STATE OF FLORIDA
DEPARTMENT OF BUSINESS AND
PROFESSIONAL REGULATION
DIVISON OF CONDOMINIUMS, TIMESHARES
AND MOBILE HOMES
|
BARBARA RODUNER
,
Petitioner,
v.
ROLL’S
LANDING CONDOMINIUM ASSOCIATION, INC.
A
Florida Not-For-Profit Corporation,
Respondent,
________________________________________/
|
FEE
CASE NO.: 2008-05-6980
REL.
CASE NO.: 2008-02-6960
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MOTION
TO VACATE FINAL ORDER ON RESPONDENT'S
MOTION
FOR AWARD OF ATTORNEY'S FEES AND COSTS
COMES
NOW, Petitioner, BARBARA
RODUNER, and files this Motion to vacate the Final Order
awarding attorney’s fees to Respondent. This Motion is brought
on the grounds that the Department of Business and Professional
Regulations has chosen to label certain recall proceedings a
“reversed recall,” a term that is clearly not based on any
wording of the Florida statutes and/or Florida
Administrative Code.
The
Florida Administrative Code clearly states:
61B-50.1405
Motions for Attorney’s Fees and Costs.
No
party shall be entitled to recover its costs and attorney’s fees
in a recall proceeding initiated pursuant to Section 718.112(2)(j)
or 719.106(1)(f),
Florida
Statutes.
This
rule is published on the official website of the Division
of Florida Condominiums, Timeshares, and Mobile Homes on page 16
of the Recall Procedures
for Condominiums and Cooperatives, headlined: “Recall Procedures
from A to Z: A Beginner's Guide”. As a pro-se litigant,
Petitioner studied this guide, followed described procedures and relied
on this rule when filing for recall arbitration under Section 718.112(2)(j)
F.S.
An
arbitrator of the Division has to follow the statutes and
published rules (Florida
Administrative Code)
in his/her decision making. No arbitrator is authorized to make up
his own rules thereby violating established rules published by the
Florida Department of State.
The
case law, quoted in the Final Order is not relevant to the case at
issue. In her motions, Petitioner relied on FAC 61B-50.1405
and the final ruling of PLANTER'S
WALK HOMEOWNERS' ASSOCIATION, INC. (Fee Case No. 2005-05-3848; Rel. Case No. 2005-04-1738). (Quote):
“However, in a recall arbitration case, the fact that an association
achieves the benefit sought in recall arbitration does not
necessarily mean that the association is the "prevailing
party" for purposes of an award of attorney's fees. Indeed,
in the almost fifteen years that arbitrators have had jurisdiction
over recall arbitration cases, an association has never been
determined to be entitled to an award of attorney's fees as the
prevailing party even though its decision not to certify a recall
has been affirmed by the arbitrator.”
In
all the years recall arbitration cases have been under the
jurisdiction of the Arbitration Section of the Division,
attorneys’ fees have never been awarded to “prevailing
parties”. Arbitrators James Earl and Glenn Lang coined the
phrase “reversed recall” and created their own rules dealing
with these cases, totally ignoring Florida statutes and the rules
created by rulemaking process of the Division
of Florida Condominiums, Timeshares, and Mobile Homes. Such rules
place the unit owners at an unfair disadvantage when challenging a
recall.
Arbitrators
are bound by the wording of the Florida statutes and the Florida
Administrative Code. Arbitrators are not authorized to create
their own rules. When an arbitrator does not agree with existing
rules they have the option of attempting to amend the rules using
the Florida Government Rulemaking Process. Until the time these
rules are officially changed, the rulings of the arbitrators of
the Division have to be based on the existing and published
statutes and rules.
Petitioner
further asserts and objects to the timeframe in which the Final
Order was Done and Ordered. The final written motion in this case
was filed on October 20, 2008 according to the arbitrator.
Pursuant to FAC 61B-45.043(1), “Unless
waived, a final order shall be entered within 45 days after
the hearing, receipt by the arbitrator of the hearing transcript
if one is timely filed, or receipt of any post-hearing memoranda,
whichever is applicable. The final order shall be in writing and
shall include a statement of any award or remedy. Failure to
render a decision within such time period shall not invalidate the
decision.”
Even
if there is a disclaimer in the last sentence at the end of the
provision, the parties have, according to various court rulings, a
reasonable expectancy to receive the final order in a timely
fashion. Signing the Order 271 days after receipt of
the last motion filed in this case can definitely not be
considered “timely”. Petitioner, relying on the above rule,
had made no arrangements to receive mail during her vacation
considering the days already passed after final motions were
filed. Therefore petitioner only received the Final Order with her
regular mail when returning from a vacation up North on August 6,
2009, leaving her very little time to prepare a response. The lack
of filing the Final Order in a timely manner should be sufficient
cause to disqualify this Order in the first place. It shows the
arbitrator’s lack of willingness to follow Florida
Statutes and Florida
Administrative Code. Why should arbitrators expect timely filings
from the parties if they seem to be unable to follow time-lines
themselves?
CONCLUSION
The
arbitrator’s FINAL ORDER ON RESPONDENT'S MOTION FOR AWARD OF
ATTORNEY'S FEES AND COSTS dated July 17, 2009 should be
immediately vacated. The
order is not based on Florida Statutes and Florida Administrative
Code and clearly contradicts the statutes, legislative intent and
long-established case law. Following the law NO
cost or attorneys’ fees should be awarded to any party pursuant
to FAC
61B-50.1405.
DATED
this 14th day of August, 2009.
Submitted
by:
Barbara
Roduner (Petitioner)
______________________________
(Signed)
CERTIFICATE
OF SERVICE:
I
HEREBY CERTIFY that a true and correct copy of the foregoing has
been furnished by Mail to:
Ernest
W. Sturges, Jr., Esq.
Goldman,
Tiseo
&
Sturges
,
PA.
701
JC Center Court, Suite 3
Port
Charlotte, Florida 33954
Phone:
(941) 625-6666
CC:
Governor Charlie Crist
Lt.
Governor Jeff Kottkamp
DBPR
Secretary Charles W.
Drago
Members
of the Florida House and Senate
Media
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