Vacate

11F-H1112005-BFS · Department of Fire Building and Life Safety - H/C · 2012-01-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

John Yuille (“Petitioner”) was previously the Chairman of the Board of Directors (“Board”) of Cadia Court (“Association”). In the Petition that was filed with the Department of Fire, Building, and Life Safety (“Department”), Petitioner indicated that the Petition was filed on behalf of the Association. A pre-hearing conference was held on January 19, 2012, to determine whether this matter was properly before the Office of Administrative Hearings (“OAH”), and identify the appropriate parties. At the January 19, 2012 pre-hearing conference, the Administrative Law Judge was informed that, as of the filing of the Petition, the individuals named as respondents in this matter were the only members of the Association’s Board. At the pre-hearing conference, Petitioner further explained that it was his belief that he was improperly removed as the chairman and member of the Association’s Board and that, as of the date when the Petition was filed, there were two Boards, one on which he was a member and the chairman, and the other Board, which was comprised of the four individuals named as respondents. A.R.S. § 41-2198.01 provides for a hearing to be held involving a dispute between an owner and a condominium association or a planned community association. It does not contemplate more than one named respondent. Therefore, even if Petitioner correctly filed the Petition on behalf of the Association, only one individual could be named as a respondent. However, the four named individuals represented that there was only one Board at the time of filing the Petition, the one comprised of those individuals. Additionally, since issuance of the Notice of Hearing that set this matter for a February 6, 2012 hearing, the composition of the Association's Board has changed. The Administrative Law Judge notes that Pat Devine, a named respondent, was the only person that filed a response to the Petition with the Department. At the pre-hearing conference, the other individually named respondents represented that Ms. Devine acted on behalf of the Association’s Board when she filed the response. However, Ms. Devine signed her name on the response, and the response does not indicate on its face that it was filed on behalf of the Association. Further, as of the time of the filing of the response, only the four named individuals were named as respondents in this matter in their individual capacities and the Association was not named as a respondent. Further, only the condominium association or planned community association and not members of the board of directors can be named as a party. See A.R.S. § 41-2198.01 Based on the above, an issue exists as to whether the response filed by Ms. Devine could be considered the response of the Association. Additionally, the Notice of Hearing was served on the individuals named as respondents and not on the Association. From what can be gleaned, it appears that the Petitioner can only be acting as a homeowner in filing the Petition, and the appropriate named respondent should be the Association rather than the above-named respondents. To correct the deficiencies and avoid further complications and issues, the Administrative Law Judge concludes that this matter should be remanded to the Department for it to send a copy of the Petition to the Association and provide an opportunity for the Association to submit a response. Upon the Department’s receipt of a response filed by the Association, the Department shall resubmit a Request for Hearing to the OAH so that the matter can be restored on the OAH Calendar. The Petitioner is not required to take any further action in order for this matter to be reset for hearing before the OAH. After the Department has received from the OAH a new date and time for the hearing, the Department shall issue a Notice of Hearing reflecting the new hearing date and time, and the Notice of Hearing shall contain a caption identifying the parties as follows: John Yuille, Petitioner, v. Cadia Court, Respondent. THEREFORE, IT IS ORDERED vacating this matter from the OAH calendar and remanding it to the Department for further action to be taken by the Department, as set forth above, in order to have this matter restored on the OAH calendar. Done this day, January 25, 2012.

_________________________________ Lewis D. Kowal Administrative Law Judge

Copy mailed this ____ day of ______________, 2012 to:

Gene Palma, Director Department of Fire Building and Life Safety ATTN: Beth Soliere 1110 West Washington Avenue, Suite 100 Phoenix, Arizona 85007

Bessie Childers 13626 N. 109th Ave Sun City, AZ 85351

Richard Trosien 13606 N. 109th Ave Sun City, AZ 85351

Pat Devine 16826 N. Meadow Park Dr., Sun City, AZ 85351

John Yuille 13620 N. 109th Ave Sun City, AZ 85351

Connie Harmon 13609 N. 110th Ave Sun City, AZ 85351

By ___________________________

-----------------------

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826