An Opinion by: Valmore R. Lucier

Retired Condominium Ombudsman Chief Election Monitor for Dr. Rizzo

Published May 18, 2008

On July 1, 2007 The Miami Herald carried an excellent and informative article written by Donna Gehrke-White, Diane Moskovitz and John Cox about voting elevators and closets at the Pavilion Condominium in Miami Beach (Stakes are high in association elections). The association attorney, Mike Cochran from the DBPR and Bill Raphan “Assistant Ombudsman” all weigh in after it was discovered in 2007 that the association voted 25 Pavilion entities which were on the Property Appraiser (PA) list, but they were “Common Elements” (elevators and closets) not “Commercial Units” (association member businesses or offices) as previously claimed by the association.

Once this fact was known, the association should not have been allowed to cast votes for those 25 common element.  Those votes materially affected the 2007 election. They should not have been counted. Contrary to the association attorney’s claim, a review of the actual 2007 election results indicate that if the 25 common element votes were disregarded, of the 7 candidates elected, 3 different individuals than those declared winners actually won the election.

To understand why this action was wrong, it’s necessary to review the applicable statutory definitions and rules.

Applicable Florida Statute Definitions and Statute:

718.103  Definitions

(12) "Condominium parcel" means a unit, together with the undivided share in the common elements  

(27)  "Unit" means a part of the condominium property which is subject to exclusive ownership.

(28)  "Unit owner" or "owner of a unit" means a record owner of legal title to a condominium parcel.

(2)     Membership in the entity is composed exclusively of unit owners

(30)  "Voting interests" means the voting rights distributed to the association members

718.108  Common elements.--

(1)  "Common elements"

(a)  The condominium property which is not included within the units.

(d)  The property and installations required for the furnishing of utilities and other services to more than one unit or to the common elements.

718.112  Bylaws

2.(b)2. No proxy, limited or general, shall be used in the election of board members.

2.(d)3. Proxies shall in no event be used in electing the board, either in general elections or elections to fill vacancies

What does all of the above means?

1.Common elements are service entities not voting entities. Elevators and closets are not unit owners and do not have membership in the association and therefore have no voting rights.

2. Voter certificates not withstanding, the named individual(s) on the voter certificates were voting the common elements for the membership owners because each one had an equal share of these 25 common elements. They were casting a proxy vote.

3. As I said earlier, the statute does not allow proxy voting in the election of board members.

In light of the above and the July 2007 Miami Herald article, Pavilion Unit Owners did not expect elevators and closets to vote again at their next Ombudsman petitioned 2008 election, but they were wrong! Elevators and closets were again allowed to vote at the January 29, 2008 election! The association was again permitted to vote them because the 25 common elements were on the PA list, the tax rolls and apparently addressed in the association documents.  The association’s insistences that it’s documents permitted the action, was irrelevant.  When governing documents conflict with statutes, the statutes prevail.

As to the tax argument, every unit owner paid an equal share of the 2007 taxes on the 25 service entity common elements in their individual assessment. Ironical 19 of the 25 entities each have a 2007 market and tax value of $220. I can’t believe that closets with a market/tax value of $220 carried the same voting weight as condos worth hundreds of thousands of dollars!

At the 2008 election the association was again wrongly casting proxy votes when it voted those common elements that still did not meet the required definition of a voting unit.

If the 25 common elements had again not been allowed to vote in 2008, 4 of the winning incumbents would have lost the election. A resulting false run off was avoided only because a legitimate winner unknowingly stepped down.

Based on Bill Raphan comments in the July Miami Herald article, the Ombudsman’s office was well aware of the problem. When a Pavilion petition was again received requesting an election monitor for the 2008 election, Bill Raphan, knowing the situation should have instructed the assigned election monitor not to permit those 25 common elements to be voted again. Monitors made the same mistake at the same condo!  I’m convinced if I had allowed this to happen on my watch, Dr. Rizzo would have fired me.

When condo owners petition the Ombudsman’s Office to conduct an election they expect the Ombudsman’s Office to know the statute and to not knowingly allow mistakes to be made during elections that will cause the wrong candidates to win the election. Pavilion unit owners were ill served twice by lack of leadership and direction from the Ombudsman’s office in this matter.

The Office of the Ombudsman ended up causing two bad elections at the Pavilion and put its official seal of approval on both of them. If the office keeps up this kind of performance, its reputation will erode and it will not survive. Knowledge of the statute, proper staff training and election management control is a must for guaranteed continued success.

A new provision of condo bill H995, affecting FS 718.112(2)(b)2, should also help to put an end to these kind of voting irregularities: 

"No voting interest or consent right allocated to a unit owned by the association shall be exercised or considered for any purpose, whether for a quorum, an election, or otherwise." 

That’s my opinion.  -        Valmore R. Lucier