STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES AND MOBILE HOMES IN RE: PETITION FOR BINDING ARBITRATION HOA ELECTION DISPUTE A. MARK GAMBEE, Petitioner, v. Case No. 2014-02-3548 THE DUNES HOMEOWNERS ASSOCIATION, INC., Respondent. / SUMMARY FINAL ORDER This Summary Final Order is being entered pursuant to Rule 61B-45.030, Florida Administrative Code, which states: At any time after the filing of the answer, and if no disputed issues of material fact exist, the arbitrator shall summarily enter a final order awarding relief if the arbitrator finds that no meritorious defense exists, and that the petition is otherwise appropriate for relief. Statement of the Issue The issue in this case is whether The Dunes Homeowners Association, Inc. s refusal to accept nominations from the floor at its April 9, 2014 annual meeting and election violated Section 720.306(9), Florida Statutes. Relevant Procedural History On June 3, 2014, Petitioner A. Mark Gambee filed a petition for mandatory binding arbitration naming The Dunes Homeowners Association, Inc. (the Association) as Respondent. The petition asks for an Order declaring the April 9, 2014 election null and void and requiring a new election. Page 1 of 6
On June 12, 2014, an Order was entered requiring Petitioner to show proof of having given the Association pre-arbitration notice. On June 19, 2014, Petitioner filed the required proof of notice. On June 27, 2014, an Order Requiring Answer was entered. The petition and Order Requiring Answer were duly served on the Association. On July 28, 2014, the Association filed a Motion to Dismiss Petition. On August 6, 2014, Petitioner filed his opposition to the Association s motion to dismiss. On August 12, 2014, the Association filed a reply to Petitioner s opposition. On August 14, 2014, a Notice of Reassignment and Order denying the Association s motion to dismiss the petition were entered. On August 21, 2014, the Association filed an Answer to the petition. This Order is entered upon consideration of all of the pleadings and documents filed by both parties. Findings of Fact 1. Petitioner owns a parcel in The Dunes (a subdivision located in Indian River County, Florida) and is a member of the Association. The Dunes. 2. The Association is the entity responsible for maintenance and operation of 3. The Association s governing documents contain no procedures for nominating candidates for the board of directors. Article VI, Section B., of the Articles of Incorporation, as amended in 1977, states: (emphasis added.) Directors of the corporation will be elected at the annual meeting of the members in the manner determined by the ByLaws of the corporation. Page 2 of 6
However, the Amended and Restated Bylaws of The Dunes Homeowners Association, Inc., adopted on August 23, 2011, contain no procedures for nominating candidates for the board of directors, either in advance of, or at the annual meeting/election, or via a nomination committee, or by any other method. Conclusions of Law Section 720.306(9)(a), Florida Statutes, 1 states: (emphasis added.) (9) ELECTIONS AND BOARD VACANCIES. (a) Elections of directors must be conducted in accordance with the procedures set forth in the governing documents of the association. All members of the association are eligible to serve on the board of directors, and a member may nominate himself or herself as a candidate for the board at a meeting where the election is to be held; provided, however, that if the election process allows candidates to be nominated in advance of the meeting, the association is not required to allow nominations at the meeting. An election is not required unless more candidates are nominated than vacancies exist. Except as otherwise provided in the governing documents, boards of directors must be elected by a plurality of the votes cast by eligible voters. Any challenge to the election process must be commenced within 60 days after the election results are announced. In this case, the election procedures set forth in the governing documents are silent as to whether candidates may be nominated in advance of the meeting. Furthermore, the Articles of Incorporation state that the election of directors shall take place in the manner determined by the ByLaws, not in the manner determined by the board. The Association argues that because it stated in its first notice of the annual meeting and election 2 that candidates should submit their names and other information in advance of the meeting, 1 Section 720.306(9)(1), Florida Statutes, was amended to its current form in 2013. 2 Neither party has filed a copy of the actual notice, however it is not necessary to know the exact wording of the notice to address this issue. Page 3 of 6
