STATE OF FLORIDA

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES

IN RE: PETITION FOR ARBITRATION

Lime Bay Condominium, Inc., Petitioner,

v.                                                                                                          Case No. 2006-01-9712

Unit Owners Voting For Recall, 

             Respondent.

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SUMMARY FINAL ORDER

On April 7, 2006, Lime Bay Condominium, Inc. (the association) filed a petition for recall arbitration, seeking a final order upholding its decision not to certify the written recall agreement that was served on its board on March 29, 2006. By order dated April 13, 2006, the two named unit owner representatives, Paula Picardi and Dolores Gelosi, were directed to respond to the petition for arbitration and identify all facts stated in the petition which were disputed by the respondent. On April 28, 2006, the respondent answered the petition for recall arbitration, providing a transcript of the special recall meeting held by the board on April 3, 2006. The parties filed memoranda in support of their respective positions on May 1, 2006, and May 17, 2006. This order is entered after consideration of the entire record.

 

Lime Bay Condominium Association, Inc. consists of 210 voting interests, and is operated by a five-member board of directors. Three of the five board members, Gary Abramson, Marge Marrow, and Karen Small were listed as being subject to the recall. The association alleges in its petition for recall arbitration that the respondent served the board with a written recall agreement consisting of 123 recall ballots on March 29, 2006, and the association's board met on April 3, 2006 and determined not to certify the recall. The petition reflects that the board rejected the recall ballots because two ballots were not signed by record title owners, two ballots contained signatures that were different from the owner signatures on file in the association records, and at least one ballot was executed by a unit owner who was fraudulently induced into signing the recall ballot. The petition also indicates that the recall was deficient because the ballots failed to properly identify the designated unit owner representative. 

 

While the petition was filed with affidavits and statements of some of the unit owners who attested that the ballots were pre-marked or in some instances blank, at the time the ballots were signed by the owners, the meeting minutes failed to identify any of the ballots that were rejected by the board at the meeting for the reasons stated in the petition. The statements that were attached to the petition do identify some of the ballots that were signed by unit owners who maintain that the ballots were pre-marked or blank at the time they purportedly signed them, however, no units were identified during the board's recall meeting.

        

In its answer, the respondent denies that any of the ballots were pre-marked and further argues that the board was required to identify all of the ballots it rejected at its meeting and provide the specific reasons for rejecting each of the ballots at that time. The respondent's answer also contained a transcript of the board's meeting minutes that reflect the board rejected an unspecified number of ballots for fraud, coercion and as being pre-marked. The respondent also provided statements from owners who participated in the recall that indicate that the affidavits attached to the petition may not have been accurate. 

          

However, after a review of the minutes attached to the association's petition, it is unnecessary to resolve any disputed issues concerning the existence of any pre-marked ballots, as the rules governing recall arbitration proceedings and arbitration precedent clearly require an association's board to identify the ballots it rejects and to provide the specific reason for the rejection of a ballot at the time the board considers a written recall agreement and determines whether the recall should be certified. Failure to provide the specific reasons for rejection of a ballot will invalidate the board's decision to reject it. Crestview Towers Condo. Ass'n. Inc. v. Unit Owners Voting For Recall, Arb. Case No. 2005-01-994, Summary Final Order (June 14, 2005). As the board's minutes did not identify the specific ballots that were rejected for the reasons stated by the board, its rejection of the ballots will be considered invalid. 

                         

The written recall agreement consisted of 123 ballots, with 123 votes being cast for the recall of Karen Small, 121 votes being cast for the recall of Gary Abramson and 116 votes for Marge Morrow. As each board member received a sufficient number of votes to be recalled from the board, the recall of each is certified, effective immediately, and those candidates receiving a majority of votes to replace the recalled board members, specifically, Delores Gelosi, Patsy Manze and Paula Picardi shall assume the seats of these recalled board members, in accordance with rule 61 B-23.0028, Florida Administrative Code.