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 Alicia S. Moreno, Petitioner, v. Case No The Hemispheres Condominium Association, Inc., Respondent. / FINAL ARBITRATION ORDER Comes now, the undersigned arbitrator, and enters this final order as follows: Petitioner filed her petition in this matter on January 25, Moreno seeks to be re-instated to the board. The petition alleges that the association failed to give her adequate notice of board meetings as provided for in the bylaws, and that as a result of the inadequate notice, she missed 3 consecutive board meetings and was removed from the board by operation of the bylaws. The association filed its answer in this matter on January 27, As one defense, the association argues that since it complied with s (2)(c), F.S., relating to required notice for board meetings, compliance with its bylaw s separate notice provisions is not required. On February 7, 1999, the arbitrator entered an order permitting the filing of memoranda of law on the issue of whether the association must comply with only the statute or with the separate requirements of its bylaws. The petitioner filed her memorandum of law on February 17, 1999, and the association filed its memorandum of law on February 22, Disposition of this affirmative defense requires that the relief 1

2 requested in the petition be granted. According to s (2)(c), F.S.: (c) Board of administration meetings. Meetings of the board of administration at which a quorum of the members is present shall be open to all unit owners. Any unit owner may tape record or videotape meetings of the board of administration. The right to attend such meetings includes the right to speak at such meetings with reference to all designated agenda items.adequate notice of all meetings, which notice shall specifically incorporate an identification of agenda items, shall be posted conspicuously on the condominium property at least 48 continuous hours preceding the meeting except in an emergency. Any item not included on the notice may be taken up on an emergency basis by at least a majority plus one of the members of the board. However, written notice of any meeting at which nonemergency special assessments, or at which amendment to rules regarding unit use, will be considered shall be mailed or delivered to the unit owners and posted conspicuously on the condominium property not less than 14 days prior to the meeting.if there is no condominium property or association property upon which notices can be posted, notices of board meetings shall be mailed or delivered to the owner of each unit. Notice of any meeting in which regular assessments against unit owners are to be considered for any reason shall specifically contain a statement that assessments will be considered and the nature of any such assessments. Section VI of the bylaws of the association provides in part as follows: H. Regular Meetings. Regular meetings of the Board of Directors may be held at such time and place as shall be determined from time to time by a majority of the members of the Board, but at least two such meetings shall be held during each fiscal year. Notice of a regular meeting of the Board shall be given to each member of the Board, by mail or telegraph, at least three business days prior to the day named for such meeting. I. Special Meetings. Special meetings of the Board of Directors may be called by the President on ten business days notice given to each member of the Board, by mail or telegraph, stating the time, place and purpose of the meeting. 2

3 Special meetings of the Board shall also be called by the President or Secretary in like manner and on like notice on the written request of at least three members of the Board. J. Waiver of notice. Any member of the Board of Directors may at any time waive notice of any meeting of the Board in writing, and such waiver shall be deemed equivalent to the giving of such notice. Attendance by a member of the Board at any meeting of the Board shall constitute a waiver of notice by him of the time and place thereof. If all of the members of the Board are present at any meeting of the Board, no notice shall be required and any business may be transacted at such meeting. * * * M. Board meetings open to unit owners; Notice required. All regular or special meetings of the Board of Directors shall be open to all unit owners and adequate notice of all such meetings shall be given in accordance with the Condominium Act. Notice of any meeting at which assessments are to be considered for any reason shall specifically contain a statement that assessments will be considered and the nature of any such assessments. [emphasis added]. The bylaws also contain the following provision regarding missed meetings: VI. Directors. A. Qualifications. Members of the Board of Directors shall be elected at the Annual Meeting of the Members. All Directors shall be unit owners or spouses. Any Director who misses three (3) consecutive meetings of the Board of Directors shall no longer qualify as a Director and shall vacate their position as a Director. Such vacancy shall be filled by a vote of the remaining Directors. Notwithstanding the foregoing, the Board of Directors shall have the right to waive this requirement based on documented hardship such as a medical illness preventing the attendance of a Director at three (3) consecutive meetings of the Board of Directors. [emphasis added]. Petitioner argues that the statute, in s (2)(c), F.S., only addresses unit owner notice of board meetings and not board member notice of board meetings, and thus, the statue and the bylaws do not conflict as they address separate aspects of notice 3

