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

Transcription

1 STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMSHARES AND MOBILE HOMES IN RE: RECALL PETITION FOR ARBITRATION Courtside Commons of Wyndemere Condominium Association, Inc v. Petitioner, Unit Owners Voting for Recall, Case No Respondent. FINAL SUMMARY ORDER ON RECALL Issue / The issue in this case is whether the recall of Board Member G. Robert Smith was valid and should be certified in light of the following errors alleged by the Association: 1. The recall was not properly served upon the Association; 2. The recall ballot form was defective; 3. Seven of the recall ballots are invalid rendering the number of recall ballots cast insufficient to recall Board Member Smith. Procedural History On November 16, 2010, the Association filed a Petition for Recall Arbitration asking that the Association s decision not to certify the recall be affirmed. On December 28, 2010, the Unit Owner Representative was personally served with the Petition. On January 10, 2011, the Unit Owner Representative (Elizabeth Hitchcock) filed an Answer. The Association did not file anything in response to the Answer. After 1

2 reviewing the pleadings and documents filed by the parties, there is no question of fact remaining, and entry of a Summary Final Order is appropriate. 1 FINDINGS OF FACT 1. On November 3, 2010, the Association received 27 recall ballots targeting a single board member, G. Robert Smith. The Association had 5 seats on the board of directors on November 3, The Association has 53 voting interests; 27 recall ballots are necessary to recall any board member. 3. Board President G. Robert Smith was served with the recall agreement by a process server at his home on November 3, 2010, at 2:12 p.m. the recall. 4. Unit Owner Louise Schadt rescinded her vote after Smith was served with 5. On November 9, 2010, the Association s Board held a meeting to consider the recall. The Board decided not to certify the recall for the following reasons: A. The recall agreement was not properly served because, at the time of service the process server did not represent herself to be a process server; or, leave a copy of the affidavit of service. B. The recall ballot was fatally defective because it did not contain the address of the Unit Owner Representative. C. Less than a majority of the unit owners had voted for the recall because 7 of the 27 ballots are invalid for the following 4 reasons: (i) Four of the ballots were signed by individuals who did not own the unit identified on the ballot: 1 Fla. Admin. Code R. 61B (2010). 2

3 Daniel Hess, in unit 208 (B-204); G. David Young, in unit 607 (F-202); Lawrence Green, in unit 103 (or A-105); Michael Giunta, in unit A-205.; (iii) (iv) Louise Schadt, rescinded her ballot. Alfred M. Cohen voted by a letter, rather than by a ballot. Additionally, the signature does not indicate Mr. Cohen is signing as a trustee for the Alfred M. Cohen trust in which the unit is titled. Mr. Cohen rescinded his ballot on November 8, (iv) Robert A. Rosenfield did not print his name on the recall ballot, and the unit is owned by Sterling Paper Company, not Mr. Rosenfield. 6. The next election is scheduled for February of Giunta Properties is a business owned by Michael Giunta. 8. Sterling Paper Company is an Ohio corporation, and unit owner Robert Rosenfield is President of that corporation. CONCLUSIONS OF LAW The arbitrator has jurisdiction over the parties and the subject matter of this dispute pursuant to , Florida Statutes (2010). The legal issues raised by the Association are discussed below. Any member of an Association's board of directors may be recalled and removed from that office, with or without cause, provided a majority of the Association's voting interests agree to do so by written ballot or agreement. 2 Service of the Recall Agreement The Association asserts that the recall was invalid because service of process was defective. More particularly, the Association states that the process server did not (2)(j), Fla. Stat. (2010). 3

