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 CYPRESS HOLLOW HOMEOWNERS ASSOCIATION, INC., Petitioner, v. Case No HOMEOWNERS VOTING FOR RECALL, Respondent. / SUMMARY FINAL ORDER Statement of the Issue The issue in this case is whether Cypress Hollow Homeowners Association, Inc. (the Association) properly rejected a recall by written agreement of three directors of its five-member board. Relevant Procedural History On September 8, 2015, the Association filed a recall arbitration petition. On September 14, 2015, an Order to Show Cause was entered, noting deficiencies in the petition that would require its dismissal if not corrected. On September 14, 2015, the Association filed an amended petition. On September 22, 2015, a Second Order to Show Cause was entered, noting deficiencies in the petition that would require its dismissal if not corrected. On September 30, 2015, the Association filed a second amended petition. An Order Requiring Answer was entered on October 21, 2015, and an answer to the petition was filed on November 25, A Summary Final Order is appropriate in this case pursuant to Rule 61B , Florida Administrative Code. Page 1 of 9

2 Findings of Fact 1. The Association is the legal entity responsible for the operation of Cypress Hollow, a community located in Broward County, Florida. 2. The total number of voting interests in the Association is 144; therefore 73 votes in favor of recall are necessary to recall a board member. 3. The total number of seats on the board is The date of the next regularly-scheduled election for the seat of the board members who are subject to recall is on or about April 21, On Friday, August 21, 2015, the Association received a written recall agreement seeking to recall three board members: Brian Walters, Shelita Knighton, and Willie King. Three replacement directors were listed on the recall agreement: Ben Ward, Robin Turner, and Francisco Isaza. The written recall agreement utilized the form ballots available on the Division s website. 6. The recall agreement contained 86 votes to recall Brian Walters and 0 to retain him; 84 votes to recall Shelita Knighton and 2 to retain her; and 81 votes to recall Willie King 1 and 4 to retain him. 7. The recall agreement contained the following votes for replacement directors: 86 votes for Ben Ward; 81 votes for Robin Turner, and 84 votes for Francisco Isaza. 8. The homeowner representative designated on the recall agreement is Camille Briley. On October 10, 2015, Respondent filed a notice changing the homeowner representative to Laurie E. Rucoba. 1 The recall petition states that there were 29 votes to recall Willie King, but the arbitrator believes this to be a typographical error, since both the minutes of the board meeting to consider the recall and the written recall agreement itself state that there were 81 votes to recall Willie King. Page 2 of 9

3 9. The written recall agreement was served on the Association s board of directors on August 21, On August 28, 2015, the Association s board of directors held a meeting to consider the recall. 11. According to the minutes of the recall meeting, 15 ballots were rejected by the Association, not all of which contained votes to recall all 3 board members. After subtracting the votes reflected on these 15 ballots, the total number of votes for recall was: 71 votes to recall Brian Walters; 70 votes to recall Shelita Knighton; and 68 votes to recall Willie King. 12. The reasons the board determined to reject 15 recall ballots and not certify the recall were: (1) 6 ballots were rejected as the signatures appeared to be forged; (2) 3 ballots were rejected as the ballots were not signed by all owners of the properties; (3) 6 ballots were rejected in light of the signed statements of fraudulent inducement received by the Board. A list of the specific ballots rejected for the above reasons was appended to the minutes. 13. The 6 ballots of the following owners were rejected on the basis that the owners claimed to have been fraudulently induced to sign the recall ballots by being lied to about material facts : GREGORY WALKER (6441 NW 54 th Ct.)(voted to recall Walters & Knighton and to retain King); JAMES BOOKER AND YOLANDA JONES/BOOKER (6440 NW 54 th Ct.)(voted to recall all 3 directors); KHOA NGUYEN (5205 NW 65 th Ave.)(voted to recall all 3 directors); GLORIA and ISAIAH FRANCIS (5117 NW 65 th Ave.)(voted to recall all 3 directors); Page 3 of 9

