ROBERT J. GARING v. PRESCOTT LAKES COMMUNITY ASSOCIATION, INC.

Case Summary

Case ID 24F-H012-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-11-20
Administrative Law Judge Jenna Clark
Outcome The ALJ denied the petition, concluding that the Association's voting system constituted permissible delegate voting, which is not prohibited by the Planned Community Act. The prohibition in ARS § 33-1812 against proxy voting applies only when votes are “allocated to a unit,” which is not the case for Director elections where votes are allocated to the Neighborhood Voting Members as delegates.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Robert J. Garing Counsel
Respondent Prescott Lakes Community Association, Inc. Counsel Adrianne A. Speas, Esq.

Alleged Violations

ARIZ. REV. STAT. § 33-1812

Outcome Summary

The ALJ denied the petition, concluding that the Association's voting system constituted permissible delegate voting, which is not prohibited by the Planned Community Act. The prohibition in ARS § 33-1812 against proxy voting applies only when votes are “allocated to a unit,” which is not the case for Director elections where votes are allocated to the Neighborhood Voting Members as delegates.

Why this result: Petitioner did not sustain the burden of proving a violation of ARIZ. REV. STAT. § 33-1812.

Key Issues & Findings

Whether Respondent is in violation of ARIZ. REV. STAT. § 33-1812

Petitioner alleged that the Association's use of a voting delegate system, where Voting Members cast votes for unit owners who did not respond to neighborhood polls, constitutes proxy voting prohibited under ARS § 33-1812.

Orders: Petitioner's petition is denied.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • ARIZ. REV. STAT. § 33-1812
  • ARIZ. REV. STAT. § 10-3708
  • ARIZ. ADMIN. CODE R2-19-119(B)(2)

Analytics Highlights

Topics: HOA, Planned Community Act, Delegate Voting, Proxy Voting, Board Election, ARS 33-1812, Nonprofit Corporation Act
Additional Citations:

  • ARIZ. REV. STAT. § 33-1812
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. REV. STAT. § 10-3708
  • ARIZ. REV. STAT. § 1-211(B)
  • ARIZ. ADMIN. CODE R2-19-119(B)(2)
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov

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Video Overview

Audio Overview

Decision Documents

24F-H012-REL Decision – 1115010.pdf

Uploaded 2026-04-24T12:15:30 (162.7 KB)

24F-H012-REL Decision – 1115010.pdf

Uploaded 2026-01-23T18:01:58 (162.7 KB)

This legal case summary details the hearing regarding the alleged violation of Arizona law concerning proxy voting within a planned community association.

Key Facts and Parties

The hearing was held on November 9, 2023, before Administrative Law Judge (ALJ) Jenna Clark. The matter involved Robert J. Garing (Petitioner), appearing on his own behalf, against Prescott Lakes Community Association, Inc. (Respondent), a nonprofit homeowners' association.

The Association utilizes a neighborhood delegate voting system. Unit owners elect a Voting Member (and an alternate) for their respective neighborhoods. The Voting Members then cast all votes for the election of the Association's Board of Directors. Prior to the election, unit owners are polled. The governing documents stipulate that the Voting Member "shall cast the votes attributable to any Units not responding to the poll in his or her discretion".

Main Issue

The underlying issue was whether the Respondent was in violation of Arizona Revised Statute (ARS) § 33-1812 of the Planned Communities Act. Petitioner alleged that when Voting Members vote on behalf of units whose owners did not return a poll, this practice is a form of proxy voting, which ARS § 33-1812 prohibits.

Key Arguments

  1. Petitioner's Argument: Petitioner argued that the delegate voting system is fundamentally a proxy system. He asserted that ARS § 33-1812 contains "clear, unambiguous" language prohibiting all proxies after the period of declarant control, and this special statute supersedes the general Nonprofit Corporations Act. Petitioner presented evidence showing that Voting Members exercised their discretion to cast zero votes for candidates who had received votes from polled unit owners, demonstrating a lack of correlation between member preference and the delegate’s vote.
  2. Respondent's Argument: Respondent argued that its system constitutes permissible delegate voting, which is distinct from the prohibited proxy voting. Testimony established that Voting Members are elected by the unit owners, not appointed like proxies, and cast votes by ballot, not proxy. Counsel for Respondent argued that the legislature chose only to prohibit proxy voting in the Planned Communities Act, and did not bar the use of delegate voting, which is allowed under the Nonprofit Corporation Act.

Legal Focus and Outcome

The ALJ focused on the language of ARS § 33-1812(A)(7), which prohibits casting "votes allocated to a unit… pursuant to a proxy".

The ALJ issued a decision denying the petition. The conclusion was that Petitioner failed to sustain the burden of proof. The key legal determination was that the legislature "made no such bar regarding delegate voting as a form of HOA governance" within the Planned Community Act.

