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 AMY L. ZIOMEK, Petitioner, v. Case No THE JUPITER BEACHCOMBER CONDOMINIUM ASSOCIATION, INC., Respondent. / SUMMARY FINAL ORDER THIS CAUSE having come on for consideration of respondent s response to the order requiring more definite statement, and it appearing that the response does not present an issue of material fact, and therefore, that this matter may be summarily decided pursuant to Rule 61B , Florida Administrative Code, the arbitrator hereby makes the following findings of fact and conclusions of law, and issues the following order based thereupon. ISSUE PRESENTED Whether the respondent improperly cancelled and rescheduled an election after the deadline for filing a notice of intent to be a candidate, in violation of Section Florida Statutes. FACTS 1

2 On or before December 25, 2001, the respondent sent notice of an election to be held on February 23, Pursuant to Rule 61B (5), F.A.C., notice of intent to be a candidate for the election had to be filed on or before January 14, The respondent received four timely notices of intent to become a candidate. The candidates were Sueli Pietroski, Amy L. Ziomek, Michael Staley, and Maurlie Knauer. The Jupiter Beachcomber Condominium s board of directors consists of five members. On or after the January 14, 2002, deadline for filing a notice of intent to be a candidate, the board cancelled the election and rescheduled the election for March 25, 2002, and reset the deadline for the filing of the notice of intent to be a candidate. The petition further alleges that the annual meeting held on March 25, 2002, to elect a new board of directors, did not have a quorum of the board of directors present. Section (2)(d)7, Florida Statutes, and Rule 61B (5), F.A.C., provide that an association may adopt in its bylaws an alternative elections procedure. The bylaws of The Jupiter Beachcomber Condominium association do not provide for an alternative procedure for conducting elections as permitted in these sections. The respondent asserts as defenses that the board had the ability to reset the election 1 and that no quorum was necessary at the annual meeting. It is unnecessary to address the second defense raised by the respondent, as the first issue is dispositive of this matter. 1 Petitioner suggests that giving the board the ability to cancel an election in mid-process would permit the board to re-shuffle the deck whenever it doesn t like the slate of candidates for an upcoming election. 2

3 ANALYSIS Elections for the board of directors of a condominium are controlled by the provisions of Section , Florida Statutes and Rule 61B , F.A.C., Section (2)(d), Florida Statutes, provides: 1. There shall be an annual meeting of the unit owners. Unless the bylaws provide otherwise, a vacancy on the board caused by the expiration of a director s term shall be filled by electing a new board member, and the election shall be by secret ballot; however, if the number of vacancies equals or exceeds the number of candidates, no election is required. If there is no provision in the bylaws for terms of the members of the board, the terms of all members of the board shall expire upon the election of their successors at the annual meeting. * * * 8. Unless otherwise provided in the bylaws, any vacancy occurring on the board before the expiration of a term may be filled by the affirmative vote of the majority of the remaining directors, even if the remaining directors constitute less than a quorum, or by the sole remaining director. In the alternative, a board may hold an election to fill the vacancy, in which case the election procedures must conform to the requirements of subparagraph 3. unless the association has opted out of the statutory election process, in which case the bylaws of the association control. Unless otherwise provided in the bylaws, a board member appointed or elected under this section shall fill the vacancy for the unexpired term of the seat being filled. Filling vacancies created by recall is governed by paragraph (j) and rules adopted by the division. Rule 61B , F.A.C., provides in pertinent part that: (1)(a) Unless otherwise provided herein, the provisions of this rule apply to all regular and run-off elections conducted by a condominium association, regardless of any provision to the contrary contained in the declaration, articles of incorporation, or bylaws of the association. * * * (c) In order to adopt different voting and election procedures in its bylaws pursuant to (2)(d)7., Florida Statutes, an association must obtain the affirmative vote of a majority of the total voting interests even if different amendatory procedures are contained in an association s bylaws. Such vote must be taken on or after June 14, 3

