Case Summary
| Case ID | 18F-H1717036-REL |
|---|---|
| Agency | ADRE |
| Tribunal | OAH |
| Decision Date | 2017-09-06 |
| Administrative Law Judge | Suzanne Marwil |
| Outcome | full |
| Filing Fees Refunded | $500.00 |
| Civil Penalties | $250.00 |
Parties & Counsel
| Petitioner | Jerry Wheeler | Counsel | — |
|---|---|---|---|
| Respondent | Beaver Dam Estates Homeowners Association | Counsel | — |
Alleged Violations
A.R.S. § 33-1804(B)
Outcome Summary
The Petitioner's petition was granted. The Administrative Law Judge found that the Respondent HOA violated A.R.S. § 33-1804(B) by failing to hold the required annual meeting for several years. The Respondent was ordered to hold a meeting, refund the filing fee to the Petitioner, and pay a $250.00 civil penalty.
Key Issues & Findings
Failure to hold required annual meeting
Petitioner, a homeowner, alleged the HOA had not held an annual meeting since April 1, 2014, violating A.R.S. § 33-1804(B). The unconverted evidence established that Respondent violated A.R.S. § 33-1804(B) by failing to hold the statutorily required annual meeting for several years.
Orders: Petitioner's petition was granted. Respondent was ordered to hold a meeting in accordance with the planned community statutes as currently scheduled on December 28, 2017. Respondent was ordered to pay the filing fee to the Petitioner pursuant to A.R.S. § 32-2199.02(A), and pay a $250.00 civil penalty to the planned community hearing office fund.
Filing fee: $500.00, Fee refunded: Yes, Civil penalty: $250.00
Disposition: petitioner_win
- A.R.S. § 33-1804(B)
- A.R.S. § 32-2199.02(A)
- A.R.S. § 32-2199.01
- A.R.S. § 32-2199.05
Analytics Highlights
- A.R.S. § 33-1804
- A.R.S. § 32-2199 et seq.
- A.R.S. § 32-2199.01
- A.R.S. § 32-2199.02
- A.R.S. § 32-2199.05
- A.A.C. R2-19-119(B)
- A.A.C. R2-19-119(A)
Audio Overview
Decision Documents
18F-H1717036-REL Decision – 586602.pdf
18F-H1717036-REL Decision – 588549.pdf
Administrative Hearing Briefing: Wheeler v. Beaver Dam Estates Homeowners Association
Executive Summary
This briefing document synthesizes the findings and orders from the case of Jerry Wheeler versus the Beaver Dam Estates Homeowners Association (HOA). The central issue was the HOA’s failure to conduct annual meetings as legally required by Arizona state law. The petitioner, Jerry Wheeler, provided uncontested evidence that the HOA had not held a meeting for several years, specifically since his tenure began on April 1, 2014.
The case was complicated by the death of the HOA’s president prior to the hearing and the association’s subsequent failure to appoint a new representative or appear at the proceedings. The Administrative Law Judge (ALJ) conducted the hearing in the respondent’s absence and ruled decisively in favor of the petitioner.
The final judgment, adopted by the Arizona Department of Real Estate, found the Beaver Dam Estates HOA in violation of A.R.S. § 33-1804(B). The HOA was ordered to hold a meeting on a specified date, reimburse the petitioner’s filing fee, and pay a civil penalty of $250.00 for the violation.
Case Overview
The matter was initiated by a petition filed with the Arizona Department of Real Estate and was subsequently referred to the Office of Administrative Hearings for a formal hearing and decision.
Case Detail
Information
Petitioner
Jerry Wheeler
Respondent
Beaver Dam Estates Homeowners Association
Case Number (OAH)
18F-H1717036-REL
Case Number (Dept. of Real Estate)
HO 17-17/036
Petition Filed
June 8, 2017
Hearing Date
September 5, 2017
ALJ Decision Date
September 6, 2017
Final Order Date
September 13, 2017
Presiding Judge
Suzanne Marwil, Administrative Law Judge (ALJ)
Adopting Authority
Judy Lowe, Commissioner, Arizona Department of Real Estate
Petitioner’s Allegations and Evidence
The petitioner’s case was built on the central allegation that the Beaver Dam Estates HOA had failed to comply with its statutory duty to hold annual meetings.
• Core Allegation: The HOA was in violation of Arizona Revised Statutes (A.R.S.) § 33-1804(B), which mandates that a members’ association meeting “shall be held at least once each year.”
• Petitioner Testimony: Jerry Wheeler testified that since moving into the community on April 1, 2014, the HOA had not held a single meeting. He also testified regarding his numerous efforts to compel the HOA president, Randy Hawk, to convene a meeting for the purpose of reviewing the association’s financial statements with homeowners.
• Supporting Evidence: The petitioner submitted numerous written statements from other homeowners within the Beaver Dam Estates community. These statements corroborated his testimony, confirming that no HOA meeting had been held for several years. This evidence was referred to as “Exhibit B” in the proceedings.
Respondent’s Actions and Procedural Failures
The respondent’s engagement with the legal process was minimal and ultimately ceased, leading to a judgment in its absence.
• Initial Response: The HOA’s then-president, Randy Hawk, initially responded to the petition by agreeing to hold a meeting.
• First Meeting Attempt: A meeting was scheduled for July 18, 2017. However, only about ten people attended, prompting Hawk to reschedule for December 28, 2017. A letter was sent to all members notifying them of the new date and the intent to hold an election for a new president and vice president.
• Death of Representative: The petitioner subsequently informed the Tribunal that Randy Hawk had passed away, leaving the HOA without a clear representative for the legal matter.
• Failure to Appoint New Representative: On August 16, 2017, the Tribunal issued an order, mailed to the respondent’s address of record, requesting that the HOA name a new representative. The HOA failed to do so.
• Failure to Appear: The respondent did not appear for the scheduled hearing on September 5, 2017, nor did it request to appear telephonically. After a 20-minute grace period, the ALJ proceeded with the hearing in the respondent’s absence.
Legal Framework and Conclusions of Law
The ALJ’s decision was based on a clear statutory requirement and the uncontested evidence presented by the petitioner. The burden of proof was on the petitioner, with the standard of proof being a preponderance of the evidence.
• Statutory Violation: The central finding was that the respondent violated A.R.S. § 33-1804(B). The pertinent text of the statute states:
• Key Conclusion: The ALJ determined that “The unconverted evidence established that Respondent violated A.R.S. § 33-1804(B) by failing to hold the statutorily required annual meeting of Respondent for several years prior to the filing of the petition.”
• Recommended Action: Based on this conclusion, the ALJ stated that the respondent “should hold an annual meeting in accordance with the planned community statutes.”
Final Order and Penalties
The ALJ’s decision was formally adopted by the Commissioner of the Department of Real Estate, making it a binding Final Order. The order mandated several actions by the respondent.
IT IS ORDERED that:
1. The petitioner’s petition is granted.
2. The respondent must hold a meeting in accordance with planned community statutes as scheduled on December 28, 2017.
3. Pursuant to A.R.S. § 32-2199.02(A), the respondent shall pay the petitioner the filing fee required by section 32-2199.01.
4. The respondent shall pay to the planned community hearing office fund a civil penalty of $250.00 for the violation.
This Final Order was declared a final administrative action, effective immediately upon service on September 13, 2017. The parties were notified of their right to apply for a rehearing within thirty days or to appeal the decision by filing a complaint for judicial review.