Tag Archives: A.A.C. R2-19-119

Vicky Glover v. Foothills Community Association

Posted on May 30, 2019 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	19F-H1919046-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2019-05-30
Administrative Law Judge	Tammy L. Eigenheer
Outcome	loss
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Vicky Glover	Counsel	—
Respondent	Foothills Community Association	Counsel	B. Austin Baillio

Alleged Violations

A.R.S. § 33-1804

Outcome Summary

The Administrative Law Judge denied the petition, concluding that Petitioner failed to establish any violation of A.R.S. § 33-1804 regarding both the DRC's restriction on speaking during specific deliberations and the use of email communications for non-regularly scheduled committee business.

Why this result: The Petitioner failed to prove by a preponderance of the evidence that the Respondent violated A.R.S. § 33-1804, specifically because the DRC's restrictions on speaking were deemed reasonable, and email communications were not considered 'regularly scheduled committee meetings' requiring public access.

Key Issues & Findings

Open Meetings and Member Right to Speak (DRC and Email Meetings)

Petitioner alleged Respondent violated A.R.S. § 33-1804 by denying her the ability to speak at DRC meetings on other members’ requests, and by conducting deliberations and making decisions via email outside of regularly scheduled meetings.

Orders: Petitioner's petition is denied.

Filing fee: $500.00, Fee refunded: Yes

Disposition: respondent_win

Cited:

• A.R.S. § 33-1804
• A.R.S. Title 33, Chapter 16, Sections 33-1801 to 33-1818

Analytics Highlights

Topics: HOA, Design Review Committee, Open Meetings, Right to Speak, Email Meetings, A.R.S. 33-1804

Additional Citations:

• A.R.S. § 32-2199 et seq.
• A.A.C. R2-19-119
• A.R.S. § 33-1804
• A.R.S. § 32-2199.02(B)
• A.R.S. § 32-2199.04
• A.R.S. § 41-1092.09

Audio Overview

Decision Documents

19F-H1919046-REL Decision – 712028.pdf

Uploaded 2025-10-08T07:08:53 (94.0 KB)

Administrative Law Judge Decision: Glover v. Foothills Community Association

Executive Summary

On May 30, 2019, an Administrative Law Judge (ALJ) for the State of Arizona denied a petition filed by homeowner Vicky Glover against the Foothills Community Association (FCA). The decision concluded that the FCA’s Design Review Committee (DRC) did not violate Arizona’s open meeting law, A.R.S. § 33-1804.

The petition centered on two core allegations: 1) that the DRC improperly held “email meetings” to decide on non-emergency matters, and 2) that it unlawfully prevented members from speaking at appropriate times during its meetings.

The ALJ’s ruling rested on a strict interpretation of the statute’s plain language. The judge determined that the specific right for members to speak on an agenda item before a formal vote applies exclusively to Board of Directors meetings, not committee meetings like the DRC. For committee meetings, the statute only requires allowing members to speak at an “appropriate time,” and the DRC’s decision to restrict Ms. Glover from speaking about another member’s application was deemed reasonable. Regarding the email communications, the ALJ concluded they do not constitute “regularly scheduled committee meetings” and are therefore not subject to the open meeting requirements stipulated in the statute. The general state policy favoring open meetings was found insufficient to override these specific statutory provisions.

Case Overview

Details

Case Name

Vicky Glover, Petitioner, vs. Foothills Community Association, Respondent

Case Number

19F-H1919046-REL

Jurisdiction

Arizona Office of Administrative Hearings

Presiding Judge

Administrative Law Judge Tammy L. Eigenheer

Hearing Date

May 10, 2019

Decision Date

May 30, 2019

Petitioner’s Allegations

Vicky Glover filed a petition with the Arizona Department of Real Estate on January 23, 2019, alleging that the Foothills Community Association violated state statutes governing planned communities (A.R.S. Title 33, Chapter 16). The specific allegations against the association’s Design Review Committee (DRC) were:

1. Unlawful Meetings: The DRC held unannounced email meetings to vote on non-emergency matters, violating open-meeting statutes.

2. Denial of Speech: The DRC refused to allow community members to speak at appropriate times during its regularly scheduled meetings.

Factual Background

The parties did not dispute the underlying events of the case. The established facts are as follows:

• Organizational Structure:

◦ The Foothills Community Association (FCA) is a homeowners association in Phoenix, Arizona.

◦ Its Board of Directors consists of seven members and meets on the fourth Wednesday of the month.

◦ The Design Review Committee (DRC) is appointed by the Board, consists of five members (two of whom are also on the Board), and holds its meetings on the second Wednesday of the month.

• Incidents Leading to Petition:

◦ On December 13, 2018, and January 9, 2019, Petitioner Vicky Glover attended and recorded DRC meetings.

◦ During these meetings, Ms. Glover was not permitted to speak about other members’ pending requests being discussed by the committee.

• Committee Practices:

◦ During meetings, DRC members were heard discussing plans to share additional information on certain requests via email after the meeting.

◦ Based on this emailed information, members could then approve or deny the request.

◦ Any decisions made via email between meetings were subsequently “ratified” at the next formal DRC meeting.

◦ The FCA Manager, Pat Wontor, denied that the DRC took initial action via email, stating the practice was only for gathering information on matters already discussed in a meeting.

Legal Framework and Statutory Interpretation

The central legal issue was the interpretation of Arizona’s open meeting law for planned communities, A.R.S. § 33-1804. The burden of proof was on the Petitioner to show a violation by a preponderance of the evidence.

The Relevant Statute: A.R.S. § 33-1804

The ALJ’s decision focused on two key subsections of the statute:

• A.R.S. § 33-1804(A): “Notwithstanding any provision in the declaration, bylaws or other documents to the contrary, all meetings of the members’ association and the board of directors, and any regularly scheduled committee meetings, are open to all members… and all members or designated representatives so desiring shall be permitted to attend and speak at an appropriate time during the deliberations and proceedings. The board may place reasonable time restrictions on those persons speaking during the meeting but shall permit a member or member’s designated representative to speak once after the board has discussed a specific agenda item but before the board takes formal action on that item…”

• A.R.S. § 33-1804(F): States that it is the policy of the state that all meetings “be conducted openly” and that the provisions of the section should be construed “in favor of open meetings.”

Analysis of the Right to Speak

The ALJ concluded that the DRC did not violate the statute by preventing Ms. Glover from speaking.

• Distinction Between Board and Committee Meetings: The judge’s interpretation hinged on the “plain language” of the statute. While members must be allowed to speak at an “appropriate time” at all open meetings, the specific right to speak after the discussion of an agenda item but before a formal vote is taken applies only to the Board of Directors, not to committees.

• “Appropriate Time” Determination: The statute does not define what constitutes an “appropriate time” for committee meetings. The ALJ found it was “reasonable for the DRC to determine that deliberation regarding a different member’s request was not an appropriate time for Petitioner to speak.”

• Conclusion: The DRC’s actions during the December 2018 and January 2019 meetings were not a violation of A.R.S. § 33-1804.

Analysis of “Email Meetings”

The ALJ concluded that the DRC’s email communications were not subject to the open meeting law.

• “Regularly Scheduled” Requirement: A.R.S. § 33-1804(A) explicitly applies to “regularly scheduled committee meetings.”

• Email Communications Did Not Qualify: The judge reasoned that email deliberations and decisions do not constitute “regularly scheduled” meetings because they “do not occur at a set time on a weekly, monthly, quarterly, or annual basis.”

• General Policy vs. Specific Language: While acknowledging the statute’s general policy statement in favor of open meetings (Subsection F), the ALJ ruled that this “does not override the specific provisions of A.R.S. § 33-1804(A) that only ‘regularly scheduled’ committee meetings must be open to the members.”

• Conclusion: The email communications, even if considered a “meeting of the DRC,” did not fall under the open meeting requirements of the statute.

Final Order and Conclusion

The Administrative Law Judge concluded that the Petitioner, Vicky Glover, “did not establish any violation of A.R.S. § 33-1804.” Based on this finding, the judge issued the following order:

IT IS ORDERED that Petitioner’s petition is denied.

The decision is binding on the parties unless a request for rehearing is filed with the Commissioner of the Department of Real Estate within 30 days of the service of the order.

Vicky Glover v. Foothills Community Association

Posted on May 30, 2019 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	19F-H1919046-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2019-05-30
Administrative Law Judge	Tammy L. Eigenheer
Outcome	loss
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Vicky Glover	Counsel	—
Respondent	Foothills Community Association	Counsel	B. Austin Baillio

Alleged Violations

A.R.S. § 33-1804

Outcome Summary

The Administrative Law Judge denied the petition, concluding that Petitioner failed to establish any violation of A.R.S. § 33-1804 regarding both the DRC's restriction on speaking during specific deliberations and the use of email communications for non-regularly scheduled committee business.

Why this result: The Petitioner failed to prove by a preponderance of the evidence that the Respondent violated A.R.S. § 33-1804, specifically because the DRC's restrictions on speaking were deemed reasonable, and email communications were not considered 'regularly scheduled committee meetings' requiring public access.

Key Issues & Findings

Open Meetings and Member Right to Speak (DRC and Email Meetings)

Petitioner alleged Respondent violated A.R.S. § 33-1804 by denying her the ability to speak at DRC meetings on other members’ requests, and by conducting deliberations and making decisions via email outside of regularly scheduled meetings.

Orders: Petitioner's petition is denied.

Filing fee: $500.00, Fee refunded: Yes

Disposition: respondent_win

Cited:

• A.R.S. § 33-1804
• A.R.S. Title 33, Chapter 16, Sections 33-1801 to 33-1818

Analytics Highlights

Topics: HOA, Design Review Committee, Open Meetings, Right to Speak, Email Meetings, A.R.S. 33-1804

Additional Citations:

• A.R.S. § 32-2199 et seq.
• A.A.C. R2-19-119
• A.R.S. § 33-1804
• A.R.S. § 32-2199.02(B)
• A.R.S. § 32-2199.04
• A.R.S. § 41-1092.09

Audio Overview

Decision Documents

19F-H1919046-REL Decision – 712028.pdf

Uploaded 2025-10-09T03:34:06 (94.0 KB)

Administrative Law Judge Decision: Glover v. Foothills Community Association

Executive Summary

On May 30, 2019, an Administrative Law Judge (ALJ) for the State of Arizona denied a petition filed by homeowner Vicky Glover against the Foothills Community Association (FCA). The decision concluded that the FCA’s Design Review Committee (DRC) did not violate Arizona’s open meeting law, A.R.S. § 33-1804.

The petition centered on two core allegations: 1) that the DRC improperly held “email meetings” to decide on non-emergency matters, and 2) that it unlawfully prevented members from speaking at appropriate times during its meetings.

The ALJ’s ruling rested on a strict interpretation of the statute’s plain language. The judge determined that the specific right for members to speak on an agenda item before a formal vote applies exclusively to Board of Directors meetings, not committee meetings like the DRC. For committee meetings, the statute only requires allowing members to speak at an “appropriate time,” and the DRC’s decision to restrict Ms. Glover from speaking about another member’s application was deemed reasonable. Regarding the email communications, the ALJ concluded they do not constitute “regularly scheduled committee meetings” and are therefore not subject to the open meeting requirements stipulated in the statute. The general state policy favoring open meetings was found insufficient to override these specific statutory provisions.

