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 SANDCASTLES CONDOMINIUM MANAGEMENT CORP. Petitioner, v. Case No Unit Owners Voting For Recall, Respondent. / SUMMARY FINAL ORDER Statement of Issue The issue presented for determination by the arbitrator is whether the written recall agreement served on June 18, 2008, Association s board of directors should have been certified. Findings of Fact 1. On July 1, 2008, the Association filed a recall arbitration petition. 2. The unit owners voting in favor of the recall are the Respondent in this matter. 3. There are 118 voting interests in the association. Therefore, a minimum of 60 votes are necessary to recall a member of the Association s board directors. 4. The total number of seats on the board is On June 18, 2008, the Association was served with a written recall agreement seeking the recall of the following members of its board of directors: Fritz 1

2 Bogausch, Jr. (65 votes); Bob McLintock (65 votes); and Douglas Polich (65 votes). Proposed replacement board members listed on the ballot were: David Batiato; Jose Garcia; Doug Thompson; James Van Gilder. 6. The dates of the next regularly scheduled election for seats of the board members being recalled are February 10, 2010, for Mr. Bogausch, and February 28, 2011, for Mr. Polich and Mr. McLintock. 7. On June 25, 2008, the Board held a meeting. The only item on the agenda was the recall, and the Board voted not to certify the recall. The minutes of the board meeting reported the board rejected the following 20 ballots: a. Ballots with more than one signature on the ballot: Units 116, 606, 500, 509, 507, 407, 409, 701, 205, 316, and 104. b. No voting certificate on file: Unit 714. c. Duplicate ballots: Unit 200 (one ballot signed by record owner, Margaret Reilly, and ballot defaced; one ballot signed by Glenn Waldt). d. Ballots missing information: Units 601, 105, 108, 709, On July 1, 2008, the association filed a petition for arbitration which identified the above-listed ballots as invalid and designated an additional ballot from unit 208 signed by John Reynolds as invalid as the voting certificate designating Mr. Reynolds was unsigned. 1 Conclusions of Law The undersigned has jurisdiction over the parties and subject matter of this dispute, pursuant to sections (2)(j)3. and , Florida Statutes. In accordance with section (2)(j)3, Florida Statutes, the unit owners voting in favor of the recall are the 1 This ballot was not identified in the minutes as invalid. 2

3 respondent in this matter. A Summary Final Order is appropriate in this case pursuant to Rule 61B , Florida Administrative Code. Petitioner rejected twenty of the sixty-five ballots submitted. Units 116, 606, 500, 509, 407, 409, 701, 205, 316, and 104 were challenged by the association because the ballots were signed by more than one person. The association asserts that multiple signatures violate Article II, Paragraph B of the Bylaws, which provides, in part, as follows: Except as otherwise provided herein, on all matters upon which the Unit Owners shall be entitled to vote, there shall be only one vote for each unit Additionally, the association alleges violation of Article II, Paragraph E of the Bylaws, which provides, in part, as follows: In the event a Unit is owned by more than one person or by a corporation or other entity, the vote of said unit shall be cast by the person named in a certificate signed by all the unit owners Where a unit is jointly owned by a husband and wife, absent written notice to the secretary of the Association by either of them to the contrary, the husband or wife, as the case may be, shall be treated and regarded as the agent of the other when in attendance at the membership meeting for the purposes of determining a quorum and casting a vote for each unit owned by them. The association rejected the ballot for unit 116. The owners of record are Joseph Wade Longbrake and Cindy H. Longbrake, as husband and wife. The association rejected the ballot asserting that the signatures were of Joe Longbrake and Connie Longbrake. Where a ballot is rejected because the signature is allegedly not the signature of the owner or designated voter, the arbitrator must review the signature evidence relied upon by the board in making its determination on signature grounds. See Coral Towers Condominium Association, Inc. v. Unit Owners Voting for Recall, Arb. 3

4 Case No , Final Order Certifying Recall (May 7, 2001)(ballots were rejected where the signature on the ballots differed from the signatures on the affidavits, and signature samples.) Upon review of the ballot the signatures on the ballot do not differ significantly from the signatures on the voting certificate and appear to be those of Joe Longbrake and Cindy Longbreak. Additionally, Ms. Longbreak s signature clearly indicates the name Cindy, not Connie. The association rejected the ballots for units 116, 606, 500, 509, 407, 409, 701, 205, 316, and 104 for having more than one signature on the ballot. The ballot for unit 116 was additionally rejected as it contained the signatures of both owners, the designated voter, Joe Longbrake, and the signature of Cindy Longbrake. The ballot for unit 606 contained the signatures of both owners, the designated voter, Richard Hand, and the signature of Theresa Hand. The ballot for unit 500 contained the signatures of both owners, the designated voter, Doug Thompson, and the signature of Patricia Turner. The ballot for unit 407 contained the signatures of both owners, the designated voter, Timothy Randolph, and the signature of Thomas Randolph. The ballot for unit 409 contained the signatures of both owners, the designated voter, Donald Pretsch, and the signature of Shirley Pretsch. The ballot for unit 701 contained the signature of both owners, the designated voter, David Robinson, and the signature of Patti Robinson. The ballot for unit 205 contained the signatures of both owners, the designated voter, Alex McDugald, and the signature of Theresa McDugald. The ballots for unit 316 and 104 contained the signatures of both owners, the designated voter, Davina Dodge, and the signature of Brian Dodge. 4

