Minute Entry Continuance

23F-H039-REL · Department of Real Estate - H/C · 2023-08-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Michael Holland,

Petitioner,

Tonto Forest Estates Homeowner's Association,

Respondent.

No. 23F-H039-REL

ORDER REGARDING MOTIONS, GRANTING CONTINUANCE, SETTING DISCLOSURE

PETITION

On or about January 21, 2023, Petitioner filed his Petition with the Arizona Department of Real Estate. The Petition states, in pertinent part:

On September 28, 2022, the TFE association board held an open meeting. The TFE association board did not video or audio record this meeting. At that meeting, the TFE association board PROHIBITED any and all homeowners participating in that open meeting from recording that open meeting. ... Furthermore, the TFE association board FORCED any and all members currently recording the open meeting to STOP RECORDING. Forcing homeowners to stop recording an open board meeting (that is not being recorded by the association) is also contrary to A.R.S. [Section] 33-1804(A). This was neither a closed nor emergency meeting.

ARS Section 33-1804(A) provides, in pertinent part:

Persons attending may audiotape or videotape those portions of the meetings of the board of directors and meetings of the members that are open. The board of directors of the association shall not require advance notice of the audiotaping or videotaping and may adopt reasonable rules governing the audiotaping and videotaping of open portions of the meetings of the board and the membership, but such rules shall not preclude such audiotaping or videotaping by those attending, unless the board audiotapes or videotapes the meeting and makes the unedited audiotapes or videotapes available to members on request without restrictions on its use as evidence in any dispute resolution process. Any portion of a meeting may be closed only if that closed portion of the meeting is limited to consideration of one or more of the following:

1. Legal advice from an attorney for the board or the association. ...

PROCEDURAL BACKGROUND

After the matter was noticed for hearing, the matter was continued and reset for administrative hearing to convene on May 25, 2023 by Order dated March 9, 2023.

On March 28, 2023, the Tribunal had issued an ORDER denying Respondent’s Motion to Dismiss the matter, indicating that Petitioner’s Petition had raised a valid issue, pursuant to A.R.S. Section 33-1804, regarding whether Respondent had improperly prevented members in attendance at a Board meeting from recording the meeting.

This matter was subsequently reset for administrative hearing to convene on August 8, 2023 by ORDER dated May 24, 2023.

FILINGS

The parties have made the following series of filings:

Petitioner’s May 19, 2023 motion to continue;

Respondent’s May 24, 2023 hearing memorandum with one exhibit attached;

Respondent’s July 21, 2023 list of witnesses and exhibits;

Petitioner’s July 28, 2023 motion to amend the caption to include the property owner’s joint owner;

Petitioner’s July 30, 2023 list of witnesses and exhibits;

Petitioner’s July 30, 2023 motion to accept as timely his disclosure based on mistakenly calendared the disclosure date;

Respondent’s August 1, 2023 motion to continue, indicating counsel was out of state at the time and unavailable to address any issues or Petitioner’s filings prior to the August 8, 2023 hearing;

Respondent’s August 1, 2023 motion, filed by an associate, contained multiple counter motions and arguments: argument regarding timeliness of Petitioner’s July 28, 2023 and July 30, 2023 filings; objection to amend the parties; objection to accept Petitioner’s disclosure as timely; motion to produce documents by a date certain so both parties may effectively prepare for the hearing; and motion to exclude irrelevant and redundant evidence.

Petitioner’s August 2, 2023 stipulation for a continuance;

Petitioner’s August 6, 2023 response to Respondent’s August 1, 2023 motions;

Respondent’s August 8, 2023 response to Petitioner’s August 6, 2023 response;

Petitioner’s August 9, 2023 motion for summary judgment, arguing therein that Respondent had appropriately specified the issue for hearing to be:

The Petition is limited to the sole issue of whether Respondent, Tonto Forest Estates, properly closed a portion of its September 2022 Board Meeting.

Petitioner’s August 9, 2023 filing of a recording of the September 28, 2022 meeting;

Respondent’s August 22, 2023 filing of a response to Petitioner’s August 9, 2023 motion for summary judgment;

Petitioner’s August 24, 2023 motion to strike a Declaration by Kurt Meister; and

Petitioner’s August 24, 2023 filing of an additional recording from September 28, 2022.

____________________________________

CONTINUANCE

On August 3, 2023, the Tribunal advised the parties that the August 8, 2023 hearing would be continued and that a new date would be issued. Due to the size of the hearing calendar, the Tribunal was unable to calendar a slot for a pre-hearing conference to take the place of this ORDER. Therefore, at the request of Respondent, cause appearing,

IT IS ORDERED the administrative hearing in the above-entitled matter is continued to convene on September 29, 2023 at 9:00 A.M. at the Tribunal offices unless a party requests that the hearing be conducted virtually by telephone or videoconference; the case is calendared until Noon.

IT IS FURTHER ORDERED, based on the more recent filings, Respondent’s motions objecting to amend the parties and objecting to accept Petitioner’s disclosure as timely are now moot, given the additional information Petitioner apparently provided to Respondent and due to the motion to continue the matter (with its request to set a new disclosure date).

IT IS FURTHER ORDERED Respondent’s motion to continue is moot, the Tribunal granting the motion herein.

IT IS FURTHER ORDERED the parties’ disclosure of any additional or supplemental witness list and exhibits is due no later than August 15, 2023.

IT IS FURTHER ORDERED the issue for hearing is as set forth in the Petition and the Notice of Hearing, i.e., whether:

Petitioner bears the burden of proof to demonstrate facts in support of his allegations. Both parties shall present for consideration only relevant evidence and testimony regarding the September 28, 2022 meeting. The Tribunal will apply A.R.S. Section 33-1804(A) to the relevant facts to make its determination.

ORDERED this day, August 27, 2023.

/s/ Kay Abramsohn

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Susan Nicolson, Commissioner

Arizona Department of Real Estate

Attn:

[email redacted]

John A. Buric

Warner Angle Hallam Jackson & Formanek PLC

[email redacted]

Michael Holland

Linda L. Holland

[email redacted]

By: OAH Staff