STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS ERICH NIKOROWIC Z, Petitioner, vs. Case No. 15 7236 ANTIQUERS AERODROME, INC., Respondent. _______________________________/ STEPHEN J. BYERS , Petitioner, vs. Case No. 15 7237 ANTIQUERS AEROD ROME, INC., Respondent. _______________________________/ RECOMMENDED ORDER These cases initially came before Administrative Law Judge Darren A. Schwartz of the Division of Administrative Hearings for final hearing on July 15 , 2016, in West Palm Beach, Florida. The final hearing concluded on December 1, 2016, by video teleconference with sites in West Palm Beach and Tallahassee, Florida. APPEARANCES For Petitioner Erich Nikorowic z: Donald Jo seph Thomas, Esquire Lewis and Thomas Suite 200 165 East Palmetto Park Road Boca Raton, Florida 33432 4818 For Petitioner : Stephen J. Byers , pro se 7396 Skyline Drive Delray Beach, Florida 33446 For Respondent: Keith F. Backer, Esquire Ryan D. Poliakoff, Esquire Backer, Aboud, Poliakoff, and Foelster, LLP Suite 420 400 South Dixie Highway Boca Raton, Florida 33432 STATEMENT OF THE ISSUE Whether Respondent , Antiquers Aerodrome, Inc. (ÐRespondentÑ) , properly revived its expired restrictive covenants and othe r governing documents in accordance with sections 720.403 40 7 , Florida Statutes (2015). PRELIMINARY STATEMENT On November 5, 2015, the Department of Economic Opportunity (ÐDEOÑ) approved the proposed revitalization of RespondentÓs restrictive covenants Ð a nd other governing documents. Ñ On December 8, 2015, Petitioner Erich Nikorowicz (ÐNikorowiczÑ) filed with DEO, a Petition for Administrative Proceedings, challenging DEOÓs approval of the proposed revitalization. 1/ On December 14, 2015, Petitioner Stephe n J. Byers (ÐByersÑ) filed with DEO a Petition for Administrative Proceedings, challenging DEOÓs approval of the proposed revitalization. On December 18, 2015, DEO forwarded both petition s to the Division of Administrative Hearings (ÐDOAHÑ) to assign an Administrative Law Judge to conduct the final hearing. The petition filed by Nikorowicz was assigned DOAH Case N o . 15 7236. The petition filed by Byers was assigned DOAH Case No. 15 7237. On December 29, 20 16, the undersigned entered an O rder consolidat ing Case Nos. 15 7236 and 15 7237. On December 31, 20 15, the undersigned entered an O rder setting this matter for final hearing on March 4, 2016. On February 11, 2016, Byers filed a n unopposed motion to continue the final hearing. On February 12, 2016, the undersigned entered an Order granting the motion and reset the final hearing for April 27, 2016. On April 15, 2016, Nikorowicz filed an unopposed motion to continue the final hearing. On April 26, 2016, the undersigned entered an Order granting the m otion and reset the final hearing for July 15, 2016. On July 8, 2016, Nik orowicz and Respondent filed a joint pre h earing s tipulation. On July 8, 2016, Byers filed a pre hearing s tatement. On Jul y 12, 2016, Respondent filed a supplemental p re hearing s tipulation. The hearing commenced as scheduled on July 15, 2016 , and concluded on December 1, 2016. Nikorowicz did not appear at the final hearing, but he was represented at the final hearing by his counsel, David J. Thom as . Byers testified on his own behalf and presented the additional testimony of Micha el Chinnici. ByersÓ Exhibits 1 through 41 were received in evidence based on the stipulation of the parties. Respondent did not appear at the final hearing, but it was represented at the final hearin g by its counsel, Keith F. Backer and Ryan D. Poliakoff. Respondent presented the testimony of Robert Ba keris. RespondentÓs Exhibits A through O were received in evidence based on the stipulation of the parties. The two volume final hearing Transcript was filed at DOAH on December 18, 2016. The parties timely filed proposed recommended orders, which were considered in the preparation of this Recommended Order. The partiesÓ pre hearing stipulations have been incorporated herein, to the extent indicate d below. Unless otherwise indicated, references to the Florida Statutes are to the 2015 version. FINDING S OF FACT 1. Respondent is a Florida for profit corporation that serves as the governing homeownersÓ association for the single family r esidential , Ðfly in/fly outÑ community , known as Antiquers Aerod r ome. The community consists of 37 individual parcels and a common airplane runway , located near Atlantic Avenue, east of the Florida Turnpike, in Palm Beac h County, Florida. 2. Petiti oners Nikorowicz and Byers are parcel owners in the community. 