4 required for a board meeting. The arbitrator finds this argument to be convincing. An examination of s (2)(c), Florida Statutes, shows clearly that the legislature intended to address in the statute only the board meeting notice required to be given to unit owners and not the notice required to be given to board members. The statute provides that notice as prescribed must be given to all unit owners; that unit owners have the right to attend and record the board meetings; that written notice of certain extraordinary meetings must be mailed or delivered to the owners; and the like. Chapter 718 does not address the issue of what notice is required to be given to board members of upcoming board meetings. Section , F.S., does provide that an association is governed by the association s articles of incorporation and bylaws, and further provides that the bylaws shall set forth the form of administration of the association, including a specification of powers, duties, manner of selection and removal, and compensation, if any, of officers and boards. Section (2), F.S., also incorporates the powers and duties set forth in chapters 607 and 617, as applicable, except as expressly limited or restricted by chapter 718. This is suggestive that the Condominium Act contemplates that the bylaws and the articles of incorporation are able to fill in certain areas not specifically addressed by the Act including the notice to be given of board meetings to board members, who is to give such notice, the procedure for calling and holding special meetings of the board and membership, and procedures for the resignation of directors, to name a few. The bylaws in this case are in fact consistent with this conclusion. The bylaws recognize that the Condominium Act addresses the issue of unit owner notice of board meetings, and provide for the Condominium Act to be followed on this issue. At the same time, the bylaws provide specific requirements for board member notice of board meetings. See, section VI(H),(M) of the bylaws as quoted above. Given this interpretation 4

5 of the bylaws and the notice provisions contained in s (2)(c), F.S., there is no conflict between the statute and the bylaws, and there is no need to decide the issue of which provision prevails over the other. Wherefore, based on these findings, it is concluded that the association was required to and failed to comply with section VI(H) of the bylaws regarding notice of board meetings to be given to board members. Since no notice by mail or telegraph at least 3 business days in advance was given to petitioner of the 3 meetings that she missed, she cannot have been automatically removed by the operation of section VI(A) of the bylaws; this bylaw contemplates that notice of the meetings has been given as appropriate. A holding to the contrary would permit a board to hold 3 secret unnoticed meetings, and then claim that a particular director, not given notice, had unwittingly forfeited his right to remain on the board. The association is accordingly ordered to reinstate petitioner as a board member and to recognize petitioner as a bona fide board member, entitled to notice of board meetings as required by the bylaws. Florida. DONE AND ORDERED this 1 st day of March, 1999, at Tallahassee, Leon County, Karl M. Scheuerman, Arbitrator Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida Certificate of Service 5

6 I hereby certify that a true and correct copy of the foregoing has been sent by U.S. Mail to the following persons on this 1 st day of March, 1999: Richard J. Simeone, Esquire, Trip & Scott, P.A., 110 Southeast Sixth Street, 15 th Floor, Ft. Lauderdale, Florida 33301, and to Cristina M. Pierson, Esquire, Heinrich, Gordon, Hargrove, Weihe & James, P.A., 500 East Broward Blvd., 10 th Floor, Ft. Lauderdale, Florida Right to Appeal Karl M. Scheuerman, Arbitrator A party who is adversely affected by this final order may appeal from it by filing, within 30 days of rendition and mailing of this order, a petition for trial de novo with a court of competent jurisdiction in the circuit in which the condominium is located. If no timely appeal is filed, this final order is binding on the parties. This final order does not constitute final agency action and is not appealable to the district courts of appeal. 6