The Petition was upheld on all issues asserted by the Petitioner. The Respondent was found in violation of A.R.S. § 33-1250(C) (failure to provide election documents), A.R.S. § 33-1248(B) (failure to hold an annual meeting in 2019), and Article 3, Section 2 of the Bylaws (improperly prohibiting write-in ballots). Respondent was ordered to supply Petitioner with relevant documents and refund the Petitioner's filing fee of $1,500.00. No Civil Penalty was found appropriate.
Respondent failed to provide Petitioner with the required election materials and documentation from the October 2018 elections, violating statutory requirements for retention and availability of these materials for owner inspection.
Orders: Respondent ordered to supply Petitioner with the relevant documents, pursuant to A.R.S. § 33-1250(C), within ten (10) days of the Order.
Filing fee: $1,500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1250(C)
Open meetings; exceptions
Respondent postponed its required yearly 2019 meeting until January 2020, resulting in a failure to hold a unit owners' association meeting in 2019 as required by statute.
Orders: Petition upheld on this issue.
Filing fee: $1,500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1248(B)
Selection
Respondent's board of directors declared write-in ballots invalid for the November 20, 2019, election. Since the Bylaws were silent on prohibiting write-in ballots, Respondent failed to show how the ballots were invalid.
Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
Video Overview
Audio Overview
Decision Documents
20F-H2019033-REL Decision – 778923.pdf
Uploaded 2026-01-23T17:31:15 (108.5 KB)
Briefing Doc – 20F-H2019033-REL
Briefing Document: Bischoff v. Country Hills West Condominium Association
Executive Summary
This document synthesizes the findings and decision in the case of Donna M. Bischoff v. Country Hills West Condominium Association, Inc. (No. 20F-H2019033-REL), heard by the Arizona Office of Administrative Hearings. The Administrative Law Judge found entirely in favor of the Petitioner, Donna M. Bischoff, concluding that the Respondent, Country Hills West Condominium Association (“the Association”), committed multiple violations of Arizona state statutes and its own governing documents.
The core violations upheld by the court are:
1. Failure to Hold a Required Annual Meeting: The Association violated A.R.S. § 33-1248(B) by failing to hold its required annual meeting within the 2019 calendar year, repeatedly postponing it until January 2020.
2. Failure to Provide Election Records: The Association violated A.R.S. § 33-1250(C) by failing to provide the Petitioner with complete election materials for inspection, including ballots, envelopes, and sign-in sheets from the October 2018 election.
3. Improper Prohibition of Write-In Ballots: The Association violated Article 3, Section 2 of its Bylaws by unilaterally prohibiting write-in ballots for the 2019 election, despite its governing documents being silent on the issue.
As a result, the Association was ordered to provide the requested documents to the Petitioner within ten days and to reimburse her $1,500 filing fee within thirty days. The decision underscores the legal obligation of homeowners’ associations to adhere strictly to statutory requirements for meetings, elections, and record transparency.
——————————————————————————–
I. Case Overview
The dispute was adjudicated by the Office of Administrative Hearings following a petition filed by homeowner Donna M. Bischoff with the Arizona Department of Real Estate on December 11, 2019.
Case Detail
Information
Case Name
Donna M Bischoff, Petitioner, v. Country Hills West Condominium Association, Inc., Respondent
Case Number
20F-H2019033-REL
Adjudicator
Administrative Law Judge Antara Nath Rivera
Hearing Date
March 10, 2020
Decision Date
March 30, 2020
Petitioner Representative
Donna M. Bischoff (on her own behalf)
Respondent Representative
Doug Meyer, President and Director
II. Petitioner’s Allegations
The Petitioner, Donna M. Bischoff, asserted that the Country Hills West Condominium Association committed violations of state law and its own governing documents. The specific allegations were:
• Violation of A.R.S. § 33-1248(B): Failure to hold the mandatory annual unit owners’ association meeting within the 2019 calendar year.
• Violation of A.R.S. § 33-1250(C): Failure to make election materials, including ballots and related items, available for inspection by a unit owner.
• Violation of Bylaws Article 3, Section 2: Improperly invalidating election ballots by prohibiting write-in candidates without any authority from the governing documents.
The Petitioner bore the burden of proof to establish these violations by a “preponderance of the evidence,” defined as “such proof as convinces the trier of fact that the contention is more probably true than not.”
III. Core Issues and Factual Findings
The hearing established several key facts that formed the basis of the Judge’s decision. The testimony from both Ms. Bischoff and the Association’s President, Doug Meyer, was central to these findings.
A. Failure to Hold the 2019 Annual Meeting
• Timeline of Events: The Association’s required annual meeting for 2019 was initially scheduled for November 20, 2019. It was subsequently postponed three times: first to December 19, 2019; then to December 30, 2019; and ultimately held on January 24, 2020.
• Respondent’s Justification: Mr. Meyer testified that the postponements were necessary because write-in candidates appeared on the ballot, which the board had prohibited. He stated that the board “needed time to reprint the ballot and mail them out.”
• Conclusion of Law: The evidence was undisputed that no annual meeting took place during the 2019 calendar year. The Judge concluded that by postponing the meeting into the following year, the Association was in direct violation of A.R.S. § 33-1248(B), which mandates that “A meeting of the unit owners’ association shall be held at least once each year.”
B. Denial of Access to Election Records
• Petitioner’s Request: In October 2018, Ms. Bischoff requested to see the election results from the October 2018 meeting, specifically seeking to know which units had voted.
• Respondent’s Response: The Association initially did not provide the results. A few weeks prior to the March 2020 hearing, it supplied Ms. Bischoff with vote tallies and a list of unit members who voted. However, it failed to provide the full scope of required materials.
• Missing Documentation: The Association did not provide the “ballots, envelopes, related materials, and sign-in sheets” as mandated by statute for inspection.
• Respondent’s Justification: Mr. Meyer argued that no election actually occurred at the October 18, 2018, meeting because there was no quorum. He further made the admission that the Association had not achieved a quorum for any meeting in the preceding 20 years. He claimed that without an election, there was no obligation to publish ballots.
• Conclusion of Law: The Judge found that the Association violated A.R.S. § 33-1250(C). The statute requires that “Ballots, envelopes and related materials… shall be retained… and made available for unit owner inspection for at least one year.” The partial and delayed provision of records was insufficient to meet this legal requirement.
C. Improper Prohibition of Write-In Ballots
• The Dispute: The November 20, 2019, meeting was cancelled because some ballots contained write-in candidates. The board of directors informed members that write-in ballots were prohibited and would be “thrown out.”
• Petitioner’s Argument: Ms. Bischoff argued that the board could not “choose how to interpret a silent document.” She pointed out that the Bylaws and Articles of Incorporation do not prohibit write-in ballots and that the same board had allowed them in a 2017 election.
• Respondent’s Position: Mr. Meyer acknowledged that the Bylaws were silent on the issue but stated the Association needed to “figure out how to handle” them. A membership meeting to discuss the issue was held on December 30, 2019, but failed to achieve a quorum.
• Conclusion of Law: The Judge determined that the Association violated its own Bylaws. The decision states, “absent any clear language in the A.R.S. or the Bylaws prohibiting write in ballots, Respondent failed to show how the ballots were invalid.” The board’s unilateral prohibition was therefore found to be improper.
