Tag Archives: Rehearing

Steven D. Stienstra v. Cedar Ridge Homeowners Association

Posted on by

Case Summary

Case ID 19F-H1918033-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2020-04-01
Administrative Law Judge Kay Abramsohn
Outcome full
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Steven D. Stienstra Counsel —
Respondent Cedar Ridge Homeowners Association Counsel Diana Elston, Keith D. Collett

Alleged Violations

A.R.S. § 33-1806.01; CC&Rs Section 1.1; CC&Rs Section 18

Outcome Summary

The Petitioner was deemed the prevailing party. The HOA was found to have violated the CC&Rs by failing to adhere to the required enforcement procedures (Sections 1.1 and 18) when demanding repayment of legal fees. The asserted legal fees were not assigned to the Petitioner, and the HOA was ordered to reimburse the Petitioner's $500 filing fee.

Key Issues & Findings

Alleged HOA violation of A.R.S. § 33-1806.01 and CC&Rs Sections 1.1 and 18 in enforcement actions regarding rental activity, leading to unwarranted legal fees.

Petitioner claimed the HOA improperly pursued enforcement actions and demanded legal fees ($1,500, then $2,600) related to alleged short-term and piecemeal rental violations. The ALJ concluded that the subsequent enforcement letters and demand for legal fees were not within the parameters of CC&R Section 1.1 or Section 18 because Petitioner had taken action to stop the leasing and the HOA failed to follow required enforcement steps, particularly under Section 18.

Orders: HOA is required to reimburse Petitioner the $500.00 filing fee. The asserted legal fees demanded by HOA are not assigned to Petitioner.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1806.01
  • CC&Rs Section 1.1
  • CC&Rs Section 18
  • A.A.C. R2-19-119
  • A.R.S. § 10-3830

Analytics Highlights

Topics: HOA enforcement action, short-term rental, CC&R violation, attorney fees recovery, due process, rehearing
Additional Citations:

  • A.R.S. § 33-1806.01
  • CC&Rs Section 1.1
  • CC&Rs Section 18
  • A.A.C. R2-19-119
  • A.R.S. § 10-3830
  • BLACK’S LAW DICTIONARY 1182 (6th ed. 1990)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)

Audio Overview

Decision Documents

19F-H1918033-REL-RHG Decision – 779896.pdf

Uploaded 2025-10-08T07:08:16 (210.6 KB)





Briefing Doc – 19F-H1918033-REL-RHG


Stienstra v. Cedar Ridge HOA: Analysis of Rehearing Decision

Executive Summary

This document provides a comprehensive analysis of the Rehearing Decision in the case of Steven D. Stienstra v. Cedar Ridge Homeowners Association (HOA), No. 19F-H1918033-REL-RHG. The central conflict, which initially concerned violations of the HOA’s rental restrictions, evolved into a dispute over the validity of attorney’s fees the HOA sought to impose on the homeowner.

The Administrative Law Judge (ALJ) ultimately ruled in favor of the petitioner, Steven Stienstra, finding that the HOA had failed to follow the proper enforcement procedures outlined in its own Covenants, Conditions, and Restrictions (CC&Rs). The HOA misapplied Section 1.1 of the CC&Rs to justify its demands for legal fees and bypassed the required due process steps outlined in Section 18. Despite the homeowner’s initial violations, the ALJ concluded that his subsequent compliance rendered the HOA’s escalating enforcement actions and fee demands unauthorized. The final order requires the HOA to reimburse Mr. Stienstra for his $500.00 filing fee, underscoring that an HOA’s reliance on legal counsel does not absolve it of its obligation to adhere strictly to its governing documents.

——————————————————————————–

1. Case Background and Timeline

The dispute originated from rental activities at a property purchased by Steven Stienstra in August 2017 within the Cedar Ridge HOA in Sedona, Arizona. The case progressed through an initial hearing, a decision in favor of the petitioner, and an HOA-requested rehearing.

Aug 2017

Steven Stienstra purchases a residence in the Cedar Ridge HOA.

Dec 2017 – Apr 2018

Stienstra’s son manages the property, which is used by family, friends, and eventually generates revenue from short-term rentals via a VRBO listing.

Apr 2018

HOA President Bill Ferguson calls Stienstra about the short-term rental activity, which violates the CC&Rs. Stienstra testifies that he agreed to stop, and his son subsequently deactivates two of three VRBO listings and sets the third to a 30-day minimum.

Apr 26, 2018

The HOA makes its first noted contact with an attorney regarding the matter.

May 11, 2018

The HOA’s attorney sends the first Cease & Desist letter to Stienstra, demanding cessation of all rentals under 30 days within a ten-day period, citing Section 1.1 of the CC&Rs.

Jun 1, 2018

A second Cease & Desist letter is sent. While acknowledging Stienstra’s written statement of compliance, the letter demands payment of $1,500 for attorney’s fees.

Jun 17, 2018

A third Cease & Desist letter is sent, alleging new violations via a Facebook Marketplace ad for renting individual rooms. The demand for attorney’s fees increases to $2,600.

Sep 4, 2018

Three HOA Board members hold an “unofficial” meeting with Stienstra at his request.

Nov 2018

Stienstra files a formal petition with the Arizona Department of Real Estate, alleging the HOA violated its own CC&Rs.

Oct 7, 2019

The initial administrative hearing is held.

Nov 15, 2019

The ALJ issues a decision in favor of Stienstra.

Dec 19, 2019

The HOA files a request for a rehearing, claiming the initial decision was “arbitrary, capricious, and an abuse of discretion.”

Mar 12, 2020

The rehearing is conducted before ALJ Kay Abramsohn.

Apr 1, 2020

The ALJ issues the final Rehearing Decision, again finding in favor of Stienstra.

2. The Central Dispute: From Rental Violations to Legal Fees

The core of the legal conflict shifted from the homeowner’s initial non-compliance to the HOA’s methods of enforcement and its subsequent demands for reimbursement of legal fees.

Initial Violations

• Short-Term Rentals: From approximately December 2017 to April 2018, Stienstra’s son listed the property on VRBO and engaged in rentals for periods of less than 30 consecutive days, a direct violation of CC&R Section 1.1.

• Partial Property Rentals: After the initial phone call from the HOA President, Stienstra’s son posted an advertisement on Facebook Marketplace to rent out individual parts of the home (e.g., a “basement unit”), which violated the Section 1.1 requirement that an owner may not lease less than the “entire lot.”

Homeowner’s Stated Compliance

• Following the April 2018 phone call from HOA President Bill Ferguson, Stienstra testified that he immediately instructed his son to cease all short-term rentals. His son took down two of the three VRBO listings and modified the remaining one to prevent bookings of less than 30 days.

• When informed of the Facebook Marketplace posting via the June 17, 2018 letter, Stienstra stated he was previously unaware of it and immediately had his son take it down. He further stated no leases resulted from that posting.

HOA’s Position and Escalation

• The HOA Board did not believe the violations had ceased after the initial phone call. Their position was based on:

◦ The fact that one VRBO listing “remained active” online.

◦ The observation that the “presence of vehicles outside the home changed on a regular basis.”

• HOA Secretary Vic Burolla expressed deep distrust, stating in a hearing, “there’s no reason to suspect we would have been told the truth.”

• Based on this suspicion and the advice of their attorney, the Board chose to pursue enforcement, leading to a series of cease-and-desist letters and escalating demands for attorney’s fees, which became the primary issue of the case.

3. Analysis of HOA Enforcement Actions and Failures

The ALJ’s decision provides a detailed critique of the HOA’s enforcement strategy, concluding that it fundamentally misapplied its own governing documents and denied the homeowner required due process.

The Choice of an Improper Enforcement Path

The HOA had two primary enforcement mechanisms available in its CC&Rs: Section 1.1 (specific to leases) and Section 18 (general enforcement). The Board made a strategic decision to proceed exclusively under Section 1.1.

• HOA’s Rationale: Board Secretary Vic Burolla testified that the Board chose Section 1.1 because it “seemed more expeditious, to be able to collect” legal fees compared to the process in Section 18.

• ALJ’s Finding: This was a critical error. The ALJ concluded that Section 1.1’s provision for cost recovery applies only in a specific circumstance: when an owner fails to take legal action against a non-compliant occupant (tenant), forcing the HOA to step in and sue the occupant on behalf of the owner.

• The Reality: Stienstra did take action by instructing his son to stop the violating activities. The HOA never took legal action against an occupant. Therefore, the expenses incurred by the HOA (i.e., its own attorney’s fees for writing letters to the owner) were not recoverable under the plain language of Section 1.1.

Failure to Provide Due Process under Section 18

By avoiding Section 18, the HOA bypassed a clear, multi-step due process requirement. Section 18 mandates that the Board must:

1. Notify the owner in writing of the breach.

2. Give the owner 30 days to appear before the Board to respond.

3. Provide a reasonable time (not to exceed 60 days) to remedy the breach.

The HOA failed on all counts:

• The initial April 2018 phone call was deemed an “informational call,” not the required formal written notice.

• The HOA explicitly denied Stienstra was entitled to a formal meeting, though it granted an “unofficial” meeting on September 4, 2018. The ALJ found this did not satisfy the requirement to “appear before the Board of Directors.”

Unauthorized Demand for Fees

The ALJ found the HOA’s demands for payment to be improper and punitive.

• The June 1, 2018, letter demanded “$1,500.00 to recover attorney’s fees and costs,” but then specified this was a “number authorized by the Board as a flat amount to resolve the matter.”

• The ALJ concluded this was not a demand for actual fees incurred but was functionally “either a settlement offer or as some sort of fine, which is not authorized under Section 1.1 but only under Section 18.”

4. Key Legal Arguments and ALJ Conclusions

At the rehearing, the HOA presented several legal arguments to defend its actions, all of which were systematically dismantled by the ALJ.

HOA’s Argument

ALJ’s Conclusion

Reliance on Legal Counsel: The Board acted in good faith by discharging its duties based on the advice of its attorney, as permitted by A.R.S. § 10-3830.

Following an attorney’s advice does not absolve the Board of its duty to comply with its own CC&Rs. The actions taken were outside the parameters of the CC&Rs, making the legal advice irrelevant to the outcome. The remaining letters were “not within the purview of Section 1.1 or Section 18.”

Petitioner’s “Unclean Hands”: Because Stienstra initially violated the CC&Rs, he should not be able to seek relief from the Department for the HOA’s subsequent actions.

This equitable defense was rejected. The ALJ clarified that the remedy Stienstra sought was monetary (reimbursement of a filing fee), not equitable. The homeowner’s initial violation does not permit the HOA to violate its own enforcement procedures in response.

Justification for Action: The HOA’s belief that violations continued was reasonable based on the active VRBO listing and the presence of multiple cars.

