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 ISRAEL BARRERA, individually, and BLEAU FONTAINE CONDOMINIUM NUMBER TWO, INC., a non-profit Florida corporation, Petitioners, v. Case No BLEAU FONTAINE COMMUNITY ASSOCIATION, INC., a non-profit Florida corporation, Respondent. / PARTIAL SUMMARY FINAL ORDER On November 20, 2000, the petitioners filed an emergency motion for expedited determination of the petition for arbitration. The motion alleges that pending resolution of this dispute, the board of directors remains in office; however, the board is divided over all issues and three of the directors are conducting association business on their own and without the knowledge, consent or approval of the remaining three directors. Without determining the claims contained in the motion, the arbitrator acknowledges the importance of timely resolution of this election issue and enters the following order. The amended pet ition for arbitration alleges that the Bleau Fontaine Community Association, Inc. ( respondent or community association ) failed to properly conduct an election for positions on its board of directors. The community association is a master association that operates the recreation areas and roadways of several condominiums, one of which is Bleau Fontaine Condominium Number Two, managed by Bleau Fontaine Condominium Number Two Association, 1

2 Inc. ( Bleau Fontaine No. Two ). The board of directors for the co mmunity association is composed of six directors, two from each of the three condominiums served by the community association. The owners of units in each of the three condominiums (Blue Fontaine No. One, Blue Fontaine No. Two and Blue Fontaine No. Three), pursuant to the bylaws of the community association, elect two directors to the board of the community association. Petitioner Israel Barrera, president of Bleau Fontaine No. Two and owner of a unit in Bleau Fontaine Condominium Number Two, also is a member of the respondent community association. The petition alleges that the community association, in conducting its election for directors on August 16, 2000, failed to accept ballots belonging to owners of Bleau Fontaine Condominium No. Two and Blue Fontaine Condominium No. Three (there were only two owners running for election from Bleau Fontaine No. One) who did not attend the meeting and whose ballots were delivered by other unit owners who did attend the meeting. Because the votes were not accepted, the 20 per cent requirement for voter participation was not met and the meeting was adjourned. The peti tion alleges that if the non-accepted ballots had been accepted, the 20 per cent requirement would have been met and the following candidates elected, by the following votes: Bleau Fontaine No. Two Bleau Fontaine No. Three Ramon Batista 53 Azcarretta 39 Horacio Dehrs 50 Cano 35 The answer to the amended petition, filed on November 17, 2000, states that two individuals carried into the election meeting bags of ballots they sought to cast, without any explanation as to who actually voted the ballots or the reason why the other unit owners did not bring their ballots themselves: one bag contained 24 ballots for Blue Fontaine No. Two candidates and a separate bag contained 26 ballots for Blue Fontaine No. Three candidates. The answer states that the board of directors of the association made the decision that the ballots delivered by other owners would not be 2

3 allowed to be cast, but agreed to a suggestion by Israel Barrera s attorney, Helio De La Torre, Esq., that the non-accepted ballots would not be cast in the ballot box but opened and counted in front of witnesses for argument s sake to verify in front of witnesses how the non-accepted ballots were allegedly voted by individual unit owners. The respondent argues that Section (2)(d)3., Florida Statutes, and Rule 61B (9), Florida Administrative Code, differentiate between voting and casting a ballot. The statute provides in pertinent part: There shall be no quorum requirement; however, at least 20% of the eligible voters must cast a ballot in order to have a valid election.no unit owner shall permit any other person to vote his or her ballot, and any such ballots improperly cast shall be deemed invalid. Rule 61B , Florida Administrative Code, provides in pertinent part: (9) all ballot forms utilized by a condominium association, whether those mailed to voters or those cast at a meeting * * * (10)(a) As the first order of business, ballots not yet cast shall be collected. (11) Any voter who requires assistance to vote by reason of blindness, disability, or inability to read or write, may request the assistance of a member of the board of administration or other unit owner to assist in casting his vote. If the election is by voting machine, any such voter, before retiring to the voting booth, may have a member of the board of administration or other unit owner or representative, without suggestion or interference, identify the specific vacancy or vacancies and the candidates for each. If a voter requests the aid of any such individual, the two shall retire to the voting booth for the purpose of casting the vote according to the voter's choice. The respondent argues that when the owners showed up with bags of ballots to be cast in the ballot box without any showing by them that the unit owners actually voted their votes or whether those votes were cast because the absent unit owners were under a disability as defined in Rule 61B (11), above, the ballots were properly disregarded and the meeting was properly adjourned because, when the non-accepted ballots were excluded, the 20 per cent eligibility requirement was 3

4 not reached. In Calcagno et al. v. Marlborough House, Inc., Arb. Case No , Partial Summary Final Order (June 14, 2000), the arbitrator dealt with the identical issue posed here. In Calcagno, various unit owners delivered their ballots for election of directors to candidates for the board for delivery to the association at the election. At the election, the association refused to accept the ballots, taking the position that the owners who signed the ballots were required to deliver the envelopes and ballots to the association at the elect ion. The arbitrator held that nothing in the statute or rules requires that the voter deliver the ballot and envelopes to the association himself or herself: By transporting the ballot to the election meet ing, however, the owner who cast the vote in the first instance is not permitting another to vote his unit; that has already been done upon completion of the ballot form. In providing a means of delivering the completed ballot to the association, the transporting owner is acting only as a courier. The association would not argue that the postal official or carrier for an overnight delivery service is illicitly casting the ballot of an owner by delivering the ballot to the association. The safeguards provided in the statute for insuring the validity of the ballots cast still find application where the ballot is delivered by a third person/unit owner. The impartial committee to be appointed by the board pursuant to rule 61B (10)(a),(b), Florida Administrati ve Code, would still be empowered to verify the signature and unit identification against the list of eligible voters, and the review and verification procedure would in no way be impaired simply because the ballot and envelopes were delivered by another owner. (emphasis in original) Accordingly, it is held that the respondent improperly failed to accept the ballots hand delivered by petitioner Barrera and another owner to the meeting. The association alleges in its answer that it disregarded these ballots for other reasons, such as illegible signatures or invalid names corresponding to unit owner lists. By December 1, 2000, the community association shall serve and file a copy of the non-accepted ballots and a list of specific objections to the ballots, which list shall specify the precise objection accompanied by an explanation of why the ballot should be 4

5 rejected. A brief fact-finding shall be held via telephone conference on December 7, 2000, to begin at 10:00 a.m. If either party has a scheduling conflict that precludes its participation on December 7 that party shall immediately contact the arbitrator and shall be responsible for obtaining another timely date for the hearing. The parties shall notify the arbitrator of where they will meet for the hearing and the telephone number for that location. The arbitrator will initiate the telephone conference. The community association may present evidence relating to any defenses listed in its answer and defenses including the invalidity of specific votes cast for reasons other the delivery issue addressed in this order. The fact-finding hearing shall be confined to bona fide genuine and otherwise substantial issues and defects in the ballots. If the community association cannot in good faith contest the validity of specific ballots, the arbitrator expects it to so stipulate, and a final order will be entered installing the directors, as appropriate. DONE AND ORDERED this 21st day of November 2000, at Tallahassee, Leon County, Florida. Patricia A. Draper, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida

6 Copies furnished by fax and mail to: Helio De La Torre, Esq. Siegfried, Rivera, Lerner, De La Torre & Sobel, P.A. 201 Alhambra Circle, Suite 1102 Coral Gables, Fl Attorney for petitioners Brian W. Pariser, Esq. Law Office of Brian W. Pariser, P.A. Datran II Suite South Dadeland Boulevard Miami, FL Attorney for respondent 6