3. Byers purchased his 2.2 acre parcel in October 2014. At that time, there was a 5,000 square foot single family home, 2,000 square foot airplane hanger , and a 2,000 square foot garage on the property. Since then, Byers has had some chickens and a honeybee colony operation on his property . 4 . RespondentÓs r estrictive c ovenants were recorded in the public records of Palm Beach County at OR Book 1651, Page 151, on April 21, 1968 . The r estrictive covenants have been amended and restated from time to time. By operation of the Marketable Record Title Act (ÐMRTAÑ) , c hapter 712, Florida Statutes, the restrictive c ovenants expired April 21, 1998. 5 . Section s 720.403 407 provide the mechani sm by which a homeownersÓ association, such as Respondent , may revitalize its restrictive covenants because they expired by operation of MRTA. 6. In an effort to revitalize the expired restrictive covenants pursuant to the requirements of sections 720.4 03 407, Respondent prepared a Notice of Special Members Ó Meeting, an Agenda, a Limited Proxy , and Instructions for Completing the Limited Proxy (Ð r evitalization p ackageÑ) . The revitalization package was sent to each parcel owner on J uly 24, 2015. 7 . Th e revitalization package sent to the parcel owners failed to include RespondentÓs most recent bylaws the November 7, 2010, amended bylaws. Instead, Respondent included in the revitalization package its February 12, 1998, bylaws. 8 . By failing to incl ude the November 7, 2010, amended bylaws in the revitalization package sent to the parcel owners, Respondent failed to comply with section 720.405(3). 9 . The notice of the meeting , included within the revitalization package , contained the name , addre ss , and telephone number of each of the three member s of the revitalization organizing committee. The notice advised each parcel owner of an upcoming special membership meeting on August 15, 2015, at which time each owner would vote on the revitalization of the expired restricted covenants , either in person at the meeting or by proxy. 10 . On July 30, 2015, Peggy Preiser, as a member of the organizing committee and secretary of the Board of D irectors of Respondent, sent a follow up e mail to the parcel ow ners, reminding them of the upcoming meeting on August 15, 2015. Th is e mail reiterated the purpose of the upcoming special meeting Ðfor the purpose of voting to revitalize (restore) the AssociationÓs Restrictive Covenants and Reservations as provided by Sections 720.403 through 720.407, Florida Statutes.Ñ The e mail also reiterated that the revitalization package ha d been distributed to all parcel owners in preparation for the August 15, 2015, special meeting and vote. The e mail did not contain the name, address, and telephone number of each member of the revitalization organizing committee. 1 1 . Ms. Preiser , as a member of the organizing committee and secretary of the Board of D irectors of Respondent, also posted on July 30, 2015, a nother notice o f the special meeting at the front gate community bulletin board . Th is notice contained the same information as the e mail Ms. Preiser sent to the parcel owners on July 30, 2015. As with the e mail, the posting at the front gate did not contain the name, address, and telephone number of each member o f the revitalization organizing committee. 1 2 . The e mail sent by Ms. Preiser and the posting at the front gate were notices and documents provided by the committee to parcel owners to be affected by the prop osed revived declarations. By failing to provide the name, address, and telephone number of each revitalization committee member in the e mail and front gate notices , Respondent failed to comply with section 720.405(1). 2 / 1 3 . The special meeting was held on August 15, 2015. A quorum was present with 26 of the total 37 lots represented in person or by proxy. Byers did not attend the August 15, 2015, meeting nor did he vote by proxy. Ni k orowicz did not attend the meeting, but he voted by proxy against re vitalization of the restrictive covenants . 1 4 . A majority of 19 votes were required for the revitalization of the restrictive covenants to be approved. At the meeting, t he vote w as taken on whether the expired restrictive covenants should be revital ized. The votes were tallied w ith 22 votes for revitalization and 4 votes against revitalization. Thus, a majority of the parcel owners were in favor of revitalization of the restrictive covenants . The voting results were certified by counsel for Respon dent, revitalization of the restrictive covenants was approved, and the meeting was adjourned. 1 5 . P etitioners conten d that the following proxies counted at the August 15, 2015, meeting in favor of revitalization of the restrictive covenants were invalid because the signers were not authorized to vote on behalf of the parcel owners . Petitioners Ó position is without merit. 