AN AFFIDAVIT MAKES WRONG RIGHT!

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

Published January 30, 2008

Until about last week everybody who had read FS 718.112(2)(d)(3) and FAC 61B-23.0021(7) was under the impression that format and contents of the so called information sheet that has to be included in the second election notice is clearly defined by Florida Administrative Code (quote): "...information sheet which may describe the candidate's background, education, and qualifications as well as other factors.. ".

But that was only the interpretation of people who read these rules using common sense. Wait until attorneys and the DIVISION'S Fort Lauderdale Bureau of Compliance get their hands on these rules and interpret the "REAL MEANING" of these rules.

Never forget the DIVISION'S RULE OF THUMB:

Rule No. 1: The association board is always right!

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

Rule No. 3: The owner is only right if it can't be avoided and the DIVISION is proven wrong!

In a recent second election notice of THE ASSOCIATION FOR THE PLAZA OF BAL HARBOUR CONDOMINIUM, INC. this flyer was included:

Dear Friends,

As we approach the Plaza annual meeting and the election of the board of directors, we believe that this is the most important election that we've had in years.

We have all suffered through unpleasant conditions, living through the worst of the all too long renovations. We've put up with dirt, noise, delays, and cost overruns. Trades people were in short supply: prices were jumping at every turn, and permit approvals a nightmare,

The good news is, as those of you who are In the building know, things have improved dramatically. We are prepared to continue working hard and long to see the renovations through.

We ask you to help yourselves by again voting for our "team." Together we'll get the job done.

Harry, Ralph, Mark, Larry, Sylvia & Bert

To me -- and many others -- it's clearly a flyer asking the owners to re-elect the sitting board. You even have to decipher the signature in order to find out which "candidate" created this flyer. The required content -- background, education, and qualifications -- is clearly missing and you are hard pressed to consider this an "information" sheet. The only information contained is: "Vote for the sitting board -- they did a good job!" That may be their opinion, but I guess not everybody thinks so because one owner filed a complaint with the DIVISION, and on first look they stopped the election because of the violation of the Condo Act and FAC 61B-23.0021(7).

This flyer was clearly not a candidate sheet in the meaning of the rules, it didn't even promote the candidacy of a specific candidate but clearly endorses a group. I can't find any information about the candidate's background, education, and qualifications -- if you can even find out who the candidate really is! You have to take a close look at the signature, and the signee even claims that he didn't sign the flyer. Question: Who created something that's supposed to look like a signature?

All was fine, until association attorney Robert Blanch from the law firm Siegfried, Rivera, Lerner, De La Torre & Sobel got his hands on the interpretation and had the signee of the flyer, Mark Litvak, who even admits that he didn't sign the flyer (signed in his absence and on his behalf), state in an affidavit that this document was not supposed to be an endorsement of the board by the association of the candidates. Actually, the people listed on the flyer are all but one the sitting board members, who -- believe it or not -- don't endorse themselves, according to the affidavit! You really have to read the affidavit yourself in order to believe that somebody was actually willing to sign such a document full of contradicting statements.

But this affidavit, together with a letter from attorney Robert Blanch, gave Investigation Specialist Henry J. Carroll from the Ft. Lauderdale Bureau of Compliance enough excuses to close the case. In a letter dated January 2, 2008, Carroll states (quote): "No violation of the Condominium Act has been demonstrated and the Division is unable to consider this matter further."

I have always wondered who makes these kind of decisions in the DIVISION. They sure don't make any sense whatsoever and just show that the DIVISION is more inclined to find excuses for boards and community managers, who commit violations, than to enforce the existing statutes and rules. A big part of the problems we see in our associations can be traced back to the obvious unwillingness of the DIVISION to enforce rules and statutes!

FS 718.112(2)(d)(3) Upon request of a candidate, the association shall include an information sheet, no larger than 8¹/₂ inches by 11 inches, which must be furnished by the candidate not less than 35 days before the election, to be included with the mailing, delivery, or transmission of the ballot, with the costs of mailing, delivery, or electronic transmission and copying to be borne by the association. The association is not liable for the contents of the information sheets prepared by the candidates.

FAC 61B-23.0021(7) Upon the timely request of a candidate as set forth in this paragraph, the association shall include, with the second notice of election described in subsection (8) below, a copy of an information sheet which may describe the candidate's background, education, and qualifications as well as other factors deemed relevant by the candidate. The information contained therein shall not exceed one side of the sheet which shall be no larger than 8 1/2 inches by 11 inches. Any candidate desiring the association to mail or personally deliver copies of an information sheet to the eligible voters must furnish the information sheet to the association not less than 35 days before the election. If two or more candidates consent in writing, the association may consolidate into a single side of a page the candidate information sheets submitted by those candidates. The failure of an association to mail, transmit or personally deliver a copy of a timely delivered information sheet of each eligible candidate to the eligible voters shall require the association to mail, transmit, or deliver an amended second notice, which shall explain the need for the amended notice and include the information within the time required by this rule. If an amended second notice cannot be timely mailed, transmitted or delivered, the association must re-notice and reschedule the election. If the election has already been conducted, the association shall conduct a new election. No association shall edit, alter, or otherwise modify the content of the information sheet. The original copy provided by the candidate shall become part of the official records of the association.

WE MEAN IT: LET'S SUE THE DIVISION