • Audit of Existing Contracts: Boards should review current vendor and management contracts to ensure they were executed in accordance with the specific voting requirements of their governing documents.
  • Cost of Non-Compliance: Even if an association believes its members support a decision, failing to follow the correct procedure can lead to the mandatory reimbursement of legal filing fees and potential orders for corrective action.
For Petitioners/Homeowners
  • Petition Specificity: When filing a petition with the Department of Real Estate or OAH, it is critical to include all alleged violations. The court will not rule on issues (like board member eligibility) if they are not explicitly raised in the initial filing, even if they seem relevant to the broader context of the dispute.
  • Focus on Plain Language: Success in these matters often depends on pointing to clear, unambiguous language in the Declaration. Arguments based on the "plain meaning" of words (like "prior") are highly effective in summary judgment motions.

Procedural Timeline

Date Event
October 9, 2020 Respondent’s board votes unanimously to enter into the AZCMS contract.
December 1, 2020 Effective start date of the AZCMS management contract.
December 27, 2022 Petitioner (R.L. Whitmer) files the petition alleging a violation of Section 17.1.
January 26, 2023 Owners ratify the AZCMS contract via absentee ballots.
March 10, 2023 ALJ issues order setting a deadline for responses to pending motions.
March 29, 2023 Prehearing conference conducted via Google Meet.
July 10, 2023 Final Decision issued: Summary Judgment granted to Petitioner.

Case Study: R.L. Whitmer v. Hilton Casitas Council of Homeowners (No. 23F-H036-REL)

This study guide examines the legal dispute between Petitioner R.L. Whitmer and the Respondent, Hilton Casitas Council of Homeowners. The case centers on the interpretation of Homeowners Association (HOA) governing documents, specifically regarding the authorization requirements for management contracts.

1. Case Overview and Parties

The matter was adjudicated in the Arizona Office of Administrative Hearings (OAH) before Administrative Law Judge (ALJ) Tammy L. Eigenheer.

  • Petitioner: R.L. Whitmer, a member of the association.
  • Respondent: Hilton Casitas Council of Homeowners, a non-profit corporation governing 29 condominium units in Scottsdale, Arizona.
  • Central Dispute: Whether the Respondent violated its own Declaration of Horizontal Property Regime by entering into a management contract without the prior approval of a majority of the owners.

2. Key Governing Documents

The relationship between the parties and the legal requirements for association actions are governed by a hierarchy of documents:

Document Description and Relevance
Declaration (1972) The primary governing document. Section 17.1 specifically mandates that management contracts are subject to "prior approval" by a majority of the Owners.
Bylaws Outlines administrative procedures, including quorum requirements (majority of members) and voting procedures. Article XI specifies that the Declaration controls in any conflict.
Condominium Act State legislation under which the Respondent is governed.
Nonprofit Corporation Act State legislation governing the corporate structure of the Respondent.

3. Timeline of Events

Date Event
October 9, 2020 The Board of Directors votes unanimously to enter a contract with Arizona Community Management Services, LLC (AZCMS).
December 1, 2020 The management contract with AZCMS becomes effective.
December 27, 2022 Petitioner R.L. Whitmer files a petition alleging a violation of the Declaration.
January 26, 2023 The Owners attempt to ratify the AZCMS contract via absentee ballots during an open meeting.
March 29, 2023 A prehearing conference is held to determine if factual disputes require an evidentiary hearing.
July 10, 2023 ALJ Eigenheer issues the final Administrative Law Judge Decision.

4. Legal Reasoning and Conclusion

The ALJ’s decision rested on the plain language of the contract between the association and its members (the Declaration).

  • The "Prior Approval" Standard: Section 17.1 of the Declaration requires approval prior to the establishment of a management contract.
  • Ineffectiveness of Ratification: The ALJ ruled that the vote taken in January 2023 did not satisfy the "prior approval" requirement for a contract that had already been in effect for over two years.
  • Summary Judgment: Because the facts regarding the timing of the contract and the lack of initial owner approval were undisputed, the case was decided as a matter of law without the need for a full evidentiary hearing on the violation itself.
Final Order Summary
  1. Motion for Summary Judgment: Granted to the Petitioner.
  2. Motion to Dismiss: Denied.
  3. Restitution: Respondent ordered to reimburse Petitioner's $500.00 filing fee.
  4. Civil Penalty: Denied.
  5. Injunctive Relief: Respondent directed to comply with Section 17.1 for all future management contracts.

5. Short-Answer Practice Questions

Q1: According to Section 1.4 and 1.8 of the Declaration, who constitutes the "Council" and how is an "Owner" defined? Answer: The Council consists of all Owners of the Casitas. An Owner is defined as the record owner of a Casita.

Q2: What was the Respondent’s primary argument for why the legal challenge was moot? Answer: The Respondent argued that the issue was moot because the Owners ratified the contract in January 2023 with "overwhelming approval," showing the community was content with the management.

Q3: Why did the ALJ refuse to address Petitioner Whitmer’s allegations regarding the eligibility of certain board members? Answer: The ALJ stated that the qualifications of board members were not raised in the original petition, which was strictly limited to the approval process of the management contract.

Q4: In the event of a conflict between the Bylaws and the Declaration, which document takes precedence? Answer: According to Article XI, Section 1 of the Bylaws, the provisions of the Declaration shall control.

Q5: What was the specific start date of the AZCMS contract, and when did the Petitioner file the petition? Answer: The contract started on December 1, 2020; the petition was filed on December 27, 2022.

6. Essay Prompts for Deeper Exploration

Prompt 1: Contractual Interpretation in HOA Governance Analyze the ALJ’s decision to apply the "plain language" rule to Section 17.1 of the Declaration. Discuss why the court rejected the concept of retroactive ratification as a substitute for "prior approval." How does this interpretation protect the rights of individual homeowners within an association?

Prompt 2: Procedural Hierarchy and the Scope of Administrative Hearings During the prehearing conference, the Petitioner attempted to raise issues regarding board member eligibility, which the ALJ excluded. Discuss the importance of the "original petition" in defining the scope of a legal matter. Why is it procedurally necessary for a judge to limit the case to the issues initially filed?

7. Glossary of Important Terms

  • Administrative Law Judge (ALJ): A judge who trie cases relating to the functions of administrative agencies (in this case, the Office of Administrative Hearings).
  • Casita: The term used in the governing documents to refer to the individual condominium units within the Hilton Casitas.
  • Declaration for Horizontal Property Regime: A legal document that creates the condominium and sets forth the primary rules and restrictions for the association.
  • Motion for Summary Judgment: A request for the court to rule in favor of one party without a trial because there are no disputed facts and the law is clearly on their side.
  • Motion to Dismiss: A formal request for a court to throw out a case, often on the grounds that the claim is moot or lacks legal merit.
  • Prior Approval: A requirement that consent be obtained before an action is taken or a contract is finalized.
  • Quorum: The minimum number of members of an assembly or group that must be present at any of its meetings to make the proceedings of that meeting valid.
  • Ratification: The action of signing or giving formal consent to a treaty, contract, or agreement, making it officially valid after the fact.
  • Respondent: The party against whom a petition is filed (the Association in this case).

The Power of "Prior Approval": Lessons from the Whitmer vs. Hilton Casitas HOA Ruling

1. Introduction: When Governing Documents Mean Exactly What They Say

In the complex landscape of community association law, an HOA’s Declaration and Bylaws are not merely helpful suggestions or flexible guidelines—they are binding contracts. When a board of directors bypasses the procedural requirements clearly outlined in these governing documents, they undermine the legal foundation of the community.

The case of R.L. Whitmer vs. Hilton Casitas Council of Homeowners (No. 23F-H036-REL) stands as a pivotal warning for associations that attempt to take procedural shortcuts. As this administrative ruling demonstrates, even if a decision is eventually favored by a majority of owners, it does not excuse an initial breach of the governing documents. In the eyes of the law, "fixing it later" is rarely a valid substitute for doing it right the first time.

2. The Core Dispute: A Management Contract Without Consent

The conflict originated from an October 9, 2020, board meeting where the Hilton Casitas board voted unanimously to hire Arizona Community Management Services, LLC (AZCMS). The contract was set to begin on December 1, 2020. While the board followed their internal meeting procedures, they neglected a mandatory contractual prerequisite found in their Declaration of Horizontal Property Regime.

The Petitioner, R.L. Whitmer, asserted that the board failed to comply with Section 17.1 of the Declaration, which places a specific limitation on the Council’s authority to employ management.

Section 17.1 of the Declaration states: “Employment: The Council may employ a responsible individual, corporation, partnership or other entity as Manager to manage and control the General Common Elements… subject to prior approval of any such management contract by a majority of the Owners.”

By committing the association to a management entity without first securing the affirmative vote of the majority of the 29 owners, the board bypassed the clear requirement for owner participation in the decision-making process.

3. The "Mootness" Defense: Why Retroactive Ratification Failed

During the pre-hearing conference held on March 29, 2023, the Respondent (the HOA) moved to dismiss the case, arguing that the issue was "moot." They pointed to a vote taken in January 2023—more than two years after the contract began—where the community ratified the management contract. The association’s counsel argued that because the community was "content" with the service, continuing the legal dispute was a waste of members' money and legal fees.

The Petitioner countered that a retroactive vote cannot "cure" a breach of contract that has persisted for years. He argued that the board's ongoing disregard for the governing documents and state statutes necessitated a formal ruling to ensure future compliance.

The Administrative Law Judge (ALJ) rejected the association's defense. In the Conclusions of Law, the ALJ noted that when the intent of the parties is "clear and unambiguous from its plain language," that language must be enforced. The ALJ specifically determined that the term "prior approval" cannot be satisfied by a vote taken after the contract is already in effect. The board’s later attempt to ratify the contract did not change the fact that they had already breached the Declaration.

4. The Administrative Ruling: Findings and Penalties

On July 10, 2023, the ALJ issued a decision granting Summary Judgment in favor of the Petitioner. Because the association admitted to the timeline of the contract and the date of the owners' vote, the facts were "uncontested." This allowed the judge to rule immediately on the law without the need for a full evidentiary hearing on the violation itself.

The final order established the following:

  1. Granting of Summary Judgment: The judge affirmed that the association failed to comply with Section 17.1 of the Declaration.
  2. Denial of Motion to Dismiss: The "mootness" argument based on the retroactive vote was rejected.
  3. Reimbursement of Filing Fee: The HOA was ordered to pay the Petitioner $500.00 for his filing costs.
  4. Directive for Compliance: The ALJ denied the request for civil penalties, opting instead to issue a directive for the HOA to strictly comply with Section 17.1 in all future management contract dealings.
  5. Strict Adherence to the Petition: In a critical lesson for homeowners, the ALJ refused to hear arguments regarding the eligibility of certain board members (corporate vs. trust ownership). The ALJ clarified that because these issues were not raised in the initial petition, they were outside the scope of the matter—reminding all parties that you only get to argue the issues you formally file.
5. Critical Takeaways for HOA Boards and Homeowners

The Whitmer vs. Hilton Casitas ruling offers several essential lessons for maintaining the integrity of community governance:

  • Words Matter: The ALJ's logic was uncompromising: "The plain language of the Declaration is unambiguous" (Conclusion of Law #2). Specifically, an approval given "after the contract… does not constitute prior approval" (Conclusion of Law #8). Terms like "prior" are interpreted strictly; they cannot be redefined for convenience.
  • Procedural Integrity Over Convenience: The association’s defense that the community was "content" or that the board was trying to "save money" by avoiding a hearing was not a legal defense for skipping a mandatory vote. The board must prioritize the process defined in the contract over perceived administrative efficiency.
  • The Scope of the Petition: Homeowners must be meticulous when filing a petition. The ALJ will not opine on issues—such as board eligibility or trust status—unless they are explicitly included in the original filing. You must lay your entire legal groundwork from day one.
  • The Hidden Costs of Non-Compliance: While the association was only ordered to reimburse a $500 filing fee, the real financial impact was the "legal fees for this defense" mentioned by the association’s counsel during the conference. These costs are ultimately borne by the 29 owners, proving that violating the governing documents is far more expensive than following them.
6. Conclusion: Strengthening Community Governance

This ruling is a significant victory for transparency and the adherence to established rules. It reinforces the principle that homeowners have a contractual right to participate in the governance of their community as specified in their Declaration. When a board ignores "prior approval" requirements, they are not just skipping a step; they are breaching a contract with every owner they represent.

For board members, the mandate is clear: Conduct a thorough review of your Declaration and Bylaws before entering into any major contract. For homeowners, this case is a testament to the importance of staying engaged and holding leadership accountable to the community's own rules. Governing documents are the law of the association, and compliance is a non-negotiable obligation.

Case Participants

Petitioner Side

  • R.L. Whitmer (Petitioner)

Respondent Side

  • Edith Rudder (Counsel)
    Carpenter, Hazlewood, Delgado & Bolen, PLC
    Also referred to as Eadie Rudder
  • Maria McKe (Representative)
    Appeared on behalf of respondent at the pre-hearing conference

Neutral Parties

  • Tammy L. Eigenheer (Administrative Law Judge)
    Office of Administrative Hearings
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate

Deborah L. Masear v. Paradise Park Condominiums Phase II Homeowners

Posted on by

Case Summary

Case ID 23F-H053-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-07-10
Administrative Law Judge Brian Del Vecchio
Outcome The Administrative Law Judge affirmed the Petitioner's claim, finding that the HOA violated Article II Section 3 of its bylaws by failing to hold the Annual Meeting on the second Monday of March (March 13, 2023). The HOA was ordered to reimburse the Petitioner's $500.00 filing fee, but a request for a civil penalty was denied.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Deborah L. Masear Counsel —
Respondent Paradise Park Condominiums Phase II Homeowners Association Counsel Ashley N. Moscarello

Alleged Violations

Article II Section 3 of Respondent’s bylaws

Outcome Summary

The Administrative Law Judge affirmed the Petitioner's claim, finding that the HOA violated Article II Section 3 of its bylaws by failing to hold the Annual Meeting on the second Monday of March (March 13, 2023). The HOA was ordered to reimburse the Petitioner's $500.00 filing fee, but a request for a civil penalty was denied.

Key Issues & Findings

Failure to hold an annual meeting as required by bylaws

The HOA failed to hold the mandatory annual meeting on March 13, 2023, as explicitly required by the amended bylaws (Article II Section 3). The meeting was subsequently scheduled for May 8, 2023, 56 days late, constituting a violation, even though the later meeting failed to meet quorum.

Orders: Petitioner’s petition is affirmed. Respondent shall reimburse Petitioner’s filing fee of $500.00. Petitioner’s request to levy a civil penalty against Respondent is denied.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. § 32-2199.02(A)
  • ARIZ. REV. STAT. §§ 32-2102
  • ARIZ. REV. STAT. §§ 32-2199 et seq.

