FILED

Dlllllil1lJ'IMt al !ll.lliV'ltiS IM '1mt'ei.11Mil. lllllClon

Deputy Ageney Clerk

CL;"RJC; Ew:no la.waort-Proetor

o... 417/2011

File'#

S'l'ATE OF FLORIDA

DEPJ\.RTMENT OF BUSINESS AND PROfESSIONAL REGULATION

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION,

Petitioner,

v. Case No. 2010-045265

SAPP ENTERPRISES d/b/a

P & M PROPERTY SERVICES,

Respondent.

(

ADMINISTRATIVE COMPLAINT

Petitioner, DEPARTMENT OF BUSINESS AND PROFESSIONAL

REGULATION (Petitioner), files this Administrative Complaint before the Department of Business and Professional Regulation against SAPP ENTERPRISES d/b/a P & M PROPERTY SERVICES

(Respondent), and alleges:

1. Petitioner is the state agency charged with regulating the practice of community association management pursuant to Section 20.165, Florida Statutes (2008-2009), and Chaptera 455 and 468, Florida Statutes (2008-2009).

2. At all times material to this complaint, Respondent was licensed as a Co!Mlunity Association Management (CAM) Firm in the State of Florida, having been issued license number CAB 3504.

3. Respondent's address of record is 14360 South Tamiami Trail, Unit B., Fort Myers, FL 33912.

   
   

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4. Respondent provides licensed CAM Firm ::;ervices to the Timber Lake at Three oaks Homeowners' Association, Inc., (Association} . Respondent al,ao employ,a Randall Diveley and Paul Sapp as the on-site licensed CAMs to the Association.

5. Article IX, Section 1, of the Association's By-Laws (By-Laws} provide that the Association's Board of Directors shall appoint a Compliance Committee for the purpose of determining whether fines should be assessed against Owners.

6. Pursuant to the By-laws, the Cowpliance Committee shall consist of at least (3) three member:,; appointed by the Board of Directors who are not officers, directors or employees of the Association.

7. On or about June 5, 2009, an Association re,aident, Ronald Ward, was sent a letter via certified and U.S. Mail to appear before the Compliance Committee on June 24, 2009, for non-compliance with the Association's governing documents regarding removal of his hurricane shutters.

8. On or about June 24, 2009, and August 27, 2009, the Compliance Committee held hearing's on Mr. Ward's alleged non­ compliance with the Association's governing documents pursuant to Article XV, Section 5 of the Declaration of Covenants, Restrictions, Conditions and Easements of Timber Lake at Three Oaks (Declaration) and Section 720. 305(2) (a), Florida Statute:;; (2008-2009).

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9. Article IX, Section 1 of the By-Laws states that "[t]he Compliance Committee shall consist of at l-east three (3) members appointed by the Board of Directors who are not officers, directors, or employees of the Association nor the

   spouse, parent, child, brother or sister of an officer, director

   or employee of section 5(b) of

   the the

   Corporation." Additionally, Article Declaration states that the alleged

   xv,

   non-

   compliance of an Owner "shall be presented to the Compliance Committee."

10. Section 720.305(2)(a), Florida Statutes (2008), states that a fine or suspension may not be imposed against a member of an Association without notice of at least 14 days to the person sought to be fined or suspended and an opportunity for a hearing before a committee of at least three members appointed by the board who are not officers, directors, or employees of the association, or the spouse, parent, child, brother, or sister of an officer, director, or employee. If the committee, by majority vote, does not approve a proposed fine or suspension, it may not be imposed.

11, From or about June 2009 through August 2009, the Association's Compliance Committee consisted of three members: Brian Conners (Chairperson), Lisa George, and Frank Coppola.

1. At the Compliance Committee hearings held involving

   
   

   Doci.unent in Unnamed 3

   Mr. Ward on or about June 24, 2009, and August 27, 2009, only two (2) of the three (3) members of the Compliance Committee were present,

2. In 2010, the Chair of the Compliance committee, Brian Conners, asked Respondent's employee, Randa l Diveley, about the need for the Compliance Committee to have at least three members to hear each case, and was told by Mr. Diveley, •that a quorum of two was only needed."

3. At the Compliance Committee hearings held involving Mr. Ward on or about June 24, 2009, and August 27, 2009, only

   two (2) members of the compliance Cammittee were present and voted to find Mr. Ward in violation of the Association's governing documents.

