Department of Business and Professional Regulation

Sandpointe Townhouses Owners' Association, Inc.,


V. Homeowners Voting for Recall,

Case No. 2006-00-7925

An Opinion By Jan Bergemann 
President, Cyber Citizens For Justice, Inc. 

April 12, 2006


This was a real interesting recall. Read about all the tricks the former board tried to avoid being recalled. They even hired a certified forensic document examiner to prove that petitions were pre-marked by hand or otherwise completed by someone other than the individual casting the vote.


The new board is already cleaning house. In a special meeting the licensed manager was let go, with and without cause!

This case is far from over. 

There is a lot more to come!

Just read the arbitration ruling. It's an eye-opener showing how certain board members cling to their seats on the board. And all at the expense of the homeowners, who pay for recalling a bord that uses their money to avoid a majority decision!







Sandpointe Townhouses Owners'

Association, Inc.,


V.                                                                     Case No. 2006-00-7925

Homeowners Voting for Recall,




  The undersigned arbitrator has jurisdiction over the parties and the subject matter herein, pursuant to section 720.311(1), Florida Statutes.  After review of the pleadings and all evidence submitted on behalf of the parties, this summary final order is entered in accordance with rule 61B-80.114, Florida Administrative Code, which allows the arbitrator in a recall arbitration proceeding to summarily enter a final order denying relief requested in the petition if the arbitrator finds that no preliminary basis relief has been demonstrated in the petition or where no meritorious defense exists.


On February 10, 2006, Sandpointe Townhouses Owners' Association, Inc. (petitioner or association), filed a petition for recall arbitration with the Division seeking affirmation of its decision not to certify a recall by written agreement. (1) The group of homeowners who voted

(1)     This recall agreement was the second of two served on the board, with the first recall agreement served on January 18, 2006. The first recall agreement was also rejected by the board and subsequently forwarded to the Division for recall arbitration.  At the time of service of the second recall agreement, the first recall arbitration was pending, however, on February 17, 2006, the parties agreed that a summary final order should be entered in the first recall proceeding.  Accordingly, a summary final order was entered on February 17, 2006, affirming the board's decision not to certify that recall, as the recall agreement failed to include separate recall and retain lines next to each board member sought to be recalled.  See Pre-Hearing Order, Arb. Case No. 2006-00-7925 (February 17, 2006). Order to Show Cause, A . Case No 2006-00-3035 (February 1, 2006).

to recall the board members was named as the respondent in this action.  On February 17, 2006, an Order Allowing Answer was issued and on February 20, 2006, an Amended Order Allowing Answer was issued as a result of the respondent's motion for an extension of time to respond, Also, on February 17, 2006, a pre-hearing conference to define the issues was held and a Pre-Hearing Order summarizing the conference was issued. On March 9, 2006, the respondent timely filed an answer to the petition, denying the validity of the three reasons asserted by the board in rejecting the recall agreement.  Both parties have submitted numerous filings to support their arguments, including affidavits of the association manager and members voting in the recall and video recordings of the meetings.



The homeowners' association consists of 368 total voting interests, which would require 185 votes to recall a board member.  On January 27, 2006, the association was served with a written recall agreement in an attempt to recall five of the seven members of the board.  The board members sought to be recalled are: Sheila Somers, Bethany Prendergast, (2) Dennis Smeltz, Harvey Heard and Phyllis Rampulla.  A total of 202 votes were attained for the recall of members Somers and Prendergast, separately, and 201 separate votes were attained for the recall of members Smeltz, Heard, and Rampulla.

(2)     The petition states that Ms. Prendergast resigned from the board on January 20, 2006, and was replaced after service of the second recall agreement by Earl Lear.  This appointment, however, does not affect the initial recall attempt of the five seats, as the filling of this vacancy is temporary pending the arbitration decision. See Oak Park Villa Condo.  Assn. of Jacksonville, Inc,v. Unit Owners Voting for Recall, Arb. Case No. 2006-00-4080, Summary Final Order (February 21, 2006)

On February 2, 2006, the association held a meeting, where counsel for the association suggested the following three reasons for rejecting the recall:

I Twenty-seven (27) ballots were completed or pre-marked by someone other than the signatory,


2. Nine (9) ballots were rejected for miscellaneous reasons other than pre-marking, including ballots cast by non-homeowners, suspect signature, ballot signed by remainderman.


