Case Summary
| Case ID | 18F-H1817008-REL |
|---|---|
| Agency | ADRE |
| Tribunal | OAH |
| Decision Date | 2017-12-27 |
| Administrative Law Judge | Thomas Shedden |
| Outcome | loss |
| Filing Fees Refunded | $0.00 |
| Civil Penalties | $0.00 |
Parties & Counsel
| Petitioner | Thomas Barrs | Counsel | — |
|---|---|---|---|
| Respondent | Desert Ranch Homeowners Association | Counsel | Brian Schoeffler |
Alleged Violations
ARIZ. REV. STAT. § 33-1805
Outcome Summary
The Administrative Law Judge dismissed Thomas Barrs' petition against the Desert Ranch Homeowners Association. The Petitioner failed to show by a preponderance of the evidence that the Respondent violated ARIZ. REV. STAT. § 33-1805 in any of the remaining seven allegations related to record access. The Respondent was deemed the prevailing party.
Why this result: Petitioner failed to meet the burden of proof (preponderance of the evidence) on all claims. In several instances, the Respondent either cured any potential breach (Issue 2), timely complied (Issue 1), or was under no legal obligation to fulfill the request in the manner demanded (emailing records, Issues 3, 6, 7).
Key Issues & Findings
Alleged failure to provide records or copies, specifically via email (Issues 3, 6, 7)
Petitioner requested records (insurance policies, budget, EDC actions) be emailed. Respondent offered examination and purchase of copies. Petitioner declined the offers and blocked the attorney's emails. The ALJD determined the statute does not mandate emailing records.
Orders: Petitioner failed to prove Respondent violated A.R.S. § 33-1805 regarding requests for emailed documents, as the statute requires records to be made reasonably available for examination or purchase of copies, not emailed.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
- ARIZ. REV. STAT. § 33-1805
Analytics Highlights
- ARIZ. REV. STAT. § 33-1805
- ARIZ. REV. STAT. § 33-1812
- ARIZ. REV. STAT. § 1-243
- Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)
- State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968)
- City of Phoenix v. Donofrio, 99 Ariz. 130, 133, 407 P.2d 91, 94 (1965)
Audio Overview
Decision Documents
18F-H181708-REL Decision – 608861.pdf
Briefing Document: Administrative Law Judge Decision in Barrs v. Desert Ranch Homeowners Association
Executive Summary
This document synthesizes the findings and conclusions of the Administrative Law Judge (ALJ) in case number 18F-H1817008-REL, involving Petitioner Thomas Barrs and Respondent Desert Ranch Homeowners Association (HOA). The central outcome of the December 1, 2017 hearing was the complete dismissal of Mr. Barrs’ petition. The ALJ determined that Mr. Barrs failed to prove by a preponderance of the evidence that the HOA violated Arizona Revised Statutes § 33-1805 regarding member access to association records.
The decision hinged on a key statutory interpretation: ARIZ. REV. STAT. § 33-1805 requires an HOA to make records “reasonably available for examination” and to provide copies upon request, but it does not obligate the association to email documents to members. The Judge found that the HOA’s offers to allow Mr. Barrs to inspect records in person were legally sufficient. The failure to access records was ultimately attributed to the petitioner’s own actions, including a self-initiated communication breakdown with a key Board member and a subsequent refusal of the HOA’s offers for in-person inspection. The Judge concluded that for each of the contested allegations, the HOA had either fulfilled its statutory duty, the requested records did not exist, or its attempts to provide access were declined by the petitioner.
Case Overview
Case Name
Thomas Barrs (Petitioner) v. Desert Ranch Homeowners Association (Respondent)
Case Number
18F-H1817008-REL
Arizona Office of Administrative Hearings
Administrative Law Judge
Thomas Shedden
Hearing Date
December 1, 2017
Decision Date
December 27, 2017
Central Allegation
The Petitioner alleged nine instances where the Respondent violated ARIZ. REV. STAT. § 33-1805 by failing to accommodate requests to inspect or receive via email various HOA records.
Final Disposition
The Petitioner’s petition was dismissed. The Respondent was deemed the prevailing party.
Analysis of Petitioner’s Allegations and Findings
The petition, filed on September 4, 2017, contained nine specific allegations of statutory violations by the HOA. These issues and the ALJ’s findings are detailed below.
Summary of Allegations
Request
Date of Request
Finding of Fact
View April 29, 2017 Board election documents
May 19, 2017
No violation; request fulfilled within statutory time limit.
View March 18, 2017 Board election documents
June 17, 2017
No violation; HOA cured any potential breach with offers to inspect, which were declined.
Email copies of insurance policies
July 11, 2017
No violation; HOA offered inspection, which fulfills statutory duty.
Insurance company phone number & policy number
Aug 26, 2017
No violation; Petitioner acknowledged receipt of information.
Email Secretary’s shorthand notes from March 18 meeting
July 11, 2017
No violation; the requested notes do not exist.
