Case Summary
| Case ID | 23F-H027-REL |
|---|---|
| Agency | ADRE |
| Tribunal | OAH |
| Decision Date | 2023-03-09 |
| Administrative Law Judge | Sondra J. Vanella |
| Outcome | partial |
| Filing Fees Refunded | $1,500.00 |
| Civil Penalties | $0.00 |
Parties & Counsel
| Petitioner | Kimberly Martinez | Counsel | — |
|---|---|---|---|
| Respondent | Pineglen Owner's Association | Counsel | — |
Alleged Violations
A.R.S. § 33-1812(A)(6)
Bylaws, Article IV, Sections 1 and 2
A.R.S. § 33-1805(A)
Outcome Summary
Petitioner was deemed the prevailing party on Petition Issues 1 and 3, establishing violations of A.R.S. § 33-1812(A)(6) and A.R.S. § 33-1805(A). Respondent was deemed the prevailing party on Issue 2. Respondent was ordered to pay Petitioner $1,000.00 of the filing fee and directed to comply with the violated statutes going forward. No Civil Penalty was imposed.
Why this result: Petitioner failed to prove the violation related to the appointed board positions (Issue 2) by a preponderance of the evidence.
Key Issues & Findings
The ballot for the annual election of Board members did not have the proper resident identifiers, lot number or physical address; and the process for write-in candidates was not provided or outlined.
The ballots utilized by Respondent did not contain the address of the person voting, violating the requirement that completed ballots shall contain the name, address, and signature of the person voting.
Orders: Respondent is directed to comply with the requirements of A.R.S. § 33-1812(A)(6) going forward.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
- A.R.S. § 33-1812(A)(6)
- Bylaws, Article III, Section 3
At the Annual Meeting the Board President announced 2 new Board positions, but did not follow the electoral process for filling the 2 positions, instead appointed 2 residents to the new positions.
Petitioner failed to establish by a preponderance of the evidence that Respondent violated its Bylaws regarding the appointment of two board positions (RV Lot Manager and Architectural Review Manager), as the Board was within its limits to increase membership and fill vacancies until the next election.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
- Bylaws, Article IV, Section 1
- Bylaws, Article IV, Section 2
The Board Secretary refused to comply to Petitioner's request, per ARS 33-1805(A), of supplying copies of HOA records, either electronically or by purchase of hard copies.
Petitioner requested copies in writing and offered to pay, but Respondent refused to provide copies, contrary to the statutory obligation that the association must provide copies of requested records upon request for purchase within ten business days.
Orders: Respondent is directed to comply with the requirements of A.R.S. § 33-1805(A) going forward.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
- A.R.S. § 33-1805(A)
- Bylaws, Article VII, Section 3
Analytics Highlights
- A.R.S. § 33-1812(A)(6)
- A.R.S. § 33-1805(A)
- Bylaws, Article IV, Section 1
- Bylaws, Article IV, Section 2
- Bylaws, Article III, Section 3
- Bylaws, Article VII, Section 3
Audio Overview
https://open.spotify.com/episode/79Eos9GXApf2bkZLK6iafR
Decision Documents
23F-H027-REL Decision – 1027053.pdf
23F-H027-REL Decision – 1028006.pdf
23F-H027-REL Decision – 1029880.pdf
23F-H027-REL Decision – 1040305.pdf
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{ “case”: { “docket_no”: “23F-H027-REL”, “case_title”: “Kimberly Martinez v. Pineglen Owner’s Association”, “decision_date”: “2023-03-09”, “alj_name”: “Sondra J. Vanella”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Must HOA election ballots include the voter’s address?”, “short_answer”: “Yes, unless the community documents explicitly permit secret ballots.”, “detailed_answer”: “According to Arizona law, completed ballots must contain the name, address, and signature of the voter. The only exception is if community documents allow for secret ballots, in which case this information must be on the envelope.”, “alj_quote”: “The ballots utilized by Respondent did not contain the address of the person voting. Therefore, Petitioner established by a preponderance of the evidence that Respondent violated A.R.S. § 33-1812(A)(6).”, “legal_basis”: “A.R.S. § 33-1812(A)(6)”, “topic_tags”: [ “Elections”, “Ballots”, “Voting” ] }, { “question”: “Can an HOA refuse to provide copies of records and force me to view them in person instead?”, “short_answer”: “No. If a member requests to purchase copies, the HOA must provide them.”, “detailed_answer”: “While an HOA can make records available for viewing, if a homeowner explicitly requests to purchase copies, the HOA is statutorily obligated to provide those copies within ten business days. Simply offering a viewing does not satisfy a request for copies.”, “alj_quote”: “Respondent refused to provide copies of the requested documents and would only allow Petitioner to view the documents, contrary to its statutory obligation. … Petitioner established