HOA - ALJDEC decisions

25F-H074-REL · Department of Real Estate - H/C · 2025-12-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of:

Barbara Kunkel

Petitioner

Agua Dulce Homeowners Association

No. 25F-H074-REL

ADMINISTRATIVE LAW JUDGE DECISION

Respondent

HEARING: November 21, 2025

APPEARANCES: Petitioner Barbara Kunkel appeared on her own behalf. Respondent Agua Dulce Homeowners Association was represented by Sean K. Moynihan, Esq.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

EXHIBITS ADMITTED INTO EVIDENCE:

_____________________________________________________________________

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.

On or about July 21, 2025, Petitioner filed a single-issue petition against the Association with the Department. Petitioner tendered $500.00 to the Department with her petition.

On or about October 8, 2025, the Agua Dulce Homeowners Association (“Association”) filed its Answer with the Department whereby it denied all complaint items in the petition.

Per the Notice of Hearing on October 23, 205, the Department referred this matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing on November 21, 2025, regarding the following issue based on Petitioner’s petition:

Petitioner alleges the Respondent of violating ARS §33-1805 by failing to respond to a records request made on June 24, 2025.

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 a member of the Association.

The Association is governed by its Covenants, Conditions, and Restrictions (“CC&Rs”), and overseen by a Board of Directors (“the Board”). The Association is also regulated by Title 33, Chapter 16, Article 1 of the Arizona Revised Statutes (“Ariz. Rev. Stat.”)

Petitioner testified on her own behalf. She testified that on June 25, 2025, and again on June 26, 2025, she e-mailed a request for various records regarding a recall petition as well as all copies of e-mails to and from Cadden personnel and any Association members regarding the recall petitioner.

In addition, Petitioner testified that as of July 7, 2025, she had not received the requested documents and sent a follow up e-mail informing the Association and the management companies that she would be filing a formal Petition with the Department regarding the same.

Jena Carpenter, Community Manager testified on behalf of the Association. Ms. Carpenter testified that Sienna produced all documents it had in its possession from Cadden once it took over as the property management group. In addition, Ms. Carpenter testified that while she believed that Sienna received all of the records from Cadden, it was nonetheless a challenge to obtain the same, and that Sienna may not have received all of the records.

Conclusions of Law

This matter lies within the Department’s jurisdiction. Pursuant to Ariz. Rev. Stat. §§ 32-2102 and 32-2199 et al., 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(D), 32-2199.02, and 41-1092, OAH has the authority to hear and decide the contested case at bar.

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated Ariz. Rev. Stat. § 33-1805.

“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.”

Ariz. Rev. Stat. § 33-1805 provides, in relevant part, as follows:

A. Except as provided in subsection B of this section, all financial and other records of the association shall be made reasonably available for examination by any member or any person designated by the member in writing as the member's representative. The association shall not charge a member or any person designated by the member in writing for making material available for review. The association shall have ten business days to fulfill a request for examination. On request for purchase of copies of records by any member or any person designated by the member in writing as the member's representative, the association shall have ten business days to provide copies of the requested records. An association may charge a fee for making copies of not more than fifteen cents per page.

B. Books and records kept by or on behalf of the association and the board may be withheld from disclosure to the extent that the portion withheld relates to any of the following:

1. Privileged communication between an attorney for the association and the association.

2. Pending litigation.

3. Meeting minutes or other records of a session of a board meeting that is not required to be open to all members pursuant to section 33-1804.

4. Personal, health or financial records of an individual member of the association, an individual employee of the association or an individual employee of a contractor for the association, including records of the association directly related to the personal, health or financial information about an individual member of the association, an individual employee of the association or an individual employee of a contractor for the association.

5. Records relating to the job performance of, compensation of, health records of or specific complaints against an individual employee of the association or an individual employee of a contractor of the association who works under the direction of the association.

C. The association shall not be required to disclose financial and other records of the association if disclosure would violate any state or federal law.

The material facts in this matter are not in dispute.

Petitioner made a proper request for documents on June 25 and 26, 2025. Unfortunately for Petitioner, she was simply the victim of bad timing. The Association switched property management companies from Cadden to Sienna right around the same time, and from the evidence provided, it does not appear that Petitioner received her records. However, this may not be the Association’s fault if Cadden was uncooperative in disclosing the documents to Sienna and/or the Association. Petitioner presented no persuasive evidence that documents existed which were not disclosed. Therefore, Petitioner did not meet her burden of proof in demonstrating that the Association was in violation of Ariz. Rev. Stat. § 33-1805.

ORDER

IT IS ORDERED that Petitioner’s petition is denied.

IT IS FURTHER ORDERED that Petitioner’s request to levy a civil penalty against Respondent is denied.

IT IS FURTHER ORDERED pursuant to Ariz. Rev. Stat. § 32-2199.02(A), Respondent shall not reimburse Petitioner’s filing fee as required by Ariz. Rev. Stat. § 32-2199.01.

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, December 8, 2025.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile December 8, 2025 to:

Susan Nicolson

Commissioner

Arizona Department of Real Estate

[email redacted]

Sean K. Moynihan, Esq

[email redacted]

Barbara G. Kunkel

[email redacted]

By: OAH Staff