1 6 . John Lumley and Carol Lumley signed a proxy. Pursuant to a quit claim deed, they are trustees of the Carl J. Lumley Revocable Trust dated May 31, 2005 , which owns the parcel. As trustees of the trust, John Lumley and Carol Lumley were authorized to sign the proxy. 1 7 . Mayda Balboa signed a proxy. Pursuant to a warranty deed, she is the trustee of the Daoud Family Irre vocable Trust, dated May 19, 2014, which owns the parcel. As trustee of the trust, Mayda Balboa was authorized to sign the proxy. 1 8 . Shireen Bower and William Bower signed a proxy. Pursuant to a quit claim deed, they are trustees of the William and Shireen Bo wer Trust, dated 2/22/2002, which owns the parcel. As trustees of the t rust, William and Shireen Bower were authorized to sign the proxy. 1 9 . Mike Blake signed two proxies . Pursuant to a warranty deed, he is the trustee of the Mike Blake Revocable Trus t under Agreement dated December 22, 1997 , which owns the parcel s . As trustee of the trust, Mike Blake was authorized to sign the prox ies . 20 . Cecilia A. Walsh signed a proxy. She is a managing member of 6814 Skyline, LLC, which owns the parcel. As a managing member, Cecilia A. Walsh was authorized to sign the proxy. 2 1 . Daniel Lunk signed a proxy. Pursuant to a warranty deed, he is the trustee of the Daniel Junk Trust Under Agreement dated July 26, 2013 , which owns the parcel. As the trus tee of the trust, Daniel Lunk was authorized to sign the proxy. 2 2 . Luis Claudia Maia Ferreira and Elaine Lignelli signed a proxy. Pursuant to a warranty deed, Luiz Claudia Maia Ferreira is the trustee of the Elaine Lignelli Irrevocable Trust dated September 28, 2012, which owns the parcel . As a trustee of the trust, Luiz Claudia Maia Ferreira had authority to sign the proxy. 2 3 . After achieving a majority vote in favor of revitalization of the restrictive covenants, Respondent submitted a package to DEO on September 28, 2015, seeking approval of the revitalization of the restrictive covenants (ÐDEO packageÑ). 2 4 . The DEO package contained an affidavit executed by Ms. Preiser, as an organizing committee member and secretary of Respondent. The a ffidavit purported to comply with the requirements of section s 720.406(1)(a) through (f). 2 5 . The DEO package contained the full text of the proposed revived restrictive covenants , including any amendments thereto. 2 6 . The DEO package contained the Cer tificate of Incorporation of Respondent, together with any amendments thereto. 2 7 . The DEO package contained a graphic depiction of the affected properties in the community, and a legal description of each parcel and the affected properties within the c ommunity. 2 8 . The DEO package contained verification of: a) the written consents of the requisite number of the affected parcel owners approving the revived declaration; b) a Notice of Special MembersÓ meeting; and c) attendance and voting results. 2 9 . The DEO package contained the February 12, 1998, bylaws. 30 . The DEO package did not contain the November 7, 2010, amended bylaws. 3 1 . The November 7, 2010, amended bylaws were the current and relevant bylaws of Respondent and governed Respondent in 2015, before and after the submittal of the revitalization package and DEO package. 3 / 3 2 . By failing to include the November 7, 2010, amended bylaws in the DEO package, Respondent failed to comply with section 720.406(1)(b). 3 3 . In sum, the revitalizati on and DEO package s were deficient because they failed to contain all of the required documents , namely, the November 7, 2010, amended bylaws . The e mail and front gate notices prepared by Ms. Preiser were also deficient because they failed to contain th e name, address , and telephone number of each org anization committee member. 4 / 3 4 . On November 5, 2015, DEO approved the revitalization of the restrictive covenants Ð and other governing documents. Ñ 3 5 . The revitalized restrictive covenants were recorde d in the public records of Palm Beach County, Florida, at OR Book 27945, Page 1431, on November 23, 2015. CONCLUSIONS OF LAW 3 6 . DOAH has jurisdiction over the parties to and subject matter of this proceeding pursuant to sect ions 120.569 and 120.57(1), F lorida Stat utes . 3 7 . Petitioners have the burden of proving their claims by a preponderance of the evidence. Fla. DepÓt of Transp. v . J.W.C., Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981). 