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

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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 Bocar at Boca Raton, LLC, Petitioner, v. Case No Bocar Condominium Association, Inc., Respondent. / SUMMARY FINAL ORDER Statement of the Issue Whether a new election is required if the Association did not include on a ballot for the board of directors the name of a unit owner who timely submitted a notice of intent to be a candidate and the Association s sole reason for the exclusion was delinquency in payment of water bills owed by the unit owner to the Association. Procedural History On March 9, 2011, Bocar at Boca Raton, LLC, a unit owner, by its sole member and designated representative, Jules Reich, filed a petition for arbitration alleging that the Bocar Condominium Association, Inc. failed to include Mr. Reich s name on the ballot for the March 19, 2011 election for the Association s board of directors, despite a timely notice of candidacy. On March 14, 2011, an Order Requiring Answer was entered. On April 4, 2011, the Association filed its Answer stating the substantive facts alleged by the petition for arbitration are correct, but stating its action was proper based upon section (2)(d), Florida Statutes. This Summary Final Order is entered based upon the 1

2 agreed facts. Statement of the Facts 1. Petitioner, Bocar at Boca Raton, LLC, is a member of Bocar Condominium Association based upon its ownership of thirty-five units in Bocar Condominium. Jules Reich is the sole member of the LLC and its designated representative. 2. Bocar Condominium Association, Inc., is the entity responsible for operation and maintenance of Bocar Condominium. 3. On February 5, 2011, Jules Reich submitted his Notice of Intent to be a Candidate for the Board of Directors of Bocar Condominium Association in the election meeting to be held March 19, 2011 (42 days before the scheduled election). 4. On or about March 4, 2011, the second notice of election was sent to members of the Association with a ballot that listed four candidates for three open seats on the board of directors. Mr. Reich s name was not on the ballot. 5. On March 4, 2011, an attorney for the Association delivered to an attorney for Petitioner a letter advising that Mr. Reich s name would not appear on the ballot because he, is more than ninety (90) days delinquent in payment of water bills to the Association in an amount totaling approximately Three Thousand ($3,000.00) Dollars. The letter concluded that Mr. Reich was not eligible for board membership pursuant to section (2)(d)1., Florida Statutes. Conclusions of Law The Division has jurisdiction over this matter pursuant to section , Florida Statutes. Rule 61B , Florida Administrative Code, requires entry of a 2

3 summary final order when no disputed issues of material fact have been raised by the pleadings. Section (2)(d)1. Florida Statutes (2010), provides in pertinent part: Any unit owner desiring to be a candidate for board membership must comply with sub-subparagraph 3.a. A person who has been suspended or removed by the division under this chapter, or who is delinquent in the payment of any fee, fine or special or regular assessment as provided in paragraph (n), is not eligible for board membership. Section (2)(d)3.a., Florida Statutes (2010), provides in pertinent part: Any unit owner or other eligible person desiring to be a candidate for the board must give written notice of his or her intent to be a candidate to the association at least 40 days before a scheduled election. Together with the written notice and agenda set forth in subparagraph 2., the association shall mail, deliver or electronically transmit a second notice of the election to all unit owners entitled to vote, together with a ballot that lists all candidates. Article 4.2 of the Association s By-laws specifies the same procedures for candidate notice and the ballot. Section (2)(n), Florida Statutes (2010), provides: Director or officer delinquencies. A director or officer more than 90 days delinquent in the payment of any monetary obligation due the association shall be deemed to have abandoned the office creating a vacancy to be filled according to law. Rule 61B (9), Florida Administrative Code provides, in pertinent part: The written ballot shall indicate in alphabetical order by surname, each and every unit owner or other eligible person who desires to be a candidate for the board of administration and who gave written notice to the association not less than 40 days before a scheduled election, unless such person has, prior to the mailing of the ballot, withdrawn his candidacy in writing. The failure of the written ballot to indicate the name of each eligible person shall require the association to mail, transmit, or deliver an amended second notice, which shall explain the need for the amended notice and include a revised ballot with the names of all eligible persons within the time required by this rule. If an amended second notice cannot be timely mailed, transmitted or delivered, then the association must re- 3

