Complaint letter From: FHL

On: Monday, June 08, 1998

BY: CERTIFIED MAIL: Z 798 966 095

TO: Ashland Heights Owners Assn., Inc. Board of Directors C/O William J. Nasser, Registered Agent C&N Property Management, 2697-B Sunset Point Rd, Clearwater, Florida 33759

The Florida Homeowners Lobby Inc. (FHL) is the agent for Mr. Steven Sobecki and Mr. David Bright who are both members of FHL as well as members of the Ashland Heights Owners Assn., Inc. (AHOA). Mr. Sobecki was a director candidate in the May 12, 1998 AHOA election. Mr. Sobecki and Mr. Bright dispute the use of non-voting member designation certificate votes to determine the winners in the January 13, 1998 and the May 12, 1998 director elections because the AHOA Covenants Conditions & Restrictions (CC&Rs) mandate the counting of votes from members who have filed voting member designation certificates only.

Mr. Bright, Mr. Sobecki, and FHL have no doubt that Mr. Sobecki was the winner of the May 12, 1998 election. Mr. Sobecki was the election winner because he received the most votes from the legally authorized voting members as defined by Article IV Section 2 of the AHOA CC&Rs.

FHL has reviewed the AHOA filed CC&Rs, Articles of Incorporation and bylaws. FHL has also reviewed the correspondence between Steven H. Mezer Esq. and the AHOA, and correspondence from Arthur Abbo to the AHOA board. The reviewed documents show that the board was aware in 1997 that the proposed amendment to removing the voting certificate requirement from the Articles of Incorporation and the Declaration of Covenants required membership approval. The reviewed documents show that the amendment was never approved by the membership or filed in the county records. The documents reviewed show that some of the board members and officers have deliberated misstated that there was a requirement to count the non-voting certificate votes.

Increasing the board size from 3 to 5 members at the January 13, 1998 board meeting is also a violation of FS § 617.306 (2). FS § 617.306 (2) requires that election of directors be held at the annual meeting when the governing documents are silent. Operating an HOA with illegally empanelled board members is called board stacking. Board stacking is prima facie evidence of fraud and malice against the membership by those board members who act with an illegally empanelled board. Acts of malice are not covered by Homeowner Association Director and Officer liability policies and neither are the illegally elected directors.

Those board members who take no action to see that Mr. Sobecki is provided with his legally won seat on the board and don&Mac226;t motion and vote to nullify the election of the 2 stacked board members are in breach of their fiduciary duty as outlined in FS § 617.303 (1) and are libel to Mr. Sobecki under FS § 617.305 (1).

FHL has also been informed that the AHOA&Mac226;s current property manager and management company is withholding many of the pertinent AHOA official records from member inspection. This is in violation of the Florida administration code, CAM (Community Association Managers) Scope of Practice Part II, Standards of Professional Conduct, FS 61-20.503 (6) (b). CAM Managers who violate FS 61-20.503 (6) (b) are fined and have their CAM licenses suspended or revoked by the DBPR. This is additionally in violation of FS § 617.303(5). The withholding of documents by the CAM exposes the AHOA to damages as provided for by FS § 617.303(5). FHL has also been informed that both Mr. Sobecki and Mr. Bright have unfulfilled written requests for documents that are required by FS § 617.303(5) to be maintained as official records, some of which date back to Feb. 1998. This exposes the AHOA to actual damages or minimum damages of $500 per instance, plus costs, which can be substantial.

We would hope that this board would do the right thing by allowing Mr. Sobecki to take his legally won AHOA director position within 14 days. Otherwise, FHL will obtain representation for Mr. Sobecki by one of our affiliated homeowners association attorneys who will file an FS Chapter 86 action to have Mr. Sobecki declared the election winner and to remove the stacked board members. The attorney will probably also file subsequent causes of action against the remaining board members and officers who continue to deny Mr. Sobecki&Mac226;s and Mr. Bright&Mac226;s Mandatory Homeowners Association Rights.

Please, remember that there is no need to litigate when one can communicate. Make this a Win-Win situation for AHOA and its members by supporting the rule of law in allowing Mr. Sobecki to take his legally won AHOA director position on the board and declaring the January 13, 1998 board of directors election null and void.



Tommy Jones Community Association Management Investigative Consultant

cc: David Bright, Steve Sobecki

Encl. (2)

http://fcam.tripod.com/articles/AshlandHightsHOA.htm