STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES AND MOBILE HOMES IN RE: PETITION FOR RECALL ARBITRATION IMPERIAL COURT CONDOMINIUM APARTMENTS II ASSOCIATION, INC., Petitioner, v. Case No. 2014-02-2686 UNIT OWNERS VOTING FOR RECALL, Respondent. / Summary Final Order Statement of the Issue The issue in this case is whether Imperial Court Condominium Apartments II Association, Inc. (Association) properly rejected the recall by written agreement of two members of a three member board. Procedural History On May 28, 2014, the Association filed a recall arbitration petition. On May 29, 2014, the arbitrator entered an Order Requiring Answer to Petition for Recall Arbitration. A unit owner representative was not designated in the petition for arbitration, and none appeared on any of the recall ballots filed. Accordingly, the Association was directed, in an Order Requiring Posting dated May 29, 2014, to post the Order Requiring Answer, the recall rules of procedure, and a copy of the Petition for Recall Arbitration, along with its attachments, in a conspicuous place where meeting notices are usually posted. On June 19, 2014, the Association filed proof of compliance with the Order Requiring 1
Posting. On June 20, 2014, Robert P. Warner filed an answer on behalf of Respondent as Unit Owner Representative. 1 Findings of Fact 1. Imperial Court Condominium Apartments II Association, Inc. is the legal entity responsible for the operation of Imperial Court Condominium Apartments II. 2. The total number of voting interests of the Association is 18; therefore, 10 votes in favor of recall are necessary to recall a board member. 3. The date of the next regularly-scheduled election for the seats of the board members subject to the recall is March 3, 2015. 4. On May 17, 2014, the Association received a written recall agreement. The written recall agreement contained 10 purported recall ballots cast against board members Frank Belcamino and Bill Gancarczyk. The proposed replacement board members listed on the recall ballot were: Colleen Sweeney and Alfred Uva. 5. A unit owner representative was not designated in the petition for arbitration, and none appeared on any of the recall ballots filed. However, Robert P. Warner has filed an answer on behalf of Respondent as Unit Owner Representative. 6. On May 21, 2014, the Association s board of directors held a meeting to consider the recall. 7. Of the 10 purported recall ballots, the Association accepted 7 as valid. 8. According to the minutes of the meeting, one of the reasons the board determined not to certify the recall was that the ballot for Unit D-13 was not signed by the proper person. Unit D-13 is owned by the Ernest F. and Virginia C. Ross Living 1 The petition states that Mr. Warner mailed the recall ballots to the Association. He was therefore provided with a courtesy copy of the Order Requiring Answer to Petition for Recall Arbitration. 2
Trust. Margaret McCullough is the trustee, but the recall ballot was not signed by her. Instead, it was signed by a person identified as Michael C. Ross. 9. The recall meeting minutes identify reasons for rejecting two other specific ballots. However, given that the matter concerning the ballot for Unit D-13 is dispositive of this case, the arbitrator will not address these other reasons in this final order. Conclusions of Law The arbitrator has jurisdiction of the parties and the subject matter of this dispute pursuant to Sections 718.112(2)(j) and 718.1255, Florida Statutes. This Summary Final Order is entered after consideration of the pleadings and pursuant to Rule 61B-50.119, Florida Administrative Code. As indicated above, 10 votes in favor of recall are necessary to recall a board member. Respondent s written recall effort served upon the Association consisted of 10 purported recall ballots cast against board members Frank Belcamino and Bill Gancarczyk. Therefore, if one of the recall ballots was properly rejected by the Association, the recall will fail for a lack of majority. According to the minutes of the recall meeting, one of the reasons the board determined not to certify the recall was that the ballot for Unit D-13 was not signed by the proper person. Unit D-13 is owned by the Ernest F. and Virginia C. Ross Living Trust. Margaret McCullough is the trustee, but the recall ballot was not signed by her. Instead, it was signed by Michael C. Ross. A recall ballot for a unit that is owned by a trust must be signed by the trustee or another person authorized to vote on behalf of the trust. West Garden Village Condominium Association, Inc. v. Unit Owners Voting for Recall, Arb. Case No. 2006-02-2054, Amended Final Order (June 28, 2006). 3
In the answer, Respondent does not dispute the Association s allegation that the ballot for Unit D-13 was not signed by the proper person. Rather, Respondent attempts in the answer to cure the legal infirmity in the ballot for Unit D-13 by seeking to substitute an amended recall ballot, which was signed by Margaret McCullough on May 30, 2014. Ms. McCullough therefore signed the recall ballot after it was served on the Association on May 17, 2014. Accordingly, the arbitrator concludes that at the recall meeting on May 21, 2014, the Association properly rejected the recall ballot for Unit D- 13, because it was not signed by the proper person. Thus, there are, at most, only 9 valid recall ballots cast against the two board members subject to recall. Accordingly, the recall fails for a lack of a majority. Because of this result, the arbitrator need not consider, and neither accepts nor rejects, the propriety of any of the other recall ballot rejections. The board s decision not to certify the recall will be affirmed due to a failure to obtain a majority vote to recall any board member. Florida. Based on the foregoing, it is ORDERED: The Association s decision not to certify the recall is AFFIRMED. DONE AND ORDERED this 9 th day of July, 2014, at Tallahassee, Leon County, David R. Slaton, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida 32399-1030 Telephone (850) 414-6867 Facsimile (850) 487-0870 4
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 9 th day of July, 2014: Marielle Westerman, Esq. Westerman Zetrouer, P.A. 146 2 nd Street N. Ste. 100 St. Petersburg, FL 33701 Attorney for Petitioner Robert P. Warner 1433 S. Belcher Road, D-10 Clearwater, FL 33764 Unit Owner Representative David R. Slaton, Arbitrator 5