.

3. If the petitioner is an association or other corporation, the petitioner must be represented by a Florida attorney or by a qualified representative. If petitioner's representative is not an attorney, attach DBPR Form HOA 6000-6, QUALIFIED REPRESENTATIVE APPLICATION, as required by Rule 61B-80.101(3), Florida Administrative Code.

4. The name and mailing address of each respondent. If respondent is an association or other corporation, give the name and address of the president, secretary, or the registered agent of the association or corporation:

Kenneth Kral, 13028 Jocelyn Way, Brooksville, FL 34609

Lawrence J. Rosen, 555 Cressida Circle, Spring Hill, FL 34609

Willis G. Keller, 13172 Jessica Dr., Spring Hill, FL 34609

John R. Poffenberger, 443 Florian Way, Spring Hill, FL 34609

5. If the respondent is represented by an attorney, provide the name, mailing address and telephone number of the attorney:

Robert L. Tankel, P.A.                                                      727-736-1901

1022 Main Street - Suite D 

Dunedin, FL 34698

6. Section 720.311(1), Florida Statutes, requires mandatory binding arbitration of election disputes between a homeowner and an association. State when the next scheduled or anticipated election will occur:

1st. Monday of June, 2008

STATEMENT OF THE FACTS

7. Explain the dispute, including all relevant facts. Each fact must be set forth in a separate paragraph. Be sure to attach copies of all relevant documents as exhibits to the petition. (If more space is needed, attach a separate sheet of paper):

ATTACHMENT:

A.         That during the legally and properly conducted East Linden Estates Annual Membership Meeting a lawfully and properly conducted Board of Directors election was held on June 4, 2007 for four (4) open director positions.

B.         These five prospective applicants appeared on the mail-in and written in-person ballots:

1.      Patty Cafra

2.      Kenneth Kral

3.      Willis G. Keller

4.      David B. Parker

5.      John Poffenburger

C.        That the election was properly and rightly conducted according to the East Linden Estates election guidelines (SEE ATTACHMENT 1 East Linden Estates By-laws Article VI) and the Florida Administrative Code Rule

       61B-23.0021.

D.        That the votes were tallied by the election committee and verified by Director Thomas Lyons, because the Board President was not in attendance.  The winners were announced by Thomas Lyons.

E.         That newly elected directors and their order of finish was announced as follows:

1.      First Place Tie:  Patty Cafra and Willis Keller

2.      Third Place :  David B. Parker

3.      Fourth Place :  John Poffenburger

4.      Fifth Place :  Kenneth Kral

F.         That the election process and announcement of the winners was witnessed by numerous members of the Association including:

1.      Joe and Patty Cafra

2.      Peter Delcamo

3.      Leo Jacobs

4.      John and Michelle Jaquez

5.      Willis Keller

6.      Kenneth Kral

7.      Thomas Lyons

8.      George and Wendy Marvella

9.      Joann and David Parker

10.  John  Poffenburger

11.  Amber Sheiver 

      {The above witnesses’ addresses are available upon request of the arbitrator.}       

G.        That there was failure to abide by East Linden Estates By-laws Article VII (SEE ATTACHMENT 1) East Linden Estates By-laws Article VII) in that there was no organizational meeting held immediately following the announcement of the winners and seating of winners, as stipulated in the By-laws.

H.        That Kenneth Kral found a proxy wrongly addressed and opened said proxy/ballot.  That Lawrence Rosen, Willis Keller, and Kenneth Kral improperly and illegally tallied “found” ballot after the official conclusion of the election, and in direct violation of the adopted East Linden Estates rules of elections, the instructions included within the proxy, and the rules governing Florida elections.  Lawrence Rosen called David Parker Saturday, June 9, 2007 around 4:00 PM to inform him as a sitting board member “after the fact” of what they had done.  David Parker immediately contacted board member George Marvella, who also had no prior knowledge of any such action.

I.           That at some point during the week of June 4, 2007 former board member Kenneth Kral along with unknown others had opened sealed election materials, thereby invalidating said voting materials.  Then these individuals attempted to change the officially announced outcome of the June 4, 2007 election.

J.          That the actions in ( I. ) were conducted in secret at the residence of Kenneth Kral, with others in violation of any fiduciary duty, fairness, and election rules and guidelines.  Other members of the board were not advised of the actions of Kenneth Kral until after the votes and materials had been secretly invalidated.

K.       That Lawrence Rosen contacted David Parker on Saturday evening, June 9, 2007 (five days after the election had been concluded) and asked him to come to Kenneth Kral’s residence to discuss a “voting discrepancy.”  Upon arrival at the Kral residence David Parker found Lawrence Rosen, Willis Keller, and Kenneth Kral seated at Kenneth Kral’s office table with East Linden Estates official election materials spread out amongst them, thereby invalidating all said election materials.

L.         Lawrence Rosen attempted to convince David Parker that an error had been found in tabulating the votes and that David Parker had lost the election.  David Parker left, stating that he would file for arbitration if he was not rightfully installed as director.

M.      That as of the date of this arbitration filing, July 5, 2007:

• no organizational meeting has been held, thereby violating East Linden Estates By-laws and Florida Statutes 720;

• David Parker has not been notified of his installation as director;

• the current board is acting without officers, because it has violated the organizational meeting rule;

• Lawrence Rosen, Willis Keller, and Kenneth Kral had no authority to access sealed election materials in private;

• Kenneth Kral should have filed for arbitration when he had questions regarding the election process or the election outcome.

8. Identify each specific division rule, portion of the statute, or specific provision from the governing documents that entitle you to relief:

REQUEST FOR RELIEF

State the relief that you seek in arbitration, i.e., what is it that you want the arbitrator to require the Respondent to do or not to do: 

See attached Request for Relief. I seek the arbitrator order respondents to seat Petitioner as director. It is also requested that any cost be borne by respondents.

ATTACHMENT:

It is hereby requested that the respondents be ordered to adhere to the East Linden Estates By-laws and Election Procedures and to install David B. Parker as Director at Large for the term from June 4, 2007 through the annual election in 2009, as announced in accordance with observed East Linden Estates prior election procedures.  It is also requested that the vote tabulated by the election committee and verified by Director Thomas Lyons in view of the assembled membership be upheld as valid and final. 

It is also requested that the respondents be admonished for violating Florida election guidelines and East Linden Estates election procedures by holding a private recount meeting with an ousted former board member in that ousted board member’s private residence, thereby invalidating any effort to recount or recall prior votes that had been previously tabulated and verified and officially announced to the members present.

            It is further requested that any filing, arbitration, or arbitration assistance costs be borne by the respondents as individuals and not as association officers due to the willful and intentional violation of their fiduciary duties hereto being to maintain the validity of the election materials and the election, and their failure to rightfully install the officially announced winners of the election.

Pursuant to section 720.311(1), Florida Statutes, at the conclusion of the proceeding, the department shall charge the parties a fee in an amount adequate to cover all costs and expenses incurred by the department in conducting the proceeding. The fees paid to the department shall become a recoverable cost in the arbitration proceeding and the prevailing party in an arbitration proceeding shall recover its costs and attorney's fees in an amount found reasonable by the arbitrator.
I have read and understand that I am obligated by law to pay the costs associated with this proceeding..