Case Summary
| Case ID | 11F-H1112003-BFS |
|---|---|
| Agency | Department of Fire, Building and Life Safety |
| Tribunal | Office of Administrative Hearings |
| Decision Date | 2012-11-02 |
| Administrative Law Judge | M. Douglas |
| Outcome | partial |
| Filing Fees Refunded | $550.00 |
| Civil Penalties | $200.00 |
Parties & Counsel
| Petitioner | John and Debborah Sellers | Counsel | — |
|---|---|---|---|
| Respondent | Crossings at Willow Creek Property Owners Association | Counsel | Matthew G. Hayes |
Alleged Violations
A.R.S. § 33-1812(3)
Bylaws Article IV, Section 5
Outcome Summary
The Director accepted the ALJ's finding that the HOA violated A.R.S. § 33-1812(3) by using absentee ballots from one meeting at a subsequent meeting. The Tribunal found no credible evidence regarding the alleged Bylaws violation concerning conflict of interest voting. Petitioners were deemed the prevailing party and awarded reimbursement of filing fees.
Key Issues & Findings
Validity of Absentee Ballots
Petitioners alleged that the HOA violated the statute by carrying over absentee ballots from one meeting to a subsequent meeting/extension instead of requiring new ballots for a new specific election.
Orders: Respondent shall comply with the applicable provision of A.R.S. § 33-1812 in the future; pay Petitioners their filing fee of $550.00; pay a civil penalty of $200.00 to the Department.
Filing fee: $550.00, Fee refunded: Yes, Civil penalty: $200.00
Disposition: petitioner_win
- 4
- 17
- 20
Conflict of Interest Voting
Petitioners alleged that the HOA failed to respect Bylaws by allowing members with conflicts to vote.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_loss
- 4
- 17
Decision Documents
11F-H1112003-BFS Decision – 311265.pdf
11F-H1112003-BFS Decision – 313156.pdf
Questions
Question
Can an HOA carry over absentee ballots from one meeting to a subsequent meeting if they didn't get enough votes initially?
Short Answer
No, absentee ballots are valid for only the specific meeting they were issued for.
Detailed Answer
Under Arizona law, an absentee ballot is legally valid for only one specific election or meeting. It expires automatically once that meeting is completed. Therefore, an HOA cannot 'carry over' or reuse ballots cast for a previous date at a later meeting, even if the purpose is to reach a required quorum or vote threshold.
Alj Quote
The absentee ballot is valid for only one specified election or meeting of the members and expires automatically after the completion of the election or meeting.
Legal Basis
A.R.S. § 33-1812(A)(3)
Topic Tags
- voting
- absentee ballots
- meetings
Question
If I file a complaint against my HOA and win, can I get my filing fees back?
Short Answer
Yes, the Administrative Law Judge can order the HOA to reimburse your filing fees.
Detailed Answer
If a homeowner prevails in an administrative hearing against their HOA, the judge has the authority to order the HOA to reimburse the homeowner for the filing fee paid to the Department to initiate the case.
Alj Quote
It is further ORDERED that Crossings pay Petitioners their filing fee of $550.00, to be paid to the Department in this matter within thirty (30) days of this Order.
Legal Basis
Administrative Order
Topic Tags
- penalties
- fees
- reimbursement
Question
What is the legal standard of proof required to win a hearing against an HOA?
Short Answer
The standard is a 'preponderance of the evidence.'
Detailed Answer
To win a case in an administrative hearing, the petitioner must prove their claim by a 'preponderance of the evidence.' This means the evidence must show that it is more likely than not that the allegation is true.
Alj Quote
Proof by “preponderance of the evidence” means that it is sufficient to persuade the finder of fact that the proposition is “more likely true than not.”
Legal Basis
A.A.C. R2-19-119
Topic Tags
- legal standards
- hearing process
- evidence
Question
Can the HOA be fined for violating state voting laws?
