ALJDEC decisions subject to certification as final

19F-H1918022-REL · Department of Real Estate - H/C · 2018-12-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Petitioner alleges that Respondent violated its policies and regulations when it failed or refused to honor its stipulation to support and find a solution for the amenity of pickleball. Specifically, in his petition, Petitioner alleges a violation of the Respondent’s website and of its Policy Manual.[1] Respondent filed a Motion to Dismiss arguing that the tribunal lacked jurisdiction over the matter because Petitioner has not alleged a violation of either the “community documents” or any statute that regulates planned communities. Respondent filed a Response to the Motion arguing to the effect that the Respondent is in violation of its policies, that Respondent considers its policies to be governing documents, and that pursuant to Ariz. Rev. Stat. section 1-213, the word “policy” should be given its ordinary meaning.[2] 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 planned community associations. Section 32-2199.01(A) shows that hearings are to be conducted for alleged “violations of … planned community documents or violations of the statutes that regulate … planned communities.” When the legislature defines a word or term, the tribunal must follow that definition. See e.g., Walker v. Scottsdale, 163 Ariz. 206, 786 P.2d 1057 (App. 1989). The legislature has defined “community documents” to mean “the declaration, bylaws, articles of incorporation, if any, and rules, if any.” Ariz. Rev. Stat. § 33-1802(2). This definition does not include a planned community’s statements of policy or statements on its website. Petitioner has not alleged that Respondent violated “community documents” within the meaning of the applicable statutes.[3] Because Petitioner has not alleged a violation meeting the requirements of Ariz. Rev. Stat. section 32-2199.01(A), his petition should be dismissed. IT IS ORDERED that Petitioner Tom J. Martin’s petition is dismissed. NOTICE Pursuant to Ariz. Rev. Stat. section 32-2199.02(B), this Order is binding on the parties unless a rehearing is granted pursuant to Ariz. Rev. Stat. section 32-2199.04. Pursuant to Ariz. Rev. Stat. section 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 12, 2018.

/s/ Thomas Shedden Thomas Shedden Administrative Law Judge

Copy mailed/e-mailed/faxed December 12, 2018 to:

Judy Lowe, Commissioner Arizona Department of Real Estate 100 N. 15th Avenue, Suite 201 Phoenix, Arizona 85007

Carolyn B. Goldschmidt Goldschmidt, Shupe, PLLC 6700 North Oracle Rd., Suite 240 Tucson, AZ 85704

Copy sent Certified through US Mail to:

Tom J Martin 64343 E Greenbelt Ln. Tucson, AZ 85739

Certified Number: [number redacted] By F Del Sol ----------------------- [1] In his Response to Respondent’s Motion to Dismiss, Petitioner provides that his “stated claim is specific: (a) the Association is in violation for not providing pickleball courts as advertised and marketed and (b) ….” [2] Section 1-213 provides that: “Words and phrases shall be construed according to the common and approved use of the language. Technical words and phrases and those which have acquired a peculiar and appropriate meaning in the law shall be construed according to such peculiar and appropriate meaning.” [3] Petitioner’s assertion that Respondent considers its policy statements to be governing documents is not persuasive because: (1) the statute applies to “community documents” not “governing documents;” and (2) even if these terms were synonymous, the tribunal must follow the legislature’s definition, not Respondent’s.

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Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826