4 AARON and STEPHANIE WHITFIELD (6420 NW 54 th Ct.)(voted to recall Walters and to retain Knighton and King); BERRY and SHANTE LAMY (5408 NW 64 th Ter.)(voted to recall all 3 directors) All of these owners signed statements saying that they had been fraudulently induced to vote in favor of the recall. All of the statements were dated after August 21, 2015, the day the recall agreement was served on the board. 14. The ballot of OMESH CHOWDHURY (5112 NW 64 th Ter.) was rejected because the signature on the ballot looks forged as it does not match the signature on other document (mortgage). This ballot contained a vote to recall all 3 directors. 15. Respondent submitted, with the answer to the petition, the affidavit of Omesh Chowdhury affirming that the signature on the recall ballot was his and was not forged. 16. The ballot of DEBRA SNOW (6505 NW 54 th Ter.) was rejected because the signature on the ballot looks forged as it does not match the signature on other document (mortgage). This ballot contained a vote to recall all 3 directors. 17. Respondent submitted, with the answer to the petition, the affidavit of Debra Snow affirming that the signature on the recall ballot was hers and was not forged. 18. The ballot of AZARIAH NOTICE (5121 NW 64 th Ter.) was rejected because the signature on the ballot looks forged as it does not match the signature on other document (mortgage). This ballot contained a vote to recall all 3 directors. Page 4 of 9

5 19. Respondent submitted, with the answer to the petition, the affidavit of Azariah Notice affirming that the signature on the recall ballot was his and was not forged. Conclusions of Law The arbitrator has jurisdiction of the parties and the subject matter of this dispute pursuant to Sections and , Florida Statutes. This Summary Final Order is entered after consideration of the entire record, and pursuant to Rule 61B , Florida Administrative Code. Late-Rescinded Ballots / Misinformed Voters With regard to the six owners who attempted to rescind their votes, claiming that they had been fraudulently induced to vote for the recall, section (10)(b)4., Florida Statutes, states: Any rescission or revocation of a member s written recall ballot or agreement must be in writing and, in order to be effective, must be delivered to the association before the association is served with the written recall agreements or ballots. Section (10)(a)1., Florida Statutes, allows board members to be recalled and removed from office with or without cause by a majority of the voting interests. Furthermore, Rule 61B (3)(h), Florida Administrative Code, provides, "The fact that a homeowner may have received misinformation is not a valid basis for rejecting a recall agreement and shall not be considered by the arbitrator." Numerous arbitration cases have held that the dissemination of misinformation is not a valid basis for rejecting recall ballots. See, e.g., Tahiti Beach Homeowners Ass'n, Inc. v. Owners Voting for Recall, Arb. Case No , Summary Final Order Certifying Recall (Sept. 17, 2013); Kasalta Villas Condo. Ass'n, Inc. v. Homeowners Voting for Recall, Page 5 of 9

6 Arb. Case No , Final Order Certifying Recall (Oct. 12, 2009); Las Colinas Village Neighborhood Ass'n, Inc. v. Homeowners Voting for Recall, Arb. Case No , Summary Final Order (Oct. 15, 2009). In the instant case, the reasons why six owners decided to rescind their recall votes are as irrelevant as the reasons why they, at first, decided to vote in favor of the recall. 2 Renaming the rescissions fraudulently obtained votes does not change the fact that the rescissions were delivered too late to be effective. The arbitrator concludes that the board wrongly rejected the ballots of Gregory Walker (6441 NW 54 th Ct.); James Booker and Yolanda Jones/Booker (6440 NW 54 th Ct.); Khoa Nguyen (5205 NW 65 th Ave.); Gloria and Isaiah Francis (5117 NW 65 th Ave.); Aaron and Stephanie Whitfield (6420 NW 54 th Ct.); and Berry and Shante Lamy (5408 NW 64 th Ter.). Therefore, 6 votes for recall of Brian Walters, 5 votes for recall of Shelita Knighton, and 4 votes for recall of Willie King should be added back into the totals. Signatures Do Not Match Exemplars Rejection of a ballot because the signature does not match a single exemplar on file with the Association is one of the weakest allegations presented in recall cases. As a practical matter people use different signatures for different types of documents or may be in an awkward position while signing. Advanced age or ill health will change signatures over time. Merritt Island Cooperative Housing Ass n, Inc. v. Unit Owners 2 The Board of Directors of Boca Cove Condominium Association, Inc. v. Catherine Martin, et al., Arb. Case No , Summary Final Order Certifying the Recall (November 30, 1993)(The arbitrator therein found that none of the board s stated reasons for its refusal to certify a recall agreement had any merit, stating: A board cannot refuse to certify a recall agreement signed by the majority of the unit owners on the grounds that the unit owners were told untruths. Indeed, if that were sufficient legal grounds to invalidate an election, we would have had few, if any, valid elections in this country. ) Page 6 of 9

