Case Summary
| Case ID | 19F-H1918037-REL-RHG |
|---|---|
| Agency | ADRE |
| Tribunal | OAH |
| Decision Date | 2019-09-12 |
| Administrative Law Judge | Jenna Clark |
| Outcome | full |
| Filing Fees Refunded | $500.00 |
| Civil Penalties | $500.00 |
Parties & Counsel
| Petitioner | Tom Barrs | Counsel | Jonathan A. Dessaules |
|---|---|---|---|
| Respondent | Desert Ranch Homeowners Association | Counsel | B. Austin Baillio |
Alleged Violations
A.R.S. § 33-1805
Outcome Summary
The Administrative Law Judge concluded that the HOA violated ARIZ. REV. STAT. § 33-1805 by failing to provide the full requested documentation relating to EDC actions and communications. The Petitioner's request for relief was granted, resulting in the reimbursement of the $500 filing fee and the imposition of a $500 civil penalty against the HOA.
Key Issues & Findings
Whether Desert Ranch Homeowners Association (Respondent) violated A.R.S. § 33-1805 by failing to fulfill a records request.
The Association violated A.R.S. § 33-1805 by failing to fully comply with Petitioner's specific request for EDC records (submissions, requests, and approvals) by providing only a summary table instead of the totality of requested communications within the statutory deadline.
Orders: Petitioner's petition granted. Respondent ordered to reimburse Petitioner's $500.00 filing fee (ARIZ. REV. STAT. § 32-2199.01) and tender a $500.00 civil penalty to the Department (ARIZ. REV. STAT. § 32-2199.02(A)).
Filing fee: $500.00, Fee refunded: Yes, Civil penalty: $500.00
Disposition: petitioner_win
- ARIZ. REV. STAT. § 33-1805
- ARIZ. REV. STAT. § 32-2199.01
- ARIZ. REV. STAT. § 32-2199.02(A)
Analytics Highlights
- ARIZ. REV. STAT. § 33-1805
- ARIZ. REV. STAT. § 32-2199.01
- ARIZ. REV. STAT. § 32-2199.02(A)
- ARIZ. REV. STAT. § 32-2102
- ARIZ. REV. STAT. § 32-2199
- ARIZ. REV. STAT. § 32-2199.05
- ARIZ. REV. STAT. § 32-2199(2)
- ARIZ. REV. STAT. § 32-2199.01(D)
- ARIZ. REV. STAT. § 32-2199.02
- ARIZ. REV. STAT. § 41-1092
- ARIZ. ADMIN. CODE R2-19-119
- ARIZ. REV. STAT. § 1-243
- ARIZ. ADMIN. CODE R2-19-107
- ARIZ. REV. STAT. § 33-1804
Audio Overview
Decision Documents
19F-H1918037-REL Decision – 700566.pdf
Briefing Document: Barrs v. Desert Ranch Homeowners Association
Executive Summary
This document synthesizes the findings from two Administrative Law Judge (ALJ) Decisions concerning a records request dispute between homeowner Tom Barrs (Petitioner) and the Desert Ranch Homeowners Association (Respondent). The central issue was whether the Association violated Arizona Revised Statute (A.R.S.) § 33-1805 by failing to adequately fulfill a records request submitted by the Petitioner on November 1, 2018.
The initial hearing on March 21, 2019, resulted in an April 10, 2019, decision in favor of the Association. The ALJ concluded that the Petitioner had failed to properly submit his request to all members of the Association’s Board, and thus the Association’s partial response (a summary table) did not constitute a statutory violation.
Following a successful appeal by the Petitioner, a rehearing was held on August 27, 2019. New evidence demonstrated that the Petitioner had followed prior express instructions from the Association regarding who to contact for records requests. Consequently, the ALJ issued a new decision on September 12, 2019, reversing the original order. The final ruling found the Association in violation of A.R.S. § 33-1805. The Association was ordered to reimburse the Petitioner’s $500 filing fee and was assessed a civil penalty of $500.
Case Overview
Case Numbers
No. 19F-H1918037-REL (Initial Decision)
No. 19F-H1918037-REL-RHG (Rehearing Decision)
Petitioner
Tom Barrs, a property owner and member of the Association.
Respondent
Desert Ranch Homeowners Association, Scottsdale, Arizona.
Central Issue
Whether the Association violated A.R.S. § 33-1805 by failing to fulfill a records request for Environmental Design Committee (EDC) actions, requests, and approvals.
Initial Petition
Filed by Tom Barrs on December 17, 2018.
Initial Hearing
March 21, 2019, before ALJ Jenna Clark.
Rehearing
August 27, 2019, before ALJ Jenna Clark.
Final Outcome
Petition granted in favor of Tom Barrs. The Association was found in violation of state law, ordered to reimburse the filing fee, and fined.
Key Individuals and Entities
Role / Affiliation
Tom Barrs
Petitioner; homeowner in the Desert Ranch subdivision.
Desert Ranch HOA
Respondent; homeowners’ association.
