Case Summary
| Case ID | 23F-H030-REL |
|---|---|
| Agency | ADRE |
| Tribunal | OAH |
| Decision Date | 2023-04-17 |
| Administrative Law Judge | Tammy L. Eigenheer |
| Outcome | full |
| Filing Fees Refunded | $500.00 |
| Civil Penalties | $0.00 |
Parties & Counsel
| Petitioner | Clifford (Norm) S. Burnes | Counsel | — |
|---|---|---|---|
| Respondent | Saguaro Crest Homeowners' Association | Counsel | John T. Crotty |
Alleged Violations
ARIZ. REV. STAT. § 33-1812(A)(6)
Outcome Summary
The Administrative Law Judge granted the petition, finding that the Saguaro Crest Homeowners' Association violated ARIZ. REV. STAT. § 33-1812(A)(6). The violation occurred because the Association's governing documents did not permit secret ballots, necessitating that the completed ballot contain the name, address, and signature of the voter, a requirement the distributed ballots failed to meet. The HOA was ordered to reimburse the Petitioner's $500.00 filing fee and comply with the statute henceforth.
Key Issues & Findings
Violation of voting statute requiring name, address, and signature on completed ballot.
Petitioner alleged that the HOA's vote by written ballot was non-compliant because the individual ballots lacked the required name, address, and signature of the voter. The ALJ concluded that since the community documents did not permit secret ballots, the plain language of A.R.S. § 33-1812(A)(6) required the ballot itself (distinct from the envelope) to contain the name, address, and signature, and the HOA failed to meet this requirement.
Orders: Petition granted. Respondent ordered to reimburse Petitioner's filing fee of $500.00 and henceforth comply with ARIZ. REV. STAT. § 33-1812(A)(6).
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
- ARIZ. REV. STAT. § 33-1812(A)(6)
- ARIZ. REV. STAT. § 33-1812
Analytics Highlights
- ARIZ. REV. STAT. § 33-1812(A)(6)
- ARIZ. REV. STAT. § 32-2199.05
- ARIZ. REV. STAT. § 33-1812
Video Overview
Audio Overview
https://open.spotify.com/episode/3zvQyrzyXnPnq4xiANenbF
Decision Documents
23F-H030-REL Decision – 1037366.pdf
23F-H030-REL Decision – 1049922.pdf
Questions
Question
Can my HOA use secret ballots where I only sign the envelope?
Short Answer
Only if the community's governing documents explicitly permit secret ballots.
Detailed Answer
Under Arizona law, an HOA cannot use secret ballots (where identification is only on the envelope) unless the community documents specifically permit them. If the documents are silent on the matter, the ballot itself must contain the voter's identification.
Alj Quote
The completed ballot shall contain the name, address and signature of the person voting, except that if the community documents permit secret ballots, only the envelope shall contain the name, address and signature of the voter… Nothing in the Association’s governing documents permitted secret ballots.
Legal Basis
ARIZ. REV. STAT. § 33-1812(A)(6)
Topic Tags
- voting
- ballots
- governing documents
Question
What specific information must be written on an HOA ballot?
Short Answer
The ballot must contain the voter's name, address, and signature.
Detailed Answer
Unless secret ballots are authorized by the governing documents, the ballot itself must include three specific items: the voter's name, the voter's address, and the voter's signature.
Alj Quote
Accordingly, the completed ballots in the vote at issue were required to contain the name, address, and signature of the person voting.
Legal Basis
ARIZ. REV. STAT. § 33-1812(A)(6)
Topic Tags
- voting
- compliance
Question
Does signing my signature count as writing my name on a ballot?
Short Answer
No, a signature and a name are separate legal requirements.
Detailed Answer
The ALJ determined that a signature does not satisfy the requirement to provide a name. The statute lists them separately, meaning both must be present on the ballot.
Alj Quote
Further, the plain language of the statute identifies that each ballot must contain the name, address, and signature of the person voting. The signature is a separate requirement from the name, and the ballot was required to have all three items.
Legal Basis
Statutory Interpretation
Topic Tags
- voting
- legal definitions
Question
Can the HOA claim the envelope and ballot together count as a 'completed ballot'?