Analytics Highlights

Topics: HOA, Condominium, Annual Meeting, Bylaw Violation, Filing Fee Refund
Additional Citations:

  • ARIZ. REV. STAT. § 32-2199.02(A)
  • 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. § 32-2199.04
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. ADMIN. CODE R2-19-119
  • 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)

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Video Overview

Audio Overview

Decision Documents

23F-H053-REL Decision – 1072068.pdf

Uploaded 2026-04-24T12:09:36 (115.3 KB)

23F-H053-REL Decision – 1072068.pdf

Uploaded 2026-01-23T17:57:32 (115.3 KB)

This summary addresses the legal case hearing concerning Deborah L. Masear v. Paradise Park Condominiums Phase II Homeowners Association (HOA), docket number 23F-H053-REL, which was heard by Administrative Law Judge (ALJ) Brian Del Vecchio on June 19, 2023. The case was referred by the Arizona Department of Real Estate.

Key Facts and Main Issue

The main issue was whether the HOA violated Article II Section 3 of its governing bylaws by failing to hold its 2023 annual meeting as required. The HOA’s bylaws, as amended in 1996, explicitly mandate that the Annual Meeting of Members "shall be held" on the second Monday in March each year. For 2023, the required date was March 13. The Petitioner, Deborah Masear, filed her complaint around April 10, 2023, after the mandated March date had passed without a meeting being scheduled.

Key Arguments and Proceedings

The Petitioner argued that the HOA had been out of compliance regarding the annual meeting schedule for both 2022 and 2023, and that the 2023 meeting was only scheduled *after* she filed her complaint.

The Respondent (HOA) admitted that the meeting was not held on the required March date. However, the HOA argued that the petition should be dismissed because they eventually noticed and held a meeting on May 8, 2023. The HOA further argued that while an election was attempted, no business or election could take place because the members failed to meet the required quorum of 25% (35 members needed), as only 29 members participated. The HOA asserted that the failure to conduct business was due to member non-participation, not a failure of the association itself.

Most Important Legal Points

The ALJ’s determination centered on the interpretation of the HOA’s bylaws. The ALJ emphasized that the phrase "shall be held" within the bylaws is not permissive. Therefore, the HOA was obligated to hold the meeting on the designated March date. The ALJ noted that the May 8, 2023, meeting was 56 days late.

Outcome and Final Decision

The ALJ concluded that the Petitioner sustained her burden of proof. The ALJ found that the Respondent’s conduct violated Article II Section 3 of its bylaws.

The ALJ affirmed the Petitioner’s petition. As relief, the HOA was ordered to reimburse the Petitioner’s filing fee of $500.00. The Petitioner's request to levy a civil penalty against the Respondent was denied. The ALJ's recommendation was set to become the final administrative order unless modified or rejected by the Department of Real Estate within 30 days.

{ “case”: { “docket_no”: “23F-H053-REL”, “case_title”: “Deborah L. Masear v. Paradise Park Condominiums Phase II Homeowners Association”, “decision_date”: “2023-07-10”, “alj_name”: “Brian Del Vecchio”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “If the bylaws state a specific date for the annual meeting, can the HOA board reschedule it to a different month?”, “short_answer”: “No. If the bylaws use mandatory language like “shall,” the HOA cannot change the date.”, “detailed_answer”: “The ALJ determined that when bylaws state a meeting “shall be held” on a specific date, this language is mandatory and not permissive. The HOA does not have the discretion to change the date of the annual meeting if the governing documents specify exactly when it must occur.”, “alj_quote”: “Respondent’s Bylaws state, ‘[t]he annual meeting of the members shall be held,’ at the designated date and time annually. The phrase ‘shall be held’ is not permissive; there is no changing the date of the annual meeting.”, “legal_basis”: “Bylaws Article II Section 3”, “topic_tags”: [ “Annual Meetings”, “Bylaws Interpretation”, “HOA Obligations” ] }, { “question”: “Does a meeting count as being ‘held’ if the HOA schedules it but fails to reach a quorum?”, “short_answer”: “No. If a quorum is not present, the meeting is legally considered not to have been held.”, “detailed_answer”: “Even if the HOA sends notice and attempts to convene, the failure to achieve a quorum means the meeting cannot conduct business. The ALJ ruled that in such cases, the meeting was not actually held, resulting in a violation if the bylaws required a meeting on that date.”, “alj_quote”: “Respondent attempted to hold an annual meeting on May 8, 2023, and but for the lack of quorum, the meeting was not held.”, “legal_basis”: “Findings of Fact”, “topic_tags”: [ “Quorum”, “Annual Meetings”, “Procedural Requirements” ] }, { “question”: “If I win my dispute against the HOA, will I get my $500 filing fee back?”, “short_answer”: “Yes. The ALJ has the authority to order the HOA to reimburse the filing fee to the prevailing homeowner.”, “detailed_answer”: “In this decision, after ruling in favor of the homeowner regarding the failure to hold the annual meeting, the judge ordered the HOA to reimburse the $500 filing fee the homeowner paid to initiate the case.”, “alj_quote”: “IT IS FURTHER ORDERED Respondent shall reimburse Petitioner’s filing fee of $500.00 pursuant to ARIZ. REV. STAT. § 32-2199.02(A).”, “legal_basis”: “ARIZ. REV. STAT. § 32-2199.02(A)”, “topic_tags”: [ “Remedies”, “Filing Fees”, “Costs” ] }, { “question”: “Will the HOA automatically be fined a civil penalty if they are found to have violated the bylaws?”, “short_answer”: “No. The ALJ may deny a request for civil penalties even if they find that a violation occurred.”, “detailed_answer”: “While the homeowner in this case requested a civil penalty be levied against the HOA for the violation, the ALJ explicitly denied this request in the final order, despite ruling that the HOA had violated the bylaws.”, “alj_quote”: “IT IS FURTHER ORDERED that Petitioner’s request to levy a civil penalty against Respondent is denied.”, “legal_basis”: “Administrative Discretion”, “topic_tags”: [ “Penalties”, “Remedies”, “Enforcement” ] }, { “question”: “Who has to prove that the HOA violated the rules?”, “short_answer”: “The homeowner (Petitioner) bears the burden of proof.”, “detailed_answer”: “In an administrative hearing before the OAH, the person bringing the complaint must prove their case by a ‘preponderance of the evidence.’ It is not up to the HOA to prove they are innocent; the homeowner must prove the violation occurred.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated Article II Section 3 of the Bylaws.”, “legal_basis”: “ARIZ. ADMIN. CODE R2-19-119”, “topic_tags”: [ “Burden of Proof”, “Legal Standards”, “Hearing Procedures” ] }, { “question”: “What kind of HOA disputes can I file with the Arizona Department of Real Estate?”, “short_answer”: “You can file petitions regarding violations of community documents (CC&Rs, bylaws) or state statutes regulating planned communities.”, “detailed_answer”: “The Department has jurisdiction to hear disputes between owners and associations specifically concerning violations of the community’s governing documents or the relevant Arizona statutes regulating these communities.”, “alj_quote”: “The owner or association may petition the department for a hearing concerning violations of community documents or violations of the statutes that regulate planned communities…”, “legal_basis”: “ARIZ. REV. STAT. §§ 32-2102 and 32-2199 et seq.”, “topic_tags”: [ “Jurisdiction”, “ADRE”, “Filing a Complaint” ] } ] }

{ “case”: { “docket_no”: “23F-H053-REL”, “case_title”: “Deborah L. Masear v. Paradise Park Condominiums Phase II Homeowners Association”, “decision_date”: “2023-07-10”, “alj_name”: “Brian Del Vecchio”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “If the bylaws state a specific date for the annual meeting, can the HOA board reschedule it to a different month?”, “short_answer”: “No. If the bylaws use mandatory language like “shall,” the HOA cannot change the date.”, “detailed_answer”: “The ALJ determined that when bylaws state a meeting “shall be held” on a specific date, this language is mandatory and not permissive. The HOA does not have the discretion to change the date of the annual meeting if the governing documents specify exactly when it must occur.”, “alj_quote”: “Respondent’s Bylaws state, ‘[t]he annual meeting of the members shall be held,’ at the designated date and time annually. The phrase ‘shall be held’ is not permissive; there is no changing the date of the annual meeting.”, “legal_basis”: “Bylaws Article II Section 3”, “topic_tags”: [ “Annual Meetings”, “Bylaws Interpretation”, “HOA Obligations” ] }, { “question”: “Does a meeting count as being ‘held’ if the HOA schedules it but fails to reach a quorum?”, “short_answer”: “No. If a quorum is not present, the meeting is legally considered not to have been held.”, “detailed_answer”: “Even if the HOA sends notice and attempts to convene, the failure to achieve a quorum means the meeting cannot conduct business. The ALJ ruled that in such cases, the meeting was not actually held, resulting in a violation if the bylaws required a meeting on that date.”, “alj_quote”: “Respondent attempted to hold an annual meeting on May 8, 2023, and but for the lack of quorum, the meeting was not held.”, “legal_basis”: “Findings of Fact”, “topic_tags”: [ “Quorum”, “Annual Meetings”, “Procedural Requirements” ] }, { “question”: “If I win my dispute against the HOA, will I get my $500 filing fee back?”, “short_answer”: “Yes. The ALJ has the authority to order the HOA to reimburse the filing fee to the prevailing homeowner.”, “detailed_answer”: “In this decision, after ruling in favor of the homeowner regarding the failure to hold the annual meeting, the judge ordered the HOA to reimburse the $500 filing fee the homeowner paid to initiate the case.”, “alj_quote”: “IT IS FURTHER ORDERED Respondent shall reimburse Petitioner’s filing fee of $500.00 pursuant to ARIZ. REV. STAT. § 32-2199.02(A).”, “legal_basis”: “ARIZ. REV. STAT. § 32-2199.02(A)”, “topic_tags”: [ “Remedies”, “Filing Fees”, “Costs” ] }, { “question”: “Will the HOA automatically be fined a civil penalty if they are found to have violated the bylaws?”, “short_answer”: “No. The ALJ may deny a request for civil penalties even if they find that a violation occurred.”, “detailed_answer”: “While the homeowner in this case requested a civil penalty be levied against the HOA for the violation, the ALJ explicitly denied this request in the final order, despite ruling that the HOA had violated the bylaws.”, “alj_quote”: “IT IS FURTHER ORDERED that Petitioner’s request to levy a civil penalty against Respondent is denied.”, “legal_basis”: “Administrative Discretion”, “topic_tags”: [ “Penalties”, “Remedies”, “Enforcement” ] }, { “question”: “Who has to prove that the HOA violated the rules?”, “short_answer”: “The homeowner (Petitioner) bears the burden of proof.”, “detailed_answer”: “In an administrative hearing before the OAH, the person bringing the complaint must prove their case by a ‘preponderance of the evidence.’ It is not up to the HOA to prove they are innocent; the homeowner must prove the violation occurred.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated Article II Section 3 of the Bylaws.”, “legal_basis”: “ARIZ. ADMIN. CODE R2-19-119”, “topic_tags”: [ “Burden of Proof”, “Legal Standards”, “Hearing Procedures” ] }, { “question”: “What kind of HOA disputes can I file with the Arizona Department of Real Estate?”, “short_answer”: “You can file petitions regarding violations of community documents (CC&Rs, bylaws) or state statutes regulating planned communities.”, “detailed_answer”: “The Department has jurisdiction to hear disputes between owners and associations specifically concerning violations of the community’s governing documents or the relevant Arizona statutes regulating these communities.”, “alj_quote”: “The owner or association may petition the department for a hearing concerning violations of community documents or violations of the statutes that regulate planned communities…”, “legal_basis”: “ARIZ. REV. STAT. §§ 32-2102 and 32-2199 et seq.”, “topic_tags”: [ “Jurisdiction”, “ADRE”, “Filing a Complaint” ] } ] }

Case Participants

Petitioner Side

  • Deborah Masear (petitioner)
    Paradise Park Condominiums Phase II HOA Member
    Also referred to as Deborah Maer

Respondent Side

  • Ashley Moscarello (HOA attorney)
    Goodman Law Group
    Appeared on behalf of Respondent
  • Carl Westlund (witness)
    Management Trust
    Community Manager for the HOA

Neutral Parties

  • Brian Del Vecchio (ALJ)
    OAH
    Also referred to as Judge Delio
  • Susan Nicolson (Commissioner)
    ADRE
  • AHansen (ADRE staff)
    ADRE
    Recipient of decision
  • vnunez (ADRE staff)
    ADRE
    Recipient of decision
  • djones (ADRE staff)
    ADRE
    Recipient of decision
  • labril (ADRE staff)
    ADRE
    Recipient of decision

Lisa Kittredge v. SunBird Golf Resort Homeowners Association

Posted on by

Case Summary

Case ID 23F-H040-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-06-13
Administrative Law Judge Tammy L. Eigenheer
Outcome The Administrative Law Judge granted the petition, finding that the SunBird Golf Resort Homeowners Association violated its governing documents by allocating funds from the HOA Contingency funding stream (general assessments) for drainage issues benefitting the SunBird Golf Club, as the 2015 CC&Rs, as amended in 2021, restricted such expenditures exclusively to funds collected under Section 6.7(C).
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Lisa Kittredge Counsel —
Respondent SunBird Golf Resort Homeowners Association Counsel Lori N Brown

Alleged Violations

ARIZ. REV. STAT. § 32-2199 et seq.

Outcome Summary

The Administrative Law Judge granted the petition, finding that the SunBird Golf Resort Homeowners Association violated its governing documents by allocating funds from the HOA Contingency funding stream (general assessments) for drainage issues benefitting the SunBird Golf Club, as the 2015 CC&Rs, as amended in 2021, restricted such expenditures exclusively to funds collected under Section 6.7(C).

Key Issues & Findings

Expenditure of HOA Contingency Funds for Golf Course Drainage Maintenance

Petitioner alleged the HOA improperly used annual assessments (Contingency Fund) to pay $15,968 (capped at $20,000) for cleaning drainage wells on the privately owned SunBird Golf Club property. The ALJ concluded that under the 2015 CC&Rs, as amended in 2021, the HOA was only permitted to expend funds collected specifically pursuant to Section 6.7(C) (Capital Improvement Assessment for Golf Course) for golf course drainage issues, and therefore, using the Contingency fund violated the governing documents.

