WATERWAY AT HOLLYWOOD BEACH

CONDOMINIUM ASSOCIATION, INC.

  

FINAL ORDER

On October 23, 2007, Waterway at Hollywood Beach Condominium Association,.

Inc. (the Association) filed a recall arbitration petition. On November 19, 2007.

Respondent filed its answer to the petition. 

  

A case management conference was held December 3, 2007, during which the undersigned concluded that the minutes for the Association's Board of Director's meeting at which the recall was rejected were deficient.¹ Therefore, the undersigned concluded that the recall should be certified if the written recall agreement is facially valid. 

  

The parties dispute the number of ballots served on the Association. The Association contends that the written recall agreement contained 51 ballots with three being invalid as ballots as two duplicate ballots were duplicates and another was facially flawed ballot. Respondent does not dispute the Association's claim of duplicate ballots; however, Respondent asserts that the written recall agreement contained 54 ballots.

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1 The Association attached to Its petition competing sets of minutes for the meeting.

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On December 7, 2007, the Association filed a memorandum in support of its position that the recall was facially invalid if it consisted of 51 ballots. On December 18, 2007, Respondent filed a response to the Association's memorandum continuing to dispute the number of ballots served on the Association. Therefore, a final hearing was scheduled to resolve this issue. 

 

A final hearing was held in this matter on January 16, 2007, during which the parties presented the testimony of witnesses, tendered documents into evidence and cross-examined witnesses. The parties have filed recommended orders. This order is entered after consideration of the complete record in this matter.

APPEARANCES

                                               For Petitioner:          David A. Kupperman, Esq.

Jennings & Valiancy, P.A.

311 S.E. 13^th Street

Fort Lauderdale , Florida 33316  

  

                                               For Respondent:     Inger M. Garcia, Esq.  

                                                                                 Sole Building , Ground, Fl., Suite 2

 533 NE 3^M Ave ..

Ft. Lauderdale , Florida 33301  

 

STATEMENT OF THE ISSUE

Should the written recall agreement served on the Association on October 10,

2007 be certified?

FINDINGS OF FACT

            1.          Waterway at Hollywood Beach Condominium Association, Inc. is the legal entity responsible for the operation of the Waterway at Hollywood Beach Condominium.

            2.           The Association contains 100 voting interests and there are three seats

on its board of directors.

            3.           On October 8, 2007, Diane Clancy, and private investigator and owner of

Peerless Investigations, received a copy of the written recall agreement at the law offices of Inger Garcia.  Ms. Clancey had been retained to serve the written recall agreement on the Association's registered agent; board member and vice president Timothy Campbell; and, as a formality, board member Amy Deaner.

            4.           Ms. Clancey photocopied the agreement at Ms. Inger's office and hand counted each set of ballots to be served.  She hand counted 54 ballots in each set. Amy Deaner confirmed the count. The agreement originally contained 55 ballots, however, one ballot was removed and not served on the Association because Respondent's attorney advised that it was defective.

            5.           Ms. Clancey unsuccessfully attempted to serve the agreement on Timothy Campbell on October 8 and 9, 2007.

6.           Ms. Clancey served Ms. Deaner with the agreement on October 8, 2007.

            7.           On October 8, 2007, Ms. Clancey attempted to serve the agreement on

the Association's registered agent, Paul Shapiro, at offices of USA Services (the Association's management company), however, the office was closed.

            8.           On October, 10, 2007, Ms. Clancey returned to, USA Services where she

was directed to Jacqueline Carter, USA Services book keeper. Ms. Carter telephoned Paul Shapiro for instructions. Paul Shapiro directed her to accept service on his behalf.

           9.           USA Services shares office space with another business.

         10.          The written recall agreement was left with Ms. Carter. It consisted of the

written recall agreement bound by a binder clip. It was not in an envelope.

         11.         Ms. Carter did not count the number of ballots/pages or otherwise examine the written recall agreement before she placed the written recall agreement in Paul Shapiro's inbox.

            12.        Sometime the following day, Robert Shaprio, an employee of USA Services, picked up the mail in Paul Shapiro's inbox in order to deliver it Paul Shapiro at his home office.

            13.        Robert Shapiro did not count the number of ballots/pages or otherwise

examine the written recall agreement.

            14.        On the day he retrieved the mail containing the written recall agreement,

Robert Shapiro delivered it Paul Shapiro, the owner of USA Services, at Paul Shapiro's home.

             15.        Paul Shapiro did not count the number of ballots of pages contained in

the agreement.

             16.        Steve Kronengold, the licensed community association manager employed by USA Services to manage the Association, found out .that the Association had received the written recall agreement on October 10 or 11, 2007, when he was in the USA Services Office and Ms. Carter told him about it. Ms. Carter informed him that Robert Shapiro had picked up the written recall agreement.

