On November 30, 2001, Leonardo Maqueira,
Eugenio A. Angulo, Juanita Cadavieco, Miguel Alonso and
Frank Triana (petitioners) filed an amended petition naming
International Park Condominium II Association, Inc. as
respondent. The petitioners allege that the election held on
October 17, 2001, was invalid because the association failed
to provide notice of the election to all unit owners of
record not less than 60 days before the scheduled election
as is required by section 718.112(2)(d) 3., Florida
Statutes. The petitioners state that if proper notice had
been given, they would have nominated themselves as
candidates but were unable to do so due to the lack of
notice. As relief, the petitioners request an order
requiring the respondent to conduct a new election in
accordance with section 718.112, Florida Statutes.
On February 20, 2002, a partial summary
final order was issued in this case and is hereby
incorporated by reference. That order found that the
association did not mail or deliver notice of the October
17, 2001 election not less than 60 days before the election
to unit owners Francisco Triana a/k/a Frank Triana and
Eugenio A. Angulo, and possibly to unit owner Juanita
Cadavieco, and the affirmative defense of laches was
rejected.
On April 4, 2002, a final evidentiary
hearing was held in this matter to address the one remaining
issue, which is whether the association's failure to mail
the first notice of the October 17, 2001 election to these
unit owners was due to inadvertence. Eric M. Glazer,
Esquire, represented the petitioners. Edoardo Meloni,
Esquire, represented the respondent. The parties appeared
from the party room of the International Park Condominium
II. The arbitrator appeared from Tallahassee, Florida, via
telephone. The parties presented the testimony of witnesses
and tendered documents into evidence. This order is entered
upon consideration of the complete record in this matter.
Prior to the final hearing, the
petitioners established that the association did not mail
notice of the election to some of the unit owners not less
than 60 days before the election. Although this failure
constituted a violation of section 718.112(2)(d) 3., Florida
Statutes, a final hearing was necessary to determine whether
this failure was due to an oversight that resulted in a few
owners not receiving notice, as such an oversight might not
require a new election. On the
other hand, if the association did not provide the unit
owners with notice to prevent them from seeking candidacy, a
new election would be necessary
At the final hearing, unit owners
Francisco Triana, Eugenio A. Angulo, Leonardo Maqueira and
Juanita Cadavieco each testified that he/she had
participated in an effort to recall the board members and
that he/she still desires to be on the board and that three
of the petitioners did not receive the first notice of
election. Isabel Escalate, who is a former member of the
board, testified that she did not receive notice of the
election and that she does not get along with Pablo Ors, the
president of the association.
*2 Pablo Ors testified that he was not
involved in sending out notice of the election and that he
did not tell the management company not to send notice to
certain people. Barbara Blanco, president of the property
management company, testified that her company took over
from the previous management company in January 2001, and
that the unit owner roster was generated from the records
received from the prior company. Ms. Blanco testified that
the management company prepares a roster of unit owners to
whom notice has been sent to protect the association. Ada
Valdivia and Noharys Hernandez, the two employees of the
management company who actually prepared the envelopes, each
testified that she had no way of knowing that some of the
zip codes and names were incorrect.
The findings of fact are as follows. The
petitioners were not candidates for election. The management
company prepared a list containing the names to whom the
notice was mailed. The association mailed Francisco Triana's
copy of the 60-day notice of election to an incorrect
address. The association mailed Oscar Ramirez, the co-owner
of Mr. Triana's unit, copy of the 60-day notice to an
incorrect address. The association did not mail a copy of
the 60-day notice of election to Juanita Cadavieco; a copy
was mailed to Juana Cada a name that Ms. Cadavieco does not
use. The respondent did not mail a copy of the 60-day notice
to Eugenio A. Angulo; a copy was mailed to Eugenio A. Ang. a
name that Mr. Angulo does not use. Isabel Escalate's name
was not on the list of individuals to whom first notice had
been sent. The address of the co-owner of Ms. Escalate's
unit, who was on the list, is incorrect. The association has
305 units. The association mailed the first notice of
election to 305 names and addresses.
Section 718.112 (2)(d) 3., Florida
Statutes, provides in part as follows:
The members of the board shall be elected
by written ballot or voting machine .... Not less than 60
days before a scheduled election, the association shall mail
or deliver ... to each unit owner entitled to a vote, a
first notice of the date of the election. Any unit owner or
other eligible person desiring to be a candidate for the
board must give written notice to the association not less
than 40 days before a scheduled election. Together with the
written notice and agenda as set forth in subparagraph 2.,
the association shall mail or deliver a second notice of the
election to all unit owners entitled to vote therein,
together with a ballot which shall list all candidates. ...
(Emphasis added).
The association did not mail notice to the
first election to at least six unit owners, Mr. Triana, Mr.
Angulo, Ms. Cadievo, Mr. Ramirez, Ms. Escalate and Mr.
Escalate.
In defense for its failure to mail correct
notice to Mr. Triana, the association argues that it mailed
notice to Mr. Ramirez the co-owner of Mr. Triana's unit. The
testimony showed that the association did not provide notice
to Mr. Ramirez; nevertheless, had this been true, it would
not have been a valid defense because section 718.112 (2)(d)
3., Florida Statutes, requires the association to mail
notice to each unit owner not to one owner of each unit. The
association failed to explain why it sent mail to incorrect
zip codes, where all of the unit owners should have had the
same zip code. The association
failed to assert a credible reason as to why the individuals
who did not receive notice happen to be four individuals
with whom the association and/or the management company have
contentious relationships. The association also failed to
explain why it used a nickname and shortened name that the
respective individuals have never used. Simply put, the
association's explanations were not convincing. The most
logical conclusion based upon the evidence before the
arbitrator is that the association intentionally failed to
send the first notice of election (60-day notice) to several
unit owners; thereby, depriving these individuals of the
opportunity to seek election as a board member.
*3 The association's avers that the board
would not have engaged in such measures to avoid providing
notice of the election to these individuals because other
unit owners would discuss the election with the petitioners.
Any unit owner desiring to be a candidate for the board must
give written notice to the association not less than 40 days
before the scheduled election. Section 718.112(2)(d) 3.,
Florida Statutes. Although it is true that other unit owners
would probably discuss the election, the chance existed that
the unit owners who did not receive the first notice of
election would not become aware of the election prior to the
40-day deadline for providing notice of intent to run for
office. Therefore, this is not a plausible explanation as to
why the omissions could not have been intentional.
The relief requested in the present
dispute, a new election, is an extraordinary measure. Yet,
in light of the fact that the board intentionally failed
to provide notice to at least six unit owners not less than
60 days prior to the election and has provided no credible
explanation for doing so, thereby depriving those unit
owners of the opportunity to run for office, the October 17,
2001 election is found to be invalid. A new election is the
only remedy that suffices.
Based on the foregoing, it is ORDERED:
The association is required to conduct a
new election to be held in accordance with the requirements
of section 718.112, Florida Statutes, and rule 61B-23.0021,
Florida Administrative Code. The association shall mail or
deliver the first notice of election to all unit owners,
using each unit owner's correct name and correct address, by
not later than May 29, 2002.
DONE AND ORDERED this 10th day of
May 2002, at Tallahassee, Leon County, Florida.
Cassandra Pasley, Arbitrator
Arbitration Section
Department of Business and Professional
Regulation
1940 North Monroe Street
Tallahassee, Florida 32399-1029
