STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES AND MOBILE HOMES

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1 STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION THE VILLAS AT BRISTOL PARK CONDOMINIUM ASSOCIATION, INC., Petitioner, v. Case No UNIT OWNERS VOTING RECALL, Respondent. / SUMMARY FINAL ORDER Statement of the Issue The issue in this case is whether The Villas at Bristol Park Condominium Association, Inc. (the Association) properly rejected the recall by written agreement of four members of a five-member board of directors. Relevant Procedural History On November 26, 2014, the Association filed a Recall Arbitration Petition. On December 3, 2014, the arbitrator entered an order requiring answer. On December 23, 2014, Respondent filed an Answer. On January 5, 2015, the arbitrator entered an order requiring reply and filing. On February 6, 2015, the Association filed a reply and a response to the order requiring filing. Findings of Fact 1. The Villas at Bristol Park Condominium Association, Inc. is the legal entity responsible for the operation of The Villas at Bristol Park Condominium. 1

2 2. The total number of units in the Association is 208. The Declaration of Condominium provides that each unit has an equal voting share. Therefore, 105 votes are required to recall any member of the board. 3. There were five seats on the Association s board of directors at the time the recall was served. 4. On November 13, 2014, the Association received a written recall agreement containing 115 purported recall votes. The directors sought to be recalled and the corresponding number of ballots as to each are: Lucia Arana Rueda 115 Luis Sastriques 115 Fernando Correa 115 Isabel Gradiz The written recall agreement ballots served on the board utilized the standard form available from the Division. 6. The replacement candidates are Freddy L. Bermudez, Jorge Arnesto, Leonard Collado and Joell Castilo. 7. The date of the next regularly-scheduled election for the seats of the board members subject to recall is on April 15, The Board of Directors of the Association held a properly-noticed meeting on November 19, 2014, at which it did not certify the recall. 9. The minutes of the board meeting of November 19, 2014 document the meeting at which the board voted not to certify the recall. According to the minutes of the meeting, the reasons the board rejected the recall are as follows: 2

3 a. The owners of 10 units voting for recall have had their voting rights suspended. b. The owners of 15 units did not have voting certificates on file. Five of these units are owned by corporate entities. Ten of the units are owned by multiple natural persons. c. Four ballots were rejected because the name of the ballot did not match the owner of record. d. Two ballots were rejected because the Spanish-speaking owners claimed they did not understand English, and they were misled into signing the recall agreement. e. One ballot was rejected because the signer admitted he signed the ballot on behalf his uncle, the owner of the unit. 10. According to the minutes of the recall meeting, a total of 32 ballots were rejected. Therefore, the board determined that there were only 83 valid recall votes. Consequently, it concluded there was an insufficient number for a successful recall. 11. The Association was required to file proof that it properly suspended the voting rights of the ten unit owners. In response, the Association averred that all ten unit owners are in collection. The Association did not provide any proof that it had followed the procedures set forth in Section , Florida Statutes, to suspend the ten unit owners. Conclusions of Law The arbitrator has jurisdiction of the parties and the subject matter of this dispute pursuant to Sections (2)(j) and , Florida Statutes. A Summary Final 3

4 Order is appropriate in this case pursuant to Rule 61B (3), Florida Administrative Code. Voting Certificates Section 2.2 of the Association s By-Laws states: 2.2 Voting Interests. The members of the Association are entitled to one (1) vote for each unit owned by them. The total number of votes ( voting interests ) shall equal the total number of units. The one vote of each unit is not divisible. If a condominium is owned by one natural person, the owner s right to vote shall be established by the record title to the unit. If a unit is owned jointly by two or more natural persons, those persons (including husbands and wives) shall decide among themselves as to who shall cast the vote of the unit. If two or more owners of a unit do not agree among themselves how their one vote shall be cast, that vote shall not be counted. A person casting a vote for a unit shall be presumed to have the authority to do so unless the President or the Board of Directors is otherwise notified. If the owner of a unit is a corporation, the person entitled to cast the vote for the unit shall be designated by a certificate signed by an appropriate officer of the corporation and filed with the Secretary of the Association. Those certificates shall be valid until revoked or until superseded by a subsequent certificate or until a change in the ownership of the unit concerned. If a certificate designating the person entitled to cast the vote for a unit for which such certificate is required is not on file or has been revoked, the vote attributable to such unit shall not be considered in determining whether a quorum is present, nor for any other purpose, and the total number of authorized votes in the Association shall be reduced accordingly until such certificate is filed. If the owner is a partnership the vote may be cast by any general partner. In the case of a unit subject to an agreement for deed, the contract vendee shall be entitled to exercise the voting rights of the owner. In the case of a life estate, the life tenant shall be entitled to exercise the voting rights of the remaindermen. (emphasis supplied). Ten of the units whose votes were rejected for failure to have a voting certificate on file are owned by multiple natural persons, therefore a voting certificate is not required by the Association s governing documents for those units. The Association s By-Laws provide that the co-owner casting a vote on behalf of a unit is presumed to be authorized unless the Association is otherwise notified. The Association 4