Short Answer
No, the law distinguishes between the ballot itself and the envelope.
Detailed Answer
The HOA cannot argue that the envelope is part of the ballot to satisfy identification requirements when secret ballots are not permitted. The statute treats the ballot and the envelope as distinct items.
Alj Quote
The plan language of the statute delineates between the ballot in a vote and the envelope in a secret ballot vote.
Legal Basis
ARIZ. REV. STAT. § 33-1812
Topic Tags
- voting
- ballots
Question
Who has to prove that the HOA violated the law in a hearing?
Short Answer
The homeowner (Petitioner) bears the burden of proof.
Detailed Answer
In an administrative hearing, the homeowner filing the complaint must provide enough evidence to prove that it is more likely than not that the HOA violated the statute.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1812(A)(6).
Legal Basis
Administrative Procedure
Topic Tags
- procedure
- burden of proof
Question
If I win my case against the HOA, can I get my filing fee back?
Short Answer
Yes, the judge can order the HOA to reimburse the filing fee.
Detailed Answer
If the Administrative Law Judge rules in favor of the homeowner, they may order the HOA to reimburse the $500 filing fee paid to the Department of Real Estate.
Alj Quote
IT IS FURTHER ORDERED that Respondent reimburse Petitioner’s filing fee of $500.00 in certified funds.
Legal Basis
Administrative Order
Topic Tags
- penalties
- reimbursement
Question
What agency handles disputes between homeowners and HOAs in Arizona?
Short Answer
The Arizona Department of Real Estate (ADRE) and the Office of Administrative Hearings (OAH).
Detailed Answer
Homeowners can file petitions regarding violations of community documents or statutes with the Department of Real Estate, which are then heard by the Office of Administrative Hearings.
Alj Quote
The Department is authorized by statute to receive and to decide petitions for hearings from members of homeowners’ associations and from homeowners’ associations in Arizona.
Legal Basis
ARIZ. REV. STAT. § 32-2102
Topic Tags
- jurisdiction
- agencies
Case
- Docket No
- 23F-H030-REL
- Case Title
- Clifford S. Burnes v. Saguaro Crest Homeowners' Association
- Decision Date
- 2023-04-17
- Alj Name
- Tammy L. Eigenheer
- Tribunal
- OAH
- Agency
- ADRE
Questions
Question
Can my HOA use secret ballots where I only sign the envelope?
Short Answer
Only if the community's governing documents explicitly permit secret ballots.
Detailed Answer
Under Arizona law, an HOA cannot use secret ballots (where identification is only on the envelope) unless the community documents specifically permit them. If the documents are silent on the matter, the ballot itself must contain the voter's identification.
Alj Quote
The completed ballot shall contain the name, address and signature of the person voting, except that if the community documents permit secret ballots, only the envelope shall contain the name, address and signature of the voter… Nothing in the Association’s governing documents permitted secret ballots.
Legal Basis
ARIZ. REV. STAT. § 33-1812(A)(6)
Topic Tags
- voting
- ballots
- governing documents
Question
What specific information must be written on an HOA ballot?
Short Answer
The ballot must contain the voter's name, address, and signature.
Detailed Answer
Unless secret ballots are authorized by the governing documents, the ballot itself must include three specific items: the voter's name, the voter's address, and the voter's signature.
Alj Quote
Accordingly, the completed ballots in the vote at issue were required to contain the name, address, and signature of the person voting.
Legal Basis
ARIZ. REV. STAT. § 33-1812(A)(6)
Topic Tags
- voting
- compliance
Question
Does signing my signature count as writing my name on a ballot?
Short Answer
No, a signature and a name are separate legal requirements.
Detailed Answer
The ALJ determined that a signature does not satisfy the requirement to provide a name. The statute lists them separately, meaning both must be present on the ballot.
Alj Quote
Further, the plain language of the statute identifies that each ballot must contain the name, address, and signature of the person voting. The signature is a separate requirement from the name, and the ballot was required to have all three items.
Legal Basis
Statutory Interpretation
Topic Tags
- voting
- legal definitions
Question
Can the HOA claim the envelope and ballot together count as a 'completed ballot'?
