STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, DIVISION ) OF FLORIDA LAND SALES, ) CONDOMINIUMS, AND MOBILE HOMES, )

)

Petitioner, )

)

vs. ) CASE NO. 93-0344

)

ROBERT ROSEN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on August 18-19, and September 2, 1993, in Miami, Florida.

APPEARANCES

For Petitioner: Jeanne M. L. Player, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-1007

For Respondent: Franklin D. Kreutzer, Esquire

3041 Northwest Seventh Street, #100

Miami, Florida 33125 STATEMENT OF THE ISSUES

Whether the Respondent, a licensed community association manager, committed the offenses alleged in the notice to show cause and, if so, the penalties that should be imposed.

PRELIMINARY STATEMENT

Petitioner filed a Notice to Show Cause dated December 7, 1992, against Respondent, a licensed community association manager. The gravamen of the Notice to Show Cause was the allegation that Respondent engaged in gross misconduct or gross mismanagement in violation of Section 468.436(2)(e), Florida Statutes, by his alleged failure to turn over to six separate community associations funds in six separate bank accounts within seven business days of written requests of the associations or their attorneys. Petitioner requested a formal hearing on the allegations, and this proceeding followed.

At the hearing, Petitioner presented the testimony of Maureen Abraham, Maureen Friedman, Robert Lopez, Gerald Fabricatore, Peggy Johnson, Lawrence Schwartz, Diane Burt, Sharon Malloy, and the Respondent. Petitioner's exhibits

1 through 43 were admitted into evidence. The Respondent had 33 exhibits marked for identification, 23 of which were accepted into evidence. Respondent testified on his own behalf, but called no other witnesses.

During the course of this proceeding, the name of the Department was changed to the Department of Business and Professional Regulation. The style of this proceeding has been changed to reflect that change. All references to the Petitioner are to the Department of Business Regulation and to the Department of Business and Professional Regulation.

Effective July 1, 1993, the administrative rules of the former Department of Business Regulation were renumbered from chapter 7D to chapter 61B. There was no change in the substance of the rules pertinent to this proceeding.

Official recognition has been taken of the rules contained in chapter 61B-55, Florida Administrative Code, and the new rule numbers shall be used in this order.

A transcript of the proceedings has been filed. On motion of the Respondent, an extension of time was granted for the filing of his post-hearing submissions. Consequently, the requirement that a recommended order be rendered within thirty days after the transcript is filed was waived. Rule 60Q-2.031, Florida Administrative Code. Rulings on the parties' proposed findings of fact may be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner is the state agency charged with the enforcement of the provisions of Part VIII of Chapter 468, Florida Statutes, and of Chapter 61B-55, Florida Administrative Code.

   
   

2. At all times material to this proceeding Respondent, Robert Rosen, was licensed as a community association manager and held license number 3371 issued by Petitioner. At the time of the formal hearing, Respondent had been performing community association management services for approximately fifteen years. Respondent has had extensive participation in community association management education and training activities and was, at all times pertinent hereto, aware of the duties imposed on community association managers by statute and by rule.

   
   

3. Part VIII of Chapter 468, consisting of Sections 468.431 - 468.437, Florida Statutes, pertain to the regulation and licensure of Community Association Management.

   
   

4. Section 468.431, Florida Statutes, provides the following definitions pertinent to this proceeding:

   
   

   1. "Community association management" means any of the following practices requiring substantial specialized knowledge, judgment, and managerial skill when done for remuneration and for the public and when the association or associations served contain more than 50 units or have an annual budget or budgets in excess of $100,000: controlling

      or disbursing funds of a community association, preparing budgets or other financial documents for a community association, assisting in the noticing or conduct of community association meetings, and coordinating maintenance for the residential development and other day-to-day services involved with the operation of a community association. A person who performs clerical or ministerial functions under the direct supervision of a licensed manager or who is charged only with performing the maintenance of a community association and who does not assist in any of the management services described in this subsection is not required to be licensed under this part.

   2. "Community association manager" means a person who is licensed pursuant to this part to perform community association management services.

      
      

5. A person performing community association management services to one or more associations containing more than 50 units or having an annual budget or budgets in excess of $100,000 must possess a community association manager's license. Licenses to act as a community association manager are issued by Petitioner to individual persons. Licenses are not issued to corporations. An individual who is a community association manager within the meaning of Section 468.431(3), Florida Statutes, is required by the provisions of Section 468.432(1), Florida Statutes, to be licensed by the Petitioner, as follows:

   
   

   1. A person shall not manage or hold himself out to the public as being able to manage a community association in this state unless he is licensed by the department in accordance with the provisions of this

      part. . . .