The ALJ reasoned that for the election of Board Directors, there are no votes "allocated to a unit"; instead, "all votes are allocated to Neighborhood Voting Members as delegates" under the Association's governing documents. Since the statute prohibits proxy voting only when votes are allocated to a unit, the Association's delegate system for director elections did not violate ARS § 33-1812.

{ “case”: { “docket_no”: “24F-H012-REL”, “case_title”: “Robert J. Garing v. Prescott Lakes Community Association, Inc.”, “decision_date”: “2023-11-20”, “alj_name”: “Jenna Clark”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Is a delegate voting system considered the same as illegal proxy voting in Arizona HOAs?”, “short_answer”: “No. The ALJ determined that a delegate voting system is distinct from proxy voting and is not prohibited by the Planned Communities Act.”, “detailed_answer”: “While Arizona law (A.R.S. § 33-1812) explicitly prohibits proxy voting in planned communities after the period of declarant control, the Administrative Law Judge found that the legislature did not prohibit ‘delegate voting.’ In a delegate system, votes are allocated to the elected Voting Member (delegate) rather than directly to the individual unit for that specific election, meaning the prohibition on casting unit votes via proxy does not apply.”, “alj_quote”: “Here, the relevant and credible evidence of record establishes that while proxy voting is explicitly prohibited under the Planned Community Act, the legislature made no such bar regarding delegate voting as a form of HOA governance.”, “legal_basis”: “A.R.S. § 33-1812”, “topic_tags”: [ “voting”, “proxies”, “delegates”, “elections” ] }, { “question”: “Can my HOA allow neighborhood representatives to vote on behalf of owners?”, “short_answer”: “Yes, if the governing documents establish a delegate system where votes are allocated to the representative rather than the unit.”, “detailed_answer”: “The decision upholds a system where neighborhoods elect ‘Voting Members’ who then cast votes for the Board of Directors. The ALJ reasoned that the Planned Communities Act prohibits proxy voting only when votes are ‘allocated to a unit.’ Under the delegate system described, the votes for directors were allocated to the Voting Members, not the individual units.”, “alj_quote”: “The Planned Community Act does not regulate who is authorized to vote in planned community elections. Instead, it prohibits proxy voting when votes have been ‘allocated to a unit.’ Regarding the election of Board Directors, there are no votes ‘allocated to a unit.’ Instead, all votes are allocated to Neighborhood Voting Members as delegates…”, “legal_basis”: “A.R.S. § 33-1812”, “topic_tags”: [ “voting”, “board of directors”, “governing documents” ] }, { “question”: “Can neighborhood delegates cast votes for homeowners who did not participate in the poll?”, “short_answer”: “Yes, provided the governing documents allow the delegate to cast unreceived votes at their discretion.”, “detailed_answer”: “The ALJ noted that Voting Members in this case had the discretion to cast votes for units that did not respond to the neighborhood poll. This practice was found not to violate the statutory prohibition on proxies because it was part of a valid delegate voting structure.”, “alj_quote”: “Voting Members do not have complete discretion when casting votes. They only have discretion to cast unreceived votes.”, “legal_basis”: “A.R.S. § 33-1812”, “topic_tags”: [ “voting”, “discretionary voting”, “absentee ballots” ] }, { “question”: “What is the burden of proof for a homeowner challenging their HOA in an administrative hearing?”, “short_answer”: “The homeowner must prove their case by a ‘preponderance of the evidence’.”, “detailed_answer”: “The homeowner (Petitioner) is responsible for proving that the HOA violated the statute. The standard used is ‘preponderance of the evidence,’ which means the homeowner must show that their contention is more likely true than not.”, “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.”, “legal_basis”: “A.A.C. R2-19-119(B)(2)”, “topic_tags”: [ “burden of proof”, “administrative hearing”, “legal procedure” ] }, { “question”: “Does the Nonprofit Corporation Act apply to HOAs in Arizona?”, “short_answer”: “Yes, unless the Planned Communities Act specifically exempts the HOA from a provision.”, “detailed_answer”: “The ALJ reasoned that because the legislature specifically exempted planned communities from some parts of the Nonprofit Act but was silent on delegate voting, the Nonprofit Act’s allowance of such systems remains relevant context for HOA governance.”, “alj_quote”: “In fact, the legislature specifically exempted planned communities from certain enumerated provisions of the Nonprofit Act, but did not address delegate voting within the Planned Community Act in any capacity.”, “legal_basis”: “A.R.S. § 10-3101 et seq.”, “topic_tags”: [ “corporate law”, “statutory interpretation”, “nonprofit act” ] }, { “question”: “If I disagree with the Administrative Law Judge’s decision, what can I do?”, “short_answer”: “You can appeal to the Superior Court within 35 days of being served the order.”, “detailed_answer”: “The decision is binding, but parties have the right to seek judicial review. This appeal must be filed with the Superior Court within a strict 35-day window following the service of the order.”, “alj_quote”: “A party wishing to appeal this order must seek judicial review as prescribed by ARIZ. REV. STAT. § 41-1092.08(H) and title 12, chapter 7, article 6. Any such appeal must be filed with the superior court within thirty-five days from the date when a copy of this order was served upon the parties.”, “legal_basis”: “A.R.S. § 41-1092.08(H); A.R.S. § 12-904(A)”, “topic_tags”: [ “appeals”, “judicial review”, “superior court” ] } ] }

