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

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1 STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION DEBBIE WHILDEN, VALENCIA CHICOT, PETER GRAF, HAROLD WOODSIDE, and OSVALDO PASCAL, Petitioners, v. Case No PARKWAY GROVE CONDOMINIUM ASSOCIATION, INC., Respondent. / SUMMARY FINAL ORDER Procedural Background On July 7, 2009, Petitioners, Debbie Whilden, Valencia Chicot, Peter Graf, Harold Woodside, and Osvaldo Pascal filed a petition for arbitration naming Parkway Grove Condominium Association, Inc., as Respondent. Petitioners alleged that an annual meeting was held on June 6, 2009, at which time Petitioners were elected to the board. On July 27, 2009, an Order Requiring Answer was entered. On August 6, 2009, Petitioner filed a Motion for Expedited Determination, which sought the entry of a Summary Final Order approving the election of Petitioners to the Board of Directors and requiring Debra Cause, Jo Zeen Edmonson, Wedelie Etieen, Frantz Jean and Ransford Robinson to turn over all Association Keys, documents and any other records within their possession to Petitioners. On August 10, 2009, an 1

2 Order was entered denying Petitioner s motion. On August 12, 2009, Respondent filed a Response to Motion for Expedited Determination. On August 20, 2009, Respondent filed an Answer, denying that the meeting held on June 6, 2009, was authorized by the board and that property manager, Sheldon Goldberg of Phoenix Property Management Services, without board approval noticed, conducted, and held an election for the board. On August 24, 2009, an Order Requiring Respondent s Representative to File a Qualified Representative Application form was entered. On September 14, 2009, an Order Setting a Case Management Conference was entered. On September 23, 2009, Petitioners filed a Reply to Respondent s Answer to Petition for Arbitration. On September 24, 2009, a telephonic case management conference was held at which time Respondent s Representative failed to appear. On September 25, 2009, an Order after Case Management, was entered which required dates for a telephonic case management conference. On October 6, 2009, Respondent s unapproved Representative filed a letter indicating her dates of availability for the telephonic case management conference. On October 8, 2009, the arbitrator sent out a Notice of a Case Management Conference. On October 9, 2009, Respondent s Representative, filed a Qualified Representative Application. On October 16, 2009, an Order Approving a Qualified Representative for Respondent was entered and a Second Notice of Case Management Conference was sent out. On October 26, 2009, a telephonic case management conference was held. Petitioners were required to file copies of the ballots and meeting of the June 6, 2009 meeting. On October 28, 2009, Petitioners filed a Notice of Filing 2

3 consisting of ballots cast at the June 6, 2009 meeting. This order is entered after review of the entire file. Statement of Issue Whether the election held on June 6, 2009, was a valid election. Findings of Fact 1. Petitioners are unit owners and members of the condominium association. 2. Respondent, Parkway Grove Condominium Association, Inc., is the legal entity responsible for the maintenance and operation of the Parkway Grove Condominium, a condominium subject to chapter 718, Florida Statutes. 3. Phoenix Management Services (Phoenix) was the property management company for the Respondent. 4. Sheldon Goldberg was the community association manager with Phoenix. 5. Section of the Declaration of Condominium, provides as follows: All annual meetings shall be held at such time as shall be determined by the board. 6. In early 2009, the Board of Directors, Jo Zeen Edmonson, Frantz Jean, Ransford Robinson, Wedelie Etidnne and Debra Cause met with Sheldon Goldberg of Phoenix Management and, among other issues, tentatively set the annual meeting for June 6, On April 6, 2009, without approval of the board, a first notice of Annual Meeting/Election was mailed to the condominium s membership by Phoenix. The notice stated that it was BY ORDER OF THE BOARD OF DIRECTORS. 3

