Tag Archives: Statute Violation

Schafer, Kevin W. & Lawton, Patricia A. v. Sycamore Springs

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Case Summary

Case ID 24F-H019-REL
Agency ADRE
Tribunal OAH
Decision Date 2024-01-01
Administrative Law Judge Brian Del Vecchio
Outcome total
Filing Fees Refunded $1,000.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Kevin W. Schafer & Patricia A. Lawton Counsel Craig L. Cline
Respondent Sycamore Springs Homeowners Association, INC. Counsel Edith I. Rudder & Eden G. Cohen

Alleged Violations

ARIZ. REV. STAT. § 33-1808(B) & CC&Rs Design Guidelines Section II(O)
CC&Rs Design Guidelines Section III(A)

Outcome Summary

Petitioners prevailed on both filed issues: the Respondent's conditional approval of the flagpole violated CC&Rs and statute, and the Violation Notice regarding the building envelope was improper as Petitioners were found to be in compliance (17,451 sq ft vs. 22,000 sq ft maximum). Respondent was ordered to reimburse the $1,000 filing fee. Request for civil penalties was denied.

Key Issues & Findings

Conditional approval of portable flagpole

Respondent conditionally approved Petitioners' DMR for a portable flagpole, but the conditions placed (limiting height, restricting mobility, and requiring placement on the side of the house) were outside the authority granted by the CC&Rs and violated ARIZ. REV. STAT. § 33-1808, which protects the display of the American flag in front or back yards. Petitioner sustained burden of proof.

Orders: Respondent must abide by the statute; civil penalty denied.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. § 33-1808(B)
  • CC&Rs Design Guidelines Section II(O)

Violation Notice regarding Building Envelope compliance

Respondent sent a Violation Notice claiming Petitioners' building envelope was 38,000 square feet, exceeding the 22,000 square foot maximum limit defined in DG § III(A). The evidence established Petitioners' actual building envelope was 17,451 square feet, based on a superior 'boots on the ground' survey, proving no violation occurred. Petitioner sustained burden of proof.

Orders: Petitioners' building envelope did not violate the CC&Rs maximum limit; civil penalty denied.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • CC&Rs Design Guidelines Section III(A)

Analytics Highlights

Topics: homeowner dispute, flagpole, building envelope, selective enforcement allegation, CC&R violation, statute violation
Additional Citations:

  • ARIZ. REV. STAT. § 32-2199 et seq.
  • ARIZ. REV. STAT. § 33-1808
  • ARIZ. REV. STAT. § 32-2199.02(A)

Decision Documents

24F-H019-REL Decision – 1117050.pdf

Uploaded 2025-10-09T03:43:13 (47.1 KB)

24F-H019-REL Decision – 1121577.pdf

Uploaded 2025-10-09T03:43:13 (52.0 KB)

24F-H019-REL Decision – 1122554.pdf

Uploaded 2025-10-09T03:43:13 (46.1 KB)

24F-H019-REL Decision – 1128513.pdf

Uploaded 2025-10-09T03:43:13 (40.1 KB)

24F-H019-REL Decision – 1128831.pdf

Uploaded 2025-10-09T03:43:14 (149.8 KB)

Sandra Swanson & Robert Barnes v. Circle G Ranches 4 Homeowners

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Case Summary

Case ID 21F-H2120020-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2022-02-02
Administrative Law Judge Jenna Clark
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Sandra Swanson & Robert Barnes Counsel Kristin Roebuck Bethell, Esq.
Respondent Circle G Ranches 4 Homeowners Association Counsel Samantha Cote, Esq.

Alleged Violations

ARIZ. REV. STAT. § 33-1805

Outcome Summary

The Administrative Law Judge denied the Petitioners' petition, concluding they failed to prove by a preponderance of the evidence that the Homeowners Association violated ARIZ. REV. STAT. § 33-1805 regarding the availability of voting records.

Why this result: Petitioners failed to demonstrate that the HOA violated the statute through its NDA request or its method of providing the records (redacted ballots and separate unredacted envelopes) and failed to prove the records were not made reasonably available within the required statutory time frame.

Key Issues & Findings

Failure to comply with voting records request (regarding assessment and cumulative voting records)

Petitioners alleged the Association violated ARIZ. REV. STAT. § 33-1805 by requiring an NDA and providing redacted ballots and separate unredacted envelopes, which prevented Petitioners from cross-referencing votes with voters. Respondent argued it timely provided the totality of the requested information and that the manner of delivery did not violate the statute.