3 8 . The Florida Legislature enacted MRTA over 50 years ago in or der to simplify and facilitate land transactions. Matissek v. Waller , 51 So. 3d 625, 628 (Fla. 5th DCA 2011). Notably, section 712.10 , Florida Statutues , expressly provides that MRTA : s hall be liberally construed to effect the legislative purpose of sim plifying and facilitating land title transactions by allowing persons to rely on a record title as described in s. 712.02 subject only to such limitations as appear in s. 712.03. 3 9 . Section 712.02 provides, in pertinent part: Any person having the lega l capacity to own land in this state, who, alone or together with her or his predecessors in title, has been vested with any estate in land of record for 30 years or more, shall have a marketable record title to such estate in said land, which shall be fre e and clear of all claims except the matters set forth as exceptions to marketability in s. 712.03. 40 . In essence, restrictive covenants cease to be effective as to lots governed by the restrictive covenants 30 years after said restrictive coven ants have been referenced in a deed that burdens each lot. Bylaws, which are not interests in real property and do not run with the land, are not extinguished by MRTA. Cirelli v. Ent. , 885 So. 2d 423 , 432 (Fla. 5th DCA 2004)(recognizing that ÐMRTA only e xtinguishes interests in real property. Ñ ). 4 1 . As detailed above, Respondent concedes that the restrictive covenants expired by operation of MRTA and were not timely preserved pursuant to MRTA . 4 2 . If MRTA extinguishes a communityÓs restrict ive covenants, Respondent may attempt to utilize the procedures set forth in chapter 720, part III (s ections 720.403 407), to revive the expired restrictive covenants. 5 / 4 3 . To effectuate this legislative purpose, section 720.403 provides: ( 1) Cons istent with required and optional elements of local comprehensive plans and other applicable provisions of the Community Planning Act, homeowners are encouraged to preserve existing residential communities, promote available and affordable housing, protect structural and aesthetic elements of their residential community, and, as applicable, maintain roads and streets, easements, water and sewer systems, utilities, drainage improvements, conservation and open areas, recreational amenities, and other infrastr ucture and common areas that serve and support the residential community by the revival of a previous declaration of covenants and other governing documents that may have ceased to govern some or all parcels in the community. (2) In order to preserve a residential community and the associated infrastructure and common areas for the purposes described in this section, the parcel owners in a community that was previously subject to a declaration of covenants that has ceased to govern one or more parcels in the community may revive the declaration and the homeownersÓ association for the community upon approval by the parcel owners to be governed thereby as provided in this act, and upon approval of the declaration and the other governing documents for the as sociation by the Department of Economic Opportunity in a manner consistent with this act. 4 4 . Section 720.404 further provides as follows: 720.404 Eligible residential communities; requireme nts for revival of declaration. Parcel owners in a community are eligible to seek approval from the Department of Economic Opportunity to revive a declaration of covenants under this act if all of the following requirements are met: (1) All parcels to be governed by the revived declaration must have been once gov erned by a previous declaration that has ceased to govern some or all of the parcels in the community; (2) The revived declaration must be approved in the manner provided in s. 720.405(6); and (3) The revived declaration may not contain covenants that are more restrictive on the parcel owners than the covenants contained in the previous declaration, except that the declaration may: (a) Have an effective term of longer duration than the term of the previous declaration; (b) Omit restrictions cont ained in the previous declaration; (c) Govern fewer than all of the parcels governed by the previous declaration; (d) Provide for amendments to the declaration and other governing documents; and (e) Contain provisions required by this chapter for ne w declarations that were not contained in the previous declaration. 