STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION Les Chateaux at International Gardens Condominium Association, Inc., Petitioner, v. Case No. 2003-07-2231 Unit Owners Voting for Recall, Respondent. / FINAL ORDER On July 16, 2003, Les Chateaux at International Gardens Condominium Association, Inc. (association/petitioner) filed a petition for recall arbitration. On August 4, 2003, the respondent filed a separate petition for arbitration, case number 2003-07-5111, alleging that the association had failed to file a petition for recall arbitration. The association had, in fact, filed a petition for recall arbitration and the respondent ultimately withdrew its petition. On August 12, 2003, the Unit Owners who voted for recall (the respondent) filed an answer to the petition. On July 29, 2003, the arbitrator entered an order requiring the petitioner to file supplemental information. On August 13, 2003, the petitioner filed the supplemental information required by the July 29, 2003, order. On August 22, 2003, the arbitrator entered an order setting prehearing procedure. 1
A formal hearing was held on this matter on November 25, 2003, at 9:30 a.m. in Miami, Florida. Marc A. Halpern, Esquire, appeared on behalf of the petitioner and Javier Guadayol, Esquire, appeared on behalf of the respondent. Both parties tendered documents into evidence and the presented the testimony of witnesses. The respondent voluntarily withdrew its petition in case number 2003-07-5111 at the final hearing. This order is entered upon consideration of the complete record in this matter. FACTS On July 3, 2003, the association was served with a written agreement to recall five (5) members of the board of directors. The written agreement seeks to recall Martha Gonzalez, Sonia Dausa, Belkis Rodriques, Zoila Macias, and Migda Vallerjera. The respondent obtained signatures of 161 unit owners. The association is comprised of 273 voting interests. Accordingly, 137 valid votes are necessary to recall a board member. The respondent s written agreement establishes a prima facie case to recall the directors, as it facially complies with the requirements of Rule 61B-23.0028, Florida Administrative Code. In paragraph 7(a)-(d) of its petition, the petitioner stated its reasons for denying the certification of recall. The reasons cited by the board for failing to certify the recall are: 1) The written agreements were not properly served on the board. 2) Of the board members sought to be recalled, only board member Marta Gonzalez was still a member of the board at the time of service. 2
3) Twenty ballots were rescinded prior to service of the recall ballots upon the board. 4) Nineteen ballots were rejected as the units were owned by more than one owner, a corporation or other entity and no voting certificate was on file for the unit casting the ballot. Petitioner s objection, as stated in paragraph 7(b) that the recall ballots were not properly served as they were delivered to the association s management company rather that the board, is without merit. See Nautilus Condominium Association, Inc. v. Unit Owners Voting For Recall, Arb. Case No. 99-2076, Summary Final Order (December 3, 2003)(where the board admits that the recall ballots were delivered to a board member, proof of service is unnecessary). At the hearing, testimony was taken regarding three issues. These are whether the association has enforced the voting certificate requirement in prior elections, whether the association properly posted notice of the board meeting at which the recall was discussed, and on what date the recission agreements were received. DISCUSSION The respondent alleges that the association failed to properly post notice of the board meeting at which the recall was discussed at least 48 hours prior to the meeting. At the final hearing, the petitioner presented the testimony of Ms. Blanco, the association property manager. Ms. Blanco testified that she personally prepared and posted notice of the board meeting 48 hours in advance of the 3
meeting. This testimony is sufficient to prove that the association gave adequate notice of the board meeting at which the recall was considered and discussed. The fact that some unit owners either did not see the notice or were otherwise unaware of the meeting, does not establish that notice of the meeting was not given. Accordingly, the arbitrator finds that the association properly noticed the board meeting. In order for an association to enforce a voting certificate requirement during a recall the association must have enforced the voting certificate requirement in the past. The Decoplage Condominium Association, Inc. v. Unit Owners Voting for Recall, Arb Case No. 02-5830, Amended Summary Final Order (January 16, 2003). Where an association