      
      

6. Corporations that provide community association management services through licensed employees merely have to register with the Petitioner pursuant to Section 468.432(2), Florida Statutes, which provides, in pertinent part, as follows:

   
   

   1. Nothing in this part prohibits a corporation, partnership, trust, association, or other like organization from engaging in the business of community association management without being licensed if it employs licensed natural persons in the direct provision of community association services. Such corporation, partnership, trust, association, or other organization shall also file with the department a statement on a form approved by the department that it submits itself to the rules of the department and the provisions of this part which the department deems applicable.

7. Petitioner has rule making authority pursuant to the provisions of Section 468.433(3), Florida Statutes.

   
   

8. Petitioner has the authority to enforce its rules and statutes pursuant to the provisions of Section 468.436, Florida Statutes.

   
   

9. Pursuant to its rule making authority, Petitioner has enacted Rule 61B- 55.007, Florida Administrative Code, which provides, in pertinent part, as follows:

   
   

   Standards of Professional Conduct. All licensees and registrants shall adhere to the following provisions and standards of professional conduct, and such provisions and standards shall be deemed automatically incorporated, as duties of all licensees and registrants, into any written or oral agreement for the rendition of community association management services, the violation of which shall constitute gross misconduct or gross negligence.

   1. Definitions. As used in this rule, the following definitions apply:

      1. The word "control" means the authority to direct or prevent the actions of another person or entity pursuant to law, contract, subcontract or employment relationship with a community association, its board of directors, any committee thereof or any member of any board or committee.

      2. "Licensee" means a person licensed pursuant to section 468.432(1), Florida Statutes.

      3. "Registrant" means an entity registered pursuant to section 468.432(2), Florida Statutes.

      4. The word "funds" as used in this rule includes money and negotiable instruments including checks, notes and securities.

   * * *

   (6) Records.

   (a) A licensee or registrant shall not withhold possession of any books, records, accounts, funds, or other property of a community association when requested by the community association to deliver the same to the association upon reasonable notice. It shall be presumed that reasonable notice shall extend no later than 7 business days after receipt of a written request from the association. The provisions of this rule apply regardless of any contractual or other dispute between the licensee and the community association, or between the registrant and the community association. It shall be considered gross misconduct, as

   provided by Section 468.436(2), Florida Statutes, for a licensee or registrant to violate the provisions of this subsection.

   
   

10. The purpose of the community association manager licensing and regulation statute is to protect the public in general, and community association members in particular. Its primary goal is to ensure that managers who receive licenses from the state are trustworthy and have some degree of professional competence.

    
    

11. Rosen Management Service, Inc., is a corporation that is not a party to this proceeding. Robert Rosen, in addition to being a licensed community association manager, is the president of Rosen Management Service, Inc. Throughout this proceeding, Robert Rosen acted through his corporation in providing community association management services to the associations involved in this proceeding. Prior to the termination of the management agreements between Rosen Management Service, Inc., and the six associations involved in this proceeding, Robert Rosen was a member of and an ex officio officer of each association. At all times pertinent to this proceeding, Rosen Management Service, Inc., employed licensed community association managers in addition to Robert Rosen. There was no evidence that any licensed community association manager employed by Rosen Management Service, Inc., other than Robert Rosen provided services to the six associations that are involved in this proceeding. At all times pertinent to this proceeding, Robert Rosen controlled the management of Rosen Management Service, Inc.

    
    

12. The six separate community associations involved in this proceeding are located in Dade County, Florida. Rosen Management Service, Inc., began providing community association management services to each of these associations on January 1, 1991. The services provided to each association by Rosen Management Service, Inc., included the management and control of each association's finances. Those six associations are:

    
    

    Moors Master Maintenance Association, Inc. Moors Town Villas Maintenance Association, Inc.

    Moors Garden Homes Maintenance Association, Inc. Moors Pointe Condominium Association, Inc.

    Moors Village Homes Maintenance Association, Inc. Moors Patio Homes Maintenance Association, Inc.

    
    

13. At issue in this proceeding are certain bank accounts that were opened in the Dadeland branch office of Southeast Bank by Rosen Management Service, Inc. Southeast Bank was acquired by First Union National Bank of Florida in 1992 after intervention by the Federal Deposit Insurance Corporation. The subject accounts became accounts in the Dadeland branch of the First Union National Bank after the acquisition. At the time these accounts were opened, Robert Rosen was a member of and ex officio officer of each association and had the authorization of each association to open each account in the manner in which it was opened.

    
    

    Moors Master Maintenance Association, Inc.

    
    

14. The Moors Master Maintenance Association, Inc., and Rosen Management Service, Inc., entered into a management agreement that was effective January 1, 1991. By that agreement, Rosen Management Service, Inc., agreed to provide community association management services to the Moors Master Maintenance

    Association, Inc. The agreement provided for the termination of the agreement by either party with or without cause upon sixty days written notice. The agreement was executed by Robert Rosen as president of Rosen Management Service, Inc.

