STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES AND MOBILE HOMES IN RE: PETITION FOR RECALL ARBITRATION TELSTAR CONDOMINIUM ASSOCIATION, INC., Petitioner, Case No. 2017-00-0508 v. Case No. 2017-00-3619 UNIT OWNERS VOTING FOR RECALL, Respondent. / ORDER CONSOLIDATING CASES AND SUMMARY FINAL ORDER Relevant Procedural History and Consolidating Cases On January 3, 2017, Telstar Condominium Association, 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: Gustavo Mannise, Yvette Jimenez and Carina Minoletti. This petition was given Case No. 2017-00-0508 (first recall). On January 6, 2017, the Order Requiring Answer to Petition for Recall Arbitration was entered to be served by certified mail on Kelly Arvia, Thomas Rambo and Dulce Constenla, the individuals who were designated as the unit owner representatives in the petition. Respondent s answer was due on February 6, 2017. As of the date of the Order entered herein, no answer or other pleading disputing the allegations contained in the petition for recall arbitration has been filed by, or on behalf of, Respondent. Page 1 of 5
Therefore, the arbitrator concludes that Respondent is no longer challenging the facts as stated in this petition. On January 18, 2017, the Association filed a petition for recall arbitration for a second recall effort. The petition seeks to affirm the decision of the Association s board of directors not to certify a recall of the following board members: Gustavo Mannise, Yvette Jimenez and Carina Minoletti. The petition for the second recall effort was given Case No. 2017-00-3619 (second recall). Since no unit owner representative was designated in the petition or the ballots, on January 27, 2017, the arbitrator entered an Order Requiring Posting along with an Order Allowing Answer. Respondent was required to file an answer no later than February 27, 2017. As of the date of the Order entered herein, no answer or other pleading disputing the allegations contained in the second petition for recall arbitration has been filed by, or on behalf of, Respondent. Therefore, the arbitrator concludes that Respondent is no longer challenging the facts as stated in the second petition. On February 1, 2017, the Association filed a motion to dismiss the first recall petition on the grounds that the service of the second recall caused the first recall petition to become moot. Rule 61B-50.105(6), Florida Administrative Code, provides: If, during the pendency of recall arbitration, the unit owners in the condominium, cooperative, or members in the mobile home homeowners association attempt another recall effort and the board files another petition for arbitration, the newly filed petition shall be consolidated with the pending case. Therefore, the Association s motion to dismiss is denied and the two cases are hereby consolidated. Page 2 of 5
Summary Final Order Respondent has not disputed any of the facts in either petition. Accordingly, a Summary Final Order is appropriate in this case pursuant to Rule 61B-50.119(3), Florida Administrative Code. Both petitions state that the following three members of the five-member board were the subjects of the recalls: Gustavo Mannise, Yvette Jimenez and Carina Minoletti. The total number of voting interests in the Association is 70. Therefore, 36 votes for recall are necessary to recall a board member. In the first recall attempt, each subject of the recall received a total of 36 votes. The board determined not to certify the first recall at a meeting it held on December 27, 2016. In the second recall attempt, each subject of the recall received a total of 37 votes. The board determined not to certify the second recall at a meeting it held on January 11, 2017. The petitions state, and both of the recall meeting minutes reflect, that the board did not certify the recalls because among other reasons, four (4) ballots were premarked. Given that Respondent does not contest this fact, the arbitrator concludes that the board properly rejected the recall ballots for these units. Distribution of pre-marked ballots for the signature of unit owners conflicts with Rule 61B-23.0028(1)(b), Florida Administrative Code, because the owners are not given a choice whether to recall or retain individual directors. Lakes of Woodhaven Condo Ass'n, Inc., v. Owners Voting for Recall, Arb. Case No. 2004-06-0269, Final Order (February 10, 2005). Therefore there can be at most 32 valid ballots in the first recall and 33 valid ballots in the second recall. Section 718.112 (2)(j), Florida Statutes, states, in pertinent part, Page 3 of 5
Recall of board members. Subject to the provisions of s. 718.301, any member of the board of administration may be recalled and removed from office with or without cause by the vote or agreement in writing by a majority of all the voting interests. (emphasis supplied). The statute is clear. A recall is only valid if a majority of all of the voting interests votes for the recall. As there are a maximum of 33 valid recall votes to recall each board member, the number of votes for recall is not a majority of all of the voting interests in this Association, and therefore, both recall efforts fail. Because of this result, the arbitrator need not consider, and neither accepts nor rejects, the propriety of any of the other objections given at the recall meetings. The board s decision not to certify both recalls will be affirmed due to a failure to obtain a majority vote to recall any board member. AFFIRMED. Based on the foregoing, it is ORDERED: The Association s decision to certify neither the first recall nor the second recall is DONE AND ORDERED this 10th day of March, 2017, at Tallahassee, Leon County, Florida. Terri Leigh Jones, Arbitrator Department of Business and Professional Regulation Arbitration Section 2601 Blair Stone Road Tallahassee, Florida 32399-1030 Phone: 850-414-6867: Fax:850-487-0870 Page 4 of 5
Certificate of Service I hereby certify that a true and correct copy of the foregoing final order has been sent by U.S. Mail and email (if provided) to the following persons on this 10th day of March, 2017: Russell M. Robbins, Esq. Basulto Robbins & Associates, LLP 14160 N.W. 77th Court Suite 22 Miami Lakes, FL 33016-1506 Email: rrobbins@brlawyers.com Attorney for the Association Kelly Arvia 1811 Jefferson Street #310 Thomas Rambo 1811 Jefferson Street #808 Dulce Constenla 1811 Jefferson Street #704 Terri Leigh Jones, Arbitrator Page 5 of 5