IV. Legal Conclusions and Final Order
The Administrative Law Judge upheld the petition on all issues, finding that the Petitioner had successfully proven her case by a preponderance of the evidence.
Final Order:
Based on the foregoing conclusions, IT IS ORDERED that:
1. The Petition filed by Donna M. Bischoff is upheld on all issues.
2. The Petitioner is deemed the prevailing party in the matter.
3. The Respondent must supply the Petitioner with the relevant election documents pursuant to A.R.S. § 33-1250(C) within ten (10) days of the Order.
4. The Respondent must pay the Petitioner’s filing fee of $1,500.00 directly to the Petitioner within thirty (30) days of the Order.
5. No Civil Penalty is found to be appropriate in this matter.
The Order is binding on the parties unless a request for rehearing is filed with the Commissioner of the Department of Real Estate within 30 days of the service of the Order.
Study Guide – 20F-H2019033-REL
Study Guide: Bischoff v. Country Hills West Condominium Association, Inc.
This study guide provides a review of the Administrative Law Judge Decision in case number 20F-H2019033-REL, concerning a dispute between a homeowner and a condominium association. It includes a quiz with an answer key, essay questions for deeper analysis, and a glossary of key terms found in the source document.
——————————————————————————–
Short-Answer Quiz
Instructions: Answer the following questions in 2-3 sentences each, based on the provided source document.
1. Who were the primary parties in the legal dispute, and what were their roles?
2. What specific violations did the Petitioner, Donna M. Bischoff, allege against the Respondent?
3. Why was the 2019 yearly meeting for the Country Hills West Condominium Association repeatedly rescheduled?
4. What was the Respondent’s position on the validity of write-in ballots for the November 20, 2019, election?
5. What information did the Petitioner request from the October 2018 election, and what was the initial response?
6. What is the definition of “quorum” according to the association’s Bylaws, and why was it significant in this case?
7. What is the legal standard of proof the Petitioner was required to meet in this hearing?
8. According to the decision, how did the Respondent violate A.R.S. § 33-1248(B) regarding association meetings?
9. According to the decision, how did the Respondent violate A.R.S. § 33-1250(C) regarding election materials?
10. What were the key components of the final Order issued by the Administrative Law Judge?
——————————————————————————–
Answer Key
1. The primary parties were Donna M. Bischoff, the Petitioner, and the Country Hills West Condominium Association, Inc., the Respondent. The Petitioner is the homeowner who filed the complaint, and the Respondent is the homeowners association accused of violations.
2. The Petitioner alleged violations of Arizona Revised Statutes (A.R.S.) § 33-1250(C) and § 33-1248(B), as well as Article 3, Section 2 of the association’s Bylaws. These allegations related to the handling of yearly meetings and elections.
3. The 2019 yearly meeting was initially scheduled for November 20, 2019, but was rescheduled three times, ultimately taking place in January 2020. The first cancellation was because some ballots contained write-in candidates, which the board deemed prohibited.
4. The Respondent’s representative, Doug Meyer, testified that members were informed that write-in ballots were not valid for the November 20, 2019, election. He stated that any ballots with write-in candidates would have been thrown out.
5. The Petitioner requested to see the election results from the October 2018 election, specifically wanting to know which units voted. While she was eventually given the voting tallies, the Respondent did not initially provide the requested results.
6. Quorum is defined in Article 4, Section 3 of the Bylaws. It was significant because the Respondent’s president, Mr. Meyer, acknowledged that the association had not achieved a quorum for its meetings in the last 20 years, and thus no election occurred at the October 18, 2018, meeting.
7. The Petitioner had the burden of proof to establish the alleged violations by a “preponderance of the evidence.” This standard is defined as proof that convinces the trier of fact that a contention is more probably true than not.
8. The Respondent violated A.R.S. § 33-1248(B) by failing to hold a required yearly meeting within the calendar year of 2019. The evidence showed that the meeting scheduled for 2019 was postponed until January 2020.
9. The Respondent violated A.R.S. § 33-1250(C) by failing to provide the Petitioner with all required election materials from the 2018 election. While vote tallies were eventually provided, the statute requires that ballots, envelopes, and related materials be retained and made available for inspection for at least one year.
10. The Administrative Law Judge’s Order upheld the Petition on all issues, deemed the Petitioner the prevailing party, and required the Respondent to supply the relevant documents within 10 days. The Order also mandated that the Respondent reimburse the Petitioner’s filing fee of $1,500.00 within 30 days.
——————————————————————————–
Essay Questions
Instructions: The following questions are designed for longer, more analytical responses. Use the information presented in the source document to construct a comprehensive argument for each prompt.
1. Analyze the Respondent’s handling of the write-in ballot issue for the 2019 election. Discuss the legal basis (or lack thereof) for their actions as presented in the hearing, and explain why the Administrative Law Judge ultimately ruled that their prohibition of these ballots was a violation of the Bylaws.
2. Explain the concept of “quorum” as it relates to this case. How did the association’s failure to achieve a quorum for 20 years impact its governance, specifically regarding the 2018 meeting and the Respondent’s obligation to produce election records?
3. Describe in detail the specific violations of the Arizona Revised Statutes (A.R.S.) that the Country Hills West Condominium Association was found to have committed. For each statute (A.R.S. § 33-1248(B) and A.R.S. § 33-1250(C)), detail the legal requirement and explain how the Respondent’s actions failed to meet that standard.
4. Discuss the legal standard of “preponderance of the evidence.” Using testimony and evidence presented by both the Petitioner and the Respondent, explain how the Petitioner successfully met this burden of proof for her allegations.
5. Outline the final Order issued by the Administrative Law Judge. Beyond the simple outcome, explain the significance of each component of the order, including the validation of the petition, the designation of a “prevailing party,” the directive to supply documents, and the financial remedy awarded.
——————————————————————————–
Glossary of Key Terms
Definition
Administrative Law Judge
An official who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions and orders. In this case, Antara Nath Rivera.
Arizona Department of Real Estate (Department)
The state agency with which a homeowner or planned community organization can file a petition for a hearing concerning violations of community documents or statutes.
Arizona Revised Statutes (A.R.S.)
The collection of laws enacted by the Arizona state legislature. The specific statutes cited were A.R.S. §§ 33-1250(C) and 33-1248(B).
Bylaws
The rules and regulations that govern the internal operations of an organization, such as a homeowners association. In this case, the Bylaws of Country Hills West Association, Inc. were a key document.
Homeowners Association (HOA)
An organization in a subdivision, planned community, or condominium that makes and enforces rules for the properties and its residents.
Office of Administrative Hearings
The state agency where petitions filed with the Department of Real Estate are heard before an Administrative Law Judge.
Petitioner
The party who files a petition or brings a legal action against another party. In this case, Donna M. Bischoff.
Preponderance of the evidence
The standard of proof in this civil administrative case. It is met when the evidence presented is sufficient to “incline a fair and impartial mind to one side of the issue rather than the other.”
Quorum
The minimum number of members of an assembly or society that must be present at any of its meetings to make the proceedings of that meeting valid. The Respondent had not achieved quorum for 20 years.