4 identify herself as such, and she did not leave Mr. Smith a copy of her Affidavit of Service. The purpose of requiring unit owners to serve the association with the written recall agreement is to place the board on notice that a recall has been attempted by the unit owners. 3 Service of the written agreement on an officer, association manager, board director, or the association s registered agent will be deemed effective service upon the association. 4 Substantial compliance, not strict compliance, is sufficient to conclude that service has been effective. 5 In this case, the recall agreement was served upon the Board President by a process server. The service was adequate irrespective of whether the process server identified herself as such or left a copy of the Affidavit of Service with the Board President. Furthermore, there is no dispute as to when the Board President received the written agreements. Validity of Recall Form The Association next argues that the form of the recall ballot was inadequate, rendering the recall invalid. More specifically, the Association points out that the address of the Unit Owner Representative was not filled in on any of the ballots. The ballots used are the form ballots propounded by the Division on its web site, and they substantially comply with Florida Administrative Rule 61B (1). The failure of the Unit Owner Representative to state her address on the ballot form is a 3 Unit Owners Voting for Recall v. New World Condo. Apt. III Condo. Ass n Inc., No , 2004 WL (Fla. DBPR Arb., Apr ) citing Nautilus Condo. Ass n Inc. v. Unit Owners Voting for Recall, Arb. Case No , Summary Final Order (Dec. 3, 1999). 4 Fla. Admin. Code R. 61B (2) (2010). 5 Id. at subsection (2). 4

5 minor procedural inconsistency and does not invalidate it. 6 The ballot substantially complies with Florida Administrative Rule 61B (1) (2010). The ballot form is valid despite the absence of the Unit Owner Representative s address. Majority of Voting Interests The Association next argues that its failure to certify the recall was appropriate because less than one-half of the voting interests in the Association voted to recall Board President Smith. The Association reaches this conclusion by arguing that 7 of the 27 recall ballots served were invalid. If even 1 of the 7 ballots is invalid, the recall fails. However, if all 7 of the targeted ballots are valid, the majority of voting interests did recall Smith, and the recall will be certified. The 7 individuals whose ballots are in question, are discussed below. The individuals are identified by name because the Association has assigned 2 different numbers to each individual s unit. It is not clear from the Petition if the Association expected unit owners to identify on their ballot both unit numbers, or only 1 of them; and if only 1 unit number was required, which number would suffice. 1. Daniel Hess - Association claims he did not own the unit. Daniel Hess signed the recall ballot for unit 208 (or, B-204), with the signature of his wife, Karen, as a witness. By warranty deed of June 1, 2007, Daniel and Karen S. Hess, as husband and wife, conveyed their unit to the Karen S. Hess Trust, with Karen S. Hess as trustee. The Association s Declaration, at Section 19.11(C) states that a trustee has the right to vote for a unit owned by a trust. Karen S. Hess signed the recall ballot, although she signed as a witness to her husband s signature. Her signature is on the ballot, with the signature of her husband being an extra signature that 6 See Coquina Isle Condo. Ass. n, Inc. v. Unit Owners Voting for Recall, No , 2005 WL (Fla. DBPR Arb., March 30, 2005). 5

6 does not impact substantial compliance with the requirements of Florida Administrative Rule 61B (1) (2010). 7 The two signatures on the ballot, irrespective of their location, clearly evidence the intent of Mr. and Mrs. Hess to recall Director Smith is evident. This ballot will be counted. 2. G. David Young - Association claims he did not own the unit. G. David Young signed his ballot and filled in his unit number as 607. His unit number is actually 609 (or, F-105). This ballot was signed by the owner of record for unit 609 (or, F-105), rather than for unit 607, as stated on the ballot. This error does not invalidate the ballot in and of itself. The association can readily determine this owner s unit number because he also printed and signed his name. 8 Moreover, the Association s identification of units by 2 numbers, rather than 1 number, renders the ballot substantially compliant with the requirements of Florida Administrative Rule 61B (1) (2010), and it will be counted. 3. Lawrence Green - Association claims he did not own the unit. Lawrence Green signed his ballot and filled in his unit number as 105. His unit number is actually 103 (A-105). This ballot was signed by the owner of record for unit 103 (or, A-105), rather than for unit 105, as stated on the ballot. This error does not invalidate the ballot in and of itself. The association can readily determine this owner s unit number because he also printed and signed his name. 9 Moreover, the Association s identification of units by 2 numbers, rather than 1 number, renders the ballot substantially compliant with the requirements of Florida Administrative Rule 61B (1) (2010), and it will be counted. 7 See Coral Towers Condo. Ass n, Inc. v. Unit Owners Voting for Recall, No , 2001 WL (Fla. DBPR Arb., May 7, 2001) (a non-unit owner s signature alongside the single owner s signature does not invalidate the ballot). 8 See William C. Serda v. Shores Villas Condo. Ass n, No , 2004 WL (Fla. DBPR Arb., Aug. 26, 2004). 9 Id. 6

