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, Inc., Petitioner, v. Case No Unit Owners Voting for Recall, Respondent. / ORDER GRANTING MOTION TO WITHDRAW AND LIFTING ABATEMENT AND SUMMARY FINAL ORDER Withdrawal of Counsel On February 8, 2017, Brian T. Meanley, Esq., and Straley & Otto, P.A, filed a Motion to Withdraw as counsel for Petitioner stating, in pertinent part, 1. Differences have arisen between the Petitioner and its counsel which make it impossible for counsel to effectively represent Defendant [sic] in this matter. Pursuant to Rule 61B (2), Florida Administrative Code, Brian T. Meanley, Esq., and Straley & Otto, P.A., are released as counsel for Petitioner in this proceeding. Lifting of Abatement Section 3.(a) of the By-laws of, Inc. (the Association) establishes when the Association s Annual Meeting and Election (AM&E) is to be held: a. The Annual Members meeting shall be held at the office of the ASSOCIATION at 7:00 o clock P.M., Eastern Standard Time, on the first Monday in February of each year for the purpose of electing Directors.... Under the terms of this provision, the AM&E should have been held on February 6, Page 1 of 9

2 2017. By Order entered on January 13, 2017, the Association was required to file a copy of the first and the second notice for the February 6, 2017 AM&E, the affidavit of the person affirming mailing or the United States Postal Service certificate of mailing of each notice as required by Section (2)(d)3., Florida Statutes, and a copy of all candidate information sheets timely received for the election. Counsel did not file any of the required documents. At the January 27, 2017 case management conference (CMC) counsel for the Association represented that counsel did not have a signed copy of the First Notice, but that it had been sent. At the CMC, counsel further represented that the election could and would be held no later than February 27, The January 30, 2017 Order Following Case Management Conference provided as follows based upon the representations of the parties at the January 27, 2017 CMC: 1. No later than February 27, 2017, the Association shall hold its Annual Meeting and Election (AM&E). 2. No later than February 9, 2017, the Association shall file: a. The signed first notice of election and proof of mailing of the first notice of election as required by Section (2)(d)3., Florida Statutes. b. All notices of intent to be a candidate and candidate information sheets received by the Association as of the February 9, 2017 date of filing. 3. Immediately upon mailing the second notice of election, the Association shall file a copy of such notice and all enclosures with it and proof of mailing such second notice of election as required by Section (2)(d)3., Florida Statutes. 4. Because it appears the Association has not been enforcing the voting certificate provision found at Section 2.(c) of the Association s Bylaws, the Association, consistent with Chattel Shipping and Investment, Inc. v. Brickell Place Condo. Ass n, Inc., 481 So. 2d 29 (Fla. 3rd DCA 1985), rehearing denied (Jan. 24, 1986), shall, before or with the second notice of election and in a separate document, inform each member of the Association of the Association s renewed intent to enforce such provision. 5. Because the parties represented at the CMC that an election monitor was scheduled to attend the February 6, 2017 AM&E pursuant to Section , Florida Statutes, the parties shall ensure that an Page 2 of 9

3 election monitor is present for the rescheduled election. 6. Based upon the foregoing, the instant recall case is ABATED pending the AM&E, however should the Association fail to comply timely with any of the requirements set forth in this Order, the abatement of this case shall be lifted without further notice and the case immediately shall proceed to conclusion. 7. Within 10 days after the AM&E, the Association shall file the minutes of the AM&E. The Association has failed to comply with the requirement that it file, by February 9, 2017, the signed first notice of election and proof of mailing of the first notice of election as required by Section (2)(d)3., Florida Statutes, and all notices of intent to be a candidate and candidate information sheets received by the Association as of the February 9, 2017 date of filing. According, the abatement of this case is lifted. Summary Final Order Statement of the Issue The issue in this case is whether the board of directors (board) of Golden View Condominium Association, Inc. (the Association) properly did not certify the recall by written agreement of all five members of the five-member board. Procedural History On November 29, 2016, the Association filed a petition for recall arbitration with the Division of Florida Condominiums, Timeshares and Mobile Homes. On December 14, 2016, Respondent filed an Answer. On December 16, 2016, a Notice of Communication and Order Requiring Filing was entered; the Order required each party to make certain filings by January 2, On December 28, 2016, the Association filed its request for an extension of time to make the required filing; an extension of time was granted by Order entered on Page 3 of 9

