DBPR RECALL ARBITRATION À LA COMEDY CENTRAL

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

Published June 3, 2010

We are always looking for comedies and jokes. Reality shows often provide more laughter than comedy, but nothing beats good recall arbitration with the comedians played by the DBPR Arbitration Section. Only these folks seem to take themselves seriously!

Just read some of the documents of the recall arbitration case Stephen Smith v. Water Bridge 2 Association, Inc. [Case No. 2009-03-4877]. Believe me, Comedy Central writers couldn't have written a better script.

Reading the Timeline Summary will make you smile, but when you read the actual documents, you will burst into laughter -- if you are not one of the owners who have to pay for the show in this community.

TIMELINE SUMMARY (IMPORTANT DATES)

June 29, 2009: According to the "official" minutes of the board meeting (quote): "Stephen Smith Director, was recalled from the board, with 27 votes. The paperwork was given to him, at which time he wanted to count and show rebuff information. As of today 6/29/09 Stephen Smith is not a board member." The videotape of that meeting shows a very different picture than what's described in the minutes!

July 31, 2009: Order Requiring Answer To Petition For Arbitration entered by David R. Slaton, DBPR Arbitrator (quote): "Although the type of petition filed in this case commonly is referred to as a 'reverse recall,' the petition is filed pursuant to section 718.1225(1)(b), Florida Statutes, and is not a recall petition filed pursuant to section 718.112(2)(j), Florida Statutes. Therefore, the prevailing party is entitled to an award of attorney's fees and costs to be paid by the non-prevailing party."

August 18, 2009: David R. Slaton, DBPR Arbitrator, entered ORDER REQUIRING SERVICE BY PETITIONER (quote): "In cases where service of the petition by certified mail cannot be accomplished; the petitioner is required to serve the petition, aIong with a copy of the Order Requiring Answer and the rules, on the respondent in the manner provided by law for service of subpoenas issued by the circuit courts of Florida."

January 4, 2010: Association Vice President Andre Echevarria (as well listed as registered agent of the association at that time) was served at his home address with arbitration documents by process server, Jock Coleman, at 10:00 p.m. Testimony according to FINAL ORDER ON DEFAULT -- Paragraph 14 (quote): "14. Mr. Echavarria testified that on January 4, 2.010 he was at home with his roommate, Rolando Rodriguez. Mr. Rodriguez is 61 years old. There was a knock at the door and Mr. Rodriguez opened the door. The process server stood outside and announced that he was serving the Association by way of serving, Mr. Echevarria. The process server then handed Mr. Rodriguez an envelope containing documents. Mr. Rodriguez then immediately gave Mr. Echevarria the envelope containing documents. Mr. Echevarria admitted that he then threw the envelope off of the third floor balcony, and it landed on the ground below. Mr. Echevarria claimed that he did not look inside the envelope."

February 3, 2010: Default Threat entered by David R. Slaton, DBPR Arbitrator (quote): "For respondent's failure to comply with the order requiring answer and the arbitration rules of procedure, an order of default is hereby entered against the respondent. If the respondent does not file an answer accompanied by a sufficient explanation for why an answer was not timely filed within·10 days from the date of this order, a final order will be entered granting the relief requested by the petitioner."

March 1, 2010: Petitioner files "Opposition To Respondent's Motion To Set Aside Default" with attached affidavits of process server and a witness (quote): "The Respondents attorney replied within the Respondent's Motion to Set Aside Default and stated its introduction and paragraph number 1 that 'it was inadvertently lost prior to physical receipt'. This is troubling, please pardon the expression but that is a bold faced lie."

March 1, 2010: Affidavit by Process Server Jock Coleman (quote): "Mr. Echevarria walked along the 3rd floor balcony, yelling and cursing and then threw away the documents by tossing them off the 3rd floor. As I drove away from the building I saw the documents lying on the grass." (Mr. Echevarria is the acting president who had just been served with the documents.)

