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

Published January 16, 2007

On first view there is nothing wrong with the FINAL ORDER OF DISMISSAL of arbitrator James Earl declaring a recall arbitration moot after a new election. But if you do know the rest of the story, you start wondering: What's wrong with the arbitration section of the DBPR?  We’ve known for quite a while that these folks may have law degrees and are authorized by the BAR to "practice" law in the State of Florida , but we as well quickly realized that some of these arbitrators seem to lack plain common sense -- or are unwilling to use it! It seems they take any opportunity to avoid making a ruling -- as seen here!

We have seen quite a few recall arbitration rulings in recent times that took forever. But it seems that arbitrator James Earl is determined to make his cases last forever.

Just to name two cases from last year: 

Recall arbitration LAKE PLACE CONDOMINIUM ASSOCIATION, INC.  (171 days) [Legal proceedings in this case are still pending]

Pet arbitration: BONAVIDA CONDOMINIUM INC. (about 15 month) [declared moot]

To many observers it seems like certain employees of the DBPR are seriously trying to destroy the legislative intent of the statutes they are paid to uphold. 

The recall provisions were added to FS 718 (Condo Act) and FS 720 (HOA) in order to create an easy-to-use tool to remove board members unwilling to represent the will of a majority of owners. The statutes are well worded, easy to understand and pretty easy to follow -- until the DBPR arbitration section gets involved. It's a straight numbers game. Minimum 50% + 1 deeded owner sign a recall petition form and serve the board with this recall petition. All there is to decide if the recall is challenged: Are there a sufficient number of petitions signed by deeded owners?

How can this easy task last 5 (five) or more months to rule upon? In most cases recalls are not certified in order to buy time for the sitting board to finish pet-projects, most often the reason for the actual recall. Every day this board stays in power costs the owners more money! 

I already thought that the handling of the LAKE PLACE CONDOMINIUM ASSOCIATION, INC. recall case was as bad as it could get, until I saw the documents of the case of the  SUNSET VILLAS PHASE III CONDOMINIUM ASSOCIATION, INC. in Miami, FL,

The handling of this case is absolutely disgusting and a slap in the face to Florida 's condo owners. It's a clear proof of the incompetence of the DBPR arbitrator, who fell for the shenanigans of the service providers in this association: ALL FLORIDA MANAGEMENT and the law firm of FEIN & MELONI PA 

The recall petition was served on June 16, 2006 on Barbara Escobar, the association secretary. She signed and accepted the petition on behalf of the President, Marina Ojeda. After lengthy exchanges of documents and moves intended to drag out the process, a final hearing scheduled for December 5, 2006 was again rescheduled on the claim that association attorney Steven A. Fein was severely ill and no replacement was available.

Meanwhile lawsuits were filed against condo owners, intending to intimidate the condo owners participating in the recall. 

Instead of a rescheduled hearing of the recall case these condo owners were surprised by the board scheduling an unnoticed election for December 13, violating not only Florida Administrative Rules 61B-23.0021 and Florida Statute Section 718.112(d)3, but as well the association's bylaws. An election in December is a clear violation of the association's own bylaws. (Section 2B.: The annual meeting should take place on the second Tuesday of January in each year.) If there was any other rule they could have violated -- I guess they would have done so??

And on this occasion Steven Fein's partner, Edo Meloni, was able to attend the illegal (see above) election meeting on December 13. 

And despite very convincing arguments by Rosemarie Bacallao, the attorney representing the Owners for Recall, arbitrator James Earl dismissed the recall arbitration. In his ruling he stated (quote): "It is well established by arbitration case law that when an election occurs during the pendency of a recall, the recall dispute is rendered moot."

If there had been a real election, that should have been the case. But in this case it doesn't take Einstein to see through the shenanigans of ALL FLORIDA MANAGEMENT and the law firm of FEIN & MELONI PA.  He should have realized that this wasn't an election; this was a maneuver of desperation, because they were running out of options in the recall arbitration case! 

In my opinion James Earl's ruling is aiding and abetting a fraudulent election! The arbitrator was advised timely of the association calling an illegal election meeting, but did nothing to prevent the fraudulent actions aimed at declaring moot a perfectly legal recall. 

Not only should an arbitrator, who is unable to make a ruling on a simple recall in a timely manner, be removed from a position that is influencing the welfare of so many families, but the "professionals” involved in these actions should be investigated and should lose their respective licenses! This is absolutely going too far and if actions like this are allowed to take place in Florida , we are not better off than citizens in any Third World Country we normally feel sorry about!

Florida 's condo owners can only hope that the new DBPR Secretary Holly Benson will finally clean out the Department and remove all the useless employees that are getting paid from condo owners’ money, but clearly fail to do their job as intended: REGULATE CONDO ASSOCIATIONS. Many OPPAGA reports speak a clear language!

It is about time that the DYSFUNCTIONAL DBPR is again made FUNCTIONAL and works to improve the life of our Florida citizens living in condominiums!