Case Overview

Details

Case Name

Vicky Glover, Petitioner, vs. Foothills Community Association, Respondent

Case Number

19F-H1919046-REL

Jurisdiction

Arizona Office of Administrative Hearings

Presiding Judge

Administrative Law Judge Tammy L. Eigenheer

Hearing Date

May 10, 2019

Decision Date

May 30, 2019

Petitioner’s Allegations

Vicky Glover filed a petition with the Arizona Department of Real Estate on January 23, 2019, alleging that the Foothills Community Association violated state statutes governing planned communities (A.R.S. Title 33, Chapter 16). The specific allegations against the association’s Design Review Committee (DRC) were:

1. Unlawful Meetings: The DRC held unannounced email meetings to vote on non-emergency matters, violating open-meeting statutes.

2. Denial of Speech: The DRC refused to allow community members to speak at appropriate times during its regularly scheduled meetings.

Factual Background

The parties did not dispute the underlying events of the case. The established facts are as follows:

• Organizational Structure:

◦ The Foothills Community Association (FCA) is a homeowners association in Phoenix, Arizona.

◦ Its Board of Directors consists of seven members and meets on the fourth Wednesday of the month.

◦ The Design Review Committee (DRC) is appointed by the Board, consists of five members (two of whom are also on the Board), and holds its meetings on the second Wednesday of the month.

• Incidents Leading to Petition:

◦ On December 13, 2018, and January 9, 2019, Petitioner Vicky Glover attended and recorded DRC meetings.

◦ During these meetings, Ms. Glover was not permitted to speak about other members’ pending requests being discussed by the committee.

• Committee Practices:

◦ During meetings, DRC members were heard discussing plans to share additional information on certain requests via email after the meeting.

◦ Based on this emailed information, members could then approve or deny the request.

◦ Any decisions made via email between meetings were subsequently “ratified” at the next formal DRC meeting.

◦ The FCA Manager, Pat Wontor, denied that the DRC took initial action via email, stating the practice was only for gathering information on matters already discussed in a meeting.

Legal Framework and Statutory Interpretation

The central legal issue was the interpretation of Arizona’s open meeting law for planned communities, A.R.S. § 33-1804. The burden of proof was on the Petitioner to show a violation by a preponderance of the evidence.

The Relevant Statute: A.R.S. § 33-1804

The ALJ’s decision focused on two key subsections of the statute:

• A.R.S. § 33-1804(A): “Notwithstanding any provision in the declaration, bylaws or other documents to the contrary, all meetings of the members’ association and the board of directors, and any regularly scheduled committee meetings, are open to all members… and all members or designated representatives so desiring shall be permitted to attend and speak at an appropriate time during the deliberations and proceedings. The board may place reasonable time restrictions on those persons speaking during the meeting but shall permit a member or member’s designated representative to speak once after the board has discussed a specific agenda item but before the board takes formal action on that item…”

• A.R.S. § 33-1804(F): States that it is the policy of the state that all meetings “be conducted openly” and that the provisions of the section should be construed “in favor of open meetings.”

Analysis of the Right to Speak

The ALJ concluded that the DRC did not violate the statute by preventing Ms. Glover from speaking.

• Distinction Between Board and Committee Meetings: The judge’s interpretation hinged on the “plain language” of the statute. While members must be allowed to speak at an “appropriate time” at all open meetings, the specific right to speak after the discussion of an agenda item but before a formal vote is taken applies only to the Board of Directors, not to committees.

• “Appropriate Time” Determination: The statute does not define what constitutes an “appropriate time” for committee meetings. The ALJ found it was “reasonable for the DRC to determine that deliberation regarding a different member’s request was not an appropriate time for Petitioner to speak.”

• Conclusion: The DRC’s actions during the December 2018 and January 2019 meetings were not a violation of A.R.S. § 33-1804.

Analysis of “Email Meetings”

The ALJ concluded that the DRC’s email communications were not subject to the open meeting law.

• “Regularly Scheduled” Requirement: A.R.S. § 33-1804(A) explicitly applies to “regularly scheduled committee meetings.”

• Email Communications Did Not Qualify: The judge reasoned that email deliberations and decisions do not constitute “regularly scheduled” meetings because they “do not occur at a set time on a weekly, monthly, quarterly, or annual basis.”

• General Policy vs. Specific Language: While acknowledging the statute’s general policy statement in favor of open meetings (Subsection F), the ALJ ruled that this “does not override the specific provisions of A.R.S. § 33-1804(A) that only ‘regularly scheduled’ committee meetings must be open to the members.”

• Conclusion: The email communications, even if considered a “meeting of the DRC,” did not fall under the open meeting requirements of the statute.

Final Order and Conclusion

The Administrative Law Judge concluded that the Petitioner, Vicky Glover, “did not establish any violation of A.R.S. § 33-1804.” Based on this finding, the judge issued the following order:

IT IS ORDERED that Petitioner’s petition is denied.

The decision is binding on the parties unless a request for rehearing is filed with the Commissioner of the Department of Real Estate within 30 days of the service of the order.

Scott Servilla & Heidi H Servilla vs. Village of Oakcreek Association

Posted on January 9, 2019 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	18F-H1817018-REL-RHG
Agency	ADRE
Tribunal	OAH
Decision Date	2019-01-09
Administrative Law Judge	Tammy L. Eigenheer
Outcome	none
Filing Fees Refunded	$1,500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Scott Servilla & Heidi H Servilla	Counsel	—
Respondent	Village of Oakcreek Association	Counsel	Mark K. Sahl

Alleged Violations

A.R.S. § 33-1817(A)(1)
A.R.S. § 33-1812(B)(2)
By-Laws Section 8, Article VIII

Outcome Summary

The Administrative Law Judge denied the entire petition. Issues one and three were denied because Petitioner failed to prove those claims. Issue two, concerning the alleged violation of A.R.S. § 33-1812(B)(2) regarding the ballot, was denied based on the doctrine of waiver, as Petitioner did not object to the known procedural issue prior to the vote.

Why this result: Petitioner failed to prove Issues 1 and 3; Issue 2 failed due to waiver based on the precedent set in Zajac v. City of Casa Grande, because Petitioner allowed the defective vote to proceed without objection.

Key Issues & Findings

Validity of 2016 declaration amendment vote regarding required majority

Petitioner claimed the November 10, 2016 vote failed to meet the required 1173 votes necessary to amend the declaration, and requested an order that the amendment is invalid.

Orders: Petitioner's claim was denied after the ALJ found Petitioner failed to prove the claim.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Improper written ballot bundling multiple proposed actions

Petitioner claimed the written ballot used for the November 10, 2016 vote improperly grouped multiple proposed actions (Leasing and Schedule of Fines) and failed to provide a separate opportunity to vote for or against each, violating the statute.

Orders: The ALJ initially found a statutory violation but determined no remedy could be ordered; upon rehearing, the claim was denied based on the doctrine of waiver.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

• Zajac v. City of Casa Grande
• Allen v. State

Imposing fines in excess of $50 per violation

Petitioner alleged Respondent violated the By-Laws by imposing fines in excess of $50 per violation.

Orders: Petitioner's request for an order prohibiting fines in excess of $50 per violation and imposing a civil penalty was denied.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Analytics Highlights

Topics: Waiver Doctrine, HOA Election Procedure, Ballot Requirements, Fines and Penalties, Administrative Law Judge Decision, Rehearing

Additional Citations:

• A.R.S. § 33-1817(1)
• A.R.S. § 33-1812(B)(2)
• A.R.S. § 33-1812(A)
• A.R.S. § 32-2199 et seq.
• A.A.C. R2-19-119
• Zajac v. City of Casa Grande, 209 Ariz. 357, 102 P.3d 297 (2004)
• Allen v. State, 14 Ariz. 458, 130 P. 1114 (1913)

Decision Documents

18F-H1817018-REL-RHG Decision – 673729.pdf

Uploaded 2025-10-08T07:03:47 (40.8 KB)

18F-H1817018-REL-RHG Decision – 673828.pdf

Uploaded 2025-10-08T07:03:48 (48.5 KB)

18F-H1817018-REL-RHG Decision – 680738.pdf

Uploaded 2025-10-08T07:03:48 (103.5 KB)

Briefing Document: Servilla v. Village of Oakcreek Association (Case No. 18F-H1817018-REL-RHG)

Executive Summary

This briefing document analyzes the Administrative Law Judge Decision in the case of Scott Servilla versus the Village of Oakcreek Association. The final order, issued on January 9, 2019, after a rehearing, denied the Petitioner’s petition in its entirety. The central finding was that the Petitioner, Scott Servilla, had waived his right to challenge procedural defects in a November 10, 2016, homeowners association vote because he failed to raise his objections prior to the vote being held.

The core of the dispute involved a ballot that combined two distinct proposed amendments—one concerning leasing restrictions and another regarding a schedule of fines—into a single up-or-down vote. While an initial decision found that this ballot format violated Arizona statute A.R.S. § 33-1812(A)(2), it concluded no remedy could be ordered. After a rehearing was granted, the Administrative Law Judge (ALJ) based the final denial on the legal doctrine of waiver, citing the Arizona Supreme Court precedent in Zajac v. City of Casa Grande. The ALJ concluded that since Servilla received the ballot over a month before the vote, he had ample opportunity to object to its format but did not. He could not, therefore, wait to see the unfavorable result before lodging his complaint. This decision is binding on the parties, with any appeal required to be filed in superior court.

Case Overview and Participants

This matter was adjudicated by the Arizona Office of Administrative Hearings following a petition filed with the Arizona Department of Real Estate.

Case Detail

Information

Case Name

Scott Servilla & Heidi H Servilla vs. Village of Oakcreek Association

Case Number

18F-H1817018-REL-RHG

Hearing Body

Office of Administrative Hearings

Presiding Judge

Administrative Law Judge Tammy L. Eigenheer

Key Participants

• Petitioner: Scott S. Servilla, who appeared on his own behalf.

• Respondent: Village of Oakcreek Association, an Arizona association of 2436 homeowners, represented by Mark K. Sahl of Carpenter, Hazlewood, Delgado & Bolen LLP.

Procedural History and Allegations

The case involved a petition filed on November 13, 2017, which evolved to encompass three distinct allegations after the Petitioner paid an additional filing fee. Following an initial hearing, the Petitioner requested and was granted a rehearing by the Commissioner for the Arizona Department of Real Estate on or about September 21, 2018. The rehearing took place on November 29, 2018, after which the record was held open until December 20, 2018, for the Petitioner to file a response.

Petitioner’s Three Core Allegations

The Petitioner’s claims, as set forth in the petition, were:

1. Improper Vote Count: The vote on November 10, 2016, allegedly violated A.R.S. § 33-1817(A)(1) and the Master Declaration because it failed to achieve the 1173 votes required for a majority to amend the declaration.

2. Improper Ballot Format: The written ballot for the November 10, 2016, vote violated A.R.S. § 33-1812(B)(2) because it “did not provide a separate opportunity to vote for or against each proposed action.” This was the central issue of the rehearing.

