STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES, AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION INTERNATIONAL PARK CONDOMINIUM I ASSOCIATION, INC., Petitioner, v. Case No. 2012-02-8494 UNIT OWNERS VOTING FOR RECALL, Respondent. / SUMMARY FINAL ORDER Pertinent Background On June 25, 2012, Petitioner, International Park Condominium 1 Association, Inc. (the Association) filed a recall petition. On June 29, 2012, an Order Allowing Answer was entered. On June 29, 2012, an Order Requiring Supplement Information also was entered which required the Association to file proof of the enforcement of voting certificates in prior elections. On July 13, 2012, an Order Allowing Posting and Allowing Answer was entered. On July 13, 2012, the Association filed a response stating the Association had not needed to enforce the requirement for voting certificates since 2005 as all candidates for the board were seated. In addition, the Association filed the affidavit of the property manager stating that the Association did not possess any copies of voting certificates filed with the Association. On July 27, 2012, the Association filed a Notice of Posting. On August 8, 2012, the Association filed a Request for Status Conference or 1
Reply. On August 9, 2012, Respondent filed an Answer. On August 24, 2012, a Notice of Case Management Conference was entered. On September 5, 2012, a telephonic case management conference was conducted. Statement of Issue The issue presented for determination by the arbitrator is whether the written recall agreement served on June 11, 2012, Association s board of directors should have been certified. matter. Findings of Fact 1. On June 25, 2012, the Association filed a recall arbitration petition. 2. The unit owners voting in favor of the recall are the Respondent in this 3. Article 3.1 of the Declaration of Condominium states that there are 312 units in the association. 4. Article 4.2 of the Declaration of Condominium states that each unit is entitled to one (1) vote in accordance with the provisions of the By-Laws and Articles of Incorporation. 5. A minimum of one hundred fifty-seven (157) votes is necessary to recall a member of the Association s board directors. 6. Article III, Section 9 of the Bylaws requires the following: [T]he vote of the owners of private units owned by more than one (1) person or by a corporation or other entity shall be cast by the person named on a certificate signed by all the owners of the private units and filed with the Secretary of the Association 7. The total number of seats on the board is 5. 2
8. On June 11, 2012, the Association was served with a written recall agreement consisting of one hundred sixty-five (165) ballots seeking the recall of the following board members: Maria C. Arboleda (165); Ela del Campo (165); Maria E. Estevez (165); Douglas Mejia (165) and Luis Perna (165). The ballots identified the following replacement candidates: Maria Gonzalez; Maria I Doria; Yamila Gramenzi; Concepcion Alvarado; and Olga Stamper. 6. On June 18, 2012, the Board held a meeting and voted not to certify the recall. The minutes state the board rejected the written agreement for the following reasons: a. Two (2) ballots signed by non-owners: 80-420 and 50-517; b. Eighteen (18) ballots are from units with multiple owners (not married) with no voting certificates on file: 50-316, 50-226, 50-430, 50-211, 80-217, 80-115, 80-316, 80-228, 80-208, 80-312, 80-229, 80-123, 80-124, 80-114, 80-126, 80-431, 80-118, and 80-129; c. Four (4) ballots were duplicates: 50-115, 80-123, 80-419 and 80-316; d. One (1) ballot is from a corporation with no voting certificate on file: 80-323; e. Seven (7) ballots are from units owned by a trust and no voting certificate was provided or is on file: 50-128, 50-110, 50-205, 80-325, 80-528, 80-301 and 80-130; and f. All one hundred sixty-five (165) ballots were rejected for listing Chapter 720 instead of Chapter 718 on the ballots. 7. The ballots are facially valid and substantially similar to the Division s sample ballot for condominiums and comply with the requirements of Rule 61B- 23.0028(1), Florida Administrative Code. 8. It is undisputed by the Association that it does not possess voting certificates relative to any of the twenty-six (26) ballots rejected for lack of voting certificate on file with the Association. 3
9. The Association s Voting Ballot for November 20, 2007, indicates that there were nine (9) candidates for the five (5) board seats. 10. The Association s Voting Ballot for December 28, 2008, indicates that there were six (6) candidates for the five (5) board seats. 11. The Association has not established that voting certificates have been used in prior elections. 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. Validity of Ballots The Association asserts that the erroneous citation in the recall ballots to Section 720.303(10), Florida Statutes, should invalidate the recall. The erroneous citation to Section 720.303(10), Florida Statutes, rather than Section 718.112(2)(j), Florida Statutes, does not constitute a fatal flaw in the ballots because the ballot identified itself as a Written Recall Agreement/Ballot and contained an explanation of the ballot's purpose. When the ballots reflect the vote of a majority of the members, the fact that the form used refers to the statute and rules pertaining to homeowners rather than condominiums does not affect the substance or validity of a recall. Westlake Gardens Condominium Assoc., Inc. v. Unit Owners Voting for Recall, Arb. Case No. 2008-03- 8977, Summary Final Order (August 7, 2008)(the fact that recall effort used 4
