STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES AND MOBILE HOMES IN RE: PETITION FOR RECALL ARBITRATION THE RESIDENCE CONDOMINIUMS OWNERS ASSOCIATION, INC., Petitioner, v. Case No. 2013-02-9621 UNIT OWNERS VOTING FOR RECALL, Respondent. / SUMMARY FINAL ORDER Procedural History On July 17, 2013, the Association filed a Recall Arbitration Petition. On August 6, 2013, Respondent filed an Answer. Findings of Fact 1. The Residence Condominium Owners Association, Inc. is the legal entity responsible for the operation of The Residence Condominium. 2. The total number of voting interests in the Association is 192. 3. To recall a board member, 97 valid ballots in favor of recall are needed. 4. There were five seats on the Association s board of directors at the time the recall was served. 5. On July 3, 2013, the Association received a written recall agreement containing 104 purported recall votes. The agreement sought to recall four board members: Paul Toccalino, Don Fortunato, Corrine Hable and Constance Parrett.
6. The written recall agreement ballots served on the board utilized the standard form accepted by the Division. 7. The replacement candidates are M. Wendy Newswanger, John Harvey, Tressa Caza, and Barbara Patyo. 8. The date of the next regularly scheduled election for the seats of the board members subject to recall is in January 2014. 9. The Board of Directors of the Association held a properly-noticed meeting on July 11, 2013, at which it did not certify the recall. 10. The minutes of the board meeting of July 11, 2013, 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: a. The ballots for units 812, 501, 605, 815, 717 were invalid for failure of having a proper voting certificate on file. following reason: b. The Association rejected the ballots for units 819 and 221 for the Unit 819 is owned by Ted P. Adams and Unit 221 is owned by Ted J. Adams. Both written agreements appear to be executed by the respective unit owners; however, the date on the written agreements appear [sic] to be completed by the same person in the same handwriting. Therefore, the Association is unable to determine whether the owners completed the written agreements on their own accord. c. The Association rejected the ballot for unit 820 for the following reason: Unit 820 - the Association is unable to read the name or unit number of the unit owner and therefore rejects the written agreement for unit 820.
d. The Association rejected the ballot for unit 323 for the following reason: Unit 323 - the Association is unable to read the name or unit number of the unit owner and therefore rejects the written agreement for unit 323. e. The Association rejected the ballot for unit 807 for the following reason: Unit 807 - the Association is unable to read the name or unit number of the unit owner and therefore rejects the written agreement for unit 807. f. The Association rejected the ballot for unit 110 for the following reason: Unit 110 - the Association is unable to read the name or unit number of the unit owner and therefore rejects the written agreement for unit 110. g. The listed name on the written agreement of the Association is Residence Condominium Association, LLC and the actual name of the Association is The Residence Condominium Owners Association, Inc. h. The Homeowners Representative, Ted Adams, is the fifth director and has a conflict of interest because the replacement candidates were chosen for his personal financial benefit. i. The Association claims the written agreement was not served properly on the Association. Mr. Adams hand delivered the written agreement to the receptionist of the Association s management company and registered agent. Mr. Adams did not deliver the written agreement to an officer of the management company or submit an affidavit of service. 11. According to the minutes of the recall meeting, a total of 11 ballots were rejected. Therefore, the board determined that there were only 93 valid recall ballots which it concluded was an insufficient number for a successful recall.
12. Unit 820 is owned by Horst and Kerstin Weissgerber as evidenced by a special warranty deed. The ballot for unit 820 has Weissgerber, Horst as the printed name and has the number 820 listed as the unit number. The ballot is signed and dated. 13. Unit 323 is owned by Devon D. Williams as evidenced by a corporate warranty deed. The ballot for unit 323 has Devon Williams as the printed name and has the number 323 listed as the unit number. The ballot is signed and dated. 14. Unit 807 is owned by Alberto and Maria Del Carmen Martinez as evidenced by a corporate warranty deed. The ballot for unit 807 has Alberto Martinez as the printed name and has the number 807 listed as the unit number. The ballot is signed and dated. 15. Unit 110 is owned by Carolann and Doug G. Ryan as evidenced by a warranty deed. The ballot for unit 110 has Douglas Ryan Carolann Ryan as the printed name and has the number 110 listed as the unit number. The ballot is signed by both owners and dated. 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. A Summary Final Order is appropriate in this case pursuant to Rule 61B-50.119(3), Florida Administrative Code. Individual Recall Ballots The Association rejected the recall ballots for units 820, 323, 807 and 110 because it alleges that it was unable to read the unit owners names and unit numbers.
