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(10) RECALL OF
DIRECTORS.--
(a)1. Regardless of any provision to the contrary contained in the governing documents, subject to
the provisions of s. 720.307 regarding transition of association control, any member of the board of directors may be recalled
and removed from office with or without cause by a majority of the total voting interests.
2. When the governing
documents, including the declaration, articles of incorporation, or bylaws, provide that only a specific class of members
is entitled to elect a board director or directors, only that class of members may vote to recall those board directors so
elected.
(b)1. Board directors may be recalled by an agreement in writing or by written ballot without a membership
meeting. The agreement in writing or the written ballots, or a copy thereof, shall be served on the association by certified
mail or by personal service in the manner authorized by chapter 48 and the Florida Rules of Civil Procedure.
2.
The board shall duly notice and hold a meeting of the board within 5 full business days after receipt of the agreement in
writing or written ballots. At the meeting, the board shall either certify the written ballots or written agreement to recall
a director or directors of the board, in which case such director or directors shall be recalled effective immediately and
shall turn over to the board within 5 full business days any and all records and property of the association in their possession,
or proceed as described in paragraph (d).
3. When it is determined by the department pursuant to binding arbitration
proceedings that an initial recall effort was defective, written recall agreements or written ballots used in the first recall
effort and not found to be defective may be reused in one subsequent recall effort. However, in no event is a written agreement
or written ballot valid for more than 120 days after it has been signed by the member.
4. Any rescission or revocation
of a member's written recall ballot or agreement must be in writing and, in order to be effective, must be delivered to the
association before the association is served with the written recall agreements or ballots.
5. The agreement in
writing or ballot shall list at least as many possible replacement directors as there are directors subject to the recall,
when at least a majority of the board is sought to be recalled; the person executing the recall instrument may vote for as
many replacement candidates as there are directors subject to the recall.
(c)1. If the declaration, articles of
incorporation, or bylaws specifically provide, the members may also recall and remove a board director or directors by a vote
taken at a meeting. If so provided in the governing documents, a special meeting of the members to recall a director or directors
of the board of administration may be called by 10 percent of the voting interests giving notice of the meeting as required
for a meeting of members, and the notice shall state the purpose of the meeting. Electronic transmission may not be used as
a method of giving notice of a meeting called in whole or in part for this purpose.
2. The board shall duly notice
and hold a board meeting within 5 full business days after the adjournment of the member meeting to recall one or more directors.
At the meeting, the board shall certify the recall, in which case such member or members shall be recalled effective immediately
and shall turn over to the board within 5 full business days any and all records and property of the association in their
possession, or shall proceed as set forth in subparagraph (d).
(d) If the board determines not to certify the
written agreement or written ballots to recall a director or directors of the board or does not certify the recall by a vote
at a meeting, the board shall, within 5 full business days after the meeting, file with the department a petition for binding
arbitration pursuant to the applicable procedures in ss. 718.112(2)(j) and 718.1255 and the rules adopted thereunder. For
the purposes of this section, the members who voted at the meeting or who executed the agreement in writing shall constitute
one party under the petition for arbitration. If the arbitrator certifies the recall as to any director or directors of the
board, the recall will be effective upon mailing of the final order of arbitration to the association. The director or directors
so recalled shall deliver to the board any and all records of the association in their possession within 5 full business days
after the effective date of the recall.
(e) If a vacancy occurs on the board as a result of a recall and less
than a majority of the board directors are removed, the vacancy may be filled by the affirmative vote of a majority of the
remaining directors, notwithstanding any provision to the contrary contained in this subsection or in the association documents.
If vacancies occur on the board as a result of a recall and a majority or more of the board directors are removed, the vacancies
shall be filled by members voting in favor of the recall; if removal is at a meeting, any vacancies shall be filled by the
members at the meeting. If the recall occurred by agreement in writing or by written ballot, members may vote for replacement
directors in the same instrument in accordance with procedural rules adopted by the division, which rules need not be consistent
with this subsection.
(f) If the board fails to duly notice and hold a board meeting within 5 full business days
after service of an agreement in writing or within 5 full business days after the adjournment of the member recall meeting,
the recall shall be deemed effective and the board directors so recalled shall immediately turn over to the board all records
and property of the association.
(g) If a director who is removed fails to relinquish his or her office or turn
over records as required under this section, the circuit court in the county where the association maintains its principal
office may, upon the petition of the association, summarily order the director to relinquish his or her office and turn over
all association records upon application of the association.