The HOA acted on suspicion rather than confirmed facts. It had a duty to investigate further rather than simply disbelieving the homeowner’s claims of compliance. The ALJ noted that despite Stienstra’s explanation, the “HOA determined to continue enforcement action.”

Contradictory Testimony: At the initial hearing, the HOA Secretary claimed to be “not aware of any specific instructions in the CC&Rs” for enforcement. At the rehearing, he testified that the Board had discussed the options under Section 1.1 and Section 18.

The ALJ found it “implausible that the Board’s Secretary was ‘unaware'” of the CC&Rs’ enforcement procedures, suggesting the Board knowingly chose to bypass the proper channels.

5. Final Order and Implications

The Final Order: The ALJ ruled that Steven Stienstra is the prevailing party. The Cedar Ridge HOA is ordered to reimburse Stienstra for the $500.00 filing fee.

Implications: The decision serves as a powerful reminder that homeowners associations are bound by the explicit procedures laid out in their own governing documents.

• Adherence to Due Process: An HOA cannot selectively choose enforcement mechanisms to achieve a desired financial outcome, particularly if it means bypassing clear due process requirements for homeowners.

• Limitations of “Reliance on Counsel”: While seeking legal advice is prudent, it does not provide a shield for actions that are explicitly contrary to the association’s CC&Rs.

• Enforcement Based on Fact, Not Suspicion: An HOA’s belief or suspicion of an ongoing violation is not, by itself, sufficient grounds for continued punitive action when a homeowner has provided evidence of compliance. The burden is on the HOA to verify, not just assume.


Joan A. Tober, vs. Civano 1 Neighborhood 1 Homeowners Association

Posted on by

Case Summary

Case ID 19F-H1918042-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2020-01-15
Administrative Law Judge Kay Abramsohn
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Joan A. Tober Counsel —
Respondent Civano 1 Neighborhood 1 Homeowners Association Counsel Diana J. Elston, Esq.

Alleged Violations

A.R.S. § 33-1805

Outcome Summary

The Administrative Law Judge concluded that the HOA acted in compliance with A.R.S. § 33-1805(A) and (B) and was the prevailing party on rehearing. The HOA was not required to provide the privileged attorney letter, and Petitioner failed to clarify her vague request for other documents.

Why this result: Petitioner failed to sustain her burden of proof. The primary requested document was privileged, and the overall request was unreasonably broad and left unclarified, preventing the HOA from reasonably making records available.

Key Issues & Findings

Alleged violation of HOA member access to records statute regarding timeliness of disclosure.

Petitioner sought a copy of a privileged attorney letter discussed at a Board meeting and "any and all documentation" regarding the North Ridge wall. The issue on rehearing was whether the HOA violated A.R.S. § 33-1805 by failing to provide records within 10 business days. The ALJ found no violation, concluding the letter was privileged communication and the broader request was unreasonably broad and unclarified by the Petitioner.

Orders: The HOA is the prevailing party with regard to the rehearing, and Petitioner’s appeal is dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1805
  • A.R.S. § 33-1805(A)
  • A.R.S. § 33-1805(B)(1)
  • A.R.S. § 41-2198.01
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. § 12-904(A)
  • A.R.S. § 41-1092.08(H)

Analytics Highlights

Topics: HOA records request, Attorney-Client Privilege, Statutory violation (A.R.S. 33-1805), Timeliness, Rehearing
Additional Citations:

  • A.R.S. § 33-1805
  • A.R.S. § 33-1805(A)
  • A.R.S. § 33-1805(B)(1)
  • A.R.S. § 41-2198.01
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. § 12-904(A)
  • A.R.S. § 41-1092.08(H)

Audio Overview

Decision Documents

19F-H1918042-REL-RHG Decision – 764197.pdf

Uploaded 2025-10-09T03:34:01 (187.4 KB)





Briefing Doc – 19F-H1918042-REL-RHG


Briefing: Case No. 19F-H1918042-REL-RHG, Tober v. Civano 1 HOA

Executive Summary

This document provides a comprehensive analysis of the Administrative Law Judge (ALJ) Decision in Case No. 19F-H1918042-REL-RHG, involving Petitioner Joan A. Tober and Respondent Civano 1 Neighborhood 1 Homeowners Association (HOA). The dispute centered on the HOA’s alleged failure to provide records in accordance with Arizona statute A.R.S. § 33-1805.

The core conflict originated from the Petitioner’s request for a specific attorney’s letter (“the Letter”) concerning the North Ridge wall, which was mentioned at an HOA Board meeting. The Petitioner argued that by discussing the Letter, the HOA waived attorney-client privilege. The HOA maintained the Letter was privileged and rightfully withheld. The Petitioner subsequently expanded her request to “any and all documentation” regarding the wall, which the HOA found to be overly broad.

Following an initial hearing on June 5, 2019, the ALJ ruled in favor of the HOA, finding the Letter was privileged and the HOA had complied with the statute. A rehearing was granted to address the Petitioner’s claim that the ruling “did not address the timeliness aspect of the law.”

The final decision, issued after the December 11, 2019 rehearing, reaffirmed the HOA as the prevailing party. The ALJ concluded that the HOA did not violate the 10-business-day requirement of A.R.S. § 33-1805. The ruling determined that the Petitioner’s expanded request was “unreasonably broad,” and her failure to respond to the HOA’s request for clarification prevented the HOA from being able to reasonably provide records. The Petitioner’s appeal was ultimately dismissed.

——————————————————————————–

Case Overview

• Case Number: 19F-H1918042-REL-RHG

• Tribunal: In the Office of Administrative Hearings, Arizona

• Petitioner: Joan A. Tober (Appeared on her own behalf)

• Respondent: Civano 1 Neighborhood 1 Homeowners Association (Represented by Diana J. Elston, Esq.)

• Administrative Law Judge: Kay Abramsohn

• Subject Matter: A petition filed with the Arizona Department of Real Estate alleging an HOA violated A.R.S. § 33-1805 by failing to provide association records upon request.

Chronology of Key Events

Nov 20, 2018

At an HOA Board meeting, the President mentions a letter from the HOA’s attorney regarding the North Ridge wall, its erosion, and the HOA’s legal responsibility. He suggests he “can … send it out.”

Nov 26, 2018

Petitioner makes her first request for a copy of the attorney’s letter.

Nov 27, 2018

Petitioner makes a second request. The HOA responds that it is waiting for clarification from its attorney.

Nov 29, 2018

Petitioner submits a third, expanded request for “any and all documentation… and all background information” regarding the North Ridge wall.

Nov 29, 2018

The HOA responds that the President had misspoken, the letter is a privileged “Legal Opinion,” and asks if Petitioner needs a copy of the “original engineer report” for clarification. The ALJ found no evidence Petitioner responded to this clarification request.

Dec 26, 2018

Petitioner files her official Petition with the Arizona Department of Real Estate.

Jan 15-16, 2019

The HOA forwards “historical erosion reports” (2013 and 2014) and an invoice to Petitioner, who acknowledges already possessing the reports.

June 5, 2019

The first administrative hearing is held.

July 29, 2019

The initial ALJ Decision is issued, finding in favor of the HOA.

Aug 5, 2019

Petitioner files a request for rehearing, citing the “timeliness aspect of the law.”

Aug 23, 2019

The Commissioner of the Arizona Department of Real Estate grants the rehearing.

Dec 11, 2019

The rehearing is conducted.

Jan 15, 2020

The final ALJ Decision is issued, again ordering that the HOA is the prevailing party and dismissing the Petitioner’s appeal.

Petitioner’s Position and Arguments

Joan A. Tober, a homeowner since 2001, past Board member, and active observer who taped and transcribed HOA meetings since 2008, built her case on several key arguments:

• Waiver of Privilege: The Petitioner’s central initial argument was that the HOA had “intentionally waived confidentiality” of the attorney’s letter. She contended that because the HOA President mentioned the Letter in an open meeting and other Board members did not object, this demonstrated “unanimous consent to waive confidentiality.”

• Right to Information: The Petitioner’s requests were framed as a right to access information impacting her dues and the HOA budget. Her first request noted, “Since it was discussed at the Board meeting and impacts my dues in addition to being an integral part of the budget decision I see no reason why I should have to pay for a copy.”

• Expanded Request for Full Background: After her initial requests for the Letter were met with a delay, the Petitioner broadened her demand significantly:

• Allegation of Incomplete Disclosure: The Petitioner argued that even after filing her petition, the HOA’s response was insufficient. She asserted that “the Association only sent two reports that were already readily available and in my possession.” She believed that given the long-standing nature of the erosion issue (since 2013), “there’s more than just two pieces of documentation in the possession of the Association.”

• Focus on Timeliness for Rehearing: The basis for the rehearing request was the specific claim that the original ALJ ruling “did not address the timeliness aspect of the law,” alleging the HOA failed to provide access to records within the 10-business-day period mandated by A.R.S. § 33-1805.

Respondent’s Position and Arguments

The Civano 1 HOA, represented by legal counsel, countered the Petitioner’s claims with the following arguments:

• Assertion of Attorney-Client Privilege: The HOA’s primary defense was that the Letter constituted “privileged communication between an attorney for the association and the association,” which is explicitly protected from disclosure to members under A.R.S. § 33-1805(B)(1).

• No Waiver of Privilege: The HOA contended that the “mere mention” of the Letter by the Board President at a meeting did not constitute a legal waiver of its privileged status. The President was found to have “misspoken” when he suggested copies could be provided.

• Overly Broad and Vague Request: The HOA argued that the Petitioner’s expanded request for “any and all” documents was too broad and vague to allow for a reasonable response. The HOA was not required to guess what records were being requested.

• Attempt at Clarification: The HOA provided evidence that it attempted to clarify the vague request on November 29, 2018, by asking if the Petitioner needed a copy of the “original engineer report.” The ALJ found no evidence that the Petitioner ever responded to this query.

• Substantial Compliance: The HOA indicated that by reviewing the exhibits the Petitioner herself presented, it was clear that she had already received copies of the requested historical documents (the 2013 and 2014 reports).

Administrative Law Judge’s Findings and Conclusions

After two hearings, the Administrative Law Judge (ALJ) made determinative findings of fact and law that led to the dismissal of the Petitioner’s case.

Key Findings of Fact

• The Petition was filed solely because the Petitioner wanted a copy of the attorney’s letter discussed at the November 20, 2018 meeting.

• At that meeting, the only document referenced regarding the North Ridge wall was the attorney’s letter/report. No other background documents were mentioned.

• The Petitioner already possessed copies of the 2013 and 2014 engineering reports (which she had obtained from the city) at the time she made her expanded request.

• The Petitioner’s expanded request of November 29, 2018, was the first time she asked for more than just the Letter.

