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

Transcription

1 STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES AND MOBILE HOMES IN RE: PETITION FOR BINDING ARBITRATION - HOA TARA CAY SOUND NORTH VILLAGE HOMEOWNERS ASSOCIATION, INC., Petitioner, v. Case No HOMEOWNERS VOTING FOR RECALL, Respondent. / SUMMARY FINAL ORDER On June 1, 2015, Tara Cay Sound North Village Homeowners Association, Inc. (the Association) filed a petition for binding arbitration of a recall dispute. The homeowners voting in favor of the recall are the respondent in this matter. On June 23, 2015, Respondent filed its answer and on July 8, 2015, Respondent filed supplemental information. This order is entered pursuant to rule 61B , Florida Administrative Code, because there are no disputed issues of material fact. Findings of Fact 1. Tara Cay Sound North Village Homeowners Association, Inc. is the legal entity responsible for the operation of the Tara Cay, North Village community located in Pinellas County, Florida. 2. The total number of voting interests in the Association is The total number of seats on the Association s board of directors (the Board) is On May 18, 2015, the Association received a written recall agreement seeking to recall Joseph MacKay. 1

2 5. The written recall agreement consisted of 70 ballots, each voting to recall Mr. MacKay. 6. The Board held a meeting on May 26, 2015 (the Board Recall Meeting), at which time it chose not to certify the recall. The meeting s minutes state the reasons for rejecting ballots as follows 1 : KTED2LLC Person Signing the ballot was not on the Designated Voter Form Kirby is the owner of record, Lorraine is not an owner. She signed the ballot and she is designated on the voter form. He did not sign the ballot Joseph signed the petition. Kathleen is an owner and on the deed. Did not sign the designated voter form or the ballot Gina Marie signed the petition. Joseph and Kathleen are also listed as owners and did not sign the designated voter form or the ballot Joseph signed the petition. Penny is an owner and did not sign the designated voter form or the ballot Burton - delinquent - could be questionable since it is in lien. Even though the Board has not discussed removing voting rights and sending a letter to this effect. Lien was placed at the end of January. 7. Section 3.a. of the Declaration of Covenants, Conditions, Restrictions and Easements for Tara Cay Sound, North Village Homeowners Association, Inc. (the Declaration) states, in pertinent part: a. Class A Voting. There shall be one (1) vote for each Lot owned by one (1) or more Class A members, subject to the following requirements. As to each Lot owned by one (1) or more Class A members, there shall be filed with the Secretary of the Association a Designated Voter Certificate which shall name one (1) and only one (1) of the Owners of such Lot as the Designated Voter for that Lot. Such Certificate shall be signed by all of the Owners of such Lot and shall, upon filing with the Secretary of the Association, be effective until a new certificate is subsequently duly executed by all Owners and filed with the Secretary of the Association. 1 The minutes discuss the ballots for and 14692, but indicate that the ballots were not rejected stating: Mrs. Wolfersberger signed the Petition. An old designated voter form had the signature of her husband designating her as the voting representative. We did not discount this one as she is the sole owner Gushue - Joe feels that signature of Jeanette was copied and pasted. No designated voter form. Did not discount but Jeanette s husband did not sign the ballot. 2

3 Only the person named in such Certificate, or their duly appointed proxy, shall be allowed to cast the vote for the subject Lot. Conclusions Of Law The undersigned has jurisdiction over the parties and subject matter of this dispute, pursuant to sections (1) and , Florida Statutes. The Association rejected the ballot for Seminole Trail because a lien has been placed on the property by the Association. The minutes of the Board Recall Meeting state that the Board has not discussed removing voting rights and sending a letter to this effect. Section (5), Florida Statutes, provides that suspension of voting rights must be approved at a properly noticed meeting, and, upon approval, the association must notice the owner by mail or hand delivery. The minutes indicate that the Association has not suspended the voting rights for Seminole Trail in accordance with the statutory requirements. Therefore, the Association may not reject this ballot. The petition claims that ballot for Seminole Trail should be rejected because, although the owners provided a proxy, they did not provide a voting certificate and the ballot was not signed by both owners. However, the minutes of the Board Recall Meeting indicate that this ballot was not rejected, stating: Joe feels that signature of Jeanette was copied and pasted. No designated voter form. Did not discount but Jeanette s husband did not sign the ballot. Rule 61B (3)(h), Florida Administrative Code, provides that any specific reason upon which the board bases its decision not to certify the recall that is stated in the petition for recall arbitration, but absent from the board meeting minutes or attachments thereto, shall be ineffective and shall not be considered by the arbitrator. Therefore, the 3

4 petition may not reject ballots that were not rejected by the Board during its meeting. Thus, the ballot for Seminole Trail is deemed valid. Section 3.a. of the Declaration requires Class A Owners (non-developer owners) to file a Designated Voter Certificate with the Association s secretary naming a Designated Voter for the lot. Only the Designated Voter or the Designated Voter s proxy may cast a vote on behalf of the lot. The Association rejected the ballots for 14703, 14767, 14720, 14805, and 14843, 2 for failure to comply with the Designated Voter Certificate requirements of the Declaration. In its answer, Respondent does not challenge the rejection of ballots for this reason, rather, Respondent has filed corrected Designated Voter Certificates. In its response to the Order Requiring Supplemental Information, Respondent states that the corrected certificates were provided to the Association subsequent to service of the written recall agreement. Designated Voter Certificates must be on file with the Association prior to delivery of written recall agreement or delivered simultaneously with the written recall agreement. See Venice Sands Apartments Condo Ass n, Inc. v. Unit Owners Voting For Recall, Arb. Case No , Summary Final Order (December 23, 2004). 3 In the instant case, valid voting certificates were not provided to the Association until after service of the written recall agreement. Therefore, the Association properly rejected the ballots for 14703, 14767, 14720, 14805, and All addresses are located on Seminole Trail. 3 Venice Sands Apartments involved a condominium recall. Since the statutes and administrative rules governing condominium association recalls are essentially identical to those governing homeowners association recalls, reliance on prior condominium arbitration orders is appropriate. 4

5 Section (10)(a), Florida Statutes, provides that any member of the board of directors may be recalled and removed from office with or without cause by a majority of the total voting interests. The Association contains 136 voting interests. Therefore, 69 votes are required to recall a director. The written recall agreement contained 70 ballots. The Association properly rejected 5 ballots. Therefore, the recall effort failed to obtain a sufficient number of valid ballots to recall Joseph MacKay. Florida. Based upon the foregoing, it is ORDERED: The Association s decision not to certify the recall is affirmed. DONE AND ORDERED this 15 th day of July, 2015, at Tallahassee, Leon County, James W. Earl, Arbitrator Department of Business and Professional Regulation Arbitration Section 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 15 th day of July, 2015: H. Web Melton, Esq. Bush Ross, P.A. P.O. Box 3913 Tampa, FL Attorney for Petitioner Gayle B. Oatley Seminole Trail Seminole, FL Representative for Respondent James W. Earl, Arbitrator 5