4 notice and reschedule the election. If the election has already been held, under these circumstances the association shall conduct a new election. A unit owner s membership and voting rights in the association must be defined in the conveyance of real property into the condominium form of ownership (30), (4)(j) Fla. Stat. Therefore, they must be recognized as part of a covenant running with the land pursuant to a contract among unit owners and the association. See Woodside Vill. Condo. Ass n v. Jahren, 806 So. 2d 452 (Fla. 2002). Although record title appears in the name of his limited liability company, there is no dispute that Mr. Reich is an owner in fact of units in the condominium, who is entitled to submit his name as a candidate. See Sun Resort, Inc. v. Jellystone Park Condo., Arb. Case No , Partial Summary Final Order (June 13, 1996)(Persons who purchase unit cannot be excluded as candidates because deed to unit had not been recorded at time notice of intent delivered). In any event, the Association has not challenged Mr. Reich s status as a unit owner. Respondent submits that logic and consistency require that the director delinquency statute, subsection (2)(d)(n), must be applied to unit owners who notice their intent to be candidates for the board. Although this apparent logic may be appealing, Florida law is well settled that ambiguity is a prerequisite to judicial construction, and in the absence of ambiguity the plain meaning of the statute prevails. Martin County v. Edenfield, 609 So. 2d 27, 29 (Fla. 1992). Section (2)(d)3.a., as implemented by Rule 61B (9), and echoed in Article 4.2 of the Association s By-laws, is not ambiguous. It clearly requires that when a unit owner submits a notice of intent to be a candidate, the Association shall send out a second notice of election with a ballot that contains the unit owner s name as 4

5 a candidate. The statute, rule and Respondent s by-laws do not authorize screening of unit owners before the ballots are sent out. 1 In any event, history does not support Respondent s argument that qualifications should be determined before the election. For instance, the United States Constitution provides that a candidate for the House of Representatives must prove residency in the state to be represented only when elected. United States Constitution, Article I, Section 2, Clause 2. The conclusion that the vote of the entire membership of an association provides an appropriate screening of candidates protects the right of unit owners to vote and participate in governing the association. In a democracy, such a process will be preferred over sacred unyielding adherence to statutory scripture. Boardman v. Esteva, 323 So. 2d 259, 263 (Fla. 1975). Efficiency results because, if a candidate is not elected, evaluation of qualifications and eligibility is rendered unnecessary. Accordingly it is ORDERED: 1. Within 40 days of the date of this Order, Bocar Condominium Association, Inc. shall conduct a new annual election for 2011; 2. The new election shall proceed based upon an amended second notice of election that advises unit owners of the reasons for the new election and includes the names of all unit owners who submitted notice of intent to be candidates on or before February 7, DONE AND ORDERED this 11th day of April, 2011, at Tallahassee, Leon County, 1 This conclusion makes it unnecessary to evaluate whether such a screening would have to be performed by the board of directors at a properly noticed board meeting. See (4), Fla. 5

6 Florida. Bruce A. Campbell Arbitrator Dept. of Bus. & Prof. Reg. Arbitration Section 1940 North Monroe Street Tallahassee, Florida Trial de novo and Attorney s Fees This decision shall be binding on the parties unless a complaint for trial de novo is filed within 30 days in accordance with section , Florida Statutes. As provided by section , Florida Statutes., the prevailing party in this proceeding is entitled to have the other party pay reasonable costs and attorney s fees. Any such request must be filed within 45 days in accordance with Rule 61B , F.A.C. Certificate of Service I hereby certify that a copy of the foregoing final order has been sent by U.S. Mail to the following persons on this 11th day of April, 2011: Russell M. Robbins, Esq West Road Suite 103 Coral Springs, FL Leonard Wilder, Esq. Sachs Sax 6111 Broken Sound Pkwy, Ste 200 Boca Raton, FL 3433 Bruce A. Campbell Stat. 6