61B-50.105. Initiation of Recall Arbitration

(1) When one or more members of a board of administration of a condominium, cooperative, or mobile homeowners’ association have been recalled, the board of administration may initiate a recall arbitration by filing a petition for recall arbitration with the division, as follows:

(a) Recall at a Unit Owner or Member Meeting. Where the unit owners or members attempt to recall one or more members of a board at a unit owner or member meeting, 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.

(b) Recall by Written Agreement. Where the unit owners or members attempt to recall one or more members of a board by written agreement of a majority of the voting interests, and the board does not certify the written agreement to 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 written agreement to recall.

(2) The time periods contained in Section 718.112(2)(j), 719.106(1)(f) and 723.078(2)(i), F.S., operate, for purposes of these arbitration rules and not for enforcement purposes under Sections 718.501, 719.501 or 723.005, F.S., 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 filing of the petition for recall arbitration, the board must provide legitimate 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, or other unremarkable excuses 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 Chapters 718, 719 and 723, F.S., will result in the certification of the recall and the immediate removal of the board members subject to recall; however, the failure of the association to timely 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 Rules 61B-23.0028, 61B-75.008 or 61B-33.003, F.A.C.

(3) Only the board of an association may file a petition for recall arbitration. Where the board fails to file a petition for recall arbitration as required by these rules and Chapters 718, 719 and 723, F.S., the unit owners or members seeking to challenge the board’s decision not to file for recall arbitration may file a petition for arbitration pursuant to Section 718.1255(1)(b), 719.1255 or 723.1255, F.S.

(4) 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 members. 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.

(5) All petitions for arbitration of a recall shall be signed by either a duly authorized board member, a member of the Florida Bar, or a qualified representative who has been retained by the board. Each petition shall contain:

(a) The name and address of the association and the number of voting interests;

(b) The name or names of the board member or members who were recalled;

(c) The name and address of the unit owner or member representative selected, pursuant to subparagraph 61B-23.0027(3)(b)2., paragraph 61B-23.0028(1)(f), subparagraph 61B-75.007(3)(b)2., paragraph 61B-75.008(1)(f), subparagraph 61B-33.002(3)(b)1. or paragraph 61B-33.003(1)(f), F.A.C., to receive pleadings, notices, or other papers on behalf of the recalling unit owners or members;

(d) A statement of whether the recall was by vote at a meeting of the membership 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 membership 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 unit or mobile home lot 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 member may be recalled with or without cause. The fact that a unit owner or member 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 condominium, cooperative documents, and rules, including all amendments thereto, as well as any or other documents which are pertinent to the petition; and

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

(6) If, during the pendency of a recall arbitration, the unit owners in the condominium, cooperative, or members in the mobile home homeowners’ association attempt another recall effort and the board files another petition for arbitration, the newly filed petition shall be consolidated with the pending case.

(7) Upon receipt and review of a petition for arbitration of a recall of one or more board members, the division shall either accept or deny the petition. If the petition is accepted, within 10 days the arbitrator shall serve the respondent unit owners or members by mailing a copy of the petition and an order allowing answer by United States certified mail to the representative of the recalling unit owners or members identified in the petition.

Rulemaking Authority 718.501(1)(f), 719.501(1)(f), 723.1255 FS. Law Implemented 718.112(2)(j), 718.1255, 719.106(1)(f), 719.1255, 723.078(2)(i) FS. History–New 1-17-93, Formerly 7D-50.105, Amended 11-15-95, 6-24-04, 3-2-16.