STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION BONITA GOLF VIEW TOWNVILLAS STAGE II CONDOMINIUM ASSOCIATION, INC., Petitioner, v. Case No. 2015-02-7777 UNIT OWNERS VOTING RECALL, Respondent. / FINAL ORDER Pursuant to notice, the undersigned arbitrator of the Division of Florida Condominiums, Timeshares and Mobile Homes conducted a telephonic evidentiary hearing in this case on September 10, 2015. During the hearing, the parties presented the testimony of witnesses, entered documents into evidence and cross-examined witnesses. The parties have filed post-hearing memoranda. This order is entered after consideration of the complete record. Appearances For Petitioner: For Respondent: Reinaldo Castellanos, Esq. Reinaldo Castellanos, P.A. 9960 Bird Road Miami, FL 33165 Daniel R. Moghani, Esq. Cuevas & Associates, P.A. 7480 SW 40 th Street Suite 600 Miami, FL 33155 Page 1 of 11
Relevant Procedural History On June 17, 2015, Bonita Golf View Townvillas Stage II Condominium Association, Inc. (the Association) filed a petition for recall arbitration with the Division of Florida Condominiums, Timeshares and Mobile Homes. The petition seeks to affirm the decision of the Association s board of directors not to certify the recall of the following board member, Lourdes Zapata. On June 24, 2015, the arbitrator entered an order requiring answer to petition for recall arbitration. On July 31, 2015, Respondent filed an answer. On September 10, 2015, a final hearing was held. On September 21, 2015, the parties filed briefs. Findings of Fact 1. The total number of voting interests in the Association is 217. The board of directors consists of three members. To recall a board member, 109 valid ballots voting in favor of recall are needed. 2. On June 4, 2015, the Association received, by certified mail, a written recall agreement containing 138 written ballots. The directors sought to be recalled and the corresponding number of ballots as to each are: Armando Lobo 1 138 Lourdes Zapata 138 3. The written recall ballots served on the board utilized the standard form available from the Division. recall. 4. On June 10, 2015, the board of directors held a meeting to consider the 1 Mr. Lobo was no longer a director on June 4, 2015. Page 2 of 11
5. The Association alleges that at the time of the meeting, the board members were Lourdes Zapata, Sasha Campbell and Beatriz Andres. The Association alleges that Lourdes Zapata and Beatriz Andres voted not to certify the recall and Sasha Campbell voted to certify the recall. Respondent alleges that Beatriz Andres was not a member of the board. On September 10, 2015, a hearing was held on this issue of dispute. Sasha Campbell was the only witness. 6. On December 8, 2014, the Association announced that only three candidates filed notices of intent to be a candidate for the December 22, 2014 election. Therefore, the election was unnecessary and the new board s members were Armando Lobo, Lourdes Zapata and Sasha Campbell. 7. Armando Loba and Lourdes Zapata were on the board having been elected in 2013. Ms. Campbell stated that after living at the condominium since 2001, she was unhappy with the direction of the Association so she decided to run in 2014 for the first time. 8. Ms. Campbell stated she was never noticed on an organizational meeting. Ms. Campbell stated that she was only received a text message regarding a meeting in April for a meeting she could not attend. The first meeting for which she was officially notified and attended was the recall meeting on June 10, 2015. Ms. Campbell sent emails and letters to the management company requesting information on what she was supposed to do as a new member which she alleged were unanswered by the Association or the management company. 9. On February 24, 2015, the management company, after receiving an inquiry from the Compliance Bureau of the Division, sent a notice to Armando Lobo that Page 3 of 11
it had verified that he was more than 90 days delinquent in payment of his monetary obligations to the Association. The letter recited Section 718.112(2)(n), Florida Statutes, which provides: A director or officer more than 90 days delinquent in the payment of any monetary obligation due the association shall be deemed to have been abandoned the office, creating a vacancy in the office to be filled according to law. 10. In a letter dated March 5, 2015 to the Association and property manager, Armando Lobo stated the following: Be advised that I have decided to resign from my position within [sic] the Board of Bonita Golfview Townvillas Stage II Condominium Association. My resignation will be effective April 30, 2015. I am requesting a Board of Directors meeting to discuss the filling of the vacancy. I am calling a meeting on March 17, 2015 at 5:30 at Florida s Property Management office. 11. On March 17, 2015 the Association alleges that it held a meeting. Sasha Campbell denied that there was notice for this meeting. The meeting was allegedly attended by Armando Loba and Lourdes Zapata. The minutes of this meeting state in pertinent part: Pablo Perez explains [to] the Board of Directors [that] Armando Lobo has been delinquent on his assessments 90 days or more. After Management Company notifies [sic] Mr. Lobo of his delinquent status, he made payment and became current. Motion was made by Lourdes and approved by Armando Lobos to ratify all decisions approved by Armando Lobo and to ratify his position as the treasurer of the Association.... Armando Lobo is resigning from his position within the Board effective April 30 th, 2015. Armando Lobo states that due to lack of communication with Sasha Campbell, he makes a motion to call an election to fill the vacancy that will be on the Board after his resignation of April 30 th 2015. Motion was seconded and approved by Lourdes Zapata. A notification will be send [sic] to the management company to send the election notices. Page 4 of 11
