state of florida - Department of Business and Professional Regulation

STATE OF FLORIDA
DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION
DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES AND MOBILE HOMES
IN RE: PETITION FOR BINDING ARBITRATION - HOA
WESTCHESTER HOMEOWNERS
ASSOCIATION, INC.,
Petitioner,
v. Case No. 2007-06-8541
Homeowners Voting for Recall,
Respondent.
CYNTHIA WALKER,
Petitioner,
WESTCHESTER HOMEOWNERS
ASSOCIATION, INC.
Respondent.
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SUMMARY FINAL ORDER
Case No. 2008-02-0198
On December 24, 2007, Laurie Manoff, Esq., filed a petition for mandatory
binding arbitration of a recall dispute on behalf Westchester Homeowners Association,
Inc. The matter was assigned case number 2007-06-8541. On January 17, 2008,
Richard W. Glenn, Esq. filed an answer to the Association’s petition on behalf of
Cynthia Walker, an owner representative. On January 23, 2008, the Association filed a
response to the answer; on the same date a case management conference was held in
this matter.
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On January 28, 2008, apparently on her own initiative, Cynthia Walker filed a pro
se second answer to which the Association filed a response on February 6, 2008. Ms.
Walker filed another pro se answer on February 14, 2008.
On March 10, 2008, Cynthia Walker, through her attorney, filed a counter
response to the Association’s responses to the answer to which the Association filed a
response on March 18, 2008. On March 24, 2008, Cynthia Walker filed a pro se
response to counter response on behalf of the replacement board of directors. On April
18, 2008, the Association filed a copy of the Association’s membership roster.
On March 28, 2008, a petition for mandatory binding arbitration of a recall dispute
was filed signed by Cynthia Walker. The matter was assigned case number 2008-02-
0198. The petition indicates that it was filed on behalf of the Association as the
petitioner and names Richard Glenn, Esq., as the Association’s attorney.
The second petition disputes the same recall at issue in case number 2007-06-
8541. This petition will be treated as reverse recall petition filed by Ms. Walker whereby
she seeks to challenge the Association’s failure to certify the recall. Ms. Walker will be
deemed the petitioner and the Association will be considered the respondent (see the
above style).
Case numbers 2007-06-8541 and 2008-02-0198 are hereby consolidated. There
are a sufficient number of material issues of fact not in dispute to permit the entry of a
summary final order in this matter.
Findings of Fact
1. Westchester Homeowners Association, Inc. is the legal entity responsible
for the operation of the Westchester community.
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2. The Association contains 176 voting interests. The Association’s board of
directors is composed of five seats.
3. On July 10, 2007, Tim Nolan was served with a written recall agreement.
4. The written recall agreement sought the recall of the following persons
with the indicated number of votes in favor of recall:
a. Lacy Allison (93)
b. Serina Cappucci (93)
c. Tim Nolan (93)
d. Genieve Williams (92)
5. The written recall agreement consisted of recall ballots similar to the
Division’s form ballot. The recall portion of the ballot lists the above persons in the
above order and provides check boxes by which the voter could indicate to recall or
retain the person. However, the check boxes were misaligned with the names. There
are no check boxes on the same line as Lacy Allison. However, there are check boxes
in alignment with Serina Cappucci, Tim Nolan and Genieve Williams. The final line of
check boxes is on the line below Genieve Williams’’ name.
6. The ballots listed five replacement candidates and provided a space for a
write in candidate.
7. As to Tim Nolan and Genieve Williams, the ballots stated, “Listed on
document; but not current board members, nor in attendance at meetings.”
8. At the time Tim Nolan was served with the written recall agreement, he
was no longer a member of the Association has he had sold his home and moved away.
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9. The Association’s Board of Directors held a meeting on July 19, 2007, at
which time it chose not to certify the recall.
10. Section 2.15 of the Association’s Declaration of Covenants and
Restrictions, defines “Member” to mean an Owner who, or which, is a member of the
Association.
11. Section 2.18 of the Association’s Declaration of Covenants and
Restrictions, defines “Unit Owner” or “Owner of a Unit” or “Owner” to mean the record
owner of a Unit.
12. Section 3.1 of the Association’s Declaration of Covenants and
Restrictions, as amended, states the community contains 176 units.
Conclusions of Law
All the homeowners voting in favor of the recall are the respondent in this matter.
The undersigned has jurisdiction over this matter pursuant to section 720.311, Florida
Statutes.
Pursuant to section, 720.303(10), Fla. Statutes, where the Association fails to
hold a meeting within five business days of receipt of written recall agreement to
consider the recall, the recall is deemed certified.
