STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION Esplanade Club, Inc., Petitioner, v. Case No. 2010-04-5891 Unit Owners Voting For Recall, Respondent. / SUMMARY FINAL ORDER Statement of Issue The issue presented for determination is whether the written recall agreement served on the Association s board of directors on August 25, 2010, should have been certified. Procedural History On September 9, 2010, Esplanade Club, Inc. (the Association) filed a petition for recall arbitration. On September 16, 2010, the arbitrator entered an Order Allowing Answer. The unit owners voting in favor of the recall are the Respondent in this matter. On September 28, 2010, Respondent filed an answer to the petition with exhibits alleged to be official voting records for 2009 and 2010. On September 30, 2010, an Order Allowing Reply was entered requiring the Association to admit or deny the authenticity of the voting records attached as exhibits and allowing legal argument. Findings of Fact 1. The total number of voting interests in the Association is 121. The board 1
of directors consists of 9 members. 25, 2010. 2. To recall a board member, 61 valid recall ballots are needed. 3. A total of 62 ballots were delivered to the Association s office on August 4. The number of ballots with votes to recall each board member was: Darrell Ball 62 Edward K. Duch, Jr. 62 Rui Fernandes 62 David Goller 62 Richard Greenwood 62 David Koenig 61 Ralph Pfaff 60 Carol Toupin 62 Robert Witmus 62 5. The board determined not to certify the recall at a meeting held on September 1, 2010. The minutes of the board meeting report the reasons for rejecting the recall as: a. Unit 203 ballot signed by Belva Call, but record owner is Charles Call; b. Unit 204 ballot signed by unit owner believed to lack mental capacity, signature does not match signature on other document and apparent misspelling of name; c. Unit 504 ballot signed by David Kelly, but record owner is corporation with designated primary occupant Patricia Kelly; d. Unit 603 ballot signed by John Holland, but record owner is a corporation, 603 Naples, LLC with designated primary occupant Carolyn Holland; e. Unit 1102 ballot signed by Vivian Calmenson, but record owners are two trusts for which Vivian Calmenson is a co-trustee who did not state in what capacity she signed; f. Unit 1201 ballot signed by A. Maitland Comb, but record owners are two trusts and Mr. Maitland is not trustee for one of the trusts; g. Unit 104 owned by trust without Association approval or designated h. Unit 302 owned by trust without Association approval or designated i. Unit 502 owned by trust without Association approval or designated 2
j. Unit 902 owned by trust without Association approval or designated k. Unit 904 owned by trust without Association approval or designated l. Unit 1003 owned by trust without Association approval or designated m. Unit 1102 owned by trust without Association approval or designated n. Unit 1201 owned by trust without Association approval or designated o. Unit 1203 owned by trust without Association approval or designated p. Unit 1400 owned by trust without Association approval or designated q. Unit 1406 owned by trust without Association approval or designated r. Unit 1506 owned by trust without Association approval or designated s. Unit 1605 owned by trust without Association approval or designated t. Service of the written agreement for recall to the Association office did not comply with Chapter 48, Florida Statutes of Rule 61B-23.0028, Florida Administrative Code. 6. The signatures on the contested ballots were: a. Unit 203 Belva M. Call b. Unit 204 Sarah Jane Whitlam Trustee c. Unit 504 Kelly Investment Team LLC., an Ohio limited liability company, David R. Kelly- co-manager d. Unit 603 John Holland, Mgr. e. Unit 1102 Vivian Calmenson Co-TTE f. Unit 1201 A. Maitland Comb, ttee g. Unit 104 Steven Turbiner ttee Sheila Turbiner ttee h. Unit 302 Margaret DeVito trustee i. Unit 502 Janet Chorkey-Rosalik, Trustee j. Unit 902 Richard D. Smith, ttee k. Unit 904 Constance Connor Trustee l. Unit 1003 Leticia Cain, Susan Donnelly, cottee and Karen Naughton, cottee m. Unit 1203 Virginia Visnich, ttee, Sam Visnich n. Unit 1400 Barbara Ann Alderuccio, ttte o. Unit 1406 Steven M. Turbiner, co ttee, Mara Felder, co-ttee p. Unit 1506 Constance A. Connor Trustee q. Unit 1605 Rosemary D. Miholich, tte 3
