Case Summary
| Case ID | 22F-H2221014-REL |
|---|---|
| Agency | ADRE |
| Tribunal | OAH |
| Decision Date | 2021-12-30 |
| Administrative Law Judge | Thomas Shedden |
| Outcome | The Petitioner prevailed by showing the Association violated ARIZ. REV. STAT. section 33-1243. The Association was ordered to refund the $500.00 filing fee. Petitioner's requests for voiding election results, assessing a civil penalty, and appointing an administrator were denied. |
| Filing Fees Refunded | $500.00 |
| Civil Penalties | $0.00 |
Parties & Counsel
| Petitioner | James Iannuzo | Counsel | — |
|---|---|---|---|
| Respondent | Moonrise at Starr Pass Community Association | Counsel | Jason E. Smith |
Alleged Violations
ARIZ. REV. STAT. section 33-1243(H)(4)
Outcome Summary
The Petitioner prevailed by showing the Association violated ARIZ. REV. STAT. section 33-1243. The Association was ordered to refund the $500.00 filing fee. Petitioner's requests for voiding election results, assessing a civil penalty, and appointing an administrator were denied.
Key Issues & Findings
Violation of statutory procedure for board member removal concerning ballot tabulation after deadline.
The Association violated the statute by tabulating ballots for a recall election at the August 19, 2021 meeting, as those ballots were only valid for the canceled June 30, 2021 special meeting.
Orders: Respondent must pay the Petitioner his filing fee of $500.00 within thirty days of the Order. Other requested remedies (voiding results, assessing civil penalty, appointing administrator) were denied.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
- ARIZ. REV. STAT. § 33-1243
- ARIZ. REV. STAT. § 33-1243(H)(4)
- ARIZ. REV. STAT. § 33-1250(C)(3)
Analytics Highlights
- ARIZ. REV. STAT. § 33-1243
- ARIZ. REV. STAT. § 33-1250
- ARIZ. REV. STAT. § 32-2199.02
- ARIZ. REV. STAT. § 32-2199.01
- ARIZ. ADMIN. CODE § R2-19-119
- Whitmer v. Hilton Casitas Homeowners Ass'n
- Gutierrez v. Industrial Commission of Arizona
- State v. McFall
Related election workflow tool
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Decision Documents
22F-H2221014-REL Decision – 935534.pdf
22F-H2221014-REL Decision – 945764.pdf
22F-H2221014-REL Decision – 949683.pdf
This is a summary of the Administrative Law Judge (ALJ) Decision regarding the Petitioner, James Iannuzo, versus the Respondent, Moonrise at Starr Pass Community Association. The hearing took place on December 13, 2021.
Key Facts and Procedural History
The case centered on the Association's handling of a petition to recall and remove two board members, specifically addressing violations of ARIZ. REV. STAT. section 33-1243.
The Association received the recall petitions and scheduled a Special Meeting for June 30, 2021. This meeting was required to be "called, noticed and held within thirty days after receipt of the petition" pursuant to A.R.S. § 33-1243(H)(4)(c). A quorum required 20% of eligible voters (45 ballots).
The Association required ballots to be received by June 29, 2021. On the morning of June 30, 2021, the Association canceled the meeting, announcing that it had failed to achieve a quorum. Subsequently, on or about July 14, 2021, the Association announced that late-received ballots provided a quorum and scheduled a new meeting for August 19, 2021, solely to count the ballots originally issued for the June 30th meeting.
The single issue pursued by Petitioner Iannuzo was that the tabulation of Special Meeting ballots received after the statutory deadline violated ARIZ. REV. STAT. section 33-1243(H)(4).
Key Arguments
Petitioner's Argument: Iannuzo argued that the August 19, 2021, recount results should be voided because the ballots, notice, and voting instructions specifically stated the ballots were valid only for the June 30, 2021, Special Meeting.
Respondent's Argument: The Association argued that it could not hold the June 30th meeting due to lack of a quorum. They contended that merely setting the meeting was sufficient to satisfy the 30-day requirement of A.R.S. § 33-1243(H)(4)(c), and the statute does not specify when votes must be tallied.
Legal Findings and Outcome
The Administrative Law Judge (ALJ) found that the Association violated ARIZ. REV. STAT. section 33-1243.
- Statutory Violation: The Association acknowledged it did not conduct the June 30th special meeting, meaning no meeting was conducted within 30 days of receiving the recall petitions, a violation of A.R.S. § 33-1243(H)(4)(c).
- Invalid Ballot Counting: The decision to count the votes at the August 19th meeting was a violation because, under statute (A.R.S. § 33-1250(C)(3)) and by the Association’s own documentation, the ballot was valid only for the specified June 30th election or meeting. The use of these ballots at the August 19th meeting was non-compliant.
Final Decision and Order:
- James Iannuzo was declared the prevailing party.
- The Association was ordered to pay Mr. Iannuzo his filing fee of $500.00 within thirty days of the Order.
