STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES, AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION BELLAVISTA GARDENS CONDOMINIUM ASSOCIATION, INC., Petitioner, v. Case No. 2012-04-5509 UNIT OWNERS VOTING FOR RECALL, Respondent. / NOTICE OF COMMUNICATION AND SUMMARY FINAL ORDER Notice of Communication On January 28, 2013, Victor Hernandez filed a letter to the arbitrator with numerous commentaries, photographs, emails and photocopies of various forms. [E]very pleading or other paper filed in the proceedings shall also be served on each party, and all pleadings and motions shall contain a certificate of service attesting that copies have been sent. Rule 61B-45.010(1) and (6), Florida Administrative Code. The purpose of the rule is to ensure that no ex parte communications are received by the arbitrator and that each party has a complete record of all documents filed in the case. Of course, it also is necessary to allow the parties to respond to motions or other pleadings in a timely fashion. Every document filed must contain a certificate of service, stating that a copy has been provided to the opposing parties and the date and method by which it was provided. Because it does not appear that these 1
documents were provided to the opposing party, a copy of the documents is attached to this notice. Rule 61B-50.107(1)-(3), Florida Administrative Code, provides as follows: (1) Parties in any proceeding conducted in accordance with Section 718.112(2)(j) or 719.106(1)(f), Florida Statutes, are petitioners or respondents. (2) The petitioner shall be the board of administration of an association that files a petition for binding arbitration of a recall of one or more members of the board. (3) The respondent shall be the group of members of an association who voted at a meeting, or who executed a written agreement, to recall one or more members of the board. In the case at hand, the Petitioner in the arbitration proceeding is the Association, as represented by Javier Guadayol, Esquire. The Respondent, the unit owners voting for recall, are represented by Guillermo M. Mancebo, Esquire. While Mr. Hernandez is one of the individuals who is the subject of the recall, Mr. Hernandez is not a party to this proceeding. Accordingly, the January 28, 2013 filing by Mr. Hernandez is not relevant to this proceeding. SUMMARY FINAL ORDER Statement of Issue The issue presented for determination by the arbitrator is whether the written recall agreement served on October 16, 2012, on the Association s board of directors should have been certified. matter. Findings of Fact 1. On October 30, 2012, the Association filed a recall arbitration petition. 2. The unit owners voting in favor of the recall are the Respondent in this 2
3. There are 64 voting interests in the association. 4. The Association is the owner of unit 121. 5. The total number of seats on the board is 3. 6. On October 16, 2012, the Association was served with a written recall agreement consisting of thirty-four (34) ballots seeking the recall of the following members of its board of directors: Victor Hernandez, Jose Anton and Noel Carrion. 7. The ballots listed the following members as replacement candidates: Felix Nazco (32), Erelido M. Penia (32), Heriberto Dominguez (21), Olga Ortiz (19) and Natasha Ortiz (2). 8. On October 23, 2013, the Board held a meeting and voted not to certify the recall. The board rejected the written agreement for the following reasons: Unit 114 and unit 206 were not signed by owners and six (6) unidentified unit owners were delinquent in their payments of association fees. 9. On November 1, 2012, an Order Allowing Answer was entered. 10. On November 13, 2012, letters from Lida Labrada and Verena Cardosa were filed. 11. On November 20, 2012, a Notice of Communication was entered. 12. On December 21, 2012, a Notice of Case Management Conference was entered. 13. On January 16, 2013, an Order after Case Management Conference was entered. 14. On January 18, 2013, the Association filed a Response to Order after Case Management Conference dated January 16, 2013. 3
15. The Association did not conduct a properly noticed meeting to suspend the voting rights of unit owners allegedly more than ninety (90) days delinquent in the payment of Association fees prior to the service of the recall. 16. The Association has not enforced of Section 2, paragraph c of the Bylaws, relating to voting certificates, in prior Association voting events. 17. It is undisputed by the parties that the ballots for units 114 and 206 were signed by non-owners. 1 Conclusions of Law The undersigned has jurisdiction over the parties and subject matter of this dispute, pursuant to sections 718.112(2)(j)3. and 718.1255, Florida Statutes. In accordance with section 718.112(2)(j)3, Florida Statutes, the unit owners voting in favor of the recall are the respondent in this matter. A Summary Final Order is appropriate in this case pursuant to Rule 61B-50.119, Florida Administrative Code. Association-owned Unit The Association asserts that there are 64 voting interests in the association. However, the arbitrator takes official notice that, pursuant to the Miami-Dade Property Appraiser s website, the Association is the owner of unit 121 and the Certificate of Sale of the unit to the Association was executed on May 21, 2012, and recorded on June 6, 2012. Section 718.112(2)(b)(2), Florida Statutes, states, in pertinent part, as follows: No voting interest or consent right allocated to a unit owned by the association shall be exercised or considered for any purpose, whether for a quorum, an election, or otherwise. 1 The Association alleged in paragraph 10 of the petition that the ballots for units 114 and 206 were signed by non-owners. Respondent s Answer does not address or refute paragraph 10 of the petition. 4