Respondent
The party against whom a petition is filed or a legal action is brought. In this case, Country Hills West Condominium Association, Inc.
Blog Post – 20F-H2019033-REL
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20F-H2019033-REL
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This source is an Administrative Law Judge Decision from the Office of Administrative Hearings regarding a dispute between Donna M. Bischoff, the Petitioner, and Country Hills West Condominium Association, Inc., the Respondent. The document details the hearing held on March 10, 2020, where the Petitioner alleged the Condominium Association violated Arizona Revised Statutes (A.R.S.) and the association’s Bylaws. Specifically, the Petitioner claimed violations related to the failure to hold a required yearly meeting in 2019, the failure to provide election materials for inspection, and the improper prohibition of write-in ballots where the Bylaws were silent. The Administrative Law Judge ultimately upheld the Petition on all issues, finding the Respondent in violation, and ordered the Association to provide the requested documents and pay the Petitioner’s $1,500.00 filing fee.
What were the specific legal violations found against the Condominium Association regarding meetings and documents?
How did the lack of clarity in the Bylaws regarding write-in ballots impact the association’s actions?
What was the ultimate outcome of this administrative hearing, including the ordered remedies for the petitioner?
Based on 1 source
Case Participants
Petitioner Side
Donna M Bischoff(petitioner) Appeared on her own behalf
Respondent Side
Doug Meyer(president, director, witness) Country Hills West Condominium Association, Inc. Appeared and testified on behalf of Respondent
Neutral Parties
Antara Nath Rivera(ALJ) OAH
Judy Lowe(commissioner) Arizona Department of Real Estate Decision transmitted electronically to Commissioner
The Petition was upheld on all issues asserted by the Petitioner. The Respondent was found in violation of A.R.S. § 33-1250(C) (failure to provide election documents), A.R.S. § 33-1248(B) (failure to hold an annual meeting in 2019), and Article 3, Section 2 of the Bylaws (improperly prohibiting write-in ballots). Respondent was ordered to supply Petitioner with relevant documents and refund the Petitioner's filing fee of $1,500.00. No Civil Penalty was found appropriate.
Respondent failed to provide Petitioner with the required election materials and documentation from the October 2018 elections, violating statutory requirements for retention and availability of these materials for owner inspection.
Orders: Respondent ordered to supply Petitioner with the relevant documents, pursuant to A.R.S. § 33-1250(C), within ten (10) days of the Order.
Filing fee: $1,500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1250(C)
Open meetings; exceptions
Respondent postponed its required yearly 2019 meeting until January 2020, resulting in a failure to hold a unit owners' association meeting in 2019 as required by statute.
Orders: Petition upheld on this issue.
Filing fee: $1,500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1248(B)
Selection
Respondent's board of directors declared write-in ballots invalid for the November 20, 2019, election. Since the Bylaws were silent on prohibiting write-in ballots, Respondent failed to show how the ballots were invalid.
Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
Video Overview
Audio Overview
Decision Documents
20F-H2019033-REL Decision – 778923.pdf
Uploaded 2025-10-09T03:34:47 (108.5 KB)
Briefing Doc – 20F-H2019033-REL
Briefing Document: Bischoff v. Country Hills West Condominium Association
Executive Summary
This document synthesizes the findings and decision in the case of Donna M. Bischoff v. Country Hills West Condominium Association, Inc. (No. 20F-H2019033-REL), heard by the Arizona Office of Administrative Hearings. The Administrative Law Judge found entirely in favor of the Petitioner, Donna M. Bischoff, concluding that the Respondent, Country Hills West Condominium Association (“the Association”), committed multiple violations of Arizona state statutes and its own governing documents.
The core violations upheld by the court are:
1. Failure to Hold a Required Annual Meeting: The Association violated A.R.S. § 33-1248(B) by failing to hold its required annual meeting within the 2019 calendar year, repeatedly postponing it until January 2020.
2. Failure to Provide Election Records: The Association violated A.R.S. § 33-1250(C) by failing to provide the Petitioner with complete election materials for inspection, including ballots, envelopes, and sign-in sheets from the October 2018 election.
3. Improper Prohibition of Write-In Ballots: The Association violated Article 3, Section 2 of its Bylaws by unilaterally prohibiting write-in ballots for the 2019 election, despite its governing documents being silent on the issue.
As a result, the Association was ordered to provide the requested documents to the Petitioner within ten days and to reimburse her $1,500 filing fee within thirty days. The decision underscores the legal obligation of homeowners’ associations to adhere strictly to statutory requirements for meetings, elections, and record transparency.
——————————————————————————–
I. Case Overview
The dispute was adjudicated by the Office of Administrative Hearings following a petition filed by homeowner Donna M. Bischoff with the Arizona Department of Real Estate on December 11, 2019.
Case Detail
Information
Case Name
Donna M Bischoff, Petitioner, v. Country Hills West Condominium Association, Inc., Respondent
Case Number
20F-H2019033-REL
Adjudicator
Administrative Law Judge Antara Nath Rivera
Hearing Date
March 10, 2020
Decision Date
March 30, 2020
Petitioner Representative
Donna M. Bischoff (on her own behalf)
Respondent Representative
Doug Meyer, President and Director
II. Petitioner’s Allegations
The Petitioner, Donna M. Bischoff, asserted that the Country Hills West Condominium Association committed violations of state law and its own governing documents. The specific allegations were:
• Violation of A.R.S. § 33-1248(B): Failure to hold the mandatory annual unit owners’ association meeting within the 2019 calendar year.
• Violation of A.R.S. § 33-1250(C): Failure to make election materials, including ballots and related items, available for inspection by a unit owner.
• Violation of Bylaws Article 3, Section 2: Improperly invalidating election ballots by prohibiting write-in candidates without any authority from the governing documents.
The Petitioner bore the burden of proof to establish these violations by a “preponderance of the evidence,” defined as “such proof as convinces the trier of fact that the contention is more probably true than not.”
III. Core Issues and Factual Findings
The hearing established several key facts that formed the basis of the Judge’s decision. The testimony from both Ms. Bischoff and the Association’s President, Doug Meyer, was central to these findings.
A. Failure to Hold the 2019 Annual Meeting
• Timeline of Events: The Association’s required annual meeting for 2019 was initially scheduled for November 20, 2019. It was subsequently postponed three times: first to December 19, 2019; then to December 30, 2019; and ultimately held on January 24, 2020.
• Respondent’s Justification: Mr. Meyer testified that the postponements were necessary because write-in candidates appeared on the ballot, which the board had prohibited. He stated that the board “needed time to reprint the ballot and mail them out.”
• Conclusion of Law: The evidence was undisputed that no annual meeting took place during the 2019 calendar year. The Judge concluded that by postponing the meeting into the following year, the Association was in direct violation of A.R.S. § 33-1248(B), which mandates that “A meeting of the unit owners’ association shall be held at least once each year.”
B. Denial of Access to Election Records
• Petitioner’s Request: In October 2018, Ms. Bischoff requested to see the election results from the October 2018 meeting, specifically seeking to know which units had voted.
• Respondent’s Response: The Association initially did not provide the results. A few weeks prior to the March 2020 hearing, it supplied Ms. Bischoff with vote tallies and a list of unit members who voted. However, it failed to provide the full scope of required materials.
