STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION Nancy Lee DuQuette, Petitioner, v. Case No. 2004-01-7108 Sandlake Courtyards Condominium Association, Inc., Respondent. SUMMARY FINAL ORDER This final order is entered pursuant to Rule 61B-45.030, Florida Administrative Code, which permits the arbitrator to enter a summary final order where there are no disputed issues of material fact. FACTS / A petition for recall arbitration was filed on March 15, 2004, naming Sandlake Courtyards Condominium Association, Inc. as the petitioner and Herbert Hirsch, Harvey Birdman and Louis Birdman as respondents. It is evident from the petition that the association s board of directors, who are subject to the instant recall, did not initiate this proceeding, but, rather, it was initiated by Nancy Lee DuQuette, a unit owner in favor of the recall effort and designed as a replacement board candidate on the recall ballot. Where a board does not certify a recall effort 1
but fails to file a recall petition with the Division, as required by rule 61B-50.105, Florida Administrative Code, individual unit owners in favor of the recall are permitted to file a petition for arbitration under section 718.1255, Florida Statutes. The case style, as corrected above, provides for a proceeding of this nature. According to the petition, the association was served on February 28, 2004, with written recall agreements for the recall of the entire three-member board of directors. There are two hundred twenty-six (226) units in the association; thus, one hundred fourteen (114) votes are required to recall a board member. The petition does not specify how many recall agreements were served on the board; however, less than the 114 required ballots were submitted with the recall petition. The petition further alleges that the board held a meeting on February 28, 2004, and determined not to certify the recall effort. As of the date of this order, the board has not filed a petition for recall arbitration pursuant to rule 61B-50.105, Florida Administrative Code. DISCUSSION In examining the form of the recall agreements used here, it is unquestionable that the agreements fail to substantially comply with certain provisions of the rules governing recall proceedings. Pursuant to rule 61B- 23.0028, Florida Administrative Code: (1) Form of Written Agreement. All written agreements used for the purpose of recalling one or more members of the board of administration shall: 2
*** (b) Provide spaces by the name of each board member sought to be recalled so that the person executing the agreement may indicate whether that individual board member should be recalled or retained. Arbitration cases invalidating recall agreements due to failure to provide recall and retain lines are abundant and clear. See Laguna Club Condominium Association, Inc. v. Unit Owners Voting for Recall, Arb. Case No. 99-1355, Summary Final Order (July 30, 1999) (recall agreement was rejected where the recall form listed the three directors sought to be recalled, but did not have individual retain lines beside the name of each of the directors); Olive Glen Condominium Association, Inc. v. Unit Owners Voting for Recall, Arb. Case No. 02-4985, Final Order Affirming Decision Not to Certify Recall (July 3, 2002) (where the recall agreement failed to list separate retain/recall lines for each board member sought to be recalled, the fate of one director is effectively linked to the fate of the remaining directors and does not apprise unit owners of their choice to recall only one or both of the board members listed; the written recall agreement is rejected). In the instant case, the written recall agreements purportedly seek to recall the entire board. However, the agreements fail to provide separate recall/retain lines for each board member subject to the recall. As such, the written agreements fail to substantially comply with rule 61B-23.0028(1)(b), Florida Administrative Code. Notwithstanding a board s failure to properly file a petition for recall arbitration where a recall effort is not certified, the omission of separate 3
recall/retain lines from a recall ballot is fatal to the recall attempt. Based on this non-compliance, the recall cannot be certified. The petitioner is encouraged to peruse the enclosed materials, including recall procedures and a sample written recall ballot, found on the Division s web site and to search for final orders rendered in other recall proceedings at: http://www.state.fl.us/dbpr/lsc/arbitration. Based on the foregoing, it is ORDERED: The relief requested by the petitioner is hereby DENIED. DONE AND ORDERED this 5 th day of April 2004, at Tallahassee, Leon County, Florida. Melissa Mnookin, Arbitrator Department of Business and Professional Regulation Arbitration Section Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-1029 Certificate of Service I hereby certify that a true and correct copy of the foregoing summary final order has been sent by U.S. Mail to the following persons on this 5 th day of April 2004: Nancy Lee DuQuette 917 Teatro Court Orlando, Florida 32807 Sandlake Courtyards Condominium Association, Inc. c/o Harvey Birdman 4
307 South 21 st Avenue Hollywood, Florida 33020 Melissa Mnookin, Arbitrator 5