has failed to enforce a voting certificate requirement in prior elections, the requirement will not be enforced in a recall arbitration to disenfranchise voters. See e.g., The Caribbean Condominium Management Association, Inc. v. Kennedy, Arb. Case No. 93-0175, Final Order (October 27, 1993). The petitioner was required to prove that the association had required voting certificates in elections during the past two years. The association introduced the minutes of the June 2002 election for the board of directors into evidence. The minutes of the June 2002 election indicate that seven (7) ballots were rejected because the units for which they were cast did not have valid voting certificates on file. Additionally, the association entered the minutes of the May 2003 election into evidence. The minutes of the May 2003 election indicate that voting 4
certificates were checked against all ballots cast and that no ballot was rejected for failing to have a valid voting certificate on file. The association introduced into evidence copies of minutes of the previous two annual elections, which demonstrates that the association has enforced the voting certificate requirement in the past. This documentation is sufficient to establish that the association has actively enforced the voting certificate requirement in past elections. See e.g., Second Horizons Condominium Association, Inc. v. Unit Owners Voting for Recall, Arb. Case No. 2003-07-8497, Summary Final Order (November 4, 2003)(Acceptable documentation that demonstrates that an association in actively enforcing a voting certificate requirement includes official voting records that demonstrate that specific votes were rejected on this basis, including minutes of the election meeting, tally sheets, or discarded ballots indicating the reason for their rejection). As the association has demonstrated that it has actively enforced the voting certificate requirement in previous elections, the association properly rejected nineteen recall ballots on this basis. At the final hearing, the respondent demonstrated that one of the twenty recission agreements accepted by the board was executed after service of the recall upon the board. This recission should not have been counted. See Habitat II Condominium, Inc. v. Unit Owners Voting for Recall, Arb. Case No. 97-0073, Partial Summary Order (April 14, 1997)(revocation of written agreements was invalid where revocation was signed after the written agreements had been served on the board); In re: Board of Directors of Vantage View, Inc., Arb. Case No. 94-5
0116, Final Order (July 1, 1985)(to be effective, recission of a recall vote would have to be shown to have been made prior to the time that the written recall agreement was served on the association); Courts of Inverrary Condominium Association, Inc. v. Shepard, et al., Arb. Case No. 94-0274, Final Order (January 18, 1995)(absent unique circumstances, withdrawal or revocation of signature on recall agreement is not effective unless received by the time the board of association receives the recall agreement). However, the right of unit owners to withdraw their votes to recall a board member has been explicitly recognized. See The Regency of St. Petersburg, Inc. v. Unit Owners Voting for Recall, Arb. Case No. 97-0123 consolidated with Case No. 97-0192, Final Order (September 4, 1997)(where recall vote was revoked by actual delivery to board president of a writing indicating revocation, prior to the time that the registered agent received the association s copy of the recall agreement, vote would not be counted toward recall). Accordingly, the board improperly accepted this recission agreement. As the respondent did not establish that the remaining nineteen recission agreements received by the board after the service of the recall ballots, the board properly accepted these recissions and rejected the recall ballots for these nineteen units. Thirty-eight (38) agreements have been determined to be invalid, which leaves less than a majority of written agreements voting to recall each of the 5 directors. Based upon the reasons set forth above, the board s failure to certify the recall is hereby AFFIRMED. 6
DONE AND ORDERED this 6 th day of February 2004, at Tallahassee, Leon County, Florida. CERTIFICATE OF SERVICE Richard M. Coln, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida 32399-1029 I hereby certify that a true and correct copy of the foregoing was mailed by U.S. mail, postage prepaid, this 6 th day of February 2004 to: Marc A. Halpern, Esq. 150 West Flagler Street 27th Floor Museum Tower Miami, FL 33130 Attorney for Petitioner (305) 371-5930 Fax Javier Guadayol, Esq. 13550 SW 88th Street Suite 290 Miami, FL 33186 Attorney for Respondent (305) 386-8096 Fax Richard M. Coln, Arbitrator 7