Case Summary
| Case ID | 18F-H1818044-REL |
|---|---|
| Agency | ADRE |
| Tribunal | OAH |
| Decision Date | 2018-10-03 |
| Administrative Law Judge | Diane Mihalsky |
| Outcome | loss |
| Filing Fees Refunded | $0.00 |
| Civil Penalties | $0.00 |
Parties & Counsel
| Petitioner | Michelle Ruffo | Counsel | — |
|---|---|---|---|
| Respondent | Reflections in the Catalinas Condo Association | Counsel | Nathan Tennyson |
Alleged Violations
A.R.S. §§ 33-1242, 33-1248, 33-1803(A), 33-1803(B), 33-1805; CC&Rs §§ 1.36, 1.38, 4.7, 2.8.3
Outcome Summary
The Administrative Law Judge denied the petition, concluding that the Petitioner failed to prove the HOA violated the governing documents or relevant statutes in assessing fines for unauthorized parking.
Why this result: Petitioner continually violated CC&R § 4.7 and failed to prove Respondent violated any CC&R or statute, particularly as A.R.S. § 33-1242 did not apply to disputes concerning the use of limited common elements.
Key Issues & Findings
HOA violation of CC&Rs and Statutes by imposing parking fines
Petitioner challenged the HOA's decision to assess continuous fines against her account totaling $2,544.00 for repeatedly parking in spaces that were not assigned to her unit 52, arguing the fines and enforcement lacked proper statutory process and violated CC&Rs. The ALJ found that Petitioner failed to meet her burden of proof and that the statute cited (A.R.S. § 33-1242) concerning property condition notices did not apply to this dispute regarding limited common elements (parking spaces).
Orders: Petitioner Michelle Ruffo’s petition against Respondent Reflections in the Catalinas Condo Association is denied.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_loss
- A.R.S. § 33-1242
- A.R.S. § 33-1803
- CC&R § 4.7
- CC&R § 2.8.3
Analytics Highlights
- A.R.S. § 32-2199
- A.R.S. § 33-1242
- A.R.S. § 33-1248
- A.R.S. § 33-1803
- A.R.S. § 33-1805
- A.R.S. § 12-349
- CC&R § 4.7
- CC&R § 2.8.3
Audio Overview
Decision Documents
18F-H1818044-REL Decision – 663567.pdf
Briefing Document: Ruffo v. Reflections in the Catalinas Condo Association
Executive Summary
This document provides a comprehensive analysis of the Administrative Law Judge (ALJ) Decision in case number 18F-H1818044-REL, involving Petitioner Michelle Ruffo and Respondent Reflections in the Catalinas Condo Association. The core of the dispute centers on a series of fines levied by the Association against Ms. Ruffo for repeatedly parking in condominium parking spaces not assigned to her unit.
The Petitioner argued that she had informal written permission from other residents to use their spaces, that the Association’s notices of violation were procedurally flawed, that she was the victim of retaliatory harassment, and that her own assigned space was frequently occupied by others. The Respondent maintained that its actions were in strict accordance with the community’s Covenants, Conditions, and Restrictions (CC&Rs), which unambiguously require owners to use only their assigned parking spaces and outline a formal process for reallocating them, a process the Petitioner did not follow.
The ALJ ultimately denied the petition, finding that Ms. Ruffo failed to meet her burden of proof. The decision concluded that the Association acted within its rights, that its enforcement actions were consistent with its governing documents, and that the Petitioner’s reliance on informal agreements represented the very “evils that the CC&Rs were designed to prevent.” As of the hearing date, the outstanding balance of fines, interest, and fees on the Petitioner’s account totaled $2,544.00.
Case Background
Parties Involved
Name / Entity
Representation / Key Details
Petitioner
Michelle Ruffo
Owner of unit 52, assigned parking space #131. Appeared on her own behalf.
Respondent
Reflections in the Catalinas Condo Assoc.
The condominium unit owners’ association. Represented by Nathan Tennyson, Esq. of Brown Olcott, PLLC.
Adjudicator
Diane Mihalsky
Administrative Law Judge, Office of Administrative Hearings.
Witnesses
Carol Lundberg
Testified for the Petitioner.
Vanessa Chapman Lubinsky & Gabino Trejo
Former and current property managers, respectively, who testified for the Respondent.
Core Dispute
The central issue is the Association’s imposition of fines against Ms. Ruffo for violating the community’s parking regulations. On or about April 17, 2018, Ms. Ruffo filed a petition alleging the Association violated its CC&Rs and several Arizona statutes by fining her for parking in spaces #38 and #40, which were not assigned to her unit #52. The Association denied any violation, asserting it was enforcing valid community rules.