4 December 30, On January 6, 2017, the Association responded to the Order Requiring Filing. On January 13, 2017, an Order Requiring Filing and Setting Case Management Conference was entered; the Order required the Association to make additional filings. The case management conference (CMC) was held on January 27, 2017, and an Order Following Case Management Conference was entered on January 30, On February 8, 2017, counsel for the Association filed a Motion to Withdraw as Counsel. On February 10, February 13, and February 14, 2017, Unit Owner Representative Rosa Maria Diaz filed correspondence. On February 16, 2017, Unit Owner Representative Melvin Barrett filed correspondence. Findings of Fact 1. The Association is the legal entity responsible for the operation of Golden View Condominium Apartments. 2. The unit owners voting in favor of the recall are the respondent in this matter. 3. The total number of voting interests in the Association is 96, therefore a minimum of 49 valid votes in favor of recall is necessary to recall a member of the board of directors. 4. On November 14, 2016, the Association received a written recall agreement. All of the ballots were in the form of the Sample Written Recall Agreement/Ballot available on the website of the Florida Department of Business and Professional Regulation. The recall agreement sought to recall all five members of the five-member board as follows: Sammy Reyes, Michael Hoffman, Michael Lewkowitz, Michael Erber Page 4 of 9

5 and Tania Tener The petition reflects 60 ballots were received by the Association. 6. On November 19, 2016, the Association s board held a meeting to address the recall. 7. The minutes of the board meeting held to address the recall reflect there was a duplicate ballot for Unit 108W. Only one of the duplicate ballots was filed with the petition, thus 59 ballots were filed with the petition. 8. The minutes of the board meeting held to address the recall reflect the board accepted ballots containing 36 votes to recall Sammy Reyes. 9. There were six or fewer votes to recall Michael Lewkowitz, Michael Erber and Tania Tener, regardless of the Association s rejection of any of ballots voting to recall these three board members. Consequently, there are less the required 49 votes necessary to recall any of these three board members. 10. Of the 59 recall ballots filed with the petition, there was a total of 49 votes to recall Michael Hoffman. However, Respondent, in its Answer, accepted the Association s rejection of three recall ballots containing votes to recall Michael Hoffman: 205W, 305E and 603E. Consequently, there are less the required 49 votes necessary to recall Michael Hoffman. 11. The minutes of the board meeting to address the recall show the board rejected the following recall ballots for the reason indicated: 1 Some of the ballots did not include all five names for recall. Page 5 of 9

6 Unit Reason for Rejecting 302E Voting certificate listing two people as designees 402E, 403E, 408E Voting certificate not signed by all owners 502E, 203W, Not having voting certificate on file 601W, 602W, 605W, 607W, 608W 501E, 203E Not signed by voting certificate holder 303W Voting certificate signed by previous owner All 14 of the recall ballots listed in the table above voted to recall Sammy Reyes. Conclusions of Law The undersigned has jurisdiction of the parties and the subject matter of this dispute pursuant to Sections (2)(j) and , Florida Statutes. A Summary Final Order is appropriate in this case pursuant to Rule 61B , Florida Administrative Code, because no disputed issues of material fact exist. The December 16, 2016 Notice of Communication and Order Requiring Filing required the Association to file proof from the Association s official voting records demonstrating that specific votes were rejected on the basis of the failure to comply with the voting certificate requirement in the governing documents at the three most recently concluded elections or unit owner votes in the immediately preceding three years, including all of the following if available: the official minutes of the election, tally sheets, and discarded ballots indicating on them the reason for their rejection. The Association filed a response on January 6, 2017, stating, in part: [T]he attached sign-in/spreadsheet from a member meeting held on December 9, 2014 (for the purpose of an owner/member vote to enter into a five (5) year contract with Verizon Wireless to erect a transmitting tower on the Association property)... which sign-in/spreadsheet tends to demonstrate that the Association has previously enforced the voting Page 6 of 9

