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

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1 STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION Cortez Villas Condominium 4 Association, Inc., Petitioner, v. Case No Unit Owners Voting For Recall, Respondent. / SUMMARY FINAL ORDER This final order is entered pursuant to Rule 61B , Florida Administrative Code, which requires the arbitrator, at any time after the filing of the petition and where no disputed issues of material fact exist, to enter a final order awarding relief and failing to certify the recall if the arbitrator finds that no meritorious defense exists or if substantial compliance with the requirements of the rules and statutes relating to recall has not been demonstrated, and the petition is otherwise appropriate for relief. FINDINGS OF FACT 1. On May 20, 2004, Cortez Villas Condominium 4 Association, Inc. (association) was served with a document noticing a recall effort. The document consisted of an introductory paragraph, followed by the listing of the board members to be recalled, below which unit owners signed and printed their names and addresses in a signature list format. 1

2 effort. 2. There are 23 voting interests in the association. 3. On May 24, 2004, a unit owner meeting was held regarding the recall 4. On June 1, 2004, the board of directors for the association held a meeting at which time it decided not to certify the recall. 5. Proceeding under the impression that the recall was a recall by unit owner meeting, the board determined not to certify the recall for the following reasons: a. As the recall of a majority of the board members was sought, the recall petition failed to state that it is for the purpose of not only of recalling directors but also to elect replacement directors in violation of rule 61B (2)(a), Florida Administrative Code. b. The recall petition states that notice of a May 24 th recall meeting was posted, in violation of the requirement of rule 61B (2)(a), Florida Administrative Code which requires that the recall petition must be circulated prior to noticing a recall meeting to recall one or more members of the board. c. Notice of the recall meeting was not mailed or delivered to all the unit owners at least ten days prior to the meeting as required by (2)(j), Florida Statutes and rule 61B (2)(b)6, Florida Administrative Code. d. Notice of the recall meeting was not delivered to the board at least 10 days prior to the recall meeting, as required by rule 61B (2)(b)7, Florida Administrative Code. e. The notice of the recall meeting did not comply with the requirements for content of such notice set forth in rule 61B (2)(b), Florida Administrative Code. f. Minutes of the recall meeting were not delivered to the board, in violation of rule 61B (3)(c)6, Florida Administrative Code. 6. The association filed a petition for recall arbitration on June 7, On June 30, 2004, the respondent filed an answer to the petition. 2

3 8. In its answer, the respondent indicates that the recall was by written agreement pursuant to rule 61B , Florida Administrative Code, and not by unit owner s meeting pursuant to rule 61B , Florida Administrative Code. 9. On July 1, 2004, the association filed a response to the respondents answer, arguing that as a recall by written agreement, the recall fails to comply with rule 61B , Florida Administrative Code. CONCLUSIONS OF LAW Upon review of the petition, answer and documentation filed by the parties, it is understandable why the association was under the impression that the recall was by unit owners meeting. The format of the recall document and its reference to a subsequent unit owners meeting is more akin to a recall by unit owners meeting than a recall by written agreement. Additionally, even though the document indicates that it is a recall in accordance with rule 61B , Florida Administrative Code, the confusing nature of the recall is quite evident from the respondent s answer, which describes the respondent s efforts as a blend of the procedures for a recall by written agreement and recall by unit owners meeting. 1 As such, the arbitrator will address the recall as by unit owners meeting and written agreement. The respondent indicates that a meeting attended by unit owners held on May 24, 2004, was just a get-together discussion session at which no election was held and no real business was handled. In the present case the unit owners have not held a meeting to recall the board members. As there has been no recall 1 The respondent may find the article, Recall Procedure from A to Z: A Beginner s Guide to Recall Procedures, located at informative. 3

