Case Summary
| Case ID | 17F-H1716016-REL |
|---|---|
| Agency | ADRE |
| Tribunal | OAH |
| Decision Date | 2017-02-21 |
| Administrative Law Judge | Suzanne Marwil |
| Outcome | none |
| Filing Fees Refunded | $500.00 |
| Civil Penalties | $0.00 |
Parties & Counsel
| Petitioner | John Sellers | Counsel | — |
|---|---|---|---|
| Respondent | Grayhawk Community Association | Counsel | Curtis Ekmark, Esq. |
Alleged Violations
A.R.S. § 33-1805(A)
Outcome Summary
The Petitioner's petition was denied. The Administrative Law Judge concluded that Petitioner failed to meet the burden of proof showing Respondent restricted electronic access to the bank account, and the issue was moot since the bank closed the account. Respondent complied with the statutory requirement to make records reasonably available.
Why this result: Petitioner failed to meet the burden of proof; lack of evidence that Respondent restricted access; issue was moot due to account closure; Respondent complied with A.R.S. § 33-1805(A) by offering paper copies of documents.
Key Issues & Findings
Wrongful denial of electronic access to the bank account's electronic information
Petitioner alleged Respondent unilaterally restricted his access to online, view-only bank account information and refused to restore access by November 25, 2016, in violation of A.R.S. § 33-1805(A).
Orders: Petition denied.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
- A.R.S. § 33-1805(A)
- A.R.S. § 32-2199 et seq.
- A.R.S. §§ 32-2199.01(D)
- 32-2199.02
- A.A.C. R2-19-119(B)
- A.A.C. R2-19-119(A)
Analytics Highlights
- A.R.S. § 33-1805(A)
- A.R.S. § 32-2199 et seq.
- A.R.S. §§ 32-2199.01(D)
- 32-2199.02
- A.A.C. R2-19-119(B)
- A.A.C. R2-19-119(A)
Audio Overview
Decision Documents
17F-H1716016-REL Decision – 546761.pdf
17F-H1716016-REL Decision – 552261.pdf
Administrative Hearing Briefing: Sellers vs. Grayhawk Community Association
Executive Summary
This document synthesizes the findings and rulings in the administrative case of John Sellers (Petitioner) versus the Grayhawk Community Association (Respondent), adjudicated by the Arizona Office of Administrative Hearings and finalized by the Department of Real Estate. The core of the dispute was the Petitioner’s claim that the Respondent unlawfully restricted his electronic, view-only access to a bank account in violation of Arizona Revised Statutes (A.R.S.) § 33-1805(A).
The Administrative Law Judge (ALJ) denied the petition, concluding that the Petitioner failed to meet his burden of proof. The evidence showed the Respondent initially provided the requested electronic access, which the Petitioner successfully used before changing the password. The Petitioner offered no evidence that the Respondent subsequently interfered with or restricted this access. Furthermore, the issue was rendered moot when the bank in question closed the account. The ALJ affirmed that the Respondent’s offer to provide paper records satisfied the statutory requirement to make records “reasonably available.” This decision was subsequently adopted as a Final Order by the Commissioner of the Department of Real Estate.
Case Overview
Details
Case Name
John Sellers, Petitioner, vs. Grayhawk Community Association, Respondent.
Case Numbers
Docket No. 17F-H1716016-REL; Case No. HO 17-16/016
Adjudicating Body
Arizona Office of Administrative Hearings
Administrative Law Judge
Suzanne Marwil
Hearing Date
February 16, 2017
ALJ Decision Date
February 21, 2017
Final Order Date
March 3, 2017
Final Order Issued By
Judy Lowe, Commissioner, Department of Real Estate
The Core Dispute
Petitioner’s Position
John Sellers alleged that after he requested and received view-only access to the Association’s Alliance Association Bank account, the Respondent unilaterally restricted that access. He claimed the Respondent’s failure to restore access by his deadline of the close of business on November 25, 2016, constituted a violation of A.R.S. § 33-1805(A), which governs a member’s right to examine association records. The petition, for which a $500 fee was paid, was specifically focused on this single issue.