    
    

15. On January 9, 1991, Robert Rosen caused an interest bearing checking account, account #018-690008, to be opened at the Dadeland branch of the Southeast Bank. The owner information was completed as follows: "Rosen Management Service, Inc., as agent for The Moors Master Maintenance Association, Inc." Robert Rosen was the only person authorized to sign on this account. The operating funds of the association were deposited into that account.

    
    

16. On October 8, 1991, the Moors Master Maintenance Association, Inc., voted to terminate the management agreement with Rosen Management Service, Inc., and notified Robert Rosen of that action. On October 9, 1991, the attorneys representing the Moors Master Maintenance Association, Inc., notified Robert Rosen, as president of Rosen Management Service, Inc., that it had terminated the contract and demanded a return of the Association's books and records. This letter also stated: ". . . effective immediately no additional checks are to be written by you on any of the accounts at (sic) the Association."

    
    

17. The Moors Master Maintenance Association, Inc., caused its attorneys to write a letter to Southeast Bank dated October 10, 1991, concerning account #018-690008 which stated, in pertinent part, as follows:

    
    

    . . . At a meeting of the Board of Directors held on Tuesday, October 8, 1991, the Board voted to terminate its management agent, Rosen Management Service, Inc. Accordingly, please be advised that effective immediately, no further activity with respect to the above referenced account is to be initiated by Rosen Management Service, Inc. and/or Robert Rosen.

    
    

18. The Moors Master Maintenance Association, Inc., wrote to Southeast Bank a letter dated November 19, 1991, which stated, in pertinent part, as follows:

    
    

    This letter is to inform you that at a Board of Directors meeting held on Tuesday, October 8, 1991, the Board of Directors of the Moors Master Maintenance Association terminated their contract with Rosen Management. This refers to the contract that went into effect January 1, 1991.

    Rosen Management is no longer an agent of the above mentioned association.

    Please transfer all monies in the Associations' account #018-690008 to the new account we opened . . .

19. On November 19, 1991, the president of the Moors Master Maintenance Association advised the Southeast Bank that it had opened a new account and requested that the funds in account #018-690008 be transferred to the new account.

    
    

    Moors Town Villas Maintenance Association, Inc.

    
    

20. The Moors Town Villas Maintenance Association, Inc., and Rosen Management Service, Inc., entered into a management agreement that was effective January 1, 1991. By that agreement, Rosen Management Service, Inc., agreed to provide community association management services to the Moors Town Villas Maintenance Association, Inc. The agreement provided for the termination of the agreement by either party with or without cause upon sixty days written notice. The agreement was executed by Robert Rosen as president of Rosen Management Service, Inc.

    
    

21. On January 9, 1991, Robert Rosen caused an interest bearing checking account, account #018-690024, to be opened at the Dadeland branch of the Southeast Bank. The owner information was completed as follows: "Rosen Management Service, Inc., as agent for The Moors Town Villa Homes Maintenance Association, Inc." Robert Rosen was the only person authorized to sign on this account. The operating funds of the association were deposited into that account.

    
    

22. On October 22, 1991, the Moors Town Villas Maintenance Association, Inc., voted to terminate the management agreement with Rosen Management Service, Inc., and notified Robert Rosen of that action. By letter dated November 13, 1991, the association advised Robert Rosen, as president of Rosen Management Service, Inc., that all records, documents, files, contracts, and invoices belonging to the association should be turned over to the new management company.

    
    

23. The Moors Town Villas Maintenance Association, Inc., wrote to Southeast Bank a letter dated November 21, 1991, which stated, in pertinent part, as follows:

    
    

    This letter is to inform you that at a Board of Directors meeting held on Tuesday, October 22, 1991, the Board of Directors of the Moors Town Villas Maintenance Association

    terminated their contract with Rosen Management. This refers to the contract that went into effect January 1, 1991.

    Rosen Management is no longer an agent of the above mentioned association.

    Please transfer all monies in the Associations' account #018-690024 to the new account we opened . . .

    
    

    Moors Garden Homes Maintenance Association, Inc.

    
    

24. The Moors Garden Homes Maintenance Association, Inc., and Rosen Management Service, Inc., entered into a management agreement that was effective January 1, 1991. By that agreement, Rosen Management Service, Inc., agreed to provide community association management services to the Moors Garden Homes Maintenance Association, Inc. The agreement provided for the termination of the

    agreement by either party with or without cause upon sixty days written notice. The agreement was executed by Robert Rosen as president of Rosen Management Service, Inc.

