Coup d'état in the Sunset Point Association, Inc. in St. Augustine

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

Published April 12, 2014


I always think it's absolutely hilarious if some power-hungry owners are recalling the board under the pretense that the sitting board members have no clue what they are doing, but violate about every provision of the Florida Statutes and the Florida Administrative Code when proceeding with the recall.


It so happened in the Sunset Point Association, Inc. in St. Augustine when Walter Nixon, Max Williams, Ronald Powell and David Beck carefully planned the coup d'état to grab the power over the association from the sitting board members.


The Sunset Point Association, Inc. in St. Augustine is a small homeowners' association with a voting interest of 82. The developer turned over control, but kept one seat on the board using the 18 votes still in his possession. The board of the association consists of three members, two representing the interests of the homeowners, one the interests of the developer. It was business as usual until the three newly self-appointed board members decided it was time to take over the power in the community. They thought this time had come when one of the two elected board members resigned and the board president, Danielle Tolman, appointed Larry Farnsworth as the new Treasurer, handing him the checkbook and giving him signature power on the association's bank account.


That's when the three power-grabbers went into action. They quickly collected recall petitions from some other owners and used the 18 votes of the developer to achieve the necessary number of recall petitions. If they would have taken a look at FS 720.307(3) they would have realized that this was their first serious mistake that already made the "planned" recall invalid.

FS 720.307(3) The developer is entitled to elect at least one member of the board of directors of the homeowners’ association as long as the developer holds for sale in the ordinary course of business at least 5 percent of the parcels in all phases of the community. After the developer relinquishes control of the homeowners’ association, the developer may exercise the right to vote any developer-owned voting interests in the same manner as any other member, except for purposes of reacquiring control of the homeowners’ association or selecting the majority of the members of the board of directors.

Walter Nixon's excuse: That's the way we always did it! Honestly, that's the most disingenuous excuse I always hear. Doing things always wrong surely doesn't make it right, especially if the law says otherwise.


The recall petitions were served on the boy-friend of the president while she was on a business trip and the folks behind the recall quickly called a recall meeting (without being authorized to do so) and conducted a sham meeting on April 1st. -- calling it a Board Meeting for the purpose of Recalling Danielle Tolman -- see: Letter from the Sunset Point Board of Directors distributed on April 3rd.

But if you read this letter carefully -- it was created to look like the official report of the meeting that had taken place -- you will immediately realize that one important item is missing at the beginning: Roll Call! Since every board meeting requires a quorum to be a valid meeting the author of these unofficial "minutes" left out that no quorum was established. 

FS 720.303(2) BOARD MEETINGS.-- 

(a) A meeting of the board of directors of an association occurs whenever a quorum of the board gathers to conduct association business.

Make no mistake: That's when the meeting should have ended before it really started. The only board member present at the meeting was Max Williams, the developer's appointee to the board. President Danielle Tolman and Treasurer Larry Farnsworth (the "new" directors claim that he wasn't officially appointed at a public board meeting and don't recognize him as a member of the board) were not present at the meeting -- a meeting that wasn't called by the president in the first place. But when an owner from the audience questioned the lack of a quorum, Max Williams informed him that "special meetings did not require a quorum." OUCH! Serious violation of Florida laws No.2!


In order to make this meeting look legit, the folks behind this power-grab hired a court reporter (who in reality had nothing to report because no official meeting took place), an off-duty police officer to give the meeting a legal appearance and attorney Michelle P. Haines from McCabeLawGroup in Ponte Vedra Beach. Even if Haines may still be celebrating her admittance to the Florida Bar (10/01/2013) she should have learned in law school (HOA 101) that any meeting of a board requires a quorum. The one board member present (Max Williams, the developer's appointee) surely can't be considered a quorum. With other words: She should have interfered as soon as it was clear that no quorum was present at this so-called recall meeting and told the folks eager to violate Florida statutes that no meeting could take place. That would have been the end of this argument.


After this invalid "recall meeting" the three conspirators quickly filed a new Annual Business Report with the Division of Corporations, naming themselves as the three directors of the board. They used this annual business report as well to gain access to the association's bank account.


Not only did they ignore Florida Administrative Code 61B-80.102 but as well FS 720.303(10)(g) requiring them to file a recall arbitration petition if the board fails to officially certify the recall or hold the required meeting.

FS 720.303(10)(g) If the board fails to duly notice and hold the required meeting or fails to file the required petition, the unit owner representative may file a petition pursuant to s. 718.1255 challenging the board’s failure to act. The petition must be filed within 60 days after the expiration of the applicable 5-full-business-day period. The review of a petition under this paragraph is limited to the sufficiency of service on the board and the facial validity of the written agreement or ballots filed.

The three self-appointed board members choose to ignore these rules as well -- knowing full well that their so-called recall wouldn't hold up under legal scrutiny. Serious violation No. 3 -- but who is still counting?


And to "celebrate" their power-grab Max Williams, Ronald Powell and David Beck called a board meeting on April 9, crowning themselves officially as the new emperors of the Sunset Point Association, Inc.


To be very honest, I can hardly imagine that all these actions took place in good faith, because nobody in my opinion can be so incompetent to not know all these simple laws. But in reality there are only two reasons that could be used to explain the actions of the people behind this sham-recall: Either these folks are totally incompetent and don't really know what they are doing -- or they knowingly violated Florida laws.


No matter what: In my opinion they plainly counted on none of their neighbors being willing to spend the money for legal fees to challenge their actions in court or in arbitration. Intimidation is the name of the game?


But make no mistake: These kind of actions by power-hungry homeowners are only possible, because again Governor Scott blocked a bill that would have created an oversight agency for homeowners' associations, still making the laws only enforceable for people who can afford to spend thousands and thousands of dollars in legal fees to enforce the existing laws regulating these homeowners' associations!