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Board Elections At Playa Del Mar Condos ATTORNEY ALLEGEDLY VIOLATES FLORIDA STATUTES Is There More Behind The Scenes? |
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An Opinion By Jan Bergemann March 31, 2006 From starters, I had the feeling that some of the major players acted the way they did because they relied on the Division to cover up for them if need be! I don't think some of the board members would have dared to clearly violate the Florida Statutes without the assurance that they would be protected. Even attorney and manager were playing a hot game when they stopped the appointed monitors from entering the meeting facilities. Read below the Preliminary Inquiry, conducted by Division Chief Michael Cochran. In my opinion, Michael Cochran shouldn't have touched this hot potato in the first place considering that he was part of the group of people who was directly involved in the preliminaries of the described events. Please read the preliminary inquiry combined with comments and quotes! TO:
Virgil Rizzo, Condominium Ombudsman FROM:
Michael Cochran, Director, FLSCMH SUBJECT:
Playa del Mar
Association Election; Preliminary Inquiry DATE: March 21, 2006
CODING: Black -- Original text ; Red -- Comments ; Blue -- quotes ; Fuchsia -- Hot Link
Representative Julio Robaina sent an E-mail February 9, 2006, alleging that the attorney for Playa del Mar Condominium Association was attempting to stop the association’s annual election scheduled for Tuesday February 21, 2006. Quote official newsletter: "The state has been asked to run the election. Three people were selected to do so. However, the association's new attorney is waiting for the resume of the 3 people to ensure that they are certified and qualified. If the credentials are not established by the time of the annual election, the association's attorney will run the meeting and the 3 individuals from the state will attend as observers."
I
contacted the association’s attorney, Robert Rubenstein immediately (DBPR
Secretary Simone Marstiller considered this
demand a violation of the Florida statutes and wrote to Division Chief
Michael Cochran (quote): "I
concur. There is no mechanism for the assn to place additional
requirements on the monitor once a monitor has been requested as provided
by law. and was advised that the association had no intention of stopping the election but did have questions as to the qualifications of the election monitors and the amount of the monitor’s fee. (The
attorney has -- according to Florida Statutes -- no right to question the
qualifications of the election monitors or the amount of the fees at this
stage -- much less the right to stop the monitors from entering the
premises.) On Wednesday February 22, 2006,
the day after the election, the division received an
email from Jan Bergemann generally alleging bad treatment of the
Ombudsman’s election monitors with an attached anonymous (Name
withheld) email alleging that the board’s property manager and
attorney’s behavior at the election the night before was “arrogant and
disgusting.” However, the
election was conducted by the election monitors appointed by your office
and as of the date of this report we have received no complaint or
petition for arbitration challenging the election results.
In an abundance of caution, the division chose to conduct a
preliminary inquiry as to the basis of these allegations. The Division of Florida Land Sales, Condominiums and Mobile Homes (FLSCMH) either interviewed or obtained written statements from:
At
the outset of the election there were 3 unresolved issues which created an
adversarial atmosphere: the
Association had not pre-paid the election monitoring invoice from your
office and the amount of the invoice was still being questioned by the
Association; the Association had requested but not After conducting its preliminary inquiry, the division finds that there is no evidence to suggest that the election of the board of administration of the Playa del Mar Association, Inc., was improperly conducted. As of the date of this report no complaint has been filed and no petition for arbitration challenging the validity of the election has been filed. The Ombudsman’s election monitor states that he is unable to “certify” the election. However, neither section 718.5012, Florida Statutes, nor 61B-23.00215, Florida Administrative Code, the election monitoring rule, require or authorize such a certification in order to for an election to be considered valid. See s.718.5012(9), Florida Statutes, it is the division that prescribes “scope and extent of the monitor’s role in the election process” not the monitor. He also states that “our ability to conduct the election was seriously impaired.” However, other than a disagreeable and contentious beginning, no evidence has been presented by anyone to support this allegation. After an adversarial and argumentative beginning by all accounts, the election monitor and his assistants conducted the election without impediment, with his own hand picked team of unit owners, and subsequently issued his report. As stated to the division’s investigator by Leigh Garske, “the election monitors took over the process, recertified the ballot envelopes, and the election “went smoothly.” However, in conducting our inquiry, it was revealed that, immediately prior to the actual election on February 21st, the board held an unnoticed meeting, over the objection of the election monitor, in the manager’s office, where the board and the election monitor essentially discussed whether the Ombudsman was going to conduct the election because of the 3 issues mentioned above. While this was done at the behest of the board and the election monitors were invited, this appears to violate s. 718.112(2)(c), Florida Statutes, which requires such meetings to be properly noticed and open to unit owners. As a result, the division will conduct further investigation of this issue and take appropriate action as may be warranted. cc:
The Honorable Julio Robaina, Florida House of Representatives
John Topa, Chief of Compliance Knowingly -- or unknowingly -- Michael Cochran left out a few very important issues. 1.) The prior year’s election was already flawed. The Division issued a warning!
2.) The actions of the attorney were premeditated -- see newsletter. What qualification does the attorney thinks he has to be able to check the credentials of the election monitors to ensure that they are certified and qualified? Passing a BAR exam doesn't make him a certified election specialist, but he had no quarrels to state that he will run the meeting with election. The way the meeting was conducted clearly proved that the people in charge even failed to register the owners present and establish a quorum!
3.) Two official complaints were filed by two unit owners on March 8, 2006 -- hand delivered to the DBPR, Fort Lauderdale office!
4.) Michael Cochran knew that the association board and/or the attorney had no right to detain the monitors. Cochran was -- by Secretary Marstiller -- instructed to inform the attorney that his statements in the newsletter were out of line. See e-mail by Secretary Marstiller to Michael Cochran (dated February 09, 2006) 5.) The return mailing address was the private address of a board member, a candidate in the election. How can owners expect a fair election if ballots are mailed and in possession of a candidate? 6.) The validity of the candidacy of a board member, Edward A. Napolitano, should have been confirmed prior to the election. According to official documents, Napolitano is not an owner as required in the bylaws and should have been disqualified! Despite different requests to show proof of unit ownership by Napolitano, the board has still failed to comply! To make a long story short: Claiming to investigate the "unnoticed" board meeting is definitely the easy way out. Considering that the attorney is a member of the law firm of Becker & Poliakoff P.A. and that manager Keith Tannenbaum is an employee of Continental Management, it gives everybody the impression that the Division rather ducks instead of tangling with the "Big Dogs"! So maybe the assumption that somebody will be covering up for them is not too farfetched? If the Division lets board, attorney and manager get away with their violations of the Florida Statutes, it clearly loses what little credibility it still has left! Many condo boards, attorneys and managers don't take the Division seriously anyway! Florida's condo owners need a strong government agency willing to enforce our laws, not a toothless tiger that wastes their money and ducks every time some attorney plays his/her own little game -- and just ignores the Division! |