pro·cras·ti·nate - to put off intentionally the doing of something that should be done

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

Published December 27, 2007


If you are unlucky enough to "draw" James Earl as arbitrator, you can only be sure about two things: His rulings are absolutely unpredictable and it will be forever before you get to see a ruling at all. 


It seems that Earl hopes that the whole problem will go away before he really has to make a ruling. His reputation of being unwilling to make a timely ruling allows parties to consider filing a response even if the case is nearly hopeless. You can rely on Earl to draw the decision out until the next election, if the case is in regard to election or recall.


Rule No. 1: The association is always right!

Rule No. 2: If the association is not right, Rule No. 1 applies!


Sometimes it actually looks like he thinks he missed his calling. He hasn't realized yet that he is just an arbitrator in the DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES, but not a Florida Supreme Court judge. 


Earl loves to call Case Management Conferences, which normally don't achieve anything but prolong the process and increase the cost for the owners. It seems he hasn't figured out yet that recall is a plain numbers game that has to follow certain simple rules!


The list of weird cases Earl was involved in ranges from the pet arbitration case Bonavida Condominium vs. Joyce and Rueben Starr that lasted 15 (fifteen) months to the infamous recall arbitration case LAKE PLACE CONDOMINIUM ASSOCIATION, INC. vs. Unit Owners Voting for Recall that lasted 171 days

What happened during the 15 months in the pet arbitration case?  The cat at the center of the dispute celebrated its 10th anniversary of living in the Starrs’ condo unit while the case lasted.  The case was declared moot after all parties were frustrated enough -- and had spent enough money.

What happened in the arbitration case that lasted 171 days?  It is notable that in this case the board failed to hold a recall meeting, which should have -- according to Florida statutes -- certified the recall through default.  But not with James Earl as arbitrator, who decided that the failure not to hold a meeting is not sufficient reason to trigger an automatic certification.  Actually, it took him exactly 171 days to certify the recall by final ruling.  Please note that the number of recall petitions served was 27.  How long can it take to count to 27?  In this case, the unit owners prevailed, but only because the recall was flawless, even after 171 days.

But don't forget, in this case it was the sitting board that failed to hold the required recall meeting. 

In the PLAYA DEL MAR ASSOCIATION case we saw three board directors playing chicken in order to avoid holding a timely recall meeting as required by statutes. They sent a lawyer, Randall Roger, who played JUDGE, JURY AND EXECUTIONER! Don't miss listening to the RANDALL ROGER SHOW! And in this case James Earl decided that not holding a timely recall meeting triggers the automatic removal of the board member. Read his ridiculous ORDER FOLLOWING EMERGENCY HEARING


Without reason Earl changed the parties to the filed petition and makes the Playa del Mar Association the respondent, burdening the association members with the cost of this recall arbitration. The correct respondent -- and that's how the recall arbitration was filed -- are the Unit Owners Voting for Recall with Betty Cholst as the owners' representative. They collected and they served the recall petition -- and they are responsible for defending this recall. Definitely not the owners of Playa del Mar, Inc.  If the association should be party to this recall arbitration it should be on the side of board member Mark Stern and the other two board members who voted not to certify the recall because of the many faulty recall petitions.

But the highlight of Earl's verbal findings was the statement that the removal of board director Mark Stern would not cause any permanent damage, since he would be reinstated if the arbitration ruling would be in his favor.  Personally, I think Earl missed the whole point, played in the hands of the guys who abused the system -- and most likely laughed at in the end about having found such a stupid arbitrator, who fell for their tricks.  If I were in Mark Stern’s place, I would tell James Earl that the petition stays filed as is -- with parties as named.  If Earl doesn't like it he can issue a final ruling in favor of certifying the recall, state his reasons, and quote supporting case law for his wild decision.  I doubt he can find any. The only case similar to this was his own ruling in the Lake Place case, where he decided that the failure to hold a recall meeting is not an automatic certification of the recall. That would open the way for real court proceedings, the most likely best scenario in this case because Earl doesn't even seem to grasp the facts of this planned recall ambush.  It's really a shame that Florida's condo owners have to put up with so much incompetence!  

It's high time to make a public record request for all final rulings made by James Earl in 2007.  I wonder what weird cases that will reveal? 

The actual RECALL provisions in the Florida statutes -- FS 718.112(2)(j) + FS 720.303(10) -- are relatively simple and it was the legislative intent, as it was explained to the members of the HOA Task Force in 2003/2004, to give association members a simple tool to remove board members without getting into costly legal procedures. That was the intent, until arbitrators like James Earl got their hands on the great idea and started to add their own legal interpretations to it, actually killing the legislative intent. 

We are seeing all the time that DBPR employees start to interpret the statutes enacted by Florida's legislature -- but they make a mess of it. When will they finally understand that they are plain employees of a government agency supposed to enforce the statutes as written -- not as interpreted by them?

In case they want to re-write the statutes, they should run for office and get elected.  But considering the way they are doing their jobs, I seriously doubt that any Florida citizen in his/her right mind would vote for them?

This is just another reason why