    
    

25. On January 9, 1991, Robert Rosen caused an interest bearing checking account, account #018-689992, to be opened at the Dadeland branch of the Southeast Bank. The owner information was completed as follows: "Rosen Management Service, Inc., as agent for The Garden Homes of the Moors Maintenance Association, Inc." Robert Rosen was the only person authorized to sign on this account. The operating funds of the association were deposited into that account.

    
    

26. On October 24, 1991, the Moors Garden Homes Maintenance Association, Inc., voted to terminate the management agreement with Rosen Management Service, Inc., and notified Robert Rosen of that action. By letter dated November 7, 1991, the association advised Robert Rosen, as president of Rosen Management Service, Inc., that all records, documents, files, contracts, and invoices belonging to the association should be turned over to the new management company.

    
    

27. The Moors Garden Homes Maintenance Association, Inc., wrote to Southeast Bank a letter dated November 21, 1991, which stated, in pertinent part, as follows:

    
    

    This letter is to inform you that at a Board of Directors meeting held on Tuesday, October 24, 1991, the Board of Directors of the Moors Garden Homes Maintenance Association terminated their contract with Rosen Management. This refers to the contract that went into effect January 1, 1991.

    Rosen Management is no longer an agent of the above mentioned association.

    Please transfer all monies in the Associations' account #018-689992 to the new account we opened . . .

    
    

    Moors Pointe Condominium Association, Inc.

    
    

28. The Moors Pointe Condominium Association, Inc., and Rosen Management Service, Inc., entered into a management agreement that was effective January 1, 1991. By that agreement, Rosen Management Service, Inc., agreed to provide community association management services to the Moors Pointe Condominium Association, Inc. The agreement provided for the termination of the agreement by either party with or without cause upon sixty days written notice. The agreement was executed by Robert Rosen as president of Rosen Management Service, Inc.

    
    

29. On January 9, 1991, Robert Rosen caused an interest bearing checking account, account #018-689984, to be opened at the Dadeland branch of the Southeast Bank. The owner information was completed as follows: "Rosen Management Service, Inc., as agent for The Moors Pointe Condominium Association, Inc." Robert Rosen was the only person authorized to sign on this account. The operating funds of the association were deposited into that account.

30. On October 24, 1991, the Moors Pointe Condominium Association, Inc., voted to terminate the management agreement with Rosen Management Service, Inc., and notified Robert Rosen of that action. The letter terminating the management agreement was dated October 31, 1991, and advised Robert Rosen, as president of Rosen Management Service, Inc., that all books and records for the association should be turned over to the new management company.

    
    

31. The Moors Pointe Condominium Association, Inc., wrote to Southeast Bank a letter dated November 21, 1991, which stated, in pertinent part, as follows:

    
    

    This letter is to inform you that at a Board of Directors meeting held on Tuesday, October 25, 1991, the Board of Directors of the Moors Pointe Condominium Association terminated their contract with Rosen Management. This refers to the contract that went into effect January 1, 1991.

    Rosen Management is no longer an agent of the above mentioned association.

    Please transfer all monies in the Associations' account #018-689984 to the new account we opened . . .

    
    

    Moors Village Homes Maintenance Association, Inc.

    
    

32. The Moors Village Homes Maintenance Association, Inc., and Rosen Management Service, Inc., entered into a management agreement that was effective January 1, 1991. By that agreement, Rosen Management Service, Inc., agreed to provide community association management services to the Moors Village Homes Maintenance Association, Inc. The agreement provided for the termination of the agreement by either party with or without cause upon sixty days written notice. The agreement was executed by Robert Rosen as president of Rosen Management Service, Inc.

    
    

33. On January 9, 1991, Robert Rosen caused an interest bearing checking account, account #018-690032, to be opened at the Dadeland branch of the Southeast Bank. The owner information was completed as follows: "Rosen Management Service, Inc., as agent for The Moors Village Homes Maintenance Association, Inc." Robert Rosen was the only person authorized to sign on this account. The operating funds of the association were deposited into that account.

    
    

34. On October 24, 1991, the Moors Village Homes Maintenance Association, Inc., voted to terminate the management agreement with Rosen Management Service, Inc., and notified Robert Rosen of that action. The Moors Village Homes Maintenance Association, Inc., wrote to Southeast Bank a letter dated November 21, 1991, which stated, in pertinent part, as follows:

    
    

    This letter is to inform you that at a Board of Directors meeting held on Tuesday, October 25, 1991, the Board of Directors of the Moors Village Homes Maintenance Association terminated their contract with Rosen Management. This refers to the contract that went into effect January 1, 1991.

    Rosen Management is no longer an agent of the

    above mentioned association.

    Please transfer all monies in the Associations' account #018-690032 to the new account we opened . . .

    
    

    Moors Patio Homes Maintenance Association, Inc.

