Category Archives: HOA Cases

Strike, Kristyne P. vs. Las Torres Homeowners Association

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Case Summary

Case ID 13F-H1314009-BFS
Agency Department of Fire, Building and Life Safety
Tribunal OAH
Decision Date 2014-05-16
Administrative Law Judge M. Douglas
Outcome no
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Krystine P. Strike Counsel —
Respondent Las Torres Homeowners Association Counsel Mark K. Sahl, Esq.

Alleged Violations

A.R.S. § 33-1221, A.R.S. § 33-1218

Outcome Summary

The Respondent (HOA) was deemed the prevailing party and the matter was dismissed. The ALJ concluded that the Petitioner's claim regarding the unauthorized concrete slab in the common area was barred by the one-year statute of limitations because the slab had been in existence since 1998 and the Petitioner had owned her unit since 2007, filing the petition in 2013.

Why this result: Statute of limitations (A.R.S. § 12-541) expired.

Key Issues & Findings

Unauthorized alteration of common area

Petitioner alleged the Association violated statutes by allowing a neighbor to maintain and use a concrete slab in the common area as a private patio without proper consent or authorization.

Orders: The matter is dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Decision Documents

13F-H1314009-BFS Decision – 394719.pdf

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13F-H1314009-BFS Decision – 399395.pdf

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**Case Summary: Strike v. Las Torres Homeowners Association**
**Case No:** 13F-H1314009-BFS
**Forum:** Arizona Office of Administrative Hearings
**Date:** May 6, 2014 (Hearing); June 24, 2014 (Final Certification)

**Key Facts**
Petitioner Krystine P. Strike, owner of Unit 603, filed a dispute against Las Torres Homeowners Association (HOA) regarding a concrete slab situated in the common area connecting her unit to Unit 604. The slab was constructed in 1998 by previous owners who owned both units, with approval from the City of Carefree and tacit approval from the HOA.

Ms. Strike purchased Unit 603 in 2007, at which point the slab had existed for nine years. In 2012, the current owner of Unit 604 petitioned to enlarge the slab, which was denied, but continued to place patio furniture on the existing slab. The HOA issued multiple letters to the owner of Unit 604 requesting the removal of furniture when not in use, asserting the slab was a common area not approved for exclusive private use.

**Main Issues and Arguments**
* **Petitioner’s Claims:** Ms. Strike alleged the HOA violated A.R.S. § 33-1221 and § 33-1218 by allowing a neighbor to alter and encroach upon the common area without consent. She requested the common area be restored to its unaltered state. Regarding timeliness, she argued she was previously barred from filing a unilateral action due to a Code of Conduct she signed while serving on the HOA Board.
* **Respondent’s Defense:** The HOA argued the cited statutes were inapplicable because the slab was a General Common Element rather than a Limited Common Element. They further argued the Department lacked jurisdiction to grant injunctive relief (removal of the slab) and that the Petitioner’s claim was barred by the statute of limitations.

**Legal Findings**
Administrative Law Judge (ALJ) M. Douglas dismissed the case, ruling in favor of the Respondent based on the following:

1. **Statute of Limitations:** Under A.R.S. § 12-54

Case Participants

Petitioner Side

  • Krystine P. Strike (petitioner)
    Unit 603 Owner
    Appeared on her own behalf; former Board member

Respondent Side

  • Mark K. Sahl (attorney)
    Carpenter, Hazlewood, Delgado & Bolen, PLC
    Attorney for Las Torres Homeowners Association
  • Pamela A. Dixon (witness)
    Las Torres Homeowners Association
    Board Member
  • Marc Vasquez (witness)
    Las Torres Homeowners Association
    Testified regarding Board meetings and violation letters

Neutral Parties

  • M. Douglas (ALJ)
    Office of Administrative Hearings
    Presiding Administrative Law Judge
  • Gene Palma (Director)
    Department of Fire, Building and Life Safety
    Listed on transmission of decision
  • Cliff J. Vanell (Director)
    Office of Administrative Hearings
    Signed Certification of Decision
  • Joni Cage (agency staff)
    Department of Fire, Building and Life Safety
    c/o for Gene Palma
  • Rosella J. Rodriguez (administrative staff)
    Office of Administrative Hearings
    Mailed/faxed the certification

Denapoli, Cindy vs. Southern Ridge Condominium Association

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Case Summary

Case ID 13F-H1314006-BFS
Agency Department of Fire, Building and Life Safety
Tribunal OAH
Decision Date 2014-04-25
Administrative Law Judge M. Douglas
Outcome yes
Filing Fees Refunded $550.00
Civil Penalties $200.00

Parties & Counsel

Petitioner Cindy Denapoli Counsel —
Respondent Southern Ridge Condominium Association Counsel Maria R. Kupillas

Alleged Violations

A.R.S. § 33-1255(C)(2)

Outcome Summary

The Administrative Law Judge ruled in favor of the Petitioner, concluding that the Association violated A.R.S. § 33-1255(C)(2) by paying management fees for the 'Rental Pool' (investor-owned units) out of general funds rather than assessing those costs exclusively to the units benefited. The Association was ordered to correct the practice and pay penalties and costs.

Key Issues & Findings

Improper Allocation of Common Expenses

Petitioner alleged that management fees of approximately $9,666/month were being assessed to all owners as part of HOA dues, despite these fees directly benefitting only those units participating in a separate 'Rental Pool'. The ALJ found that the fees benefited fewer than all units and should have been assessed exclusively against the benefited units.

Orders: Respondent must fully comply with A.R.S. § 33-1255(C)(2); Respondent must pay Petitioner $550.00 filing fee; Respondent must pay Department $200.00 civil penalty.

Filing fee: $550.00, Fee refunded: Yes, Civil penalty: $200.00

Disposition: petitioner_win

Decision Documents

13F-H1314006-BFS Decision – 391902.pdf

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13F-H1314006-BFS Decision – 396527.pdf

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**Case Summary: *Cindy Denapoli vs. Southern Ridge Condominium Association***
**Case No. 13F-H1314006-BFS**

**Proceedings Overview**
This hearing took place on April 10, 2014, before the Arizona Office of Administrative Hearings regarding a petition filed by Cindy Denapoli (Petitioner) against the Southern Ridge Condominium Association (Respondent). The Petitioner appeared on her own behalf, while the Respondent was represented by counsel. The decision was certified as final on June 2, 2014, after the Department of Fire, Building and Life Safety took no action to modify or reject the Administrative Law Judge's decision.

