STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES AND MOBILE HOMES IN RE: PETITION FOR BINDING ARBITRATION STERLING FIFTY-SIX CONDOMINIUM III, INC., Petitioner, v. Case No. 2012-04-4242 UNIT OWNERS VOTING FOR RECALL, Respondent. / SUMMARY FINAL ORDER Statement of the Issue The issue presented for determination is whether the written recall agreement allegedly served on the Association s board of directors on October 11, 2012 should have been certified. Procedural History On October 18, 2012, Sterling Fifty-Six Condominium III, 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: Adrian Peana. On October 24, 2012, the arbitrator entered an Order Requiring Answer to Petition for Recall Arbitration. Also on October 24, 2012, the arbitrator ordered that the petition and the Order Requiring Answer be posted where the Association s meeting notices are usually posted, because no person was designated on the recall 1
agreements as Unit Owner Representative. On November 5, 2012, the Association filed an affidavit that the Association posted the petition and Order Requiring Answer on October 31, 2012. On November 11, 2012, the Division served, through certified mail, Evagelia Julie Ganas, the individual the Association believed to be a person who may have left the recall agreement at the door of the President of the Association. Respondent s answer was due on November 16, 2012. On November 27, 2012, the arbitrator ordered the Association to file the original ballots that were allegedly served on the Association and the notice of the October 11, 2012 board meeting. On December 7, 2012, the Association complied with the Order Requiring Filing. As of the date of this Order, no answer or other pleading disputing the allegations contained in the petition for recall arbitration has been filed by, or on behalf of, Respondent. Therefore, the arbitrator concludes that Respondent is not challenging the facts as stated in the petition. Accordingly, a Summary Final Order is appropriate in this case pursuant to Rule 61B-50.119(3), Florida Administrative Code. See Wilton Shores East Condo Ass n Inc. v. Unit Owners Voting for Recall, Arb. Case No. 2011-05-5398, Summary Final Order (January 13, 2012). Findings of Fact 1. The total number of voting interests in the Association is 42. The board of directors consists of five members. To recall a board member, 22 ballots voting in favor of recall are needed. 2. On October 11, 2012, a total of 21 ballots were left at the door of the Association president, Adrian Peana. 2
3. The written recalled agreement sought to recall director, Adrian Peana and all 21 ballots voted to recall her. 4. On October 11, 2012, the board of directors held a meeting at which the board voted not to certify the recall. 5. The Association s reasons for not certifying the recall were: the recall agreement was not served pursuant to Florida Administrative Code, no designation of unit owner s representative, ballots were altered as names of other board members and possible replacement candidates seemed to be redacted, and five ballots were signed by non-owners. 6. An examination of the ballots shows that a substantial number appeared to be altered by being redacted. The original ballots were not submitted to the Association so it is not possible to determine what was under the redacted parts of the ballots. 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. A Summary Final Order is appropriate in this case pursuant to Rule 61B-50.119(3), Florida Administrative Code. Section 718.112(2)(j)2., Florida Statutes, states: The board of administration shall duly notice and hold a meeting of the board within 5 full business days after receipt of the agreement in writing. (Emphasis supplied). Section 718.112(2)(c)1, Florida Statutes further states: Adequate notice of all board meetings, which must specifically identify all agenda items, must be posted conspicuously on the condominium 3
property at least 48 continuous hours before the meeting except in an emergency. If the recall agreement was properly served on October 11, 2012, the Association could not have properly noticed the meeting held on the same day. 1 In most cases, failure of the association to comply with the meeting requirements of Section 718.112(2)(j)2., Florida Statutes, results in certification of the recall. Sunrise Towne Preferred Condo. Ass n, Inc. v. Unit Owners Voting for Recall, Arb. Case 01-2517, Final Order On Recall (April 12, 2001). The only exception is where the recall agreement is void at the outset because it is fatally flawed in the form of the agreement or where, on its face, it is clear that the agreement has not been approved by a majority of the voting interests. Id. Arbitration cases hold recalls void ab initio where 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 Condominium Assoc., Inc., Arb. Case No. 2006-01-0911 (March 7, 2006); Carlton Place Condominium Association, Inc. v. Unit Owners Voting for Recall, Arb. Case No. 2003-06-9241, Summary Final Order (August 25, 2003). In this case, the total number of votes in favor of recall is exactly 50% of the number of voting interests in the Association. The issue, then, is whether the recall effort was void at the outset for failing to obtain a majority of the voting interests. The clear meaning of the word majority is a number more than half of the total. 1 Due to the final result of this order, it is not necessary to determine whether the recall agreement was properly served on the Association. 4
Accordingly, the recall fails for a lack of a majority. 2 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. Based on the foregoing, it is ORDERED: The Association s decision not to certify the recall is AFFIRMED. DONE AND ORDERED this 13th day of December, 2012, at Tallahassee, Leon County, Florida. Terri Leigh Jones, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida 32399-1029 Telephone (850) 414-6867 Facsimile (850) 487-0870 Certificate of Service I hereby certify that a copy of the foregoing summary final order has been sent by U.S. mail to the following persons on this 13th day of December, 2012: Ian C. Dolan, Esq. P.O. Box 350275 Ft. Lauderdale, FL 33335 Attorney for Petitioner Evagelia Julie Ganas 4100 N. 58 th Ave., Unit 312 Hollywood, FL 33021 Terri Leigh Jones 2 It also appears that the form of agreement is fatally flawed because of the alterations made by the redactions. 5