4 8. On May 15, 2009, the board sent by certified mail a letter to Phoenix informing it that they would be terminating the board s contract with Phoenix as of June 30, On May 22, 2009, without approval from the board, Phoenix mailed to the membership the second notice of Annual Meeting/Election with ballot, which indicated the annual board meeting would be held on June 6, 2009 at 10:00 a.m. The notice stated that it was BY ORDER OF THE BOARD OF DIRECTORS. 10. On May 26, 2009, without approval from the board, the Property Management Company mailed to the membership a revised Ballot and cover letter. The notice stated that it was By ORDER OF THE BOARD OF DIRECTORS. 11. On May 27, 2009, the board mailed out notices to the membership informing them the June 6, 2009 election was cancelled and would be re-scheduled. 12. On June 5, 2009, without approval from the board, Phoenix distributed a notice to the membership stating the annual meeting had not been postponed. 13. On June 6, 2009, without approval from the board, Mr. Goldberg and a group of unit owners met and held an Annual Meeting and Organizational Meeting at which the membership purported to elect Debbie Whilden, Valencia Chicot, Peter Graf, Harold Woodside, and Osvaldo Pascal to the Board of Directors. 14. Mr. Goldberg was present at the June 6, 2009 meeting of the unit owners. 15. On June 10, 2009, without approval from the board, Phoenix sent a notice to the unit owners stating a annual meeting of the board had been held on June 6, 2009, a new board of directors had been elected, and the termination of Phoenix had been rescinded. The letter was signed by Sheldon Goldberg, Property Manager, 4

5 Phoenix Management Services, Inc. and that it was for the Board of Directors, Parkway Grove Condominium Association, Inc. 16. On June 10, 2009, the board sent an Inter-Office Memorandum to all unit owners, stating, in pertinent part, as follows: Due to the lack of validity of the candidates and the discrepancies the June 6, 2009 elections were cancelled. (Notices mailed to all unit owners) [sic] Conclusions of Law Parkway Grove Condominium is a condominium within the meaning of chapter 718, Florida Statutes. The undersigned has jurisdiction over the parties and of the subject matter of this dispute, pursuant to section , Florida Statutes. Section of the Declaration of Condominium, provides as follows: All annual meetings shall be held at such time as shall be determined by the board. In the case at hand, Respondent s property manger, Mr. Goldberg, sent the first notice of election to the unit owners without approval from the board and subsequently, after being informed of the board s upcoming termination of Phoenix Management Services contract, continued to issue notices of an election and conducted an election, all without the board s approval. May 27, 2009, the board sent a letter to the unit owners informing them the June 6, 2009 election had been cancelled. On June 5, 2009, a unit owner sent out a notice that the meeting had not been cancelled. Petitioner s Reply to Respondents Answer to Petition for Arbitration describes Mr. Goldberg s actions, in pertinent part, as follows: Mr. Goldberg was the Property Manager hired to assist the Board in operating the Condominium Association. Based upon information obtained from the Ombudsman s office that 5

6 there was no legal or other reason to cancel the meeting, except for the fact the Board knew they would be removed, and since no Annual Meeting had been held by this board in almost two years, he proceeded to hold the Annual Meeting as scheduled on June 6, Section of the Declaration of Condominium is clear and unambiguous, All annual meetings shall be held at such times as determined by the board. The board is the responsible entity for the association and the property manger is an agent of the board, as such, the property manager does not have the authority to overrule the board and conduct an election over the board s objection. Accordingly, the June 6, 2009 unit owners meeting to elect board members did not comply with the requirements of Section of the Declaration of Condominium. 1 Therefore, based upon the foregoing, it is ORDERED: The June 6, 2009 election of the Petitioners is null and void. DONE AND ORDERED this 13 th day of November, 2009, at Tallahassee, Leon County, Florida. Tonya S. Chavis, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida Telephone: FAX: If a member or members believe the board has improperly failed to hold an election, the proper remedy is to take legal action against the association. 6

7 Trial de novo and Attorney s Fees This decision shall be binding on the parties unless a complaint for trial de novo is filed in accordance with section , Florida Statutes. As provided by section , Florida Statutes., the prevailing party in this proceeding is entitled to have the other party pay reasonable costs and attorney s fees. Any such request must be filed in accordance with Rule 61B , F.A.C. Certificate of Service I hereby certify that a true and correct copy of the foregoing final order on default has been sent by U.S. Mail to the following persons on this day of November, 2009: Rachel E. Frydman, Esquire The Frydman Law Group, PLLC 3389 Sheridan Street #527 Hollywood, Florida Debra Cause Qualified Representative NW 2 nd Avenue #310 Hollywood, Florida Tonya S. Chavis, Arbitrator 7