Short Answer
Yes, the HOA can be ordered to pay a civil penalty.
Detailed Answer
In addition to reimbursing homeowner fees, an Administrative Law Judge can order the HOA to pay a civil penalty to the Department for violating state statutes governing HOA conduct.
Alj Quote
It is further ORDERED that Crossings pay a civil penalty in the amount of $200.00 to the Department within thirty (30) days of the date of this Order.
Legal Basis
Administrative Order
Topic Tags
- penalties
- fines
- enforcement
Question
Do absentee ballots count toward a quorum?
Short Answer
Yes, absentee ballots are valid for establishing a quorum.
Detailed Answer
State law explicitly provides that votes cast by absentee ballot (or other forms of delivery) must be counted when determining if a quorum is present for the meeting.
Alj Quote
Votes cast by absentee ballot or other form of delivery are valid for the purpose of establishing a quorum.
Legal Basis
A.R.S. § 33-1812(B)
Topic Tags
- voting
- quorum
- meetings
Question
Who has the burden of proof in a dispute with the HOA?
Short Answer
The person bringing the claim (the petitioner) has the burden of proof.
Detailed Answer
In an administrative hearing, the responsibility to prove that a violation occurred rests with the party who filed the petition asserting the claim or right.
Alj Quote
The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement…
Legal Basis
A.A.C. R2-19-119
Topic Tags
- legal standards
- hearing process
Question
Can I petition for a hearing if my HOA violates its own bylaws or state statutes?
Short Answer
Yes, homeowners are permitted by statute to file petitions for such violations.
Detailed Answer
Arizona law allows an owner or a planned community organization to file a petition for a hearing regarding violations of the community's documents (like CC&Rs or Bylaws) or violations of statutes regulating planned communities.
Alj Quote
A.R.S. § 41-2198.01 permits an owner or a planned community organization to file a petition with the Department for a hearing concerning violations of planned community documents or violations of statutes that regulate planned communities.
Legal Basis
A.R.S. § 41-2198.01
Topic Tags
- homeowner rights
- dispute resolution
- statutes
Question
What information must be included on an absentee ballot?
Short Answer
The ballot must list each proposed action and provide a way to vote for or against each one.
Detailed Answer
For an absentee ballot to be valid, it is required to explicitly set forth every proposed action being voted on and must provide the member an opportunity to vote either for or against each of those actions.
Alj Quote
The absentee ballot shall set forth each proposed action… The absentee ballot shall provide an opportunity to vote for or against each proposed action.
Legal Basis
A.R.S. § 33-1812(A)(1)-(2)
Topic Tags
- voting
- ballots
- compliance
Question
Does the HOA have to specify a deadline for absentee ballots?
Short Answer
Yes, the ballot must specify a time and date for delivery.
Detailed Answer
Absentee ballots must specify exactly when they need to be delivered to the board to be counted. This deadline must be at least seven days after the board sends the ballot to the member.
Alj Quote
The absentee ballot specifies the time and date by which the ballot must be delivered to the board of directors in order to be counted, which shall be at least seven days after the date that the board delivers the unvoted absentee ballot to the member.
Legal Basis
A.R.S. § 33-1812(A)(4)
Topic Tags
- voting
- deadlines
- procedure
Case
- Docket No
- 11F-H1112003-BFS
- Case Title
- John and Debborah Sellers vs. Crossings at Willow Creek Property Owners Association
- Decision Date
- 2012-10-22
- Alj Name
- M. Douglas
- Tribunal
- Office of Administrative Hearings
- Agency
- Department of Fire, Building and Life Safety
Questions
Question
Can an HOA carry over absentee ballots from one meeting to a subsequent meeting if they didn't get enough votes initially?
Short Answer
No, absentee ballots are valid for only the specific meeting they were issued for.
Detailed Answer
Under Arizona law, an absentee ballot is legally valid for only one specific election or meeting. It expires automatically once that meeting is completed. Therefore, an HOA cannot 'carry over' or reuse ballots cast for a previous date at a later meeting, even if the purpose is to reach a required quorum or vote threshold.
