CHIEF ARBITRATOR JAMES EARL -- NOTHING BUT PREDICTABLE

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

Published August 19, 2017

I have said it all along: Division Chief Arbitrator James Earl is easily predictable. He just loves to put his own "spin" on laws, especially if these laws are new and have not been interpreted yet in a court of law. He obviously feels a lot more important than he really is. In my opinion he is clearly ignoring the wording of the new law regulating the condo recall process.

Remember my Op-Ed dated August 3, 2017 headlined: "WHY DO ATTORNEYS DON'T READ -- OR UNDERSTAND -- NEW LAWS?"

The laws regarding the recall process in condominiums have changed -- like it or not!

In my opinion -- and that of the Florida Legislature -- the new laws created by HB 1237 are effective since July 1, 2017 -- and the new procedures have to be used -- or are all these attorneys and arbitrators above the law? It seems that way reading the correspondence between the association attorney and Chief Arbitrator James Earl in the SUNBROOK RECALL ARBITRATION case..

As predicted, the Division hasn't updated the Florida Administrative Code in a timely manner -- we all know that they are slower than snails when it comes to do the necessary work they are being paid to do. But the fact that Chief Arbitrator James Earl even dares to quote the old, outdated Florida Administrative Code in his ORDER REQUIRING ANSWER dated August 14, 2017 in the Sunbrook Condominium Association Inc. recall arbitration case is in my opinion a clear affront of Florida's legislators. In my opinion Earl's Order reads: " I don't care about the new laws enacted by Florida's legislature. I use the laws as I see fit, no matter what new laws were enacted by the legislature."

There is absolutely no discussion that the law regarding the condo recall process has changed -- and the new law clearly states: "EFFECTIVE IMMEDIATELY." The former paragraph 3. of FS 718.112(2)9j) was removed -- or actually deleted. That was the paragraph that regulated the fact that the board was actually allowed to vote to certify or not to certify the recall at a specially called board meeting. This paragraph is no longer in FS 718. There is no more certification requirement in the newly worded recall provisions.

Paragraph 2. now says: "Such member or members shall be recalled effective immediately ....". I am not quite sure how even the "smartest" lawyer can interpret the word "immediately" other than this definition found in Black's Law Dictionary: "The words ‘forthwith’ and ‘immediately ’ have the same meaning. They are stronger than the expression ‘within a reasonable time.’ and imply prompt, vigorous action, without any delay, and whether there has been such action is a question of fact, having regard to the circumstances of the particular case.”

In my opinion the Miami/Dade Grand Jury Report was not strong enough when it stated: "Unfortunately, the [Department of Business and Professional Regulation, or DBPR] seems ill-suited to resolve, correct or prevent many of the recurring problems that have been brought to their attention."

Many condo owners complain that there is nobody here in Florida enforcing the laws regulating condominiums.

AND THEY ARE CORRECT!

To me it's obvious that the Division of Florida Condominiums, Timeshares and Mobile Homes is failing to do what they are being tasked to do. And if Florida's legislators create new owner-friendly laws the Division obviously fails to recognize it -- and fails to act accordingly.

In my opinion it's about time that Chief Arbitrator James Earl goes the same way his predecessor Karl Scheuerman went: "OUT OF THE DOOR."