3. Illegal Fines: The Association allegedly violated its By-Laws (Section 8, Article VIII) by imposing fines greater than $50 per violation, particularly after members had voted against an amendment to raise this limit.

In the initial decision, the ALJ found the Petitioner failed to prove his claims on issues one and three. While the ALJ found a statutory violation regarding issue two (the ballot format), it was initially determined that no remedy could be ordered, which prompted the successful request for a rehearing.

The Disputed Vote of November 10, 2016

The case centered on a vote taken at a Special Meeting of Members to approve a “Leasing and Schedule of Fines Assessment.”

• Combined Proposals: The absentee ballot presented members with a single proposed amendment that bundled two separate changes to the Master Declaration:

◦ Leasing Restrictions: The addition of a new section, 4.23, which established a minimum lease term of 30 days and prohibited leases of less than an entire lot or unit.

◦ Schedule of Fines: The complete replacement of an existing section, 5.08, which permitted the association’s committee to adopt a schedule specifying fines for violations.

• Ballot Format: The ballot provided a single choice for members to vote either “FOR THE LEASING AND SCHEDULE OF FINES AMENDMENT” or “AGAINST THE LEASING AND SCHEDULE OF FINES AMENDMENT.”

• Vote Results:

◦ Total Ballots: 1067 were received (approximately 44% of members).

◦ Outcome: 564 voted in favor of the amendment (approximately 53% of votes cast).

Central Legal Analysis and Ruling

The final decision after the rehearing did not revisit the merits of whether the ballot was statutorily compliant. Instead, it was based entirely on the legal doctrine of waiver, which precluded the Petitioner from bringing his claim.

The Doctrine of Waiver

The ALJ’s conclusion rested on the precedent set by the Arizona Supreme Court in Zajac v. City of Casa Grande and Allen v. State. This legal principle holds that a party who is aware of a procedural defect in an election or vote prior to its occurrence cannot remain silent, wait for the outcome, and then challenge the process if the result is unfavorable.

The decision quotes the principle from Zajac: “one cannot knowingly let a defective vote proceed only to complain and seek redress if the results are not to the individual’s liking.”

Application to the Petitioner

The ALJ applied this doctrine directly to the facts of the case:

1. Awareness of the Defect: The Petitioner acknowledged receiving the absentee ballot on or about October 4, 2016.

2. Opportunity to Object: The vote was not held until November 10, 2016, giving the Petitioner over a month to raise an objection to the ballot’s format.

3. Failure to Object: The Petitioner did not raise any objections to the manner of the vote until April 2017, long after the vote had concluded. The petition itself was not filed until November 13, 2017.

4. Conclusion of Waiver: Having failed to object in a timely manner, the Petitioner was deemed to have waived his right to challenge the ballot. The ALJ stated, “He cannot have it both ways; that is, he cannot allow the [vote] to proceed without objection, and then be permitted thereafter to assert his protest.”

Because the Petitioner’s claim was barred by the doctrine of waiver, the ALJ concluded that his petition must fail.

Final Order and Implications

Based on the foregoing conclusions of law, the Administrative Law Judge issued a definitive order.

• The Order: “IT IS ORDERED that Petitioner’s petition is denied.”

• Binding Nature: The decision notes that as an order issued as a result of a rehearing, it is binding on the parties pursuant to A.R.S. § 32-2199.02(B).

• Appeal Process: Any party wishing to appeal the order must seek judicial review by filing with the superior court within thirty-five days from the date the order was served.

Scott Servilla & Heidi H Servilla vs. Village of Oakcreek Association

Posted on January 9, 2019 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	18F-H1817018-REL-RHG
Agency	ADRE
Tribunal	OAH
Decision Date	2019-01-09
Administrative Law Judge	Tammy L. Eigenheer
Outcome	none
Filing Fees Refunded	$1,500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Scott Servilla & Heidi H Servilla	Counsel	—
Respondent	Village of Oakcreek Association	Counsel	Mark K. Sahl

Alleged Violations

A.R.S. § 33-1817(A)(1)
A.R.S. § 33-1812(B)(2)
By-Laws Section 8, Article VIII

Outcome Summary

The Administrative Law Judge denied the entire petition. Issues one and three were denied because Petitioner failed to prove those claims. Issue two, concerning the alleged violation of A.R.S. § 33-1812(B)(2) regarding the ballot, was denied based on the doctrine of waiver, as Petitioner did not object to the known procedural issue prior to the vote.

Why this result: Petitioner failed to prove Issues 1 and 3; Issue 2 failed due to waiver based on the precedent set in Zajac v. City of Casa Grande, because Petitioner allowed the defective vote to proceed without objection.

Key Issues & Findings

Validity of 2016 declaration amendment vote regarding required majority

Petitioner claimed the November 10, 2016 vote failed to meet the required 1173 votes necessary to amend the declaration, and requested an order that the amendment is invalid.

Orders: Petitioner's claim was denied after the ALJ found Petitioner failed to prove the claim.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Improper written ballot bundling multiple proposed actions

Petitioner claimed the written ballot used for the November 10, 2016 vote improperly grouped multiple proposed actions (Leasing and Schedule of Fines) and failed to provide a separate opportunity to vote for or against each, violating the statute.

Orders: The ALJ initially found a statutory violation but determined no remedy could be ordered; upon rehearing, the claim was denied based on the doctrine of waiver.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

• Zajac v. City of Casa Grande
• Allen v. State

Imposing fines in excess of $50 per violation

Petitioner alleged Respondent violated the By-Laws by imposing fines in excess of $50 per violation.

Orders: Petitioner's request for an order prohibiting fines in excess of $50 per violation and imposing a civil penalty was denied.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Analytics Highlights

Topics: Waiver Doctrine, HOA Election Procedure, Ballot Requirements, Fines and Penalties, Administrative Law Judge Decision, Rehearing

Additional Citations:

• A.R.S. § 33-1817(1)
• A.R.S. § 33-1812(B)(2)
• A.R.S. § 33-1812(A)
• A.R.S. § 32-2199 et seq.
• A.A.C. R2-19-119
• Zajac v. City of Casa Grande, 209 Ariz. 357, 102 P.3d 297 (2004)
• Allen v. State, 14 Ariz. 458, 130 P. 1114 (1913)

Decision Documents

18F-H1817018-REL-RHG Decision – 673729.pdf

Uploaded 2025-10-09T03:32:15 (40.8 KB)

18F-H1817018-REL-RHG Decision – 673828.pdf

Uploaded 2025-10-09T03:32:15 (48.5 KB)

18F-H1817018-REL-RHG Decision – 680738.pdf

Uploaded 2025-10-09T03:32:15 (103.5 KB)

Briefing Document: Servilla v. Village of Oakcreek Association (Case No. 18F-H1817018-REL-RHG)

Executive Summary

This briefing document analyzes the Administrative Law Judge Decision in the case of Scott Servilla versus the Village of Oakcreek Association. The final order, issued on January 9, 2019, after a rehearing, denied the Petitioner’s petition in its entirety. The central finding was that the Petitioner, Scott Servilla, had waived his right to challenge procedural defects in a November 10, 2016, homeowners association vote because he failed to raise his objections prior to the vote being held.

The core of the dispute involved a ballot that combined two distinct proposed amendments—one concerning leasing restrictions and another regarding a schedule of fines—into a single up-or-down vote. While an initial decision found that this ballot format violated Arizona statute A.R.S. § 33-1812(A)(2), it concluded no remedy could be ordered. After a rehearing was granted, the Administrative Law Judge (ALJ) based the final denial on the legal doctrine of waiver, citing the Arizona Supreme Court precedent in Zajac v. City of Casa Grande. The ALJ concluded that since Servilla received the ballot over a month before the vote, he had ample opportunity to object to its format but did not. He could not, therefore, wait to see the unfavorable result before lodging his complaint. This decision is binding on the parties, with any appeal required to be filed in superior court.

Case Overview and Participants

This matter was adjudicated by the Arizona Office of Administrative Hearings following a petition filed with the Arizona Department of Real Estate.

Case Detail

Information

Case Name

Scott Servilla & Heidi H Servilla vs. Village of Oakcreek Association

Case Number

18F-H1817018-REL-RHG

Hearing Body

Office of Administrative Hearings

Presiding Judge

Administrative Law Judge Tammy L. Eigenheer

Key Participants

• Petitioner: Scott S. Servilla, who appeared on his own behalf.

• Respondent: Village of Oakcreek Association, an Arizona association of 2436 homeowners, represented by Mark K. Sahl of Carpenter, Hazlewood, Delgado & Bolen LLP.

Procedural History and Allegations

The case involved a petition filed on November 13, 2017, which evolved to encompass three distinct allegations after the Petitioner paid an additional filing fee. Following an initial hearing, the Petitioner requested and was granted a rehearing by the Commissioner for the Arizona Department of Real Estate on or about September 21, 2018. The rehearing took place on November 29, 2018, after which the record was held open until December 20, 2018, for the Petitioner to file a response.

Petitioner’s Three Core Allegations

The Petitioner’s claims, as set forth in the petition, were:

1. Improper Vote Count: The vote on November 10, 2016, allegedly violated A.R.S. § 33-1817(A)(1) and the Master Declaration because it failed to achieve the 1173 votes required for a majority to amend the declaration.

2. Improper Ballot Format: The written ballot for the November 10, 2016, vote violated A.R.S. § 33-1812(B)(2) because it “did not provide a separate opportunity to vote for or against each proposed action.” This was the central issue of the rehearing.

3. Illegal Fines: The Association allegedly violated its By-Laws (Section 8, Article VIII) by imposing fines greater than $50 per violation, particularly after members had voted against an amendment to raise this limit.

In the initial decision, the ALJ found the Petitioner failed to prove his claims on issues one and three. While the ALJ found a statutory violation regarding issue two (the ballot format), it was initially determined that no remedy could be ordered, which prompted the successful request for a rehearing.

The Disputed Vote of November 10, 2016

The case centered on a vote taken at a Special Meeting of Members to approve a “Leasing and Schedule of Fines Assessment.”

• Combined Proposals: The absentee ballot presented members with a single proposed amendment that bundled two separate changes to the Master Declaration:

◦ Leasing Restrictions: The addition of a new section, 4.23, which established a minimum lease term of 30 days and prohibited leases of less than an entire lot or unit.

◦ Schedule of Fines: The complete replacement of an existing section, 5.08, which permitted the association’s committee to adopt a schedule specifying fines for violations.

• Ballot Format: The ballot provided a single choice for members to vote either “FOR THE LEASING AND SCHEDULE OF FINES AMENDMENT” or “AGAINST THE LEASING AND SCHEDULE OF FINES AMENDMENT.”

• Vote Results:

◦ Total Ballots: 1067 were received (approximately 44% of members).

◦ Outcome: 564 voted in favor of the amendment (approximately 53% of votes cast).

Central Legal Analysis and Ruling

The final decision after the rehearing did not revisit the merits of whether the ballot was statutorily compliant. Instead, it was based entirely on the legal doctrine of waiver, which precluded the Petitioner from bringing his claim.

