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

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1 STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION ALICE HARRINGTON RANDOLPH, Petitioner, v. Case No DECOPLAGE CONDOMINIUM ASSOCIATION, INC., Respondent. / FINAL ORDER On October 22, 2002, a formal hearing in this case was held in Miami Beach, Florida, at the Decoplage Condominium with the arbitrator present. Both parties presented the testimony of witnesses and tendered documents into evidence. Both parties filed post-hearing memoranda. This final order is entered after consideration of the complete record in this matter. ISSUE PRESENTED 1. Whether the association properly conducted its November 2001 election for the board of directors; and, 2. Whether the association provided the petitioner access to official records of the association in a timely manner. DISCUSSION Unit owner Alice Harrington Randolph (petitioner) filed a petition for nonbinding arbitration against The Decoplage Condominium Association, Inc. 1

2 (respondent or association) on May 28, The petition alleges numerous challenges to and irregularities in the elections for the board of directors occurring on November 15, Of the claims stated in the petition two issues merit discussion. First, the association included with the mailing of the ballots a letter naming several candidates and thanking them for their service to the association. Second, the association applied different standards for counting ballots by disqualifying certain ballots for various reasons yet accepting other ballots with the same deficiency. Rule 61B (8), Florida Administrative Code, provides in part that: In accordance with the requirements of Section (2)(d), Florida Statutes, the association shall mail or deliver to the eligible voters at the addresses listed in the official records a second notice of the election, together with a ballot and any information sheets timely submitted by the candidates. The second notice and accompanying documents shall not contain any communication by the board which endorses, disapproves, or otherwise comments on any candidate. The rule specifically prohibits the inclusion of any communication that endorses, disapproves or otherwise comments on any candidate. On October 15, 2001, the board sent out with the ballots and the second notice of election, a letter thanking several candidates 1 for their service to the board regarding the building renovation project and for their assistance during the recent recall of the prior board. The association did not dispute that this letter was included with the second notice of election and the ballots. The letter from the board clearly comments on several candidates; praising them for their assistance and further indicating that their 1 It is noted for the record that the candidates so praised were in fact elected to the board, although it is difficult to quantify with exactness the effect of the letter on the results. 2

3 service had helped the association save millions of dollars on various projects. This communication is clearly the type of material prohibited by the code and the association has clearly violated the provisions of Rule 61B (8), Florida Administrative Code. The petitioner challenges the association decision to disregard some ballots for failing to comply with certain association criteria while counting other ballots with the same flaws. The reasons cited by the petitioner are based in the association s acceptance of ballots where no voting certificates were on file for the units casting ballots in the election. There are numerous instances, involving over 100 ballots, where different methods were used to validate ballots where no voting certificate was on file with the association. In some cases, votes were accepted based upon signature comparisons to signatures on other association held documents or writing samples, and in other cases the ballots without voting certificates were simply excluded. While the association s basis for adopting this varying standard of review for challenged votes was to count as many ballots as possible, a varying standard of review that counts some votes while disqualifying others with the same defect is improper. Uniform standards must be adopted and applied equally to all votes cast. See Bush v. Gore, 121 S.Ct. 525, (2000)(Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person's vote over that of another.) In the instant case, a proper procedure for screening ballots has not been adopted. Regardless of the standard used, the association must adopt an adequate standard for determining what is a legal vote and implement practical measures to 3

4 ensure that this standard is implemented. See Bush at 532. The association must implement standards that are consistent with its obligation to avoid arbitrary and disparate treatment of the members. The association committed several major violations of the election rules, which were clearly demonstrated by the petitioner. The testimony disclosed that these violations could have materially affected the outcome of the election. Accordingly, the association is required to hold a new election as soon as possible and the unit owners will be informed that the association committed violations of the division s rules governing condominium elections. It is unnecessary for the association to give the first notice of election in accordance with Section (2)(d)3., Florida Statutes, the purpose of which is to give individuals an opportunity to indicate their desire to run, as this has already been done. All that is required is that the candidates previously included on the November 2002 election ballot stand for election for the positions that they initially ran for. Within 35 days of the date of this order, the association shall conduct another, special election for the board of directors with the same candidates as the November 2001 election. The election notice and instructions included with the ballot shall state that the election is being repeated because the association committed violations of the division s rules governing condominium elections. The association shall comply with the Condominium Act and Rule 61B , Florida Administrative Code, except insofar as those procedures are modified by this order. In this regard, the association shall prepare a list of qualified voters and adopt a set standard for 4

