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 Green Terrace Condominium Association, Inc., Petitioner, v. Case No Unit Owners Voting for Recall, Respondent. / SUMMARY FINAL ORDER 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. FACTS Green Terrace Condominium Association, Inc. filed a petition for recall arbitration on March 30, On April 7, 2005, an order allowing answer was entered allowing the respondent, the unit owners who voted for the recall, to file an answer in the matter. An order requiring supplemental information from both parties was also issued on April 7, On April 18, 2005 and April 20, 2005, the respondent filed an answer and supplemental information in this matter. The petitioner submitted its response to the arbitrator s April 7 th order on April 20, On April 28, 2005, the arbitrator issued an order requiring additional information from the association, to which a response was 1

2 filed on May 13, This order is entered upon consideration of the entire record in this matter. According to the petition, the association was served on March 14, 2005, with written recall agreements for the recall of three (3) members of the board of directors. There are eighty-four (84) units in the association; thus, forty-three (43) valid votes are required to recall a board member. The written agreements served on the board contain forty-eight (48) recall ballots. The unit owners are seeking to recall the following board members: Cheri Forbes, Odi Gibson and Bryan Janney. The board met on March 21, 2005, and determined to reject the recall effort. The minutes of the board meeting cite the following reasons for not certifying the recall effort: 1. ballots submitted for units 1, 2, 4, 8, 31, 57, 66, 75, 81 and 83 were rejected for failure to comply with voting certificate requirements; 2. ballots submitted for units 21, 37, 67, 71 and 74 were rejected based on the signature on the ballot not matching that of the record unit owner; and, 3. ballot submitted for unit 14 was rejected because the unit owner failed to complete Block A, which is the block where recall and retain votes are marked. 1 1 The petitioner s allegation that intimidation and illegal activity were used while conducting this recall will not be addressed because, according to the meeting minutes, no ballots were rejected for this reason and, notwithstanding the affidavit submitted by unit owner Maria Grubiak, the petition fails to allege sufficient facts to support this allegation. See Skylark R.O. Association, Inc. v. Unit Owners Voting for Recall, Arb. Case No , Summary Final Order Certifying Recall (July 3, 2002)(where the association failed to specify the unit owners that were unduly influenced and further failed to specify the nature of the undue influence employed to coerce votes, the allegation that undue influence was exerted on the voters did not constitute a valid basis for denying the recall effort). 2

3 DISCUSSION According to the minutes for the March 21, 2005 board meeting, the association rejected ten (10) recall votes on the basis that the owners failed to comply with voting certificate requirements in that voting certificates were not attached to the recall ballots. In an exhibit to the association s petition, the association admitted that its previous use of voting certificates had been sporadic. When asked to explain this statement more fully, the association filed correspondence on April 20, 2005, alleging that while voting certificate requirements were not consistently enforced in the past, the association has brought itself into compliance by enforcing the voting certificate requirements during the 2005 election and the instant recall effort. The association s response included a copy of the 2005 election materials sent to the unit owners, which consisted of a direction sheet, second notice of annual meeting, a blank voting certificate and candidate information sheet. However, the election information failed to demonstrate that voting certificate requirements were actually enforced at the 2005 election. The arbitrator s order of April 28 th required the association to submit evidence, consisting of meeting minutes for 2005 election, tally sheets and/or discarded ballots, to demonstrate that voting certificate requirements were enforced at the 2005 election. In response thereto, the association filed a letter on May 13, 2005, stating that because of certain actions by John Oswald, voting certificate requirements could not be enforced at the 2005 election. Mr. Oswald, the unit owner representative, submitted a letter to the arbitrator on April 20 th 3

4 indicating that other owners requested his assistance when they received the 2005 election materials as they were unsure of what to do. He instructed the owners to only fill out the voting portion and discard everything else because he was not aware of the voting certificate requirement as it had never been enforced at prior elections. The association claims it was unable to enforce voting certificate requirements at the 2005 election due to Mr. Oswald s actions. When an association has failed to enforce a certain provision of its governing documents, in may come into compliance and initiate enforcement of that provision only after notifying the membership in advance of the intended enforcement, and then it must ensure that the particular provision is enforced in a consistent manner. Unit owners that are accustomed to non-enforcement of a certain provision of the governing documents must be informed of the association s intent so that they may prepare to comply with the provision. Common notions of fair play and equal justice will not allow an association that has repeatedly failed to enforce a provision of its documents to begin enforcement and disenfranchise owners without adequately notifying its membership of the intended enforcement action. See e.g., Chattel Shipping and Investment, Inc. v. Brickell Place Condominium Association, Inc., 481 So. 2d 29 (Fla. 1st DCA 1985)(where an association had previously ignored restrictions concerning balcony enclosures and informed all owners of its intent to enforce those regulations was only permitted to enforce the restrictions prospectively because the association had taken the appropriate steps to inform the owners of its intent to enforce the balcony restrictions). In this case, the association admits that prior boards failed to enforce the voting certificate requirements contained in section 2.5(b) of its by-laws. When the current board decided to begin enforcement of this provision at the 2005 election, the unit 4