             17.        Mr. Kronengold also encountered Paul Shapiro on October 11. 2007. Paul Shapiro informed Mr. Kronengold that he had not received the agreement yet and that Robert Shapiro had it.

              18.        When Paul Shapiro received the written recall agreement he called Mr.

Kronengold.

              19.        Mr. Kronengold first saw the written recall agreement a couple of days later at Paul Shapiro's home. He had become concerned why Paul and Robert Shapiro were "sitting on the agreements." Mr. Kronengold did not count the ballots or examine the agreement at Paul Shapiro's home.

              20.        Mr. Kronengold prepared a notice for the board meeting to consider the recall which was held on October 16, 2007.

              21.        Just prior to the meeting, Mr. Kronengold gave the Association's vice

president, Timothy Campbell, the written recall agreement. At no time prior to this time did Mr. Kronengold count the number of ballots or pages.

22.          Timothy Campbell counted the ballots, finding 51 ballots.

              23.          At the recall meeting no specific ballots were examined and no reason was given for rejecting the recall.

              24.          After the meeting, Mr. Kronengold met with Timothy Campbell at which time they counted the ballots and put them in order based on unit number. This is the first time Timothy Campbell determined that there were duplicate ballots.

              25.        The undersigned finds that the written recall agreement served on the Association contained 54 ballots voting in favor of the recall of directors Joanne Benedetti and Timothy Campbell.

CONCLUSIONS OF LAW

The undersigned has jurisdiction over this dispute pursuant to section 718.1255, Florida Statutes. The owners voting in favor of the recall are the Respondent in this matter.

     

The Association has submitted two differing sets of minutes for the recall meeting to consider the written recall agreement. Rule 61 B~50.105(5)(h), Fla. Admin. Code, provides that any specific reason upon which the board bases its decision not to certify the recall that is stated in the petition for recall arbitration, but absent from the board meeting minutes attached thereto, shall be ineffective and shall not be considered by the arbitrator. Therefore, any reason for rejecting the recall stated in the petition not contained in the minutes will not be considered. Moreover, except for allegations as to general defects in the form of the ballot, the minutes must specifically identify the ballots rejected. Town Park Plaza North Condo., Inc. v. Unit Owners Voting for Recall, Arb. Case No. 2005-03-4119, Summary Final Order on Petition for Recall Arbitration (July 25, 2005). 

  

Both sets of the minutes fail to identify the individual ballots that were rejected or provide any reason the why the written recall agreement was flawed. Additionally, testimony at the final hearing established that no specific reason was given by the board for rejecting the recall; therefore, the recall should be certified if it is facially valid. However, where the recall effort is void ab initio due to a fatal flaw in the form of the agreement or where it is clear it has not been approved by the majority of the voting interests, the recall agreement will not be certified. See Unit Owners Voting For Recall v. Sunrise Towne Preferred Condo. Assoc., Inc., Arb. Case No.01-2864, Summary Final Order (May 15, 2001); see also See 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 Assoc, Inc. v. Unit Owners Voting for Recall, Arb. Case No. 99-1335, Summary Final Order (July 30, 1999). 

 

The Association contends that that the written agreement served on it consisted of 51 ballots and is void ab initio because three ballots are facially invalid. Specifically the Association contends that the duplicate ballots were submitted for units N102 and N311. The Association also alleges that the ballot for unit N105 was not correctly completed. Respondent asserts that the written recall agreement served on the board consisted of 54 ballots voting in favor of the recall. 

 

Respondent presented the testimony of process server Diane Clancey that she counted the number ballots ·to be served on the Association, finding the written recall agreement to contain 54 ballots. After Ms. Clancy counted the ballots she retained custody of them until she served them on the Association's registered agent. 

 

The Association presented testimony of witnesses from the Association's management company where the written recall agreement was served indicating that at least four employees handled the agreement over a period of a few days before it was delivered to the Association's board of directors and the ballots were counted by the Association. Additionally, the management company shares office space with another business and the agreement was left on top a filing cabinet unattended for a period. Finally, the agreement was held together by a binder clip and was not in an envelope. 

 

Considering the above conditions, the undersigned finds it reasonable to conclude that any ballots missing from Respondent's final count of the ballots served on the Association and the Association number is more likely due to at processing error by the Association or its agents than Respondent or the process server. Accordingly, the undersigned accepts Respondent's claim that the written recall agreement served on the Association contained 54 ballots in favor of the recall. Therefore, even if three ballots are facially defective as argued by the Association, the written agreement is, as a whole, sufficiently valid on its face to recall the named directors. Therefore, the recall should be certified.