STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 83-1328

)

FIRST FEDERAL SAVINGS AND ) LOAN ASSOCIATION OF SEMINOLE ) COUNTY (TUSCANY PLACE )

CONDOMINIUM) )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for consideration before the Hearing Officer pursuant to a Stipulation as to Facts entered into between Petitioner and Respondent, and upon the filing of legal memoranda by counsel for each of the parties.

APPEARANCES

For Petitioner: Helen C. Ellis, Esquire

725 South Bronough Street Tallahassee, Florida 32301

For Respondent: Philip H. Logan, Esquire

Post Office Box 2279 Sanford, Florida 32771

Both Petitioner and Respondent have waived the requirement of a formal hearing in this proceeding. In lieu thereof, counsel for the parties have executed and filed with the Hearing Officer a Stipulation as to Facts, which will be hereinafter set forth in its entirety. In addition, the Stipulation as to Facts will be marked by the Hearing Officer as Hearing Officer's Exhibit No. 1, and forwarded to the agency head with a copy of this Recommended Order.

FINDINGS OF FACT

1. The parties to this proceeding have stipulated to the correctness of the following facts:

   
   

2. Respondent filed a Consent and Joinder simultaneously with the Declaration of Tuscany Place, a condominium, which was recorded in Official Records Dock 1281, Page 1833, Public Records of Seminole County, Florida, and was filed with the Division of Florida Land Sales and Condominiums under I.D. #80 CN5742.

3. Respondent accepted deeds in lieu of foreclosure from the Developer, Goehring Development Corp., under paragraph number 16.5 of the Declaration of Condominiums which deeds were dated May 10 and May 12, 1982, and recorded in Official Records Book of Seminole County, Florida. (Copies of the deeds are attached [to the Stipulation as to Facts] and are self-explanatory.)

   
   

4. Respondent sold Unit 16-E to Huey M. Napier. All remaining units were sold to Larry J. Whittle on January 31, 1983. Copies of contracts for the two purchases are attached [to the Stipulation as to Facts].

   
   

5. The term "developer" was defined in paragraph 21.7 of the Condominium Declaration and was approved for filing by the Division including the provision that any successor or alternate developer must indicate its consent to be treated as the developer.

   
   

6. Respondent attempted to comply with oral and written communications from the Division as to the regulation relating to "Subsequent Developer," as Respondent could not locate Statutes or Division Rules requiring Subsequent Developer filing. Copies of letters from the Division are attached [to the Stipulation as to Facts].

   
   

7. Respondent admits the sales described above, but denies any liability under Statutes or Rules as a matter of Law.

   
   

8. The above-numbered paragraphs constitute the facts stipulated between the parties. Attached to the parties' stipulation are a series of documents. These documents establish that the aforementioned sale from Respondent to Huey

   M. Napier occurred on or about October 22, 1982. This sale involved a single condominium unit. The remaining ten units obtained by Respondent from the original developer by virtue of a deed in lieu of foreclosure were sold on or about January 4, 1983.

   
   

9. On or about November 29, 1982, representatives of Petitioner warned Respondent's counsel that failure to file as a second developer with Petitioner in accordance with Section 718.502, Florida Statutes, would place Respondent in violation of that law.

   
   

10. Respondent subsequently filed with Petitioner in accordance with the requirements of Section 718.502, Florida Statutes, on or about January 14, 1983.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

12. Section 718.502, Florida Statutes, provides, in pertinent part, as follows:

    
    

    1. A developer of a residential condominium shall file with the division one copy of each of the documents and items required to be furnished to a buyer or lessee by ss. 718.503 and 718.504, if applicable. Until the developer has so filed, a contract for sale or lease of

       a unit for more than 5 years shall be

       voidable by the purchaser or lessee prior to the closing of his purchase or lease of a unit.

       (2)(a) Prior to filing as required by subsection (1), a developer shall not offer a contract for purchase or lease of a unit for more than 5 years

       . . . .

13. Rule 7D-17.01(3), Florida Administrative Code, provides as follows: Upon receipt of a developer's filing,

    the Division will take action pursuant to these rules. During the examination period, offerings to the public may be made pur- suant to the statute and these rules.

    Until the developer prepares and delivers to a purchaser and the Division documents that comply with the Condominium Act and these rules and the Division notifies the developer that the filing is proper or

    is presumed proper pursuant to Rule

    7D-17.05, Florida Administrative Code, the developer shall not close on any con- tract for sale or contract for a lease period of more than 5 years.

    
    

14. Section 718.103(13), Florida Statutes, defines the term "developer" as ". . . a person who creates a condominium or offers condominium parcels for sale or lease in the ordinary course of business. "

    
    

15. Section 718.501(1)(d)4, Florida Statutes, authorizes Petitioner to:

    
    

    . . . impose a civil penalty against a developer . . . or its assignee or agent, for any violation of this chapter or a rule promulgated pursuant hereto. A penalty may be imposed on the basis of each day of continuing violation, but

    in no event shall the penalty for any offense exceed S5,000. . . .