5 Previous arbitration cases have held that a ballot will not be rejected because it contains additional signatures beyond those that are required. See 333 By the Sea Condominium Association, Inc. v. Unit Owners Seeking Recall, Arb. Case No , Summary Final Order Denying Relief and Certifying the Recall (May 15, 1998)(To discount the votes where all the owners of record have signed would lead to an absurd result and could not have been contemplated by either the legislature or the drafters of the condominium documents). Accordingly, the association improperly rejected ballots for units 116, 606, 500, 509, 407, 409, 701, 205, 316, and 104. There were two ballots submitted for unit 200. Margaret Reilly, the unit owner, submitted a ballot dated June 5, Glenn Waldt, a non-owner, submitted a ballot dated June 16, The association properly rejected the recall agreement signed by the non-owner, Glenn Waldt. However, where an invalid ballot is submitted on behalf of a unit and ultimately properly rejected by the association, to reject the valid, timely and otherwise valid ballot by the unit owner would be to unfairly disenfranchise the unit owner. Accordingly, the ballot for Unit 200 submitted by Margaret Reilly was improperly rejected by the association. The ballots for units 601, 105, 108, 709 and 202 were rejected for containing missing information or formats different from the DBPR approved ballots in that each of the ballots lack the small box under the Recall and Retain columns or next to the names of the replacement candidates. Rule 61B (1)(b), Florida Administrative Code, in pertinent part, simply requires that the ballot [p]rovide spaces by the name of each board member sought to be recalled. While the DBPR Sample Written Recall Agreement/Ballot contains empty boxes to fill in or check or mark with an x there is 5

6 no requirement that the ballots be exact reproductions of the sample agreement/ballot. Specifically, rule 61B (2), Florida Administrative Code, states, [s]ubstantial compliance with the provisions of subsection (1) of this rule shall be required for an effective recall of a board member or members. The failure to include a box or bubble is a minor procedural inconsistency and will not prevent the ballot from substantially complying with the provisions contained in rule 61B (1), Florida Administrative Code, as long as the voter s intention to recall or indicate a replacement candidate can be clearly ascertained. See Stonebridge Gardens Section Three Condo. Assoc. Ind, v. Unit Owners Voting for Recall, Arb. Case No , Summary Final Order (April 17, 2002)(Even though written recall agreements failed to contain a space for write-in votes, this defect standing alone does not constitute a failure to substantially comply with Rule 61B (1), Florida Administrative Code); see also, Bal Harbour Chateaux Condo. Assn., Inc. v. Unit Owners Voting for Recall, Arb. Case No , Summary Final Order (June 11, 2004)(The failure to include a date on a written recall ballot is merely a minor procedural inconsistency and does not prevent the ballot from substantially complying with the provisions contained in Rule 61B , F.A.C.). In the case at hand, the vote by each of the unit owners is clear and unambiguous. Accordingly, the association improperly rejected ballots 601, 105, 108, 709 and 202. Based on the foregoing, the board improperly rejected the recall. Given the arbitrator s finding as to the ballots with additional signatures, ballot of owner when a non-owner has submitted a ballot, and ballots with missing information, it is unnecessary to consider whether the board properly rejected the remainder of the ballots. 6

7 The recall ballots submitted called for the recall of three board members, Fritz Bogausch, Jr., Bob McLintock, and Douglas Polich. However, the ballots listed four replacement choices: David Batiato, Jose Garcia, Doug Thompson, and James Van Gilder. Adjusting the vote counts to eliminate the properly rejected ballot of the nonowner of unit 200 and adding the improperly rejected ballots results in a vote count as follows: David Batiato (40), Jose Garcia (57), Doug Thompson (51) and James Van Gilder (44). Based on the number of votes the replacement board members are Jose Garcia, Doug Thompson and James Van Gilder. Based upon the foregoing, it is ORDERED: The recall of board members Fritz Bogausch, Jr., Bob McLintock and Douglas Polich is hereby CERTIFIED and they are REMOVED as directors effective as of the date of the mailing of this order. Jose Garcia and Doug Thompson shall serve the unexpired terms of Bob McLintock and Douglas Polich respectively. James Van Gilder shall serve the unexpired term of Fritz Bogaush. Within five full business days from the effective date of this recall, Fritz Bogaush, Jr., Bob McLintock and Douglas Polich shall deliver to the board any and all records of the Association in their possession. DONE AND ORDERED this day of September 2008, at Tallahassee, Leon County, Florida. Tonya S. Chavis, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida

8 Certificate of Service I hereby certify that a true and correct copy of the foregoing final order has been sent by U.S. Mail to the following persons on this day of September 2008: Seth D. Chipman, Esquire 3490 North U.S. Highway 1 Cocoa, Florida David G. Larkin, Esquire Jesse L. Kabaservice, Esquire 1900 S. Hickory Street, Suite A Melbourne, FL Cheryl Moffett 1050 N. Atlantic Avenue #405 Cocoa Beach, Florida Tonya S. Chavis, Arbitrator 8