3. Forty-one (41) ballots were over 90 days in arrears according to association records and therefore the delinquent voters were not entitled to cast a vote per resolution of the board and the governing documents of the association.

A majority of the board voted not to certify the recall based on the above-stated reasons.  The minutes of the meeting filed with the petition for arbitration included these three reasons, along with respective lists of the rejected ballots and members alleged to be in arrears, as announced at the meeting.



The association alleges that 27 ballots (3)  were properly rejected as pre-marked by hand or otherwise completed by someone other than the individual casting the vote. This assertion is based on " uniform check marks on the recall/retain lines and replacement directors with different ink used on the signature lines." In support of the petitioner's allegation, a forensic examination of the ballots was conducted. This examination was performed by Thomas W. Vastrick, a certified forensic document examiner by the American Board of Forensic Document Examiners. Mr. Vastrick has offices in Orlando, Florida and Memphis, Tennessee.  Mr. Vastrick's findings were included in a Forensic Document Examination Report (the report),

(3)    The ballots utilized by the respondent were identical to, if not copies of, the sample recall ballot provided on the Division's website at

dated March 14, 2006, and subsequently filed by the petitioner. (4)  From the report, Mr. Vastrick examined 197 ballots and concluded that 16 ballots "contain checkmarks that bear evidence of common authorship”. However, only 7 of the 27 ballots identified as being pre-marked or completed by someone other than the signatory at the meeting of February 2, 2006, and specifically identified in the meeting minutes were identified as pre-marked by Mr. Vastrick.


In her order dated February 24. 2006, the arbitrator held that only the ballots specifically identified as being pre-marked in the meeting minutes could be considered on this basis, in spite of the petitioner's argument that other ballots should also be rejected as pre-marked should the document expert so find.  Reasoning for the arbitrator's disallowing the petitioner the opportunity to submit additional ballots or reasons for rejecting additional ballots is based on the principle behind rule 61 B81.003(4)(f), Florida Administrative Code, which requires the meeting minutes to include the specific reasons for the board's failure to certify the recall, including specifically identifying each ballot, and on numerous recall arbitration cases whereby the arbitrators refused to consider additional grounds or ballots not identified raised that were not identified in the meeting minutes (nor, in this case, in the petition for arbitration).  The reasoning is simple.  To allow a petitioner the opportunity to supplement its reasons stated at the recall board meeting ignores the statutory time limits imposed by the Legislature and the requirement that the board, at that meeting, identify each ballot rejected and announce the basis for its decision to certify or not certify the agreement.

(4)   In the Order of February 24, 2006, the petitioner was advised that expert testimony was required to support the association's allegation that 27 ballots were pre-marked.

"At some point, regardless of the nature of the grounds for rejecting the recall, the issues must be defined and ruled upon." See Cape Palms Condo.  Assn., Inc. v. Unit Owners Voting for Recall, Arb. Case No. 2003-07,9946, Summary Final Order (January 28, 2004).  Therefore, in accordance with the pre-hearing order of February 17, 2006, only the initial 27 challenged ballots can be considered, and of those, only the seven ballots determined by the petitioner's expert as "contain[ing) checkmarks that bear evidence of common authorship" could be considered pre-marked These ballots are identified as: 1) Kenneth and Thelma Payne; 2) Cecilia Bautista (8265); 3) Shesha Milty Khanna; 4) Joseph Bret Voisin; 5) Farheen Mahmood Revocable Trust; 6) Sandra Rose Schunkde Araujo; and, 7) John DeChristopher.



Forty-one (41) ballots were rejected based on delinquent member accounts over 90 days.  The minutes include a listing entitled “Recall residents over 90 days in arrears." The petitioner argues that the authority of the association to suspend a member's right to vote where the1(b), which reads:

Section 1. Powers- The Board of Directors shall have the power to:


(b)            suspend the voting rights and right to use of the recreational facilities of a member during any period in which such member shall be in default in the payment of assessment levied by the Association. Such rights may also be suspended after notice and hearing, for a period not to exceed 60 days for infraction of published rules and regulations.


Section 720.305(3), Florida Statutes, permits such suspension as follows:

If the governing documents so provide, an association may suspend the voting rights of a member for the nonpayment of regular annual assessments that are delinquent "in excess of 90 days. [emphasis supplied.]