5 should not have rejected the ballots of those ten units. Oakwood Condo. Ass'n, Inc. v. Unit Owners Voting for Recall, Arb. Case No , Summary Final Order (April 29, 2004)(Where governing documents do not require voting certificates, an association cannot enforce a nonexistent voting certificate requirement). 1 Suspension of Voting Rights The Association claims that the voting rights of ten unit owners have been suspended for being 90 days delinquent, and therefore, it properly rejected their votes. Section (5) and (6), Florida Statues, states as follows: (5) An association may suspend the voting rights of a unit or member due to nonpayment of any monetary obligation due to the association which is more than 90 days delinquent. A voting interest or consent right allocated to a unit or member which has been suspended by the association may not be counted towards the total number of voting interests necessary to constitute a quorum, the number of voting interests required to conduct an election, or the number of voting interests required to approve an action under this chapter or pursuant to the declaration, articles of incorporation, or bylaws. The suspension ends upon full payment of all obligations currently due or overdue the association. The notice and hearing requirements under subsection (3) do not apply to a suspension imposed under this subsection. (6) All suspensions imposed pursuant to subsection (4) or subsection (5) must be approved at a properly noticed board meeting. Upon approval, the association must notify the unit owner and, if applicable, the unit's occupant, licensee, or invitee by mail or hand delivery. To properly suspend a unit owner s voting rights, the Association is required to identify the unit owners subject to suspension in the meeting notice and at the meeting. Windwood Condo. Ass n Inc. v. Unit Owners Voting Recall, Arb. Case No and Arb. Case No , Order Consolidating Cases, Denying Association s Motion for an Extension of Time and Summary Final Order (November 21, 1 Because of the result of this Order, it is unnecessary to address whether the Association properly rejected the votes of the five units owned by corporate entities. 5

6 2011). As the Association has failed to provide any proof that it followed the proper procedures to suspend the ten unit owners, it improperly rejected their votes. English Proficiency The Association rejected the ballots of two units because the owners claim they do not speak and understand the English language and were misled into signing the recall agreement. The focus of an arbitration proceeding is whether the procedure outlined by the statutes and rules was followed because the intent of the voters is irrelevant, as they have the right to recall with or without cause. Sailboat Cay Condo. Ass n, Inc. v. Group of Members of the Ass n Who Executed a Written Agreement to Recall, Arb. Case No , Order Ruling on a Certain Objection (December 31, 1997). The owner s right to vote for recall carries with it a duty to be informed about the issues and the candidates. Id. A board cannot refuse to certify a recall agreement signed by the majority of the homeowners on the grounds that the homeowners were told untruths or were misinformed, as the board does not have the authority to ignore their votes. The Board of Directors of Driftwood Sands Condo. Ass n, Inc. v. Owners Executing the Recall Agreement, Arb. Case No , Summary Final Order Certifying the Recall (October 17, 1994). In Sailboat Cay Condo, Ass n, Inc., the arbitrator determined that, as a matter of law, recall ballots of Spanish-speaking unit owners were improperly rejected even when some of the unit owners claimed they misunderstood the ballot written in English. Therefore, the Association should not have rejected these two ballots. 6

7 Conclusion At its meeting, the Board of the Association determined 83 ballots were valid. The Association improperly rejected 22 ballots. Therefore, at least 105 valid recall votes were served on the Association. As this is determinative in the matter, the Association s remaining reasons for rejecting the recall need not be addressed. Based upon the foregoing, it is ORDERED: 1. The recall of board members Lucia Arana Rueda, Luis Sastriques, Fernando Correa and Isabel Gradiz is hereby CERTIFIED and they are REMOVED as directors effective as of the date of the entry of this order. 2. Because a majority of the board has been recalled, Freddy L. Bermudez, Jorge Arnesto, Leonard Collado and Joell Castilo shall take seats on the board effective immediately for the remainder of the term of the seat Within five (5) full business days from the date of this Order, Lucia Arana Rueda, Luis Sastriques, Fernando Correa and Isabel Gradiz shall deliver any and all records of the Association in their possession to the new board of directors. DONE AND ORDERED this 17th day of February, 2015, at Tallahassee, Leon County, Florida. Terri Leigh Jones, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida Telephone (850) Facsimile (850) In its reply, the Association alleges that Mr. Bermudez no longer wants to serve on the board. If this is accurate, the new board of directors shall treat this as a resignation. 7

8 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 facsimile to the following persons on this 17th day of February, 2015: John Paul Arcia, Esq W. Flagler Street, Suite 355 Miami, FL Fax: Attorney for Petitioner Russell M. Robbins, Esq. Mirza Basulto & Robbins, LLP 9690 West Sample Road Suite 103 Coral Springs, FL Fax: Attorney for Respondent Terri Leigh Jones, Arbitrator 8