• Missing Documentation: The Association did not provide the “ballots, envelopes, related materials, and sign-in sheets” as mandated by statute for inspection.
• Respondent’s Justification: Mr. Meyer argued that no election actually occurred at the October 18, 2018, meeting because there was no quorum. He further made the admission that the Association had not achieved a quorum for any meeting in the preceding 20 years. He claimed that without an election, there was no obligation to publish ballots.
• Conclusion of Law: The Judge found that the Association violated A.R.S. § 33-1250(C). The statute requires that “Ballots, envelopes and related materials… shall be retained… and made available for unit owner inspection for at least one year.” The partial and delayed provision of records was insufficient to meet this legal requirement.
C. Improper Prohibition of Write-In Ballots
• The Dispute: The November 20, 2019, meeting was cancelled because some ballots contained write-in candidates. The board of directors informed members that write-in ballots were prohibited and would be “thrown out.”
• Petitioner’s Argument: Ms. Bischoff argued that the board could not “choose how to interpret a silent document.” She pointed out that the Bylaws and Articles of Incorporation do not prohibit write-in ballots and that the same board had allowed them in a 2017 election.
• Respondent’s Position: Mr. Meyer acknowledged that the Bylaws were silent on the issue but stated the Association needed to “figure out how to handle” them. A membership meeting to discuss the issue was held on December 30, 2019, but failed to achieve a quorum.
• Conclusion of Law: The Judge determined that the Association violated its own Bylaws. The decision states, “absent any clear language in the A.R.S. or the Bylaws prohibiting write in ballots, Respondent failed to show how the ballots were invalid.” The board’s unilateral prohibition was therefore found to be improper.
IV. Legal Conclusions and Final Order
The Administrative Law Judge upheld the petition on all issues, finding that the Petitioner had successfully proven her case by a preponderance of the evidence.
Final Order:
Based on the foregoing conclusions, IT IS ORDERED that:
1. The Petition filed by Donna M. Bischoff is upheld on all issues.
2. The Petitioner is deemed the prevailing party in the matter.
3. The Respondent must supply the Petitioner with the relevant election documents pursuant to A.R.S. § 33-1250(C) within ten (10) days of the Order.
4. The Respondent must pay the Petitioner’s filing fee of $1,500.00 directly to the Petitioner within thirty (30) days of the Order.
5. No Civil Penalty is found to be appropriate in this matter.
The Order is binding on the parties unless a request for rehearing is filed with the Commissioner of the Department of Real Estate within 30 days of the service of the Order.
Study Guide – 20F-H2019033-REL
Study Guide: Bischoff v. Country Hills West Condominium Association, Inc.
This study guide provides a review of the Administrative Law Judge Decision in case number 20F-H2019033-REL, concerning a dispute between a homeowner and a condominium association. It includes a quiz with an answer key, essay questions for deeper analysis, and a glossary of key terms found in the source document.
——————————————————————————–
Short-Answer Quiz
Instructions: Answer the following questions in 2-3 sentences each, based on the provided source document.
1. Who were the primary parties in the legal dispute, and what were their roles?
2. What specific violations did the Petitioner, Donna M. Bischoff, allege against the Respondent?
3. Why was the 2019 yearly meeting for the Country Hills West Condominium Association repeatedly rescheduled?
4. What was the Respondent’s position on the validity of write-in ballots for the November 20, 2019, election?
5. What information did the Petitioner request from the October 2018 election, and what was the initial response?
6. What is the definition of “quorum” according to the association’s Bylaws, and why was it significant in this case?
7. What is the legal standard of proof the Petitioner was required to meet in this hearing?
8. According to the decision, how did the Respondent violate A.R.S. § 33-1248(B) regarding association meetings?
9. According to the decision, how did the Respondent violate A.R.S. § 33-1250(C) regarding election materials?
10. What were the key components of the final Order issued by the Administrative Law Judge?
——————————————————————————–
Answer Key
1. The primary parties were Donna M. Bischoff, the Petitioner, and the Country Hills West Condominium Association, Inc., the Respondent. The Petitioner is the homeowner who filed the complaint, and the Respondent is the homeowners association accused of violations.
2. The Petitioner alleged violations of Arizona Revised Statutes (A.R.S.) § 33-1250(C) and § 33-1248(B), as well as Article 3, Section 2 of the association’s Bylaws. These allegations related to the handling of yearly meetings and elections.
3. The 2019 yearly meeting was initially scheduled for November 20, 2019, but was rescheduled three times, ultimately taking place in January 2020. The first cancellation was because some ballots contained write-in candidates, which the board deemed prohibited.
4. The Respondent’s representative, Doug Meyer, testified that members were informed that write-in ballots were not valid for the November 20, 2019, election. He stated that any ballots with write-in candidates would have been thrown out.
5. The Petitioner requested to see the election results from the October 2018 election, specifically wanting to know which units voted. While she was eventually given the voting tallies, the Respondent did not initially provide the requested results.
6. Quorum is defined in Article 4, Section 3 of the Bylaws. It was significant because the Respondent’s president, Mr. Meyer, acknowledged that the association had not achieved a quorum for its meetings in the last 20 years, and thus no election occurred at the October 18, 2018, meeting.
7. The Petitioner had the burden of proof to establish the alleged violations by a “preponderance of the evidence.” This standard is defined as proof that convinces the trier of fact that a contention is more probably true than not.
8. The Respondent violated A.R.S. § 33-1248(B) by failing to hold a required yearly meeting within the calendar year of 2019. The evidence showed that the meeting scheduled for 2019 was postponed until January 2020.
9. The Respondent violated A.R.S. § 33-1250(C) by failing to provide the Petitioner with all required election materials from the 2018 election. While vote tallies were eventually provided, the statute requires that ballots, envelopes, and related materials be retained and made available for inspection for at least one year.
10. The Administrative Law Judge’s Order upheld the Petition on all issues, deemed the Petitioner the prevailing party, and required the Respondent to supply the relevant documents within 10 days. The Order also mandated that the Respondent reimburse the Petitioner’s filing fee of $1,500.00 within 30 days.
——————————————————————————–
Essay Questions
Instructions: The following questions are designed for longer, more analytical responses. Use the information presented in the source document to construct a comprehensive argument for each prompt.
1. Analyze the Respondent’s handling of the write-in ballot issue for the 2019 election. Discuss the legal basis (or lack thereof) for their actions as presented in the hearing, and explain why the Administrative Law Judge ultimately ruled that their prohibition of these ballots was a violation of the Bylaws.
2. Explain the concept of “quorum” as it relates to this case. How did the association’s failure to achieve a quorum for 20 years impact its governance, specifically regarding the 2018 meeting and the Respondent’s obligation to produce election records?
3. Describe in detail the specific violations of the Arizona Revised Statutes (A.R.S.) that the Country Hills West Condominium Association was found to have committed. For each statute (A.R.S. § 33-1248(B) and A.R.S. § 33-1250(C)), detail the legal requirement and explain how the Respondent’s actions failed to meet that standard.
4. Discuss the legal standard of “preponderance of the evidence.” Using testimony and evidence presented by both the Petitioner and the Respondent, explain how the Petitioner successfully met this burden of proof for her allegations.
