Tag Archives: A.R.S. § 33-1804

Gary W. Moselle vs. Desert Mountain Master Association

Posted on May 10, 2018 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	18F-H1817005-REL-RHG
Agency	ADRE
Tribunal	OAH
Decision Date	2018-05-10
Administrative Law Judge	Tammy L. Eigenheer
Outcome	loss
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Gary W. Moselle	Counsel	—
Respondent	Desert Mountain Master Association	Counsel	Curtis Ekmark

Alleged Violations

A.R.S. § 33-1804

Outcome Summary

The Administrative Law Judge denied the petition, concluding that the respondent HOA did not violate A.R.S. § 33-1804 because the committee meeting in question was not a “regularly scheduled committee meeting” required to be open to all members.

Why this result: The specific language of A.R.S. § 33-1804(A) only requires 'regularly scheduled committee meetings' to be open, and the committee in question did not meet at regular intervals.

Key Issues & Findings

Whether the DMMA Communications Committee meeting was subject to the open meetings law.

Petitioner, a member/homeowner, alleged the HOA violated the open meetings statute by closing a September 6, 2017, committee meeting. The ALJ determined the committee did not hold 'regularly scheduled' meetings and thus was not subject to the open meetings law.

Orders: Petitioner's petition is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

• A.R.S. § 33-1804

Analytics Highlights

Topics: Open Meetings Law, Committee Meetings, Statutory Interpretation, Regularly Scheduled

Additional Citations:

• A.R.S. § 33-1804
• A.R.S. § 32-2199 et seq.
• A.A.C. R2-19-119
• State ex rel. Thomas v. Contes
• Marsoner v. Pima County

Audio Overview

Decision Documents

18F-H1817005-REL-RHG Decision – 634096.pdf

Uploaded 2025-10-09T03:32:03 (106.4 KB)

Briefing Document: Moselle v. Desert Mountain Master Association

Executive Summary

This document summarizes the Administrative Law Judge Decision in case number 18F-H1817005-REL-RHG, a dispute between homeowner Gary W. Moselle (Petitioner) and the Desert Mountain Master Association (DMMA/Respondent). The central issue was whether a “closed” meeting of the DMMA Communications Committee on September 6, 2017, violated Arizona’s open meetings law for planned communities, A.R.S. § 33-1804.

The case hinged on the interpretation of the phrase “regularly scheduled committee meetings.” The Petitioner argued this meant any meeting scheduled in a normal fashion, while the Respondent contended it applied only to meetings occurring at fixed, regular intervals. The Respondent provided evidence that the committee in question met infrequently and without a set schedule.

The Administrative Law Judge ultimately ruled in favor of the Respondent, concluding that “regularly scheduled” refers to meetings held at regular intervals. The judge found that the specific language of the statute requiring only “regularly scheduled” committee meetings to be open superseded the statute’s general policy statement in favor of open meetings. The Petitioner’s petition was denied.

Case Background and Timeline

The dispute originated from a petition filed by Gary W. Moselle with the Arizona Department of Real Estate, alleging that the DMMA violated state law by holding a closed committee meeting. The case progressed through an initial hearing, a decision, a successful request for a rehearing based on new evidence, and a final binding decision.

September 1, 2017

Gary W. Moselle files a petition with the Arizona Department of Real Estate.

September 5, 2017

The Department issues a notice to DMMA regarding the petition.

September 6, 2017

The DMMA Communications Committee holds a closed meeting, which Moselle is not permitted to attend.

September 18, 2017

DMMA files an answer to the petition, denying all allegations.

November 17, 2017

The initial hearing is held before the Office of Administrative Hearings.

December 7, 2017

The Administrative Law Judge issues an initial decision denying the petition.

January 4, 2018

Moselle files a request for a rehearing, citing newly discovered material evidence.

January 26, 2017

The Department grants the request for a rehearing.

April 20, 2018

A rehearing is conducted.

May 10, 2018

The Administrative Law Judge issues a final, binding decision denying the Petitioner’s petition.

The Central Legal Question: Interpretation of A.R.S. § 33-1804

The core of the dispute was the correct interpretation of Arizona Revised Statute § 33-1804(A), which governs open meetings for planned communities. The key statutory language under scrutiny was:

“…all meetings of the members’ association and the board of directors, and any regularly scheduled committee meetings, are open to all members of the association…”

The case required the Administrative Law Judge to define the term “regularly scheduled” in the context of homeowners’ association committee meetings.

Arguments Presented

Petitioner’s Position (Gary W. Moselle)

The Petitioner’s case was built on a broad interpretation of the statute, emphasizing the legislative intent for transparency.

• Definition of “Regularly Scheduled”: Moselle argued that “regularly scheduled” should be interpreted to mean “scheduled in a normal fashion,” rather than strictly meaning meetings held at fixed intervals (e.g., monthly or quarterly).

• Legislative Policy: He pointed to A.R.S. § 33-1804(F), which states a broad policy that “all meetings of a planned community… be conducted openly.” He argued this policy statement should guide the interpretation of subsection (A) in favor of openness for all committee meetings.

• Committee Practices: In his prehearing brief, Moselle asserted that five of the six “functioning DMMA committees” meet “at the request of the chair,” implying this was the normal scheduling method and should fall under the statute.

Respondent’s Position (Desert Mountain Master Association)

The Respondent advocated for a narrower, more literal interpretation of the statute.

• Definition of “Regularly Scheduled”: DMMA argued the phrase meant meetings that “occurred at regular intervals, such as on the third Thursday of every month, quarterly, or even annually.”

• Evidence of Infrequent Meetings: DMMA presented testimony that the Communications Committee met infrequently and without a fixed interval. The committee held only four meetings in 2016 and 2017: two in April 2016, one in June 2017, and the contested meeting on September 6, 2017.

• Lack of Board Action: To support the claim that the committee was not conducting core business of the Board, DMMA asserted that a recommendation made by the committee (to send an email blast) was not acted upon by the DMMA Board of Directors.

Judicial Findings and Legal Conclusions

The Administrative Law Judge, Tammy L. Eigenheer, denied the petition, siding with the Respondent’s interpretation of the statute. The decision was based on principles of statutory construction and the evidence presented.

1. Statutory Interpretation and Plain Language

The primary goal in construing a statute is to ascertain legislative intent by first looking at the plain language. The Judge concluded that the plain language of A.R.S. § 33-1804(A) supports the interpretation that “regularly scheduled committee meetings” are those that “occur at regular intervals.” While acknowledging that the phrase could have multiple meanings, this did not preclude an interpretation based on its plain language.

2. Petitioner’s Contradictory Testimony

A key factor in the decision was the Petitioner’s own testimony during cross-examination. When asked about his assertion that five DMMA committees meet at the request of the chair, the Judge noted:

“Petitioner stated that five of the committees listed in the Volunteer Request page ‘meet at the request of the chair and they’re not regularly scheduled.'” (Hearing record 30:52 – 31:15)

The Judge found that in this statement, the Petitioner himself used the phrase “not regularly scheduled” to describe meetings that were called as needed rather than held at fixed intervals, thereby undermining his own legal argument.

3. Specific Language Overrides General Policy

The Judge addressed the Petitioner’s argument regarding the statute’s broad policy statement in favor of open meetings (A.R.S. § 33-1804(F)). The decision explicitly states:

“The general policy statement in favor of open meetings set forth in A.R.S. § 33-1804(F) 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.”

This conclusion establishes that the specific qualifier “regularly scheduled” in subsection (A) creates a deliberate exception to the general policy for certain committee meetings.

Final Order and Implications

Order: The Administrative Law Judge ordered that the Petitioner’s petition be denied.

Conclusion: The Judge concluded that at the time of the September 6, 2017 meeting, the DMMA Communication Committee did not hold “regularly scheduled” meetings as defined by the statute. Therefore, the Respondent’s decision to hold a closed meeting was not a violation of A.R.S. § 33-1804.

This decision, issued on May 10, 2018, is binding on the parties. Any appeal must be filed with the superior court within thirty-five days from the date of service.

Gary W. Moselle vs. Desert Mountain Master Association

Posted on May 10, 2018 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	18F-H1817005-REL-RHG
Agency	ADRE
Tribunal	OAH
Decision Date	2018-05-10
Administrative Law Judge	Tammy L. Eigenheer
Outcome	loss
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Gary W. Moselle	Counsel	—
Respondent	Desert Mountain Master Association	Counsel	Curtis Ekmark

Alleged Violations

A.R.S. § 33-1804

Outcome Summary

The Administrative Law Judge denied the petition, concluding that the respondent HOA did not violate A.R.S. § 33-1804 because the committee meeting in question was not a “regularly scheduled committee meeting” required to be open to all members.

Why this result: The specific language of A.R.S. § 33-1804(A) only requires 'regularly scheduled committee meetings' to be open, and the committee in question did not meet at regular intervals.

Key Issues & Findings

Whether the DMMA Communications Committee meeting was subject to the open meetings law.

Petitioner, a member/homeowner, alleged the HOA violated the open meetings statute by closing a September 6, 2017, committee meeting. The ALJ determined the committee did not hold 'regularly scheduled' meetings and thus was not subject to the open meetings law.

Orders: Petitioner's petition is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

• A.R.S. § 33-1804

Analytics Highlights

Topics: Open Meetings Law, Committee Meetings, Statutory Interpretation, Regularly Scheduled

Additional Citations:

• A.R.S. § 33-1804
• A.R.S. § 32-2199 et seq.
• A.A.C. R2-19-119
• State ex rel. Thomas v. Contes
• Marsoner v. Pima County

Audio Overview

Decision Documents

18F-H1817005-REL-RHG Decision – 634096.pdf

Uploaded 2025-10-08T07:03:13 (106.4 KB)

Briefing Document: Moselle v. Desert Mountain Master Association

Executive Summary

This document summarizes the Administrative Law Judge Decision in case number 18F-H1817005-REL-RHG, a dispute between homeowner Gary W. Moselle (Petitioner) and the Desert Mountain Master Association (DMMA/Respondent). The central issue was whether a “closed” meeting of the DMMA Communications Committee on September 6, 2017, violated Arizona’s open meetings law for planned communities, A.R.S. § 33-1804.

