Owner rights violated or not?

Our association is 100% controlled by the developer since there are still unsold units. Developer, Shea Homes, makes rules, is the Board, changes rules, sets fees, hires itself to manage and more. They also have a policy that any Employee can charge any homeowner with a violation and have the homeowners' rights to access the common Club facilities revoked for an indefinite period of time.
My husband was recently accused of Cursing and committing Blaspheme to a realtor who may or may not be an independent contractor, or may work directly for the developer. No witnesses, and no truth as my husband never takes G-d's name in vain, nor does he curse--as 100 other members have attested. Nevertheless, pending a hearing where Shea will set at its convenience, my husband's privileges have been indefinitely suspended.
What is the normal procedure in your associations to protect the homeowner's right from having the developer and employees run rampant? We're very stressed. WE know several other people who have been targeted over the past few years, and some who do outrageous behavior and don't get charged. We're at a loss. Your suggestions are welcomed. Adrienne Kirschner, Vistancia at Trilogy, Arizona

Typically, denying access to amenities is usually done as a result of the hearing and not before.
This may or may not be a violation of due process. My State, Virginia, actually specifies
[VA § 55-513] that a hearing has to be done prior to any enforcement. Perhaps, AZ law has something similar.

Typically, when there is a disagreement with procedures used or decisions of the Board, the options are limited:

1) You may recall the board
2) You may run and see if your elected to the Board where you can participate in the process.
3) You may propose a better option or method to the Board for their consideration
4) You may seek relief through the courts
5) You may live with the decision made.
6) You may move.

Since the developer is still in control, I suspect option 1 is out and option 2 might be out. Based on your posting, I expect option 6 is not for consideration and that the Developer isn't open to new ideas which might make option 3 impractical. This leaves options 4 & 5.

Based on your posting, I see the biggest issue being that this is a case of we said, they said and there are no other witnesses to the event. When this happens, it usually ends up with who is more believed. Only you can decide how much the principal of the issue is worth to you as it will be you who will be spending the time, energy and perhaps money associated with defending/fighting something based on the principal.

For a small fee, you might want to hire an attorney to write a letter to the Association demanding an immediate hearing or restoration of privileges. This might show that you intend to stand up for your rights. The Developer will either back down or not. Either way, when the hearing is called you may want to bring an attorney with you (more money). If you are considering seeking relief through the courts(lots of money), you definitely should bring an attorney with you. (Note: relief through the courts could include asking that the Association be governed by the homeowners vs. the developer).

However, if you want to save your time, energy and money for a different fight, then you can just live with how things are knowing that in time, the Association will be turned over to the members and things can be corrected at that time.

I agree that I don't think it's right to suspend privileges prior to the hearing. I've offered the options I see available to you (there may be others I don't see). As I said, only you can make the decision as to how to proceed.

Hope this helps,

Tim

PetunkaM
Thank you so much for taking the time to respond. Part of the stress, besides not sleeping, is feeling like we're all alone because we're not in a position to hire an attorney for untold thousands of dollars. I've since discovered a copy of the law and will file a petition because we have a department in ARizona, a new one, that handles complaints like these on behalf of homeowners who previously had no voice due to high attorney fees.
If you hear anything else that might be helpful, please post.
And for anyone who may be in Arizona, I found the law governing planned communities. Would you believe it falls under department of fire, buildings, and life safety (covers mobile home parks also).
Nana A