    
    

35. The Moors Patio Homes Maintenance Association, Inc., and Rosen Management Service, Inc., entered into a management agreement that was effective January 1, 1991. By that agreement, Rosen Management Service, Inc., agreed to provide community association management services to the Moors Patio Homes Maintenance Association, Inc. The agreement provided for the termination of the agreement by either party with or without cause upon sixty days written notice. The agreement was executed by Robert Rosen as president of Rosen Management Service, Inc.

    
    

36. On January 9, 1991, Robert Rosen caused an interest bearing checking account, account #018-690016, to be opened at the Dadeland branch of the Southeast Bank. The owner information was completed as follows: "Rosen Management Service, Inc., as agent for The Moors Patio Homes Maintenance Association, Inc." Robert Rosen was the only person authorized to sign on this account. The operating funds of the association were deposited into that account.

    
    

37. On October 22, 1991, the Moors Patio Homes Maintenance Association, Inc., voted to terminate the management agreement with Rosen Management Service, Inc., and notified Robert Rosen of that action. The letter terminating the management agreement was dated October 31, 1991, and advised Robert Rosen, as president of Rosen Management Service, Inc., that all books and records of the association should be turned over to the new management company.

    
    

38. The Moors Patio Homes Maintenance Association, Inc., wrote to Southeast Bank a letter dated November 21, 1991, which stated, in pertinent part, as follows:

    
    

    This letter is to inform you that at a Board of Directors meeting held on Tuesday, October 22, 1991, the Board of Directors of the Moors Patio Homes Maintenance Association

    terminated their contract with Rosen Management. This refers to the contract that went into effect January 1, 1991.

    Rosen Management is no longer an agent of the above mentioned association.

    Please transfer all monies in the Associations' account #018-690016 to the new account we opened . . .

    
    

    The Collateral Litigation.

    
    

39. In November 1991, Rosen Management Service, Inc., (plaintiff) brought suit against the Moors Master Maintenance Association, Inc., (defendant) in circuit court seeking compensatory damages in the amount of $927,553.24 and punitive damages in the minimum amount of $2,782,659.70. That proceeding was pending at the time of the formal hearing held in the instant proceeding.

40. In December 1991, the six associations (plaintiffs) sued Rosen Management Service, Inc., and Robert Rosen (defendants) in circuit court seeking temporary and permanent injunctive relief requiring the defendants to turn over the books and records of the plaintiffs. On December 19, 1991, a special master was appointed in this circuit court proceeding. The special master was ordered to take possession of the books and records of the six associations, including the six bank accounts. The attorney for the defendants in that circuit court proceeding consented to the transfer of the control of the six bank accounts to the special master. Before the transfer could be effectuated, the circuit court proceeding was voluntarily dismissed by the plaintiffs. Consequently, the special master never took possession of the funds in these bank accounts.

    Robert Rosen was aware that the special master never took possession of these bank accounts.

    
    

41. On or about March 31, 1993, a separate proceeding was filed in circuit court by the six associations (plaintiffs) against Rosen Management Service, Inc. That proceeding was pending at the time of the formal hearing held in the instant proceeding.

    
    

    The Manager of the Bank.

    
    

42. In reaction to the letters from the six Moors associations and their attorneys, Diego Rodriguez, the manager of the Dadeland branch of the Southeast Bank, advised Mr. Rosen that he no longer had any authority over the account and that the bank would not take any instructions from him. This information was conveyed to Mr. Rosen by Mr. Rodriguez in October 1991, in April 1992, and on September 3, 1992. On September 3, 1992, Mr. Rodriguez wrote a letter to Sharon Malloy, Assistant Bureau Chief for Petitioner's Bureau of Condominiums. That letter corroborates the Respondent's testimony as to information provided to him by Mr. Rodriguez. That letter stated, in pertinent part, as follows:

    
    

    "All went fine [with the six accounts] until October 1991, when we received a certified letter from the Law Firm of Becker & Poliakoff stating that they represented the six Moors Associations, and instructed this banking center to remove Mr. Robert Rosen as an authorized signer on the six accounts.

    The letter further stated that this bank could no longer accept any instructions what- so-ever from Rosen and not to discuss any of these accounts with him.

    Ms. Malloy, our branch has done just that. We informed Mr. Rosen that he no longer had any control, custody, jurisdiction, or any other authority on these accounts. That was in October 1991, and we've told that to Mr. Rosen on at least a dozen occasions since then, including April 1992 when we confirmed this in writing to Mr. Rosen, and again today, September 3, 1992.

    We specifically told Mr. Rosen that in view of these circumstances, we would require a Court Order before we could accept any instructions from anyone as to these accounts.

