STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION FLORIDA ACQUISITIONS FUND II, LLC, Petitioner, v. Case No. 2013-00-4149 PALM POINTE CONDOMINIUM ASSOCIATION, Respondent. / FINAL ORDER Pursuant to notice, the undersigned arbitrator of the Division of Florida Condominiums, Timeshares and Mobile Homes conducted a telephonic final hearing in this case on October 29, 2013. 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 Final Order is entered after consideration of the complete record. Appearances For Petitioners: For Respondent: Lori C. Scott, Esq. VERNIS & BOWLING OF NORTH FLORIDA, P.A. 4309 Salisbury Road Jacksonville, FL 32216 Charles D. Hood, Jr., Esq. Tamara R. Gaines, Esq. SMITH HOOD BIGMAN Post Office Box 15200 Daytona Beach, FL 32115-5200 1
Statement of the Issues The issues presented in this case are: (1) whether Florida Acquisitions Fund II, LLC s (Petitioner) votes were received timely in order to be counted by Palm Pointe Condominium Association (the Association) at its January 14, 2013 annual election; and (2) whether Petitioner was entitled to vote and have those votes count in the Association s January 14, 2013 annual election. Relevant Procedural History On January 28, 2013, Petitioner filed a petition for mandatory non-binding arbitration against the Association concerning a dispute regarding the Association s annual election that transpired on January 14, 2013. The petition contends that Petitioner owns 34 units within the Association. The petition further alleges that Petitioner properly mailed its ballots to the Association for the January 14, 2013 annual election, and the ballots were received timely, but the ballots were not counted by the Association. The sole relief requested by Petitioner was, enforcement of a proper counting of its votes submitted for the January 14, 2013 annual election. On February 6, 2013, an Order Requiring Answer was entered. On February 28, 2013, the Association filed an answer. In its answer, the Association admits that ballots from Petitioner were not counted in the January 14, 2013 annual election. However, the Association contends that it did not receive Petitioner s ballots prior to the election. Furthermore, the Association argues that even if it had received Petitioner s ballots prior to the election, Petitioner was not entitled to vote in the election, because the sale of the 34 units from the Association s developer to Petitioner 2
was completed for the purpose of reacquiring control of the Association s board of directors. On March 4, 2013, the arbitrator entered an Order Requiring Reply. 1 On April 5, 2013, the arbitrator entered an Order Setting Case Management Conference. On April 19, 2013, the arbitrator conducted a case management conference. On April 22, 2013, the arbitrator entered an Order After Case Management Conference, which required the parties to file certain documentation concerning the election. On June 17, 2013, the parties filed the last of the documents responsive to the Order After Case Management Conference. On June 26, 2013, the arbitrator entered a Notice of Final Hearing, setting the final hearing for the date agreed upon by the parties, September 5, 2013. On August 20, 2014, the parties filed a joint motion to continue final hearing. The motion was granted and, on August 28, 2013, the arbitrator entered a Re-Notice of Final Hearing, re-setting the final hearing for the date agreed upon by the parties, October 29, 2013. On October 25, 2013, Petitioner filed a request for a case management conference. The basis of Petitioner s request was that the relief requested in the petition was rapidly approaching mootness due to the Association s annual election scheduled to be held in January, 2014. On October 28, 2013, the arbitrator conducted a case management conference. At the October 28, 2013 case management conference the day before the final hearing, Petitioner expressed concern that the arbitrator could rule that its votes were not received timely in order to be counted for the January 14, 2013 annual election. 1 Petitioner never filed a reply, contrary to this Order. 3
Thus, the issue of whether Petitioner was entitled to vote in the election due to its relationship with the developer would not be reached by the arbitrator in a Final Order. The Association also indicated its desire that this issue be decided by the arbitrator. Accordingly, the arbitrator informed the parties that this was, indeed, a possible outcome. This was especially true given the fact that the sole relief requested by Petitioner was, enforcement of a proper counting of its votes submitted. The petition sought no declaratory relief on the issue of whether Petitioner s alleged relationship with the developer precluded it from voting in the election. On October 29, 2013, the day of the final hearing, Petitioner filed an amended petition. The amended petition continued to maintain that Petitioner properly mailed its ballots to the Association for the January 14, 2013 annual election, and the Association received the ballots timely, but the ballots were not counted by the Association. However, the amended petition contained a new request for declaratory relief on the issue of whether Petitioner s alleged relationship with the developer precluded it from voting in the election. The matter of the amended petition was taken up by the arbitrator prior to the commencement of the final hearing. The arbitrator advised the parties that it was most unusual for an amended petition to be filed on the day of the hearing. However, the arbitrator explained that if the Association did not object to the amendment, it would be allowed because both parties apparently desired a ruling on the issue of whether Petitioner s alleged relationship with the developer precluded it from voting in the election. Nevertheless, the Association objected to the amendment of the petition. Therefore, due to the lack of a stipulation between the parties and the fact that the 4