{ “case”: { “docket_no”: “24F-H012-REL”, “case_title”: “Robert J. Garing v. Prescott Lakes Community Association, Inc.”, “decision_date”: “2023-11-20”, “alj_name”: “Jenna Clark”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Is a delegate voting system considered the same as illegal proxy voting in Arizona HOAs?”, “short_answer”: “No. The ALJ determined that a delegate voting system is distinct from proxy voting and is not prohibited by the Planned Communities Act.”, “detailed_answer”: “While Arizona law (A.R.S. § 33-1812) explicitly prohibits proxy voting in planned communities after the period of declarant control, the Administrative Law Judge found that the legislature did not prohibit ‘delegate voting.’ In a delegate system, votes are allocated to the elected Voting Member (delegate) rather than directly to the individual unit for that specific election, meaning the prohibition on casting unit votes via proxy does not apply.”, “alj_quote”: “Here, the relevant and credible evidence of record establishes that while proxy voting is explicitly prohibited under the Planned Community Act, the legislature made no such bar regarding delegate voting as a form of HOA governance.”, “legal_basis”: “A.R.S. § 33-1812”, “topic_tags”: [ “voting”, “proxies”, “delegates”, “elections” ] }, { “question”: “Can my HOA allow neighborhood representatives to vote on behalf of owners?”, “short_answer”: “Yes, if the governing documents establish a delegate system where votes are allocated to the representative rather than the unit.”, “detailed_answer”: “The decision upholds a system where neighborhoods elect ‘Voting Members’ who then cast votes for the Board of Directors. The ALJ reasoned that the Planned Communities Act prohibits proxy voting only when votes are ‘allocated to a unit.’ Under the delegate system described, the votes for directors were allocated to the Voting Members, not the individual units.”, “alj_quote”: “The Planned Community Act does not regulate who is authorized to vote in planned community elections. Instead, it prohibits proxy voting when votes have been ‘allocated to a unit.’ Regarding the election of Board Directors, there are no votes ‘allocated to a unit.’ Instead, all votes are allocated to Neighborhood Voting Members as delegates…”, “legal_basis”: “A.R.S. § 33-1812”, “topic_tags”: [ “voting”, “board of directors”, “governing documents” ] }, { “question”: “Can neighborhood delegates cast votes for homeowners who did not participate in the poll?”, “short_answer”: “Yes, provided the governing documents allow the delegate to cast unreceived votes at their discretion.”, “detailed_answer”: “The ALJ noted that Voting Members in this case had the discretion to cast votes for units that did not respond to the neighborhood poll. This practice was found not to violate the statutory prohibition on proxies because it was part of a valid delegate voting structure.”, “alj_quote”: “Voting Members do not have complete discretion when casting votes. They only have discretion to cast unreceived votes.”, “legal_basis”: “A.R.S. § 33-1812”, “topic_tags”: [ “voting”, “discretionary voting”, “absentee ballots” ] }, { “question”: “What is the burden of proof for a homeowner challenging their HOA in an administrative hearing?”, “short_answer”: “The homeowner must prove their case by a ‘preponderance of the evidence’.”, “detailed_answer”: “The homeowner (Petitioner) is responsible for proving that the HOA violated the statute. The standard used is ‘preponderance of the evidence,’ which means the homeowner must show that their contention is more likely true than not.”, “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.”, “legal_basis”: “A.A.C. R2-19-119(B)(2)”, “topic_tags”: [ “burden of proof”, “administrative hearing”, “legal procedure” ] }, { “question”: “Does the Nonprofit Corporation Act apply to HOAs in Arizona?”, “short_answer”: “Yes, unless the Planned Communities Act specifically exempts the HOA from a provision.”, “detailed_answer”: “The ALJ reasoned that because the legislature specifically exempted planned communities from some parts of the Nonprofit Act but was silent on delegate voting, the Nonprofit Act’s allowance of such systems remains relevant context for HOA governance.”, “alj_quote”: “In fact, the legislature specifically exempted planned communities from certain enumerated provisions of the Nonprofit Act, but did not address delegate voting within the Planned Community Act in any capacity.”, “legal_basis”: “A.R.S. § 10-3101 et seq.”, “topic_tags”: [ “corporate law”, “statutory interpretation”, “nonprofit act” ] }, { “question”: “If I disagree with the Administrative Law Judge’s decision, what can I do?”, “short_answer”: “You can appeal to the Superior Court within 35 days of being served the order.”, “detailed_answer”: “The decision is binding, but parties have the right to seek judicial review. This appeal must be filed with the Superior Court within a strict 35-day window following the service of the order.”, “alj_quote”: “A party wishing to appeal this order must seek judicial review as prescribed by ARIZ. REV. STAT. § 41-1092.08(H) and title 12, chapter 7, article 6. Any such appeal must be filed with the superior court within thirty-five days from the date when a copy of this order was served upon the parties.”, “legal_basis”: “A.R.S. § 41-1092.08(H); A.R.S. § 12-904(A)”, “topic_tags”: [ “appeals”, “judicial review”, “superior court” ] } ] }