The Doctrine of Waiver

The ALJ’s conclusion rested on the precedent set by the Arizona Supreme Court in Zajac v. City of Casa Grande and Allen v. State. This legal principle holds that a party who is aware of a procedural defect in an election or vote prior to its occurrence cannot remain silent, wait for the outcome, and then challenge the process if the result is unfavorable.

The decision quotes the principle from Zajac: “one cannot knowingly let a defective vote proceed only to complain and seek redress if the results are not to the individual’s liking.”

Application to the Petitioner

The ALJ applied this doctrine directly to the facts of the case:

1. Awareness of the Defect: The Petitioner acknowledged receiving the absentee ballot on or about October 4, 2016.

2. Opportunity to Object: The vote was not held until November 10, 2016, giving the Petitioner over a month to raise an objection to the ballot’s format.

3. Failure to Object: The Petitioner did not raise any objections to the manner of the vote until April 2017, long after the vote had concluded. The petition itself was not filed until November 13, 2017.

4. Conclusion of Waiver: Having failed to object in a timely manner, the Petitioner was deemed to have waived his right to challenge the ballot. The ALJ stated, “He cannot have it both ways; that is, he cannot allow the [vote] to proceed without objection, and then be permitted thereafter to assert his protest.”

Because the Petitioner’s claim was barred by the doctrine of waiver, the ALJ concluded that his petition must fail.

Final Order and Implications

Based on the foregoing conclusions of law, the Administrative Law Judge issued a definitive order.

• The Order: “IT IS ORDERED that Petitioner’s petition is denied.”

• Binding Nature: The decision notes that as an order issued as a result of a rehearing, it is binding on the parties pursuant to A.R.S. § 32-2199.02(B).

• Appeal Process: Any party wishing to appeal the order must seek judicial review by filing with the superior court within thirty-five days from the date the order was served.

George E Lord vs. The Boulders at La Reserve Condominium Association

Posted on December 17, 2018 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	19F-H1918013-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2018-12-17
Administrative Law Judge	Tammy L. Eigenheer
Outcome	no
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	George E Lord	Counsel	—
Respondent	The Boulders at La Reserve Condominium Association	Counsel	Maria Kupillas

Alleged Violations

A.R.S. § 33-1242, A.R.S. § 33-1260.01, and CC&Rs

Outcome Summary

The Administrative Law Judge dismissed the Petition in its entirety, concluding that the Petitioner failed to establish by a preponderance of the evidence that the Respondent Condominium Association violated A.R.S. § 33-1242, A.R.S. § 33-1260.01, or the association's CC&Rs.

Why this result: Petitioner failed to establish a violation of any statute or covenant alleged. The core findings supported the HOA's position that the lessee was engaging in prohibited business activity and subletting, and that the charged attorney fees were permissible.

Key Issues & Findings

Alleged violations concerning notice procedures, leasing restrictions, prohibited business use, and excessive fees.

Petitioner alleged Respondent violated A.R.S. § 33-1242 by failing to include proper citations in violation notices, violated A.R.S. § 33-1260.01 and CC&Rs by imposing illegal restrictions on occupancy dates and prohibiting tenant guests, and violated fee limits under A.R.S. § 33-1260.01(E) by charging $250 in attorney fees.

Orders: The Petition was dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

• A.R.S. § 33-1242
• A.R.S. § 33-1260.01
• A.R.S. § 33-1258
• A.A.C. R2-19-119
• CC&Rs Section 7.21
• CC&Rs Section 7.3

Analytics Highlights

Topics: condominium, HOA dispute, leasing restrictions, short-term rental, business use, notice procedure, attorney fees

Additional Citations:

• A.R.S. § 33-1242
• A.R.S. § 33-1260.01
• A.R.S. § 33-1258
• A.A.C. R2-19-119
• CC&Rs Section 7.21
• CC&Rs Section 7.3

Audio Overview

Decision Documents

19F-H1918013-REL Decision – 677039.pdf

Uploaded 2025-10-08T07:07:17 (115.9 KB)

19F-H1918013-REL Decision – 677040.pdf

Uploaded 2025-10-08T07:07:18 (47.9 KB)

Briefing: Administrative Law Judge Decision in Lord v. The Boulders at La Reserve Condominium Association

Executive Summary

This document synthesizes the findings and conclusions of the Administrative Law Judge in Case No. 19F-H1918013-REL, a dispute between unit owner George E. Lord (Petitioner) and The Boulders at La Reserve Condominium Association (Respondent). The Petitioner alleged that the Respondent violated multiple Arizona statutes and its own governing documents by suspending amenity access and levying fees related to a complex leasing arrangement. The Judge ultimately dismissed the petition in its entirety, finding that the Petitioner failed to prove any violations. The central issue revolved around the Petitioner’s tenant, Barrie Shepley, who leased three units to house clients for his commercial fitness camps. The Judge concluded this arrangement constituted a prohibited business use and a form of subletting, justifying the Association’s enforcement actions, including the suspension of amenities. The ruling affirmed the Association’s right to regulate occupancy to prevent an “itinerant population” and upheld its procedural actions regarding violation notices and the charging of attorney’s fees.

——————————————————————————–

Case Overview

This matter was brought before the Arizona Office of Administrative Hearings to resolve a dispute between a condominium unit owner and the homeowners association (HOA) regarding alleged violations of leasing policies and state law.

Case Number

19F-H1918013-REL

Petitioner

George E. Lord

Respondent

The Boulders at La Reserve Condominium Association

Hearing Date

November 26, 2018

Decision Date

December 17, 2018

Presiding Judge

Administrative Law Judge Tammy L. Eigenheer

Procedural Background

1. On August 31, 2018, George Lord filed a petition with the Arizona Department of Real Estate alleging that The Boulders HOA had violated Arizona Revised Statutes (A.R.S.) § 33-1242, A.R.S. § 33-1260.01, and the association’s Covenants, Conditions, and Restrictions (CC&Rs).

2. The Respondent filed an answer on September 25, 2018, denying all allegations.

3. A hearing was conducted by the Office of Administrative Hearings on November 26, 2018, where both parties presented evidence and arguments.

——————————————————————————–

Core Dispute and Factual Background

The dispute originated from leases for three condominium units owned by the Petitioner. The central conflict was whether the occupants were legitimate guests of a primary lessee or participants in a short-term rental business that violated the community’s governing documents.

The Leasing Arrangement

• Lessee: The Petitioner, George Lord, leased two units to Barrie Shepley on December 4, 2017, for a term of March 7, 2018, to April 30, 2018. A third lease was transferred to a unit owned by the Petitioner on January 15, 2018.

• Lessee’s Business: Mr. Shepley operated a Canadian fitness business named “Personal Best,” which offered training camps in the Tucson area.

• Use of Units: The leased units at The Boulders were used to provide accommodations for clients attending six fitness camps scheduled between March 8 and April 29, 2018.

• Pricing Structure: The cost of the camp varied based on the living arrangements. The price per person decreased as more campers shared a single condo:

◦ Four campers per condo: $950.00 each

◦ Three campers per condo: $1,075.00 each

◦ Two campers per condo: $1,299.00 each

• It was noted that no fitness instruction was scheduled to occur on The Boulders’ property.

HOA Intervention and Consequences

• Initial Action: On March 9, 2018, The Boulders’ Community Manager, Danielle Morris, emailed the Petitioner expressing concern that Mr. Shepley was “subleasing your units out to different people in violation of the CC&R’s” for terms less than the 30-day minimum. The HOA deactivated the amenity access cards for all three units.

• Escalation: After email exchanges where the Petitioner argued the occupants were merely “guests,” the HOA maintained that it required the names of all occupants and proof of a minimum 30-day stay for each.

• Notices of Violation: On March 18, 2018, the Petitioner received formal Notices of Violations for the three units. The notices stated that amenity access was suspended because the HOA had not been provided “the names of the adult occupants residing in the unit or the timeframes of the occupant’s stay.” The notice warned that a $300 fine could be applied.

• Legal Fees: On March 22, 2018, the Petitioner received a letter from the Respondent’s counsel asserting the HOA’s legal position and stating that $250.00 in attorney’s fees had already been incurred and were due from the Petitioner.

• Financial Loss: On April 2, 2018, Mr. Shepley canceled the remainder of the leases due to the lack of amenity access for his clients. The Petitioner claimed a resulting loss of $6,900.00 in rental income for April 2018.

——————————————————————————–

Judicial Findings and Legal Conclusions

The Administrative Law Judge analyzed three distinct allegations made by the Petitioner and found that he failed to meet the burden of proof for any of them. The petition was ultimately dismissed.

Alleged Violation 1: A.R.S. § 33-1242 (Adequacy of Violation Notice)

• Petitioner’s Claim: The HOA violated the statute because its initial Notices of Violations failed to cite the specific provision of the governing documents that had allegedly been violated.

• Judge’s Conclusion: The Judge found no violation. A.R.S. § 33-1242(C) requires an association to provide the specific provision only after the unit owner has sent a written response to the initial notice via certified mail. The Petitioner admitted he did not respond to the Notices of Violations. Therefore, the HOA’s obligation to provide a specific citation was never triggered.

Alleged Violation 2: A.R.S. § 33-1260.01 & CC&Rs (Leasing and Business Use)

• Petitioner’s Claim: The HOA improperly demanded the dates of each occupant’s stay and incorrectly insisted that each occupant must stay for a minimum of 30 days. He argued that since he had a valid 30-day lease with Mr. Shepley, the occupants were simply guests.

• Governing Documents:

◦ CC&R Section 7.21: Requires all leases to be for a term of not less than 30 days.

◦ CC&R Section 7.3: Prohibits any “gainful occupation, profession, trade or other nonresidential use” in a unit if “the business activity does not involve persons coming to the Unit.”

• Judge’s Conclusion: The Judge rejected the Petitioner’s “guest” argument. The arrangement was determined to be a form of subletting for a business.

◦ The variable pricing structure, where the camp fee changed based on the number of people in a unit, demonstrated that accommodation was being sold, not merely provided to guests.

◦ Mr. Shepley was operating a business from the units in a manner that required people (his clients) to come to the unit, a direct violation of CC&R Section 7.3.

◦ The Judge noted the situation fell “between the cracks of the specific language of the statutes,” but concluded that “the spirit and purpose of the applicable rules is to allow an association to know who is in the community and to prevent an itinerant population.”

Alleged Violation 3: A.R.S. § 33-1260.01(E) (Improper Fees)

• Petitioner’s Claim: The $250 charge from the HOA’s counsel constituted an illegal fee, penalty, or assessment. The HOA’s policy allows for a $300 fine for lease violations.

• Judge’s Conclusion: The Judge found no violation. The evidence showed that the HOA had not actually assessed the $300 fine. The $250 charge was “clearly for attorney fees related to the possible collection of assessments.” The Judge stated that “Nothing in the cited statute or the CC&Rs prohibits such a charge being implemented.”

——————————————————————————–

Final Order

Based on the failure of the Petitioner to prove by a preponderance of the evidence that the Respondent violated any statutes or its CC&Rs, the Judge issued a final order:

“IT IS ORDERED that the Petition be dismissed.”

