Tag Archives: 2024

Jesse Freeman v. Millett Ranch Homeowners’ Association

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Case Summary

Case ID 24F-H035-REL
Agency ADRE
Tribunal OAH
Decision Date 2024-08-09
Administrative Law Judge Jenna Clark
Outcome The Administrative Law Judge determined that Petitioner failed to sustain the burden of proof required to show the Association violated the purported Bylaws amendment, and therefore, the petition was denied.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Jesse Freeman Counsel —
Respondent Millett Ranch Homeowners’ Association Counsel Augustus H. Shaw IV, Esq.

Alleged Violations

Bylaws Article II, Section 8, as amended October 18, 2000

Outcome Summary

The Administrative Law Judge determined that Petitioner failed to sustain the burden of proof required to show the Association violated the purported Bylaws amendment, and therefore, the petition was denied.

Why this result: Petitioner failed to prove the validity or implementation of the purported Bylaws amendment, and the language of the amendment itself was found not to be compulsory in requiring a subsequent meeting.

Key Issues & Findings

Alleged failure to hold a second and subsequent meeting of the membership with a diminished quorum.

Petitioner alleged the Association violated its Bylaws by failing to hold a second meeting with a diminished 15% quorum after failing to meet the initial 25% quorum at the Annual Meeting on January 16, 2024, despite a motion and second being made to adjourn and reset the meeting.

Orders: Petitioner's petition was denied.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. §§ 32-2102
  • ARIZ. REV. STAT. §§ 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. Title 33, Chapter 16, Article 1
  • ARIZ. REV. STAT. § 33-1802(4)
  • ARIZ. REV. STAT. § 33-1802(1)
  • 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. § 41-1092.09
  • 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)

Analytics Highlights

Topics: HOA Bylaws, Quorum, Annual Meeting, Burden of Proof, Invalid Document, Continuance
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. § 33-1802(1)
  • ARIZ. REV. STAT. § 33-1802(4)
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. REV. STAT. § 41-1092.09
  • ARIZ. REV. STAT. Title 33, Chapter 16, Article 1
  • BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

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Video Overview

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Decision Documents

24F-H035-REL Decision – 1163387.pdf

Uploaded 2026-04-24T12:21:35 (48.4 KB)

24F-H035-REL Decision – 1163395.pdf

Uploaded 2026-04-24T12:21:40 (7.2 KB)

24F-H035-REL Decision – 1165696.pdf

Uploaded 2026-04-24T12:21:43 (49.1 KB)

24F-H035-REL Decision – 1165699.pdf

Uploaded 2026-04-24T12:21:46 (7.3 KB)

24F-H035-REL Decision – 1179128.pdf

Uploaded 2026-04-24T12:21:50 (53.7 KB)

24F-H035-REL Decision – 1179136.pdf

Uploaded 2026-04-24T12:21:53 (7.6 KB)

24F-H035-REL Decision – 1209016.pdf

Uploaded 2026-04-24T12:21:57 (146.3 KB)

24F-H035-REL Decision – 1163387.pdf

Uploaded 2026-01-23T18:06:04 (48.4 KB)

24F-H035-REL Decision – 1163395.pdf

Uploaded 2026-01-23T18:06:08 (7.2 KB)

24F-H035-REL Decision – 1165696.pdf

Uploaded 2026-01-23T18:06:11 (49.1 KB)

24F-H035-REL Decision – 1165699.pdf

Uploaded 2026-01-23T18:06:13 (7.3 KB)

24F-H035-REL Decision – 1179128.pdf

Uploaded 2026-01-23T18:06:15 (53.7 KB)

24F-H035-REL Decision – 1179136.pdf

Uploaded 2026-01-23T18:06:19 (7.6 KB)

24F-H035-REL Decision – 1209016.pdf

Uploaded 2026-01-23T18:06:23 (146.3 KB)

This summary details the hearing held before the Office of Administrative Hearings (OAH) in the matter of *Jesse Freeman, Petitioner, vs. Millett Ranch Homeowners’ Association, Respondent*, Case No. 24F-H035-REL. The hearing was presided over by Administrative Law Judge (ALJ) Jenna Clark on July 24, 2024, concerning an HOA dispute.

Key Facts and Main Issue

The core issue was whether the Respondent, Millett Ranch Homeowners’ Association (the Association), failed to comply with Article II, Section 8 of its Bylaws, as purportedly amended on October 18, 2000, by refusing to hold a subsequent membership meeting with a diminished quorum.

The dispute arose after the Annual Meeting on January 16, 2024, failed to reach the required 25% quorum (only 89 votes were present, short of the 126 needed). Petitioner Jesse Freeman alleged that when quorum failed, the membership made and seconded a motion to adjourn and reconvene the meeting 60 days later with a reduced quorum requirement of 15% (76 votes), but the Association's Board President and attorney abruptly denied the motion and ended the meeting. Petitioner sought an Order compelling the Association to hold a meeting with the 15% diminished quorum requirement.

Key Arguments

Petitioner’s Case:

Petitioner Freeman, a property owner and former board member, argued that the amendment decreasing the quorum requirement for subsequent meetings to 15% was valid, asserting that its validity was established because it was dated October 18, 2000, and archived on the Association’s public website (Exhibit Y). Petitioner contended that the bylaw language was "compulsory" and mandated that the membership be allowed to adjourn and reconvene the meeting under the diminished quorum rule.

Respondent’s Case:

Respondent’s counsel and witnesses (Community Manager Brandon Moore and former Board President Chris Redden) presented two main arguments.

  1. Invalidity: The amendment was never formally adopted, ratified, or implemented by the Association. Witnesses testified that there were no ballots, meeting minutes, signatures, or stamps in the Association's records to substantiate the amendment’s validity. Furthermore, Petitioner conceded that during his two-year tenure on the Board (2017-2018), the Board never utilized the purported amendment, despite often failing to meet quorum, supporting the argument that the document was either a failed proposal or unknown.
  2. Non-Compulsory Language: Even if the amendment were valid, its language is not mandatory. The amendment states that the second meeting "shall require fifteen percent quorum". Respondent argued that this language simply sets the quorum requirement *if* a second meeting is held; it does not contain binding words (such as "shall" or "must" directed at the Association) that compel the Board to *call* a second meeting.

Outcome and Legal Conclusion

The ALJ found that Petitioner failed to sustain the burden of proof—that the contention was "more probably true than not".

The ALJ issued an Order denying the Petitioner's petition.

The legal conclusions supporting the denial were:

  1. Lack of Corroboration: Petitioner failed to present sufficient credible evidence that the Association had voted on, ratified, or implemented the amendment to Bylaw Article II, Section 8. The document’s mere presence on the Association’s website was insufficient to establish validity.
  2. Non-Compulsory Language: The ALJ concluded that the language of the purported amendment was not compulsory. It does not contain verbiage inherently binding, such as "shall" or "must," that would require the Respondent to hold a second meeting.

The ALJ Decision was issued on August 09, 2024.

Questions

Question

If a document appears on the HOA's website, is it automatically considered a valid governing document?

Short Answer

No. The presence of a document on a website does not prove it was voted on or adopted.

Detailed Answer

The ALJ found that simply finding a document on the association's website is insufficient to prove it is a valid, adopted amendment. There must be evidence that members participated in a vote or that the association officially adopted it.

Alj Quote

The document’s presence on the Association’s website does not establish or tend to suggest that members participated in a vote on or about October 18, 2000, or that the Association adopted an amendment to Bylaw Article II Section 8 thereafter.

Legal Basis

Findings of Fact No. 7

Topic Tags

  • governing documents
  • website
  • validity

Question

What specific features does a bylaw amendment need to be considered valid and enforceable?

Short Answer

It generally requires signatures, stamps, seals, or filing receipts to prove it isn't just a draft.

Detailed Answer

To be considered a valid governing document rather than a failed proposal or draft, the document should ideally have an embossed stamp, seal, or at least one signature indicating it was finalized and adopted.

Alj Quote

Moreover, the document itself does not have an embossed stamp or seal, or reflect at least one (1) signature that would reasonably suggest it was indeed a valid governing document, rather than a failed proposal or draft, which is supported by the fact that a filing receipt was not affixed.

Legal Basis

Findings of Fact No. 7

Topic Tags

  • governing documents
  • signatures
  • enforceability

Question

If the bylaws mention a reduced quorum for a 'second meeting', is the HOA required to hold that second meeting?

Short Answer

Not necessarily. If the language doesn't explicitly say the HOA 'must' hold the meeting, it may be optional.

Detailed Answer

Even if a bylaw provision states that a second meeting 'shall require' a lower quorum, this does not automatically compel the HOA to hold that meeting. Unless words like 'shall' or 'must' apply specifically to the act of holding the meeting itself, the HOA may not be required to schedule it.

Alj Quote

There are no accompanying words that are inherently binding such as shall or must that would require Respondent to hold a second meeting based on the aforementioned verbiage used.

Legal Basis

Findings of Fact No. 8

Topic Tags

  • meetings
  • quorum
  • bylaw interpretation

Question

Who is responsible for proving that an HOA violated the rules?

Short Answer

The petitioner (homeowner) bears the burden of proof.

Detailed Answer

In an administrative hearing regarding an HOA dispute, the homeowner filing the petition is responsible for proving, by a preponderance of the evidence, that the HOA committed the alleged violation.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent committed the alleged statutory violation.

Legal Basis

Conclusions of Law No. 3

Topic Tags

  • burden of proof
  • legal standards
  • procedure

Question

Does it matter if the HOA hasn't followed a specific rule for many years?

Short Answer

Yes. Long-term non-enforcement or lack of awareness by the board can be evidence that the rule was never validly adopted.

Detailed Answer

The ALJ considered the fact that the petitioner and board members were unaware of the amendment for years, and had failed to use it during previous quorum failures, as evidence weighing against the document's validity.

Alj Quote

Petitioner conceded that during his tenure on the Board and thereafter he was unaware of the purported amendment’s existence, notwithstanding several instances over a number of years where voting members failed to meet quorum requirements and did not utilize the provisions of the alleged amendment.

Legal Basis

Findings of Fact No. 7

Topic Tags

  • past practice
  • board conduct
  • validity

Question

What standard of proof is used in these HOA hearings?

Short Answer

Preponderance of the evidence.

Detailed Answer

The standard is 'preponderance of the evidence,' which means showing that a contention is more probably true than not. It is based on the convincing force of the evidence rather than just the number of witnesses.

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

Conclusions of Law No. 4

Topic Tags

  • legal standards
  • evidence

Case

Docket No
24F-H035-REL
Case Title
Jesse Freeman v. Millett Ranch Homeowners’ Association
Decision Date
2024-08-09
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Questions

Question

If a document appears on the HOA's website, is it automatically considered a valid governing document?

Short Answer

No. The presence of a document on a website does not prove it was voted on or adopted.

Detailed Answer

The ALJ found that simply finding a document on the association's website is insufficient to prove it is a valid, adopted amendment. There must be evidence that members participated in a vote or that the association officially adopted it.

Alj Quote

The document’s presence on the Association’s website does not establish or tend to suggest that members participated in a vote on or about October 18, 2000, or that the Association adopted an amendment to Bylaw Article II Section 8 thereafter.

Legal Basis

Findings of Fact No. 7

Topic Tags

  • governing documents
  • website
  • validity

Question

What specific features does a bylaw amendment need to be considered valid and enforceable?

Short Answer

It generally requires signatures, stamps, seals, or filing receipts to prove it isn't just a draft.

Detailed Answer

To be considered a valid governing document rather than a failed proposal or draft, the document should ideally have an embossed stamp, seal, or at least one signature indicating it was finalized and adopted.

Alj Quote

Moreover, the document itself does not have an embossed stamp or seal, or reflect at least one (1) signature that would reasonably suggest it was indeed a valid governing document, rather than a failed proposal or draft, which is supported by the fact that a filing receipt was not affixed.

Legal Basis

Findings of Fact No. 7

Topic Tags

  • governing documents
  • signatures
  • enforceability

Question

If the bylaws mention a reduced quorum for a 'second meeting', is the HOA required to hold that second meeting?

Short Answer

Not necessarily. If the language doesn't explicitly say the HOA 'must' hold the meeting, it may be optional.

Detailed Answer

Even if a bylaw provision states that a second meeting 'shall require' a lower quorum, this does not automatically compel the HOA to hold that meeting. Unless words like 'shall' or 'must' apply specifically to the act of holding the meeting itself, the HOA may not be required to schedule it.

Alj Quote

There are no accompanying words that are inherently binding such as shall or must that would require Respondent to hold a second meeting based on the aforementioned verbiage used.

Legal Basis

Findings of Fact No. 8

Topic Tags

  • meetings
  • quorum
  • bylaw interpretation

Question

Who is responsible for proving that an HOA violated the rules?

Short Answer

The petitioner (homeowner) bears the burden of proof.

Detailed Answer

In an administrative hearing regarding an HOA dispute, the homeowner filing the petition is responsible for proving, by a preponderance of the evidence, that the HOA committed the alleged violation.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent committed the alleged statutory violation.

Legal Basis

Conclusions of Law No. 3

Topic Tags

  • burden of proof
  • legal standards
  • procedure

Question

Does it matter if the HOA hasn't followed a specific rule for many years?

Short Answer

Yes. Long-term non-enforcement or lack of awareness by the board can be evidence that the rule was never validly adopted.

Detailed Answer

The ALJ considered the fact that the petitioner and board members were unaware of the amendment for years, and had failed to use it during previous quorum failures, as evidence weighing against the document's validity.

Alj Quote

Petitioner conceded that during his tenure on the Board and thereafter he was unaware of the purported amendment’s existence, notwithstanding several instances over a number of years where voting members failed to meet quorum requirements and did not utilize the provisions of the alleged amendment.

Legal Basis

Findings of Fact No. 7

Topic Tags

  • past practice
  • board conduct
  • validity

Question

What standard of proof is used in these HOA hearings?

Short Answer

Preponderance of the evidence.

Detailed Answer

The standard is 'preponderance of the evidence,' which means showing that a contention is more probably true than not. It is based on the convincing force of the evidence rather than just the number of witnesses.

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

Conclusions of Law No. 4

Topic Tags

  • legal standards
  • evidence

Case

Docket No
24F-H035-REL
Case Title
Jesse Freeman v. Millett Ranch Homeowners’ Association
Decision Date
2024-08-09
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Jesse Freeman (petitioner)
    Millett Ranch Homeowners’ Association Member
    Spelling varies as 'Jesse Freemen' in some sources; also served as Treasurer on the Board 2017-2018.
  • Nicholas Belisi (witness)
    Potential witness for Petitioner; seconded the motion to adjourn and reconvene the meeting.

Respondent Side

  • Augustus H. Shaw IV (HOA attorney)
    Shaw & Lines, LLC
    Counsel for Respondent Millett Ranch Homeowners’ Association.
  • Brandon David Moore (senior community manager/witness)
    Brown Property Management
    Senior Community Manager for Respondent Millett Ranch HOA, testified as a witness.
  • Christopher Redden (Board President/witness)
    Millett Ranch Homeowners’ Association
    Former Board President (9 years) and Board Member (13-14 years), testified as a witness.
  • Mark Saul (HOA attorney)
    Millett Ranch Homeowners’ Association
    Identified by Petitioner as the association's attorney who abruptly ended the January 16, 2024 meeting.

Neutral Parties

  • Jenna Clark (ALJ)
    OAH
  • Susan Nicolson (Commissioner)
    ADRE
  • vnunez (ADRE staff (Recipient))
    ADRE
    Received transmission of ALJ Decision/Minute Entries.
  • djones (ADRE staff (Recipient))
    ADRE
    Received transmission of ALJ Decision/Minute Entries.
  • labril (ADRE staff (Recipient))
    ADRE
    Received transmission of ALJ Decision/Minute Entries.
  • mneat (ADRE staff (Recipient))
    ADRE
    Received transmission of ALJ Decision/Minute Entries.
  • akowaleski (ADRE staff (Recipient))
    ADRE
    Received transmission of ALJ Decision/Minute Entries.
  • gosborn (ADRE staff (Recipient))
    ADRE
    Received transmission of ALJ Decision/Minute Entries.
  • OAH Staff (OAH Staff)
    OAH
    Transmitted documents/Final Order.

Other Participants

  • Rebecca Cook-Klaus (observer)
    Observed the hearing.
  • Millie Lton (unknown)
    Petitioner received a copy of the bylaws amendment from this person in May 2023.

Brian & Rosalie Gordon v. Tucson Estate No. Two Owner’s Association

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Case Summary

Case ID 24F-H043-REL
Agency ADRE
Tribunal OAH
Decision Date 2024-07-10
Administrative Law Judge Samuel Fox
Outcome Petitioners were deemed the prevailing party regarding Petition Issues 1 and 4, and Respondent was deemed the prevailing party regarding Issues 2 and 3. Respondent was ordered to pay Petitioners $1,000.00 of the filing fee. Respondent was also directed to comply with Community Documents and A.R.S. § 33-1805 going forward. No Civil Penalty was levied.
Filing Fees Refunded $2,000.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Brian Gordon and Rosalie Gordon Counsel —
Respondent Tucson Estate No. Two Owner's Association Counsel Jason Smith

Alleged Violations

Bylaws Article 10; Finance Committee rules
A.R.S. § 33-1805; Bylaws Article 10
A.R.S. § 33-1805; Bylaws Article 10
A.R.S. § 33-1805; Bylaws Article 10

Outcome Summary

Petitioners were deemed the prevailing party regarding Petition Issues 1 and 4, and Respondent was deemed the prevailing party regarding Issues 2 and 3. Respondent was ordered to pay Petitioners $1,000.00 of the filing fee. Respondent was also directed to comply with Community Documents and A.R.S. § 33-1805 going forward. No Civil Penalty was levied.

Why this result: Petitioners failed to meet the burden of proof for Complaints 2 and 3, establishing that Respondent violated A.R.S. § 33-1805 or failed to abide by Community Documents, because Respondent provided all available records or offered additional reports.

Key Issues & Findings

Violation of Community Documents by not recording and making available the minutes of all Finance Committee Meetings held in 2023.

Petitioners requested minutes for five 2023 Finance Committee Meetings. The Committee rules required minutes of its meetings as a permanent record of its actions. The Respondent failed to record meeting minutes as required.

Orders: Respondent directed to comply with the requirements of its Community Documents going forward.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1805
  • A.R.S. § 10-11601
  • Bylaws Article 10

Violation by not keeping and making financial and other HOA business documentation (Budget Working Papers) available for review.

Petitioners requested copies of Budget Working Papers. Respondent provided all available documents (unapproved budget, general ledger, and draft), maintaining only one version of a proprietary spreadsheet. Petitioners failed to meet their burden to prove Respondent did not make records available.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1805
  • A.R.S. § 10-11601
  • Bylaws Article 10

Violation by not keeping and making financial and other HOA business documentation (Accounts Payable journal with GL detail) available for review.

Petitioners requested Accounts Payable journal/reports multiple times. Respondent provided copies of available accounts payable reports (check receipts and general ledger). When Respondent later identified an additional detailed report available for purchase, Petitioners refused it.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1805
  • A.R.S. § 10-11601
  • Bylaws Article 10

Violation by not keeping and making financial and other HOA business documentation (IRS Tax filings and backup documentation) available for review.

Petitioners requested IRS Tax filings. Respondent initially provided only photocopies of two pages of the 1120-h form, missing schedules and backup documentation. Respondent failed to provide full tax returns or backup documentation in a timely manner (within ten business days).

Orders: Respondent is directed to comply with the requirements of A.R.S. § 33-1805 going forward.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1805
  • A.R.S. § 10-11601
  • Bylaws Article 10

Analytics Highlights

Topics: HOA records dispute, Finance Committee minutes, budget working papers, accounts payable journal, IRS tax filings, record retention, A.R.S. § 33-1805 violation
Additional Citations:

  • A.R.S. § 33-1805
  • A.R.S. § 10-11601
  • Bylaws Article 10
  • A.R.S. § 32-2199.02

Video Overview

Audio Overview

Decision Documents

24F-H043-REL Decision – 1176916.pdf

Uploaded 2026-04-24T12:23:58 (53.5 KB)

24F-H043-REL Decision – 1198119.pdf

Uploaded 2026-04-24T12:24:02 (203.0 KB)

24F-H043-REL Decision – 1200350.pdf

Uploaded 2026-04-24T12:24:06 (37.2 KB)

24F-H043-REL Decision – 1176916.pdf

Uploaded 2026-01-23T18:07:38 (53.5 KB)

24F-H043-REL Decision – 1198119.pdf

Uploaded 2026-01-23T18:07:41 (203.0 KB)

24F-H043-REL Decision – 1200350.pdf

Uploaded 2026-01-23T18:07:45 (37.2 KB)

This case involves a records dispute between Petitioners Brian and Rosalie Gordon (members) and the Tucson Estate No. Two Owner's Association (Respondent/HOA), heard by Administrative Law Judge (ALJ) Samuel Fox at the Office of Administrative Hearings (OAH) on June 21, 2024. The OAH's authority is limited to adjudicating alleged violations of the Arizona Planned Community Statutes (A.R.S. Title 33, Chapter 16) and the HOA's Community Documents.

