STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF CONDOMINIUMS, TIMESHARES, AND MOBILE HOMES IN RE: PETITION FOR BINDING ARBITRATION - HOA Sunterra Homeowners Association, Inc., Petitioner, v. Homeowners Voting for Recall, Case No. 2011-03-2844 Respondent. / FINAL ORDER AFFIRMING DECISION TO NOT CERTIFY RECALL Procedural History On June 29, 2011, Sunterra Homeowners Association, Inc. ( Association ) filed a Recall Petition asking the Division to affirm its decision to not certify the recall of its 3 board members. Recall. On July 28, 2011, an Amended Order Requiring Answer was 1. Served by certified mail upon Anton Alzein, who participated in and voted at the homeowners meeting for recall; and, 2. Posted in the clubhouse kitchen window from August 2, 2011 through August 10, 2011. Neither Mr. Alzein nor any other homeowner filed an Answer to the Petition for On August 22, 2011, a Default was entered against Respondent Homeowners. As of today s date, there has been no filing by the Respondent. FINDINGS OF FACT 1. On Friday, June 17, 2011, Petitioner was served with a written recall agreement containing signatures of 75 homeowners to recall the board s 3 directors. 1
2. The total number of voting interests in the Association is 124; accordingly, 63 recall ballots are needed to effectuate the recall. April 3, 2012. recall. 3. There are 3 seats on the Association s Board of Directors. 4. The next regularly scheduled election for the board of directors is set for 5. The Association s Board held a meeting on July 22, 2011, to consider the 6. The Recall agreement that was served upon the Board is substantially different from the Division s form recall agreement, and it contains the following statement: This recall is to remove the actual board of directors, Jeff Simone, Nadrian Williams, and Glenn Stubbs, and a call for a proper election to replace them with a new board member according to Sunterra buy-laws [sic] 7. If an owner signs the ballot, the owner s vote is to recall the entire board; the recall ballot does not allow an owner to recall or retain anything other than all board members. 8. The Board determined to not certify the election for the following reasons: A. Sixteen ballots were invalidated because the homeowners were delinquent in payment of their assessments, rendering them ineligible to vote under the By-Laws; B. Three ballots were invalidated because the signatures were invalid; and, C. The form of the recall agreement did not substantially comply with the requirements of Section 720.303(10), Florida Statutes (2011) and Florida Administrative Code Rule 61B-81.003(1) (2011), rendering the recall agreement ineffective in totality. 2
9. On June 29, 2011, the Association filed the instant Petition asking that its decision to not certify the recall be affirmed. CONCLUSIONS OF LAW The arbitrator has jurisdiction over the parties and the subject matter of this dispute pursuant to 720.303(10)(d), 718.112(2)(j) and 718.1255 (2011), Florida Statutes (2011). A Summary Final Order is appropriate because there are no disputed issues of fact. 1 Any member of an Association s board of directors may be recalled and removed from that office, with or without cause, by a majority of the Association s total voting interests. 2 A defaulting party admits well-pleaded facts and acquiesces in the relief sought. 3 There is competent, substantial evidence in the uncontested petition and filings to support the above findings of fact. The Association has stated 3 reasons it did not certify the recall. As a result of Respondent s default, Respondent has admitted all allegations as true. Despite Respondent s admission of liability, the importance of a proper ballot merits consideration of the Board s third basis for not certifying the recall [that the recall ballot (or agreement) does not substantially comply with the requirements of Fla. Admin. Code R. 61B-81.003(2) (2011)]. Voters Unable to Recall or Retain Individual Board Members Fla. Admin. Code R. 61B-81.003(1) (2011) requires that an agreement or ballot have a space by each director s name so that the unit owner may independently 1 Fla. Admin. Code R. 61B-80.114 (2011). 2 Fla. Stat. 720.303(10)(a)(1) (2011). 3 E.g., North American Acc. Ins. Co. v. Moreland, 53 So. 635, 637 (Fla. 1910). 3
vote to recall or retain each individual director. Arbitration case law has consistently held that where a recall agreement fails to provide space for a voter to recall or retain each named candidate, it is fatally flawed. 4 The recall agreement does not allow an owner the opportunity of voting to recall or retain any individual director. If the unit owner votes at all, that vote is limited to a recall of the entire Board. For this reason, the written agreement does not substantially comply with Florida Administrative Code Rule 61B-81.003(1) (2011), and it is fatally flawed on its face. Based upon the foregoing, IT IS ORDERED: The Association s decision to not certify the recall is AFFIRMED. DONE AND ORDERED this 27 th day of September 2011, at Tallahassee, Leon County, Florida. Shirley J. Whitsitt, Arbitrator Dept. Bus. and Prof. Reg., Arbitration Section 1940 North Monroe Street Tallahassee, Florida 32399-1029 Fax: (850) 487-0870 4 E.g., Harbour Point Homeowner s Ass n, Inc. v. Homeowners Voting for Recall, No. 10-04-1586, 2010 WL 4094432 (Fla. DBPR Arb., Sept. 17, 2010) (Recall ballot deemed facially defective where the ballot contained no where for owner to independently vote to recall or retain a particular board member). 4
CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing final order was sent by U.S. mail to the following, postage prepaid, this 27 th day of September 2011, to: Philip J. Coyle, Esq. 370 W. Camino Gardens Blvd. Ste. 300 Boca Raton, FL 33432-5817 Anton Alzein 5803 Gypsum Place West Palm Beach, FL 33413 Shirley J. Whitsitt, Arbitrator 5