HOA - ALJDEC decisions

22F-H2222038-REL · Department of Real Estate - H/C · 2022-08-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of

Evin Abromowitz

Petitioner

The Meadows Homeowners Association

Respondent

No. 22F-H2222038-REL

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 20, 2022

APPEARANCES: Petitioner Evin Abromowitz appeared on her own behalf. Respondent The Meadows Homeowners Association was represented by Nicholas Nogami.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

The Arizona Department of Real Estate (Department) is authorized by statute to receive and to decide petitions for hearings from members of homeowners’ associations and from homeowners’ associations in Arizona

Respondent is a homeowners’ association whose members own properties in a residential real estate development located in Tucson, Arizona.

Petitioner is a property owner and member of Respondent.

Respondent is governed by its CC&Rs and overseen by a Board of Directors (Board). The CC&Rs empower Respondent to control certain aspects of property use within the development. When a party buys a residential unit in the development, the party receives a copy of the CC&Rs and agrees to be bound by the terms. Thus, the CC&Rs form an enforceable contract between Respondent and each property owner.

On or about April 3, 2012, Respondent’s Amended and Restated CC&Rs were recorded with the Maricopa County Recorder’s Office.

Respondent’s CC&Rs Article Section 3.5, Power to Adopt Rules and Regulations, provides, in pertinent part, as follows:

3.5 Power to Adopt Rules and Regulations. The Association may adopt, amend, repeal and enforce rules and regulations (“Rules and Regulations”) as may be deemed necessary or desirable with respect to the interpretation and implementation of this Declaration, the operation of the Association, the use and enjoyment of Common Area and each of the Parcels. The Rules & Regulations shall be reasonable and uniformly applied.

3.5.1. The Rules & Regulations shall be effective only upon adoption by resolution of the Board of Directors. Notice of the adoption, amendment or repeal of any Rule or Regulation shall be given in writing to each Member at his/her address in the Association’s records, and copies o[f] the currently effective Rules & Regulations shall be made available to each Member upon request and payment of the reasonable expense of copying the same.

3.5.2. Each Member shall comply with the Rules & Regulations and shall see that all persons who are occupants of a Unit shall comply with such Rules & Regulations.

3.5.3. The Rules & Regulations shall have the same force and effect as if they were set forth in and were part of this Declaration. In the event of a conflict between the Rules & Regulations and the provisions of this Declaration, the provisions of this Declaration shall prevail.

Respondent’s CC&Rs Section 3.6, Power to Enforce Declaration and Rules & Regulations, provides, in pertinent part, as follows:

3.6. Power to Enforce Declaration and Rules & Regulations. The Association shall have the power to enforce the provisions of this Declaration and of Rules & Regulations by any lawful remedy or means, and shall take such action as the Board deems necessary or desirable to cause such compliance by each Member and any employee, agent or tenant of such Member.

In June 2021, Respondent adopted a set of Rules and Regulations and Fine Guidelines. The Rules and Regulations had eight sections including the following:

1. Common Areas and Building Exteriors

a. This section concerns conduct on the Association’s Common Area and Residents’ conduct with regards to the exteriors of the buildings within the Association (e.g. rooftops).

2. Vehicles

a. This section concerns vehicle parking and storage within the Association. It contains rules regarding both the Association’s Common Area roadways and Residents’ storage of vehicles on their Lots.

3. Carports

a. This section addresses Residents’ maintenance and use of their carports on their Lots within the Association.

4. Balconies

a. This section addresses Residents’ use and maintenance of the balconies connected to their Lot within the Association.

5. Structures/Buildings

a. This section addresses Residents’ conduct with regards to the insurance on their Unit within the Association and conduct related to installing devices and decorations on their Units.

6. Swimming Pools

a. This section addresses conduct in the Association’s Common Area swimming pool area.

7. Animals

a. This section addresses Residents’ ownership of pets within the Association.

8. Miscellaneous Rules

a. This section concerns several topics, including signs within the Association, window coverings on the buildings within the Association, and water usage within the Association.