The undersigned could easily read both the printed name and unit numbers on these ballots. Moreover, the Association must have been able to read the unit numbers because the units were indentified in the minutes. The Association improperly rejected these ballots. Adding these 4 ballots to the other 93 ballots that were not challenged results in a total of 97 recall votes, which meets the number needed for a valid recall. Because there is an equal number of replacement candidates as board members being recalled, there is no need to determine if the other 7 ballots were properly rejected. Challenges to Entire Recall Effort As the Association s challenges to individual ballots do not compel a noncertification of the recall, the undersigned will address the Association s arguments as to the recall as a whole. First, the Association argues that there is an error in its name on the recall ballot that causes the recall to be fatally defective. The ballot lists the Association s name as Residence Condominium Association, LLC. Rather, the actual and correct name of the association is Residence Condominium Owners Association, Inc. There is no evidence that this issue served to confuse the members voting on the written recall agreement and the recall agreement clearly concerned the legal entity responsible for the operation of the Residence Condominium. The ballot substantially complies with the statute and is valid. See Regency Heights Co-Op, Inc., v. Unit Owners Voting For Recall, Arb. Case No. 2009-00-9509, Summary Final Order (April 15, 2009). Second, the Association chose not to certify the recall effort because it thought Ted J. Adams who organized the recall effort did so for an improper motive. The motivation for recalling the board of directors is irrelevant and not a proper basis for rejecting a recall, as Section 718.112(2)(j), Florida Statutes, provides any member of
the board of administration may be recalled and removed from office with or without cause by the vote or agreement in writing by a majority of all the voting interests. See Hibiscus Gardens Condo., Inc. v. Unit Owners Voting for Recall, Arb. Case No. 2005-00-9561, Summary Final Order (March 31, 2005). Finally, the Association complains of the means by which it came into possession of the recall by written agreement. Apparently, it was hand-delivered to the receptionist of the Association s property manager and registered agent. The association correctly notes that Section 718.112(2)(j)2, Florida Statutes, requires that the written recall agreement be served on the board by certified mail or by personal service. However, the purpose of requiring unit owners to serve the Association with written recall agreements is to officially place the board on notice that a recall has been attempted by the owners. Riviera Villas Condo. Ass n, Inc., v. Unit Owners Voting for Recall, Arb. Case No. 2004-02-4696, Summary Final Order (July 4, 2004). In Riviera Villas, the arbitrator found that service of the written recall agreement by first class mail is adequate service where the association and unit owners do not dispute the date on which it was received by the association. In the instant case, there is no dispute as to the date of receipt of the recall agreement, and the Association was clearly put on notice of the recall attempt. Indeed, the Association met all the requirements for timely holding a meeting to address the recall. Thus, the Association s argument as to service does not compel a denial of the recall. Based upon the foregoing, it is ORDERED:
1. The recall of board members Paul Toccalino, Don Fortunato, Corrine Hable and Constance Parrett 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, M. Wendy Newswanger, John Harvey, Tressa Caza, and Barbara Patyo shall take seats on the board effective immediately for the remainder of the term of the seat. 3. Within five (5) full business days from the date of this Order, Paul Toccalino, Don Fortunato, Corrine Hable and Constance Parrett shall deliver any and all records of the Association in their possession to the new board of directors. DONE AND ORDERED this 12 th day of August, 2013, at Tallahassee, Leon County, Florida. Terri Leigh Jones, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida 32399-1030 Telephone (850) 414-6867 Facsimile (850) 487-0870
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 12 th day of August, 2013: Steve Adamczyk, Esq. Goede, Adamczyk & DeBoest PLLC 8950 Fontana Del Sol Way, Unit 100 Naples, FL 34109 Fax: 239-331-5101 Attorney for Petitioner Ted Adams 4113 Residence Drive, #221 Fort Myers, FL 33901 Fax: 239-244-8314 Unit Owner Representative Terri Leigh Jones, Arbitrator