Key Facts and Main Issues

The Petitioners filed a four-issue complaint alleging the Respondent violated A.R.S. § 33-1805 (requiring records to be made available for examination) and the HOA's Bylaws, primarily by failing to provide specific financial documentation requested in 2022 and 2023.

The four contested issues were:

  1. Finance Committee Minutes: Failure to record and make available minutes of 2023 Finance Committee Meetings.
  2. Budget Working Papers: Refusal to provide copies of draft budget working papers.
  3. Accounts Payable (AP) Journal: Failure to provide AP journals with General Ledger (GL) detail.
  4. Tax Filings Backup: Provision of incomplete IRS tax filings (just two pages of the 1120-h form) and lack of supporting backup documentation.

Key Arguments During the Hearing

Petitioners' Position: The Gordons argued that all financial and other records must be made reasonably available for examination by any member under A.R.S. § 33-1805. They contended that the HOA’s own Finance Committee policy required minutes of all its meetings as a permanent record of its "actions". They also claimed that essential documents (budget working papers, AP detail, and full tax backups) either existed and were being withheld, or should have been maintained by the HOA according to policy, even if created by its vendor, AAM.

Respondent's Position: The HOA, represented by Jason Smith, argued that the OAH’s jurisdiction is narrow. They maintained that they provided every document they possessed. For the minutes, they argued the Finance Committee is purely advisory, does not take corporate "action," and therefore minutes are not required. For the budget documents (Issue 2) and AP journal (Issue 3), the HOA claimed that the requested specific documents did not exist (as the budget utilized a single constantly updated spreadsheet, and the AP detail was handled by a third party not required to generate a specific report for the HOA). The HOA stressed that they are not required to create or reorganize information to satisfy a homeowner's request.

Final Decision and Outcome

The ALJ issued a decision on July 10, 2024, finding that the Petitioners prevailed on Issues 1 and 4, while the Respondent prevailed on Issues 2 and 3.

Legal Conclusions:

  • Issue 1 (Finance Minutes): VIOLATION FOUND. The HOA failed to abide by its Community Documents. Although the Finance Committee is advisory, its rules established that its activities (advising, reviewing, making recommendations) constituted "actions" for which minutes were required to be kept.
  • Issue 4 (Tax Filings Backup): VIOLATION FOUND. The HOA violated A.R.S. § 33-1805 because the preponderance of evidence showed Petitioners did not receive the complete tax returns or backup documentation in a timely manner (within the required ten business days of their October requests), even though the records were eventually available or accessible through the HOA’s agents.
  • Issues 2 & 3 (Working Papers & AP Journal): NO VIOLATION FOUND. The ALJ concluded that the Petitioners failed to meet their burden of proof, noting that A.R.S. § 33-1805 and the Bylaws do not require the HOA to create documents that it does not possess in response to a request. Respondent was found to have provided all available records related to these complaints.

Order:

The Respondent was ordered to comply with its Community Documents and the requirements of A.R.S. § 33-1805 going forward. The

Questions

Question

Is my HOA required to keep minutes for advisory committees?

Short Answer

Yes, if the community documents (like a committee charter or policy) state that minutes must be kept.

Detailed Answer

Even if an HOA argues a committee is only 'advisory' and doesn't take 'actions,' the ALJ ruled that activities like advising, reviewing, and recommending constitute 'actions' within the scope of the committee's duties. Therefore, if the committee's rules say minutes must be kept, failing to do so violates the community documents.

Alj Quote

When the Committee advised, assisted, reviewed, analyzed, recommended, or otherwise took action within the parameters of its Responsibilities and Duties, that was an 'action' by the Committee as established by the Board.

Legal Basis

Community Documents / Bylaws

Topic Tags

  • meeting minutes
  • committees
  • record keeping

Question

Can I demand that the HOA create a specific report to answer my financial questions?

Short Answer

No, the HOA is not required to create new documents that do not already exist.

Detailed Answer

The law requires the HOA to make existing records available for examination. It does not compel the HOA to generate new reports, compile data in a specific format, or create documents they do not currently possess to satisfy a homeowner's request.

Alj Quote

It does not require Respondent to provide documents that it does not have nor does it require Respondent to create documents in response to a request.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • financial records
  • document creation
  • requests

Question

If the management company holds the records, can the HOA claim they don't have them?

Short Answer

No, records held by the management company are considered to be in the HOA's custody.

Detailed Answer

The ALJ explicitly ruled that documents in the custody of the management agent (e.g., AAM) are legally in the custody of the HOA. The HOA is obligated to provide them to members upon request.

Alj Quote

Documents in the custody of AAM are in the custody of Respondent, and Respondent is obligated to provide them to members under A.R.S. § 33-1805.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • management company
  • record custody
  • access to records

Question

Are personal notes taken by committee members considered official HOA records?

Short Answer

No, personal notes or drafts on personal devices are generally not HOA records.

Detailed Answer

The ALJ found that notes, drafts, edits, or comments made by committee members on their personal versions of documents were not records of the Association if the Association did not collect, track, or record them.

Alj Quote

Any notes, drafts, edits, or comments that committee members made on their personal versions were not records of Respondent, which did not collect, track, or record the committee members’ individual notes.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • personal notes
  • official records
  • committees

Question

Does the HOA have to provide previous drafts of a budget or 'working papers'?

Short Answer

Only if they actually kept them. If they overwrite the file, they don't have to produce previous versions.

Detailed Answer

In this case, the HOA used a single spreadsheet that was updated and overwritten as the budget process moved forward. The ALJ ruled that since the HOA did not maintain multiple versions, they were not required to produce previous drafts they no longer possessed.

Alj Quote

Respondent only maintained one version of the spreadsheet, and when changes were made, the spreadsheet was updated… Petitioners failed to meet their burden to support that Respondent did not make records available for review.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • budget
  • draft documents
  • record retention

Question

Is providing the first two pages of a tax return sufficient to fulfill a records request?

Short Answer

No, the HOA must provide the complete tax return and backup documentation.

Detailed Answer

The ALJ found the HOA in violation for providing only the first two pages of Form 1120-H. The homeowner was entitled to the complete tax form and the backup documentation (which the management company or CPA had access to) within 10 days.

Alj Quote

The preponderance of the evidence establishes that Petitioners did not receive full copies of Respondent’s tax returns or backup documentation for the tax returns within ten days of their respective October requests.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • tax returns
  • financial records
  • transparency

Question

Can the ALJ enforce IRS regulations or the Nonprofit Corporation Act during this hearing?

Short Answer

No, the ALJ's jurisdiction is limited to Planned Community statutes and Community Documents.

Detailed Answer

The Administrative Law Judge explicitly stated that the tribunal is not authorized to adjudicate complaints arising from the Arizona Nonprofit Corporations Act or IRS regulations, only Title 33 (Planned Communities) and the specific HOA documents.

Alj Quote

This Tribunal is not authorized to adjudicate complaints arising from the Arizona Nonprofit Corporations Act, Internal Revenue Service regulations, or other laws or regulations.

Legal Basis

A.R.S. § 32-2199

Topic Tags

  • jurisdiction
  • legal authority
  • IRS
  • nonprofit act

Question

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

Short Answer

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

Detailed Answer

In this case, because the homeowners prevailed on two of their four issues, the ALJ ordered the HOA to pay the homeowners $1,000.00 (half of the $2,000 filing fee).

Alj Quote

IT IS ORDERED that Respondent pay Petitioners the filing fee of $1,000.00, to be paid directly to Petitioners within thirty (30) days of this Order.

Legal Basis

A.R.S. § 32-2199.02

Topic Tags

  • filing fees
  • penalties
  • reimbursement

Case

Docket No
24F-H043-REL
Case Title
Brian Gordon and Rosalie Gordon v. Tucson Estate No. Two Owner's Association
Decision Date
2024-07-10
Alj Name
Samuel Fox
Tribunal
OAH
Agency
ADRE

Questions

Question

Is my HOA required to keep minutes for advisory committees?

Short Answer

Yes, if the community documents (like a committee charter or policy) state that minutes must be kept.

Detailed Answer

Even if an HOA argues a committee is only 'advisory' and doesn't take 'actions,' the ALJ ruled that activities like advising, reviewing, and recommending constitute 'actions' within the scope of the committee's duties. Therefore, if the committee's rules say minutes must be kept, failing to do so violates the community documents.

Alj Quote

When the Committee advised, assisted, reviewed, analyzed, recommended, or otherwise took action within the parameters of its Responsibilities and Duties, that was an 'action' by the Committee as established by the Board.

Legal Basis

Community Documents / Bylaws

Topic Tags

  • meeting minutes
  • committees
  • record keeping

Question

Can I demand that the HOA create a specific report to answer my financial questions?

Short Answer

No, the HOA is not required to create new documents that do not already exist.

Detailed Answer

The law requires the HOA to make existing records available for examination. It does not compel the HOA to generate new reports, compile data in a specific format, or create documents they do not currently possess to satisfy a homeowner's request.

Alj Quote

It does not require Respondent to provide documents that it does not have nor does it require Respondent to create documents in response to a request.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • financial records
  • document creation
  • requests

Question

If the management company holds the records, can the HOA claim they don't have them?

Short Answer

No, records held by the management company are considered to be in the HOA's custody.

Detailed Answer

The ALJ explicitly ruled that documents in the custody of the management agent (e.g., AAM) are legally in the custody of the HOA. The HOA is obligated to provide them to members upon request.

Alj Quote

Documents in the custody of AAM are in the custody of Respondent, and Respondent is obligated to provide them to members under A.R.S. § 33-1805.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • management company
  • record custody
  • access to records

Question

Are personal notes taken by committee members considered official HOA records?

Short Answer

No, personal notes or drafts on personal devices are generally not HOA records.

Detailed Answer

The ALJ found that notes, drafts, edits, or comments made by committee members on their personal versions of documents were not records of the Association if the Association did not collect, track, or record them.

Alj Quote

Any notes, drafts, edits, or comments that committee members made on their personal versions were not records of Respondent, which did not collect, track, or record the committee members’ individual notes.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • personal notes
  • official records
  • committees

Question

Does the HOA have to provide previous drafts of a budget or 'working papers'?

Short Answer

Only if they actually kept them. If they overwrite the file, they don't have to produce previous versions.

Detailed Answer

In this case, the HOA used a single spreadsheet that was updated and overwritten as the budget process moved forward. The ALJ ruled that since the HOA did not maintain multiple versions, they were not required to produce previous drafts they no longer possessed.

Alj Quote

Respondent only maintained one version of the spreadsheet, and when changes were made, the spreadsheet was updated… Petitioners failed to meet their burden to support that Respondent did not make records available for review.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • budget
  • draft documents
  • record retention

Question

Is providing the first two pages of a tax return sufficient to fulfill a records request?

Short Answer

No, the HOA must provide the complete tax return and backup documentation.

Detailed Answer

The ALJ found the HOA in violation for providing only the first two pages of Form 1120-H. The homeowner was entitled to the complete tax form and the backup documentation (which the management company or CPA had access to) within 10 days.

Alj Quote

The preponderance of the evidence establishes that Petitioners did not receive full copies of Respondent’s tax returns or backup documentation for the tax returns within ten days of their respective October requests.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • tax returns
  • financial records
  • transparency

Question

Can the ALJ enforce IRS regulations or the Nonprofit Corporation Act during this hearing?

Short Answer

No, the ALJ's jurisdiction is limited to Planned Community statutes and Community Documents.

Detailed Answer

The Administrative Law Judge explicitly stated that the tribunal is not authorized to adjudicate complaints arising from the Arizona Nonprofit Corporations Act or IRS regulations, only Title 33 (Planned Communities) and the specific HOA documents.

Alj Quote

This Tribunal is not authorized to adjudicate complaints arising from the Arizona Nonprofit Corporations Act, Internal Revenue Service regulations, or other laws or regulations.

Legal Basis

A.R.S. § 32-2199

Topic Tags

  • jurisdiction
  • legal authority
  • IRS
  • nonprofit act

Question

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

Short Answer

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

Detailed Answer

In this case, because the homeowners prevailed on two of their four issues, the ALJ ordered the HOA to pay the homeowners $1,000.00 (half of the $2,000 filing fee).

Alj Quote

IT IS ORDERED that Respondent pay Petitioners the filing fee of $1,000.00, to be paid directly to Petitioners within thirty (30) days of this Order.

Legal Basis

A.R.S. § 32-2199.02

Topic Tags

  • filing fees
  • penalties
  • reimbursement

Case

Docket No
24F-H043-REL
Case Title
Brian Gordon and Rosalie Gordon v. Tucson Estate No. Two Owner's Association
Decision Date
2024-07-10
Alj Name
Samuel Fox
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Brian Gordon (petitioner)
  • Rosalie Gordon (petitioner)
  • James Tilly (witness)
    Member of Respondent who testified.
  • Leonard Vidovic (witness)
    Also referred to as Leonard Judbec.

Respondent Side

  • Jason E. Smith (HOA attorney)
    SMITH & WAMSLEY, PLLC
  • Sean K. Moynihan (attorney)
    Smith & Wamsley, PLLC
  • Mandy Bates (property manager)
    Associated Asset Management
    Community Manager for Tucson Estates No. Two Owner's Association.
  • Trudy Peterson (finance chair)
    Treasurer and Finance Chair.
  • Rose Spank (board member)
    HOA President in 2012.
  • Janelle Richmond (board member)
    HOA Secretary in 2012.
  • Sharon Matthews (AAM staff)
    AAM
    Referenced in emails regarding accounting procedures (also referred to as Karen Matthews).

Neutral Parties

  • Samuel Fox (ALJ)
    OAH
    Administrative Law Judge for the decision and hearing.
  • Sondra J. Vanella (ALJ)
    OAH
    Signed the initial Order Setting Hearing.
  • Susan Nicolson (ADRE Commissioner)
    Arizona Department of Real Estate
  • vnunez (ADRE staff)
    Arizona Department of Real Estate
    Listed on transmission/service list.
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Listed on transmission/service list.
  • labril (ADRE staff)
    Arizona Department of Real Estate
    Listed on transmission/service list.
  • mneat (ADRE staff)
    Arizona Department of Real Estate
    Listed on transmission/service list.
  • lrecchia (ADRE staff)
    Arizona Department of Real Estate
    Listed on transmission/service list.
  • gosborn (ADRE staff)
    Arizona Department of Real Estate
    Listed on transmission/service list.

Aaron Solen & Anh Jung v. Power Ranch Community Association

Posted on by

Case Summary

Case ID 24F-H036-REL
Agency ADRE
Tribunal OAH
Decision Date 2024-07-05
Administrative Law Judge Adam D. Stone
Outcome The tribunal granted the petition, finding the Association violated ARIZ. REV. STAT. § 33-1803(B) and CC&R section 5.2.3 by failing to provide Petitioners an opportunity to be heard before imposing monetary penalties. The Respondent was ordered to reimburse the $500 filing fee. However, the tribunal denied all other requests for relief, including the reimbursement of fines, imposition of civil penalties, and forced approval of the modification, citing lack of statutory authority.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Aaron Solen and Anh Jung Counsel —
Respondent Power Ranch Community Association Counsel Charles H. Oldham

Alleged Violations

A.R.S. §33-1803(B) and Article 5.2.4 of the Association’s by-laws

Outcome Summary

The tribunal granted the petition, finding the Association violated ARIZ. REV. STAT. § 33-1803(B) and CC&R section 5.2.3 by failing to provide Petitioners an opportunity to be heard before imposing monetary penalties. The Respondent was ordered to reimburse the $500 filing fee. However, the tribunal denied all other requests for relief, including the reimbursement of fines, imposition of civil penalties, and forced approval of the modification, citing lack of statutory authority.

Why this result: The tribunal lacks statutory authority to erase fines imposed, force the Association to rewrite its CC&R’s, or force the Association to accept the planters without Petitioners going through the proper Design Review Committee processes.

Key Issues & Findings

Petitioner was issued fines as a result of a Design Review Committee decision and petitioner was not provided an opportunity to appeal to or be heard by the board of directors as required by A.R.S. §33-1803(B) and Article 5, specifically Article 5.2.4 of the Association’s by-laws.

Petitioners were fined for an unapproved modification (planter) without being granted a proper opportunity to be heard by the Board, as required by statute and bylaws, leading to a violation finding against the Association. The May 2023 meeting did not include the hearing, and the June 2023 Executive Session was not deemed a proper 'hearing' due to confusion over the closed session terminology.

Orders: The petition alleging violation of hearing rights was granted. Respondent was ordered to reimburse the Petitioner’s filing fee pursuant to ARIZ. REV. STAT. § 32-2199.02(A). Requests for reimbursement of fines incurred ($400.00), approval of the planters, imposition of a civil penalty, and rewriting CC&R’s procedures were denied.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. § 33-1803(B)
  • Article 5.2.4
  • CC&R Section 5.2.3
  • ARIZ. REV. STAT. § 32-2199.02(A)

Analytics Highlights

Topics: DRC denial, hearing rights, monetary penalty, unapproved modification, executive session, CC&R violation
Additional Citations:

  • ARIZ. REV. STAT. § 33-1803(B)
  • Article 5.2.4
  • CC&R Section 5.2.3
  • ARIZ. REV. STAT. § 32-2199.02(A)
  • ARIZ. REV. STAT. § 32-2199.01
  • ARIZ. REV. STAT. §§ 32-2102
  • ARIZ. REV. STAT. § 41-1092

Video Overview

Audio Overview

Decision Documents

24F-H036-REL Decision – 1162665.pdf

Uploaded 2026-04-24T12:22:09 (42.0 KB)

24F-H036-REL Decision – 1184634.pdf

Uploaded 2026-04-24T12:22:18 (40.0 KB)

24F-H036-REL Decision – 1191323.pdf

Uploaded 2026-04-24T12:22:22 (37.4 KB)

24F-H036-REL Decision – 1196403.pdf

Uploaded 2026-04-24T12:22:27 (146.0 KB)

24F-H036-REL Decision – 1162665.pdf

Uploaded 2026-01-23T18:06:30 (42.0 KB)

24F-H036-REL Decision – 1184634.pdf

Uploaded 2026-01-23T18:06:33 (40.0 KB)

24F-H036-REL Decision – 1191323.pdf

Uploaded 2026-01-23T18:06:37 (37.4 KB)

24F-H036-REL Decision – 1196403.pdf

Uploaded 2026-01-23T18:06:42 (146.0 KB)

This summary details the hearing before the Office of Administrative Hearings (OAH) in the matter of *Aaron Solen and Anh Jung (Petitioners) vs. Power Ranch Community Association (Respondent)* (No. 24F-H036-REL).

Key Facts and Background

The dispute centered on the installation of an unapproved planter in the Petitioners' front yard. Following a courtesy notice on March 9, 2023, Petitioners submitted a Design Review Committee (DRC) Application, which was denied on April 10, 2023, for not aligning with community aesthetics and being "too large". Petitioners subsequently modified the planter but refused to submit a formal modification application, arguing that the governing documents (CC&Rs) only required modification or new information, not another form, to be granted an appeal.

The Association (Respondent) argued that a formal written application was essential for maintaining accurate written records, especially given the community's size (15,000 members). Although the violation was first noted in March 2023, the Association delayed imposing $100 fines until October 2023, attempting to work with Petitioners to resolve the issue.

Main Issues and Arguments

  1. Violation of Hearing Rights: Petitioners argued they were fined without being provided a proper opportunity to appeal or be heard by the Board of Directors, violating A.R.S. § 33-1803(B) and Article 5.2.4 of the Association's bylaws.
  2. Appeal Procedure: The Board failed to address Petitioners' appeal at the May 22, 2023 meeting because it intended to give Petitioners time to cure the violation and avoid a "final decision".
  3. Executive Session as Hearing: The Association claimed that the invitation to the June 26, 2023 Executive Session was intended to serve as the appeal hearing. Petitioners did not attend, believing executive sessions were closed to homeowners.

Outcome and Legal Decision

The Administrative Law Judge (ALJ) Adam D. Stone granted the Petition.

The ALJ made the following key legal conclusions:

  • Standing: The ALJ confirmed that Petitioners (as members residing at the property) were the proper parties to the action, rejecting the Respondent's argument that only the LLC (the title owner) had standing.
  • Due Process Violation: The tribunal found Petitioners met their burden of proof that the opportunity to have a hearing was not granted.
  • The May meeting delay, though a "noble gesture," still denied Petitioners their statutory right to a hearing.
  • The June Executive Session was found insufficient as a "hearing" due to the confusion its terminology caused, denying the "opportunity to be heard".
  • Final Ruling: The Association violated ARIZ. REV. STAT. § 33-1803(B) (requiring notice and opportunity to be heard before imposing penalties) and CC&R's section 5.2.3.

Remedies

While granting the Petition, the ALJ noted he lacked statutory authority to grant several requested remedies:

  • The ALJ could not erase the fines imposed.
  • The ALJ could not force the Association to approve the planters without Petitioners following the proper DRC procedures.
  • The ALJ denied the request to force the Association to rewrite its CC&R’s.

