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 SENATE 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. On March 4, 2003, the respondent, the unit owners seeking recall, served The Senate Condominium Association, Inc. (petitioner/association) with 7 written recall agreements. On March 11, 2003, the board met and determined not to certify the recall. On March 18, 2003, the association filed a petition for arbitration, naming all of the unit owners in the association and alleging that David Aronow and Clement Peterpaul were improperly representing themselves as members of the board. From the petition and its attachments, it was difficult to 1

2 ascertain whether the petition for arbitration concerned a recall or elections issue. On June 30, 2003, the arbitrator entered an order requiring response. The order requiring response required that the petitioner confirm whether or not the petition involved a recall of the board. On July 14, 2003, the petitioner responded that the issues raised in the petition for arbitration did not involve a recall, however, in subsequent pleadings submitted by the petitioner it is evident that a recall did in fact occur on March 1, Accordingly, the petition filed on March 18, 2003, will be treated as a petition for recall arbitration pursuant to Rule 61B , Florida Administrative Code. The unit owners are seeking to recall three board members: Gary Zimmerman, Donald Crawley and Patrice Gouty. According to the minutes of the board meeting, the recall was rejected for the following reasons: 1. The recall is not a true recall as authorized by Florida Statutes and the Florida administrative code; 2. The document is an attempt to call for an election and not a true recall; 3. The form used does not contain a space for the person to state their name 1 and date the agreement; 4. The form does not contain the language indicating that the person signing the agreement is authorized to cast a vote on behalf of the unit; 5. The form fails to designate a unit owner representative 2 ; 1 The recall agreement does contain a space for the unit owner to print and sign their name. No space is provided for the unit owner to enter the date the agreement was signed. 2 The recall form used designates David Aronow as the unit owner representative. 2

3 6. The signature of John Buckley is questioned, he does not have the authority to sign for the unit in his own name; 3 7. The ballots contain unauthorized and misleading information; 8. The ballot cast by Shellie Sims does not vote to recall any board member. 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 eleven (11) units. Accordingly, six (6) votes constitute a majority of the voting interests. Section (2)(j)3., requires that a board which fails to certify a recall agreement shall file a petition for arbitration within five full business days after the meeting at which the board decides not to certify the agreement. In the instant case, the board held a meeting on March 11, 2003, and decided not to certify the agreement. Therefore, the petition should have been filed by March 18, A petition for recall arbitration has never actually been filed in this matter. The five-day filing requirement is not jurisdictional. However, it must be complied with unless the board provides legitimate reasons for late filing and has acted in good faith. Failure to provide such a justification will result in a rejection of the petition and certification of the recall. Galeria III Condominium Association, Inc. v. All Unit Owners Who Voted for Recall, Arb. Case No , Summary Final Order (March 7, 1996) (where board had meeting where it was decided not to 3 Miami-Dade public records list John L. Buckley as the legal owner of unit 2 in The Senate 3

4 file a petition for arbitration because it believed that unit owners had not obtained a majority of votes and, therefore, arbitration was not necessary, arbitrator held that petition filed one month later was untimely and the recall was certified). In this case, the association has offered no justification for filing its petition late. Additionally, counsel for the petitioner has represented that this petition filed in this matter did not involve a recall, contrary to the evidence later submitted by the petitioner demonstrating that a recall had in fact taken place on March 1, Section (2)(j)3., Florida Statutes requires that the petition be filed within 5 full business days or the recall is deemed certified. The association s denial that a recall has occurred is not a valid basis for failing to file a petition for recall arbitration. Note, however, that the delay in filing the petition for arbitration will not validate a recall that is deemed void ab initio. See Gateland Village Condominium Assoc. v. Unit Owners Voting For Recall, Arb. Case No , Summary Final Order (January 11, 1999) (where the recall effort is void ab initio, the subsequent failure of the board to properly notice or conduct its meeting on whether to certify the recall cannot be used to validate an otherwise invalid recall agreement). It is, accordingly, necessary to determine whether the recall was void ab initio. A recall ballot is deemed void ab initio where the ballot contains a fatal flaw that renders the ballot unenforceable. Ballots determined to be void ab initio must be excluded from any tallying of votes in the instant recall. The association has not challenged Condominium. 4

5 any vote as being cast by a non-unit owners and has not alleged any violation of rule 61B , Florida Administrative Code, that is deemed to be a fatal error. The petitioner grounds for denying the recall ballots constitute grounds that are voidable, rather than grounds that are void ab initio. Voidable challenges do not allege any flaws that would be deemed fatal and the ballots challenged on this basis are otherwise valid votes. Since the petitioner s remaining challenges to the ballots are voidable, rather than void ab initio, the challenges to these ballots will not be considered due to the delay in filing the petition by the board. The association alleges that the ballot cast by Shellie Sims did not vote to recall any board member. A review of the ballot confirms that Shellie Sims did not vote to recall any board member, accordingly her ballot is properly excluded. Excluding this ballot leaves six (6) valid recall ballots. This constitutes a majority of the voting interests of the association. The association s remaining challenges are without legal merit and even if considered would not affect the outcome of the recall arbitration. See The Crosswinds Mobile Home Park, Inc. v. Unit Owners Seeking Recall, Arb. Case No , Final Order (March 4, 1998) (A recall agreement which failed to designate a unit owner representative nevertheless substantially complied with Rule 61B ); Grand Vista Condo. Assn., 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 5

6 recall.); Central Cortez Plaza Condo. Assn., Inc. v. Unit Owners Voting for Recall, Arb. Case No , Summary Final Order (June 7, 1997) (The fact that the recall agreement form did not contain words indicating that the unit owner was authorized to cast the vote does not render the agreement invalid); Greenway Village North II Assoc., Inc. v. Unit Owners Voting for Recall, Arb. Case No , Summary Final Order (October 11, 2001)(Fact that the recall ballots were undated constitutes a minor procedural inconsistency and does not invalidate an otherwise valid ballot.); Hialeah Club Villas Condo. Assn., Inc. v. Unit Owners Voting for Recall, Arb. Case No , Summary Final Order (September 7, 2000)(Unit owners are presumed to be capable of making their own decisions inn the face of misinformation or ambiguous information contained on a recall ballot.) 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; Because the petition is late-filed without sufficient justification, no legitimate reason has been given in the minutes for refusing to certify the recall, and the recall agreement appears to be sufficient, the petition is rejected and the recall is certified. Based on the foregoing, it is ORDERED: The recall of board members Gary Zimmerman, Donald Crawley, and Patrice Gouty is hereby CERTIFIED. David Aronow, James Peterpaul and Tatiana Escalada, 6

7 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 18 th day of September 2003, at Tallahassee, Leon County, Florida. 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 18 th day of September 2003: Peter C. Bianchi, Jr. 35 Almeria Avenue Coral Gables, FL Attorney for Petitioner Michael W. Gomez, Esquire 1930 Tyler Street Hollywood, FL Richard M. Coln, Arbitrator 7