ALJDEC decisions subject to certification as final

18F-H1817005-REL · Department of Real Estate - H/C · 2017-12-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Gary W. Moselle,

Petitioner

vs.

Desert Mountain Master Association,

Respondent

No. 18F-H1817005-REL

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 17, 2017

APPEARANCES: Petitioner Gary W. Moselle appeared on his own behalf. Respondent Desert Mountain Master Association was represented by Curtis Ekmark.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Desert Mountain Master Association (Respondent or DMMA) is an association of homeowners located in Scottsdale, Arizona.

On or about September 1, 2017, Gary W. Moselle (Petitioner) filed a petition with the Arizona Department of Real Estate (Department), alleging that Respondent had violated the provisions of A.R.S. Title 33, Chapter 16, Sections 33-1801 to 33-1818. Petitioner specifically alleged, in relative part, as follows:

Chair of the Communications Committee, Desert Mountain Master Association (DMMA), alleges that a scheduled meeting of his committee is “closed,” open only to committee members, and not subject to Arizona’s open meeting statute. DMMA is an Arizona Planned Unit Development, governed by A.R.S. Title 33, Chapter 16, Sections 33-1801 to 33-1818.

On or about September 5, 2017, the Department issued a notice to Respondent regarding the petition.

On or about September 6, 2017, the DMMA Communications committee held a closed meeting that Petitioner was not allowed to attend.

On or about September 18, 2017, Respondent filed an answer to the petition denying all allegations.

On September 25, 2017, the Department issued a Notice of Hearing to the parties notifying them that a hearing on the petition would be conducted by the Office of Administrative Hearings.

On November 17, 2017, a hearing was held on the petition and the parties presented evidence and argument regarding the violation alleged in the petition.

At the hearing, Petitioner argued that Respondent improperly asserted that the September 6, 2017 meeting of the DMMA Communication committee was not subject to the open meetings law and could not be closed to the DMMA members.

At the hearing, Respondent argued that the DMMA Communication committee did not meet regularly and therefore was not subject to the open meetings law. Respondent presented testimony that in 2016 and 2017, the DMMA Communication committee held only four meetings, twice in April 2016, once in June 2017, and the September 6, 2017 meeting. Respondent further asserted that the recommendation the DMMA Communication committee made to the DMMA Board of Directors (Board), that an email blast be sent regarding the matter at issue, was not acted upon by the Board, as further evident that the DMMA Communication committee was not conducting any actual business of the Board.

CONCLUSIONS OF LAW

The Department has jurisdiction to hear disputes between a property owner and a condominium owners association. A.R.S. § 32-2199 et seq.

In this proceeding, Petitioner bear the burden of proving by a preponderance of the evidence that Respondent violated A.R.S. § 33-1804. A.A.C. R2-19-119.

A preponderance of the evidence is “[e]vidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not." Black's Law Dictionary 1182 (6th ed. 1990).

A.R.S. § 33-1804 provides, in relevant part, as follows:

A. Notwithstanding any provision in the declaration, bylaws or other documents to the contrary, all meetings of the members' association and the board of directors, and any regularly scheduled committee meetings, are open to all members of the association or any person designated by a member in writing as the member's representative and all members or designated representatives so desiring shall be permitted to attend and speak at an appropriate time during the deliberations and proceedings.

. . . .

F. It is the policy of this state as reflected in this section that all meetings of a planned community, whether meetings of the members' association or meetings of the board of directors of the association, be conducted openly and that notices and agendas be provided for those meetings that contain the information that is reasonably necessary to inform the members of the matters to be discussed or decided and to ensure that members have the ability to speak after discussion of agenda items, but before a vote of the board of directors or members is taken. Toward this end, any person or entity that is charged with the interpretation of these provisions, including members of the board of directors and any community manager, shall take into account this declaration of policy and shall construe any provision of this section in favor of open meetings.

Emphasis added.

Petitioner asserted that because the September 6, 2017 meeting was scheduled in a normal manner, that meant that the meeting was “regularly scheduled” and subject to the open meetings law. Petitioner also pointed to the policy statement in A.R.S. § 33-1804(F) that “all meetings” be conducted openly in support of his assertion that the September 6, 2017 DMMA Communications committee meeting should have been open to the members.

Respondent argued that the phrase “regularly scheduled” in the statute meant that the meetings occurred at regular intervals, such as on the third Thursday of every month, quarterly, or even annually, and that because the DMMA Communications committee met so infrequently and without any established interval, the committee did not have “regularly scheduled” meetings that would render it subject to the open meetings law.

The Administrative Law Judge concludes that that the DMMA Communication committee does not hold regularly scheduled meetings, and therefore is not subject to the open meetings law. As such, the determination that the DMMA Communication committee was not open to the members was not a violation of A.R.S. § 33-1804.

ORDER

IT IS ORDERED that Petitioner’s petition is denied.

NOTICE

Pursuant to A.R.S. §32-2199.02(B), this Order is binding on the parties unless a rehearing is granted pursuant to A.R.S. § 32-2199.04. Pursuant to A.R.S. § 41-1092.09, a request for rehearing in this matter must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of this Order upon the parties.

Done this day, December 7, 2017

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner

Arizona Department of Real Estate