The only monetary relief ordered was that the Respondent reimburse the Petitioners’ filing fee.

{
“case”: {
“docket_no”: “24F-H036-REL”,
“case_title”: “Aaron Solen & Anh Jung vs Power Ranch Community Association”,
“decision_date”: “2024-07-05”,
“alj_name”: “Adam D. Stone”,
“tribunal”: “OAH”,
“agency”: “ADRE”
},
“questions”: [
{
“question”: “Does the HOA have to provide a hearing before imposing fines?”,
“short_answer”: “Yes, state law requires notice and an opportunity to be heard before monetary penalties are imposed.”,
“detailed_answer”: “The decision cites Arizona Revised Statutes, which mandate that a board of directors may only impose reasonable monetary penalties after providing the member with notice and an opportunity to be heard regarding the violation.”,
“alj_quote”: “After notice and an opportunity to be heard, the board of directors may impose reasonable monetary penalties on members for violations of the declaration, bylaws and rules of the association.”,
“legal_basis”: “A.R.S. § 33-1803(B)”,
“topic_tags”: [
“fines”,
“hearings”,
“due process”
]
},
{
“question”: “Can the Administrative Law Judge order the HOA to remove fines from my account?”,
“short_answer”: “No, the tribunal stated it lacks the statutory authority to erase fines.”,
“detailed_answer”: “Even if the homeowner prevails on the procedural issue (like lack of a hearing), the ALJ in this case ruled that they do not have the power to order the fines be removed or erased.”,
“alj_quote”: “However, the tribunal has no statutory authority to erase the fines imposed nor force the Association to rewrite its CC&R’s”,
“legal_basis”: “Administrative Authority”,
“topic_tags”: [
“fines”,
“remedies”,
“jurisdiction”
]
},
{
“question”: “Can the ALJ force the HOA to approve my architectural modification (e.g., planters)?”,
“short_answer”: “No, the tribunal cannot force the HOA to accept improvements that haven’t gone through the proper design review process.”,
“detailed_answer”: “The ALJ denied the request to force approval of the unapproved planters, noting that the homeowners must still go through the association’s Design Review Committee (DRC) processes.”,
“alj_quote”: “nor can it force the Association to accept the planters as is without Petitioners going through the property DRC processes.”,
“legal_basis”: “Administrative Authority”,
“topic_tags”: [
“architectural review”,
“landscaping”,
“remedies”
]
},
{
“question”: “Is an invitation to an ‘Executive Session’ sufficient to satisfy the requirement for a hearing?”,
“short_answer”: “Not necessarily, especially if the terminology is confusing and leads homeowners to believe they cannot attend.”,
“detailed_answer”: “In this case, the ALJ found that inviting homeowners to an Executive Session—which is generally understood to be closed to the public—was confusing. Because the homeowners believed they couldn’t attend, the session did not count as a valid opportunity to be heard.”,
“alj_quote”: “Thus, the tribunal finds that the June 2023 Executive Session was not a “hearing” for purposes of the CC&R’s, and it was not an opportunity to be heard based upon the confusion the Executive Session terminology caused.”,
“legal_basis”: “A.R.S. § 33-1803(B)”,
“topic_tags”: [
“hearings”,
“executive session”,
“meetings”
]
},
{
“question”: “If I own my home through an LLC, can I still file a petition against the HOA?”,
“short_answer”: “Yes, provided you are the member residing at the property and the HOA has treated you as the owner.”,
“detailed_answer”: “The HOA argued the petition was deficient because the title was held by an LLC. The ALJ rejected this, finding the residents were the proper parties because they were members of the association and the HOA sent mail to them individually.”,
“alj_quote”: “At the outset, the tribunal finds that Petitioners are the proper parties to the action. They are the members of the Association, and all mail went directly to Petitioners individually, and not as a member/manager of the LLC.”,
“legal_basis”: “Standing”,
“topic_tags”: [
“LLC ownership”,
“standing”,
“membership”
]
},
{
“question”: “If I win my hearing against the HOA, will I get my filing fee back?”,
“short_answer”: “Yes, the ALJ can order the HOA to reimburse the filing fee.”,
“detailed_answer”: “The decision ordered the Respondent (the HOA) to reimburse the Petitioner’s filing fee pursuant to Arizona statutes.”,
“alj_quote”: “IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall reimburse Petitioner’s filing fee as required by ARIZ. REV. STAT. § 32-2199.01.”,
“legal_basis”: “A.R.S. § 32-2199.02(A)”,
“topic_tags”: [
“fees”,
“reimbursement”,
“costs”
]
},
{
“question”: “Can the Board delay my hearing to give me time to fix a violation instead of hearing my appeal?”,
“short_answer”: “No, if you requested a hearing, the Board should address it rather than delaying it indefinitely.”,
“detailed_answer”: “The Board delayed the hearing to avoid issuing a final denial, hoping the homeowner would fix the issue. The ALJ ruled that while well-intentioned (“noble gesture”), this delay violated the homeowner’s right to be heard when the matter was not addressed at the monthly meetings.”,
“alj_quote”: “Therefore, although the Board was most generous in delaying the “hearing” to avoid a final decision, the matter should have been addressed in May and June at the monthly meetings and it was not.”,
“legal_basis”: “A.R.S. § 33-1803(B)”,
“topic_tags”: [
“hearings”,
“delays”,
“board conduct”
]
},
{
“question”: “Can the ALJ impose civil penalties on the HOA for their actions?”,
“short_answer”: “It is possible but was denied in this specific case.”,
“detailed_answer”: “The homeowners requested civil penalties against the HOA. The ALJ explicitly denied this request in the final order.”,
“alj_quote”: “IT IS FURTHER ORDERED denying Petitioners’ request for the imposition of a civil penalty…”,
“legal_basis”: “Administrative Discretion”,
“topic_tags”: [
“civil penalties”,
“sanctions”
]
}
]
}

{
“case”: {
“docket_no”: “24F-H036-REL”,
“case_title”: “Aaron Solen & Anh Jung vs Power Ranch Community Association”,
“decision_date”: “2024-07-05”,
“alj_name”: “Adam D. Stone”,
“tribunal”: “OAH”,
“agency”: “ADRE”
},
“questions”: [
{
“question”: “Does the HOA have to provide a hearing before imposing fines?”,
“short_answer”: “Yes, state law requires notice and an opportunity to be heard before monetary penalties are imposed.”,
“detailed_answer”: “The decision cites Arizona Revised Statutes, which mandate that a board of directors may only impose reasonable monetary penalties after providing the member with notice and an opportunity to be heard regarding the violation.”,
“alj_quote”: “After notice and an opportunity to be heard, the board of directors may impose reasonable monetary penalties on members for violations of the declaration, bylaws and rules of the association.”,
“legal_basis”: “A.R.S. § 33-1803(B)”,
“topic_tags”: [
“fines”,
“hearings”,
“due process”
]
},
{
“question”: “Can the Administrative Law Judge order the HOA to remove fines from my account?”,
“short_answer”: “No, the tribunal stated it lacks the statutory authority to erase fines.”,
“detailed_answer”: “Even if the homeowner prevails on the procedural issue (like lack of a hearing), the ALJ in this case ruled that they do not have the power to order the fines be removed or erased.”,
“alj_quote”: “However, the tribunal has no statutory authority to erase the fines imposed nor force the Association to rewrite its CC&R’s”,
“legal_basis”: “Administrative Authority”,
“topic_tags”: [
“fines”,
“remedies”,
“jurisdiction”
]
},
{
“question”: “Can the ALJ force the HOA to approve my architectural modification (e.g., planters)?”,
“short_answer”: “No, the tribunal cannot force the HOA to accept improvements that haven’t gone through the proper design review process.”,
“detailed_answer”: “The ALJ denied the request to force approval of the unapproved planters, noting that the homeowners must still go through the association’s Design Review Committee (DRC) processes.”,
“alj_quote”: “nor can it force the Association to accept the planters as is without Petitioners going through the property DRC processes.”,
“legal_basis”: “Administrative Authority”,
“topic_tags”: [
“architectural review”,
“landscaping”,
“remedies”
]
},
{
“question”: “Is an invitation to an ‘Executive Session’ sufficient to satisfy the requirement for a hearing?”,
“short_answer”: “Not necessarily, especially if the terminology is confusing and leads homeowners to believe they cannot attend.”,
“detailed_answer”: “In this case, the ALJ found that inviting homeowners to an Executive Session—which is generally understood to be closed to the public—was confusing. Because the homeowners believed they couldn’t attend, the session did not count as a valid opportunity to be heard.”,
“alj_quote”: “Thus, the tribunal finds that the June 2023 Executive Session was not a “hearing” for purposes of the CC&R’s, and it was not an opportunity to be heard based upon the confusion the Executive Session terminology caused.”,
“legal_basis”: “A.R.S. § 33-1803(B)”,
“topic_tags”: [
“hearings”,
“executive session”,
“meetings”
]
},
{
“question”: “If I own my home through an LLC, can I still file a petition against the HOA?”,
“short_answer”: “Yes, provided you are the member residing at the property and the HOA has treated you as the owner.”,
“detailed_answer”: “The HOA argued the petition was deficient because the title was held by an LLC. The ALJ rejected this, finding the residents were the proper parties because they were members of the association and the HOA sent mail to them individually.”,
“alj_quote”: “At the outset, the tribunal finds that Petitioners are the proper parties to the action. They are the members of the Association, and all mail went directly to Petitioners individually, and not as a member/manager of the LLC.”,
“legal_basis”: “Standing”,
“topic_tags”: [
“LLC ownership”,
“standing”,
“membership”
]
},
{
“question”: “If I win my hearing against the HOA, will I get my filing fee back?”,
“short_answer”: “Yes, the ALJ can order the HOA to reimburse the filing fee.”,
“detailed_answer”: “The decision ordered the Respondent (the HOA) to reimburse the Petitioner’s filing fee pursuant to Arizona statutes.”,
“alj_quote”: “IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall reimburse Petitioner’s filing fee as required by ARIZ. REV. STAT. § 32-2199.01.”,
“legal_basis”: “A.R.S. § 32-2199.02(A)”,
“topic_tags”: [
“fees”,
“reimbursement”,
“costs”
]
},
{
“question”: “Can the Board delay my hearing to give me time to fix a violation instead of hearing my appeal?”,
“short_answer”: “No, if you requested a hearing, the Board should address it rather than delaying it indefinitely.”,
“detailed_answer”: “The Board delayed the hearing to avoid issuing a final denial, hoping the homeowner would fix the issue. The ALJ ruled that while well-intentioned (“noble gesture”), this delay violated the homeowner’s right to be heard when the matter was not addressed at the monthly meetings.”,
“alj_quote”: “Therefore, although the Board was most generous in delaying the “hearing” to avoid a final decision, the matter should have been addressed in May and June at the monthly meetings and it was not.”,
“legal_basis”: “A.R.S. § 33-1803(B)”,
“topic_tags”: [
“hearings”,
“delays”,
“board conduct”
]
},
{
“question”: “Can the ALJ impose civil penalties on the HOA for their actions?”,
“short_answer”: “It is possible but was denied in this specific case.”,
“detailed_answer”: “The homeowners requested civil penalties against the HOA. The ALJ explicitly denied this request in the final order.”,
“alj_quote”: “IT IS FURTHER ORDERED denying Petitioners’ request for the imposition of a civil penalty…”,
“legal_basis”: “Administrative Discretion”,
“topic_tags”: [
“civil penalties”,
“sanctions”
]
}
]
}

Case Participants

Petitioner Side

  • Aaron Solen (petitioner)
    ACRE Holdings, LLC
  • Anh Jung (petitioner)
    ACRE Holdings, LLC
    Also known as Ann Young

Respondent Side

  • Charles H. Oldham (HOA attorney)
    CHDB Law LLP
  • Jennifer Partridge (property manager/witness)
    CCMC
    Also known as Jennifer Campbell; Executive Director for Power Ranch
  • Nick Ferre (property manager)
    CCMC
    Jennifer Partridge's supervisor
  • Allison Sanchez (property manager)
    CCMC
  • Chris Ecknar (board member)
    Power Ranch Community Association
    Listed attendee in contested board minutes exhibit
  • Josh Bolen (HOA attorney)
    CHDB Law LLP
  • Marcus R. Martinez (HOA attorney)
    Carpenter Hazlewood
    Listed in early transmission list with Respondent's counsel
  • Curtis Mark (HOA attorney)
    Power Ranch Community Association
    Association attorney

Neutral Parties

  • Adam D. Stone (ALJ)
    OAH
  • Susan Nicolson (commissioner)
    ADRE

Other Participants

  • Sherikillo (witness)
    Neighbor
    Confirmed petitioner's topic was raised at May 2023 board meeting

Kenneth M. Halal v. Eagle Crest Ranch Homeowners Association

Posted on by

Case Summary

Case ID 24F-H045-REL
Agency ADRE
Tribunal OAH
Decision Date 2024-06-26
Administrative Law Judge Sondra J. Vanella
Outcome The Petitioner's request was dismissed. The Administrative Law Judge determined that Petitioner failed to meet the burden of proof, as the restriction of access to the Townsquare forum was a unilateral decision made by Townsquare, a separate legal entity. The cited statutes and Bylaws regarding due process for violations of Project Documents were found inapplicable because Townsquare and its Terms of Use are not governed by the HOA’s Project Documents.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Kenneth M. Halal Counsel —
Respondent Eagle Crest Ranch Homeowners Association Counsel Alexandra M. Kurtyka

Alleged Violations

A.R.S. §§ 33-1803, 33-1804; Bylaws Article 2.3, 5.2

Outcome Summary

The Petitioner's request was dismissed. The Administrative Law Judge determined that Petitioner failed to meet the burden of proof, as the restriction of access to the Townsquare forum was a unilateral decision made by Townsquare, a separate legal entity. The cited statutes and Bylaws regarding due process for violations of Project Documents were found inapplicable because Townsquare and its Terms of Use are not governed by the HOA’s Project Documents.

Why this result: Petitioner failed to meet the burden of proof, and the cited statutes and bylaw provisions were found inapplicable since the Townsquare platform is not owned or managed by the HOA, and the restriction was imposed solely by Townsquare based on its Terms of Use, which are not HOA Project Documents.

Key Issues & Findings

Due process violation regarding removal from HOA website forum (Townsquare Forum)

Petitioner alleged violation of A.R.S. §§ 33-1803 and 33-1804, and Bylaws 2.3 and 5.2, arguing the HOA failed to provide due process when restricting his access to the Townsquare online forum. The ALJ found the cited provisions inapplicable as the restriction was imposed solely by Townsquare, a third-party entity whose Terms of Use are not Project Documents.

Orders: Petition dismissed because Petitioner failed to prove by a preponderance of the evidence that Respondent violated the cited statutes or Bylaws.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1803
  • A.R.S. § 33-1804
  • Bylaws Article 2.3
  • Bylaws Section 5.2

Analytics Highlights

Topics: HOA Dispute, Due Process, Online Forum, Townsquare, Third-Party Vendor, Project Documents
Additional Citations:

  • A.R.S. § 33-1803
  • A.R.S. § 33-1804
  • A.R.S. § 32-2199
  • Bylaws Article 2.3
  • Bylaws Section 5.2
  • CC&Rs Article 1 Section 1.36
  • Townsquare Terms of Use

Video Overview

Audio Overview

Decision Documents

24F-H045-REL Decision – 1183806.pdf

Uploaded 2026-04-24T12:24:18 (61.3 KB)

24F-H045-REL Decision – 1186944.pdf

Uploaded 2026-04-24T12:24:21 (45.9 KB)

24F-H045-REL Decision – 1193702.pdf

Uploaded 2026-04-24T12:24:24 (171.0 KB)

24F-H045-REL Decision – 1183806.pdf

Uploaded 2026-01-23T18:08:33 (61.3 KB)

24F-H045-REL Decision – 1186944.pdf

Uploaded 2026-01-23T18:08:40 (45.9 KB)

24F-H045-REL Decision – 1193702.pdf

Uploaded 2026-01-23T18:08:55 (171.0 KB)

This summary details the proceedings, arguments, and final decision in the matter of *Kenneth M. Halal v. Eagle Crest Ranch Homeowners Association (HOA)* (No. 24F-H045-REL) before the Office of Administrative Hearings.

Key Facts and Main Issue

The Petitioner, Kenneth M. Halal, filed a dispute petition alleging that the Respondent HOA failed to provide due process when he was removed from the Townsquare Forum (the HOA’s online website forum). The sole issue addressed was whether the Respondent violated Petitioner’s due process rights under A.R.S. §§ 33-1803 and 33-1804 and the HOA’s Bylaws Article 2.3 and 5.2.

Hearing Proceedings and Key Arguments

The Administrative Law Judge (ALJ) conducted a limited-scope hearing on June 10, 2024. Petitioner Halal represented himself.

Petitioner's Argument: Halal argued that the HOA had previously set a precedent by moderating and controlling the Townsquare Forum, thereby assuming responsibility and requiring it to follow its own project documents, including due process procedures (such as those related to fines and violations under A.R.S. § 33-1803 and Bylaw 5.2), before sanctioning a member.

Respondent's Argument: The HOA argued that the Townsquare platform is a separate legal entity, not owned, operated, or managed by the HOA. Donald Morris, a witness for the HOA, testified that only Townsquare, the platform owner, possesses the authority to restrict user access, not the HOA or its community manager, Associa Arizona. The restriction occurred because Petitioner's postings violated Townsquare's independent Terms of Use (T.O.U.) with content that was defamatory, used profanity, and contained derogatory language. Furthermore, the T.O.U. is not a "Project Document" as defined in the governing CC&Rs, rendering the cited due process provisions (Bylaws 2.3 and 5.2) inapplicable. The Board’s discussion of the matter occurred in executive session because it related to personal information, which is permissible under A.R.S. § 33-1804.

Outcome and Legal Points

The ALJ issued a decision finding that the Petitioner failed to meet the burden of proof by a preponderance of the evidence.

The ALJ made the following critical findings:

  1. Ownership and Control: Townsquare is a separate and distinct legal entity from the HOA, and the HOA has no control over Townsquare, its T.O.U., or its decisions.
  2. Restriction Decision: Townsquare made the unilateral decision to restrict Petitioner’s use of the forum based on its sole determination that Petitioner violated its T.O.U..
  3. Inapplicable Provisions: Townsquare’s T.O.U. is not a Project Document. Bylaws Article 2.3 (governing membership meeting notice) and Article 5.2 (governing violations of Project Documents and levying fines) were found inapplicable because the HOA had not levied a fine against Petitioner nor alleged a violation of HOA Project Documents.

The Petitioner’s Petition was dismissed.

Questions

Question

Can my HOA be held responsible if a third-party vendor (like a website or app) bans me from their platform?

Short Answer

No, not if the vendor is a separate legal entity that makes its own decisions regarding its Terms of Use.

Detailed Answer

The ALJ ruled that if a platform is a separate legal entity and the HOA has no control over its Terms of Use or decisions, the HOA is not responsible for the vendor's unilateral decision to restrict a user.

Alj Quote

Townsquare is a separate and distinct legal entity from Respondent and Respondent has no control over Townsquare, its Terms of Use, or its decisions.

Legal Basis

Findings of Fact / Conclusions of Law

Topic Tags

  • HOA obligations
  • third-party vendors
  • liability

Question

Are the 'Terms of Use' for a community website considered official HOA 'Project Documents'?

Short Answer

No, third-party Terms of Use are not considered Project Documents.

Detailed Answer

The decision clarified that terms set by a third-party vendor do not fall under the legal definition of Project Documents (like CC&Rs or Bylaws), meaning a violation of them is not a violation of HOA rules.

Alj Quote

Townsquare’s Terms of Use is not a Project Document as that term is defined in the CC&Rs Article 1, Section 1.36.

Legal Basis

Findings of Fact #18

Topic Tags

  • governing documents
  • definitions
  • online platforms

Question

Does the HOA have to provide notice and a hearing before I am restricted from an online forum?

Short Answer

Not if the restriction is by a third party and no fine is levied by the HOA.

Detailed Answer

The due process requirements (notice and hearing) found in HOA bylaws typically apply when the Board alleges a violation of Project Documents or levies a fine. They do not apply when a third party restricts access based on their own rules.

Alj Quote

The Administrative Law Judge finds that this section is inapplicable to this matter as the Board has not levied a fine against Petitioner, nor has the Board alleged a violation of the Project Documents by Petitioner.

Legal Basis

Findings of Fact #18

Topic Tags

  • due process
  • hearings
  • fines

Question

What specifically counts as a 'Project Document' in an Arizona HOA?

Short Answer

The Declaration, Articles, Bylaws, Association Rules, and Architectural Committee Rules.

Detailed Answer

The decision cites the specific definition from the CC&Rs, limiting Project Documents to the formal governing instruments of the association.

Alj Quote

Project Document means this Replacement Declaration, the Articles, the Bylaws, the Association Rules and the Architectural Committee Rules.

Legal Basis

Findings of Fact #4

Topic Tags

  • definitions
  • governing documents

Question

Does the HOA Board need to vote in an open meeting to ban a resident from a third-party app?

Short Answer

No, if the decision is made unilaterally by the app provider.