• The Petitioner failed to provide evidence that she responded to the HOA’s November 29, 2018 email seeking to clarify her request.

• The record contains no evidence of any erosion reports other than the 2013 and 2014 reports, nor any evidence of remediation work having been performed by the HOA related to the erosion issue.

Conclusions of Law

1. The Letter is Privileged: Under A.R.S. § 33-1805(B)(1), the attorney’s letter is a privileged communication. Therefore, the “HOA was not required to provide access to, or a copy of, the Letter to Petitioner or to any member within any time period.”

2. The Request Was Unreasonably Broad: The ALJ concluded that the Petitioner’s third request, for “the letter … and all background information,” was “unreasonably broad and remained unclarified by Petitioner.”

3. Petitioner’s Failure to Clarify Precluded HOA Action: The Petitioner’s failure to respond to the HOA’s request for clarification “prevent[ed] the HOA from being able to reasonably make records available.” The ruling states, “An association is not required to guess what records are being requested.”

4. No Violation of Statute: Based on these findings, the ALJ concluded that the HOA did not violate the 10-business-day provision of A.R.S. § 33-1805(A). The Petitioner failed to meet her burden of proof. The final decision clarifies that the HOA “acted in compliance with A.R.S. § 33-1805.”

Final Order

IT IS ORDERED that the HOA is the prevailing party with regard to the rehearing, and Petitioner’s appeal is dismissed.

The order, issued on January 15, 2020, is binding on the parties. Any further appeal must be filed with the superior court within thirty-five days.


Joan A. Tober, vs. Civano 1 Neighborhood 1 Homeowners Association

Posted on by

Case Summary

Case ID 19F-H1918042-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2020-01-15
Administrative Law Judge Kay Abramsohn
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Joan A. Tober Counsel —
Respondent Civano 1 Neighborhood 1 Homeowners Association Counsel Diana J. Elston, Esq.

Alleged Violations

A.R.S. § 33-1805

Outcome Summary

The Administrative Law Judge concluded that the HOA acted in compliance with A.R.S. § 33-1805(A) and (B) and was the prevailing party on rehearing. The HOA was not required to provide the privileged attorney letter, and Petitioner failed to clarify her vague request for other documents.

Why this result: Petitioner failed to sustain her burden of proof. The primary requested document was privileged, and the overall request was unreasonably broad and left unclarified, preventing the HOA from reasonably making records available.

Key Issues & Findings

Alleged violation of HOA member access to records statute regarding timeliness of disclosure.

Petitioner sought a copy of a privileged attorney letter discussed at a Board meeting and "any and all documentation" regarding the North Ridge wall. The issue on rehearing was whether the HOA violated A.R.S. § 33-1805 by failing to provide records within 10 business days. The ALJ found no violation, concluding the letter was privileged communication and the broader request was unreasonably broad and unclarified by the Petitioner.

Orders: The HOA is the prevailing party with regard to the rehearing, and Petitioner’s appeal is dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1805
  • A.R.S. § 33-1805(A)
  • A.R.S. § 33-1805(B)(1)
  • A.R.S. § 41-2198.01
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. § 12-904(A)
  • A.R.S. § 41-1092.08(H)

Analytics Highlights

Topics: HOA records request, Attorney-Client Privilege, Statutory violation (A.R.S. 33-1805), Timeliness, Rehearing
Additional Citations:

  • A.R.S. § 33-1805
  • A.R.S. § 33-1805(A)
  • A.R.S. § 33-1805(B)(1)
  • A.R.S. § 41-2198.01
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. § 12-904(A)
  • A.R.S. § 41-1092.08(H)

Audio Overview

Decision Documents

19F-H1918042-REL-RHG Decision – 764197.pdf

Uploaded 2025-10-08T07:08:41 (187.4 KB)





Briefing Doc – 19F-H1918042-REL-RHG


Briefing: Case No. 19F-H1918042-REL-RHG, Tober v. Civano 1 HOA

Executive Summary

This document provides a comprehensive analysis of the Administrative Law Judge (ALJ) Decision in Case No. 19F-H1918042-REL-RHG, involving Petitioner Joan A. Tober and Respondent Civano 1 Neighborhood 1 Homeowners Association (HOA). The dispute centered on the HOA’s alleged failure to provide records in accordance with Arizona statute A.R.S. § 33-1805.

The core conflict originated from the Petitioner’s request for a specific attorney’s letter (“the Letter”) concerning the North Ridge wall, which was mentioned at an HOA Board meeting. The Petitioner argued that by discussing the Letter, the HOA waived attorney-client privilege. The HOA maintained the Letter was privileged and rightfully withheld. The Petitioner subsequently expanded her request to “any and all documentation” regarding the wall, which the HOA found to be overly broad.

Following an initial hearing on June 5, 2019, the ALJ ruled in favor of the HOA, finding the Letter was privileged and the HOA had complied with the statute. A rehearing was granted to address the Petitioner’s claim that the ruling “did not address the timeliness aspect of the law.”

The final decision, issued after the December 11, 2019 rehearing, reaffirmed the HOA as the prevailing party. The ALJ concluded that the HOA did not violate the 10-business-day requirement of A.R.S. § 33-1805. The ruling determined that the Petitioner’s expanded request was “unreasonably broad,” and her failure to respond to the HOA’s request for clarification prevented the HOA from being able to reasonably provide records. The Petitioner’s appeal was ultimately dismissed.

——————————————————————————–

Case Overview

• Case Number: 19F-H1918042-REL-RHG

• Tribunal: In the Office of Administrative Hearings, Arizona

• Petitioner: Joan A. Tober (Appeared on her own behalf)

• Respondent: Civano 1 Neighborhood 1 Homeowners Association (Represented by Diana J. Elston, Esq.)

• Administrative Law Judge: Kay Abramsohn

• Subject Matter: A petition filed with the Arizona Department of Real Estate alleging an HOA violated A.R.S. § 33-1805 by failing to provide association records upon request.

Chronology of Key Events

Nov 20, 2018

At an HOA Board meeting, the President mentions a letter from the HOA’s attorney regarding the North Ridge wall, its erosion, and the HOA’s legal responsibility. He suggests he “can … send it out.”

Nov 26, 2018

Petitioner makes her first request for a copy of the attorney’s letter.

Nov 27, 2018

Petitioner makes a second request. The HOA responds that it is waiting for clarification from its attorney.

Nov 29, 2018

Petitioner submits a third, expanded request for “any and all documentation… and all background information” regarding the North Ridge wall.

Nov 29, 2018

The HOA responds that the President had misspoken, the letter is a privileged “Legal Opinion,” and asks if Petitioner needs a copy of the “original engineer report” for clarification. The ALJ found no evidence Petitioner responded to this clarification request.

Dec 26, 2018

Petitioner files her official Petition with the Arizona Department of Real Estate.

Jan 15-16, 2019

The HOA forwards “historical erosion reports” (2013 and 2014) and an invoice to Petitioner, who acknowledges already possessing the reports.

June 5, 2019

The first administrative hearing is held.

July 29, 2019

The initial ALJ Decision is issued, finding in favor of the HOA.

Aug 5, 2019

Petitioner files a request for rehearing, citing the “timeliness aspect of the law.”

Aug 23, 2019

The Commissioner of the Arizona Department of Real Estate grants the rehearing.

Dec 11, 2019

The rehearing is conducted.

Jan 15, 2020

The final ALJ Decision is issued, again ordering that the HOA is the prevailing party and dismissing the Petitioner’s appeal.

Petitioner’s Position and Arguments

Joan A. Tober, a homeowner since 2001, past Board member, and active observer who taped and transcribed HOA meetings since 2008, built her case on several key arguments:

• Waiver of Privilege: The Petitioner’s central initial argument was that the HOA had “intentionally waived confidentiality” of the attorney’s letter. She contended that because the HOA President mentioned the Letter in an open meeting and other Board members did not object, this demonstrated “unanimous consent to waive confidentiality.”

• Right to Information: The Petitioner’s requests were framed as a right to access information impacting her dues and the HOA budget. Her first request noted, “Since it was discussed at the Board meeting and impacts my dues in addition to being an integral part of the budget decision I see no reason why I should have to pay for a copy.”

• Expanded Request for Full Background: After her initial requests for the Letter were met with a delay, the Petitioner broadened her demand significantly:

• Allegation of Incomplete Disclosure: The Petitioner argued that even after filing her petition, the HOA’s response was insufficient. She asserted that “the Association only sent two reports that were already readily available and in my possession.” She believed that given the long-standing nature of the erosion issue (since 2013), “there’s more than just two pieces of documentation in the possession of the Association.”

• Focus on Timeliness for Rehearing: The basis for the rehearing request was the specific claim that the original ALJ ruling “did not address the timeliness aspect of the law,” alleging the HOA failed to provide access to records within the 10-business-day period mandated by A.R.S. § 33-1805.

Respondent’s Position and Arguments

The Civano 1 HOA, represented by legal counsel, countered the Petitioner’s claims with the following arguments:

• Assertion of Attorney-Client Privilege: The HOA’s primary defense was that the Letter constituted “privileged communication between an attorney for the association and the association,” which is explicitly protected from disclosure to members under A.R.S. § 33-1805(B)(1).

• No Waiver of Privilege: The HOA contended that the “mere mention” of the Letter by the Board President at a meeting did not constitute a legal waiver of its privileged status. The President was found to have “misspoken” when he suggested copies could be provided.

• Overly Broad and Vague Request: The HOA argued that the Petitioner’s expanded request for “any and all” documents was too broad and vague to allow for a reasonable response. The HOA was not required to guess what records were being requested.

• Attempt at Clarification: The HOA provided evidence that it attempted to clarify the vague request on November 29, 2018, by asking if the Petitioner needed a copy of the “original engineer report.” The ALJ found no evidence that the Petitioner ever responded to this query.

• Substantial Compliance: The HOA indicated that by reviewing the exhibits the Petitioner herself presented, it was clear that she had already received copies of the requested historical documents (the 2013 and 2014 reports).

Administrative Law Judge’s Findings and Conclusions

After two hearings, the Administrative Law Judge (ALJ) made determinative findings of fact and law that led to the dismissal of the Petitioner’s case.

Key Findings of Fact

• The Petition was filed solely because the Petitioner wanted a copy of the attorney’s letter discussed at the November 20, 2018 meeting.

• At that meeting, the only document referenced regarding the North Ridge wall was the attorney’s letter/report. No other background documents were mentioned.

• The Petitioner already possessed copies of the 2013 and 2014 engineering reports (which she had obtained from the city) at the time she made her expanded request.

• The Petitioner’s expanded request of November 29, 2018, was the first time she asked for more than just the Letter.

• The Petitioner failed to provide evidence that she responded to the HOA’s November 29, 2018 email seeking to clarify her request.

