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

Published February 5, 2010

A recent recall arbitration case Larkenheath Villas Homeowners' Association, Inc. v. Homeowners Voting For Recall [Case No.2009-05-6469] ended on January 27, 2010 with a SUMMARY FINAL ORDER in a very timely fashion -- 96 days after the initial arbitration filing.

Considering that the board was served with the recall ballots on October 13, 2009 and the initial arbitration was filed on October 23, 2009, it took arbitrator Glenn Lang only 96 days to come up with a final ruling. No fancy case management conferences -- just plain written arguments. That's actually the way it was supposed to be -- that was the legislative intent -- and how it should be!

The association has 209 voting interest -- meaning 105 valid votes are needed to certify a recall. The owners served the board with 113 recall ballots. At a board meeting the board decided to reject 21 of these ballots for various reasons. 

The main issues:

RESCISSION OF BALLOTS BY E-MAIL

Five of the ballots were rejected by the board because the board claimed that they were in possession of written rescissions filed in time by owners who signed the original ballots. At issue: The rescissions were done by e-mail. And as the arbitrator rightfully pointed out: "e-mails can be manipulated to appear to be sent by a particular individual, therefore, some method of signature verification must be demonstrated." Arbitrator Lang ruled that these rescissions sent by e-mail were defective and the ballots are counted as valid.

HOMEOWNER DELINQUENT IN ASSESSMENT

Ten (10) ballots were rejected because the board claimed that the voting rights of these owners were suspended on October 15, 2009 -- two days after the board was served with the recall,  because the homeowners were more than 90 days delinquent in the payment of assessments.

Respondents Owners Voting For Recall quoted the Sandpointe Townhouses Owner's Ass'n, Inc. v. Homeowners Voting for Recall (Case No. 2006-00-7925) and the arbitrator agreed with the reasoning of the quoted case.

Even if FS 720.305(3) allows boards to suspend the voting rights: "(3) 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," the fact that the owners were not given any kind of notice regarding the suspension of their voting rights and that it is obvious that this suspension was aimed at a specific election or recall. "Under Section 720.305(3), Fla. Stat., and the Association's Declaration, basic due process requires the board to provide written notice of the suspension to the homeowners before a recall ballot can be rejected on this basis. All ten rejected ballots were counted as valid.

REPLACEMENT CANDIDATES NOT PROPERLY ELECTED

The association board rejected as well a ballot where the owner had voted for more replacement candidates than were listed. The arbitrator ruled that the vote for a recall of board members is treated separately and the board can't reject recall ballots based on replacement candidate issues. The ballot was counted as valid.

CASE CONSIDERED NOT LISTED ON DIVISION'S FINAL ORDER INDEX OR LEXIS-NEXUS

Attorney James DeFurio argued that the Sandpointe case should not be considered because it is not noted on the Division's online Final Order Index or in counsel's Lexis-Nexus search-engine. Quote arbitrator: "Just because a case is not on the Division's online Final Order Index or in counsel's search-engine does not mean the case does not exist and cannot be used in argument. The same is true with respect to unreported state and federal cases."

The separate rulings on specific issues nullified the rejection of 16 ballots by the board and arbitrator Glenn Lang ruled that the recall of the 5 board members is certified because there were more than enough valid recall ballots to sustain the recall.

SOMETIMES THE RECALL ARBITRATION PROVISIONS STILL WORK -- IF THE ARBITRATOR IS WILLING TO GO BY SET RULES -- WITHOUT INVENTING NEW RULES AND SCHEDULING FANCY CASE MANAGEMENT CONFERENCES THAT ARE NOT BASED ON THE STATUTES.

Recall of the Board of Directors is an important tool to empower the homeowners to remove unwanted board members. The recall provisions in the various community association statutes were intended to create a simple tool for this proceeding, avoiding huge court cost and lengthy legal arguments. But, in recent times, some of the Division's arbitrators seem to be having a competition among each other, trying to outdo each other in complicating matters.

A simple ruling like in the Larkenheath case was really refreshing to read, considering all the convoluted rulings we have seen recently!