Detailed Answer

If the third-party entity makes the sole determination to restrict a user based on a violation of their Terms of Use, the HOA Board is not taking an action that requires a vote or meeting.

Alj Quote

In this case, Townsquare, a separate legal entity not affiliated with Respondent, made the unilateral decision to restrict Petitioner’s use of the platform based upon its sole decision that Petitioner violated its Terms of Use.

Legal Basis

Conclusions of Law #6

Topic Tags

  • open meetings
  • board voting
  • procedural requirements

Question

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

Short Answer

Preponderance of the evidence.

Detailed Answer

The homeowner (Petitioner) must prove that their claims are more probably true than not. This is the standard evidentiary weight required in these administrative hearings.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent committed the alleged violation by a preponderance of the evidence.

Legal Basis

Conclusions of Law #2

Topic Tags

  • legal standards
  • burden of proof

Question

Does a platform's 'Terms of Use' override the lack of HOA policy on social media?

Short Answer

Yes, the platform's rules apply independently of HOA documents.

Detailed Answer

Even if the HOA doesn't have a specific policy for the platform, the platform's own Terms of Use govern user behavior, and the platform is not governed by the HOA's documents.

Alj Quote

Townsquare is not governed by Respondent’s community documents and its Terms of Use are not Project Documents.

Legal Basis

Conclusions of Law #6

Topic Tags

  • social media
  • rules enforcement
  • jurisdiction

Case

Docket No
24F-H045-REL
Case Title
Kenneth M. Halal v. Eagle Crest Ranch Homeowners Association
Decision Date
2024-06-26
Alj Name
Sondra J. Vanella
Tribunal
OAH
Agency
ADRE

Questions

Question

Can my HOA be held responsible if a third-party vendor (like a website or app) bans me from their platform?

Short Answer

No, not if the vendor is a separate legal entity that makes its own decisions regarding its Terms of Use.

Detailed Answer

The ALJ ruled that if a platform is a separate legal entity and the HOA has no control over its Terms of Use or decisions, the HOA is not responsible for the vendor's unilateral decision to restrict a user.

Alj Quote

Townsquare is a separate and distinct legal entity from Respondent and Respondent has no control over Townsquare, its Terms of Use, or its decisions.

Legal Basis

Findings of Fact / Conclusions of Law

Topic Tags

  • HOA obligations
  • third-party vendors
  • liability

Question

Are the 'Terms of Use' for a community website considered official HOA 'Project Documents'?

Short Answer

No, third-party Terms of Use are not considered Project Documents.

Detailed Answer

The decision clarified that terms set by a third-party vendor do not fall under the legal definition of Project Documents (like CC&Rs or Bylaws), meaning a violation of them is not a violation of HOA rules.

Alj Quote

Townsquare’s Terms of Use is not a Project Document as that term is defined in the CC&Rs Article 1, Section 1.36.

Legal Basis

Findings of Fact #18

Topic Tags

  • governing documents
  • definitions
  • online platforms

Question

Does the HOA have to provide notice and a hearing before I am restricted from an online forum?

Short Answer

Not if the restriction is by a third party and no fine is levied by the HOA.

Detailed Answer

The due process requirements (notice and hearing) found in HOA bylaws typically apply when the Board alleges a violation of Project Documents or levies a fine. They do not apply when a third party restricts access based on their own rules.

Alj Quote

The Administrative Law Judge finds that this section is inapplicable to this matter as the Board has not levied a fine against Petitioner, nor has the Board alleged a violation of the Project Documents by Petitioner.

Legal Basis

Findings of Fact #18

Topic Tags

  • due process
  • hearings
  • fines

Question

What specifically counts as a 'Project Document' in an Arizona HOA?

Short Answer

The Declaration, Articles, Bylaws, Association Rules, and Architectural Committee Rules.

Detailed Answer

The decision cites the specific definition from the CC&Rs, limiting Project Documents to the formal governing instruments of the association.

Alj Quote

Project Document means this Replacement Declaration, the Articles, the Bylaws, the Association Rules and the Architectural Committee Rules.

Legal Basis

Findings of Fact #4

Topic Tags

  • definitions
  • governing documents

Question

Does the HOA Board need to vote in an open meeting to ban a resident from a third-party app?

Short Answer

No, if the decision is made unilaterally by the app provider.

Detailed Answer

If the third-party entity makes the sole determination to restrict a user based on a violation of their Terms of Use, the HOA Board is not taking an action that requires a vote or meeting.

Alj Quote

In this case, Townsquare, a separate legal entity not affiliated with Respondent, made the unilateral decision to restrict Petitioner’s use of the platform based upon its sole decision that Petitioner violated its Terms of Use.

Legal Basis

Conclusions of Law #6

Topic Tags

  • open meetings
  • board voting
  • procedural requirements

Question

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

Short Answer

Preponderance of the evidence.

Detailed Answer

The homeowner (Petitioner) must prove that their claims are more probably true than not. This is the standard evidentiary weight required in these administrative hearings.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent committed the alleged violation by a preponderance of the evidence.

Legal Basis

Conclusions of Law #2

Topic Tags

  • legal standards
  • burden of proof

Question

Does a platform's 'Terms of Use' override the lack of HOA policy on social media?

Short Answer

Yes, the platform's rules apply independently of HOA documents.

Detailed Answer

Even if the HOA doesn't have a specific policy for the platform, the platform's own Terms of Use govern user behavior, and the platform is not governed by the HOA's documents.

Alj Quote

Townsquare is not governed by Respondent’s community documents and its Terms of Use are not Project Documents.

Legal Basis

Conclusions of Law #6

Topic Tags

  • social media
  • rules enforcement
  • jurisdiction

Case

Docket No
24F-H045-REL
Case Title
Kenneth M. Halal v. Eagle Crest Ranch Homeowners Association
Decision Date
2024-06-26
Alj Name
Sondra J. Vanella
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Kenneth M. Halal (petitioner)
  • Margot Castro (witness)
  • Patricia Schell (witness)
    Also referred to as Patricia Shell

Respondent Side

  • Alexandra M. Kurtyka (HOA attorney)
    CHDB Law LLP
  • Mark K. Sahl (HOA attorney)
    CHDB Law LLP
  • Donald A. Morris (board member)
    Eagle Crest Ranch Homeowners Association
    Testified as witness for Respondent; former President of the Board
  • Claudia Oberthier (witness)
    Spelled as 'O B E R T H I E R' during appearance; initially listed as 'Claudia Albert'
  • Salina Watson (property manager)
    Associa Arizona
    Subpoenaed by Petitioner

Neutral Parties

  • Sondra J. Vanella (ALJ)
    OAH
  • Susan Nicolson (Commissioner)
    ADRE
  • vnunez (ADRE Staff)
    ADRE
    Listed on service list
  • djones (ADRE Staff)
    ADRE
    Listed on service list
  • labril (ADRE Staff)
    ADRE
    Listed on service list
  • mneat (ADRE Staff)
    ADRE
    Listed on service list
  • lrecchia (ADRE Staff)
    ADRE
    Listed on service list
  • gosborn (ADRE Staff)
    ADRE
    Listed on service list

Other Participants

  • Bryan Hughes (witness (subpoenaed))
    Subpoena quashed
  • Ken Humphrey (witness (subpoenaed))
    Subpoena quashed
  • Eli Boyd (witness (subpoenaed))
    Subpoena quashed
  • Dane Gilmore (witness (subpoenaed))
    Subpoena quashed

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

Posted on by

Case Summary

Case ID 24F-H034-REL
Agency —
Tribunal —
Decision Date 2024-05-30
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

24F-H034-REL Decision – 1169191.pdf

Uploaded 2026-04-24T12:21:18 (49.5 KB)

24F-H034-REL Decision – 1170407.pdf

Uploaded 2026-04-24T12:21:22 (53.9 KB)

24F-H034-REL Decision – 1179078.pdf

Uploaded 2026-04-24T12:21:27 (72.0 KB)

Briefing Document: R.L. Whitmer v. Hilton Casitas Council of Homeowners

Executive Summary

This briefing document summarizes the administrative proceedings and final resolution of Case No. 24F-H034-REL, heard before the Arizona Office of Administrative Hearings. The dispute involved Petitioner R.L. Whitmer and Respondent Hilton Casitas Council of Homeowners regarding the legal authority of the Association’s Board of Directors to adopt rules and regulations.

The central conflict rested on whether the Hilton Casitas Board exceeded its authority in August 2016 by adopting rules that the Petitioner argued were reserved solely for the "Council" (defined as the collective of all owners). While the Petitioner sought a summary judgment to invalidate these rules and requested civil penalties against the Association, the Respondent moved for dismissal based on the statute of limitations and the principle of document harmonization.

On May 30, 2024, Administrative Law Judge (ALJ) Amy M. Haley denied the Petitioner’s Motion for Summary Judgment and granted the Respondent’s Motion to Dismiss. The decision concluded that the Petitioner’s claims were time-barred, as they were filed beyond the six-year statute of limitations for breach of contract in Arizona.

Detailed Analysis of Key Themes

1. Supremacy of Governing Documents

A primary theme of the dispute was the hierarchy of an HOA’s governing documents. The Petitioner relied on A.R.S. § 33-1213, arguing that the Declaration (CC&Rs) is the supreme document and that any conflicting provisions in the Bylaws are invalid.

  • Petitioner's Argument: Section 23.9 of the Declaration reserves the right to adopt and amend rules specifically to the "Council." Since the Council is defined as the collective of owners, any rules adopted by the Board alone are ultra vires (beyond their legal power).
  • Respondent's Argument: The Respondent contended that the Declaration and Bylaws cover different scopes. They argued that Section 23.9 of the Declaration pertains to the Council's rights and duties, while Article 9, Section 2 of the Bylaws empowers the Board to manage the "operation and use of the property."
2. Legal Harmonization vs. Conflict

The parties disagreed on how to resolve perceived inconsistencies between the Declaration and the Bylaws.

  • The "Harmonization" Rule: The Respondent cited Mountain View Condominiums Homeowners Association, Inc. v. Scott, stating that governing documents must be read together and harmonized whenever possible.
  • The "Conflict" Rule: The Petitioner argued that harmonization is impossible when a specific power is explicitly reserved for one body (the Council) and then claimed by another (the Board) in a subordinate document.
3. Statute of Limitations in HOA Disputes

The case underscores the critical nature of procedural timelines. Under Arizona law (A.R.S. § 12-548(A)), the statute of limitations for a breach of contract—which includes HOA governing documents—is six years.

  • Tolling and Discovery: The Petitioner argued that the timeline should "toll" from the date of discovery, citing a 2023 Court of Appeals decision that clarified the definition of the "Council."
  • The Final Ruling: The ALJ rejected the tolling argument, finding that the alleged breach occurred on August 19, 2016. Therefore, the Petitioner was required to file the claim by August 19, 2022.
4. Civil Penalties and Administrative Oversight

The Petitioner requested civil penalties, alleging the Board was negligent in its duty to update documents that "don't work right now." The Respondent countered that civil penalties require evidence of punitive action or bad faith, which they argued was entirely absent in this matter.

Important Quotes with Context

Quote Source Context
"It's clear that the bylaws are subordinate to the declaration." R.L. Whitmer (Transcript) Asserting that the Board's rule-making authority in the Bylaws cannot override the Council's authority in the Declaration.
"An association's governing documents… must be read together in relation to each other and harmonized if possible." Emily Mann (Transcript) Citing Arizona case law to argue that the Board and Council have distinct, non-conflicting rule-making spheres.
"The council must still abide by the terms of [the] declaration unless and until it's amended." R.L. Whitmer (Transcript) Emphasizing that cumbersome processes (like a full owner vote) do not excuse the Board from following the Declaration.
"Petitioner failed to assert such a claim within the requisite six-year period. As a result, Petitioner is now barred by the statute of limitations." ALJ Amy M. Haley (Decision) The definitive legal reasoning for dismissing the case and denying the Motion for Summary Judgment.

Actionable Insights

For Homeowners and Members
  • Monitor Board Actions Closely: If a homeowner believes a Board has exceeded its authority (an ultra vires act), legal action must be initiated within six years of the action.
  • Understand Document Hierarchy: While Declarations generally prevail over Bylaws, courts and ALJs will attempt to "harmonize" the two if the subject matter can be interpreted as distinct.
  • Discovery Rule Limitations: Do not assume that a later court ruling clarifying document definitions will reset the statute of limitations for past Board actions.
For HOA Boards and Management
  • Document Consistency: To avoid litigation, ensure that rule-making authority is clearly delineated and consistent between the Declaration and the Bylaws.
  • Amending Documents: As noted in the proceedings, if documents are outdated or "cumbersome," Boards should pursue formal amendments (e.g., the 67% owner vote required for the Declaration) rather than relying on potentially conflicting Bylaw provisions.
  • Statute of Limitations as a Defense: Boards facing challenges to long-standing rules should evaluate whether the claims are time-barred under Arizona's six-year contract statute.
Legal Standards Applied
  • Breach of Contract: HOA governing documents (CC&Rs, Bylaws, Rules) are legally treated as contracts.
  • A.R.S. § 12-548(A): Establishes the six-year limit for filing claims related to these contracts.
  • A.R.S. § 33-1213: Dictates the order of precedence for condominium documents (Declaration > Articles > Bylaws > Rules).

Study Guide: R.L. Whitmer vs. Hilton Casitas Council of Homeowners (Case No. 24F-H034-REL)

This study guide provides a comprehensive analysis of the legal dispute between R.L. Whitmer and the Hilton Casitas Council of Homeowners. It explores the central themes of homeowner association (HOA) governance, the hierarchy of governing documents, and the application of statutes of limitation in breach of contract disputes within a residential community.

Case Overview and Core Themes

The matter of R.L. Whitmer vs. Hilton Casitas Council of Homeowners originated from a dispute regarding the authority of the HOA's Board of Directors to adopt rules and regulations. The Petitioner, R.L. Whitmer, challenged rules adopted by the Board in August 2016, arguing they were created without proper contractual authority. The case highlights critical tensions between the rights of the "Council" (defined as all unit owners) and the powers of the "Board of Directors."

Central Legal Arguments
  1. Hierarchy of Documents: Under Arizona law (ARS 33-1213), the Declaration (CC&Rs) prevails if a conflict exists between it and other community documents, such as the Bylaws or Board rules.
  2. Ultra Vires Actions: The Petitioner argued that because Section 23.9 of the Declaration reserves rule-making authority for the "Council" (all 29 owners), the Board's 2016 actions were "ultra vires" (acting beyond its legal power) and therefore invalid.
  3. Harmonization Principle: The Respondent argued that governing documents must be read together and harmonized. They contended that Section 23.9 of the Declaration and Article 9, Section 2 of the Bylaws cover different subject matters—Council duties versus property operation—and thus do not conflict.
  4. Statute of Limitations: A primary defense used by the Respondent was that the six-year statute of limitations for breach of contract (ARS 12-548(A)) had expired, as the rules were adopted in 2016 and the petition was filed after August 2022.

Procedural Timeline

Date Event
August 19, 2016 The Hilton Casitas Board of Directors votes to adopt new Rules and Regulations.
August 30, 2023 A lower court of appeals decision provides a ruling on the definition of "Council," which the Petitioner claims tolls the statute of limitations.
April 22, 2024 Administrative Law Judge Amy M. Haley grants a continuance for the oral argument.
May 13, 2024 Oral arguments are held regarding the Petitioner’s Motion for Summary Judgment.
May 30, 2024 The Administrative Law Judge issues a decision denying the Petitioner’s motion and granting the Respondent’s Motion to Dismiss.

Short-Answer Practice Questions

1. According to the Petitioner, who constitutes the "Council" in the Hilton Casitas community? Answer: According to the Petitioner and the Declaration (Section 1.4), the Council is defined as all the owners of the Casitas.

2. What is the specific Arizona Revised Statute (ARS) governing the hierarchy of condominium documents? Answer: ARS 33-1213, which states that the Declaration prevails if a conflict exists with other condominium documents.

3. Why did the Respondent argue that there was no conflict between the Declaration and the Bylaws? Answer: The Respondent argued the two documents covered different subject matters: Section 23.9 of the Declaration concerns the Council's rights and duties, while Article 9, Section 2 of the Bylaws concerns the operation and use of property.

4. What was the ultimate reason the Administrative Law Judge dismissed the Petitioner's complaint? Answer: The complaint was dismissed because it was barred by the six-year statute of limitations for breach of contract, as the action occurred in 2016 and the claim was not asserted by August 19, 2022.

5. What is the legal requirement for amending the Declaration compared to the Bylaws at Hilton Casitas? Answer: Amending the Declaration requires the approval of 67% of unit owners, whereas the Bylaws can be amended with a simple majority (50% + 1).

6. What was the Petitioner's justification for requesting a civil penalty against the HOA? Answer: The Petitioner argued the Board was negligent in its duty by refusing to update documents despite multiple administrative law decisions against them.

Essay Prompts for Deeper Exploration

  1. The Principle of Harmonization vs. Document Hierarchy: Discuss the tension between the legal requirement to "harmonize" HOA documents and the statutory hierarchy that places the Declaration above the Bylaws. How did both parties in this case use these principles to support their conflicting interpretations of rule-making authority?
  2. The Impact of the Statute of Limitations on Governance: Evaluate the role of the statute of limitations (ARS 12-548(A)) in this case. Should homeowners be barred from challenging "ultra vires" Board actions if they do not act within six years, or does an invalid rule remain invalid regardless of when it is challenged? Support your argument using the details of the Judge's final decision.
  3. Contractual Authority in HOAs: Analyze the Petitioner’s argument that the Declaration is a contract. If the "Council" is defined as all owners, explore the practical and legal implications of requiring a full vote for every rule change versus delegating that power to a Board of Directors through Bylaws.

Glossary of Important Terms

  • Administrative Law Judge (ALJ): A judge who oversteps or presides over hearings and makes decisions for government agencies (in this case, the Office of Administrative Hearings).
  • Bylaws: The rules and regulations adopted by an organization for its internal governance and management.
  • CC&Rs (Covenants, Conditions, and Restrictions): Often referred to as the Declaration, these are the primary governing documents that run with the land and bind all property owners.
  • Council: As defined in the Hilton Casitas Declaration, the collective body of all 29 unit owners.
  • Harmonize: A legal principle requiring that different sections of a contract or governing documents be read together in a way that gives effect to all provisions rather than creating a conflict.
  • Motion for Summary Judgment: A request for the court to rule in favor of one party without a full trial, based on the argument that there are no disputed material facts.
  • Petitioner: The party who initiates a lawsuit or petition (R.L. Whitmer).
  • Respondent: The party against whom a petition is filed (Hilton Casitas Council of Homeowners).
  • Statute of Limitations: A law that sets the maximum time after an event within which legal proceedings may be initiated.
  • Ultra Vires: A Latin term meaning "beyond the powers"; refers to acts performed by a body (like an HOA board) that exceed the scope of their legal authority.

HOA Governance and the Clock: Lessons from Whitmer v. Hilton Casitas

1. Introduction: The Power Struggle in Modern Communities

The governance of common-interest communities rests upon a delicate contractual balance between the authority of the Board of Directors and the rights of individual homeowners. When a Board exercises power not granted by its founding documents, it commits an "ultra vires" act—acting beyond the scope of its legal authority. The case of R.L. Whitmer vs. Hilton Casitas Council of Homeowners (No. 24F-H034-REL) serves as a stark reminder that even potentially meritorious claims of ultra vires governance can be defeated by procedural lapses. At the heart of this dispute is a fundamental question of HOA law: Who holds the ultimate authority to dictate the rules of the community, and how long do owners have to challenge a perceived overreach?

2. The Petitioner’s Case: Declaration vs. Bylaws

The Petitioner, R.L. Whitmer, asserted that the Hilton Casitas Board of Directors acted ultra vires when it adopted new rules and regulations on August 19, 2016. Central to Whitmer’s argument was the definition of the "Council" found in Section 1.4 of the Declaration, which identifies the Council as the collective body of all 29 unit owners.

Whitmer argued a "Negative Implication" theory: because the Declaration explicitly reserved the right to adopt rules to the Council, it effectively excluded the Board from doing so. He relied on the hierarchy of documents established by ARS § 33-1213(C), which mandates that the Declaration prevails over the Bylaws in the event of a conflict.

Governing Provision Scope of Authority
Declaration Section 23.9 Reserves to the Council (all 29 owners) the right to adopt, amend, and cancel rules with respect to all aspects of the Council’s rights, activities, and duties.
Bylaws Article 9 Section 2 Purports to authorize the Board to adopt, amend, or repeal rules governing the details of the operation and use of the property.

Whitmer contended that the Board’s 2016 action was a contractual breach because the power utilized by the Board was a right specifically reserved for the 29-member Council.

3. The Association’s Defense: Harmonization and the Law of the Case

Representing the Respondent, Emily H. Mann argued that the Petitioner’s claim of conflict was legally flawed. The Association’s defense was built on the principle of "harmonization." Citing Mountain View Condominiums vs. Scott, the Respondent noted that governing documents must be "read together in relation to each other and harmonized if possible."

