Fla. Admin. Code Ann. R. 61B-80.102 - Filing for Recall Dispute Arbitration

(1) Where the homeowners attempt to recall one or more directors of a board of a homeowners' association by written agreement, ballot, or vote taken at a meeting, the board of directors shall initiate a recall arbitration by filing a petition for recall arbitration with the division as provided by this rule. Where the homeowners attempt to recall one or more directors of a board at a homeowners meeting or by an agreement in writing or written ballot, and the board does not certify the recall, the board shall file a petition for arbitration with the division within five full business days after adjournment of the board meeting at which the board determined not to certify the recall. Where the board fails to file a petition for recall arbitration as required by these rules and Chapter 720, F.S., the homeowners seeking to challenge the board's decision not to certify the recall, or not to file for recall arbitration, may file a petition for arbitration pursuant to these rules.

(2) Form of Petition. The term "petition" as used in this rule includes any application or other document that expresses a request for arbitration of a recall of one or more board directors. The petition shall comply with the provisions of this rule, and be printed, typewritten or otherwise duplicated in legible form on one side of the paper only with lines double-spaced. A party filing a petition for recall arbitration shall utilize DBPR FORM HOA 6000-4, MANDATORY BINDING ARBITRATION FORM PETITION-RECALL DISPUTE and shall submit the $200 filing fee with the petition.

(3) All petitions for arbitration of a recall filed by an association or by the homeowners who voted in favor of recall shall be signed by either a member of the Florida Bar, or by a qualified representative who has submitted an application to appear pursuant to Rule 61B-80.101, F.A.C. Each petition shall contain:

(a) The name and address of the association, the number of total voting interests in the association, the number of voting interests voting for recall of each board member sought to be recalled, the number of recall votes rejected by the board as to each candidate subject to the recall, and the total number of seats on the board at the time that the recall is served on the board;

(b) The name or names of the board director or directors who were recalled;

(c) The name and address of the homeowner representative selected, pursuant to subparagraph 61B-81.002(2)(b) 3. or paragraph 61B-81.003(1)(f), F.A.C., to receive pleadings, notices, or other papers on behalf of the recalling homeowners;

(d) A statement of whether the recall was by vote at a meeting of the homeowners or by written agreement.

(e) If the recall was by vote at a meeting, the petition shall state the date of the meeting of the homeowners and the time the meeting was adjourned; if the recall was by written agreement, the petition shall state the date and time of receipt of the written agreement by the board, and a copy of the written agreement to recall shall be attached to the petition;

(f) The date of the board meeting at which the board determined not to certify the recall, and the time the meeting was called to order and adjourned;

(g) A copy of the minutes of the board meeting at which the board determined not to certify the recall;

(h) Each specific basis upon which the board based its determination not to certify the recall, including the parcel number and specific defect to which each challenge applies. Any specific reason upon which the board bases its decision not to certify the recall that is stated in the petition for recall arbitration, but absent from the board meeting minutes or attachments thereto, shall be ineffective and shall not be considered by the arbitrator. A board director may be recalled with or without cause. The fact that a homeowner may have received misinformation is not a valid basis for rejecting a recall agreement and shall not be considered by the arbitrator;

(i) Any relevant sections of the bylaws, articles of incorporation, the declaration of covenants, and rules, including all amendments thereto, as well as any or other documents that are pertinent to the petition; and

(j) Any other information that the petitioner contends is material.

(4) If, during the pendency of a recall arbitration, the homeowners attempt another recall effort and the board files another petition for arbitration, the newly filed petition shall be consolidated with the pending case.

(5) Upon receipt and review of a petition for arbitration of a recall of one or more board directors, the division shall review the petition to verify that it contains all required information and that the petition states a valid claim for relief. If the petition is accepted, within 10 days of the filing of the petition, the arbitrator shall serve the respondent homeowners or other named respondents by mailing a copy of the petition and an order allowing answer by United States certified mail to the representative of the recalling homeowners identified in the petition or other named respondent.

(6) As provided by subsection 720.303(10), F.S., the board of directors must hold a board meeting within 5 full business days after its receipt of a recall agreement in writing or the written recall ballots, and further, the board must within 5 full business days of the board meeting, file a petition for recall arbitration if the board determines not to accept the recall of one or more board directors. The time periods contained in subsection 720.303(10), F.S., operate in the manner of statutes of limitation and are therefore subject to equitable considerations. However, where the board fails to timely comply with these rules relating to the calling and holding of a meeting on whether to certify a recall, or fails to comply with these rules relating to the filing of a petition for recall arbitration, the board must provide justification and must demonstrate that its actions or inactions were taken or based in good faith. The board's claims of excusable neglect or the inability to identify defects in the recall effort within the time provided will not be considered as proper defenses. The failure of an association to timely file a petition for recall arbitration within the time limits imposed under these rules or Chapter 720, F.S., will result in the certification of the recall and the immediate removal of the board directors subject to recall; however, the failure of the association to timely call or hold a board meeting or to file a petition for recall arbitration will not validate a written recall that is otherwise void at the outset for failing to obtain a majority of the voting interests or is deemed fatally defective for failing to substantially comply with the provisions of these rules.

Notes

Fla. Admin. Code Ann. R. 61B-80.102

Specific Authority 718.1255(4)(i), 718.112(2)(j)5., 720.303(10)(d), 720.311(1) FS. Law Implemented 720.303(10), 720.311(1) FS.

New 2-3-05.

New 2-3-05.