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 Ocean Point Condominium Association, Inc., Petitioner, v. Arb. Case No Unit Owners Voting for Recall, Respondent. / REPORT OF SPECIAL MASTER Comes now, the undersigned arbitrator, and enters this order as follows: The undersigned arbitrator presided over the evidentiary hearing conducted on February 11, 2004 in this case. The arbitrator permitted the filing of proposed orders to be filed not later than 5:00 p.m. on Friday, February 13, 2004; each party filed a written proposed order that was considered in the preparation of the findings made herein. A. At the beginning of the hearing, the parties were able to stipulate to certain facts as follows: 1. The condominium contains 238 total voting interests; a minimum of 120 votes are required for a successful recall. 2. The association on January 14, 2004 received either 129 or 130 recall ballots and supporting materials including certain voting certificates. Whether 129 or 1

2 130 votes were served on the association is one of the disputed facts that testimony was taken on. 3. The recall materials were served on the association by special process server on January 14, The arbitrator and the parties recognize the validity of the recall votes cast for units numbered 516, 224, and1014; these ballots were improperly rejected by the association. 5. The ballot for #419 is invalid (this is the ballot with the voting certificate shown later to have been executed on January 23, 2004 which was after service on the board of the recall materials for the second recall effort on January 14th). 6. The ballots for units numbered 923, 525, 824, 504, and 1117 were properly rejected by the association. 7. The association originally challenged the validity of 14 votes. Three votes were valid but rejected as found in (A)4 above. Five ballots were contested on the grounds that a duly executed voting certificate did not accompany the ballots; these are the ballots for units numbered 214, 1104, 207, 409, and 909. Whether duly executed voting certificates accompanied these ballots is the second disputed issue upon which testimony was taken in the course of the proceeding. 8. If there is found to have been 130 ballots originally served on the association, then the parties agree that 116 votes were valid, and that 3 additional votes are considered valid as identified in (A)4 above, such that 119 votes are considered valid, without regard to the five votes contested on voting certificate grounds. If there is found to have been 129 ballots originally served on the 2

3 association, then the parties agree that 115 votes were valid, and that 3 additional votes as identified in (A)4 above are considered valid, such that 118 votes are considered valid without regard to the five votes contested on voting certificate grounds. Under the 130 ballot scenario, at least 2 votes challenged on voting certificate grounds must be found valid in order for the recall to be certified. Under the 129 ballot scenario, at least 3 votes challenged on voting certificate grounds must be found to be valid in order for the recall to be certified. B. The following facts are determined based on the testimony presented in the course of the hearing conducted in this matter: 1. The first issue is whether 129 or 130 ballots were served on the association. The arbitrator heard from numerous witnesses with plainly conflicting testimony on this point; sufficient evidence was produced to support a finding of either 129 or 130 votes. All of the witnesses had a stake in the outcome of the proceeding. This task was made more difficult given that neither party presented a research effort revealing which ballot accounted for the difference. Mr. Duarte, who has been the president for longer than anyone can remember, was the only association witness that had an opportunity to view and count the ballots before the recall materials were brought to the offices of counsel for the association, although numerous other association witnesses testified that they counted and recounted 129 ballots after the ballots had been copied or returned from the attorney s office. It is possible that Duarte miscounted 129 when in fact the package contained 130. While no one was able to testify with clarify whether the ballots were paper-clipped or stapled together, or were appended together in some other manner, with over 100 3

4 documents bound together in either manner, there is a likelihood of that two of the ballots were joined or stuck together so as to present one ballot when in fact two were submitted. However, this same disability may have accrued to either party since both parties handled these documents. The remainder of the association witnesses only counted the ballots after they had been delivered to and reviewed by counsel for the association, and it is possible that a single ballot was unintentionally lost from the pile during copying or other office function. The respondent presented testimony that 130 ballots were delivered to the association. Attorney and owner DeCarlo provided assistance in assembling the package, and testified with certainty that 130 votes were assembled and provided to the association. Attorney Rogel testified with certainty that he counted and delivered 130 recall agreements, although he admitted freely that he had not checked all voting certificates in the package (it was not fully explained why someone in charge of the recall effort would check the number of ballots but then fail to check on key voting certificates). There were numerous errors made by each side in the course of this recall effort including the affidavits produced after the fact of the recall, and it requires no stretch of the imagination to conclude that an error may also have been made by the respondent in preparing and counting the ballots in the first instance. Errors are to be expected in the context of any recall given the numerous documents and technical requirements involved, and given that those handling the recall ballots and supporting materials are in many cases lay persons with no formal legal training. Also, the ballots were copied and the copies were served on the association, and an error may have been made in copying the ballots served on the association. It is also possible that an error was made by the 4