Case Participants

Petitioner Side

  • Robert J. Garing (petitioner)
    Prescott Lakes Community Association, Inc. member
    Also served as alternate Voting Member for 2 years
  • James Thomas Joan (witness)
    Also listed as Jimmy Yiannis

Respondent Side

  • Adrianne A. Speas (HOA attorney)
    Krupnik & Speas, LLC
    Appeared as counsel for Respondent
  • Robert Sisley (board president; witness)
    Prescott Lakes Community Association, Inc.
    Also Alternate Voting Member for Parkside; served as the association representative
  • Catherine Black (assistant community manager; witness)
    Homeco
    Homeco is the HOA management company for Respondent
  • Lynn M. Krupnik (HOA attorney)
    Krupnik & Speas, LLC
    Counsel listed for Respondent in distribution

Neutral Parties

  • Jenna Clark (ALJ)
    OAH
  • Susan Nicolson (ADRE Commissioner)
    Arizona Department of Real Estate
    Final decision authority/recipient of ALJ Decision

Paul Gounder vs. Royal Riviera Condominium Association

Case Summary

Case ID 17F-H1716002-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2017-06-12
Administrative Law Judge Suzanne Marwil
Outcome partial
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Paul Gounder Counsel
Respondent Royal Riviera Condominium Association Counsel Mark Kristopher Sahl

Alleged Violations

A.R.S. § 33-1250(C)(2)

Outcome Summary

The Administrative Law Judge found Respondent violated A.R.S. § 33-1250(C)(2) by using two substantively different ballots during the 2016 board election,. Respondent was ordered to reimburse the Petitioner’s $500.00 filing fee,. The Administrative Law Judge concluded Respondent did not violate A.R.S. § 33-1250(C)(4),.

Why this result: Petitioner failed to prove violation of A.R.S. § 33-1250(C)(4), which specifies timing requirements for ballots; the ALJ noted that a meeting ballot did not need to contain a received-by date or be mailed seven days in advance if it had been substantively the same as the compliant absentee ballot,,,.

Key Issues & Findings

Ballot must provide an opportunity to vote for or against each proposed action.

The use of two substantively different ballots in the March 2016 election violated A.R.S. § 33-1250(C)(2) because members who did not attend the meeting were unaware of an additional candidate (Eric Thompson) listed on the meeting ballot, thereby denying those members the opportunity to vote for or against each proposed action contained in the meeting ballot,. This finding does not require ballots to be identical, but substantive changes must be presented to all members,,.

Orders: Petitioner's Petition was granted, and Respondent was ordered to reimburse Petitioner's filing fee of $500.00,. No other relief was available.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1250(C)(2)
  • A.R.S. § 32-2199.02
  • A.R.S. § 41-1092.08

Analytics Highlights

Topics: HOA, Condominium, Board Election, Absentee Ballot, Statutory Violation, Filing Fee Reimbursement
Additional Citations:

  • A.R.S. § 33-1250(C)(2)
  • A.R.S. § 33-1250(C)(4)
  • A.R.S. § 33-1250(C)
  • A.R.S. § 41-2198.01
  • Article VII CC&Rs

Video Overview

Audio Overview

Decision Documents

17F-H1716002-REL Decision – 564851.pdf

Uploaded 2026-04-24T10:59:29 (44.2 KB)

17F-H1716002-REL Decision – 567887.pdf

Uploaded 2026-04-24T10:59:37 (79.0 KB)

17F-H1716002-REL Decision – 575055.pdf

Uploaded 2026-04-24T10:59:43 (689.5 KB)

17F-H1716002-REL Decision – 523915.pdf

Uploaded 2026-04-24T10:59:47 (103.0 KB)

Briefing Document: Gounder v. Royal Riviera Condominium Association

Executive Summary

This briefing document synthesizes the key events, arguments, and legal conclusions from the administrative case of Paul Gounder versus the Royal Riviera Condominium Association (Case No. 17F-H1716002-REL-RHG). The central issue revolved around the Association’s use of two substantively different ballots for its March 14, 2016, board member election.