The Association argued the provisions governed distinct realms:

  • Council Rights: Section 23.9 of the Declaration governs the "rights, activities, and duties" of the collective owners.
  • Property Operations: Article 9 of the Bylaws governs the "operation and use of the property."

In this context, "Property" is a specifically defined term in the community’s documents, encompassing all casitas, buildings, and general common elements. By distinguishing between the Council’s high-level rights and the Board’s duty to manage physical improvements and buildings, the Association argued the documents functioned in tandem rather than in conflict.

4. The Deciding Factor: The Statute of Limitations

While the substantive debate regarding document hierarchy was significant, the tribunal’s decision ultimately rested on the statutory period of repose. The cause of action accrued upon the adoption of the rules in 2016, making the Petitioner’s 2024 filing untimely under Arizona’s contract law.

Under ARS § 12-548(A), a breach of contract claim must be initiated within six years of the alleged breach.

Critical Timelines in Whitmer v. Hilton Casitas August 19, 2016: The date the Board adopted the contested rules and regulations, triggering the accrual of the cause of action. August 19, 2022: The statutory deadline for filing a breach of contract claim under the six-year limitation period.

The Petitioner attempted to argue that the timeline should "toll" (pause) until August 30, 2023, based on the "discovery" of a legal theory in a separate court decision (LC 202200424). However, Administrative Law Judge Amy M. Haley adhered to the established date of the act. On May 30, 2024, Judge Haley issued her decision to deny the Petitioner’s Motion for Summary Judgment and grant the Association’s Motion to Dismiss, effectively ending the litigation.

5. Key Takeaways for Homeowners and Boards

The Whitmer decision provides critical insights for HOA governance and dispute resolution in Arizona:

  • The "Six-Year" Rule: Governing documents are contracts. Challenges to the validity of Board-enacted rules must be brought within six years of the act. Waiting for a "discovery" of a new legal interpretation—such as the one found in LC 202200424—will not generally reset the clock.
  • Document Hierarchy and Harmonization: While ARS § 33-1213(C) establishes the supremacy of the Declaration, courts will exert significant effort to "harmonize" seemingly conflicting provisions by narrowing their subject matter (e.g., Council rights vs. property maintenance).
  • Burden of Proof for Civil Penalties: Homeowners seeking civil penalties against a Board must prove by a preponderance of the evidence that the Board acted punitively or in bad faith. The Whitmer case reinforces that a mere disagreement over document interpretation does not automatically meet this high burden.
  • The Finality of Limitations: A statute of limitations serves to provide finality to community operations. Without it, Boards would be unable to rely on long-standing rules, as they would be subject to indefinite legal challenges.
6. Conclusion: The Final Verdict

Judge Amy M. Haley’s final order to deny the Motion for Summary Judgment and dismiss the complaint serves as a definitive ruling on the importance of legal timelines. The decision underscores that procedural adherence is often just as vital as substantive merit in administrative law.

For Association Boards, Whitmer v. Hilton Casitas highlights the necessity of periodically updating governing documents to resolve ambiguities regarding rule-making authority. For homeowners, the case serves as a clear warning: the moment a governance change is enacted, the clock begins to tick. Vigilance is required to ensure that challenges to potential ultra vires actions are filed before the statutory window for relief is permanently closed.

Case Participants

Petitioner Side

  • R.L. Whitmer (Petitioner)
    Representing himself

Respondent Side

  • Emily H. Mann (Attorney)
    Phillips, Maceyko & Battock, PLLC
    Counsel for Hilton Casitas Council of Homeowners

Neutral Parties

  • Amy M. Haley (Administrative Law Judge)
    Office of Administrative Hearings
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate

Jeffrey Connell & Corey Cox v. Casa Del Monte, INC.

Posted on by

Case Summary

Case ID 24F-H024-REL
Agency ADRE
Tribunal OAH
Decision Date 2024-05-20
Administrative Law Judge Jenna Clark
Outcome The Administrative Law Judge denied the Petitioners' petition, concluding they failed to meet their burden of proving a violation of ARIZ. REV. STAT. § 33-1248 regarding the May 19, 2023, Executive Board Meeting.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Jeffrey Connell & Corey Cox Counsel Ross Meyer, Esq.
Respondent Casa Del Monte, Inc. Counsel Solomon Krotzer, Esq.

Alleged Violations

ARIZ. REV. STAT. § 33-1248

Outcome Summary

The Administrative Law Judge denied the Petitioners' petition, concluding they failed to meet their burden of proving a violation of ARIZ. REV. STAT. § 33-1248 regarding the May 19, 2023, Executive Board Meeting.

Why this result: Petitioners failed to prove the statutory violation by a preponderance of the evidence, as the Executive Session was deemed appropriate for receiving legal advice or conducting discussion related thereto, which falls under ARIZ. REV. STAT. § 33-1248(A)(1).

Key Issues & Findings

Alleged violation of open meeting law concerning Executive Board Meeting on May 19, 2023

Petitioners alleged the Association violated ARS § 33-1248 by improperly conducting business (Code of Conduct review and vote on minutes) in a closed Executive Session on May 19, 2023, and by failing to provide 48-hour notice.

Orders: Petitioners' petition was denied.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 33-1248
  • ARIZ. REV. STAT. § 33-1248(A)(1)

Analytics Highlights

Topics: HOA Open Meeting Law, Executive Session, Legal Advice Exception, Code of Conduct, Burden of Proof, Condominium Association Statute, Filing Fee
Additional Citations:

  • ARIZ. REV. STAT. § 33-1248
  • ARIZ. REV. STAT. § 33-1248(A)(1)
  • 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.

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Decision Documents

24F-H024-REL Decision – 1138580.pdf

Uploaded 2026-04-24T12:16:59 (54.3 KB)

24F-H024-REL Decision – 1144884.pdf

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24F-H024-REL Decision – 1146526.pdf

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24F-H024-REL Decision – 1161533.pdf

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24F-H024-REL Decision – 1179547.pdf

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24F-H024-REL Decision – 1138580.pdf

Uploaded 2026-01-23T18:03:38 (54.3 KB)

24F-H024-REL Decision – 1144884.pdf

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24F-H024-REL Decision – 1146526.pdf

Uploaded 2026-01-23T18:03:44 (61.9 KB)

24F-H024-REL Decision – 1161533.pdf

Uploaded 2026-01-23T18:03:47 (48.9 KB)

24F-H024-REL Decision – 1179547.pdf

Uploaded 2026-01-23T18:03:52 (132.9 KB)

This matter, heard before Administrative Law Judge (ALJ) Jenna Clark in the Office of Administrative Hearings (OAH), concerned a dispute between Jeffrey Connell and Corey Cox (Petitioners) and the homeowners' association, Casa Del Monte, Inc. (Respondent).

Key Facts and Issues:

The core issue referred for the evidentiary hearing was whether the Association "repeatedly violated" Arizona Revised Statute (ARIZ. REV. STAT.) § 33-1248 (the condominium open meeting law) at an Executive Board Meeting on May 19, 2023. Petitioners, newly elected board members, alleged two specific violations: 1) failing to provide 48-hour notice of the meeting, and 2) voting on a topic in closed session.

The central factual dispute revolved around the closed session discussion of a proposed Code of Conduct. Petitioners asserted that the discussion was an attempt to coerce them into signing the Code outside of an open meeting and that Counsel for the Association did not offer genuine legal advice regarding the Code of Conduct. Petitioners ran on a platform of transparency and argued the Code, a non-confidential general document, should not have been discussed in a closed session.

Respondent maintained that the Executive Session was proper because its primary purpose was receiving legal advice from the Association’s general counsel, Curtis Ekmark, which is permitted under ARS § 33-1248(A)(1). The counsel provided guidance regarding board conduct, fiduciary responsibilities, and the legal implications of adopting the Code, even though the Code itself was a draft and ultimately rejected by the Board. Testimony confirmed the Code was "strongly encouraged" by counsel.

Legal Points and Outcome:

The ALJ noted that ARS § 33-1248(A)(1) permits closing a meeting portion only if it is limited to the consideration of "legal advice from an attorney for the board or the association". Legal advice is defined as "guidance given by lawyers to their clients".

Crucially, the ALJ narrowed the scope of the decision: because Petitioners only paid for the adjudication of one issue, the Tribunal would not address the tangential issue of whether the Association properly provided 48-hour notice of the meeting.

The Petitioners bore the burden of proving the alleged statutory violation by a preponderance of the evidence. The ALJ concluded that Petitioners failed to sustain their burden of proof.

The ALJ found that the Board had advanced notice of the session to discuss the Code of Conduct and had the opportunity to ask questions, noting that incumbent members had already signed the document. The ALJ held that the quantity or quality of the legal advice given was irrelevant. Since the record reflected that the meeting's closure was not solely for non-legal purposes (like reviewing non-privileged documents from a public website), the motion to enter Executive Session based on receiving legal advice was found permissible.

The Final Order dictated that Petitioners' petition was denied. The hearing concluded with a stipulation to submit written closing briefs by April 29, 2024 (after an extension was granted).

Questions

Question

Who is responsible for proving that the HOA violated the law in a hearing?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

The homeowner must prove by a 'preponderance of the evidence' that the HOA committed the alleged violation. This means showing that the 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 committed the alleged statutory violation.

Legal Basis

Preponderance of the Evidence

Topic Tags

  • burden of proof
  • legal standards
  • procedure

Question

Can the HOA board go into a closed executive session to get legal advice?

Short Answer

Yes, the board may close a meeting to receive legal advice from the association's attorney.

Detailed Answer

State statute explicitly allows portions of meetings to be closed if limited to consideration of legal advice from an attorney for the board or association. Legal advice is defined broadly as guidance given by lawyers to their clients.

Alj Quote

ARIZ. REV. STAT. § 33-1248(A)(1) provides, in pertinent part, that 'Any portion of a meeting may be closed only if that portion of the meeting is limited to consideration of one or more of the following: (1) legal advice from an attorney for the board or the association.'

Legal Basis

A.R.S. § 33-1248(A)(1)

Topic Tags

  • executive session
  • legal advice
  • open meeting laws

Question

If I file a petition for one specific violation, can I bring up other issues during the hearing?

Short Answer

No, the tribunal will generally only address the specific issue paid for in the petition.

Detailed Answer

The ALJ may refuse to address tangential issues or additional complaints raised during the hearing if the petitioner only paid the filing fee for the adjudication of a single specific issue.

Alj Quote

Because Petitioners only paid for the adjudication of one (1) issue, this Tribunal may not address all of the tangential issues Petitioners raised during the presentation of their case or closing arguments, including whether the Association properly provided notice of its May 19, 2023, Board Meeting.

Legal Basis

Procedural Scope

Topic Tags

  • hearing procedure
  • filing fees
  • scope of hearing

Question

Does draft language stating a policy 'has been approved' prove the board secretly voted on it?

Short Answer

No, the tense used in a draft document is considered irrelevant if the document was not actually adopted.

Detailed Answer

Even if a proposed document uses language like 'The Board… has approved,' this is considered a 'red herring' if the evidence shows the document was merely a proposal that board members were advised to sign but ultimately declined.

Alj Quote

The fact that language in the proposal used current language, rather than future tense, is a Red Herring argument and irrelevant.

Legal Basis

N/A

Topic Tags

  • evidence
  • board documents
  • voting

Question

Is it a violation for the board to discuss public materials (like a website printout) in executive session?

Short Answer

Not necessarily, provided that discussing those materials was not the sole purpose of the closed session.

Detailed Answer

While discussing public materials alone is technically not legal advice, it does not invalidate an executive session if the session also included legitimate purposes, such as receiving counsel's advice on other matters.

Alj Quote

While it is accurate that going into Executive Session for the purpose of discussing reading materials printed from a public website regarding revision of Association’s governing documents is not technically legal advice, as it is inherently unprivileged documentation, this record reflects that this was not the sole purpose of closing the Board Meeting from the public.

Legal Basis

A.R.S. § 33-1248

Topic Tags

  • executive session
  • public records
  • violations

Question

What is the standard of proof required to win an HOA dispute case?

Short Answer

Preponderance of the evidence.

Detailed Answer

This standard requires proof that convinces the judge that the claim is 'more probably true than not.' It is based on the convincing force and weight of the evidence, not just the number of witnesses.

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 Proof

Topic Tags

  • legal standards
  • evidence

Question

Can the board discuss a Code of Conduct in executive session?

Short Answer

Yes, if the discussion involves receiving legal advice or guidance from the association's attorney.

Detailed Answer

The ALJ found no violation when the board went into executive session to discuss a Code of Conduct because the board members were receiving information, asking questions, and being advised by counsel regarding the document.

Alj Quote

The crux of the underlying issue is that newly elected Board Members, Petitioners, were provided with information regarding the Code of Conduct, the opportunity to discuss and ask questions privately, and advised to sign by Counsel for the Association; which they declined as was their right.

Legal Basis

A.R.S. § 33-1248(A)(1)

Topic Tags

  • code of conduct
  • executive session
  • board meetings

Case

Docket No
24F-H024-REL
Case Title
Jeffrey Connell & Corey Cox v. Casa Del Monte, Inc.
Decision Date
2024-05-20
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Questions

Question

Who is responsible for proving that the HOA violated the law in a hearing?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

The homeowner must prove by a 'preponderance of the evidence' that the HOA committed the alleged violation. This means showing that the 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 committed the alleged statutory violation.

Legal Basis

Preponderance of the Evidence

Topic Tags

  • burden of proof
  • legal standards
  • procedure

Question

Can the HOA board go into a closed executive session to get legal advice?

Short Answer

Yes, the board may close a meeting to receive legal advice from the association's attorney.

Detailed Answer

State statute explicitly allows portions of meetings to be closed if limited to consideration of legal advice from an attorney for the board or association. Legal advice is defined broadly as guidance given by lawyers to their clients.

Alj Quote

ARIZ. REV. STAT. § 33-1248(A)(1) provides, in pertinent part, that 'Any portion of a meeting may be closed only if that portion of the meeting is limited to consideration of one or more of the following: (1) legal advice from an attorney for the board or the association.'

Legal Basis

A.R.S. § 33-1248(A)(1)

Topic Tags

  • executive session
  • legal advice
  • open meeting laws

Question

If I file a petition for one specific violation, can I bring up other issues during the hearing?

Short Answer

No, the tribunal will generally only address the specific issue paid for in the petition.

Detailed Answer

The ALJ may refuse to address tangential issues or additional complaints raised during the hearing if the petitioner only paid the filing fee for the adjudication of a single specific issue.

Alj Quote

Because Petitioners only paid for the adjudication of one (1) issue, this Tribunal may not address all of the tangential issues Petitioners raised during the presentation of their case or closing arguments, including whether the Association properly provided notice of its May 19, 2023, Board Meeting.

Legal Basis

Procedural Scope

Topic Tags

  • hearing procedure
  • filing fees
  • scope of hearing

Question

Does draft language stating a policy 'has been approved' prove the board secretly voted on it?

Short Answer

No, the tense used in a draft document is considered irrelevant if the document was not actually adopted.

Detailed Answer

Even if a proposed document uses language like 'The Board… has approved,' this is considered a 'red herring' if the evidence shows the document was merely a proposal that board members were advised to sign but ultimately declined.

Alj Quote

The fact that language in the proposal used current language, rather than future tense, is a Red Herring argument and irrelevant.

Legal Basis

N/A

Topic Tags

  • evidence
  • board documents
  • voting

Question

Is it a violation for the board to discuss public materials (like a website printout) in executive session?

Short Answer

Not necessarily, provided that discussing those materials was not the sole purpose of the closed session.

Detailed Answer

While discussing public materials alone is technically not legal advice, it does not invalidate an executive session if the session also included legitimate purposes, such as receiving counsel's advice on other matters.

Alj Quote

While it is accurate that going into Executive Session for the purpose of discussing reading materials printed from a public website regarding revision of Association’s governing documents is not technically legal advice, as it is inherently unprivileged documentation, this record reflects that this was not the sole purpose of closing the Board Meeting from the public.

Legal Basis

A.R.S. § 33-1248

Topic Tags

  • executive session
  • public records
  • violations

Question

What is the standard of proof required to win an HOA dispute case?

Short Answer

Preponderance of the evidence.

Detailed Answer

This standard requires proof that convinces the judge that the claim is 'more probably true than not.' It is based on the convincing force and weight of the evidence, not just the number of witnesses.

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 Proof

Topic Tags

  • legal standards
  • evidence

Question

Can the board discuss a Code of Conduct in executive session?

Short Answer

Yes, if the discussion involves receiving legal advice or guidance from the association's attorney.

Detailed Answer

The ALJ found no violation when the board went into executive session to discuss a Code of Conduct because the board members were receiving information, asking questions, and being advised by counsel regarding the document.

Alj Quote

The crux of the underlying issue is that newly elected Board Members, Petitioners, were provided with information regarding the Code of Conduct, the opportunity to discuss and ask questions privately, and advised to sign by Counsel for the Association; which they declined as was their right.

Legal Basis

A.R.S. § 33-1248(A)(1)

Topic Tags

  • code of conduct
  • executive session
  • board meetings

Case

Docket No
24F-H024-REL
Case Title
Jeffrey Connell & Corey Cox v. Casa Del Monte, Inc.
Decision Date
2024-05-20
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Jeffrey Connell (petitioner)
    Casa Del Monte, Inc. HOA
    Also served as a board member.
  • Corey Cox (petitioner)
    Casa Del Monte, Inc. HOA
    Also served as a board member.
  • Ross Meyer (attorney)
    Meyer & Partners, PLLC; Enara Law PLLC
    Counsel for Petitioners.
  • Jonathan Dessaules (witness)
    The Sol Law Group
    Testified as a subject matter expert/HOA attorney.
  • Matthew Elias (attorney)
    Enara Law PLLC
    Counsel for Petitioners; listed in final decision transmittal.

Respondent Side

  • Lori N. Brown (attorney)
    Gordon Rees Scully Mansukahani, LLP
    Counsel for Respondent.
  • Benjamin Bednarek (attorney)
    Gordon Rees Scully Mansukahani, LLP
    Counsel for Respondent.
  • Curtis Ekmark (HOA attorney)
    Casa Del Monte, Inc. HOA
    Association Corporate Counsel/General Counsel.
  • Solomon Krotzer (attorney)
    Gordon Rees Scully Mansukahani, LLP
    Counsel for Respondent; appeared at hearing (referred to as 'Paulo' once).
  • Mary Lou Ehmann (property manager)
    Pride Management
    Former Community Manager for Casa Del Monte; provided testimony.
  • Jonathan Ryder (board president)
    Casa Del Monte, Inc. HOA
    Also referred to as John Ryder.
  • Jean Yen (board member)
    Casa Del Monte, Inc. HOA
    Also referred to as Jeannie Yen; Treasurer.
  • Bill McMichael (board member)
    Casa Del Monte, Inc. HOA
    Vice President.
  • Jim Burton (board member)
    Casa Del Monte, Inc. HOA
    Secretary.

Neutral Parties

  • Jenna Clark (ALJ)
    OAH
  • Susan Nicolson (Commissioner)
    ADRE
  • AHansen (ADRE staff)
    ADRE
    Recipient of official case transmission.
  • vnunez (ADRE staff)
    ADRE
    Recipient of official case transmission.
  • djones (ADRE staff)
    ADRE
    Recipient of official case transmission.
  • labril (ADRE staff)
    ADRE
    Recipient of official case transmission.
  • kvanfredenberg (ADRE staff)
    ADRE
    Recipient of official case transmission.

Robert P Fink & Brittany L Oleson v. Casas Arroyo Association, Inc.

Posted on by

Case Summary

Case ID 24F-H023-REL
Agency ADRE
Tribunal OAH
Decision Date 2024-05-16
Administrative Law Judge Sondra J. Vanella
Outcome Petitioners failed to establish by a preponderance of the evidence that Respondent violated CC&R Article II Section 1(c). The cited provision was inapplicable because the security gate installation did not involve transferring common area to a public agency or increasing the density of residences (the clause was read conjunctively).
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Robert P. Fink & Brittany L. Oleson Counsel —
Respondent Casas Arroyo Association, Inc. Counsel David Onuschak, Esq.

Alleged Violations

Article II Section 1(c)

Outcome Summary

Petitioners failed to establish by a preponderance of the evidence that Respondent violated CC&R Article II Section 1(c). The cited provision was inapplicable because the security gate installation did not involve transferring common area to a public agency or increasing the density of residences (the clause was read conjunctively).

Why this result: CC&R Article II Section 1(c) was inapplicable because the sentence regarding improvements and density was written in the conjunctive using the word “and,” meaning the improvement must both be placed upon the common area AND increase the density of residences, neither of which applied to the security gate installation.

Key Issues & Findings

Violation of CC&Rs regarding vote threshold for placing improvements on common area.

Petitioners alleged Respondent HOA violated CC&R Article II Section 1(c) by approving the installation of a security gate on the common area using a two-thirds standard of those who voted (resulting in 27 affirmative votes, 69-72% approval rate) when they asserted three quarters (3/4 or 30 votes out of 39 eligible lots) of eligible votes was required for an improvement on the common area.