Orders: Petitioners' petition is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 33-1805
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2199.02(B)
  • ARIZ. REV. STAT. § 41-1092.08(H)
  • ARIZ. REV. STAT. § 12-904(A)
  • ARIZ. ADMIN. CODE R2-19-119

Analytics Highlights

Topics: Records Request, HOA Governance, Statute Violation, Voting Records, Non-Disclosure Agreement (NDA)
Additional Citations:

  • ARIZ. REV. STAT. § 33-1805

Audio Overview

Decision Documents

21F-H2120020-REL-RHG Decision – 944169.pdf

Uploaded 2025-10-09T03:36:24 (184.1 KB)

21F-H2120020-REL-RHG Decision – 944171.pdf

Uploaded 2025-10-09T03:36:25 (184.1 KB)





Briefing Doc – 21F-H2120020-REL-RHG


Briefing Document: Swanson & Barnes v. Circle G Ranches 4 HOA

Executive Summary

This document synthesizes the findings from the Administrative Law Judge (ALJ) Decision in case number 21F-H2120020-REL-RHG, a dispute between homeowners Sandra Swanson & Robert Barnes (“Petitioners”) and the Circle G Ranches 4 Homeowners Association (“Respondent”). The core issue was whether the Association violated Arizona Revised Statutes (ARIZ. REV. STAT.) § 33-1805 by its handling of the Petitioners’ request for voting records.

The Petitioners alleged the Association failed to make records “reasonably available” by providing redacted ballots and separate, unredacted envelopes, a method that prevented them from matching specific votes to individual homeowners. They argued this, along with an initial request to sign a nondisclosure agreement (NDA), constituted an unlawful barrier to access.

The Association countered that it had a duty to balance the Petitioners’ request with the privacy and safety of its members, citing concerns about potential harassment. It argued that by providing the totality of the requested information—albeit in a separated format—it fulfilled its statutory obligations in a reasonable manner and within the required timeframe.

Ultimately, the ALJ ruled in favor of the Association. The decision concluded that the Petitioners failed to meet their burden of proof. The judge found that the Association’s actions—including the initial NDA request and the methodology of providing separated documents—did not constitute a violation of the statute. While deemed “not ideal,” the method was found to be “reasonable under the totality of underlying circumstances,” and the petition was denied.

Case Background

This matter was adjudicated in the Arizona Office of Administrative Hearings (OAH) following a petition filed with the Arizona Department of Real Estate. The case revolves around a homeowner’s right to access association records versus an association’s duty to protect its members’ privacy.

Parties Involved

Representation

Petitioners

Sandra Swanson & Robert Barnes

Kristin Roebuck Bethell, Esq.

Respondent

Circle G Ranches 4 Homeowners Association

Samantha Cote, Esq.

Administrative Law Judge (ALJ) Jenna Clark

Core Dispute

The central conflict stems from records requests made by the Petitioners in January 2020 for ballots and related documents from two separate votes:

1. A vote on or about October 28, 2019, regarding an increase in dues.

2. A vote in December 2019 regarding a proposed Declaration Amendment to prohibit cumulative voting.

The Petitioners alleged that the Association’s response failed to comply with ARIZ. REV. STAT. § 33-1805, which mandates that records be made “reasonably available” for examination.

Procedural History

The dispute followed a lengthy procedural path, beginning with the Petitioners’ initial filing on September 22, 2020. An initial Administrative Law Judge Decision was issued on May 17, 2021. The Petitioners requested and were granted a rehearing on the grounds that the decision was “arbitrary, capricious, or an abuse of discretion.” The final hearing detailed in this decision took place on January 13, 2022, after several continuances requested by both parties.

Chronology of Key Events

Oct 4, 2017

The Association’s Board approves and adopts the “Rule Requiring Secret Ballots,” mandating secret ballots for votes on special assessments.

Jan 6, 2020

Petitioners submit a written request to view the votes for the proposed amendment on cumulative voting.

Jan 13, 2020

The Association Board meets to discuss the request. Citing member privacy concerns and past complaints of “harassing” behavior by Petitioners, the Board votes 8:1 to require Petitioners to sign a nondisclosure agreement (NDA) before viewing ballots. Petitioners decline.