- The ALJ declined Iannuzo’s requests to void the election results, assess a civil penalty, or appoint an oversight administrator, concluding these remedies were outside the scope of the tribunal’s authority under ARIZ. REV. STAT. § 32-2199.02(A).
Subsequent Advisement: Following the Order, the Office of Administrative Hearings later advised the parties that OAH's enabling statutes do not provide authority for it to compel the Respondent to comply with the Order (the fee refund).
Questions
Question
What is the deadline for an HOA to hold a special meeting after receiving a petition to recall board members?
Short Answer
The meeting must be held within 30 days of receiving the petition.
Detailed Answer
According to Arizona statute, once an HOA receives a petition for the removal of a board member, it is legally required to call, notice, and actually hold the special meeting within a 30-day timeframe.
Alj Quote
The special meeting shall be called, noticed and held within thirty days after receipt of the petition.
Legal Basis
ARIZ. REV. STAT. § 33-1243(H)(4)(c)
Topic Tags
- recall election
- deadlines
- board removal
Question
Can an HOA count ballots collected for a specific meeting date at a later, rescheduled meeting?
Short Answer
No, ballots are only valid for the specific meeting they were issued for.
Detailed Answer
An HOA cannot use ballots collected for a canceled meeting at a subsequent meeting held on a different date. The decision clarified that counting such ballots violates the statute because the ballots are strictly limited to the meeting for which they were originally valid.
Alj Quote
The Association’s decision to count the ballots at the August 19th meeting does not comply with section 33-1243 because those ballots were valid only for the June 30th meeting as evidenced by the ballots, the Notice, and the voting instructions.
Legal Basis
ARIZ. REV. STAT. § 33-1250(C)(3)
Topic Tags
- voting
- ballots
- meetings
Question
Can an Administrative Law Judge (ALJ) void an HOA election or remove board members?
Short Answer
No, the ALJ does not have the authority to void election results or appoint administrators.
Detailed Answer
While an ALJ can determine if a violation occurred and levy penalties, they cannot order an election to be voided or appoint an independent administrator to oversee the HOA. These remedies are outside the tribunal's statutory scope.
Alj Quote
Mr. Iannuzo’s requests that the tribunal void the election results and that an oversight administrator be appointed have not been shown to be within the scope of the tribunal’s authority.
Legal Basis
ARIZ. REV. STAT. § 32-2199.02(A)
Topic Tags
- legal remedies
- ALJ authority
- elections
Question
Is an HOA allowed to determine a quorum based solely on mail-in ballots before the meeting starts?
Short Answer
Likely no; the quorum should be determined based on eligible voters present at the time of the meeting.
Detailed Answer
The ALJ noted that the statute calls for a quorum to be determined based on the number of eligible voters at the time of the meeting, implying that canceling a meeting beforehand based solely on returned ballots is not supported by persuasive legal argument.
Alj Quote
The Association presented no persuasive legal argument or authority showing that in determining whether a quorum existed it was appropriate for the Association to use only the ballots returned by June 29th, rather than using the ballots and the members present at the meeting on June 30th.
Legal Basis
ARIZ. REV. STAT. § 33-1243(H)(4)(d)
Topic Tags
- quorum
- meetings
- voting
Question
If I win my case against the HOA, can I get my filing fee refunded?
Short Answer
Yes, if the homeowner prevails, the HOA must be ordered to pay the filing fee.
Detailed Answer
If the Administrative Law Judge determines that the homeowner has prevailed in proving a violation, the law mandates that the Judge order the HOA to reimburse the petitioner for the filing fee.
Alj Quote
If the petitioner prevails, the administrative law judge shall order the respondent to pay to the petitioner the filing fee required by section 32-2199.01.
Legal Basis
ARIZ. REV. STAT. § 32-2199.02(A)
Topic Tags
- fees
- penalties
- reimbursement
Question
Can an HOA fix a violation for missing the 30-day recall meeting deadline by holding the meeting later?
Short Answer
No, this specific violation cannot be cured after the fact.
Detailed Answer
Once the 30-day window for holding a recall meeting has passed, the violation is established and cannot be retroactively fixed by holding the meeting late.
Alj Quote
And although the Association did not conduct the required meeting within 30 days of receiving the recall petitions, this violation cannot be cured.
Legal Basis
ARIZ. REV. STAT. § 33-1243
Topic Tags
- violations
- compliance
- deadlines
Case
- Docket No
- 22F-H2221014-REL
- Case Title
- James Iannuzo vs. Moonrise at Starr Pass Community Association
- Decision Date
- 2021-12-30
- Alj Name
- Thomas Shedden
- Tribunal
- OAH
- Agency
- ADRE
Questions
Question
What is the deadline for an HOA to hold a special meeting after receiving a petition to recall board members?
Short Answer
The meeting must be held within 30 days of receiving the petition.