• The record contains no evidence of any erosion reports other than the 2013 and 2014 reports, nor any evidence of remediation work having been performed by the HOA related to the erosion issue.

Conclusions of Law

1. The Letter is Privileged: Under A.R.S. § 33-1805(B)(1), the attorney’s letter is a privileged communication. Therefore, the “HOA was not required to provide access to, or a copy of, the Letter to Petitioner or to any member within any time period.”

2. The Request Was Unreasonably Broad: The ALJ concluded that the Petitioner’s third request, for “the letter … and all background information,” was “unreasonably broad and remained unclarified by Petitioner.”

3. Petitioner’s Failure to Clarify Precluded HOA Action: The Petitioner’s failure to respond to the HOA’s request for clarification “prevent[ed] the HOA from being able to reasonably make records available.” The ruling states, “An association is not required to guess what records are being requested.”

4. No Violation of Statute: Based on these findings, the ALJ concluded that the HOA did not violate the 10-business-day provision of A.R.S. § 33-1805(A). The Petitioner failed to meet her burden of proof. The final decision clarifies that the HOA “acted in compliance with A.R.S. § 33-1805.”

Final Order

IT IS ORDERED that the HOA is the prevailing party with regard to the rehearing, and Petitioner’s appeal is dismissed.

The order, issued on January 15, 2020, is binding on the parties. Any further appeal must be filed with the superior court within thirty-five days.


Joyce H Monsanto vs. Four Seasons at the Manor Homeowners Association

Posted on by

Case Summary

Case ID 19F-H1919053-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2019-11-18
Administrative Law Judge Diane Mihalsky
Outcome total_loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Joyce H Monsanto Counsel —
Respondent Four Seasons at the Manor Homeowners Association Counsel Mark K. Sahl, Esq.

Alleged Violations

A.R.S. § 33-1808; CC&R § 7.9

Outcome Summary

The Administrative Law Judge denied the Petitioner's petition, finding that the HOA did not violate A.R.S. § 33-1808 because its guideline limiting residents to one flagpole (which permits flying both the US flag and military flags) constitutes a reasonable rule under the statute. Furthermore, the HOA did not violate the appeal process outlined in CC&R § 7.9.

Why this result: Petitioner failed to establish that Respondent’s Board violated A.R.S. § 33-1808 or CC&R § 7. The board properly denied the application because the existing Architectural Guidelines allow her to fly both the American and Marine flags from a single flagpole, making her request for two poles an aesthetic choice rather than a necessity based on statutory right.

Key Issues & Findings

Refusal to allow installation of two flagpoles to display US and Marine Corps flags

Petitioner claimed Respondent violated statute (A.R.S. § 33-1808) and CC&Rs by denying her request to install two flagpoles for aesthetic reasons, arguing the denial effectively limited her right to display the flags and that the appeal process (CC&R § 7.9) was violated. The ALJ found the HOA's rule limiting flagpoles to one was a reasonable regulation under A.R.S. § 33-1808(B) because Petitioner could fly both flags on a single pole, and that the board complied with the appeal requirements of CC&R § 7.9.

Orders: Petitioner's petition is denied. The Board can properly find Petitioner in violation of the Architectural Guidelines and order her to remove one of her two flagpoles.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1808
  • A.R.S. § 33-1803
  • CC&R § 7.9
  • A.R.S. § 32-2199(B)
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)

Analytics Highlights

Topics: HOA, Flag, Flagpole, Architectural Review, CC&R, Rehearing, Military Flag
Additional Citations:

  • A.R.S. § 33-1808
  • A.R.S. § 33-1803
  • CC&R § 7.9
  • A.R.S. § 32-2199(B)
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)

Audio Overview

Decision Documents

19F-H1919053-REL-RHG Decision – 749213.pdf

Uploaded 2025-10-09T03:34:13 (163.6 KB)

19F-H1919053-REL-RHG Decision – 753595.pdf

Uploaded 2025-10-09T03:34:13 (163.3 KB)





Briefing Doc – 19F-H1919053-REL-RHG


Briefing Document: Monsanto v. Four Seasons at the Manor HOA

Executive Summary

This document synthesizes the findings and decision in the case of Joyce H. Monsanto (Petitioner) versus the Four Seasons at the Manor Homeowners Association (Respondent), adjudicated by the Arizona Office of Administrative Hearings. The central dispute involved the HOA’s denial of Ms. Monsanto’s request to install two flagpoles on her property, a decision she contested as a violation of state law and the community’s governing documents.

The Administrative Law Judge (ALJ) ultimately denied the petition and ruled in favor of the HOA. The decision rested on three critical findings:

1. HOA Rules are Reasonable: The HOA’s Architectural Guideline limiting each property to a single flagpole is a “reasonable” regulation explicitly permitted under Arizona statute A.R.S. § 33-1808(B). The guidelines allow for two flags to be flown from a single pole, meaning the HOA did not prohibit the display of the flags themselves.

2. No Procedural Violation: The HOA Board complied with the 45-day decision period for appeals outlined in its Covenants, Conditions, and Restrictions (CC&Rs). The ALJ determined that the Board rendered a decision at its November 8, 2018, meeting and that the subsequent posting of draft meeting minutes on December 4, 2018, constituted a sufficient written record within the required timeframe.

3. Dispute Driven by Aesthetics: The ALJ concluded that the core of the Petitioner’s case was not about patriotism or the HOA’s unreasonableness, but rather her personal preference. The decision states, “Petitioner’s petition is about her choice not to install a single flagpole for her own aesthetic reasons.” The ALJ found the testimony of the HOA’s president credible while deeming the Petitioner’s testimony that a decision was not made to be “incredible.”

I. Case Background and Timeline

The case centers on a single-issue petition filed on March 6, 2019, by Joyce H. Monsanto, a homeowner in the Four Seasons at the Manor community in Sun City, Arizona. Ms. Monsanto alleged that her HOA violated state law and its own CC&Rs by refusing to approve her application to affix two separate flagpoles to her house—one for the United States flag and one for the United States Marine Corps flag.

Ms. Monsanto’s family has a significant history of military service, including a husband who served 25 years in the Marines, one son with 25 years in the Marines, and another with 30 years in the Coast Guard.

Aug 31, 2018

Ms. Monsanto submits a Design Review Application to install two 6′ flagpoles on the exterior wall of her house.

Sep 22, 2018

The HOA’s Architectural Committee issues a written Notice of Disapproval, citing the Architectural Guidelines’ limit of one flagpole per lot.

Oct 1, 2018

Ms. Monsanto submits a written appeal to the HOA Board, arguing the denial was unreasonable and that the Board could grant a waiver.

Nov 8, 2018

The HOA Board holds a meeting where it states it considered the appeal. Testimony regarding the events of this meeting was a central point of contention in the case.

Dec 4, 2018

Draft minutes from the November 8 meeting are posted on the HOA website, stating the Board had rejected Ms. Monsanto’s request for a waiver for two flagpoles.

Mar 6, 2019

Ms. Monsanto files her petition with the Arizona Department of Real Estate.

May 30, 2019

An initial evidentiary hearing is held, with the ALJ finding that the Petitioner had not established a violation by the HOA.

Aug 22, 2019

The Commissioner of the Department of Real Estate grants Ms. Monsanto’s request for a rehearing.

Oct 21, 2019

A rehearing is held before the Office of Administrative Hearings.

Nov 18, 2019

The ALJ issues the final Amended Administrative Law Judge Decision, again finding in favor of the HOA.

II. Central Arguments and Evidence

Petitioner’s Position (Joyce H. Monsanto)

• Statutory and CC&R Violations: Argued the HOA’s denial violated A.R.S. § 33-1808 (governing flag display) and CC&R § 7.9 (the appeals process).

• Aesthetic and Practical Concerns: Acknowledged she could fly two flags from one pole but did not want to, stating it would block the view from her front window and was undesirable for “aesthetic reasons.”

• Failure to Follow Procedure: Claimed the Board violated CC&R § 7.9 by failing to render a decision and issue a written notice directly to her within the 45-day period following her appeal. She argued this failure should have triggered the “deemed approval” clause of the CC&R.

• Insufficiency of Notice: Maintained that the draft meeting minutes posted on the HOA’s website were not a valid written denial because they were not sent directly to her, did not explicitly mention her “appeal,” and were not formally approved until April 2019.

• Inconsistent Enforcement: Alleged that the HOA’s denial was unreasonable because it did not uniformly enforce its Architectural Guidelines.

Respondent’s Position (Four Seasons HOA)

• Compliance with Law: Asserted that its one-flagpole rule is a “reasonable” regulation permitted by A.R.S. § 33-1808(B) and does not prohibit the display of flags.

• Consistent Enforcement: HOA President Tony Nunziato testified that the Board has never granted a waiver for the one-flagpole rule and that all of the other approximately 14 homes (out of 140) with flagpoles have only one.

• Adherence to Appeal Procedure: Mr. Nunziato testified that the Board consulted with the Architectural Committee, considered the appeal at the November 8, 2018 meeting, and verbally informed Ms. Monsanto of the denial at that time.

• Timely Written Record: Contended that the draft meeting minutes posted online on December 4, 2018—within the 45-day window—served as the required written record of the decision, satisfying the terms of CC&R § 7.9.

III. Relevant Statutes and Community Rules

A.R.S. § 33-1808 (Flag Display)

• Protection of Display: An HOA “shall not prohibit the outdoor front yard or backyard display” of the American flag or military flags.

• Authority to Regulate: An HOA “shall adopt reasonable rules and regulations regarding the placement and manner of display.” Crucially, the statute specifies that these rules “may regulate the location and size of flagpoles, may limit the member to displaying no more than two flags at once and may limit the height of the flagpole… but shall not prohibit the installation of a flagpole.”

Four Seasons at the Manor Architectural Guidelines

• Original Rule (May 2016): “No flagpole shall be installed without the prior written approval of the Architectural Committee… and only one flagpole is permitted per Lot.” The maximum height was 12 feet.

• Amended Rule (November 8, 2018): The Board amended the guidelines, increasing the maximum pole height to 20 feet and adding rules for illumination at night. However, “The Board did not change the limit of one flagpole per lot.”

Four Seasons at the Manor CC&Rs

• CC&R § 7.8 (Board Approval for Initial Application): Requires the Board to “inform the submitting party of the final decision” and provide the owner with a “written response” within 60 days.

• CC&R § 7.9 (Appeals): In the event of an appeal of a disapproval, it requires the Board to “consult with the Architectural Committee” and “render its written decision” within 45 days. It further states that “Failure of the Board to render a decision within said forth-five (45) day period shall be deemed approval of the submission.”