by a preponderance of the evidence that Respondent violated A.R.S. § 33-1805(A).”, “legal_basis”: “A.R.S. § 33-1805(A)”, “topic_tags”: [ “Records Request”, “Transparency”, “HOA Obligations” ] }, { “question”: “Can the HOA Board appoint people to fill vacancies or new positions without holding an election?”, “short_answer”: “Yes, if the bylaws permit the Board to fill vacancies until the next election.”, “detailed_answer”: “If the community bylaws allow the Board to increase its membership within certain limits and fill vacancies, the Board can appoint members to these positions. These appointees generally serve until the next scheduled election.”, “alj_quote”: “The credible evidence of record established that Respondent appropriately appointed these positions and that the positions will appear on the ballot of the next election.”, “legal_basis”: “Bylaws Article IV, Section 1”, “topic_tags”: [ “Board Vacancies”, “Appointments”, “Bylaws” ] }, { “question”: “Who has the burden of proof in a hearing against an HOA?”, “short_answer”: “The homeowner (Petitioner) must prove the violation.”, “detailed_answer”: “The homeowner filing the petition is responsible for providing sufficient evidence to prove that the HOA violated statutes or community documents. The standard is a ‘preponderance of the evidence,’ meaning it is more likely than not that the violation occurred.”, “alj_quote”: “Petitioner bears the burden of proof to establish that Respondent violated applicable statutes, CC&Rs, and/or Bylaws by a preponderance of the evidence.”, “legal_basis”: “A.A.C. R2-19-119(A)”, “topic_tags”: [ “Legal Standards”, “Burden of Proof”, “Hearing Procedures” ] }, { “question”: “How much can an HOA charge for copies of records?”, “short_answer”: “The HOA may charge a fee of no more than 15 cents per page.”, “detailed_answer”: “Arizona statute limits the fee an association can charge for making copies of records requested by a member to a maximum of fifteen cents per page.”, “alj_quote”: “An association may charge a fee for making copies of not more than fifteen cents per page.”, “legal_basis”: “A.R.S. § 33-1805(A)”, “topic_tags”: [ “Records Request”, “Fees”, “HOA Obligations” ] }, { “question”: “If I win my case, will the HOA have to pay a civil penalty?”, “short_answer”: “Not necessarily; civil penalties are discretionary.”, “detailed_answer”: “Even if the HOA is found to have violated the law, the Administrative Law Judge is not required to impose a civil penalty. In this case, despite finding violations regarding ballots and records, the judge decided no penalty was appropriate.”, “alj_quote”: “No Civil Penalty is found to be appropriate in this matter.”, “legal_basis”: “Discretionary”, “topic_tags”: [ “Penalties”, “Enforcement”, “Civil Penalty” ] }, { “question”: “Can I get my filing fee reimbursed if the ALJ rules in my favor?”, “short_answer”: “Yes, the ALJ can order the HOA to reimburse the filing fee.”, “detailed_answer”: “If the homeowner prevails on the issues presented in the petition, the Administrative Law Judge has the authority to order the Respondent (HOA) to pay the filing fee back to the Petitioner.”, “alj_quote”: “IT IS FURTHER ORDERED that Respondent pay Petitioner the filing fee of $1,000.00, to be paid directly to Petitioner within thirty (30) days of this Order.”, “legal_basis”: “Administrative Order”, “topic_tags”: [ “Remedies”, “Filing Fees”, “Reimbursement” ] } ] }
{ “case”: { “docket_no”: “23F-H027-REL”, “case_title”: “Kimberly Martinez v. Pineglen Owner’s Association”, “decision_date”: “2023-03-09”, “alj_name”: “Sondra J. Vanella”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Must HOA election ballots include the voter’s address?”, “short_answer”: “Yes, unless the community documents explicitly permit secret ballots.”, “detailed_answer”: “According to Arizona law, completed ballots must contain the name, address, and signature of the voter. The only exception is if community documents allow for secret ballots, in which case this information must be on the envelope.”, “alj_quote”: “The ballots utilized by Respondent did not contain the address of the person voting. Therefore, Petitioner established by a preponderance of the evidence that Respondent violated A.R.S. § 33-1812(A)(6).”, “legal_basis”: “A.R.S. § 33-1812(A)(6)”, “topic_tags”: [ “Elections”, “Ballots”, “Voting” ] }, { “question”: “Can an HOA refuse to provide copies of records and force me to view them in person instead?”, “short_answer”: “No. If a member requests to purchase copies, the HOA must provide them.”, “detailed_answer”: “While an HOA can make records available for viewing, if a homeowner explicitly requests to purchase copies, the HOA is statutorily obligated to provide those copies within ten business days. Simply offering a viewing does not satisfy a request for copies.”, “alj_quote”: “Respondent refused to provide copies of the requested documents and would only allow Petitioner to view the documents, contrary to its statutory