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

Transcription

1 STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES, AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION TIMBER LAKE CLUB CONDOMINIUM ASSOCIATION, INC., Petitioner, v. Case No UNIT OWNERS VOTING FOR RECALL, Respondent. / SUMMARY FINAL ORDER Statement of Issue The issue presented for determination by the arbitrator is whether the written recall agreement served on March 30, 2010, on the board of directors of Timber Lake Club Condominium Association (Association),should have been certified. Procedural History and Findings of Fact 1. On April 14, 2010, the Association filed a recall arbitration petition. 2. The unit owners voting in favor of the recall are the Respondent in this matter. 3. There are 60 voting interests in the association. Therefore, a minimum of 31 votes is necessary to recall a member of the Association s board of directors. 4. The total number of seats on the board is On March 30, 2010, the Association was served with a written recall agreement consisting of 32 ballots seeking the recall of the following members of its 1

2 board of directors: Arthur Eichmann (31 votes to recall); Fred C. Lynch (32 votes to recall); and Charles Williams (32 votes to recall). Proposed replacement board members listed on the ballots were: Janet Geason, Julene Pontoriero and Barbara Rosenberger. 6. On April 6, 2010, the Board held a meeting to consider the recall and the voted not to certify the recall. The minutes state the board rejected the written agreement for the following reasons: a. Donald and Paula Dube: agreement was invalid as it was printed and not signed it is the board s position that the agreement was not filled out by the Dubes. b. Keyla Rio: agreement was invalid as signature does not match signature on the mortgage. c. Maryanne Chirco: agreement was invalid in that her property lists two owners and there is no valid voting certificate on file. d. The unit owner s representative did not include his address on the form. 7. On April 19, 2010, an Order Requiring Answer was entered. 8. On May, 5, 2010, Respondent filed an Answer to Recall Arbitration and Additional Facts and Request for Attorney s Fees. Attached to Respondent s Answer were the following: a. Affidavit of Donald Dube and Paula Dube affirming that they filled out the recall agreement ballot and that they printed their signatures on the ballot; b. Affidavit of Keyla Rio affirming that she filled out the recall agreement ballot and that the signature on the ballot was hers; 2

3 c. Copies of the July 6, 2009 Quit Claim Deed of 250 Timberlake Circle, which lists Maryanne Chirco, a single person as the Grantee to the unit. 9. The Unit Owners Voting for Recall used the standard recall ballot form available from the Division. 10. As of the date of this order, Petitioner has not filed a reply challenging or refuted the validity of the the affidavits by owners Donald and Paula Dube and by owner Keyla Rio attesting that the signatures on the ballots are valid. 11. As of the date of this order, Petitioner has not filed a reply or refuted the validity of the July 6, 2009 Quit Claim Deed of 250 Timberlake Circle listing Maryanne Chirco, a single person as owner. Conclusions of Law The undersigned has jurisdiction over the parties and subject matter of this dispute, pursuant to sections (2)(j)3. and , Florida Statutes. In accordance with section (2)(j) provides that any member of the board of administration (board) may be recalled and removed from office with or without cause by vote or agreement in writing by a majority of all voting interests. A Summary Final Order is appropriate in this case pursuant to Rule 61B , Florida Administrative Code. The Association bears the burden of proof when it rejects a ballot for a particular reason. The Harvest Condominium Association, Inc. v. Unit Owners Voting for Recall, Arb. Case No , Summary Final Order (Dec. 10, 2003)(Where Association rejects recall ballots, it follows that the Association bears the burden of establishing a legal basis for so doing). 3