Chronology of the Dispute
The conflict escalated over a period of approximately two years, marked by a series of notices, fines, and failed attempts at resolution.
• August 2, 2016: The Association sends a “Friendly Reminder” to Ms. Ruffo to cease parking in space #40 and use her assigned space, #131.
• August 5, 2016: A “Notice of Violation” is sent for the same issue, serving as a second warning.
• March 14, 2017: A “Final Non-Compliance Notice” is issued, noting violations in both space #40 and #38. The notice informs Ms. Ruffo of her right to a hearing with the Board of Directors if requested within 14 days.
• March 30, 2017: The first fine of $50.00 is assessed after Ms. Ruffo’s vehicle is again observed in space #38.
• April 17, 2017: Ms. Ruffo responds in writing, claiming she has permission to use the spaces and requests the fine be waived.
• April 27, 2017: The Association’s Board reviews and denies the waiver request. Ms. Ruffo was invited to address the Board but did not attend.
• June 6, 2017: A $200.00 fine is assessed for two observed violations in space #40.
• June 26, 2017: Another $200.00 fine is assessed for violations in spaces #40 and #38.
• July 11, 2017: The Association warns that access to community amenities (pool, fitness room) will be denied if fines remain unpaid. This action is later taken.
• August 31, 2017: A Board meeting is scheduled for Ms. Ruffo and her attorney, Mark F. Williman, to attend. Neither party attends, and they fail to provide advance notice. The Association incurs a $200 legal fee for its attorney’s attendance.
• September 25, 2017: Fines totaling $1,400.00 are assessed for multiple observed violations.
• September 27, 2017: The Association attempts to tow Ms. Ruffo’s vehicle. The attempt is aborted after she refuses to exit the vehicle and calls the Pima County Sheriff’s Office.
• October 4, 2017: The Association’s attorney informs Ms. Ruffo that another hearing will not be scheduled until she reimburses the Association for the $200 legal fee from the missed August 31 meeting.
• October 2017 – January 2018: A series of additional fines are assessed for ongoing violations, and Ms. Ruffo sends multiple letters requesting a hearing and protesting the fines and the $200 reimbursement requirement.
• April 17, 2018: Ms. Ruffo files the formal petition with the Arizona Department of Real Estate.
• September 18, 2018: The evidentiary hearing is held before the Office of Administrative Hearings.
Analysis of Arguments and Evidence
Petitioner’s Position (Michelle Ruffo)
Ms. Ruffo’s defense was multi-faceted, based on claims of permission, procedural errors by the Association, and alleged harassment.
• Claim of Permission: Ms. Ruffo testified that since 2005, she had been parking in spaces #38 and #40 with written permission. She claimed a 2006 agreement with the Morleys, then owners of unit #56, for space #40. She also submitted a 2018 email from Julie Ruiz, a tenant in unit #53, granting permission to use space #38.
• Allegations of Improper Notices: She argued the Association’s notices violated A.R.S. § 33-1242(C) because they did not always identify the person who observed the violation or provide photographic evidence.
• Allegations of Harassment and Retaliation: Through an attorney, Ms. Ruffo alleged she was being “unlawfully discriminated against and harassed in retaliation for her role related to allegations that HOA President Mitch Treese misappropriated HOA funds.” The ALJ noted that no evidence was submitted at the hearing to support this claim.
• Counter-Evidence: Ms. Ruffo submitted photographs dated from October 2016 to July 2017 showing other vehicles, including those of Associa maintenance and a landscaping contractor, parked in her assigned space #131.
• Dispute over Hearing Preconditions: She argued that the Association’s demand for a $200 reimbursement for its attorney’s fees as a condition for a new hearing was unlawful and not permitted under the CC&Rs.
Respondent’s Position (The Association)
The Association’s case rested on the explicit language of its governing documents and its adherence to established enforcement procedures.
• Primacy of the CC&Rs: The Association argued that its governing documents are unambiguous. Section 4.7 explicitly forbids owners from parking in any space other than the one assigned to their unit as a Limited Common Element.
• Formal Reallocation Process: Per Section 2.8.3, reallocating a Limited Common Element like a parking space requires a formal, written amendment executed by the unit owners involved and submitted to the Board for approval. Ms. Ruffo never followed this procedure.
• Rejection of Informal Agreements: The property manager testified that such private agreements are not legally binding or enforceable by the Association and create confusion, as evidenced by complaints from subsequent owners and tenants who were unable to use their assigned spaces.
