HOA - ALJDEC decisions

25F-H081-REL · Department of Real Estate - H/C · 2026-02-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of:

Joseph Allan,

Petitioner

vs.

The Springs Condominium Association

Respondent.

No. 25F-H081-REL

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 16, 2025

APPEARANCES: Joseph Allan (Mr. Allan) appeared on behalf of himself.

John Calgamone (Mr. Caldamone) appeared on behalf of The Springs Condominium Association (Association).

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

EXHIBITS ADMITTED INTO EVIDENCE: None.

_____________________________________________________________________

FINDINGS OF FACT

Mr. Allan owns a home located at 12221 West Bell Road, Unit 233 in Surprise, Arizona.

Mr. Allan received the Association’s 2023 tax return and audit.

See Mr. Allan’s testimony on Hearing Audio Record 1 at 5:00 to 20:00 minutes].

Mr. Allan discovered that a $15,240 tax refund was not on the Association’s 2023 tax return. See id.

On November 22, 2024, Mr. Allan submitted a request for copies of a check, deposit, receipt, and documentation for the 2022 tax refund, totaling $15,000,

to several members of the Association’s Board, including Mr. Caldamone.

See Mr. Allan’s testimony on Hearing Audio Record 1 at 5:00 to 20:00 minutes.

Mr. Allan believed that the 2022 tax refund had not been reported on the Association’s financial records since October of 2022. See id. Mr. Allan did not submit the request to the Association’s property management company.

After Ms. Guzman, the owner of the property management company, received Mr. Allan’s request, she provided Mr. Allan with a copy of a letter from the Internal Revenue Service (IRS) that she found in the Association’s tax file.

See Ms. Guzman’s testimony on the Hearing Audio Record 1 at 15:00 to 25:00 minutes. The letter, dated November 4, 2023, provided that for the tax year ending December 31, 2023, a total of $15,199.00 would be applied to the next tax period. On July 28, 2025, Ms. Guzman provided the letter in an email that included the following message:

As we have explained to you, Butler and Hansen are handling the contact with the IRS because they conducted the audit to the prior year and they prepare the following tax year filing. They're the responsible party and until they provide a response, there's no further information to report. In the meantime, I sent you the letter that I found The letter you received came directly from the association's tax file. It was not fabricated. You continue to demand letters that simply do not exist.

You have been told that you are welcome to make appointments to inspect the records in person to see for yourself which in hand. You have not done so if you are questioning which records are truly in the file. You should make an appointment to view the records. You reside on the property and records office is on the property. We will provide the information when Butler and Hansen provides sending us repeated emails of this letter that does not exist will not create the records or...

[See id].

On or about August 29, 2025, Mr. Allan filed a petition with the Arizona Department of Real Estate alleging that the Association violated Ariz. Rev. Stat. § 33-1258, when it failed to fulfill his request for records.

The petition was referred to the Office of Administrative Hearings for an evidentiary hearing.

A hearing was held on January 16, 2025.

At hearing, Mr. Allan testified on behalf of himself. The Association presented the testimony of Ms. Guzman and Mr. Caldamone, the Board’s Treasurer.

Mr. Allan asserted that he did not receive any documentation regarding how the Association handled the 2022 tax refund.

There was no evidence presented at hearing that the Association adopted a written rule requiring that members submit record requests to the property management company.

Ms. Guzman stated at hearing that the Association has been treating an approximately $15,000 refund as a rolling credit for almost seven years. Ms. Guzman stated that the Association has not received a check for the refund, because it requested to have the refund treated as a credit to avoid future penalties. See the Hearing Audio Record 1 at 10:00 to 42:00 minutes.

Ms. Guzman stated at hearing that the Association recently requested a refund check from the IRS, however, a check has not been provided. The IRS responded with a letter requesting additional information from the Association. See

Ms. Guzman’s testimony on the Hearing Audio Record 1 at 10:00 to 42:00 minutes.

Mr. Allan offered no evidence to refute Ms. Guzman’s assertion that the Association has not received a check for the 2022 tax refund.

CONCLUSIONS OF LAW

Ariz. Rev. Stat. § 32-2199(1) permits a condominium unit owner

to file a petition with the Department for a hearing concerning the condominium association’s alleged violations of the Condominium Act set forth in Title 33, Chapter 9. This matter lies within the Department’s jurisdiction.

Mr. Allan bears the burden of proof to establish that The

Association violated Ariz. Rev. Stat. § 33-1258 by a preponderance of the evidence. The Association 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.”

4. Ariz. Rev. Stat. § 33-1258 (A) provides:

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.

Mr. Allan failed to establish that the Association was in

possession of records of how the 2022 tax refund was handled.

The Administrative Law Judge concludes that Mr. Allan has not

met his burden to establish, by a preponderance of the evidence, that the Association violated Ariz. Rev. Stat. § 33-1258.

Accordingly, Mr. Allan’s petition should be dismissed.

order

IT IS ORDERED that the Associaion be deemed the prevailing party in this matter.

IT IS FURTHER ORDERED that the petition is dismissed.

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, February 5, 2026.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile February 5, 2026 to:

Susan Nicolson

Commissioner

Arizona Department of Real Estate

Belen Guzman

[email redacted]

Joseph Allan

[email redacted]

By: OAH Staff