Alj Quote
The absentee ballot is valid for only one specified election or meeting of the members and expires automatically after the completion of the election or meeting.
Legal Basis
A.R.S. § 33-1812(A)(3)
Topic Tags
- voting
- absentee ballots
- meetings
Question
If I file a complaint against my HOA and win, can I get my filing fees back?
Short Answer
Yes, the Administrative Law Judge can order the HOA to reimburse your filing fees.
Detailed Answer
If a homeowner prevails in an administrative hearing against their HOA, the judge has the authority to order the HOA to reimburse the homeowner for the filing fee paid to the Department to initiate the case.
Alj Quote
It is further ORDERED that Crossings pay Petitioners their filing fee of $550.00, to be paid to the Department in this matter within thirty (30) days of this Order.
Legal Basis
Administrative Order
Topic Tags
- penalties
- fees
- reimbursement
Question
What is the legal standard of proof required to win a hearing against an HOA?
Short Answer
The standard is a 'preponderance of the evidence.'
Detailed Answer
To win a case in an administrative hearing, the petitioner must prove their claim by a 'preponderance of the evidence.' This means the evidence must show that it is more likely than not that the allegation is true.
Alj Quote
Proof by “preponderance of the evidence” means that it is sufficient to persuade the finder of fact that the proposition is “more likely true than not.”
Legal Basis
A.A.C. R2-19-119
Topic Tags
- legal standards
- hearing process
- evidence
Question
Can the HOA be fined for violating state voting laws?
Short Answer
Yes, the HOA can be ordered to pay a civil penalty.
Detailed Answer
In addition to reimbursing homeowner fees, an Administrative Law Judge can order the HOA to pay a civil penalty to the Department for violating state statutes governing HOA conduct.
Alj Quote
It is further ORDERED that Crossings pay a civil penalty in the amount of $200.00 to the Department within thirty (30) days of the date of this Order.
Legal Basis
Administrative Order
Topic Tags
- penalties
- fines
- enforcement
Question
Do absentee ballots count toward a quorum?
Short Answer
Yes, absentee ballots are valid for establishing a quorum.
Detailed Answer
State law explicitly provides that votes cast by absentee ballot (or other forms of delivery) must be counted when determining if a quorum is present for the meeting.
Alj Quote
Votes cast by absentee ballot or other form of delivery are valid for the purpose of establishing a quorum.
Legal Basis
A.R.S. § 33-1812(B)
Topic Tags
- voting
- quorum
- meetings
Question
Who has the burden of proof in a dispute with the HOA?
Short Answer
The person bringing the claim (the petitioner) has the burden of proof.
Detailed Answer
In an administrative hearing, the responsibility to prove that a violation occurred rests with the party who filed the petition asserting the claim or right.
Alj Quote
The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement…
Legal Basis
A.A.C. R2-19-119
Topic Tags
- legal standards
- hearing process
Question
Can I petition for a hearing if my HOA violates its own bylaws or state statutes?
Short Answer
Yes, homeowners are permitted by statute to file petitions for such violations.
Detailed Answer
Arizona law allows an owner or a planned community organization to file a petition for a hearing regarding violations of the community's documents (like CC&Rs or Bylaws) or violations of statutes regulating planned communities.
Alj Quote
A.R.S. § 41-2198.01 permits an owner or a planned community organization to file a petition with the Department for a hearing concerning violations of planned community documents or violations of statutes that regulate planned communities.
Legal Basis
A.R.S. § 41-2198.01
Topic Tags
- homeowner rights
- dispute resolution
- statutes
Question
What information must be included on an absentee ballot?
Short Answer
The ballot must list each proposed action and provide a way to vote for or against each one.
Detailed Answer
For an absentee ballot to be valid, it is required to explicitly set forth every proposed action being voted on and must provide the member an opportunity to vote either for or against each of those actions.
