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

Case Summary

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

Parties & Counsel

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

Alleged Violations

ARIZ. REV. STAT. § 33-1812

Outcome Summary

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

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

Key Issues & Findings

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

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

Orders: Petitioner's petition is denied.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

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

Analytics Highlights

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

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

Related election workflow tool

Many HOA election disputes start with preventable workflow problems: unclear ballot language, separate-vote issues, quorum tracking, paper/online reconciliation, proxy handling, or incomplete records. HOABallot is a separate platform built to document the voting workflow from notice through certification.

Preview HOABallot election workflows

Video Overview

Audio Overview

Decision Documents

24F-H012-REL Decision – 1115010.pdf

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

24F-H012-REL Decision – 1115010.pdf

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

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

Key Facts and Parties

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

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

Main Issue

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

Key Arguments

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

Legal Focus and Outcome

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

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

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

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

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

Case Participants

Petitioner Side

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

Respondent Side

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

Neutral Parties

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

Clifford S Burnes V. Saguaro Crest Homeowners’ Association

Case Summary

Case ID 23F-H030-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-04-17
Administrative Law Judge Tammy L. Eigenheer
Outcome The Administrative Law Judge granted the petition, finding that the Saguaro Crest Homeowners' Association violated ARIZ. REV. STAT. § 33-1812(A)(6). The violation occurred because the Association's governing documents did not permit secret ballots, necessitating that the completed ballot contain the name, address, and signature of the voter, a requirement the distributed ballots failed to meet. The HOA was ordered to reimburse the Petitioner's $500.00 filing fee and comply with the statute henceforth.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Clifford (Norm) S. Burnes Counsel
Respondent Saguaro Crest Homeowners' Association Counsel John T. Crotty

Alleged Violations

ARIZ. REV. STAT. § 33-1812(A)(6)

Outcome Summary

The Administrative Law Judge granted the petition, finding that the Saguaro Crest Homeowners' Association violated ARIZ. REV. STAT. § 33-1812(A)(6). The violation occurred because the Association's governing documents did not permit secret ballots, necessitating that the completed ballot contain the name, address, and signature of the voter, a requirement the distributed ballots failed to meet. The HOA was ordered to reimburse the Petitioner's $500.00 filing fee and comply with the statute henceforth.

Key Issues & Findings

Violation of voting statute requiring name, address, and signature on completed ballot.

Petitioner alleged that the HOA's vote by written ballot was non-compliant because the individual ballots lacked the required name, address, and signature of the voter. The ALJ concluded that since the community documents did not permit secret ballots, the plain language of A.R.S. § 33-1812(A)(6) required the ballot itself (distinct from the envelope) to contain the name, address, and signature, and the HOA failed to meet this requirement.

Orders: Petition granted. Respondent ordered to reimburse Petitioner's filing fee of $500.00 and henceforth comply with ARIZ. REV. STAT. § 33-1812(A)(6).

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. § 33-1812(A)(6)
  • ARIZ. REV. STAT. § 33-1812

Analytics Highlights

Topics: HOA governance, Voting procedures, Secret ballot, Statutory interpretation, Dissolution vote
Additional Citations:

  • ARIZ. REV. STAT. § 33-1812(A)(6)
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 33-1812

Related election workflow tool

Many HOA election disputes start with preventable workflow problems: unclear ballot language, separate-vote issues, quorum tracking, paper/online reconciliation, proxy handling, or incomplete records. HOABallot is a separate platform built to document the voting workflow from notice through certification.

Preview HOABallot election workflows

Video Overview

Audio Overview

Decision Documents

23F-H030-REL Decision – 1037366.pdf

Uploaded 2026-04-24T12:00:58 (47.2 KB)

23F-H030-REL Decision – 1049922.pdf

Uploaded 2026-04-24T12:01:03 (128.9 KB)

23F-H030-REL Decision – 1037366.pdf

Uploaded 2026-01-23T17:53:39 (47.2 KB)

23F-H030-REL Decision – 1049922.pdf

Uploaded 2026-01-23T17:53:42 (128.9 KB)

This summary pertains to the hearing in the matter of *Clifford S. Burnes v. Saguaro Crest Homeowners' Association* (No. 23F-H030-REL), held on March 28, 2023, before the Office of Administrative Hearings (OAH).