5 owners were provided with an information sheet that contained a general statement on the use of voting certificates, along with a blank voting certificate to complete and return to the association. However, this generic information failed to adequately inform the owners that the association would be enforcing its historically-ignored voting certificate requirement in all appropriate voting instances, for example, annual elections and recalls. As the owners in this case were unaware of the association s intent, voting certificates were not completed and such requirements were not enforced at the 2005 election. At the subsequent recall effort, the association rejected at least ten ballots for failure to comply with voting certificate requirements. However, the arbitrator finds that because the association failed to adequately inform the owners of its intent to begin enforcement of voting certificate requirements, it cannot disenfranchise voters now by enforcing the provision and rejecting recall ballots for failure to comply with the voting requirements. Thus, the association improperly rejected these ten ballots. The association also rejected the ballot submitted for unit 14 based on the voter, Ernesto Gonzalez, failing to complete Block A on the recall ballot. Block A on the recall ballot used in this case contains the names of the board members subject to the recall effort and provides recall and retain boxes next to each board members name for the voter to indicate a recall or retain vote for each board member. While the ballot submitted for unit 14 contains Mr. Gonzalez s signature, unit identification and date, Block A, the voting block, is blank. Thus, Mr. Gonzalez failed to vote to recall or retain any of the board members subject to this recall effort. Accordingly, this ballot was properly rejected by the association. The association also rejected 5 ballots on the basis that the name on the ballot does not match the name on the deed to the property. The ballot submitted for unit 21 5

6 was signed by Jeremy Gauthier and the recorded property deed submitted by the association indicates that Jeremy Gauthier and Michelle Gauthier are the owners of this unit. As Mr. Gauthier signed the ballot in question, his name does match the name on the deed and his ballot was improperly rejected. 2 The ballot submitted for unit 37 was signed by Carol (Green) Roberts and the property deed submitted indicates that the owner is Christine T. Allen, a/k/a Christine T. Wilson. As Ms. (Green) Roberts is no longer the owner of this property, this ballot was properly rejected by the association. The ballot submitted for unit 67 was signed by Jose Perez. The property deed submitted for this ballot indicates that the owners are Edgar A. Johnston and Joan L. Johnston. The respondent s answer included a hand-written power of attorney agreement signed by both Mr. and Mrs. Johnston purportedly giving Jose Perez the authority to represent their interests in voting or any other association matter. Even assuming that this power of attorney agreement is valid, it is appears to be dated March 18, 2005, which is after the date the board was served with the recall agreements on March 14, As the 2 The association does not allege that this ballot was rejected for failure to comply with voting certificate requirements. 6

7 agreement was not dated until after the recall ballots were served on the board, it cannot be used in this recall effort. Accordingly, the association properly rejected this ballot. The ballot submitted for unit 71 was signed by Michael Veach. The property deed submitted for this unit indicates that the owners are William Veach and Pauline S. Veach. A letter accompanying the respondent s answer, signed by Pauline Veach and dated April 10, 2005, indicates that Michael Veach may cast any vote on behalf of his parents for this property. The letter has no legal significance and the association properly rejected this ballot. The ballot submitted for unit 74 was signed by Leone G. Philippe. The property deed submitted for this unit indicates that the owners are Leone G. Philippe and Bissainthe Jean. As the name on the ballot, Leone G. Philippe, matches the name on the deed for this property, the ballot was improperly rejected by the association. When the 4 properly rejected recall votes referenced above are subtracted from the total votes submitted, each board member is left with 44 votes in favor of recall. As the minimum number of votes required to recall a board member is 43, all three board members received sufficient votes to be recalled. Thus, the recall will be certified. It is therefore ORDERED: 1. The recall of board members Cheri Forbes, Odi Gibson and Bryan Janney is CERTIFIED. As a majority of the board has been recalled, the replacement candidates shall consist of Gina Hertz, Jose Perez and Bill Rosenberg. 2. All documents and records belonging to the association in Cheri Forbes, Odi Gibson and Bryan Janney s possession shall be turned over to the remaining board members within five (5) business days of the date of this order. 7

8 DONE AND ORDERED this 9 th day of June 2005, at Tallahassee, Leon County, Florida. Melissa Mnookin, Arbitrator Department of Business and Professional Regulation Arbitration Section Northwood Centre 1940 North Monroe Street Tallahassee, Florida Certificate of Service I hereby certify that a true and correct copy of the foregoing summary final order has been sent by U.S. Mail to the following persons on this 9 th day of June 2005: Cheri Forbes, President Green Terrace Condominium Association, Inc Georgia Avenue Unit F-38 West Palm Beach, Florida Representative for Petitioner John Oswald 2800 Georgia Avenue Unit J-64 West Palm Beach, Florida Unit owner representative Melissa Mnookin, Arbitrator 8