Jan 16, 2020

Petitioners’ counsel sends a formal letter requesting all ballots and related documents for both the dues increase vote and the cumulative voting amendment.

Jan 30, 2020

The Association’s attorney responds, stating the Association must “balance your clients’ requests against the privacy and safety of all Owners.” The letter confirms the records will be made available for inspection.

Feb 7, 2020

Petitioners inspect records at the attorney’s office. They are provided two stacks of documents: redacted ballots and unredacted envelopes. This method, designed to protect voter identity, prevents matching ballots to specific voters. Petitioners review the cumulative voting records for 3.5 hours but do not review the assessment-related documents.

Aug 5, 2020

Petitioners’ attorney sends a new letter demanding “unredacted ballots…along with all envelopes” for the dues increase vote, alleging the secrecy of the ballots was optional. No additional documents are provided by the Association.

Sep 22, 2020

Petitioners file a formal petition with the Arizona Department of Real Estate, initiating the legal proceedings.

Jan 13, 2022

A rehearing is held before ALJ Jenna Clark, where both parties present oral arguments but no new evidence or testimony.

Feb 2, 2022

ALJ Clark issues the final Administrative Law Judge Decision, denying the Petitioners’ petition.

Central Legal Arguments

At the January 13, 2022, rehearing, both parties presented their final arguments regarding the alleged violation of ARIZ. REV. STAT. § 33-1805.

Petitioners’ Position (Swanson & Barnes)

• Statutory Requirement: The statute requires unredacted copies of requested documents. The law specifies what records must be produced, not how they can be produced in a modified format.

• Unlawful Barrier: The Association erected an unlawful barrier by providing documents in a manner that made it impossible to “cross reference (i.e. match) the votes with the purported voters.” This did not satisfy the “reasonably available” standard.

• Improper NDA Condition: The Association had no right to condition access to the records on the signing of an NDA, as this is not one of the enumerated exceptions in the statute for withholding documents.

• No Expectation of Privacy: The ballots were not truly “secret ballots” because some homeowners’ names appeared on them or were signed. Therefore, voters could not have held a reasonable expectation of privacy.

Respondent’s Position (Circle G Ranches 4 HOA)

• Statutory Compliance: The Association was not in violation because the statute does not dictate the specific manner or format in which records must be made available. They argued they had “timely provided the totality of records Petitioners had requested.”

• Balancing of Duties: The Association devised a method (providing redacted ballots and separate unredacted envelopes) to fulfill its duty to provide records while simultaneously upholding its responsibility to protect members from potential harassment or retaliation, thereby satisfying all its obligations.

• Reasonable Protection: The request to sign an NDA was a reasonable and necessary step to protect members’ privacy regarding their secret ballot votes. Furthermore, it was ultimately irrelevant because the records were provided even after the Petitioners declined to sign.

• Timeliness: All information and documentation requested by the Petitioners had been timely provided to them.

Administrative Law Judge’s Findings and Decision

The ALJ’s decision was based on an interpretation of the relevant statute and a review of the evidence and arguments presented. The Petitioners bore the burden of proving a violation by a preponderance of the evidence.

Governing Statute: ARIZ. REV. STAT. § 33-1805(A)

“Except as provided in subsection B of this section, all financial and other records of the association shall be made reasonably available for examination by any member… The association shall have ten business days to fulfill a request for examination.” (Emphasis added.)

Key Conclusions of Law

1. NDA Request: The Respondent’s request that Petitioners sign an NDA did not constitute a violation of the statute.

2. Timeliness of Response: The Respondent was required to comply with the January 16, 2020 request by January 31, 2020. The response from the Association’s attorney on January 30, 2020, and the subsequent inspection on February 7, 2020 (a date chosen by Petitioners) did not establish a violation of the 10-day rule.

3. Manner of Delivery: The method used to provide the documents—redacted ballots and separate unredacted envelopes—did not violate ARIZ. REV. STAT. § 33-1805. The ALJ determined that the “Petitioners timely received the totality of the documents from their records request(s)” and that the record did not suggest the documents were not made “reasonably available.”

Final Determination

The ALJ concluded that while the Association’s method of document delivery was not perfect, it was legally sufficient.

“While Respondent’s methodology of document delivery to Petitioners may have not been ideal, under the totality of underlying circumstances the decision reasonable and within the requirements of the applicable statute(s).”