4 5 . Section 720.405 describes the proce dure and documents required to be provided to the parcel owners in order to obtain parcel owner approval with respect to the r eviv al of expired restrictive covenants. Section 720.405 provides as follows: 720.405 Organizing committee; parcel owner approval. ( 1) The proposal to revive a declaration of covenants and a homeownersÓ association for a community under the terms of this act shall be initiated by an organizing committee consisting of not less than three parcel owners located in the community that is proposed to be governed by the revived declaration. The name, address, and telephone number of each member of the organizing committee mu st be included in any notice or other document provided by the committee to parcel owners to be affected by the proposed revived declaration. (2) The organizing committee shall prepare or cause to be prepared the complete text of the proposed revised d eclaration of covenants to be submitted to the parcel owners for approval. The proposed revived documents must identify each parcel that is to be subject to the governing documents by its legal description, and by the name of the parcel owner or the perso n in whose name the parcel is assessed on the last completed tax assessment roll of the county at the time when the proposed revived declaration is submitted for approval by the parcel owners. ( 3) The organizing committee shall prepare the full text of the proposed articles of incorporation and bylaws of the revived homeownersÓ association to be submitted to the parcel owners for approval, unless the association is then an existing corporation, in which case the organizing committee shall prepare the exi sting articles of incorporation and bylaws to be submitted to the parcel owners . (4) The proposed revived declaration and other governing documents for the community shall: (a) Provide that the voting interest of each parcel owner shall be the same a s the voting interest of the parcel owner under the previous governing documents; (b) Provide that the proportional assessment obligations of each parcel owner shall be the same as proportional assessment obligations of the parcel owner under the previo us governing documents; (c) Contain the same respective amendment provisions as the previous governing documents or, if there were no amendment provisions in the previous governing document, amendment provisions that require approval of not less than tw o thirds of the affected parcel owners; (d) Contain no covenants that are more restrictive on the affected parcel owners than the covenants contained in the previous governing documents, except as permitted under s. 720.404(3); and (e) Comply with th e other requirements for a declaration of covenants and other governing documents as specified in this chapter. (5) A copy of the complete text of the proposed revived declaration of covenants, the proposed new or existing articles of incorporation and b ylaws of the homeownersÓ association, and a graphic depiction of the property to be governed by the revived declaration shall be presented to all of the affected parcel owners by mail or hand delivery not less than 14 days before the time that the consent of the affected parcel owners to the proposed governing documents is sought by the organizing committee. (6) A majority of the affected parcel owners must agree in writing to the revived declaration of covenants and governing documents of the homeowners Ó association or approve the revived declaration and governing documents by a vote at a meeting of the affected parcel owners noticed and conducted in the manner prescribed by s. 720.306. Proof of notice of the meeting to all affected owners of the meetin g and the minutes of the meeting recording the votes of the property owners shall be certified by a court reporter or an attorney licensed to practice in this state. 4 6 . Section 720.406 describes the procedure and documents required to be submitted t o DEO in order to revive expired restrictive covenants. Section 720.406 provides as follows: 720.406 Department of Economic Opportunity; submission; review and determination. Ï ( 1) No later than 60 days after the date the proposed revived declaration and other governing documents are approved by the affected parcel owners, the organizing committee or it s designee must submit the proposed revived governing documents and supporting materials to the Department of Economic Opportunity to review and determine whether to approve or disapprove of the proposal to preserve the residential community. The submissi on to the department must include: (a) The full text of the proposed revived declaration of covenants and articles of incorporation and bylaws of the homeownersÓ association; (b) A verified copy of the previous declaration of covenants and other previo us governing documents for the community, including any amendments thereto; (c) The legal description of each parcel to be subject to the revived declaration and other governing documents and a plat or other graphic depiction of the affected properties i n the community; (d) A verified copy of the written consents of the requisite number of the affected parcel