The case hinged on the interpretation of the phrase “regularly scheduled committee meetings.” The Petitioner argued this meant any meeting scheduled in a normal fashion, while the Respondent contended it applied only to meetings occurring at fixed, regular intervals. The Respondent provided evidence that the committee in question met infrequently and without a set schedule.

The Administrative Law Judge ultimately ruled in favor of the Respondent, concluding that “regularly scheduled” refers to meetings held at regular intervals. The judge found that the specific language of the statute requiring only “regularly scheduled” committee meetings to be open superseded the statute’s general policy statement in favor of open meetings. The Petitioner’s petition was denied.

Case Background and Timeline

The dispute originated from a petition filed by Gary W. Moselle with the Arizona Department of Real Estate, alleging that the DMMA violated state law by holding a closed committee meeting. The case progressed through an initial hearing, a decision, a successful request for a rehearing based on new evidence, and a final binding decision.

September 1, 2017

Gary W. Moselle files a petition with the Arizona Department of Real Estate.

September 5, 2017

The Department issues a notice to DMMA regarding the petition.

September 6, 2017

The DMMA Communications Committee holds a closed meeting, which Moselle is not permitted to attend.

September 18, 2017

DMMA files an answer to the petition, denying all allegations.

November 17, 2017

The initial hearing is held before the Office of Administrative Hearings.

December 7, 2017

The Administrative Law Judge issues an initial decision denying the petition.

January 4, 2018

Moselle files a request for a rehearing, citing newly discovered material evidence.

January 26, 2017

The Department grants the request for a rehearing.

April 20, 2018

A rehearing is conducted.

May 10, 2018

The Administrative Law Judge issues a final, binding decision denying the Petitioner’s petition.

The Central Legal Question: Interpretation of A.R.S. § 33-1804

The core of the dispute was the correct interpretation of Arizona Revised Statute § 33-1804(A), which governs open meetings for planned communities. The key statutory language under scrutiny was:

“…all meetings of the members’ association and the board of directors, and any regularly scheduled committee meetings, are open to all members of the association…”

The case required the Administrative Law Judge to define the term “regularly scheduled” in the context of homeowners’ association committee meetings.

Arguments Presented

Petitioner’s Position (Gary W. Moselle)

The Petitioner’s case was built on a broad interpretation of the statute, emphasizing the legislative intent for transparency.

• Definition of “Regularly Scheduled”: Moselle argued that “regularly scheduled” should be interpreted to mean “scheduled in a normal fashion,” rather than strictly meaning meetings held at fixed intervals (e.g., monthly or quarterly).

• Legislative Policy: He pointed to A.R.S. § 33-1804(F), which states a broad policy that “all meetings of a planned community… be conducted openly.” He argued this policy statement should guide the interpretation of subsection (A) in favor of openness for all committee meetings.

• Committee Practices: In his prehearing brief, Moselle asserted that five of the six “functioning DMMA committees” meet “at the request of the chair,” implying this was the normal scheduling method and should fall under the statute.

Respondent’s Position (Desert Mountain Master Association)

The Respondent advocated for a narrower, more literal interpretation of the statute.

• Definition of “Regularly Scheduled”: DMMA argued the phrase meant meetings that “occurred at regular intervals, such as on the third Thursday of every month, quarterly, or even annually.”

• Evidence of Infrequent Meetings: DMMA presented testimony that the Communications Committee met infrequently and without a fixed interval. The committee held only four meetings in 2016 and 2017: two in April 2016, one in June 2017, and the contested meeting on September 6, 2017.

• Lack of Board Action: To support the claim that the committee was not conducting core business of the Board, DMMA asserted that a recommendation made by the committee (to send an email blast) was not acted upon by the DMMA Board of Directors.

Judicial Findings and Legal Conclusions

The Administrative Law Judge, Tammy L. Eigenheer, denied the petition, siding with the Respondent’s interpretation of the statute. The decision was based on principles of statutory construction and the evidence presented.

1. Statutory Interpretation and Plain Language

The primary goal in construing a statute is to ascertain legislative intent by first looking at the plain language. The Judge concluded that the plain language of A.R.S. § 33-1804(A) supports the interpretation that “regularly scheduled committee meetings” are those that “occur at regular intervals.” While acknowledging that the phrase could have multiple meanings, this did not preclude an interpretation based on its plain language.

2. Petitioner’s Contradictory Testimony

A key factor in the decision was the Petitioner’s own testimony during cross-examination. When asked about his assertion that five DMMA committees meet at the request of the chair, the Judge noted:

“Petitioner stated that five of the committees listed in the Volunteer Request page ‘meet at the request of the chair and they’re not regularly scheduled.'” (Hearing record 30:52 – 31:15)

The Judge found that in this statement, the Petitioner himself used the phrase “not regularly scheduled” to describe meetings that were called as needed rather than held at fixed intervals, thereby undermining his own legal argument.

3. Specific Language Overrides General Policy

The Judge addressed the Petitioner’s argument regarding the statute’s broad policy statement in favor of open meetings (A.R.S. § 33-1804(F)). The decision explicitly states:

“The general policy statement in favor of open meetings set forth in A.R.S. § 33-1804(F) 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.”

This conclusion establishes that the specific qualifier “regularly scheduled” in subsection (A) creates a deliberate exception to the general policy for certain committee meetings.

Final Order and Implications

Order: The Administrative Law Judge ordered that the Petitioner’s petition be denied.

Conclusion: The Judge concluded that at the time of the September 6, 2017 meeting, the DMMA Communication Committee did not hold “regularly scheduled” meetings as defined by the statute. Therefore, the Respondent’s decision to hold a closed meeting was not a violation of A.R.S. § 33-1804.

This decision, issued on May 10, 2018, is binding on the parties. Any appeal must be filed with the superior court within thirty-five days from the date of service.

Gary W Moselle vs. Desert Mountain Master Association

Posted on December 7, 2017 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	18F-H1817005-REL-RHG
Agency	ADRE
Tribunal	OAH
Decision Date	2018-05-10
Administrative Law Judge	Tammy L. Eigenheer
Outcome	loss
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Gary W. Moselle	Counsel	—
Respondent	Desert Mountain Master Association	Counsel	Curtis Ekmark

Alleged Violations

A.R.S. § 33-1804(A)

Outcome Summary

The ALJ denied the Petitioner's petition, concluding that the DMMA Communications committee meeting was not subject to the open meetings law because the committee did not hold 'regularly scheduled' meetings.

Why this result: Petitioner failed to prove by a preponderance of the evidence that the Respondent violated A.R.S. § 33-1804, as the committee meeting in question did not meet the definition of a 'regularly scheduled committee meeting' required to be open to members.

Key Issues & Findings

Whether the Respondent violated the open meeting statute by closing a committee meeting.

Petitioner alleged that the DMMA Communications committee meeting was improperly closed and subject to open meeting laws. The ALJ determined the committee did not hold 'regularly scheduled' meetings (defined as meetings occurring at regular intervals) and was therefore not subject to A.R.S. § 33-1804.

Orders: Petitioner’s petition is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

• A.R.S. § 33-1804
• A.R.S. § 32-2199 et seq.
• A.A.C. R2-19-119
• State ex rel. Thomas v. Contes, 216 Ariz. 525, 527, 169 P.3d 115, 117 (App. 2007)
• Marsoner v. Pima County, 166 Ariz. 486, 488, 803 P.2d 897, 899 (1991)

Analytics Highlights

Topics: HOA Open Meetings Law, Committee Meeting, Regularly Scheduled

Additional Citations:

• A.R.S. § 33-1804
• A.R.S. § 32-2199 et seq.
• A.A.C. R2-19-119
• State ex rel. Thomas v. Contes, 216 Ariz. 525, 527, 169 P.3d 115, 117 (App. 2007)
• Marsoner v. Pima County, 166 Ariz. 486, 488, 803 P.2d 897, 899 (1991)

Audio Overview

Decision Documents

18F-H1817005-REL Decision – 634096.pdf

Uploaded 2025-10-09T03:32:01 (106.4 KB)

Briefing Document: Moselle v. Desert Mountain Master Association

Executive Summary

This document summarizes the Administrative Law Judge Decision in case number 18F-H1817005-REL-RHG, a dispute between homeowner Gary W. Moselle (Petitioner) and the Desert Mountain Master Association (DMMA/Respondent). The central issue was whether a “closed” meeting of the DMMA Communications Committee on September 6, 2017, violated Arizona’s open meetings law for planned communities, A.R.S. § 33-1804.

The case hinged on the interpretation of the phrase “regularly scheduled committee meetings.” The Petitioner argued this meant any meeting scheduled in a normal fashion, while the Respondent contended it applied only to meetings occurring at fixed, regular intervals. The Respondent provided evidence that the committee in question met infrequently and without a set schedule.

The Administrative Law Judge ultimately ruled in favor of the Respondent, concluding that “regularly scheduled” refers to meetings held at regular intervals. The judge found that the specific language of the statute requiring only “regularly scheduled” committee meetings to be open superseded the statute’s general policy statement in favor of open meetings. The Petitioner’s petition was denied.

Case Background and Timeline

The dispute originated from a petition filed by Gary W. Moselle with the Arizona Department of Real Estate, alleging that the DMMA violated state law by holding a closed committee meeting. The case progressed through an initial hearing, a decision, a successful request for a rehearing based on new evidence, and a final binding decision.

September 1, 2017

Gary W. Moselle files a petition with the Arizona Department of Real Estate.

September 5, 2017

The Department issues a notice to DMMA regarding the petition.

September 6, 2017

The DMMA Communications Committee holds a closed meeting, which Moselle is not permitted to attend.

September 18, 2017

DMMA files an answer to the petition, denying all allegations.

November 17, 2017

The initial hearing is held before the Office of Administrative Hearings.

December 7, 2017

The Administrative Law Judge issues an initial decision denying the petition.

January 4, 2018

Moselle files a request for a rehearing, citing newly discovered material evidence.