the notice itself constitutes the election process [that] allows candidates to be nominated in advance of the meeting. Therefore, the Association argues, it was not required to accept nominations at the meeting. 3 The arbitrator does not find the Association s argument compelling, as the Articles of Incorporation are clear that the ByLaws must determine the election procedure, not the board. Furthermore, a notice prepared by the board may change from year to year, altering the process and leaving the membership in a state of perpetual uncertainty as to how nominations are to be made. Since the ByLaws are utterly silent as to the nomination process for candidates to the board, they cannot be said to contain a process that allows candidates to be nominated in advance of the annual meeting/election. Therefore, in the instant case, the Association should have accepted nominations that were made at the annual meeting/election and not in advance of it. Requested Relief Petitioner requests that the arbitrator determine that the April 9, 2014 election was void, and require the Association to hold a new election and to accept nominations at the election. However, Petitioner has not alleged that he tried to nominate himself from the floor at the annual meeting and election, or that anyone else tried to nominate him, or that the outcome of the election would have been different had the Association accepted his nomination. When a petitioner has not alleged that a different outcome would have resulted, a request for a new election will be denied. Marott Partnership v. Maracay Ass n Inc., Arb. Case No. 00-0461, Summary Final Order (June 28, 2000); see also Visyak v. Fairway Cove Homeowners Ass n, Inc., Arb. Case No. 2010-02-8255, Summary Final 3 Petitioner s argument that Robert s Rules of Order provides for nominations to be made at meetings is rejected, as Robert s Rules of Order is simply a guideline for decorum at meetings, and supersedes neither the governing documents nor the statute. Page 4 of 6
Order (November 16, 2010)(An election was not so flawed with respect to adherence to the governing statutes and the governing documents as to require a new election.) Furthermore, Petitioner has no standing to assert the rights of other individuals who may have attempted to nominate themselves at the election, but who are not parties to this action. See Miller v. Crescent Lake Club Homeowners Ass n, Inc., Arb. Case No. 2011-03-0323, Summary Final Order (December 20, 2011); and Greenlee v. Oceanside Terrace Condo. Ass n, Inc., Arb. Case No. 95-0497 (May 10, 1996). Based on the pleadings and the documents submitted to the arbitrator, the outcome of the Association s refusal to accept nominations from the floor caused no harm to Petitioner that would require the relief Petitioner has asked for, that being an order determining that the election was void and requiring a new election. However, Petitioner s claim that the Association should have allowed nominations from the floor at the election is meritorious. In the future, the Association shall conduct its annual meetings and elections in accordance with the governing documents, the Florida Statutes, and the Florida Administrative Code. Unless the Association amends its governing documents to specifically include an election procedure that allows nominations to be submitted in advance of its annual meeting and election, nominations from the floor shall be accepted. Based upon the foregoing, it is ORDERED: 1. Petitioner s claim that the election was improperly conducted is found to be meritorious. However, the relief requested by Petitioner, an Order declaring the April 2014 election void and requiring a new election for 2014 is DENIED. Page 5 of 6
2. In the future, the Association shall conduct its annual meetings and elections in accordance with the governing documents, the Florida Statutes, and the Florida Administrative Code. Unless the Association amends its governing documents to specifically include an election procedure that allows nominations to be submitted in advance of its annual meeting/election, nominations from the floor shall be accepted as the sole method of nomination. DONE AND ORDERED this 5 th day of September, 2014, at Tallahassee, Leon County, Florida. Leslie O. Anderson-Adams, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Suite 16 Tallahassee, Florida 32399-1030 Telephone (850) 414-6867 Facsimile (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 and Facsimile to the following person on this 5 th day of September, 2014: Leo W. Desmond, Esq. 5070 Highway A1A, Suite D Vero Beach, FL 32963 Fax: (772) 234-5231 Attorney for Petitioner Stephanie S. Copelow, Esq. COLE, SCOTT & KISSANE, P.A. 1645 Palm Beach Lakes Blvd. 2 nd Floor West Palm Beach, FL 33401 Fax: (561) 683-8977 Attorney for Respondent Leslie O. Anderson-Adams, Arbitrator Page 6 of 6