owners approving the revived declaration and other governing documents or, if approval was obtained by a vote at a meeting of affected parcel owne rs, verified copies of the notice of the meeting, attendance, and voting results; (e) An affidavit by a current or former officer of the association or by a member of the organizing committee verifying that the requirements for the revived declaration se t forth in s. 720.404 have been satisfied; and (f) Such other documentation that the organizing committee belie ves is supportive of the policy of preserving the residential community and operating, managing, and maintaining the infrastructure, aesthetic character, and common areas serving the residential community. (2) No later than 60 days after receiving the su bmission, the department must determine whether the proposed revived declaration of covenants and other governing documents comply with the requirements of this act. (a) If the department determines that the proposed revived declaration and other governin g documents comply with the act and have been approved by the parcel owners as required by this act, the department shall notify the organizing committee in writing of its approval. (b) If the department determines that the proposed revived declaration a nd other governing documents do not comply with this act or have not been approved as required by this act, the department shall notify the organizing committee in writing that it does not approve the governing documents and shall state the reasons for the disapproval. 47. T he relevant statutory provisions are clear and unambiguous. Section 720.405(3) expressly requires, in pertinent part, that Ðthe full text of the proposed articles of incorporation and bylaws of the revived homeownersÓ association . . . be submitted to the parcel owners for approval. Ñ Section 720.406(1)(b) expressly require s that the submission to DEO must include a verified copy of the previous declaration of covenants and other previous governing documents for the community, includi ng any amendments thereto. The phrase Ðgoverning documentsÑ means : (a) The recorded declaration of covenants for a community and all duly adopted and recorded amendments, supplements, and recorded exhibits thereto; (b) The articles of incorporation and bylaws of the homeownersÓ association and any duly adopted amendments thereto; and (c) Rules and regulations adopted under the authority of the recorded declaration, articles of incorporation, or bylaws and duly adopted amendments thereto. § § 720.301( 8 )(a) (c), Fla. Stat. 48. Section 720.405(1) expressly requires that: [Ð t ] he name, address, and telephone number of each member of the organizing committee must be included in any notice or other document provided by the committee to parcel owners to be a ffected by the proposed revived declaration. Ñ 4 9 . As detailed above, Respondent complied with m any of the requirements of 720.403 407. Respondent obtained a majority of votes in favor of revitalization at the August 15, 2015, meeting. 6 / Respondent pro vided virtually all of the required documents to the parcel owners and DEO. However, Respondent failed to comply with sections 720.405(3) and 720.406(1)(b) by not including the November 7, 2010, amended bylaws in the revitalization package and DEO package . Respondent also violated section 720.405(1) by failing to provide the name, address, and telephone number of each revitalization committee member in the e mail and front gate posting. 7 / 5 0 . It is not the prerogative of the undersigned to construe the u nambiguous language of statutes differently from the plain language of the words employed. Nor is the wisdom of the statutes within the ambit of the undersignedÓs authority. Wright v. City of Miami Gardens , 200 So. 3d 765, 773 774 (Fla. 2016). An admini strative agency simply cannot interpret a statute in a fashion which would result in the provision being voided by administrative fiat. DepÓt of Educ . v. Educ. Charter Found. of Fla. Inc. , 177 So. 3d 1036, 1039 (Fla. 1st DCA 2015). To excuse RespondentÓs actions in this case in failing to submit all of the required documents in the revitalization package and DEO package and not includ ing all of the information in the required notices, would amount to an administrative waiver of the statutory requirements. 8 / RECOMMENDATION Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a Final Order disapproving the revitalization of RespondentÓs expired restrictive covenants and other governing documents. DONE AND ENTERED this 24th day of February , 2017 , in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Ap alachee Parkway Tallahassee, Florida 32399 3060 (850) 488 9675 Fax Filing (850) 921 6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of February , 2017 . ENDNOTE S 1/ The previous style of this case mistakenly identified Petitioner Nikorowicz as Nikorowiez. 