ALJDEC decisions subject to certification as final

11F-H1112005-BFS-res · Department of Fire Building and Life Safety - H/C · 2012-09-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 13, 2012, at 8:00 a.m. APPEARANCES: John Yuille (hereinafter “Petitioner”) appeared on his own behalf. Caida Court Homeowner Association (hereinafter “Caida Court”) failed to appear. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT The Department of Fire, Building and Life Safety (the “Department”) is authorized by statute to receive Petitions for Hearings from members of homeowners’ associations and from homeowners’ associations in Arizona. Caida Court is a homeowners’ association located in Sun City, Arizona. Petitioner owns a residence in and is a member of Caida Court. Petitioner served as Chairman of the Board of Management for Caida Court until August 24, 2011. Petitioner was recalled as Chairman of the Board of Management for Caida Court on August 24, 2011. Petitioner filed a petition with the Department alleging that Caida Court had violated the provisions of A.R.S. § 33-1243(H). Petitioner specifically alleged that Respondent failed to deliver the petition before the meeting to recall the board chairman. Respondent’s Answer to the Petition provided, in part, as follows: Although we have a Petition Ballot that was sent to all owners-- including Mr. Yuille, and had signatures as well as a 10-3 vote to recall him[.] We by lack of removal information possibly did not follow the statute 33-1248[.] We do [apologize] and it will not happen again.

Petitioner’s Testimony Petitioner testified that he returned from an out-of-state trip to Utah and found that a special meeting was taking place regarding a petition to remove Petitioner from the Board of Directors of Caida Court. Petitioner stated that he asked for a copy of the recall petition and was informed that a copy of the recall petition would be provided to him after the conclusion of the special meeting. Petitioner testified that a copy of the recall petition was never provided to him and that he did not believe that a written recall petition actually existed. Petitioner stated that Caida Court failed to comply with the applicable provisions of A.R.S. § 33- 1243(H).[1]

PROVISIONS OF LAW REFERENCED AT HEARING

1. A.R.S. § 33-1243(H) provides as follows: H. Notwithstanding any provision of the declaration or bylaws to the contrary, the unit owners, by a majority vote of members entitled to vote and voting on the matter at a meeting of the members called pursuant to this section at which a quorum is present, may remove any member of the board of directors with or without cause, other than a member appointed by the declarant. For purposes of calling for removal of a member of the board of directors, other than a member appointed by the declarant, the following apply: 1. In an association with one thousand or fewer members, on receipt of a petition that calls for removal of a member of the board of directors and that is signed by the number of persons who are entitled to cast at least twenty-five per cent of the votes in the association or one hundred votes in the association, whichever is less, the board shall call and provide written notice of a special meeting of the association as prescribed by section 33- 1248, subsection B. 2. Notwithstanding section 33-1248, subsection B, in an association with more than one thousand members, on receipt of a petition that calls for removal of a member of the board of directors and that is signed by the number of persons who are entitled to cast at least ten per cent of the votes in the association or one thousand votes in the association, whichever is less, the board shall call and provide written notice of a special meeting of the association. The board shall provide written notice of a special meeting as prescribed by section 33-1248, subsection B. 3. The special meeting shall be called, noticed and held within thirty days after receipt of the petition. 4. For purposes of a special meeting called pursuant to this subsection, a quorum is present if the number of owners to whom at least twenty per cent of the votes or one thousand votes, whichever is less, are allocated is present at the meeting in person or as otherwise permitted by law. 5. If a civil action is filed regarding the removal of a board member, the prevailing party in the civil action shall be awarded its reasonable attorney fees and costs. 6. The board of directors shall retain all documents and other records relating to the proposed removal of the member of the board of directors for at least one year after the date of the special meeting and shall permit members to inspect those documents and records pursuant to section 33-1258.

CONCLUSIONS OF LAW

1. A.R.S. § 41-2198.01 permits an owner or a planned community organization to file a petition with the Department for a hearing concerning violations of planned community documents or violations of statutes that regulate planned communities. That statute provides that such petitions will be heard before the Office of Administrative Hearings. 2. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issue in this matter is by a preponderance of the evidence. See A.A.C. R2-19-119. 3. Proof by “preponderance of the evidence” means that it is sufficient to persuade the finder of fact that the proposition is “more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). 4. Undisputed credible testimony established that Respondent failed to call, notice, and hold the special meeting to remove Petitioner as a member of the Board of Directors of Caida Court within thirty days after receipt of the petition to remove Petitioner as a member of the Board of Caida Court. This Tribunal concludes that Respondent violated the charged provision of A.R.S. § 33-1243(H).

RECOMMENDed order In view of the foregoing, it is ORDERED that Petitioner be deemed the prevailing party in this matter. It is further ORDERED that Respondent comply with the applicable provisions of A.R.S. § 33-1243(H) in the future. It is further ORDERED that Caida Court pay Petitioner his filing fee of $550.00, to be paid to the Department in this matter within thirty (30) days of this Order. It is further ORDERED that Caida Court pay a civil penalty in the amount of $200.00 to the Department within thirty (30) days of the date of this Order. In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of this Order will be five (5) days from the date of that certification. Done this day, September 18, 2012.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

Gene Palma, Director Department of Fire Building and Life Safety

----------------------- [1] 9/13/12 Hearing Record at 5:50-8:11.

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