March 1, 2010: Affidavit by Elaine Schwartz (Witness) (quote): "After the process server came back to the car, I witnessed Echeverria walk down the 3rd floor catwalk toward us. He was yelling and threw the papers he was served up into the air from the third floor..... From what I could tell Mr. Echevarria was angry with Mr. Smith and did not care about the papers which were served and simply through them away."

March 10, 2010: Claire Cubbin, Esq. files: RESPONDENT'S MOTION TO SET ASIDE DEFAULT (quote): "1. Pursuant to Florida Rules of Civil Procedure, there is an instance of mistake, inadvertence, surprise, or excusable neglect that requires that the default be vacated. After the Petition was served on the resident agent of Water Bridge 2 Association, Inc. it was inadvertently lost prior to physical receipt by the Association. As a result the Association was unaware of the contents of said Petition and therefore, unable to properly answer same." (I guess that was meant as The Joke Of The Month? Does throwing documents -- on purpose -- from the third floor balcony onto the lawn below qualify as "inadvertently lost”?)

March 23, 2010: Claire Cubbin, Esq. files: "Motion to Strike and Dismiss 'Responses (sic] in Opposition to Delay of Hearing by the Respondent" (quote): "2. As a result, said motion is filled with irrelevant, immaterial and impertinent matters that have no bearing on the issues at hand and is filed for the sole purpose to attempt to embarrass the Respondent's counsel and/or to attempt to generate pity in and/or curry favor with the arbitrator."

April 27, 2010: Final Order On Default written by David R. Slaton, DBPR Arbitrator (quote): "Therefore it is ORDERED: As of the date of the mailing of this order, Petitioner Stephen Smith is immediately seated on the board of directors of Water Bridge 2 Association, Inc. to serve the remainder of his term. As of the date of the mailing of this order; any replacement director for Petitioner Stephen Smith is REMOVED as director."

June 3, 2010: As of today the board of the Water Bridge 2 Association, Inc. has failed to take any action to abide by the ruling of DBPR Arbitrator David R. Slaton.

339 DAYS AFTER THE SO-CALLED RECALL MEETING TOOK PLACE!

I guess the board members and their attorney know that the DBPR is only a paper tiger and they don't care about the DBPR ruling. On the other hand, I wonder why such board members, who knowingly and willfully violate Florida statutes are still allowed to serve on association boards. Maybe I shouldn't wonder since the Florida legislature still allows convicted murderers to serve on homeowners' association boards.

I'm not sure if these DBPR arbitrators want to be taken seriously. They turned a well-functioning tool into a useless legal procedure that does absolutely nothing for anybody but create confusion.

The phrase "Although the type of petition filed in this case commonly is referred to as a ‘reverse recall’…” is The Joke Of The Century. The only ones "commonly" referring to a "reverse recall" are the few DBPR arbitrators, and they can barely be considered "commonly." Neither the Florida statutes nor the Florida Administrative Code refer to such a "reverse recall." It's an invention of Chief Arbitrator James Earl -- and the timeline of this recall arbitration shows clearly that his "invention" is about as useless as Bernie Madoff’s money tips.

What James Earl dubbed as a "reverse recall" is a simple recall, according to Florida statutes -- nothing extraordinary. The only difference in a "reverse recall": Only a minority of the board is recalled. Otherwise, the same petition forms are being used, the same procedures are used to determine if a recall had to be certified, and the same arbitration procedures have to be followed. The only difference: The board minority being recalled faces the danger of being liable for legal fees if the board majority, already using association funds to defend their recall of unwanted board members, prevails in arbitration.

When there is a ruling in a recall of the majority of board members, no "prevailing party" is determined. However, a recall arbitration of a minority of board members creates a "prevailing party" -- courtesy of James Earl, not the Florida statutes or the Florida legislature.

This case shows again how useless the DBPR really is!

OUR TAX DOLLARS AT WORK!