The Fine Guidelines applied to violations of the Declaration as well as the Respondent’s Rules. The Guidelines stated, in pertinent part, as follows:

1. No fine shall be assessed until the Member who has committed a violation has been given due written notice and an opportunity for a hearing.

2. Presumptive fines are as follows:

...

O. Harassing/hindering our maintenance staff or HOA Board or our

community manager from doing their work. $100.00.

...

Q. Verbal/Physical Abuse of HOA Board, maintenance staff,

community manager: $500.00.

...

6. The amounts of the: 1) presumptive fines above, 2) other fines, 3) daily fines, and 4) increasing fines of similar violations are mere guidelines. The Board shall have the specific authority to deviate from these guidelines by applying the factors below:

• The seriousness of the violation(s).

• Whether this is a first violation or a continuing violation(s).

• Whether the type of offense poses a danger to property or any person.

• Whether the Owner agrees in good faith to correct the violation(s)

within the time specified by the Board of Directors.

• Whether the amount is sufficient to obtain compliance, based on the facts.

• Impact on property values.

• Any extenuating circumstances including hardship.

The Rules and Fine Guidelines were reviewed and approved by Respondent’s legal counsel and were ultimately duly-adopted by Respondent’s Board of Directors.

On or about December 22, 2021, Petitioner sent an email to Lynn Mader, Respondent’s manager and President, and Jacklyn Connoy, Respondent’s assistant community manager, that stated as follows:

Lynn, take your attitude and your half a brain cell and do us all a favor and jump off a cliff. You’re an asshole and [] liar and not worth a shit! Go fuck yourself you stupid bitch!!!!

On or about January 27, 2022, Petitioner sent an email to Ms. Mader and Ms. Connoy that stated as follows:

And by the way, my dues go towards your salaries, so I expect replies to my emails. I know you both have the maturity levels of 7th graders, but in the real world you are supposed to be 70 some year old professionals. Act like adults please! You are clearly demonstrating you play favorites. Grow up and do your jobs! This isn’t a popularity contest, it’s an HOA – a business.

On or about February 2, 2022, Petitioner sent an email to Ms. Connoy which stated as follows:

You don’t need to act like a jerk. Very unbecoming of a property manager.

That email was followed within minutes by another email to Ms. Connoy which stated as follows:

Oh but wait! My bad! You don’t know how to do your job. So sorry for that mistake!

On or about January 27, 2022, the Association was informed that the Petitioner had interrupted contractors who were performing roof repairs on other Units within the community.

Based the emails and the interruption of the roofing contractors, the Association delivered a violation/fine notice to the Petitioner dated February 7, 2022, which called the Petitioner to a violation hearing regarding the conduct cited above. Specifically, the letter stated as follows:

This is to inform you the Meadows HOA board is calling you to a violation hearing. This is a Zoom meeting to address derogatory emails and interfering with vendors.

Fine Guidelines: No fine shall be assessed until the Member who has committed a violation has been given due written notice and an opportunity for a hearing.

Derogatory comments received via email addressed to Lynn Mader, HOA President/HOA Manager/ADAM LLC. This violation carries a $500.00 fine.

Derogatory comments received via email addressed to Jacklyn Connoy, Owner/ADAM LLC. This violation carries a $500.00 fine.

Hindering a hired vendor from their work at another property in The Meadows. This violation carries a $100.00 fine.

Petitioner did not appear for the hearing on the fines.

On or about March 14, 2022, Petitioner filed a single-issue petition with the Department which alleged that Respondent The Meadows Homeowners Association violated its Covenants, Conditions, and Restrictions (CC&Rs), Section 3.5 and 3.6 with respect to three different violations she had been alleged to have committed and for which she had been fined. In an attached narrative, Petitioner detailed her complaint as follows:

The rules regarding derogatory language cannot be deemed related to the CC&Rs because it is unrelated to the operation of the Association or property.

Violation #1 is unrelated to the property and took place on December 22, 2021, 47 days before the date of the violation letter...

Violation #2 is unrelated to the property. Telling someone they’re acting like a jerk is technically not derogatory.

Violation #3 is false.

The reason I stopped by my building to inquire about the work that was being done there was because I sent Lynn Mader and Jacklyn Connoy an email at 8:55am, and again at 10:12am. This was after I received a message from my tenants about people working on my building. They were asked to move their car. They had no notice of work being done on the property.