January 26, 2017

The Department grants the request for a rehearing.

April 20, 2018

A rehearing is conducted.

May 10, 2018

The Administrative Law Judge issues a final, binding decision denying the Petitioner’s petition.

The Central Legal Question: Interpretation of A.R.S. § 33-1804

The core of the dispute was the correct interpretation of Arizona Revised Statute § 33-1804(A), which governs open meetings for planned communities. The key statutory language under scrutiny was:

“…all meetings of the members’ association and the board of directors, and any regularly scheduled committee meetings, are open to all members of the association…”

The case required the Administrative Law Judge to define the term “regularly scheduled” in the context of homeowners’ association committee meetings.

Arguments Presented

Petitioner’s Position (Gary W. Moselle)

The Petitioner’s case was built on a broad interpretation of the statute, emphasizing the legislative intent for transparency.

• Definition of “Regularly Scheduled”: Moselle argued that “regularly scheduled” should be interpreted to mean “scheduled in a normal fashion,” rather than strictly meaning meetings held at fixed intervals (e.g., monthly or quarterly).

• Legislative Policy: He pointed to A.R.S. § 33-1804(F), which states a broad policy that “all meetings of a planned community… be conducted openly.” He argued this policy statement should guide the interpretation of subsection (A) in favor of openness for all committee meetings.

• Committee Practices: In his prehearing brief, Moselle asserted that five of the six “functioning DMMA committees” meet “at the request of the chair,” implying this was the normal scheduling method and should fall under the statute.

Respondent’s Position (Desert Mountain Master Association)

The Respondent advocated for a narrower, more literal interpretation of the statute.

• Definition of “Regularly Scheduled”: DMMA argued the phrase meant meetings that “occurred at regular intervals, such as on the third Thursday of every month, quarterly, or even annually.”

• Evidence of Infrequent Meetings: DMMA presented testimony that the Communications Committee met infrequently and without a fixed interval. The committee held only four meetings in 2016 and 2017: two in April 2016, one in June 2017, and the contested meeting on September 6, 2017.

• Lack of Board Action: To support the claim that the committee was not conducting core business of the Board, DMMA asserted that a recommendation made by the committee (to send an email blast) was not acted upon by the DMMA Board of Directors.

Judicial Findings and Legal Conclusions

The Administrative Law Judge, Tammy L. Eigenheer, denied the petition, siding with the Respondent’s interpretation of the statute. The decision was based on principles of statutory construction and the evidence presented.

1. Statutory Interpretation and Plain Language

The primary goal in construing a statute is to ascertain legislative intent by first looking at the plain language. The Judge concluded that the plain language of A.R.S. § 33-1804(A) supports the interpretation that “regularly scheduled committee meetings” are those that “occur at regular intervals.” While acknowledging that the phrase could have multiple meanings, this did not preclude an interpretation based on its plain language.

2. Petitioner’s Contradictory Testimony

A key factor in the decision was the Petitioner’s own testimony during cross-examination. When asked about his assertion that five DMMA committees meet at the request of the chair, the Judge noted:

“Petitioner stated that five of the committees listed in the Volunteer Request page ‘meet at the request of the chair and they’re not regularly scheduled.'” (Hearing record 30:52 – 31:15)

The Judge found that in this statement, the Petitioner himself used the phrase “not regularly scheduled” to describe meetings that were called as needed rather than held at fixed intervals, thereby undermining his own legal argument.

3. Specific Language Overrides General Policy

The Judge addressed the Petitioner’s argument regarding the statute’s broad policy statement in favor of open meetings (A.R.S. § 33-1804(F)). The decision explicitly states:

“The general policy statement in favor of open meetings set forth in A.R.S. § 33-1804(F) 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.”

This conclusion establishes that the specific qualifier “regularly scheduled” in subsection (A) creates a deliberate exception to the general policy for certain committee meetings.

Final Order and Implications

Order: The Administrative Law Judge ordered that the Petitioner’s petition be denied.

Conclusion: The Judge concluded that at the time of the September 6, 2017 meeting, the DMMA Communication Committee did not hold “regularly scheduled” meetings as defined by the statute. Therefore, the Respondent’s decision to hold a closed meeting was not a violation of A.R.S. § 33-1804.

This decision, issued on May 10, 2018, is binding on the parties. Any appeal must be filed with the superior court within thirty-five days from the date of service.

Gary W Moselle vs. Desert Mountain Master Association

Posted on December 7, 2017 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	18F-H1817005-REL-RHG
Agency	ADRE
Tribunal	OAH
Decision Date	2018-05-10
Administrative Law Judge	Tammy L. Eigenheer
Outcome	loss
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Gary W. Moselle	Counsel	—
Respondent	Desert Mountain Master Association	Counsel	Curtis Ekmark

Alleged Violations

A.R.S. § 33-1804(A)

Outcome Summary

The ALJ denied the Petitioner's petition, concluding that the DMMA Communications committee meeting was not subject to the open meetings law because the committee did not hold 'regularly scheduled' meetings.

Why this result: Petitioner failed to prove by a preponderance of the evidence that the Respondent violated A.R.S. § 33-1804, as the committee meeting in question did not meet the definition of a 'regularly scheduled committee meeting' required to be open to members.

Key Issues & Findings

Whether the Respondent violated the open meeting statute by closing a committee meeting.

Petitioner alleged that the DMMA Communications committee meeting was improperly closed and subject to open meeting laws. The ALJ determined the committee did not hold 'regularly scheduled' meetings (defined as meetings occurring at regular intervals) and was therefore not subject to A.R.S. § 33-1804.

Orders: Petitioner’s petition is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

• A.R.S. § 33-1804
• A.R.S. § 32-2199 et seq.
• A.A.C. R2-19-119
• State ex rel. Thomas v. Contes, 216 Ariz. 525, 527, 169 P.3d 115, 117 (App. 2007)
• Marsoner v. Pima County, 166 Ariz. 486, 488, 803 P.2d 897, 899 (1991)

Analytics Highlights

Topics: HOA Open Meetings Law, Committee Meeting, Regularly Scheduled

Additional Citations:

• A.R.S. § 33-1804
• A.R.S. § 32-2199 et seq.
• A.A.C. R2-19-119
• State ex rel. Thomas v. Contes, 216 Ariz. 525, 527, 169 P.3d 115, 117 (App. 2007)
• Marsoner v. Pima County, 166 Ariz. 486, 488, 803 P.2d 897, 899 (1991)

Audio Overview

Decision Documents

18F-H1817005-REL Decision – 634096.pdf

Uploaded 2025-10-08T07:03:08 (106.4 KB)

Briefing Document: Moselle v. Desert Mountain Master Association

Executive Summary

This document summarizes the Administrative Law Judge Decision in case number 18F-H1817005-REL-RHG, a dispute between homeowner Gary W. Moselle (Petitioner) and the Desert Mountain Master Association (DMMA/Respondent). The central issue was whether a “closed” meeting of the DMMA Communications Committee on September 6, 2017, violated Arizona’s open meetings law for planned communities, A.R.S. § 33-1804.

The case hinged on the interpretation of the phrase “regularly scheduled committee meetings.” The Petitioner argued this meant any meeting scheduled in a normal fashion, while the Respondent contended it applied only to meetings occurring at fixed, regular intervals. The Respondent provided evidence that the committee in question met infrequently and without a set schedule.

The Administrative Law Judge ultimately ruled in favor of the Respondent, concluding that “regularly scheduled” refers to meetings held at regular intervals. The judge found that the specific language of the statute requiring only “regularly scheduled” committee meetings to be open superseded the statute’s general policy statement in favor of open meetings. The Petitioner’s petition was denied.

Case Background and Timeline

The dispute originated from a petition filed by Gary W. Moselle with the Arizona Department of Real Estate, alleging that the DMMA violated state law by holding a closed committee meeting. The case progressed through an initial hearing, a decision, a successful request for a rehearing based on new evidence, and a final binding decision.

September 1, 2017

Gary W. Moselle files a petition with the Arizona Department of Real Estate.

September 5, 2017

The Department issues a notice to DMMA regarding the petition.

September 6, 2017

The DMMA Communications Committee holds a closed meeting, which Moselle is not permitted to attend.

September 18, 2017

DMMA files an answer to the petition, denying all allegations.

November 17, 2017

The initial hearing is held before the Office of Administrative Hearings.

December 7, 2017

The Administrative Law Judge issues an initial decision denying the petition.

January 4, 2018

Moselle files a request for a rehearing, citing newly discovered material evidence.

January 26, 2017

The Department grants the request for a rehearing.

April 20, 2018

A rehearing is conducted.

May 10, 2018

The Administrative Law Judge issues a final, binding decision denying the Petitioner’s petition.

The Central Legal Question: Interpretation of A.R.S. § 33-1804

The core of the dispute was the correct interpretation of Arizona Revised Statute § 33-1804(A), which governs open meetings for planned communities. The key statutory language under scrutiny was:

“…all meetings of the members’ association and the board of directors, and any regularly scheduled committee meetings, are open to all members of the association…”

The case required the Administrative Law Judge to define the term “regularly scheduled” in the context of homeowners’ association committee meetings.

Arguments Presented

Petitioner’s Position (Gary W. Moselle)

The Petitioner’s case was built on a broad interpretation of the statute, emphasizing the legislative intent for transparency.

• Definition of “Regularly Scheduled”: Moselle argued that “regularly scheduled” should be interpreted to mean “scheduled in a normal fashion,” rather than strictly meaning meetings held at fixed intervals (e.g., monthly or quarterly).

• Legislative Policy: He pointed to A.R.S. § 33-1804(F), which states a broad policy that “all meetings of a planned community… be conducted openly.” He argued this policy statement should guide the interpretation of subsection (A) in favor of openness for all committee meetings.

• Committee Practices: In his prehearing brief, Moselle asserted that five of the six “functioning DMMA committees” meet “at the request of the chair,” implying this was the normal scheduling method and should fall under the statute.

Respondent’s Position (Desert Mountain Master Association)

The Respondent advocated for a narrower, more literal interpretation of the statute.