12. The Association alleges that its management company sent a Notice of Annual Meeting and Election of Directors on April 7, 2015. The notice states that the annual meeting and election would be held on June 8, 2015. The notice does not indicate that this election was intended to only fill one position on the board. Sasha Campbell denied that she received a copy of the April 7, 2015 notice. 13. The Association alleges that Beatriz Andres was the only member to submit a notice of intent by the deadline of April 29, 2015, and therefore, she was elected to the board without need of an election. 14. The arbitrator does not find it credible that Ms. Campbell, after not being active with Association matters since moving into the condominium in 2001, decided to run in 2014 because she was unhappy with the direction of the Association, and then did nothing after becoming a member of the board. The arbitrator finds that Ms. Campbell was credible in her testimony regarding lack of notices. The other two members and/or the management company actively prevented her from participating in meetings by failing to notify her of the meetings if they even took place at all. 15. The arbitrator does not find it credible that if a special election was called, while a vigorous recall effort was under way, no other unit owner would have submitted a notice of intent to be a candidate. The arbitrator also does not find it credible that if the unit owners were notified of the election of Ms. Andres, they would continue their efforts to recall Mr. Lobo. 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. Page 5 of 11
Was Beatriz Andres a director? The arbitrator finds that any of the meetings or purported election did not happened. 2 But even if they did, Beatriz Andres was not a legitimate director at the recall meeting. Section 718.112(2)(n), Florida statutes states: A director or officer more than 90 days delinquent in the payment of any monetary obligation due the association shall be deemed to have abandoned the office, creating a vacancy in the office to be filled according to law. Section 718.112(2)(d)(9), Florida Statutes states: Unless otherwise provided in the bylaws, any vacancy occurring on the board before the expiration of a term may be filled by the affirmative vote of the majority of the remaining directors, even if the remaining directors constitute less than a quorum, or by the sole remaining director. In the alternative, a board may hold an election to fill the vacancy, in which case the election procedures must conform to sub-subparagraph 4.a. unless the association governs 10 units or fewer and has opted out of the statutory election process, in which case the bylaws of the association control. Unless otherwise provided in the bylaws, a board member appointed or elected under this section shall fill the vacancy for the unexpired term of the seat being filled. Filling vacancies created by recall is governed by paragraph (j) and rules adopted by the division. Article 5, Section 12(b) of the Association Bylaws states: If the vacancy is for a Director who has been elected by Unit Owners other than the Developer, the vacancy shall be filled by a majority vote of those Directors who have been elected by Unit Owners to other than that Developer. Any such Director shall serve until the next regularly scheduled election for any position. On February 24, 2015, the Association s management company verified that Armando Lobo was more than 90 days delinquent in a monetary obligation to the Association. At that point it was deemed that he had abandoned his office and created 2 The Association alleges that Respondent should not be able to challenge the election because it has been more than 60 days. However Section 718.112(2)(d)4.c., Florida Statutes, requires that an election may not be challenged more than 60 days after the results are announced. The Association has provided no proof that the alleged election results were announced to the members of the Association. Also, no election occurred. Page 6 of 11
a vacancy on the board. It does not matter that he paid his obligation after he was notified. The statute is clear, Armando Lobo was no longer a director and there was one vacancy on the board. Since he was not a director, he could not call the March 17, 2015 meeting. In order to fill the vacancy Mr. Lobo created, a majority of the remaining board had to vote to fill the vacancy. Therefore, Lourdes Zapata could not re-appoint Armando Lobo to the board without the consent of Sasha Campbell. Additionally, Lourdes Zapata could not call an election for his vacant seat without the consent of Sasha Campbell. Therefore, Beatriz Andres was not a director at the recall meeting. The recall meeting of June 10, 2015 Since the board at the time of the recall meeting only consisted of Lourdes Zapata and Sasha Campbell, the vote was one for and one against certifying the recall. The tie vote that occurred at the meeting of June 10, 2015, resulted in no action being taken by the board because the motion not to certify the recall failed. Lago Mar Villas II Homeowners' Ass'n v. Homeowners Voting for Recall, Arb. Case No. 2012-01-9355, Summary Final Order (August 14, 2012); Waterway Village Ass n, Inc. v. Unit Owners Voting Recall, Arb. Case No. 2010-05-9519, Order Requiring Respondent to Show Cause (December 16, 2010). Rule 61B-23.0028(4)(d), 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:... (d) If the recall was not certified, the specific reasons it was not certified. Further, in pertinent part, Rule 61B-50.105(5)(h), Florida Administrative Code, Page 7 of 11