Jenna Clark
Administrative Law Judge, Office of Administrative Hearings.
Brian Schoeffler
Chairman of the Association’s Environmental Design Committee (EDC); appeared on behalf of the Association.
Catherine Overby
President of the Association’s Board of Directors.
Lori Loch-Lee
Vice President of Client Services at Associated Asset Management (AAM), the Association’s accounting/management company.
Jonathan Dessaules, Esq.
Attorney who appeared on behalf of the Petitioner at the rehearing.
The Records Request and Subsequent Dispute
The Initial Request
On November 1, 2018, at 9:40 p.m., Petitioner submitted an electronic records request to Catherine Overby, Brian Schoeffler, and Lori Loch-Lee. The text of the request was as follows:
“Pursuant to ARS 33-1805, I am requesting a copy of all EDC actions, written requests, and written approvals from October 2017 through October 2018. Soft copies via return email are preferable; otherwise, please let me know when hard copies are available for pickup.”
The Association’s Response and Petitioner’s Follow-Up
• November 2, 2018: Lori Loch-Lee from AAM notified the Petitioner she would forward his request to all Board members, noting that AAM was only the Association’s accounting firm.
• November 18, 2018: The Petitioner received a summary table listing some EDC actions, not the complete set of communications and documents requested. At this time, he was advised by Brian Schoeffler that he “needed to copy all Board members on records requests.”
• March 6, 2019: The Petitioner sent a follow-up email, accusing the Association of willful failure and clarifying the specific records he sought beyond the summary table, including “copies of the communications (letters, emails, and application forms) relating to Environmental Design Review (EDC) submissions, requests, complaints and approvals (or denials).”
• March 11, 2019: Mr. Schoeffler replied, arguing that the request had been complied with on November 18, 2018, and directed the Petitioner to “submit a new request” for the additional information.
• March 17, 2019: Mr. Schoeffler reiterated that the original request was only sent to two of four Board members and stated that providing additional documents could be “interpreted as an admission of guilt.”
As of the rehearing date (August 27, 2019), the Petitioner had still not received all the documentation requested on November 1, 2018.
Legal Proceedings and Rulings
Initial Hearing and Decision (April 10, 2019)
In the first hearing, the dispute centered on the validity of the request submission and the adequacy of the Association’s response.
Arguments:
• Petitioner (Barrs): Argued the Association acted in bad faith and willfully failed to fulfill the request, noting a similar dispute had been previously adjudicated. He was concerned with the completeness of the response, not its timeliness.
• Respondent (HOA): Argued it had complied with the request by providing a summary table, consistent with its handling of a previous dispute with the Petitioner. Mr. Schoeffler testified that the response was untimely (provided on the 11th business day) but asserted it was otherwise sufficient.
ALJ Conclusion: The Judge ruled in favor of the Association, denying the Petitioner’s petition. The key finding was that the Petitioner had failed to properly submit his request.
“Because the credible evidence of record reflects that Petitioner failed to properly submit his records request to the Board, Petitioner has failed established by a preponderance of the evidence that the Association was in violation of ARIZ. REV. STAT. § 33-1805 for providing him with a summary table on November 18, 2018.”
The decision also noted that the statute does not legally obligate an HOA to email copies of records.
Rehearing and Final Decision (September 12, 2019)
After the Petitioner’s appeal was granted, a rehearing introduced new evidence that fundamentally changed the outcome.
New Evidence and Concessions:
• July 19, 2017 Instruction: Evidence showed Association President Catherine Overby had previously appointed Brian Schoeffler as the Petitioner’s “primary records request contact.”
• July 18, 2018 Instruction: Evidence showed Ms. Overby had also instructed the Petitioner to direct requests to the management company, AAM.
• Association Concessions: The Respondent conceded that its governing documents do not require all Board members to be copied on records requests and that its own bylaws regarding submission forms are not adhered to or enforced.
ALJ’s Reversed Conclusion: The Judge reversed the prior decision and granted the Petitioner’s petition. The new evidence proved the Petitioner had followed express instructions from the Association.
“Petitioner’s November 01, 2018, records request was not required to be sent to all members of the Association’s Board, as Petitioner had expressly been instructed to only send his records requests to the Association’s EDC Chairman, Mr. Schoeffler, which he did.”
The Judge concluded that the partial response was a clear violation of the law.
“Petitioner is correct that the Association did not fully comply with his specific request, and has established by a preponderance of the evidence that the summary table provided by the Association was a violation of ARIZ. REV. STAT. § 33-1805.”
Final Order and Penalties
The Administrative Law Judge’s Final Order on September 12, 2019, which is binding on the parties, mandated the following:
1. Petition Granted: The Petitioner’s petition was granted.
2. Filing Fee Reimbursement: The Respondent (Desert Ranch HOA) was ordered to reimburse the Petitioner’s $500.00 filing fee.
3. Civil Penalty: The Respondent was ordered to pay a civil penalty of $500.00 to the Arizona Department of Real Estate.