The decision is binding unless a rehearing is requested with the Commissioner of the Department of Real Estate within 30 days of the service of the order.

George E Lord vs. The Boulders at La Reserve Condominium Association

Posted on December 17, 2018 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	19F-H1918013-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2018-12-17
Administrative Law Judge	Tammy L. Eigenheer
Outcome	no
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	George E Lord	Counsel	—
Respondent	The Boulders at La Reserve Condominium Association	Counsel	Maria Kupillas

Alleged Violations

A.R.S. § 33-1242, A.R.S. § 33-1260.01, and CC&Rs

Outcome Summary

The Administrative Law Judge dismissed the Petition in its entirety, concluding that the Petitioner failed to establish by a preponderance of the evidence that the Respondent Condominium Association violated A.R.S. § 33-1242, A.R.S. § 33-1260.01, or the association's CC&Rs.

Why this result: Petitioner failed to establish a violation of any statute or covenant alleged. The core findings supported the HOA's position that the lessee was engaging in prohibited business activity and subletting, and that the charged attorney fees were permissible.

Key Issues & Findings

Alleged violations concerning notice procedures, leasing restrictions, prohibited business use, and excessive fees.

Petitioner alleged Respondent violated A.R.S. § 33-1242 by failing to include proper citations in violation notices, violated A.R.S. § 33-1260.01 and CC&Rs by imposing illegal restrictions on occupancy dates and prohibiting tenant guests, and violated fee limits under A.R.S. § 33-1260.01(E) by charging $250 in attorney fees.

Orders: The Petition was dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

• A.R.S. § 33-1242
• A.R.S. § 33-1260.01
• A.R.S. § 33-1258
• A.A.C. R2-19-119
• CC&Rs Section 7.21
• CC&Rs Section 7.3

Analytics Highlights

Topics: condominium, HOA dispute, leasing restrictions, short-term rental, business use, notice procedure, attorney fees

Additional Citations:

• A.R.S. § 33-1242
• A.R.S. § 33-1260.01
• A.R.S. § 33-1258
• A.A.C. R2-19-119
• CC&Rs Section 7.21
• CC&Rs Section 7.3

Audio Overview

Decision Documents

19F-H1918013-REL Decision – 677039.pdf

Uploaded 2025-10-09T03:33:32 (115.9 KB)

19F-H1918013-REL Decision – 677040.pdf

Uploaded 2025-10-09T03:33:32 (47.9 KB)

Briefing: Administrative Law Judge Decision in Lord v. The Boulders at La Reserve Condominium Association

Executive Summary

This document synthesizes the findings and conclusions of the Administrative Law Judge in Case No. 19F-H1918013-REL, a dispute between unit owner George E. Lord (Petitioner) and The Boulders at La Reserve Condominium Association (Respondent). The Petitioner alleged that the Respondent violated multiple Arizona statutes and its own governing documents by suspending amenity access and levying fees related to a complex leasing arrangement. The Judge ultimately dismissed the petition in its entirety, finding that the Petitioner failed to prove any violations. The central issue revolved around the Petitioner’s tenant, Barrie Shepley, who leased three units to house clients for his commercial fitness camps. The Judge concluded this arrangement constituted a prohibited business use and a form of subletting, justifying the Association’s enforcement actions, including the suspension of amenities. The ruling affirmed the Association’s right to regulate occupancy to prevent an “itinerant population” and upheld its procedural actions regarding violation notices and the charging of attorney’s fees.

——————————————————————————–

Case Overview

This matter was brought before the Arizona Office of Administrative Hearings to resolve a dispute between a condominium unit owner and the homeowners association (HOA) regarding alleged violations of leasing policies and state law.

Case Number

19F-H1918013-REL

Petitioner

George E. Lord

Respondent

The Boulders at La Reserve Condominium Association

Hearing Date

November 26, 2018

Decision Date

December 17, 2018

Presiding Judge

Administrative Law Judge Tammy L. Eigenheer

Procedural Background

1. On August 31, 2018, George Lord filed a petition with the Arizona Department of Real Estate alleging that The Boulders HOA had violated Arizona Revised Statutes (A.R.S.) § 33-1242, A.R.S. § 33-1260.01, and the association’s Covenants, Conditions, and Restrictions (CC&Rs).

2. The Respondent filed an answer on September 25, 2018, denying all allegations.

3. A hearing was conducted by the Office of Administrative Hearings on November 26, 2018, where both parties presented evidence and arguments.

——————————————————————————–

Core Dispute and Factual Background

The dispute originated from leases for three condominium units owned by the Petitioner. The central conflict was whether the occupants were legitimate guests of a primary lessee or participants in a short-term rental business that violated the community’s governing documents.

The Leasing Arrangement

• Lessee: The Petitioner, George Lord, leased two units to Barrie Shepley on December 4, 2017, for a term of March 7, 2018, to April 30, 2018. A third lease was transferred to a unit owned by the Petitioner on January 15, 2018.

• Lessee’s Business: Mr. Shepley operated a Canadian fitness business named “Personal Best,” which offered training camps in the Tucson area.

• Use of Units: The leased units at The Boulders were used to provide accommodations for clients attending six fitness camps scheduled between March 8 and April 29, 2018.

• Pricing Structure: The cost of the camp varied based on the living arrangements. The price per person decreased as more campers shared a single condo:

◦ Four campers per condo: $950.00 each

◦ Three campers per condo: $1,075.00 each

◦ Two campers per condo: $1,299.00 each

• It was noted that no fitness instruction was scheduled to occur on The Boulders’ property.

HOA Intervention and Consequences

• Initial Action: On March 9, 2018, The Boulders’ Community Manager, Danielle Morris, emailed the Petitioner expressing concern that Mr. Shepley was “subleasing your units out to different people in violation of the CC&R’s” for terms less than the 30-day minimum. The HOA deactivated the amenity access cards for all three units.

• Escalation: After email exchanges where the Petitioner argued the occupants were merely “guests,” the HOA maintained that it required the names of all occupants and proof of a minimum 30-day stay for each.

• Notices of Violation: On March 18, 2018, the Petitioner received formal Notices of Violations for the three units. The notices stated that amenity access was suspended because the HOA had not been provided “the names of the adult occupants residing in the unit or the timeframes of the occupant’s stay.” The notice warned that a $300 fine could be applied.

• Legal Fees: On March 22, 2018, the Petitioner received a letter from the Respondent’s counsel asserting the HOA’s legal position and stating that $250.00 in attorney’s fees had already been incurred and were due from the Petitioner.

• Financial Loss: On April 2, 2018, Mr. Shepley canceled the remainder of the leases due to the lack of amenity access for his clients. The Petitioner claimed a resulting loss of $6,900.00 in rental income for April 2018.

——————————————————————————–

Judicial Findings and Legal Conclusions

The Administrative Law Judge analyzed three distinct allegations made by the Petitioner and found that he failed to meet the burden of proof for any of them. The petition was ultimately dismissed.

Alleged Violation 1: A.R.S. § 33-1242 (Adequacy of Violation Notice)

• Petitioner’s Claim: The HOA violated the statute because its initial Notices of Violations failed to cite the specific provision of the governing documents that had allegedly been violated.

• Judge’s Conclusion: The Judge found no violation. A.R.S. § 33-1242(C) requires an association to provide the specific provision only after the unit owner has sent a written response to the initial notice via certified mail. The Petitioner admitted he did not respond to the Notices of Violations. Therefore, the HOA’s obligation to provide a specific citation was never triggered.

Alleged Violation 2: A.R.S. § 33-1260.01 & CC&Rs (Leasing and Business Use)

• Petitioner’s Claim: The HOA improperly demanded the dates of each occupant’s stay and incorrectly insisted that each occupant must stay for a minimum of 30 days. He argued that since he had a valid 30-day lease with Mr. Shepley, the occupants were simply guests.

• Governing Documents:

◦ CC&R Section 7.21: Requires all leases to be for a term of not less than 30 days.

◦ CC&R Section 7.3: Prohibits any “gainful occupation, profession, trade or other nonresidential use” in a unit if “the business activity does not involve persons coming to the Unit.”

• Judge’s Conclusion: The Judge rejected the Petitioner’s “guest” argument. The arrangement was determined to be a form of subletting for a business.

◦ The variable pricing structure, where the camp fee changed based on the number of people in a unit, demonstrated that accommodation was being sold, not merely provided to guests.

◦ Mr. Shepley was operating a business from the units in a manner that required people (his clients) to come to the unit, a direct violation of CC&R Section 7.3.

◦ The Judge noted the situation fell “between the cracks of the specific language of the statutes,” but concluded that “the spirit and purpose of the applicable rules is to allow an association to know who is in the community and to prevent an itinerant population.”

Alleged Violation 3: A.R.S. § 33-1260.01(E) (Improper Fees)

• Petitioner’s Claim: The $250 charge from the HOA’s counsel constituted an illegal fee, penalty, or assessment. The HOA’s policy allows for a $300 fine for lease violations.

• Judge’s Conclusion: The Judge found no violation. The evidence showed that the HOA had not actually assessed the $300 fine. The $250 charge was “clearly for attorney fees related to the possible collection of assessments.” The Judge stated that “Nothing in the cited statute or the CC&Rs prohibits such a charge being implemented.”

——————————————————————————–

Final Order

Based on the failure of the Petitioner to prove by a preponderance of the evidence that the Respondent violated any statutes or its CC&Rs, the Judge issued a final order:

“IT IS ORDERED that the Petition be dismissed.”

The decision is binding unless a rehearing is requested with the Commissioner of the Department of Real Estate within 30 days of the service of the order.

Peter Biondi, Jr. vs. Lakeshore at Andersen Springs Homeowners

Posted on August 21, 2018 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	18F-H1818048-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2018-08-21
Administrative Law Judge	Diane Mihalsky
Outcome	loss
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Peter Biondi, Jr.	Counsel	—
Respondent	Lakeshore at Andersen Springs Homeowners Association	Counsel	Maria R. Kupillas

Alleged Violations

A.R.S. §§ 33-1242, 33-1243, Respondent’s Bylaw Article II, Section 3 and Article III, Sections 2 and 3, and Respondent’s CC&Rs Section 8.13

Outcome Summary

The Administrative Law Judge denied the homeowner's petition, finding that the HOA's remaining Director acted permissibly and reasonably upon legal advice in refusing to defend a previous legal action, as the initial Board decision to remove fellow directors was contrary to mandatory statutory procedures outlined in A.R.S. § 33-1243, which requires removal by unit owners, not by the board.

Why this result: The Board's previous action of removing directors was illegal under A.R.S. § 33-1243 because director removal must be performed by a member vote. Because the HOA lacked a legal defense to the directors' challenge, the current petition failed to prove a violation when the sole remaining Director chose not to incur unnecessary fees contesting an unwinnable case, which was permissive under A.R.S. § 33-1242.

Key Issues & Findings

Alleged failure of the sole remaining Director to defend a prior petition challenging the board's removal of two directors.