Short Answer
No, the law distinguishes between the ballot itself and the envelope.
Detailed Answer
The HOA cannot argue that the envelope is part of the ballot to satisfy identification requirements when secret ballots are not permitted. The statute treats the ballot and the envelope as distinct items.
Alj Quote
The plan language of the statute delineates between the ballot in a vote and the envelope in a secret ballot vote.
Legal Basis
ARIZ. REV. STAT. § 33-1812
Topic Tags
- voting
- ballots
Question
Who has to prove that the HOA violated the law in a hearing?
Short Answer
The homeowner (Petitioner) bears the burden of proof.
Detailed Answer
In an administrative hearing, the homeowner filing the complaint must provide enough evidence to prove that it is more likely than not that the HOA violated the statute.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1812(A)(6).
Legal Basis
Administrative Procedure
Topic Tags
- procedure
- burden of proof
Question
If I win my case against the HOA, can I get my filing fee back?
Short Answer
Yes, the judge can order the HOA to reimburse the filing fee.
Detailed Answer
If the Administrative Law Judge rules in favor of the homeowner, they may order the HOA to reimburse the $500 filing fee paid to the Department of Real Estate.
Alj Quote
IT IS FURTHER ORDERED that Respondent reimburse Petitioner’s filing fee of $500.00 in certified funds.
Legal Basis
Administrative Order
Topic Tags
- penalties
- reimbursement
Question
What agency handles disputes between homeowners and HOAs in Arizona?
Short Answer
The Arizona Department of Real Estate (ADRE) and the Office of Administrative Hearings (OAH).
Detailed Answer
Homeowners can file petitions regarding violations of community documents or statutes with the Department of Real Estate, which are then heard by the Office of Administrative Hearings.
Alj Quote
The Department is authorized by statute to receive and to decide petitions for hearings from members of homeowners’ associations and from homeowners’ associations in Arizona.
Legal Basis
ARIZ. REV. STAT. § 32-2102
Topic Tags
- jurisdiction
- agencies
Case
- Docket No
- 23F-H030-REL
- Case Title
- Clifford S. Burnes v. Saguaro Crest Homeowners' Association
- Decision Date
- 2023-04-17
- Alj Name
- Tammy L. Eigenheer
- Tribunal
- OAH
- Agency
- ADRE
Case Participants
Petitioner Side
- Clifford S. Burnes (petitioner)
Saguaro Crest Homeowners' Association
Also referred to as Clifford (Norm) Burnes and Clifford Barnes. Appeared pro se, testified on his own behalf.
Respondent Side
- John T. Crotty (HOA attorney)
LAW OFFICES OF COLLIN T. WELCH
Represented Saguaro Crest Homeowners' Association. Referred to as Mr. Kate in transcript. - Esmeralda Serena Ayala-Martinez (HOA board president / witness)
Saguaro Crest Homeowners' Association
Also referred to as Serena Martinez. Called as witness by Petitioner. - David Medil (board member)
Saguaro Crest Homeowners' Association
Listed as a board member in testimony (also referred to as 'Dave Matt'). - Joseph Martinez (board member)
Saguaro Crest Homeowners' Association
Listed as a board member in testimony (also referred to as 'Joseph Mar Martinez').
Neutral Parties
- Tammy L. Eigenheer (ALJ)
Office of Administrative Hearings
Also referred to as Tammy Igenir. - Susan Nicolson (Commissioner)
Arizona Department of Real Estate - A. Hansen (ADRE Staff Recipient)
Arizona Department of Real Estate
Recipient of case transmission. - V. Nunez (ADRE Staff Recipient)
Arizona Department of Real Estate
Recipient of case transmission. - D. Jones (ADRE Staff Recipient)
Arizona Department of Real Estate
Recipient of case transmission. - L. Abril (ADRE Staff Recipient)
Arizona Department of Real Estate
Recipient of case transmission.
Other Participants
- Carolyn Wesen Mo (observer)
Member of the public
Present during the hearing. - Collin T. Welch (Attorney (Firm Principal))
LAW OFFICES OF COLLIN T. WELCH
Name appears in firm name affiliation of Respondent's counsel.