4. on or about September 8, 2009, Respondent's employee, Randall Diveley, sent correspondence to Mr. Ward stating that he was found to be in violation of the Association's governing documents after a "duly called hearing of the compliance committee", and gave Mr. ward until September 30, 2009, to pay the assessed fines.

5. Mr. Ward objected to the fines assessed by the Compliance Committee based on the fact that the meetings were improperly held because only two (2) of the three (3) members were present. Accordingly, he did not pay the $1,000 fine

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levied 1.1pon his property by the Association for fail1.1re to remove his hurricane shutters.

17. Section 468,436(2) (b)(2), Florida Stat1.1tes (2008-

2009), subjects a licensee to discipline for violating any lawful order or rule rendered or adopted by the department or council.

1. Rule 61El4-2.001(4)(b), Florida Administrative Code, states that a licensee shall not knowingly fail to comply with the req1.1irements of the documents by which the association is created or operated so long as, s1.1ch docl.lffients comply with the requirements of law.

2. Rule 61El4-2.001(5), Florida Administrative Code,

states that a licensee shall not permit others, under his or the management firm's control to commit on his or the firm's behalf, acts or omissions which, if made by either licensee, would place that licensee in violation of Chapter 4551 468 Part VII, Florida Stat1.1tes or Chapter 61-20, Florida Administrative code, or other applicable statutes. A licensee shall be deemed responsible by the department for actions of all persons who perform community association manag'ement related functions under his or its supervision or control.

1. Respondent failed to maintain proper control of its

   
   

   employee, Randall Diveley, by allowing him to improperly advise the Chair of the Compliance Committee that the Committee co1.1ld

   
   

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   meet and vote with a quorum of two (2) members instead of three ( 3) members as provided for in the Association's By-Laws and Section 720.305 12) (a), l<'lorida Statutes (2008-2009).

2. Based on the facts set forth above, Respondent

violated Section 468.436(2) (b)(21, Florida Statutes (2008-2009) through a violation of Rule 61E14-2.001(51, Florida Administrative Code, by permitting an employee under its control

to violate Rule 61El4-2. 001 (4) (bl, Florida Administrative Code, by knowingly failing to comply with the requirements of the documents by which the association is created.

WHEREFORE, Petitioner respectfully requests that the Department of Business and Professional Regulation enter an order imposing one or more of the penal ties: permanent

revocation or suspension of Respondent's license, restriction of practice, imposition of an administrative fine of five thousand dollars ($ 5 1 000. 00I for each count of this complaint, issuance of a reprimand, placement of Respondent on probation subject to specified conditions, corrective action, assessment of costs related to the investigation and prosecution of the case e cluding costs associated with an attorney's time, or any other relief that the Department is authorized to impose pursuant to Chapters 455 and 468 1 Florida Statutes (2009), and the rules promulgated thereunder.

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Signed this 7th day of April, 2011.

CHARLIE LIEM, Secretary Department of Business and

Professional Regulation

By: Cris#n !£nca Wliite Cristin Erica White Assistant General Counsel Florida Bar No. 0641340

Department of Business and Professional Regulation

Office of the General Counsel 1940 N. Monroe Street, Ste.42 Tallahassee, FL 32399-2202

(850) 414-8123 Telephone

(850) 414-6749 Facsimile

PC Found: April 6, 2011

PC F'ound By: Cristin Erica White

/CEW

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NOTICE OF RIGHTS

Respondent has the right to request a hearing to be conducted in accordance with Sections 120.569 and 120.57, Florida Statutes, to be represented by counsel or other qualified representati\,e, to present evidence and argume11t, to call and cross-examine witnesses and to have subpoenas and subpoe11as duces tecl,ll[l issued on his or her behalf if a heari11g is requested. Rule 28-106.111, Florida Administrative Code, provides in part that if Respo11dent fails to request a hearing within twenty-one (21) days of receipt of an agency pleading, Respondent waives the right to request a hearing on the facts alleged.

NOTICE REGARDING ASSESSMENT OF COSTS

Respondent is placed on notice that Petitioner has incurred costs related to the investigation and prosecution of this matter. Pursuant to Sectio11 455.227 (31(a), Florida Statutes, the Board, or the Department when there is no Board, may assess costs related to the investigation and prosecutio11 of the case excluding costs associated with an attorney's time, against the Respondent in additio11 to any other discipli11e imposed.

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Docket for Case No: 11-002106