• Definition of “Regularly Scheduled”: DMMA argued the phrase meant meetings that “occurred at regular intervals, such as on the third Thursday of every month, quarterly, or even annually.”

• Evidence of Infrequent Meetings: DMMA presented testimony that the Communications Committee met infrequently and without a fixed interval. The committee held only four meetings in 2016 and 2017: two in April 2016, one in June 2017, and the contested meeting on September 6, 2017.

• Lack of Board Action: To support the claim that the committee was not conducting core business of the Board, DMMA asserted that a recommendation made by the committee (to send an email blast) was not acted upon by the DMMA Board of Directors.

Judicial Findings and Legal Conclusions

The Administrative Law Judge, Tammy L. Eigenheer, denied the petition, siding with the Respondent’s interpretation of the statute. The decision was based on principles of statutory construction and the evidence presented.

1. Statutory Interpretation and Plain Language

The primary goal in construing a statute is to ascertain legislative intent by first looking at the plain language. The Judge concluded that the plain language of A.R.S. § 33-1804(A) supports the interpretation that “regularly scheduled committee meetings” are those that “occur at regular intervals.” While acknowledging that the phrase could have multiple meanings, this did not preclude an interpretation based on its plain language.

2. Petitioner’s Contradictory Testimony

A key factor in the decision was the Petitioner’s own testimony during cross-examination. When asked about his assertion that five DMMA committees meet at the request of the chair, the Judge noted:

“Petitioner stated that five of the committees listed in the Volunteer Request page ‘meet at the request of the chair and they’re not regularly scheduled.'” (Hearing record 30:52 – 31:15)

The Judge found that in this statement, the Petitioner himself used the phrase “not regularly scheduled” to describe meetings that were called as needed rather than held at fixed intervals, thereby undermining his own legal argument.

3. Specific Language Overrides General Policy

The Judge addressed the Petitioner’s argument regarding the statute’s broad policy statement in favor of open meetings (A.R.S. § 33-1804(F)). The decision explicitly states:

“The general policy statement in favor of open meetings set forth in A.R.S. § 33-1804(F) 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.”

This conclusion establishes that the specific qualifier “regularly scheduled” in subsection (A) creates a deliberate exception to the general policy for certain committee meetings.

Final Order and Implications

Order: The Administrative Law Judge ordered that the Petitioner’s petition be denied.

Conclusion: The Judge concluded that at the time of the September 6, 2017 meeting, the DMMA Communication Committee did not hold “regularly scheduled” meetings as defined by the statute. Therefore, the Respondent’s decision to hold a closed meeting was not a violation of A.R.S. § 33-1804.

This decision, issued on May 10, 2018, is binding on the parties. Any appeal must be filed with the superior court within thirty-five days from the date of service.

Jerry Wheeler vs. Beaver Dam Estates Homeowners Association

Posted on September 6, 2017 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	18F-H1717036-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2017-09-06
Administrative Law Judge	Suzanne Marwil
Outcome	full
Filing Fees Refunded	$500.00
Civil Penalties	$250.00

Parties & Counsel

Petitioner	Jerry Wheeler	Counsel	—
Respondent	Beaver Dam Estates Homeowners Association	Counsel	—

Alleged Violations

A.R.S. § 33-1804(B)

Outcome Summary

The Petitioner's petition was granted. The Administrative Law Judge found that the Respondent HOA violated A.R.S. § 33-1804(B) by failing to hold the required annual meeting for several years. The Respondent was ordered to hold a meeting, refund the filing fee to the Petitioner, and pay a $250.00 civil penalty.

Key Issues & Findings

Failure to hold required annual meeting

Petitioner, a homeowner, alleged the HOA had not held an annual meeting since April 1, 2014, violating A.R.S. § 33-1804(B). The unconverted evidence established that Respondent violated A.R.S. § 33-1804(B) by failing to hold the statutorily required annual meeting for several years.

Orders: Petitioner's petition was granted. Respondent was ordered to hold a meeting in accordance with the planned community statutes as currently scheduled on December 28, 2017. Respondent was ordered to pay the filing fee to the Petitioner pursuant to A.R.S. § 32-2199.02(A), and pay a $250.00 civil penalty to the planned community hearing office fund.

Filing fee: $500.00, Fee refunded: Yes, Civil penalty: $250.00

Disposition: petitioner_win

Cited:

• A.R.S. § 33-1804(B)
• A.R.S. § 32-2199.02(A)
• A.R.S. § 32-2199.01
• A.R.S. § 32-2199.05

Analytics Highlights

Topics: HOA annual meeting violation, statutory requirement, default judgment

Additional Citations:

• A.R.S. § 33-1804
• A.R.S. § 32-2199 et seq.
• A.R.S. § 32-2199.01
• A.R.S. § 32-2199.02
• A.R.S. § 32-2199.05
• A.A.C. R2-19-119(B)
• A.A.C. R2-19-119(A)

Audio Overview

Decision Documents

18F-H1717036-REL Decision – 586602.pdf

Uploaded 2025-10-09T03:31:53 (65.3 KB)

18F-H1717036-REL Decision – 588549.pdf

Uploaded 2025-10-09T03:31:53 (592.6 KB)

Administrative Hearing Briefing: Wheeler v. Beaver Dam Estates Homeowners Association

Executive Summary

This briefing document synthesizes the findings and orders from the case of Jerry Wheeler versus the Beaver Dam Estates Homeowners Association (HOA). The central issue was the HOA’s failure to conduct annual meetings as legally required by Arizona state law. The petitioner, Jerry Wheeler, provided uncontested evidence that the HOA had not held a meeting for several years, specifically since his tenure began on April 1, 2014.

The case was complicated by the death of the HOA’s president prior to the hearing and the association’s subsequent failure to appoint a new representative or appear at the proceedings. The Administrative Law Judge (ALJ) conducted the hearing in the respondent’s absence and ruled decisively in favor of the petitioner.

The final judgment, adopted by the Arizona Department of Real Estate, found the Beaver Dam Estates HOA in violation of A.R.S. § 33-1804(B). The HOA was ordered to hold a meeting on a specified date, reimburse the petitioner’s filing fee, and pay a civil penalty of $250.00 for the violation.

Case Overview

The matter was initiated by a petition filed with the Arizona Department of Real Estate and was subsequently referred to the Office of Administrative Hearings for a formal hearing and decision.

Case Detail

Information

Petitioner

Jerry Wheeler

Respondent

Beaver Dam Estates Homeowners Association

Case Number (OAH)

18F-H1717036-REL

Case Number (Dept. of Real Estate)

HO 17-17/036

Petition Filed

June 8, 2017

Hearing Date

September 5, 2017

ALJ Decision Date

September 6, 2017

Final Order Date

September 13, 2017

Presiding Judge

Suzanne Marwil, Administrative Law Judge (ALJ)

Adopting Authority

Judy Lowe, Commissioner, Arizona Department of Real Estate

Petitioner’s Allegations and Evidence

The petitioner’s case was built on the central allegation that the Beaver Dam Estates HOA had failed to comply with its statutory duty to hold annual meetings.

• Core Allegation: The HOA was in violation of Arizona Revised Statutes (A.R.S.) § 33-1804(B), which mandates that a members’ association meeting “shall be held at least once each year.”

• Petitioner Testimony: Jerry Wheeler testified that since moving into the community on April 1, 2014, the HOA had not held a single meeting. He also testified regarding his numerous efforts to compel the HOA president, Randy Hawk, to convene a meeting for the purpose of reviewing the association’s financial statements with homeowners.

• Supporting Evidence: The petitioner submitted numerous written statements from other homeowners within the Beaver Dam Estates community. These statements corroborated his testimony, confirming that no HOA meeting had been held for several years. This evidence was referred to as “Exhibit B” in the proceedings.

Respondent’s Actions and Procedural Failures

The respondent’s engagement with the legal process was minimal and ultimately ceased, leading to a judgment in its absence.

• Initial Response: The HOA’s then-president, Randy Hawk, initially responded to the petition by agreeing to hold a meeting.

• First Meeting Attempt: A meeting was scheduled for July 18, 2017. However, only about ten people attended, prompting Hawk to reschedule for December 28, 2017. A letter was sent to all members notifying them of the new date and the intent to hold an election for a new president and vice president.

• Death of Representative: The petitioner subsequently informed the Tribunal that Randy Hawk had passed away, leaving the HOA without a clear representative for the legal matter.

• Failure to Appoint New Representative: On August 16, 2017, the Tribunal issued an order, mailed to the respondent’s address of record, requesting that the HOA name a new representative. The HOA failed to do so.

• Failure to Appear: The respondent did not appear for the scheduled hearing on September 5, 2017, nor did it request to appear telephonically. After a 20-minute grace period, the ALJ proceeded with the hearing in the respondent’s absence.

Legal Framework and Conclusions of Law

The ALJ’s decision was based on a clear statutory requirement and the uncontested evidence presented by the petitioner. The burden of proof was on the petitioner, with the standard of proof being a preponderance of the evidence.

• Statutory Violation: The central finding was that the respondent violated A.R.S. § 33-1804(B). The pertinent text of the statute states:

• Key Conclusion: The ALJ determined that “The unconverted evidence established that Respondent violated A.R.S. § 33-1804(B) by failing to hold the statutorily required annual meeting of Respondent for several years prior to the filing of the petition.”

• Recommended Action: Based on this conclusion, the ALJ stated that the respondent “should hold an annual meeting in accordance with the planned community statutes.”

Final Order and Penalties

The ALJ’s decision was formally adopted by the Commissioner of the Department of Real Estate, making it a binding Final Order. The order mandated several actions by the respondent.

IT IS ORDERED that:

1. The petitioner’s petition is granted.

2. The respondent must hold a meeting in accordance with planned community statutes as scheduled on December 28, 2017.

3. Pursuant to A.R.S. § 32-2199.02(A), the respondent shall pay the petitioner the filing fee required by section 32-2199.01.

4. The respondent shall pay to the planned community hearing office fund a civil penalty of $250.00 for the violation.

This Final Order was declared a final administrative action, effective immediately upon service on September 13, 2017. The parties were notified of their right to apply for a rehearing within thirty days or to appeal the decision by filing a complaint for judicial review.

