ALJDEC decisions subject to certification as final

18F-H1817005-REL-RHG · Department of Real Estate - H/C · 2018-05-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Gary W. Moselle,

Petitioner,

vs.

Desert Mountain Master Association,

Respondent.

No. 18F-H1817005-REL-RHG

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 20, 2018

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 or about 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 November 17, 2017 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 be closed to the DMMA members.

At the November 17, 2017 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 evidence that the DMMA Communication committee was not conducting any actual business of the Board.

On December 7, 2017, the Administrative Law Judge issued an Administrative Law Judge Decision in which Petitioner’s petition was denied.

On or about January 4, 2018, Petitioner filed a request for rehearing with the Department. In the request for rehearing, Petitioner cited newly discovered material evidence in that an email had been sent by Respondent on November 17, 2017, after the hearing concluded. Petitioner also argued that a rehearing should be granted “to evaluate whether” Respondent misled the Administrative Law Judge regarding the Board’s actions with regard to the committee’s recommendation. Petitioner also argued the December 7, 2017 decision was contrary to law.

On January 26, 2017, the Department granted Petitioner’s request for rehearing.

On April 20, 2018, a rehearing was conducted at the Office of Administrative Hearings. The Administrative Law Judge took administrative notice of the record in the prior proceeding.

At the April 20, 2018 hearing, Petitioner again argued that “regularly scheduled” could have multiple meanings and was not defined in the statute as meaning meeting on a regularly scheduled time frame, i.e. on the third Monday of the month, on the 15th of every month, quarterly, or annually. Rather, Petitioner again asserted that “regularly scheduled” should be interpreted to mean scheduled in a normal fashion. In his prehearing brief, Petitioner asserted there were “six functioning DMMA committees” and of those six committees, five meet “at the request of the chair.” In support of his assertion, Petitioner included a page from Respondent’s website entitled “VOLUNTEER REQUEST” indicating that at the January 29th Board Meeting, “new Committee Chairs were appointed and they are searching for volunteers to serve on their committees.” On cross-examination, Petitioner acknowledged he had been permitted to attend other open committee meetings including the Covenants Committee, Rental Committee, and Elections Committee. When asked why he wrongly asserted in his brief that Respondent had only the six committees he referenced, Petitioner stated that five of the committees listed in the Volunteer Request page “meet at the request of the chair and they’re not regularly scheduled.” Hearing record 30:52 – 31:15 (emphasis added).

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.

When construing a statute, the primary goal is to ascertain the legislature’s intent. State ex rel. Thomas v. Contes, 216 Ariz. 525, 527, 169 P.3d 115, 117 (App. 2007). This is accomplished by first looking to the text of the statute. Id. If the language is clear, its plain meaning is ascribed, unless it would lead to absurd results. Id.; Marsoner v. Pima County, 166 Ariz. 486, 488, 803 P.2d 897, 899 (1991). If ambiguity exists, secondary principles of statutory construction are used to determine the intent. Contes, 216 Ariz. at 527.

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 of a planned community” 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 plain language of the A.R.S. § 33-1804(A) that all “regularly scheduled committee meetings” must be open to the members applies to those meetings that occur at regular intervals. It is acknowledged that, as Petitioner asserted, “regularly scheduled” could mean “scheduled in a normal or ordinary fashion.” However, the fact that the phrase “regularly scheduled” could have multiple meanings does not mean that it cannot be interpreted according to its plain language. In fact, during his testimony, Petitioner stated that the five committees he referenced in his prehearing brief met at the request of the chair and did not have “regularly scheduled” meetings.

The general policy statement in favor of open meetings set forth in A.R.S. § 33-1804(F) does not override the specific provisions of A.R.S. § 33-1804(A) that only “regularly scheduled” committee meetings must be open to the members.

The Administrative Law Judge concludes that that at the time of the September 6, 2017 meeting, the DMMA Communication committee did not hold “regularly scheduled” meetings, and therefore was not subject to the open meetings law. As such, Respondent’s determination that the September 6, 2017 DMMA Communication committee meeting 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

This administrative law judge order, having been issued as a result of a rehearing, is binding on the parties. A.R.S. § 32-2199.02(B). A party wishing to appeal this order must seek judicial review as prescribed by A.R.S. § 41-1092.08(H) and title 12, chapter 7, article 6. Any such appeal must be filed with the superior court within thirty-five days from the date when a copy of this order was served upon the parties. A.R.S. § 12-904(A).

Done this day, May 10, 2018

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile May 10, 2018 to:

Judy Lowe, Commissioner

Arizona Department of Real Estate

2910 North 44th Street, Room 100

Phoenix, AZ 85018

Attn:

[email redacted]

Curtis S. Ekmark & Charles Markle

CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP

1400 E Southern Ave.

Suite 400

Tempe, AZ 85282

[email redacted]

Gary W. Moselle

9809 E. Miramonte Drive

Scottsdale, AZ 85262

By Felicia Del Sol