    Your staff must have misinterpreted my letter of April 1992, which clearly stated

    that Mr. Rosen has been removed as a signer on these accounts. This doesn't mean he just can't sign; it means that he has no control, no custody, no jurisdiction, no power of any kind on these accounts. These accounts have each been coded so as not to allow Mr. Rosen either access to the funds or information on these accounts. This Bank will not take any instructions from him!!! (Emphasis in the original.)

    
    

    The Attorneys for the Bank.

    
    

43. Southeast Bank, and later First Union Bank, asserted the position that it could not transfer the funds or otherwise release the funds in the six accounts without the written consent of a duly authorized representative of Rosen Management Service, Inc. On May 12, 1992, Steve Gillman, the attorney for First Union Bank advised the attorneys for the associations in writing that the transfer of the bank accounts established by Rosen Management Service, Inc., could be transferred to the new bank accounts established by the associations if an authorized representative of Rosen Management Service, Inc., as the account party executed an appropriate transfer request.

    
    

44. On May 13, 1992, the attorneys for the associations forwarded to the attorney for the Respondent a copy of the May 12, 1992, letter from the bank's attorney. Enclosed with that letter was a simple, single page authorization form by which Robert Rosen, on behalf of Rosen Management Service, Inc., could consent to the transfer of the funds in the six association bank accounts to new bank accounts controlled by the associations. Robert Rosen received a copy of this letter and the enclosures. This letter of May 13, 1992, provided, in pertinent part, as follows:

    
    

    . . . As you can see an appropriate transfer request from your clients is all that is required to return the funds to their beneficial owners.

    Pursuant to the foregoing, we make final demand upon your clients to provide authorization to the bank to transfer the funds on deposit beneficially owned by the respective Moors associations to the new accounts at First Union/Southeast already established for the purpose of facilitating such a transfer. Toward this end, I have enclosed an authorization for your clients to sign forthwith.

    
    

45. Robert Rosen knew that the six associations were unable to withdraw the funds from the six bank accounts because of the repeated demands of the associations. Prior to the position asserted by the bank as reflected by Mr. Gillman's letter of May 1992, there was some confusion as to what Respondent could or should do to transfer these accounts. This situation was exacerbated by the collateral litigation filed by Rosen Management Service, Inc., and by the associations, the voluntary dismissal of the suit by the associations after the special master had been appointed, and by the erroneous advice given by Mr. Rodriguez. Notwithstanding the position asserted by Mr. Rodriguez, Mr. Rosen knew after he received copies of the letters from Mr. Gillman, that his

    authorization was all that was required to transfer the funds from the old accounts to the new accounts. Robert Rosen failed to execute that simple authorization form until August 18, 1993, thereby blocking access by the associations to their funds in these bank accounts.

    
    

46. There was a meeting on July 1, 1992, involving the Respondent, his attorney and attorneys and representatives of the six associations. During that meeting, Respondent was again asked to sign the consent form necessary to transfer the funds in the six accounts at issue in this proceeding to accounts controlled by the respective associations. Despite repeated demands for him to do so, Respondent did not sign the consent form that he knew was required to transfer the funds in the six bank accounts to the respective associations until August 1993.

    
    

47. As a result of Robert Rosen's failure to sign the consent form in his capacity of President of Rosen Management Service, Inc., or to instruct some other qualified representative of Rosen Management Service, Inc., sign the form, these six associations were deprived of access to their funds until August 1993.

    
    

48. Robert Rosen testified that he delivered an executed copy of this form to the First Union Bank Dadeland branch office shortly after he received it in May 1992. This self-serving testimony lacks credibility and is rejected as being contrary to the clear and convincing evidence that he did not execute the consent form until the first day of the formal hearing.

    
    

49. On August 18, 1993, the first day of the formal hearing that was held in this proceeding, Robert Rosen signed the one-page document that authorized the transfer of all six association bank accounts to the respective associations. This authorization form was the same one-page document that had been forwarded to Respondent's counsel, and subsequently to Respondent, on May 13, 1992. Respondent had been repeatedly asked to execute this authorization form.

    
    

50. On August 19, 1993, the funds that had been in account #018-690008 were transferred to a new account of the Moors Master Maintenance Association, Inc. The balance in the account at the time of the transfer was approximately

    $108,000.00.

    
    

51. On August 19, 1993, the funds that had been in account #018-690024 were transferred to a new account of the Moors Town Villas Maintenance Association. The balance in the account at the time of the transfer was in excess of $100,000.

    
    

52. On August 19, 1993, the funds that had been in account #018-689992 were transferred to a new account of the Moors Garden Homes Maintenance Association. The balance in the account at the time of the transfer was in excess of $100,000.

    
    

53. On August 19, 1993, the funds that had been in account #018-689984 were transferred to a new account of the Moors Pointe Condominium Association The balance in the account at the time of the transfer was approximately

    $40,000.

