ALJDEC decisions subject to certification as final

19F-H1919059-REL-RHG · Department of Real Estate - H/C · 2020-01-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Mary J Bartle,

Petitioner,

vs.

Saguaro West Owner's Association,

Respondent.

No. 19F-H1919059-REL-RHG

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: January 14, 2020

APPEARANCES: Mary J. Bartle on her own behalf; Nicole Payne, Esq. for Respondent

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

On November 18, 2019, the Arizona Department of Real Estate issued an Order Granting Rehearing and Notice of Rehearing setting the above-captioned matter for rehearing on January 14, 2020 at the Office of Administrative Hearings (“OAH”) in Phoenix, Arizona.

Petitioner Mary J. Bartle appeared at the rehearing and testified on her own behalf. Respondent Saguaro West Owner’s Association was represented by counsel but presented no witnesses.

The Administrative Law Judge informed the parties that he would take notice of the record from the original matter, including the Administrative Law Judge Decision that was issued on September 18, 2019.

On or about April 22, 2019, Ms. Bartle filed with the Department the petition that gave rise to this matter.

Although Ms. Bartle paid the fee for only a single issue hearing, her petition arguably raised more than one issue and before the original hearing was convened, she was directed to file with the OAH a statement setting forth her single issue. Although Ms. Bartle believed she had filed the required statement at the OAH, the docket did not have that information and it appeared as though she may have filed the information only with the Department of Real Estate.

At the outset of the first hearing (held on August 29, 2019), discussion regarding the scope of the hearing was held and Ms. Bartle agreed to limit her petition to the single issue of whether the Association had violated Bylaws Article VIII, section 8(d) by making a withdrawal of $49,000.50 from the operating account on October 22, 2018, and redepositing the same amount on November 30, 2018. Administrative Law Judge Decision at Finding of Fact No. 5.

Bylaws Article VIII, section 8(d) provides:

The Treasurer shall receive and deposit in the Association’s bank accounts all monies received by the Association and shall disburse such funds as directed by resolution [of] the Board of Directors; shall properly prepare and sign all checks before presenting them to be co-signed; keep proper books of account; cause an annual audit of the Association’s books to be made by a public accountant at the completion of each fiscal year; and shall prepare an annual budget to be presented to the membership at the annual meeting; to cause all Federal and State reports to be prepared; and shall prepare all monthly statements of finance for the Board of Directors.

After taking evidence in the first hearing, the Administrative Law Judge concluded that:

The evidence shows that $49,000.50 was withdrawn from the Association’s account in October 2018 and the same amount was deposited in November 2018, and there is evidence to suggest that the transactions may have been in violation of the law. But Ms. Bartle has not shown by a preponderance of the evidence these transactions violated any of the specific duties of the treasurer that are set forth in Bylaws Article VIII, section 8(d).

Administrative Law Judge Decision at Conclusion of Law No. 5 (underscoring added).

Based on Conclusion of Law No. 5, the Administrative Law Judge ordered that Ms. Bartle’s petition be dismissed.

On October 23, 2019, Ms. Bartle filed with the Department a Rehearing Request asserting that there was error in the admission of evidence. Ms. Bartle specifically referenced documents dated July 5, August 6, and September 13, 2019. Ms. Bartle raised no other issues in her Rehearing Request.

On November 12, 2019, the Association filed with the Department a Response to Request for Rehearing through which it argued to the effect that a rehearing should not be granted because the content of the July 5 and August 6, 2019 letters had been addressed during the discussion at the beginning of the first hearing and the September 13, 2019 letter could not have been considered at the hearing because it was written after the hearing date.

The Department granted Ms. Bartle’s request for rehearing and the matter was convened on January 14, 2020.

Ms. Bartle testified to the effect that laws must have been violated by the withdrawal and redepositing of the $49,000.50 without the Association’s members being provided any notice of these transactions.

CONCLUSIONS OF LAW

The Department of Real Estate has authority over this matter. Ariz. Rev. Stat. Title 32, Ch. 20, Art. 11.

Ms. Bartle bears the burden of proof, and the standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119.

A preponderance of the evidence is:

The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.

Black’s Law Dictionary 1373 (10th ed. 2014).

The Bylaws are a contract between the parties and the parties are required to comply with its terms. See McNally v. Sun Lakes Homeowners Ass’n #1, Inc., 241 Ariz. 1, 382 P.3d 1216 (2016 App.).

Although there is evidence in the record to suggest that the withdrawal and redeposit of the $49,000.50 may have been in violation of the law or otherwise improper, it has not been shown that these transactions violated any of the treasurer’s duties as set out in section 8(d).

Ms. Bartle has not shown by a preponderance of the evidence that Respondent violated Bylaws Article VIII, section 8(d).

Ms. Bartle’s petition should be dismissed and the Respondent be deemed to be the prevailing party in this matter.

ORDER

IT IS ORDERED that Petitioner Mary J. Bartle’s petition is dismissed.

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).

-54864001

001

-137160-45720000Done this day, January 30, 2020.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted to:

Judy Lowe, Commissioner

Arizona Department of Real Estate

100 N. 15th Avenue, Suite 201

Phoenix, Arizona 85007

Mary Bartle

4813 E Westland Rd

Cave Creek, AZ 85331

Nicole Payne, Esq.

Edith Rudder, Esq.

Carpenter, Hazlewood, Delgado & Bolen, PLC

1400 E. Southern Ave., Suite 400

Tempe, AZ 85282

By -54864001

001

-137160-45720000