Case Summary
| Case ID | 19F-H1919071-REL-RHG |
|---|---|
| Agency | ADRE |
| Tribunal | OAH |
| Decision Date | 2020-01-30 |
| Administrative Law Judge | Velva Moses-Thompson |
| Outcome | loss |
| Filing Fees Refunded | $0.00 |
| Civil Penalties | $0.00 |
Parties & Counsel
| Petitioner | Thomas J. Van Dan Elzen | Counsel | — |
|---|---|---|---|
| Respondent | Carter Ranch Homeowners Association | Counsel | Augustus H. Shaw IV, Esq. |
Alleged Violations
A.R.S. § 33-1808
Outcome Summary
The Administrative Law Judge dismissed the Petitioner's complaint, finding the Petitioner failed to meet the burden of proof that the HOA's flag display rule was inconsistent with its governing documents or improperly adopted, and deemed the Respondent (HOA) the prevailing party.
Why this result: Petitioner failed to establish the Flag Display Rule was inconsistent with the CC&Rs or that the Association improperly adopted the rule.
Key Issues & Findings
Flags and Sings
Petitioner filed a single issue petition alleging the HOA violated A.R.S. § 33-1808 by issuing a violation notice for displaying a "Trump 2020" flag. Petitioner argued the HOA's Flag Display Rule was inconsistent with the CC&Rs because the CC&Rs only defined signs, not flags. The ALJ concluded the Petitioner had not established the rule was inconsistent with the CC&Rs or improperly adopted.
Orders: Petitioner Thomas J. Van Dan Elzen’s petition is dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
- A.R.S. § 33-1808
- A.A.C. R2-19-119
- ARIZ. REV. STAT. section 32-2199.02(B)
- ARIZ. REV. STAT. section 12-904(A)
- 4 United States Code sections 4 through 10
- P.L. 94-344
Audio Overview
Decision Documents
19F-H1919071-REL-RHG Decision – 767071.pdf
Administrative Hearing Briefing: Van Dan Elzen v. Carter Ranch HOA
Executive Summary
This document provides a comprehensive analysis of the Administrative Law Judge (ALJ) Decision in the case of Thomas J. Van Dan Elzen versus the Carter Ranch Homeowners Association (HOA), case number 19F-H1919071-REL-RHG. The dispute centered on the HOA’s prohibition of a “Trump 2020” flag displayed by Mr. Van Dan Elzen at his property. The petitioner alleged this prohibition violated Arizona state law.
The ALJ ultimately dismissed the petition, ruling in favor of the Carter Ranch HOA. The decision was based on the petitioner’s failure to prove by a preponderance of the evidence that the HOA’s “Flag Display Rule” was inconsistent with its foundational Covenants, Conditions, and Restrictions (CC&Rs) or that the rule was improperly adopted. Crucially, the ALJ found that the petitioner had not sufficiently alleged a direct violation of the relevant state statute, A.R.S. § 33-1808. The ruling effectively upholds the HOA’s authority, granted by its CC&Rs, to regulate the display of flags not explicitly protected by Arizona law.
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I. Case Overview
• Case Name: Thomas J. Van Dan Elzen, Petitioner, vs. Carter Ranch Homeowners Association, Respondent.
• Case Number: 19F-H1919071-REL-RHG
• Adjudicating Body: Arizona Office of Administrative Hearings
• Presiding Judge: Administrative Law Judge Velva Moses-Thompson
• Hearing Date: January 10, 2020
• Decision Date: January 30, 2020
• Subject of Dispute: The validity of an HOA rule prohibiting the display of a “Trump 2020” political flag, which the petitioner claimed violated A.R.S. § 33-1808.
II. Chronology of Key Events
• May 21, 2019: Carter Ranch HOA notifies petitioner Thomas J. Van Dan Elzen that his “Trump 2020” flag violates Association Rules.
• June 14, 2019: Mr. Van Dan Elzen files a petition with the Arizona Department of Real Estate, alleging the HOA violated A.R.S. § 33-1808.
• November 18, 2019: The Department of Real Estate issues an order setting the matter for a rehearing.
• January 10, 2020: The rehearing is held before an Administrative Law Judge.