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

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 32-2199
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 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)
  • A.R.S. § 41-1092.09
  • CC&R Article II Section 1(c)
  • CC&R Article IV Section 2

Related election workflow tool

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Decision Documents

24F-H023-REL Decision – 1133251.pdf

Uploaded 2026-04-24T12:16:36 (51.2 KB)

24F-H023-REL Decision – 1135497.pdf

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24F-H023-REL Decision – 1168799.pdf

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24F-H023-REL Decision – 1178674.pdf

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24F-H023-REL Decision – 1135497.pdf

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24F-H023-REL Decision – 1168799.pdf

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24F-H023-REL Decision – 1178674.pdf

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This summary addresses the hearing proceedings, key arguments, and final decision in the matter of Robert P. Fink and Brittany L. Oleson (Petitioners) versus Casas Arroyo Association, Inc. (Respondent), Docket No. 24F-H023-REL, heard before Administrative Law Judge (ALJ) Sondra J. Vanella of the Arizona Office of Administrative Hearings (OAH). The hearing spanned two dates: January 18, 2024, and April 18, 2024.

Key Facts and Main Issue

The core dispute was whether the Respondent Association violated Article II Section 1(c) of the community's CC&Rs when it installed a security gate at the community entrance. The gate measure passed with 27 "yes" votes and 10 "no" votes, equating to 69% of the 39 eligible votes in the association. The Board, citing security concerns related to criminal activity including human trafficking and drug smuggling, moved forward with the installation, funding the $2,650 gate through general assessment funds without a special assessment.

Petitioner's Argument

Petitioners argued that the security gate constitutes an "improvement placed upon the common area". They asserted that Article II Section 1(c) unequivocally requires approval by "not less than three quarters (3/4) of the eligible votes of the Association" (30 votes out of 39) for such improvements. Petitioners contended the Board improperly utilized an arbitrary standard of two-thirds (2/3) of those who voted, and that the 2/3 standard found in Article IV Section 4 applies only to authorizing a *special assessment* for a capital improvement, not the installation itself.

Respondent's Argument

The Respondent argued that Article II Section 1(c) was inapplicable. They contended that the provision primarily governs the dedication or transfer of common area property to a public utility or agency, and also applies to improvements that "would increase the density of residences on the Properties". Since the gate neither transferred land nor increased density, the 3/4 voting requirement was unnecessary. Respondent further argued that Article IV Section 2 grants the board authority to use general assessment funds to promote the "health, safety, and welfare of the residents," justifying the gate installation for crime deterrence.

Outcome and Legal Rationale

The ALJ determined that Petitioners failed to meet their burden of proof. The ALJ's interpretation centered on the structure and applicability of Article II Section 1(c).

  1. Inapplicable CC&R: The ALJ concluded that Article II Section 1(c) is written in the conjunctive. Therefore, the 3/4 vote is required only when improvements are placed upon the common area and those improvements increase the density of residences.
  2. Gate Does Not Increase Density: Since the security gate did not dedicate or transfer common area property to an outside entity, nor did it increase the density of residences, the ALJ ruled that the 3/4 voting requirement under Article II Section 1(c) was inapplicable to the instant matter.
  3. Authority Found in Article IV: The ALJ noted that Article IV Section 2 grants the Association authority to use general assessment funds to promote the "recreation, health, safety and welfare of the residents".

The ALJ issued a decision dismissing the Petition and ordering no action be required of the Respondent. The record formally closed on May 7, 2024, with the decision issuing on May 16, 2024.

Questions

Question

Who is responsible for proving that an HOA violated the CC&Rs during a dispute hearing?

Short Answer

The homeowner (Petitioner) bears the burden of proof to establish the violation.

Detailed Answer

In an administrative hearing regarding an HOA dispute, the burden falls on the homeowner filing the petition to prove that the HOA committed the alleged violation. The standard of proof required is a 'preponderance of the evidence'.

Alj Quote

Petitioners bear the burden of proof to establish that Respondent committed the alleged violation by a preponderance of the evidence.

Legal Basis

A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1)

Topic Tags

  • burden of proof
  • procedural requirements
  • evidence

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 that the evidence presented has superior weight and is convincing enough to incline a fair mind to one side of the issue over the other. It is not necessarily about having a greater number of witnesses.

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 standards
  • evidence
  • definitions

Question

Can I interpret a specific sentence in the CC&Rs in isolation to prove a violation?

Short Answer

No, CC&R provisions must be interpreted within the context of the entire provision.

Detailed Answer

A homeowner cannot cherry-pick a specific clause or sentence to claim a violation. The Administrative Law Judge will look at the entire section to understand the intended scope and application of the restriction.

Alj Quote

One cannot read Section 1(c) of Article II without taking into consideration the context of the entire provision

Legal Basis

Contract Interpretation Principles

Topic Tags

  • CC&R interpretation
  • legal standards
  • context

Question

How does the word 'and' affect the interpretation of restrictions in the CC&Rs?

Short Answer

The word 'and' is conjunctive, meaning clauses it connects must be read together, not as separate independent choices.

Detailed Answer

If a CC&R provision lists restrictions connected by 'and' (e.g., no improvements AND no actions increasing density), it implies the conditions are linked. The ALJ distinguished this from the disjunctive 'or'. In this case, a restriction on improvements was linked to increasing density/transferring land because they were joined by 'and'.

Alj Quote

This sentence is written in the conjunctive. The word 'and' is used to connect the two clauses. It is not written in the disjunctive, as the word 'or' is not part of the sentence.

Legal Basis

Grammatical Interpretation of Contracts

Topic Tags

  • contract interpretation
  • grammar
  • legal standards

Question

Can the HOA use general assessment funds for safety improvements without a special homeowner vote?

Short Answer

Yes, if the CC&Rs grant authority to use assessments for health, safety, and welfare.

Detailed Answer

If the CC&Rs state that assessments are for promoting the recreation, health, safety, and welfare of residents, the Board may use general funds for improvements like security gates without a specific supermajority vote typically reserved for special assessments or land transfers.

Alj Quote

Article IV Section 2 of the 2006 recorded CC&Rs grant authority to Respondent to use the general assessment monies to 'promote the recreation, health, safety and welfare of the residents.'

Legal Basis

CC&R Article IV Section 2

Topic Tags

  • assessments
  • HOA powers
  • safety improvements

Question

Does a CC&R requirement for a 3/4 vote to 'transfer' common area apply to installing a gate?

Short Answer

No, installing a gate is not considered dedicating or transferring land.

Detailed Answer

A CC&R clause requiring a supermajority vote to dedicate or transfer common area to a public agency does not apply to the installation of a security gate, as the gate does not constitute a transfer of land ownership.

Alj Quote

The installation of a security gate does not dedicate or transfer all or any part of the common area to any public agency, authority or utility. Therefore, a three quarters vote is not required.

Legal Basis

CC&R Article II Section 1(c)

Topic Tags

  • voting requirements
  • common area
  • improvements

Question

Does a restriction on increasing the 'density of residences' apply to security improvements?

Short Answer

No, security improvements like gates do not increase residential density.

Detailed Answer

If a voting requirement in the CC&Rs is triggered by actions that 'increase the density of residences,' it does not apply to infrastructure improvements like security gates that have no effect on the number of homes or density.

Alj Quote

Further, the installation of a security gate is not an improvement that increases the density of the residences. Therefore, a three quarters vote is not required.

Legal Basis

CC&R Article II Section 1(c)

Topic Tags

  • density
  • improvements
  • voting requirements

Case

Docket No
24F-H023-REL
Case Title
Robert P. Fink & Brittany L. Oleson v. Casas Arroyo Association, Inc.
Decision Date
2024-05-16
Alj Name
Sondra J. Vanella
Tribunal
OAH
Agency
ADRE

Questions

Question

Who is responsible for proving that an HOA violated the CC&Rs during a dispute hearing?

Short Answer

The homeowner (Petitioner) bears the burden of proof to establish the violation.

Detailed Answer

In an administrative hearing regarding an HOA dispute, the burden falls on the homeowner filing the petition to prove that the HOA committed the alleged violation. The standard of proof required is a 'preponderance of the evidence'.

Alj Quote

Petitioners bear the burden of proof to establish that Respondent committed the alleged violation by a preponderance of the evidence.

Legal Basis

A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1)

Topic Tags

  • burden of proof
  • procedural requirements
  • evidence

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 that the evidence presented has superior weight and is convincing enough to incline a fair mind to one side of the issue over the other. It is not necessarily about having a greater number of witnesses.

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 standards
  • evidence
  • definitions

Question

Can I interpret a specific sentence in the CC&Rs in isolation to prove a violation?

Short Answer

No, CC&R provisions must be interpreted within the context of the entire provision.

Detailed Answer

A homeowner cannot cherry-pick a specific clause or sentence to claim a violation. The Administrative Law Judge will look at the entire section to understand the intended scope and application of the restriction.

Alj Quote

One cannot read Section 1(c) of Article II without taking into consideration the context of the entire provision

Legal Basis

Contract Interpretation Principles

Topic Tags

  • CC&R interpretation
  • legal standards
  • context

Question

How does the word 'and' affect the interpretation of restrictions in the CC&Rs?

Short Answer

The word 'and' is conjunctive, meaning clauses it connects must be read together, not as separate independent choices.

Detailed Answer

If a CC&R provision lists restrictions connected by 'and' (e.g., no improvements AND no actions increasing density), it implies the conditions are linked. The ALJ distinguished this from the disjunctive 'or'. In this case, a restriction on improvements was linked to increasing density/transferring land because they were joined by 'and'.

Alj Quote

This sentence is written in the conjunctive. The word 'and' is used to connect the two clauses. It is not written in the disjunctive, as the word 'or' is not part of the sentence.

Legal Basis

Grammatical Interpretation of Contracts

Topic Tags

  • contract interpretation
  • grammar
  • legal standards

Question

Can the HOA use general assessment funds for safety improvements without a special homeowner vote?

Short Answer

Yes, if the CC&Rs grant authority to use assessments for health, safety, and welfare.

Detailed Answer

If the CC&Rs state that assessments are for promoting the recreation, health, safety, and welfare of residents, the Board may use general funds for improvements like security gates without a specific supermajority vote typically reserved for special assessments or land transfers.

Alj Quote

Article IV Section 2 of the 2006 recorded CC&Rs grant authority to Respondent to use the general assessment monies to 'promote the recreation, health, safety and welfare of the residents.'

Legal Basis

CC&R Article IV Section 2

Topic Tags

  • assessments
  • HOA powers
  • safety improvements

Question

Does a CC&R requirement for a 3/4 vote to 'transfer' common area apply to installing a gate?

Short Answer

No, installing a gate is not considered dedicating or transferring land.

Detailed Answer

A CC&R clause requiring a supermajority vote to dedicate or transfer common area to a public agency does not apply to the installation of a security gate, as the gate does not constitute a transfer of land ownership.

Alj Quote

The installation of a security gate does not dedicate or transfer all or any part of the common area to any public agency, authority or utility. Therefore, a three quarters vote is not required.

Legal Basis

CC&R Article II Section 1(c)

Topic Tags

  • voting requirements
  • common area
  • improvements

Question

Does a restriction on increasing the 'density of residences' apply to security improvements?

Short Answer

No, security improvements like gates do not increase residential density.

Detailed Answer

If a voting requirement in the CC&Rs is triggered by actions that 'increase the density of residences,' it does not apply to infrastructure improvements like security gates that have no effect on the number of homes or density.

Alj Quote

Further, the installation of a security gate is not an improvement that increases the density of the residences. Therefore, a three quarters vote is not required.

Legal Basis

CC&R Article II Section 1(c)

Topic Tags

  • density
  • improvements
  • voting requirements

Case

Docket No
24F-H023-REL
Case Title
Robert P. Fink & Brittany L. Oleson v. Casas Arroyo Association, Inc.
Decision Date
2024-05-16
Alj Name
Sondra J. Vanella
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Robert P. Fink (petitioner)
    Testified on own behalf
  • Brittany L. Oleson (petitioner)
    Also referred to as Brittany L. Olsen
  • Juanita Havill (witness)
    Former HOA board President, Vice President, and Treasurer

Respondent Side

  • David Onuschak (HOA attorney)
    Jones Skelton & Hochuli
  • Tom Hardesty (board president)
    Casas Arroyo Association, Inc.
  • Thomas Ryan (board member)
    Casas Arroyo Association, Inc.
    Current Treasurer
  • Eric Powell (board member)
    Casas Arroyo Association, Inc.
    Also referred to as Erik Powell; testified for Respondent; former President and Secretary
  • Jim Chepales (board member)
    Casas Arroyo Association, Inc.
  • Paula Miller (witness)
    Casas Arroyo Association, Inc.
    Board Secretary
  • Leslie Kramer (HOA attorney)
    Provided legal opinions to the HOA; Affidavit admitted as Exhibit 32
  • Edwin Gaines (HOA attorney)
    Provided legal opinion to the HOA; Declaration admitted as Exhibit 31
  • Michael Shupe (HOA attorney)
    Consulted by the Board regarding the petition
  • Kevin Wallace (former board member)
    Casas Arroyo Association, Inc.
    Former Vice President

Neutral Parties

  • Sondra J. Vanella (ALJ)
    Office of Administrative Hearings
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate
  • Rosalyn Buchas (Border Patrol Agent)
    US Customs and Border Protection
    Author of 2014 report referenced
  • Ben Cummings (Border Patrol Agent)
    US Customs and Border Protection
    Attended 2014 meeting

Other Participants

  • David Steedman (former board member)
    Casas Arroyo Association, Inc.
    Former Treasurer; present as an observer
  • Emily Masta (community member)
    Mentioned in board email communications
  • Jay Deforest (community member)
    Called 2014 Border Patrol meeting
  • Mark Stroberg (community member)
    Attended 2014 Border Patrol meeting
  • Barbara Stoneberg (community member)
    Attended 2014 Border Patrol meeting
  • Steven Sue Archbald (community member)
    Attended 2014 Border Patrol meeting
  • Laura Brown (community member)
    Long-time resident referenced regarding historic gate removal
  • Archerald Brown (community member)
    Long-time resident referenced regarding historic gate removal

Michael J Morris v. StarPass Master Homeowner Association, INC.

Posted on by

Case Summary

Case ID 24F-H030-REL
Agency ADRE
Tribunal OAH
Decision Date 2024-04-23
Administrative Law Judge Velva Moses-Thompson
Outcome Petitioner was deemed the prevailing party based on the finding that Respondent violated A.R.S. § 33-1804(B) by failing to hold required annual meetings of the Association’s members since 2010. Respondent was ordered to refund the $500 filing fee and comply with A.R.S. § 33-1804. Petitioner failed to establish the remaining alleged violations concerning the Declarant's right to appoint the Board or violations of A.R.S. §§ 33-1810 and 33-1817, or most CC&R sections.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Michael J Morris Counsel —
Respondent StarPass Master Homeowner Association, Inc. Counsel —

Alleged Violations

A.R.S. § 33-1804(B)

Outcome Summary

Petitioner was deemed the prevailing party based on the finding that Respondent violated A.R.S. § 33-1804(B) by failing to hold required annual meetings of the Association’s members since 2010. Respondent was ordered to refund the $500 filing fee and comply with A.R.S. § 33-1804. Petitioner failed to establish the remaining alleged violations concerning the Declarant's right to appoint the Board or violations of A.R.S. §§ 33-1810 and 33-1817, or most CC&R sections.

Why this result: Petitioner failed to establish by a preponderance of the evidence that Respondent violated A.R.S. §§ 33-1810 and 33-1817, or the cited sections of the CC&Rs or Bylaws related to the Declarant's power to appoint the board.

Key Issues & Findings

Declarant control, board appointment without vote or meeting, and failure to hold annual meetings

Petitioner alleged Respondent violated multiple statutes and governing documents by allowing the Declarant to solely appoint the Board of Directors and failing to hold annual meetings. The Administrative Law Judge found that the Respondent violated A.R.S. § 33-1804(B) by failing to notice or hold annual members meetings since 2010. All other alleged violations were not established.

Orders: Respondent ordered to pay Petitioner his filing fee of $500.00 and directed to comply with the requirements of A.R.S. § 33-1804 going forward.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1804
  • A.R.S. § 33-1810
  • A.R.S. § 33-1817
  • Bylaw Article Section 1
  • CC&Rs Article 3 Section 2(b)
  • CC&Rs Article 3 Section 5
  • CC&Rs Article 11 Section 8

Analytics Highlights

Topics: Declarant Control, Annual Meetings, Filing Fee Refund, HOA Board Appointment
Additional Citations:

  • A.R.S. § 33-1804
  • A.R.S. § 33-1810
  • A.R.S. § 33-1817
  • Bylaw Article Section 1
  • CC&Rs Article 3 Section 2(b)
  • CC&Rs Article 3 Section 5
  • CC&Rs Article 11 Section 8

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Decision Documents

24F-H030-REL Decision – 1154358.pdf

Uploaded 2026-04-24T12:18:26 (41.8 KB)

24F-H030-REL Decision – 1156053.pdf

Uploaded 2026-04-24T12:18:29 (7.4 KB)

24F-H030-REL Decision – 1160349.pdf

Uploaded 2026-04-24T12:18:33 (53.8 KB)

24F-H030-REL Decision – 1170315.pdf

Uploaded 2026-04-24T12:18:38 (114.1 KB)

24F-H030-REL Decision – 1154358.pdf

Uploaded 2026-01-23T18:04:32 (41.8 KB)

24F-H030-REL Decision – 1156053.pdf

Uploaded 2026-01-23T18:04:39 (7.4 KB)

24F-H030-REL Decision – 1160349.pdf

Uploaded 2026-01-23T18:04:43 (53.8 KB)

24F-H030-REL Decision – 1170315.pdf

Uploaded 2026-01-23T18:04:47 (114.1 KB)

This summary focuses on the hearing proceedings, key arguments, and final decision of the dispute between Michael J. Morris and the StarPass Master Homeowner Association (HOA).

Key Facts and Parties

The administrative hearing was held before ALJ Velva Moses-Thompson on March 6, 2024, in Phoenix. The Petitioner, Michael J. Morris (a homeowner), alleged ongoing violations against the Master HOA. The Respondent, StarPass Master Homeowners Association, Inc., was represented by F. Christopher Ansley, who is the Declarant, President of the Board of Directors, and statutory agent of the Master HOA, controlling the association since 1992.

Main Issues in Dispute

The petition alleged that the Respondent violated Arizona Revised Statutes (A.R.S. §§ 33-1804, 33-1817) and specific sections of the HOA’s Covenants, Conditions, and Restrictions (CC&Rs). The three core factual issues addressed were:

  1. Whether the Declarant (Mr. Ansley) was the sole person to appoint the Board of Directors without notice, a meeting, or a vote of the members.
  2. The failure to hold annual meetings of the Association’s members.
  3. Whether the actions constituted a breach of duty and violated governing documents, particularly concerning the expiration of the Declarant's voting power.

(The ALJ noted a jurisdictional limitation regarding the allegation concerning A.R.S. § 33-1810 related to audits, as the Petitioner filed a single-issue petition).

Key Arguments

Petitioner's Arguments (Mr. Morris):

Mr. Morris and his witnesses argued that the Declarant maintained total control, asserting complete and sole authority to appoint the board and failing to hold regular annual meetings as required by state law (A.R.S. § 33-1804) and the CC&Rs. A key legal contention involved the Declarant’s superior voting rights (Type B membership), which were set to terminate on December 31, 2010, per the CC&Rs (Article III, Section 2(b)). Petitioner argued that the "Sixth Amendment," which attempted to extend these rights, was recorded in May 2011, five months *after* the rights had already terminated, and the subsequent backdating of the amendment was invalid under Arizona law.

Respondent's Arguments (Mr. Ansley):

Mr. Ansley conceded that he was the sole person to appoint board members. He also admitted that he had stopped holding annual members meetings since 2010, citing repeated failure to reach a quorum among Type A (homeowner) members. Mr. Ansley maintained his authority based on his Type B votes, which provided three votes per planned lot, giving the Declarant well over 75% of the total vote. He asserted that the Sixth Amendment extension was valid because the *act* (such as restructuring assessments) was implemented in January 2007, and the later recordation in 2011 served only as public notice, not the effective date of the change.

Outcome and Final Decision

The Administrative Law Judge (ALJ) issued a decision on April 23, 2024, holding that the Petitioner was the prevailing party.

Most Important Legal Point:

The ALJ found it undisputed that the Respondent failed to notice or hold an annual meeting of the members from 2010 to the current time. This failure established a violation of A.R.S. § 33-1804(B), which mandates that a meeting of the members' association must be held at least once each year.

The ALJ concluded that Petitioner failed to establish violations of the other statutes or the CC&Rs/Bylaws related to the Declarant’s ability to appoint board members or concerning the expiration of Type B rights.

Orders Issued:

  1. Respondent was ordered to pay the Petitioner his $500.00 filing fee.
  2. Respondent was directed to comply with A.R.S. § 33-1804 going forward (i.e., hold annual members meetings).
  3. No Civil Penalty was deemed appropriate.

Questions

Question

Can an HOA stop holding annual meetings if they are unable to get enough members to attend (quorum)?