Thank you for your encouragement PetunkaM. Our good friend, an attorney who also served on the City Council in a neighboring state, just left after spending a few hours going over the complaint, the CC&R's, and the Arizona laws governing HOA and the right for a hearing. He found several flaws in the complaint. First, the person who brought the charges does not have standing as she's not an employee nor a home owner. Second, the penalties are not spelling out in the CC&R's, they just fabricated them in similar language. Third, they cannot take any action while we are awaiting a hearing. And there's more. He helped us to draft a letter and we'll see what happens. We would love for this to just go away, but, there's more. This builder is a bully who tells us all the time that they can do what they want, and they do. They need to have a formal complaint filed against their bullying, to put them on notice that we are not sheep. What's so interesting to me is that our community has many dozens of attorneys, accountants, more doctorates than I saw at the university. We are a middle and upper middle class community of educated people and the builder treats us like we're all senile.
I'll keep you posted. I may do an article. I used to write for the newspaper and would do it again.
Thanks again. It was nice knowing this site was out there for me.

sounds like you have already been down that road but I was going to suggest looking to see if your CC&R's prohibited cursing and blashemy or if the board has adopted rules that address it. My guess is no and they just can't go and make stuff up because they don't like what was said. Taking away property rights is a serious matter as someone else mentioned and the procedures and causes for that should be spelled out in your documents.

Tim,
Thank you for your thoughtful response. You all have no idea how emotionally satisfying it has been to have some responses, even to have this discussion forum available.
Here's the update. We spent the weekend reading the CCRs thoroughly, with a lawyer friend, and also the laws of Arizona. Since May 2010 Arizona laws are more friendly to the homeowner because there have been numerous abuses by HOAs. This is a pretty free wheeling state. Developers have made deals with mortgage companies for kick back--now outlawed. They have allowed access to cable to specific companies for big kick backs--now illegal. And there is now redress for a homeowner through a judge for a limited filing fee of $550, which is returned by the defendant (in my case the HOA) if the plaintiff appeals.
We learned that in Arizona, you cannot impose a penalty prior to a hearing--which they have done and which is absolutely illegal. Penalties are not spelled out in the CCRs, they made that up. You must provide copies of the complaint complete with names and witness statements, which they have not done even though we requested same. The HOA manager, a nice guy but has to do what the Board says, and they are the villians here, said the board decided to suspend my husband immediately. When I asked for Board minutes, was told they did this by e-mail. I asked for the e-mails, nothing. The person bringing the charge is not a member of our association, not a resident, and not an employee and therefore has no standing to bring the claim. And, here was an eye opener, the CCRs are not what was quoted in their charge against my husband. They have changed the language without notification to residents. And we suspect from other cases that this has been going on but there has been no redress since you had to have lots of money to go after them in court. Now we can do that, and are.

And, my husband did raise his voice, but not so loud other club members were distracted. And he did not curse or blasphemy, he doesn't do that. We are a religious family and that's just not part of the vocabulary. We have about 40 people so far who are willing to testify that they have never heard him curse or blaspheme.
We'll keep you posted, but thanks again for being there.
NanaA

Larry,
Thank you for adding your thoughts. I don't think we're interested in going the discrimination route, although we are a minority in our community. My husband did not curse or blaspheme, but he did raise his voice, not so loudly as to disturb other members, however. Interesting about the voting, I have to check that out. We have never once voted for a Board. The developer controls everything. Have to see what the CCRs say about voting. We've been here six years. We are not part of the Golf Club, or Vistancia, those are separate entities. This developer is major and has dozens of LLC's from Delaware for many different entities. The person bringing the charge actually works for one of the LLC's but not for our association which makes her not eligible to file this charge. Lots of problems with this one, but they have always been the big bully on the block doing what they want.
A typical hearing is one of the staff bringing some kind of charge, like using the wrong floatation device, or speaking rudely to an employee (that's the most common). The hearing, if you ask for one, is run by the Board members or their subordinates. They are the "judge", "panel hearing complaints", and "Jury" deliberating in private. The complaintant doesn't have to appear, just sends the charges. It's kangaroo court at its highest level. I have been a victim before and even though the employee was fired a month later, they never admitted that the employee was wrong, and told me to watch out. It's a pretty disgusting group.
On the other hand, we have the best friends here, and love our home, and the developer will be gone one day, target 3rd quarter 2014. Can't be soon enough.
Adrienne