IV. Administrative Law Judge’s Decision and Rationale

The ALJ’s order denied the Petitioner’s petition, affirming the HOA’s right to enforce its one-flagpole rule. The legal conclusions underpinning this decision were definitive.

Key Legal Conclusions

1. Burden of Proof Not Met: The Petitioner bore the burden of proving that the HOA violated the CC&Rs by a “preponderance of the evidence.” The ALJ concluded she failed to meet this standard.

2. HOA Rule Is Reasonable and Legal: The one-flagpole guideline is a reasonable rule explicitly authorized under A.R.S. § 33-1808(B). Because the Petitioner could fly both flags from a single pole, the HOA was regulating the manner of display, not prohibiting it.

3. Credibility of Testimony: The ALJ found the testimony of HOA President Tony Nunziato—that the Board consulted the committee, made a decision, and verbally informed the Petitioner—to be “credible and supported by the minutes of the meeting.” Conversely, the Petitioner’s testimony that the Board did not make a decision was found to be “incredible.”

4. Interpretation of the Appeals Process (CC&R § 7.9): This was a pivotal point of the ruling.

◦ Decision Rendered: The ALJ determined the Board “orally reached a decision” at the November 8, 2018 meeting, thus “rendering a decision” as required.

◦ Written Record Created: The draft meeting minutes posted on December 4, 2018, constituted a “writing memorializing its decision” within the 45-day timeframe that began with the October 1, 2018 appeal.

◦ No Direct Notification Required for Appeals: The ALJ applied the “negative implication cannon of contract construction.” Because CC&R § 7.8 (for initial applications) explicitly requires a written response be provided to the owner, and CC&R § 7.9 (for appeals) does not contain this specific language, the latter rule only requires that a written decision be created, not necessarily delivered to the appellant.

5. “Deemed Approval” Clause Not Triggered: Because the Board rendered a decision and created a written record within the 45-day period, the Petitioner did not establish that her request should have been deemed approved.

The final order concluded that the HOA Board can properly find Ms. Monsanto in violation of the Architectural Guidelines and order her to remove one of her two flagpoles.


Joyce H Monsanto vs. Four Seasons at the Manor Homeowners Association

Posted on by

Case Summary

Case ID 19F-H1919053-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2019-11-18
Administrative Law Judge Diane Mihalsky
Outcome total_loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Joyce H Monsanto Counsel —
Respondent Four Seasons at the Manor Homeowners Association Counsel Mark K. Sahl, Esq.

Alleged Violations

A.R.S. § 33-1808; CC&R § 7.9

Outcome Summary

The Administrative Law Judge denied the Petitioner's petition, finding that the HOA did not violate A.R.S. § 33-1808 because its guideline limiting residents to one flagpole (which permits flying both the US flag and military flags) constitutes a reasonable rule under the statute. Furthermore, the HOA did not violate the appeal process outlined in CC&R § 7.9.

Why this result: Petitioner failed to establish that Respondent’s Board violated A.R.S. § 33-1808 or CC&R § 7. The board properly denied the application because the existing Architectural Guidelines allow her to fly both the American and Marine flags from a single flagpole, making her request for two poles an aesthetic choice rather than a necessity based on statutory right.

Key Issues & Findings

Refusal to allow installation of two flagpoles to display US and Marine Corps flags

Petitioner claimed Respondent violated statute (A.R.S. § 33-1808) and CC&Rs by denying her request to install two flagpoles for aesthetic reasons, arguing the denial effectively limited her right to display the flags and that the appeal process (CC&R § 7.9) was violated. The ALJ found the HOA's rule limiting flagpoles to one was a reasonable regulation under A.R.S. § 33-1808(B) because Petitioner could fly both flags on a single pole, and that the board complied with the appeal requirements of CC&R § 7.9.

Orders: Petitioner's petition is denied. The Board can properly find Petitioner in violation of the Architectural Guidelines and order her to remove one of her two flagpoles.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1808
  • A.R.S. § 33-1803
  • CC&R § 7.9
  • A.R.S. § 32-2199(B)
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)

Analytics Highlights

Topics: HOA, Flag, Flagpole, Architectural Review, CC&R, Rehearing, Military Flag
Additional Citations:

  • A.R.S. § 33-1808
  • A.R.S. § 33-1803
  • CC&R § 7.9
  • A.R.S. § 32-2199(B)
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)

Audio Overview

Decision Documents

19F-H1919053-REL-RHG Decision – 749213.pdf

Uploaded 2025-10-08T07:09:08 (163.6 KB)

19F-H1919053-REL-RHG Decision – 753595.pdf

Uploaded 2025-10-08T07:09:09 (163.3 KB)





Briefing Doc – 19F-H1919053-REL-RHG


Briefing Document: Monsanto v. Four Seasons at the Manor HOA

Executive Summary

This document synthesizes the findings and decision in the case of Joyce H. Monsanto (Petitioner) versus the Four Seasons at the Manor Homeowners Association (Respondent), adjudicated by the Arizona Office of Administrative Hearings. The central dispute involved the HOA’s denial of Ms. Monsanto’s request to install two flagpoles on her property, a decision she contested as a violation of state law and the community’s governing documents.

The Administrative Law Judge (ALJ) ultimately denied the petition and ruled in favor of the HOA. The decision rested on three critical findings:

1. HOA Rules are Reasonable: The HOA’s Architectural Guideline limiting each property to a single flagpole is a “reasonable” regulation explicitly permitted under Arizona statute A.R.S. § 33-1808(B). The guidelines allow for two flags to be flown from a single pole, meaning the HOA did not prohibit the display of the flags themselves.

2. No Procedural Violation: The HOA Board complied with the 45-day decision period for appeals outlined in its Covenants, Conditions, and Restrictions (CC&Rs). The ALJ determined that the Board rendered a decision at its November 8, 2018, meeting and that the subsequent posting of draft meeting minutes on December 4, 2018, constituted a sufficient written record within the required timeframe.

3. Dispute Driven by Aesthetics: The ALJ concluded that the core of the Petitioner’s case was not about patriotism or the HOA’s unreasonableness, but rather her personal preference. The decision states, “Petitioner’s petition is about her choice not to install a single flagpole for her own aesthetic reasons.” The ALJ found the testimony of the HOA’s president credible while deeming the Petitioner’s testimony that a decision was not made to be “incredible.”

I. Case Background and Timeline

The case centers on a single-issue petition filed on March 6, 2019, by Joyce H. Monsanto, a homeowner in the Four Seasons at the Manor community in Sun City, Arizona. Ms. Monsanto alleged that her HOA violated state law and its own CC&Rs by refusing to approve her application to affix two separate flagpoles to her house—one for the United States flag and one for the United States Marine Corps flag.

Ms. Monsanto’s family has a significant history of military service, including a husband who served 25 years in the Marines, one son with 25 years in the Marines, and another with 30 years in the Coast Guard.

Aug 31, 2018

Ms. Monsanto submits a Design Review Application to install two 6′ flagpoles on the exterior wall of her house.

Sep 22, 2018

The HOA’s Architectural Committee issues a written Notice of Disapproval, citing the Architectural Guidelines’ limit of one flagpole per lot.

Oct 1, 2018

Ms. Monsanto submits a written appeal to the HOA Board, arguing the denial was unreasonable and that the Board could grant a waiver.

Nov 8, 2018

The HOA Board holds a meeting where it states it considered the appeal. Testimony regarding the events of this meeting was a central point of contention in the case.

Dec 4, 2018

Draft minutes from the November 8 meeting are posted on the HOA website, stating the Board had rejected Ms. Monsanto’s request for a waiver for two flagpoles.

Mar 6, 2019

Ms. Monsanto files her petition with the Arizona Department of Real Estate.

May 30, 2019

An initial evidentiary hearing is held, with the ALJ finding that the Petitioner had not established a violation by the HOA.

Aug 22, 2019

The Commissioner of the Department of Real Estate grants Ms. Monsanto’s request for a rehearing.

Oct 21, 2019

A rehearing is held before the Office of Administrative Hearings.

Nov 18, 2019

The ALJ issues the final Amended Administrative Law Judge Decision, again finding in favor of the HOA.

II. Central Arguments and Evidence

Petitioner’s Position (Joyce H. Monsanto)

• Statutory and CC&R Violations: Argued the HOA’s denial violated A.R.S. § 33-1808 (governing flag display) and CC&R § 7.9 (the appeals process).

• Aesthetic and Practical Concerns: Acknowledged she could fly two flags from one pole but did not want to, stating it would block the view from her front window and was undesirable for “aesthetic reasons.”

• Failure to Follow Procedure: Claimed the Board violated CC&R § 7.9 by failing to render a decision and issue a written notice directly to her within the 45-day period following her appeal. She argued this failure should have triggered the “deemed approval” clause of the CC&R.

• Insufficiency of Notice: Maintained that the draft meeting minutes posted on the HOA’s website were not a valid written denial because they were not sent directly to her, did not explicitly mention her “appeal,” and were not formally approved until April 2019.

• Inconsistent Enforcement: Alleged that the HOA’s denial was unreasonable because it did not uniformly enforce its Architectural Guidelines.

Respondent’s Position (Four Seasons HOA)

• Compliance with Law: Asserted that its one-flagpole rule is a “reasonable” regulation permitted by A.R.S. § 33-1808(B) and does not prohibit the display of flags.

• Consistent Enforcement: HOA President Tony Nunziato testified that the Board has never granted a waiver for the one-flagpole rule and that all of the other approximately 14 homes (out of 140) with flagpoles have only one.

• Adherence to Appeal Procedure: Mr. Nunziato testified that the Board consulted with the Architectural Committee, considered the appeal at the November 8, 2018 meeting, and verbally informed Ms. Monsanto of the denial at that time.

• Timely Written Record: Contended that the draft meeting minutes posted online on December 4, 2018—within the 45-day window—served as the required written record of the decision, satisfying the terms of CC&R § 7.9.

III. Relevant Statutes and Community Rules

A.R.S. § 33-1808 (Flag Display)

• Protection of Display: An HOA “shall not prohibit the outdoor front yard or backyard display” of the American flag or military flags.

• Authority to Regulate: An HOA “shall adopt reasonable rules and regulations regarding the placement and manner of display.” Crucially, the statute specifies that these rules “may regulate the location and size of flagpoles, may limit the member to displaying no more than two flags at once and may limit the height of the flagpole… but shall not prohibit the installation of a flagpole.”

Four Seasons at the Manor Architectural Guidelines

• Original Rule (May 2016): “No flagpole shall be installed without the prior written approval of the Architectural Committee… and only one flagpole is permitted per Lot.” The maximum height was 12 feet.

• Amended Rule (November 8, 2018): The Board amended the guidelines, increasing the maximum pole height to 20 feet and adding rules for illumination at night. However, “The Board did not change the limit of one flagpole per lot.”