7 certificate requirement in its governing documents by indicating the Designated Voter for each unit listed on the sign- in/spreadsheet. After a thorough review of the Association s records by two members of its Board of Directors and undersigned counsel, the Association was unable to locate any other documents in its official records demonstrating that specific votes were rejected on the basis of the failure to comply with the voting certificate requirement, as required by the Arbitrator s December 16, 2016 Order Requiring Filing. The undersigned s review of the spreadsheet finds that for Unit E501 under the heading Name in the table is typewritten Giovanni, Yolande, Stefano Maccarrone & Luigi & Sergio Fratta, under the heading Designated Voter is typewritten Stefano Maccarrone and under the heading Signature of Designated Voter is handwritten G Maccarrone. Because someone other than the designated voter for Unit E501 signed as such, the Association has not shown that it has enforced its voting certificate requirement in past elections or unit owner votes. It will not be permitted to begin doing so in the instant recall. See Fla. Admin Code R. 61B (3)(b)6.; Cottages at Stonybrook Condo. Ass n, Inc. v. Unit Owners Voting for Recall, Arb. Case No , Summary Final Order (May 22, 2013). When the 36 votes to recall Sammy Reyes the board accepted are added to the 14 votes to recall Sammy Reyes the board improperly rejected, there are 50 valid votes to recall Sammy Reyes which is more than the 49 necessary to recall him. There is an insufficient number of votes to recall any of the other board members subject to recall. Accordingly, it is ORDERED: 1. The recall of board member Sammy Reyes is hereby CERTIFIED, and he is REMOVED as a director effective as of the date of the mailing of this order. Within five Page 7 of 9

8 (5) full business days after the date of the mailing of this order, Sammy Reyes shall deliver to the board of directors any and all records of the Association in his possession. 2. The board s decision not to certify the recall of the remaining board members is AFFIRMED. 3. As less than a majority of the five-member board has been recalled, the board may fill the vacancy by the affirmative vote of a majority of the remaining board members as provided in Section (2)(j)5., Florida Statutes, and Rule 61B (3)(b)3., Florida Administrative Code. The recalled board member may not be appointed. Fla. Admin. Code R. 61B (3)(a)2. DONE AND ORDERED this 16 th day of February, 2017, at Tallahassee, Leon County, Florida. Glenn Lang, Senior Attorney Department of Business and Professional Regulation Arbitration Section 2601 Blair Stone Road Tallahassee, Florida Phone: (850) ; FAX: (850) CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing final order has been sent by facsimile, where available, by , where available, and by U.S. mail, postage prepaid, to the following persons on this 16 th day of February, 2017: Sammy Reyes 3199 South Ocean Drive, #102 Tania Tener Rosa Maria Diaz 3199 South Ocean Drive, #503E Facsimile: rosmaridg@aol.com Unit Owners Representative Page 8 of 9

9 3199 South Ocean Drive #406 Michael Erber 3199 South Ocean Drive #506 Melvin Barrett 3181 South Ocean Dr. #307W Unit Owners Representative Facsimile: Michael Lewkowitz 3199 South Ocean Drive #203 Michael Hoffman 3181 South Ocean Drive #401 Brian T. Meanley, Esq. Straley & Otto, P.A Stirling Road, Suite C-207 Fort Lauderdale, FL Facsimile: Glenn Lang, Senior Attorney Page 9 of 9