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

Published July 20, 2009

Under the leadership of Chief Arbitrator James Earl the arbitration section of the Division of Florida Condominiums, Timeshares, and Mobile Homes has destroyed within a short period of time the recall provisions of the Florida Statutes 718 and 720. There is little left of the legislative intent that once created these recall provisions. Mandatory arbitration was created in order to stop recall shenanigans and frivolous recall claims. Considering the rulings under Chief Arbitrator James Earl, the good intentions in the law are plainly destroyed. The recall system was once one of the few well functioning legal remedies in our association laws. 

    
Especially chief arbitrator James Earl seems hell-bent to prove that he makes the rules -- not the Florida legislature. He is clearly overstepping his authority when he "invents" new recall versions -- like the REVERSED RECALL. Under Earl's leadership we have seen rulings that make people wonder if the arbitrators intentionally try to make these provisions useless.

During the meeting of the DBPR HOA TASK FORCE the members were given the impression that adding the condo recall provisions to FS 720 would avoid the costly lawsuits we saw before -- like the infamous case of Southchase 45.

The experts explained that the recall by written petition is a simple but effective way to remove unwanted board members in a simple manner, foolproof if done according to statutes and guidelines. Mandatory arbitration creates a safeguard that will sort out any recall attempts that don't have the necessary number of valid petitions. And there is no risk of legal fees, since both sides pay their own costs. The Task force members considered this a fair system and adopted the language of FS 718 to the HOA Act -- FS 720. Governor Jeb Bush signed the bill carrying this language into law and it ended up in the statutes as FS 720.303(10). On a side note: The language never changed since 2004.

And it worked fine until arbitrator James Earl got his hands on recall arbitrations. The first ones who paid the price for his determination to write his own rules and ignore the wording of the statutes were the owners of the Lake Place I Condos in Tampa. Not only did it take Earl 171 days to certify a perfectly good recall, the arbitration section as well leaked the ruling before publication and the recalled board quickly signed a contract with a management company -- against the will of the majority of owners. It cost the new board a lot of money to buy out the unwanted contract. 

That was just the start of a long series of arbitration rulings where James Earl ignored the wording of the statutes and inserted his own interpretation of the law. It's obvious that he doesn't care about the language the legislators adopted -- he obviously thinks legislators don't know what they are doing and need the "help" of a lowly arbitrator to "get it right!"

After Earl took over as the Chief Arbitrator, the outcome of recall arbitrations was more a crap-shoot than something predictable based on case law.

He quickly invented "REVERSED RECALLS" and changed the former case law of not awarding legal fees to the prevailing party in a recall arbitration. One of the prime examples of his incompetence was the recall in the PLAYA DEL MAR ASSOCIATION, where he fell for the shenanigans of a slick lawyer.

And from that moment on, it was open season for minority board members who didn't follow the party line. In the Spanish Isles case the board majority recalled a board member, claiming to have the necessary number of petitions. The president just waved a stack of papers at the meeting. The recalled board member was not allowed to inspect the petitions. Later on, he was even accused of having stolen the petitions. See this RESPONSE TO ORDER! And without any proof that the needed number of signed petitions ever existed, arbitrator Bruce Campbell certified the recall!

In a disputed recall in Orlando the board and the attorney refused to allow the "recalled" board member to inspect the recall petitions. It took a Case Management Conference to force the attorney to let the recalled board member inspect the petitions. In his final ruling not only did arbitrator James Earl come up with some very innovative interpretations to declare 63 (needed) petitions valid, he as well awarded the association legal fees in the amount of $2,934.  But I guess Earl was too embarrassed to sign the Final Order On Attorney's Fees And Cost himself. Unfamiliar with the case, just-hired new arbitrator Shirley Whitsitt ignored in her final ruling the fact that the recalled owner pointed out in her motion that part of the attorney's billing was cost from a different litigation. But gee, who cares if this disgruntled minority board member has to pay? Teaches her not to point out violations of Florida law by board, manager and attorney!