Jerry Wheeler vs. Beaver Dam Estates Homeowners Association

Posted on September 6, 2017 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	18F-H1717036-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2017-09-06
Administrative Law Judge	Suzanne Marwil
Outcome	full
Filing Fees Refunded	$500.00
Civil Penalties	$250.00

Parties & Counsel

Petitioner	Jerry Wheeler	Counsel	—
Respondent	Beaver Dam Estates Homeowners Association	Counsel	—

Alleged Violations

A.R.S. § 33-1804(B)

Outcome Summary

The Petitioner's petition was granted. The Administrative Law Judge found that the Respondent HOA violated A.R.S. § 33-1804(B) by failing to hold the required annual meeting for several years. The Respondent was ordered to hold a meeting, refund the filing fee to the Petitioner, and pay a $250.00 civil penalty.

Key Issues & Findings

Failure to hold required annual meeting

Petitioner, a homeowner, alleged the HOA had not held an annual meeting since April 1, 2014, violating A.R.S. § 33-1804(B). The unconverted evidence established that Respondent violated A.R.S. § 33-1804(B) by failing to hold the statutorily required annual meeting for several years.

Orders: Petitioner's petition was granted. Respondent was ordered to hold a meeting in accordance with the planned community statutes as currently scheduled on December 28, 2017. Respondent was ordered to pay the filing fee to the Petitioner pursuant to A.R.S. § 32-2199.02(A), and pay a $250.00 civil penalty to the planned community hearing office fund.

Filing fee: $500.00, Fee refunded: Yes, Civil penalty: $250.00

Disposition: petitioner_win

Cited:

• A.R.S. § 33-1804(B)
• A.R.S. § 32-2199.02(A)
• A.R.S. § 32-2199.01
• A.R.S. § 32-2199.05

Analytics Highlights

Topics: HOA annual meeting violation, statutory requirement, default judgment

Additional Citations:

• A.R.S. § 33-1804
• A.R.S. § 32-2199 et seq.
• A.R.S. § 32-2199.01
• A.R.S. § 32-2199.02
• A.R.S. § 32-2199.05
• A.A.C. R2-19-119(B)
• A.A.C. R2-19-119(A)

Audio Overview

Decision Documents

18F-H1717036-REL Decision – 586602.pdf

Uploaded 2025-10-08T06:51:57 (65.3 KB)

18F-H1717036-REL Decision – 588549.pdf

Uploaded 2025-10-08T06:51:57 (592.6 KB)

Administrative Hearing Briefing: Wheeler v. Beaver Dam Estates Homeowners Association

Executive Summary

This briefing document synthesizes the findings and orders from the case of Jerry Wheeler versus the Beaver Dam Estates Homeowners Association (HOA). The central issue was the HOA’s failure to conduct annual meetings as legally required by Arizona state law. The petitioner, Jerry Wheeler, provided uncontested evidence that the HOA had not held a meeting for several years, specifically since his tenure began on April 1, 2014.

The case was complicated by the death of the HOA’s president prior to the hearing and the association’s subsequent failure to appoint a new representative or appear at the proceedings. The Administrative Law Judge (ALJ) conducted the hearing in the respondent’s absence and ruled decisively in favor of the petitioner.

The final judgment, adopted by the Arizona Department of Real Estate, found the Beaver Dam Estates HOA in violation of A.R.S. § 33-1804(B). The HOA was ordered to hold a meeting on a specified date, reimburse the petitioner’s filing fee, and pay a civil penalty of $250.00 for the violation.

Case Overview

The matter was initiated by a petition filed with the Arizona Department of Real Estate and was subsequently referred to the Office of Administrative Hearings for a formal hearing and decision.

Case Detail

Information

Petitioner

Jerry Wheeler

Respondent

Beaver Dam Estates Homeowners Association

Case Number (OAH)

18F-H1717036-REL

Case Number (Dept. of Real Estate)

HO 17-17/036

Petition Filed

June 8, 2017

Hearing Date

September 5, 2017

ALJ Decision Date

September 6, 2017

Final Order Date

September 13, 2017

Presiding Judge

Suzanne Marwil, Administrative Law Judge (ALJ)

Adopting Authority

Judy Lowe, Commissioner, Arizona Department of Real Estate

Petitioner’s Allegations and Evidence

The petitioner’s case was built on the central allegation that the Beaver Dam Estates HOA had failed to comply with its statutory duty to hold annual meetings.

• Core Allegation: The HOA was in violation of Arizona Revised Statutes (A.R.S.) § 33-1804(B), which mandates that a members’ association meeting “shall be held at least once each year.”

• Petitioner Testimony: Jerry Wheeler testified that since moving into the community on April 1, 2014, the HOA had not held a single meeting. He also testified regarding his numerous efforts to compel the HOA president, Randy Hawk, to convene a meeting for the purpose of reviewing the association’s financial statements with homeowners.

• Supporting Evidence: The petitioner submitted numerous written statements from other homeowners within the Beaver Dam Estates community. These statements corroborated his testimony, confirming that no HOA meeting had been held for several years. This evidence was referred to as “Exhibit B” in the proceedings.

Respondent’s Actions and Procedural Failures

The respondent’s engagement with the legal process was minimal and ultimately ceased, leading to a judgment in its absence.

• Initial Response: The HOA’s then-president, Randy Hawk, initially responded to the petition by agreeing to hold a meeting.

• First Meeting Attempt: A meeting was scheduled for July 18, 2017. However, only about ten people attended, prompting Hawk to reschedule for December 28, 2017. A letter was sent to all members notifying them of the new date and the intent to hold an election for a new president and vice president.

• Death of Representative: The petitioner subsequently informed the Tribunal that Randy Hawk had passed away, leaving the HOA without a clear representative for the legal matter.

• Failure to Appoint New Representative: On August 16, 2017, the Tribunal issued an order, mailed to the respondent’s address of record, requesting that the HOA name a new representative. The HOA failed to do so.

• Failure to Appear: The respondent did not appear for the scheduled hearing on September 5, 2017, nor did it request to appear telephonically. After a 20-minute grace period, the ALJ proceeded with the hearing in the respondent’s absence.

Legal Framework and Conclusions of Law

The ALJ’s decision was based on a clear statutory requirement and the uncontested evidence presented by the petitioner. The burden of proof was on the petitioner, with the standard of proof being a preponderance of the evidence.

• Statutory Violation: The central finding was that the respondent violated A.R.S. § 33-1804(B). The pertinent text of the statute states:

• Key Conclusion: The ALJ determined that “The unconverted evidence established that Respondent violated A.R.S. § 33-1804(B) by failing to hold the statutorily required annual meeting of Respondent for several years prior to the filing of the petition.”

• Recommended Action: Based on this conclusion, the ALJ stated that the respondent “should hold an annual meeting in accordance with the planned community statutes.”

Final Order and Penalties

The ALJ’s decision was formally adopted by the Commissioner of the Department of Real Estate, making it a binding Final Order. The order mandated several actions by the respondent.

IT IS ORDERED that:

1. The petitioner’s petition is granted.

2. The respondent must hold a meeting in accordance with planned community statutes as scheduled on December 28, 2017.

3. Pursuant to A.R.S. § 32-2199.02(A), the respondent shall pay the petitioner the filing fee required by section 32-2199.01.

4. The respondent shall pay to the planned community hearing office fund a civil penalty of $250.00 for the violation.

This Final Order was declared a final administrative action, effective immediately upon service on September 13, 2017. The parties were notified of their right to apply for a rehearing within thirty days or to appeal the decision by filing a complaint for judicial review.

Jerry Wheeler vs. Beaver Dam Estates Homeowners Association

Posted on September 6, 2017 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	18F-H1717036-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2017-09-06
Administrative Law Judge	Suzanne Marwil
Outcome	full
Filing Fees Refunded	$500.00
Civil Penalties	$250.00

Parties & Counsel

Petitioner	Jerry Wheeler	Counsel	—
Respondent	Beaver Dam Estates Homeowners Association	Counsel	—

Alleged Violations

A.R.S. § 33-1804(B)

Outcome Summary

The Petitioner's petition was granted. The Administrative Law Judge found that the Respondent HOA violated A.R.S. § 33-1804(B) by failing to hold the required annual meeting for several years. The Respondent was ordered to hold a meeting, refund the filing fee to the Petitioner, and pay a $250.00 civil penalty.

Key Issues & Findings

Failure to hold required annual meeting

Petitioner, a homeowner, alleged the HOA had not held an annual meeting since April 1, 2014, violating A.R.S. § 33-1804(B). The unconverted evidence established that Respondent violated A.R.S. § 33-1804(B) by failing to hold the statutorily required annual meeting for several years.

Orders: Petitioner's petition was granted. Respondent was ordered to hold a meeting in accordance with the planned community statutes as currently scheduled on December 28, 2017. Respondent was ordered to pay the filing fee to the Petitioner pursuant to A.R.S. § 32-2199.02(A), and pay a $250.00 civil penalty to the planned community hearing office fund.

Filing fee: $500.00, Fee refunded: Yes, Civil penalty: $250.00

Disposition: petitioner_win

Cited:

• A.R.S. § 33-1804(B)
• A.R.S. § 32-2199.02(A)
• A.R.S. § 32-2199.01
• A.R.S. § 32-2199.05

Analytics Highlights

Topics: HOA annual meeting violation, statutory requirement, default judgment

Additional Citations:

• A.R.S. § 33-1804
• A.R.S. § 32-2199 et seq.
• A.R.S. § 32-2199.01
• A.R.S. § 32-2199.02
• A.R.S. § 32-2199.05
• A.A.C. R2-19-119(B)
• A.A.C. R2-19-119(A)

Audio Overview

Decision Documents

18F-H1717036-REL Decision – 586602.pdf

Uploaded 2025-10-08T06:58:28 (65.3 KB)

18F-H1717036-REL Decision – 588549.pdf

Uploaded 2025-10-08T06:58:28 (592.6 KB)

Administrative Hearing Briefing: Wheeler v. Beaver Dam Estates Homeowners Association

Executive Summary

This briefing document synthesizes the findings and orders from the case of Jerry Wheeler versus the Beaver Dam Estates Homeowners Association (HOA). The central issue was the HOA’s failure to conduct annual meetings as legally required by Arizona state law. The petitioner, Jerry Wheeler, provided uncontested evidence that the HOA had not held a meeting for several years, specifically since his tenure began on April 1, 2014.