**Background and Key Facts**
* **Association Structure:** Southern Ridge is a condominium association located in Mesa, Arizona. It is entirely investor-owned with no owner-occupants.
* **The "Rental Pool":** The majority of unit owners (102 of 113) formed a "Rental Pool" to share non-common expenses and distribute net profits,. The Petitioner is a unit owner but is not a member of this Rental Pool.
* **Management:** "Preferred Communities" handles the Association's accounting, while "Professional Equity Management" (PEM) serves as the management company,.
* **The Disputed Practice:** The Association’s accounting firm issued a monthly check of approximately $9,666 for management fees directly to the Rental Pool (aka "Southern Ridge Apartments") rather than to the management company,. The Rental Pool would then pay PEM and distribute remaining funds or profits to Rental Pool members only,.

**Main Issues and Arguments**
The Petitioner alleged that the Association violated **A.R.S. § 33-1255(C)(2)**. She argued that the monthly fees assessed to all owners as "HOA dues" were being paid to the Rental Pool, thereby financially subsidizing the Rental Pool members,. She asserted that the fee benefitted only the Rental Pool units, yet she was required to contribute to it despite receiving no distribution from the Rental Pool,.

The Respondent denied the allegations but admitted through testimony that the $9,666 monthly fee was paid to the Rental Pool,. Mr. Watkins, the Association's treasurer, testified that PEM objected to direct payment from the Association and that the Rental Pool paid PEM for services. He acknowledged that net profits from the Rental Pool were distributed only to its members and not to other owners.

**Legal Analysis**
The Administrative Law Judge focused on **A.R.S. § 33-1255(C)(2)**, which states that "[a]ny common expense or portion of a common expense benefitting fewer than all of the units shall be assessed exclusively against the units benefitted".

The Judge found that:
1. The monthly check was issued to the Rental Pool, which is not a corporate entity or LLC.
2. The Rental Pool used these funds to pay expenses and distributed net profits on a pro-rata basis to its members.
3. No distributions were made to condominium owners who were not part of the Rental Pool.

**Final Decision and Outcome**
The Tribunal concluded that Southern Ridge Condominium Association violated **A.R.S. § 33-1255(C)(2)** by assessing expenses against all units that benefitted only the Rental Pool members.

**Order:**
* The Petitioner was deemed the prevailing party.
* The Respondent was ordered to fully comply with A.R.S. § 33-1255(C)(2) in the future.
* The Respondent was ordered to pay the Petitioner’s filing fee of **$550.00**.
* The Respondent was ordered to pay a civil penalty of **$200.00** to the Department.

Case Participants

Petitioner Side

  • Cindy Denapoli (Petitioner)
    Southern Ridge Condominium Association (Owner)
    Appeared on her own behalf; owner of a unit not in the Rental Pool

Respondent Side

  • Maria R. Kupillas (attorney)
    Farley, Seletos & Choate
    Attorney for Southern Ridge Condominium Association
  • William J. Watkins (witness)
    Southern Ridge Condominium Association
    Board member and Treasurer; member of the Rental Pool

Neutral Parties

  • M. Douglas (ALJ)
    Office of Administrative Hearings
    Administrative Law Judge who presided over the hearing and issued the decision
  • Cliff J. Vanell (Director)
    Office of Administrative Hearings
    Certified the ALJ decision as final
  • Gene Palma (Director)
    Department of Fire, Building and Life Safety
    Recipient of the transmitted decision
  • Joni Cage (Agency Staff)
    Department of Fire, Building and Life Safety
    Addressed in the mailing list
  • Rosella J. Rodriguez (Clerk)
    Office of Administrative Hearings
    Signed the mailing certificate

Winter, Alexander vs. Cortina Homeowners Association

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Case Summary

Case ID 13F-H1314005-BFS
Agency DFBLS
Tribunal OAH
Decision Date 2014-04-17
Administrative Law Judge M. Douglas
Outcome no
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Alexander Winter Counsel —
Respondent Cortina Homeowners Association Counsel Mark Sahl

Alleged Violations

A.R.S. § 33-1804(D); A.R.S. § 33-1248(D)

Outcome Summary

The ALJ dismissed the petition because the Petitioner provided insufficient evidence that the Board authorized payments in an executive session within the statutory timeframe (one year). Furthermore, the ALJ concluded that even if such a meeting occurred, matters relating to contractor compensation are permitted in closed executive sessions under A.R.S. § 33-1804(A)(4).

Why this result: Insufficient evidence of timing; subject matter (compensation) is exempt from open meeting laws.

Key Issues & Findings

Open Meeting Violation (Vendor Compensation)

Petitioner alleged the Board authorized a $50/hour fee for a management vendor in executive session, violating open meeting statutes.

Orders: Petition dismissed; Respondent deemed prevailing party.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1804(D)
  • A.R.S. § 33-1248(D)
  • A.R.S. § 33-1804(A)(4)
  • A.R.S. § 12-541

Decision Documents

13F-H1314005-BFS Decision – 385229.pdf

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13F-H1314005-BFS Decision – 391125.pdf

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13F-H1314005-BFS Decision – 395982.pdf

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**Case Overview**
In the matter of *Alexander Winter v. Cortina Homeowners Association* (Case No. 13F-H1314005-BFS), the Arizona Office of Administrative Hearings adjudicated a dispute regarding compliance with open meeting laws. The hearing was conducted on March 6, 2014, before Administrative Law Judge (ALJ) M. Douglas.

**Key Facts and Allegations**
Petitioner Alexander Winter, a homeowner, filed a petition alleging that the Cortina Homeowners Association (Cortina) Board of Directors violated A.R.S. §§ 33-1804(D) and 33-1248(D). The core allegation was that the Board improperly authorized financial compensation increases for a vendor, Renaissance Community Partners (RCP), during a closed executive session rather than an open public meeting.

Specifically, Winter testified that the community manager informed him that the Board had authorized hourly fees—$50.00 for staff and $75.00 for the manager—to handle homeowner information requests. Winter claimed this authorization occurred during a June 2013 executive session. However, Winter admitted he was not present at the meeting, did not know if a quorum was present, and possessed no written evidence or minutes confirming the authorization occurred during the relevant timeframe.

**Legal Issues and Analysis**
The primary legal question was whether the Board was required to approve the vendor's fee increase in an open session. The ALJ analyzed the case based on the burden of proof and statutory exemptions for executive sessions.

* **Statutory Exemptions:** A.R.S. § 33-1804(A) generally requires HOA meetings to be open to members. However, A.R.S. § 33-1804(A)(4) specifically exempts matters relating to the "job performance of, compensation of… an individual employee of a contractor of the association".
* **Burden of Proof:** The Petitioner bore the burden of proving the violation by a preponderance of the evidence.

