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 LOS SUENOS CONDOMINIUM ASSOCIATION, INC., Petitioner, v. Case No UNIT OWNERS VOTING FOR RECALL, Respondent. / FINAL ORDER OF DISMISSAL Statement of the Issue The issue presented in this case is whether the board of directors (board) of Los Suenos Condominium Association, Inc. (the Association) failed to properly make a determination not to certify the recall by written agreement of all members of the 3 member board. Relevant Procedural History On April 10, 2014, Petitioner, Board of Directors of Los Suenos Condominium Association, Inc. (the Association ), filed a Petition for Recall Arbitration naming Owners Voting for Recall as Respondent. On April 16, 2014, Respondent filed a Motion for Order Finding Recall Arbitration Petition Moot and Recall Deemed Effective. Attachments to the Motion included a video recording of the Board meeting held on April 3, 2014, conducted in Spanish, and verified transcriptions of the meeting in both English and Spanish. Because the video recording of the meeting and the transcriptions thereof appeared to indicate that at the April 3, 2014 meeting, the Association s Board of 1

2 Directors did not discuss the recall, did not make any motion(s) to disqualify ballots, did not vote or take any other action on the recall agreement, and adjourned the meeting without having taken any action, in an order dated April 23, 2014, the Association was directed to show cause why the recall agreement should not be deemed effective as a matter of law, as of the end of the day on April 3, On April 28, 2014, a communication containing approximately 60 pages of assorted documents were filed in the case by an unidentified person or persons. On May 5, 2014, an order was entered notifying the parties of the communication from the unidentified person(s) and striking the communication from the record. On May 1, 2014, the Association filed a Consolidated Response to Order to Show Cause and Opposition to Owners Motion to Find Recall Arbitration Moot and Recall Deemed Effective. On May 16, 2014, an Order was entered requiring the Association to state whether it disputed the accuracy of the video recording of the Board meeting held on April 3, 2014, conducted in Spanish, and verified transcriptions of the meeting in both English and Spanish. On May 20, 2014, the Association filed a Response to the Order of May 16, Also on May 20, 2014, an Order was entered denying the Respondent s Motion to Find Recall Arbitration Moot and Recall Deemed Effective, and requiring Respondent to file an Answer. On May 21, 2014, the Association and Receiver Bernardo Tacoronte filed a Motion to Declare Recall Void Based upon Illegal Voting in Violation of a Binding Order of the Circuit Court of Miami-Dade County. On May 29, 3014, an Order was entered requiring Respondent to file a response to the Association s motion. On June 11, 2014, 2

3 Respondents filed an Answer to the petition. On June 16, 2014, Respondent filed a response to the Association s motion. Relevant Factual Allegations 1. The Association is the legal entity responsible for the operation of Los Suenos Condominium. 2. The unit owners voting in favor of the recall are the respondent in this matter. 3. On March 28, 2014, the Association received a written recall agreement. All of the ballots are in the form of the Sample Written Recall Agreement/Ballot available on the website of the Florida Department of Business and Professional Regulation. 4. The board held a duly noticed meeting to address the recall on April 3, 2014, commencing at 7:32 p.m. (ET) and adjourning at 7:42 p.m. Respondent contends that at the meeting, the board did not discuss whether to certify the recall, did not discuss disqualification of ballots or make any motion(s) to disqualify ballots, did not vote or take any other action on the recall agreement, and adjourned the meeting without having taken any action on the recall agreement with which it had been served. Respondent contends that the recall should be certified as a matter of law because the board made no determination not to certify it. A factual dispute exists as to whether the Association made a determination at the meeting not to certify the recall. 5. On April 10, 2014, the Association filed the petition for recall arbitration. 6. The recall agreement sought to recall all members of the three member board of directors: Arelys Lopez, Jesus Toledo, and Guillermo Olivares. The replacement candidates are Maria Porras, Leonardo Valentin Gonzalez, and Jose M. Guerrero. 3

4 7. The total number of voting interests in the Association is 396; therefore a minimum of 199 votes in favor of recall is necessary to recall a member of the board of directors. 8. The recall ballots show there were 244 votes to recall Arelys Lopez, Jesus Toledo, and Guillermo Olivares. 9. The Association contends that 84 of the 244 votes should be rejected on the basis that the votes were cast by individual owners of units which were subject to blanket receivership pursuant to two orders of the Circuit Court in and for Miami-Dade County, Case No CA 27, dated April 21, 2011, and December 19, 2013, respectively. The Order of April 21, 2014, states, inter alia, that: the Receiver was appointed for all units within Los Suenos which are occupied by delinquent unit owners (those who are past due on their payments to the association), the Receiver was granted the power to vote on behalf of the units subject to Receivership, the Receivership would terminate as to each delinquent unit when the unit was brought current in its payment to the Association of all maintenance fees owed and the related costs of collection, the Receivership would be continuous and the Receiver shall serve until further Order of this Court, and there shall be no interference with the Receiver. The Order of December 19, 2013, appoints a replacement Receiver. 10. Some of the votes the Association contends should be rejected because they were cast by owners of units which were subject to Receivership owed substantial sums of several thousand dollars to the Association. However, some owed as little as $0.06 (six cents), $0.36 (thirty-six cents) and $0.98 (ninety-eight cents) to the Association. 4