amended petition was filed on the day of the final hearing, the arbitrator denied Petitioner s motion to amend its petition. In so doing, the arbitrator warned the parties that there was no guarantee that the Final Order would address the issue of whether Petitioner s alleged relationship with the developer precluded it from voting in the election. The final hearing started and concluded on October 29, 2013. The parties were ordered to file proposed recommended orders by November 25, 2013. On November 25, 2013, both parties filed their respective proposed recommended order. On January 15, 2014, the arbitrator entered an Order to Show Cause providing that, as a year had passed since the January 14, 2013 annual election; an intervening election for 2014 might have already taken place or might have been scheduled to occur shortly. This would moot the instant case. Therefore, the arbitrator required Petitioner to show cause why this case should not be dismissed as moot. On January 28, 2014, Petitioner filed a response to the Order to Show Cause stating that the Association had adopted a resolution postponing the 2014 annual election until a date to be determined later within the year in order to allow time for the arbitrator to issue a ruling in the instant case. 2 Petitioner apparently agreed to this postponement. 3 Petitioner s response further stated that both parties desire a ruling on the issue of whether Petitioner s alleged relationship with the developer precluded it from voting in the election. It is unclear how Petitioner can maintain such a position when the Association objected to the amended petition for declaratory relief. 2 The arbitrator is unaware of any legal authority authorizing the Association s action in postponing the annual meeting until an undetermined date, but this issue is not before the arbitrator in the instant case. 3 It is uncertain what right Petitioner had to approve or disapprove of the annual meeting postponement. 5
Furthermore, the arbitrator warned both parties that there was no guarantee that the Final Order would address this issue. This Order is entered after the arbitrator has considered the evidence presented at the final hearing. Findings of Fact 1. Petitioner is the owner of 34 units governed by the Association and the governing documents, including the Declaration of Condominium, Articles of Incorporation and By-laws. 2. Respondent Association is the entity responsible for implementing the governing documents. 3. On November 14, 2012, the Association sent its first notice of the annual meeting and election to be held on January 14, 2013. 4. On December 14, 2012, the Association sent its second notice of the annual meeting and election to be held on January 14, 2013. The second notice advised the unit owners: Ballots may be mailed to the Secretary, Palm Pointe I Condominium Association, Inc., P.O. Box 350988, Palm Coast, FL 32135, or delivered to the Annual Meeting. 5. On December 31, 2012, Petitioner s representative mailed a package containing 34 ballots and related documents to the Association. The package was addressed to the address provided by the Association in the second notice of the annual meeting and election: Secretary, Palm Pointe I Condominium Association, Inc., P.O. Box 350988, Palm Coast, FL 32135. Petitioner sent the package by United States Express Mail, Label #EI766583120US. The date of expected delivery on the United 6
State Postal Service s (USPS) receipt was January 2, 2013. A signature was requested of the recipient. 6. The package was picked up by the Association s representative on January 22, 2013, eight days after the election. 7. At the final hearing, the following individuals gave testimony concerning the receipt of the package containing Petitioner s 34 ballots: Robyn Lento, Fred Annon and James H. Davis, III. Petitioner was unable to present any witnesses on this issue. 8. Robyn Lento testified that she works for the Association s management company. She is responsible for picking up the mail from the Association s post office box. Ms. Lento testified that the only notice she received from the USPS concerning Petitioner s package was on January 22, 2013, when she received a slip marked final notice. She signed for and received the ballot package that same day, January 22, 2013. Ms. Lento also testified that the USPS local postmaster told her that the USPS had screwed up with respect to providing the Association with notice of the ballot package. 9. Fred Annon testified that he is the owner of the Association s management company. Mr. Annon testified that Petitioner s 34 ballots were not counted at the January 14, 2013 annual election because they were not received by the Association on time. 10. James H. Davis, III, testified that he is the local USPS Postmaster for the post office where the ballot package was mailed. Mr. Davis testified that although the Track and Confirm information for Label #EI766583120US (the ballot package) shows that a first notice to pick up was left for the Association on January 2, 2013, he suspects that 7
