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 BINDING ARBITRATION HOA ELECTION DISPUTE Marcello Azevedo, Zoltan Kovacs, Michele Gervolino and Cynthia Karina Moreno, Petitioners, v. Case No Pembroke Isles Homeowners Association, Inc., Respondent. / FINAL ORDER Pursuant to notice, the undersigned arbitrator of the Division of Florida Condominiums, Timeshares and Mobile Homes conducted a telephonic final hearing in this case on February 28, During the hearing, the parties presented the testimony of witnesses, entered documents into evidence and cross-examined witnesses. The parties filed a post-hearing memoranda. This order is entered after consideration of the complete record. Appearances For Petitioner: Alessandra Stivelman, Esq. Eisinger, Brown, et al., P.A Hollywood Boulevard Suite 265 South Hollywood, Florida For Respondent: E.J. Generotti, Esq. Frank, Weinberg & Black, P.A SW 6 th Court Plantation, Florida

2 Statement of the Issue The issue in this case is when the balloting at the September 17, 2013 election was closed, because depending upon when the balloting was closed, different candidates would be elected. Significant Procedural History On November 1, 2013, Marcello Azevedo, Zoltan Kovacs, Michele Gervolino and Cynthia Karina Moreno (Petitioners) filed a Mandatory Binding Arbitration Form Petition Election Dispute naming Pembroke Isles Homeowners Association, Inc. (the Association) as Respondent. An Order Requiring Answer was entered on Novmeber 7, On November 18, 2013, Petitioners filed Revised Supplemental Exhibits to Petition for Arbitration. On December 3, 2013, the Association filed an Answer with Defenses accompanied by a Motion to Strike Revised Supplemental Exhibits to Petition for Arbitration. On December 6, 2013, Petitioners filed Petitioners Opposition to Motion to Strike and a motion for leave to conduct discovery. On December 9, 2013, Petitioners filed Petitioners Reply to Defenses. On December 16, 2013, the Association filed the following: a Reply to Petitioners Opposition to Motion to Strike, a Response to Petitioners Reply to Defenses; and a Response to Motion for Leave to Conduct Discovery. On January 14, 2014, an Order After Case Management Conference was entered. 1 The Order: denied the Association s motion to strike Petitioners revised supplemental exhibits to the petition; granted Petitioners motion to conduct discovery; memorialized the parties agreement regarding Exhibit C to the petition; directed the 1 The Case Management Conference was held on January 7,

3 Association to make certain filings; and directed the parties to submit proposed dates for a final hearing. The Association made the required filings. A Notice of Final Hearing was entered on February 5, On February 19, 2014, the arbitrator signed and returned the parties subpoenas to witnesses for the final hearing. The final hearing was held on February 28, Findings of Fact 1. Petitioners are homeowners within the Pembroke Isles Community and are members of the Association. 2. The Association is the entity responsible for the operation of the Pembroke Isles Community. 3. On September 17, 2013, the Association held its Annual Meeting and Election (AM&E). There were 14 candidates for nine (9) seats on the Association s board of directors (board). 4. In part, the Association s Restated By-Laws at Section 3.8 provide, At all meetings, Members may vote their Voting Interests in person or by proxy. 5. At the final hearing, the following individuals gave testimony, all of whom are Community homeowners and Association members and were present at the election meeting, except Minda Stantton, Steven Weinberg and Guy Strum, who are not homeowners within the Community: Witnesses Called by Petitioners Michele Gervolino: candidate & a Petitioner Geraldine Miles: Election Committee member Minda Stantton: owner & president of the Association s property management company Fausto G Rodriquez: candidate for board membership Randy Klapper Witnesses Called by the Association Maria Diaz Carl Tirone Cynthia Cindy Kahn: Election Committee member Carol Randell: Election Committee member George Esper: candidate & proxy holder William Hutchinson Steven Weinberg, Esq.: attorney for the Association during the election process Lewis Roberts: candidate & proxy holder Guy Strum: Certified Public Accountant 3