Based on the "accounts in arrears” listing provided in the meeting minutes, the arbitrator is unable to determine if the delinquent amounts are indeed regular annual assessments.  However, the petitioner filed a supporting affidavit of Neville Spracklen, the association's certified manager.  Included with the affidavit are copies of late notices to members dated September 15, 2005, along with corresponding account detail sheets. (5)  The detail sheets have a "start date" of January 1, 2005, with all charges described therein as either a “maintenance fee" or "late fee."


The respondent, however, in footnote 1 of the answer, argues that these late fees are not regular annual assessments and, therefore, the association's authority to suspend the voting rights for late fees is unfounded.  The respondent states:

Petitioner assesses a late fee of $15.00 in the event that a homeowner has not paid his or her account by the fifteenth day of the month in which it falls due.  These "late fees" are not "regular annual assessments," and therefore -- assuming purely arguendo - that these "late fees" are due, the recall votes of these twenty-one homeowners would not be disqualified on that basis.  Furthermore, there is absolutely no authority in either the Declaration, By-laws, or the Articles of Incorporation governing Petitioner that authorize the levying of "late fees' in any event.

The arbitrator agrees with the respondent in that the monthly late fees charged by the association are not regular annual assessments in that section 720.301(1),, Florida Statutes, defines an assessment as follows:

"Assessment" or "amenity fee" means a sum or sums of money payable to the association, to the developer or other owner -of common areas, or to recreational facilities and other properties serving the parcels by the' owners of one or more parcels as authorized in the governing documents, which if not paid by the owner of a parcel, can result in a lien against the parcel,

(5)     In his affidavit, Mr. Spracklen admits that the account of Barry and Rebecca Poston was current at the time of the recall and therefore, this ballot was improperly rejected, Mr. Spracklen also admits that the association's financial records were inaccurate prior to his employment by the association in October 2005, due to previous mismanagement of the financial accounts and due to the association database being infected with a computer virus in July 2005.  He believes, however, that the financial records of the association, including the account detail sheets relied upon during the recall are now accurate.

Therefore, the board's determination that 41 ballots were invalid because of “arrears" in excess of 90 days is unjustified.  Interesting, however, is the fact that on January 18, 2006, shortly after the association filed the petition for arbitration in the first recall and prior to service of the second recall agreement, a meeting was held by the board whereby the board announced by way of "resolution" that it would thereafter enforce the provisions of article VII, section 1(b), which allows the suspension of voting rights for members delinquent in the payment of assessments.  Of course, the implementation of this new policy (although already provided in the governing documents), would possibly invalidate approximately 19 ballots (6)  cast in the second recall.


Based on the arbitrator's viewing of the recording of the January 18, 2006, meeting, the board focused solely on the board's ability to enforce the voting suspension provision, either by way of resolution or by mere authority granted in the governing documents, but failed to even discuss methods of collecting the delinquent "fees" and assessments or procedures for implementing this provision.  Additionally, the agenda for this interim meeting did not include any mention of the future enforcement of the voting suspension provision (the board took up the "resolution" item at the end of the meeting), which indicates that the board's desire to derail the recall effort, rather than its desire to collect outstanding "fees" and assessments, was the motivating factor for the suspension of voting rights at this time.  Because the board had not previously enforced this voting suspension provision, the board cannot, in the face of a recall effort, rely on its authority to suspend voting rights to disenfranchise otherwise eligible voters

(6)     This count is based on the 19 members whose accounts were listed in the petitioner's "arrears' listing provided in the meeting minutes and delinquent over 90 days in amounts other than $15.00, $45,00, and $60.00, plus the exclusion of Barry and Rebecca Poston.

participating in the recall.  This situation is analogous to a board deciding to reject a recall agreement because no voting certificates were on file with the association at the time the recall agreement was served on the board even though the board has never enforced the requirement in past elections.  See Florida Ocean Club Condo.  Assn., Inc. v. Unit Owners Voting for Recll, Arb. Case No, 03-6024, Summary Final Order (March 17, 2003)(fallure to have a valid voting certificate on file with the association was not a valid basis for the board not to certify the recall where the association does not demonstrate enforcement of the voting certificate requirement in the past)-, The Decoplage Condo. Assoc., Inc. v. Unit Owners Voting for Recall, Arb. Case No. 025830, Amended Summary Final Order (January 16, 2003)(where an association has failed to enforce a voting certificate requirement in prior elections, the requirement will not be enforced in a recall arbitration to disenfranchise voters).