4 1995. The phrase different voting and election procedures as used in this rule and as used in Section (2)(d), Florida Statutes, refers to procedures used only for the election of board members. (d) Balloting is not necessary to fill any vacancy unless there are two or more eligible candidates for that vacancy. In such a case, not later than the date of the scheduled election: 1. For a regular election the association shall call and hold a meeting of the membership to announce the names of the new board members, or shall notify the unit owners of the names of the new board members or that one or more board positions remain unfilled, as appropriate under the circumstances. In the alternative, the announcement may be made at the annual meeting. 2. For an election pursuant to Section (2)(d)8., Florida Statutes, to fill a vacancy, the association shall call and hold a meeting of the membership to announce the names of the new board members or, in the alternative, shall notify the unit owners of the names of the new board members or that one or more board positions remain unfilled, as appropriate under the circumstances. * * * (4) The first notice of the date of the election, which is required to be mailed or delivered not less than 60 days before a scheduled election, must contain the name and correct mailing address of the association. (5) A unit owner or other eligible person desiring to be a candidate for the board of administration shall give written notice to the association not less than 40 days before a scheduled election. Written notice shall be effective when received by the association. Rule 61B (5), F.A.C., states that a candidate shall give written notice of intent to be a candidate not less than 40 days before a scheduled election. The election was scheduled for February 23, Therefore, the deadline for filing notice of intent to be a candidate was January 14, Where the number of candidates is less than or equal to the number of available seats on the board, no election is necessary. See Section (2)(d), Florida Statutes, 4

5 see also, Rule 61B (d), F.A.C., (balloting is unnecessary to fill any vacancy unless there are two or more eligible candidates for that vacancy.) In the instant case, four individuals timely filed notices of intent to be a candidate for the February 23, 2002 election. On January 14, 2002, the association had received four notices of intent to become a candidate, for five positions on the board. Accordingly, as no more notices of intent could be received after the January 14, 2002, deadline, there was no need for an election regarding these four board seats. The four candidates who submitted notice of intent by the deadline were automatically elected to the board. The association asserts that it reset the election to allow more individuals to file notices of intent because, if the board had only four members, the board would be prone to deadlock. This argument is without merit. 2 The respondent is not free to reopen the nomination process as to all five positions. As the four candidates who had submitted notice by January 14, 2002 were unopposed, they were automatically elected to four of the seats on the board. The statute and the rules provide for the filling of vacancies on the board. If the association wished to fill the remaining board position, the association had the option of appointing someone to the position or holding an election for the final seat on the board. See Section (2)(d)8, Florida Statutes. 2 There are instances where the board would properly exercise its judgment in favor of canceling a duly scheduled election, such as where first or second notices were fatally defective; that has not occurred here, however. 5

6 Accordingly, there being no valid defense to the improper resetting of the election and reopening the nomination process, the four candidates who submitted notices prior to the deadline are members of the board. Based upon the foregoing, it is hereby ORDERED that: The decision of the respondent to reset the election and to reopen the nomination process was improper. Sueli Pietroski, Amy L. Ziomek, Michael Staley, and Maurlie Knauer shall immediately take their seats on the board of directors. Within five (5) days, each of the prior board members shall hand over all association property and documents in his or her possession to one of the members of the new board. DONE AND ORDERED this 26 th day of August 2002, at Tallahassee, Leon County, Florida. Richard M. Coln, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida RIGHT TO TRIAL DE NOVO PURSUANT TO SECTION , FLORIDA STATUTES, THIS DECISION SHALL BE BINDING ON THE PARTIES UNLESS A COMPLAINT FOR TRIAL DE NOVO IS FILED BY AN ADVERSELY AFFECTED PARTY IN A COURT OF COMPETENT JURISDICTION IN THE CIRCUIT IN WHICH THE CONDOMINIUM IS LOCATED WITHIN 30 DAYS OF THE DATE OF MAILING OF THIS ORDER. THIS FINAL ORDER DOES NOT CONSTITUTE FINAL AGENCY ACTION AND IS NOT APPEALABLE TO THE DISTRICT COURTS OF APPEAL. 6

7 ATTORNEY S FEES As provided by s , F.S., 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 summary final order has been sent by U.S. Mail and by fax to the following persons on this 26 th day of August 2002: Randall W. Henley, Esquire Randall W. Henley, P.A. 324 Datura Street Suite 200 West Palm Beach, FL Attorney for Petitioner Fax (561) Gary D. Fields, Esquire Law Office of Gary D. Fields Admiralty Tower Suite PGA Boulevard Palm Beach Gardens, FL Attorney for Respondent Fax (561) Richard M. Coln, Arbitrator 7