By: STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES

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1 Dae: U-~-O(D By: STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES IN RE PETITION FOR DECLARATORY STATEMENT f DockeNQ MAISON GRANDE CONDOMINIUM ASSOCIATION, INC. DS DECLARATORY 5TATEMENT I, I The Deparmen of Business and Professional Regulaion, Division of Florida Land Sales, Condominiums, and Mobile Homes (Division) hereby issues his Declaraory Saemen pursuan o secion , Florida Saues. PRELIMINARY STATEMENT On Sepember 18, 2006, he Division received a peiion for de~laraory saemen from Maison Grande Condominium Associaion, Inc. requesing anop'inion as o wheher.' i may remove a board member for failing o mee an eligibiliy requiremen(o(residence of 9 or more monhs a year under secion (-2)(a),(d), and O),'Fldrida Sa.u!~s~Noice of receip of he peiion was published in Florida Adminisraive Weekly on Ocober 6, FINDINGS OF FACT >,.- -.-,. The following findings of fac are based on informaion submied by Maison Grande. The Division akes no posiion as o he accuracy of he facs, bu merely acceps hem as submied for purposes of his final order. Page 1 of 9

2 1. Maison Grande Condominium Associaion, Inc. is a condominium associaion operaing Maison Grande Condominium, which is locaed in Dade Couny, Florida. Declaraion of Condominium of Maison Grande Condominium a Maison Grande is incorporaed as a no for profi Florida corporaion. Ar. of Incorp. (Mar. 18, 1971). 3. Maison Grande Condominium was submied o condominium ownership in 1971 under chaper 711, Florida Saues. 4. Angela Vera is a uni owner in Maison Grande. 5. Ms. Vera was appoined by he board o fill a vacancy during he middle of a uni owner recall elecion of he board. Ms. Vera was no included in he recall. The board and he uni owners seeking recall seled he recall effor. 6. A he ime Ms. Vera was appoined o he board, she did no reside in her uni 9 monhs or more in any calendar year. 7. Maison Grande alleges ha Ms. Vera's appoinmen was invalid because she did no mee he eligibiliy requiremens of aricle 8.1 of he aricles of incorporaion, which provides:.' The affairs of he Associaion shall be managed by a Board 'QfDirecors"of eleven members of he Associaion, who. reside in hefr\jiif rio less'.han nine monhs in he calendar year. The Board of Direcors may, from.lrre. o ime, increase or decrease he number of persons o serve on he Board, provided, however, ha he Board shall consis of an odd number, of members, and provided, ha no uni shall have more han one person serving as a direcor a anyone ime. The Board shall never consis of less han five members. Ar. 8.1, Amend. Ar. of Incorp. (Mar. 12, 1980) (emphasis added). Page 2 of 9

3 8. The amended bylaws of he associaion also provide ha membership on he eleven member board of direcors requires he direcors o "reside in heir uni no less han nine (9) monhs in he calendar year." 3.1, Amend. By-Laws. 9. A a meeing, he inerim board, consiued under he recall selemen, voed o dismiss Ms. Vera from service. 10. An elecion was held for he four direcor posiions recalled. The new board me and raified he inerim board's voe o remove Ms. Vera from he bpard for failing o mee he eligibiliy requiremens. 11. Every uni owner is eniled o one voe for each uni owned. Ar. 19.1, Declaraion; 2.5, Amend. By-Laws Maison Grande Condo. Ass'n, Inc. (Mar. 12, 1980). 12. The bylaws provide for he elecion of direcors a he annual meeing. 3.2(a), Amend. By-Laws. "Any member of he Board of Direcors may be recalled and removed from office wih or wihou cause by he voe or agreemen in wciing of a majoriy of all uhi owners." Id. 3.2(f). Vacancies are filled by he board. Id. 3.2(e). CONCLUSIONS OF LAW '.' 1. The Division has jurisdicion o ener his order pursu~n'{9 secions" '.,,-,.,. '. and , Florida Saues. 2. Maison Grande has sanding o seek a declaraory saemen. 3. Secion , Florida Saues, provides: (1) Any subsanially affeced person may seek a declaraory saemen regarding an agency's opinion as o he applicabiliy of a sauory provision, or of any rule or order of he agency, as i applies o he peiioner's paricular se of circumsances. '". Maison Grande Condominium Ass'n, Inc, Page 3 of 9 ".'

