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 HERBERT S. ROSE, Petitioner, v. Case No THE VILLAGE OF KINGS CREEK CONDOMINIUM ASSOCIATION, INC. and ASTRID BUTTARI, President, Respondents. / SUMMARY FINAL ORDER On November 30, 2000, Herbert S. Rose (petitioner) filed a petition for arbitration against The Village of Kings Creek Condominium Associatio n, Inc. and associat ion president Astrid Buttari (respondents). The petition concerned the impending election of directors scheduled for December 13, The petition alleges that the association altered the petitioner s candidate information sheet, permitted certain candidates to use a two-page candidate information sheet, and that the ballot was confusing. The petitioner seeks an order requiring the association to correct his candidate information sheet, stop the election and disqualify all candidates who used two-page information sheets. Both parties were given the opportunity to file written argument on the issues involved in this case; the petitioner filed his argument on February 12, 2001; the respondents did not file any argument. This final order is entered pursuant to Rule 61B , Florida Administrative Code, which requires the arbitrator to enter a summary order where there are no disputed issues o f material fact. On November 3, 2000, the petitioner hand-delivered a letter to the association stating that he intended to run for a position on the board of directors. A one-page information sheet in support of 1

2 his candidacy was included with the letter. The petition contends that when the candidate information sheets were distributed to unit owners the petitioner s sheet was defaced by fax markings across the top and a big black line down the left side. The petition contends that the sheet was rendered virtually unreadable, and that the markings were applied intentionally to damage the petitioner s candidacy. The petition further alleges that the association permitted certain candidates, including association president and respondent Astrid Buttari, to use the front and back of a letter-size sheet of paper for information regarding their candidacies. The front of Buttari s information sheet is in English, and the back contains a Spanish translation. The petitioner states that he was not notified that a two-page information sheet would be allowed; in addition, he contends that Ms. Buttari s information sheet specifically attacks him. Finally, the petition alleges that the ballot itself is improper and misleading. The ballot states: NOTE: THERE ARE 18 CANDIDATES. DO NOT VOTE FOR MORE THAN 15 OR YOUR BALLOT WILL BECOME NULL AND VOID. The petition states that there were 19 candidates, not 18, and the petitioner fears that unit owners will be misled into believing that they can leave the names of three candidates unchecked and will have voted for a full complement of directors, when in fact, they will have voted for 16 candidates and their ballots will be null and void. This last claim is stricken as the elect ion has occurred and the petitioner has not alleged that any unit owner s vote was invalidated on this ground. The petitioner attaches to his petition a copy of his information sheet as allegedly defaced by the association. Across the top 1 inch of the sheet are fax markings, consisting of the date and time the document was faxed (not by the petitioner) and the name of the party faxing it; in addition, there is a vertical black line down the entire page (see attached exhibit). Despite the fax markings and the vertical line, the text of the information sheet is legible. The answer denies that Rose s 2

3 information sheet was altered or defaced in any way. For the purposes of this order, however, the petitioner s statement of the facts will be considered true. Section (2)(d)3., Florida Statutes, provides in pertinent part: Upon request of a candidate, the association shall include an information sheet, no larger than 8½ inches by 11 inches, which must be furnished by the candidate not less than 35 days before the election, to be included with the mailing of the ballot, with the costs of mailing or delivery and copying to be borne by the association. Rule 61B , Florida Administrative Code (2000), provides as follows: (7) Upon the timely request of a candidate as set forth in this paragraph, the association shall include, with the second notice of election described in subsection (8) below, a copy of an information sheet which may describe the candidate's background, education, and qualifications as well as other factors deemed relevant by the candidate. The information contained therein shall not exceed one side of the sheet which shall be no larger than 8 1/2 inches by 11 inches. Any candidate desiring the association to mail or personally deliver copies of an information sheet to the eligible voters must furnish the information sheet to the association not less than 35 days before the election. If consented to in writing by the candidates involved, two or more candidate information sheets may be consolidated into a single page. The failure of an association to mail or personally deliver a copy of a timely delivered information sheet of each eligible candidate to the eligible voters shall render any election held null and void. No association shall edit, alter, or otherwise modify the content of the information sheet. The original copy provided by the candidate shall become part of the official records of the association. The foregoing provisio ns require an associat ion to distribute certain information about candidates for positions on the board of directors. These provisions limit the information that an association is required to distribute, and the rule prohibits the association from editing, altering or otherwise modifying the content of the information sheet. Assuming the line and markings at issue in this case were on copies of the petitioner s information sheets distributed to unit owners with the second notice of election, this is not the type of activity proscribed by the rule. An association is prohibited from editing, altering or otherwise 3

4 modifying the content of the sheet (emphasis supplied). In the instant case, the petit ioner s sheet is still legible, and the content has not been changed in any way. The petitioner further alleges that President Buttari and the candidates that she favored were allowed to use two-page information sheets (front side in English; back side in Spanish). Buttari s information sheet is one page long and single-spaced. The back of the sheet is one page long, singlespaced and the text is rendered in Spanish. Thus, the sheet is two pages in length. The petitioner contends that the association misled candidates other than Buttari and those Buttari favored into believing that all candidates were limited to one side of one page, while Buttari and her friends knowingly violated the law. In support of this contention, the petitioner points to the statement on the Notice of Intent to be a Candidate that the association required each candidate to sign: I (name), hereby place my name in nomination as a candidate for the Board of Directors of the Village of Kings Creek Condominium Association, Inc. for the December 13, 2000 elections I (circle one) am / am not enclosing a Candidate Information Sheet about myself. I understand that I am limited to one side of an 8 ½ [inch] x 11 [inch] Information Sheet. The statute and rule clearly limit the size o f the candidate informat ion sheet envisioned by the statute to one side of an 8½-inch x 11-inch sheet of paper. By permitting some candidates to use twice the space, the association violated both the statute and rule. The real issue is the appropriate remedy for the violation, however. The petitioner wants the election to be held null and void and another election to be conducted. The administrative rule in effect at the time of the election does not require this result, however. The only violations requiring this result are: 1) the failure of an association to mail or personally deliver a copy of a timely delivered information sheet of each eligible candidate to the eligible voters; 2) the failure to mail or deliver to the eligible voters at the addresses indicated in the official records the first notice of the date of the election not less than 60 days before a scheduled election; and 3) the failure of the written ballot to indicate the name of each 4

