STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION DENISE CROWNOVER, Petitioner, v. Case No. 2014-01-2027 SUNBOW BAY CONDOMINIUM ASSOCIATION, INC., Respondent. / SUMMARY FINAL ORDER Relevant Procedural History On March 19, 2014, Denise Crownover filed a petition for arbitration naming Sunbow Bay Condominium Association, Inc. (the Association) as Respondent. On April 18, 2014, the Association filed an Answer. This Order is entered after the arbitrator has considered the pleadings and the documents filed by the parties. Findings of Fact 1. The Association is the legal entity responsible for the maintenance and operation of Sunbow Bay, a Condominium. 2. Petitioner, Denise Crownover, is the owner of a unit in Phase Four of the condominium and is a member of the condominium association. 1
3. The Association consists of five phases as follows: Phase Number One Two Three Four Five Number of Units 20 Units 28 Units 33 Units 17 Units 2 Units 4. Article IV, Section 2, of the Association s By-Laws states: Section 2. Number, Tenure and Qualification. The members of the Association shall, at each annual meeting, determine the number of directors for the following year, which number shall in no event be less than three (3) nor more than fifteen (15); the number of directors so determined shall be elected at the annual meeting of members, the appropriate number of candidates receiving a plurality of the votes cast to be the duly elected directors of the Association; provided that each platted section of Sunbow, a condominium, shall be entitled to elect at least one director to the board. Any vacancy created by expansion of the number of directors shall be filled by election at the next annual meeting of members. (Emphasis supplied). 5. Currently, the Association has seven (7) directors. On January 18, 2014, the Association held its annual election. The results of the election were as follows: Phase Number Candidate Votes One Richard Peck 27 One Dennis Rose 24 Two Tony Hopkins 29 Three Charles Ferguson 28 Three Robert O Biren 27 Three Rita VanDenmark 27 Three Kenneth Saywell 24 Four Denise Crownover 21 Four Thomas Ferring 19 6. The Association seated the seven candidates who received the most votes on the board. Neither Phase Four nor Phase Five has a representative on the board. 2
7. At the January 18, 2014 annual meeting, the members of the Association did not determine the number of directors to be elected at the 2015 annual meeting. Conclusions of Law Rule 61B-45.030, Florida Administrative Code, requires entry of a summary final order when no disputed issues of material fact have been raised by the pleadings. Petitioner alleges that she should have been seated on the board as the unit owner from Phase 4 who received the highest number of votes. Petitioner also alleges that the unit owners should have determined the number of directors to be elected next year. Article IV, Section 2, of the Association s By-Laws clearly provides that each phase of the development is entitled to a representative on the board. Every phase is entitled to a seat but the Bylaws do not require a phase to produce a representative. Therefore, the procedure for calculating the results of the election should not have been simply to determine the candidates with the highest votes. First, the Association should have provided a seat to the candidates with the highest number of votes from each phase. For instance, the candidates receiving the highest number of votes were: from Phase One, Richard Peck; from Phase Two, Tony Hopkins, from Phase Three, Charles Ferguson; and from Phase Four, Denise Crownover. Since there was no candidate from Phase Five, Phase Five will not have a representative on the board. The remaining three seats should be filled by the remaining candidates with the highest number of votes. In this case, Robert O Brien (27) and Rita VanDemark (27) received the next highest number of votes. Both Kenneth Saywell and Dennis Rose received 24 votes. Therefore, a runoff election will be necessary to determine the last seat on the board. 3
Finally, the Bylaws require that the members of the Association determine the number of directors to be elected at the next annual meeting. As the members of the Association did not determine the number of directors to be elected at the 2015 annual meeting, the Association will be required to hold a special meeting of the members for that purpose. The Association shall hold the runoff election and the special meeting at the same time. Based upon the foregoing, it is ORDERED: 1. The relief request by Petitioner is GRANTED. 2. The following unit owners are directors of the Association: Richard Peck, Tony Hopkins, Charles Fergueson, Denise Crownover, Robert O Brien and Rita VanDemark. 3. The Association shall hold a runoff election between Kenneth Seywell and Dennis Rose for the final seat on the board. The runoff election shall comply with Rule 61B-23.0021(10)(c), Florida Administrative Code. The date of this Order shall substitute for the date of the election in the Rule. 1 4. No later than 30 days from this Order, the Association shall hold a special meeting for the members to determine the number of seats on the board of directors for the 2015 election. 1 (c) If two or more candidates for the same position receive the same number of votes, which would result in one or more candidates not serving or serving a lesser period of time, the association shall, unless otherwise provided in the bylaws, conduct a runoff election in accordance with the procedures set forth herein. Within 7 days of the date of the election at which the tie vote occurred, the board shall mail or personally deliver to the voters, a notice of a runoff election. The only candidates eligible for the runoff election to the board position are the runoff candidates who received the tie vote at the previous election. The notice shall inform the voters of the date scheduled for the runoff election to occur, shall include a ballot conforming to the requirements of this rule, and shall include copies of any candidate information sheets previously submitted by those candidates to the association. The runoff election must be held not less than 21 days, nor more than 30 days, after the date of the election at which the tie vote occurred. 4
Florida. DONE AND ORDERED this 7th day of July, 2014, at Tallahassee, Leon County, Terri Leigh Jones, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida 32399-1030 Telephone (850) 414-6867 Fax (850) 487-0870 Trial de novo and Attorney s Fees This decision shall be binding on the parties unless a complaint for trial de novo is filed in accordance with section 718.1255, Florida Statutes. As provided by section 718.1255, Florida Statutes, the prevailing party in this proceeding is entitled to have the other party pay reasonable costs and attorney s fees. Any such request must be filed in accordance with Fla. Admin. Code R. 61B-45.048. 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 7th day of July941, 2014: Cindy A. Hill, Esq. Hill Law Firm, P.A. 458 S. Tamiami Trail Osprey, FL 34229 Fax: 941-244-0548 Attorney for Petitioner Randolph L. Smith, Esq. Najmy Thompson, PL 1401 8 th Avenue West Bradenton, FL 34205 Fax: 941-748-2218 Attorney for Respondent Terri Leigh Jones, Arbitrator 5