5 association in processing the second recall package given that the recall materials were seemingly in constant motion from the president to the attorney s office, then to the hospital, etc., and were in multiple hands in multiple locations. It is possible that a single recall ballot simply dropped out of the package after service on the association. Based on all these factors, the arbitrator concludes that 129 ballots were served on the association. The owners in favor of recall were shown to have made a number of errors in other facets of the recall, and the fact of these errors has an effect on the perceived value of the respondent s testimony on this issue and the degree of care exercised by the owners in preparing their second recall package for service on the board. 2. Turning to the issue of the five voting certificates, notwithstanding the foregoing finding, the arbitrator finds as a general matter that it would be inconceivable that the owners voting for recall, having been made aware of the specific deficiencies in the first recall effort, and being assisted by counsel in this regard, would repeat the exact same mistakes in their second recall effort. The first recall effort was in effect abandoned, with the owners determining not to contest the invalidity of certain votes, in favor of orchestrating an additional recall effort. It is probable given this background that the owners would have remedied at least a minimum number of the problems so that the recall would not automatically suffer the same fate as the first recall effort; this conclusion is buttressed by the testimony of attorney Rogel who advised the owners in favor of recall that they should cure the voting certificate deficiencies by collecting voting certificates from the owners for the second recall effort. Four out of the five votes challenged in this proceeding on voting 5

6 certificate grounds were also challenged in the first recall effort on voting certificate grounds (the only vote of the five involved here that was not challenged for lack of a voting certificate in the first recall was unit #214). 3. Against this backdrop, the arbitrator finds that the ballot for unit #207 contained the required voting certificate and should have been counted by the association. Mr. Reducha testified with certainty that he signed the voting certificate on the date contained on the voting certificate. There is a fax number of date on the voting certificate that shows the form was faxed on January 7th, the same date that the instrument was executed; this tends to corroborate the testimony of the witness. The arbitrator finds that his testimony was reliable and that any confusion on the part of the witness during cross-examination occurred as a result of his difficulty with understanding the English language. Also, the testimony regarding a possible prior incident involving a confrontation between the witness and a board member concerning a rejected recall vote may well have related to the witness s vote in the first recall effort that was rejected because no voting certificate had been placed on file. Attorney DeCarlo also testified that he specifically recalled the voting certificates for units #207 and 214 since these were situated close to the top of the stack of ballots. The testimony presented in general by the association concerning the lack of voting certificates was more diverse and less helpful than the association s testimony regarding the number of voting certificates served on the association. The arbitrator did not consider that many of the association witnesses called to testify on specific voting certificates had specific awareness of certain voting certificates or in some cases the function, purpose, or import of voting certificates. 6

7 4. The arbitrator further finds that the recall ballot for unit #214 was accompanied by an appropriate voting certificate. Amanda Rodrigez testified that she and her husband each signed the voting certificate on January 7, and that she then gave the form to Sophia Barbaroff who was assisting in the recall effort. This testimony remained undisturbed and unquestioned after cross-examination and the arbitrator finds this testimony to be reliable and trustworthy. 5. The arbitrator for similar reasons finds that voting certificates that accompanied the vote for units #409 and #909 were in fact delivered to the association. Although Ms. Galliani showed some uncertainty in her testimony regarding dates, the arbitrator based on her testimony and the copy of her voting certificate in the file concludes that her voting certificate was timely filed with the association. Mr. Fernandez testified without equivocation that he timely submitted a completed voting certificate. 6. The unit owners for unit #1104 did not testify at the final hearing, and the arbitrator cannot conclude that these individuals completed a voting certificate at the time their vote was served on the board. 7. Give the findings contained herein, the arbitrator finds that voting certificates accompanied all five contested recall ballots except for unit #1104. DONE AND ORDERED this 17th day of February, 2004, at Tallahassee, Leon County, Florida. Karl M. Scheuerman, Special Master Department of Business and 7

8 Professional Regulation Arbitration Section Northwood Centre 1940 North Monroe Street Tallahassee, Florida Copies furnished by fax and U.S. Mail: Yudany Fernandez, Esquire N.W. 67 th Avenue Miami Lakes, Florida David H. Rogel, Esquire Becker & Poliakoff, P.A Blue Lagoon Drive Suite 100 Miami, Florida Sabino Jauregui, Esquire 1140 West 50 th Street Suite 304 Miami, Florida