STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION Poinciana Island Yacht and Racquet Club Condominium Association, Inc., Petitioner, ioner, v. Case No. 02-5955 Sarah H. Anderson, Respondent. / FINAL ORDER DISMISSING PETITION Comes now, the undersigned arbitrator, and issues this final order as follows: The association filed its counter-petition for arbitration in this matter on November 20, 2002. The petition alleges that the named respondent, Ms. Anderson, was dismissed from the board by operation of a rule providing for removal of a board member who misses 3 consecutive meetings. Allegedly, respondent has continued to conduct herself in the manner of a board member by using association stationary, attempting to schedule a board meeting and otherwise holding herself out as a board member. The petition requests entry of a final order prohibiting respondent from acting as a board member as well as other relief. This proceeding is related to arbitration case number 02-5718, in which Ms. Anderson has filed a petition for arbitration alleging that the board illegally removed her as a board member. She disputes that she missed 3 consecutive meetings. She acknowledges missing 2 board meetings, and states that as to the third meeting, she 1
attended the bulk of the meeting and was forced to leave the meeting after coming under a personal attack. The arbitrator has accepted jurisdiction over that dispute which will proceed forward. The jurisdiction of the arbitrator is summarized in section 718.1255, F.S. Dispute is defined by section 718.1255, Florida Statues, as any disagreement between two or more parties that involves: (a) The authority of the board of directors, under this chapter or association document to: 1. Require any owner to take any action, or not to take any action, involving that owner's unit or the appurtenances thereto. 2. Alter or add to a common area or element. (b) The failure of a governing body, when required by law or an association document, to: 1. Properly conduct elections. 2. Give adequate notice of meetings or other actions. 3. Properly conduct meetings. 4. Allow inspection of books and records. "Dispute" does not include any disagreement that primarily involves title to any unit or common element; the interpretation or enforcement of any warranty; the levy of a fee or assessment; or the collection of an assessment levied against a party; the eviction or other removal of a tenant from a unit; alleged breaches of fiduciary duty by one or more directors; or claims for damages to a unit based upon the alleged failure of the association to maintain the common elements or condominium property. Prior arbitration decisions have examined whether the Division has jurisdiction under the aforestated statute to address the petition of the association seeking to reign in an allegedly-renegade board member who refuses to accept a recall or other termination. In Windemere Condominium Association, Inc. v. Gerzina et al., Arb. Case No. 97-2009, Final Order of Dismissal (October 20, 1997), the association filed a petition against an entire renegade board. Under the allegations 2
of the petition, at a board meeting at which less than a quorum was present, certain respondent board members appointed a number of vacancies, and afterward proceeded to conduct an annual meeting at which certain other named respondents were elected. The official board noticed and held another annual meeting and ordered the other board to cease acting as board members. In the arbitration case, the association sought a declaration that the renegade election was illegal. The petition was dismissed for lack of jurisdiction because the dispute did not involve the failure of the governing board to properly conduct an election. The arbitrator noted: In Sea Ranch Club Condominium Association, Inc. v. Semaan, et al, Arb. Case No. 92-0122, Final Order Dismissing Amended Petition for Arbitration (Dec. 11, 1992), the arbitrator ruled that jurisdiction did not exist under Section 718.1255(1)(b), Florida Statutes, because the petition did not allege that the governing body failed to properly conduct an election. In Sea Ranch, the association alleged that the respondents, who had been appointed to replace two resigning directors, had failed to stand for election at the next annual election. The respondents took the position that their appointments did not end until the end of the term of the directors they were appointed to replace. The board of directors of the association took the position that the two directors terms ended on the day of the annual meeting. The arbitrator stated: At first glance, it may appear that the failure to properly conduct elections covers the allegations set forth in the Amended Petition. The arbitrator s jurisdiction, however, does not extend to all election issues. It only covers election issues which involve the failure of the governing body to properly conduct elections. In this case, the governing body is the Board of Directors, and there is no allegation in the Amended Petition that the Board of Directors erred by failing to designate the seats held by Semaan and Shaffer as available for election. Rather, the Petitioner alleges that it is Semaan and Shaffer who erred for taking the position that they were not required to stand for election at the annual meeting. Because it is 3
not alleged that the governing body failed to properly conduct an election as required by law, or the documents of the Association, no dispute exists which is eligible for arbitration. (emphasis supplied) Similarly, in the arbitration case of Greentree Condominiums Association, Inc. v. Rernandez, et al., Arb. Case No. 97-0271, Final Order on Jurisdiction (June 5, 1997), the petition alleged that at an annual meeting, seven members of the board were elected. However, the respondents, believing that the board should consist of 13 members, assumed power and advised third parties including contractors that they had the authority to act for the association. The arbitrator dismissed the case for lack of jurisdiction based on the same rationale as advanced in the Windemere case cited above. The instant dispute does not implicate any of the categories of dispute provided for by s. 718.1255, F.S. It is not alleged that the authority of the board has required respondent to take any action involving her unit, or that the board has altered the common elements. It is not alleged that the governing body has failed to properly conduct elections, give adequate notice of meetings, or properly conduct meetings. The dispute does not come within the jurisdiction provided for by s. 718.1255, F.S. association. WHEREFORE, the arbitrator hereby dismisses the counter-petition of the DONE AND ORDERED this 22rd day of January, 2003, at Tallahassee, Leon County, Florida. Karl M. Scheuerman, Arbitrator Department of Business and Professional Regulation 4
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 final order has been sent by U.S. Mail to the following persons on this 22 rd day of January, 2003: Victor Rones, Esquire Rones & Navarro, P.A. 16105 NE 18 Avenue North Miami Beach, Florida 33162 James F. Pollack, Esquire 360 Greco Avenue, Ste. 208 Coral Gables, Florida 33146 Karl M. Scheuerman, Arbitrator Right to Appeal As provided by s. 718.1255, F.S., this final order may be appealed by filing a complaint for trial de novo with a court of competent jurisdiction in the circuit in which the condominium is located, within 30 days of the entry and mailing of this final order. This order does not constitute final agency action and is not appealable to the district courts of appeal. If this final order is not timely appealed, it will become binding on the parties and may be enforced in the courts. 5