The case was complicated by the death of the HOA’s president prior to the hearing and the association’s subsequent failure to appoint a new representative or appear at the proceedings. The Administrative Law Judge (ALJ) conducted the hearing in the respondent’s absence and ruled decisively in favor of the petitioner.

The final judgment, adopted by the Arizona Department of Real Estate, found the Beaver Dam Estates HOA in violation of A.R.S. § 33-1804(B). The HOA was ordered to hold a meeting on a specified date, reimburse the petitioner’s filing fee, and pay a civil penalty of $250.00 for the violation.

Case Overview

The matter was initiated by a petition filed with the Arizona Department of Real Estate and was subsequently referred to the Office of Administrative Hearings for a formal hearing and decision.

Case Detail

Information

Petitioner

Jerry Wheeler

Respondent

Beaver Dam Estates Homeowners Association

Case Number (OAH)

18F-H1717036-REL

Case Number (Dept. of Real Estate)

HO 17-17/036

Petition Filed

June 8, 2017

Hearing Date

September 5, 2017

ALJ Decision Date

September 6, 2017

Final Order Date

September 13, 2017

Presiding Judge

Suzanne Marwil, Administrative Law Judge (ALJ)

Adopting Authority

Judy Lowe, Commissioner, Arizona Department of Real Estate

Petitioner’s Allegations and Evidence

The petitioner’s case was built on the central allegation that the Beaver Dam Estates HOA had failed to comply with its statutory duty to hold annual meetings.

• Core Allegation: The HOA was in violation of Arizona Revised Statutes (A.R.S.) § 33-1804(B), which mandates that a members’ association meeting “shall be held at least once each year.”

• Petitioner Testimony: Jerry Wheeler testified that since moving into the community on April 1, 2014, the HOA had not held a single meeting. He also testified regarding his numerous efforts to compel the HOA president, Randy Hawk, to convene a meeting for the purpose of reviewing the association’s financial statements with homeowners.

• Supporting Evidence: The petitioner submitted numerous written statements from other homeowners within the Beaver Dam Estates community. These statements corroborated his testimony, confirming that no HOA meeting had been held for several years. This evidence was referred to as “Exhibit B” in the proceedings.

Respondent’s Actions and Procedural Failures

The respondent’s engagement with the legal process was minimal and ultimately ceased, leading to a judgment in its absence.

• Initial Response: The HOA’s then-president, Randy Hawk, initially responded to the petition by agreeing to hold a meeting.

• First Meeting Attempt: A meeting was scheduled for July 18, 2017. However, only about ten people attended, prompting Hawk to reschedule for December 28, 2017. A letter was sent to all members notifying them of the new date and the intent to hold an election for a new president and vice president.

• Death of Representative: The petitioner subsequently informed the Tribunal that Randy Hawk had passed away, leaving the HOA without a clear representative for the legal matter.

• Failure to Appoint New Representative: On August 16, 2017, the Tribunal issued an order, mailed to the respondent’s address of record, requesting that the HOA name a new representative. The HOA failed to do so.

• Failure to Appear: The respondent did not appear for the scheduled hearing on September 5, 2017, nor did it request to appear telephonically. After a 20-minute grace period, the ALJ proceeded with the hearing in the respondent’s absence.

Legal Framework and Conclusions of Law

The ALJ’s decision was based on a clear statutory requirement and the uncontested evidence presented by the petitioner. The burden of proof was on the petitioner, with the standard of proof being a preponderance of the evidence.

• Statutory Violation: The central finding was that the respondent violated A.R.S. § 33-1804(B). The pertinent text of the statute states:

• Key Conclusion: The ALJ determined that “The unconverted evidence established that Respondent violated A.R.S. § 33-1804(B) by failing to hold the statutorily required annual meeting of Respondent for several years prior to the filing of the petition.”

• Recommended Action: Based on this conclusion, the ALJ stated that the respondent “should hold an annual meeting in accordance with the planned community statutes.”

Final Order and Penalties

The ALJ’s decision was formally adopted by the Commissioner of the Department of Real Estate, making it a binding Final Order. The order mandated several actions by the respondent.

IT IS ORDERED that:

1. The petitioner’s petition is granted.

2. The respondent must hold a meeting in accordance with planned community statutes as scheduled on December 28, 2017.

3. Pursuant to A.R.S. § 32-2199.02(A), the respondent shall pay the petitioner the filing fee required by section 32-2199.01.

4. The respondent shall pay to the planned community hearing office fund a civil penalty of $250.00 for the violation.

This Final Order was declared a final administrative action, effective immediately upon service on September 13, 2017. The parties were notified of their right to apply for a rehearing within thirty days or to appeal the decision by filing a complaint for judicial review.

Jerry Wheeler vs. Beaver Dam Estates Homeowners Association

Posted on September 6, 2017 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	18F-H1717036-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2017-09-06
Administrative Law Judge	Suzanne Marwil
Outcome	full
Filing Fees Refunded	$500.00
Civil Penalties	$250.00

Parties & Counsel

Petitioner	Jerry Wheeler	Counsel	—
Respondent	Beaver Dam Estates Homeowners Association	Counsel	—

Alleged Violations

A.R.S. § 33-1804(B)

Outcome Summary

The Petitioner's petition was granted. The Administrative Law Judge found that the Respondent HOA violated A.R.S. § 33-1804(B) by failing to hold the required annual meeting for several years. The Respondent was ordered to hold a meeting, refund the filing fee to the Petitioner, and pay a $250.00 civil penalty.

Key Issues & Findings

Failure to hold required annual meeting

Petitioner, a homeowner, alleged the HOA had not held an annual meeting since April 1, 2014, violating A.R.S. § 33-1804(B). The unconverted evidence established that Respondent violated A.R.S. § 33-1804(B) by failing to hold the statutorily required annual meeting for several years.

Orders: Petitioner's petition was granted. Respondent was ordered to hold a meeting in accordance with the planned community statutes as currently scheduled on December 28, 2017. Respondent was ordered to pay the filing fee to the Petitioner pursuant to A.R.S. § 32-2199.02(A), and pay a $250.00 civil penalty to the planned community hearing office fund.

Filing fee: $500.00, Fee refunded: Yes, Civil penalty: $250.00

Disposition: petitioner_win

Cited:

• A.R.S. § 33-1804(B)
• A.R.S. § 32-2199.02(A)
• A.R.S. § 32-2199.01
• A.R.S. § 32-2199.05

Analytics Highlights

Topics: HOA annual meeting violation, statutory requirement, default judgment

Additional Citations:

• A.R.S. § 33-1804
• A.R.S. § 32-2199 et seq.
• A.R.S. § 32-2199.01
• A.R.S. § 32-2199.02
• A.R.S. § 32-2199.05
• A.A.C. R2-19-119(B)
• A.A.C. R2-19-119(A)

Audio Overview

Decision Documents

18F-H1717036-REL Decision – 586602.pdf

Uploaded 2025-10-08T07:02:44 (65.3 KB)

18F-H1717036-REL Decision – 588549.pdf

Uploaded 2025-10-08T07:02:44 (592.6 KB)

Administrative Hearing Briefing: Wheeler v. Beaver Dam Estates Homeowners Association

Executive Summary

This briefing document synthesizes the findings and orders from the case of Jerry Wheeler versus the Beaver Dam Estates Homeowners Association (HOA). The central issue was the HOA’s failure to conduct annual meetings as legally required by Arizona state law. The petitioner, Jerry Wheeler, provided uncontested evidence that the HOA had not held a meeting for several years, specifically since his tenure began on April 1, 2014.

The case was complicated by the death of the HOA’s president prior to the hearing and the association’s subsequent failure to appoint a new representative or appear at the proceedings. The Administrative Law Judge (ALJ) conducted the hearing in the respondent’s absence and ruled decisively in favor of the petitioner.

The final judgment, adopted by the Arizona Department of Real Estate, found the Beaver Dam Estates HOA in violation of A.R.S. § 33-1804(B). The HOA was ordered to hold a meeting on a specified date, reimburse the petitioner’s filing fee, and pay a civil penalty of $250.00 for the violation.

Case Overview

The matter was initiated by a petition filed with the Arizona Department of Real Estate and was subsequently referred to the Office of Administrative Hearings for a formal hearing and decision.

Case Detail

Information

Petitioner

Jerry Wheeler

Respondent

Beaver Dam Estates Homeowners Association

Case Number (OAH)

18F-H1717036-REL

Case Number (Dept. of Real Estate)

HO 17-17/036

Petition Filed

June 8, 2017

Hearing Date

September 5, 2017

ALJ Decision Date

September 6, 2017

Final Order Date

September 13, 2017

Presiding Judge

Suzanne Marwil, Administrative Law Judge (ALJ)

Adopting Authority

Judy Lowe, Commissioner, Arizona Department of Real Estate

Petitioner’s Allegations and Evidence

The petitioner’s case was built on the central allegation that the Beaver Dam Estates HOA had failed to comply with its statutory duty to hold annual meetings.

• Core Allegation: The HOA was in violation of Arizona Revised Statutes (A.R.S.) § 33-1804(B), which mandates that a members’ association meeting “shall be held at least once each year.”

• Petitioner Testimony: Jerry Wheeler testified that since moving into the community on April 1, 2014, the HOA had not held a single meeting. He also testified regarding his numerous efforts to compel the HOA president, Randy Hawk, to convene a meeting for the purpose of reviewing the association’s financial statements with homeowners.

• Supporting Evidence: The petitioner submitted numerous written statements from other homeowners within the Beaver Dam Estates community. These statements corroborated his testimony, confirming that no HOA meeting had been held for several years. This evidence was referred to as “Exhibit B” in the proceedings.

