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STATE OF FLORIDA

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION,

Petitioner,

v. Case No. 2010-045223

RANDALL ALLEN DIVELEY,

     Respondent. /

ADMINIS'l'RATIVE COMPLAINT

Petitioner, DEPARTMENT OF BUSINESS AND PROFESSIONAL

REGULATION (Petitioner), files this Administrative Complaint before the Department of Business and Professional Regulation against RANDALL ALLEN DIVELEY (Respondent) 1 and alleges:

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

2. At all times material to this complaint, Respondent was licensed as a Community Association Manager (CJ\Ml in the State of Florida, having been issued license number CAM 27985.

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

4. Respondent is employed by Sapp Enterpises d/b/a P & M Property services and provides CAM services to the '.I'imber Lake

   
   

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   at Three Oaks Homeowners' Association, Inc., (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 Compliance Committee shall consist of at least (3) three members 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 resident, Ronald Ward, was sent a letter via certified and U.s. Mail to appear before the Compliance Committee an June 24, 2009, for non-compliance wi.th the Association's governing documents regarding removal of his hurricane shutters.

8. On or about June 24, 2009, and August 27, 2009, the Compliance Cammi ttee held hearings 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 Statutes (2008-2009).

9. Article IX, Section 1 of the By-Laws states that "[t]he Compliance ColilJilittee shall consist of at least three (3) members appointed by the Board of Directors who are not

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   officers, directors, or employees of the Association nor the spouse, parent, child, brother or sister of an officer, director

   or employee Section 5(bl

   of the Corporation." Additionally, Article XV, of the Declaration states that the alleged 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 coromittee, 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.

12. At the Compliance Committee hearings held involving 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 preiaent.

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13. In 2010, the Chair of the Compliance Committee, Brian ConPers, asked RespopdePt about the need for the CompliaPce Cornrni ttee to have at least three members to hear each case, and was told by RespondePt "that a quorum of two was only needed."

14. At the Compliapce committee hearings held tnvolving Mr. Ward on or about June 24, 2009, and l\.ugust 27, 2009, only

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

15. On or about September 8, 2009, Respondent sent correspondence to Mr. Ward 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.

16. 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 levied upon his property by the Association for failure to remove his hurricane shutters.

17. Section 468,436(2)(bl (2), Florida statutes (2008- 2009), subjects a licensee to discipline for violating any lawful order or rule rendered or adopted by the department or council.

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18. Rule 61El4-2.001 (4) (b)1 Florid.a Administrative Cod.e, states that a licensee shall not knowingly fail to comply with the requirements of the documents by which the association is created or operated so long as such documents comply with the requirements of law.

19. Respondent failed to comply with the requirements of the documents by which the association is created by advising the Chair of the Compliance Comn1ittee that the Committee could 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(2) (a), Florid.a Statutes (2008-2009).

    
    

20. 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 (4) (b), Florida Administrative Code, by failing to comply with the requirements of the documents by which the association is created.

WHERE ORE, 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, 000,00} for each count of this complaint, issuance of a reprimand, placement of Respondent on probation subject to specified. conditions, corrective action, assessment of costs

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related to the investigation and prosecution of the case excluding costs associated with an attorney's time, or any other relief that the Department is authorized to impose pursuant to Chapters 455 and 468, Florida Statutes (2009), and the rules

promulgated thereunder.

Signed this 7'" day of April, 2011.

CHARLIE LIEM, secretary Department of Business and

Professional Regulation

By: Cristin (£rica Wnite 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 Found By: Cristin Erica White

/CEW

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NOTICE OF RIGHTS

Respondent has the right to i::equest a hearing to be

conducted Florida

in accordance statutes, to be

with Sections represented

120.569 and by counsel or

120.57,

other

qualified representative, to present evidence and argument, to call and cross-examine witnesses and to have subpoenas and subpoenas duces tecum issued on his or her behalf if a hearing is requested. Rule 28-106.111, Florida Administrative Code, provides in part that if Respondent 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 incui::red costs related to the investigation and prosecution of this matter. Pursuant to Section 455.227(3)(a), Florid.a Statutes, the Board, or the Department when there is no Board, may assess costs related to the investigation and prosecution of the case excluding costs associated with an attorney's time, against the Respondent in addition to any other discipline imposed.

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Docket for Case No: 11-002107PL