Four Seasons at the Manor CC&Rs

• CC&R § 7.8 (Board Approval for Initial Application): Requires the Board to “inform the submitting party of the final decision” and provide the owner with a “written response” within 60 days.

• CC&R § 7.9 (Appeals): In the event of an appeal of a disapproval, it requires the Board to “consult with the Architectural Committee” and “render its written decision” within 45 days. It further states that “Failure of the Board to render a decision within said forth-five (45) day period shall be deemed approval of the submission.”

IV. Administrative Law Judge’s Decision and Rationale

The ALJ’s order denied the Petitioner’s petition, affirming the HOA’s right to enforce its one-flagpole rule. The legal conclusions underpinning this decision were definitive.

Key Legal Conclusions

1. Burden of Proof Not Met: The Petitioner bore the burden of proving that the HOA violated the CC&Rs by a “preponderance of the evidence.” The ALJ concluded she failed to meet this standard.

2. HOA Rule Is Reasonable and Legal: The one-flagpole guideline is a reasonable rule explicitly authorized under A.R.S. § 33-1808(B). Because the Petitioner could fly both flags from a single pole, the HOA was regulating the manner of display, not prohibiting it.

3. Credibility of Testimony: The ALJ found the testimony of HOA President Tony Nunziato—that the Board consulted the committee, made a decision, and verbally informed the Petitioner—to be “credible and supported by the minutes of the meeting.” Conversely, the Petitioner’s testimony that the Board did not make a decision was found to be “incredible.”

4. Interpretation of the Appeals Process (CC&R § 7.9): This was a pivotal point of the ruling.

◦ Decision Rendered: The ALJ determined the Board “orally reached a decision” at the November 8, 2018 meeting, thus “rendering a decision” as required.

◦ Written Record Created: The draft meeting minutes posted on December 4, 2018, constituted a “writing memorializing its decision” within the 45-day timeframe that began with the October 1, 2018 appeal.

◦ No Direct Notification Required for Appeals: The ALJ applied the “negative implication cannon of contract construction.” Because CC&R § 7.8 (for initial applications) explicitly requires a written response be provided to the owner, and CC&R § 7.9 (for appeals) does not contain this specific language, the latter rule only requires that a written decision be created, not necessarily delivered to the appellant.

5. “Deemed Approval” Clause Not Triggered: Because the Board rendered a decision and created a written record within the 45-day period, the Petitioner did not establish that her request should have been deemed approved.

The final order concluded that the HOA Board can properly find Ms. Monsanto in violation of the Architectural Guidelines and order her to remove one of her two flagpoles.


Patricia Wiercinski v. Long Meadow Ranch East Property Owners

Posted on by

Case Summary

Case ID 19F-H1918028-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2019-05-01
Administrative Law Judge Diane Mihalsky
Outcome none
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Patricia Wiercinski Counsel —
Respondent Long Meadow Ranch East Property Owners Association, Inc. Counsel Ashley N. Moscarello, Esq.

Alleged Violations

A.R.S. § 33-1805(A)

Outcome Summary

The Administrative Law Judge dismissed the petition upon rehearing, holding that the email chain discussing an incident involving the Petitioner's husband was an informal communication among Board members, not an official record of the association under A.R.S. § 33-1805(A), since the Board never took any formal action on the matter. Therefore, the HOA was not required to produce an un-redacted copy.

Why this result: The Petitioner failed to meet the burden of proof that the email string constituted 'financial and other records of the association' which Respondent was required to provide.

Key Issues & Findings

Failure to produce association records (un-redacted email string) upon member request

Petitioner alleged the HOA violated A.R.S. § 33-1805 by failing to produce an un-redacted copy of an email chain among Board members concerning an incident where Petitioner's husband allegedly harassed potential buyers, arguing the email constituted an official association record.

Orders: Petition denied and dismissed. The HOA did not violate A.R.S. § 33-1805(A) as the email string was determined not to be an official record of the association.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1805(A)
  • A.R.S. § 33-1804(E)(4)

Analytics Highlights

Topics: HOA records, Statutory violation, Document production, Informal communication, Board quorum, A.R.S. § 33-1805, Rehearing
Additional Citations:

  • A.R.S. § 33-1805(A)
  • A.R.S. § 33-1804(E)(4)
  • A.R.S. § 32-2199(B)
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)

Audio Overview

Decision Documents

19F-H1918028-REL-RHG Decision – 705044.pdf

Uploaded 2025-10-09T03:33:46 (136.8 KB)





Briefing Doc – 19F-H1918028-REL-RHG


Briefing Document: Wiercinski v. Long Meadow Ranch East Property Owners Association

Executive Summary

This document synthesizes the findings, arguments, and outcomes from two administrative hearings concerning a petition filed by homeowner Patricia Wiercinski against the Long Meadow Ranch East Property Owners Association (the “HOA”). The core of the dispute is the HOA’s alleged failure to produce records related to a June 19, 2017 incident where Wiercinski’s husband, Wayne Coates, allegedly engaged in belligerent and threatening behavior toward potential buyers of a neighboring property, causing the prospective sale to collapse.

Across an initial hearing and a subsequent rehearing, Administrative Law Judge Diane Mihalsky consistently ruled in favor of the HOA. The central finding was that the key evidence—an email chain discussing the incident among HOA board members—did not constitute an official “record of the association” under Arizona statute A.R.S. § 33-1805. The communications were deemed informal discussions among neighbors that never resulted in official board business or action. Consequently, the HOA was under no legal obligation to produce these private emails or to provide an un-redacted version to the petitioner. The judge also found the HOA’s decision to redact the names of the potential buyers and their agent was reasonable, given testimony regarding Mr. Coates’ alleged history of bullying and intimidation.

1. Case Overview

The matter involves a single-issue petition filed by Patricia Wiercinski alleging the Long Meadow Ranch East Property Owners Association, Inc. violated Arizona law by refusing to produce documents concerning its response to a specific incident involving her husband.

Case Detail

Information

Petitioner

Patricia Wiercinski

Respondent

Long Meadow Ranch East Property Owners Association, Inc.

Case Number

19F-H1918028-REL

Presiding Judge

Administrative Law Judge Diane Mihalsky

Initial Hearing

January 10, 2019

Rehearing

April 22, 2019

Core Allegation

Violation of A.R.S. § 33-1805 (Access to association financial and other records)

2. The Incident of June 19, 2017

On June 19, 2017, potential buyers, along with their architect and son, visited a vacant lot for sale on Puntenney Road, across the street from the residence of Patricia Wiercinski and Wayne Coates.

• The Confrontation: An email from the prospective buyers described an encounter with an “elderly man” (identified as Wayne Coates) who “came out of a home to the west and began to yell and scream.”

• Alleged Behavior: Mr. Coates’ actions were characterized as “belligerent and cursing,” “verbally abusive,” and “extremely confrontational.” He allegedly told the visitors that “nothing was for sale around here” and that they “needed to leave immediately.”

• Immediate Consequence: The incident directly resulted in the termination of the potential sale. In their email, the buyers stated: “would we want to live next to this type of behavior of [a] neighbor? The answer is no… due to the volatile potential of this man, we have decided at this point to remove it from our list.” They further stated they would avoid any property that required them to “drive past or have the chance of contact with this individual.”

3. The Central Evidence: The Email Correspondence

The focal point of the legal dispute is an email chain dated June 19-20, 2017, that was voluntarily produced by the HOA after the petition was filed. The emails reveal the immediate fallout from the incident and the initial reactions of the property owner and HOA board members.

• John Allen (Property Owner): After being informed by his realtor, Mr. Allen shared the complaint with the HOA Board of Directors (BOD), stating, “an owner should not be allowed to interfere with a potential sale of another owner’s property.” He indicated he would “employ legal action if necessary.”

• Gregg Arthur (HOA Director and Realtor): In an email to the Board, Mr. Arthur expressed significant concern, framing the situation as being “as bad as it gets” in the real estate world. He wrote, “Wayne thru his actions appears to have interfered with and destroyed a property sale. We need to meet and take action on this matter as it will have a broad and chilling effect amongst the realtor community (effecting us all)… action needs to be taken and quickly to prevent this from happening again.”

• Joe Zielinski (HOA Director): Mr. Zielinski’s email suggested potential legal consequences for Mr. Coates, noting his “arrest record and prison term and criminal history.” He stated that the Yavapai County Sheriff’s Office (YCSO) “may file charges against Wayne for disorderly conduct/harassment.” He concluded, “I don’t believe Wayne (and Patricia’s) aggressive and disruptive behavior will stop.”

4. Legal Proceedings and Evolving Arguments

The case was adjudicated over two separate hearings, during which the Petitioner’s legal theory shifted significantly.

4.1. Initial Hearing (January 10, 2019)

• Petitioner’s Argument: Ms. Wiercinski alleged that the HOA violated A.R.S. § 33-1805 by failing to produce official documents showing its deliberations and decisions regarding the incident. She argued that because a quorum of the board was included in the email discussion, they were required to formally address the matter and produce a record of their decision, even if the decision was to take no action. She also noted the failure to produce a map referenced in one of the emails.

• Respondent’s Position: The HOA contended it had not violated any statute. Its representatives testified that the email chain was an informal communication among board members on their personal servers, not an official HOA record. They stated the Board never formally discussed, voted on, or took any action regarding the incident, as it did not constitute a violation of any governing documents the HOA was empowered to enforce.

• Outcome: The petition was denied. The Administrative Law Judge (ALJ) found that the Petitioner failed to establish that any official documents regarding the incident existed that the HOA had failed to produce.

4.2. Rehearing (April 22, 2019)

• Basis for Rehearing: The rehearing was granted after Ms. Wiercinski alleged misconduct by the judge.

• Petitioner’s Shift in Argument: Ms. Wiercinski changed her theory of the case. She no longer argued that a formal decision was required. Instead, she contended that the email string itself was an official record of the association. Therefore, she argued, A.R.S. § 33-1805 required the HOA to produce a complete, un-redacted version, asserting she had a right to know the identity of her husband’s accusers.

• Respondent’s Position: The HOA reiterated that the emails were private communications and not official records. The HOA President, Mike Olson, testified that the names of the potential purchasers and their real estate agent were redacted because “Mr. Coates had a history of bullying and intimidating people.” The Community Manager, Kathy Andrews, affirmed that the incident was never entered into the HOA’s official records because the board took no action and viewed it as a personal dispute outside its authority.

• Outcome: The petition was dismissed. The ALJ reaffirmed that the email string was not a “record of the association” and, therefore, the statute did not require the HOA to provide an un-redacted version.

5. Key Findings and Conclusions of the Administrative Law Judge

Across both decisions, Judge Mihalsky’s conclusions of law were consistent and decisive.