Petitioner alleged the HOA violated governing documents and statutes when the remaining Director chose not to contest a prior Department petition filed by two removed Directors, resulting in their reinstatement. The ALJ found that the initial removal of the Directors by fellow Directors was illegal under A.R.S. § 33-1243(B) and (H), which reserves removal power to members. Because the HOA lacked a good legal defense, the remaining Director's decision not to defend the prior petition, based on legal advice, was permissive under A.R.S. § 33-1242 and not a violation.

Orders: Petitioner’s petition is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

• A.R.S. § 33-1243
• A.R.S. § 33-1242
• A.R.S. § 32-2199(1)
• A.R.S. § 33-1803

Analytics Highlights

Topics: Condominium, HOA Director Removal, Board Authority, Condo Bylaws

Additional Citations:

• A.R.S. § 33-1243
• A.R.S. § 33-1242
• A.R.S. § 32-2199
• A.R.S. § 33-1248
• A.R.S. § 33-1803
• A.A.C. R2-19-119

Audio Overview

Decision Documents

18F-H1818048-REL Decision – 654904.pdf

Uploaded 2025-10-08T07:05:54 (155.5 KB)

Briefing Document: Analysis of Administrative Law Judge Decision in Biondi v. Lakeshore at Andersen Springs HOA

Executive Summary

This document synthesizes the key findings of the Administrative Law Judge (ALJ) Decision in Case No. 18F-H1818048-REL, involving Petitioner Peter Biondi, Jr., and Respondent Lakeshore at Andersen Springs Homeowners Association (HOA). The ALJ ultimately denied the petition, concluding that the HOA’s actions were legally sound.

The core of the dispute centered on the decision by the HOA’s sole remaining director, Bonnie Henden, to reinstate two board members, Jim Luzzis and Jerry Dubasquier, who had been removed by their fellow directors for alleged violations of the association’s Covenants, Conditions, and Restrictions (CC&Rs). The petitioner argued that Ms. Henden’s refusal to defend the Board’s removal action in a subsequent legal challenge constituted a violation of the HOA’s governing documents and state law.

The ALJ’s decision rested on a critical legal principle: the supremacy of Arizona state law over an association’s internal bylaws. The dispositive finding was that the initial removal of Messrs. Luzzis and Dubasquier by their fellow board members was legally improper. Under Arizona Revised Statute (A.R.S.) § 33-1243, the power to remove a director is reserved exclusively for the association’s unit owners through a formal petition and voting process; a board of directors cannot remove its own members.

Consequently, Ms. Henden’s decision not to defend an indefensible action was deemed a prudent and permissible business judgment. Relying on legal advice from three separate attorneys and the permissive language of A.R.S. § 33-1242, which does not mandate a defense in litigation, her actions were found to have correctly avoided wasting the association’s funds on a legal case it was certain to lose.

Case Overview

• Case Name: Peter Biondi, Jr., vs. Lakeshore at Andersen Springs Homeowners Association

• Case Number: 18F-H1818048-REL

• Adjudicating Body: Office of Administrative Hearings, State of Arizona

• Presiding Judge: Administrative Law Judge Diane Mihalsky

• Date of Decision: August 21, 2018

Summary of Petition

On May 9, 2018, Petitioner Peter Biondi, Jr., a member of the Lakeshore at Andersen Springs HOA, filed a petition alleging that the HOA violated state statutes (A.R.S. §§ 33-1242 and 33-1243) and its own Bylaws and CC&Rs. The alleged violation occurred when the Board’s sole remaining member, Bonnie Henden, refused to defend the HOA against a petition filed by two former directors, Jim Luzzis and Jerry Dubasquier, who were contesting their removal from the Board. Instead of defending the removal, Ms. Henden reinstated them.

Background and Sequence of Events

1. Initial Complaint: Prior to January 2018, complaints were made that two serving directors, Jim Luzzis and Jerry Dubasquier, were violating Section 8.13 of the CC&Rs by renting their units as short-term Vacation Rental By Owner (“VRBOs”). This section mandates a minimum lease period of six months.

2. Board Action and Removal: The Board concluded that the two directors had violated the CC&Rs. At a contentious executive session on January 4, 2018, a majority of the five other directors voted to remove or disqualify Messrs. Luzzis and Dubasquier from their positions on the Board.

3. Legal Challenge: Messrs. Luzzis and Dubasquier filed a complaint with the Arizona Department of Real Estate to protest their removal.

4. Board Collapse: Following the removal, the Board’s composition changed dramatically. The petitioner and another director, Jeffrey Washburn, resigned “to restore calm in the community.” A third director was removed or resigned for non-payment of assessments. By March or April 2018, this series of departures left Bonnie Henden as the sole remaining director.

5. Henden’s Legal Consultation: As the sole director, Ms. Henden consulted the HOA’s attorney regarding the petition filed by Luzzis and Dubasquier. After this attorney learned that other board members had also potentially used their units as short-term rentals, he withdrew from representing the HOA. Ms. Henden subsequently retained new counsel and consulted a total of three different attorneys.

6. Decision Not to Defend: Based on the legal advice she received, Ms. Henden chose not to file an answer on behalf of the HOA to the petition filed by Luzzis and Dubasquier.

7. Reinstatement of Directors: The Department of Real Estate issued a decision in favor of Messrs. Luzzis and Dubasquier, ordering the HOA to pay their filing fee. Ms. Henden then officially reinstated them to the Board to complete their elected terms and cancelled the election that had been scheduled to choose their successors.

Dispositive Legal Analysis and Key Findings

The ALJ determined that the central issue was not the factual question of whether the directors had violated the CC&Rs, but the overriding legal question of whether the Board had the authority to remove them.

“The dispositive issue is not the factual issue of whether Messrs. Luzzis and Dubasquier violated CC&R Section 8.13 by using their units as short-term VRBOs, but the legal issue of whether the other directors on Respondent’s Board properly removed them from the Board…”

Supremacy of State Statute over Association Bylaws

The case highlighted a direct conflict between the HOA’s governing documents and Arizona state law. While the HOA’s bylaws suggested the Board could deem a director ineligible for violating governing documents, this provision was rendered void by state statute.

• A.R.S. § 33-1243 (Director Removal): This statute was the cornerstone of the ALJ’s decision. Its provisions unequivocally establish the process for director removal:

◦ Subsection (B): Explicitly prohibits a board of directors from acting on behalf of the association to “determine the qualifications, powers and duties or terms of office of board of directors members.”

◦ Subsection (H): States that its provisions apply “notwithstanding any provision of the declaration or bylaws to the contrary.” It specifies that only “unit owners who are eligible to vote” may remove a board member, and only by a “majority vote of those voting on the matter at a meeting of the unit owners.” It further details a petition process required to call such a special meeting.

• ALJ Conclusion on Removal: The Board’s action to remove Messrs. Luzzis and Dubasquier was a direct violation of A.R.S. § 33-1243. The Board did not follow the specific and unequivocal statutory requirements, which mandate that only the members who elected a director can remove that director. As such, the HOA “lacked any good legal defense to Messrs. Luzzis and Dubasquier’s challenge to their removal.”

Validation of Henden’s Actions

The ALJ found Ms. Henden’s decision not to defend the HOA was legally justified and prudent.

• A.R.S. § 33-1242 (Duty to Defend): This statute governs the powers of an association. It states that an association “may… defend or intervene in litigation or administrative proceedings.” The ALJ focused on the word “may,” interpreting it according to established legal precedent.

• Permissive, Not Mandatory: The use of “may” indicates permissive intent. Therefore, Ms. Henden was not statutorily required to contest the petition filed by Luzzis and Dubasquier.

• Prudent Business Judgment: Having consulted three attorneys who advised her that the HOA would likely not prevail due to the clear language of A.R.S. § 33-1243, her decision was deemed a reasonable measure to protect the association from incurring unnecessary legal fees for a losing cause. The judge noted:

“No statute requires a condominium association or a director to take an ill-advised act or to mount a defense of a previously taken ill-advised act that likely will fail on its merits.”

Final Order and Conclusion

Based on the finding that the original removal of the directors was illegal and that the subsequent decision not to defend the action was permissible, the judge issued a final, binding order.

IT IS ORDERED that Petitioner’s petition is denied.

The ultimate conclusion of this case establishes a critical precedent for HOA governance in Arizona: a condominium association’s Board of Directors has no authority to remove its own members. That power is reserved exclusively for the unit owners through a specific, statutorily defined process. Any attempt by a board to circumvent this process is legally invalid, and an officer’s decision to avoid defending such an improper action in court is a justifiable exercise of their duties.

Peter Biondi, Jr. vs. Lakeshore at Andersen Springs Homeowners

Posted on August 21, 2018 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	18F-H1818048-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2018-08-21
Administrative Law Judge	Diane Mihalsky
Outcome	loss
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Peter Biondi, Jr.	Counsel	—
Respondent	Lakeshore at Andersen Springs Homeowners Association	Counsel	Maria R. Kupillas

Alleged Violations

A.R.S. §§ 33-1242, 33-1243, Respondent’s Bylaw Article II, Section 3 and Article III, Sections 2 and 3, and Respondent’s CC&Rs Section 8.13

Outcome Summary

The Administrative Law Judge denied the homeowner's petition, finding that the HOA's remaining Director acted permissibly and reasonably upon legal advice in refusing to defend a previous legal action, as the initial Board decision to remove fellow directors was contrary to mandatory statutory procedures outlined in A.R.S. § 33-1243, which requires removal by unit owners, not by the board.

Why this result: The Board's previous action of removing directors was illegal under A.R.S. § 33-1243 because director removal must be performed by a member vote. Because the HOA lacked a legal defense to the directors' challenge, the current petition failed to prove a violation when the sole remaining Director chose not to incur unnecessary fees contesting an unwinnable case, which was permissive under A.R.S. § 33-1242.

Key Issues & Findings

Alleged failure of the sole remaining Director to defend a prior petition challenging the board's removal of two directors.

Petitioner alleged the HOA violated governing documents and statutes when the remaining Director chose not to contest a prior Department petition filed by two removed Directors, resulting in their reinstatement. The ALJ found that the initial removal of the Directors by fellow Directors was illegal under A.R.S. § 33-1243(B) and (H), which reserves removal power to members. Because the HOA lacked a good legal defense, the remaining Director's decision not to defend the prior petition, based on legal advice, was permissive under A.R.S. § 33-1242 and not a violation.

Orders: Petitioner’s petition is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

• A.R.S. § 33-1243
• A.R.S. § 33-1242
• A.R.S. § 32-2199(1)
• A.R.S. § 33-1803

Analytics Highlights

Topics: Condominium, HOA Director Removal, Board Authority, Condo Bylaws

Additional Citations:

• A.R.S. § 33-1243
• A.R.S. § 33-1242
• A.R.S. § 32-2199
• A.R.S. § 33-1248
• A.R.S. § 33-1803
• A.A.C. R2-19-119

Audio Overview

Decision Documents

18F-H1818048-REL Decision – 654904.pdf

Uploaded 2025-10-09T03:32:58 (155.5 KB)

Briefing Document: Analysis of Administrative Law Judge Decision in Biondi v. Lakeshore at Andersen Springs HOA

Executive Summary

This document synthesizes the key findings of the Administrative Law Judge (ALJ) Decision in Case No. 18F-H1818048-REL, involving Petitioner Peter Biondi, Jr., and Respondent Lakeshore at Andersen Springs Homeowners Association (HOA). The ALJ ultimately denied the petition, concluding that the HOA’s actions were legally sound.