Respondent’s Position
The Grayhawk Community Association argued that it had gone beyond its statutory obligations by arranging for the bank to create a new online password specifically for the Petitioner. They maintained that after providing this access, they did not interfere with or restrict it in any way. They contended that the Petitioner’s subsequent inability to access the account was due to unknown reasons. The Respondent noted that the bank closed the account on November 28, 2016, making any form of electronic access permanently unavailable and rendering the issue moot. They also offered to provide paper copies of the relevant bank records.
Chronology of Key Events
• October 18, 2016: Petitioner John Sellers requests, among other items, an electronic, read-only password for the Respondent’s Alliance Association Bank account.
• November 2, 2016: The Respondent notifies the Petitioner that such a password did not exist at the time of the request.
• November 16, 2016: After requesting the bank create a password, the Respondent forwards the new login information to the Petitioner.
• Post-November 16, 2016: The Petitioner successfully logs into the bank account using the provided information and changes the password.
• Thanksgiving Day (November 24, 2016): The Petitioner attempts to log in again but “could not see anything.” Based on the assumption that the Respondent had restricted his access, he emails community manager Michael Fee.
• Thanksgiving Day Demand: In his email, the Petitioner sets a deadline for the Respondent to restore his access by the end of the business day on Friday, November 25, 2016, threatening to file a petition if the deadline is not met. Mr. Fee replies that he will contact the bank.
• November 28, 2016: Having not heard further from the Respondent, the Petitioner files the petition in this matter.
• November 28, 2016: On the same day, the Respondent informs the Petitioner that they do not know the reason for the lack of access and denies that anyone affiliated with the association interfered. It is also on this date that Alliance Association Bank closes the account in question.
Analysis of the Administrative Law Judge’s Decision
The ALJ’s decision was based on a hearing held on February 16, 2017. The ruling systematically dismantled the Petitioner’s case based on the evidence presented.
Burden and Standard of Proof
• Pursuant to Arizona Administrative Code (A.A.C.) R2-19-119(B), the Petitioner held the burden of proof.
• The required standard of proof was a preponderance of the evidence, meaning the Petitioner had to show it was more likely than not that his claim was true.
Key Findings of Fact
1. Access Was Provided: It was undisputed that the Respondent provided the Petitioner with login information and that this information initially worked, enabling him to access the account.
2. Petitioner Changed Password: After gaining access, the Petitioner changed the password.
3. No Evidence of Interference: The Petitioner offered “no evidence that Respondent took any action to deny Petitioner online access.” His belief that access was restricted was a “unilateral assumption.” The record did not establish why the new password failed to work on Thanksgiving Day.
4. Issue Rendered Moot: The undisputed closure of the bank account by the bank on November 28, 2016, made the request for electronic access moot, as such access was no longer available to anyone.
Key Conclusions of Law
1. Failure to Meet Burden of Proof: The ALJ concluded that the “Petitioner has failed to meet his burden of proof.” The record was “devoid of any evidence” that the Respondent denied the requested information or took any action to restrict access.
2. Compliance with A.R.S. § 33-1805(A): The statute requires that association records “be made reasonably available for examination.” The ALJ found that the Respondent complied with the statute by initially providing electronic access and later offering to “furnish the Petitioner paper copies of documents it possessed related to that bank account.”
3. Electronic vs. Paper Access: The Petitioner’s argument that paper access is inferior to electronic access was dismissed as a “policy argument that should be addressed to the Legislature.” The plain language of the existing statute does not mandate a specific format for record examination.
Final Order and Outcome
On March 3, 2017, the Commissioner of the Department of Real Estate issued a Final Order, which fully adopted the ALJ’s decision.
• Petition Denied: The Commissioner accepted the ALJ’s decision that the petition be denied.
• Future Compliance Directive: The order stated, “The Commissioner accepts the Recommended Order that Respondent shall comply with the applicable provisions of Arizona Revised Statutes (‘A.R.S.’) § 33-1804 (A) in the future.”
• Binding Decision: The order became a final administrative action, effective immediately and binding on the parties.
• Rehearing and Appeal Process: Parties were notified that a motion for rehearing or review could be filed within 30 days. A request for rehearing should be addressed to Abby Hansen, 2910 N. 44th Street, Suite 100, Phoenix, Arizona, 85018. The order could also be appealed via a complaint for judicial review.