Alj Quote
The absentee ballot shall set forth each proposed action… The absentee ballot shall provide an opportunity to vote for or against each proposed action.
Legal Basis
A.R.S. § 33-1812(A)(1)-(2)
Topic Tags
- voting
- ballots
- compliance
Question
Does the HOA have to specify a deadline for absentee ballots?
Short Answer
Yes, the ballot must specify a time and date for delivery.
Detailed Answer
Absentee ballots must specify exactly when they need to be delivered to the board to be counted. This deadline must be at least seven days after the board sends the ballot to the member.
Alj Quote
The absentee ballot specifies the time and date by which the ballot must be delivered to the board of directors in order to be counted, which shall be at least seven days after the date that the board delivers the unvoted absentee ballot to the member.
Legal Basis
A.R.S. § 33-1812(A)(4)
Topic Tags
- voting
- deadlines
- procedure
Case
- Docket No
- 11F-H1112003-BFS
- Case Title
- John and Debborah Sellers vs. Crossings at Willow Creek Property Owners Association
- Decision Date
- 2012-10-22
- Alj Name
- M. Douglas
- Tribunal
- Office of Administrative Hearings
- Agency
- Department of Fire, Building and Life Safety
Questions
Question
Can an HOA carry over absentee ballots from one meeting to a subsequent meeting if they didn't get enough votes initially?
Short Answer
No, absentee ballots are valid for only the specific meeting they were issued for.
Detailed Answer
Under Arizona law, an absentee ballot is legally valid for only one specific election or meeting. It expires automatically once that meeting is completed. Therefore, an HOA cannot 'carry over' or reuse ballots cast for a previous date at a later meeting, even if the purpose is to reach a required quorum or vote threshold.
Alj Quote
The absentee ballot is valid for only one specified election or meeting of the members and expires automatically after the completion of the election or meeting.
Legal Basis
A.R.S. § 33-1812(A)(3)
Topic Tags
- voting
- absentee ballots
- meetings
Question
If I file a complaint against my HOA and win, can I get my filing fees back?
Short Answer
Yes, the Administrative Law Judge can order the HOA to reimburse your filing fees.
Detailed Answer
If a homeowner prevails in an administrative hearing against their HOA, the judge has the authority to order the HOA to reimburse the homeowner for the filing fee paid to the Department to initiate the case.
Alj Quote
It is further ORDERED that Crossings pay Petitioners their filing fee of $550.00, to be paid to the Department in this matter within thirty (30) days of this Order.
Legal Basis
Administrative Order
Topic Tags
- penalties
- fees
- reimbursement
Question
What is the legal standard of proof required to win a hearing against an HOA?
Short Answer
The standard is a 'preponderance of the evidence.'
Detailed Answer
To win a case in an administrative hearing, the petitioner must prove their claim by a 'preponderance of the evidence.' This means the evidence must show that it is more likely than not that the allegation is true.
Alj Quote
Proof by “preponderance of the evidence” means that it is sufficient to persuade the finder of fact that the proposition is “more likely true than not.”
Legal Basis
A.A.C. R2-19-119
Topic Tags
- legal standards
- hearing process
- evidence
Question
Can the HOA be fined for violating state voting laws?
Short Answer
Yes, the HOA can be ordered to pay a civil penalty.
Detailed Answer
In addition to reimbursing homeowner fees, an Administrative Law Judge can order the HOA to pay a civil penalty to the Department for violating state statutes governing HOA conduct.
Alj Quote
It is further ORDERED that Crossings pay a civil penalty in the amount of $200.00 to the Department within thirty (30) days of the date of this Order.
Legal Basis
Administrative Order
Topic Tags
- penalties
- fines
- enforcement
Question
Do absentee ballots count toward a quorum?
Short Answer
Yes, absentee ballots are valid for establishing a quorum.