Homeowners Written Recall Agreement/Ballot rather than Condominium form not a valid reason to reject ballots.) Accordingly, the Association improperly rejected the entire written recall agreement for this reason. Voting Certificates The Association asserts that it rejected twenty-six (ballots), as being owned by multiple owners or corporations or trusts and failing to have voting certificates on file with the Association. At the same time, the Association admits that it did not possess at the time of the meeting to consider the recall agreement and does not currently possess any voting certificates from any previous voting events. Additionally, the Association offers, as proof of prior usage of voting certificates, the affidavit of Joaquin Alvarez, the community association manager for the Association. Mr. Alvarez, states, in pertinent part, as follows: Since 2005, there have not been more candidates than available positions on the Association s Board of Directors. As such, the Association has not held an annual election since the 2005 election. Since no election has been recently held, the Association has not received any recent Voting Certificates from Unit Owners. The Association s last election was held on February 17, 2005. However, Respondent filed Association notices of election and minutes of the annual meeting/election for 2007 and 2008. The November 20, 2007 ballot lists nine (9) candidates for the five (5) board seats. The December 18, 2008 ballot lists six (6) candidates for the five (5) board seats. Additionally, the minutes of the January 22, 2008 board meeting lists the nine (9) candidates and indicates the new board members are those with the highest number of votes. Upon review of the minutes of the January 22, 2008 meeting, of the 134 ballots submitted, the board rejected seven (7) ballots, because record owner names did not match the name on the ballot. There is no 5
indication in the minutes of the January 22, 2008 meeting that any ballots were rejected for failing to have a voting certificate on file. Based upon the foregoing, Mr. Alvarez s affidavit is unpersuasive. Accordingly, the Association has failed to establish that voting certificates have been required in prior elections, and the Association has improperly rejected the twenty-six (26) ballots for this reason. Duplicate Ballots The Association rejected four (4) ballots as duplicates: 50-115; 80-123; 80-419 and 80-316. Where there are two ballots cast on behalf of one unit and each ballot has identical votes, the additional ballot is disregarded but does not invalidate the one ballot cast for that unit. See Alexandra Village Condominium Association, Inc. v. Unit Owners Voting for Recall, Arb. Case Nos. 00-1851 and 00-1720, Final Order (December 5, 2000)(Where multiple ballots cast on behalf of one unit and all have identical votes, the duplicates are disregarded but the duplication does not invalidate all votes cast by the unit). In each case, the duplicate ballots are identical in that each ballot indicates a vote to recall each of the board members listed and to seat each of the replacement board candidates. Accordingly, the Association properly rejected four (4) of the ballots for this reason. Non-owners The Association rejected the ballots for units 80-420 and 50-517 as signed by non-owners. The ballot for unit 80-420 was signed by Olga Stamper and was notarized. Attached to the ballot was a letter dated April 28, 2012, signed by Rosa E. Morales, which authorized Olga Stamper, her sister who resides in the unit, to make all 6
decisions and speak on my behalf. Please accept her as a member and candidate for the Board of International Park Association. Ms. Morales letter does not comply with the requirements of Rule 61B-23.002, Florida Administrative Code, the sample limited proxy form adopted by the Division, or Section 709.08, Florida Statutes, relating to power of attorney. See, High Point of Orlando Condo. Ass n. Section 1, Inc. v. Members of the Association Voting for Recall, Arb. Case No. 95-0241, Final Order on Petition for Recall Arbitration (Dec. 4, 1994)(limited proxies that did not substantially comply with the Division s limited proxy form were held to be invalid). It is unrefuted that Ms. Stamper is not the owner of the unit. Accordingly, the ballot for unit 80-420 was properly rejected by the board. The ballot for unit 50-517 was signed by Noemi Fernandez. The Association alleges in the petition that the owner is Yordanki Martinez. Respondent does not deny the unit is owned by Mr. Martinez and that the ballot was signed by Ms. Fernandez. Accordingly, the Association properly excluded this ballot. Replacement Candidate Olga Stamper Olga Stamper is identified on the recall ballots as a replacement candidate for the board. It is unrefuted that Ms. Stamper is not an owner and, therefore, not a member of the Association. Article 9 of the Articles of Incorporation states, Directors need not be members of the Association or residents of the Condominium. Accordingly, Ms. Stamper, although not a member of the Association, is eligible to serve as a director on the board. 7
Conclusion Based on the foregoing, the board improperly failed to certify the recall. Given the arbitrator s findings as to the Association s failure to establish prior enforcement of the voting certificate requirement and the facial validity of the ballots, there are 157 valid ballots and sufficient votes to recall the identified board members. As a result of the recall, the following board members are recalled: Maria Arboleda; Ela Del Campo; Maria E. Estevez; Douglas Mejia; and Luis Perna are recalled from the board. Based on the foregoing, it is ORDERED: 1. The recall of Maria Arboleda, Ela Del Campo, Maria E. Estevez, Douglas Mejia and Luis Perna 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, Maria Arboleda, Ela Del Campo, Maria E. Estevez, Douglas Mejia and Luis Perna 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 Maria Gonzalez, Maria I. Doria, Yamila Gramenzi, Concepcion Alvarado and Olga Stamper 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. 8
DONE AND ORDERED this 24 th day of September, 2012, 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 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 24 th day of September, 2012: Alessandra Stivelman, Esquire Eisinger, Brown, Lewis, Frankle & Chaiet, P.A. 4000 Hollywood Blvd., Suite 265-S Hollywood, Florida 33021 FAX: 954-894-8015 Robert M. Chisholm, Esquire Robert M. Chisholm, P.A. 4921 South West 74 th Court Miami, Florida 33155 FAX: 305-661-6090 Tonya S. Chavis, Arbitrator 9