Short Answer

No. State law requires an annual meeting regardless of past attendance issues.

Detailed Answer

Even if an HOA has failed to reach a quorum for many years, they are still strictly required by Arizona law to notice and hold a meeting of the members at least once each year. Failing to do so is a violation of A.R.S. § 33-1804.

Alj Quote

A.R.S. § 33-1804(B) requires that a meeting of the members' association be held at least once each year.

Legal Basis

A.R.S. § 33-1804(B)

Topic Tags

  • meetings
  • quorum
  • compliance

Question

If I claim the HOA violated the Bylaws, do I have to submit the Bylaws as evidence?

Short Answer

Yes. You must submit the specific governing documents you claim were violated.

Detailed Answer

If a homeowner argues that the HOA violated a specific provision of the Bylaws (such as election procedures), they must enter those Bylaws into evidence. Without the actual document in the record, the judge cannot find a violation.

Alj Quote

Although Petitioner argued in his written closing argument that as of November 18, 2012, elections should have begun by the membership under Article 5 of Respondent’s Bylaws, Petitioner did not submit a copy of Respondent’s Bylaws into evidence, nor was section 5 of the Bylaws submitted with the petition.

Legal Basis

Evidentiary Burden

Topic Tags

  • evidence
  • procedure
  • bylaws

Question

Can the Administrative Law Judge order the HOA to appoint specific homeowners to the Board?

Short Answer

No. The judge's power is limited to ordering compliance with laws and documents.

Detailed Answer

The tribunal does not have the jurisdiction to appoint specific individuals to a 'transition Board' or replace directors. It can only order the HOA to follow the statutes and community documents going forward.

Alj Quote

While Petitioner requested that he and other owners be appointed to a transition Board, the Administrative Law Judge’s jurisdiction in this tribunal is limited to ordering a party to abide by applicable statutes and community documents.

Legal Basis

Jurisdiction

Topic Tags

  • remedies
  • board of directors
  • jurisdiction

Question

What is the standard of proof for a homeowner suing their HOA?

Short Answer

Preponderance of the evidence.

Detailed Answer

The homeowner must prove that their claims are 'more probably true than not.' This is the standard evidentiary burden in administrative hearings.

Alj Quote

Petitioners bear the burden of proof to establish that Respondent violated the Act or Respondent’s CC&Rs by a preponderance of the evidence.

Legal Basis

A.R.S. § 41-1092.07(G)(2)

Topic Tags

  • legal standards
  • burden of proof

Question

Does the HOA automatically get fined if the judge finds they violated state law?

Short Answer

No. Civil penalties are not automatic.

Detailed Answer

A judge may find that a violation occurred (such as failing to hold meetings) but still decide that a civil penalty is not appropriate in that specific matter.

Alj Quote

No Civil Penalty is found to be appropriate in this matter.

Legal Basis

Administrative Discretion

Topic Tags

  • penalties
  • fines
  • enforcement

Question

Can I get my $500 filing fee back if I win the hearing?

Short Answer

Yes. The judge can order the HOA to reimburse the filing fee.

Detailed Answer

If the homeowner is deemed the prevailing party, the judge may order the Respondent (HOA) to pay the Petitioner the amount of the filing fee within a set timeframe.

Alj Quote

IT IS FURTHER ORDERED that Respondent pay Petitioner his filing fee of $500.00, to be paid directly to Petitioner within thirty (30) days of this Order.

Legal Basis

Prevailing Party Costs

Topic Tags

  • fees
  • reimbursement
  • costs

Question

Is it illegal for a developer (Declarant) to appoint the Board without an election?

Short Answer

Not necessarily, unless specific statutes or bylaws prohibit it.

Detailed Answer

Simply alleging that a Declarant is appointing the board without a vote is not enough to prove a violation. The homeowner must prove that specific statutes or the community's CC&Rs/Bylaws expressly prohibit this arrangement at the current time.

Alj Quote

Regarding the remaining alleged violations, the statutes listed in the petition do no bar [the Declarant] from appointing the Board members or operating as the President of the Board.

Legal Basis

CC&Rs / Statutes

Topic Tags

  • declarant control
  • board appointments
  • elections

Case

Docket No
24F-H030-REL
Case Title
Michael J. Morris vs. StarPass Master Homeowner Association, Inc.
Decision Date
2024-04-23
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Questions

Question

Can an HOA stop holding annual meetings if they are unable to get enough members to attend (quorum)?

Short Answer

No. State law requires an annual meeting regardless of past attendance issues.

Detailed Answer

Even if an HOA has failed to reach a quorum for many years, they are still strictly required by Arizona law to notice and hold a meeting of the members at least once each year. Failing to do so is a violation of A.R.S. § 33-1804.

Alj Quote

A.R.S. § 33-1804(B) requires that a meeting of the members' association be held at least once each year.

Legal Basis

A.R.S. § 33-1804(B)

Topic Tags

  • meetings
  • quorum
  • compliance

Question

If I claim the HOA violated the Bylaws, do I have to submit the Bylaws as evidence?

Short Answer

Yes. You must submit the specific governing documents you claim were violated.

Detailed Answer

If a homeowner argues that the HOA violated a specific provision of the Bylaws (such as election procedures), they must enter those Bylaws into evidence. Without the actual document in the record, the judge cannot find a violation.

Alj Quote

Although Petitioner argued in his written closing argument that as of November 18, 2012, elections should have begun by the membership under Article 5 of Respondent’s Bylaws, Petitioner did not submit a copy of Respondent’s Bylaws into evidence, nor was section 5 of the Bylaws submitted with the petition.

Legal Basis

Evidentiary Burden

Topic Tags

  • evidence
  • procedure
  • bylaws

Question

Can the Administrative Law Judge order the HOA to appoint specific homeowners to the Board?

Short Answer

No. The judge's power is limited to ordering compliance with laws and documents.

Detailed Answer

The tribunal does not have the jurisdiction to appoint specific individuals to a 'transition Board' or replace directors. It can only order the HOA to follow the statutes and community documents going forward.

Alj Quote

While Petitioner requested that he and other owners be appointed to a transition Board, the Administrative Law Judge’s jurisdiction in this tribunal is limited to ordering a party to abide by applicable statutes and community documents.

Legal Basis

Jurisdiction

Topic Tags

  • remedies
  • board of directors
  • jurisdiction

Question

What is the standard of proof for a homeowner suing their HOA?

Short Answer

Preponderance of the evidence.

Detailed Answer

The homeowner must prove that their claims are 'more probably true than not.' This is the standard evidentiary burden in administrative hearings.

Alj Quote

Petitioners bear the burden of proof to establish that Respondent violated the Act or Respondent’s CC&Rs by a preponderance of the evidence.

Legal Basis

A.R.S. § 41-1092.07(G)(2)

Topic Tags

  • legal standards
  • burden of proof

Question

Does the HOA automatically get fined if the judge finds they violated state law?

Short Answer

No. Civil penalties are not automatic.

Detailed Answer

A judge may find that a violation occurred (such as failing to hold meetings) but still decide that a civil penalty is not appropriate in that specific matter.

Alj Quote

No Civil Penalty is found to be appropriate in this matter.

Legal Basis

Administrative Discretion

Topic Tags

  • penalties
  • fines
  • enforcement

Question

Can I get my $500 filing fee back if I win the hearing?

Short Answer

Yes. The judge can order the HOA to reimburse the filing fee.

Detailed Answer

If the homeowner is deemed the prevailing party, the judge may order the Respondent (HOA) to pay the Petitioner the amount of the filing fee within a set timeframe.

Alj Quote

IT IS FURTHER ORDERED that Respondent pay Petitioner his filing fee of $500.00, to be paid directly to Petitioner within thirty (30) days of this Order.

Legal Basis

Prevailing Party Costs

Topic Tags

  • fees
  • reimbursement
  • costs

Question

Is it illegal for a developer (Declarant) to appoint the Board without an election?

Short Answer

Not necessarily, unless specific statutes or bylaws prohibit it.

Detailed Answer

Simply alleging that a Declarant is appointing the board without a vote is not enough to prove a violation. The homeowner must prove that specific statutes or the community's CC&Rs/Bylaws expressly prohibit this arrangement at the current time.

Alj Quote

Regarding the remaining alleged violations, the statutes listed in the petition do no bar [the Declarant] from appointing the Board members or operating as the President of the Board.

Legal Basis

CC&Rs / Statutes

Topic Tags

  • declarant control
  • board appointments
  • elections

Case

Docket No
24F-H030-REL
Case Title
Michael J. Morris vs. StarPass Master Homeowner Association, Inc.
Decision Date
2024-04-23
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Michael J. Morris (petitioner)
    StarPass Master Homeowner Association member; Sub-HOA President
  • Bruce Prior (witness)
    StarPass Master Homeowner Association member; past subHOA president
  • Michael Schmidt (witness)
    Wildcat Pass HOA Board member
    Also referred to as Michael Smidt

Respondent Side

  • F. Christopher Ansley (declarant)
    StarPass Master Homeowner Association President/Property Manager; Devcon LLC
    Also referred to as Chris Ansley or mistakenly as Craig Ansley
  • David Makavoy (lawyer)
    Ansley's lawyer concerning amendment recording

Neutral Parties

  • Velva Moses-Thompson (ALJ)
    Office of Administrative Hearings
    Also referred to as Alderman Thompson
  • Brian Larson (CPA)
    Brian Larson CTA
    Provided quarterly financial statements for Master HOA
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate

Other Participants

  • Jimmy Liscos (board member)
    StarPass Master Homeowner Association Board of Directors; focus group member
    Appointed board member who was also part of the focus group/group of seven
  • Jamie Haw (board member)
    StarPass Master Homeowner Association Board of Directors; focus group member
    Appointed board member who resigned
  • Nikki Morton (focus group member)

David Y. Samuels v. The Concorde Condominium Home Owners Association

Posted on by

Case Summary

Case ID 24F-H025-REL
Agency ADRE
Tribunal OAH
Decision Date 2024-04-18
Administrative Law Judge Amy M. Haley
Outcome The petition filed by David Y. Samuels against The Concorde Condominium Home Owners Association was dismissed. The Tribunal found that Samuels lacked standing to bring the action as an individual, and the cited statute, A.R.S. § 33-1803 (Planned Community Act), was improper for this condominium dispute.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner David Y. Samuels Counsel —
Respondent The Concorde Condominium Home Owners Association Counsel Ashley N. Turner

Alleged Violations

A.R.S. § 33-1803

Outcome Summary

The petition filed by David Y. Samuels against The Concorde Condominium Home Owners Association was dismissed. The Tribunal found that Samuels lacked standing to bring the action as an individual, and the cited statute, A.R.S. § 33-1803 (Planned Community Act), was improper for this condominium dispute.

Why this result: Petitioner lacked standing because the property was owned by Daso Properties, LLC, not by David Y. Samuels individually. Additionally, the Petitioner brought the action under the incorrect statute, A.R.S. § 33-1803, which governs planned communities, not condominiums.

Key Issues & Findings

Alleged violation concerning late fees, collection fees, and attorney fees for delinquent assessment payments

Petitioner alleged Respondent violated A.R.S. § 33-1803 by charging unwarranted late fees, collection fees, and attorney fees for delinquent assessments.

Orders: Petitioner's petition is dismissed because Petitioner lacked standing as an individual owner, and the cause of action was brought under the improper statute (Planned Community Act) for a condominium property.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1803
  • A.R.S. § 32-2199.01(A)
  • A.R.S. § 33-1801(A)
  • A.R.S. § 32-2199 et seq.
  • A.R.S. § 41-1092.09

Analytics Highlights

Topics: standing, condominium, planned community act, statutory violation, late fees, collection fees, attorney fees, jurisdiction, dismissal
Additional Citations:

  • A.R.S. § 33-1803
  • A.R.S. § 32-2199.01(A)
  • A.R.S. § 33-1801(A)
  • A.R.S. § 32-2199 et seq.
  • A.R.S. § 41-1092.09
  • A.A.C. R2-19-106(D)

Video Overview

Audio Overview

Decision Documents

24F-H025-REL Decision – 1124651.pdf

Uploaded 2026-04-24T12:17:37 (48.4 KB)

24F-H025-REL Decision – 1133120.pdf

Uploaded 2026-04-24T12:17:41 (39.9 KB)

24F-H025-REL Decision – 1134423.pdf

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24F-H025-REL Decision – 1139633.pdf

Uploaded 2026-04-24T12:17:49 (55.7 KB)

24F-H025-REL Decision – 1139646.pdf

Uploaded 2026-04-24T12:17:53 (7.6 KB)

24F-H025-REL Decision – 1157271.pdf

Uploaded 2026-04-24T12:18:00 (47.1 KB)

24F-H025-REL Decision – 1168680.pdf

Uploaded 2026-04-24T12:18:06 (86.1 KB)

24F-H025-REL Decision – 1124651.pdf

Uploaded 2026-01-23T18:03:59 (48.4 KB)

24F-H025-REL Decision – 1133120.pdf

Uploaded 2026-01-23T18:04:01 (39.9 KB)

24F-H025-REL Decision – 1134423.pdf

Uploaded 2026-01-23T18:04:05 (48.2 KB)

24F-H025-REL Decision – 1139633.pdf

Uploaded 2026-01-23T18:04:08 (55.7 KB)

24F-H025-REL Decision – 1139646.pdf

Uploaded 2026-01-23T18:04:12 (7.6 KB)

24F-H025-REL Decision – 1157271.pdf

Uploaded 2026-01-23T18:04:17 (47.1 KB)

24F-H025-REL Decision – 1168680.pdf

Uploaded 2026-01-23T18:04:22 (86.1 KB)

This summary outlines the proceedings, arguments, and final decision in the matter of *David Y. Samuels vs The Concorde Condominium Home Owners Association*, Case No. 24F-H025-REL, heard before Administrative Law Judge (ALJ) Amy M. Haley of the Office of Administrative Hearings (OAH).

Key Facts and Background

The case concerned a dispute over fees, fines, and assessments related to a condominium unit located in Mesa, Arizona. The property owner is Daso Properties, LLC, and the Petitioner, David Y. Samuels, is the managing member who filed the petition on his own behalf. The Respondent is The Concorde Condominium Home Owners Association (HOA). Samuels filed the petition with the Arizona Department of Real Estate (Department) around November 1, 2023, alleging the HOA violated A.R.S. § 33-1803 by charging late fees, collection fees, and attorney fees without documentation demonstrating they were warranted.

Hearing Proceedings and Key Arguments (April 3, 2024)

The hearing focused heavily on the status of the homeowner ledger and procedural issues.

Petitioner's Argument: Mr. Samuels argued that the HOA’s collection efforts were unethical or illegal. He contended that many of the late fees, collection fees, and attorney fees stemmed from a prior balance of $931.95 that was later forgiven or waived because the HOA or prior management companies could not provide documentation to support the charge. He argued that if the unsupported prior balance was removed, he was current (or even ahead) on assessments until 2024, rendering the substantial collection fees unreasonable. Additionally, fines totaling $1,645 were waved, which Samuels asserted was due to the charges being erroneous, not a "good faith gesture".

Respondent's Argument: The HOA, represented by counsel Ashley Turner, denied any statutory violation and asserted that the association was authorized to collect late fees and collection charges due to a delinquency that existed when the matter was referred for collections. More critically, the HOA raised two procedural arguments:

  1. Improper Statute: The HOA is a condominium association, governed by A.R.S. Title 33, Chapter 9, yet the petition was brought under A.R.S. § 33-1803, which governs planned communities.
  2. Lack of Standing: Mr. Samuels, as an individual, was not the legal "owner" of the unit (Daso Properties, LLC), and therefore lacked standing to bring the petition under A.R.S. § 32-2199.01(A).

Legal Outcome and Final Decision

The ALJ issued a decision on April 18, 2024, finding that the Petitioner failed to prove by a preponderance of the evidence that the Respondent violated A.R.S. § 33-1803.

The petition was dismissed based on two fundamental legal flaws:

  1. Lack of Standing: The Tribunal found that David Y. Samuels, as an individual and not the property owner (Daso Properties, LLC), did not have standing to bring the action under A.R.S. § 32-2199.01(A).
  2. Improper Cause of Action: The Tribunal found that the statute cited, A.R.S. § 33-1803, was improper because the property is a condominium, not a planned community, meaning the Respondent was not subject to that chapter. Consequently, Petitioner stated no claim upon which relief could be granted under the cited statute.

The petition was ordered dismissed.

Questions

Question

If my property is owned by an LLC, can I file a petition against the HOA in my own name as the managing member?

Short Answer

No. The petition must be filed by the legal owner (the LLC), not an individual member, or it will be dismissed for lack of standing.

Detailed Answer

The ALJ determined that an individual managing member of an LLC does not have standing to bring an action on behalf of the property owned by the LLC. The dispute statute specifically applies to 'owners' and 'associations'.

Alj Quote

The Tribunal finds that, after taking testimony, Petitioner, as an individual, did not have standing to bring this action… The proper party to bring the action would have been Daso Properties, LLC.

Legal Basis

A.R.S. § 32-2199.01(A)

Topic Tags

  • standing
  • LLC ownership
  • procedural requirements

Question

Can I use laws meant for Planned Communities (A.R.S. § 33-1803) to dispute charges if I live in a Condominium?

Short Answer

No. Condominiums are governed by a different set of statutes (Chapter 9) than Planned Communities (Chapter 16).

Detailed Answer

The ALJ dismissed the claim because the homeowner cited the Planned Community Act (A.R.S. § 33-1803) while the property was legally a condominium. Condominiums are not subject to the Planned Community Act.

Alj Quote

However, the Property is a condominium; therefore, Respondent is not subject to the Planned Community Act. … Chapter 9 governs condominiums.

Legal Basis

A.R.S. § 33-1801(A)

Topic Tags

  • jurisdiction
  • condominium vs planned community
  • statutory application

Question

Does the Department of Real Estate have jurisdiction to hear a dispute if I am not the legal owner of the property?

Short Answer

No. The Department's jurisdiction is limited to disputes specifically between an owner and an association.

Detailed Answer

The decision clarifies that the administrative hearing process is strictly for disputes involving an 'owner' or 'association'. If the petitioner is not the legal owner (even if they manage the LLC that owns it), the Department lacks jurisdiction.

Alj Quote

The department does not have jurisdiction to hear a dispute that does not involve an owner or an association.

Legal Basis

A.R.S. § 32-2199.01(A)

Topic Tags

  • jurisdiction
  • standing
  • homeowner rights

Question

Who has the burden of proof when a homeowner claims an HOA violated state laws?

Short Answer

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

Detailed Answer

In these administrative hearings, it is the responsibility of the person bringing the complaint to provide sufficient evidence to prove their claims.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated A.R.S. § 33-1803 as alleged in his petition.

Legal Basis

Preponderance of Evidence

Topic Tags

  • burden of proof
  • evidence
  • legal standards

Question

What happens if I base my entire petition on a statute that doesn't apply to my type of property?

Short Answer

The petition will be dismissed because you have stated no claim upon which relief can be granted.

Detailed Answer

Because the petitioner cited the wrong statute (Planned Community Act for a Condominium), the judge ruled that there was no valid legal claim to rule on, resulting in dismissal.

Alj Quote

As such, Petitioner has stated no claim upon which relief can be granted under A.R.S. § 33-1801.

Legal Basis

A.R.S. § 33-1801

Topic Tags

  • dismissal
  • legal procedure
  • condominium act

Case

Docket No
24F-H025-REL
Case Title
David Y. Samuels vs The Concorde Condominium Home Owners Association
Decision Date
2024-04-18
Alj Name
Amy M. Haley
Tribunal
OAH
Agency
ADRE

Questions

Question

If my property is owned by an LLC, can I file a petition against the HOA in my own name as the managing member?

Short Answer

No. The petition must be filed by the legal owner (the LLC), not an individual member, or it will be dismissed for lack of standing.

Detailed Answer

The ALJ determined that an individual managing member of an LLC does not have standing to bring an action on behalf of the property owned by the LLC. The dispute statute specifically applies to 'owners' and 'associations'.

Alj Quote

The Tribunal finds that, after taking testimony, Petitioner, as an individual, did not have standing to bring this action… The proper party to bring the action would have been Daso Properties, LLC.

Legal Basis

A.R.S. § 32-2199.01(A)

Topic Tags

  • standing
  • LLC ownership
  • procedural requirements

Question

Can I use laws meant for Planned Communities (A.R.S. § 33-1803) to dispute charges if I live in a Condominium?

Short Answer

No. Condominiums are governed by a different set of statutes (Chapter 9) than Planned Communities (Chapter 16).

Detailed Answer

The ALJ dismissed the claim because the homeowner cited the Planned Community Act (A.R.S. § 33-1803) while the property was legally a condominium. Condominiums are not subject to the Planned Community Act.

Alj Quote

However, the Property is a condominium; therefore, Respondent is not subject to the Planned Community Act. … Chapter 9 governs condominiums.

Legal Basis

A.R.S. § 33-1801(A)

Topic Tags

  • jurisdiction
  • condominium vs planned community
  • statutory application

Question

Does the Department of Real Estate have jurisdiction to hear a dispute if I am not the legal owner of the property?

