ALJDEC decisions subject to certification as final

18F-H1818032-REL-RHG · Department of Real Estate - H/C · 2018-08-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Dina R. Galassini,

Petitioner,

vs.

Plaza Waterfront Condominium Owners Association, Inc.,

Respondent

No. 18F-H1818032-REL-RHG

ADMINISTRATIVE LAW JUDGE DECISION

On July 20, 2018, the Department of Real Estate issued an Order Granting Rehearing and Notice of Rehearing in this matter. The Department provided that the rehearing was being granted for the reasons outlined in Petitioner’s Request for Rehearing.

Petitioner’s Request for Rehearing was filed with the Department on June 26, 2018, and provided in pertinent part:

The decision by the administrative law judge (ALJ) is contrary to law, and the decision that was handed down to me only belongs in the judicial branch. Regarding what is a common element or a limited common element (see Exhibit C) should only be decided upon by a judge. For the ALJ to definitively interpret actual contracts between two private parties is a due process violation (separation of powers). In doing so the ALJ redistributed interpreted power from the Judiciary to the Executive and this is a congressional encroachment on my rights.

According to Arizona’s Constitution Article 3, Separation of Powers—only the judicial branch can make decisions that make decisions that bind private parties as law.

On August 15, 2018, Respondent filed a Motion to Vacate Rehearing. In its Motion, Respondent argues that based on Ariz. Rev. Stat. section 32-2199.01 this matter can be resolved as matter of law. On August 21, 2018, Petitioner filed her Opposition to Respondent’s Motion to Dismiss (“Response”).

In her Response, Petitioner asserts that the requirements for a rehearing are clearly met, and that the Department’s Commissioner had ordered a “rehearing on the issue of whether the Respondent Association correctly posted owner assessments for the 2018 parking lot budget.”

Respondent is correct in that this matter can be resolved as a matter of law.

Ariz. Rev. Stat. Title 32, Ch. 20, Art. 11 (Administrative Hearings) describes the process by which a petitioner may request that the Department refer to the Office of Administrative Hearings disputes between owners and condominium associations. Section 32-2199.01(A) shows that hearings are to be conducted for alleged “violations of condominium documents ... or violations of the statutes that regulate condominiums....”

Petitioner is an owner of a condominium in the Respondent condominium association. Petitioner alleged that the Respondent violated the condominium documents. An analysis of Petitioner’s claim requires interpreting the CC&Rs and the definitions of “common element” and “limited common element” that are found in Ariz. Rev. Stat. section 33-1202, which section is part of the statutes that regulate condominiums.

The Office of Administrative Hearings has the authority to interpret the contract between the parties (i.e., the condominium documents), see Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)(the condominium documents are a contract between the parties) and the statutes that regulate condominiums. See Ariz. Cannabis Nurses Ass'n v. Ariz. Dep't of Health Servs., 242 Ariz. 62, 67, 392 P.3d 506, 511 (App. 2017)(“[I]t is the law of this state that an agency may” take such action “which may be reasonably implied from ‘a consideration of the statutory scheme as a whole.’”)(Citation omitted).

Consequently, Petitioner’s argument that the original Administrative Law Judge Decision is contrary to law is unfounded and it is appropriate to dismiss this matter.

IT IS ORDERED that Petitioner’s petition is dismissed;

IT IS FURTHER ORDERED that Respondent’s request for attorney’s fees is denied.

NOTICE

This administrative law judge order, having been issued as a result of a rehearing, is binding on the parties. Ariz. Rev. Stat. section 32-2199.02(B). A party wishing to appeal this order must seek judicial review as prescribed by Ariz. Rev. Stat. section 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. Ariz. Rev. Stat. section 12-904(A).

Done this day, August 22, 2018

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile July 30, 2018 to:

Judy Lowe, Commissioner

Arizona Department of Real Estate

100 N. 15th Avenue, Suite 201

Phoenix, Arizona 85007

Attn: [email redacted]

[email redacted]

[email redacted]

[email redacted]

[email redacted]

[email redacted]

Dina R. Galassini

15832 E Brodiea Dr.

Fountain Hills, AZ 85268

Plaza Waterfront Condo Owners Association, Inc.

c/o Gary Pedersen (Statutory Agent)

MCO Realty

9617 N Saguaro Blvd.

Fountain Hills, AZ 85268

of Real Estate

By Felicia Del Sol