5 eligible person. 1 See Rule 61B (4), (7), and (9), Florida Administrative Code. In previous election disputes decided by arbitrators, elections were upheld so long as there was substantial compliance with the Condominium Act and the regulations. In Brandwood et al. v. Surfside Owners Association, Inc., Arb. Case No , Summary Final Order (April 26, 1994), the arbitrator found that the associat ion had erred by using outer ballot envelopes that did not require the owner to write in his name, and by appointing an individual who was not a unit owner to the election oversight committee, both of which are violations of Rule 61B , Florida Administrative Code. The mere violation of the rule was not sufficient to invalidate the election, however. The arbitrator held that where there is substantial co mpliance with the election procedures, and the violations have not prevented a full, fair and free expression of the public will, the election results will not be disturbed (citing Boardman v. Esteva, 323 So. 2d 259 (Fla. 1959) (substantial, rather than strict, compliance with the absentee voting laws is all that is required to give legality to the ballot)); see also Alvarez v. Club Atlantis Condominium Association, Inc., Arb. Case No , Final Order (March 25, 1993). In the instant case, the petitioner s information sheet was rendered unsightly by the extraneous markings that were added after he submitted it to the association. In addition, he did not have his statement circulated in both English and Spanish, resulting in his having a one-page information sheet where other candidates had a two-page sheet. However, it is implausible that the mere appearance and length of a candidate s information sheet, as contrasted to its substance, would prevent the voters from exercising their votes freely. Granted, the extent and quality of advertising and other public appearances are important in the electoral process, however, it is assumed that the voters will vote in a rational manner, rather than based on superficial considerations such as the appearance of a candidate s information sheet. It is further noted that all candidates were limited to 1 The rule has since been amended to delete these requirements. 5

6 one page of English text, and that the petitioner has not indicated that he even wished to circulate a Spanish translation of his information sheet. In Board of Directors of Driftwood Sands Condominium Association, Inc. v. Driftwood Sands Condominium Association, Inc., Arb. Case No , Summary Final Order Certifying Recall (October 17, 1994), the arbitrator addressed claims by the association that the unit owners votes in a recall matter should be disregarded because they were based on misrepresentations concerning the sitting board contained in a cover letter sent with the recall ballot. The arbitration rejected this rationale for disregarding the voters will, reiterating the intelligence of the voter. She stated as follows: In Hidden Harbour Estates, Inc. v. Norman, 309 So. 2d 180 (Fla. 4th DCA 1975), the court stated that "[c]ondominium unit owners comprise a little democratic sub-society." As in the greater democratic society, the right to vote carries with it the corresponding duty to be informed about the issues and candidates. Each unit owner has the responsibility to discover the facts and vote intelligently. If the unit owner shirks that responsibility, that unit owner as well as others may suffer. Nevertheless, the board has neither the responsibility nor the authority to ignore a vote because it believes the vote was based on misinformation. Thus, a board cannot refuse to certify a recall agreement signed by the majority of the unit owners on the grounds that the unit owners were told untruths or were misinformed. Indeed, if the dissemination of misleading or deceptive information were sufficient grounds to invalidate an election, we would have had few, if any, valid elections in this country. Drawing on the principles laid down in Boardman, above, and previous arbitration cases, it is determined that the violations did not prevent a full, fair and free expressions of the voters will. Accordingly, it is determined that the associat ion failed to properly conduct its election in December 2000, by distributing two-page information sheets for some candidates (front side in English and the back side in Spanish), but not for the petitioner. Assuming the association was responsible for the markings on the petitioner s information sheet, this also constitutes a violation. However, these violations did not thwart the will of the voters. Therefore, the relief requested by the petitioner, an 6

7 order disqualifying the candidates for whom a two-page information sheet was distributed, and requiring a new election, is DENIED. However, in the future, the association shall comply with the Condominium Act and division rules that limit the candidate information it distributes to one side of an 8½ x 11-inch sheet. DONE AND ORDERED this 14th day o f March 2001, at Tallahassee, Leon County, Florida. Patricia A. Draper, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida

8 RIGHT OF APPEAL In accordance with Section , Florida Statutes, a party adversely affected by this final order may appeal from the order by filing, within 30 days of entry and mailing of the order, a complaint for trial de novo with a court of competent jurisdiction within the circuit in which the condominium is located. This order does not constitute final agency action and is not appealable to the district courts of appeal. ATTORNEY S FEES As provided by Section , Florida Statutes, the prevailing party in this proceeding is entitled to have the other party 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 mailed by U.S. mail, postage prepaid, to Herbert S. Rose, Esq., P.O. Box , Miami, FL and Jorge L. Piedra, Esq., Phillips, Eisinger, Koss, Rothstein & Rosenfeldt, P.A., 4000 Hollywood Boulevard, Suite 265 South, Hollywood, FL this the 14th day of March Patricia A. Draper, Arbitrator 8