• Informal Discussion vs. Official Business: The judge ruled that the “mere fact that a quorum of Board members may discuss a topic does not make it official Board business, especially if they do not end up taking any action to make a matter board business.”

• Status of the Email Chain: The emails were determined to be informal communications, not “financial and other records of the association” subject to A.R.S. § 33-1805. As such, the HOA was not legally obligated to produce them.

• No Violation of Statute: Because the Petitioner did not establish that any official documents existed regarding the incident, her petition was denied. In the rehearing, the petition was dismissed because the email string was not an official record requiring un-redacted disclosure.

• Reasonableness of Redactions: The judge commented that the HOA president’s testimony—that he redacted the names out of fear that Mr. Coates would harass the individuals involved—”does not appear unreasonable.”

• Burden of Proof: In both hearings, the Petitioner failed to meet her burden of proof to establish by a preponderance of the evidence that the Respondent had violated the statute.

6. Key Individuals and Their Roles

Individual

Role / Significance

Patricia Wiercinski

Petitioner; homeowner who filed the petition against the HOA for withholding records.

Wayne Coates

Petitioner’s Husband; central figure in the June 19, 2017 incident. Alleged to have a history of aggressive behavior.

Mike Olson

HOA President; testified that emails were informal and names were redacted to protect individuals from Mr. Coates.

Gregg Arthur

HOA Director / Realtor; warned that Mr. Coates’ actions destroyed a sale and would have a “chilling effect.”

Kathy Andrews

Community Manager (HOAMCO); testified that no official records of the incident exist in the HOA’s archives.

John Allen

Property Owner; was attempting to sell the lot and reported the incident to the HOA.

Joe Zielinski

HOA Director; mentioned Mr. Coates’ criminal history in an email and suggested his disruptive behavior would continue.

Diane Mihalsky

Administrative Law Judge; presided over both hearings and issued decisions dismissing the petition.


Patricia Wiercinski v. Long Meadow Ranch East Property Owners

Posted on by

Case Summary

Case ID 19F-H1918028-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2019-05-01
Administrative Law Judge Diane Mihalsky
Outcome none
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Patricia Wiercinski Counsel —
Respondent Long Meadow Ranch East Property Owners Association, Inc. Counsel Ashley N. Moscarello, Esq.

Alleged Violations

A.R.S. § 33-1805(A)

Outcome Summary

The Administrative Law Judge dismissed the petition upon rehearing, holding that the email chain discussing an incident involving the Petitioner's husband was an informal communication among Board members, not an official record of the association under A.R.S. § 33-1805(A), since the Board never took any formal action on the matter. Therefore, the HOA was not required to produce an un-redacted copy.

Why this result: The Petitioner failed to meet the burden of proof that the email string constituted 'financial and other records of the association' which Respondent was required to provide.

Key Issues & Findings

Failure to produce association records (un-redacted email string) upon member request

Petitioner alleged the HOA violated A.R.S. § 33-1805 by failing to produce an un-redacted copy of an email chain among Board members concerning an incident where Petitioner's husband allegedly harassed potential buyers, arguing the email constituted an official association record.

Orders: Petition denied and dismissed. The HOA did not violate A.R.S. § 33-1805(A) as the email string was determined not to be an official record of the association.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1805(A)
  • A.R.S. § 33-1804(E)(4)

Analytics Highlights

Topics: HOA records, Statutory violation, Document production, Informal communication, Board quorum, A.R.S. § 33-1805, Rehearing
Additional Citations:

  • A.R.S. § 33-1805(A)
  • A.R.S. § 33-1804(E)(4)
  • A.R.S. § 32-2199(B)
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)

Audio Overview

Decision Documents

19F-H1918028-REL-RHG Decision – 705044.pdf

Uploaded 2025-10-08T07:08:04 (136.8 KB)





Briefing Doc – 19F-H1918028-REL-RHG


Briefing Document: Wiercinski v. Long Meadow Ranch East Property Owners Association

Executive Summary

This document synthesizes the findings, arguments, and outcomes from two administrative hearings concerning a petition filed by homeowner Patricia Wiercinski against the Long Meadow Ranch East Property Owners Association (the “HOA”). The core of the dispute is the HOA’s alleged failure to produce records related to a June 19, 2017 incident where Wiercinski’s husband, Wayne Coates, allegedly engaged in belligerent and threatening behavior toward potential buyers of a neighboring property, causing the prospective sale to collapse.

Across an initial hearing and a subsequent rehearing, Administrative Law Judge Diane Mihalsky consistently ruled in favor of the HOA. The central finding was that the key evidence—an email chain discussing the incident among HOA board members—did not constitute an official “record of the association” under Arizona statute A.R.S. § 33-1805. The communications were deemed informal discussions among neighbors that never resulted in official board business or action. Consequently, the HOA was under no legal obligation to produce these private emails or to provide an un-redacted version to the petitioner. The judge also found the HOA’s decision to redact the names of the potential buyers and their agent was reasonable, given testimony regarding Mr. Coates’ alleged history of bullying and intimidation.

1. Case Overview

The matter involves a single-issue petition filed by Patricia Wiercinski alleging the Long Meadow Ranch East Property Owners Association, Inc. violated Arizona law by refusing to produce documents concerning its response to a specific incident involving her husband.

Case Detail

Information

Petitioner

Patricia Wiercinski

Respondent

Long Meadow Ranch East Property Owners Association, Inc.

Case Number

19F-H1918028-REL

Presiding Judge

Administrative Law Judge Diane Mihalsky

Initial Hearing

January 10, 2019

Rehearing

April 22, 2019

Core Allegation

Violation of A.R.S. § 33-1805 (Access to association financial and other records)

2. The Incident of June 19, 2017

On June 19, 2017, potential buyers, along with their architect and son, visited a vacant lot for sale on Puntenney Road, across the street from the residence of Patricia Wiercinski and Wayne Coates.

• The Confrontation: An email from the prospective buyers described an encounter with an “elderly man” (identified as Wayne Coates) who “came out of a home to the west and began to yell and scream.”

• Alleged Behavior: Mr. Coates’ actions were characterized as “belligerent and cursing,” “verbally abusive,” and “extremely confrontational.” He allegedly told the visitors that “nothing was for sale around here” and that they “needed to leave immediately.”

• Immediate Consequence: The incident directly resulted in the termination of the potential sale. In their email, the buyers stated: “would we want to live next to this type of behavior of [a] neighbor? The answer is no… due to the volatile potential of this man, we have decided at this point to remove it from our list.” They further stated they would avoid any property that required them to “drive past or have the chance of contact with this individual.”

3. The Central Evidence: The Email Correspondence

The focal point of the legal dispute is an email chain dated June 19-20, 2017, that was voluntarily produced by the HOA after the petition was filed. The emails reveal the immediate fallout from the incident and the initial reactions of the property owner and HOA board members.

• John Allen (Property Owner): After being informed by his realtor, Mr. Allen shared the complaint with the HOA Board of Directors (BOD), stating, “an owner should not be allowed to interfere with a potential sale of another owner’s property.” He indicated he would “employ legal action if necessary.”

• Gregg Arthur (HOA Director and Realtor): In an email to the Board, Mr. Arthur expressed significant concern, framing the situation as being “as bad as it gets” in the real estate world. He wrote, “Wayne thru his actions appears to have interfered with and destroyed a property sale. We need to meet and take action on this matter as it will have a broad and chilling effect amongst the realtor community (effecting us all)… action needs to be taken and quickly to prevent this from happening again.”

• Joe Zielinski (HOA Director): Mr. Zielinski’s email suggested potential legal consequences for Mr. Coates, noting his “arrest record and prison term and criminal history.” He stated that the Yavapai County Sheriff’s Office (YCSO) “may file charges against Wayne for disorderly conduct/harassment.” He concluded, “I don’t believe Wayne (and Patricia’s) aggressive and disruptive behavior will stop.”

4. Legal Proceedings and Evolving Arguments

The case was adjudicated over two separate hearings, during which the Petitioner’s legal theory shifted significantly.

4.1. Initial Hearing (January 10, 2019)

• Petitioner’s Argument: Ms. Wiercinski alleged that the HOA violated A.R.S. § 33-1805 by failing to produce official documents showing its deliberations and decisions regarding the incident. She argued that because a quorum of the board was included in the email discussion, they were required to formally address the matter and produce a record of their decision, even if the decision was to take no action. She also noted the failure to produce a map referenced in one of the emails.

• Respondent’s Position: The HOA contended it had not violated any statute. Its representatives testified that the email chain was an informal communication among board members on their personal servers, not an official HOA record. They stated the Board never formally discussed, voted on, or took any action regarding the incident, as it did not constitute a violation of any governing documents the HOA was empowered to enforce.

• Outcome: The petition was denied. The Administrative Law Judge (ALJ) found that the Petitioner failed to establish that any official documents regarding the incident existed that the HOA had failed to produce.

4.2. Rehearing (April 22, 2019)

• Basis for Rehearing: The rehearing was granted after Ms. Wiercinski alleged misconduct by the judge.

• Petitioner’s Shift in Argument: Ms. Wiercinski changed her theory of the case. She no longer argued that a formal decision was required. Instead, she contended that the email string itself was an official record of the association. Therefore, she argued, A.R.S. § 33-1805 required the HOA to produce a complete, un-redacted version, asserting she had a right to know the identity of her husband’s accusers.

• Respondent’s Position: The HOA reiterated that the emails were private communications and not official records. The HOA President, Mike Olson, testified that the names of the potential purchasers and their real estate agent were redacted because “Mr. Coates had a history of bullying and intimidating people.” The Community Manager, Kathy Andrews, affirmed that the incident was never entered into the HOA’s official records because the board took no action and viewed it as a personal dispute outside its authority.

• Outcome: The petition was dismissed. The ALJ reaffirmed that the email string was not a “record of the association” and, therefore, the statute did not require the HOA to provide an un-redacted version.

5. Key Findings and Conclusions of the Administrative Law Judge

Across both decisions, Judge Mihalsky’s conclusions of law were consistent and decisive.

• Informal Discussion vs. Official Business: The judge ruled that the “mere fact that a quorum of Board members may discuss a topic does not make it official Board business, especially if they do not end up taking any action to make a matter board business.”

• Status of the Email Chain: The emails were determined to be informal communications, not “financial and other records of the association” subject to A.R.S. § 33-1805. As such, the HOA was not legally obligated to produce them.

• No Violation of Statute: Because the Petitioner did not establish that any official documents existed regarding the incident, her petition was denied. In the rehearing, the petition was dismissed because the email string was not an official record requiring un-redacted disclosure.

• Reasonableness of Redactions: The judge commented that the HOA president’s testimony—that he redacted the names out of fear that Mr. Coates would harass the individuals involved—”does not appear unreasonable.”