4 No Unit Owner Representative Listed The Association rejected the written recall agreement because no unit owner representative was listed on the ballot. Where the Association does not allege any prejudice or confusion related to such an omission, the Association s rejection of ballots for this reason will not be upheld. Hidden Forest Condo. Ass n, Inc. v. Unit Owners Voting for Recall, Arb. Case No , Summary Final Order (August 29, 2002)(Where no prejudice and no actual confusion resulted regarding who represents unit owners, unit owners failure to properly list the unit owners representative s name, address and telephone number is insufficient to invalidate a written recall agreement). Accordingly, the Association improperly rejected the written recall agreement for this reason. Association s Rejection of Specific Ballots 1) Donald Dube and Paula Dube The Association rejected the ballot of Donald Dube and Paula Dube and alleged that the printed names were not signatures. On May 5, 2010, the Respondent submitted the affidavit of Donald Dube and Paula Dube who affirmed that they are the owners of the unit and that the printed names were placed on the ballot by us and were intended to be our signatures. As of the date of this order, the Petitioner has not filed any reply or refuted the validity of the Dubes affidavit attesting to the validity of their signatures as written by hand by them. Accordingly, the Association s rejection of the ballot for Unit B-2020 was improper. 4

5 2) Keyla Rio The Association rejected the ballot of Keyla Rio and alleged the signature on the ballot was not Ms. Rio s signature. On May 5, 2010, the Respondent submitted the affidavit of Keyla Rio who affirmed that the signature on the ballot was hers. As of the date of this order, the Petitioner has not filed any reply or refuted the validity of Ms. Rio s affidavit attesting to the validity of her signature. Accordingly, the Association s rejection of Ms. Rio s ballot was improper. 3) Maryanne Chirco The Association rejected the ballot of Maryanne Chirco and alleged that there were multiple owners listed on the deed and that there was no valid voting certificate on file with the Association. On May 5, 2010, the Respondent filed a copy of the June 26, 2009 Quit Claim Deed showing the transfer of the property by Maryanne Chirco and Jason W. Harris to Maryanne Chirco. As of the date of this order, the Petitioner has not filed a reply or refuted the validity of Ms. Chirco s June 26, 2009 Quit Claim Deed. According, the Association s rejection of Ms. Chirco s ballot was improper. Conclusion Based on the foregoing, the written recall agreement will be certified. As a result of the recall, the following board members are recalled: Arthur Eichmann, Fred C. Lynch, and Charles Williams. Respondent s Motion for Attorneys Fees and Costs Along with Respondent s Answer, Respondent filed a Motion for Attorney s Fees and Costs. Rule 61B , Florida Administrative Code, provides as follows: 5

6 No party shall be entitled to recover its costs and attorney s fees in a recall proceeding initiated pursuant to Section (2)(j) or (1)(f), Florida Statutes. Accordingly, Respondent s motion will be denied. Based on the foregoing, it is ORDERED: 1. The recall of Arthur Eichmann, Fred C. Lynch, and Charles Williams is hereby CERTIFIED and they are REMOVED as directors effective as of the date of the mailing of this order. Within five (5) full business days from the effective day of the date of this order, Arthur Eichmann, Fred C. Lynch, and Charles Williams shall deliver to the board any and all records of the association in their possession. 2. As a majority of the board has been recalled pursuant to Rule 61B (3)(b)4., Florida Administrative Code, replacement candidates Janet Geason, Julene Pontoriero, and Barbara Rosenberger shall take office as replacement directors effective upon the mailing of this order and shall fill the board seats for the unexpired terms of the seats being filled. 3. Respondent s Motion for Attorney s Fees and Costs is DENIED. DONE AND ORDERED this 21 st day of May, 2010, at Tallahassee, Leon County, Florida. Tonya S. Chavis, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida Telephone: FAX:

7 Certificate of Service I hereby certify that a true and correct copy of the foregoing final order has been sent by U.S. Mail to the following persons on this 21 st day of May, 2010: Jason R. Himschoot, Esquire FAX: Six Mile Corporate Park Carissa Commerce Court Suite 200 Ft. Myers, Florida Susan M. McLaughlin, Esquire FAX: McGregor Boulevard Fort Myers, Florida Tonya S. Chavis, Arbitrator 7