AZ DFBLS: Failing to serve the HOA public

How many remember the phrases and guidelines for those seeking public office?  Like:  civil servants, civic duty, civic responsibilities, serving the public.  I don’t see them anymore.  What I see and hear are more along the lines of” “what is my legacy”?, and “how will I be remembered?”

 

A very good example of this failure to understand that government agencies exist to serve the public, and not to get a cushy job, is Arizona’s DFBLS webpage.  Viewing the Arizona’s Dept of Fire, Building an Life Safety’s webpage, http://www.dfbls.az.gov/, reveals a minimalistic approach to serving the public, the people, who seek the protection of the state to avoid financial and physical harm.  For one, there are no email contact addresses to help with obtaining info or to contact the agency.  Is that because they do not want anything in writing? 

 

People have been reporting that only a verbal response is available in regard to the acceptance of HOA complaints.  There is nothing in writing at all about this position adopted by the agency, and ordered by the Director himself.  In fact, it’s hard to find anything on the “home” page with respect to filing HOA complaints that was granted the agency over 2 years ago in Sept. 2006.  Clicking on “Consumer complaints” gets you only a manufactured home complaint page.  No  links to HOA complaints.  This is not surprising given the fact that it’s short statement of purpose of its mission says nothing about HOAs, but includes, “It is also the purpose of the department to establish a procedure to protect the consumer of such products and services”. How about mentioning that it was also granted an additional mission of handling HOA complaints? 

 

Only if the viewer clicks on “Administration” and reads the short last paragraph on that page will he find any info on the HOA complaint process.  The FAQ link takes you directly to the Office of Administrative Hearings (OAH) information site, loaded with very helpful consumer information.  Oh, yes, you can also get the complaint petition downloaded.

 

I understand that the agency will accept HOA complaints and that the OAH will continue to hear them.  But, there is nothing on the DFBLS webpage –  no record at all.  I think this reversal came about as a result of a handful of advocates seeking answers and publicizing the wrongful refusal to hear complaints based on a superior court decision.  Especially publicizing that the agency’s own attorney, the Attorney General, wrote the court opposing the CAI member attorney’s request for a blanket order to prohibit the DFBLS from accepting complaints. 

 

 

The new Arizona legislative session begins in January.  We must obtain reforms to the OAH statute to balance the playing field. 

 

1.  This year’s bills, HB2724 and SB1162, must be re-introduced. 

2.  The right to include the HOA common law decisions contained in the restatement of laws, servitudes must be permitted.

3.  A clarification of the relationship between Title 10’s nonprofit statutes and Title 33’s condo/planned community statutes must clearly point to Title 33 as prevailing in the absence of wording to the contrary in any bill.

 

 

Constitutionality challenge update

CAI lobbyist and HOA attorney Carpenter filed for an order rendering the Judge’s decision in this case to be applied to all cases before Arizona’s OAH.  Here’s the AG’s objection to this order:

 

“The Complaint requested the Court to reverse the final decision of the Administrative Law Judge issued in case no. HO 06-7/029 (Nancy Waugaman v. Troon Village Master Association). The scope of the requested relief was limited to the decision in that matter only. Under A.R.S. § 12-911(E), the Court’s authority is to “affirm, reverse, modify or vacate and remand” the challenged agency decision. The Court’s October 2, 2008, decision is consistent with the scope of review and is limited to a reversal of the final administrative decision in case no. HO 06-7/029. It does not order the injunctive relief proposed by Plaintiff/Appellant that would affect other similar administrative proceedings.”

 

Homeowners are waiting for the Attorney General to appeal that decision.  Homeowner complaints are still not being accepted.

 

Such an action appears frivolous and taking up  the court’s time needlessly.  CAI opposed this year’s SB1162 and HB 2724 that would have imposed penalties on such conduct by any party in an OAH hearing, or in an appeal of such hearing.  The bills were defeated.  See videos at http://youtube.com/hoagov.

For more info, see Superior Court judge declares OAH adjudication as unconstitutional.

ALERT! DFBLS not hearing HOA complaints!

A call to DFBLS resulted in being told that they are no longer accepting HOA complaints based on Judge Downey’s Maricopa Superior Court appeal, Troon Village v.Waugaman, LC2007-000598.

This is ourageous!  Under the statute, DFBLS must hear and accept complaints.  Apparently, the Director is making law, violating the separation of powers (the same that the Judge found had occurred in the Troon case), when he decided that a trial court decision was precedent and binding on all all persons.  The AG’s Office hasn’t even had a chance to file an Appeal.

Stay tuned while we try to get to clarify this matter.

See And Justice For All, except for AZ homeowners filing HOA complaints relating to Feb. 2007 fee increase.

Superior Court judge declares OAH adjudication as unconstitutional

In an appeal* by CAI attorneys of an OAH decision questioning the constitutionality of OAH hearing** HOA complaints, the Superior Court appellate decision said it was a violation of the separation of powers of Art III of the Arizona Constitution, and all other constitutions for that matter.

 

Essentially, relying on the AZ Cactus Wren*** case and its citations of Hancock^ and a California case, McHugh^^, the trial judge said the statute did not grant any regulatory powers over HOAs and, therefore, OAH cannot hear HOA disputes.  Regulation is a prerequisite for executive adjudication, said the judge.  The judge stated that regulation of HOAs was non-existent within the statute.  (DBFLS, under the statute is the actual agency granted powers to hear complaints to be submitted to OAH, in accordance with its powers under the AZ Adm. Procedures Act.)

 

At the same time the judge dismisses any “valid policy reason” for allowing OAH to hear disputes and characterized the statute as simply the parking of adjudication for HOAs within OAH. Such reasons as providing for justice under the Constitution, since the Legislature refused to allow JP courts to hear HOA disputes and denying homeowners the equal protection of the laws, was not her concern.  The judge ignored a justification in the Cactus case, which she explicitly quotes, saying that,

 

“[A]s a practical matter, the Department’s objective of administering compliance with the Act is furthered by inclusion of its hearing officer function. This purpose would be less easily met if matters relating to the Act were left to the judicial process.”  (emphasis added).

  

While Judge Downey cites the burden against constitutionality, she fails to apply it to her decision:

 

The party challenging the constitutionality of a statute bears the burden of overcoming a strong presumption of constitutionality.  Doubts are resolved in favor of upholding a statute against constitutional challenges.

 

What can homeowners expect from this decision?  While it’s not precedent and only applies to this case, the decision has broad application to every case brought before OAH.  CAI/HOA attorneys will respond with, “OAH is exceeding its authority under the constitution” and ask that the case be dismissed.  This decision must be appealed!

 

Doing justice was not the judge’s concern.  Arizona homeowners must write the Attorney General, who had filed a memorandum in the appeal, demanding Appellate Court review of the judge’s decision, in support of justice.

 

 

References

*     Troon Village v.Waugaman, LC2007-000598-001, Maricopa County, October 3, 2008.

**   OAH case number, No. 07F-H067029-BFS (not mentioned in any of the Superior Court filings or judge’s decision, like they do not want anyone to read the ALJ’s basis for his decision).

***  Cactus Wren Partners v. Arizona Dept. of Building & Fire Safety, 177 Ariz. 559, 869 P.2d 1212 (App. Div. 1 1993).

^     J.W. Hancock Enterprises, Inc. v. Arizona State Registrar of Contractors, 690 P.2d 119 (App. 1984).

^^    McHugh v. Santa Monica Rent Control Board,  777 P.2d 91 (1989).