**Decision and Rationale**
The ALJ ruled in favor of the Respondent, dismissing the petition. The decision relied on two main conclusions:
1. **Lack of Evidence:** The Petitioner failed to provide sufficient evidence that the alleged executive meeting actually occurred within the one-year statute of limitations (September 2012 to September 2013). The ALJ noted that Winter relied on hearsay and lacked first-hand knowledge or documentation of the Board's actions.
2. **Legal Exemption:** The ALJ determined that even if the meeting had occurred as alleged, the subject matter—compensation for a contractor's employee—is expressly permitted to be discussed in a closed executive session under A.R.S. § 33-1804(A)(4). Therefore, the Petitioner failed to prove a violation of the open meeting statutes.

Case Participants

Petitioner Side

  • Alexander Winter (Petitioner)
    Cortina Homeowners Association (Member)
    Appeared on his own behalf

Respondent Side

  • Mark Sahl (attorney)
    Carpenter, Hazlewood, Delgado & Bolen, PLC; Shaw & Lines, LLC
    Represented Cortina Homeowners Association
  • Kevin Bishop (property manager)
    Renaissance Community Partners
    Manager mentioned in testimony regarding compensation
  • Mr. Shaw (attorney)
    Previous legal counsel for Cortina

Neutral Parties

  • M. Douglas (ALJ)
    Office of Administrative Hearings
  • Gene Palma (Agency Director)
    Department of Fire, Building and Life Safety
  • Joni Cage (Agency Staff)
    Department of Fire, Building and Life Safety
    c/o for Gene Palma
  • Cliff J. Vanell (Director)
    Office of Administrative Hearings
    Certified the decision
  • Rosella J. Rodriguez (Agency Staff)
    Office of Administrative Hearings
    Signed certification mailing

Winter, Alexander vs. Cortina Homeowners Association

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Case Summary

Case ID 13F-H1314004-BFS
Agency DFBLS
Tribunal OAH
Decision Date 2014-03-21
Administrative Law Judge M. Douglas
Outcome no
Filing Fees Refunded $550.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Alexander Winter Counsel —
Respondent Cortina Homeowners Association Counsel Mark K. Sahl

Alleged Violations

A.R.S. § 33-1805

Outcome Summary

The ALJ found that the Petitioner failed to prove by a preponderance of the evidence that the specific requested documents (Delinquency Reports, 2007-2008 budgets, specific vendor bids) existed or were withheld. Claims regarding documents addressed in a prior hearing (Docket No. 13F-H1314001-BFS) were barred by collateral estoppel.

Why this result: The Petitioner failed to meet the burden of proof regarding the existence of records, and attempted to relitigate issues decided in a prior case.

Key Issues & Findings

Failure to provide requested records (Delinquency Reports, Budgets, Contracts)

Petitioner alleged the HOA failed to provide Delinquency Reports, Operation Budgets (2007-2008), Duford Contract/Invoice, JSJ Enterprises Contract/Bid, and C&G communications bid. Petitioner also sought records (CleanCuts and RCP contracts) previously litigated.

Orders: The matter was dismissed. Respondent was deemed the prevailing party.

Filing fee: $550.00, Fee refunded: No

Disposition: petitioner_loss

Decision Documents

13F-H1314004-BFS Decision – 387230.pdf

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13F-H1314004-BFS Decision – 392642.pdf

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**Case Summary: Winter v. Cortina Homeowners Association**
**Case No.** 13F-H1314004-BFS
**Forum:** Arizona Office of Administrative Hearings
**Date of Final Action:** May 1, 2014

**Overview and Procedural History**
On August 21, 2013, Petitioner Alexander Winter filed a petition with the Arizona Department of Fire, Building and Life Safety alleging that the Respondent, Cortina Homeowners Association (HOA), violated A.R.S. § 33-1805. The Petitioner claimed the HOA failed to provide requested records within the statutory ten-day timeframe.

This hearing followed a prior administrative action between the same parties (Docket No. 13F-H1314001-BFS), which had resulted in an order requiring the HOA to provide redacted documents.

**Key Facts and Arguments**
The Petitioner sought various records, including delinquency reports, operating budgets (2007–2013), and specific contracts and invoices (Duford, JSJ Enterprises, C&G Communication, CleanCuts, and Renaissance Community Partners).

* **Petitioner’s Position:** Mr. Winter argued that the HOA failed to fulfill his requests within ten business days. He asserted that certain records, such as delinquency reports and vendor bids, "should exist" and challenged the HOA's claim that they did not possess them. He acknowledged that issues regarding CleanCuts and Renaissance Community Partners (RCP) were addressed in the prior hearing but claimed his current requests were distinct.
* **Respondent’s Defense:** The HOA argued that it had complied with the order from the previous hearing by providing approximately 3,200 pages of documents. Regarding the new allegations, the HOA testified that the specific delinquency reports, older budgets (2007–2008), and certain vendor contracts (Duford, JSJ, C&G) simply did not exist or were not in their possession. They argued that the requests regarding CleanCuts and RCP were barred by the previous litigation.

**Main Legal Issues**
1. **Existence of Records:** Whether the Petitioner could prove the existence of documents the HOA claimed it did not possess.
2. **Collateral Estoppel:** Whether the claims regarding CleanCuts and RCP contracts were precluded because they were already adjudicated in the prior administrative hearing.

**Findings and Conclusions**
The Administrative Law Judge (ALJ) ruled in favor of the Respondent on all counts:

* **Burden of Proof regarding Existence of Records:** The ALJ found the evidence insufficient to prove that the requested delinquency reports, Duford contract, JSJ contract/bid, and C&G bid actually existed. The ALJ ruled that the HOA cannot be held responsible for producing documents it does not possess and noted there was no credible evidence that the HOA withheld existing documents.
* **Collateral Estoppel:** The ALJ determined that the requests concerning CleanCuts and RCP documents were specifically addressed in the prior order (Docket No. 13F-H1314001-BFS). The ALJ applied the doctrine of collateral estoppel, which precludes relitigating facts or issues previously

Case Participants

Petitioner Side

  • Alexander Winter (Petitioner)
    Cortina Homeowners Association member
    Appeared on his own behalf

Respondent Side

  • Mark K. Sahl (Attorney)
    Carpenter, Hazlewood, Delgado & Bolen, P.L.C.
    Represented Respondent at the hearing
  • Kevin H. Bishop (Witness)
    Renaissance Community Partners (RCP)
    President of RCP; Community Manager and Statutory Agent for Cortina
  • Christopher Scott Puckett (Witness)
    Cortina Homeowners Association
    President of the Board of Directors

