STATE OF FLORIDA
DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION
DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES AND MOBILE HOMES
IN RE: PETITION FOR ARBITRATION
DEBBIE WHILDEN, VALENCIA CHICOT,
PETER GRAF, HAROLD WOODSIDE, and
OSVALDO PASCAL,
Petitioners,
v.
Case No. 2009-03-8821
PARKWAY GROVE CONDOMINIUM
ASSOCIATION, INC.,
Respondent.
______________________________________/
SUMMARY FINAL ORDER
Procedural Background
On July 7, 2009, Petitioners, Debbie Whilden, Valencia Chicot, Peter Graf,
Harold Woodside, and Osvaldo Pascal filed a petition for arbitration naming Parkway
Grove Condominium Association, Inc., as Respondent.
Petitioners alleged that an
annual meeting was held on June 6, 2009, at which time Petitioners were elected to the
board. On July 27, 2009, an Order Requiring Answer was entered.
On August 6, 2009, Petitioner filed a Motion for Expedited Determination, which
sought the entry of a Summary Final Order approving the election of Petitioners to the
Board of Directors and requiring Debra Cause, Jo’Zeen Edmonson, Wedelie Etieen,
Frantz Jean and Ransford Robinson to “turn over all Association Keys, documents and
any other records within their possession to Petitioners… .” On August 10, 2009, an
1
Order was entered denying Petitioner’s motion. On August 12, 2009, Respondent filed
a Response to Motion for Expedited Determination.
On August 20, 2009, Respondent filed an Answer, denying that the meeting held
on June 6, 2009, was authorized by the board and that property manager, Sheldon
Goldberg of Phoenix Property Management Services, without board approval noticed,
conducted, and held an election for the board. On August 24, 2009, an Order Requiring
Respondent’s Representative to File a Qualified Representative Application form was
entered. On September 14, 2009, an Order Setting a Case Management Conference
was entered.
On September 23, 2009, Petitioners filed a Reply to Respondent’s
Answer to Petition for Arbitration.
On September 24, 2009, a telephonic case
management conference was held at which time Respondent’s Representative failed to
appear. On September 25, 2009, an Order after Case Management, was entered which
required dates for a telephonic case management conference. On October 6, 2009,
Respondent’s unapproved Representative filed a letter indicating her dates of
availability for the telephonic case management conference.
On October 8, 2009, the arbitrator sent out a Notice of a Case Management
Conference. On October 9, 2009, Respondent’s Representative, filed a Qualified
Representative Application.
On October 16, 2009, an Order Approving a Qualified
Representative for Respondent was entered and a Second Notice of Case Management
Conference was sent out.
On October 26, 2009, a telephonic case management
conference was held. Petitioners were required to file copies of the ballots and meeting
of the June 6, 2009 meeting. On October 28, 2009, Petitioners filed a Notice of Filing
2
consisting of ballots cast at the June 6, 2009 meeting. This order is entered after review
of the entire file.
Statement of Issue
Whether the “election” held on June 6, 2009, was a valid election.
Findings of Fact
1.
Petitioners are unit owners and members of the condominium association.
2.
Respondent, Parkway Grove Condominium Association, Inc., is the legal
entity responsible for the maintenance and operation of the Parkway Grove
Condominium, a condominium subject to chapter 718, Florida Statutes.
3.
Phoenix Management Services (Phoenix) was the property management
company for the Respondent.
4.
Sheldon Goldberg was the community association manager with Phoenix.
5.
Section 5.023 of the Declaration of Condominium, provides as follows:
All annual meetings shall be held at such time as shall be
determined by the board.
6.
In early 2009, the Board of Directors, Jo’Zeen Edmonson, Frantz Jean,
Ransford Robinson, Wedelie Etidnne and Debra Cause met with Sheldon Goldberg of
Phoenix Management and, among other issues, tentatively set the annual meeting for
June 6, 2009.
7.
On April 6, 2009, without approval of the board, a “first notice of Annual
Meeting/Election” was mailed to the condominium’s membership by Phoenix.
notice stated that it was “BY ORDER OF THE BOARD OF DIRECTORS.”
3
The
8.
On May 15, 2009, the board sent by certified mail a letter to Phoenix
informing it that they would be terminating the board’s contract with Phoenix as of June
30, 2009.
9.
On May 22, 2009, without approval from the board, Phoenix mailed to the
membership the “second notice of Annual Meeting/Election” with ballot, which indicated
the annual board meeting would be held on June 6, 2009 at 10:00 a.m. The notice
stated that it was “BY ORDER OF THE BOARD OF DIRECTORS.”
10.
On May 26, 2009, without approval from the board, the Property
Management Company mailed to the membership a “revised” Ballot and cover letter.