4 6. Lewis Roberts (Roberts), the Association s then and current President, met with the Association s attorney, Steven Weinberg (Weinberg), prior to the AM&E. He had his proxies validated and obtained 150 ballots from Weinberg prior to the day of the AM&E. 7. On the day of the AM&E, after the proxy validation process was completed, the Association opened the registration process. The Association s management company registered Owners in the Association s sign-in book and ballots were provided to the registered Owners by Weinberg. 8. After the registration process was completed, the candidates were given an opportunity to speak. Owners were not authorized to cast their vote until after the conclusion of the candidate speeches. 9. When the candidate speeches were concluded, the ballot box was moved from within a roped off area in the voting room to a table in the voting room accessible to Owners. 10. Owners were then instructed to submit their votes. A line formed, and Owners deposited their ballots or envelopes inside the ballot box. 11. Once all Owners in line deposited their ballots or envelopes inside the ballot box, the ballot box was relocated to an adjacent area where the counting was going to be performed (counting area). 12. After the ballot box was relocated to the counting area, Weinberg stepped out of the counting area and called more than once for any ballots that had not been turned in. Weinberg testified he continued to accept ballots from owners who had properly registered. 4

5 13. The Election Committee members, who were members of the Association who volunteered to count ballots, were paired with individuals from Weinberg s office in order to count and tally the votes. Each pair prepared a tally sheet (individual tally sheets). Petitioners Exhibit 3, P Upon completing the counting and tallying of the ballots allocated to each pair, the individual tally sheets were provided to Weinberg. 15. Weinberg prepared a tally sheet (summary tally sheet) utilizing the total votes for each candidate from the individual tally sheets. Petitioners Exhibit 5, P During the preparation of this tally sheet, the Election Committee members started cleaning up their areas and moving around the counting area. 17. The original summary tally sheet was checked by Guy Strum (Strum), the accountant, who numerically ranked the candidates in the descending order of votes received and placed the number then on the left side of the sheet next to the candidate s name. The original summary tally sheet also was executed by Strum with the notation in the bottom right corner, ORIGINAL COUNT. According to this original summary tally sheet, all of Petitioners were among the nine candidates with the most votes Weinberg testified that despite his earlier calls for all ballots to be submitted, he realized that Roberts had not submitted the approximately 150 ballots for which he had proxy authority. Weinberg left the counting area and approached Roberts regarding his ballots and Roberts pulled the ballots from his briefcase and handed them to Weinberg. 2 The original summary tally sheet shows the nine (9) candidates with the most votes as follows: 1. Abbott (290); 2. Gervolino (261); 3. Kovacs (253); 4. Rodriquez (236); 5. Azevedo (225); 6. Moreno (224); 7. Esper (174); 8. Roberts (172); 9. Hutchinson (169). 5

6 19. Weinberg returned to the counting area with the Roberts ballots. Strum testified that Weinberg gave his legal opinion whether the Roberts ballots should be counted. Strum could not remember the substance of Weinberg s legal opinion. Weinberg then polled the Election Committee members who, with one dissent, voted to count the Roberts ballots. 20. The immediately preceding finding is confirmed by two brief video clips taken from the phone of Fausto G. Rodriquez at the AM&E and submitted into evidence by Petitioners. One of the clips shows Weinberg announcing to those homeowners awaiting the results of the election that Roberts had failed to put his ballots in the ballot box. The other clip shows Weinberg announcing the affirmative vote of the Election Committee to count the Roberts ballots and that the Election Committee was going to reconvene to count the Roberts ballots. 21. Two of the Roberts ballots were disqualified, and members of the Election Committee counted the remaining 148 Roberts ballots. A separate tally sheet of the Roberts ballots was prepared. Petitioners Exhibit 4, P Another tally sheet (second summary tally sheet) was prepared showing the following: in one column the votes for each candidate from the original summary tally sheet; in the next column, the votes from the tally sheet of the Roberts ballots; and in the third column, the sum of the preceding two columns. Petitioner s Exhibit 5, P This second summary tally sheet is signed by Strum with the notation in the bottom right 6

7 corner, ROBERTS PROXIES ADDED. According to this second summary tally sheet, all of Petitioners were no longer among the nine candidates with the most votes Strum circled in red on the second summary tally sheet the nine candidates with the most votes. Weinberg then taped the results sheet to the podium located in the voting room. 24. Weinberg, and others, testified that he never made an announcement that the balloting was closed at any time between when the ballot box was moved to the counting area and the results were posted. However, there was conflicting testimony on this point by Randy Klapper. Conclusions of Law The Division has jurisdiction over the parties to, and the subject matter of, this dispute pursuant to Sections (9), and , Florida Statutes. At issue here is when the balloting at the September 17, 2013 election was closed, because depending upon when the balloting was closed, different candidates would be elected. In part, Section (8)(b), Florida Statutes, provides, (b)... Any vote by ballot received after the closing of the balloting may not be considered. Neither party has identified any provision in Chapter 720, Florida Statutes, or Chapter 61B-80, Florida Administrative Code, that explains when the closing of the balloting occurs under this statute. Petitioners argue that Rule 61B (10)(a), Florida Administrative Code, should be applied in the circumstances of this case. In pertinent part, the rule provides, Upon the commencement of the opening of the outer envelopes, the polls shall be 3 The second summary tally sheet shows the nine (9) candidates with the most votes as follows: 1. Esper (322); 2. Roberts (319); 3. Rodriquez (317); 4. Hutchinson (316); 5. Guttman (306); 6. Abbott (305); 7. Garte (304); 8. Suriel (304); 9. Delgato (276). 7