5. Outline the final Order issued by the Administrative Law Judge. Beyond the simple outcome, explain the significance of each component of the order, including the validation of the petition, the designation of a “prevailing party,” the directive to supply documents, and the financial remedy awarded.
——————————————————————————–
Glossary of Key Terms
Definition
Administrative Law Judge
An official who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions and orders. In this case, Antara Nath Rivera.
Arizona Department of Real Estate (Department)
The state agency with which a homeowner or planned community organization can file a petition for a hearing concerning violations of community documents or statutes.
Arizona Revised Statutes (A.R.S.)
The collection of laws enacted by the Arizona state legislature. The specific statutes cited were A.R.S. §§ 33-1250(C) and 33-1248(B).
Bylaws
The rules and regulations that govern the internal operations of an organization, such as a homeowners association. In this case, the Bylaws of Country Hills West Association, Inc. were a key document.
Homeowners Association (HOA)
An organization in a subdivision, planned community, or condominium that makes and enforces rules for the properties and its residents.
Office of Administrative Hearings
The state agency where petitions filed with the Department of Real Estate are heard before an Administrative Law Judge.
Petitioner
The party who files a petition or brings a legal action against another party. In this case, Donna M. Bischoff.
Preponderance of the evidence
The standard of proof in this civil administrative case. It is met when the evidence presented is sufficient to “incline a fair and impartial mind to one side of the issue rather than the other.”
Quorum
The minimum number of members of an assembly or society that must be present at any of its meetings to make the proceedings of that meeting valid. The Respondent had not achieved quorum for 20 years.
Respondent
The party against whom a petition is filed or a legal action is brought. In this case, Country Hills West Condominium Association, Inc.
Blog Post – 20F-H2019033-REL
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This source is an Administrative Law Judge Decision from the Office of Administrative Hearings regarding a dispute between Donna M. Bischoff, the Petitioner, and Country Hills West Condominium Association, Inc., the Respondent. The document details the hearing held on March 10, 2020, where the Petitioner alleged the Condominium Association violated Arizona Revised Statutes (A.R.S.) and the association’s Bylaws. Specifically, the Petitioner claimed violations related to the failure to hold a required yearly meeting in 2019, the failure to provide election materials for inspection, and the improper prohibition of write-in ballots where the Bylaws were silent. The Administrative Law Judge ultimately upheld the Petition on all issues, finding the Respondent in violation, and ordered the Association to provide the requested documents and pay the Petitioner’s $1,500.00 filing fee.
What were the specific legal violations found against the Condominium Association regarding meetings and documents?
How did the lack of clarity in the Bylaws regarding write-in ballots impact the association’s actions?
What was the ultimate outcome of this administrative hearing, including the ordered remedies for the petitioner?
Based on 1 source
Case Participants
Petitioner Side
Donna M Bischoff(petitioner) Appeared on her own behalf
Respondent Side
Doug Meyer(president, director, witness) Country Hills West Condominium Association, Inc. Appeared and testified on behalf of Respondent
Neutral Parties
Antara Nath Rivera(ALJ) OAH
Judy Lowe(commissioner) Arizona Department of Real Estate Decision transmitted electronically to Commissioner
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
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.
Briefing Document: Gounder v. Royal Riviera Condominium Association
Executive Summary
This briefing document synthesizes the legal proceedings and outcomes of the case Paul Gounder v. Royal Riviera Condominium Association. The core issue revolves around the Association’s use of two substantively different ballots during its March 14, 2016, Board of Directors election, a practice the petitioner alleged violated state law and the Association’s governing documents.
The central finding, established after a rehearing, is that the Royal Riviera Condominium Association violated Arizona Revised Statutes (A.R.S.) § 33-1250(C)(2). The violation occurred because an absentee ballot listed six candidates with a write-in option, while a separate ballot distributed at the annual meeting listed seven candidates with no write-in option. This discrepancy deprived members voting by absentee ballot of the opportunity to vote for or against the seventh candidate, thereby denying them their full voting rights.
An initial Administrative Law Judge (ALJ) decision on October 18, 2016, had dismissed the petition, finding no explicit rule against the Association’s actions. However, this ruling was overturned following a rehearing. The second ALJ decision, issued on June 2, 2017, concluded that while ballots need not be identical, any substantive changes must be presented to all members to ensure a fair election. The Respondent’s argument that the issue was moot due to a subsequent election was explicitly rejected.
The Arizona Department of Real Estate adopted the second ALJ’s decision in a Final Order on June 12, 2017. The Association was ordered to reimburse the petitioner’s $500 filing fee, and the ruling was declared a final, binding administrative action.
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1. Case Overview
• Parties:
◦ Petitioner: Paul Gounder
◦ Respondent: Royal Riviera Condominium Association
• Jurisdiction: Arizona Department of Real Estate, Office of Administrative Hearings
• Case Numbers: 17F-H1716002-REL, 17F-H1716002-REL-RHG, HO-17-16/002
• Core Allegation: On June 23, 2016, Paul Gounder filed a petition alleging that the Royal Riviera Condominium Association violated A.R.S. § 33-1250(C)(2) and its Covenants, Conditions, and Restrictions (CC&Rs) by using two substantively different ballots to elect Board members at its annual meeting on March 14, 2016.
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2. Factual Background of the Disputed Election
The facts surrounding the March 14, 2016 election were described as “essentially undisputed” in the initial hearing.
• Election Context: The Royal Riviera development consists of approximately 32 condominiums. The Association has a seven-member Board of Directors. All seven positions were up for election at the March 14, 2016, annual meeting.
• Nomination Process:
◦ In December 2015, the Association notified members of the upcoming election and requested nominating forms.
◦ Three members submitted forms.
◦ Three incumbent board members indicated via email or phone their willingness to continue serving.
• Creation of the Absentee Ballot:
◦ The Association prepared an “absentee/write-in ballot” (also referred to as the “Mail Ballot”) containing the names of the six members who had indicated a willingness to serve.
◦ The ballot included a blank line for a write-in candidate and stipulated that it must be received by 12:00 p.m. on March 14, 2016, to be counted.
• Emergence of a Seventh Candidate:
◦ Prior to the meeting, the Association received absentee ballots with three write-in candidates.
◦ One write-in candidate indicated they were unwilling to serve.
◦ The other two write-in candidates shared a unit and requested that only one of their names, Eric Thompson, be considered.
• Creation of the Meeting Ballot:
◦ To accommodate the seven willing candidates for the seven open positions, the Association prepared a second ballot for members attending the meeting in person.
◦ This “Ballot” listed the original six candidates plus Eric Thompson.
◦ Crucially, this second ballot did not contain a space for write-in candidates.
• Election Results:
◦ Approximately seventeen members attended the annual meeting.
◦ A member, Al DeFalco, was nominated from the floor.
◦ Despite the floor nomination, the seven candidates listed on the meeting ballot received the most votes and were elected to the Board.
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3. Procedural History and Rulings
The case proceeded through an initial hearing, a dismissal, a rehearing, a reversal, and a final administrative order.