The Petitioner, Paul Gounder, alleged that the use of a separate mail-in ballot and an in-person meeting ballot, which contained different candidate lists, violated Arizona statute A.R.S. § 33-1250(C)(2). Specifically, the ballot distributed at the meeting included the name of a seventh candidate, Eric Thompson, who was not listed on the mail-in ballot, thereby denying absentee voters the opportunity to vote for all candidates.

After an initial hearing resulted in a recommended dismissal, a rehearing was granted. Administrative Law Judge (ALJ) Suzanne Marwil ultimately concluded that the Association’s actions constituted a statutory violation. The Judge found that because members voting by mail were not informed of Mr. Thompson’s candidacy, they were denied their right to vote “for or against each proposed action.” The Respondent’s argument that the matter was moot due to a subsequent election was rejected.

The Department of Real Estate adopted the ALJ’s decision, issuing a Final Order on June 12, 2017. The Order granted the petition and required the Royal Riviera Condominium Association to reimburse Mr. Gounder’s $500.00 filing fee. The ruling establishes that while election ballots are not required to be identical, any substantive changes must be presented to all members to ensure an equal opportunity to vote.

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I. Case Overview and Background

This matter was brought before the Arizona Department of Real Estate and the Office of Administrative Hearings.

Petitioner: Paul Gounder, a condominium owner and member of the Association.

Respondent: Royal Riviera Condominium Association, a homeowners’ association for a development of approximately 32 condominiums.

Initial Petition: Filed on or about June 23, 2016.

Core Allegation: The Association violated A.R.S. § 33-1250(C)(2) and its own CC&Rs by using two substantively different ballots to elect Board members at its March 14, 2016, annual meeting.

II. Procedural History

1. Initial Hearing (October 17, 2016): A hearing was held before Administrative Law Judge Diane Mihalsky.

2. Recommended Dismissal (October 18, 2016): Judge Mihalsky recommended the petition be dismissed, concluding:

3. Rehearing Granted (February 17, 2017): The Petitioner requested a rehearing, which the Department of Real Estate granted. The Department’s order specifically requested a review of A.R.S. § 33-1250, with a focus on subsection (C)(4).

4. Rehearing (May 17, 2017): A rehearing was held before Administrative Law Judge Suzanne Marwil. At this hearing, the Respondent raised a procedural question regarding the correct statutory subsection for review, leading to a temporary order holding the record open until May 24, 2017, for clarification.

5. ALJ Decision (June 2, 2017): Judge Marwil issued a decision finding that the Respondent had committed a statutory violation.

6. Final Order (June 12, 2017): The Commissioner of the Department of Real Estate, Judy Lowe, accepted the ALJ’s decision and issued a Final Order making the decision binding.

III. The Core Dispute: The Two-Ballot System

The parties stipulated that two different ballots were used for the March 14, 2016, board election, which had seven open positions. The key differences are outlined below.

Feature

Mail Ballot (Absentee)

Meeting Ballot (In-Person)

“Mail Ballot”

“Ballot”

Candidates Listed

Six names

Seven names (added Eric Thompson)

Write-in Option

Included a blank line for a write-in candidate

No space provided for write-in candidates

Distribution

Distributed at least seven days before the meeting

Handed out to members attending the meeting

Return Deadline

Specified the date by which it had to be returned

Did not specify when it needed to be returned

IV. Arguments of the Parties

A. Petitioner’s Position (Paul Gounder)

Violation of A.R.S. § 33-1250(C)(2): The addition of Eric Thompson’s name to the meeting ballot deprived members who voted by mail of their right “to vote for or against each proposed action,” as they had no opportunity to vote for Mr. Thompson.

Violation of A.R.S. § 33-1250(C)(4): The meeting ballot violated this subsection because it was not mailed to all members at least seven days in advance of the meeting and did not provide a date by which it had to be received to be counted.

B. Respondent’s Position (Royal Riviera Condominium Association)

No Violation: The statutes do not explicitly require the use of identical ballots for an election.

Common Practice: It is a common practice for homeowners’ associations to use a different absentee ballot and meeting ballot.

Mootness: The issue is moot because the Association had already held another election in 2017 and seated a new board, which included the Petitioner’s wife as a member.

V. Administrative Law Judge’s Findings and Conclusions

In her June 2, 2017 decision, ALJ Suzanne Marwil made the following key legal conclusions:

The ALJ found that the Association’s use of two substantively different ballots did violate this statute.

