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 Second Horizons 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 The Second Horizons Condominium Association, Inc. filed a petition for recall arbitration on August 28, On September 19, 2003, the respondent, the unit owners who voted for recall, filed an answer to the petition. On September 5, 2003, an order requiring supplemental information was entered directing the petitioner to provide evidence that the association had required voting certificates during elections in the past two years and to provide the deeds recorded in the 1

2 public records for the units which the association challenged the ballot on the basis that they were not signed by the unit owner. On September 23, 2003, the petitioner filed a response to the order requiring supplemental information. According to the petition, the association was served on August 14, 2003, with a written agreement for recall of two (2) members of the board of directors. The petition does not specifically indicate how many members the board has, however, the two members sought to be recalled appear to constitute a majority of the board. Forty (40) ballots for recall were served on the board. The unit owners are seeking to recall board members: Sandra Jones and Shirley Kaben. There are seventy-five (75) voting interests in the association; accordingly thirty-eight (38) votes are required to recall a board member. The board met on August 19, 2003, and determined not to certify the recall. The board cited the following reasons for not certifying the recall: 1. The ballots fail to properly list replacement candidates. 2. The ballots were not properly served upon the board. 3. Units 101, 107, 124, 144, 207, 220, 241, 308 and 343 are owned by multiple unit owners. The ballots for these units were not signed by all unit owners and no voting certificates were on file for these units. 2

3 4. The ballots for units 109, 125, 140, 141, 203, 211, 220, 322, and 344 were not signed by the unit owner of record There were irregularities in the ballot collection process. 2 DISCUSSION The petitioner contends that the recall was not properly served on the board. The petition alleges that the recall ballots were left at the door of board member Shirley Kaben. Regardless of the method by which the petitioner was served, it is undisputed that the petitioner actually received the recall agreement on August 14, As the service of the recall petition is important in establishing the time frames under which the board must act in deciding whether to certify the recall and file a petition for arbitration, both of which occurred in a timely manner in this case, the method of service in the instant matter is irrelevant. Even though the method of service probably does not comply with the requirements of the rule, such a defect is harmless as no prejudice resulted from the non-compliance. See Marine Colony Condominium Association, Inc. v. Unit Owners Voting for Recall, Arb. Case No , Summary Final Order Certifying Recall (Nov. 20, 1998) (where agreement was hand-delivered to board member, failure to serve by sheriff or process server held inconsequential; proof of service requirement is intended to 1 The deed recorded in the public records for these units demonstrate that the ballots cast for each unit were in fact signed by the unit owner of record. It is unclear what records the association used to determine whom the unit owner was in making its decision to reject these ballots; however, these records appear inaccurate and in need of updating. 2 This is not a valid basis for rejecting a recall. Unit owners are presumed to know what they are signing and are presumed to be capable of making their own decisions in the face of misinformation or ambiguous information. See Board of Directors of Boca Cove Home Condominium Association, 3

4 provide a mechanism whereby the respondents can determine and prove when the board received the recall agreement, and here the date of receipt was undisputed.); Board of Admin. of the Hialeah Club Villas Condo. Association, Inc. v. Group of Members of the Assn. Who Executed a Written Agreement to Recall Members of the Bd. of Dir., Arb. Case No , Summary Final Order (July 24, 1995) (service effected by hand delivery by a representative of the unit owners was acceptable where the association had not received a certified mail package). The petitioner was required to provide proof that the association had required voting certificates in elections during the past two years. The association provided a copy of a notice of annual election sent to the unit owners informing them of the voting certificate requirement and submitted a copy of a blank voting certificate form. However, this documentation fails to establish that the association has actively enforced the voting certificate requirement in past elections. Acceptable documentation includes official voting records that demonstrate that specific votes were rejected on this basis, including minutes of the election meeting, tally sheets, or discarded ballots indicating the reason for their rejection. As it has not been established that voting certificates have been required in prior elections, the association is precluded from rejecting recall ballots on this basis. In order for an association to enforce a voting certificate requirement during a recall the association must have enforced the voting certificate requirement in the past. The Decoplage Condominium Association, Inc. v. Unit Owners Voting for Recall, Inc. v. Martin, et al., Arb. Case No , Summary Final Order Certifying the Recall (November 4

5 Arb Case No , Amended Summary Final Order (January 16, 2003). Where an association has failed to enforce a voting certificate requirement in prior elections, the requirement will not be enforced in a recall arbitration to disenfranchise voters. See e.g., The Caribbean Condominium Management Association, Inc. v. Kennedy, Arb. Case No , Final Order (Oct. 27, 1993). Accordingly, this ground for not certifying the recall is rejected. The petitioner cites the failure of the recall ballots to properly list replacement candidate as a reason for failing to certify the recall. The board cites that Sharon Baum and Silvio Restropo, two of the four replacement candidates listed on the ballots, have indicated that they do not wish to be board members. 3 This reason, even if true, is a not a valid basis for failing to certify the recall. The recall of directors and the election of replacements for recalled directors are two separate questions. See Habitat II Condominium, Inc. v. Unit Owners Voting for Recall, Arb. Case No , Final Order (April 29, 1997) ( [T]he fact that 3 out of 10 replacement candidates were ineligible does not necessarily mean that the respondents failed to substantially comply with the recall rules or that the entire recall process should be thrown out. ). Additionally, this issue is without merit as the remaining two replacement candidates each received at least one vote, thus if Sharon Baum and Silvio Restropo have withdrawn their consent to be replacement 30, 1993). 3 The recall ballots list Gladys Alban, Silvio Restropo, Sharon Baum, and Quinones Nelida as replacement candidates or write-in candidates. 5

6 candidates, Gladys Alban and Quinones Nelida having received the most votes are elected as replacement candidates. The petitioner s remaining challenges to the recall are without legal merit. As the respondent served forty (40) valid ballots upon the board and no legal basis has been presented for failing to certify the recall, the recall of Sandra Jones and Shirley Karen is certified. Based on the foregoing, it is hereby ORDERED that: 1. The recall of board members Sandra Jones and Shirley Kaben is CERTIFIED, and is effective immediately. Sandra Jones and Shirley Kaben shall immediately step down as directors and shall turn over all association records in their possession to the new board members within five full business days. 2. Gladys Alban and Quinones Nelida, having received the most votes as replacement candidates and having indicated their willingness to serve on the board, shall take positions as board members effective with the mailing of this final order. The replacement directors selected shall fill the vacancy for the unexpired term of the seat being filled. No motion for rehearing or reconsideration will be considered. DONE AND ORDERED this 4 th day of November 2003, at Tallahassee, Leon County, Florida. Richard M. Coln, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street 6

7 Tallahassee, Florida 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 to the following persons on this 4 th day of November 2003: Jay R. Beskin, Esq S.W. 6 th Court Plantation, FL (954) Fax Attorney for petitioner Juan E. Rodriguez, Esq South Dadeland Boulevard Suite 509 Miami, FL (305) Fax Attorney for respondent Richard M. Coln, Arbitrator 7