Based on the foregoing, the board's action taken at the meeting held on January 18, 2006, does not apply to the instant recall and, therefore, the 41 ballots rejected because of "arrears" were improperly rejected by the petitioner.


As for the eleven (I 1) ballots rejected by the petitioner based on 'miscellaneous' reasons, only four were properly rejected by the petitioner.  Ballots submitted by Katia Manjani and Maria Auge (8304 Sandpoint Blvd.) were properly rejected as not being the owner of record for the parcel.  The ballot submitted by Bernard D. Klein failed to include a signature, therefore this ballot is invalid, regardless of the notary signature attached to the ballot.  The ballot submitted by Johanna L. Kellog was properly rejected as Ms. Kellog is listed as the remainderman for the estate and no other adequate showing that Ms. Kellog is authorized to vote on behalf of the parcel has been made.


The ballots submitted by Thomas Cummings, Josephine Caputo, and Shesha Khanna were included as "miscellaneous" rejections, yet these three ballots were already rejected as pre-marked ballots by the petitioner.  No other reason was given for their rejection, therefore, these ballots were addressed in the above discussion of premarked ballots.  The ballots submitted by Maria Aughtman, Ralph W. Simon, III, and John D. Haupt shall be counted, as the respondent submitted deeds for each of the parcels showing that each of these homeowners are the owners of record and are thus authorized to cast their ballots. Last, as for "suspect signature" and the misspelled name on the ballot cast by Maximilien Beaux, the respondent submitted an affidavit whereby Mr. Beaux attests as to the authenticity of his ballot and explains in an attached letter that because his first name was misspelled on the county tax records as 'Miximilien," Mr. Beaux purposefully misspelled his name on the ballot.  Mr. Beaux also states that he has since corrected his name on the county tax records.


Based on the foregoing, at most, 11 ballots (7 pre-marked and 4 'miscellaneous" rejected ballots) can be deducted from the 202 original votes attained for the recall of both Sheila Somers and Bethany Prendergast, and the 201 votes separately attained for the recall of Dennis Smeltz, Harvey Heard, and Phyllis Rampulla.  This equals 191 votes for the recall of Sheila Somers and Bethany Prendergast, and 190 votes for Dennis Smeltz, Harvey Heard, and Phyllis Rampulla, separately. Therefore, a majority vote has been attained in the recall of Sheila Somers, Bethany Prendergast, Dennis Smeltz.  Harvey Heard, and Phyllis Rampulia.


It is therefore ORDERED:


1. The recall of Sheila Somers, Bethany Prendergast, Dennis Smeltz, Harvey Heard, and Phyllis Rampulla is hereby CERTIFIED.

         2.  Sheila Somers, Bethany Prendergast, Dennis Smeltz, Harvey Heard, and Phyllis Rampulia, or any individuals appointed to serve in their seats..shall step down as directors of the board immediately.

         3.  Any and all official records of the association still in the possession

of the recalled board members shall be turned over to the remaining board members within five (5) calendar days from the date of this Order.

4. The replacement directors are those directors receiving the highest number of votes, who are: Morris Bodia, Rosalie Mocsary, Janet Scott, Regis Emard, and Timothy Nycum.  These five replacement directors shall serve out the term for the respective seat filled,

DONE AND ORDERED this 24th day of March, 2006, at Tallahassee, Leon County, 



                   Susan Wilkinson Hamden, Arbitrator

                   Division of Florida Land Sales, Condominiums

                   & Mobile Homes,- Arbitration Section

                   Dept. of Business & Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-1029


Certificate of Service


I hereby certify that a true and correct copy of the foregoing- Order' has been sent by facsimile and by U.S. Mail to the following persons on this 24th day of March, 2006:


Peter McGrath, Esquire

801 North Magnolia Ave., Suite 304

Orlando,FL 32803

Attomey for Petitioner


James A. Gustino, Esquire

2433 Lee Road

Winter Pa , FL 32789-1755

Attorney for Respondent




                                                                                          Susan  Wilkinson Hamden, Arbitrator