4 4. Rule , Florida Adminisraive Code, provides: A declaraory saemen is a means for resolving a conroversy or answering quesions or doubs concerning -- he applicabiliy of sauory provisions, rules, or orders over which he agency has auhoriy. A peiion for declaraory saemen may be used only o resolve quesions or doubs as o how he saues, rules, or orders may apply o he peiioner's paricular circumsances. A declaraory saemen is no he appropriae means for deermining he conduc of anoher person or for obaining a policy saemen of general applicabiliy from an agency. A peiion, for declaraory saemen mus describe he poenial impac of saues, rules, or orders upon he peiioner's ineress. 6. The associaion operaes he condominium under he declaraion, is aricles of incorporaion and bylaws (1)(a), Fla. Sa. The bylaws are required o provide for he elecion of direcors and he mehod of filling vacancies on he board. Id (2)(d), Fla. Sa.; Fla. Admin. Code R The board fills vacancies, oher han hose creaed by a recall elecion, by. board appoinmen or by elecion. Id (d)8; Fla. Admin. Code R "Unless oherwise provided in he bylaws, a board member appoined or eleced under his secion shall fill he vacancy for he unexpired erm of he sea being fiijed."'id (2)8, Fla. Sa.,..'.,. >.'. 8. All uni owners are eniled o run for he board (2)(d;{:'lii.:S~. The only eligibiliy crierion se by law precludes a conviced felon who has no had his or her civil righs resored from running for elecion. Id. Secion (2)(d), Florida Saues (2006), provides: (d) Uni owner meeings There shall be an annual meeing of he uni owners. Unless he bylaws provide oherwise, a vacancy on he board caused by he expiraion of a direcor's erm shall be filled by elecing a new board member, and he Page 4 of 9

5 f elecion shall be by secre ballo; however, if he number of vacancies equals or exceeds he number of candidaes, no elecion is required. If here is no provision in he bylaws for erms of he members of he.board, he erms of all members of he board shall expire upon he elecion of heir successors a he annual meeing. Any uni owner desiring o-be a candidae for board membership shall comply wih subparagraph 3., A person who has been conviced of any felony by any cour of record in he Unied Saes and who has no had his or her righ o voe resored pursuan o law in he jurisdicion of his or her residence is no eligible for board membership. The validiy of an acion 'by he board is no affeced if i is laer deermined ha a member of he board is ineligible for board membership due o having been conviced of a felony. 9. Maison Grande cies o wo declaraory saemens issued by he Division on he quesion of eligibiliy for board candidacy. In Sarr, Golden Lakes Villaqe Condominium Associaion "A", Inc., DS98-029; Docke No. DS98150 (Dec. 22, 1998), he I Division found ha a bylaw requiring uni owners o be in residence for 9 or more monhs of he year was valid under an amendmen o secion (2)(d)1, Florida Saues (1998). The 1998 amendmen provided: "In order o be eligible for board membership, a person mus mee he requiremens se forh in he declaraion." This amendmen reversed prior Division decisions applying his secion, which found h~ every uni owner was eniled o be a candidae for board membership and o serve if eleced. 10. In 2000; he Florida Legislaure repealed he 1998 ~m~ndmell ~~pressly o >..- overurn his declaraory saemen as i was no he inen of he legislaure.o.~ii.<?~. -.c. associaions o enac eligibiliy requiremens ha would preclude a uni owner from being a candidae for he board. The amendmen o secion (2)(d) provides: (2) REQUIRED PROVISIONS.- The bylaws shall provide for he following and, if hey do no do so, shall be deemed o include he fbllowing: (d) Uni owner meeings.- 1. There shall be an annual meeing of he uni owners. Unless he bylaws provide oherwise, a vacancy on he board of adminisr3ion caused by he expiraion of a direcor's erm shall be filled by elecing a new board member, and he elecion shall be by secre ballo; however, if he number Page 5 of 9

6 of vacancies equals or exceeds he number of candidaes, no elecion is required. If here is no provision in he bylaws for erms of he members.of he board of adminisraion, he erms of all members of he board ef adminisraion shall expire upon he elecion of heir successors a he annual meeing. Any uni owner desiring o be a candidae for board -- membership shall comply wih subparagraph 3. In order o be eligible for board membership, a person mus mee he requiremens se forh in he decbraion. A person who has been conviced of any felony by any cour of record in he Unied Saes and who has no had his or her righ o voe resored pursuan o law in he jurisdicion of his or her residence is no eligible for board membership. The validiy of an acion by he board is no affeced if i is laer deermined ha a member of he board is ineligible for board membership due o having been conviced of a felony. Ch , 53, Laws of Fla. (2000). 11. The legislaive bill analysis explained he legislaure's inen behind he. amendmen as follows: Secion Amends s (2)(d), F.S., regarding uni owner meeings; s (2)(e), F.S., relaing o budge meeings; and s (2)(f), F.S., relaing o he annual budge. Presen Siuaion: In 1998 he following senence was added o s (2)(d)1., F.S.:. q "In order o be eligible for board membership a person mus mee he requiremens se forh in he declaraion." This senence was added pursuan o CS/HB 3321, ch , L.O.F. The division consrued he senence o allow declaraions o conain a requiremen ha a person mus be a residen of he condominium in order o become a. member of he board.59 Tha senence was no inended o allqw a re~idency requiremen; i was simply inended o suppor oher requiremens se forh in he declaraion. This inen is clear based upon he prev(o~~senence>in ha subparagraph, which saes ha "any uni owne'r'"desiring o "be,a candidaeis eligible.the perinenprovisionin he 1998 legislaionade.d." language ha was inended o preven conviced felons (who -didno have heir righs resored) from serving on condominium associaion boards.7o Effec of Proposed Changes: Removes he senence which was added in 1998, which he division consrued o allow residency requiremens wih regard o membership on he board, and delees superflu1ouslanguage. 69 In re: Peiion for Declaraory Saemen, Harry Sarr, Golden Lakes Village Condominium Associaion "A",Inc., DBPR Declaraory Saemen , a 10. Fla. HR Comm. Real Prop. & Prob., Final Saff Analysis for CS/CSHB 59~, 1s Engrossed, a 38 (July 26,2000).. Page 6 of 9

