Case Summary
| Case ID | 17F-H1716005-REL |
|---|---|
| Agency | ADRE |
| Tribunal | OAH |
| Decision Date | 2017-07-10 |
| Administrative Law Judge | Velva Moses-Thompson |
| Outcome | full |
| Filing Fees Refunded | $500.00 |
| Civil Penalties | $0.00 |
Parties & Counsel
| Petitioner | William M. Brown | Counsel | — |
|---|---|---|---|
| Respondent | Terravita Country Club, Inc. | Counsel | Joshua Bolen |
Alleged Violations
A.R.S. § 33-1805
Outcome Summary
The Petitioner was deemed the prevailing party after the Tribunal concluded that the Respondent, Terravita Country Club, Inc., violated A.R.S. § 33-1805 by failing to timely provide access to records within the mandated 10 business days. The Respondent was ordered to comply with the statute and refund the Petitioner's $500.00 filing fee. No civil penalty was imposed.
Key Issues & Findings
Failure to timely respond to records request
Petitioner alleged Respondent failed to timely respond to his July 30, 2016 records request, pursuant to A.R.S. § 33-1805(A). The Tribunal found that Petitioner established by a preponderance of the evidence that Respondent failed to fulfill the request for examination of records within 10 business days, violating A.R.S. § 33-1805.
Orders: Respondent is ordered to comply with A.R.S. § 33-1805 regarding Petitioner’s request for records within 10 days of the Order. Respondent is ordered to pay Petitioner his filing fee of $500.00 within thirty (30) days.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
- A.R.S. § 33-1805
- A.R.S. § 33-1805(A)
Analytics Highlights
- A.R.S. § 33-1805
- A.R.S. § 41-2198.01
- A.R.S. § 41-1092.01
Audio Overview
Decision Documents
17F-H1716005-REL Decision – 574630.pdf
17F-H1716005-REL Decision – 575115.pdf
Briefing Document: Brown v. Terravita Country Club, Inc.
Executive Summary
This document summarizes the administrative hearing and final order in the case of William M. Brown (Petitioner) versus Terravita Country Club, Inc. (Respondent), Case No. 17F-H1716005-REL. The central issue was Terravita’s failure to respond to a member’s request for records within the 10-business-day timeframe mandated by Arizona Revised Statutes (A.R.S.) § 33-1805.
The Administrative Law Judge (ALJ) found the Petitioner’s testimony and evidence to be credible, establishing that Mr. Brown submitted a valid records request via e-mail on July 30, 2016, to which Terravita did not timely respond. The ALJ found the testimony of Terravita’s key witness to be unreliable and rejected Terravita’s defenses, which included claims of non-receipt, improper submission procedure, and falsified evidence.
Ultimately, the ALJ ruled in favor of the Petitioner, concluding that Terravita violated A.R.S. § 33-1805. The recommended order, which was subsequently adopted as a Final Order by the Commissioner of the Department of Real Estate, mandated that Terravita comply with the records request, reimburse the Petitioner’s $500 filing fee, and deemed the Petitioner the prevailing party. No civil penalty was assessed.
Case Overview
Case Detail
Information
Case Number
17F-H1716005-REL (OAH) / HO 17-16/005 (DRE)
Petitioner
William M. Brown (Appeared on behalf of himself)
Respondent
Terravita Country Club, Inc. (Represented by Joshua Bolen, Esq.)
Adjudicating Body
Arizona Office of Administrative Hearings
Adopting Authority
Arizona Department of Real Estate
Administrative Law Judge
Velva Moses-Thompson
Commissioner
Judy Lowe
Hearing Date
June 19, 2017
ALJ Decision Date
July 10, 2017
Final Order Date
July 11, 2017
Chronology of Events
• February 12, 2016: Anita Bell requests records from Terravita via Mr. Brown’s e-mail account. The request is forwarded to General Manager Tom Forbes.
• February 19, 2016: Mr. Forbes informs Ms. Bell that the records will be ready on February 22.
• March 14, 2016: Ms. Bell submits another records request from Mr. Brown’s e-mail account.
• March 18, 2016: Cici Rausch, Terravita’s Director of Administration, informs Ms. Bell when the records can be retrieved.
• July 29, 2016: Date of the records request at the center of the legal dispute.
• July 30, 2016: Mr. Brown e-mails the records request to Terravita’s Secretary, Fran Wiley. On the same day, he separately requests records from the Terravita Community Association, Inc. (TCA).
• August 6, 2016: Mr. Brown sends another records request to Ms. Wiley.
• August 8, 2016: TCA responds to Mr. Brown’s July 30 request.
• August 12, 2016: Terravita responds to Mr. Brown’s August 6 request.