Reasoning: Members who did not attend the meeting in person were not notified of Mr. Thompson’s willingness to run for the board. As a result, “these members did not have the opportunity to vote for him and hence were denied their right to vote for or against each proposed action contained in the meeting ballot.”

Clarification: The ruling explicitly states that this finding does not impose a requirement that all ballots must be identical; however, it establishes that “substantive changes to ballots must be presented to all members.”

The ALJ concluded that no violation of this subsection occurred.

Reasoning: The Petitioner conceded that the absentee ballot itself complied with the statutory requirements (e.g., being mailed seven days in advance with a return-by date). The judge reasoned that a meeting ballot handed out in person would not need to contain this information if it were “substantively the same as the absentee ballot.” The legal problem arose not from a failure to mail the second ballot, but from the substantive difference between the two.

The ALJ determined that the matter was not rendered moot by the 2017 election and the seating of a new board. The Judge affirmed that the tribunal “can and does find that Respondent committed a statutory violation in the course of holding its 2016 election.”

VI. Final Order and Outcome

ALJ Recommended Order (June 2, 2017):

◦ The Petitioner’s petition should be granted.

◦ The Respondent must reimburse the Petitioner’s filing fee.

◦ No other relief was available to the Petitioner.

Department of Real Estate Final Order (June 12, 2017):

◦ The Commissioner of the Department of Real Estate accepted and adopted the ALJ’s decision.

◦ The Order is a final administrative action, effective immediately.

◦ The Royal Riviera Condominium Association was ordered to reimburse the Petitioner’s filing fee of $500.00 within thirty (30) days.

◦ The parties were notified that the Order could be appealed via a complaint for judicial review.

Study Guide: Gounder v. Royal Riviera Condominium Association

This study guide provides a comprehensive review of the administrative case Paul Gounder v. Royal Riviera Condominium Association, Case No. 17F-H1716002-REL-RHG. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms based on the provided legal documents.

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Short-Answer Quiz

Instructions: Answer the following ten questions in 2-3 sentences each, based on the information in the case documents.

1. What was the central allegation made by the Petitioner, Paul Gounder, in his initial petition?

2. Describe the two different ballots used by the Royal Riviera Condominium Association for its March 14, 2016, board election.

3. What were the two primary legal arguments made by the Respondent, Royal Riviera Condominium Association, to defend its actions?

4. What was the initial outcome of the hearing held on October 17, 2016, before Administrative Law Judge Diane Mihalsky?

5. What was Administrative Law Judge Suzanne Marwil’s final conclusion regarding the alleged violation of A.R.S. § 33-1250(C)(2)?

6. How did Judge Marwil explain her finding that A.R.S. § 33-1250(C)(4), which deals with ballot delivery timelines, was not violated?

7. How did the Respondent argue that the case was moot, and why did Judge Marwil reject this argument?

8. According to the Final Order issued by the Commissioner of the Department of Real Estate, what specific relief was granted to the Petitioner?

9. What is the standard of proof in this matter, and which party has the burden of proof?

10. What specific action did the Department of Real Estate request be reviewed when it granted the request for a rehearing?

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Answer Key

1. The Petitioner, Paul Gounder, alleged that the Respondent violated A.R.S. § 33-1250(C)(2) and its own CC&Rs. The violation occurred by using two substantively different ballots for the election of Board members at the annual meeting on March 14, 2016.

2. The first ballot was an absentee “Mail Ballot” with six candidate names and a blank line for a write-in. The second ballot, handed out at the meeting, was titled “Ballot” and included the names of seven candidates (adding Eric Thompson) but had no space for a write-in candidate.

3. The Respondent argued that it committed no violation because the statutes do not explicitly require the use of identical ballots and that using different absentee and meeting ballots is common practice. It also maintained that the matter was moot because a new election had already occurred in 2017.

4. Following the initial hearing, Judge Diane Mihalsky recommended the dismissal of the Petition on October 18, 2016. She concluded that no statute or bylaw prevented the Respondent from adding the names of willing members to the ballot used at the annual election.

5. Judge Suzanne Marwil found that the use of two substantively different ballots did violate A.R.S. § 33-1250(C)(2). Because members voting by mail were not informed of Eric Thompson’s candidacy, they were denied their right to vote for or against each proposed action.

6. Judge Marwil concluded A.R.S. § 33-1250(C)(4) was not violated because the absentee ballot itself complied with the statute’s requirements for delivery timelines. She reasoned that a meeting ballot would not need to meet these requirements if it were substantively the same as the compliant absentee ballot; the problem arose only because the ballots were different.