provides, (5)... Each petition shall contain: (h) Each specific basis upon which the board based its determination not to certify the recall, including the unit 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 recall arbitration, but absent from the board meeting minutes or attachments thereto, shall be ineffective and shall not be considered by the arbitrator. (emphasis supplied). The minutes of the board meeting do not reject any specific ballot or provide the specific reason for the rejection of a specific ballot. The reasons stated in the minutes on the invalidity of individual ballots may not be considered equivalent to the adoption by the board, because the majority of the board did not vote to support them. Lago Mar Villas, supra. Therefore, pursuant to Rule 61B-50.105(5)(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. See Town Park Plaza North Condo., Inc. v. Unit Owners Voting for Recall, Arb. Case No. 2005-03-4119, Summary Final Order on Petition for Recall Arbitration (July 25, 2005) (minutes of board meeting must be specific, and reason for rejecting ballot stated in petition not found in minutes may not be considered); Pendleton Club Ass n, Inc. v. Unit Owners Voting for Recall, Arb. Case No. 01-3686, Summary Final Order (September 28, 2001) (board s general conclusory allegations that recall was illegal or otherwise invalid not sufficient). Are the Ballots Facially Valid? When no reasons are provided in the minutes for the rejection of ballots, the Page 8 of 11
arbitrator may only look to the facial validity of the ballots in deciding whether to accept or reject them. Villas of West Miami Condo. Ass n, Inc. v. Unit Owners Voting for Recall, Arb. Case No. 2006-00-8498, Summary Final Order (March 17, 2006)(citation omitted). Arbitration cases hold recalls void ab initio where the ballot forms conflict with Rule 61B-23.0028, Florida Administrative Code, or where the recall effort did not obtain enough recall votes to represent a majority of the voting interests. Dieppa v. Lisette Condo. Ass n., Inc., Arb. Case No. 2006-01-0911 Summary Final Order (March 7, 2006); Carlton Place Condo. Ass n, Inc. v. Unit Owners Voting for Recall, Arb. Case No. 2003-06-9241, Summary Final Order (August 25, 2003). The Association alleges the ballots were pre-marked, however the arbitrator may not consider extrinsic evidence to determine that fact. Inspection of the recall ballots in this case reveals they are facially valid and that there are a sufficient number of votes in favor of the recall to remove Lourdes Zapata from the board. Minority of the Board Recalled This board consists of three directors, Lourdes Zapata, Sasha Campbell and a vacant seat. Rule 61B-23.0028(3)(a)2., Florida Administrative Code, provides that if less than a majority of the existing board is recalled in a certified recall, the vacancy or vacancies on the board may be filled by the affirmative vote of the remaining board members or by an election. As only one member of a three-person board has been recalled, the remaining director, Sasha Campbell may appoint a member to fill the vacancy or call for an election. The other vacancy shall be filled pursuant Section 718.112(2)(d)(9), Florida Statutes. Based on the foregoing, it is ORDERED: Page 9 of 11
1. The recall of board member Lourdes Zapata is hereby CERTIFIED, and she is REMOVED as a director effective as of the date of the mailing of this Order. 2. As less than a majority has been recalled, the vacancy created by the recall shall be filled pursuant to Rule 61B-23.0028(3)(a)2., Florida Administrative Code. No recalled board member shall be appointed by the board to fill any vacancy on the board. 3. Within five full business days from the effective date of this recall, Lourdes Zapata and Beatriz Andres shall deliver to the board any and all records of the Association in their possession. DONE AND ORDERED this 13 th day of October, 2015, at Tallahassee, Leon County, Florida. Terri Leigh Jones, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida 32399-1030 Phone (850) 414-6867/ Fax: (850) 487-0870 Page 10 of 11
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 facsimile to the following persons on this 13th day of October, 2015: Hector Martinez, Esq. FM Law Group 14100 Palmetto Frontage Road Suite 390 Miami Lakes, FL 33016 Fax: 305-827-2273 Attorney for the Association Reinaldo Castellanos, Esq. Reinaldo Castellanos, P.A. 9960 Bird Road Miami, FL 33165 Fax: 305-223-8722 Attorney for the Association Daniel R. Moghani, Esq. Cuevas & Associates, P.A. 7480 SW 40 th Street Suite 600 Miami, FL 33155 Fax 305-448-7300 Attorney for Respondent Terri Leigh Jones, Arbitrator Page 11 of 11