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

Transcription

1 STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION Tituswoods Homeowner s Association, Inc., Petitioner, v. Case No Homeowners Voting For Recall, Respondent. / SUMMARY FINAL ORDER Statement of Issue The issue in this case is whether the Association properly chose not to certify a recall presented as the result of a vote taken at a special meeting held July 18, Procedural Matters On August 3, 2007, Tituswoods Homeowners Association, Inc. (the Association) filed a petition for recall arbitration. The group of homeowners voting in favor of the recall is the Respondent in this matter. On August 8, 2007, the arbitrator issued an order allowing the Respondent to file an answer to the petition within fourteen (14) days of receipt of the order. On August 20, 2007, the Division received an Answer to Petition for Recall Arbitration from the individual designated as the replacement president if the recall were successful. That Answer stated the representative had not received a copy of the Petition. On August 21, 2007, the arbitrator received a fax from the homeowners representative with the 1

2 result of a later recall based on written ballots; any facts relating to the later recall are not considered in this Order. On August 27, 2007, the arbitrator entered a Notice of Communication with respect to the fax and directed the representative to answer the Petition herein. On September 7, 2007, the Answer was filed. FINDINGS OF FACT 1. The homeowners voting for recall held a meeting on July 18, 2007, at which time votes were held to recall the three directors of the Association. 2. Notice of the meeting of July 18, 2007, was posted and mailed to selected homeowners. 3. The notices of the meeting of July 18, 2007, did not state that the purpose of the meeting was to vote for recall of the directors. 4. Homeowners representing 11 parcels attended the meeting on July 18, Proxies representing 17 parcels were held by persons attending the meeting. 6. The proxies were form proxies limited to the meeting of July 18, The proxies did not contain any mention of a recall nor list the names of directors subject to a recall. 8. A vote by a show of hands at the meeting of July 18, 2007, apparently exercising the proxies, resulted in 25 votes to recall each of the directors. 9. The Association has 42 voting interests. 10. The minutes from the board meeting of July 27, 2007, indicated that the board declined to certify the attempted recall because the meeting failed to comply with 2

3 Rule 61B (2), Florida Administrative Code. The specific reasons listed in the minutes were: a.) the notice did not state the purpose of the meeting included a recall; b.) the notice did not state an election would be held to choose replacement directors; c.) the notice did not list each director to be recalled by name; d.) the notice did not list eligible replacements; e.) the meeting notice did not have a copy of the signature list of the homeowners calling the meeting; f.) the notice was not mailed to all homeowners; g.) no recall meeting notice was delivered to the board; h.) the proxy form did not say it would be used to recall the board. 11. The Answer filed herein alleges that when the notice of the meeting of July 18, 2007, was sent out, the homeowners calling the meeting did not intend the meeting would include a vote for a recall. CONCLUSIONS OF LAW 1. Rule 61B , Florida Administrative Code requires the arbitrator, at any time after the filing of the petition, to enter a final order affirming the board s decision not to certify the recall if the arbitrator finds that no meritorious defense exists, or if substantial compliance with the requirements of the rules and statutes relating to recall has not been demonstrated, and the petition is otherwise appropriate for relief. 2. Section (10), Florida Statutes, provides the authority and requirements for recall of directors of a homeowners association. It provides that a majority of the total voting interests are required to recall a member of the board of directors. The recall vote may be made through an agreement in writing or written ballots without a meeting. If the Association s governing documents specifically provide for it, the recall vote may be at a specially called membership meeting. 3

4 3. The governing documents of Petitioner do not specifically provide for a recall vote at a special meeting. A by-law generally providing for special meetings does not meet the statutory requirement that recall by special meeting be specifically authorized in the governing documents. 4. Even if a recall by special meeting were authorized, the statute, as implemented by Rule 61B (2), Florida Administrative Code, requires notice to all homeowners stating the purpose of the meeting. The fact no such notice was given is a fatal defect in the attempted recall by meeting. 5. Although not mentioned as a ground to reject the recall, the arbitrator notes for the future direction of the parties that the Association s governing documents require a voice vote of homeowners voting in person at a membership meeting. Thus no proxies are allowed for votes in membership meetings in Tituswoods Homeowner s Association. Based upon the foregoing, it is ORDERED: The Associations decision to not certify the recall is hereby AFFIRMED. DONE AND ORDERED this 11th day of September, 2007, at Tallahassee, Leon County, Florida. Bruce A. Campbell, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida

5 Copies furnished to: Richard M. Coln, Esq. Taylor & Carls, P.A. 850 Concourse Parkway S. Suite 105 Maitland, FL Mackey Joyner, Jr Wilderness Trail Titusville, FL