Key Facts and Background

Petitioner Clifford S. Burnes, a member of the Saguaro Crest Homeowners' Association (HOA), filed a petition alleging that the Respondent HOA violated ARIZ. REV. STAT. § 33-1812(A)(6) during a December 2021 vote concerning the dissolution of the HOA. The Petitioner was represented on his own behalf, and the Respondent HOA was represented by John T. Crotty.

The specific statute at issue, A.R.S. § 33-1812(A)(6), requires that the completed ballot shall contain the name, address, and signature of the person voting, *except* if the community documents permit secret ballots, in which case only the envelope must contain that identifying information.

Main Issues and Arguments

The core dispute was whether the written ballots used by the HOA complied with A.R.S. § 33-1812(A)(6).

  1. Petitioner’s Argument: Mr. Burnes argued that the blank ballot sheet distributed by the HOA did not include spaces for the name, address, or signature of the voter. He maintained that the statute clearly differentiates between the ballot and the envelope. Because the HOA’s governing documents (CC&Rs/Bylaws) did not explicitly permit secret ballots, the full identifying information was legally required to be on the ballot itself.
  1. Respondent’s Argument: The HOA asserted that the ballot and the envelope together constituted the "completed ballot". The envelopes required a signature and contained the lot number (which the HOA used as the address), thereby meeting the statute's requirements when considered as part of a single balloting process. The HOA also argued that the documents were silent on prohibiting secret ballots, implying that they were permitted, or at least that the Petitioner failed to prove they were prohibited. Counsel further argued that the signature could satisfy both the "name" and "signature" requirements, and that lot numbers satisfied the "address" requirement.
  1. Legal Points Emphasized: The Administrative Law Judge focused on the plain language of the statute. The ALJ noted that the statute delineates between the ballot and the envelope and that the three requirements (name, address, and signature) must be given meaning, with the signature being a separate requirement from the name.

Outcome and Decision

The Administrative Law Judge issued a Decision on April 17, 2023, finding that the Petitioner sustained his burden of proof.

  1. Conclusion of Law: A violation of ARIZ. REV. STAT. § 33-1812(A)(6) was established. The ALJ concluded that since the Association’s governing documents did not explicitly permit secret ballots, the completed ballots were required to contain the name, address, and signature of the person voting. Since the actual voting sheet lacked this information, the statute was violated.
  1. Order: The Petitioner's petition was granted.
  • The Respondent HOA was ordered to reimburse the Petitioner's filing fee of $500.00.
  • The Respondent was further ordered to henceforth comply with ARIZ. REV. STAT. § 33-1812(A)(6).

Questions

Question

Can my HOA use secret ballots where I only sign the envelope?

Short Answer

Only if the community's governing documents explicitly permit secret ballots.

Detailed Answer

Under Arizona law, an HOA cannot use secret ballots (where identification is only on the envelope) unless the community documents specifically permit them. If the documents are silent on the matter, the ballot itself must contain the voter's identification.

Alj Quote

The completed ballot shall contain the name, address and signature of the person voting, except that if the community documents permit secret ballots, only the envelope shall contain the name, address and signature of the voter… Nothing in the Association’s governing documents permitted secret ballots.

Legal Basis

ARIZ. REV. STAT. § 33-1812(A)(6)

Topic Tags

  • voting
  • ballots
  • governing documents

Question

What specific information must be written on an HOA ballot?

Short Answer

The ballot must contain the voter's name, address, and signature.

Detailed Answer

Unless secret ballots are authorized by the governing documents, the ballot itself must include three specific items: the voter's name, the voter's address, and the voter's signature.

Alj Quote

Accordingly, the completed ballots in the vote at issue were required to contain the name, address, and signature of the person voting.

Legal Basis

ARIZ. REV. STAT. § 33-1812(A)(6)

Topic Tags

  • voting
  • compliance

Question

Does signing my signature count as writing my name on a ballot?

Short Answer

No, a signature and a name are separate legal requirements.

Detailed Answer

The ALJ determined that a signature does not satisfy the requirement to provide a name. The statute lists them separately, meaning both must be present on the ballot.