3.1. Initial Hearing and Decision (October 2016)
• Hearing Date: October 17, 2016
• Presiding ALJ: Diane Mihalsky
• Petitioner’s Argument: The use of a second, different ballot at the meeting violated A.R.S. § 33-1250(C)(2)’s requirement that ballots “provide an opportunity to vote for or against each proposed action.”
• ALJ Mihalsky’s Conclusion (October 18, 2016): The petition was recommended for dismissal. The judge reasoned that “no statute, CC&R, or bylaw by its plain language prevents Respondent from adding to the ballot that will used at the annual election that names of all members who have indicated a willingness to serve on the Board.” The decision noted that Board members are uncompensated volunteers and found no requirement for the Association to re-contact members who had not submitted nomination forms.
3.2. Rehearing and Second Decision (May-June 2017)
The initial decision was certified by the OAH, and the Petitioner successfully requested a rehearing from the Department of Real Estate.
• Hearing Date: May 17, 2017
• Presiding ALJ: Suzanne Marwil
• Key Arguments at Rehearing:
◦ Petitioner: The addition of a seventh candidate to the meeting ballot deprived absentee voters of their right to vote for or against all proposed actions. The meeting ballot also violated A.R.S. § 33-1250(C)(4) as it was not mailed seven days in advance.
◦ Respondent: No violation occurred, as statutes do not require identical ballots. It is common practice for HOAs to use different absentee and meeting ballots. The matter was moot because a new election was held in 2017.
• ALJ Marwil’s Conclusions of Law (June 2, 2017): The second decision granted the Petitioner’s petition, finding a statutory violation.
◦ Violation of A.R.S. § 33-1250(C)(2) Found: The use of two substantively different ballots was a violation. The decision stated: “Because the members who did not attend the meeting in person were not told of Mr. Thompson’s wiliness to run for the board, 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 on “Identical Ballots”: The ruling explicitly noted that it “does not impose a requirement that ballots be identical; it simply states that substantive changes to ballots must be presented to all members.”
◦ Mootness Argument Rejected: The ALJ found that the subsequent 2017 election did not render the matter moot, stating that the Judge “can and does find that Respondent committed a statutory violation in the course of holding its 2016 election.”
◦ No Violation of A.R.S. § 33-1250(C)(4): The absentee ballot complied with this subsection’s mailing and deadline requirements. A meeting ballot would not need to meet these requirements if it were “substantively the same as the absentee ballot.” The problem arose specifically because the ballots were different.
3.3. Final Order (June 12, 2017)
• Judy Lowe, Commissioner of the Department of Real Estate, issued a Final Order accepting and adopting the ALJ decision of June 2, 2017.
• The order was declared final and effective immediately.
• Mandate: The Respondent, Royal Riviera Condominium Association, was ordered to “reimburse Petitioner’s filing fee of $500.00 within thirty (30) days.”
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4. Key Statutes and Governing Documents
A.R.S. § 33-1250(C) – Voting and Ballots
This Arizona statute provides procedures for voting in condominium associations. Key subsections cited in the case are:
• General Provision: “The association shall provide for votes to be cast in person and by absentee ballot…”
• 1. The ballot shall set forth each proposed action.
• 2. The ballot shall provide an opportunity to vote for or against each proposed action. (This was the basis for the final ruling).
• 3. The ballot is valid for only one specified election or meeting…
• 4. The ballot specifies the time and date by which the ballot must be delivered… which shall be at least seven days after the date that the board delivers the unvoted ballot to the member.
Royal Riviera CC&Rs, Article VII – Membership and Voting
• Section 2: The Association has one class of voting membership, with all owners entitled to one vote per apartment owned.
• Section 4: Every owner has the right to cumulate votes in an election for the Board. The number of votes equals the number of apartments owned multiplied by the number of directors to be elected.
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5. Notable Testimony and Quotes
Witness/Party
Affiliation
Key Testimony or Statement
Marlys Kleck
Petitioner’s Witness
Testified that after being given the new ballot at the meeting, she “hurriedly completed” it, then realized it was more appropriate to use her absentee ballot. She asked for the new ballot back and submitted her original. She stated she “believed that the March 14, 2016 election was a fraud.”
Dan Peterson
Respondent’s Witness
Testified that it was “hard to find seven members to accept Board positions” and that “most elections of Board members were not contested.” Explained the process for verifying candidate eligibility.
Paul Gounder
Petitioner
Argued that the Respondent “had arbitrarily selected the members whom it contacted about serving on the Board and that to be fair, Respondent should have called all of its members about whether they were willing to serve.”
ALJ Diane Mihalsky
First ALJ Decision
“No statute, CC&R, or bylaw by its plain language prevents Respondent from adding to the ballot… the names of all members who have indicated a willingness to serve on the Board.”
ALJ Suzanne Marwil
Second ALJ Decision
“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.”
Study Guide – 17F-H1716002-REL-RHG
Gounder v. Royal Riviera Condominium Association: A Study Guide
Short-Answer Quiz
Instructions: Answer the following questions in 2-3 sentences based on the information provided in the case documents.
1. What was the central violation alleged by the Petitioner, Paul Gounder, in his petition filed on June 23, 2016?
2. Describe the key differences between the “Mail Ballot” and the “Ballot” used for the March 14, 2016 election.
3. How did Eric Thompson’s name come to be added to the ballot used at the annual meeting?
4. What was the initial ruling issued by Administrative Law Judge Diane Mihalsky on October 18, 2016?
5. What was the Respondent’s argument that the case should be considered “moot,” and how did the Administrative Law Judge in the rehearing address this claim?
6. According to the rehearing decision by Administrative Law Judge Suzanne Marwil, which specific Arizona statute did the Respondent violate?
7. What was the testimony of witness Marlys Kleck regarding her experience with the two ballots at the annual meeting?
8. According to Article VII, Section 4 of the Respondent’s CC&Rs, what is “cumulative voting”?
9. Did the final ruling require that the absentee ballot and the meeting ballot be identical in all future elections?
10. What was the final, binding order issued by the Commissioner of the Department of Real Estate on June 12, 2017?
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Answer Key
1. Paul Gounder alleged that the Royal Riviera Condominium Association violated A.R.S. § 33-1250(C)(2) and Article VII of its CC&Rs. The core of the allegation was that the association improperly used two substantively different ballots to elect Board members at the March 14, 2016 annual meeting.
2. The “Mail Ballot” (absentee ballot) listed six candidates and included a blank line for write-in candidates. The “Ballot” provided at the meeting was different in that it listed seven candidates (adding Eric Thompson) and had no space for write-in candidates.
3. Eric Thompson was initially a write-in candidate on absentee ballots. After the association received these ballots, its management company contacted the write-in candidates to confirm their willingness to serve; Mr. Thompson was the only one who agreed and was subsequently added to the ballot used at the meeting.
4. The initial ruling by Judge Mihalsky recommended dismissing the petition. She concluded that no statute, CC&R, or bylaw prevented the association from adding the names of all members who had indicated a willingness to serve to the ballot used at the annual election.
5. The Respondent argued the matter was moot because it had already held another election in 2017 and had a new board. Judge Marwil rejected this, stating that the fact a new board was seated did not render the matter moot, as she could still find that the Respondent committed a statutory violation during its 2016 election.