7. The Respondent argued the case was moot because a new board had been seated in a 2017 election. Judge Marwil rejected this, stating that the fact a new board is seated does not prevent an Administrative Law Judge from finding that a statutory violation occurred in a past election.

8. The Final Order, issued by Commissioner Judy Lowe on June 12, 2017, granted the Petitioner’s petition. It ordered the Respondent to reimburse the Petitioner’s filing fee of $500.00 within thirty (30) days.

9. The standard of proof is a “preponderance of the evidence,” as stated in A.A.C. R2-19-119(A). Pursuant to A.A.C. R2-19-119(B), the Petitioner has the burden of proof in the matter.

10. In its February 17, 2017, Order Granting Request for Rehearing, the Department of Real Estate specifically requested a review of A.R.S. § 33-1250, and in particular, A.R.S. § 33-1250(C)(4).

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Suggested Essay Questions

Instructions: The following questions are designed for longer, essay-style responses to test a deeper understanding of the case. Answers are not provided.

1. Analyze the legal distinction Judge Marwil makes between ballots being “identical” versus “substantively different.” How did this distinction become the central point upon which her decision on A.R.S. § 33-1250(C)(2) turned?

2. Trace the procedural history of this case, from the filing of the initial petition to the issuance of the Final Order. Discuss the role and decisions of each key actor, including Petitioner Gounder, Respondent Royal Riviera, ALJ Mihalsky, ALJ Marwil, and Commissioner Lowe.

3. Evaluate the legal arguments presented by the Respondent. Why was the argument about “common practice” for homeowners’ associations ultimately unpersuasive, and why did the “mootness” doctrine not apply?

4. Discuss the significance of the specific provisions within A.R.S. § 33-1250(C). How do subsections (C)(2) and (C)(4) work together to ensure fair voting rights for all members of a condominium association, including those who vote by absentee ballot?

5. Examine the relationship between the Arizona Department of Real Estate and the Office of Administrative Hearings as demonstrated in this case. How do they interact to adjudicate disputes between homeowners and their associations?

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An official who presides over administrative hearings, hears evidence, and makes legal findings and recommendations. In this case, Diane Mihalsky and Suzanne Marwil served as ALJs.

A.R.S. (Arizona Revised Statutes)

The codified collection of laws for the state of Arizona. This case centered on the interpretation of A.R.S. § 33-1250.

Arizona Department of Real Estate (the Department)

The state agency authorized by statute to receive and decide Petitions for Hearings from members of homeowners’ associations in Arizona. It granted the rehearing and accepted the final ALJ decision.

CC&Rs (Covenants, Conditions, and Restrictions)

The governing legal documents that set up the rules for a planned community or condominium. The Petitioner alleged the Respondent violated Article VII of its CC&Rs.

Final Order

The concluding and binding decision in an administrative case. In this matter, the Final Order was issued by the Commissioner of the Department of Real Estate on June 12, 2017, accepting the ALJ’s decision.

A legal term for a matter that is no longer in controversy or has become irrelevant. The Respondent unsuccessfully argued the case was moot because a subsequent election had been held.

Office of Administrative Hearings (OAH)

An independent state agency that conducts administrative hearings for other state agencies. The Department of Real Estate referred this case to the OAH for a hearing.

Petitioner

The party who files a petition initiating a legal or administrative action. In this case, the Petitioner was Paul Gounder.

Preponderance of the Evidence

The standard of proof required in this administrative hearing. It means the party with the burden of proof must convince the judge that there is a greater than 50% chance that their claim is true.

Rehearing

A second hearing of a case to review the decision made in the first hearing. The Petitioner requested and was granted a rehearing after the initial recommendation to dismiss his petition.

Respondent

The party against whom a petition is filed. In this case, the Respondent was the Royal Riviera Condominium Association.

Your HOA’s Election Rules Might Be Unfair. This Court Case Explains Why.

Introduction: The Devil in the Details

Living in a community governed by a Homeowners’ Association (HOA) often means navigating a complex web of rules, regulations, and procedures. While most are designed to maintain property values and community standards, the enforcement of these rules can sometimes feel arbitrary. But what happens when the very process for electing the board that enforces those rules is flawed?

A fascinating legal challenge demonstrates that even a single, seemingly minor discrepancy in an HOA election can have significant consequences. But the victory was anything but certain. In the case of Paul Gounder versus the Royal Riviera Condominium Association, the homeowner’s initial petition was actually recommended for dismissal by the first judge. It was only through persistence—requesting a rehearing—that the homeowner ultimately prevailed. This case serves as a powerful real-world example of why procedural fairness in community governance is not just important—it’s legally required—and reveals several surprising lessons for any homeowner who values a fair and transparent election process.