4 vote, there has been no recall by a unit owner s meeting. See Villages of Ascot Condo. Assoc., Inc. v. Unit Owners Voting for Recall, Arb. Case No , Final Order of Dismissal (June 30, 2003)(where the unit owners abandoned recall meeting and did not vote on recall, recall has not yet occurred and, therefore, the arbitrator lacks jurisdiction over the matter). 2 Alternatively, the recall fails as a recall by written agreement. A recall by written agreement must substantially comply with the requirements of rule 61B (1), Florida Administrative Code. In accordance with the rule, a recall agreement is required to provide spaces by the name of each board member sought to be recalled so that the person executing the agreement may indicate whether that individual board member should be recalled or retained; to list at least as many replacement candidates as members subject to recall while providing a space for write-in votes; and to provide signature line for the unit owner s signature to affirm the authority to vote along with space to indicate the date it was signed. Rule 61B (1), Florida Administrative Code. It is clear that the document submitted in the present case fails to meet any of the aforementioned requirements. Therefore, the recall agreement is defective because it fails to substantially comply with rule 61B (1). See, Pelican Landing Condo. Assn., Inc. v. Unit Owners Voting For Recall, Arb. Case No , Summary Final Order (January 24, 2000)(where recall of the entire board was sought, the failure of the written agreement to list replacement candidates and the failure to provide spaces for write-in votes constituted a failure to substantially comply with rule 61B A recall by unit owners meeting must substantially comply with the procedural requirements of rule 61B , Florida Administrative Code, governing the calling of the recall meeting, the noticing of the recall meeting 4

5 Florida Administrative Code); see also, Woodbridge Mobile Home Owners, Inc. v. and conduct of the meeting. The respondent s effort fails comply with most of the requirements of the rule. 5

6 Unit Owners Voting for Recall, Arb. Case No , Summary Final Order (May 7, 2001)(where all of the board members to be recalled were listed in an introductory paragraph and the instrument did not contain retain and recall lines, the agreement was fatally flawed) and Laguana Club East Condo., Inc. v. Unit Owners Voting for Recall, Arb. Case No , Summary Final Order (April 28, 1997)(board s decision not to certify recall affirmed where the recall agreement was in the form of a petition with numerous unit owners signatures on a page and listed all the board members to be recalled such that the unit owners could not elect to recall some, but not all, of the directors). Some of the recall agreement s deficiencies standing alone would not render it defective. However, the recall agreement fails to comply with numerous requirements of rule 61B (1), Florida Administrative Code. 3 See Star Lakes Association, Inc. v. Unit Owners Voting for Recall, Arb. Case No , Summary Final Order (January 28, 2004). Accordingly, the recall should not be certified as a recall by written agreement. 4 Based on the foregoing, the undersigned concludes that no recall by unit owners meeting has occurred and that the recall as a written agreement fails to substantially comply with the recall rules and, therefore, affirms the association s decision not to certify the recall. 3 The document fails to even remotely resemble the sample written recall agreement available on the division s website ( or upon request to the division. 4 The undersigned finds that the association s failure to address the recall as a recall by written agreement does not merit certifying the recall, as the agreement was void ab initio due to its failure to substantially comply with the recall rules. See Laguna Club Condominium Assoc., Inc. v. Unit Owners Voting for Recall, Arb. Case No , Summary Final Order (July 30, 1999)(where the recall effort was fatally flawed and the recall agreement was void ab initio, procedural flaws in the board s reaction to the recall cannot be used to validate the recall agreement). 6

7 DONE AND ORDERED this 9 th day of July, 2004, at Tallahassee, Leon County, Florida. James W. Earl, Arbitrator Arbitration Section Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida Certificate of Service I hereby certify that a true and correct copy of the foregoing summary final order has been sent by U.S. Mail to the following persons on this 9 th day of July 2004: David C. Meyer, Esq. The Offices of Lobeck Hanson & Wells, P.A Main Street Suite 403 Sarasota, Florida Facsimile: (941) Barbara Pollard th Avenue Drive West Bradenton, Florida James W. Earl, Arbitrator 7