5 11. An affidavit of Bernardo Tacoronte, the court appointed receiver, dated April 9, 2014, was filed with the petition and with the Association s and Receiver s Motion to Declare Recall Void Based Upon Illegal Voting In Violation of a Binding Order of the Circuit Court of Miami-Dade County. The affidavit states, in pertinent part: Many units under the receivership program voted improperly and/or were not authorized to vote. The affidavit does not specify which units, or how many. 12. Respondent denies the Association s claim that 84 units are subject to receivership and that the voting rights of the owners of these units were suspended. 13. Without the 84 votes for recall that the Association contends should be rejected because they were cast by owners of units subject to the blanket Receivership, there would be an insufficient number of votes to effectuate a recall. Conclusions of Law The subject matter of the dispute falls within the jurisdiction of the Division, pursuant to Sections (2)(j) and , Florida Statutes. If it were proven that the Board took no action at the meeting on April 3, 2014 to address the recall, under normal circumstances, the recall would be certified as a matter of law if the ballots were facially valid and sufficient in number to effectuate a recall. The consequences of an un-held, or untimely held meeting to determine whether to certify the recall are set forth in Section (2)(j) 4., Florida Statutes. However, the arbitrator cannot certify the recall if the written recall is fatally defective on its face. See 5050 Condominium Association, Inc. v. Unit Owners Voting for Recall, Arb. Case No , Summary Final Order (June 10, 2009). The recall ballots filed in this case are substantially in the form of the sample recall ballot 5

6 available from the Division, and that form complies with the provisions of Rule 61B , Florida Administrative Code. Normally, the arbitrator would look to the Association s governing documents to establish the total number of voting interests within the condominium and determine whether there are a sufficient number of votes to effectuate the recall. However, in this case the arbitrator is unable to determine the number of voting interests within the condominium solely from the governing documents because the Association claims that 84 votes were cast by owners of units that were subject to blanket receivership pursuant to an order of the Circuit Court in and for Miami-Dade County. The affidavit of the court appointed Receiver neither confirms nor refutes the Association s claim that 84 units were subject to receivership, and the respondent disputes the claim. In order to determine whether the 84 votes should be counted, it is necessary to go outside the four corners of the petition to the order of a superior tribunal. Jurisdiction over the issue of whether the 84 votes that the Association claims are invalid are properly under Receivership pursuant to the orders of the Circuit Court in and for Miami-Dade County, Case No CA 27, dated April 21, 2011, and December 19, 2013, lies with the Circuit Court that issued the Orders. Where a matter is pending in circuit court, the arbitrator is without the authority to resolve the dispute, absent a showing that the circuit court has abated or dismissed the action. See Gardens in the Grove 1 Condo. Ass n, Inc. v. Shorr, Arb. Case No , Final Order of Dismissal (July 28, 2011); Indian Lake Village II Condo. Ass n, Inc. v. Conklin, Arb. Case No , Order on Request for Expedited Determination of Jurisdiction (March 30, 2006); See also Liebgold v. Ainslie at Century Village Condo. 6

7 Ass n, Arb. Case No, , Order of Dismissal (July 8, 1992)(where matter was pending in circuit court, the arbitrator did not have the authority to resolve dispute). Furthermore, the Order of the Circuit Court in and for Miami-Dade County, Case No CA 27, dated April 21, 2011, states that there shall be no interference with the Receiver. If the 84 units in question were properly subject to Receivership, a determination by the arbitrator on the validity of recall votes cast by the owners of any these units could be construed as interference with the Receiver in violation of the Court Order. For the reasons discussed above, the arbitrator cannot make a determination on whether the recall should be certified because the issue of the validity of 84 of the votes for recall is outside the arbitrator s jurisdiction. Therefore, it is unnecessary to resolve the disputed factual issue of whether the Board actually made a determination not to certify the recall on April 3, It is appropriate that this case be dismissed. Based on the foregoing, it is ORDERED: The petition is DISMISSED and arbitration case number is hereby closed. The parties may seek relief in a court of appropriate jurisdiction. DONE AND ORDERED this 26 th day of June, 2014, at Tallahassee, Leon County, Florida. Leslie O. Anderson-Adams, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida Telephone (850) Facsimile (850)

8 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing final order has been sent by facsimile and by U.S. mail, postage prepaid, to the following persons this 26 th day of June, 2014: Carl F. Schoeppl, Esq. and Terry A. C. Gray, Esq. SCHOEPPL & BURKE, P.A North Federal Highway Boca Raton, FL Fax: (561) Attorneys for Petitioner Hector Martinez, Esq. FM LAW GROUP, P.A Palmetto Frontage Rd. Suite 390 Miami Lakes, FL Fax: (305) Attorneys for Petitioner Carlos F. Martin, Esq. BECKER & POLIAKOFF, P.A. 121 Alhambra Plaza, Tenth Floor Coral Gables, FL Fax: (305) Attorneys for Respondents Leslie O. Anderson-Adams, Arbitrator 8