The notice stated that it was “By ORDER OF THE BOARD OF DIRECTORS.”
11.
On May 27, 2009, the board mailed out notices to the membership
informing them the June 6, 2009 election was cancelled and would be re-scheduled.
12.
On June 5, 2009, without approval from the board, Phoenix distributed a
notice to the membership stating the annual meeting had not been postponed.
13.
On June 6, 2009, without approval from the board, Mr. Goldberg and a
group of unit owners met and held an “Annual Meeting and Organizational Meeting” at
which the membership purported to elect Debbie Whilden, Valencia Chicot, Peter Graf,
Harold Woodside, and Osvaldo Pascal to the Board of Directors.
14.
Mr. Goldberg was present at the June 6, 2009 meeting of the unit owners.
15.
On June 10, 2009, without approval from the board, Phoenix sent a notice
to the unit owners stating a annual meeting of the board had been held on June 6,
2009, a new board of directors had been elected, and the termination of Phoenix had
been rescinded.
The letter was signed by Sheldon Goldberg, Property Manager,
4
Phoenix Management Services, Inc. and that it was for the Board of Directors, Parkway
Grove Condominium Association, Inc.
16.
On June 10, 2009, the board sent an Inter-Office Memorandum to all unit
owners, stating, in pertinent part, as follows:
Due to the lack of validity of the candidates and the
discrepancies the June 6, 2009 elections were cancelled.
(Notices mailed to all unit owners) [sic]
Conclusions of Law
Parkway Grove Condominium is a condominium within the meaning of chapter
718, Florida Statutes.
The undersigned has jurisdiction over the parties and of the
subject matter of this dispute, pursuant to section 718.1255, Florida Statutes.
Section 5.023 of the Declaration of Condominium, provides as follows:
All annual meetings shall be held at such time as shall be
determined by the board.
In the case at hand, Respondent’s property manger, Mr. Goldberg, sent the first notice
of election to the unit owners without approval from the board and subsequently, after
being informed of the board’s upcoming termination of Phoenix Management Services’
contract, continued to issue notices of an election and conducted an election, all without
the board’s approval. May 27, 2009, the board sent a letter to the unit owners informing
them the June 6, 2009 election had been cancelled. On June 5, 2009, a unit owner
sent out a notice that the meeting had not been cancelled.
Petitioner’s Reply to
Respondents’ Answer to Petition for Arbitration describes Mr. Goldberg’s actions, in
pertinent part, as follows:
Mr. Goldberg was the Property Manager hired to assist the
Board in operating the Condominium Association. Based
upon information obtained from the Ombudsman’s office that
5
there was no legal or other reason to cancel the meeting,
except for the fact the Board knew they would be removed,
and since no Annual Meeting had been held by this board in
almost two years, he proceeded to hold the Annual Meeting
as scheduled on June 6, 2009.
Section 5.023 of the Declaration of Condominium is clear and unambiguous, “All
annual meetings shall be held at such times as determined by the board.” The board is
the responsible entity for the association and the property manger is an agent of the
board, as such, the property manager does not have the authority to overrule the board
and conduct an election over the board’s objection. Accordingly, the June 6, 2009 unit
owners meeting to elect board members did not comply with the requirements of
Section 5.023 of the Declaration of Condominium. 1
Therefore, based upon the foregoing, it is ORDERED:
The June 6, 2009 election of the Petitioners is null and void.
DONE AND ORDERED this 13th day of November, 2009, at Tallahassee, Leon
County, Florida.
_________________________________
Tonya S. Chavis, Arbitrator
Department of Business and
Professional Regulation
Arbitration Section
1940 North Monroe Street
Tallahassee, Florida 32399-1029
Telephone: 850.414.6867
FAX: 850.487.0870
1
If a member or members believe the board has improperly failed to hold an election, the proper remedy
is to take legal action against the association.
6
Trial de novo and Attorney’s Fees
This decision shall be binding on the parties unless a complaint for trial de novo
is filed in accordance with section 718.1255, Florida Statutes. As provided by section
718.1255, Florida Statutes., the prevailing party in this proceeding is entitled to have the
other party pay reasonable costs and attorney’s fees. Any such request must be filed in
accordance with Rule 61B-45.048, F.A.C.
Certificate of Service
I hereby certify that a true and correct copy of the foregoing final order on default
has been sent by U.S. Mail to the following persons on this_____ day of November,
2009:
Rachel E. Frydman, Esquire
The Frydman Law Group, PLLC
3389 Sheridan Street
#527
Hollywood, Florida 33021
Debra Cause
Qualified Representative
16220 NW 2nd Avenue
#310
Hollywood, Florida 33021
__________________________
Tonya S. Chavis, Arbitrator
7