Because the Petitioners did not successfully prove their case, the judge ruled against them.

“…the undersigned Administrative Law Judge must again conclude that because Petitioners did no sustain their burden of proof that the Association committed a violation of ARIZ. REV. STAT. § 33-1805, their petition must be denied.”

Final Order

IT IS ORDERED that Petitioners’ petition is denied.

The decision, issued February 2, 2022, is binding on the parties, with any appeal required to be filed with the Superior Court within thirty-five days of the order being served.


Ronald Borruso v. Sunland Village East Association

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Case Summary

Case ID 21F-H2121062-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-09-21
Administrative Law Judge Thomas Shedden
Outcome none
Filing Fees Refunded $1,500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Ronald Borruso Counsel —
Respondent Sunland Village East Association Counsel Nicholas Nogami, Esq. and Nikolas Eicher, Esq.

Alleged Violations

ARIZ. REV. STAT. § 33-1804

Outcome Summary

The Administrative Law Judge dismissed the petition filed by Ronald Borruso, finding that the Petitioner failed to meet the standard of proof (preponderance of the evidence) regarding the alleged violations of ARIZ. REV. STAT. § 33-1804 concerning meeting procedures and unauthorized board actions.

Why this result: The Petitioner failed to carry the burden of proof to show that the alleged violations of ARIZ. REV. STAT. § 33-1804 occurred.

Key Issues & Findings

Alleged violations regarding member speaking rights at May 27, 2021 meeting and unauthorized board meetings concerning Operations Manager job qualifications

Petitioner alleged the HOA violated open meeting laws by restricting member speaking rights during deliberations at a special meeting on May 27, 2021, and by holding improperly noticed meetings to approve job qualifications for an Operations Manager.

Orders: Ronald Borruso’s petition is dismissed.

Filing fee: $1,500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 33-1804
  • ARIZ. ADMIN. CODE § R2-19-119
  • ARIZ. REV. STAT. § 32-2199.02(A)
  • Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)
  • State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968)

Analytics Highlights

Topics: Open Meetings, Right to Speak, Statute Violation, Burden of Proof, Dismissal, Filing Fee
Additional Citations:

  • ARIZ. REV. STAT. § 33-1804
  • ARIZ. ADMIN. CODE § R2-19-119
  • ARIZ. REV. STAT. § 32-2199.02(A)
  • Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)
  • State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968)

Audio Overview

Decision Documents

21F-H2121062-REL Decision – 912276.pdf

Uploaded 2025-10-09T03:37:37 (114.4 KB)

Sandra Swanson & Robert Barnes v. Circle G Ranches 4 Homeowners

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Case Summary

Case ID 21F-H2120020-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2022-02-02
Administrative Law Judge Jenna Clark
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Sandra Swanson & Robert Barnes Counsel Kristin Roebuck Bethell, Esq.
Respondent Circle G Ranches 4 Homeowners Association Counsel Samantha Cote, Esq.

Alleged Violations

ARIZ. REV. STAT. § 33-1805

Outcome Summary

The Administrative Law Judge denied the Petitioners' petition, concluding they failed to prove by a preponderance of the evidence that the Homeowners Association violated ARIZ. REV. STAT. § 33-1805 regarding the availability of voting records.

Why this result: Petitioners failed to demonstrate that the HOA violated the statute through its NDA request or its method of providing the records (redacted ballots and separate unredacted envelopes) and failed to prove the records were not made reasonably available within the required statutory time frame.

Key Issues & Findings

Failure to comply with voting records request (regarding assessment and cumulative voting records)

Petitioners alleged the Association violated ARIZ. REV. STAT. § 33-1805 by requiring an NDA and providing redacted ballots and separate unredacted envelopes, which prevented Petitioners from cross-referencing votes with voters. Respondent argued it timely provided the totality of the requested information and that the manner of delivery did not violate the statute.