6. Judge Marwil found that the Respondent violated A.R.S. § 33-1250(C)(2). She reasoned that because members who did not attend the meeting were not told of Mr. Thompson’s candidacy, they were denied their right to vote for or against each proposed action, specifically the action of electing him.
7. Marlys Kleck testified that she brought her completed absentee ballot to the meeting but was given the new ballot with seven names. She hurriedly filled out the new ballot but then realized it would have been more appropriate to submit her original one, leading her to ask for the new ballot back and submit her absentee ballot instead.
8. Cumulative voting gives every owner the right to a number of votes equal to the number of apartments they own multiplied by the number of directors to be elected. The owner can then give all their votes to one candidate or divide them among any number of candidates.
9. No, the ruling did not impose a requirement that ballots be identical. Judge Marwil’s decision explicitly stated that finding a violation “simply states that substantive changes to ballots must be presented to all members.”
10. The final order, issued by Commissioner Judy Lowe, accepted the Administrative Law Judge’s decision. It ordered that the Petitioner’s petition be granted and that the Respondent must reimburse the Petitioner’s filing fee of $500.00 within thirty (30) days.
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Essay Questions
Instructions: The following questions are designed for a more in-depth analysis of the case. Formulate a comprehensive response for each, drawing upon the facts, legal arguments, and rulings presented in the source documents.
1. Analyze and contrast the legal reasoning of Administrative Law Judge Diane Mihalsky’s initial decision with Judge Suzanne Marwil’s final decision. What specific interpretation of A.R.S. § 33-1250 was central to the reversal of the outcome?
2. Discuss the Respondent’s argument that using two different ballots is “common practice” for homeowners’ associations. Based on the final ruling, evaluate the validity of relying on common practice when it appears to conflict with specific statutory requirements.
3. Examine the rights of absentee voters within a homeowners’ association election, using the events of this case as a primary example. How did the association’s actions and procedures during the 2016 election impact these rights, and what principle did the final ruling establish to protect them?
4. The Respondent argued the case was moot because a new election had already occurred and a new board was seated. Explain the legal concept of mootness and discuss why the Administrative Law Judge rejected this argument, finding that a statutory violation could still be identified and ruled upon.
5. Evaluate the association’s process for identifying and finalizing its slate of candidates for the board election. Based on the testimony and events described, what procedural weaknesses were exposed, and how did they directly contribute to the legal dispute over the two ballots?
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Glossary of Key Terms
Definition
A.R.S.
Abbreviation for Arizona Revised Statutes, the collection of laws for the state of Arizona.
Absentee Ballot
A ballot that allows a member to vote without being physically present at the election meeting. In this case, it was also referred to as a “Mail Ballot.”
Administrative Law Judge (ALJ)
An official who presides over hearings at administrative agencies. In this case, Diane Mihalsky and Suzanne Marwil served as ALJs for the Office of Administrative Hearings.
Covenants, Conditions, and Restrictions. These are rules that govern a planned community or condominium development, which are legally binding on the property owners.
Cumulative Voting
As defined in the Respondent’s CC&Rs, a voting method where an owner has a number of votes equal to their apartments multiplied by the number of board seats open. The owner can cast all votes for one candidate or distribute them among multiple candidates.
Final Order
A legally binding decision issued at the conclusion of an administrative legal process. In this case, it was issued by the Commissioner of the Department of Real Estate, accepting the ALJ’s decision and making it enforceable.
Homeowners’ Association (HOA)
An organization in a subdivision, planned community, or condominium development that makes and enforces rules for the properties and its residents. The Royal Riviera Condominium Association is the HOA in this case.
A legal term for a matter that is no longer in controversy or has become irrelevant. The Respondent argued the case was moot because a new election had already taken place.
Petitioner
The party who files a petition initiating a legal action. In this case, Paul Gounder is the Petitioner.
Preponderance of the Evidence
The standard of proof in this civil administrative case. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not” and is considered the “greater weight of the evidence.”
Rehearing
A second hearing of a case to review the decision of the first hearing. A rehearing was granted to the Petitioner after the initial dismissal of his petition.
Respondent
The party against whom a petition is filed. In this case, the Royal Riviera Condominium Association is the Respondent.
Blog Post – 17F-H1716002-REL-RHG
He Sued His HOA Over One Name on a Ballot—And Won. Here’s What Every Homeowner Needs to Know.
1.0 Introduction: The David vs. Goliath of Community Living
Every homeowner in a managed community knows the feeling: a letter from the HOA arrives, and a sense of powerlessness follows. But one Arizona owner proved the rules are not just a one-way street. The board, often backed by management companies and law firms, can seem unchallengeable, but a surprising case demonstrates that the system can be held accountable, sometimes because of the smallest details.
This is the story of Paul Gounder, a condominium owner who single-handedly challenged his HOA’s election process and won. Without a lawyer, he filed a petition that resulted in a state-level ruling against his association. This article unpacks the key takeaways from the legal battle of Gounder v. Royal Riviera Condominium Association—lessons that are essential for any homeowner living in a managed community.
2.0Takeaway 1: One Person Can Successfully Challenge the System
On June 23, 2016, Paul Gounder, an owner in the 32-unit Royal Riviera Condominium Association, filed a petition with the Arizona Department of Real Estate. His core allegation was straightforward: the association had violated state law (A.R.S. § 33-1250(C)(2)) by using two different ballots for its board member election held on March 14, 2016.
Throughout the proceedings, the HOA was represented by a law firm. Mr. Gounder represented himself. Despite this imbalance, he ultimately prevailed. The final order not only found the association in violation but required it to reimburse Mr. Gounder for his $500.00 filing fee, proving that a well-founded challenge from a single member can succeed.
3.0Takeaway 2: “Common Practice” Is Not a Legal Defense
In its defense, the Royal Riviera Condominium Association argued that it was “common practice for homeowners associations to use one absentee ballot and a different meeting ballot” and that they had not committed any violation. They essentially claimed they were doing what many other HOAs do.
The final judge’s decision, however, was based strictly on the statute. The “common practice” defense was disregarded entirely. The ruling makes it clear that what is customary is irrelevant when it contradicts the explicit requirements of the law. Adherence to governing statutes is paramount. This principle was even acknowledged in the initial judge’s decision, which, despite siding with the HOA at first, noted the high standard boards are held to:
Board members are volunteers who are not compensated for their service to the community. Although Respondent is bound by the unequivocal language of applicable statutes, CC&Rs, and bylaws…
4.0Takeaway 3: A Fair Election Can Hinge on the Smallest Detail
The central issue of the case was a seemingly minor detail in the election materials. The HOA prepared an absentee/mail-in ballot that listed six candidates for seven open board seats and included a blank line for a write-in. However, after some members used the write-in option, the HOA identified a seventh willing candidate, Eric Thompson.
For the in-person meeting, the HOA prepared a different ballot. This new ballot included Mr. Thompson’s name, bringing the total to seven candidates. Critically, this meeting ballot had no space for new write-in candidates. This difference was the fatal flaw. The final Administrative Law Judge explained why this was a violation of the law:
Because the members who did not attend the meeting in person were not told of Mr. Thompson’s willingness [sic] to run for the board, 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. 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 ruling protects the rights of members who vote absentee. It ensures that those who cannot attend a meeting in person have the exact same opportunity to consider and vote for all candidates as those who are physically present.
