STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES AND MOBILE HOMES IN RE: PETITION FOR RECALL ARBITRATION LAKE PARK GARDENS #4, INC., Petitioner, v. Case No. 2015-04-6727 UNIT OWNERS VOTING FOR RECALL, Respondent. / SUMMARY FINAL ORDER Relevant Procedural History On October 19, 2015, Lake Park Garden #4, 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 members: Marcia Senior, Claudette Richards and Llius Sikder. On October 29, 2015, the arbitrator entered an order requiring answer to the petition for recall arbitration. November 24, 2015, Respondent filed an answer. On December 11, 2015, an order after case management conference was entered which required the Association to provide, among other items: evidence that only 13 recall ballots were served on the Association and evidence that the recall meeting was open to all members. On December 29, 2015 and January 6, 2016, Respondent filed Page 1 of 7
supplemental information. On December 31, 2015, the Association filed a response to the order after case management conference. Findings of Fact 1. The total number of voting interests in the Association is 27. The board of directors consists of three members. To recall a board member, 14 valid ballots voting in favor of recall are needed. 2. On October 9, 2015, the Association s management company received by certified mail a packet containing recall ballots. The Association alleges that only 13 ballots were included. Respondent alleges 14 ballots were included. 3. As proof that only 13 ballots were included in the packet, the Association proffered the affidavit of Devon Walcott, the Association s community association manager. Mr. Walcott s affidavit states in pertinent part: This affidavit is prepared on personal knowledge and an examination of the relevant records of the Association maintained during the ordinary course of business and recorded at or [near the] time the events occurred. On or about October 9, 2015, a recall petition was received by the management company from the unit owners seeking recall. The envelope was immediately opened and the ballots were counted. Only thirteen unique ballots were served on the Board on October 9, 2015. The ballot from Lerone Tapper was not included. 4. In its answer, Respondent supplied a sealed envelope that was addressed to Marcia Senior, the president of the board. The envelope was mailed to Ms. Senior by certified mail on the same day the recall petition was mailed to the management company. The post office returned the envelope to Respondent and marked it Returned to sender refused. Inside the envelope were 14 unique written recall ballots, including one from Lerone Tapper. Page 2 of 7
5. Lerone Tapper was named as a replacement candidate and is one of the organizers of the recall. 6. Mr. Walcott did not affirm that he, personally, opened and counted the ballots but claimed the management company did. Additionally Mr. Walcott did not affirm that he witnessed the opening and counting. This witness has not affirmed that he has personal knowledge of the content of the envelope when it was served on the Association. As the Association has not provided any competent evidence to contradict Respondent s evidence, the arbitrator finds that 14 ballots were served on the Association. 7. The directors sought to be recalled and the corresponding number of recall votes as to each are: Marcia Senior 14 Claudette Richards 14 Llius Sikder 12 8. The names of the replacement candidates, who received 14 votes each, are: Nicolas Plescha, Laura Benitez, Jose Montanez and Lerone Tapper. 9. The written recall ballots served on the board utilized the standard form available from the Division. 10. On October 9, 2015, the board of directors held a meeting at which the board voted not to certify the recall. Respondent alleged that the meeting was not open to the members. The Association provided no proof that the meeting was open to the members. Respondent provided a copy of a police report from the Broward County Sheriff s Office which states that Laura requested assistance to attend the meeting. The officer made contact with someone at the meeting who stated the meeting was Page 3 of 7
privileged and she could not attend. The Laura identified in the police report is Laura Benitez, the unit owner representative. It is clear from the record that the meeting was not open to the members. 11. The minutes of the meeting state the vote to certify the recalls of Marcia Senior and Claudette Richards was defeated two to one. The minutes also state that the board unanimously voted to certify the recall of Llius Sikder. Llius Sikder also signed a ballot to recall himself, along with the other two board members. Although on the face of the recall ballots Llius Sikder should not have been recalled as a majority did not vote to recall him, no one has challenged the certification of his recall. Additionally, it is clear that Llius Skider does not want to be on the board and therefore, the arbitrator will not force him to remain. 12. On December 21, 2015, Jose Montanez withdrew from consideration as a replacement candidate. 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. Furthermore, Section 718.112(2)(j)4., Florida Statutes, provides: If the board fails to duly notice and hold a board meeting within 5 full Page 4 of 7
business days after service of an agreement in writing or within 5 full business days after the adjournment of the unit owner recall meeting, the recall shall be deemed effective and the board members so recalled shall immediately turn over to the board any and all records and property of the association. Section 718.112 (c), Florida Statutes, states in pertinent part: Meetings of the board of administration at which a quorum of the members is present are open to all unit owners.... 1. Adequate notice of all board meetings, which must specifically identify all agenda items, must be posted conspicuously on the condominium property at least 48 continuous hours before the meeting except in an emergency.... 3. Notwithstanding any other law, the requirement that board meetings and committee meetings be open to the unit owners does not apply to: a. Meetings between the board or a committee and the association s attorney, with respect to proposed or pending litigation, if the meeting is held for the purpose of seeking or rendering legal advice; or b. Board meetings held for the purpose of discussing personnel matters. All meetings of the board must be open to the unit owners unless the meeting is being held for the purpose of seeking or rendering legal advice or to discuss personnel matters. Even assuming that a recall might be considered proposed litigation because of the requirement to file a petition if the recall is not certified, the exception to the open meeting requirement is limited to only seeking and rendering of legal advice regarding the recall. Any actions taken by the board must be done at a meeting open to all members. Kassel v. Ocean Villas at St. Augustine Beach Condo. Ass n, Inc., Arb. Case No. 2014-00-9523, Page 5 of 7
Summary Final Order (May 6, 2014). Members of an association have a right to attend and to speak at a meeting regarding a written recall agreement. Edenrock Home Owners Association, Inc. v. Homeowners Voting for Recall, Arb. Case No. 2013-04-8816, Summary Final Order (April 7, 2014). 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. In the instant case, the written recall includes enough facially valid ballots to recall both Marcia Senior and Claudette Richards. Based on the foregoing, it is ORDERED: 1. The recall of board members Marcia Senior and Claudette Richards is hereby CERTIFIED, and they are REMOVED as directors effective as of the date of the mailing of this Order. 1 2. Nicolas Plescha, Laura Benitez and Lerone Tapper shall take seats on the board effective immediately for the remainder of the term of the seats of the recalled board members. 3. Within five full business days from the effective date of this recall, Marcia Senior, Claudette Richards and Llius Skider shall deliver to the board any and all records of the Association in their possession. 1 The recall of Llius Skider was certified by the board. Page 6 of 7
DONE AND ORDERED this 21st day of January, 2016, at Tallahassee, Leon County, Florida. Terri Leigh Jones, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida 32399-1030 Phone: (850) 414-6867/ Fax: (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 and facsimile to the following persons on this 21st day of January, 2016: Rhonda Hollander, Esq. 314 South Federal Highway Dania Beach, FL 33004 Email: rhonda@rhpalegal.com Attorney for the Association Laura Benitez 4770 NW 10 th Court, #318 Plantation, FL 33313 Email: not provided Unit Owner Representative Terri Leigh Jones Page 7 of 7