Respondent’s Actions and Procedural Failures

The respondent’s engagement with the legal process was minimal and ultimately ceased, leading to a judgment in its absence.

• Initial Response: The HOA’s then-president, Randy Hawk, initially responded to the petition by agreeing to hold a meeting.

• First Meeting Attempt: A meeting was scheduled for July 18, 2017. However, only about ten people attended, prompting Hawk to reschedule for December 28, 2017. A letter was sent to all members notifying them of the new date and the intent to hold an election for a new president and vice president.

• Death of Representative: The petitioner subsequently informed the Tribunal that Randy Hawk had passed away, leaving the HOA without a clear representative for the legal matter.

• Failure to Appoint New Representative: On August 16, 2017, the Tribunal issued an order, mailed to the respondent’s address of record, requesting that the HOA name a new representative. The HOA failed to do so.

• Failure to Appear: The respondent did not appear for the scheduled hearing on September 5, 2017, nor did it request to appear telephonically. After a 20-minute grace period, the ALJ proceeded with the hearing in the respondent’s absence.

Legal Framework and Conclusions of Law

The ALJ’s decision was based on a clear statutory requirement and the uncontested evidence presented by the petitioner. The burden of proof was on the petitioner, with the standard of proof being a preponderance of the evidence.

• Statutory Violation: The central finding was that the respondent violated A.R.S. § 33-1804(B). The pertinent text of the statute states:

• Key Conclusion: The ALJ determined that “The unconverted evidence established that Respondent violated A.R.S. § 33-1804(B) by failing to hold the statutorily required annual meeting of Respondent for several years prior to the filing of the petition.”

• Recommended Action: Based on this conclusion, the ALJ stated that the respondent “should hold an annual meeting in accordance with the planned community statutes.”

Final Order and Penalties

The ALJ’s decision was formally adopted by the Commissioner of the Department of Real Estate, making it a binding Final Order. The order mandated several actions by the respondent.

IT IS ORDERED that:

1. The petitioner’s petition is granted.

2. The respondent must hold a meeting in accordance with planned community statutes as scheduled on December 28, 2017.

3. Pursuant to A.R.S. § 32-2199.02(A), the respondent shall pay the petitioner the filing fee required by section 32-2199.01.

4. The respondent shall pay to the planned community hearing office fund a civil penalty of $250.00 for the violation.

This Final Order was declared a final administrative action, effective immediately upon service on September 13, 2017. The parties were notified of their right to apply for a rehearing within thirty days or to appeal the decision by filing a complaint for judicial review.

Mark Virden vs. Lakeside Ski Village HOA

Posted on June 27, 2017 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	17F-H1717027-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2017-06-27
Administrative Law Judge	Tammy L. Eigenheer
Outcome	loss
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Mark Virden	Counsel	—
Respondent	Lakeside Ski Village HOA	Counsel	Stewart F. Salwin

Alleged Violations

A.R.S. § 33-1811

Outcome Summary

The petition was denied because the Tribunal found that the HOA's Architectural Committee had the authority to approve the internet tower under the governing documents (CC&Rs) without requiring ratification or disclosure of potential conflicts to the members acting as the board, thus avoiding a violation of A.R.S. § 33-1811 in this instance.

Why this result: The decision to approve the tower was made by the Architectural Committee, which had independent authority under the CC&Rs. Therefore, the requirements of A.R.S. § 33-1811 regarding disclosure of compensation to the members acting as the board were found not to apply to the Committee's action.

Key Issues & Findings

Board of Directors, Contracts, and Conflicts

Petitioner alleged that the HOA violated A.R.S. § 33-1811 when it allowed the construction of an internet service tower after a board member's spouse paid the upfront fee in exchange for permanent free service (compensation). Petitioner argued this compensation required disclosure in an open meeting of the board before approval, which did not occur.

Orders: Petitioner's petition is denied.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

• A.R.S. § 33-1811
• A.R.S. § 32-2199 et seq.
• A.A.C. R2-19-119
• A.R.S. § 33-1804

Analytics Highlights

Topics: conflict_of_interest, architectural_committee, board_authority, internet_tower, compensation, CC&Rs

Additional Citations:

• A.R.S. § 33-1811
• A.R.S. § 32-2199 et seq.
• A.A.C. R2-19-119
• A.R.S. § 33-1804

Video Overview

Audio Overview

Decision Documents

17F-H1717027-REL Decision – 571928.pdf

Uploaded 2025-10-09T03:31:29 (82.2 KB)

17F-H1717027-REL Decision – 575046.pdf

Uploaded 2025-10-09T03:31:29 (736.4 KB)

Briefing: Virden v. Lakeside Ski Village HOA (Case No. 17F-H1717027-REL)

Executive Summary

This briefing document outlines the legal dispute between homeowner Mark Virden (Petitioner) and the Lakeside Ski Village Homeowners Association (Respondent) concerning the construction of an internet service tower on HOA common property. The Petitioner alleged a violation of Arizona’s conflict of interest statute (A.R.S. § 33-1811), asserting that HOA officials received undisclosed compensation—lifelong free internet service—in exchange for approving the tower.

The case culminated in a definitive ruling against the Petitioner. An Administrative Law Judge (ALJ) denied the petition, a decision that was subsequently adopted and finalized by the Commissioner of the Arizona Department of Real Estate. The core of the ruling rested on the HOA’s unique governance structure. The decision to approve the tower was made not by the general “board of directors” (in this HOA, the members act as the board), but by the Architectural Committee, which was vested with independent authority to do so by the HOA’s governing documents (CC&Rs). Consequently, the ALJ concluded that the state law requiring conflict of interest disclosures before the board was not applicable to the committee’s action, rendering the Petitioner’s central argument invalid. The approval of the tower was deemed proper under the HOA’s governing rules.

Case Overview

Entity

Name / Description

Case Number

17F-H1717027-REL

Petitioner

Mark Virden

Respondent

Lakeside Ski Village HOA

Presiding ALJ

Tammy L. Eigenheer

Adjudicating Body

Arizona Office of Administrative Hearings

Final Authority

Commissioner, Arizona Department of Real Estate

Timeline of Key Events

• Circa 2017: The internet company AireBeam approached the HOA to install a service tower but did not secure enough subscribers to fund the project.

• Circa 2017: Lou Talarico, husband of an Architectural Committee member, offered to pay the tower’s upfront cost in exchange for free service for himself and HOA Vice President Carl Rygg. The Architectural Committee subsequently approved construction.

• March 23, 2017: Mark Virden filed a petition with the Arizona Department of Real Estate, alleging a conflict of interest violation.

• June 7, 2017: A hearing was held at the Office of Administrative Hearings.

• June 27, 2017: ALJ Tammy L. Eigenheer issued a decision denying the Petitioner’s petition.

• July 10, 2017: The Commissioner of the Department of Real Estate issued a Final Order adopting the ALJ’s decision.

Petitioner’s Allegations and Arguments

The petition filed by Mark Virden centered on a violation of A.R.S. § 33-1811, which governs contracts and conflicts of interest for HOA boards of directors.

Primary Allegation: Undisclosed Conflict of Interest

The Petitioner alleged that the HOA violated state law by failing to disclose a conflict of interest related to the tower’s approval.

• The Conflict: Susan Talarico, a licensed realtor serving on the Architectural Committee, had a conflict because her husband, Lou Talarico, paid an upfront fee to the tower company. In exchange for this payment, the Talaricos and HOA Vice President Carl Rygg were to receive free internet service for as long as the tower remained operational.

• The Alleged Violation: According to the petition, this arrangement constituted compensation that should have been formally declared in an open meeting before any action was taken, as required by law. The petition states: “This law states that if a member of the board is receiving compensation, and has not declared that conflict in advance, then any contract entered into in violation of this law is void and unenforceable!”

• Perceived Inadequate Compensation: The Petitioner claimed the value of the free service far exceeded the cash contribution, stating, “…their contribution would only pay the equivalent of about 1-2 years of service for the two households.”

• Lack of Transparency: The petition alleges a refusal by the involved board members to provide details of their arrangement. When asked about the compensation, the Vice President reportedly stated, “it’s none of your business.”

Secondary Argument

The Petitioner alternatively argued that the Architectural Committee exceeded its authority. Because the tower could provide service to individuals outside the HOA, it was not exclusively “for the benefit of all or portions” of the HOA, as stipulated by the governing documents.

Personal Grievance

The petition notes a direct personal impact on the Petitioner, stating that the tower was constructed within 150 feet of his front door and that he found it to be “a huge eye sore.”

Respondent’s Governance and Authority

The Lakeside Ski Village HOA’s defense rested on its specific governing documents and organizational structure, which were found to be central to the case’s outcome.

• Unconventional Board Structure: The HOA does not have a traditional, separate board of directors. Its Bylaws stipulate that “The affairs of the Association will be managed by the Members, who by the Association’s Articles of Organization are authorized to exercise all powers normally exercised by a board of directors.”

• Delegated Authority to Architectural Committee: The HOA’s Declaration of Covenants, Conditions, Restrictions and Easements (CC&Rs) grants specific and independent power to its Architectural Committee. The CC&Rs state: “The Architectural Committee may permit one or more aerial satellite dishes or satellite communication systems, and/or other apparatus and equipment for an antenna or cable system for the benefit of all or portions of the Project.”

This structure meant that the authority to approve the tower resided with the committee, not the general membership acting as a board.

Adjudication and Final Ruling

The dispute was adjudicated by the Office of Administrative Hearings, with the final decision adopted by the Department of Real Estate. The Petitioner’s claims were ultimately rejected.

Administrative Law Judge’s Decision

The ALJ’s decision, issued on June 27, 2017, denied the petition based on the following legal rationale:

• Architectural Committee’s Authority Was Dispositive: The ALJ found that the CC&Rs explicitly empowered the Architectural Committee to approve the communication tower. Crucially, the decision established that “Nothing in the CC&Rs requires that the Architectural Committee’s decision must be ratified by the members acting as a board.”