Orders: Respondent must reimburse Petitioner's filing fee of $500.00 in certified funds and henceforth comply with the provisions of the governing documents.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • SunBird Golf Resort Homeowners Association Covenants, Conditions, and Restrictions Section 6.3(A) (2015)
  • 2021 Amendment to 2015 CC&Rs
  • Section 6.7(C) of the 2021 Amendment
  • ARIZ. REV. STAT. § 32-2199 et seq.
  • Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

Analytics Highlights

Topics: HOA Governance, CC&R Interpretation, Unauthorized Expenditure, Contingency Fund, Drainage Maintenance
Additional Citations:

  • ARIZ. REV. STAT. § 32-2199 et seq.
  • SunBird Golf Resort Homeowners Association Covenants, Conditions, and Restrictions Section 6.3(A) (2015)
  • 2021 Amendment to 2015 CC&Rs
  • Section 6.7(C) of the 2021 Amendment

Video Overview

Audio Overview

Decision Documents

23F-H040-REL Decision – 1039237.pdf

Uploaded 2026-04-24T12:06:37 (47.3 KB)

23F-H040-REL Decision – 1053619.pdf

Uploaded 2026-04-24T12:06:41 (43.9 KB)

23F-H040-REL Decision – 1064270.pdf

Uploaded 2026-04-24T12:06:47 (155.3 KB)

23F-H040-REL Decision – 1039237.pdf

Uploaded 2026-01-23T17:55:43 (47.3 KB)

23F-H040-REL Decision – 1053619.pdf

Uploaded 2026-01-23T17:55:47 (43.9 KB)

23F-H040-REL Decision – 1064270.pdf

Uploaded 2026-01-23T17:55:51 (155.3 KB)

This summary outlines the hearing proceedings, key arguments, and final decision in the matter of *Lisa Kittredge vs. SunBird Golf Resort Homeowners Association* (No. 23F-H040-REL) before the Office of Administrative Hearings (OAH).

Key Facts and Issues

Petitioner Lisa Kittredge filed a petition alleging that the SunBird Golf Resort Homeowners Association (HOA) violated governing documents by accepting financial responsibility to maintain drainage features on the privately owned, for-profit SunBird Golf Club.

The immediate action challenged was the HOA Board's December 2022 decision to allocate up to $20,000 from the HOA Contingency funding stream to open, inspect, and clean out specific drainage wells on the golf course, in response to standing water, odors, and mosquito problems affecting the community.

The main legal issue was whether the current governing documents authorized the HOA to use general homeowner assessment funds for maintenance activities on the Golf Course property.

Arguments and Proceedings

The evidentiary hearing was conducted over two days, May 1 and May 15, 2023.

Petitioner's Argument: The Petitioner argued that the expenditure was improper because the governing documents prohibit the use of general assessments for the golf course. She contended that the 1999 CC&Rs/Transition Documents, which generally exempted the HOA from maintaining the Golf Course land, were still relevant or controlling. Crucially, she argued that the 2021 Amendment to the CC&Rs explicitly restricted funding for golf course activities only to monies collected pursuant to Section 6.7(C) (the newly created $300 Capital Improvement Assessment fund for the Golf Course and Community). The Petitioner conceded that had the HOA used funds from the restricted 6.7(C) account, she would not have filed the petition.

Respondent's Argument (HOA): The HOA countered that the 1999 documents were superseded by subsequent documents, including the 2015 CC&Rs and 2021 Amendment, which were approved by residents. The HOA asserted that Section 6.3(A) of the 2015 CC&Rs authorized using assessments for "drainage areas within SunBird," arguing that fixing the drainage was necessary for the "common good" of SunBird residents, whose property values and quality of life were negatively impacted by flooding caused in part by community runoff. The HOA classified the allocation as an unbudgeted emergency expense appropriate for the Contingency Fund.

Legal Focus: The Administrative Law Judge (ALJ) focused strictly on the HOA's governing documents (CC&Rs, Bylaws, Articles of Incorporation, and Rules), excluding the 1999 leases and transition agreements as enforceable governing documents in this venue. The ALJ also found that the Petitioner did not establish that the 1999 CC&Rs were still in effect by a preponderance of the evidence, citing the clear intent of the 2008 and 2015 restatements to be the sole current CC&Rs.

Outcome and Final Decision

The ALJ determined that the Petitioner sustained her burden of proof that the Respondent violated the Association’s governing documents.

Key Legal Finding: The ALJ concluded that the 2021 Amendment was controlling regarding the funding mechanism for the Golf Course. While the 2015 CC&Rs allowed assessments for "drainage areas within SunBird," the 2021 Amendment clearly restricted the use of assessments for the golf course (including recreational facilities) to "only from funds collected pursuant to Section 6.7(C)". Since the HOA decision specified the use of the general HOA Contingency funding stream for the $20,000 project, the expenditure violated the governing documents.

Order: The Petitioner's petition was granted. The Respondent was ordered to reimburse the Petitioner’s filing fee of $500.00 and was further ordered to henceforth comply with the provisions of the governing documents. (3,803 characters)

Questions

Question

If my HOA adopts new CC&Rs, are the old ones still valid if they weren't explicitly listed as replaced?

Short Answer

Likely not. The ALJ determined that a community is not expected to have multiple operative sets of CC&Rs at the same time, implying the new ones supersede the old ones.

Detailed Answer

Even if an older set of CC&Rs is not explicitly listed as being replaced by a newer set, the Tribunal may find that the older set is no longer in effect. The ALJ reasoned that the clear intention of adopting amended and restated CC&Rs is to serve as the current governing documents, and it is unreasonable to expect a community to operate under multiple conflicting sets.

Alj Quote

One would not expect a community to have more than one operative set of CC&Rs at any given time.

Legal Basis

Contract Interpretation / Superseding Documents

Topic Tags

  • CC&Rs
  • Governing Documents
  • Amendments

Question

Can my HOA spend general assessment funds on property it doesn't own, like a private golf course?

Short Answer

No, unless the governing documents explicitly define that property as being 'served by the Association' or allow such spending.

Detailed Answer

The ALJ ruled that the HOA could not spend general funds on the golf course because there was no evidence the golf course was 'served by the Association' as defined in the CC&Rs. Furthermore, because a specific amendment created a dedicated fund for golf course costs, the HOA was restricted to using only that specific fund.

Alj Quote

No evidence was submitted to establish that the SunBird Golf Course was 'served by the Association.'… Accordingly, the Association was not permitted to expend funds collected as assessments to any drainage issues for the SunBird Golf Course other than those assessments collected pursuant to Section 6.7(C) of the 2021 Amendment.

Legal Basis

CC&R Restrictions on Expenditures

Topic Tags

  • Financials
  • Common Expenses
  • Private Property

Question

If the HOA creates a specific fund for a specific project, can they use general contingency funds for it instead?

Short Answer

No. If an amendment restricts spending for a specific purpose to a specific fund, the HOA cannot use general funds.

Detailed Answer

In this case, the HOA passed an amendment allowing expenses for the golf course 'but only from funds collected' via a specific capital improvement assessment. The ALJ ruled that using general contingency funds violated this restriction.

Alj Quote

The 2021 Amendment allowed the Association to use assessments for the golf course, 'but only from funds collected' under the newly created Capital Improvement Assessment for Golf Course.

Legal Basis

Adherence to Specific Amendments

Topic Tags

  • Financials
  • Assessments
  • Contingency Funds

Question

Who has to prove that the HOA violated the rules in an administrative hearing?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

The homeowner filing the petition is responsible for proving that the HOA violated the statutes or governing documents. They must prove this by a 'preponderance of the evidence,' meaning it is more likely true than not.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-33-1804(A), (C) and (E) and the CC&Rs.

Legal Basis

Burden of Proof

Topic Tags

  • Procedure
  • Legal Standards

Question

If I win my case against the HOA, can I get my $500 filing fee back?

Short Answer

Yes, the ALJ has the authority to order the HOA to reimburse the filing fee.

Detailed Answer

Upon finding that the HOA violated the governing documents, the ALJ ordered the HOA to reimburse the homeowner's filing fee in certified funds.

Alj Quote

IT IS FURTHER ORDERED that Respondent reimburse Petitioner’s filing fee of $500.00 in certified funds.

Legal Basis

A.R.S. § 32-2199 et seq.

Topic Tags

  • Remedies
  • Filing Fees

Question

What is the 'preponderance of the evidence' standard used in these hearings?

Short Answer

It means the claim is 'more probably true than not.'

Detailed Answer

The ALJ defines this standard as evidence that has the most convincing force and is sufficient to incline a fair and impartial mind to one side of the issue, even if it doesn't wholly free the mind from doubt.

Alj Quote

A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.

Legal Basis

Standard of Evidence

Topic Tags

  • Legal Standards
  • Evidence

Case

Docket No
23F-H040-REL
Case Title
Lisa Kittredge vs SunBird Golf Resort Homeowners Association
Decision Date
2023-06-13
Alj Name
Tammy L. Eigenheer
Tribunal
OAH
Agency
ADRE

Questions

Question

If my HOA adopts new CC&Rs, are the old ones still valid if they weren't explicitly listed as replaced?

Short Answer

Likely not. The ALJ determined that a community is not expected to have multiple operative sets of CC&Rs at the same time, implying the new ones supersede the old ones.

Detailed Answer

Even if an older set of CC&Rs is not explicitly listed as being replaced by a newer set, the Tribunal may find that the older set is no longer in effect. The ALJ reasoned that the clear intention of adopting amended and restated CC&Rs is to serve as the current governing documents, and it is unreasonable to expect a community to operate under multiple conflicting sets.

Alj Quote

One would not expect a community to have more than one operative set of CC&Rs at any given time.

Legal Basis

Contract Interpretation / Superseding Documents

Topic Tags

  • CC&Rs
  • Governing Documents
  • Amendments

Question

Can my HOA spend general assessment funds on property it doesn't own, like a private golf course?

Short Answer

No, unless the governing documents explicitly define that property as being 'served by the Association' or allow such spending.

Detailed Answer

The ALJ ruled that the HOA could not spend general funds on the golf course because there was no evidence the golf course was 'served by the Association' as defined in the CC&Rs. Furthermore, because a specific amendment created a dedicated fund for golf course costs, the HOA was restricted to using only that specific fund.

Alj Quote

No evidence was submitted to establish that the SunBird Golf Course was 'served by the Association.'… Accordingly, the Association was not permitted to expend funds collected as assessments to any drainage issues for the SunBird Golf Course other than those assessments collected pursuant to Section 6.7(C) of the 2021 Amendment.

Legal Basis

CC&R Restrictions on Expenditures

Topic Tags

  • Financials
  • Common Expenses
  • Private Property

Question

If the HOA creates a specific fund for a specific project, can they use general contingency funds for it instead?

Short Answer

No. If an amendment restricts spending for a specific purpose to a specific fund, the HOA cannot use general funds.

Detailed Answer

In this case, the HOA passed an amendment allowing expenses for the golf course 'but only from funds collected' via a specific capital improvement assessment. The ALJ ruled that using general contingency funds violated this restriction.

Alj Quote

The 2021 Amendment allowed the Association to use assessments for the golf course, 'but only from funds collected' under the newly created Capital Improvement Assessment for Golf Course.

Legal Basis

Adherence to Specific Amendments

Topic Tags

  • Financials
  • Assessments
  • Contingency Funds

Question

Who has to prove that the HOA violated the rules in an administrative hearing?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

The homeowner filing the petition is responsible for proving that the HOA violated the statutes or governing documents. They must prove this by a 'preponderance of the evidence,' meaning it is more likely true than not.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-33-1804(A), (C) and (E) and the CC&Rs.

Legal Basis

Burden of Proof

Topic Tags

  • Procedure
  • Legal Standards

Question

If I win my case against the HOA, can I get my $500 filing fee back?

Short Answer

Yes, the ALJ has the authority to order the HOA to reimburse the filing fee.

Detailed Answer

Upon finding that the HOA violated the governing documents, the ALJ ordered the HOA to reimburse the homeowner's filing fee in certified funds.

Alj Quote

IT IS FURTHER ORDERED that Respondent reimburse Petitioner’s filing fee of $500.00 in certified funds.

Legal Basis

A.R.S. § 32-2199 et seq.

Topic Tags

  • Remedies
  • Filing Fees

Question

What is the 'preponderance of the evidence' standard used in these hearings?

Short Answer

It means the claim is 'more probably true than not.'

Detailed Answer

The ALJ defines this standard as evidence that has the most convincing force and is sufficient to incline a fair and impartial mind to one side of the issue, even if it doesn't wholly free the mind from doubt.

Alj Quote

A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.

Legal Basis

Standard of Evidence

Topic Tags

  • Legal Standards
  • Evidence

Case

Docket No
23F-H040-REL
Case Title
Lisa Kittredge vs SunBird Golf Resort Homeowners Association
Decision Date
2023-06-13
Alj Name
Tammy L. Eigenheer
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Lisa Kittredge (petitioner)
    Property owner, appeared on her own behalf.
  • Beth Lockwood (witness)
    Testified for Petitioner.

Respondent Side

  • Lori N. Brown (HOA attorney)
    Gordon Rees Scully Mansukhani LLP
  • Ben Bednarek (HOA attorney)
    Also referred to as Benjamin Dinard and Mr. Venorf/Benark.
  • Layne Barney (General Manager)
    SunBird Golf Resort Homeowners Association
    Also referred to as Layne Varney.
  • Charles Brian Heitbrink (board member)
    SunBird Golf Resort Homeowners Association
    Secretary of the Board of Directors. Also referred to as Charles Height.
  • Dirk (board member)
    SunBird Golf Resort Homeowners Association
    Moved motion regarding drainage in Dec 2022 meeting.
  • Jim (board member)
    SunBird Golf Resort Homeowners Association
    Seconded motion regarding drainage in Dec 2022 meeting.
  • Nancy (board member)
    SunBird Golf Resort Homeowners Association
    Made motion regarding golf purchases in Dec 2022 meeting.

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
    Also referred to as Tammy Igener.
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate
  • AHansen (ADRE Staff)
    Arizona Department of Real Estate
    Recipient of official correspondence.
  • vnunez (ADRE Staff)
    Arizona Department of Real Estate
    Recipient of official correspondence.
  • djones (ADRE Staff)
    Arizona Department of Real Estate
    Recipient of official correspondence.
  • labril (ADRE Staff)
    Arizona Department of Real Estate
    Recipient of official correspondence.

Other Participants

  • Lewis Ne (Expert (City Engineer))
    City of Chandler
    Consulted regarding storm water drainage.
  • Thomas (Former HOA President)
    Signed 1999 declaration.

Deanna Smith v. Moondance Townhomes Homeowners Association

Posted on by

Case Summary

Case ID 23F-H049-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-06-06
Administrative Law Judge Brian Del Vecchio
Outcome The ALJ affirmed the petition, finding the HOA violated ARIZ. REV. STAT. § 33-1805 by failing to provide complete financial statements (including balance sheets and statements of cash flows) to the Petitioner upon request. The HOA was ordered to provide the missing financial statements and reimburse the $500 filing fee. A civil penalty was denied.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Deanna Smith Counsel —
Respondent Moondance Townhomes Homeowners Association Counsel Christina Morgan

Alleged Violations

ARIZ. REV. STAT. § 33-1805

Outcome Summary

The ALJ affirmed the petition, finding the HOA violated ARIZ. REV. STAT. § 33-1805 by failing to provide complete financial statements (including balance sheets and statements of cash flows) to the Petitioner upon request. The HOA was ordered to provide the missing financial statements and reimburse the $500 filing fee. A civil penalty was denied.

Key Issues & Findings

Failure to provide association financial records upon member request.

The Petitioner alleged that the Association failed to comply with her request for financial records dated December 15, 2022, pursuant to ARS § 33-1805. The Association provided only Profit & Loss statements on January 12, 2023, but failed to provide other requisite financial documents, such as balance sheets, statements of cash flows, or statements of income, as defined by ARS § 32-701. The failure to fulfill the request for financial statements constituted a violation.