    
    

54. On August 19, 1993, the funds that had been in account #018-690032 were transferred to a new account of the Moors Village Homes Maintenance Association. The balance in the account at the time of the transfer was approximately $41,000.

55. On August 19, 1993, the funds that had been in account #018-690016 were transferred to a new account of the Moors Patio Homes Maintenance Association, Inc. The balance in the account at the time of the transfer was approximately $75,000.

    
    

56. Robert Rosen did not turn over and did not cause his corporation to turn over the funds of the six associations to those associations within seven business days of a written request to do so. Robert Rosen did not execute and did not cause his corporation to execute the written authorization form that was required to transfer the funds to the six associations within seven business days of a written request to do so.

    
    

57. Because the six associations did not have access to their funds during the approximately two years that this matter was in dispute, the associations had to impose special assessments on their members, had to delay paying bills, and had to use reserve funds for operating bills. The associations also incurred attorneys' fees in attempting to secure the return of their funds.

    
    

58. Robert Rosen has not been previously disciplined by the Petitioner. At all times pertinent to this proceeding, the funds were in interest bearing accounts. All funds in the six association accounts, including accrued interest, were turned over to the respective associations on August 19, 1993.

    
    

    CONCLUSIONS OF LAW

    
    

59. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

    
    

60. Petitioner has the burden of proving by clear and convincing evidence the allegations against Respondent. See Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Evans Packing Co. v. Department of Agriculture and Consumer Services, 550 So.2d 112 (Fla. 1st DCA 1989). Evans Packing, supra, 550 So. 2d 112, 116, fn. 5, provides the following pertinent to the clear and convincing evidence standard:

    
    

    That standard has been described as follows: [C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the evidence must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact the firm belief of (sic) conviction, without hesitancy, as to the truth of the allegations sought to be established. Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983).

61. In this proceeding, Respondent asserts that he is immune from prosecution because he acted in a corporate capacity. This contention is rejected because the standards of conduct imposed on an individual licensed as a community association manager govern that individual's conduct whether he performs community association management services as an individual or in a corporate capacity.

    
    

62. Petitioner established by clear and convincing evidence that Respondent, Robert Rosen, engaged in gross misconduct within the meaning of Rule 61B-55.007, Florida Administrative Code, and within the meaning of Section 468.436(2)(e), Florida Statutes. The record does not reflect what acts the Respondent could have or should have taken to accomplish the transfer of the subject funds after the termination of Rosen Management Service, Inc., as the agent for the six associations, but prior to Mr. Gillman's letters in May 1992. After Mr. Gillman's letters in May 1992, there was no doubt as to what Respondent should have done. His failure to execute the authorization form following repeated demand after the May 1992 letters constituted gross misconduct.

    
    

63. Pursuant to the provisions of Section 468.436, Florida Statutes, the Petitioner has the authority to suspend or revoke the Respondent's licensure for committing acts of gross misconduct in the pursuit of his profession and to impose an administrative fine not to exceed $5,000 per violation.

    
    

64. In the recommendation that follows, the undersigned has considered the large sum of money that was involved in this proceeding, the extended duration of this dispute, and the simple act required of the Respondent to authorize the transfer of the funds to the six associations. The undersigned has also considered the testimony of Sharon Malloy, which established that revocation of licensure would be consistent with Petitioner's past practices. For those reasons, the undersigned recommends that the licensure of the Respondent as a community association manager be revoked.

    
    

65. The undersigned has also considered that the Respondent has not been previously disciplined, that he executed the document necessary to turn over the accounts to the special master, and that all funds belonging to the six associations including interest were eventually returned to the associations. For those reasons, it is recommended that no administrative fine be imposed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the licensure of Robert Rosen as a community association

manager be revoked.

DONE AND ORDERED this 1st day of February 1994 in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 1st day of February 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-0344

The following rulings are made on the proposed findings of fact submitted by Petitioner.

1. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 24, 25, 28, 29, 31, 32, 33, 43 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in paragraphs 22, 30, 34, 35, 36, 37, 38, 39, 40, 41, 42, 44, 45, 46, 47, 48, 49, 50 are rejected as being subordinate to the findings made.

3. The proposed findings of fact in paragraph 23 are rejected as being unnecessary to the conclusions reached.

4. The proposed findings of fact in paragraphs 26 and 27 are adopted in part by the Recommended Order. The proposed findings in the last sentence of each paragraph are rejected as being argument as to the interpretation of written documents and unnecessary to the conclusions reached.

5. The proposed findings of fact in paragraph 36 are adopted in part by the Recommended Order, and are subordinate in part to the findings made.

6. The proposed findings of fact in paragraphs 51, 52, 53, 54 are subordinate to the conclusions reached.

The following rulings are made on the proposed findings of fact submitted by Respondent.