Alj Quote

Further, the plain language of the statute identifies that each ballot must contain the name, address, and signature of the person voting. The signature is a separate requirement from the name, and the ballot was required to have all three items.

Legal Basis

Statutory Interpretation

Topic Tags

  • voting
  • legal definitions

Question

Can the HOA claim the envelope and ballot together count as a 'completed ballot'?

Short Answer

No, the law distinguishes between the ballot itself and the envelope.

Detailed Answer

The HOA cannot argue that the envelope is part of the ballot to satisfy identification requirements when secret ballots are not permitted. The statute treats the ballot and the envelope as distinct items.

Alj Quote

The plan language of the statute delineates between the ballot in a vote and the envelope in a secret ballot vote.

Legal Basis

ARIZ. REV. STAT. § 33-1812

Topic Tags

  • voting
  • ballots

Question

Who has to prove that the HOA violated the law in a hearing?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

In an administrative hearing, the homeowner filing the complaint must provide enough evidence to prove that it is more likely than not that the HOA violated the statute.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1812(A)(6).

Legal Basis

Administrative Procedure

Topic Tags

  • procedure
  • burden of proof

Question

If I win my case against the HOA, can I get my filing fee back?

Short Answer

Yes, the judge can order the HOA to reimburse the filing fee.

Detailed Answer

If the Administrative Law Judge rules in favor of the homeowner, they may order the HOA to reimburse the $500 filing fee paid to the Department of Real Estate.

Alj Quote

IT IS FURTHER ORDERED that Respondent reimburse Petitioner’s filing fee of $500.00 in certified funds.

Legal Basis

Administrative Order

Topic Tags

  • penalties
  • reimbursement

Question

What agency handles disputes between homeowners and HOAs in Arizona?

Short Answer

The Arizona Department of Real Estate (ADRE) and the Office of Administrative Hearings (OAH).

Detailed Answer

Homeowners can file petitions regarding violations of community documents or statutes with the Department of Real Estate, which are then heard by the Office of Administrative Hearings.

Alj Quote

The Department is authorized by statute to receive and to decide petitions for hearings from members of homeowners’ associations and from homeowners’ associations in Arizona.

Legal Basis

ARIZ. REV. STAT. § 32-2102

Topic Tags

  • jurisdiction
  • agencies

Case

Docket No
23F-H030-REL
Case Title
Clifford S. Burnes v. Saguaro Crest Homeowners' Association
Decision Date
2023-04-17
Alj Name
Tammy L. Eigenheer
Tribunal
OAH
Agency
ADRE

Questions

Question

Can my HOA use secret ballots where I only sign the envelope?

Short Answer

Only if the community's governing documents explicitly permit secret ballots.

Detailed Answer

Under Arizona law, an HOA cannot use secret ballots (where identification is only on the envelope) unless the community documents specifically permit them. If the documents are silent on the matter, the ballot itself must contain the voter's identification.

Alj Quote

The completed ballot shall contain the name, address and signature of the person voting, except that if the community documents permit secret ballots, only the envelope shall contain the name, address and signature of the voter… Nothing in the Association’s governing documents permitted secret ballots.

Legal Basis

ARIZ. REV. STAT. § 33-1812(A)(6)

Topic Tags

  • voting
  • ballots
  • governing documents

Question

What specific information must be written on an HOA ballot?

Short Answer

The ballot must contain the voter's name, address, and signature.

Detailed Answer

Unless secret ballots are authorized by the governing documents, the ballot itself must include three specific items: the voter's name, the voter's address, and the voter's signature.

Alj Quote

Accordingly, the completed ballots in the vote at issue were required to contain the name, address, and signature of the person voting.

Legal Basis

ARIZ. REV. STAT. § 33-1812(A)(6)

Topic Tags

  • voting
  • compliance

Question

Does signing my signature count as writing my name on a ballot?

Short Answer

No, a signature and a name are separate legal requirements.

Detailed Answer

The ALJ determined that a signature does not satisfy the requirement to provide a name. The statute lists them separately, meaning both must be present on the ballot.

Alj Quote

Further, the plain language of the statute identifies that each ballot must contain the name, address, and signature of the person voting. The signature is a separate requirement from the name, and the ballot was required to have all three items.