Email the annual budget
July 11, 2017
No violation; HOA offered inspection, which fulfills statutory duty.
Email written record of EDC actions after July 2016
July 11, 2017
No violation; HOA offered inspection, which fulfills statutory duty.
Email name of EDC chairperson
July 11, 2017
Withdrawn by Petitioner at the hearing.
Email list of Board meeting dates
July 11, 2017
Withdrawn by Petitioner at the hearing.
Detailed Findings by Issue
At the hearing, the Petitioner withdrew his allegations concerning the name of the EDC chairperson (Issue 8) and the list of past Board meeting dates (Issue 9).
• Issue 4 (Insurance Information): The Judge noted that Mr. Barrs “effectively acknowledged that he has received the insurance company’s phone number and the policy number.” No violation was found.
• Issue 5 (Shorthand Meeting Notes): The evidence demonstrated that no shorthand notes from the March 18, 2017 meeting exist. The Board had previously informed Mr. Barrs of this fact. Consequently, the Judge found no violation.
The petitioner requested to view documents related to the April 29, 2017, election via an email sent at 8:59 p.m. on Friday, May 19, 2017. The Judge determined that this request was effectively received on the next business day, Monday, May 22, 2017. Under the statute, the HOA had ten business days, until June 5, 2017, to fulfill the request. The HOA made the documents available for Mr. Barrs’ inspection on June 3, 2017, which was within the required timeframe. The decision also dismissed related claims by Mr. Barrs regarding a “late ballot” (which was actually a nomination petition) and “undeliverable ballots” (which did not exist as mailing envelopes had no return address). The Judge concluded the HOA did not violate the statute.
These issues center on a series of requests made in June and July 2017 and a significant communication failure initiated by the Petitioner.
Background: In March 2017, after HOA Board member Brian Schoeffler asked to be removed from a resident email thread, Mr. Barrs ceased all email communication with Mr. Schoeffler and blocked his email address, preventing him from receiving any emails sent by Mr. Schoeffler.
Timeline of Events:
• June 17, 2017: Mr. Barrs requested to view the March 18 election ballots (Issue 2). On June 19, Board President Catherine Overby informed him the materials were with Mr. Schoeffler and that he should contact him.
• July 11, 2017: Mr. Barrs emailed the Board (excluding Mr. Schoeffler) requesting that the insurance policies (Issue 3), annual budget (Issue 6), and EDC records (Issue 7) be emailed to him.
• July 12, 2017: Ms. Overby responded that she would forward the request to Mr. Schoeffler and later stated that Mr. Barrs should go to Mr. Schoeffler’s house to view the records. On the same day, Mr. Schoeffler emailed Mr. Barrs—an email Mr. Barrs did not receive—offering to meet and provide copies.
• July 25, 2017: Mr. Barrs informed the Board for the first time that he had blocked Mr. Schoeffler’s emails.
• July 28, 2017: Mr. Schoeffler sent another email, offering dates to meet and explaining that the statute required only that documents be made “reasonably available.”
• July 29, 2017: Mr. Barrs responded to the Board, stating he “will not stipulate to the preconditions” set by Mr. Schoeffler and concluding that the documents were “apparently” not available.
Finding: The Judge found that the Board responded to the July 11 requests in a timely manner (on July 12) and continued to try and accommodate them. However, Mr. Barrs “initially delayed matters by refusing to contact Mr. Schoeffler and he then declined Respondent’s offers.” For Issue 2, the Judge concluded that even if the HOA had initially failed to provide access within ten days, it had “cured its breach” with the subsequent offers of inspection on July 12 and July 28, which Mr. Barrs declined.
Central Legal Conclusions
The ALJ’s decision rested on several key conclusions of law regarding statutory interpretation and the burden of proof.
• Burden of Proof: Mr. Barrs, as the petitioner, bore the burden of proving the alleged violations by a preponderance of the evidence. The Judge concluded that he failed to meet this standard on all counts.
• Interpretation of ARIZ. REV. STAT. § 33-1805(A): This was the pivotal legal finding. The statute reads, in part:
• The ALJ concluded that this language does not obligate an HOA to email records to a member. The statutory requirement is satisfied when the association makes the records “reasonably available” for in-person inspection and allows the member to purchase copies (for a fee of not more than fifteen cents per page).
• Application to the Case: The HOA’s offer for Mr. Barrs to examine the requested documents at Mr. Schoeffler’s residence and to have copies made fulfilled its legal duty. Mr. Barrs’ insistence on receiving documents via email and his ultimate refusal of the in-person inspection offer were the reasons he did not gain access to the records.
Final Order
Based on the findings of fact and conclusions of law, the Administrative Law Judge issued the following order:
“IT IS ORDERED that Thomas Barrs’ petition is dismissed.”
The decision is binding on the parties unless a rehearing is filed with the Commissioner of the Department of Real Estate within 30 days of the service of the order.