Takeaway 1: “Common Practice” Isn’t a Legal Defense

When challenged on its election procedures, the Royal Riviera Condominium Association’s defense was simple: it was merely following “common practice.” The board argued that many HOAs use a different absentee and in-person ballot, so they had done nothing wrong. However, the Administrative Law Judge disregarded this argument entirely, focusing instead on the explicit requirements of Arizona statute A.R.S. § 33-1250(C)(2). This decision provides a crucial lesson for all homeowners: an association’s internal habits or traditions do not override clear legal statutes. If a state law or the community’s own governing documents dictate a specific procedure, the HOA must follow it, regardless of what other associations might be doing. This empowers homeowners by showing that the law, not just internal tradition, is the ultimate authority governing their association’s actions.

Takeaway 2: A “Small” Change Can Invalidate an Election

The dispute in the March 14, 2016 election centered on two different ballots used for the same board election. The mail-in ballot, sent to members voting absentee, listed six names and included a blank line for a write-in candidate. The in-person ballot, distributed to members at the meeting, listed seven names—adding candidate Eric Thompson—and provided no space for write-ins. This difference was not seen as a minor error but as a “substantive” change that fundamentally altered the election. The judge reasoned that members who voted by mail “did not have the opportunity to vote for him and hence were denied their right to vote for or against each proposed action contained in the meeting ballot.”

The judge made a critical distinction about what constitutes a fair process, clarifying that the issue wasn’t about perfection, but equality of opportunity.

Finding this violation does not impose a requirement that ballots be identical; it simply states that substantive changes to ballots must be presented to all members.

This point is not about minor cosmetic differences like fonts or paper color. It’s about ensuring every single voting member has the exact same set of choices. Adding or removing a candidate on one version of a ballot creates two different elections, disenfranchising one group of voters. This ruling affirms that a fair election requires that all members have an equal opportunity to vote on all candidates and measures.

Takeaway 3: Accountability Matters, Even After the Fact

The association attempted to have the case dismissed by arguing that the issue was “moot.” Because a new election had already been held in 2017 and a new board was in place, the HOA claimed the flawed 2016 election no longer mattered. The Administrative Law Judge explicitly rejected this argument. The decision stated that “the fact that a new board is currently seated does not render the matter moot as the Administrative Law Judge can and does find that Respondent committed a statutory violation in the course of holding its 2016 election.” The final order granted the homeowner’s petition and required the Royal Riviera Condominium Association to reimburse his $500.00 filing fee. This is an impactful takeaway for any homeowner who feels it’s too late to act. It demonstrates that an HOA can be held legally accountable for past procedural violations, establishing an important precedent for the community and putting the board on notice for future conduct.

Conclusion: Knowledge is Power

The case of Gounder v. Royal Riviera Condominium Association is a powerful reminder that procedural fairness, strict adherence to legal statutes, and the vigilance of individual homeowners are essential checks on the power of an HOA board. The core lesson is clear: seemingly small details in an election process can have major legal consequences. Homeowners who take the time to understand the specific laws and bylaws governing their community can successfully challenge their associations. But this case also teaches a deeper lesson about perseverance. Faced with an initial recommendation for dismissal, the homeowner could have given up. Instead, he challenged the ruling and won on rehearing, proving that knowledge combined with conviction is a powerful force for ensuring the principles of fairness and equality are upheld.

Does your own community’s voting process ensure every member has an equal voice, and would it stand up to this kind of scrutiny?

Case Participants

Petitioner Side

  • Paul Gounder (petitioner)
  • Frederick C. Zehm (witness)
    Royal Riviera Condominium Association member
    Testified for Petitioner
  • Marlys Kleck (witness)
    Royal Riviera Condominium Association member
    Testified for Petitioner

Respondent Side

  • Mark Kristopher Sahl (HOA attorney)
    Carpenter Hazlewood Delgado & Bolen PLC
  • Dan Peterson (property manager)
    Owner of Respondent's management company

Neutral Parties

  • Diane Mihalsky (ALJ)
    Presided over initial hearing
  • Suzanne Marwil (ALJ)
    Presided over rehearing
  • Judy Lowe (ADRE Commissioner)
    Arizona Department of Real Estate
  • Abby Hansen (ADRE staff/HOA Coordinator)
    Arizona Department of Real Estate
    Also listed as AHansen
  • LDettorre (ADRE staff)
    Arizona Department of Real Estate
  • djones (ADRE staff)
    Arizona Department of Real Estate
  • jmarshall (ADRE staff)
    Arizona Department of Real Estate
  • ncano (ADRE staff)
    Arizona Department of Real Estate
  • M. Aguirre (staff)
    Transmitted order

Other Participants

  • Eric Thompson (member/candidate)
    Candidate added to meeting ballot
  • Al DeFalco (member/candidate)
    Nominated from the floor

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