ALJDEC decisions subject to certification as final

19F-H1919071-REL · Department of Real Estate - H/C · 2019-09-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 9, 2019 APPEARANCES: Petitioner Thomas J. Van Dan Elzen appeared on behalf of himself. Augustus Shaw, Esq. appeared on behalf of Respondent Carter Ranch Homeowners Association. ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson _____________________________________________________________________ FINDINGS OF FACT 1. On July 16, 2019, the Arizona Department of Real Estate (Department) issued a Notice of Hearing setting the above- captioned matter for hearing on September 9, 2019 at the Office of Administrative Hearings in Phoenix, Arizona. 2. The Notice of Hearing shows that Petitioner Thomas J. Van Dan Elzen alleges that Respondent Carter Ranch Homeowners Association (Carter Ranch) violated Arizona Revised Statutes § 33-1808. 3. Mr. Van Dan Elzen appeared and testified on his own behalf. Carter Ranch was represented by counsel but presented no witnesses. 4. On or about June 14, 2019, Mr. Van Dan Elzen filed with the Department the petition that gave rise to this matter. 5. Mr. Van Dan Elzen displayed a Trump 2020 flag on flagpole in his front yard. 6. On or about May 21, 2019, Carter Ranch notified Mr. Van Dan Elzen that he violated Carter Ranch Association Rules by displaying the Trump 2020 flag in his front yard. 7. Carter Ranch Association Rules and Regulations prohibit flying any flag in Carter Ranch other than the American Flag, an official replica of a flag of the United States Army, Navy, Air Force, Marine Corps or Coast Guard, a POW/MIA flag, Arizona Indian National flag, Arizona State flag, and the Gadsden Flag (Flag Display Rule). 8. Article V, Section 5.3 of the Carter Ranch Covenants, Conditions and Restrictions (CC&Rs) provides, in relevant part, as follows: The Board may, from time to time, adopt, amend nad repeal rules nad regulations pertaining to: (i) the management, operation and use of the Areas of Association Responsibility including, but not limited to, any recreational facilities situated upon the Areas of Association Responsibility; (ii) minimum standards for any maintenance of Lots (iii) the health, safety or welfare of the owners, Lessees and Residence, or (iv) restrictions on the use of Lots… The association Rules shall be enforceable in the same manner as to the same extend as the covenants, conditions and restrictions set forth in this Declaration.

9. At hearing, Mr. Van Dan Elzen asserted that because the CC&Rs do not specifically mention the word “flag”, Carter Ranch’s Rules and Regulations are invalid because Rules and Regulations can only be based on the CC&Rs. 10. Carter Ranch asserted that the petition should be dismissed because Mr. Van Dan Elzen did not allege that Carter Ranch violated any statute or provision of its governing documents. Moreover, Carter Ranch argued that it was authorized under CC&R Article V, Section 5.3 to adopt the Flag Display Rule. CONCLUSIONS OF LAW 1. At this proceeding, Petitioner bear the burden of proving by a preponderance of the evidence that Respondent violated A.R.S. § 33-1808. See A.A.C. R2-19-119. 2. 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). 3. A.R.S. § 33-1808, at all relevant times, provided in pertinent part: A. Notwithstanding any provision in the community documents, an association shall not prohibit the outdoor display of any of the following:

1. The American flag or an official or replica of a flag of the United States army, navy, air force, marine corps or coast guard by an association member on that member's property if the American flag or military flag is displayed in a manner consistent with the federal flag code (P.L. 94-344; 90 Stat. 810; 4 United States Code sections 4 through 10).

2. The POW/MIA flag.

3. The Arizona state flag.

4. An Arizona Indian nations flag.

5. The Gadsden flag.

C. Notwithstanding any provision in the community documents, an association shall not prohibit the indoor or outdoor display of a political sign by an association member on that member's property, except that an association may prohibit the display of political signs earlier than seventy-one days before the day of an election and later than three days after an election day. An association may regulate the size and number of political signs that may be placed on a member's property if the association's regulation is no more restrictive than any applicable city, town or county ordinance that regulates the size and number of political signs on residential property. If the city, town or county in which the property is located does not regulate the size and number of political signs on residential property, the association shall not limit the number of political signs, except that the maximum aggregate total dimensions of all political signs on a member's property shall not exceed nine square feet. For the purposes of this subsection, "political sign" means a sign that attempts to influence the outcome of an election, including supporting or opposing the recall of a public officer or supporting or opposing the circulation of a petition for a ballot measure, question or proposition or the recall of a public officer.

4. Petitioner had not established that the Association improperly adopted the Flag Display Rule under its CC&Rs. 5. Moreover, Petitioner has not alleged that Carter Ranch violated A.R.S. § 33-1808. 6. Mr. Van Dan Elzen’s petition should be dismissed and the Respondent be deemed to be the prevailing party in this matter. ORDER IT IS ORDERED that Petitioner Thomas J. Van Dan Elzen’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, September 30, 2019.

/s/ Velva Moses-Thompson Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner Arizona Department of Real Estate

Transmitted through US Mail to:

Thomas J. Van Dan Elzen 1217 W. Central Ave. Coolidge, AZ 85128

Dustin Snow SNOW PROPERTY SERVICES 4135 S POWER RD, #122 MESA, AZ 85212

Augustus H. Shaw IV Shaw & Lines LLC 4523 E Broadway Rd. Phoenix, AZ 85040

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