• Adherence to Enforcement Policy: The Association followed its documented Violation Enforcement Policy, starting with a friendly reminder and escalating to formal notices and fines for continued non-compliance.
• Opportunity to Be Heard: Ms. Ruffo was provided opportunities to address the Board on April 27, 2017, and August 31, 2017. She failed to attend either meeting, and her failure to provide notice for the latter caused the Association to incur unnecessary legal fees.
• Witness Testimony: The former property manager, Ms. Chapman, testified that she had personally witnessed all the charged violations.
Governing Documents and Statutes
The case hinged on the interpretation of the Association’s CC&Rs and relevant Arizona state law.
Key CC&R Provisions
Section
Provision
Relevance
Motor Vehicles: “no Owner, Lessee or Occupant may park any . . . motor vehicle . . . in any Parking Spaces other than the Parking Space assigned to the Unit as a Limited Common Element.”
The central rule that the Petitioner was found to have repeatedly violated.
§ 2.8.3
Reallocation of Limited Common Elements: A reallocation requires a formal, recorded amendment executed by the owners and submitted to the Board.
The official procedure for changing parking space assignments, which the Petitioner did not follow for her informal agreements.
§ 13.1
Enforcement: Grants the Association the right to impose monetary penalties, suspend an owner’s right to use facilities, and tow vehicles in violation of the rules, after notice and an opportunity to be heard.
Provides the legal authority within the governing documents for the Association’s actions (fines, suspension of amenity access, attempted tow).
§ 1.36
“Parking Space” Definition: Defines a parking space as a portion of the Limited Common Elements.
Legally classifies the disputed parking spaces, making them subject to the rules governing Limited Common Elements.
Arizona Revised Statutes (A.R.S.)
The Petitioner cited A.R.S. § 33-1242(C), which requires an association, upon written request from an owner, to provide details of an alleged violation, including the observer’s name and the date. The ALJ determined this statute was inapplicable to the dispute. The judge’s reasoning was that the statute applies specifically to notices regarding the “condition of the property owned by the unit owner” (i.e., her physical condo unit #52), not her use of Limited Common Elements like parking spaces, which she does not own.
Administrative Law Judge’s Decision and Rationale
The ALJ’s decision was a conclusive denial of the petition, siding entirely with the Association.
Final Order: “IT IS ORDERED that Petitioner Michelle Ruffo’s petition against Respondent Reflections in the Catalinas Condo Association is denied because Petitioner has not established that Respondent violated the CC&Rs or any statute in assessing fines against her for her repeated violations of CC&R § 4.7 by parking in spaces that were not assigned to her unit #52.”
Key Legal Conclusions
• Burden of Proof: The Petitioner bore the burden of proving her claims by a preponderance of the evidence and failed to do so.
• Unambiguous Covenants: The CC&Rs regarding parking are unambiguous and must be enforced to give effect to the intent of the parties. CC&R § 4.7 clearly requires owners to park in their assigned spaces.
• Invalidity of Informal Agreements: The ALJ found that the Petitioner’s reliance on informal agreements illustrated “the evils that the CC&Rs were designed to prevent.” These undocumented side deals create instability and conflict when properties are sold or new tenants arrive, undermining the security and order of the community’s parking plan.
• Respondent’s Proper Conduct: The Association was found to have followed its own enforcement policy and provided the Petitioner with opportunities to be heard.
• Attorney’s Fee Condition: While the CC&Rs do not explicitly authorize charging an owner for attorney’s fees as a precondition for a hearing, the ALJ noted that A.R.S. § 33-1242(A)(18) allows an association to “exercise any . . . powers necessary and proper for the governance and operation.” Furthermore, civil statutes often require a party to pay for fees they cause an opponent to incur unnecessarily.
• Futility of a Board Hearing: The ALJ concluded that, in light of the Petitioner’s arguments and her “continued violation of Respondent’s parking policy over nearly two years,” a hearing before the Association’s Board would not have changed her behavior or the outcome of the matter.
Financial Implications
The conflict resulted in significant financial penalties for the Petitioner. The fines were assessed on an escalating basis for continued violations.
• March 30, 2017: $50.00
• June 6, 2017: $200.00
• June 26, 2017: $200.00
• August 9, 2017: $200.00
• September 25, 2017: $1,400.00
• October 17, 2017: $100.00
• November 6, 2017: $100.00
As of the hearing on September 18, 2018, the total outstanding balance on Ms. Ruffo’s account, including interest and certified letter fees, was $2,544.00.