• August 18, 2016: Mr. Brown files a Petition for Hearing with the Arizona Department of Real Estate, alleging Terravita’s failure to timely respond to his July 30 request.
• September 9, 2016: Terravita files a response, alleging it did not receive the July 30 records request.
• June 19, 2017: The administrative hearing is held.
• July 10, 2017: The ALJ issues a decision finding in favor of Mr. Brown.
• July 11, 2017: The Commissioner of the Department of Real Estate accepts the ALJ’s decision and issues a Final Order.
Analysis of the Central Dispute
The core of the case revolved around whether Terravita violated its statutory duty to respond to Mr. Brown’s records request dated July 29, 2016, which he e-mailed on July 30, 2016.
Petitioner’s Position and Evidence
• Core Allegation: Mr. Brown testified that he sent the records request via e-mail to Terravita’s Secretary, Fran Wiley, on July 30, 2016, and that Terravita failed to respond within the 10-business-day period mandated by law.
• Evidence: Mr. Brown submitted an August 12, 2016 forwarded e-mail (Exhibit P2) that contained the original July 30, 2016 e-mail sent to Ms. Wiley.
• Judicial Finding: The ALJ found Mr. Brown’s testimony to be “credible.”
Respondent’s Defenses and the Court’s Findings
Terravita presented several arguments to contest the allegation, all of which were ultimately unpersuasive to the court.
1. Claim of Non-Receipt: Terravita contended it never received the July 30, 2016 request. Ms. Wiley testified she did not receive a request from Mr. Brown on July 29 or July 30.
◦ Court’s Finding: The ALJ found Ms. Wiley’s testimony to be “unreliable.” The decision noted that Ms. Wiley testified that Terravita was “indirectly” informed around August 5 that “perhaps Mr. Brown had made the request,” which undermined the claim of complete non-awareness.
2. Use of an Incorrect E-mail Address: Ms. Wiley testified that she did not use the e-mail address to which Mr. Brown sent the request for Terravita affairs, claiming she used a different one in her official capacity as Secretary.
◦ Court’s Finding: This argument was implicitly rejected, as the ALJ concluded that Mr. Brown had successfully proven he submitted the request “to its Secretary, Ms. Wiley.”
3. Allegation of Falsified Evidence: Terravita contended that the forwarded e-mail evidence offered by Mr. Brown was falsified.
◦ Court’s Finding: The ALJ noted an inconsistency in Terravita’s position, stating, “Terravita did not contend that the written evidence of Mr. Brown’s August 5, 2016 records request, sent by e-mail to Ms. Wiley, was falsified.” This weakened the credibility of the falsification claim against the July 30 e-mail.
4. Non-Compliance with Internal Policy: Terravita argued that its own Rules, Policies, and Procedures required members to submit records requests to the General Manager and/or Director of Administration, not the Secretary.
◦ Court’s Finding: The decision focused entirely on the violation of the state statute, A.R.S. § 33-1805, indicating that the statutory obligation superseded the association’s internal procedural preferences.
Legal Framework and Conclusions of Law
• Governing Statute: A.R.S. § 33-1805(A) mandates that a homeowners’ association “shall have ten business days to fulfill a request for examination” of its financial and other records by a member.
• Burden of Proof: The Petitioner was required to prove the violation by a “preponderance of the evidence,” defined as “such proof as convinces the trier of fact that the contention is more probably true than not.”
• Conclusion of Law: The ALJ determined that Mr. Brown successfully established by a preponderance of the evidence that:
1. He submitted a request for records to Terravita’s Secretary via e-mail on July 30, 2016.
2. Terravita failed to fulfill this request within the statutory 10-business-day deadline.
• Final Judgment: The Tribunal concluded that “Terravita violated the charged provision of A.R.S. § 33-1805.” It was also noted that Terravita did not contend that any of the statutory exceptions to disclosure, such as privileged communication or pending litigation, applied.
Final Order and Directives
The ALJ’s decision was formally adopted by the Commissioner of the Department of Real Estate on July 11, 2017, making it a Final Order with the following mandates:
• Prevailing Party: Petitioner William M. Brown was deemed the prevailing party.
• Compliance with Request: Terravita was ordered to “comply with the applicable provisions of A.R.S. § 33-1805 regarding Petitioner’s request of Terravita’s records” within 10 days of the Order.
• Reimbursement of Filing Fee: Terravita was ordered to pay the Petitioner his filing fee of $500.00 directly to him within thirty (30) days.
• Civil Penalty: The court determined that “No Civil Penalty is found to be appropriate in this matter.”
• Effective Date: The Order was made effective five (5) days from the date of its certification. The Final Order itself is effective immediately from the date of service, July 11, 2017.