ORDER

20F-H2019003-REL · Department of Real Estate - H/C · 2019-10-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Pending before the Office of the Administrative Hearings is Respondent Cimarron Hills at McDowell Mountain Homeowners Association’s Motion To Dismiss Pursuant to A.R.S. § 32-2199.01(C) (Motion). Petitioner has not filed a response to Respondent’s Motion. At issue in the filing is whether the Petition alleged a dispute between a homeowner’s association and its member that falls within the jurisdiction of the Arizona Department of Real Estate, and thereby, the Office of Administrative Hearings. A.R.S. § 32-2199.01 permits a homeowner to file a petition with the Department for a hearing concerning the homeowner association’s alleged violations of the Planned Community Act set forth in Title 33, Chapter 16. This matter lies within the Department’s jurisdiction. That statute provides that such petitions will be heard before the Office of Administrative Hearings Arizona statute establishes the jurisdiction of the Office of Administrative Hearings to hear disputes between owners and planned community associations as follows:

For a dispute between an owner and a . . . planned community association that is regulated pursuant to title 33, chapter 9 or 16, the owner or association may petition the department for a hearing concerning violations of . . . planned community documents or violations of the statutes that regulate . . . planned communities. The petitioner shall file a petition with the department and pay a filing fee in an amount to be established by the commissioner. The filing fee shall be deposited in the condominium and planned community hearing office fund established by section 32-2199.05. On dismissal of a petition at the request of the petitioner before a hearing is scheduled or by stipulation of the parties before a hearing is scheduled, the filing fee shall be refunded to the petitioner. . . .

A.R.S. § 32-2199.01(A) (emphasis added). As the provisions Petitioner cited in the Petition reference obligations and duties of homeowners, and not Respondent, Petitioner failed to set forth an alleged violation, by Respondent, that can be addressed in this venue. Furthermore, because Petitioner did not provided any provisions of the Association Declaration or applicable statutes that would allow him to pursue an enforcement action in this venue, this matter must be dismissed. IT IS ORDERED granting the Respondent’s Motion and dismissing the Petition. Done this day, October 2, 2019.

/s/ Antara Nath Rivera Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile October 2, 2019 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]

Will Schreiber 11551 E Caribbean Lane Scottsdale, AZ 85255

Mark K. Sahl, Esq. Nicholas C.S. Nogami, Esq.g CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP 1400 E. Southern Ave, Suite 400 Tempe, AZ 85282

By c. serrano -----------------------

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