Neutral Parties

  • M. Douglas (Administrative Law Judge)
    Office of Administrative Hearings
    Presided over the hearing and issued the decision
  • Tammy L. Eigenheer (Administrative Law Judge)
    Office of Administrative Hearings
    Presided over the prior administrative hearing (Docket No. 13F-H1314001-BFS)
  • Gene Palma (Agency Director)
    Department of Fire, Building and Life Safety
    Recipient of the transmitted decision
  • Cliff J. Vanell (OAH Director)
    Office of Administrative Hearings
    Certified the ALJ decision
  • Joni Cage (Agency Staff)
    Department of Fire, Building and Life Safety
    Listed in mailing address for Gene Palma
  • Rosella J. Rodriguez (Clerk/Staff)
    Office of Administrative Hearings
    Signed the mailing certificate

Babington, Nancy L. vs. Park Scottsdale II Townhouse HOA

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Case Summary

Case ID 13F-H1313004-BFS
Agency Department of Fire, Building and Life Safety
Tribunal OAH
Decision Date 2014-03-11
Administrative Law Judge M. Douglas
Outcome yes
Filing Fees Refunded $550.00
Civil Penalties $200.00

Parties & Counsel

Petitioner Nancy L. Babington Counsel —
Respondent Park Scottsdale II Townhouse HOA Counsel Charlene Cruz

Alleged Violations

A.R.S. § 33-1248(B)

Outcome Summary

The ALJ ruled in favor of the Petitioner, finding that the HOA violated A.R.S. § 33-1248(B) by failing to hold annual meetings for five consecutive years. The HOA was ordered to hold a meeting, reimburse the Petitioner's filing fee, and pay a civil penalty.

Key Issues & Findings

Failure to hold annual meetings

Petitioner alleged the HOA failed to hold annual meetings or any open meetings since 2010. Respondent admitted no annual meetings were held for years 2010-2013 and 2014 failed for lack of quorum.

Orders: Respondent must schedule an annual meeting within 60 days, pay Petitioner $550.00 for filing fees, and pay the Department a $200.00 civil penalty.

Filing fee: $550.00, Fee refunded: Yes, Civil penalty: $200.00

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1248(B)

Decision Documents

13F-H1313004-BFS Decision – 386095.pdf

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13F-H1313004-BFS Decision – 391198.pdf

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**Case Summary: Babington vs. Park Scottsdale II Townhouse HOA**
**Case No:** 13F-H1313004-BFS
**Forum:** Arizona Office of Administrative Hearings
**Date of Hearing:** March 10, 2014

**Overview and Proceedings**
Petitioner Nancy L. Babington filed a petition against Respondent Park Scottsdale II Townhouse HOA ("Park"), alleging violations of state statutes regarding homeowners' association meetings. The hearing took place before Administrative Law Judge M. Douglas, with the Petitioner appearing on her own behalf and the Respondent represented by legal counsel.

**Key Arguments and Facts**
The central issue was whether Park violated A.R.S. § 33-1248(B) by failing to hold required annual meetings.

* **Petitioner’s Position:** Ms. Babington argued that the association had not held an annual meeting or board election since 2009. She testified that the current Board consisted of individuals who were either never elected or whose terms had expired, and that repeated attempts to force a meeting had been ignored.
* **Respondent’s Position:** Park admitted in its Amended Answer that it did not hold annual meetings in 2010, 2011, 2012, or 2013. A Board member testified that the Board "chose not to have annual meetings" due to the association's poor financial situation. The Respondent noted an attempt to hold a meeting in 2014 failed due to a lack of quorum and stated that the Board currently only held executive sessions.

**Legal Findings**
The Administrative Law Judge (ALJ) relied on A.R.S. § 33-1248(B), which mandates that a "meeting of the unit owners' association shall be held at least once each year" regardless of provisions in condominium documents.

The ALJ found the Petitioner met the burden of proof by a preponderance of the evidence. The tribunal concluded that Park violated A.R.S. § 33-1248(B) by failing to hold annual meetings for five consecutive years (2010 through 2014).

**Final Decision and Order**
The ALJ ruled in favor of the Petitioner and issued the following orders:
1. **Compliance:** Park was ordered to comply with A.R.S. § 33-1248(B) and schedule an annual meeting within 60 days of the order's effective date.
2. **Restitution:** Park was ordered to reimburse the Petitioner’s filing fee of $550.00 within 30 days.
3. **Civil Penalty:** Park was assessed a $200.00 civil penalty payable to the Department of Fire, Building and Life Safety.

**Certification**
Because the Department of Fire, Building and Life Safety took no action to accept, reject, or modify the decision within the statutory timeframe, the ALJ’s decision was certified as the final administrative decision on April 18, 2014.

Case Participants

Petitioner Side

  • Nancy L. Babington (petitioner)
    Park Scottsdale II Townhouse HOA (Member)
    Appeared on her own behalf

Respondent Side

  • Charlene Cruz (HOA attorney)
    Mulcahy Law Firm, P.C.
    Represented Respondent
  • Joe Silberschlag (board member)
    Park Scottsdale II Townhouse HOA
    Witness; testified he was elected to the Board in 2009
  • Beth Mulcahy (HOA attorney)
    Mulcahy Law Firm, PC
    Listed on mailing distribution

Neutral Parties

  • M. Douglas (ALJ)
    Office of Administrative Hearings
    Administrative Law Judge
  • Gene Palma (agency director)
    Department of Fire Building and Life Safety
    Director
  • Cliff J. Vanell (OAH director)
    Office of Administrative Hearings
    Signed Certification of Decision
  • Joni Cage (agency staff)
    Department of Fire Building and Life Safety
    c/o for Gene Palma
  • Rosella J. Rodriguez (OAH staff)
    Office of Administrative Hearings
    Signed mailing/transmission

Janusz, David & Loree vs. Cresta Norte HOA

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Case Summary

Case ID 13F-H1314002-BFS
Agency DFBLS
Tribunal OAH
Decision Date 2014-02-27
Administrative Law Judge M. Douglas
Outcome no
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner David & Loree Janusz Counsel —
Respondent Cresta Norte HOA Counsel Curtis S. Ekmark, Esq.; Molly J. Streiff, Esq.

Alleged Violations

Cresta Norte Guidelines Section N Miscellaneous (7)

Outcome Summary

The ALJ dismissed the petition, ruling that the HOA did not violate its CC&Rs or Design Guidelines by denying the homeowners' request to install exterior shutters. The guidelines required committee approval, which was properly denied.

Why this result: The petitioners failed to meet the burden of proof to show the HOA violated governing documents; the ALJ found the guidelines granted the HOA authority to approve or deny architectural changes.