Respondent argues that it served the Association on July 10, 2007, when it
served Tim Nolan with recall agreement. The Association contends service was not
proper because at the time Mr. Nolan was no longer on the Association’s board of
directors or even a member of the Association. Respondent argues that service should
be deemed proper because at the time of service he was still listed with the Florida’s
Secretary of State as a board member.
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The undersigned is not convinced by Respondent’s argument. Respondent may
not rely upon any inaccuracies in the corporate filings of which it was aware. Clearly,
since the ballots indicate that Mr. Nolan was not a board member, Respondent was
aware at the time it served him with the written recall agreement that he was no longer a
board member. Therefore, service of the written recall agreement on Mr. Nolan was not
proper service on the Association.
Respondent also alleges that the recall agreement was hand delivered to
directors Lacy Allison and Serina Cappucci on June 1, 2007. Even if it is presumed that
recall agreement was properly served on Lacy Allison, the recall is not necessarily
automatically certified, because even where the Association fails to timely hold its
meeting or hold a recall meeting, a recall that is invalid on its face will not be certified.
See Unit Owners Voting For Recall v. Sunrise Towne Preferred Condo. Ass’n., Inc.,
Arb. Case No.01-2864, Summary Final Order (May 15, 2001) see also Gateland Unit
Owners Voting for the Recall of Culotta, Arb. Case No. 98-5247, Amended Summary
Final Order (January 25, 1999); Villa Biscaya Jardines Condo. Phase II, Inc. v. Castillo,
Arb. Case No. 98-3936, Summary Final Order (May 14, 1998); Laguna Club
Condominium Ass’n, Inc. v. Unit Owners Voting for Recall, Arb. Case No. 99-1335,
Summary Final Order (July 30, 1999).
In the instant matter, the form of the recall ballots is confusing. The recall portion
of the ballot lists these persons in the following order: Lacy Allison, Serina Cappucci,
Tim Nolan, and Genieve Williams, and provides check boxes by which the voter may
indicate to recall or retain the person. However, the check boxes are misaligned with the
names. There are no check boxes on the same line as Lacy Allison. However, there
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are check boxes in alignment with Serina Cappucci, Tim Nolan and Genieve Williams.
The final line of check boxes is on the line below the check boxes next to the final
name, Genieve Williams’ name.
There a clearly results in a confusing ballot. A good example of such confusion
is the ballot for unit 4423B, Gierborne and Fenn, where only the first and second recall
boxes are checked along with the last retain box. It is unclear whether the voter
intended to recall Lacy Allison or Serina Cappucci.
Confusion is demonstrated by numerous ballots that check four boxes for recall
but vote for fewer replacement candidates than directors subject to recall. For example,
the ballot for unit 4399A, Jeffrey and Andrea Lewis, demonstrates the confusing format.
The voter seems not to be certain where to place the “x’s.” She marked the first two
“x’s” in the first and second recall boxes, the next “x” between the third and fourth check
boxes, and the final “x” is marked below all of the check boxes.
The ballot for Miriam Smith, unit 4337C also demonstrates the potential for
confusion. There are check boxes on the same line as the name of three of the four
directors, with no check box on the same line as the first director and the final box is on
a line below all the names. Although Ms. Smith checked all four recall boxes, she only
voted for three replacement candidates. Thus, it is unclear if she intended to vote to
recall all four directors on the ballot, or intended only to recall the three directors where
the name and check box are in alignment.
The confusing nature of the ballots is reason enough to reject the recall.
Therefore, the recall should not be certified.
Based upon the foregoing, it is ORDERED:
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Florida.
The Association’s decision not to certify the recall is AFFIRMED.
DONE AND ORDERED this 24 th day of July 2008, at Tallahassee, Leon County,
_________________________________
James W, Earl, Arbitrator
Division of Florida Land Sales, Condominiums,
& Mobile Homes
Dept. of Business & Professional Regulation
1940 North Monroe Street
Tallahassee, Florida 32399-1030
Certificate of Service
I hereby certify that a true and correct copy of the foregoing summary final order
has been sent by U.S. Mail to the following persons on this 24 th day of July, 2008:
Laurie G. Manoff, Esq.
Dicker, Krivok & Stoloff, P.A.
1818 Australian Avenue South
Suite 400
West Palm Beach, FL 33409
Richard W. Glenn, Esq.
11382 Prosperity Farms Road
Suite F-222
Palm Beach Gardens, FL 33410
_________________________________
James W, Earl, Arbitrator
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