Or how do you feel about an INTERVENING RECALL, a recall that makes pending recall arbitration moot, but leaves the same group of owners in power, despite the fact that the original recall was most likely valid and the board had anyway already violated the law by not holding the required recall meeting within five (5) business days?

Don't forget: Florida statutes 720.303(10)(b) 2. clearly states: "The board shall duly notice and hold a meeting of the board within 5 full business days after receipt of the agreement in writing or written ballots." 

The Florida legislature didn't say 6 or 7 business days -- 5 is the magic number. Not so for arbitrator Glenn Lang. He was using some wild arguments to make 6 out of 5. Please read in his FINAL ORDER OF DISMISSAL the arguments he us using to make 6 out of 5. It's plainly MAGIC!

And if that's not enough Lang finds that an intervening recall makes a pending recall arbitration moot. 

Read the arguments of attorney Paul Milberg from the law firm of Katzman Garfinkel Rosenbaum, arguing why this pending recall arbitration should be dismissed as moot (MOTION FOR ORDER OF DISMISSAL OF PETITION FOR ARBITRATION AS MOOT). It's obvious that it's no longer about the initial idea of finding if a sufficient number of valid recall petitions was served upon the board -- it's about who does have the necessary number of votes on the board and an attorney willing to serve some wild arguments on the arbitrator.

It gets even worse in the recall case of THE VILLAS OF MONTEREY ASSOCIATION INC. in Boynton Beach. In a recall meeting on February 2, 2009 the board by majority vote decided not to certify the recall and filed for recall arbitration on February 6 -- according to the provisions of the Florida statutes. Reason given by the board at that time: Insufficient number of valid petitions. Arbitration commenced, motions were exchanged until the annual election changed the majority of the board. The board members behind the recall had now the majority. The two board members served with a recall were not up for election. Nevertheless, directly after the election on April 6, 2009 the new board majority, with new president James Demos who happened to be the official representative for the Owners Voting for Recall, advised the association attorney to withdraw the recall petition. No public board meeting took place to make such a decision. And arbitrator James Earl, almost 3 (three) months after the recall arbitration was originally filed, signed a FINAL ORDER OF DISMISSAL. 

A little tidbit on the side: The new board called a board meeting on April 21, 2009, one day before the arbitrator signed the Final Order, and removed the two board members without ever validating the number of recall petitions. 

It's not a matter of right or wrong -- or number of valid recall petitions -- it's just a matter of who is in power.  And that is exactly what the RECALL PROVISIONS were supposed to stop.

As a matter of fact, the Arbitration Section of the Division under the leadership of Chief Arbitrator James Earl destroyed with its ruling well functioning recall provisions within two years! In the moment the outcome of recall arbitrations is more a crap-shoot than a legal procedure based on Florida statutes.

Many of Florida's citizens wonder why we have seen so many arbitrators willing to do the bidding of the big law firms in these arbitration cases. Are they hoping to get a better paying job with one of these firms after serving them well as arbitrators for a while? 

As much as I can understand that the offered pay for an attorney in the Arbitration section of the Division of Florida Condominiums, Timeshares, and Mobile Homes doesn't attract the top of the class from law school, these arbitrators should know their limitations and try to be not too ambitious. They should be especially careful before reading between the lines of the Florida statutes, finding "interpretations" that only exist in their imagination.

And they should clearly understand that they surely don't have the authority to overrule the wording of the statutes!

Chief Arbitrator James Earl always offers to help to rewrite the recall statutes.

Let's face it: There was no need to rewrite anything until Earl started to make his own interpretations of the law. Interpretations definitely not backed by the wording of the existing statutes!

These arbitrators have clearly destroyed the legislative intent of the recall provisions in FS 718 and FS 720.

When will our elected government executives finally put a stop to these arbitrators who think that Florida statutes are just general guidelines that they can change whenever they like!