Orders: The petition was affirmed. Respondent was ordered to reimburse the Petitioner's filing fee of $500.00 pursuant to ARIZ. REV. STAT. § 32-2199.02(A). Respondent was ordered to provide financial statements, as defined by ARIZ. REV. STAT. § 32-701, for the months of August 2022 through December 2022 pursuant to ARIZ. REV. STAT. § 33-1805. Petitioner's request for a civil penalty was denied.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. § 33-1805
  • ARIZ. REV. STAT. § 32-701
  • ARIZ. REV. STAT. § 32-2199.02(A)

Analytics Highlights

Topics: Financial Records, Statutory Compliance, Record Request Delay, Filing Fee Reimbursement, HOA Board Member
Additional Citations:

  • ARIZ. REV. STAT. § 33-1805
  • ARIZ. REV. STAT. § 32-701
  • ARIZ. REV. STAT. § 32-2199.02(A)
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et seq.
  • 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.

Video Overview

Audio Overview

Decision Documents

23F-H049-REL Decision – 1062328.pdf

Uploaded 2026-04-29T11:20:11 (149.9 KB)

23F-H049-REL Decision – 1062328.pdf

Uploaded 2026-01-23T17:57:27 (149.9 KB)

This summary details the administrative hearing held on May 17, 2023, regarding *Deanna Smith v Moondance Town Home Association* (Docket No. 23F-H049-RE).

Key Facts and Parties

The Petitioner, Deanna Smith, is a property owner, member, and board member of the Moondance Townhomes Homeowners Association (HOA), the Respondent. The HOA was represented by Christina Morgan, Esq., with George Minter (President) appearing as a witness. The case was heard by Administrative Law Judge (ALJ) Brian Del Vecchio at the Office of Administrative Hearings (OAH).

Main Issues and Legal Points

The central issue was whether the Respondent violated Arizona Revised Statutes (ARIZ. REV. STAT.) § 33-1805, which requires associations to make financial and other records reasonably available to members, typically within ten business days of a request.

Petitioner Smith filed a petition on March 6, 2023, alleging the HOA failed to comply with her December 15, 2022, request for the Association's financial statements for September, October, and November 2022. Smith, who has an accounting background, argued that the financial statements she requested encompassed a balance sheet, statement of cash flows, and statement of income, in addition to the Profit & Loss (P&L) statement. This definition aligns with ARIZ. REV. STAT. § 32-701, which defines "Financial Statement" broadly to include these comprehensive reports.

The Respondent’s defense focused on miscommunication and substantial compliance. The Respondent acknowledged internal "dysfunction" and delays caused by the transition from their prior accounting firm to self-management using QuickBooks. While the Respondent emailed P&L statements on January 12, 2023, they failed to provide other requisite documents. Furthermore, the Association’s President Minter initially directed Smith to search a Google Drive, claiming the records were available there, but the Treasurer later admitted the financial reports were never available on the drive. The ALJ noted that even after receiving the P&L statements, Smith’s subsequent request on January 18, 2023, went unfulfilled.

Outcome and Final Decision

The ALJ found that Petitioner Smith sustained her burden of proving the violation by a preponderance of the evidence.

The ALJ issued a decision on June 6, 2023, concluding that the Respondent’s failure to supply the requisite documents—such as balance sheets and statements of cash flows—constituted a violation of ARIZ. REV. STAT. § 33-1805.

The ALJ issued the following order:

  1. The Petitioner’s petition is affirmed.
  2. The request to levy a civil penalty against the Respondent is denied.
  3. The Respondent shall reimburse the Petitioner’s $500.00 filing fee.
  4. The Respondent shall provide financial statements (as defined by ARIZ. REV. STAT. § 32-701) for the months of August 2022 through December 2022.

Questions

Question

If I request 'financial statements' from my HOA, is it enough for them to just send a Profit and Loss statement?

Short Answer

No. A request for 'financial statements' implies more than just a Profit and Loss statement, and the HOA must provide the full range of documents defined by law.

Detailed Answer

The ALJ determined that providing only a Profit and Loss statement is insufficient when a homeowner requests 'financial statements.' The term encompasses a broader set of documents, including balance sheets and statements of cash flows, which must be provided to fully satisfy the request.

Alj Quote

Because Petitioner requested financial statements for the same period after receiving the Profit and Loss statements, implicit in her request was the understanding merely providing the Profit and Loss statement was insufficient to satisfy her request for financial statements.

Legal Basis

ARIZ. REV. STAT. § 32-701; ARIZ. REV. STAT. § 33-1805

Topic Tags

  • financial records
  • definitions
  • HOA obligations

Question

What specific documents does the law include in the definition of 'financial statements'?

Short Answer

The definition includes balance sheets, statements of income, retained earnings, cash flows, changes in equity, and other standard summaries.

Detailed Answer

Arizona law defines 'Financial Statement' broadly. It is not limited to a single report but includes statements and footnotes showing financial position in conformity with accounting principles.

Alj Quote

In Arizona, “Financial Statement… (b) Includes balance sheets, statements of income, statements of retained earnings, statements of cash flows, statements of changes in equity and other commonly used or recognized summaries of financial information.”

Legal Basis

ARIZ. REV. STAT. § 32-701

Topic Tags

  • financial records
  • definitions
  • accounting

Question

How quickly must my HOA respond to my request to examine records?

Short Answer

The HOA has ten business days to fulfill a request for examination or to provide copies.

Detailed Answer

The statute explicitly sets a ten-business-day deadline for the association to fulfill a request for examination or to provide copies of requested records.

Alj Quote

The association shall have ten business days to fulfill a request for examination. … On request for purchase of copies of records… the association shall have ten business days to provide copies of the requested records.

Legal Basis

ARIZ. REV. STAT. § 33-1805

Topic Tags

  • deadlines
  • procedural requirements
  • homeowner rights

Question

Can the HOA tell me to find the records on a Google Drive or website instead of sending them to me?

Short Answer

Only if the records are actually there and accessible. Directing a homeowner to an empty or incomplete digital folder does not count as providing access.

Detailed Answer

In this case, the HOA President directed the homeowner to a Google Drive, but the Treasurer later admitted the specific documents requested were never uploaded. The ALJ ruled that because the documents were not on the drive, the homeowner was not supplied with access.

Alj Quote

Furthermore, although President directed Petitioner to search the Google Drive for the documents, Treasurer admitted on January 23, 2023, that the documents Petitioner was seeking were never on the drive. Thus, Petitioner was neither supplied nor had access to obtain the requisite financial statements.

Legal Basis

ARIZ. REV. STAT. § 33-1805

Topic Tags

  • digital access
  • compliance
  • records request

Question

Can the HOA charge me a fee for looking at the records?

Short Answer

No. The HOA cannot charge for making material available for review, though they can charge for copies.

Detailed Answer

The law prohibits charging a member for the act of making material available for review. However, if the member requests copies, the association may charge a fee for those copies.

Alj Quote

The association shall not charge a member or any person designated by the member in writing for making material available for review. … An association may charge a fee for making copies of not more than fifteen cents per page.

Legal Basis

ARIZ. REV. STAT. § 33-1805

Topic Tags

  • fees
  • homeowner rights
  • costs

Question

If I win my hearing against the HOA, will I get my filing fee back?

Short Answer

Yes. If the petitioner prevails, the judge is required to order the respondent to reimburse the filing fee.

Detailed Answer

The statute mandates that if the homeowner (petitioner) prevails in the hearing, the administrative law judge must order the HOA (respondent) to pay the filing fee back to the homeowner.

Alj Quote

If the petitioner prevails, the administrative law judge shall order the respondent to pay to the petitioner the filing fee required by section 32-2199.01.

Legal Basis

ARIZ. REV. STAT. § 32-2199.02(A)

Topic Tags

  • reimbursement
  • outcomes
  • filing fees

Question

Will the judge automatically fine the HOA if they violated the records law?

Short Answer

No. While the judge has the authority to levy a civil penalty, it is not mandatory, and they may choose to deny a request for a penalty.

Detailed Answer

The ALJ has the discretion to levy a civil penalty but is not required to do so. In this case, although a violation was found, the judge explicitly denied the request to levy a civil penalty against the HOA.

Alj Quote

The administrative law judge… may levy a civil penalty on the basis of each violation… IT IS FURTHER ORDERED that Petitioner’s request to levy a civil penalty against Respondent is denied.

Legal Basis

ARIZ. REV. STAT. § 32-2199.02(A)

Topic Tags

  • penalties
  • civil penalty
  • judgement

Case

Docket No
23F-H049-REL
Case Title
Deanna Smith v Moondance Townhomes Homeowners Association
Decision Date
2023-06-06
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE

Questions

Question

If I request 'financial statements' from my HOA, is it enough for them to just send a Profit and Loss statement?

Short Answer

No. A request for 'financial statements' implies more than just a Profit and Loss statement, and the HOA must provide the full range of documents defined by law.

Detailed Answer

The ALJ determined that providing only a Profit and Loss statement is insufficient when a homeowner requests 'financial statements.' The term encompasses a broader set of documents, including balance sheets and statements of cash flows, which must be provided to fully satisfy the request.

Alj Quote

Because Petitioner requested financial statements for the same period after receiving the Profit and Loss statements, implicit in her request was the understanding merely providing the Profit and Loss statement was insufficient to satisfy her request for financial statements.

Legal Basis

ARIZ. REV. STAT. § 32-701; ARIZ. REV. STAT. § 33-1805

Topic Tags

  • financial records
  • definitions
  • HOA obligations

Question

What specific documents does the law include in the definition of 'financial statements'?

Short Answer

The definition includes balance sheets, statements of income, retained earnings, cash flows, changes in equity, and other standard summaries.

Detailed Answer

Arizona law defines 'Financial Statement' broadly. It is not limited to a single report but includes statements and footnotes showing financial position in conformity with accounting principles.

Alj Quote

In Arizona, “Financial Statement… (b) Includes balance sheets, statements of income, statements of retained earnings, statements of cash flows, statements of changes in equity and other commonly used or recognized summaries of financial information.”

Legal Basis

ARIZ. REV. STAT. § 32-701

Topic Tags

  • financial records
  • definitions
  • accounting

Question

How quickly must my HOA respond to my request to examine records?

Short Answer

The HOA has ten business days to fulfill a request for examination or to provide copies.

Detailed Answer

The statute explicitly sets a ten-business-day deadline for the association to fulfill a request for examination or to provide copies of requested records.

Alj Quote

The association shall have ten business days to fulfill a request for examination. … On request for purchase of copies of records… the association shall have ten business days to provide copies of the requested records.

Legal Basis

ARIZ. REV. STAT. § 33-1805

Topic Tags

  • deadlines
  • procedural requirements
  • homeowner rights

Question

Can the HOA tell me to find the records on a Google Drive or website instead of sending them to me?

Short Answer

Only if the records are actually there and accessible. Directing a homeowner to an empty or incomplete digital folder does not count as providing access.

Detailed Answer

In this case, the HOA President directed the homeowner to a Google Drive, but the Treasurer later admitted the specific documents requested were never uploaded. The ALJ ruled that because the documents were not on the drive, the homeowner was not supplied with access.

Alj Quote

Furthermore, although President directed Petitioner to search the Google Drive for the documents, Treasurer admitted on January 23, 2023, that the documents Petitioner was seeking were never on the drive. Thus, Petitioner was neither supplied nor had access to obtain the requisite financial statements.

Legal Basis

ARIZ. REV. STAT. § 33-1805

Topic Tags

  • digital access
  • compliance
  • records request

Question

Can the HOA charge me a fee for looking at the records?

Short Answer

No. The HOA cannot charge for making material available for review, though they can charge for copies.

Detailed Answer

The law prohibits charging a member for the act of making material available for review. However, if the member requests copies, the association may charge a fee for those copies.

Alj Quote

The association shall not charge a member or any person designated by the member in writing for making material available for review. … An association may charge a fee for making copies of not more than fifteen cents per page.

Legal Basis

ARIZ. REV. STAT. § 33-1805

Topic Tags

  • fees
  • homeowner rights
  • costs

Question

If I win my hearing against the HOA, will I get my filing fee back?

Short Answer

Yes. If the petitioner prevails, the judge is required to order the respondent to reimburse the filing fee.

Detailed Answer

The statute mandates that if the homeowner (petitioner) prevails in the hearing, the administrative law judge must order the HOA (respondent) to pay the filing fee back to the homeowner.

Alj Quote

If the petitioner prevails, the administrative law judge shall order the respondent to pay to the petitioner the filing fee required by section 32-2199.01.

Legal Basis

ARIZ. REV. STAT. § 32-2199.02(A)

Topic Tags

  • reimbursement
  • outcomes
  • filing fees

Question

Will the judge automatically fine the HOA if they violated the records law?

Short Answer

No. While the judge has the authority to levy a civil penalty, it is not mandatory, and they may choose to deny a request for a penalty.

Detailed Answer

The ALJ has the discretion to levy a civil penalty but is not required to do so. In this case, although a violation was found, the judge explicitly denied the request to levy a civil penalty against the HOA.

Alj Quote

The administrative law judge… may levy a civil penalty on the basis of each violation… IT IS FURTHER ORDERED that Petitioner’s request to levy a civil penalty against Respondent is denied.

Legal Basis

ARIZ. REV. STAT. § 32-2199.02(A)

Topic Tags

  • penalties
  • civil penalty
  • judgement

Case

Docket No
23F-H049-REL
Case Title
Deanna Smith v Moondance Townhomes Homeowners Association
Decision Date
2023-06-06
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Deanna Smith (petitioner, board member)
    Moondance Townhomes Homeowners Association

Respondent Side

  • Christina Morgan (HOA attorney)
    Vingham
  • George Minter (President, board member, witness)
    Moondance Townhomes Homeowners Association
  • Linda Dieball (Treasurer, board member)
    Moondance Townhomes Homeowners Association

Neutral Parties

  • Brian Del Vecchio (ALJ)
    Office of Administrative Hearings
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
  • vnunez (ADRE staff)
    Arizona Department of Real Estate
  • djones (ADRE staff)
    Arizona Department of Real Estate
  • labril (ADRE staff)
    Arizona Department of Real Estate

Jill P. Eden-Burns v. Tonto Forest Estates Homeowners Association

Posted on by

Case Summary

Case ID 23F-H015-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-05-18
Administrative Law Judge Tammy L. Eigenheer
Outcome The petition was granted because the Association violated A.R.S. § 33-1804 (Open Meeting Law) by holding an informal quorum discussion prior to a meeting, and violated CC&R 4.32 by improperly charging the homeowner $1750.00 for septic maintenance and repair costs that should have been covered by annual common assessments.
Filing Fees Refunded $1,000.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Jill P. Eden-Burns Counsel —
Respondent Tonto Forest Estates Homeowners Association Counsel Daniel S. Francom

Alleged Violations

A.R.S. § 33-1804(A), (C), (E); CC&R 4.32

Outcome Summary

The petition was granted because the Association violated A.R.S. § 33-1804 (Open Meeting Law) by holding an informal quorum discussion prior to a meeting, and violated CC&R 4.32 by improperly charging the homeowner $1750.00 for septic maintenance and repair costs that should have been covered by annual common assessments.

