ALJDEC decisions subject to certification as final

12F-H1213003-BFS · Department of Fire Building and Life Safety - H/C · 2013-01-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: Prehearing conference on December 12, 2012 APPEARANCES: Petitioners John and Debborah Sellers appeared on their own behalf. Respondent Crossing at Willow Creek Property Owners Association was represented by Peter Giambanco, Board President ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT On August 7, 2012, John and Debborah Sellers (Petitioners) submitted a Petition claiming The Crossings at Willow Creek (Respondent) violated A.R.S. § 33-1806 when it failed to properly disclose information required under the statute to the purchaser of a lot in the planned community. On August 9, 2012, the Department of Fire, Building and Life Safety (Department) notified Respondent that the Petition had been filed. On August 29, 2012, Respondent denied any violation identified by the Petition. On October 19, 2012, the Department sent a Notice of Hearing to the parties indicating a hearing on the matter would be held at 8:00 a.m. on December 12, 2012, at the Office of Administrative Hearings (OAH). Prior to the December 12, 2012, hearing, multiple motions were received by OAH and the Administrative Law Judge identified a potential issue as to Petitioners’ standing for a hearing within the meaning of A.R.S. § 41- 2198.01(B). Therefore, it was ordered a pre-hearing conference and oral arguments on the motions would be heard on December 12, 2012. At the pre-hearing conference, Petitioners acknowledged they were not parties to the sale in question as either buyers or sellers and that they had suffered no harm from the alleged failure of Respondent to provide the documents required. CONCLUSIONS OF LAW Arizona statute provides a list of documents that must be provided to the purchaser or the purchaser’s authorized agent within ten days after the association receives written notice of a pending sale of a property within the association. A.R.S. § 33-1806. Petitioners alleged in the Petition that Respondent failed to provide all the documents to the purchaser of a parcel in the planned community as required in the statute. “For a dispute between an owner and a condominium association or planned community association that is regulated pursuant to title 33, chapter 9 or 16, the owner or association may petition the department for a hearing concerning violations of condominium documents or planned community documents or violations of the statutes that regulate condominiums or planned communities.” A.R.S. § 41-2198.01(B). Petitioners acknowledged they were not a party to the transaction at issue. Consequently, Petitioners do not have a dispute with Respondent within the meaning of A.R.S. § 41-2198.01(B) and lack standing to proceed with a hearing on the merits in this case alleging a violation of A.R.S. § 33- 1806, failure to provide documents to purchasers other than Petitioners. Because Petitioners failed to demonstrate that they have standing to pursue an administrative action upon which relief can be granted, the Petition should be dismissed. RECOMMENDed order In view of the foregoing, IT IS ORDERED that no action is required of Respondent in this matter and that the Petition be dismissed. In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be five days from the date of that certification. Done this day, January 23, 2013.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Gene Palma, Director Department of Fire Building and Life Safety c/o Holly Textor 1110 West Washington Avenue, Suite 100 Phoenix, Arizona 85007 [email redacted]

John & Debborah Sellers 595 Robin Drive Prescott, AZ 86305 [email redacted]

Crossings at Willow Creek Property Owners Association c/o DHB Management Post Office Box 12047 Prescott, AZ 86304 [email redacted]

Crossings at Willow Creek Property Owners Association c/o Pete Giambanco 3426 Clearwater Drive Prescott, AZ 86305 [email redacted]

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