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September 1, 1995 MEMORANDUM TO CLIENTS
DIRECTORS: WHAT IS THE RIGHT NUMBER Autumn is just around the corner. Associations are planning their annual members' meetings. A recurring issue is how many directors is the Association required to elect. The simple answer is that the members determine the number of directors. Neither Florida statutory law nor many "governing documents" specifically answer the issue of what determines the size of a Board of Directors. The Florida Not-For-Profit Corporations Act, provides in pertinent part in §617.0803 Fla. Stat. (1993), as follows:
Thus, every Florida not for profit corporation must have a minimum of three directors. The corporation's Articles of Incorporation or Bylaws may provide for a larger number of directors. Occasionally a corporation's Articles of Incorporation or Bylaws allow the number of directors to change from time to time. Well written documents specify whether the members or the directors make that decision. If the governing documents are silent, then the decision normally is made by the Association's directors. In an association, members frequently challenge an announcement that the directors choose the number of directors. The basis for the conclusion is usually stated plainly in a corporation's bylaws. The bylaws normally designate the directors as the corporation's decision makers unless there is a specific statement providing that the members make decisions. Thus, the directors fulfilling their role as the corporation's decision makers also will usually designate the number of directors unless the bylaws or articles of incorporation specifically fix the number of directors. WHO PAYS FOR VANDALISM
Whether it is the end of summer or the beginning of the school year, vandalism complaints tend to increase at this time of the year. Childish pranks many times carry an adult cost. Thus, property owners and associations with increasing frequency ask who pays the costs.
(Emphasis added). The Fourth District Court of Appeals has determined that the statute punishing a parent is constitutional. The statute was determined to be reasonably related to the legitimate state interest in reducing juvenile delinquency and is neither arbitrary nor capricious. Stang v. Waller, 415 So. 2d 123 (Fla. 4th DCA 1982). ANNUAL MEETING/VOTING AND WAIVER OF RESERVES
With "season" fast approaching it is time to plan for annual meetings. Advance planning is especially important because of the significant changes in association election laws (See, Memorandum to Clients "1995 Association Law Amendments", July/August 1995). Though many associations may desire to keep their present method of balloting, there will be changes that directors and management will want to consider in advance of printing and mailing deadlines. Advance annual meeting planning is normally a necessity. The usual rule of thumb allows for annual meetings to be set 100 days in advance of the meeting. This advance effort allows directors to formally approve the meeting date, provide a notice to members seeking nominations, ratify the election process, and furnish formal notices of meeting. Care should be taken when planning meetings when special topics such as amendments or waiving or reducing reserves will be contemplated. Usually notices and agenda must specifically identify these items. As discussed in the recent Memorandum to Clients, condominium and cooperative associations desiring to waive or reduce statutory reserves must obtain the consent of a majority of all voting interests. Because of scheduling requirements, please contact your association attorney as early as possible to confirm availability for your annual meeting, if desired, and for the preparation of meeting documents. PLEASE WELCOME SCOTT A. STOLOFF
The firm is pleased to announce that Scott A. Stoloff has joined Gelfand & Arpe, P.A., as an Associate. Scott graduated from the University of Florida College of Law, with honors, and holds a Bachelors of Arts degree in Psychology from the University of Michigan. He is a member of The Florida Bar, The American Bar Association, and The U.S. District Court for the Southern District of Florida Bar. Encouraging the belief that there is life beyond the law, Scott is involved in community activities including the University of Michigan Club of the Palm Beaches and The American Cancer Society. When you visit, please stop and say hello to Scott.
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