ALJDEC decisions subject to certification as final
19F-H1919070-REL · Department of Real Estate - H/C · 2019-12-02
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Mangus (AKA Gary) L.D. MacLeod Grantor and Trustee,
Petitioner,
vs.
Mogollon Airpark, Inc.,
Respondent.
No. 19F-H1919070-REL
ADMINISTRATIVE LAW JUDGE
DECISION
HEARING: October 23 and November 14, 2019
APPEARANCES: Mangus MacLeod for Petitioner; Gregory Stein, Esq. for Respondent
ADMINISTRATIVE LAW JUDGE: Thomas Shedden
FINDINGS OF FACT
On July 22, 2019, the Arizona Department of Real Estate issued a Notice of Hearing setting the above-captioned matter for hearing on September 16, 2019 at the Office of Administrative Hearings in Phoenix, Arizona.
The matter was continued and the hearing was conducted on October 23 and November 14, 2019.
Petitioner Mangus L.D. MacLeod Granter and Trustee alleges that Respondent Mogollon Airpark, Inc. violated Ariz. Rev. Stat. section 33-1805 in a single issue petition.
Mr. MacLeod appeared and testified; Respondent presented the testimony of Board president Craig Albright.
On April 13 and May 3, 2019, Mr. MacLeod made requests to examine and make copies of records dating from 2017 for four CDs held by Respondent.
Through a petition he filed on June 12, 2019, Mr. MacLeod alleges that Respondent did not comply with his requests. Respondent asserts that it provided Mr. MacLeod with all records in its possession that were responsive to his requests.
After Respondent received Mr. MacLeod’s first request, Mr. Albright contacted Respondent’s treasurer to determine what records were responsive to the request. Mr. Albright also contacted three banks in an effort to obtain records that might be responsive to Mr. MacLeod’s first request.
Two of the banks emailed information to Mr. Albright, but the third would not. Mr. Albright sent this information to Brian Dye, Community Manager with HOAMCO, Respondent’s management company.
By email on April 22, 2019, Mr. Dye sent to Mr. MacLeod the newly acquired records and the records that Respondent already had in its possession.
On April 22, 2019, Mr. MacLeod emailed Mr. Dye stating that Respondent had not complied with his request because he wanted the “history trail” for the CDs. Mr. Dye responded, informing Mr. MacLeod that neither HOAMCO nor Respondent had 2017’s records in hardcopy or electric format and that there were no records to fulfil his request. Mr. Dye suggested that Mr. MacLeod contact the banks directly.
Mr. MacLeod responded asserting that the records must be ready for review by the following Friday, and that it was the Respondent’s responsibility to get the records from the banks.
The parties were working cooperatively with Respondent trying to obtain for Mr. MacLeod records that were responsive to his requests and continued to do so while the matter was pending at the Office of Administrative Hearings.
Mr. MacLeod filed the petition at issue on June 12, 2019.
In June 2019 Mr. Albright accompanied Mr. MacLeod to several banks and had records produced for Mr. MacLeod.
Although Mr. Albright was confused on the first day of hearing, on the second day he gave credible testimony that on April 22, 2019 Respondent provided Mr. MacLeod with all the records it had that were responsive to his first request.
Mr. Albright’s confusion related to Respondent’s Exhibit 11, which is the documents that Mr. Dye emailed to Mr. MacLeod on April 22nd. Those records included the documents that Respondent had in its possession when Mr. MacLeod made his first request and the documents that Mr. Albright solicited from Respondent’s banks in April 2019.
On the first day, Mr. Albright did not recall that he had received records from the banks in April and he thought those documents had been obtained in June when he and Mr. MacLeod went to the banks.
Mr. MacLeod had entered into evidence Respondent’s records retention policy and he testified as to his opinion that the “core” issue in this matter is whether “other records” as used in Ariz. Rev. Stat. section 33-1805(A) includes all records listed in that retention policy regardless of whether Respondent actually has those records.
Mr. MacLeod argues that Ariz. Rev. Stat. section 33-1805(A) requires Respondent to obtain records that it does not have, for example, the bank records that Respondent obtained for Mr. MacLeod in June, if a member requests copies of those records.
Mr. MacLeod acknowledged that he could not identify any records that were responsive to his requests that were in the possession of Respondent when he made those requests. Mr. MacLeod argued to the effect that the records he was requesting would be required for a proper audit to be conducted.
CONCLUSIONS OF LAW
The Department of Real Estate has authority over this matter. Ariz. Rev. Stat. Title 32, Ch. 20, Art. 11.
Mr. MacLeod 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).
Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona; see also State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.").
The tribunal may not expand or extend a statute to include that which is not within its provisions. State ex rel. Morrison v. Anway, 87 Ariz. 206, 349 P.2d 774 (1960).
“Substantial evidence is evidence which would permit a reasonable person to” conclude that the proposed finding should be substantiated. See Sierra Club – Grand Canyon Chapter v. Ariz. Corp. Comm’n, 237 Ariz. 568, ¶ 22, 354 P.3d 1127 (2015 App.)(citing In re Estate of Pouser, 193 Ariz. 574, 579, ¶ 13, 975 P.2d 704 (1999).
Ariz. Rev. Stat. section 33-1805(A) provides that:
Except as provided in subsection B of this section, all financial and other records of the association shall be made reasonably available for examination.... The association shall have ten business days to fulfill a request for examination. On request for purchase of copies of records ..., the association shall have ten business days to provide copies of the requested records.
The preponderance of the evidence shows that Respondent provided Mr. MacLeod with copies of all records it had that were responsive to his first request. Mr. MacLeod did not present substantial evidence to show that Respondent failed to comply with his second request.
Mr. MacLeod’s assertion that Respondent was required to obtain and produce records that it does not have is not a fair and sensible reading of Ariz. Rev. Stat. section 33-1805(A), and it would require the tribunal to expand the statute to include a requirement that is not within its expressed provisions.
Consequently, Mr. MacLeod has not met his burden to show that the Association violated Ariz. Rev. Stat. section 33-1805(A), and his petition should be dismissed.
ORDER
IT IS ORDERED that Petitioner Mangus L.D. MacLeod Granter and Trustee’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 2, 2019.
/s/ Thomas Shedden
Thomas Shedden
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile December 2, 2019 to:
Judy Lowe, Commissioner
Arizona Department of Real Estate
100 N. 15th Avenue, Suite 201
Phoenix, Arizona 85007
Mangus (AKA Gary) L.D. MacLeod
Grantor and Trustee
2796 Cougar LN
PO Box 673
Overgaard, AZ 85933
Gregory A Stein
Carpenter, Hazlewood, Delgado & Bolen LLP
1400 E Southern Ave., Suite 400
Tempe, AZ 85282-5691
By Felicia Del Sol