Detailed Answer
State law explicitly provides that votes cast by absentee ballot (or other forms of delivery) must be counted when determining if a quorum is present for the meeting.
Alj Quote
Votes cast by absentee ballot or other form of delivery are valid for the purpose of establishing a quorum.
Legal Basis
A.R.S. § 33-1812(B)
Topic Tags
- voting
- quorum
- meetings
Question
Who has the burden of proof in a dispute with the HOA?
Short Answer
The person bringing the claim (the petitioner) has the burden of proof.
Detailed Answer
In an administrative hearing, the responsibility to prove that a violation occurred rests with the party who filed the petition asserting the claim or right.
Alj Quote
The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement…
Legal Basis
A.A.C. R2-19-119
Topic Tags
- legal standards
- hearing process
Question
Can I petition for a hearing if my HOA violates its own bylaws or state statutes?
Short Answer
Yes, homeowners are permitted by statute to file petitions for such violations.
Detailed Answer
Arizona law allows an owner or a planned community organization to file a petition for a hearing regarding violations of the community's documents (like CC&Rs or Bylaws) or violations of statutes regulating planned communities.
Alj Quote
A.R.S. § 41-2198.01 permits an owner or a planned community organization to file a petition with the Department for a hearing concerning violations of planned community documents or violations of statutes that regulate planned communities.
Legal Basis
A.R.S. § 41-2198.01
Topic Tags
- homeowner rights
- dispute resolution
- statutes
Question
What information must be included on an absentee ballot?
Short Answer
The ballot must list each proposed action and provide a way to vote for or against each one.
Detailed Answer
For an absentee ballot to be valid, it is required to explicitly set forth every proposed action being voted on and must provide the member an opportunity to vote either for or against each of those actions.
Alj Quote
The absentee ballot shall set forth each proposed action… The absentee ballot shall provide an opportunity to vote for or against each proposed action.
Legal Basis
A.R.S. § 33-1812(A)(1)-(2)
Topic Tags
- voting
- ballots
- compliance
Question
Does the HOA have to specify a deadline for absentee ballots?
Short Answer
Yes, the ballot must specify a time and date for delivery.
Detailed Answer
Absentee ballots must specify exactly when they need to be delivered to the board to be counted. This deadline must be at least seven days after the board sends the ballot to the member.
Alj Quote
The absentee ballot specifies the time and date by which the ballot must be delivered to the board of directors in order to be counted, which shall be at least seven days after the date that the board delivers the unvoted absentee ballot to the member.
Legal Basis
A.R.S. § 33-1812(A)(4)
Topic Tags
- voting
- deadlines
- procedure
Case
- Docket No
- 11F-H1112003-BFS
- Case Title
- John and Debborah Sellers vs. Crossings at Willow Creek Property Owners Association
- Decision Date
- 2012-10-22
- Alj Name
- M. Douglas
- Tribunal
- Office of Administrative Hearings
- Agency
- Department of Fire, Building and Life Safety
Case Participants
Petitioner Side
- John Sellers (petitioner)
Crossings at Willow Creek Property Owners Association
Homeowner; appeared for Petitioners; witness - Debborah Sellers (petitioner)
Crossings at Willow Creek Property Owners Association
Homeowner; also referred to as Debra Sellers in testimony
Respondent Side
- Matthew G. Hayes (HOA attorney)
Jones, Skelton & Hochuli PLC - Janice Dow (board member)
Crossings at Willow Creek Property Owners Association
Secretary; witness; owns four lots - Robert Balzano (property manager)
Crossings at Willow Creek Property Owners Association
Former managing agent (2010); witness
Neutral Parties
- M. Douglas (ALJ)
Office of Administrative Hearings - Gene Palma (agency director)
Department of Fire, Building and Life Safety
Signed Final Order - Joni Cage (agency staff)
Department of Fire, Building and Life Safety
Complaint Program Manager - Debra Blake (agency staff)
Department of Fire, Building and Life Safety
Signed on behalf of Joni Cage
