ORDER

22F-H2221012-REL · Department of Real Estate - H/C · 2021-11-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Mead Summer,

Petitioner,

The Pinnacle at Desert Peak Condominium Association,

Respondent.

No. 22F-H2221012-REL

ORDER GRANTING

MOTION TO DISMISS

Pending before the Office of Administrative Hearings is The Pinnacle at Desert Peak Condominium Association’s (“Respondent”) October 26, 2021 Motion to Dismiss. Mead Summer (“Petitioner”) has not filed a response thereto.

The issue noticed for hearing by the Arizona Department of Real Estate and as set forth in Petitioner’s Petition, is: “[t]he Pinnacle at Desert Peak HOA Board of Directors has initially approved the construction of a dog park in the community. We believe that sections 4.10 (‘Animals’) of the Pinnacle at Desert Peak CC&Rs prohibits a dog park.”

Article 4, Section 4.10 of the CC&Rs states in relevant part:

Animals. ... All dogs or other house pets permitted hereunder and capable of being walked on a leash shall be kept on a leash not to exceed 6 feet in length when outside a Residential Dwelling or Private Yard, and all pets shall be directly under a Resident's control or direction at all times. No Unit Owner, Lessee, or other Resident or their respective Invitees shall permit any such pet being kept in the Unit to relieve itself on any portion of the Common Elements; it being understood that it shall be the responsibility of such Person to immediately remove any droppings from pets. No structure for the care, housing, confinement, or training of any animal or pet shall be maintained on any portion of the Common Elements or in any Unit so as to be Visible from Neighboring Property.

If Petitioner prevails in this matter, Petitioner is limited to the relief set forth in A.R.S. § 32-2199.02(A), which provides:

The administrative law judge may order any party to abide by the statute, condominium documents, community documents or contract provision at issue and may levy a civil penalty on the basis of each violation. . . . If the petitioner prevails, the administrative law judge shall order the respondent to pay to the petitioner the filing fee required by section 32-2199.01.

It appears from a review of Petitioner’s Petition, that Petitioner is seeking injunctive relief to prevent Respondent from constructing a dog park. Petitioner’s Petition is prospective and speculative as Petitioner has not alleged that Respondent has committed an actual violation of the cited provision of the CC&Rs. This is not the appropriate forum to seek injunctive relief to prevent a possible future occurrence or a potential violation. This is not to say that Petitioner may not seek relief in an appropriate forum.

Because the Petition is not ripe for adjudication,

IT IS ORDERED GRANTING Respondent’s Motion to Dismiss.

NOTICE

Pursuant to A.R.S. §32-2199.02(B), this Order is binding on the parties unless a rehearing is granted pursuant to A.R.S. § 32-2199.04. Pursuant to A.R.S. § 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, November 3, 2021.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile November 3, 2021 to:

Louis Dettorre, Commissioner

Arizona Department of Real Estate

100 N. 15th Avenue, Suite 201

Phoenix, Arizona 85007

Attn:

[email redacted]

Alexis G. Firehawk, Esq.

Nicole Payne, Esq.

CARPENTER, HAZLEWOOD,

DELGADO & BOLEN, LLP

1400 East Southern Avenue, Suite 400

Tempe, Arizona 85282-5691

[email redacted]

Mead Summer

2725 E Mine Creek Road #1109

Phoenix, AZ 85024

[email redacted]

By c. serrano