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

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1 STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION - HOA Coconut Key Homeowners Association, Inc., Petitioner, v. Case No Homeowners Voting For Recall, Respondent. / SUMMARY FINAL ORDER Statement of Issue The issue presented for determination is whether the written recall agreement served on the Association s board of directors on January 19, 2009, should have been certified. Procedural History On January 30, 2009, Coconut Key Homeowners Association, Inc. (the Association) filed a petition for recall arbitration. On February 9, 2009, an Order Allowing Answer was entered, directed to the homeowners representative designated in the written agreement. On February 24, 2009, an Answer to the Petition was filed. On February 26, 2009, Petitioner filed an affidavit of a director with respect to the use of voting certificates. This Summary Final Order is based upon the pleadings in the file. 1

2 Findings of Fact 1. The total number of voting interests in the association is To recall a board member, 101 valid recall ballots are needed. 3. Ballots representing a total of 108 parcels were served on the board on January 17, The Board of Directors of the Association held a meeting on January 23, 2009, at which it did not certify the recall. 5. The governing documents for the Association provide for 7 directors. 6. The Written Recall Agreement Ballots, utilizing the standard form adopted by the Division, sought the recall of directors Timothy Eakins, Barbara L. Killen, Petros D. Klaver, Scott J. McGlynn and Desiree Cahill, with 108 votes submitted to recall each. 7. The minutes of a board meeting on January 20, 2009, reflect that Timothy Eakins submitted his resignation at that time. 8. The minutes of the board meeting of January 23, 2009, document a seven minute meeting at which the board voted not to certify the recall based upon a written analysis which was read to the assembled meeting. That analysis is attached as Exhibit A to the minutes of the meeting, The minutes and exhibit state the following reasons for rejecting the recall: 1. The recall ballots were not properly served upon the president of the board because it was not served by a process server or by certified mail; 2. a. Unit the unit had been subject to foreclosure before service of the recall; b. Unit 102 signed by only one of two persons named on 2

3 c. Unit 203 signed by only one of two persons named on d. Unit 4759 signed by only one of two persons named on e. Unit 4801 signed by only one of two persons named on f. Unit 4811 signed by only one of two persons named on g. Unit 4931 signature on recall ballot is not the name of person on the title h. Unit 4753 Signed by Bertrand Reese only. Unit coowned by Bertrand Rees, Caridad Le Bertrand and C. Reese Revocable Living Trust; no voting certificate on file. 9. The Petition for Recall Arbitration listed four additional units for which it is alleged the signature did not belong to a unit owner, or was signed by one of multiple owners without a voting certificate. 10. Respondent filed with the Answer a return of service from a process server describing service of the written recall on Tim Eakins on January 17, The Answer withdrew the ballots for units 203 and It also presented a foreclosure Certificate of Title for Unit 4772, which deeded the unit to Wachovia Bank on December 30, For Unit 102, signed by Sheryl Summerall, the Answer alleges that she is the only owner because the other woman listed on the deed was her mother who is now deceased. 13. The ballot for Unit 4759 was signed by Juan Roman, the husband of Marcelo Castano, the only other person whose name is on the title to the unit. 14. Unit 4811 is owned by a mother and daughter; the ballot for this unit was signed by the daughter only. 3

4 15. The ballot for Unit 4931 was signed with a signature for the owner which is substantially identical to two signatures on a mortgage, filed by Petitioner, executed by the owner, Claudia Arias. 16. Unit 4753 is owned by a revocable living trust for Bertrand Reese and Caridad Reese. Apparently, misreading a one-line entry on the Broward County Appraiser internet site caused the preparer of Exhibit A to create a fictitious person, Caridad Le Bertrand. Mr. Reese, a former board member, had not had his vote challenged for lack of a voting certificate in prior elections. 17. Paragraph 5 of the By-laws of Coconut Key Homeowner s (sic) Association, Inc., provides a requirement for a voting certificate for a unit owned by more than one person or by a corporation. It concludes, [H]owever a spouse shall be entitled to cast the vote for a unit owned by husband and wife in the absence of the other spouse. 18. The affidavit submitted by a director since 2005 with respect to voting certificates avers in its entirety, Both management companies (DCI and DCMS) have provided for our annual meetings to elect new officers a voting certificate and a proxy certificate along with the notice by mail every year. Conclusions of Law The arbitrator has jurisdiction of the parties and the subject matter of this dispute pursuant to Sections (10) and , Florida Statutes. A Summary Final Order is appropriate in this case pursuant to Rule 61B (2), Florida Administrative Code, which provides that at any time after the filing of the petition, if the parties do not dispute important facts in a case, the arbitrator 4