7 12. In 2005, he Division issued he second declaraory saemen cied by Maison Grande: Grubbs (Sandpiper Village Condominium), Case No. DS ; Docke No (May 26, 2005). The Division found ha a bylaw prohibiing co- \ owners from serving on he board confliced wih secion (2)(d), Florida Saues. 13. The legislaive inen and he saue are clear ha condominium f associaions may no impose a residency requiremen o resric a uni owner's righ o run \ for board elecion. Therefore, Maison Grande's bylaw provision conflics wih secion (2)(d), Florida Saues. 14. Maison Grande argues ha even if he bylaw residency requiremen is disallowed by he Condominium Ac, i may neverheless impose i under secions and (1), Florida Saues. The associaion is incorporaed as a nofor profi corporaion and is subjec o chaper 617, Florida Saues. Secion , Florida Saues, provides ha corporaions have cerain powers and duies exercised by he board of direcors under he aricles of incorporaion. Secion ,. Florida. Saues, provides ha "[d]irecors mus be naural persons who are 18 years of age or ", older bu need no be residens of his sae or members of he co~poraionun-'~sshe...' aricles of incorporaion or bylaws so require. The aricl~s of incorporaion 6(~e: ~xlavvs 'P'. may prescribe addiional qualificaions for direcors." 15. Secion (1)(a), Florida Saues, requires all associaions creaed afer 1977 o be incorporaed. While incorporaion is no mandaory for Maison Grande, i is incorporaed. The associaion has all of he powers and duies of he corporae law "excep as expressly limied or resriced in his chaper." (2), Fla.Sa. The' elecion for board membership is expressly limied and resriced by he Condominium Ac, Page 7 of 9,

8 > Division which includes more provisions governing elecion procedures and rules. Therefore, he more general corporae law does no aler a uni owner's righ o be a candidae for board membership. 16. Ms. Vera was appoined by he inerim board. She is eniled o serve unil he expiraion of he erm of her sea on he board unless oherwise provided in he bylaws (2)(d)8, Fla. Sa. Therefore, he board may noremove Ms. Vera from her posiion ORDERED ha, under secion (2)(d), Florida Saues, Maison Grande Condominium Associaion, Inc. may no remove a board member for failing o mee an eligibiliy requiremen of residence of 9 or more monhs a year Ondersecion (2)(d), Florida Saues. DONE his Q/~ day of rjcjj~r,2006, a Tallahassee, Leon Couny, Florida. Michae. Cochran, Direcor Deparmen of Business and Professiqnal Regulaion; of Florida,Land $ales, CondominkJl:]s and Mobile Homes. Norhwodd'Cenre.' ". 1940Norh MonroeSreeF." Tallahassee, Florida Page 8 of 9 "

9 NOTICE OF RIGHT TO APPEAL THIS ORDER DENYING PETITION FOR DECLARATORY STATEMENT CONSTITUTES FINAL AGENCY ACTION AND MAY BE APPEALED BY PETITIONER PURSUANT TO SECTION , FLORIDA STATUTES, AND RULE 9.110, F~ORIDA RULES OF APPELLATE PROCEDURE BY FILING A NOTICE OF APPEAL CONFORMING TO THE REQUIREMENTS OF RULE 9.11O(c),FLORIDA RULES OF APPELLATE PROCEDURE BOTH WITH THE APPROPRIATE DISTRICT COURT OF APPEAL ACCOMPANIED BY APPROPRIATE FILING FEES AND WITH THE AGENCY CLERK, 1940 NORTH MONROE STREET, NORTHWOOD CENTRE, TALLAHASSEE, FLORIDA WITHIN THIRTY (30) DAYS OF THE RENDITION OF THIS FINAL ORDER. CERTIFICATE OF SERVICE I HEREBY CERTIFY ha a rue and correc copy of he foregoing has been furnished by U.S. mail o David A. Friedman, Fowler, Whie & Burne, One Financial,. Plaza, Suie 1100, 100 Souheas Third Ave., For Lauderdale, Florida 33394, nis \8+ day of D ce rn~,2006. Copies furnished o: ~().~ N)~\~ RobinMcD~lJjel,DivisionClerk,,'",." ''c. Janis Sue Richardson, Chief Assisan General Counsel Page 9 of 9