7 4. Michael Giunta - Association claims he did not own the unit. Michael Giunta signed the recall ballot for unit 109 (A-205). The unit is owned by Giunta Properties, a company Mr. Giunta owns. This ballot substantially complies with the requirements of Florida Administrative Rule 61B (1) (2010), and it will be counted. 5. Louise Schadt The Association claims she rescinded her ballot. Louise Schadt signed the recall ballot for unit 408 (D-203). The Association asserts that Ms. Schadt rescinded her ballot in writing on November 3, The fact that Ms. Schadt rescinded her recall ballot in writing on November 3, 2010, is not disputed. However, she did not do so prior to the recall agreement being served upon the Board President that same day at 2:12 p.m. Florida Administrative Rule 61B (1)(k) (2010) states that rescission or revocation of a unit owner s written recall ballot must be delivered to the board prior to the board being served with the written recall agreements. This recall vote is valid, and it will be counted. 6. Alfred M. Cohen The Association claims his vote was in improper format, without a trustee signature, and was rescinded Alfred Cohen (unit 102) voted to recall G. Robert Smith in a letter, rather by a ballot. The letter is dated ( ) and signed; identifies Cohen s address; and, evidences Cohen s intent to recall Smith. Written recall agreements submitted in the form of a letter, rather than in the ballot form, are not necessarily invalid. 10 Such letters must substantially comply with Florida Administrative Rule 61B (1) (2010), and Mr. Cohen s letter substantially complies. Nor is the vote invalid because the unit is owned by the Alfred M. Cohen Trust, and Mr. Cohen signed only his name, without 10 Byron Gardens Condo. Ass n, Inc. v. Unit Owners Voting for Recall, No , 2004 WL (Fla. DBPR Arb., July 22, 2004). 7

8 reference to his status as trustee. 11 substantial compliance with the Rule. The ballot continues to be in The Association also claims that Mr. Cohen rescinded his vote on November 8, The Board was served with the recall on November 3, For the reasons previously noted, the rescission was too late to be effective. This vote will be counted. 7. Robert A. Rosenfield The Association claims he did not print his name and he does not own the property. Mr. Rosenfield signed the recall ballot for unit 406 (D-201). He did not print his name on the ballot above his signature. He did, however, identify 1 of his 2 unit numbers on his ballot (406). This ballot substantially complies with the requirements of Florida Administrative Rule 61B (1) (2010). The unit is titled in the name of Sterling Paper Company, Inc., an Ohio corporation, of which Mr. Rosenfield is President. Pursuant to the Declaration of Condominium, Section 19.11(B), Mr. Rosenfield has authority to vote for the corporation. This ballot is valid and will be counted. Based upon the foregoing, IT IS ORDERED: A. The recall of Board Member G. Robert Smith is CERTIFIED and he is REMOVED as a director effective as of the date of mailing this order; B. The four current serving Board members may fill the vacated seat of Smith by their affirmative vote. Any replacement candidate is to serve for the unexpired term of the seat held by Smith. Smith cannot be appointed to fill the vacancy. C. Within five (5) full business days from the effective date of this order, G. Robert Smith is to deliver any and all records of the 11 Royal Arms Condo. Ass n, Inc. v. Unit Owners Voting for Recall, No , 2008 WL (Fla. DBPR Arb, April 2008) citing Lakes of Woodhaven Condo. Ass n v. Unit Owners Voting for Recall, No , 2005 WL (Fla. DBOR Arb., April 8, 2005) (Where the person signing the ballot is the trustee of the trust, it is unnecessary for the person to write the word trustee after his or her name for the recall ballot to be valid). 8

9 Association in his possession to the Association for deliver to the new board member. DONE AND ORDERED this 28 th day of January Shirley J. Whitsitt Dep t. of Bus. & Prof. Reg. - Arbitration Section 1940 North Monroe Street Tallahassee, Florida Fax: (850) CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing final order was sent to the below-named individuals this 28 th day of January 2011, by Facsimile and U.S. mail, postage prepaid to: Alfred F. Gal, Jr., Esq. Samouce, Murrell & Gal, P.A Park Central Ct. Naples, FL Fax: (239) By U.S. Mail Only, to: Elizabeth Hitchcock Unit Owner Representative 602 Courtside Dr. #F 102 Naples, FL Shirley J. Whitsitt 9