Key Issues & Findings

Violation of Open Meeting Laws and unequal application of CC&R 4.32 regarding septic system costs.

The Board violated open meeting laws by holding an informal quorum discussion about septic policy prior to a formal meeting. Additionally, the Association improperly charged Petitioner $1750.00 for septic maintenance and repair, violating CC&R 4.32, which mandates such costs be included as part of Assessments allocated equally among all Lots.

Orders: Petition granted. Respondent must reimburse the $1,000.00 filing fee and henceforth comply with A.R.S. § 33-33-1804 and CC&R 4.32.

Filing fee: $1,000.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1804(A)
  • A.R.S. § 33-1804(C)
  • A.R.S. § 33-1804(E)
  • CC&R 4.32

Analytics Highlights

Topics: Open Meeting Law, HOA Governing Documents, Assessment Dispute, Septic System Maintenance, Informal Meeting
Additional Citations:

  • A.R.S. § 32-2102
  • A.R.S. § 32-2199 et seq.
  • A.R.S. § 33-1804(A)
  • A.R.S. § 33-1804(C)
  • A.R.S. § 33-1804(E)
  • CC&R 4.32
  • CC&R 8.1
  • CC&R 8.2
  • CC&R 11.2
  • CC&R 15.1

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Video Overview

Audio Overview

Decision Documents

23F-H015-REL Decision – 1015027.pdf

Uploaded 2026-01-23T17:51:28 (52.0 KB)

23F-H015-REL Decision – 1017891.pdf

Uploaded 2026-01-23T17:51:32 (53.2 KB)

23F-H015-REL Decision – 1024720.pdf

Uploaded 2026-01-23T17:51:35 (59.5 KB)

23F-H015-REL Decision – 1033722.pdf

Uploaded 2026-01-23T17:51:38 (47.5 KB)

23F-H015-REL Decision – 1057466.pdf

Uploaded 2026-01-23T17:51:42 (168.6 KB)

This summary details the administrative hearing proceedings (No. 23F-H015-REL) initiated by Petitioner Jill P. Eden-Burns against the Tonto Forest Estates Homeowners Association (Association/Respondent). The hearing took place across two dates: February 13, 2023, and April 4, 2023.

Key Facts

The Petitioner filed a complaint alleging the Association violated Arizona’s Open Meeting Law (A.R.S. § 33-1804) and improperly applied Section 4.32 of the Community Conditions, Covenants, and Restrictions (CC&Rs). The substantive dispute centered on a $1,750.00 charge for a repair and pumpout performed on the Petitioner’s required sewage treatment system in November 2021. Although the Association initially paid for the work, it subsequently back assessed the Petitioner for the full amount.

Main Legal Issues and Arguments

  1. Violation of Open Meeting Law (A.R.S. § 33-1804):
  • The Petitioner alleged that a quorum of the Board members held an informal, closed meeting via Zoom on January 31, 2022, immediately prior to the officially scheduled open meeting. The Petitioner, who inadvertently joined the call, was subsequently removed.
  • Testimony and a recorded transcript revealed that Board members, including the President, discussed the pending septic issue and procedural methods for presenting a new "policy" regarding pumpouts without holding a formal vote.
  • The Respondent argued this was merely procedural discussion, not substantive Association business.
  • Legal Point: A.R.S. § 33-1804(E) requires that a quorum of the board meeting informally to discuss association business must comply with open meeting and notice provisions, even if no vote is taken.
  1. Improper Application of CC&R Section 4.32 (Septic Costs):
  • CC&R Section 4.32 states that the Association assumes "responsibility for the monitoring, maintenance and repair" of the required sewage treatment system, "with the costs thereof to be included as part of the Assessments payable by such Owner".
  • The Petitioner argued that "Assessments" is a defined term in the CC&Rs (Article I), referring to annual charges levied pursuant to Article 8. Article 8 requires assessments to be allocated equally among all Lots for Common Expenses. Therefore, maintenance costs should be covered by general funds, not back assessed to individual owners.
  • The Respondent countered that 4.32 explicitly allows costs to be assessed back to the specific owner because the system is on private property and usage varies, making individual assessment equitable.
  • Legal Point: The Administrative Law Judge determined that because the definition of "Assessments" (Article I, referencing Article 8) mandates equal allocation among all lots, the CC&Rs do not provide a mechanism in Article 8 to charge a single owner for lot-specific fees. Thus, the Association was required to pay for system maintenance from annual assessments.

Outcome and Final Decision

The Administrative Law Judge granted the Petitioner’s petition, finding that the Petitioner successfully sustained the burden of proof for both claims.

  • Decision on Open Meeting: The informal discussion among a quorum of the Board regarding septic policy constituted a discussion of Association business in violation of A.R.S. § 33-33-1804.
  • Decision on Assessments: The Association improperly charged the Petitioner $1,750.00 for the septic repair and pumpout.
  • Orders: The Association was ordered to henceforth comply with A.R.S. § 33-33-1804 and CC&R Section 4.32, and to reimburse the Petitioner's filing fee of $1,000.00.

{ “case”: { “docket_no”: “23F-H015-REL”, “case_title”: “Jill P. Eden-Burns v. Tonto Forest Estates Homeowners Association”, “decision_date”: “2023-05-18”, “alj_name”: “Tammy L. Eigenheer”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Can the HOA board meet informally (e.g., on Zoom) before an open meeting to discuss business without notifying homeowners?”, “short_answer”: “No. Any gathering of a quorum of the board to discuss association business, even informally, must be open to members.”, “detailed_answer”: “Arizona law requires that whenever a quorum of the board meets to discuss association business, the meeting must be open to members. This applies even if the meeting is informal and no official votes or actions are taken during that time. Discussions about how to handle agenda items or agreeing on policies effectively constitute a meeting.”, “alj_quote”: “The plain language of the statute provides that when a quorum of a board of directors meets, even informally, to discuss association business, the meeting must be open to the members of the association, even if they do not vote or take any action during the informal meeting.”, “legal_basis”: “A.R.S. § 33-1804(A), (C), and (E)”, “topic_tags”: [ “open meeting law”, “board procedures”, “informal meetings” ] }, { “question”: “Does the board have to take a formal vote for a private discussion to be considered a violation of open meeting laws?”, “short_answer”: “No. Merely discussing business is sufficient to trigger open meeting requirements.”, “detailed_answer”: “It is a violation of open meeting laws for a quorum of the board to discuss association business in private, even if they do not take a formal vote or action. If the board members discuss a policy and agree on how to proceed (e.g., agreeing to ‘just nod our heads’ later), they are conducting business that must be done in the open.”, “alj_quote”: “The plain language of the statute provides that when a quorum of a board of directors meets, even informally, to discuss association business, the meeting must be open to the members of the association, even if they do not vote or take any action during the informal meeting.”, “legal_basis”: “A.R.S. § 33-1804(E)”, “topic_tags”: [ “open meeting law”, “voting”, “quorum” ] }, { “question”: “Can the HOA charge me individually for maintenance on my lot if the CC&Rs say costs are part of ‘Assessments’?”, “short_answer”: “Not necessarily. It depends on how ‘Assessments’ is defined in your CC&Rs.”, “detailed_answer”: “If the CC&Rs define ‘Assessments’ as charges levied against each membership equally (like annual dues), the HOA cannot interpret a provision saying costs are ‘part of the Assessments’ as authorization to bill a single owner individually. Unless there is a specific provision allowing individual charges (like for owner negligence), maintenance costs defined as ‘Assessments’ must generally be paid from the common funds.”, “alj_quote”: “Nothing in Article 8 provides a mechanism by which a single owner may be charged for fees associated with their lot. Rather, that type of charge is located in Section 11 of the CC&Rs, which is not referenced in the definition of ‘Assessments.'”, “legal_basis”: “CC&R Interpretation”, “topic_tags”: [ “assessments”, “maintenance costs”, “CC&R interpretation” ] }, { “question”: “Who has the burden of proof in an administrative hearing against an HOA?”, “short_answer”: “The homeowner (Petitioner) filing the complaint has the burden of proof.”, “detailed_answer”: “The homeowner must prove their case by a ‘preponderance of the evidence,’ which means they must show that their claims are more probably true than not.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-33-1804(A), (C) and (E) and the CC&Rs.”, “legal_basis”: “Administrative Law Standard”, “topic_tags”: [ “burden of proof”, “legal procedure”, “evidence” ] }, { “question”: “If I win my hearing against the HOA, can I get my filing fee back?”, “short_answer”: “Yes, the Administrative Law Judge can order the HOA to reimburse the filing fee.”, “detailed_answer”: “If the petitioner prevails in the hearing, the ALJ has the authority to order the Respondent (the HOA) to reimburse the filing fee paid to the Department of Real Estate.”, “alj_quote”: “IT IS FURTHER ORDERED that Respondent reimburse Petitioner’s filing fee of $1,000.00 in certified funds.”, “legal_basis”: “A.R.S. § 32-2199 et seq.”, “topic_tags”: [ “filing fees”, “remedies”, “penalties” ] }, { “question”: “How are ambiguous terms in CC&Rs interpreted?”, “short_answer”: “Words are given their natural, obvious, and ordinary meaning, and definitions within the document are prioritized.”, “detailed_answer”: “When interpreting CC&Rs, the tribunal looks at the defined terms within the document. If a term like ‘Assessment’ is specifically defined as a general charge allocated equally, that definition controls over an interpretation that would allow individual billing, unless another section specifically authorizes it.”, “alj_quote”: “Unless defined by the legislature, words in statutes are given their ordinary meanings… Each word, phrase, clause, and sentence of a statute or rule must be given meaning so that no part will be void, inert, redundant, or trivial.”, “legal_basis”: “Principles of Statutory/Contract Construction”, “topic_tags”: [ “legal interpretation”, “CC&Rs”, “definitions” ] }, { “question”: “Does the HOA have to maintain systems on my lot if the CC&Rs state they ‘shall assume responsibility’?”, “short_answer”: “Yes. If the CC&Rs state the HOA assumes responsibility for monitoring, maintenance, and repair, they must perform and pay for it.”, “detailed_answer”: “When the governing documents explicitly state the Association ‘shall assume responsibility’ for maintenance, and the costs are to be included in the general Assessments, the HOA cannot shift that financial burden back to the individual owner improperly.”, “alj_quote”: “Accordingly, the terms of the CC&Rs requires that Respondent is responsible for the maintenance of the septic systems in the Association and that the maintenance is to be paid for from the annual assessments collected by Respondent.”, “legal_basis”: “Contract Law / CC&R Enforcement”, “topic_tags”: [ “HOA obligations”, “maintenance”, “repairs” ] } ] }

{ “case”: { “docket_no”: “23F-H015-REL”, “case_title”: “Jill P. Eden-Burns v. Tonto Forest Estates Homeowners Association”, “decision_date”: “2023-05-18”, “alj_name”: “Tammy L. Eigenheer”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Can the HOA board meet informally (e.g., on Zoom) before an open meeting to discuss business without notifying homeowners?”, “short_answer”: “No. Any gathering of a quorum of the board to discuss association business, even informally, must be open to members.”, “detailed_answer”: “Arizona law requires that whenever a quorum of the board meets to discuss association business, the meeting must be open to members. This applies even if the meeting is informal and no official votes or actions are taken during that time. Discussions about how to handle agenda items or agreeing on policies effectively constitute a meeting.”, “alj_quote”: “The plain language of the statute provides that when a quorum of a board of directors meets, even informally, to discuss association business, the meeting must be open to the members of the association, even if they do not vote or take any action during the informal meeting.”, “legal_basis”: “A.R.S. § 33-1804(A), (C), and (E)”, “topic_tags”: [ “open meeting law”, “board procedures”, “informal meetings” ] }, { “question”: “Does the board have to take a formal vote for a private discussion to be considered a violation of open meeting laws?”, “short_answer”: “No. Merely discussing business is sufficient to trigger open meeting requirements.”, “detailed_answer”: “It is a violation of open meeting laws for a quorum of the board to discuss association business in private, even if they do not take a formal vote or action. If the board members discuss a policy and agree on how to proceed (e.g., agreeing to ‘just nod our heads’ later), they are conducting business that must be done in the open.”, “alj_quote”: “The plain language of the statute provides that when a quorum of a board of directors meets, even informally, to discuss association business, the meeting must be open to the members of the association, even if they do not vote or take any action during the informal meeting.”, “legal_basis”: “A.R.S. § 33-1804(E)”, “topic_tags”: [ “open meeting law”, “voting”, “quorum” ] }, { “question”: “Can the HOA charge me individually for maintenance on my lot if the CC&Rs say costs are part of ‘Assessments’?”, “short_answer”: “Not necessarily. It depends on how ‘Assessments’ is defined in your CC&Rs.”, “detailed_answer”: “If the CC&Rs define ‘Assessments’ as charges levied against each membership equally (like annual dues), the HOA cannot interpret a provision saying costs are ‘part of the Assessments’ as authorization to bill a single owner individually. Unless there is a specific provision allowing individual charges (like for owner negligence), maintenance costs defined as ‘Assessments’ must generally be paid from the common funds.”, “alj_quote”: “Nothing in Article 8 provides a mechanism by which a single owner may be charged for fees associated with their lot. Rather, that type of charge is located in Section 11 of the CC&Rs, which is not referenced in the definition of ‘Assessments.'”, “legal_basis”: “CC&R Interpretation”, “topic_tags”: [ “assessments”, “maintenance costs”, “CC&R interpretation” ] }, { “question”: “Who has the burden of proof in an administrative hearing against an HOA?”, “short_answer”: “The homeowner (Petitioner) filing the complaint has the burden of proof.”, “detailed_answer”: “The homeowner must prove their case by a ‘preponderance of the evidence,’ which means they must show that their claims are more probably true than not.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-33-1804(A), (C) and (E) and the CC&Rs.”, “legal_basis”: “Administrative Law Standard”, “topic_tags”: [ “burden of proof”, “legal procedure”, “evidence” ] }, { “question”: “If I win my hearing against the HOA, can I get my filing fee back?”, “short_answer”: “Yes, the Administrative Law Judge can order the HOA to reimburse the filing fee.”, “detailed_answer”: “If the petitioner prevails in the hearing, the ALJ has the authority to order the Respondent (the HOA) to reimburse the filing fee paid to the Department of Real Estate.”, “alj_quote”: “IT IS FURTHER ORDERED that Respondent reimburse Petitioner’s filing fee of $1,000.00 in certified funds.”, “legal_basis”: “A.R.S. § 32-2199 et seq.”, “topic_tags”: [ “filing fees”, “remedies”, “penalties” ] }, { “question”: “How are ambiguous terms in CC&Rs interpreted?”, “short_answer”: “Words are given their natural, obvious, and ordinary meaning, and definitions within the document are prioritized.”, “detailed_answer”: “When interpreting CC&Rs, the tribunal looks at the defined terms within the document. If a term like ‘Assessment’ is specifically defined as a general charge allocated equally, that definition controls over an interpretation that would allow individual billing, unless another section specifically authorizes it.”, “alj_quote”: “Unless defined by the legislature, words in statutes are given their ordinary meanings… Each word, phrase, clause, and sentence of a statute or rule must be given meaning so that no part will be void, inert, redundant, or trivial.”, “legal_basis”: “Principles of Statutory/Contract Construction”, “topic_tags”: [ “legal interpretation”, “CC&Rs”, “definitions” ] }, { “question”: “Does the HOA have to maintain systems on my lot if the CC&Rs state they ‘shall assume responsibility’?”, “short_answer”: “Yes. If the CC&Rs state the HOA assumes responsibility for monitoring, maintenance, and repair, they must perform and pay for it.”, “detailed_answer”: “When the governing documents explicitly state the Association ‘shall assume responsibility’ for maintenance, and the costs are to be included in the general Assessments, the HOA cannot shift that financial burden back to the individual owner improperly.”, “alj_quote”: “Accordingly, the terms of the CC&Rs requires that Respondent is responsible for the maintenance of the septic systems in the Association and that the maintenance is to be paid for from the annual assessments collected by Respondent.”, “legal_basis”: “Contract Law / CC&R Enforcement”, “topic_tags”: [ “HOA obligations”, “maintenance”, “repairs” ] } ] }