Key Issues & Findings

Denial of architectural request for exterior shutters

Petitioners alleged the HOA violated design guidelines by denying their request to install exterior shutters. Petitioners argued the guidelines explicitly list 'shutters' as an example of exterior changes, implying they are permitted.

Orders: Petition dismissed; Cresta Norte deemed prevailing party.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • Cresta Norte Guidelines Section N Miscellaneous (7)
  • A.R.S. § 41-2198.01

Decision Documents

13F-H1314002-BFS Decision – 384508.pdf

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13F-H1314002-BFS Decision – 389432.pdf

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**Case Summary: David & Loree Janusz v. Cresta Norte HOA**
**Case No. 13F-H1314002-BFS**

**Forum and Parties**
This matter was heard before the Arizona Office of Administrative Hearings on February 18, 2014. The Petitioners, David and Loree Janusz, represent themselves against the Respondent, Cresta Norte Homeowners Association (HOA), regarding a dispute over architectural improvements.

**Background and Main Issues**
The Petitioners, homeowners in Scottsdale, Arizona, submitted an Architectural Change Request to install exterior shutters on their residence. The Cresta Norte Architectural Committee denied the request, and the HOA Board of Directors subsequently denied the Petitioners' appeal. The Petitioners filed a claim alleging the HOA violated the community’s Design Guidelines and CC&Rs by refusing the installation. The central issue was whether the guidelines, which mention shutters, mandated their approval or if the Board retained discretion to deny them based on community aesthetics.

**Hearing Proceedings and Key Arguments**
**Petitioners' Argument:**
David Janusz, a former Board President (2006–2010) and Architectural Committee chairman, testified that the guidelines were drafted to "encourage creativity and diversity". He argued that Section N Miscellaneous (7) of the guidelines specifically lists "shutters" as a type of exterior change, which he interpreted as explicit authorization for their installation. He asserted that during his tenure, the committee intended to offer shutters to allow homeowners to show individuality. He also testified that no neighbors opposed the project.

**Respondent's Argument:**
The HOA, represented by legal counsel, presented testimony from current Board members James Wooley and Brian McNamara. Mr. Wooley testified that the inclusion of the word "shutters" in the guidelines was merely an example of a potential change requiring review, not an express approval. He stated there was no intent to establish shutters as an approved feature and that the guidelines do not prohibit them but require approval. Mr. McNamara noted that no residences in Cresta Norte currently have exterior shutters and that the Board determined they were not a "desirable architectural feature" for the community.

**Legal Findings**
Administrative Law Judge M. Douglas analyzed the case under the "preponderance of the evidence" standard. The findings focused on the text of the 2011 Design Guidelines, which state: "Any change to the exterior appearance of the house (garage door, stone work, shutters, etc.) must be consistent with the design and color palette of the community. Architectural Committee written approval is

Case Participants

Petitioner Side

  • David Janusz (petitioner)
    Cresta Norte HOA (former board member)
    Appeared on own behalf; testified as witness
  • Loree Janusz (petitioner)
    Cresta Norte HOA
    Appeared on own behalf

Respondent Side

  • Curtis S. Ekmark (HOA attorney)
    Ekmark & Ekmark LLC
  • Molly J. Streiff (HOA attorney)
    Ekmark & Ekmark LLC
  • James A. Wooley (witness)
    Cresta Norte HOA Board of Directors
    Board member and Architectural Committee member
  • Brian McNamara (witness)
    Cresta Norte HOA Board of Directors
    Board member and Architectural Committee member

Neutral Parties

  • M. Douglas (ALJ)
    Office of Administrative Hearings
  • Cliff J. Vanell (Director)
    Office of Administrative Hearings
    Certified the ALJ decision
  • Gene Palma (Director)
    Department of Fire, Building and Life Safety
  • Joni Cage (agency staff)
    Department of Fire, Building and Life Safety
    Listed on mailing certificate c/o Gene Palma
  • Rosella J. Rodriguez (administrative staff)
    Office of Administrative Hearings
    Signed mailing certificate

Nelson, Paula J. vs. Landings Homeowners Association

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Case Summary

Case ID 13F-H1314003-BFS
Agency Department of Fire, Building and Life Safety
Tribunal OAH
Decision Date 2014-02-14
Administrative Law Judge M. Douglas
Outcome no
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Paula J. Nelson Counsel —
Respondent Landings Homeowners Association Counsel Mark Saul

Alleged Violations

A.R.S. § 33-1805(A)

Outcome Summary

The Administrative Law Judge ruled in favor of the Respondent, Landings Homeowners Association. The Judge found that the Association made its records reasonably available for examination and was not required to produce documents (specifically roofing binders and photos) that it did not possess or that were privileged. The Petition was dismissed.

Why this result: The Petitioner failed to prove by a preponderance of the evidence that the Association violated A.R.S. § 33-1805(A). The evidence showed the Association made available the records it possessed, and the specific missing records (roofing binders created by a third party) were not proven to be in the Association's possession.

Key Issues & Findings

Failure to provide records

Petitioner alleged the Association failed to provide specific records, including roofing binders, photographs, and individual roof assessments, within the statutory timeframe. The Association argued it made records reasonably available and could not produce documents it did not possess.

Orders: The Petition is dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Decision Documents

13F-H1314003-BFS Decision – 382722.pdf

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13F-H1314003-BFS Decision – 388443.pdf

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**Case Summary: Nelson v. Landings Homeowners Association**
**Case No.** 13F-H1314003-BFS
**Forum:** Office of Administrative Hearings, Arizona
**Hearing Date:** January 31, 2014
**Decision Date:** February 14, 2014 (Certified Final March 31, 2014)

**Parties and Procedures**
Petitioner Paula J. Nelson filed a petition with the Department of Fire, Building and Life Safety against Respondent Landings Homeowners Association ("Landings"). The hearing was presided over by Administrative Law Judge M. Douglas,.

**Main Issue**
The central legal issue was whether Landings violated A.R.S. § 33-1805(A) by failing to provide Nelson with copies of requested association records—specifically roofing assessments and photographs—within ten business days of her request.