• Burden of Proof: In both hearings, the Petitioner failed to meet her burden of proof to establish by a preponderance of the evidence that the Respondent had violated the statute.

6. Key Individuals and Their Roles

Individual

Role / Significance

Patricia Wiercinski

Petitioner; homeowner who filed the petition against the HOA for withholding records.

Wayne Coates

Petitioner’s Husband; central figure in the June 19, 2017 incident. Alleged to have a history of aggressive behavior.

Mike Olson

HOA President; testified that emails were informal and names were redacted to protect individuals from Mr. Coates.

Gregg Arthur

HOA Director / Realtor; warned that Mr. Coates’ actions destroyed a sale and would have a “chilling effect.”

Kathy Andrews

Community Manager (HOAMCO); testified that no official records of the incident exist in the HOA’s archives.

John Allen

Property Owner; was attempting to sell the lot and reported the incident to the HOA.

Joe Zielinski

HOA Director; mentioned Mr. Coates’ criminal history in an email and suggested his disruptive behavior would continue.

Diane Mihalsky

Administrative Law Judge; presided over both hearings and issued decisions dismissing the petition.


Rogelio A. Garcia vs. Villagio at Tempe Homeowners

Posted on by

Case Summary

Case ID 19F-H1918009-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2019-03-04
Administrative Law Judge Velva Moses-Thompson
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Rogelio A. Garcia Counsel —
Respondent Villagio at Tempe Homeowners Association Counsel Nathan Tennyson

Alleged Violations

ARIZ. REV. STAT. section 33-1242

Outcome Summary

The Administrative Law Judge dismissed the petition, finding that Petitioner Rogelio A. Garcia failed to prove by a preponderance of the evidence that Respondent Villagio at Tempe Homeowners Association violated ARIZ. REV. STAT. section 33-1242 regarding procedures for notices of violation. Respondent was deemed the prevailing party.

Why this result: Petitioner failed to meet his burden of proof. The HOA was not required to provide the requested information because Petitioner did not respond by certified mail within 21 calendar days. The HOA also provided the process for contesting the notice, negating the requirement to inform the Petitioner of the option to petition for an administrative hearing.

Key Issues & Findings

Alleged violation of statutory notice requirements for property violations.

Petitioner Rogelio A. Garcia alleged that Respondent Villagio at Tempe Homeowners Association violated A.R.S. § 33-1242. The ALJ found that because Mr. Garcia did not submit a written response by certified mail within twenty-one days, Villagio was not required to provide the information required under A.R.S. § 33-1242(C), such as the observer's name. Since Villagio notified Mr. Garcia of the appeal process in the notices, they were not required to provide notice of the right to petition for an administrative hearing.

Orders: Mr. Garcia’s petition is dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • ARIZ. REV. STAT. section 33-1242
  • ARIZ. REV. STAT. section 32-2199.01
  • ARIZ. REV. STAT. section 32-2199.02

Analytics Highlights

Topics: HOA, Statute Violation, Notice Procedure, A.R.S. 33-1242, Rehearing
Additional Citations:

  • ARIZ. REV. STAT. section 33-1242
  • ARIZ. REV. STAT. section 32-2199.01
  • ARIZ. REV. STAT. section 32-2199.02
  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. ADMIN. CODE § R2-19-119

Audio Overview

Decision Documents

19F-H1918009-REL-RHG Decision – 692638.pdf

Uploaded 2025-10-09T03:33:25 (89.4 KB)





Briefing Doc – 19F-H1918009-REL-RHG


Administrative Hearing Brief: Garcia v. Villagio at Tempe Homeowners Association

Executive Summary

This document synthesizes the findings from two administrative law hearings concerning a dispute between homeowner Rogelio A. Garcia (Petitioner) and the Villagio at Tempe Homeowners Association (Respondent). The core of the dispute was Mr. Garcia’s allegation that the HOA violated Arizona Revised Statute (A.R.S.) § 33-1242 in its handling of a violation notice for an improper short-term rental.

The Administrative Law Judge (ALJ) dismissed Mr. Garcia’s petition in both an initial hearing on October 30, 2018, and a subsequent rehearing on February 12, 2019. The rulings consistently found that Mr. Garcia failed to meet his burden of proof.

The central conclusion of the ALJ was that the statutory protections Mr. Garcia claimed he was denied under A.R.S. § 33-1242 are contingent upon the homeowner first taking a specific action: responding to a violation notice in writing via certified mail within 21 calendar days. It was undisputed in both hearings that Mr. Garcia did not take this step. Consequently, the HOA’s statutory obligations to provide the name of the violation’s observer and other specific information were never triggered. Furthermore, because the HOA’s violation notices included instructions for its own internal appeal process, it was not required by statute to inform Mr. Garcia of his option to petition for a separate administrative hearing.

Case Background and Chronology

The case centers on a series of violation notices sent by the Villagio at Tempe Homeowners Association to unit owner Rogelio A. Garcia concerning the use of his property. Mr. Garcia subsequently petitioned the Arizona Department of Real Estate, alleging procedural violations by the HOA.

March 8, 2018

Villagio sends Mr. Garcia a letter alleging his unit is being rented in violation of short-term lease provisions in the CC&Rs.

March 22, 2018

Villagio sends a second notice, indicating a $1,000 fine has been posted to Mr. Garcia’s account for the ongoing violation.

April 5, 2018

Villagio sends a third notice, indicating a $2,000 fine has been posted to his account.

August 17, 2018

Mr. Garcia files a petition with the Arizona Department of Real Estate alleging Villagio violated A.R.S. § 33-1242.

October 30, 2018

The initial evidentiary hearing is held before Administrative Law Judge Velva Moses-Thompson.

November 19, 2018

The ALJ issues a decision dismissing Mr. Garcia’s petition.

January 3, 2019

The Arizona Department of Real Estate issues an order for a rehearing of the matter at Mr. Garcia’s request.

February 12, 2019

A rehearing is held, with testimony from Mr. Garcia and Tom Gordon, Villagio’s Community Manager.

March 4, 2019

The ALJ issues a final decision, again dismissing Mr. Garcia’s petition and affirming Villagio as the prevailing party. The order is made binding on the parties.

Petitioner’s Arguments (Rogelio A. Garcia)

Across both hearings, Mr. Garcia maintained that Villagio violated the procedural requirements of A.R.S. § 33-1242. His specific arguments included:

• Failure to Provide Observer’s Name: Villagio did not provide the first and last name of the person or persons who observed the alleged short-term rental violation.

• Denial of Administrative Hearing Notice: The HOA failed to provide written notice of his option to petition for an administrative hearing with the state real estate department.

• Denial of Response Opportunity: Mr. Garcia contended that Villagio effectively prevented him from responding via certified mail within the 21-day statutory window. He based this claim on two points:

◦ The HOA issued a second notice and a fine only 14 days after the first notice, creating confusion and pressure that precluded a 21-day response.

◦ The notices included the phrase, “Please bring this issue into compliance within 10 days of this notice,” which he interpreted as the operative deadline, superseding the 21-day statutory period.

• In his petition, he stated the violation letter “did not allow for home owner to respond to violation by certified letter within 21 calendar days after the date of the notice.”

Respondent’s Arguments (Villagio at Tempe HOA)

Villagio’s defense, presented by Nathan Tennyson, Esq., centered on a direct interpretation of the statute and Mr. Garcia’s failure to adhere to its requirements.

• Petitioner’s Inaction as the Decisive Factor: Villagio’s primary argument was that Mr. Garcia never took the necessary step to trigger the protections of A.R.S. § 33-1242(C). The statute requires the homeowner to first send a written response via certified mail within 21 days. As Mr. Garcia did not do this, Villagio was under no obligation to provide the observer’s name or the other detailed information outlined in that subsection.

• Sufficiency of Internal Appeal Process: The HOA argued it was exempt from the requirement to provide notice of an administrative hearing because its violation letters fulfilled the statute’s alternative. The letters provided a clear process for contesting the notice, directing Mr. Garcia to a website (http://www.hoacompliance.com/Apoeals) to file an appeal with the Board of Directors.

• Statutory Inapplicability (Argument from Rehearing): During the rehearing, Villagio introduced a new argument that A.R.S. § 33-1242 was not applicable to the dispute at all. They contended the statute addresses violations related to the condition of a property, whereas Mr. Garcia’s violation was a matter of property use (i.e., short-term renting).

• No Prevention of Response: Villagio’s community manager, Tom Gordon, testified that the HOA does not restrict homeowners from responding to notices within the 21-day period. Mr. Garcia also admitted under cross-examination that no court order had prohibited him from sending a response.

Administrative Law Judge’s Findings and Rulings

The Administrative Law Judge (ALJ) sided with the Respondent in both decisions, dismissing the petition based on a strict interpretation of the law and the evidence presented.

Burden of Proof

The ALJ established in both rulings that Mr. Garcia, as the petitioner, bore the burden of proving the alleged violation by a “preponderance of the evidence.” This standard requires evidence that is of greater weight or more convincing than the evidence offered in opposition to it.

Interpretation and Application of A.R.S. § 33-1242

The decisions hinged on a procedural reading of the statute:

1. Response Requirement is a Prerequisite: The ALJ found that the obligations for an HOA under subsection (C) of the statute—including providing the observer’s name, the date of the violation, and the specific rule violated—are expressly conditioned on the unit owner first providing a written response via certified mail within 21 days as stipulated in subsection (B).

2. Internal Appeal Process Satisfies Notice Requirement: The ALJ concluded that under subsection (D), an HOA is only required to provide notice of the option for a state administrative hearing if it has not already provided the process the unit owner must follow to contest the notice.

Rulings and Final Disposition

Based on this legal framework, the ALJ made the following conclusive findings:

• Petitioner Failed to Act: It was undisputed that Mr. Garcia did not respond in writing via certified mail to any of the three notices within the 21-day period. This failure meant Villagio’s statutory duty to provide the observer’s name was never activated.

• No Evidence of Prevention: Mr. Garcia failed to provide evidence showing how the issuance of subsequent notices legally prevented him from responding to the initial notice within its 21-day window. The ALJ found his belief that he only had 10 days was a misinterpretation and did not constitute prevention by the HOA.

• HOA Fulfilled Its Obligation: Villagio’s notices included instructions for contesting the violation through its own internal process. By doing so, Villagio satisfied the requirements of A.R.S. § 33-1242(D) and was therefore not obligated to inform Mr. Garcia of the option to petition for a separate administrative hearing.

• Petition Dismissed: Because Mr. Garcia failed to meet his burden of proof to establish a violation of A.R.S. § 33-1242, his petition was ordered dismissed in both the initial and rehearing decisions. The March 4, 2019, order was deemed binding on the parties, with any further appeal required to be filed with the superior court.