Case Participants

Petitioner Side

  • Jill P. Eden-Burns (petitioner)
  • Kathryn Kendall (witness)
    Former Board Member; also referred to as Catherine Temple
  • John Krahn (witness)
    Former Board Member/Secretary; also referred to as John Cran
  • Michael Holland (witness)
    Former Board President

Respondent Side

  • Tonto Forest Estates Homeowners Association (respondent)
  • Daniel S. Francom (HOA attorney)
    Goodman Law Group
    Also referred to as Dan Frank
  • Ashley N. Moscarello (HOA attorney)
    Goodman Law Group
  • Kurt Meister (board president)
    Witness for Respondent
  • Jeanne Ackerley (board member)
    Witness for Respondent; also referred to as Jean Aly
  • Kerry Chou (board member)
    Witness for Respondent; also referred to as Carrie Shu
  • Jeremy Sykes (board member)
    Secretary; also referred to as Jeremy Sikes
  • Steve Gauer (board member)
  • Charles Kiehl (witness)
    Lot owner; testified for Respondent
  • Melissa Jordan (property manager/witness)
    Aud
  • Len Meyer (former board member)

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
    OAH
    Also referred to as Tammy Igener
  • Sondra J. Vanella (ALJ)
    OAH
  • Louis Dettorre (ADRE Commissioner)
    ADRE
  • James Knupp (ADRE Commissioner)
    ADRE
    Acting Commissioner
  • Susan Nicolson (ADRE Commissioner)
    ADRE
  • c. serrano (OAH staff)
    OAH
    Transmitting Staff
  • AHansen (ADRE staff)
    ADRE
    Recipient of transmission
  • vnunez (ADRE staff)
    ADRE
    Recipient of transmission
  • djones (ADRE staff)
    ADRE
    Recipient of transmission
  • labril (ADRE staff)
    ADRE
    Recipient of transmission

Other Participants

  • Rich Orcutt (property manager)
    Focus/Ogden
    Community Manager
  • Rebecca (property manager)
    Former HOA Manager (Focus)
  • Jason Buck (former board president)

Thomas P. Hommrich v. The Lakewood Community Association

Posted on by

Case Summary

Case ID 23F-H048-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-05-19
Administrative Law Judge Velva Moses-Thompson
Outcome Order Granting Respondent’s Motion to Dismiss the Petition on jurisdictional grounds.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Thomas P. Hommrich Counsel —
Respondent The Lakewood Community Association Counsel Quinten Cupps, Esq.

Alleged Violations

Article lV, Section 4.2(t) of the CC&R's

Outcome Summary

Order Granting Respondent’s Motion to Dismiss the Petition on jurisdictional grounds.

Why this result: The Administrative Law Judge ruled that the Office of Administrative Hearings (OAH) lacked jurisdiction to hear the case because the petition challenged the Association’s power to act (A.R.S. § 10-3304), which requires injunctive relief in a court of law, and did not concern a violation of community documents or statute (A.R.S. § 32-2199.01(A)).

Key Issues & Findings

Authority to enforce parking rule on residential public streets

Petitioner sought an order prohibiting the Respondent from restricting parking access on public residential streets, alleging the Association breached the CC&Rs by misapplying Article IV, Section 4.2(t).

Orders: The petition was dismissed because OAH lacked jurisdiction as the case challenged the Association's power to act under A.R.S. § 10-3304, rather than alleging a violation of community documents or statute under A.R.S. § 32-2199.01(A).

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 32-2199.01(A)
  • A.R.S. § 10-3304
  • A.R.S. § 10-3304(B)(2)

Analytics Highlights

Topics: Parking Restrictions, Jurisdiction, Motion to Dismiss, CC&Rs
Additional Citations:

  • A.R.S. § 32-2199.01(A)
  • A.R.S. § 10-3304
  • A.R.S. § 10-3304(B)(2)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.09

Video Overview

Audio Overview

Decision Documents

23F-H048-REL Decision – 1057905.pdf

Uploaded 2026-04-24T12:08:54 (71.7 KB)

23F-H048-REL Decision – 1059621.pdf

Uploaded 2026-04-24T12:08:57 (44.2 KB)

23F-H048-REL Decision – 1057905.pdf

Uploaded 2026-01-23T17:57:20 (71.7 KB)

23F-H048-REL Decision – 1059621.pdf

Uploaded 2026-01-23T17:57:22 (44.2 KB)

The matter of *Thomas P. Hommrich vs. The Lakewood Community Association* (No. 23F-H048-REL) was heard in the Office of Administrative Hearings (OAH).

Key Facts and Issues

Petitioner Thomas P. Hommrich filed a single-issue petition on March 9, 2023, alleging the Respondent Association lacked the authority to enforce a parking restriction. Specifically, the Petitioner claimed the Association improperly relied upon Article IV, Section 4.2(t) of the CC&Rs, which, in the Petitioner's view, does not prohibit parking on public residential streets. The Petitioner sought an order from the OAH prohibiting the Respondent from restricting parking access on such streets.

Article IV, Section 4.2(t) of the CC&Rs indicates the Declarant's intent is to "eliminate on-street parking at Lakewood as much as possible," requiring vehicles to be kept in garages, driveways, or designated areas. It further states that "No parking is permitted on any street within Lakewood" designated on the Map of Dedication, and allows the Association to adopt additional parking rules.

Hearing Proceedings and Main Arguments

The Association filed a Motion to Dismiss on May 8, 2023. The Respondent argued that the OAH lacked jurisdiction because the petition did not concern a violation of community documents or any statute, as required by A.R.S. § 32-2199.01(A). Furthermore, the Association contended that the OAH lacked the authority to grant the specific injunctive relief requested by the Petitioner.

The Petitioner responded, asserting he was alleging that the Association breached the CC&Rs.

Legal Points and Final Decision

The Administrative Law Judge granted the Respondent's Motion to Dismiss the Petition on May 19, 2023.

The OAH determined that the petition did not concern a violation of community documents or any statute. The most important legal point focused on jurisdiction: the OAH found that the Petitioner was essentially attempting to challenge the Association’s power to act (authority to restrict parking on public streets). Under A.R.S. § 10-3304, the Petitioner is not permitted to challenge the Association’s power to act in the OAH tribunal. The appropriate venue for seeking injunctive relief regarding an association’s power to act is a court of law (A.R.S. § 10-3304(B)(2)).

Outcome

The petition was dismissed. Following the dismissal, the OAH received a Motion to Amend the Petition, which it could not consider because a decision had already been rendered. However, the Petitioner’s request for a rehearing was forwarded to the Arizona Department of Real Estate (ADRE), as the ADRE, not the OAH, handles rehearing requests pursuant to A.R.S. § 33-2199.04(A).

Questions

Question

Can I use the administrative hearing process to challenge my HOA's legal authority or power to enforce a specific rule?

Short Answer

No. Challenges to an Association's corporate power to act must be brought in a court of law, not the administrative tribunal.

Detailed Answer

The Administrative Law Judge ruled that the tribunal does not have jurisdiction to hear challenges regarding the Association's 'power to act' (such as whether they have the authority to restrict parking). Under Arizona statute A.R.S. § 10-3304, these specific legal challenges regarding corporate authority must be addressed in a court of law.

Alj Quote

Petitioner may not challenge the Association’s power to act in this tribunal under A.R.S. § 10-3304. Petitioner may seek injunctive relief regarding the Association’s power to act in a court of law.

Legal Basis

A.R.S. § 10-3304

Topic Tags

  • jurisdiction
  • corporate power
  • HOA authority

Question

If I disagree with a decision, can I file a motion to amend my petition after the order has been issued?

Short Answer

No. Once a decision is rendered, the Office of Administrative Hearings cannot consider motions to amend.

Detailed Answer

The ALJ clarified that once a decision is finalized, the OAH loses the ability to take further action on the matter, meaning a Motion to Amend filed after the decision cannot be considered.

Alj Quote

The Motion to Amend the Petition cannot not be considered by the Office of Administrative Hearings (OAH) as this tribunal’s decision has already been rendered and, because of that, OAH can take no further action on the matter.

Legal Basis

Procedural Rule

Topic Tags

  • procedure
  • appeals
  • amendments

Question

Where must I file a request for a rehearing if I lose my case?

Short Answer

You must file the request with the Commissioner of the Department of Real Estate (ADRE), not the hearing office.

Detailed Answer

While the hearing takes place at the Office of Administrative Hearings (OAH), a request for a rehearing must be directed to the Arizona Department of Real Estate within 30 days of the order.

Alj Quote

Pursuant to A.R.S. § 41-1092.09, a request for rehearing in this matter must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of this Order upon the parties.

Legal Basis

A.R.S. § 41-1092.09

Topic Tags

  • rehearing
  • procedure
  • ADRE

Question

Can the administrative tribunal issue an injunction preventing the HOA from enforcing parking restrictions on public streets?

Short Answer

Likely no, if the claim is based on the HOA lacking the 'power to act'.

Detailed Answer

The petitioner sought an order prohibiting the HOA from restricting parking on public streets. The ALJ dismissed this because the claim was fundamentally about the Association's authority (power to act), which falls outside the tribunal's jurisdiction.

Alj Quote

Petitioner asks this Court to issue an order that prohibits the Respondent from restricting parking access on public residential streets… Petitioner may seek injunctive relief regarding the Association’s power to act in a court of law.

Legal Basis

A.R.S. § 10-3304

Topic Tags

  • parking
  • injunctions
  • jurisdiction

Question

Does a petition challenging an HOA rule have to allege a specific violation of the community documents or statutes?

Short Answer

Yes. If the petition does not concern a violation of documents or statutes, it may be dismissed.

Detailed Answer

The HOA successfully argued that the petition should be dismissed because it did not allege that the HOA violated community documents or statutes, but rather challenged the HOA's authority to make rules.

Alj Quote

Therefore, the petition does not concern a violation of community documents or of any statute… IT IS ORDERED that the petition is dismissed.

Legal Basis

A.R.S. § 32-2199.01(A)

Topic Tags

  • petition requirements
  • dismissal
  • violations

Case

Docket No
23F-H048-REL
Case Title
Thomas P. Hommrich vs. The Lakewood Community Association
Decision Date
2023-05-19
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Questions

Question

Can I use the administrative hearing process to challenge my HOA's legal authority or power to enforce a specific rule?

Short Answer

No. Challenges to an Association's corporate power to act must be brought in a court of law, not the administrative tribunal.

Detailed Answer

The Administrative Law Judge ruled that the tribunal does not have jurisdiction to hear challenges regarding the Association's 'power to act' (such as whether they have the authority to restrict parking). Under Arizona statute A.R.S. § 10-3304, these specific legal challenges regarding corporate authority must be addressed in a court of law.

Alj Quote

Petitioner may not challenge the Association’s power to act in this tribunal under A.R.S. § 10-3304. Petitioner may seek injunctive relief regarding the Association’s power to act in a court of law.

Legal Basis

A.R.S. § 10-3304

Topic Tags

  • jurisdiction
  • corporate power
  • HOA authority

Question

If I disagree with a decision, can I file a motion to amend my petition after the order has been issued?

Short Answer

No. Once a decision is rendered, the Office of Administrative Hearings cannot consider motions to amend.

Detailed Answer

The ALJ clarified that once a decision is finalized, the OAH loses the ability to take further action on the matter, meaning a Motion to Amend filed after the decision cannot be considered.

Alj Quote

The Motion to Amend the Petition cannot not be considered by the Office of Administrative Hearings (OAH) as this tribunal’s decision has already been rendered and, because of that, OAH can take no further action on the matter.

Legal Basis

Procedural Rule

Topic Tags

  • procedure
  • appeals
  • amendments

Question

Where must I file a request for a rehearing if I lose my case?

Short Answer

You must file the request with the Commissioner of the Department of Real Estate (ADRE), not the hearing office.

Detailed Answer

While the hearing takes place at the Office of Administrative Hearings (OAH), a request for a rehearing must be directed to the Arizona Department of Real Estate within 30 days of the order.

Alj Quote

Pursuant to A.R.S. § 41-1092.09, a request for rehearing in this matter must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of this Order upon the parties.

Legal Basis

A.R.S. § 41-1092.09

Topic Tags

  • rehearing
  • procedure
  • ADRE

Question

Can the administrative tribunal issue an injunction preventing the HOA from enforcing parking restrictions on public streets?

Short Answer

Likely no, if the claim is based on the HOA lacking the 'power to act'.

Detailed Answer

The petitioner sought an order prohibiting the HOA from restricting parking on public streets. The ALJ dismissed this because the claim was fundamentally about the Association's authority (power to act), which falls outside the tribunal's jurisdiction.

Alj Quote

Petitioner asks this Court to issue an order that prohibits the Respondent from restricting parking access on public residential streets… Petitioner may seek injunctive relief regarding the Association’s power to act in a court of law.

Legal Basis

A.R.S. § 10-3304

Topic Tags

  • parking
  • injunctions
  • jurisdiction

Question

Does a petition challenging an HOA rule have to allege a specific violation of the community documents or statutes?

Short Answer

Yes. If the petition does not concern a violation of documents or statutes, it may be dismissed.

Detailed Answer

The HOA successfully argued that the petition should be dismissed because it did not allege that the HOA violated community documents or statutes, but rather challenged the HOA's authority to make rules.

Alj Quote

Therefore, the petition does not concern a violation of community documents or of any statute… IT IS ORDERED that the petition is dismissed.