    
    

16. Based upon the foregoing Findings of Fact and the above-cited statutes and rule provisions, it is concluded, as a matter of law, that Respondent is a "developer" within the meaning of Section 718.103(13), Florida Statutes, and was therefore obligated to comply with the requirements of Section 718.502, Florida Statutes. It is further concluded that Respondent violated the provisions of Section 718.502(2)(a), Florida Statutes, and Rule 7D-17.01,(3), Florida Administrative Code, by selling a fee simple interest in the condominium units it obtained by deed in lieu of foreclosure prior to the required filing with the Division of Florida Land Sales and Condominiums. In determining the appropriate penalty to be assessed against Respondent, the Hearing Officer has taken into consideration that Respondent engaged in the sale of ten condominium units after having received notification from Respondent that in so doing it would be in violation of the above-cited law. Accordingly, it is

RECOMMENDED that a Final Order be entered by the Department of Business Regulation, Division of Florida Land Sales and Condominiums, finding Respondent in violation of Section 718.502(2)(a), Florida Statutes, and Rule 7D-17.01(3) Florida Administrative Code, and assessing a civil penalty against Respondent in the amount of two thousand five hundred dollars ($2,500).

DONE AND ENTERED this 14th day of March, 1984, at Tallahassee, Florida.

WILLIAM E. WILLIAMS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 14th day of March, 1984.

COPIES FURNISHED:

Helen C. Ellis, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

Philip H. Logan, Esquire Post Office Box 2279 Sanford, Florida 32771

1. James Kearney, Director Division of Florida Land Sales

   and Condominiums

   Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

   
   

   Gary R. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

   HEARING OFFICER'S EXHIBIT 1

   
   

   DEPARTMENT OF BUSINESS REGULATION DIVISION OF FLORIDA LAND SALES AND CONDOMINIUMS

   
   

   DEPARTMENT OF BUSINESS REGULATION, DIVISION OF FLORIDA LAND SALES AND CONDOMINIUMS,

   
   

   Petitioner,

   
   

   vs. CASE NO. 83-1328

   
   

   FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF SEMINOLE COUNTY, (TUSCANY PLACE CONDOMINIUM),

   
   

   Respondent.

   /

   
   

   STIPULATION AS TO FACTS

   
   

   Petitioner, DEPARTMENT OF BUSINESS REGULATION, DIVISION OF FLORIDA LAND SALES AND CONDOMINIUMS, and Respondent, FIRST FEDERAL SAVINGS AND LOAN

   ASSOCIATION OF SEMINOLE COUNTY, pursuant to Notice of Hearing and Order in the captioned cause, hereby stipulate to the correctness of the following facts:

   
   

   1. Respondent filed a Consent and Joinder simultaneously with the Declaration of Tuscany Place, a Condominium which was recorded in Official Records Book 1281, Page 1833, Public Records of Seminole County, Florida, and was filed with the Division of Florida Land Sales and Condominiums under I.D. #80 CN5742.

      
      

   2. Respondent accepted deeds in lieu of foreclosure from the Developer, GOEHRING DEVELOPMENT CORP. under paragraph 16.5 of the Declaration of Condominium which deeds were dated May 10, and May 12, 1982, and recorded in the Official Records Book of Seminole County, Florida. (Copies of the deeds are attached and are self explanatory.)

      
      

   3. Respondent sold Unit 16-E to HUEY M. NAPIER. All remaining units were sold to LARRY J. WHITTLE on January 31, 1983. Copies of contracts for the two purchases are attached hereto.

      
      

   4. The term "Developer" was defined in paragraph 21.7 of the Condominium Declaration and was approved for filing by the Division including the provision that any successor or alternate Developer must indicate its consent to be treated as the Developer.

      
      

   5. Respondent attempted to comply with oral and written communications from the Division as to the regulations relating to "Subsequent Developer", as Respondent could not locate Statutes or Division Rules requiring Subsequent Developer filing. Copies of letters from the Division are attached herein.

   6. Respondent admits the sales described above, but denies any liability under the Statutes or Rules as a matter of Law.

PHILIP H. LOGAN, ESQ. SHINHOLSHER, LOGAN, MONGRUDER AND BARNS

Post Office Box 2279 Sanford, Florida 32771 Attorneys for Respondent (305) 323-3660

Helen C. Ellis, Staff Attorney

Dept. of Business Regulation Tallahassee, Florida 32301 Attorney for Petitioner

Docket for Case No: 83-001328

Orders for Case No: 83-001328