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 THE DECOPLAGE CONDOMINIUM ASSOCIATION, INC., Petitioner, v. Case No UNIT OWNERS VOTING FOR RECALL, Respondent. / AMENDED SUMMARY FINAL ORDER A summary final order was issued in this matter on January 15, The association filed a motion for rehearing, and the arbitrator hereby withdraws the earlier summary final order and issues this amended summary final order in its place. This final order is entered pursuant to Rule 61B (2), Florida Administrative Code, which provides that [a]t any time after the filing of the petition, if no disputed issues of material fact exist, the arbitrator shall summarily enter a final order denying relief and certifying the recall if the arbitrator finds that no preliminary basis for relief has been demonstrated in the petition. On October 30, 2002, the respondent, the unit owners seeking recall, served Decoplage Condominium Association, Inc. (petitioner/association) with 347 written recall agreements. On November 6, 2002, the board met and determined not to 1

2 certify the recall. On November 14, 2002, the association filed a petition for recall arbitration pursuant to Rule 61B , Florida Administrative Code. The unit owners are seeking to recall four board members: Miguel Carrillo, Stephen Licata, Gary Kreitman and Jose Nino. According to the minutes of the board meeting, the recall was rejected for the following reasons: 1. 8 ballots were rejected because they were not signed by the owner; 2. 5 ballots were rejected because the signatures did not match those on file with the association; ballots were rejected because a valid voting certificate was not on file for those units; ballots were rejected because the owners of those units rescinded their votes; 5. 2 ballots were rejected because unit owners denied cast the ballot; 6. The ballots did not designate a space for write in candidates; 7. The ballots did not designate a unit owner representative; units voted for more replacement candidates that member subject to recall; 9. 7 units did not vote for replacement candidates; and 10. The ballot for unit 1039 was illegible. On December 6, 2002, the petitioner sought to amend the petition by adding several new grounds for rejecting the recall that were not recorded in the minutes of the board meeting. The petitioner s motion to add new grounds to those listed 2

3 in the minutes of the board meeting is denied. Pursuant to Rule 61B (4), Florida Administrative Code, the board meeting minutes shall record the specific reasons the recall was not certified. Only the grounds set forth in the minutes of the board meeting as the basis for the board's decision not to certify the recall can be considered by the arbitrator in reviewing the board's decision not to certify a recall. Caribbean Condominium Management Association, Inc. v. Kennedy, Arb. Case No , Order Striking Allegations (September 21, 1993). Therefore, the only reasons for rejecting the recall votes that can be considered are those that the petitioner has in the minutes of the recall meeting. See also, Ocean Gate Phase I Condominium Association, Inc. v. Unit Owners Voting for Recall, Arb. Case No , Summary Final Order (October 10, 2002). Section (2)(j), Florida Statutes, provides that any member of the board of administration may be recalled and removed from office with or without cause by the vote or agreement in writing by a majority of all the voting interests. The association consists of 625 residential units, 12 commercial units and 30 association-owned units, totaling 667 units. Article 4, Section 1 of the association s bylaws provides that those units owned by the association shall not be eligible to cast a vote upon any matter. This leaves 637 voting interests in the association. Accordingly, 319 votes constitute a majority of the voting interests. 1 The minutes of the board meeting list this as a basis for failing to certify the recall. A review of the recall agreement forms, however, indicates that Sherry Roberts is the unit owner representative to whom the recall forms should be returned upon completion by the unit owner. 3