Short Answer

No. The Department's jurisdiction is limited to disputes specifically between an owner and an association.

Detailed Answer

The decision clarifies that the administrative hearing process is strictly for disputes involving an 'owner' or 'association'. If the petitioner is not the legal owner (even if they manage the LLC that owns it), the Department lacks jurisdiction.

Alj Quote

The department does not have jurisdiction to hear a dispute that does not involve an owner or an association.

Legal Basis

A.R.S. § 32-2199.01(A)

Topic Tags

  • jurisdiction
  • standing
  • homeowner rights

Question

Who has the burden of proof when a homeowner claims an HOA violated state laws?

Short Answer

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

Detailed Answer

In these administrative hearings, it is the responsibility of the person bringing the complaint to provide sufficient evidence to prove their claims.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated A.R.S. § 33-1803 as alleged in his petition.

Legal Basis

Preponderance of Evidence

Topic Tags

  • burden of proof
  • evidence
  • legal standards

Question

What happens if I base my entire petition on a statute that doesn't apply to my type of property?

Short Answer

The petition will be dismissed because you have stated no claim upon which relief can be granted.

Detailed Answer

Because the petitioner cited the wrong statute (Planned Community Act for a Condominium), the judge ruled that there was no valid legal claim to rule on, resulting in dismissal.

Alj Quote

As such, Petitioner has stated no claim upon which relief can be granted under A.R.S. § 33-1801.

Legal Basis

A.R.S. § 33-1801

Topic Tags

  • dismissal
  • legal procedure
  • condominium act

Case

Docket No
24F-H025-REL
Case Title
David Y. Samuels vs The Concorde Condominium Home Owners Association
Decision Date
2024-04-18
Alj Name
Amy M. Haley
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • David Y. Samuels (petitioner)
    Daso Properties, LLC
    Managing member of the property owner (Daso Properties, LLC); Appeared on his own behalf.

Respondent Side

  • Ashley N. Turner (HOA attorney)
    Goodman Law Group
    Council for respondent; Also appeared as Ashley N. Moscarello in earlier filings.
  • Alyssa Butler (community manager)
    The Management Trust (TMT)
    Witness for the association.
  • Stephanie Beck (HOA staff)
    Involved in prior HOA correspondence regarding fines.
  • Catherine Green (HOA staff)
    Involved in prior HOA correspondence regarding fines.

Neutral Parties

  • Amy M. Haley (ALJ)
    OAH
    Conducted the hearing and issued the final decision.
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate
  • Tammy L. Eigenheer (ALJ)
    OAH
    Issued an order on March 19, 2024.
  • A. Hansen (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission via email [email protected].
  • V. Nunez (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission via email [email protected].
  • D. Jones (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission via email [email protected].
  • L. Abril (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission via email [email protected].
  • M. Neat (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission via email [email protected].
  • A. Kowaleski (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission via email [email protected].
  • G. Osborn (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission via email [email protected].

Laura R. Braglia V. Palo Verde Estates Homeowners Association, INC.

Posted on by

Case Summary

Case ID 24F-H032-REL
Agency ADRE
Tribunal OAH
Decision Date 2024-04-17
Administrative Law Judge Jenna Clark
Outcome The ALJ granted the petition after finding that the Respondent HOA violated ARIZ. REV. STAT. § 33-1258 by failing to fulfill a records request within the statutory ten business days. The HOA was ordered to reimburse the Petitioner's $500 filing fee and comply with the statute, but was not assessed a civil penalty.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Laura R. Braglia Counsel —
Respondent Palo Verde Estates Homeowners Association, Inc. Counsel Jacqueline Zipprich

Alleged Violations

ARIZ. REV. STAT. § 33-1258

Outcome Summary

The ALJ granted the petition after finding that the Respondent HOA violated ARIZ. REV. STAT. § 33-1258 by failing to fulfill a records request within the statutory ten business days. The HOA was ordered to reimburse the Petitioner's $500 filing fee and comply with the statute, but was not assessed a civil penalty.

Key Issues & Findings

Whether Respondent violated ARIZ. REV. STAT. § 33-1258 because the “HOA has not complied witha [sic] formal records request … regarding damage to homeowner's unit.”

Respondent received Petitioner's records request on November 28, 2023, but did not comply until February 13, 2024, nearly two months later. The Tribunal found no viable justification for the delay, establishing a violation of the statute.

Orders: Petitioner's petition is granted. Respondent must reimburse the $500 filing fee in certified funds and must henceforth comply with ARIZ. REV. STAT. § 33-1258. No civil penalty was assessed.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. § 33-1258

Analytics Highlights

Topics: records request, statutory violation, HOA transparency, filing fee reimbursement
Additional Citations:

  • ARIZ. REV. STAT. § 33-1258
  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et seq.

Video Overview

Audio Overview

Decision Documents

24F-H032-REL Decision – 1162594.pdf

Uploaded 2026-04-24T12:19:41 (51.3 KB)

24F-H032-REL Decision – 1167907.pdf

Uploaded 2026-04-24T12:19:45 (184.7 KB)

24F-H032-REL Decision – 1162594.pdf

Uploaded 2026-01-23T18:05:42 (51.3 KB)

24F-H032-REL Decision – 1167907.pdf

Uploaded 2026-01-23T18:05:48 (184.7 KB)

The hearing summarized below concerns the administrative law matter of Laura R. Braglia, Petitioner, versus Palo Verde Estates Homeowners Association, Inc., Respondent (No. 24F-H032-REL), held before Administrative Law Judge (ALJ) Jenna Clark of the Office of Administrative Hearings (OAH).

Concise Summary of Legal Case Hearing

Key Facts and Underlying Dispute

The Petitioner, Laura R. Braglia, is a homeowner within the Palo Verde Estates Homeowners Association (HOA). The dispute arose after she discovered severe termite damage to interior beams of a common wall in her unit in October 2023. To determine whether the repairs were the HOA's responsibility under the CC&Rs (covenants and restrictions), Petitioner, advised by an attorney, sought records from the Respondent.

Main Issue and Applicable Statute

The sole issue for the hearing was to determine whether the Respondent violated Arizona Revised Statute (ARIZ. REV. STAT.) § 33-1258 by failing to comply with a formal records request. This statute requires associations to provide records within ten business days of a request.

Hearing Proceedings and Key Arguments

  1. Petitioner’s Case: Petitioner Braglia testified that she submitted a formal written records request to the HOA and its management (Desert Realty Association Management, represented by Jacqueline Zipprich) on November 28, 2023. The request sought termite service records, the HOA termite warranty, and HOA Insurance Policy Information. The statutory deadline for compliance was December 12, 2023. Petitioner filed a complaint with the Arizona Department of Real Estate (DRE) around January 10, 2024, because she had not received the records. Partial records were finally provided on February 13, 2024, nearly two months late. Petitioner requested the remaining documents—the full insurance policy and termite warranty—on February 23, 2024, but received no reply.
  2. Respondent’s Case: Respondent, represented by Community Property Manager Jacqueline Zipprich, conceded providing the documents late. Ms. Zipprich explained that the Association does not have a "termite warranty," but rather a pest control treatment plan, which was explained to Petitioner. She also contended that the request for "HOA Insurance Policy Information" was ambiguous, leading them to provide only the Certificate of Insurance and exclusion pages. Ms. Zipprich cited communication issues and claimed DRE staff advised her against direct communication with the Petitioner after providing the initial response.
  3. Waiver: Both parties declined to provide closing arguments.

Legal Points and Outcome

The Administrative Law Judge determined that the Petitioner sustained her burden of proof by a preponderance of the evidence. The ALJ concluded that the Respondent violated ARIZ. REV. STAT. § 33-1258.

The violation was based on the fact that the Respondent delayed compliance for nearly two months after the deadline (December 12, 2023, to February 13, 2024). The ALJ noted that while the HOA could not provide a termite warranty because one did not exist, and the insurance policy request was vague, these facts did not establish a viable justification or excuse for the HOA's overall inaction during the applicable statutory period.

The petition was granted. The OAH issued an ORDER requiring the Respondent to:

  1. Reimburse Petitioner’s filing fee of $500.00 in certified funds.
  2. Henceforth comply with ARIZ. REV. STAT. § 33-1258.

Crucially, the ALJ did not assess a civil penalty against the Respondent. The recommended decision was issued on April 17, 2024.

Questions

Question

How long does my HOA have to respond to a formal records request?

Short Answer

The HOA has 10 business days to fulfill a request for examination or to provide copies.

Detailed Answer

Under Arizona law, an association is strictly required to fulfill a request for examination or provide copies of requested records within ten business days. Failure to meet this deadline without a viable justification constitutes a violation of the statute.

Alj Quote

The association shall have ten business days to fulfill a request for examination. On request for purchase of copies of records by any member or any person designated by the member in writing as the member's representative, the association shall have ten business days to provide copies of the requested records.

Legal Basis

ARIZ. REV. STAT. § 33-1258(A)

Topic Tags

  • records request
  • deadlines
  • HOA obligations

Question

Can my HOA charge me a fee to simply review or inspect records?

Short Answer

No, the HOA cannot charge a fee for making material available for review.

Detailed Answer

The statute explicitly prohibits the association from charging a member for the act of making materials available for review. However, they may charge a specific fee for making actual 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.

Legal Basis

ARIZ. REV. STAT. § 33-1258(A)

Topic Tags

  • fees
  • records request
  • homeowner rights

Question

How much can the HOA charge if I ask for copies of records?

Short Answer

The HOA may charge a fee for copies, but it cannot exceed fifteen cents per page.

Detailed Answer

While review is free, if a homeowner requests physical copies of the records, the association is permitted by statute to charge a fee, capped at fifteen cents per page.

Alj Quote

An association may charge a fee for making copies of not more than fifteen cents per page.

Legal Basis

ARIZ. REV. STAT. § 33-1258(A)

Topic Tags

  • fees
  • records request
  • copies

Question

What happens if my HOA responds to my records request weeks or months late?

Short Answer

Responding late without a valid excuse is a violation of the statute.

Detailed Answer

If the HOA fails to provide the records within the statutory 10-business-day window without a viable justification, they are in violation of A.R.S. § 33-1258. In this case, a response provided nearly two months late was deemed a violation.

Alj Quote

The record also reflects that although Petitioner follow-up with Respondent on December 12, 2023, regarding her request, Respondent did not comply until February 13, 2024, nearly two (2) months late… Nothing in the record establishes a viable justification or excuse for Respondent’s inaction and/or lack of performance on Petitioner’s records request during the applicable time period.

Legal Basis

ARIZ. REV. STAT. § 33-1258

Topic Tags

  • violations
  • delays
  • enforcement

Question

Can the HOA be penalized for failing to provide a document that doesn't exist?

Short Answer

No, an HOA cannot be held liable for failing to provide a record that simply does not exist.

Detailed Answer

If a homeowner requests a specific document (like a warranty) and the association does not possess such a document because it never existed, the association is not in violation for failing to provide it.

Alj Quote

Additionally, because the Association never had a “termite warranty,” Respondent was unable to provide Petitioner with something that did not exist.

Legal Basis

ARIZ. REV. STAT. § 33-1258

Topic Tags

  • records request
  • defense
  • HOA obligations

Question

Does it matter if my wording in a records request is vague?

Short Answer

Yes, vague requests may lead to incomplete information, and the HOA might not be faulted for misinterpreting ambiguous terms.

Detailed Answer

Homeowners should be specific. In this case, requesting 'Policy Information' rather than the 'entire policy' was considered vague and ambiguous, which explained why the HOA only provided declarations and exclusion pages rather than the full policy.

Alj Quote

While Petitioner contends that she only received some of the documents she requested, the record further reflects that she never asked for the Association’s entire insurance policy, only “HOA Insurance Policy Information,” which was vague and ambiguous.

Legal Basis

Findings of Fact

Topic Tags

  • records request
  • best practices
  • homeowner responsibilities

Question

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

Short Answer

Yes, the Administrative Law Judge can order the HOA to reimburse your filing fee.

Detailed Answer

If the petition is granted and a violation is found, the ALJ has the authority to order the Respondent (HOA) to reimburse the Petitioner's filing fee in certified funds.

Alj Quote

IT IS FURTHER ORDERED that Respondent shall reimburse Petitioners’ filing fee (e.g. $500.00) in certified funds.

Legal Basis

Order

Topic Tags

  • remedies
  • fees
  • reimbursement

Question

Will the HOA automatically have to pay a civil penalty if they are found in violation?

Short Answer

Not necessarily. The judge may decide not to assess a civil penalty even if a violation is found.

Detailed Answer

Finding a violation does not automatically result in a fine. The ALJ has discretion regarding civil penalties. In this instance, despite finding a violation regarding records, the judge ordered compliance and fee reimbursement but explicitly chose not to assess a civil penalty.

Alj Quote

IT IS FURTHER ORDERED that a civil penalty shall not be assessed against Respondent in this matter.

Legal Basis

Order

Topic Tags

  • penalties
  • civil penalty
  • enforcement

Question

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

Short Answer

The Petitioner (homeowner) bears the burden of proof.

Detailed Answer

The homeowner filing the complaint must prove by a 'preponderance of the evidence' that the HOA violated the statute. This means they must show it is more probable than not that the violation occurred.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1258.

Legal Basis

ARIZ. ADMIN. CODE R2-19-119(B)(2)

Topic Tags

  • procedure
  • burden of proof
  • evidence

Question

Can I designate someone else to inspect the HOA records for me?

Short Answer

Yes, a member can designate a representative in writing.

Detailed Answer

The statute allows records to be examined by the member or any person designated by the member in writing as their representative.

Alj Quote

[A]ll financial and other records of the association shall be made reasonably available for examination by any member or any person designated by the member in writing as the member's representative.

Legal Basis

ARIZ. REV. STAT. § 33-1258(A)

Topic Tags

  • representation
  • records request
  • access

Case

Docket No
24F-H032-REL
Case Title
Laura R. Braglia v. Palo Verde Estates Homeowners Association, Inc.
Decision Date
2024-04-17
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Questions

Question

How long does my HOA have to respond to a formal records request?

Short Answer

The HOA has 10 business days to fulfill a request for examination or to provide copies.

Detailed Answer

Under Arizona law, an association is strictly required to fulfill a request for examination or provide copies of requested records within ten business days. Failure to meet this deadline without a viable justification constitutes a violation of the statute.

Alj Quote

The association shall have ten business days to fulfill a request for examination. On request for purchase of copies of records by any member or any person designated by the member in writing as the member's representative, the association shall have ten business days to provide copies of the requested records.

Legal Basis

ARIZ. REV. STAT. § 33-1258(A)

Topic Tags

  • records request
  • deadlines
  • HOA obligations

Question

Can my HOA charge me a fee to simply review or inspect records?

Short Answer

No, the HOA cannot charge a fee for making material available for review.

Detailed Answer

The statute explicitly prohibits the association from charging a member for the act of making materials available for review. However, they may charge a specific fee for making actual 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.

Legal Basis

ARIZ. REV. STAT. § 33-1258(A)

Topic Tags

  • fees
  • records request
  • homeowner rights

Question

How much can the HOA charge if I ask for copies of records?

Short Answer

The HOA may charge a fee for copies, but it cannot exceed fifteen cents per page.

Detailed Answer

While review is free, if a homeowner requests physical copies of the records, the association is permitted by statute to charge a fee, capped at fifteen cents per page.

Alj Quote

An association may charge a fee for making copies of not more than fifteen cents per page.

Legal Basis

ARIZ. REV. STAT. § 33-1258(A)

Topic Tags

  • fees
  • records request
  • copies

Question

What happens if my HOA responds to my records request weeks or months late?

Short Answer

Responding late without a valid excuse is a violation of the statute.

Detailed Answer

If the HOA fails to provide the records within the statutory 10-business-day window without a viable justification, they are in violation of A.R.S. § 33-1258. In this case, a response provided nearly two months late was deemed a violation.

Alj Quote

The record also reflects that although Petitioner follow-up with Respondent on December 12, 2023, regarding her request, Respondent did not comply until February 13, 2024, nearly two (2) months late… Nothing in the record establishes a viable justification or excuse for Respondent’s inaction and/or lack of performance on Petitioner’s records request during the applicable time period.

Legal Basis

ARIZ. REV. STAT. § 33-1258

Topic Tags

  • violations
  • delays
  • enforcement

Question

Can the HOA be penalized for failing to provide a document that doesn't exist?

Short Answer

No, an HOA cannot be held liable for failing to provide a record that simply does not exist.

Detailed Answer

If a homeowner requests a specific document (like a warranty) and the association does not possess such a document because it never existed, the association is not in violation for failing to provide it.

Alj Quote

Additionally, because the Association never had a “termite warranty,” Respondent was unable to provide Petitioner with something that did not exist.

Legal Basis

ARIZ. REV. STAT. § 33-1258

Topic Tags

  • records request
  • defense
  • HOA obligations

Question

Does it matter if my wording in a records request is vague?

Short Answer

Yes, vague requests may lead to incomplete information, and the HOA might not be faulted for misinterpreting ambiguous terms.

Detailed Answer

Homeowners should be specific. In this case, requesting 'Policy Information' rather than the 'entire policy' was considered vague and ambiguous, which explained why the HOA only provided declarations and exclusion pages rather than the full policy.

Alj Quote

While Petitioner contends that she only received some of the documents she requested, the record further reflects that she never asked for the Association’s entire insurance policy, only “HOA Insurance Policy Information,” which was vague and ambiguous.

Legal Basis

Findings of Fact

Topic Tags

  • records request
  • best practices
  • homeowner responsibilities

Question

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

Short Answer

Yes, the Administrative Law Judge can order the HOA to reimburse your filing fee.

Detailed Answer

If the petition is granted and a violation is found, the ALJ has the authority to order the Respondent (HOA) to reimburse the Petitioner's filing fee in certified funds.

Alj Quote

IT IS FURTHER ORDERED that Respondent shall reimburse Petitioners’ filing fee (e.g. $500.00) in certified funds.

Legal Basis

Order

Topic Tags

  • remedies
  • fees
  • reimbursement

Question

Will the HOA automatically have to pay a civil penalty if they are found in violation?

Short Answer

Not necessarily. The judge may decide not to assess a civil penalty even if a violation is found.

Detailed Answer

Finding a violation does not automatically result in a fine. The ALJ has discretion regarding civil penalties. In this instance, despite finding a violation regarding records, the judge ordered compliance and fee reimbursement but explicitly chose not to assess a civil penalty.

Alj Quote

IT IS FURTHER ORDERED that a civil penalty shall not be assessed against Respondent in this matter.

Legal Basis

Order

Topic Tags

  • penalties
  • civil penalty
  • enforcement

Question

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

Short Answer

The Petitioner (homeowner) bears the burden of proof.

Detailed Answer

The homeowner filing the complaint must prove by a 'preponderance of the evidence' that the HOA violated the statute. This means they must show it is more probable than not that the violation occurred.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1258.

Legal Basis

ARIZ. ADMIN. CODE R2-19-119(B)(2)

Topic Tags

  • procedure
  • burden of proof
  • evidence

Question

Can I designate someone else to inspect the HOA records for me?

Short Answer

Yes, a member can designate a representative in writing.

Detailed Answer

The statute allows records to be examined by the member or any person designated by the member in writing as their representative.

Alj Quote

[A]ll financial and other records of the association shall be made reasonably available for examination by any member or any person designated by the member in writing as the member's representative.

Legal Basis

ARIZ. REV. STAT. § 33-1258(A)

Topic Tags

  • representation
  • records request
  • access

Case

Docket No
24F-H032-REL
Case Title
Laura R. Braglia v. Palo Verde Estates Homeowners Association, Inc.
Decision Date
2024-04-17
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Laura R. Braglia (petitioner)
    Appeared on her own behalf; testified as witness.

Respondent Side

  • Jacqueline Zipprich (property manager)
    Desert Realty Association Management
    Appeared on behalf of Respondent; testified as witness; also served as Statutory Agent for Respondent.
  • Joe Wolf (HOA president)
    Palo Verde Estates Homeowners Association, Inc.
    HOA Board President.

Neutral Parties

  • Jenna Clark (ALJ)
    Office of Administrative Hearings
    Presiding Administrative Law Judge.
  • Susan Nicolson (commissioner)
    Arizona Department of Real Estate
    Recipient of the recommended order.
  • Vivian Nunes (ADRE staff)
    Arizona Department of Real Estate
    Recipient of the recommended order ([email protected]).
  • D. Jones (ADRE staff)
    Arizona Department of Real Estate
    Listed as recipient of the recommended order ([email protected]).
  • L. Abril (ADRE staff)
    Arizona Department of Real Estate
    Listed as recipient of the recommended order ([email protected]).
  • M. Neat (ADRE staff)
    Arizona Department of Real Estate
    Listed as recipient of the recommended order ([email protected]).
  • A. Kowaleski (ADRE staff)
    Arizona Department of Real Estate
    Listed as recipient of the recommended order ([email protected]).
  • G. Osborn (ADRE staff)
    Arizona Department of Real Estate
    Listed as recipient of the recommended order ([email protected]).