The core of the dispute centered on the decision by the HOA’s sole remaining director, Bonnie Henden, to reinstate two board members, Jim Luzzis and Jerry Dubasquier, who had been removed by their fellow directors for alleged violations of the association’s Covenants, Conditions, and Restrictions (CC&Rs). The petitioner argued that Ms. Henden’s refusal to defend the Board’s removal action in a subsequent legal challenge constituted a violation of the HOA’s governing documents and state law.

The ALJ’s decision rested on a critical legal principle: the supremacy of Arizona state law over an association’s internal bylaws. The dispositive finding was that the initial removal of Messrs. Luzzis and Dubasquier by their fellow board members was legally improper. Under Arizona Revised Statute (A.R.S.) § 33-1243, the power to remove a director is reserved exclusively for the association’s unit owners through a formal petition and voting process; a board of directors cannot remove its own members.

Consequently, Ms. Henden’s decision not to defend an indefensible action was deemed a prudent and permissible business judgment. Relying on legal advice from three separate attorneys and the permissive language of A.R.S. § 33-1242, which does not mandate a defense in litigation, her actions were found to have correctly avoided wasting the association’s funds on a legal case it was certain to lose.

Case Overview

• Case Name: Peter Biondi, Jr., vs. Lakeshore at Andersen Springs Homeowners Association

• Case Number: 18F-H1818048-REL

• Adjudicating Body: Office of Administrative Hearings, State of Arizona

• Presiding Judge: Administrative Law Judge Diane Mihalsky

• Date of Decision: August 21, 2018

Summary of Petition

On May 9, 2018, Petitioner Peter Biondi, Jr., a member of the Lakeshore at Andersen Springs HOA, filed a petition alleging that the HOA violated state statutes (A.R.S. §§ 33-1242 and 33-1243) and its own Bylaws and CC&Rs. The alleged violation occurred when the Board’s sole remaining member, Bonnie Henden, refused to defend the HOA against a petition filed by two former directors, Jim Luzzis and Jerry Dubasquier, who were contesting their removal from the Board. Instead of defending the removal, Ms. Henden reinstated them.

Background and Sequence of Events

1. Initial Complaint: Prior to January 2018, complaints were made that two serving directors, Jim Luzzis and Jerry Dubasquier, were violating Section 8.13 of the CC&Rs by renting their units as short-term Vacation Rental By Owner (“VRBOs”). This section mandates a minimum lease period of six months.

2. Board Action and Removal: The Board concluded that the two directors had violated the CC&Rs. At a contentious executive session on January 4, 2018, a majority of the five other directors voted to remove or disqualify Messrs. Luzzis and Dubasquier from their positions on the Board.

3. Legal Challenge: Messrs. Luzzis and Dubasquier filed a complaint with the Arizona Department of Real Estate to protest their removal.

4. Board Collapse: Following the removal, the Board’s composition changed dramatically. The petitioner and another director, Jeffrey Washburn, resigned “to restore calm in the community.” A third director was removed or resigned for non-payment of assessments. By March or April 2018, this series of departures left Bonnie Henden as the sole remaining director.

5. Henden’s Legal Consultation: As the sole director, Ms. Henden consulted the HOA’s attorney regarding the petition filed by Luzzis and Dubasquier. After this attorney learned that other board members had also potentially used their units as short-term rentals, he withdrew from representing the HOA. Ms. Henden subsequently retained new counsel and consulted a total of three different attorneys.

6. Decision Not to Defend: Based on the legal advice she received, Ms. Henden chose not to file an answer on behalf of the HOA to the petition filed by Luzzis and Dubasquier.

7. Reinstatement of Directors: The Department of Real Estate issued a decision in favor of Messrs. Luzzis and Dubasquier, ordering the HOA to pay their filing fee. Ms. Henden then officially reinstated them to the Board to complete their elected terms and cancelled the election that had been scheduled to choose their successors.

Dispositive Legal Analysis and Key Findings

The ALJ determined that the central issue was not the factual question of whether the directors had violated the CC&Rs, but the overriding legal question of whether the Board had the authority to remove them.

“The dispositive issue is not the factual issue of whether Messrs. Luzzis and Dubasquier violated CC&R Section 8.13 by using their units as short-term VRBOs, but the legal issue of whether the other directors on Respondent’s Board properly removed them from the Board…”

Supremacy of State Statute over Association Bylaws

The case highlighted a direct conflict between the HOA’s governing documents and Arizona state law. While the HOA’s bylaws suggested the Board could deem a director ineligible for violating governing documents, this provision was rendered void by state statute.

• A.R.S. § 33-1243 (Director Removal): This statute was the cornerstone of the ALJ’s decision. Its provisions unequivocally establish the process for director removal:

◦ Subsection (B): Explicitly prohibits a board of directors from acting on behalf of the association to “determine the qualifications, powers and duties or terms of office of board of directors members.”

◦ Subsection (H): States that its provisions apply “notwithstanding any provision of the declaration or bylaws to the contrary.” It specifies that only “unit owners who are eligible to vote” may remove a board member, and only by a “majority vote of those voting on the matter at a meeting of the unit owners.” It further details a petition process required to call such a special meeting.

• ALJ Conclusion on Removal: The Board’s action to remove Messrs. Luzzis and Dubasquier was a direct violation of A.R.S. § 33-1243. The Board did not follow the specific and unequivocal statutory requirements, which mandate that only the members who elected a director can remove that director. As such, the HOA “lacked any good legal defense to Messrs. Luzzis and Dubasquier’s challenge to their removal.”

Validation of Henden’s Actions

The ALJ found Ms. Henden’s decision not to defend the HOA was legally justified and prudent.

• A.R.S. § 33-1242 (Duty to Defend): This statute governs the powers of an association. It states that an association “may… defend or intervene in litigation or administrative proceedings.” The ALJ focused on the word “may,” interpreting it according to established legal precedent.

• Permissive, Not Mandatory: The use of “may” indicates permissive intent. Therefore, Ms. Henden was not statutorily required to contest the petition filed by Luzzis and Dubasquier.

• Prudent Business Judgment: Having consulted three attorneys who advised her that the HOA would likely not prevail due to the clear language of A.R.S. § 33-1243, her decision was deemed a reasonable measure to protect the association from incurring unnecessary legal fees for a losing cause. The judge noted:

“No statute requires a condominium association or a director to take an ill-advised act or to mount a defense of a previously taken ill-advised act that likely will fail on its merits.”

Final Order and Conclusion

Based on the finding that the original removal of the directors was illegal and that the subsequent decision not to defend the action was permissible, the judge issued a final, binding order.

IT IS ORDERED that Petitioner’s petition is denied.

The ultimate conclusion of this case establishes a critical precedent for HOA governance in Arizona: a condominium association’s Board of Directors has no authority to remove its own members. That power is reserved exclusively for the unit owners through a specific, statutorily defined process. Any attempt by a board to circumvent this process is legally invalid, and an officer’s decision to avoid defending such an improper action in court is a justifiable exercise of their duties.

Annette Cohen vs. CBS 136 Homeowners Association

Posted on June 26, 2018 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	18F-H1818033-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2018-06-26
Administrative Law Judge	Tammy L. Eigenheer
Outcome	partial
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Annette Cohen	Counsel	—
Respondent	CBS 136 Homeowners Association	Counsel	Brian E. Ditsch

Alleged Violations

A.R.S. § 33-1258(A)

Outcome Summary

Petitioner was deemed the prevailing party because Respondent established a technical violation of A.R.S. § 33-1258(A) by failing to provide requested documents within the 10-day limit. However, the Administrative Law Judge found a civil penalty was not appropriate given the circumstances.

Key Issues & Findings

Failure to provide requested association records within 10 business days

Petitioner requested sign-in sheets for the January 10, 2018, and February 15, 2018, CBS HOA meetings. Respondent acknowledged a technical violation of the statute by failing to provide the requested documents within the required 10-day timeframe, although they were ultimately provided prior to the hearing.

Orders: Respondent must comply with the applicable provisions of A.R.S. § 33-1258(A) in the future, and pay Petitioner her filing fee of $500.00 within thirty (30) days.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

• A.R.S. § 33-1258
• A.R.S. § 33-1258(A)

Analytics Highlights

Topics: records request, failure to provide documents, condominium owners association, filing fee refund

Additional Citations:

• A.R.S. § 32-2199 et seq.
• A.R.S. § 33-1258
• A.A.C. R2-19-119
• A.R.S. § 33-1258(A)
• A.R.S. §32-2199.02(B)
• A.R.S. § 32-2199.04
• A.R.S. § 41-1092.09

Audio Overview

Decision Documents

18F-H1818033-REL Decision – 642888.pdf

Uploaded 2025-10-08T07:05:13 (74.5 KB)

18F-H1818033-REL Decision – 655537.pdf

Uploaded 2025-10-08T07:05:13 (83.3 KB)

Administrative Hearing Briefing: Cohen v. CBS 136 Homeowners Association

Executive Summary

This document synthesizes the findings and decision from the administrative hearing case Annette Cohen v. CBS 136 Homeowners Association (No. 18F-H1818033-REL). The core of the dispute was the Homeowners Association’s (HOA) failure to provide requested documents—specifically, meeting sign-in sheets—to a member, Annette Cohen, within the ten-business-day timeframe mandated by Arizona statute A.R.S. § 33-1258.

At the hearing, the Respondent HOA acknowledged this “technical violation,” attributing the delay to operational difficulties arising from a recent change in management companies. The Petitioner, Ms. Cohen, argued the delay was intentional and warranted a civil penalty.

The Administrative Law Judge, Tammy L. Eigenheer, found that the HOA did violate the statute. In the final order, the Judge declared Ms. Cohen the prevailing party and mandated future compliance by the HOA. While a civil penalty was deemed inappropriate under the circumstances, the Judge ordered the HOA to reimburse Ms. Cohen’s $500 filing fee.

Case Overview

Entity / Individual

Petitioner

Annette Cohen

Respondent

CBS 136 Homeowners Association (CBS)

Respondent’s Counsel

Brian Ditsch, Sacks Tierney P.A.

Respondent’s Mgmt. Co.

Key Witness

Susan Rubin (PRM)

Adjudicating Body

Office of Administrative Hearings, Phoenix, Arizona

Administrative Law Judge

Tammy L. Eigenheer

Case Number

18F-H1818033-REL

Hearing Date

June 6, 2018

Decision Date

June 26, 2018

Chronology of the Dispute

The dispute centered on two separate sets of document requests made by Petitioner Annette Cohen.

• Request 1 (January 10 Meeting):

◦ On or about Jan. 10, 2018: Ms. Cohen requested the sign-in sheets from the annual meeting held on this date.

◦ Jan. 2018: The management company PRM took over management of the CBS 136 HOA.

◦ Feb. 15, 2018: After more than a month, and after two scheduled review appointments were cancelled by the management company, the sign-in sheets were finally provided to Ms. Cohen by email.