Detailed Answer
According to Arizona statute, once an HOA receives a petition for the removal of a board member, it is legally required to call, notice, and actually hold the special meeting within a 30-day timeframe.
Alj Quote
The special meeting shall be called, noticed and held within thirty days after receipt of the petition.
Legal Basis
ARIZ. REV. STAT. § 33-1243(H)(4)(c)
Topic Tags
- recall election
- deadlines
- board removal
Question
Can an HOA count ballots collected for a specific meeting date at a later, rescheduled meeting?
Short Answer
No, ballots are only valid for the specific meeting they were issued for.
Detailed Answer
An HOA cannot use ballots collected for a canceled meeting at a subsequent meeting held on a different date. The decision clarified that counting such ballots violates the statute because the ballots are strictly limited to the meeting for which they were originally valid.
Alj Quote
The Association’s decision to count the ballots at the August 19th meeting does not comply with section 33-1243 because those ballots were valid only for the June 30th meeting as evidenced by the ballots, the Notice, and the voting instructions.
Legal Basis
ARIZ. REV. STAT. § 33-1250(C)(3)
Topic Tags
- voting
- ballots
- meetings
Question
Can an Administrative Law Judge (ALJ) void an HOA election or remove board members?
Short Answer
No, the ALJ does not have the authority to void election results or appoint administrators.
Detailed Answer
While an ALJ can determine if a violation occurred and levy penalties, they cannot order an election to be voided or appoint an independent administrator to oversee the HOA. These remedies are outside the tribunal's statutory scope.
Alj Quote
Mr. Iannuzo’s requests that the tribunal void the election results and that an oversight administrator be appointed have not been shown to be within the scope of the tribunal’s authority.
Legal Basis
ARIZ. REV. STAT. § 32-2199.02(A)
Topic Tags
- legal remedies
- ALJ authority
- elections
Question
Is an HOA allowed to determine a quorum based solely on mail-in ballots before the meeting starts?
Short Answer
Likely no; the quorum should be determined based on eligible voters present at the time of the meeting.
Detailed Answer
The ALJ noted that the statute calls for a quorum to be determined based on the number of eligible voters at the time of the meeting, implying that canceling a meeting beforehand based solely on returned ballots is not supported by persuasive legal argument.
Alj Quote
The Association presented no persuasive legal argument or authority showing that in determining whether a quorum existed it was appropriate for the Association to use only the ballots returned by June 29th, rather than using the ballots and the members present at the meeting on June 30th.
Legal Basis
ARIZ. REV. STAT. § 33-1243(H)(4)(d)
Topic Tags
- quorum
- meetings
- voting
Question
If I win my case against the HOA, can I get my filing fee refunded?
Short Answer
Yes, if the homeowner prevails, the HOA must be ordered to pay the filing fee.
Detailed Answer
If the Administrative Law Judge determines that the homeowner has prevailed in proving a violation, the law mandates that the Judge order the HOA to reimburse the petitioner for the filing fee.
Alj Quote
If the petitioner prevails, the administrative law judge shall order the respondent to pay to the petitioner the filing fee required by section 32-2199.01.
Legal Basis
ARIZ. REV. STAT. § 32-2199.02(A)
Topic Tags
- fees
- penalties
- reimbursement
Question
Can an HOA fix a violation for missing the 30-day recall meeting deadline by holding the meeting later?
Short Answer
No, this specific violation cannot be cured after the fact.
Detailed Answer
Once the 30-day window for holding a recall meeting has passed, the violation is established and cannot be retroactively fixed by holding the meeting late.
Alj Quote
And although the Association did not conduct the required meeting within 30 days of receiving the recall petitions, this violation cannot be cured.
Legal Basis
ARIZ. REV. STAT. § 33-1243
Topic Tags
- violations
- compliance
- deadlines
Case
- Docket No
- 22F-H2221014-REL
- Case Title
- James Iannuzo vs. Moonrise at Starr Pass Community Association
- Decision Date
- 2021-12-30
- Alj Name
- Thomas Shedden
- Tribunal
- OAH
- Agency
- ADRE
Case Participants
Petitioner Side
- James Iannuzo (petitioner)
Appeared and testified on his own behalf
Respondent Side
- Jason E. Smith (respondent attorney)
Smith & Wamsley, PLLC
Counsel for Respondent
Neutral Parties
- Thomas Shedden (ALJ)
Office of Administrative Hearings - Louis Dettorre (Commissioner)
Arizona Department of Real Estate - Miranda Alvarez (clerk)
Transmitted Decision - c. serrano (clerk)
Transmitted Advisements - AHansen (staff)
Arizona Department of Real Estate
Recipient of transmission (Attn) - djones (staff)
Arizona Department of Real Estate
Recipient of transmission (Attn) - DGardner (staff)
Arizona Department of Real Estate
Recipient of transmission (Attn) - vnunez (staff)
Arizona Department of Real Estate
Recipient of transmission (Attn)