(h) The minutes of the board meeting at which the
board decides whether to certify the recall are an official association record. The minutes must record the date and time
of the meeting, the decision of the board, and the vote count taken on each board member subject to the recall. In addition,
when the board decides not to certify the recall, as to each vote rejected, the minutes must identify the parcel number and
the specific reason for each such rejection.
(i) When the recall of more than one board director is sought, the
written agreement, ballot, or vote at a meeting shall provide for a separate vote for each board director sought to be recalled.
History.--s. 35, ch. 92-49; s. 54, ch. 95-274; s. 1, ch. 97-311; s. 1, ch. 98-261; s. 46, ch. 2000-258; s. 12,
ch. 2003-14; s. 3, ch. 2003-79; ss. 2, 18, ch. 2004-345; s. 15, ch. 2004-353; s. 135, ch. 2005-2.
1Note.--As amended
by s. 18, ch. 2004-345, and s. 135, ch. 2005-2. For a description of multiple provisions in the same session affecting a statutory
provision, see preface to the Florida Statutes, "Statutory Construction." Subsection (2) was also amended by s.
2, ch. 2004-345, and that version reads:
(2) BOARD MEETINGS.--A meeting of the board of directors of an association
occurs whenever a quorum of the board gathers to conduct association business. All meetings of the board must be open to all
members except for meetings between the board and its attorney with respect to proposed or pending litigation where the contents
of the discussion would otherwise be governed by the attorney-client privilege. Notices of all board meetings must be posted
in a conspicuous place in the community at least 48 hours in advance of a meeting, except in an emergency. In the alternative,
if notice is not posted in a conspicuous place in the community, notice of each board meeting must be mailed or delivered
to each member at least 7 days before the meeting, except in an emergency. Notwithstanding this general notice requirement,
for communities with more than 100 members, the bylaws may provide for a reasonable alternative to posting or mailing of notice
for each board meeting, including publication of notice, provision of a schedule of board meetings, or the conspicuous posting
and repeated broadcasting of the notice on a closed-circuit cable television system serving the homeowners' association. However,
if broadcast notice is used in lieu of a notice posted physically in the community, the notice must be broadcast at least
four times every broadcast hour of each day that a posted notice is otherwise required. When broadcast notice is provided,
the notice and agenda must be broadcast in a manner and for a sufficient continuous length of time so as to allow an average
reader to observe the notice and read and comprehend the entire content of the notice and the agenda. The bylaws or amended
bylaws may provide for giving notice by electronic transmission in a manner authorized by law for meetings of the board of
directors, committee meetings requiring notice under this section, and annual and special meetings of the members; however,
a member must consent in writing to receiving notice by electronic transmission. An assessment may not be levied at a board
meeting unless a written notice of the meeting is provided to all members at least 14 days before the meeting, which notice
includes a statement that assessments will be considered at the meeting and the nature of the assessments. Rules that regulate
the use of parcels in the community may not be adopted, amended, or revoked at a board meeting unless a written meeting notice
is provided to all members at least 14 days before the meeting, which notice includes a statement that changes to the rules
regarding the use of parcels will be considered at the meeting. Directors may not vote by proxy or by secret ballot at board
meetings, except that secret ballots may be used in the election of officers. This subsection also applies to the meetings
of any committee or other similar body, when a final decision will be made regarding the expenditure of association funds,
and to any body vested with the power to approve or disapprove architectural decisions with respect to a specific parcel of
residential property owned by a member of the community.
2Note.--As amended by s. 18, ch. 2004-345. For a description
of multiple acts in the same session affecting a statutory provision, see preface to the Florida Statutes, "Statutory
Construction." Subparagraph (2)(c)2. was also amended by s. 15, ch. 2004-353, and that version reads:
2.
An assessment may not be levied at a board meeting unless a written notice of the meeting is provided to all members at least
14 days before the meeting, which notice includes a statement that assessments will be considered at the meeting and the nature
of the assessments. Written notice of any meeting at which special assessments will be considered or at which rules that regulate
the use of parcels in the community may be adopted, amended, or revoked must be mailed, delivered, or electronically transmitted
to the members and parcel owners and posted conspicuously on the property or broadcast on closed-circuit cable television
not less than 14 days before the meeting. A written notice concerning changes to the rules that regulate the use of parcels
in the community must include a statement that changes to the rules regarding the use of parcels will be considered at the
meeting.
Note.--Former s. 617.303.
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