SCANNED VERSION

---

STATE OF FLORIDA

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION

DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES

    

IN RE: PETITION FOR ARBITRATION -- HOA

   

David B. Parker

Petitioner,

v.                                                                                                          Case No. 2007-04-5781

East Linden Estates

Homeowners Association, Inc.           

Respondent.

___________________________________________________/  

SUMMARY FINAL ORDER

Statement of the Issues

The issues presented in this election dispute are whether the results of an election announced at the meeting noticed for the election may be changed by a subsequent private recount, and, if not what is the appropriate remedy.

Procedural History

David Parker filed a Petition for Arbitration on August 10, 2007, challenging the action of the board members setting aside the results of the annual election of the board of East Linden Estates Homeowners Association (the Association). On August 20, 2007, the arbitrator entered an Order to Show Cause that required proof of pre­arbitration notice. After the filing of such proof, an Order Requiring Answer was entered on September 5, 2007. Respondent filed an Answer with copies of ballots, tally sheets and proxy/absentee ballots. 

Findings of Fact

             1.        The Association scheduled its annual election at a meeting on June 4, 2007.

             2.        The Association, through "Ken Kral, Secretary/Treasurer", sent written notice of the election to the parcel owners on or about May 1, 2007. That letter stated the annual meeting and election would be held on June 4, 2007.

             3.        The written notice gave the owners the option of attending the meeting to cast votes, or of mailing in absentee ballots called "proxies". The proxies had to be mailed to a specific individual on or before June 1, 2007.

             4.         Each proxy form consisted of a single page with the top half providing spaces to identify the homeowner, the address of the homeowner, the date and signature(s). The bottom half consisted of an official ballot with the names of five candidates and instruction to vote for not more than four candidates.

             5.        The procedure followed for the absentee ballots was to verify the homeowner on the top half and then cut off the bottom half.

             6.        The bottom halves containing the votes became indistinguishable other than for the marked votes. They were not numbered or tracked in any way, and, so, became secret ballots.

             7.        On the night of the election, one person was responsible for counting the absentee ballots. After votes by the persons attending the meeting, the election was closed. Two people counted the in-person ballots. During the meeting, another election committee member combined the subtotals and reported them to the presiding director, Thomas Lyons.

   8.      During the meeting, Mr. Lyons announced the results of the meeting as follows: 

   Patty Cafra                    72 votes

   Gary Keller                    72 votes

   Dave Parker                  61 votes

   John Poffenberger        60 votes

   Ken Kral                         59 votes

               9.      The election meeting came to a close with no challenge to the results or request for a recount. 

             10.      Despite announcement of the winning candidates, the new directors were not installed at the election meeting.

             11.      The election materials then were sealed and delivered to Kenneth Kral, the losing candidate.

            12.      During the week after the election, Ken Kral, along with other homeowners, unsealed the ballots to conduct a private "recount'. No meeting of the board of directors or of the homeowners was convened for this procedure.

            13.      After the "recount", Mr. Kral and other persons advised Petitioner that the votes had been miscounted on the night of the election, and the "recount" showed that Mr. Kral had been elected and Petitioner had not.

            14.      There is no evidence of a legal basis or Association procedure for the "recount".

            15.      Petitioner has been prevented from serving as a director of the Association. 

 

Conclusions of Law

The Division has jurisdiction over the parties and the subject matter pursuant to

Sections 720.306(9), 720.311 and 718.1255, Florida Statutes.

Section 720.306(9), Florida Statutes, governs election of directors for homeowners

associations. It provides:

(9) ELECTIONS. - Elections of directors must be conducted in accordance with the procedures set forth in the governing documents of the association. All members of the association shall be eligible to serve on the board of directors, and a member may nominate himself or herself as a candidate for the board at a meeting where the election is to be held. Except as otherwise provided in the governing documents, boards of directors must be elected by a plurality of the votes cast by eligible voters. Any election dispute between a member and an association must be submitted to mandatory binding arbitration with the division. Such proceedings shall be conducted in the manner provided by s. 718.1255 and the procedural rules adopted by the division. 

Additionally, section 720.306(2), F.S., provides, "The election of directors, if one is

  required to be held, must be held at, or in conjunction with, the annual meeting or as provided in the governing documents." Based on that statute and the notice of the annual meeting provided by the Association, when the annual meeting of June 4, 2007 was over, the election of directors was final. 

              Although the rules and case law applicable to condominiums do not control homeowners associations, they do provide persuasive authority to evaluate the fairness of elections. Rule 618-23.0021(10), Florida Administrative Code, provides, among other things, that ballots shall be handled by an impartial committee and ballots shall be opened in the presence of unit owners in attendance. The definition of impartial committee specifically excludes current board members, officers and candidates. Violation of these safeguards destroys the integrity of the ballots, and if it is alleged to have likely changed the outcome, would be grounds to set aside the election. Cf., Marott Partnership v. Maracay Association, Inc., Arb. Case No. 00-0461 (Summary Final Order, June 28, 2000). Counting ballots outside the presence of owners at the annual meeting is ground to set aside an election. McHale v. Lakes of Newport Condo. I Assn. Inc., Arb. Case No. 00-0997 (Final Order, November 6, 2000).

In this case the integrity of the ballots was impaired after announcement of the· winners in the annual meeting of June 4, 2007. That night when the ballots were handed over to the losing candidate they became tainted.

By the time the sun rose the next morning, no piece of paper possessed by that candidate could be authenticated as evidence of a vote in the election. This case presents an extreme example in which the losing candidate had produced the original ballots. Because new ballots could so easily be substituted for those from the annual meeting, it is not necessary to allege that anyone actually did so. Because a slight modification would dramatically change the result of the election, the suspicion raised would undermine trust in any subsequent recount. The "ballots" that became the subject of a "recount" could not be admitted in a legal proceeding.

The Association has not submitted any authority to hold a recount. No law, governing document or procedure provides for a recount under any circumstances.

Based on the foregoing, it is ORDERED:

            1.        That the Association shall seat Petitioner, David B. Parker, as a director for

the position to which he was elected on June 4, 2007.

            2.        That the Association shall immediately remove Kenneth Kral from the board of directors, provided that he will be eligible to sit again if elected or appointed according to law or the governing documents.

DONE AND ORDERED this 1st day of October, 2007, at Tallahassee, Leon County, Florida.

Copy furnished to: 

 

David B. Parker 

12470 Winston Ct. 

Spring Hill, FL 34609 

  

Robert Tankel, Esq.

1022 Main Street - Suite D 

Dunedin, FL 34698