Legal Basis

A.R.S. § 32-2199.01(A)

Topic Tags

  • petition requirements
  • dismissal
  • violations

Case

Docket No
23F-H048-REL
Case Title
Thomas P. Hommrich vs. The Lakewood Community Association
Decision Date
2023-05-19
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Thomas P. Hommrich (petitioner)

Respondent Side

  • Quinten Cupps (respondent attorney)
    vf-law.com
    Esq.

Neutral Parties

  • Velva Moses-Thompson (ALJ)
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmittal
  • vnunez (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmittal
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmittal
  • labril (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmittal

Quail Creek Villas Association, Inc. v. Randall & Gisela White

Posted on by

Case Summary

Case ID 23F-H042-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-05-09
Administrative Law Judge Jenna Clark
Outcome The HOA's petition was granted. Respondents were found to have violated CC&Rs Section 3(j) by installing tile without approval and were ordered to comply with the CC&Rs, reimburse the $500 filing fee, and pay a $100 civil penalty.
Filing Fees Refunded $500.00
Civil Penalties $100.00

Parties & Counsel

Petitioner Quail Creek Villas Association, Inc. Counsel Michael Shupe, Esq.
Respondent Randall & Gisela White Counsel —

Alleged Violations

CC&Rs Section 3(j)

Outcome Summary

The HOA's petition was granted. Respondents were found to have violated CC&Rs Section 3(j) by installing tile without approval and were ordered to comply with the CC&Rs, reimburse the $500 filing fee, and pay a $100 civil penalty.

Why this result: Respondents admitted to the alleged conduct and failed to establish a sufficient affirmative defense (incomplete CC&Rs) against the violation, as the recorded CC&Rs provided constructive notice of all provisions. Respondents' conduct during testimony was also considered a factor in aggravation.

Key Issues & Findings

Unauthorized exterior modification (tile installation)

Respondents permanently installed tile on their front porch entryway without obtaining prior written approval. The ALJ rejected the Respondents' defense regarding missing CC&R pages, noting the HOA sustained its burden of proving a community document violation by a preponderance of the evidence.

Orders: Respondents must henceforth abide by CC&Rs Section 3(j), reimburse the Petitioner $500.00 for the filing fee, and pay a $100.00 civil penalty to the Department.

Filing fee: $500.00, Fee refunded: Yes, Civil penalty: $100.00

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. § 33-1805
  • Federoff v. Pioneer Title & Trust Co., 166 Ariz. 393 (1990)
  • Heritage Heights Home Owners Ass’n v. Esser, 115 Ariz. 330 (App. 1977)
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • Flying Diamond Air Park LLC v. Minenberg, 215 Ariz. 44 (App. 2007)

Analytics Highlights

Topics: CC&R violation, Architectural Review Committee (ALC), exterior modification, tile installation, constructive notice, affirmative defense, HOA maintenance
Additional Citations:

  • 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. § 33-1805
  • ARIZ. REV. STAT. § 41-1092.09
  • ARIZ. REV. STAT. § 32-2199.04
  • ARIZ. REV. STAT. § 32-2199.01
  • ARIZ. REV. STAT. § 33-1803
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • ARIZ. ADMIN. CODE R2-19-119
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
  • Arpaio v. Steinle, 201 Ariz. 353, 355 ¶ 5, 35 P.3d 114, 116 (App. 2001)
  • Gutierrez v. Industrial Commission of Arizona
  • State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968)
  • U.S. Parking v. City of Phoenix, 160 Ariz. 210, 772 P.2d 33 (App. 1989)
  • Deer Valley, v. Houser, 214 Ariz. 293, 296, 152 P.3d 490, 493 (2007)
  • Federoff v. Pioneer Title & Trust Co., 166 Ariz. 393 (1990)
  • Heritage Heights Home Owners Ass’n v. Esser, 115 Ariz. 330 (App. 1977)
  • Flying Diamond Air Park LLC v. Minenberg, 215 Ariz. 44 (App. 2007)

Video Overview

Audio Overview

Decision Documents

23F-H042-REL Decision – 1048063.pdf

Uploaded 2026-04-24T12:07:08 (55.7 KB)

23F-H042-REL Decision – 1055060.pdf

Uploaded 2026-04-24T12:07:25 (219.4 KB)

23F-H042-REL Decision – 1048063.pdf

Uploaded 2026-01-23T17:56:08 (55.7 KB)

23F-H042-REL Decision – 1055060.pdf

Uploaded 2026-01-23T17:56:11 (219.4 KB)

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

Key Facts and Main Issues

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

The key facts were largely undisputed:

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

Key Arguments

Petitioner's Arguments (HOA):

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

Respondents' Defense (Owners):

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

Final Decision and Legal Outcome

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

Focus on Legal Points:

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

Outcome and Order:

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

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

Questions

Question

Am I excused from HOA rules if pages were missing from the copy of the CC&Rs I received at closing?

Short Answer

No. Recorded CC&Rs provide constructive notice of all provisions to homeowners, regardless of errors in the specific copy provided at closing.

Detailed Answer

The ALJ ruled that missing pages in the document package provided by a disclosure company or previous owner do not excuse a homeowner from compliance. Because CC&Rs are recorded public documents, homeowners are deemed to have 'constructive notice' of all rules contained within the recorded version.

Alj Quote

The Tribunal is not swayed by Mr. White’s incorrect legal interpretations regarding the annotated CC&Rs received by HomeWise, as the Pima County recorded CC&Rs provide constructive notice of all provisions contained within the community documents

Legal Basis

Constructive Notice

Topic Tags

  • CC&Rs
  • disclosure
  • compliance

Question

Can the HOA regulate changes to my property even if they aren't visible from the street or neighboring properties?

Short Answer

Yes, especially if the HOA is responsible for maintaining the exterior surfaces.

Detailed Answer

The decision upheld the HOA's authority to regulate exterior modifications regardless of visibility, particularly noting that when an owner acquires a lot where the HOA performs maintenance, they may give up rights to control the appearance of those areas.

Alj Quote

Each Owner of a Villas Lot understands, acknowledges and agrees that by acquiring an interest in a Lot in which landscaping and exterior maintenance is performed or arranged by the Villas Association, such Owner is giving up rights to control the appearance and use of the outside areas of such Owner’s Villas Lot.

Legal Basis

CC&Rs Contractual Obligations

Topic Tags

  • architectural control
  • maintenance
  • visibility

Question

Can I fix a violation for unapproved flooring by simply covering it with a rug?

Short Answer

No. Covering an unapproved permanent installation with a removable item like a rug does not cure the underlying violation.

Detailed Answer

The ALJ rejected the homeowner's argument that placing a custom rug over unapproved tiles resolved the issue. The violation (the unapproved installation) persisted despite being hidden from view.

Alj Quote

The Tribunal is not swayed… by Mr. White’s placement of a custom cut rug in lieu of paying the fine to the Association.

Legal Basis

Remedy of Violation

Topic Tags

  • violations
  • remedies
  • architectural control

Question

Who has the burden of proof in an administrative hearing regarding an HOA dispute?

Short Answer

The Petitioner (the party bringing the case) bears the burden of proof.

Detailed Answer

The Petitioner must prove their case by a 'preponderance of the evidence' (meaning it is more likely true than not). Conversely, if the Respondent claims an affirmative defense (a legal excuse), they bear the burden of proving that defense.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1805. Respondents bear the burden of establishing any affirmative defenses by the same evidentiary burden.

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • procedural
  • burden of proof
  • evidence

Question

If I lose the hearing, do I have to reimburse the HOA for their filing fee?

Short Answer

Yes. The prevailing party is typically entitled to reimbursement of the filing fee.

Detailed Answer

The ALJ ordered the losing homeowner to reimburse the HOA for the $500 filing fee they paid to bring the case. This is a statutory requirement under Arizona law.

Alj Quote

IT IS FURTHER ORDERED that Respondents shall reimburse Petitioner its filing fee of $500.00, to be paid directly to Petitioner within thirty (30) days of this ORDER, as required by ARIZ. REV. STAT. § 32-2199.01.

Legal Basis

A.R.S. § 32-2199.01

Topic Tags

  • fees
  • costs
  • penalties

Question

Can the ALJ order me to pay a penalty to the state in addition to reimbursing the HOA?

Short Answer

Yes. The ALJ has the authority to impose a civil penalty payable to the Arizona Department of Real Estate.

Detailed Answer

In this decision, in addition to ordering compliance and fee reimbursement to the HOA, the ALJ ordered the homeowner to pay a $100 civil penalty directly to the Department of Real Estate.

Alj Quote

IT IS FURTHER ORDERED that Respondents shall pay a $100.00 civil penalty in certified funds to the Department within thirty (30) days of this ORDER, as authorized by ARIZ. REV. STAT. § 32-2199.02.

Legal Basis

A.R.S. § 32-2199.02

Topic Tags

  • civil penalty
  • fines
  • ADRE

Question

Does my behavior during the dispute process affect the judge's decision?

Short Answer

Yes. Obfuscating or evasive conduct can be considered an aggravating factor against you.

Detailed Answer

The ALJ specifically noted that the homeowner's conduct during testimony was 'obfuscating' (confusing or unclear) and weighed this as a factor in aggravation when making the final ruling.

Alj Quote

Moreover, Mr. White’s conduct during the testimony was obfuscating, and is considered a factor in aggravation.

Legal Basis

Judicial Discretion

Topic Tags

  • conduct
  • hearing process
  • aggravating factors

Case

Docket No
23F-H042-REL
Case Title
Quail Creek Villas Association, Inc. vs. Randall & Gisela White
Decision Date
2023-05-09
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Questions

Question

Am I excused from HOA rules if pages were missing from the copy of the CC&Rs I received at closing?

Short Answer

No. Recorded CC&Rs provide constructive notice of all provisions to homeowners, regardless of errors in the specific copy provided at closing.

Detailed Answer

The ALJ ruled that missing pages in the document package provided by a disclosure company or previous owner do not excuse a homeowner from compliance. Because CC&Rs are recorded public documents, homeowners are deemed to have 'constructive notice' of all rules contained within the recorded version.

Alj Quote

The Tribunal is not swayed by Mr. White’s incorrect legal interpretations regarding the annotated CC&Rs received by HomeWise, as the Pima County recorded CC&Rs provide constructive notice of all provisions contained within the community documents

Legal Basis

Constructive Notice

Topic Tags

  • CC&Rs
  • disclosure
  • compliance

Question

Can the HOA regulate changes to my property even if they aren't visible from the street or neighboring properties?

Short Answer

Yes, especially if the HOA is responsible for maintaining the exterior surfaces.

Detailed Answer

The decision upheld the HOA's authority to regulate exterior modifications regardless of visibility, particularly noting that when an owner acquires a lot where the HOA performs maintenance, they may give up rights to control the appearance of those areas.

Alj Quote

Each Owner of a Villas Lot understands, acknowledges and agrees that by acquiring an interest in a Lot in which landscaping and exterior maintenance is performed or arranged by the Villas Association, such Owner is giving up rights to control the appearance and use of the outside areas of such Owner’s Villas Lot.

Legal Basis

CC&Rs Contractual Obligations

Topic Tags

  • architectural control
  • maintenance
  • visibility

Question

Can I fix a violation for unapproved flooring by simply covering it with a rug?

Short Answer

No. Covering an unapproved permanent installation with a removable item like a rug does not cure the underlying violation.

Detailed Answer

The ALJ rejected the homeowner's argument that placing a custom rug over unapproved tiles resolved the issue. The violation (the unapproved installation) persisted despite being hidden from view.

Alj Quote

The Tribunal is not swayed… by Mr. White’s placement of a custom cut rug in lieu of paying the fine to the Association.

Legal Basis

Remedy of Violation

Topic Tags

  • violations
  • remedies
  • architectural control

Question

Who has the burden of proof in an administrative hearing regarding an HOA dispute?

Short Answer

The Petitioner (the party bringing the case) bears the burden of proof.

Detailed Answer

The Petitioner must prove their case by a 'preponderance of the evidence' (meaning it is more likely true than not). Conversely, if the Respondent claims an affirmative defense (a legal excuse), they bear the burden of proving that defense.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1805. Respondents bear the burden of establishing any affirmative defenses by the same evidentiary burden.

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • procedural
  • burden of proof
  • evidence

Question

If I lose the hearing, do I have to reimburse the HOA for their filing fee?

Short Answer

Yes. The prevailing party is typically entitled to reimbursement of the filing fee.

Detailed Answer

The ALJ ordered the losing homeowner to reimburse the HOA for the $500 filing fee they paid to bring the case. This is a statutory requirement under Arizona law.

Alj Quote

IT IS FURTHER ORDERED that Respondents shall reimburse Petitioner its filing fee of $500.00, to be paid directly to Petitioner within thirty (30) days of this ORDER, as required by ARIZ. REV. STAT. § 32-2199.01.

Legal Basis

A.R.S. § 32-2199.01

Topic Tags

  • fees
  • costs
  • penalties

Question

Can the ALJ order me to pay a penalty to the state in addition to reimbursing the HOA?

Short Answer

Yes. The ALJ has the authority to impose a civil penalty payable to the Arizona Department of Real Estate.

Detailed Answer

In this decision, in addition to ordering compliance and fee reimbursement to the HOA, the ALJ ordered the homeowner to pay a $100 civil penalty directly to the Department of Real Estate.

Alj Quote

IT IS FURTHER ORDERED that Respondents shall pay a $100.00 civil penalty in certified funds to the Department within thirty (30) days of this ORDER, as authorized by ARIZ. REV. STAT. § 32-2199.02.

Legal Basis

A.R.S. § 32-2199.02

Topic Tags

  • civil penalty
  • fines
  • ADRE

Question

Does my behavior during the dispute process affect the judge's decision?

Short Answer

Yes. Obfuscating or evasive conduct can be considered an aggravating factor against you.

Detailed Answer

The ALJ specifically noted that the homeowner's conduct during testimony was 'obfuscating' (confusing or unclear) and weighed this as a factor in aggravation when making the final ruling.

Alj Quote

Moreover, Mr. White’s conduct during the testimony was obfuscating, and is considered a factor in aggravation.