• Conflict of Interest Law Not Applicable: A.R.S. § 33-1811 applies to actions and decisions taken “by or on behalf of the board of directors.” Because the Architectural Committee acted under its own authority granted by the CC&Rs, its decision was not an action of the “board” as defined by the statute.

• Conclusion on Disclosure: The ALJ concluded that even if the free internet service was considered compensation (assuming arguendo), the arrangement “did not have to be disclosed to the members acting as a board.”

• Rejection of Secondary Argument: The ALJ dismissed the argument that the tower did not benefit the HOA, noting that the CC&R language “does not require that the satellite dish or other system may benefit exclusively all or portions of the HOA.”

The final conclusion of the tribunal was that “the Architectural Committee’s approval of the AireBeam tower was proper under Respondent’s governing documents.”

Final Order of the Department of Real Estate

On July 10, 2017, Judy Lowe, Commissioner of the Department of Real Estate, issued a Final Order that formally adopted the ALJ’s decision.

• Outcome: The Petitioner’s petition was officially denied.

• Binding Nature: The Order is binding on the parties and represents a final administrative action.

• Avenues for Appeal: The Order noted that a party may request a rehearing within 30 days for specific causes, such as procedural irregularity, newly discovered evidence, or an arbitrary or capricious decision. Furthermore, a party may appeal the final administrative decision by filing a complaint for judicial review.

Mark Virden vs. Lakeside Ski Village HOA

Posted on June 27, 2017 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	17F-H1717027-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2017-06-27
Administrative Law Judge	Tammy L. Eigenheer
Outcome	loss
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Mark Virden	Counsel	—
Respondent	Lakeside Ski Village HOA	Counsel	Stewart F. Salwin

Alleged Violations

A.R.S. § 33-1811

Outcome Summary

The petition was denied because the Tribunal found that the HOA's Architectural Committee had the authority to approve the internet tower under the governing documents (CC&Rs) without requiring ratification or disclosure of potential conflicts to the members acting as the board, thus avoiding a violation of A.R.S. § 33-1811 in this instance.

Why this result: The decision to approve the tower was made by the Architectural Committee, which had independent authority under the CC&Rs. Therefore, the requirements of A.R.S. § 33-1811 regarding disclosure of compensation to the members acting as the board were found not to apply to the Committee's action.

Key Issues & Findings

Board of Directors, Contracts, and Conflicts

Petitioner alleged that the HOA violated A.R.S. § 33-1811 when it allowed the construction of an internet service tower after a board member's spouse paid the upfront fee in exchange for permanent free service (compensation). Petitioner argued this compensation required disclosure in an open meeting of the board before approval, which did not occur.

Orders: Petitioner's petition is denied.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

• A.R.S. § 33-1811
• A.R.S. § 32-2199 et seq.
• A.A.C. R2-19-119
• A.R.S. § 33-1804

Analytics Highlights

Topics: conflict_of_interest, architectural_committee, board_authority, internet_tower, compensation, CC&Rs

Additional Citations:

• A.R.S. § 33-1811
• A.R.S. § 32-2199 et seq.
• A.A.C. R2-19-119
• A.R.S. § 33-1804

Audio Overview

Decision Documents

17F-H1717027-REL Decision – 571928.pdf

Uploaded 2025-10-08T06:50:49 (82.2 KB)

17F-H1717027-REL Decision – 575046.pdf

Uploaded 2025-10-08T06:50:50 (736.4 KB)

Briefing: Virden v. Lakeside Ski Village HOA (Case No. 17F-H1717027-REL)

Executive Summary

This briefing document outlines the legal dispute between homeowner Mark Virden (Petitioner) and the Lakeside Ski Village Homeowners Association (Respondent) concerning the construction of an internet service tower on HOA common property. The Petitioner alleged a violation of Arizona’s conflict of interest statute (A.R.S. § 33-1811), asserting that HOA officials received undisclosed compensation—lifelong free internet service—in exchange for approving the tower.

The case culminated in a definitive ruling against the Petitioner. An Administrative Law Judge (ALJ) denied the petition, a decision that was subsequently adopted and finalized by the Commissioner of the Arizona Department of Real Estate. The core of the ruling rested on the HOA’s unique governance structure. The decision to approve the tower was made not by the general “board of directors” (in this HOA, the members act as the board), but by the Architectural Committee, which was vested with independent authority to do so by the HOA’s governing documents (CC&Rs). Consequently, the ALJ concluded that the state law requiring conflict of interest disclosures before the board was not applicable to the committee’s action, rendering the Petitioner’s central argument invalid. The approval of the tower was deemed proper under the HOA’s governing rules.

Case Overview

Entity

Name / Description

Case Number

17F-H1717027-REL

Petitioner

Mark Virden

Respondent

Lakeside Ski Village HOA

Presiding ALJ

Tammy L. Eigenheer

Adjudicating Body

Arizona Office of Administrative Hearings

Final Authority

Commissioner, Arizona Department of Real Estate

Timeline of Key Events

• Circa 2017: The internet company AireBeam approached the HOA to install a service tower but did not secure enough subscribers to fund the project.

• Circa 2017: Lou Talarico, husband of an Architectural Committee member, offered to pay the tower’s upfront cost in exchange for free service for himself and HOA Vice President Carl Rygg. The Architectural Committee subsequently approved construction.

• March 23, 2017: Mark Virden filed a petition with the Arizona Department of Real Estate, alleging a conflict of interest violation.

• June 7, 2017: A hearing was held at the Office of Administrative Hearings.

• June 27, 2017: ALJ Tammy L. Eigenheer issued a decision denying the Petitioner’s petition.

• July 10, 2017: The Commissioner of the Department of Real Estate issued a Final Order adopting the ALJ’s decision.

Petitioner’s Allegations and Arguments

The petition filed by Mark Virden centered on a violation of A.R.S. § 33-1811, which governs contracts and conflicts of interest for HOA boards of directors.

Primary Allegation: Undisclosed Conflict of Interest

The Petitioner alleged that the HOA violated state law by failing to disclose a conflict of interest related to the tower’s approval.

• The Conflict: Susan Talarico, a licensed realtor serving on the Architectural Committee, had a conflict because her husband, Lou Talarico, paid an upfront fee to the tower company. In exchange for this payment, the Talaricos and HOA Vice President Carl Rygg were to receive free internet service for as long as the tower remained operational.

• The Alleged Violation: According to the petition, this arrangement constituted compensation that should have been formally declared in an open meeting before any action was taken, as required by law. The petition states: “This law states that if a member of the board is receiving compensation, and has not declared that conflict in advance, then any contract entered into in violation of this law is void and unenforceable!”

• Perceived Inadequate Compensation: The Petitioner claimed the value of the free service far exceeded the cash contribution, stating, “…their contribution would only pay the equivalent of about 1-2 years of service for the two households.”

• Lack of Transparency: The petition alleges a refusal by the involved board members to provide details of their arrangement. When asked about the compensation, the Vice President reportedly stated, “it’s none of your business.”

Secondary Argument

The Petitioner alternatively argued that the Architectural Committee exceeded its authority. Because the tower could provide service to individuals outside the HOA, it was not exclusively “for the benefit of all or portions” of the HOA, as stipulated by the governing documents.

Personal Grievance

The petition notes a direct personal impact on the Petitioner, stating that the tower was constructed within 150 feet of his front door and that he found it to be “a huge eye sore.”

Respondent’s Governance and Authority

The Lakeside Ski Village HOA’s defense rested on its specific governing documents and organizational structure, which were found to be central to the case’s outcome.

• Unconventional Board Structure: The HOA does not have a traditional, separate board of directors. Its Bylaws stipulate that “The affairs of the Association will be managed by the Members, who by the Association’s Articles of Organization are authorized to exercise all powers normally exercised by a board of directors.”

• Delegated Authority to Architectural Committee: The HOA’s Declaration of Covenants, Conditions, Restrictions and Easements (CC&Rs) grants specific and independent power to its Architectural Committee. The CC&Rs state: “The Architectural Committee may permit one or more aerial satellite dishes or satellite communication systems, and/or other apparatus and equipment for an antenna or cable system for the benefit of all or portions of the Project.”

This structure meant that the authority to approve the tower resided with the committee, not the general membership acting as a board.

Adjudication and Final Ruling

The dispute was adjudicated by the Office of Administrative Hearings, with the final decision adopted by the Department of Real Estate. The Petitioner’s claims were ultimately rejected.

Administrative Law Judge’s Decision

The ALJ’s decision, issued on June 27, 2017, denied the petition based on the following legal rationale:

• Architectural Committee’s Authority Was Dispositive: The ALJ found that the CC&Rs explicitly empowered the Architectural Committee to approve the communication tower. Crucially, the decision established that “Nothing in the CC&Rs requires that the Architectural Committee’s decision must be ratified by the members acting as a board.”

• Conflict of Interest Law Not Applicable: A.R.S. § 33-1811 applies to actions and decisions taken “by or on behalf of the board of directors.” Because the Architectural Committee acted under its own authority granted by the CC&Rs, its decision was not an action of the “board” as defined by the statute.

• Conclusion on Disclosure: The ALJ concluded that even if the free internet service was considered compensation (assuming arguendo), the arrangement “did not have to be disclosed to the members acting as a board.”

• Rejection of Secondary Argument: The ALJ dismissed the argument that the tower did not benefit the HOA, noting that the CC&R language “does not require that the satellite dish or other system may benefit exclusively all or portions of the HOA.”

The final conclusion of the tribunal was that “the Architectural Committee’s approval of the AireBeam tower was proper under Respondent’s governing documents.”

Final Order of the Department of Real Estate

On July 10, 2017, Judy Lowe, Commissioner of the Department of Real Estate, issued a Final Order that formally adopted the ALJ’s decision.

• Outcome: The Petitioner’s petition was officially denied.

• Binding Nature: The Order is binding on the parties and represents a final administrative action.

• Avenues for Appeal: The Order noted that a party may request a rehearing within 30 days for specific causes, such as procedural irregularity, newly discovered evidence, or an arbitrary or capricious decision. Furthermore, a party may appeal the final administrative decision by filing a complaint for judicial review.