**Key Facts and Arguments**
* **Petitioner’s Claims:** Nelson submitted records requests beginning April 12, 2013, demanding the Association email her copies of specific documents. She alleged the Association withheld specific "binders" created by a former representative, Mr. Minor, which she believed contained comprehensive individual roof assessments and photographs,. Nelson admitted she refused to view the binders held by the Association’s attorney because she believed they were not the specific records she sought,.
* **Respondent’s Defense:** Landings argued it satisfied the statute by making records "reasonably available for inspection" at the management company’s office. The Association contended that A.R.S. § 33-1805(A) does not require emailing documents or providing them in a specific format chosen by the member. Regarding the "Minor binders," the Association maintained it could not produce records it did not possess.
* **Witness Testimony:**
* **Robyn McRae** testified she accompanied Nelson to the management office, noting some documents were missing or unavailable at that time,.
* **Robert Timmons** (contractor) testified regarding the roofing project. He stated he did not know if the specific photographs or records Nelson sought were ever in the Association's possession,.
* **Paula Nelson** acknowledged she did not schedule an appointment to review the binders offered by the Association's attorney.

**Legal Standards**
* **A.R.S. § 33-1805(A):** Requires associations to make financial and other records "reasonably available for examination" by a member within ten business days. It further allows associations to charge for copies.
* **Burden of Proof:** The burden falls on the Petitioner to prove the violation by a preponderance of the evidence.

**Findings and Conclusions**
The Administrative Law Judge (ALJ) reached the following conclusions:
1. **Possession of Records:** There was no credible evidence that Landings possessed the specific binders created by Mr. Minor that Nelson requested, other than the materials already offered for her review. The fact that the Association paid for the creation of such binders did not prove they were delivered or currently possessed in the format Nelson alleged.
2. **Compliance:** Landings complied with the request in a "reasonable manner" by attempting to schedule inspections and offering review of materials at the attorney's office.
3. **Privilege:** The Association was not required to disclose privileged communications between itself and its attorney.

**Outcome**
The ALJ determined that Nelson failed to satisfy her burden of proof. Landings was deemed the prevailing party, and the petition was dismissed. The decision became the final administrative decision of the Department of Fire, Building and Life Safety on March 31, 2014, after the Department took no action to modify or reject it within the statutory timeframe.

Case Participants

Petitioner Side

  • Paula J. Nelson (Petitioner)
    Landings Homeowners Association (Member)
    Appeared on her own behalf
  • Robyn McRae (Witness)
    Drove Petitioner to management company; testified regarding document availability
  • Robert William Timmons (Witness)
    Sprayfoam Southwest Inc.
    Subpoenaed by Petitioner; representative for roofing contractor

Respondent Side

  • Mark K. Sahl (HOA Attorney)
    Carpenter, Hazelwood, Delgado & Bolen, PLC
    Listed as 'Mark Saul' in ALJ Decision appearances; 'Mark K. Sahl' in certification mailing list
  • Jo Seashols (Community Manager)
    Landings Homeowners Association (Management Company)
  • Renee (Employee)
    Management Company
    Mentioned by management staff as having possession of photographs
  • Tom Minor (Former Representative)
    Landings Homeowners Association
    Former board member/representative on construction project

Neutral Parties

  • M. Douglas (ALJ)
    Office of Administrative Hearings
    Administrative Law Judge
  • Cliff J. Vanell (Director)
    Office of Administrative Hearings
    Certified the ALJ decision
  • Gene Palma (Director)
    Department of Fire, Building and Life Safety
    Recipient of decision
  • Joni Cage (Agency Staff)
    Department of Fire, Building and Life Safety
    c/o for Gene Palma
  • Rosella J. Rodriguez (Clerk)
    Office of Administrative Hearings
    Mailed/processed the certification

Park, Denise vs. Montezuma Fairway Villas Homeowners Association

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Case Summary

Case ID 12F-H1213010-BFS-rhg
Agency DFBLS
Tribunal OAH
Decision Date 2014-01-17
Administrative Law Judge M. Douglas
Outcome partial
Filing Fees Refunded $2,000.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Denise Park Counsel J. Roger Wood
Respondent Montezuma Fairway Villas Homeowners Association Counsel Jonathon V. O’Steen

Alleged Violations

A.R.S. § 33-1247
A.R.S. § 33-1248
A.R.S. § 33-1250
A.R.S. § 33-1258

Outcome Summary

The Director accepted the ALJ's recommendation on rehearing. The Petitioner prevailed on claims regarding maintenance of common areas (weeds, wall) and failure to hold elections. The HOA was ordered to comply with statutes and prove weed control. Claims regarding open meetings were dismissed because the Petitioner failed to attend. Claims regarding financial records were dismissed due to the expiration of the one-year statute of limitations. The Respondent was ordered to reimburse half ($1,000) of the filing fee directly to the Petitioner.

Key Issues & Findings

Maintenance of common elements

Petitioner alleged the HOA failed to maintain common areas, citing overflowing trash, weeds, and a broken wall. The ALJ found the evidence established these failures.

Orders: Respondent ordered to comply with statute and provide proof that weeds in common areas have been eliminated or properly controlled.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1247

Open meetings

Petitioner alleged the HOA failed to conduct open meetings. The HOA proved notice was mailed for the May 24, 2012 meeting.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_lose

Cited:

  • A.R.S. § 33-1248

Voting and proxies

Petitioner alleged the HOA failed to hold proper elections. The HOA admitted no election was held at the annual meeting because only three members attended.

Orders: Respondent ordered to comply with A.R.S. § 33-1250 in the future.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1250

Association financial and other records

Petitioner requested financial records in August 2011 which were not provided until Jan/Feb 2012 (late).

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_lose

Cited:

  • A.R.S. § 33-1258
  • A.R.S. § 12-541(5)

Decision Documents

12F-H1213010-BFS-rhg Decision – 370568.pdf

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12F-H1213010-BFS-rhg Decision – 376532.pdf

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**Case Summary: Park v. Montezuma Fairway Villas Homeowners Association**
**Case No.** 12F-H1213010-BFS-rhg
**Nature of Proceeding:** Administrative Rehearing

**Overview**
This summary addresses the **rehearing** of a dispute between Denise Park (Petitioner), a condominium owner, and the Montezuma Fairway Villas Homeowners Association (Respondent). While an original decision was issued in March 2013 finding the Respondent liable for three violations, the rehearing in November 2013 and subsequent Final Order modified these findings based on a statute of limitations defense,.

**Procedural History and Original Decision**
Petitioner originally alleged four statutory violations: failure to maintain common areas, failure to conduct open meetings, failure to hold elections, and failure to provide financial information.
* **Original Outcome:** In the March 28, 2013 decision, the Administrative Law Judge (ALJ) ruled in favor of the Petitioner on three counts (maintenance, elections, and financial records) and ordered the Respondent to reimburse $1,500 of the filing fee.

**Rehearing Proceedings and Legal Analysis**
The rehearing was conducted on November 20, 2013. The ALJ re-evaluated the evidence and new legal arguments regarding the four alleged violations,.