• Request 2 (February 15 Meeting):

◦ Feb. 19, 2018: Ms. Cohen requested the sign-in sheets from the February 15, 2018 HOA meeting. Receipt of this request was acknowledged by PRM.

◦ Feb. 21, 26, 27 & March 5, 2018: Ms. Cohen made repeated follow-up requests for the same information.

• Formal Proceedings:

◦ March 9, 2018: Ms. Cohen filed a formal petition with the Arizona Department of Real Estate.

◦ April 10, 2018: The Respondent HOA filed an answer denying all allegations.

◦ June 6, 2018: An administrative hearing was held. The documents had been provided to Ms. Cohen at some point prior to this hearing.

◦ June 26, 2018: The Administrative Law Judge issued the final decision.

Core Allegation and Legal Framework

Petitioner’s Allegation

Annette Cohen alleged that the CBS 136 Homeowners Association violated A.R.S. Title 33, Chapter 16, Section 33-1258 by failing to provide association records for review and copying within the statutorily required timeframe.

Governing Statute: A.R.S. § 33-1258(A)

The legal basis for the petition is Arizona Revised Statute § 33-1258(A), which governs a member’s right to access association records. The statute states, in relevant part:

“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. On request for purchase of copies of records by any member… the association shall have ten business days to provide copies of the requested records. An association may charge a fee for making copies of not more than fifteen cents per page.”

The petitioner bears the burden of proving a violation by a preponderance of the evidence, defined as evidence that “shows that the fact sought to be proved is more probable than not.”

Arguments and Evidence Presented at Hearing

Once the Respondent acknowledged the delay, the hearing focused solely on determining the appropriate remedy.

Petitioner’s Position (Annette Cohen)

• Intentional Negligence: Ms. Cohen argued that the Respondent “intentionally ignored her request for the documents.”

• Request for Penalty: Based on the belief of intentional neglect, she asserted that a civil penalty was an appropriate remedy.

• Unreasonable Delay: She noted that the documents “could have easily been emailed to her within the 10 day deadline,” but that the HOA’s management company did not present this as an option until after the deadline had already passed.

Respondent’s Position (CBS 136 HOA)

• Acknowledged Violation: At the June 6, 2018 hearing, the Respondent “acknowledged that the requested documents were not provided within the 10 day timeframe set forth in statute.”

• Mitigating Circumstances: The defense centered on testimony from Susan Rubin of the management company, PRM. Ms. Rubin testified to the following:

◦ No requests are “ever purposefully ignored.”

◦ PRM had only taken over management of the HOA in January 2018.

◦ At the time of the requests, PRM was “still getting documents from the former management company.”

◦ The delay was not due to ignoring the request, but because it “took a little longer than expected to provide the documents.”

Administrative Law Judge’s Decision and Order

Findings and Conclusions

• Violation Established: The Judge concluded there was “no dispute that Respondent failed to provide the requested documents within 10 days.” Therefore, the Petitioner “established by a preponderance of the evidence that Respondent violated A.R.S. § 33-1258(A).”

• Rejection of Civil Penalty: Despite the Petitioner’s argument, the Administrative Law Judge did “not find such a penalty to be appropriate given the circumstances in this matter.”

Final Order

The Judge issued a three-part order binding on the parties:

1. Prevailing Party: The Petitioner, Annette Cohen, is “deemed the prevailing party.”

2. Future Compliance: The Respondent, CBS 136 Homeowners Association, is ordered to “comply with the applicable provisions of A.R.S. § 33-1258(A) in the future.”

3. Reimbursement of Filing Fee: The Respondent must pay the Petitioner her filing fee of $500.00 directly to her within thirty (30) days of the order.

Annette Cohen vs. CBS 136 Homeowners Association

Posted on June 26, 2018 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	18F-H1818033-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2018-06-26
Administrative Law Judge	Tammy L. Eigenheer
Outcome	partial
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Annette Cohen	Counsel	—
Respondent	CBS 136 Homeowners Association	Counsel	Brian E. Ditsch

Alleged Violations

A.R.S. § 33-1258(A)

Outcome Summary

Petitioner was deemed the prevailing party because Respondent established a technical violation of A.R.S. § 33-1258(A) by failing to provide requested documents within the 10-day limit. However, the Administrative Law Judge found a civil penalty was not appropriate given the circumstances.

Key Issues & Findings

Failure to provide requested association records within 10 business days

Petitioner requested sign-in sheets for the January 10, 2018, and February 15, 2018, CBS HOA meetings. Respondent acknowledged a technical violation of the statute by failing to provide the requested documents within the required 10-day timeframe, although they were ultimately provided prior to the hearing.

Orders: Respondent must comply with the applicable provisions of A.R.S. § 33-1258(A) in the future, and pay Petitioner her filing fee of $500.00 within thirty (30) days.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

• A.R.S. § 33-1258
• A.R.S. § 33-1258(A)

Analytics Highlights

Topics: records request, failure to provide documents, condominium owners association, filing fee refund

Additional Citations:

• A.R.S. § 32-2199 et seq.
• A.R.S. § 33-1258
• A.A.C. R2-19-119
• A.R.S. § 33-1258(A)
• A.R.S. §32-2199.02(B)
• A.R.S. § 32-2199.04
• A.R.S. § 41-1092.09

Audio Overview

Decision Documents

18F-H1818033-REL Decision – 642888.pdf

Uploaded 2025-10-09T03:32:41 (74.5 KB)

18F-H1818033-REL Decision – 655537.pdf

Uploaded 2025-10-09T03:32:42 (83.3 KB)

Administrative Hearing Briefing: Cohen v. CBS 136 Homeowners Association

Executive Summary

This document synthesizes the findings and decision from the administrative hearing case Annette Cohen v. CBS 136 Homeowners Association (No. 18F-H1818033-REL). The core of the dispute was the Homeowners Association’s (HOA) failure to provide requested documents—specifically, meeting sign-in sheets—to a member, Annette Cohen, within the ten-business-day timeframe mandated by Arizona statute A.R.S. § 33-1258.

At the hearing, the Respondent HOA acknowledged this “technical violation,” attributing the delay to operational difficulties arising from a recent change in management companies. The Petitioner, Ms. Cohen, argued the delay was intentional and warranted a civil penalty.

The Administrative Law Judge, Tammy L. Eigenheer, found that the HOA did violate the statute. In the final order, the Judge declared Ms. Cohen the prevailing party and mandated future compliance by the HOA. While a civil penalty was deemed inappropriate under the circumstances, the Judge ordered the HOA to reimburse Ms. Cohen’s $500 filing fee.

Case Overview

Entity / Individual

Petitioner

Annette Cohen

Respondent

CBS 136 Homeowners Association (CBS)

Respondent’s Counsel

Brian Ditsch, Sacks Tierney P.A.

Respondent’s Mgmt. Co.

Key Witness

Susan Rubin (PRM)

Adjudicating Body

Office of Administrative Hearings, Phoenix, Arizona

Administrative Law Judge

Tammy L. Eigenheer

Case Number

18F-H1818033-REL

Hearing Date

June 6, 2018

Decision Date

June 26, 2018

Chronology of the Dispute

The dispute centered on two separate sets of document requests made by Petitioner Annette Cohen.

• Request 1 (January 10 Meeting):

◦ On or about Jan. 10, 2018: Ms. Cohen requested the sign-in sheets from the annual meeting held on this date.

◦ Jan. 2018: The management company PRM took over management of the CBS 136 HOA.

◦ Feb. 15, 2018: After more than a month, and after two scheduled review appointments were cancelled by the management company, the sign-in sheets were finally provided to Ms. Cohen by email.

• Request 2 (February 15 Meeting):

◦ Feb. 19, 2018: Ms. Cohen requested the sign-in sheets from the February 15, 2018 HOA meeting. Receipt of this request was acknowledged by PRM.

◦ Feb. 21, 26, 27 & March 5, 2018: Ms. Cohen made repeated follow-up requests for the same information.

• Formal Proceedings:

◦ March 9, 2018: Ms. Cohen filed a formal petition with the Arizona Department of Real Estate.

◦ April 10, 2018: The Respondent HOA filed an answer denying all allegations.

◦ June 6, 2018: An administrative hearing was held. The documents had been provided to Ms. Cohen at some point prior to this hearing.

◦ June 26, 2018: The Administrative Law Judge issued the final decision.

Core Allegation and Legal Framework

Petitioner’s Allegation

Annette Cohen alleged that the CBS 136 Homeowners Association violated A.R.S. Title 33, Chapter 16, Section 33-1258 by failing to provide association records for review and copying within the statutorily required timeframe.

Governing Statute: A.R.S. § 33-1258(A)

The legal basis for the petition is Arizona Revised Statute § 33-1258(A), which governs a member’s right to access association records. The statute states, in relevant part:

“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. On request for purchase of copies of records by any member… the association shall have ten business days to provide copies of the requested records. An association may charge a fee for making copies of not more than fifteen cents per page.”

The petitioner bears the burden of proving a violation by a preponderance of the evidence, defined as evidence that “shows that the fact sought to be proved is more probable than not.”

Arguments and Evidence Presented at Hearing

Once the Respondent acknowledged the delay, the hearing focused solely on determining the appropriate remedy.

Petitioner’s Position (Annette Cohen)

• Intentional Negligence: Ms. Cohen argued that the Respondent “intentionally ignored her request for the documents.”

• Request for Penalty: Based on the belief of intentional neglect, she asserted that a civil penalty was an appropriate remedy.

• Unreasonable Delay: She noted that the documents “could have easily been emailed to her within the 10 day deadline,” but that the HOA’s management company did not present this as an option until after the deadline had already passed.

Respondent’s Position (CBS 136 HOA)

• Acknowledged Violation: At the June 6, 2018 hearing, the Respondent “acknowledged that the requested documents were not provided within the 10 day timeframe set forth in statute.”

• Mitigating Circumstances: The defense centered on testimony from Susan Rubin of the management company, PRM. Ms. Rubin testified to the following:

◦ No requests are “ever purposefully ignored.”

◦ PRM had only taken over management of the HOA in January 2018.

◦ At the time of the requests, PRM was “still getting documents from the former management company.”

◦ The delay was not due to ignoring the request, but because it “took a little longer than expected to provide the documents.”

Administrative Law Judge’s Decision and Order

Findings and Conclusions

• Violation Established: The Judge concluded there was “no dispute that Respondent failed to provide the requested documents within 10 days.” Therefore, the Petitioner “established by a preponderance of the evidence that Respondent violated A.R.S. § 33-1258(A).”

• Rejection of Civil Penalty: Despite the Petitioner’s argument, the Administrative Law Judge did “not find such a penalty to be appropriate given the circumstances in this matter.”

Final Order

The Judge issued a three-part order binding on the parties:

1. Prevailing Party: The Petitioner, Annette Cohen, is “deemed the prevailing party.”

2. Future Compliance: The Respondent, CBS 136 Homeowners Association, is ordered to “comply with the applicable provisions of A.R.S. § 33-1258(A) in the future.”

3. Reimbursement of Filing Fee: The Respondent must pay the Petitioner her filing fee of $500.00 directly to her within thirty (30) days of the order.