Does the legislature want to solve the HOA problem?
Submitted as a Commentary to the Arizona Capitol Times
May 27, 2002
Another year has gone by and still the Arizona Legislature has failed to deal with the horror stories involving rogue homeowner associations. The two main bills, sponsored by Sen. Gerard and Rep. Voss, both failed to address the heart of the problem: unregulated HOA boards that abuse homeowners and operate outside the laws of the land. The press has referred to these reform bills as “middle ground”, “a first step”, “baby steps”, “baby reforms” and after the demise of the combined reforms into HB2604, a “consumer bill”.
These bills were not middle ground, but just that -- baby steps. Citizens expect adult solutions to adult problems from their elected representatives and not childish solutions. The bills followed from last year’s SB 1368 which arose out of the failings of the HOA Study committee of 2000, with some changes, but avoided any substantial redress of grievances. The legislators have ignored many materials provided to them in support of the homeowner advocates’ positions from political scientists; from research reports in CAI publications disputing CAI’s own statements to the legislators; and US and state Supreme Court and Appeals cases reflecting on questions of constitutionality of certain HOA functions and powers.
Requests sent to the legislative leaders asking that they fund an independent and unbiased research study, by a bona fide and respected “think tank”, went unanswered.
There has been a recent case in the US 9th Circuit Court stating that “state actors” cannot deny citizens their civil rights. And the US Supreme Court had ruled that private corporations exercising public functions, or to whom the state gives support with its coercive powers or encouragement, are “state actors”. Everyone will agree that HOAs fit well into this classification and cannot, therefore, deny homeowners their civil liberties.
At the March 25th meeting of the House Commerce & Economic Development Committee, during a discussion of HB2604, Rep. Somers asked Rep. Voss about the constitutionality of HOA monetary penalties (fines). She deferred and Mr. Carpenter, president of CAI, replied to this question that he “really wasn’t aware of what the argument is … but the argument in the abstract, to me, is not sufficient to removes the power to fine….” Advocates Haruff and Staropoli set the record straight with citations of the court decisions and gave a summary of the opinions – “is an unconstitutional delegation of government powers”.
You will, as of this writing almost 2 months later, not find this important discussion raising valid issues of constitutionality concerning the functions and rights of HOAs in the official minutes of this meeting. Requests to correct these minutes, and to reflect legitimate, legal concerns by homeowner advocates as to the true nature of the issues being raised by a Representative, have gone unanswered by the Speaker and the committee chairman. This is highly unethical. To blame it on some clerical error is outrageous and an attempt to cover up the failure of the committee members, who must approve any minutes, to insure that the minutes do not mislead the public.
An investigation is warranted to determine if there was undue pressure put on the House staff or committee members by private parties to omit these important statements from the minutes. These statements were made by the public at an official legislative committee meeting. It is these minutes that are readily available to the public, and not the audio tapes.
What is happening to Arizona? Why are the legislators so opposed to an open discussion of all the factors involved in solving the HOA problem? This is the only real way to end the horror stories.
George K. Staropoli
Citizens Against Private Government HOAs