the notice was either not left in the Association s post office box, or it fell out. Mr. Davis had no explanation for why a second notice was not left for the Association, as should have been done per policy. The Track and Confirm information does not detail a second notice being provided to the Association. Mr. Davis testified to his belief that the only notice that the Association received of the ballot package was the final notice on January 22, 2013, and the package was picked up by the Association s representative that day. 11. Neither the package containing Petitioner s 34 ballots, nor notice of the package were received by the Association prior to the annual meeting and election held on January 14, 2013. Conclusions of Law The Division has jurisdiction over the parties and the subject matter pursuant to Section 718.1255, Florida Statutes. The petition seeks an Order requiring the proper counting of Petitioner s ballots submitted for the annual meeting and election held on January 14, 2013. As to annual elections, Article III, Section 11, of the Association s Bylaws provides, in pertinent part, as follows: Election of Board: The members of the Board of Administration shall be elected by written ballot or voting machine.... Elections shall be decided by a plurality of those votes cast. Furthermore, Section 718.112(2)(d)4.a., Florida Statutes, states, Elections shall be decided by a plurality of ballots cast. Finally, Rule 61B-23.0021(8), Florida Administrative Code, provides: The envelope [containing the ballot] shall either be 8
mailed or hand delivered to the association. Upon receipt by the association, no ballot may be rescinded or changed. (Emphasis supplied.). All of the above authorities require that a unit owner s ballot must be cast in order to be counted by an association in an election for its board of directors. A ballot that is not received cannot be considered to have been cast. Indeed, Rule 61B-23.0021(8) specifically gives full force and effect to a ballot, rendering it unchangeable, only upon receipt of the ballot by the association. In the case at hand, the arbitrator has found that neither the package containing Petitioner s 34 ballots, nor notice of the package were received by the Association prior to the annual meeting and election held on January 14, 2013. Therefore, as the ballots were not received by the Association prior to the election, the ballots were not cast in that election. On the issue of the Association s receipt of the 34 ballots, Petitioner has argued that the mailbox rule compels the arbitrator to conclude that the Association received its ballots timely. The mailbox rule provides a presumption that, mail properly addressed, stamped, and mailed was received by the addressee. Brown v. Giffen Industries, Inc., 281 So. 2d 897 (Fla. 1973). However, the mailbox rule presumption is rebuttable. W.T. Holding, Inc. v. State Agency for Health Care Admin., 682 So. 2d 1224, 1225 (Fla. 4 th DCA 1996). Furthermore, the denial of receipt does not automatically overcome the presumption but instead creates a question of fact which must be resolved by the trial court. Scutieri v. Miller, 584 So. 2d 15, 16 (Fla. 3d DCA 1991). 9
In the instant case, there is no dispute that the package containing the 34 ballots was properly addressed, stamped and mailed to the Association. Therefore, this is sufficient to give rise to the mailbox rule presumption that the ballots were timely received by the Association. Nevertheless, the Association put on the testimony of two witnesses, Robyn Lento and Fred Annon, who stated that the ballots were not received by the Association in time for the January 14, 2013 election. Furthermore, James H. Davis, III, the local USPS Postmaster for the post office where the ballot package was mailed, testified to his belief that the only notice that the Association received of the ballot package was the final notice on January 22, 2013, and the package was picked up by the Association s representative that day. Based on the testimony of these three witnesses, particularly of the Postmaster, whom the arbitrator found to be credible and unbiased, the arbitrator, as the trier of fact, concludes that the Association effectively rebutted the mailbox rule presumption. Based upon the foregoing, the arbitrator concludes that the Association properly did not count Petitioner s 34 ballots in its January 14, 2013 election, as the ballots were not received timely. As a result of this ruling, it is unnecessary for the arbitrator to reach the second issue of whether Petitioner was entitled to vote, and have those votes count, in the 2013 annual election because of Petitioner s alleged relationship with the developer. This issue is not ripe because the votes were not timely received and were, therefore, not rejected for this reason. Accordingly, it is ORDERED: Petitioner s request for relief is DENIED. 10
Florida. DONE AND ORDERED this 14 th day of March, 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 Tel. (850) 414-6867/Fax (850) 487-0870 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 14 th day of March, 2014: Lori C. Scott, Esq. VERNIS & BOWLING OF NORTH FLORIDA, P.A. 4309 Salisbury Road Jacksonville, FL 32216 Attorney for Petitioner Charles D. Hood, Jr., Esq. Tamara R. Gaines, Esq. SMITH HOOD BIGMAN Post Office Box 15200 Daytona Beach, FL 32115-5200 Attorneys for Respondent David R. Slaton, Arbitrator 11