Opinion By Jan Bergemann
President, Cyber Citizens For Justice, Inc.
Published January 16, 2007
first view there is nothing wrong with the FINAL ORDER OF DISMISSAL
of arbitrator James Earl declaring a recall arbitration moot after a new
election. But if you do know the rest of
the story, you start wondering: What's wrong with the arbitration
section of the DBPR? We’ve
known for quite a while that these folks may have law degrees and are
authorized by the BAR to "practice" law in the State of
, but we as well quickly realized that some of these arbitrators seem to
lack plain common sense -- or are unwilling to use it! It seems they take
any opportunity to avoid making a ruling -- as seen here!
have seen quite a few recall arbitration rulings in recent times that took
forever. But it seems that arbitrator James Earl is determined to make his
cases last forever.
to name two cases from last year:
arbitration LAKE PLACE
CONDOMINIUM ASSOCIATION, INC. (171 days) [Legal proceedings in
this case are still pending]
Pet arbitration: BONAVIDA
CONDOMINIUM INC. (about 15 month) [declared moot]
many observers it seems like certain employees of the DBPR are seriously trying to destroy the legislative
intent of the statutes they are paid to uphold.
recall provisions were added to FS 718 (Condo Act) and FS 720 (HOA) in
order to create an easy-to-use tool to remove board members unwilling to
represent the will of a majority of owners. The statutes are well worded,
easy to understand and pretty easy to follow -- until the DBPR arbitration
section gets involved. It's a straight numbers game. Minimum 50% + 1
deeded owner sign a recall petition form and serve the board with this
recall petition. All there is to decide if the recall is challenged: Are
there a sufficient number of petitions signed by deeded owners?
can this easy task last 5 (five) or more months to rule upon? In most
cases recalls are not certified in order to buy time for the sitting board
to finish pet-projects, most often the reason for the actual recall. Every
day this board stays in power costs the owners more money!
already thought that the handling of the LAKE
PLACE CONDOMINIUM ASSOCIATION, INC. recall case was as bad as it
could get, until I saw the documents of the case of the SUNSET
VILLAS PHASE III CONDOMINIUM ASSOCIATION, INC. in Miami, FL,
The handling of this case is absolutely disgusting and a slap
in the face to
's condo owners. It's a clear proof of the incompetence of the DBPR
arbitrator, who fell for the shenanigans of the service providers in this
association: ALL FLORIDA MANAGEMENT
and the law firm of FEIN & MELONI PA
recall petition was served on June 16, 2006
on Barbara Escobar, the association secretary. She signed and accepted the petition on behalf of the President, Marina Ojeda.
After lengthy exchanges of documents and moves intended to drag out the
process, a final hearing scheduled for December 5, 2006 was again
rescheduled on the claim that association attorney Steven A. Fein was severely ill
and no replacement was available.
lawsuits were filed against condo owners, intending to intimidate the
condo owners participating in the recall.
of a rescheduled hearing of the recall case these condo owners were
surprised by the board scheduling an unnoticed election for December 13,
violating not only Florida Administrative Rules 61B-23.0021 and Florida
Statute Section 718.112(d)3, but as well the association's bylaws. An
election in December is a clear violation of the association's own bylaws.
(Section 2B.: The annual meeting should take place on the second
Tuesday of January in each year.) If there was any other rule they
could have violated -- I guess they would have done so??
on this occasion Steven Fein's partner, Edo Meloni, was able to attend
the illegal (see above) election meeting on December 13.
despite very convincing
arguments by Rosemarie
Bacallao, the attorney representing the Owners for Recall, arbitrator
James Earl dismissed the recall arbitration. In his ruling he stated (quote):
"It is well established by arbitration case law that when an
election occurs during the pendency of a recall, the recall dispute is
there had been a real election, that should have been the case. But in
this case it doesn't take Einstein to see through the shenanigans of ALL
FLORIDA MANAGEMENT and the law firm of FEIN & MELONI PA.
He should have realized that this wasn't an election; this was a
maneuver of desperation, because they were running out of options in the
recall arbitration case!
my opinion James Earl's ruling is aiding and abetting a fraudulent
election! The arbitrator was advised timely of the association calling an
illegal election meeting, but did nothing to prevent the fraudulent
actions aimed at declaring moot a perfectly legal recall.
to add insult to injury he suggests that the owners should file for
election arbitration if they feel that election rules were violated. Open
a process with the DBPR arbitration section that may again last many
months and costs thousands of dollars? I guess the owners’ trust in this
system has fallen below ZERO after this "experience"?
only should an arbitrator, who is unable to make a ruling on a simple
recall in a timely manner, be removed from a position that is influencing
the welfare of so many families, but the "professionals” involved
in these actions should be investigated and should lose their respective
licenses! This is absolutely going too far and if actions like this are
allowed to take place in
, we are not better off than citizens in any Third World Country we
normally feel sorry about!
's condo owners can only hope that the new
DBPR Secretary Holly Benson will finally clean out the Department and
remove all the useless employees that are getting paid from condo
owners’ money, but clearly fail to do their job as intended: REGULATE
CONDO ASSOCIATIONS. Many OPPAGA reports speak a clear language!
is about time that the DYSFUNCTIONAL
DBPR is again made FUNCTIONAL and works to improve the life of our
Florida citizens living in condominiums!