7. Article 11.1 of the Amended and Restated Declaration of Condominium of Esplanade Club, a Condominium provides that, if a unit is owned by more than one person, a partnership, corporation trust or other entity, the owner of the unit shall designate a Primary Occupant. part: 8. The Amended and Restated Bylaws of Esplanade Club, Inc. provides, in If a Unit is owned in trust, or by a corporation, partnership, or other entity which is not a natural person, that Unit s vote may be cast by the Unit s Primary Occupant, designated as set forth in Section 11.1 of the Amended and Restated Declaration of Condominium. 9. The Association used a printed form listing units, with apparent owners or primary occupants, as a guide to tally votes at the February 16, 2010 annual meeting of members. With respect to the units whose votes were rejected the form listed: a. Unit 203 Belva M. Call b. Unit 204 Sarah Jane Whitlam c. Unit 504 David R. Kelly d. Unit 603 Carolyn Holland e. Unit 1102 Vivian Calmenson f. Unit 1201 A. Maitland Comb g. Unit 104 Turbiner, Steven M. & Sheil h. Unit 302 Margaret DeVito i. Unit 502 Chorkey-Rosalik, Janet & j. Unit 902 Richard Smith k. Unit 904 Constance Connor l. Unit 1003 Leticia Cain m. Unit 1203 Sam or Ginny Visnich n. Unit 1400 Barbara Ann Alderuccio o. Unit 1406 - Turbiner, Steven M. & Sheil p. Unit 1506 Connie Connor q. Unit 1605 Rosemary D. Miholich 10. A similar printed form was used for the February 17, 2009 annual meeting. The names were substantially the same except for Unit 1102 which listed Benjamin B. and Vivian Calmenson, and Unit 1203 which listed Vilnich, Sam; Geo. & Ginny. 4
11. Outer envelopes were accepted for the election of 2009 with respect to units based upon signatures and unit owners as follows: a. Unit 203 Belva M. Call b. Unit 1102 B.B. Calmenson c. Unit 1201 A. Maitland Comb d. Unit 104 Sheila Turbiner e. Unit 302 - Margaret DeVito f. Unit 502 Janet Chorkey g. Unit 902 Richard Smith h. Unit 904 Constance Connor i. Unit 1003 - Letitia Cain j. Unit 1400 Barbara Alderuccio k. Unit 1406 Sheila Turbiner l. Unit 5106 - Constance Connor 12. The address of record for the owner of Unit 603, according to the deed recorded to 603 Naples, LLC, in the official records of Collier County, and the Collier County Tax Collector is in care of John Holland, Manager. The Association had processed an Application and Approval of the transfer of ownership to this entity pursuant to Section 11 of the Declaration of Condominium. 13. Belva Call is the widow of Charles Call who died in 2000. The condominium in Naples, Florida was devised to her by a will admitted to probate in Florida. The records of the property appraiser of Collier County list her as the owner of Unit 203 of Esplanade Club. 14. Comparison of the signature on the ballot for Unit 204 with the deed filed along with the Petition does not provide evidence of a significant discrepancy or misspelling. Conclusions of Law The arbitrator has jurisdiction of the parties and the subject matter of this dispute pursuant to Sections 718.112(2)(j) and 718.1255, Florida Statutes. 5
A Summary Final Order is appropriate in this case pursuant to Rule 61B-50.119, Florida Rules of Administrative Procedure, because no disputed issues of material fact exist. Service of Recall Written Agreements Rule 61B-23.0028, Florida Administrative Code, provides a number of methods for serving a recall written agreement. Arbitration case law has consistently limited the application of Rule 61B-23.0028, FAC, to the determination of when the association has been placed on official notice of the recall. See Nautilus Condo. Ass n, Inc. v. Unit Owners Voting For Recall, Arb. Case No. 99-2076, Summary Final Order (December 3, 1999). If the association knows of the recall and holds a timely meeting to evaluate the recall ballots, the method of delivery is of no significance. Cf. The Beach Condo. Owners Ass n, Inc., Arb. Case No. 92-0273, Order Dismissing Petition (January 22, 1993)(Recall certified by operation of law because Association did not have meeting within five days after it admittedly had notice). Therefore, Petitioner could not reject the instant recall because of improper service of the written agreements. Persons Allowed to Vote for Units Petitioner rejected 15 recall ballots (Units 504, 603, 1102, 1201, 104, 302, 502, 902, 904, 1003, 1203, 1400, 1406, 1506, 1605) because they were signed by a person for whom the owner of legal title to the unit had not complied with the formalities of the governing documents to designate a primary occupant. Petitioner argues that arbitration rulings on voting certificate requirements do not apply, because the failure to comply with governing documents, in this case, involves title to the units and unapproved transfers. In counting votes for a recall, that is a distinction without a 6
