STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION Jules F. St. Denis, Petitioner, v. Case No. 02-5253 Oasis Village of Okeechobee Owners Association, Inc. Respondent. / FINAL ORDER Comes now, the undersigned arbitrator, and issues this final order as follows: Petitioner filed his petition in this matter on July 15, 2002. While the petition is not without some ambiguity, the petition appears to allege that the association through its board has attempted to assume control and dominance over an informal social group formed by certain of the owners. According to the petition, a social group was formed in 1991 and was named Le Club Social du Village Oasis. The group is not incorporated and has no formative or controlling documents. It is composed of owners and other residents including tenants. The social club (hereinafter The Club ) has assisted financially in various improvement projects over the years since its formation. When undertaking improvements, the Club has secured board permission before proceeding with any planned improvement. The Club does not spend common expense monies, but instead spends voluntary contributions donated by its members. Over the years, the Club has always permitted non-owners 1
such as tenants to vote on matters coming before the social club. The Club is not a committee of the association, but was created as an organization independent of the board of the condominium association. In fact, the bylaws of the association were amended to reflect this resolution in 1995: The Oasis Village Social Club is an autonomous Club in our Village. The Executive Committee of Oasis Village encourages the organization of the Village residents to have their own activities and to look after their own finances, as long as it does not interfere to the needs of the residents. However the Administration Committee reserves the right to look into their activities and also to intervene in the case of a conflict of interest, fraud or persistent disagreement. The social Club reserves different common areas according to their needs. Further according to the petition, at an association membership meeting held on March 2, 2002, the chairman of the board of the condominium association announced certain proposed changes, including making the chairman a member of the board of the Club, allowing only owners to vote on Club issues, and requiring all funds of the Club to be siphoned into an association account during the summer months when the residents were in Canada. These items were not on the agenda for the March 2nd meeting. The Club conducted an election on March 19, 2002 under these new procedures. The petitioner seeks entry of a final order requiring the association to respect the independence of the Club and setting aside the election of March 19, 2002. The Club has no legal existence but is only an informal association composed of its members as they may exist from time to time. If the Club was incorporated under Ch. 617, F.S., providing for the incorporation of not-for-profit organizations, it would have articles of incorporation, bylaws, and rules and regulations that would 2
assist in explaining its functions and purposes, and at the same time such regulation would provide a key in understanding the operation of the Club. Corporate documents would at the same time provide a framework within which the Club would be required to operate. Questions such as how to conduct an election of the board of the Club would be answered simply by referring to the bylaws which would be required to be followed absent some amendment to its own bylaws. Here, by way of contrast, there are no controlling documents because the Club has no legal existence under Ch. 617, F.S. or any other statute. There are no procedures or regulations prescribing the organization of the Club or guiding its activities. Notwithstanding the lack of formal organization, the owners certainly have the right to join together in informal association, and have the right to have their activities exist independent from the condominium association that has no right to control the inner workings of the Club or its funds. The members of the Club have the right to utilize the common elements for the purposes intended, and may assemble on the common elements as club members for club functions. 1 They may conduct closed door membership meetings so long as they have properly reserved the meeting facilities, and they have the right to operate without the interfering gaze or hands of the association. The association violated s. 718.112(2)(d)1., F.S. by considering the resolutions pertaining to the Club at the membership meeting conducted on March 2, 2002. The statute requires an identification of agenda items before a matter 1 There is no allegation that the Club is violating Ch. 718, F.S., or is otherwise interfering with the lawful operation of the condominium association. 3
may be considered. The resulting vote taken was, therefore, void and of no effect, and the later election conducted on March 19, 2002, conducted in the manner suggested by the illegal resolution, was also void. Aside from the agenda deficiency, the action of the association is also found to be inconsistent with its bylaws which give explicit recognition to the independence of the Club and assures operational autonomy to the Club. Based on the foregoing, the association shall refrain from further violations of s. 718.112(2)(d), F.S., and further shall not interfere with the associational rights of its members who are also members of the Club. The association shall not interfere with the meetings of the Club and shall make its facilities available to the Club upon reasonable request. The association shall not procure or appropriate the funds of the Club. The Club may conduct a new election in accordance with whatever rules or guidelines the Club members desire. The changes at the March 2, 2002 meeting are hereby voided, and all club members are declared entitled to vote. The club members must, for their part, recognize that in the absence of any formal incorporation or formation, questions relating to the proper functioning and purpose of the Club will forever plague the operation of the Club. The Club should consider adopting some rules and regulations including a method of amending the same, and might consider formal incorporation in order to address issues sure to arise in the future. DONE AND ORDERED this 6th day of November, 2002, at Tallahassee, Leon County, Florida. Karl M. Scheuerman, Arbitrator Department of Business and 4
Professional Regulation Arbitration Section Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-1029 Certificate of Service I hereby certify that a true and correct copy of the foregoing final order has been sent by U.S. Mail to the following persons on this 6 th day of November, 2002: Jules F. St. Denis 1601 Highway 441 S.E. Lot 117 Okeechobee, Florida 34974 Jean-Marc Couture 73 Rue de Bernieres Canton Granby, Quebec J2H 2P7 Canada Jean-Marc Couture 1601 Highway 441 S.E. Lot 140 Okeechobee, Florida 34974 Right to Appeal 5 Karl M. Scheuerman, Arbitrator As provided by s. 718.1255, F.S., this final order may be appealed by filing a complaint for trial de novo with a court of competent jurisdiction in the circuit in which the condominium is located, within 30 days of the entry and mailing of this final order. This order does not constitute final agency action and is not appealable to the district courts of appeal. If this final order is not timely appealed, it will become binding on the parties and may be enforced in the courts. Attorney s Fees As provided by s. 718.1255, F.S., the prevailing party in this proceeding is entitled to have the other party pay its reasonable costs and attorney s fees. Rule 61B-45.048, F.A.C. requires that a party seeking an award of costs and attorney s fees must file a motion seeking the award not later than 45 days after rendition of this final order. The motion must be actually received by the Division within this 45 day period and must conform to the requirements of rule 61B-45.048, F.A.C. The filing of an appeal of this order does not toll the time for the filing of a motion seeking prevailing party costs and attorney s fees.