8 closed, and no more ballots shall be accepted. Pursuant to Rule 61B (1)(a), Florida Administrative Code, the provisions of this rule [i.e., Rule 61B ] apply to all regular and run-off elections conducted by a condominium association. Petitioners rely upon Parker v. East Linden Estates Homeowners Ass n, Inc., Arb. Case No , Summary Final Order (Oct. 1, 2007) as support for their argument that Rule 61B (10)(a), a condominium election rule, should be applied in the instant homeowners association case. Specifically, Parker states, Although the rules and case law applicable to condominiums do not control homeowners associations, they do provide persuasive authority to evaluate the fairness of elections. Thus, Petitioners argue the Roberts ballots should not be counted because the balloting closed when the ballot box was removed to the counting area and the counting began. The Association counters by citing Little v. Eagles Reserve Homeowners Ass n, Inc., Arb. Case No , Summary Final Order (July 1, 2009). In Little, the arbitrator agreed with Parker in that the condominium rules are persuasive authority, [h]owever, the fact that a homeowner association s election fails to comply with the rule does not necessarily mean that the election is invalid. In support of their opposing positions, each party cites Boardman v. Esteva, 323 So. 2d 259 (Fla. 1975), cert. denied 425 U.S. 967, 96 S. Ct (1976), a decision involving whether alleged irregularities in absentee ballots were sufficient to discard those ballots. It should be noted that unlike Boardman, the instant case is not about a defect or defects in any of the Roberts ballots that would require that they be discarded, rather the question here is simply whether the Roberts ballots should be included in the count at all, given when they were actually cast. Nevertheless, Boardman, is instructive. 8

9 Initially, the court notes that the real parties in interest are the voters, not in the legal sense but in the realistic sense. Id. at 263. Further, the court articulated a polestar: The right to vote is the right to participate; it is also the right to speak, but more importantly the right to be heard. We must tread carefully on that right or we risk the unnecessary and unjustified muting of the public voice. By refusing to recognize an otherwise valid exercise of the right to a citizen to vote for the sake of sacred, unyielding adherence to statutory scripture, we would in effect nullify that right.... If we are to countenance a different result, one contrary to the apparent will of the people [found in the number of votes for the candidate], then we must do so on the basis that the sanctity of the ballot and the integrity of the election were not maintained, and not merely on the theory that the absentee ballots cast were in technical violation of the law. Id. However, In developing a rule regarding how far irregularities in absentee ballots will affect the result of the election, a fundamental inquiry should be whether or not the irregularity complained of has prevented a full, fair and free expression of the public will. Unless the absentee voting laws which have been violated in the casting of the vote expressly declared that the particular act is essential to the validity of the ballot, or that its omission will cause the ballot not to be counted, the statute should be treated as directory, not mandatory, provided such irregularity is not calculated to affect the integrity of the ballot or election. Id. at 265 (emphasis added). The court noted that the absentee voting statutes must be strictly construed because they are in derogation of the common law, but that does not necessarily mean strict compliance. Id. The burden is clearly on the contestor to establish that the ballots have been irregularly cast. Id. at 268. Finally, the court concluded: [W]e hold that the primary consideration in an election contest is whether the will of the people has been effected. In determining the effect of irregularities on the validity of absentee ballots cast, the following factors shall be considered: 9

10 the presence or absence of fraud, gross negligence, or intentional wrongdoing; whether there has been substantial compliance with the essential requirements of the absentee voting law; and whether the irregularities complained of adversely affect the sanctity of the ballot and the integrity of the election. Id. at 269. Petitioners have not alleged there has been any fraud, gross negligence or intentional wrongdoing in this case. The Association s argument is that because there was never an announcement that the balloting was closed and it accepted some ballots after the ballot box was moved to the counting area, the balloting remained open from the time the ballot box was placed in the counting area to the time the results of the election were posted. Given this argument, the Association takes the position that the Roberts ballots properly were counted. While it may be true that the Association never made an announcement that the balloting was closed, it is clear that everyone thought the balloting was closed when the original summary tally sheet was completed, because there was a clear break in the balloting process. Strum marked this tally sheet with the order of candidate placement based upon the total votes from the individual tally sheets. The Election Committee had ceased counting ballots, and the committee members were cleaning up as if the balloting was concluded. Section (8)(b) statute provides, Any vote by ballot received after the closing of the balloting may not be considered. Under the terms of the statute and these facts, the balloting was closed. Further, Weinberg had to reconvene the Election Committee in order to count the Roberts ballots. Thus, the Roberts ballots should not 10

