STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES AND MOBILE HOMES IN RE: PETITION FOR BINDING ARBITRATION - HOA CAMDEN WOODS HOMEOWNERS ASSOCIATION, INC., Petitioner, v. Case No. 2016-04-2672 HOMEOWNERS VOTING FOR RECALL, Respondent. / SUMMARY FINAL ORDER Statement of the Issue The issue in this case is whether Camden Woods Homeowners Association, Inc. (Association) properly rejected the attempted recall by written agreement of all three members of the board of directors. Relevant Procedural History On September 12, 2016, the Association filed a petition for a recall within a homeowners association. On September 26, 2016, Respondent filed an answer. On October 14, 2016, the Association filed a reply. Findings of Fact 1. Camden Woods Homeowners Association, Inc., is the legal entity responsible for the operation of the Camden Woods community. The Board of Directors (Board) of the Association is comprised of three members. Page 1 of 6
2. The total number of voting interests in the Association is 115. To recall a board member, 58 votes in favor of recall are needed. 3. On August 29, 2016, 62 written recall agreements were served on the Association seeking to recall all three directors. 4. The directors sought to be recalled and the corresponding number of ballots voting to recall each is: Terry Jolly Henry 61 Lanette Stevens 60 John Jenkins 58 5. The written recall agreement ballots served on the board utilized the standard form accepted by the Division. 6. The replacement candidates receiving the most votes are Al Hunt, Charlene Molina and Julie McDaniel. 7. On September 6, 2016, the Board held a meeting to consider the recall. At the meeting the board voted not to certify the recall. 8. The Association s minutes regarding the recall attached to the petition are three pages long and purport to accurately reflect the actions taken at the meeting. In the minutes, Ms. Jolly Henry and Ms. Stevens identified and explained ten alleged rescissions received before the service of the recall. 9. Respondent filed a video recording of the meeting which shows no such discussion took place. In the first three minutes of the video, Ms. Jolly Henry stated she had received rescissions and called for a vote on the recall. The Board voted not to certify the recall. The remaining time on the video was the board squabbling with audience members. Page 2 of 6
10. The Association admits that Ms. Jolly Henry did not explain and list the rescissions, but states she was unable to do so because of the interruptions from the audience. However, the video clearly shows that the disruptions happened after the vote had occurred, and were during the question and answer part of the meeting. 11. The Association states the video should be stricken because the person video recording the meeting did not give notice to the board 24 hours in advance as required by the Association s rules. Conclusions of Law The arbitrator has jurisdiction of the parties and the subject matter of this dispute pursuant to Sections 720.303(10) and 718.1255, Florida Statutes. A Summary Final Order is appropriate in this case pursuant to Rule 61B- 80.114(2), Florida Administrative Code, which provides that at any time after the filing of the petition, if the parties do not dispute important facts in the case, the arbitrator shall summarily enter a final order. Fraudulent Minutes of Meeting Not Certifying Recall The Rule 61B-81.003(4)(f), Florida Administrative Code, provides, (4) Board Meeting Minutes. The minutes of the board meeting at which the board determines whether to certify the recall... shall record:... (f) If the recall was not certified, the specific reasons it was not certified. Further, in pertinent part, Rule 61B-80.102(3)(h), Florida Administrative Code, provides, (3)... Each petition shall contain: (h) Each specific basis upon which the board based its determination not to certify the recall, including the parcel number and specific defect to which each challenge applies. Any specific reason upon which the board bases its decision not to certify the recall that is stated in the petition for Page 3 of 6
recall arbitration, but absent from the board meeting minutes or attachments thereto, shall be ineffective and shall not be considered by the arbitrator. The Association states the video should be stricken because the person who videotaped the meeting did not give notice to the board 24 hours before the meeting in violation of the Association s rules. However, the Association does not cite any authority for its argument. The video clearly shows that the attached minutes fraudulently claimed discussions and explanations occurred when they did not. Therefore, the arbitrator must strike the attached minutes from the petition. The petition rejects numerous specifically-identified ballots for specific reasons. Because the minutes of the board meeting have been stricken, there are no minutes that reject any specific ballot or provide the specific reason for the rejection of a specific ballot. Therefore, pursuant to Rule 61B-80.102(3)(h), because none of the specific reasons stated in the petition for rejecting specific ballots is stated in the minutes, all such reasons stated in the petition are ineffective and shall not be considered. When no reasons are provided in the minutes for the rejection of ballots or there are no minutes of the meeting, the arbitrator may only look to the facial validity of the ballots in deciding whether to accept or reject them. See Homeowners of Sherwood Forrest, Inc. v. Homeowners Voting for Recall, Arb. Case No. 2009-03-6928, Summary Final Order (August 31, 2009) (quoting Villas of West Miami Condo. Ass n v. Unit Owners Voting for Recall, Arb. Case No. 2006-00-8498, Summary Final Order (March 17, 2006)(citation omitted)). Inspection of the recall ballots in this case reveals that they are facially valid and that there are a sufficient number of votes in favor of the recall of Terry Jolly Henry, Lanette Stevens and John Jenkins. Page 4 of 6
Based upon the foregoing, it is ORDERED: 1. The minutes of the meetings attached to the petition are STRICKEN. 2. The recall of board members Terry Jolly Henry, Lanette Stevens and John Jenkins is hereby CERTIFIED and they are REMOVED as directors effective as of the date of the entry of this order. 3. As a majority of the board has been recalled, Al Hunt, Charlene Molina and Julie McDaniel shall take seats on the board effective immediately for the remainder of the term of the seat each fills. 4. Within five (5) full business days from the date of this order, Terry Jolly Henry, Lanette Stevens and John Jenkins shall deliver any and all records of the Association in their possession to the new board of directors. DONE AND ORDERED this 4th day of November, 2016, at Tallahassee, Leon County, Florida. Terri Leigh Jones, Arbitrator Department of Business and Professional Regulation Arbitration Section 2601 Blair Stone Road Tallahassee, Florida 32399-1030 Section Telephone: 850-414-6867 Section Facsimile: 850-487-0870 Page 5 of 6
Certificate of Service I hereby certify that a true and correct copy of the foregoing final order has been sent by U.S. Mail and by facsimile to the following persons on this 4th day of November, 2016: Nicholas F. Lang, Esq. Lang & Raffa, P.A. P.O. Box 7990 St. Petersburg, FL 33734 Fax: 727-528-2900 Attorney for Petitioner Shawn G. Brown, Esq. Frazier & Brown Law, PLLC 2111 West Swann Avenue Suite 204 Tampa, FL 33606 Fax: 813-603-8601 Attorney for Respondent Terri Leigh Jones, Arbitrator Page 6 of 6