4 See The Decoplage Condominium Association, Inc. v. Unit Owners Voting for Recall, Arb. Case No , Summary Final Order (January 20, 2000). The petitioner challenges the recall on the basis that 16 ballots did not have valid voting certificates on file with association. The association, however, in a companion proceeding has been found to have arbitrarily applied the voting certificate requirement during its previous election for the board of directors. See Randolph v. The Decoplage Condominium Association, Inc., Arb. Case No , Final Order (December 11, 2002). Where an association has failed to enforce a voting certificate requirement in prior elections, the requirement will not be enforced in a recall arbitration to disenfranchise voters. See e.g., The Caribbean Condo. Mgmt. Assn., Inc. v. Kennedy, Arb. Case No , Final Order (Oct. 27, 1993). In the last election for the board of directors, the association applied the voting certificate requirement in such an arbitrary fashion that the results of the election were cast in doubt and a new election was ordered. Accordingly, the association cannot now enforce the voting certificate requirement where it has applied it in an arbitrary manner in the past. The association challenges the ballot cast on behalf of unit 1039 as being illegible. The ballot cast for unit 1039, while not a perfect photocopy, nevertheless includes in legible type: the unit owners name, unit number, indicates the individuals he is voting to recall, as well as the replacement candidates he is voting for. Taken in context, that the form used for unit 1039 is the exact same for used 4

5 by all 347 other unit owners, the missing or illegible portions of this ballot are easily determined. Accordingly, this ballot should not have been excluded. The association asserts that the signatures on 5 recall ballots did not match the signature for the unit owner on file with the association. The respondent has provided notarized affidavits from unit owners for units 1028, 709, and 940, affirming that they did in fact sign the recall ballot for their unit. Accordingly, these ballots are valid and should not be excluded. Excluding the two ballots where the signatures did not match from the remaining valid ballots leaves 324 valid votes to recall the board. The association s challenges that there were not spaces for write in candidates; that no unit owner representative was specified; that some unit voted for too many replacement candidates; and that some unit voted for no replacement candidates. These remaining challenges are without merit. See The Crosswinds Mobile Home Park, Inc. v. Unit Owners Seeking Recall, Arb. Case No , Final Order (March 4, 1998) (recall agreement which failed to designate a unit owner representative nevertheless substantially complied with Rule 61B ); Grand Vista Condominium Association, Inc. v. Unit Owners Voting for Recall, Arb. Case No , Final Order (September 27, 2000) (The recall of directors and the election of their replacements are two separate questions. If the election portion of a recall agreement is fatally flawed, the arbitrator may still certify the recall.); Key Capri Condominium Association, Inc. v. Unit Owners Voting for Recall, 5

6 Arb. Case No , Final Order (February 19, 1998) (Failure of recall agreement to designate a unit owner representative did not constitute a fatal flaw.) Rule 61B (6), Florida Administrative Code, provides in pertinent part: (6) Taking Office. When a majority or more of the board is recalled by written agreement, replacement board members shall take office: * * * (b) Upon the expiration of five full business days after adjournment of the board meeting to determine whether to certify the recall, if the board fails to certify the recall and fails to file a petition for arbitration; Adjusting the ballot count to correct for unit owners who voted to recall some, but not all members of the board, leaves; 324 votes to recall Gary Kreitman, 322 votes to recall Miguel Carrillo, 320 votes to recall Stephen Licata, and 319 votes to recall Jose Nino. As 319 votes constitute a majority of the voting interests of the association, all members of the board have received a sufficient number of votes to be recalled from the board. Based on the foregoing, it is ORDERED: The recall of board members Miguel Carillo, Stephen Licatta, Gary Kreitman and Jose Nino is hereby CERTIFIED. Barbara Grant, Ramon Rico, Sherry Roberts and Julieta Villafuerte, having received the most votes as replacement candidates shall take seats on the board, effective immediately. Within five (5) days, each of the recalled board members shall hand over all association property and documents in his or her possession to one of the members of the new board. No motion for rehearing or reconsideration will be considered. DONE AND ORDERED this 16 th day of January 2003, at Tallahassee, Leon County, Florida. 6

7 Richard M. Coln, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida CERTIFICATE OF MAILING I hereby certify that a true and correct copy of the foregoing summary final order certifying recall has been sent by U.S. Mail to the following persons on this 16 th day of January 2003: David C. Arnold, Esquire Law offices of David C. Arnold 8301 S 164 Street Miami Beach, FL Attorney for Petitioner (305) Fax Sherry Roberts 1521 Alton Road MB 524 Miami Beach, FL Unit owner representative (305) Fax Richard M. Coln, Arbitrator 7