After not having received a response from either email from Lynn Mader or Jacklyn Connoy, I emailed both of them at 3:03pm informing them that I spoken with the vendor. The conversation was brief (under 2 minutes). The gentleman was very nice and explained what they were doing, and their work was in no way hindered.

This incident occurred on January 27, 2022, 11 days before the date of the violation letter sent. I received nothing addressing this before then.

The only way Lynn Mader and Jacklyn Connoy knew I interacted with the vendor, according to their evidence, was from an email I sent them telling them about my interaction.

On or about April 5, 2022, Respondent returned its Answer to the Department whereby it denied all complaint items in the petition.

Per the Notice of Hearing, the Department referred this matter to the Office of Administrative Hearings (OAH), an independent state agency, for an evidentiary hearing, regarding the following issue:

Petitioner presents this matter to the court per Petitioner’s claim that Respondent has violated the Amended and Restated Declaration of Covenants, Conditions and Restrictions of Monte Catalina Estates AKA The Meadows (“CC&R”). Petitioner states in her petition that “the violations are not reasonable under the circumstances”, and cites sections 3.5 and 3.6, of the CC&R.

Petitioner testified on her own behalf and presented the testimony of Carolyn Davis, Shannon Kelsey, and Patrick Scott. Respondent presented the testimony of Ms. Mader.

In her own testimony and through the questioning of her witnesses, Petitioner attempted to question the validity of the alleged violations raised in the February 7, 2022 letter from Respondent. Petitioner was reminded that the hearing was not regarding her alleged violations, but her single issue that Respondent had violated Section 3.5 and 3.6 of the CC&Rs through its enactment and enforcement of the rules and regulations.

In Petitioner’s closing, she admitted that Respondent could make rules, but believed that the rules were not properly enforced against her.

In closing, Respondent argued that it was authorized to enact rules and had done so in 2021, when it approved the rules at issue in this matter.

Conclusions of Law

This matter lies within the Department’s jurisdiction pursuant to Ariz. Rev. Stat. §§ 32-2102 and 32-2199 et seq., regarding a dispute between an owner and a planned community association. The owner or association may petition the Department for a hearing concerning violations of community documents or violations of the statutes that regulate planned communities as long as the petitioner has filed a petition with the Department and paid a filing fee as outlined in Ariz. Rev. Stat. § 32-2199.05.

Pursuant to Ariz. Rev. Stat. §§ 32-2199(2), 32-2199.01(A), 32-2199.01(D), 32-2199.02, and 41-1092 et seq. OAH has the authority to hear and decide the contested case at bar. OAH has the authority to interpret the contract between the parties.

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated a community document.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is “[t]he 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.”

Based upon a review of the credible and relevant evidence in the record, Petitioner failed to sustain her burden of proof.

Here, the material facts are clear. Respondent was authorized to enact rules and regulations relating to the operation of the association. The rules at issue in this matter relate to the operation of the association. Further, Respondent was authorized to enforce the rules and regulations it promulgated.

While Petitioner may have wanted to argue that the alleged violations brought against her were not proper, she did not raise that issue in her Petition.

Therefore, the undersigned Administrative Law Judge concludes that, because Petitioner failed to establish a violation of Section 3.5 or 3.6 of the CC&Rs, her petition must be denied.

ORDER

Based on the foregoing,

IT IS ORDERED denying Petitioner’s petition.

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.

-54864001

001

-137160-45720000Done this day, August 22, 2022.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile August 22, 2022 to:

Louis Dettorre, Commissioner

Arizona Department of Real Estate

100 N. 15th Avenue, Suite 201

Phoenix, Arizona 85007

Attn:

[email redacted]

Evin Abromowitz

302 E Citadel Ave

Tucson, AZ 85715

[email redacted]

Nicholas Nogami, Esq.

Carpenter Hazlewood Delgado & Bolen, LLP

1400 E Southern Ave., Suite 400

Tempe, AZ 85282-5691

[email redacted]

By: Miranda Alvarez

Legal Secretary