Legal Basis

Judicial Discretion

Topic Tags

  • conduct
  • hearing process
  • aggravating factors

Case

Docket No
23F-H042-REL
Case Title
Quail Creek Villas Association, Inc. vs. Randall & Gisela White
Decision Date
2023-05-09
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Michael Shupe (HOA attorney)
    Goldschmidt Shupe, PLLC
    Appeared as counsel for Petitioner
  • Carolyn B. Goldschmidt (HOA attorney)
    Goldschmidt Shupe, PLLC
    Legal counsel for the Association; communication contact listed
  • Lori Don Woullet (Property Manager/Witness)
    Cadden Community Management
    Senior Community Association Manager
  • Diane Patricia Weber (Former Board Member/Witness)
    Quail Creek Villas Association, Inc.
    Former Board Treasurer
  • Lynn Birleffi (Witness)
    Quail Creek Villas Association, Inc.
    Called as a witness for Petitioner

Respondent Side

  • Randall White (Respondent)
    Quail Creek Villas Association, Inc.
    Appeared pro se and testified
  • Gisela White (Respondent)
    Quail Creek Villas Association, Inc.
    Appearance waived

Neutral Parties

  • Jenna Clark (ALJ)
    Office of Administrative Hearings
    Presiding Administrative Law Judge
  • Susan Nicolson (ADRE Commissioner)
    Arizona Department of Real Estate

Anthony Payson v. The Foothills Homeowners Association #1

Posted on by

Case Summary

Case ID 23F-H041-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-05-01
Administrative Law Judge Velva Moses-Thompson
Outcome The petition was dismissed after the Administrative Law Judge concluded that the Respondent HOA did not violate CC&R Section 5.4, finding that this section applies to use restrictions on individual Lots and Members, not the Association itself.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Anthony Payson Counsel —
Respondent The Foothills Homeowners Association #1 Counsel Sean K. Mohnihan

Alleged Violations

CC&R Section 5.4

Outcome Summary

The petition was dismissed after the Administrative Law Judge concluded that the Respondent HOA did not violate CC&R Section 5.4, finding that this section applies to use restrictions on individual Lots and Members, not the Association itself.

Why this result: The ALJ found that Petitioner failed to meet the burden of proof to establish the Respondent HOA violated CC&R Section 5.4 because the HOA does not own or operate the nuisance-causing television, and the CC&R section governs restrictions on lot Owners/Members, not the Association. OAH jurisdiction is limited to finding the governing document or statute violated by the respondent.

Key Issues & Findings

HOA's alleged failure to enforce nuisance provision (CC&R Section 5.4) regarding neighbor's outdoor television.

Petitioner alleged that the Respondent HOA failed to perform its duty to enforce CC&R Section 5.4 by refusing to seek removal of a neighbor's large, outdoor television that created noise disturbances and was deemed a nuisance.

Orders: The petition is dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 32-2199(B)
  • ARIZ. REV. STAT. §32- 2199.02(A)
  • CC&R Section 5.4

Analytics Highlights

Topics: Homeowners Association, CC&R, Nuisance, Enforcement, Jurisdiction, Outdoor TV
Additional Citations:

  • ARIZ. REV. STAT. § 32-2199(B)
  • ARIZ. REV. STAT. §32- 2199.02(A)
  • ARIZ. REV. STAT. § 33-1803
  • ARIZ. REV. STAT. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs., 867 P.2d 70, 75 (Colo. App. 1993)
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)

Video Overview

Audio Overview

Decision Documents

23F-H041-REL Decision – 1047496.pdf

Uploaded 2026-05-01T10:25:11 (57.5 KB)

23F-H041-REL Decision – 1053240.pdf

Uploaded 2026-05-01T10:25:17 (98.4 KB)

23F-H041-REL Decision – 1047496.pdf

Uploaded 2026-01-23T17:55:58 (57.5 KB)

23F-H041-REL Decision – 1053240.pdf

Uploaded 2026-01-23T17:56:01 (98.4 KB)

The legal matter of *Anthony Payson v. The Foothills Homeowners Association #1* (No. 23F-H041-REL) was heard virtually by Administrative Law Judge (ALJ) Velva Moses-Thompson on April 13, 2023.

Key Facts and Petitioner's Allegations:

Petitioner Anthony Payson, a homeowner within the community, alleged that the Respondent Homeowners Association (HOA) neglected its duty to enforce the Covenants, Codes, & Restrictions (CC&Rs). Specifically, the Petitioner claimed that a large, outdoor television/movie theater installed by his neighbor violated CC&R Section 5.4 (Nuisances), which prohibits anything kept on a lot that "will or might disturb the peace, quiet, comfort, or serenity of the occupants of the surrounding property". Petitioner sought an order compelling the HOA to enforce the CC&Rs and require the neighbor to remove the television.

Respondent's Key Arguments:

The Respondent HOA, represented by Sean K. Mohnihan, orally moved to dismiss the petition for failure to state a claim for relief. The HOA argued that the Petitioner was alleging a violation of Section 5.4 by the neighbor, not the Association itself, and the Association neither owns nor operates the TV.

Crucially, the HOA asserted that the Office of Administrative Hearings (OAH) lacked jurisdiction to hear disputes among neighbors or to enforce common law duties to enforce CC&Rs. Furthermore, the HOA maintained that the Petitioner failed to provide reliable evidence (such as a log book, police reports, or a noise study) to substantiate a nuisance claim, despite the HOA having requested such documentation before initiating enforcement action.

Hearing Proceedings and Evidence:

The ALJ held the motion to dismiss in abeyance but proceeded with the presentation of evidence. Petitioner Payson testified that the TV had disturbed his peace and quiet on at least one occasion involving a hockey game, and that its mere existence constituted a violation because it *might* cause disturbance. Payson admitted he did not provide the HOA with specific dates, times, decibel readings, or video evidence of the disturbance, as the HOA had requested. The Respondent ultimately elected not to call witnesses, relying instead on the Petitioner's testimony and the jurisdictional arguments.

Outcome and Legal Decision:

In the final decision issued May 1, 2023, the ALJ concluded that the Petitioner failed to establish that the Respondent (The Foothills Homeowners Association #1) violated CC&R Section 5.4.

The ALJ determined that CC&R Section 5.4 addresses use restrictions on Members and Lots. Since the provisions refer to actions of members, any breach of that Article would be a breach by a Member, not the Association. The OAH’s authority, pursuant to ARIZ. REV. STAT. § 32-2199.02(A), is limited to finding whether the governing document or statute has been violated by the respondent. Because the Petitioner did not contend or provide facts establishing that the HOA stored property that caused noise or disturbed the peace, the Petitioner failed to meet the burden of proof against the Association.

The petition was ordered dismissed.

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Therefore, the HOA cannot be found guilty of violating a rule that governs homeowner behavior.”, “alj_quote”: “These provisions refer to what members may and may not do within the Association. Therefore, any breach of this Article would be a breach by a Member, not the Association. Petitioner failed to establish that Respondent violated CC&R Section 5.4.”, “legal_basis”: “CC&R Section 5.4; OAH Jurisdiction”, “topic_tags”: [ “enforcement”, “jurisdiction”, “neighbor disputes” ] }, { “question”: “Does the Office of Administrative Hearings (OAH) have jurisdiction to decide if my HOA was negligent or violated common law duties?”, “short_answer”: “No, the OAH jurisdiction is strictly limited to violations of statutes and governing documents.”, “detailed_answer”: “The tribunal does not have the authority to hear claims based on common law, such as negligence or general failure to perform a duty, unless it is a specific violation of the statutes or the community documents tailored to the Association’s conduct.”, “alj_quote”: “To the extent that Petitioner alleged that Respondent may have violated common law, or any other laws, the OAH lacks jurisdiction to make such a determination.”, “legal_basis”: “ARIZ. REV. STAT. § 32-2199.01”, “topic_tags”: [ “jurisdiction”, “common law”, “negligence” ] }, { “question”: “What remedies or penalties can I request from the administrative judge if I win my case against the HOA?”, “short_answer”: “Relief is limited to a finding of violation, an order to comply, return of filing fees, and civil penalties.”, “detailed_answer”: “The administrative process cannot award damages for things like pain, suffering, or lost property value. The remedies are strictly defined by statute: finding a violation occurred, ordering the HOA to abide by the provision, returning the petitioner’s filing fee, and levying a civil penalty.”, “alj_quote”: “Petitioner’s relief in this venue is limited to e is limited to a finding that the governing document or statute at issue has been violated by the respondent, an order that Respondent abide by the provision in the future, and to have the filing fee returned to the petitioner and a civil penalty levied against Respondent.”, “legal_basis”: “Ariz. Rev. Stat. §32- 2199.02(A)”, “topic_tags”: [ “remedies”, “penalties”, “civil penalty” ] }, { “question”: “Who is responsible for proving that a violation occurred in an HOA dispute hearing?”, “short_answer”: “The Petitioner (the homeowner filing the complaint) bears the burden of proof.”, “detailed_answer”: “The homeowner bringing the case must provide sufficient evidence to prove their claims. It is not the HOA’s job to disprove the claims initially; the burden lies with the person filing the petition.”, “alj_quote”: “Petitioner bears the burden of proof to establish that Respondent violated on its CC&Rs by a preponderance of the evidence.”, “legal_basis”: “A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A)”, “topic_tags”: [ “burden of proof”, “evidence”, “legal standard” ] }, { “question”: “What is the ‘preponderance of the evidence’ standard used in these hearings?”, “short_answer”: “It means the claim is more probable than not to be true.”, “detailed_answer”: “This legal standard requires that the evidence presented must convince the judge that the petitioner’s argument is more likely true than the opposing side’s argument. It is described as the ‘greater weight of the evidence.'”, “alj_quote”: ““A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.””, “legal_basis”: “Morris K. Udall, Arizona Law of Evidence”, “topic_tags”: [ “legal standard”, “definitions”, “evidence” ] }, { “question”: “How are vague or ambiguous rules in the CC&Rs interpreted by the judge?”, “short_answer”: “They are construed to give effect to the intent of the parties and the underlying purpose of the document.”, “detailed_answer”: “When interpreting restrictive covenants, the judge looks at the document as a whole. If the covenant is unambiguous, it is enforced exactly as written to match the intent.”, “alj_quote”: ““Restrictive covenants must be construed as a whole and interpreted in view of their underlying purposes, giving effect to all provisions contained therein.””, “legal_basis”: “Powell v. Washburn, 211 Ariz. 553”, “topic_tags”: [ “interpretation”, “CC&Rs”, “legal principles” ] } ] }

{ “case”: { “docket_no”: “23F-H041-REL”, “case_title”: “In the Matter of Anthony Payson vs The Foothills Homeowners Association #1”, “decision_date”: “2023-05-01”, “alj_name”: “Velva Moses-Thompson”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Can I use the ADRE administrative hearing process to force my HOA to enforce CC&R rules against a neighbor?”, “short_answer”: “Generally no, if the specific rule applies to member conduct rather than Association conduct.”, “detailed_answer”: “The Administrative Law Judge (ALJ) clarified that the dispute process is for determining if the Respondent (the HOA) violated a statute or governing document. If a CC&R provision restricts how a ‘lot’ may be used, a violation of that rule is a breach by the member (the neighbor), not the Association. Therefore, the HOA cannot be found guilty of violating a rule that governs homeowner behavior.”, “alj_quote”: “These provisions refer to what members may and may not do within the Association. Therefore, any breach of this Article would be a breach by a Member, not the Association. Petitioner failed to establish that Respondent violated CC&R Section 5.4.”, “legal_basis”: “CC&R Section 5.4; OAH Jurisdiction”, “topic_tags”: [ “enforcement”, “jurisdiction”, “neighbor disputes” ] }, { “question”: “Does the Office of Administrative Hearings (OAH) have jurisdiction to decide if my HOA was negligent or violated common law duties?”, “short_answer”: “No, the OAH jurisdiction is strictly limited to violations of statutes and governing documents.”, “detailed_answer”: “The tribunal does not have the authority to hear claims based on common law, such as negligence or general failure to perform a duty, unless it is a specific violation of the statutes or the community documents tailored to the Association’s conduct.”, “alj_quote”: “To the extent that Petitioner alleged that Respondent may have violated common law, or any other laws, the OAH lacks jurisdiction to make such a determination.”, “legal_basis”: “ARIZ. REV. STAT. § 32-2199.01”, “topic_tags”: [ “jurisdiction”, “common law”, “negligence” ] }, { “question”: “What remedies or penalties can I request from the administrative judge if I win my case against the HOA?”, “short_answer”: “Relief is limited to a finding of violation, an order to comply, return of filing fees, and civil penalties.”, “detailed_answer”: “The administrative process cannot award damages for things like pain, suffering, or lost property value. The remedies are strictly defined by statute: finding a violation occurred, ordering the HOA to abide by the provision, returning the petitioner’s filing fee, and levying a civil penalty.”, “alj_quote”: “Petitioner’s relief in this venue is limited to e is limited to a finding that the governing document or statute at issue has been violated by the respondent, an order that Respondent abide by the provision in the future, and to have the filing fee returned to the petitioner and a civil penalty levied against Respondent.”, “legal_basis”: “Ariz. Rev. Stat. §32- 2199.02(A)”, “topic_tags”: [ “remedies”, “penalties”, “civil penalty” ] }, { “question”: “Who is responsible for proving that a violation occurred in an HOA dispute hearing?”, “short_answer”: “The Petitioner (the homeowner filing the complaint) bears the burden of proof.”, “detailed_answer”: “The homeowner bringing the case must provide sufficient evidence to prove their claims. It is not the HOA’s job to disprove the claims initially; the burden lies with the person filing the petition.”, “alj_quote”: “Petitioner bears the burden of proof to establish that Respondent violated on its CC&Rs by a preponderance of the evidence.”, “legal_basis”: “A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A)”, “topic_tags”: [ “burden of proof”, “evidence”, “legal standard” ] }, { “question”: “What is the ‘preponderance of the evidence’ standard used in these hearings?”, “short_answer”: “It means the claim is more probable than not to be true.”, “detailed_answer”: “This legal standard requires that the evidence presented must convince the judge that the petitioner’s argument is more likely true than the opposing side’s argument. It is described as the ‘greater weight of the evidence.'”, “alj_quote”: ““A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.””, “legal_basis”: “Morris K. Udall, Arizona Law of Evidence”, “topic_tags”: [ “legal standard”, “definitions”, “evidence” ] }, { “question”: “How are vague or ambiguous rules in the CC&Rs interpreted by the judge?”, “short_answer”: “They are construed to give effect to the intent of the parties and the underlying purpose of the document.”, “detailed_answer”: “When interpreting restrictive covenants, the judge looks at the document as a whole. If the covenant is unambiguous, it is enforced exactly as written to match the intent.”, “alj_quote”: ““Restrictive covenants must be construed as a whole and interpreted in view of their underlying purposes, giving effect to all provisions contained therein.””, “legal_basis”: “Powell v. Washburn, 211 Ariz. 553”, “topic_tags”: [ “interpretation”, “CC&Rs”, “legal principles” ] } ] }

Case Participants

Petitioner Side

  • Anthony Payson (petitioner)
    Homeowner

Respondent Side

  • Sean K. Mohnihan (HOA attorney)
    Smith & Wamsley, PLLC
    Appeared for Respondent The Foothills Homeowners Association #1
  • Jason E Smith (attorney)
    Smith & Wamsley, PLLC
    Listed with counsel
  • Gabron (board member)
    The Foothills Homeowners Association #1
    Board representative/potential witness
  • Linda Armo (board member)
    The Foothills Homeowners Association #1
    Board representative/potential witness
  • Philip Brown (former HOA attorney)
    Previously represented the HOA; wrote a letter to Petitioner

Neutral Parties

  • Velva Moses-Thompson (ALJ)
    OAH
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate

Other Participants

  • Barry Callahan (neighbor)
    Alleged violator of CC&Rs, neighbor to Petitioner