7 Voting For Recall, Arb. Case No , Summary Final Order (August 17, 2009). An alleged failure to match a signature on file will not be found to create a disputed issue of fact without supporting affidavits from the individual unit owners disclaiming a signature or expert testimony from a qualified document examiner who has had the opportunity to inspect known original signatures. See Lake and Tennis Villas Condominium Ass'n., Inc. v. Unit Owners Voting for Recall, Arb. Case No , Recall Final Order (September 4, 2008). 3 In the instant case, the Association filed no supporting affidavits from unit owners disclaiming their signatures and offered no opinion of an expert document examiner in support of its claim that the signatures looked forged. Although it was not Respondent s burden to prove that the signatures were authentic, Respondent filed affidavits of the affected owners attesting that the signatures on their recall ballots were authentic and were not forged. The arbitrator concludes that the board wrongly rejected the ballots of Omesh Chowdhury, Debra Snow, and Azariah Notice. Therefore, 3 votes for the recall of Brian Walters, Shelita Knighton, and Willie King should be added back to the totals. After adding the votes from the above wrongly-rejected ballots back into the totals, there are more than 73 votes to recall Brian Walters, Shelita Knighton, and Willie King a sufficient number to recall each of these board members. Since this is dispositive of the matter, it is unnecessary to address the Association s additional 3 Prior arbitration case law has held that, although the rules and case law applicable to condominiums do not control homeowners' associations, they do provide persuasive authority to evaluate the fairness of homeowner association elections. Parker v. East Linden Homeowners Ass'n, Inc., Arb. Case No , Summary Final Order (October 1, 2007). This same reasoning applies in the use of condominium recall cases to evaluate homeowners association recall cases. Page 7 of 9

8 reasons for rejecting ballots. Accordingly, a majority has been attained, and the recall effort will be certified. Based on the foregoing, it is ORDERED: 1. The recall of board members Brian Walters, Shelita Knighton, and Willie King is hereby CERTIFIED and they are REMOVED as directors effective as of the date of the mailing of this Order. 2. Ben Ward, Robin Turner, and Francisco Isaza shall take seats on the board effective immediately, and shall serve for the unexpired terms of the seats they fill. 3. Within five full business days from the effective date of this recall, Brian Walters, Shelita Knighton, and Willie King shall deliver to the board any and all records of the Association in their possession. DONE AND ORDERED this 9 th day of December, 2015, at Tallahassee, Leon County, Florida. Leslie O. Anderson-Adams, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Suite 16 Tallahassee, Florida Telephone (850) Facsimile (850) (The remainder of this page is intentionally left blank. A certificate of service appears on the following page.) Page 8 of 9

9 Certificate of Service I hereby certify that a true and correct copy of the foregoing final order has been sent by U.S. Mail and fax (where available) to the following person on this 9 th day of December, 2015: Sara K. Noonan, Esq. TUCKER & TIGHE, P.A. 800 E. Broward Blvd., Ste. 70 Fort Lauderdale, FL Fax: (954) Attorney for Petitioner Laurie E. Rucoba 5221 NW 65 th Ave. Lauderhill, FL Unit Owner Representative Leslie O. Anderson-Adams, Arbitrator Page 9 of 9