STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES AND MOBILE HOMES IN RE: PETITION FOR RECALL ARBITRATION Pine Gardens Condominium Association, Inc., Petitioner, v. Owners Voting for Recall, Case No. 2009-05-4322 Respondent. / ORDER CERTIFYING RECALL Procedural History On October 8, 2009, Pine Gardens Condominium Association, Inc. ( Association ) filed a Recall Arbitration Petition asking for an Order affirming its decision to not certify a recall served on its Board on September 18, 2009. The Petition was forwarded to the Unit Owner Representative by electronic mail on November 6, 2009, and a Case Management Conference was held on November 10, 2009. After reviewing the documents filed and conferring with both parties at the Case Management Conference, there is no question of material fact pertaining to the recall, and entry of a Final Order is appropriate. Fla. Admin. Code R. 61B-50.119 (2009). member. FINDINGS OF FACT 1. The Association has 12 voting interests. 2. Seven voting interests are needed to effectuate the recall of a board 1
3. There are 3 seats on the Board of Directors for the Association. 4. The 3 Board Members who were serving on the Board in June and July of 2009 (Taras Stolar, Finbar Oregon, and Olena Rymiszewski) became more than 90 days delinquent in the payment of their assessments. Therefore, they were deemed to have abandoned their positions on the Board under Fla. Stat. 718.112(n) (2009). 5. In late June or early July, Richard Vaughn, a unit owner, notified the Florida Department of Business and Professional Regulation ( Department. ) that the 3 identified Board Members were more than 90 days delinquent in the payment of their assessments; Vaughn asked the Department to remove these members from the Board and appoint him in their place. 6. On July 20, 2009, the Department wrote Mr. Vaughn a Warning Letter advising that Board Members Stolar, Oregon, and Rymiszewski had vacated their positions as Board Members under 718.112(n) by virtue of their delinquent payments and that they were to be removed as a matter of law. The letter further advised that Richard Vaughn and Monte McCymont would be de facto Board Members until such time as an election could be conducted. 7. Pursuant to the letter, Board Members Stolar, Oregon, and Rymiszewski were no longer Board members, and they were replaced by Richard Vaughn and Monte McCymont. Monte McCymont then removed himself from the Board because he was delinquent in his assessment payments by more than 90 days. 8. During August, 2009, Stolar, Oregon, and Rymiszewski paid their delinquent assessments and remain current on payment of their assessments as of the date of this Order. 2
9. On September 18, 2009, the Association was served with 7 recall ballots to recall Richard Vaughn. 10. Mr. Vaughn held a meeting of the Board, without a quorum; he determined that his recall from the Board would not be certified. The minutes of his meeting state that the reason he did not certify his recall from the Board was because A. Tallahassee had placed him on the Board; and, B. The individuals removed from the Board in late July (Stolar, Rymiszewski, and Oregon) had been delinquent in the payment of their assessments by more than 90 days. 11. The Association, by Mr. Vaughn, filed a Recall Petition on October 8, 2009, asking for an Order affirming his decision to not certify his recall. The petition notes that the next scheduled election is set in April 2010. CONCLUSIONS OF LAW The arbitrator has jurisdiction over the parties and the subject matter of this dispute pursuant to 718.112(2)(j)(3), Fla. Stat. and 718.1255 (2009). A Summary Final Order is appropriate because there are no disputed issues of fact. Fla. Admin. Code R. 61B-50.119 (2009). Any member of an Association s board of directors may be recalled and removed from that office, with or without cause, provided a majority of the Association s voting interests agree to do so by written ballot or agreement. Fla. Stat. 718.112 (2)(j) (2009). If the proposed recall is by an agreement in writing by a majority of all voting interests,... [T]he board of administration shall duly notice and hold a meeting of the 3
board within 5 full business days after receipt of the agreement in writing. Id., at paragraph 2. If the board fails to duly notice and hold a board meeting within 5 full business days of service of an agreement in writing,... the recall shall be deemed effective and the board members so recalled shall immediately turn over to the board any and all records and property of the association. Id., at paragraph 4. Failure to Have a Quorum In the instant case, Mr. Vaughn was the sole individual meeting to consider the recall. Mr. Vaughn s consideration of the recall ballots did not constitute a meeting of the Board because there was no quorum of Board members present. Fla. Admin. Code R. 61B-23.001(1)(a) states: Meeting of the board of administration means any gathering of the members of the board of directors, at which a quorum of the members is present, for the purpose of conducting association business. The Association s By-laws, at Paragraph (C)(8) state: A quorum at a directors meeting shall consist of a majority of the entire board of directors. Therefore, no Board meeting occurred, and in accordance with Fla. Stat. 718.112(j)(4) (2009), the recall is certified. No Legitimate Reason to Deny Certification Even if the absence of a quorum were not dispositive of the recall s certification, it is worth noting that the Association s minutes of the recall meeting do not articulate any defect in the ballots submitted. Mr. Vaughn s only basis for failing to certify the recall is that he was he was appointed by Tallahassee. Even if Mr. Vaughn was legitimately appointed to the Board, the recall meeting still fails, due to the lack of a 4
quorum. At any time prior to the recall meeting additional Board members could have been appointed, which would have rendered such meeting valid. Fla. Stat. 718.112(j)(3) (2009). Mr. Vaughn. The ballots are valid on their face, and the majority of unit holders voted to recall Based upon the foregoing, IT IS ORDERED: A. The recall of Board member Richard Vaughn is CERTIFIED and he is REMOVED as a director effective as of the date of the entry of this order; B. The replacement candidate, Olena Ryniszewski is to take the seat of the recalled Board member, effective immediately; C. Within five (5) full business days from the effective date of this order, Richard Vaughn is to deliver any and all records of the Association in their possession to the new board of directors; D. Olena Ryniszewski may appoint Board Members pursuant to 718.112(j)(3), Fla. Stat. (2009). DONE AND ORDERED this 16 th day of November 2009, 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 As provided by 718.1255 Fla. Stat. (2009), this decision is binding on the parties unless a complaint for trial de novo is filed within 30 days of the date of this Order. 5
CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing final order was sent by U.S. mail, postage prepaid, this 16 th day of November 2009, to: Richard Vaughn 400 Fern St., Unit 1D Jupiter, FL 33458 Taras Stolar 402 Fern St. #2A Jupiter, FL 33458 Shirley J. Whitsitt 6