HOA - ALJDEC decisions

24F-H051-REL · Department of Real Estate - H/C · 2025-07-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Michele Beauchamp,

Petitioner,

The Villages at Rio Paseo Condominium Association,

Respondent.

No. 24F-H051-REL

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: May 14, 2025. Record closed June 30, 2025.

APPEARANCES:

For Petitioners: Michele Beauchamp.

For Respondents: Madeline Gegg.

ADMINISTRATIVE LAW JUDGE: Samuel Fox

EXHIBITS ADMITTED INTO EVIDENCE: Files provided by the Department of Real Estate. Petitioners’ Exhibits 2a, 3a, 3b, 12, 16, 17, 42a, 43g, 46c. Respondent’s Exhibits 1.

_____________________________________________________________________

FINDINGS OF FACT

The Villages at Rio Paseo Condominium Association (Respondent) is a condominium association in Goodyear, Arizona.

Michele Beauchamp (Petitioner) owns a home located at 14870 W. Encanto Blvd., Unit 2123, and is a member of Respondent.

On or about May 3, 2024, Petitioner filed a one-issue Petition with the Arizona Department of Real Estate (Department), alleging that Respondent had violated the following:

Planned Community Statutes, ARS 33-1213, ARS 33-1242(A)(1)(6)(13),(C)(3)(4),(D), ARS 33-1248(A)(E)(4)(F), ARS 33-1258;

Bylaws Article 1, Section 1.8, Article 3, Section 3.5, 3.10, 3.10.7, 3.10.12, 3.10.17, 3.10.19, Article 4, Section 4.8, 4.8.1; and

CC&Rs Article IV, Statute 4.1, Article VI, Statutes 6.3, 6.5, Article XV, Statutes 15.3, 15.4.

The alleged violation was described as follows:

The Villages at Rio Paseo Condominiums, Association (through its Board and any committees) is in breach of contract by violating its own rules and procedures in the (condominium documents) set for board members, owners and residents; to use unauthorized Association funds to illegally modify the declaration to established a “Board, Committee Member, and Meeting Conduct Code of Conduct” document with a incomplete (DocuSign) “Unanimous Consent to Action” document to issue a illegal violation and fine on a board Director.

On July 11, 2024, the Tribunal issued an Order clarifying that only one issue could be addressed at the hearing. The Tribunal allowed Petitioner until July 23, 2024, to identify which issue she wanted to proceed with; otherwise, the issue for hearing would be whether the violation and associated fine placed upon Petitioner were proper.

At the hearing on May 14, 2025, the parties were notified that only one issue would be addressed at the hearing unless Petitioner wanted to file petitions for additional issues with the Arizona Department of Real Estate. The parties declined a continuance and the hearing proceeded.

The issue was agreed to be Petitioner’s alleged violation of the Respondent’s code of conducted based on Petitioner’s conduct at a board meeting on December 14, 2020.

The parties agreed that Respondent’s code of conduct was not properly enacted prior to January 2025; accordingly, it was not properly effective in December 2020.

Complainant believed she was being mistreated and sought to clear her name from the alleged violation.

Respondent argued that although it did have a basis for the notice of violation of the code of conduct, the fine associated with the alleged violation was waved and the issue was moot.

CONCLUSIONS OF LAW

A.R.S. § 32-2199 authorizes the administrative law judge to “adjudicate complaints regarding and ensure compliance with . . . [t]itle 33, chapter 9 and condominium documents.”

A.R.S. § 32-2199.01 permits a member of a condominium association to file a petition with the Department for a hearing concerning the association’s alleged violations. This matter lies within the Department’s jurisdiction. That statute provides that such petitions will be heard before the Office of Administrative Hearings.

A.R.S. § 32-2199.02 authorizes the administrative law judge to “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.” This Tribunal is not authorized to order other remediation or order civil penalties for other conduct.

Petitioners bear the burden of proof to establish that Respondent violated applicable statutes, CC&Rs, and/or Bylaws by a preponderance of the evidence. Respondent bears the burden to establish affirmative defenses by the same evidentiary standard. “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.”

The preponderance of the evidence established that Respondent’s code of conduct was not properly enacted in December 2020. Accordingly, the Petitioner met her burden to demonstrate that notice of violation was not appropriately issued to Petitioner.

A violation is not nullified by the removal of a fine. Respondent’s argument that the violation was moot because the fine was removed was not compelling.

order

IT IS ORDERED that Petitioner be deemed the prevailing party in this matter regarding Petition Issue 1.

IT IS ORDERED that Respondent pay Petitioner the filing fee of $500.00, to be paid directly to Petitioners within thirty (30) days of this Order.

IT IS ORDERED Respondent is directed to comply with the requirements of its Community Documents going forward.

No Civil Penalty is found to be appropriate in this matter.

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, July 18, 2025.

/s/ Samuel Fox

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile July 18, 2025 to:

Susan Nicolson, Commissioner

Arizona Department of Real Estate

[email redacted]

Michele Beauchamp

[email redacted]

Beth Mulcahy, Esq.

Mulcahy Law Firm, PC

[email redacted]

By: OAH Staff