state of florida - Department of Business and Professional Regulation

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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. 4
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 5
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state of florida - Department of Business and Professional Regulation

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