difference. It is undisputed that the Association has counted votes from many of these same individuals in past elections and listed them as voters for the units in its published records. If the Association now intends to challenge long-standing titles or transfers of ownership, it must do so in another forum. When the purpose is to avoid confusion from possible conflicting votes for a single unit, the function is the same for primary occupant designation as for voting certificates. They will not be rigidly enforced to interfere with the statutory right to vote of recognized owners of condominium units. When an association has not consistently enforced provisions requiring voting certificates, failure to comply with technical requirements of such provisions will not be accepted as grounds to reject votes of unit owners of the condominium. El Galeon by the Sea Condominium Association, Inc. v. Unit Owners Voting for Recall, Arb. Case No. 02-4821 (June 6, 2002); The Caribbean Condominium Management Association, Inc. v. Kennedy, Arb. Case No. 93-0175 (October 27, 1993). Both Galeon and Caribbean declared votes for specific units to be valid because the association had no evidence that it had enforced certificate requirements to invalidate votes from those units. Similarly, arbitrators will not enforce technical requirements for voting certificates where the authority of the person signing the agreement is clear and should be known to the association, despite legal title in the name of a wholly owned corporation or trust. Coquina Isle Condo. Ass n, Inc. v. Unit Owners Voting for Recall, Arb. Case No. 2005-00-6513, Summary Final Order (March 30, 2005). There is no doubt the members of the board of directors knew the identity of the persons whose votes were rejected, and the ownership interests of those persons in the units. 7
Mental Incompetence The vote for Unit 204 was rejected because of a belief that she did not have capacity to knowingly sign the agreement, the signature did not match a document on file, and an apparent misspelling of the name. If a person has not been declared mentally incompetent by a court of law, the arbitrator will not accept lay opinions of neighbors to disqualify a vote. See Ocean Harbor Association, Inc. v. Unit Owners Voting for Recall, Arb. Case No. 02-5530, Summary Final Order (January 3, 2003). Signature Not Match The allegation that a signature does not match exemplars will not be found to create a disputed issue of material fact without supporting affidavits from the unit owner whose signature is in dispute or expert testimony from a qualified document examiner who has had the opportunity to inspect known original signatures. See Monaco Garden Condominium Apartments, Inc., v. Unit Owners Voting for Recall, Arb. Case No. 2010-01-9408, Summary Final Order (May 12, 2010). The Association has not provided any such proof. Conclusion Based upon the foregoing analysis, none of the individual ballots was properly rejected. Therefore the written agreements presented a majority of all voting interests to recall all of the directors except Ralph Pfaff. Accordingly, it is ORDERED: 1. The recall of the board members Darrell Ball, Edward K. Duch, Jr., Rui Fernandes, David Goller, Richard Greenwood David Koenig, Carol Toupin and Robert Wittmus is CERTIFIED; 8
2. The decision not to certify the recall of Ralph Pfaff is AFFIRMED; 3. Clifford Cole, Connie Connor, Gordon Hoff, Chris Kotowicz John Price, Peter Teschner, Stephen Turbiner and David Wilson shall take seats on the board, effective immediately. 4. Within five (5) days of this Order, each of the recalled board members shall hand over all association property and documents in his or her possession to one of the members of the new board. DONE AND ORDERED this 20th day of October, 2010, at Tallahassee, Leon County, Florida. Bruce A. Campbell, Arbitrator Dept. of Bus. & Prof. Reg. Arbitration Section 1940 North Monroe Street Tallahassee, Florida 32399-1029 Certificate of Service I hereby certify that a copy of the foregoing summary final order has been sent by U.S. Mail to the following persons on this 20th day of October, 2010: Michael R. Whitt, Esq. Fax: 239-433-5933 Becker Poliakoff 12140 Carissa Court, Suite 200 Ft. Myers, FL 33966 Ellen A. Goldman, Esq. Fax: 239-593-2990 Porter Wright 9132 Strada Place, Third Floor Naples, FL 34108 Bruce A. Campbell 9
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