Accordingly, the Association has 63 voting interests, and therefore, the number of votes required to recall a member or members is 32. Suspension of Voting Rights In the minutes of the meeting to consider the written recall agreement, the Association rejected the recall ballots of six (6) unidentified owners. 2 According to the Association, the voting rights were suspended at some unidentified prior meeting of the board for which the Association does not possess minutes, and while the Association alleges it notified the unit owners in writing, the Association does not possess any copies of any of the notice of suspension of voting rights provided to the unit owners. On the issue of voting rights suspensions for delinquency in the payment of monetary obligations, Section 718.303, Florida Statutes, provides in pertinent part: (5) An association may suspend the voting rights of a unit or member due to nonpayment of any monetary obligation due to the association which is more than 90 days delinquent. A voting interest or consent right allocated to a unit or member which has been suspended by the association may not be counted towards the total number of voting interests necessary to constitute a quorum, the number of voting interests required to conduct an election, or the number of voting interests required to approve an action under this chapter or pursuant to the declaration, articles of incorporation, or bylaws. The suspension ends upon full payment of all obligations currently due or overdue the association. The notice and hearing requirements under subsection (3) do not apply to a suspension imposed under this subsection. (6) All suspensions imposed pursuant to subsection (4) or subsection (5) must be approved at a properly noticed board meeting. Upon approval, the association must notify the unit owner and, if applicable, the unit s occupant, licensee, or invitee by mail or hand delivery. Additionally, in order to be effective, action to suspend voting rights must be taken at a board meeting prior to service of the written recall agreement. Park Lake Village Condo. Ass n, Inc. v. Unit Owners Voting for Recall, Arb. Case No. 2010-05-7395, Summary 2 The Association did not identify the allegedly delinquent owners during the October 23 rd meeting and they are not identified in the minutes of the meeting. 5
Final Order, (January 11, 2011). Finally, the Association bears the burden of proof to show that a ballet should be rejected. The Harvest Condo. Ass'n, Inc. v. Unit Owners Voting For Recall, Arb. Case No. 2003-08-9272, Summary Final Order (Dec. 10,2003). In this case, the Association announced at October 23, 2012 meeting to consider the written recall agreement, that six (6) unidentified unit owners voting rights had been suspended. According to the minutes of the meeting, Monica Hidalgo stated, [S]ix (6) ballots were not valid because the records of the association reflect that these owners were delinquent in monthly dues Based upon the Association s inability to establish that it followed the procedures set forth in Section 718.303 as to suspension of voting rights of those unit owners who were more than 90 days or more delinquent, the rejection of the six (6) unidentified ballots was improper. 3 Conclusion Because the number of valid ballots are sufficient to recall the members of the board, no further review is necessary. As a result of the recall, the following board members are recalled: Victor Hernandez, Jose Anton and Noel Carrion. Since the entire board has been recalled, in accordance with Section 718.112(2)(j)5., Florida Statutes, the three replacement candidates who received the most votes will be appointed to replace the recalled board members. Replacement candidates Felix Nazdo, Erelido Pena and Heriberio Dominguez received the most votes and will be seated. 3 While the Association asserts that state and federal Fair Credit Collection Practice Laws prohibit the Association from identifying the allegedly delinquent unit owners at the board meeting, the Association also admits that it is not a debt collector. See Bryan v. Clayton, 698 So.2d 1236 (Fla. 5th DCA 1997)(Maintenance assessments owed to a homeowner s association are not debts for purposes of the Fair Debt Collection Practices Act and the Florida Consumer Collection Practices Act.). 6
Based on the foregoing, it is ORDERED: 1. The January 28, 2013 filing by Victor Hernandez is STRICKEN. 2. The recall of Victor Hernandez, Jose Anton and Noel Carrion is hereby CERTIFIED and they are REMOVED as directors effective as of the date of the mailing of this order. Within five (5) full business days from the effective day of the date of this order, Victor Hernandez, Jose Anton and Noel Carrion shall deliver to the board any and all records of the Association in their possession. 2. As a majority of the board has been recalled pursuant to Rule 61B- 23.0028(3)(b)4., Florida Administrative Code, replacement candidates Felix Nazdo, Erelido Pena and Heriberio Dominguez shall take office as replacement directors effective upon the mailing of this order and shall fill the board seats for the unexpired terms of the seats being filled. DONE AND ORDERED this 5 th day of February, 2013, at Tallahassee, Leon County, Florida. Tonya S. Chavis, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida 32399-1029 Telephone: 850.414.6867 FAX: 850.487.0870 7
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 5 th day of February, 2013: Javier Guadayol, Esquire Javier Guadayol, P.A. 13412 SW 128 th Street Miami, Florida 33186 FAX: 305-256-5512 Guillermno M. Mancebo, Esquire Mancebo Law Group, P.A. 4909 SW 74 th Court Miami, Florida 33155 FAX: 305-397-2861 Tonya S. Chavis, Arbitrator 8