**1. Maintenance of Common Areas (A.R.S. § 33-1247)**
* **Issue:** Petitioner alleged the HOA failed to repair a broken wall, control weeds, and provide adequate trash services,.
* **Argument:** Respondent argued that maintenance was deferred because Petitioner and others failed to pay dues,.
* **Ruling:** **Violation Affirmed.** Evidence established the common areas were not maintained (broken wall, weeds, peeling paint). Although the Respondent performed repairs *after* the original hearing, the ALJ ruled that post-hearing remedial actions did not alter the fact that the violation existed at the time of the petition,.

**2. Open Meetings (A.R.S. § 33-1248)**
* **Issue:** Petitioner claimed she did not receive notice of the annual meeting.
* **Ruling:** **Violation Not Found.** The ALJ found that the Respondent mailed the notice in accordance with the statute. The Petitioner’s failure to attend or receive the notice did not constitute a violation by the HOA,. This upheld the original finding.

**3. Elections (A.R.S. § 33-1250)**
* **Issue:** The HOA failed to hold elections for officers.
* **Argument:** Respondent argued no election was required because only three members attended the meeting, and all agreed to continue in their current officer roles,.
* **Ruling:** **Violation Affirmed.** The ALJ ruled that the HOA failed to hold proper elections as required by state statute and the Association's Bylaws.

**4. Financial Records (A.R.S. § 3

Case Participants

Petitioner Side

  • Denise Park (Petitioner)
    Owner of three condominium units
  • Kevin R. Harper (Attorney)
    Harper Law, PLC
    Receiving mail for Petitioner in Final Order; listed as Respondent's attorney in initial hearing decision text
  • J. Roger Wood (Attorney)
    J. Roger Wood PLLC
    Represented Petitioner in rehearing

Respondent Side

  • Carol Ann Klagge (Treasurer)
    Montezuma Fairway Villas Homeowners Association
    Board member; witness
  • Jay Klagge (Secretary)
    Montezuma Fairway Villas Homeowners Association
    Board member
  • Tony Sturgeon (Vice President)
    Montezuma Fairway Villas Homeowners Association
    Board member
  • Helen Bartels (Board Member)
    Montezuma Fairway Villas Homeowners Association
    Witness; became board member after March 28, 2013
  • Jonathon V. O’Steen (Attorney)
    O’Steen & Harrison, PLC
    Represented Respondent in rehearing and final order; listed as Petitioner's attorney in initial hearing decision text

Neutral Parties

  • M. Douglas (ALJ)
    Office of Administrative Hearings
  • Gene Palma (Director)
    Department of Fire, Building and Life Safety
  • Joni Cage (Complaint Program Manager)
    Department of Fire, Building and Life Safety

Winter, Alexander vs. Cortina Homeowners Association

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Case Summary

Case ID 13F-H1314001-BFS
Agency DFBLS
Tribunal OAH
Decision Date 2013-12-12
Administrative Law Judge Tammy L. Eigenheer
Outcome yes
Filing Fees Refunded $550.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Alexander Winter Counsel —
Respondent Cortina Homeowners Association Counsel Augustus H. Shaw, IV

Alleged Violations

A.R.S. § 33-1805

Outcome Summary

Petitioner established that Respondent violated A.R.S. § 33-1805 by failing to provide redacted invoices and failing to make contracts available for review within 10 business days. Respondent was ordered to comply and refund the filing fee.

Key Issues & Findings

Failure to provide records

Petitioner alleged Respondent failed to provide requested invoices and contracts within 10 business days. Respondent claimed invoices contained personal info and contracts contained trade secrets.

Orders: Respondent ordered to provide copies of documents (redacted as provided in statute) within 10 days and refund $550 filing fee.

Filing fee: $550.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1805
  • A.R.S. § 44-401

Decision Documents

13F-H1314001-BFS Decision – 374343.pdf

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13F-H1314001-BFS Decision – 378997.pdf

Uploaded 2026-01-25T15:29:01 (59.2 KB)

**Case Summary: 13F-H1314001-BFS**

**Case Title:** *Alexander Winter v. Cortina Homeowners Association*
**Forum:** Office of Administrative Hearings, State of Arizona
**Decision Date:** December 12, 2013 (Certified Final on January 17, 2014)

**Proceedings**
On November 22, 2013, Administrative Law Judge Tammy L. Eigenheer presided over a hearing regarding a dispute between homeowner Alexander Winter (Petitioner) and the Cortina Homeowners Association (Respondent). The Petitioner alleged the Respondent violated A.R.S. § 33-1805 by failing to provide access to requested Association records within the statutory timeframe.

**Key Facts**
* On June 12, 2013, the Petitioner submitted a written request to inspect and copy various records, including budgets, general ledgers, and specific vendor contracts and invoices ("Clean Cuts" and "Renaissance Community Partners").
* On June 21, 2013, the Respondent’s manager, Kevin Bishop, replied via email. He agreed to provide some documents but refused to provide copies of Renaissance invoices, claiming they contained protected financial information of individual members.
* Regarding the contracts, Bishop stated they were viewable for inspection only (no copies) but deferred the inspection until after his return from vacation on July 7, 2013—a date beyond the statutory 10-business-day requirement.
* The Petitioner filed a complaint with the Department of Fire, Building and Life Safety on July 3, 2013, after being unable to access the records.

**Key Arguments**
* **Petitioner:** Argued he was entitled to the records to understand the Association's financial standing. He contended that if invoices contained personal data, he should have received redacted copies rather than a total denial. He further argued he was denied the opportunity to view contracts within the required 10 business days.
* **Respondent:** Argued that the Renaissance invoices contained detailed assessments and late fees related to individual members, making them protected under A.R.S. § 33-1805(B)(4). The Respondent also claimed vendor contracts contained "trade secrets" and that their policy was to allow inspection but not copying.

**Legal Analysis and Findings**
The Administrative Law Judge ruled in favor of the Petitioner, establishing a violation of A.R.S. § 33-1805 based on the following:

1. **Withheld Invoices:** The ALJ acknowledged that A.R.S. § 33-1805(B)(4) protects personal member financial records. However, the Respondent had a statutory obligation to provide *redacted* copies of the invoices rather than withholding the documents entirely.
2. **Delayed Inspection:** Although the Petitioner initially acknowledged that contracts were for inspection only, the Respondent failed to make them available within the statutory 10-business-day window. The manager's vacation caused a delay of 18 business days, constituting a violation of A.R.S. § 33-1805(A).
3. **Available Documents:** For other documents that were copied and made available but not picked up by the Petitioner, no violation was found.