5.0Takeaway 4: An Initial Loss Isn’t the End of the Road
Mr. Gounder’s victory was not immediate. His case demonstrates the importance of persistence when a member believes a rule has been broken.
• First Hearing (October 17, 2016): The first Administrative Law Judge, Diane Mihalsky, initially ruled in favor of the HOA, recommending that the petition be dismissed.
• Rehearing: Undeterred, the petitioner requested a rehearing, which was granted by the Arizona Department of Real Estate.
• Final Decision (June 2, 2017): A new judge, Suzanne Marwil, reviewed the case. She reversed the initial outcome, finding that the HOA had committed a statutory violation by using two substantively different ballots.
• Final Order (June 12, 2017): The Commissioner of the Department of Real Estate officially accepted Judge Marwil’s decision, making it a binding order.
This sequence highlights that an initial unfavorable ruling is not necessarily the final word. The appeals and review processes exist to correct errors and ensure the law is applied properly.
6.0 Conclusion: Why Procedural Fairness Matters
The case of Gounder v. Royal Riviera Condominium Association serves as a powerful reminder that the rules governing HOA elections are not just formalities. They are essential safeguards designed to ensure fair, transparent, and equal participation for all members of a community, whether they cast their vote by mail or in person.
This case was decided by a single name on a ballot—what small details in your community’s governance might be more important than they appear?
Case Participants
Petitioner Side
Paul Gounder(petitioner)
Frederick C. Zehm(witness) Respondent member Testified for Petitioner
Marlys Kleck(witness) Respondent member Testified for Petitioner
Respondent Side
Royal Riviera Condominium Association(respondent) Entity, not a human individual
Mark Kristopher Sahl(respondent attorney) Carpenter Hazlewood Delgado & Bolen PLC
Dan Peterson(property manager) Owner of Respondent's management company Testified for Respondent
Eric Thompson(Board member) Candidate whose name was added to meeting ballot
Neutral Parties
Diane Mihalsky(ALJ) ALJ for initial hearing (Oct 2016)
Suzanne Marwil(ALJ) ALJ for rehearing (May/June 2017)
Judy Lowe(Commissioner) Arizona Department of Real Estate
Abby Hansen(HOA Coordinator) Arizona Department of Real Estate Also listed as A. Hansen
L. Dettorre(ADRE Staff) Arizona Department of Real Estate
D. Jones(ADRE Staff) Arizona Department of Real Estate
J. Marshall(ADRE Staff) Arizona Department of Real Estate
N. Cano(ADRE Staff) Arizona Department of Real Estate
M. Aguirre(Admin Staff) Handled transmission of May 17, 2017 Order
Other Participants
Al DeFalco(candidate) Nominated from the floor at the annual meeting
The Petitioner achieved a partial win. The Respondent HOA was found to have violated A.R.S. § 33-1250(C)(2) by using substantively different ballots which impaired the voting rights of absentee members. The HOA was ordered to reimburse the Petitioner’s $500.00 filing fee, but no other relief was granted.
Why this result: Petitioner failed to prove a violation of A.R.S. § 33-1250(C)(4).
Key Issues & Findings
Denial of right to vote for or against each proposed action due to substantively different ballots.
The Respondent violated A.R.S. § 33-1250(C)(2) by using two substantively different ballots for the 2016 election. The meeting ballot included a seventh candidate whose name was not on the mail-in ballot, denying members who did not attend the meeting the opportunity to vote for or against all proposed candidates.
Orders: Petitioner's Petition is granted. Respondent must reimburse Petitioner’s filing fee of $500.00 within thirty (30) days. No other relief is available to Petitioner.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1250(C)(2)
A.R.S. § 33-1250(C)
Absentee Ballot Requirements (Received-by date and advance delivery)
The ALJ concluded Respondent did not violate A.R.S. § 33-1250(C)(4). While the meeting ballot lacked the statutory requirements listed in C(4), those requirements apply primarily to absentee ballots, and a meeting ballot does not need to comply if it is substantively the same as the compliant absentee ballot.
Orders: The Administrative Law Judge concluded Respondent did not violate A.R.S. § 33-1250(C)(4).
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.
The Petitioner achieved a partial win. The Respondent HOA was found to have violated A.R.S. § 33-1250(C)(2) by using substantively different ballots which impaired the voting rights of absentee members. The HOA was ordered to reimburse the Petitioner’s $500.00 filing fee, but no other relief was granted.
Why this result: Petitioner failed to prove a violation of A.R.S. § 33-1250(C)(4).
Key Issues & Findings
Denial of right to vote for or against each proposed action due to substantively different ballots.
The Respondent violated A.R.S. § 33-1250(C)(2) by using two substantively different ballots for the 2016 election. The meeting ballot included a seventh candidate whose name was not on the mail-in ballot, denying members who did not attend the meeting the opportunity to vote for or against all proposed candidates.
Orders: Petitioner's Petition is granted. Respondent must reimburse Petitioner’s filing fee of $500.00 within thirty (30) days. No other relief is available to Petitioner.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1250(C)(2)
A.R.S. § 33-1250(C)
Absentee Ballot Requirements (Received-by date and advance delivery)
The ALJ concluded Respondent did not violate A.R.S. § 33-1250(C)(4). While the meeting ballot lacked the statutory requirements listed in C(4), those requirements apply primarily to absentee ballots, and a meeting ballot does not need to comply if it is substantively the same as the compliant absentee ballot.
Orders: The Administrative Law Judge concluded Respondent did not violate A.R.S. § 33-1250(C)(4).
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.
——————————————————————————–
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.
The Petitioner achieved a partial win. The Respondent HOA was found to have violated A.R.S. § 33-1250(C)(2) by using substantively different ballots which impaired the voting rights of absentee members. The HOA was ordered to reimburse the Petitioner’s $500.00 filing fee, but no other relief was granted.
Why this result: Petitioner failed to prove a violation of A.R.S. § 33-1250(C)(4).
Key Issues & Findings
Denial of right to vote for or against each proposed action due to substantively different ballots.
The Respondent violated A.R.S. § 33-1250(C)(2) by using two substantively different ballots for the 2016 election. The meeting ballot included a seventh candidate whose name was not on the mail-in ballot, denying members who did not attend the meeting the opportunity to vote for or against all proposed candidates.
Orders: Petitioner's Petition is granted. Respondent must reimburse Petitioner’s filing fee of $500.00 within thirty (30) days. No other relief is available to Petitioner.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1250(C)(2)
A.R.S. § 33-1250(C)
Absentee Ballot Requirements (Received-by date and advance delivery)
The ALJ concluded Respondent did not violate A.R.S. § 33-1250(C)(4). While the meeting ballot lacked the statutory requirements listed in C(4), those requirements apply primarily to absentee ballots, and a meeting ballot does not need to comply if it is substantively the same as the compliant absentee ballot.
Orders: The Administrative Law Judge concluded Respondent did not violate A.R.S. § 33-1250(C)(4).
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.
——————————————————————————–
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.
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.
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.
——————————————————————————–
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 – 17F-H1716002-REL
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.
Blog Post – 17F-H1716002-REL
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
