STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES

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1 STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION ESTHER MILLER, ROY KRONENBERG, AUDREY CLOUTIER, JOHN GALLAGHER, GRETA GORDON, YOLETTE GUERRIER, PATRICIA RATTRAY, ANTHONY PISA, ED HUBBARD, KAREN RISCH, NEOSOTIC MARTINEZ, HARRY SHOUMAKER and ROY GIL, Petitioners, v. Case No OLIVE GLEN CONDOMINIUM ASSOCIATION, INC., Respondent. / ORDER ON MOTION FOR REHEARING An amended final order was entered in this case on August 22, 2000, and the respondent/association filed a motion for rehearing or reconsideration on August 28, On September 7, 2000, the petitioners filed a response to the motion, urging that it be denied. The amended final order noted that Section (2)(d)3., Florida Statutes, provides that there shall be no quorum requirement for elections of board members. The order went on to hold that, since the bylaws provide no quorum requirement for the specific purpose of an election, the association is deemed not to have opted out of the voting procedure provided in the statute with regard to the no-quorum requirement for the election of directors. In addition, the fact that the bylaws establish a quorum requirement for 1

2 members meetings does not imply therein a concomitant requirement that a quorum is necessary for an election. The final order quoted the association s admission that no election had been held during 1998, 1999, or The order pointed out that in insisting on a quorum of unit owners as a prerequisite to an election of board members, and in not rescheduling the meeting so that at least 20 percent of the unit owners could vote, the association improperly denied the unit owners the right to choose their board members. The order required, in part, that the association conduct an election of directors no later than October 30, In its motion for rehearing, the association asserts that, when it amended its bylaws in 1996 to reinstate its original bylaws, the amendment was solely intended for the purpose of requiring a quorum for the vote in the annual elections. The association attaches to the motion a letter sent to unit owners by the association on September 24, 1996, in which the association explains that it intends to call a meeting of unit owners for the purpose of restoring the voting rules as originally stated in our condominium documents, requiring a quorum for a vote. The letter did not appear in the record prior to the instant motion. as follows: The undersigned notes that Rule 61B , Florida Administrative Code, recites 61B Motions for Rehearing. (1) A motion for rehearing may be filed within 15 days after the date of entry of the final order. The motion shall state with particularity the points of law or fact that the arbitrator has overlooked or misapprehended and shall not reargue the merits of the final order. Any response to the motion must be filed within 10 days of service of the motion. (2) The arbitrator shall not modify the substance of the final order except upon a showing that the decision is based on a clear error of law or fact.... 2

3 In the present case, the association s motion makes no showing that the arbitrator s decision is based on a clear error of law or fact. No suggestion is made that the arbitrator overlooked or misapprehended any facts in the record at the time of the final order or that he misapplied the law. Consequently, there is no authority to modify the substance of the final order entered August 22, The association is attempting to proffer new evidence to show that the amendment to the bylaws was intended to constitute a quorum requirement for elections, even though the bylaws actually contain no provision requiring a quorum for an election. Even if the arbitrator were to re-open these proceedings for the admission of such evidence, it would be immaterial and insufficient to change the result, since the plain wording of the bylaws would control over any intent, unstated in the bylaws themselves. Clearly, the entire point of enacting written bylaws and recording them in the public records is to put all persons on notice of the requirements therein. If intentions unstated in the bylaws themselves were permitted to control over the plain wording of the bylaws, there would be no point in enacting written bylaws at all. It is well settled that parol evidence is inadmissible to contradict, vary, defeat or modify a complete and unambiguous instrument, or to change, add to or subtract from such instrument, or affect its construction. J.M. Montgomery Roofing Co. v. Fred Howland, Inc., 98 So.2d 484 (Fla. 1957). In addition, it has been held that, even in an instance where it was assumed that the bylaws contained a certain provision, the exact wording of the bylaws will control over the custom and assumption of the association. See Cuervo v. West Lake Village II Condo. Assn., Inc., Arb. Case No , Partial Summary Final Order (May 31, 1994) (where bylaws provided that the board shall consist of five members and that the association was 3

4 to be managed by the board and the officers, the board was deemed to consist of five seats, notwithstanding the association's historical interpretation that there were nine seats on the board). Based upon the foregoing, it is ORDERED and ADJUDGED: 1. The motion for rehearing and/or reconsideration is DENIED. 2. The amended summary final order entered August 22, 2000, remains in effect. 4

5 DONE and ORDERED this 14th day of September, 2000, at Tallahassee, Leon County, Florida. RIGHT TO APPEAL Tyler Powell, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida As provided by s , F.S., this final order may be appealed by filing a petition for trial de novo with a court of competent jurisdiction in the circuit in which the condominium is located, within 30 days of the entry and mailing of this final order. This order does not constitute final agency action and is not appealable to the district courts of appeal. If this final order is not timely appealed, it will become binding on the parties. ATTORNEY S FEES As provided by s , F.S., the prevailing party in this proceeding is entitled to have the other parties pay its reasonable costs and attorney s fees. Rule 61B , F.A.C., requires that a party seeking an award of costs and attorney s fees must file a motion seeking the award not later than 45 days after rendition of this final order. The motion must be actually received by the Division within this 45-day period and must conform to the requirements of rule 61B , F.A.C. The filing of an appeal of this order does not toll the time for the filing of a motion seeking prevailing party costs and attorney s fees. CERTIFICATE OF MAILING I HEREBY CERTIFY that a true and correct copy of the foregoing was faxed and 5

6 mailed by U.S. mail, postage prepaid, this 14th day of September, 2000, to: ESTHER E MILLER 3004 NW 4TH AVE APT 2 POMPANO BEACH FL Fax Petitioner designated to receive mail on behalf of all individual petitioners BETH G LINDIE ESQ ESLER AND LINDIE P A 315 S E 7TH ST STE 300 FORT LAUDERDALE FL Fax Respondent s attorney Tyler Powell, Arbitrator 6