5 shall summarily enter a final order denying the relief requested in the petition if the arbitrator finds that no preliminary basis for relief has been demonstrated in the petition. The service of the recall written agreement on the president of the board was adequate personal service by any person, not a party and over the age of 18, as required by Rule 61B , Florida Administrative Code and Rule 1.410(c), Florida Rules of Civil Procedure. Rule 61B (2)(h), Florida Administrative Code, provides that the arbitrator may not consider any reason for not certifying the recall alleged in the petition for recall arbitration, but absent from the board minutes or attachments thereto. Therefore, review in this case is limited to the eight rejected ballots described in Exhibit A attached to the minutes of the January 23, 2009 meeting. Because the board, at the meeting of January 23, 2009, did not reject 100 ballots, and a total of 101 ballots constitutes a majority of the voting interests of the association, if any of the eight ballots was improperly rejected, the recall must be certified. Voting certificate requirements are allowable devices to avoid confusion from possible conflicting votes from a single unit. They will not be rigidly enforced to interfere with the statutory right to vote of recognized owners of condominium units, unless the association demonstrates good cause to do so. When an association has not consistently enforced provisions requiring voting certificates, failure to comply with technical requirements of such provisions will not be accepted as grounds to reject votes of unit owners of the condominium. El Galeon by the Sea Condominium 5

6 Association, Inc. v. Unit Owners Voting for Recall, Arb. Case No (June 6, 2002); The Caribbean Condominium Management Association, Inc. v. Kennedy, Arb. Case No (October 27, 1993). Both Galeon and Caribbean declared votes for specific units to be valid because the association had no evidence that it had enforced certificate requirements to invalidate votes from those units. In this case, the affidavit submitted by the association merely asserts that voting certificates were prepared by the property managers. The omission of any history of previous rejection of ballots for lack of voting certificates supports Respondent s position that such provisions have not been enforced. 1 In any event, the association by-law makes it clear the voting certificate requirements may not be applied to a unit owned by a husband and wife. Under the by-law, it does not matter how a husband and wife have taken title to their unit whether by entireties, tenants in common, in one name with a life estate to the other, or in trust. Because the ballots for Units 4753 and 4759 were signed by one of the owner spouses, these ballots were improperly rejected. Rejection of ballots because the signature does not match exemplars on file with the Association is one of the weakest allegations presented in recall cases. It will not be found to create a disputed issue of fact without supporting affidavits from the individual unit owners or expert testimony from a qualified document examiner who has had the opportunity to inspect known original signatures. See, Lake and Tennis 1 Respondent filed a form for a Certificate of Appointment of voting Representative allegedly made available by the Association for the first time after service of the subject recall. Because this form would require that both spouses execute a voting certificate for a unit owned solely by husband and wife, it is defective. Upon appropriate challenge, any election utilizing the form would likely be set aside. 6

7 Villas Condominium Ass n., Inc. v. Unit Owners Voting for Recall, Arb. Case No , Recall Final Order (September 4, 2008). When, as in this case, the only exemplars are filed with the Petition, the arbitrator is in as good a position as the board to make an eye-ball approximation. Based upon this standard of review, the board improperly rejected the ballot for Unit The signature on the ballot is substantially the same as the two signatures on the mortgage for the unit owner. In light of the fact that at least three rejected ballots must be added to the total for the recall, it is not necessary to analyze issues of fact that may exist as to other ballots or adequacy of notice for the board meeting of January 23, Based upon the foregoing, it is ORDERED: 1. The recall of board members Barbara Killen, Petros D. Klaver, Scott McGlynn and Desiree Cahill is CERTIFIED. 2. Eileen Barbian, Yolanda P. Dieppa, Rhoda Lynge, Karen Powell and Esther L. Zoblin shall take seats on the board effective immediately. 3. Rule 61B (5)(b), Florida Administrative Code, provides that, when a director resigns after service of a recall, any appointment to fill that director s seat shall be temporary pending the arbitration decision. Accordingly the new director appointed to fill the seat of Mr. Eakins, shall also step down. 4. Within five (5) days of this Order, each of the recalled board members shall hand over all association property and documents in his or her possession to the Association. DONE AND ORDERED this 2nd day of March, 2009, at Tallahassee, Leon 7

8 County, Florida. Bruce A. Campbell, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida Certificate of Service I hereby certify that a copy of the foregoing summary final order has been sent by U.S. Mail to the following persons on this 2nd day of March, 2009, as indicated below: Rachel E. Frydman, Esq Sheridan Street, #527 Hollywood, FL Joseph Garrity, Esq State Road 7 Suite 206 Boca Raton, FL Bruce A. Campbell 8