11 have been counted. 4 This conclusion is consistent with Boardman s pronouncement that where the voting law violated explicitly declares that the omission of the particular act will cause the ballot not to be counted, the statute should be read as mandatory. The applicable statute specifically provides that when a ballot is received after the closing of the balloting, the ballot may not be considered. Thus, substantial compliance with the law was not attained. Further, for the applicable statute to have any meaning, the balloting must close at some point before the results are posted. Otherwise, all homeowners association elections always could remain open until the results are announced. 5 The Association cites three cases in which courts have found that even absent substantial compliance, certain absentee ballots or other ballots were to be counted. 6 Again, all of these cases relate to certain alleged defects in the absentee ballots or other ballots themselves. The individual ballots themselves are not at issue in this case. Finally, the Election Committee s less than unanimous vote to count the Roberts ballots does not change the result reached. This vote occurred only after Weinberg took the unusual step of seeking out Roberts to inquire specifically about his ballots. However, 4 Assuming nothing to the contrary is contained in the governing documents of a homeowners association, the problem encountered in this case with respect to the closing of balloting can be avoided by conducting an election in a fashion that comports with Rule 61B (10)(a), Florida Administrative Code. 5 To find that the Roberts ballots should be counted would be analogous to a court finding that ballots should be counted after the polls have closed in an election for public office, where before the results are announced, poll workers in the office of the supervisor of elections suddenly receive calls from voters who say they forgot to vote, the poll workers take a vote to accept the ballots of these voters and the supervisor of elections opens the door to the polls and accepts and counts these ballots. 6 Beckstrom v. Volusia Co. Canvassing Bd., 707 So. 2d 720 (Fla. 1998) (unintentional wrongdoing, as defined, sufficient to void election only if substantial noncompliance resulted in doubt whether certified election reflected will of voters); Braxton v. Holmes Co. Election Canvassing Bd., 870 So. 2d 958 (Fla. 1 st DCA 2004) (negligence in election causing substantial noncompliance with election laws not so pervasive as to thwart will of people); and Daylight Grocery Co. v. Nat l Labor Relation Bd., 678 F.2d 905 (11 th Cir. 1982) (ballot to be included where intent can be determined). 11

12 the balloting already was closed. Unlike Boardman, the Election Committee s vote on whether to count the Roberts ballots was outside the legal requirement of the statute. 7 Based upon all of the foregoing, it is ORDERED: As of the date of this Order and pursuant to the original summary tally sheet, the nine members of the board of directors elected at the September 17, 2013 Annual Meeting and Election are as follows: 1. Abbott; 2. Gervolino; 3. Kovacs; 4. Rodriquez; 5. Azevedo; 6. Moreno; 7. Esper; 8. Roberts; and 9. Hutchinson. Any person not on this list immediately shall deliver any and all records of the Association in their possession to the new board of directors. Florida. DONE AND ORDERED this 30 th day of April, 2014, at Tallahassee, Leon County, Glenn Lang, Arbitrator Division of Condominiums, Timeshares & Mobile Homes Dept. of Business & Professional Regulation 1940 North Monroe Street Tallahassee, Florida Phone: ; Fax: [This space intentionally left blank. Certificate of Service appears on next page.] 7 The Association also cites to Eight Is Enough in Pinellas v. Ruggles, 678 So. 2d 898 (Fla. 2d DCA 1996) (court upheld decision of supervisor of elections not to count initiative petitions signed in prior election cycle). This case is inapposite because it did not involve any balloting. 12

13 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 pre-paid, to the following persons on this 30 th day of April, 2014: Alessandra Stivelman, Esq. Eisinger, Brown, et al., P.A Hollywood Boulevard Suite 265 South Hollywood, Florida Facsimile: Attorneys for Petitioner E.J. Generotti, Esq. Frank, Weinberg & Black, P.A SW 6 th Court Plantation, Florida Facsimile: Attorneys for Respondent Glenn Lang, Arbitrator 13