Orders: Petitioners' petition is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 33-1805
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2199.02(B)
  • ARIZ. REV. STAT. § 41-1092.08(H)
  • ARIZ. REV. STAT. § 12-904(A)
  • ARIZ. ADMIN. CODE R2-19-119

Analytics Highlights

Topics: Records Request, HOA Governance, Statute Violation, Voting Records, Non-Disclosure Agreement (NDA)
Additional Citations:

  • ARIZ. REV. STAT. § 33-1805

Audio Overview

Decision Documents

21F-H2120020-REL Decision – 944169.pdf

Uploaded 2025-10-09T03:36:22 (184.1 KB)

21F-H2120020-REL Decision – 944171.pdf

Uploaded 2025-10-09T03:36:22 (184.1 KB)





Briefing Doc – 21F-H2120020-REL


Briefing Document: Swanson & Barnes v. Circle G Ranches 4 HOA

Executive Summary

This document synthesizes the findings from the Administrative Law Judge (ALJ) Decision in case number 21F-H2120020-REL-RHG, a dispute between homeowners Sandra Swanson & Robert Barnes (“Petitioners”) and the Circle G Ranches 4 Homeowners Association (“Respondent”). The core issue was whether the Association violated Arizona Revised Statutes (ARIZ. REV. STAT.) § 33-1805 by its handling of the Petitioners’ request for voting records.

The Petitioners alleged the Association failed to make records “reasonably available” by providing redacted ballots and separate, unredacted envelopes, a method that prevented them from matching specific votes to individual homeowners. They argued this, along with an initial request to sign a nondisclosure agreement (NDA), constituted an unlawful barrier to access.

The Association countered that it had a duty to balance the Petitioners’ request with the privacy and safety of its members, citing concerns about potential harassment. It argued that by providing the totality of the requested information—albeit in a separated format—it fulfilled its statutory obligations in a reasonable manner and within the required timeframe.

Ultimately, the ALJ ruled in favor of the Association. The decision concluded that the Petitioners failed to meet their burden of proof. The judge found that the Association’s actions—including the initial NDA request and the methodology of providing separated documents—did not constitute a violation of the statute. While deemed “not ideal,” the method was found to be “reasonable under the totality of underlying circumstances,” and the petition was denied.

Case Background

This matter was adjudicated in the Arizona Office of Administrative Hearings (OAH) following a petition filed with the Arizona Department of Real Estate. The case revolves around a homeowner’s right to access association records versus an association’s duty to protect its members’ privacy.

Parties Involved

Representation

Petitioners

Sandra Swanson & Robert Barnes

Kristin Roebuck Bethell, Esq.

Respondent

Circle G Ranches 4 Homeowners Association

Samantha Cote, Esq.

Administrative Law Judge (ALJ) Jenna Clark

Core Dispute

The central conflict stems from records requests made by the Petitioners in January 2020 for ballots and related documents from two separate votes:

1. A vote on or about October 28, 2019, regarding an increase in dues.

2. A vote in December 2019 regarding a proposed Declaration Amendment to prohibit cumulative voting.

The Petitioners alleged that the Association’s response failed to comply with ARIZ. REV. STAT. § 33-1805, which mandates that records be made “reasonably available” for examination.

Procedural History

The dispute followed a lengthy procedural path, beginning with the Petitioners’ initial filing on September 22, 2020. An initial Administrative Law Judge Decision was issued on May 17, 2021. The Petitioners requested and were granted a rehearing on the grounds that the decision was “arbitrary, capricious, or an abuse of discretion.” The final hearing detailed in this decision took place on January 13, 2022, after several continuances requested by both parties.

Chronology of Key Events

Oct 4, 2017

The Association’s Board approves and adopts the “Rule Requiring Secret Ballots,” mandating secret ballots for votes on special assessments.

Jan 6, 2020

Petitioners submit a written request to view the votes for the proposed amendment on cumulative voting.

Jan 13, 2020

The Association Board meets to discuss the request. Citing member privacy concerns and past complaints of “harassing” behavior by Petitioners, the Board votes 8:1 to require Petitioners to sign a nondisclosure agreement (NDA) before viewing ballots. Petitioners decline.

Jan 16, 2020

Petitioners’ counsel sends a formal letter requesting all ballots and related documents for both the dues increase vote and the cumulative voting amendment.

Jan 30, 2020

The Association’s attorney responds, stating the Association must “balance your clients’ requests against the privacy and safety of all Owners.” The letter confirms the records will be made available for inspection.

Feb 7, 2020

Petitioners inspect records at the attorney’s office. They are provided two stacks of documents: redacted ballots and unredacted envelopes. This method, designed to protect voter identity, prevents matching ballots to specific voters. Petitioners review the cumulative voting records for 3.5 hours but do not review the assessment-related documents.