5 determining the validity of a ballot and apply this standard uniformly to all ballots cast in the election. The second issue raised in the petition was whether the association provided the petitioner with access to official records of the association in a timely manner. The testimony on this matter was clear. The petitioner made a written request for association records on September 27, The association partially complied by providing some of the requested documents on October 29, Section (12)(b), Florida Statutes, provides in pertinent part that: [t]he official records of the association shall be made available to a unit owner within 5 working days after the receipt of a written request by the board The failure of an association to provide the records within 10 working days after receipt of a written request shall create a rebuttable presumption that the association willfully failed to comply The association has failed to demonstrate any valid basis for the delay in providing the petitioner access to the records she requested. The only reason the association advances to explain the delay is that the association has failed to adequately maintain and organize the records for a number of years thereby making the access to those records exceedingly difficult as the records are in a complete state of disarray. This defense is without merit. The association has a duty to maintain association records and provide access to them within 5 business days. The association failure to adequately maintain its records does not exempt it from providing timely access to its records to those unit owners who request it. See e.g., Accardi v. Leisure Beach South, Inc., Arb. Case No , Final Order (June 19, 2001). 5

6 In conclusion, the association willfully failed to provide petitioner with access to its official records. Therefore, pursuant to Section (12)(c), Florida Statutes, petitioner is entitled to minimum damages of $ Based on the foregoing, it is ORDERED as follows: Within 35 days of the date of this order, the association shall conduct a special election for the board of directors with the same candidates as the November 2001 election. The election notice and instructions included with the ballot shall state that the election is being repeated because the association committed violations of the division s rules governing condominium elections. In conducting this election, the association shall comply with the Condominium Act and Rule 61B , Florida Administrative Code, except insofar as those procedures are modified by this order. Board members currently filling any of the positions on the board who are not re-elected in the special election shall, immediately upon tallying of the ballots, vacate their seats on the board and deliver to the board any and all records of the association in the former board member s possession. Within thirty (30) days of the date of this order, the association shall pay petitioner, Alice Harrington Randolph, $ in minimum damages pursuant to Section (12)(c), Florida Statutes. DONE AND ORDERED this 11 th day of December 2002, at Tallahassee, Leon County, Florida. Richard M. Coln, Arbitrator 6

7 Arbitration Section Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, FL RIGHT TO TRIAL DE NOVO PURSUANT TO SECTION , FLORIDA STATUTES, THIS DECISION SHALL BE BINDING ON THE PARTIES UNLESS A COMPLAINT FOR TRIAL DE NOVO IS FILED BY AN ADVERSELY AFFECTED PARTY IN A COURT OF COMPETENT JURISDICTION IN THE CIRCUIT IN WHICH THE CONDOMINIUM IS LOCATED WITHIN 30 DAYS OF THE DATE OF MAILING OF THIS ORDER. THIS FINAL ORDER DOES NOT CONSTITUTE FINAL AGENCY ACTION AND IS NOT APPEALABLE TO THE DISTRICT COURTS OF APPEAL. ATTORNEY S FEES As provided by s , F.S., the prevailing party in this proceeding is entitled to have the other party pay its reasonable costs and attorney s fees. Rule 61B , F.A.C., requires that a party seeking an award of costs and attorney s fees must file a motion seeking the award not later than 45 days after rendition of this final order. The motion must be actually received by the Division within this 45-day period and must conform to the requirements of rule 61B , F.A.C. The filing of an appeal of this order does not toll the time for the filing of a motion seeking prevailing party costs and attorney s fees. CERTIFICATE OF MAILING I hereby certify that a true and correct copy of the foregoing order was mailed by U.S. mail, postage prepaid, this 11 th day of December 2002, to: Alice Harrington Randolph 100 Lincoln Road, PH2 Miami Beach, FL Petitioner (305) Fax David C. Arnold, Esquire Law offices of David C. Arnold 8301 S 164 Street Miami Beach, FL Attorney for Respondent (305) Fax 7

8 8 Richard M. Coln, Arbitrator