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

Published June 10, 2014

The process for recalling board members by written petitions in HOAs was added to FS 720 in 2004 (SB 2984). As a member of the HOA TASK FORCE I was very much in favor of adding this recall process. We used the long established language from FS 718 to give homeowners the same easy tool to recall unwanted board members as condo owners enjoyed for many years.

The goal: To avoid lengthy – and costly -- litigation as we had seen in the past. It should have created a simple numbers’ game, with easy to count the petitions. If the Owners Voting for Recall could present 50% + 1 valid recall petitions, the recall was certified. Period!

But when the members of the Task Force voted to add the language of the recall process to FS 720 [see FS 720.303(10)] we surely didn’t figure in the incompetence of the Division arbitrators. Over the years they added interpretations into the simple – and in my opinion -- easy to understand language – language that didn’t even exist between the lines. I will never understand how an arbitrator can come to the conclusion that a recall of a minority of board members is in reality a case of election arbitration where the loser pays the prevailing party. Never forget, the idea behind the recall process was low legal fees and no “prevailing” party. I can assure you charging a losing party in a recall case was never the intent of the HOA TASK FORCE members. We never intended to create such unjust nonsense.

But in recent cases it got even worse: 

In one case the majority of owners in Coco Wood Lakes Association, Inc. had to deal with the total incompetence of arbitrator Leah A. Simms, who plainly didn’t read – or comprehend – the motions – with documentation attached – of the representative of the owners voting for recall. When he made Simms aware of serious mistakes in her rulings, she treated him like a total moron and even said so – more or less -- in taped telephone conference calls. Simms even threatened to remove him as representative, because she obviously was sick and tired to be reminded by a non-attorney of her own serious mistakes. 

Simms  made a complete mess out of the recall process and six (6) months after the board was initially served with the recall petitions (November 25th, 2013) the Owners Voting for Recall were forced to file for Trial De Novo to remedy the nonsense Simms came up with. If you want to know more about this case, please see: “RULINGS OF INCOMPETENT ARBITRATOR COSTS HOA THOUSANDS OF DOLLARS -- AND IGNORES THE WILL OF THE MAJORITY OF OWNERS.”

But if you think Simms is incompetent, then what would you think about arbitrator Glenn Lang? He refused to deal with a recall case (Sunset Point Association, Inc. -- Case No. 2024-01-5144) claiming that the rightful president of the association failed to give the power grabbers an ample warning before filing for recall arbitration. Here is what really happened in this community: “POWER GRABBERS IGNORE FLORIDA STATUTES!”

Imagine this recall scenario:

• The "boyfriend" of the sitting president was served -- while the president was on a business trip -- with the recall petitions. Last I read: "Boyfriend" sure isn't listed as a party to be served!

• Eighteen (18) of the recall petitions used were coming from the developer [violation of FS 720.307(3)]

• A so-called recall board meeting took place, with only the developer's appointee present at the meeting [no quorum -- violation of FS 720.303(2)]. The president still wasn't back in town and the board member who was appointed by the president to take the seat of a board member who resigned, was told that he can't participate because in their opinion he wasn't officially appointed. In reality he was appointed Treasurer by the President and was already named on the signature card of the association's bank account at that time.

• For this "recall meeting" they hired an attorney to make their actions look legal, and an off-duty police officer who was used to threaten owners who were trying to tell them that their actions violated the Florida statutes.

• The developer's representative "certified" the recall [violation of FS720.303(10)]

• The developer's appointee quickly appointed two other community members to "serve" as the "new board."

• This new (illegal) board filed a new Annual Business Report and used this form to take over the association's bank account.

• They now claim to be the official board of the association!

Let's make it very clear: This illegal recall didn't even meet the facial validity of the written agreement or ballots filed -- as required in FS 720.303(10)(g).

So much for the "Coup d'état" in the Sunset Point Association, Inc. in St. Augustine. This was a typical example for ignoring the recall provisions -- and other provisions of FS 720.

In short: NOTHING WAS DONE ACCORDING TO FLORIDA STATUTES.

But that seems to be totally ok with arbitrator Lang, who is protecting people who plainly ignored multiple provisions of FS 720 – obviously laughing about the statutes. He refuses to accept the real president’s recall arbitration filing claiming that there was a “LACK OF PRE-ARBITRATION NOTICE.” Who is he kidding? His own lack of competence?

Did these folks, now claiming to be the new board of the association, give the sitting president notice that they would start an illegal recall in her absence, violating about every provision in FS 720, taking over the board and grabbing the money of the association? But, according to Lang, these violators of Florida statutes deserve the protection of the arbitration section of the Division, not the official board of the association.

That’s just another case that will end up in court due to the total incompetence of the arbitrator.

All this is definitely not what the members of the HOA Task Force had in mind when they voted to add the written recall process to FS 720.

Let’s make no mistake, the old saying always works: “You get what you pay for!” 

These arbitrators get paid less than the secretary in a good law firm. For me them working for the Division at such a low salary is just a sign that nobody wants to hire these attorneys – nobody but the Division. To me it’s pretty obvious that they must have won their BAR license on the county fair. Their actions speak volumes.

It is really time for the DBPR Secretary to clean house and get rid of some of these incompetent arbitrators who cost owners tens of thousands of dollars – and make the recall process a joke -- a joke where only the specialized attorneys can laugh.

And if the DBPR Secretary is unwilling to take the necessary action to protect the owners of property in community associations against the incompetence of these arbitrators, the Governor should reconsider his appointment for the DBPR Secretary.

Never forget: We owners can’t elect the DBPR Secretary, but since the Secretary is appointed by the Governor, the Governor is in the end accountable for the actions of his appointee.