Aug 5, 2020

Petitioners’ attorney sends a new letter demanding “unredacted ballots…along with all envelopes” for the dues increase vote, alleging the secrecy of the ballots was optional. No additional documents are provided by the Association.

Sep 22, 2020

Petitioners file a formal petition with the Arizona Department of Real Estate, initiating the legal proceedings.

Jan 13, 2022

A rehearing is held before ALJ Jenna Clark, where both parties present oral arguments but no new evidence or testimony.

Feb 2, 2022

ALJ Clark issues the final Administrative Law Judge Decision, denying the Petitioners’ petition.

Central Legal Arguments

At the January 13, 2022, rehearing, both parties presented their final arguments regarding the alleged violation of ARIZ. REV. STAT. § 33-1805.

Petitioners’ Position (Swanson & Barnes)

• Statutory Requirement: The statute requires unredacted copies of requested documents. The law specifies what records must be produced, not how they can be produced in a modified format.

• Unlawful Barrier: The Association erected an unlawful barrier by providing documents in a manner that made it impossible to “cross reference (i.e. match) the votes with the purported voters.” This did not satisfy the “reasonably available” standard.

• Improper NDA Condition: The Association had no right to condition access to the records on the signing of an NDA, as this is not one of the enumerated exceptions in the statute for withholding documents.

• No Expectation of Privacy: The ballots were not truly “secret ballots” because some homeowners’ names appeared on them or were signed. Therefore, voters could not have held a reasonable expectation of privacy.

Respondent’s Position (Circle G Ranches 4 HOA)

• Statutory Compliance: The Association was not in violation because the statute does not dictate the specific manner or format in which records must be made available. They argued they had “timely provided the totality of records Petitioners had requested.”

• Balancing of Duties: The Association devised a method (providing redacted ballots and separate unredacted envelopes) to fulfill its duty to provide records while simultaneously upholding its responsibility to protect members from potential harassment or retaliation, thereby satisfying all its obligations.

• Reasonable Protection: The request to sign an NDA was a reasonable and necessary step to protect members’ privacy regarding their secret ballot votes. Furthermore, it was ultimately irrelevant because the records were provided even after the Petitioners declined to sign.

• Timeliness: All information and documentation requested by the Petitioners had been timely provided to them.

Administrative Law Judge’s Findings and Decision

The ALJ’s decision was based on an interpretation of the relevant statute and a review of the evidence and arguments presented. The Petitioners bore the burden of proving a violation by a preponderance of the evidence.

Governing Statute: ARIZ. REV. STAT. § 33-1805(A)

“Except as provided in subsection B of this section, all financial and other records of the association shall be made reasonably available for examination by any member… The association shall have ten business days to fulfill a request for examination.” (Emphasis added.)

Key Conclusions of Law

1. NDA Request: The Respondent’s request that Petitioners sign an NDA did not constitute a violation of the statute.

2. Timeliness of Response: The Respondent was required to comply with the January 16, 2020 request by January 31, 2020. The response from the Association’s attorney on January 30, 2020, and the subsequent inspection on February 7, 2020 (a date chosen by Petitioners) did not establish a violation of the 10-day rule.

3. Manner of Delivery: The method used to provide the documents—redacted ballots and separate unredacted envelopes—did not violate ARIZ. REV. STAT. § 33-1805. The ALJ determined that the “Petitioners timely received the totality of the documents from their records request(s)” and that the record did not suggest the documents were not made “reasonably available.”

Final Determination

The ALJ concluded that while the Association’s method of document delivery was not perfect, it was legally sufficient.

“While Respondent’s methodology of document delivery to Petitioners may have not been ideal, under the totality of underlying circumstances the decision reasonable and within the requirements of the applicable statute(s).”

Because the Petitioners did not successfully prove their case, the judge ruled against them.

“…the undersigned Administrative Law Judge must again conclude that because Petitioners did no sustain their burden of proof that the Association committed a violation of ARIZ. REV. STAT. § 33-1805, their petition must be denied.”

Final Order

IT IS ORDERED that Petitioners’ petition is denied.

The decision, issued February 2, 2022, is binding on the parties, with any appeal required to be filed with the Superior Court within thirty-five days of the order being served.


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 2025-10-08T07:07:03 (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.


Rogelio A. Garcia vs. Villagio at Tempe Homeowners

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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.