obligation. … Petitioner established by a preponderance of the evidence that Respondent violated A.R.S. § 33-1805(A).”, “legal_basis”: “A.R.S. § 33-1805(A)”, “topic_tags”: [ “Records Request”, “Transparency”, “HOA Obligations” ] }, { “question”: “Can the HOA Board appoint people to fill vacancies or new positions without holding an election?”, “short_answer”: “Yes, if the bylaws permit the Board to fill vacancies until the next election.”, “detailed_answer”: “If the community bylaws allow the Board to increase its membership within certain limits and fill vacancies, the Board can appoint members to these positions. These appointees generally serve until the next scheduled election.”, “alj_quote”: “The credible evidence of record established that Respondent appropriately appointed these positions and that the positions will appear on the ballot of the next election.”, “legal_basis”: “Bylaws Article IV, Section 1”, “topic_tags”: [ “Board Vacancies”, “Appointments”, “Bylaws” ] }, { “question”: “Who has the burden of proof in a hearing against an HOA?”, “short_answer”: “The homeowner (Petitioner) must prove the violation.”, “detailed_answer”: “The homeowner filing the petition is responsible for providing sufficient evidence to prove that the HOA violated statutes or community documents. The standard is a ‘preponderance of the evidence,’ meaning it is more likely than not that the violation occurred.”, “alj_quote”: “Petitioner bears the burden of proof to establish that Respondent violated applicable statutes, CC&Rs, and/or Bylaws by a preponderance of the evidence.”, “legal_basis”: “A.A.C. R2-19-119(A)”, “topic_tags”: [ “Legal Standards”, “Burden of Proof”, “Hearing Procedures” ] }, { “question”: “How much can an HOA charge for copies of records?”, “short_answer”: “The HOA may charge a fee of no more than 15 cents per page.”, “detailed_answer”: “Arizona statute limits the fee an association can charge for making copies of records requested by a member to a maximum of fifteen cents per page.”, “alj_quote”: “An association may charge a fee for making copies of not more than fifteen cents per page.”, “legal_basis”: “A.R.S. § 33-1805(A)”, “topic_tags”: [ “Records Request”, “Fees”, “HOA Obligations” ] }, { “question”: “If I win my case, will the HOA have to pay a civil penalty?”, “short_answer”: “Not necessarily; civil penalties are discretionary.”, “detailed_answer”: “Even if the HOA is found to have violated the law, the Administrative Law Judge is not required to impose a civil penalty. In this case, despite finding violations regarding ballots and records, the judge decided no penalty was appropriate.”, “alj_quote”: “No Civil Penalty is found to be appropriate in this matter.”, “legal_basis”: “Discretionary”, “topic_tags”: [ “Penalties”, “Enforcement”, “Civil Penalty” ] }, { “question”: “Can I get my filing fee reimbursed if the ALJ rules in my favor?”, “short_answer”: “Yes, the ALJ can order the HOA to reimburse the filing fee.”, “detailed_answer”: “If the homeowner prevails on the issues presented in the petition, the Administrative Law Judge has the authority to order the Respondent (HOA) to pay the filing fee back to the Petitioner.”, “alj_quote”: “IT IS FURTHER ORDERED that Respondent pay Petitioner the filing fee of $1,000.00, to be paid directly to Petitioner within thirty (30) days of this Order.”, “legal_basis”: “Administrative Order”, “topic_tags”: [ “Remedies”, “Filing Fees”, “Reimbursement” ] } ] }
Case Participants
Petitioner Side
- Kimberly Martinez (petitioner)
Appeared on her own behalf - Christine McCabe (assistant/observer)
Friend assisting Petitioner due to hearing deficit
Respondent Side
- Susan Goeldner (HOA secretary/board member/representative)
Pineglen Owner's Association
Testified and acted as primary representative for Respondent - Warren Doty (HOA VP/board member/representative/witness)
Pineglen Owner's Association
Testified on Complaint Number 1 - Tim Mahoney (HOA treasurer/board member/witness)
Pineglen Owner's Association
Observed proceedings; testified briefly on Complaint Number 3 - Mark McElvain (former HOA president/observer)
Pineglen Owner's Association
Observed proceedings - Fred Bates (former board member/observer)
Pineglen Owner's Association
Observed proceedings - Addie Bassoon (HOA president)
Pineglen Owner's Association
Did not attend hearing due to personal issues; referenced in testimony/documents
Neutral Parties
- Sondra J. Vanella (ALJ)
OAH - Louis Dettorre (Commissioner)
ADRE
Recipient of initial correspondence/minute entries - Susan Nicolson (Commissioner)
ADRE
Recipient of final decision copies - AHansen (ADRE staff)
ADRE
Recipient of correspondence/decision copies (listed by email attn) - vnunez (ADRE staff)
ADRE
Recipient of correspondence/decision copies (listed by email attn) - djones (ADRE staff)
ADRE
Recipient of correspondence/decision copies (listed by email attn) - labril (ADRE staff)
ADRE
Recipient of correspondence/decision copies (listed by email attn)