2 / RespondentÓs contention that Ms. Preiser sent the e mail and posted the notice at the gate in her capacity as secretary of Respondent, only, and not as a n organizing committee member, is not credited and is rejected as unpersuasive. 3 / The 1998 bylaws were not extinguished by MRTA. 4 / Notably, there are only two differences between the February 12, 1998, bylaws and the November 7, 2010, amended bylaws. The 1998 bylaws provided that t he annual meeting shall be held on the third Sunday of November. If that date fell on a legal holiday, then the meeting would be held on the following Sunday. The 2010 amended bylaws provide that the annual meeting is changed from the third Sunday of Nov ember to the first Sunday in November. The 2010 amended bylaws provide that dissolution of Respondent and/or the airport operations it sup ports will only occur with a 91 percent vote of the shareholders of Respondent at a properly called and notice d meeting for that expressed purpose. The 1998 bylaws did not address this issue. 5 / MRTA defines a Ðhomeowners Ó associationÑ to mean a homeownersÓ association as defined in section 720.301, or an association of parcel owners which is authorized to enfor ce use restrictions that are imposed on the parcels. § 712.01(4), Fla. Stat. As detailed above, Respondent is a homeowners Ó association pursuant to this definition. 6 / A trustee is authorized to vote on behalf of a trust which owns real property. § § 689.073(1) and 736.0816 , Fla. Stat. A member of a limited liability company (ÐLLCÑ) is also authorized to vote on behalf of the LLC. § 605.04073, Fla. Stat. 7 / Notably, even if the 1998 bylaws were extinguished by MRTA (which they were not), the u nambiguous and plain language of the applicable statutory provisions required that Respondent include the amended 2010 bylaws in the revitalization package and DEO package. 8 / Petitioners contended for the first time at hearing, and subsequently in t heir proposed recommended orders, that because the vote at the meeting and pre meeting notices did not refer specifically to a proposed revitalization of any documents other than the expired restrictive covenants, t hat DEO improperly granted RespondentÓs r equest to revitalize the revised restrictive covenants Ðand other governing documents.Ñ Although Petitioners are factually correct that the vote and pre meeting notices did not refer specifically to a proposed revitalization of any documents other than th e expired restrictive covenants , Petitioners waived this argument by failing to allege it in their petitions or in their pre hearing stipulations/statement. Moreover, Petitioners never requested leave to amend their petitions to assert this issue. Holmes v. Mernah , 427 So. 2d 378, 379 (Fla. 4th DCA 1983). ByersÓ argument that his property is exempt from revitalization pursuant to the Florida Right to Farm Act is rejected. The Florida Right to Farm Act , section 823.14, Florida Statutes, prohibits local government regulation that conflicts with farming activities. The Florida Right to Farm Act has no application to the instant administrative proceeding. Wilson v. Palm Beach Co. , 62 So. 3d 1247 (Fla. 4th DCA 2011). In any event, because the undersigned h as determined that revitalization must fail for the reasons stated above, it is unnecessary to specifically address all of PetitionersÓ other arguments against revitalization. However, the undersigned has considered PetitionersÓ other arg uments , and they are all rejected as without merit. COPIES FURNISHED: Ryan D. Poliakoff, Esquire Backer, Aboud, Poliakoff, and Foelster, LLP Suite 420 400 South Dixie Highway Boca Raton, Florida 33432 (eServed) Stephen J. Byers 7396 Skyline Drive De lray Beach, Florida 33446 (eServed) Donald Joseph Thomas, Esquire Lewis and Thomas Suite 200 165 East Palmetto Park Road Boca Raton, Florida 33432 4818 (eServed) Katie Zimmer, Agency Clerk Department of Economic Opportunity Caldwell Building 107 East M adison Street Tallahassee, Florida 32399 4128 (eServed) James W. Poppell, General Counsel Department of Economic Opportunity Caldwell Building , MSC 110 107 East Madison Street Tallahassee, Florida 32399 4128 (eServed) Cissy Proctor, Executive Director Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399 4128 (eServed) NOTICE OF RIGHT TO SUBMIT EXCEPTIONS All parties have the right to submit written exceptions within 15 days from the date of 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: 15-007236

Orders for Case No: 15-007236