III. Petitioner’s Position (Thomas J. Van Dan Elzen)
Mr. Van Dan Elzen’s case was predicated on the argument that the HOA’s rules regarding flags were inconsistent with its own governing documents, specifically the Covenants, Conditions, and Restrictions (CC&Rs).
• Core Allegation: The HOA’s enforcement action violated A.R.S. § 33-1808, which governs flags and signs.
• Primary Argument: Mr. Van Dan Elzen contended that the HOA’s “Flag Display Rule” was invalid because the CC&Rs do not explicitly mention the word “flag.” He argued that the relevant section of the governing documents, DCC&R 3.14, only defines “SIGNS.”
• Direct Quotation from Petition: The petition stated the following, highlighting the perceived discrepancy:
IV. Respondent’s Position (Carter Ranch HOA)
The Carter Ranch HOA maintained that its “Flag Display Rule” was valid, properly enacted, and did not violate state law or its own governing documents.
• The “Flag Display Rule”: The HOA’s rules explicitly prohibit flying any flag other than those on an approved list, which includes:
◦ The American Flag
◦ Official flags of the U.S. Army, Navy, Air Force, Marine Corps, or Coast Guard
◦ A POW/MIA flag
◦ An Arizona Indian National flag
◦ The Arizona State flag
◦ The Gadsden Flag
• Authority to Regulate: The HOA asserted its authority to create this rule stemmed from Article V, Section 5.3 of its CC&Rs. This section grants the Board the power to adopt, amend, and repeal rules pertaining to “the health, safety or welfare of the owners… or restrictions on the use of Lots.” It also specifies that such rules are “enforceable in the same manner” as the CC&Rs themselves.
• Defense Arguments: The HOA contended that the petition should be dismissed because:
1. The Flag Display Rule was not inconsistent with the CC&Rs.
2. The rule was properly adopted under the authority granted in the CC&Rs.
3. The petitioner failed to allege that the HOA had actually violated a specific statute or provision of its governing documents.
V. Analysis of Governing Law: A.R.S. § 33-1808
This Arizona Revised Statute was central to the dispute. It places specific limitations on an HOA’s ability to regulate the display of certain flags and political signs.
Provision
Description of Regulation
Subsection A: Protected Flags
An HOA cannot prohibit the outdoor display of: The American flag (if displayed consistent with federal code), official U.S. military flags, the POW/MIA flag, the Arizona state flag, an Arizona Indian nations flag, or the Gadsden flag.
Subsection C: Political Signs
An HOA cannot prohibit the display of political signs on a member’s property, but may regulate them. Permissible regulations include:
• Time: Prohibiting display earlier than 71 days before an election and later than 3 days after an election.
• Size & Number: Regulations must be no more restrictive than applicable city/county ordinances. If no such ordinance exists, the HOA cannot limit the number of signs, but can cap the maximum aggregate dimensions at nine square feet.
• Definition of “Political Sign”: The statute defines a political sign as “a sign that attempts to influence the outcome of an election.”
VI. Administrative Law Judge’s Decision and Order
The ALJ concluded that the petitioner failed to meet the required burden of proof, which is to prove a violation by a preponderance of the evidence.
1. Rule Consistency: The ALJ concluded that the “Petitioner has not established that the Flag Display Rule was inconsistent with the CC&Rs.”
2. Rule Adoption: The ALJ found that the “Petitioner has not established that the Association improperly adopted the Flag Display Rule under its CC&Rs.”
3. Failure to Allege Violation: The judge noted that the “Petitioner has not alleged that Carter Ranch violated A.R.S. § 33-1808.” This indicates a failure in the petition’s framing to connect the HOA’s actions to a specific statutory prohibition.
4. Final Determination: Based on these conclusions, the judge determined that “Mr. Van Dan Elzen’s petition should be dismissed and the Respondent be deemed to be the prevailing party in this matter.”
• Dismissal: “IT IS ORDERED that Petitioner Thomas J. Van Dan Elzen’s petition is dismissed.”
• Binding Nature: The order is binding on the parties as it resulted from a rehearing.
• Appeal Rights: Any appeal must be filed with the superior court within 35 days from the date the order was served.