The following references are to paragraphs 1-14 contained in Respondent's Proposed Recommended Order in the section styled "General Findings of Fact and Conclusions of Law."

1. The conclusions in paragraph 1 are rejected as being unnecessary as findings of fact and as being contrary to the conclusions reached.

2. The proposed findings of fact and conclusions in paragraphs 2, 7, and

   10 are rejected as being contrary to the conclusions reached or as being contrary to the conclusions reached.

3. Findings of fact are made in the Recommended Order as to how the respective bank accounts were opened. The proposed findings of fact in paragraph 3 are adopted to the extent that the proposed findings are consistent with the findings made. The remainder of paragraph 3 is rejected as being contrary to the conclusions reached or to the findings made.

4. The proposed findings of fact in paragraph 4 are adopted in material part by the Recommended Order or are subordinate to the findings made.

5. Paragraph 5 consists of argument that is inappropriate as findings of fact.

6. The proposed findings of fact in paragraph 6 are adopted in material part by the Recommended Order or are subordinate to the findings made.

7. Paragraphs 7, 8 and 9 consist of argument or conclusions that are rejected as being contrary to the conclusions reached or to the findings made.

8. The proposed findings of fact in paragraph 10 are adopted in part by the Recommended Order by the findings that Rosen Management Service, Inc., authorized the transfer of the funds to the special master. The proposed findings are otherwise rejected as being contrary to the findings made.

9. Findings are made in the Recommended Order as to contacts Respondent made with the bank. The proposed findings of fact in paragraphs 11 and 12 are adopted to the extent the proposed findings are consistent with the findings made, but are otherwise rejected as being unnecessary to the conclusions reached since it was not established that Respondent's inquiries were directed toward returning the funds to the associations. The reference to December 1990 is unnecessary to the conclusions reached and apparently a misreading of the letter sent by Mr. Rodriguez to Ms. Malloy dated September 3, 1992.

10. Findings are made in the Recommended Order pertaining to the collateral litigation. The proposed findings of fact in paragraph 13 are adopted to the extent the proposed findings are consistent with the findings made, but are otherwise rejected as being contrary to the greater weight of the evidence or as being contrary to the conclusions reached. The remainder of paragraph 13 consists of argument that is rejected as being contrary to the conclusions reached or as being unnecessary to the conclusions reached.

11. Paragraph 14 consists of argument that is rejected as unnecessary as findings of fact and, in part, contrary to the conclusions reached.

The following references are to paragraphs 1-15 contained in Respondent's Proposed Recommended Order in the section styled "Findings of Fact and Conclusions of Law on Termination of Agency Issue and Other Issues Relating to Charges."

1. The proposed findings of fact in paragraphs 1, 2, 5 are adopted in material part by the Recommended Order.

2. Paragraph 3 consists of argument or conclusions that are unnecessary as findings of fact.

3. Paragraph 4 consists of argument or conclusions that are contrary to the findings or to the conclusions reached.

1. The proposed findings of fact in paragraphs 6 and 7 are adopted in part by the Recommended Order or are subordinate to the findings made. The proposed findings of fact in paragraphs 6 and 7 are rejected to the extent they are inconsistent with the findings made in the Recommended Order.

2. The proposed findings of fact in paragraph 8 are adopted in part by the Recommended Order. The remainder of paragraph 8 consists of argument that is unnecessary as findings of fact.

3. Paragraph 9 consists of argument that is unnecessary as findings of fact.

4. The proposed findings of fact in paragraph 10 are subordinate to the findings made.

5. The proposed findings of fact in paragraph 11 are rejected as being unnecessary to the conclusions reached.

6. The proposed findings of fact in paragraph 12 are adopted in part by the Recommended Order. The remainder of paragraph 12 is rejected as being unnecessary to the findings made and to the conclusions reached.

7. The proposed findings of fact contained in paragraphs 13 and 14 are either adopted by the Recommended Order or are subordinate to the findings made. The remainder of both paragraphs consists of argument that is inappropriate to incorporate as findings of fact.

8. The proposed findings of fact in Paragraph 15-1 are adopted in material part by the Recommended Order. The remainder of paragraph of paragraph

15 is rejected as being predicated on self-serving testimony that lacks credibility and is contrary to the clear and convincing evidence presented by Petitioner.

COPIES FURNISHED:

Jeanne M. L. Player, Esquire Department of Business and

Professional Regulation 725 South Bronough Street

Tallahassee, Florida 32399-1007

Franklin D. Kreutzer, Esquire

3041 Northwest 7th Street, Suite 100

Miami, Florida 33125

Henry M. Solares, Director Division of Florida Land Sales,

Condominiums and Mobile Homes 1940 North Monroe Street Tallahassee, Florida 32399-0792

Jack McRay, Acting General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 93-000344

Orders for Case No: 93-000344