Legal Basis

Statutory Interpretation

Topic Tags

  • voting
  • legal definitions

Question

Can the HOA claim the envelope and ballot together count as a 'completed ballot'?

Short Answer

No, the law distinguishes between the ballot itself and the envelope.

Detailed Answer

The HOA cannot argue that the envelope is part of the ballot to satisfy identification requirements when secret ballots are not permitted. The statute treats the ballot and the envelope as distinct items.

Alj Quote

The plan language of the statute delineates between the ballot in a vote and the envelope in a secret ballot vote.

Legal Basis

ARIZ. REV. STAT. § 33-1812

Topic Tags

  • voting
  • ballots

Question

Who has to prove that the HOA violated the law in a hearing?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

In an administrative hearing, the homeowner filing the complaint must provide enough evidence to prove that it is more likely than not that the HOA violated the statute.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1812(A)(6).

Legal Basis

Administrative Procedure

Topic Tags

  • procedure
  • burden of proof

Question

If I win my case against the HOA, can I get my filing fee back?

Short Answer

Yes, the judge can order the HOA to reimburse the filing fee.

Detailed Answer

If the Administrative Law Judge rules in favor of the homeowner, they may order the HOA to reimburse the $500 filing fee paid to the Department of Real Estate.

Alj Quote

IT IS FURTHER ORDERED that Respondent reimburse Petitioner’s filing fee of $500.00 in certified funds.

Legal Basis

Administrative Order

Topic Tags

  • penalties
  • reimbursement

Question

What agency handles disputes between homeowners and HOAs in Arizona?

Short Answer

The Arizona Department of Real Estate (ADRE) and the Office of Administrative Hearings (OAH).

Detailed Answer

Homeowners can file petitions regarding violations of community documents or statutes with the Department of Real Estate, which are then heard by the Office of Administrative Hearings.

Alj Quote

The Department is authorized by statute to receive and to decide petitions for hearings from members of homeowners’ associations and from homeowners’ associations in Arizona.

Legal Basis

ARIZ. REV. STAT. § 32-2102

Topic Tags

  • jurisdiction
  • agencies

Case

Docket No
23F-H030-REL
Case Title
Clifford S. Burnes v. Saguaro Crest Homeowners' Association
Decision Date
2023-04-17
Alj Name
Tammy L. Eigenheer
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Clifford S. Burnes (petitioner)
    Saguaro Crest Homeowners' Association
    Also referred to as Clifford (Norm) Burnes and Clifford Barnes. Appeared pro se, testified on his own behalf.

Respondent Side

  • John T. Crotty (HOA attorney)
    LAW OFFICES OF COLLIN T. WELCH
    Represented Saguaro Crest Homeowners' Association. Referred to as Mr. Kate in transcript.
  • Esmeralda Serena Ayala-Martinez (HOA board president / witness)
    Saguaro Crest Homeowners' Association
    Also referred to as Serena Martinez. Called as witness by Petitioner.
  • David Medil (board member)
    Saguaro Crest Homeowners' Association
    Listed as a board member in testimony (also referred to as 'Dave Matt').
  • Joseph Martinez (board member)
    Saguaro Crest Homeowners' Association
    Listed as a board member in testimony (also referred to as 'Joseph Mar Martinez').

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
    Office of Administrative Hearings
    Also referred to as Tammy Igenir.
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate
  • A. Hansen (ADRE Staff Recipient)
    Arizona Department of Real Estate
    Recipient of case transmission.
  • V. Nunez (ADRE Staff Recipient)
    Arizona Department of Real Estate
    Recipient of case transmission.
  • D. Jones (ADRE Staff Recipient)
    Arizona Department of Real Estate
    Recipient of case transmission.
  • L. Abril (ADRE Staff Recipient)
    Arizona Department of Real Estate
    Recipient of case transmission.

Other Participants

  • Carolyn Wesen Mo (observer)
    Member of the public
    Present during the hearing.
  • Collin T. Welch (Attorney (Firm Principal))
    LAW OFFICES OF COLLIN T. WELCH
    Name appears in firm name affiliation of Respondent's counsel.

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