**Outcome and Order**
* The Petition was granted.
* **Order:** The Respondent was ordered to comply with A.R.S. § 33-1805 by providing the Petitioner with copies of the requested documents (appropriately redacted) within ten days.
* **Costs:** The Respondent was

Case Participants

Petitioner Side

  • Alexander Winter (Petitioner)
    Homeowner; owns a landscaping management company

Respondent Side

  • Augustus H. Shaw, IV (HOA attorney)
    Shaw & Lines, LLC
    Represented Cortina Homeowners Association
  • Kevin Bishop (property manager)
    Renaissance Community Partners
    Statutory agent and Manager for Respondent; provided testimony

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
    Office of Administrative Hearings
    Presiding Administrative Law Judge
  • Gene Palma (Director)
    Department of Fire, Building and Life Safety
    Agency Director listed on distribution
  • Cliff J. Vanell (Director)
    Office of Administrative Hearings
    Certified the ALJ decision
  • Joni Cage (Agency Staff)
    Department of Fire, Building and Life Safety
    Listed on distribution for Gene Palma
  • Rosella J. Rodriguez (Clerk)
    Office of Administrative Hearings
    Signed mailing certification

The Center Court Condominiums Association vs. Klissas, Katrina

Posted on by

Case Summary

Case ID 13F-H1313005-BFS
Agency Department of Fire, Building and Life Safety
Tribunal Office of Administrative Hearings
Decision Date 2013-11-13
Administrative Law Judge M. Douglas
Outcome no
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner The Center Court Condominiums Association Counsel Erin McManis
Respondent Katrina Klissas Counsel James B. Rolle III

Alleged Violations

Rule L-9; CC&R Section 9.09
Rule L-8

Outcome Summary

The HOA's petition was dismissed in its entirety. The Tribunal found the balcony board did not constitute a prohibited enclosure and that the HOA was barred by laches from enforcing the rule after a delay of over 10 years. Regarding wind chimes, the HOA failed to prove the homeowner exceeded the permitted number. The homeowner was deemed the prevailing party.

Why this result: The HOA failed to meet the burden of proof for the wind chimes violation and was barred by laches regarding the balcony board due to inexcusable delay.

Key Issues & Findings

Alleged unauthorized balcony enclosure

Petitioner alleged Respondent maintained an unauthorized enclosure on her balcony. Respondent argued the board was for privacy and existed since 1998.

Orders: Dismissed due to insufficient evidence that the board constituted an enclosure and the doctrine of laches barring the claim due to unreasonable delay.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Excessive wind chimes

Petitioner alleged Respondent had more than the allowed four wind chimes. Respondent testified she had four chimes and the rest were wind spinners.

Orders: Dismissed due to lack of credible evidence that Respondent exceeded the limit of four wind chimes.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Decision Documents

13F-H1313005-BFS Decision – 369209.pdf

Uploaded 2026-01-25T15:28:56 (87.6 KB)

13F-H1313005-BFS Decision – 376768.pdf

Uploaded 2026-01-25T15:28:56 (60.4 KB)

**Case Title:** *The Center Court Condominiums Association v. Katrina Klissas*
**Case Number:** 13F-H1313005-BFS
**Forum:** Arizona Office of Administrative Hearings
**Date of Final Decision:** January 3, 2014

**Overview**
This administrative hearing addressed a petition filed by The Center Court Condominiums Association (Petitioner) against homeowner Katrina Klissas (Respondent). The Petitioner alleged violations of the community's Rules and Regulations regarding balcony enclosures and the number of wind chimes allowed on the property.

**Key Facts and Arguments**
* **Balcony Enclosure Allegation:** The Petitioner alleged Ms. Klissas maintained an unauthorized balcony enclosure in violation of Rule L-9 and CC&R Section 9.09. Evidence established that a prior owner installed a 3’ by 5’ wooden board across the balcony railing in 1998 for privacy. The Petitioner was aware of the board as early as 2001 and had even painted it to match the building's trim in 2004.
* **Wind Chimes Allegation:** The Petitioner alleged Ms. Klissas possessed more than the permitted four wind chimes (Rule L-8). A neighbor testified the noise was a nuisance. However, the Respondent testified she had exactly four chimes and that other hanging items were silent "wind spinners".

**Legal Findings and Decision**
Administrative Law Judge (ALJ) M. Douglas ruled in favor of the Respondent, dismissing the case based on the following legal conclusions:

1. **Insufficient Evidence of Enclosure:** The ALJ determined the Petitioner failed to meet the burden of proof to establish that the wooden board constituted a balcony "enclosure".
2. **Doctrine of Laches:** The ALJ applied the doctrine of laches, which bars claims when an inexcusable delay results in prejudice against a party. Because the Petitioner waited over a decade (since 1998/2001) to enforce the removal of the board, the delay was deemed unreasonable and prejudicial to Ms. Klissas.
3. **Compliance with Chime Rules:** The Petitioner failed to provide credible proof that Ms. Klissas had more than four wind chimes or that a formal noise complaint had been filed regarding them. Consequently, no violation of Rule L-8 was found.

**Outcome**
The ALJ ordered the matter dismissed and deemed Ms. Klissas the prevailing party. The decision was certified as the final administrative decision of the Department of Fire, Building and Life Safety on January 3, 2014, after the Department took no action to reject or modify the ALJ's ruling within the statutory timeframe.

Case Participants

Petitioner Side

  • Erin McManis (HOA Attorney)
    Mulcahy Law Firm P.C.
  • Timothy Bartlett (Board President)
    The Center Court Condominiums Association
    Testified regarding ongoing dispute and letters since 2001
  • John Foster Flynn (Witness)
    Neighbor/Homeowner
    Complained about wind chimes; owns unit above Respondent

Respondent Side

  • Katrina Klissas (Respondent)
    Homeowner
    Accused of violating balcony rules (enclosure and wind chimes)
  • James B. Rolle III (Respondent Attorney)
    Law Offices of James B. Rolle
  • Mike Weber (Witness)
    Respondent's husband
    Testified regarding privacy board installation history
  • Roberta Piatt (Witness)
    Former Owner
    Installed the balcony board in 1998

Neutral Parties

  • M. Douglas (ALJ)
    Office of Administrative Hearings
    Administrative Law Judge
  • Gene Palma (Director)
    Department of Fire, Building and Life Safety
    Agency Director receiving the decision
  • Cliff J. Vanell (Director)
    Office of Administrative Hearings
    Certified the ALJ decision
  • Joni Cage (Agency Staff)
    Department of Fire, Building and Life Safety
    Listed on service list
  • Rosella J. Rodriguez (Clerk)
    Office of Administrative Hearings
    Signed certification mailing