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 Laurie Karpiuk, Petitioner, v. Case No Courvoisier Courts Condominium Association, Inc. Respondent. / SUMMARY FINAL ORDER Statement of the Issue Whether, after the Association has held a duly noticed meeting to suspend the voting rights of 81 unit owners, and has provided notice to them of such suspension on or about January 11, 2011, the calculation of 20 percent of eligible voters to establish a valid election at the meeting of the membership on February 17, 2011, properly included those 81 voting interests; or, should the calculation have been made only after the 81 votes were subtracted from the total of eligible voters. Procedural History On October 6, 2011, Laurie Karpiuk filed a petition for arbitration against the Courvoisier Courts Condominium Association, Inc., seeking to require the Association to count the ballots submitted for the election of the board of directors at the membership meeting on February 17, On October 7, 2011, an Order Requiring Answer was entered. On October 28, 2011, the Association filed its Answer stating the substantive facts alleged by the petition for arbitration are correct, but stating its action was proper 1

2 based upon section (2)(d)3, Florida Statutes, and , Florida Statutes (2010). This Summary Final Order is entered based upon the agreed facts. Statement of the Facts 1. Petitioner, Laurie Karpiuk, is a member of Courvoisier Courts Condominium Condominium Association, Inc., based upon ownership of a unit in Courvoisier Courts Condominium. 2. Courvoisier Courts Condominium Association, Inc., is the entity responsible for operation and maintenance of Courvoisier Courts Condominium. 3. Courvoisier Courts Condominium consists of 271 residential and 4 commercial units. 4. When all 275 units are included in the calculation a total of 55 units are required to provide 20 percent of the eligible voters to have a valid election. 5. On February 17, 2011, the Association conducted its annual meeting of the members and election. The ballots contained nine candidates, one of whom was Petitioner, for five seats on the board of directors. 6. At the February 17, 2011 meeting, the Association received a total of 58 ballot outer envelopes. Six of the ballot submissions were rejected: 1 because the envelope was open, 2 were not signed by the owner of record, 1 was signed by a person other than the person named on a voting certificate, 2 came from corporately owned units with no voting certificates. 7. It was determined that the remaining 52 ballot submissions did not make up 20 percent of the total number of units to constitute a valid election, so the outer envelopes were not opened and ballots were not counted. 2

3 8. Consequently, the directors from the prior year s board continue to serve as the 2011 board of directors based on the holdover doctrine Before the election, at the Association s duly noticed board meeting on January 10, 2011, the directors had voted to suspend the voting rights of 81 unit owners because of monetary obligations due to the Association that were more than 90 days delinquent. 10. On January 11, 2011, the Association sent letters to the 81 unit owners notifying them that their voting rights had been suspended. 11. If the calculation of eligible voters does not include the 81 units whose voting rights had been suspended, the Association is left with 194 eligible voters. In that case, 39 ballot represents more than 20 percent of the eligible voters required for a valid election. Conclusions of Law The Division has jurisdiction over this matter pursuant to section , Florida Statutes. Rule 61B , Florida Administrative Code, requires entry of a summary final order when no disputed issues of material fact have been raised by the pleadings. The simple issue presented in this case is whether the term eligible voters includes unit owners whose voting rights have been suspended. Section (2)(d)3.a., Florida Statutes (2010), provides in pertinent part: There is no quorum requirement; however at least 20 percent of the eligible voters must cast a ballot in order to have a valid election of members of the board. 1 See Vargas, et al. v. Versailles Gardens I Condominium Association, Inc., Arb. Case No , Summary Final Order (April 30, 2002) 3

4 Section (5), Florida Statutes (2010) provides: An association, may also suspend the voting rights of a member due to nonpayment of any monetary obligation due to the association which is more than 90 days delinquent. The suspension ends upon full payment of all obligations currently due or overdue the association. Significantly, section (5), Florida Statutes was amended by the legislature in 2011 to make it clear that a voting interest that has been suspended may not be counted towards the total number of voting interests required to conduct an election. Although this amendment was not in effect in February 2011, it provides authority for interpretation of the term eligible voters. It is not necessary, however, to retroactively apply the 2011 amendment in order to interpret the phrase eligible voters. Established law in the State of Florida recognizes that eligible voters are those who have complied with specific conditions (such as age, residence, registration) before their vote may have effect. Goldsmith v. McDonald, 32 So. 3rd 713 (Fla. 4th DCA 2010). After a unit owner s right to vote has been suspended for non-payment of monetary obligations, the unit owner must make full payment as a condition before the unit s vote may have an effect. Any unit owner who does not comply with that condition is not an eligible voter. There is no question, in this case, that the Association held a properly noticed meeting at which the board suspended the voting rights of 81 unit owners. Additionally, those unit owners were notified of the suspensions more than a month before the annual election meeting. See section (6), Florida Statutes (2011). In conclusion, on February 27, 2011, there were 194 eligible voters for Courvoisier Courts Condominium representing the total number of units (275), less the number of units whose voting rights has been suspended (81). Because the Association 4

5 received approved ballot envelopes from 52 units, and 39 ballots constitute more than 20 percent of 194, the Association received enough votes for a valid election. All that is left is for the Association to open and count the ballots. Accordingly it is ORDERED that within 30 days of the date of this Order, Courvoisier Courts Condominium Association, Inc. shall convene a membership meeting to count the remaining 52 ballots pursuant to the procedures set forth in Rule 61B (10), Florida Administrative Code and install the directors so elected. DONE AND ORDERED this 9th day November 2011, at Tallahassee, Leon County, Florida. Bruce A. Campbell, Arbitrator Dept. of Bus. & Prof. Reg. Arbitration Section 1940 North Monroe Street Tallahassee, Florida Trial de novo and Attorney s Fees This decision shall be binding on the parties unless a complaint for trial de novo is filed within 30 days in accordance with section , Florida Statutes. As provided by section , Florida Statutes., the prevailing party in this proceeding is entitled to have the other party pay reasonable costs and attorney s fees. Any such request must be filed within 45 days in accordance with Rule 61B , F.A.C. Certificate of Service I hereby certify that a copy of the foregoing final order has been sent by U.S. Mail to the following persons on this 9th day of November, 2011: 5

6 Pennie S. A. Mays, Esq. Glazer & Assoc Stirling Road, Suite 201 Hollywood, FL Michael C. Gongora Becker & Poliakoff 121 Alhambra Plaza, 10th Floor Coral Gables, FL Bruce A. Campbell 6