The Issue This case concerns the issue of whether the Respondent offered condominium units for sale to the public and offered contracts for sale of those units in violation of Section 718.502(2)(a), Florida Statutes. The Respondent is charged with having offered units for sale and offered contracts prior to the time of filing the required condominium documents with the Division of Florida Land Sales and Condominiums as required by Section 718.502 and the rules promulgated thereunder. At the formal hearing, Petitioner called as its witness Luis Stabinski, an officer and 50 percent owner of the Respondent corporation. The Petitioner also presented testimony by the deposition of Luis Stabinski, which was entered into evidence as Petitioner's Exhibit 1, and the deposition of Paul Scherman, which was admitted into evidence as petitioner's Exhibit 2. Petitioner's Exhibit 3 was a deposition of William Hirsch, an investigator for the Department of Business Regulation. There was an objection made to the admissibility of the deposition of Mr. Hirsch by the Respondent on the grounds that Mr. Hirsch had previously investigated a prior development in which the owners and officers of Finst Development, Inc. were involved. The undersigned Hearing Officer took that objection under advisement and after having reviewed the deposition, overrules the objection and admits Petitioner's Exhibit 3, the deposition of William Hirsch. Petitioner also offered and had admitted Petitioner's Exhibits 4 - 9. Mr. Luis Stabinski was also called as a witness by the Respondent in the Respondent's case-in-chief. Respondent did not offer any exhibits into evidence. Counsel for the Petitioner and for the Respondent submitted proposed findings of fact and conclusions of law for consideration by the Hearing Officer. To the extent that those proposed findings of fact and conclusions of law are not adopted herein, they were considered by the undersigned Hearing Officer and determined to be irrelevant to the issues in this cause or not supported by the evidence.
Findings Of Fact Based upon a stipulation between Petitioner and Respondent, the following facts (a) through (b) are found: The condominium development which is the subject of this action is named Indian Creek Club and Marina Condominium North. Twenty-eight (28) contracts, other than Petitioner's Exhibit 8, for the purchase of units in the Indian Creek Club and Marina Condominium North bear dates or are dated by their terms prior to September 25, 1981. The Indian Creek Club and Marina Condominium North contains 52 units and was developed by the Respondent, Finst Development, Inc. Finst Development, Inc., is a Florida corporation for profit and is owned in equal shares by Mr. Luis Stabinski and Mr. Richard Finvarb. Mr. Finvarb was president of the corporation and Mr. Stabinski served as vice- president and secretary. On September 25, 1981, the Respondent, Finst Development, Inc., filed the following items with the Department of Business Regulation, the Division of Florida Land Sales and Condominiums: Condominium documents for Indian Creek Club and Marina Condominium North. Condominium filing statement. Condominium filing checklist. Check in the sum of $520.00, representing filing fee for the above-referenced condominium project. The Declaration of Condominium was executed by Richard Finvarb and Luis Stabinski on September 30, 1980. The Articles of Incorporation of Indian Creek Club and Marina Condominium Association North, Inc., were executed by Richard Finvarb, Bell Stabinski, and Luis Stabinski on August 12, 1981. The bylaws for Indian Creek Club and Marina Condominium North were executed on August 12, 1981. Each of these three documents is part of the required filing which was filed on September 25, 1981. On December 9, 1981, the Respondent was notified by Petitioner that the review of the documents filed by the Respondent in connection with Indian Creek Club and Marina Condominium North was complete. That notice also informed Respondent that the documents were considered proper for filing purposes and the developer "may close on contracts for sale or lease for a lease period of more than five years." (See Petitioner's Composite Exhibit 6.) Upon the insistence of Mr. Stabinski, his law firm, Stabinski, Funt, Levine, and Vega, P.A., did all the legal work in connection with the condominium. Specifically, Mr. Paul Scherman, an associate and employee of the firm, did the legal work for the condominium. Mr. Scherman worked under the direct supervision of Mr. Stabinski. Prior to the filing of the condominium documents on September 25, 1981, the fifty-two (52) units of the condominium were offered for ale to the public. Contracts for the purchase and sale of units in the condominium were also offered to the public. Prior to filing the condominium documents on September 25, 1981, the Respondent entered into 29 contracts for the purchase and sale of units in Indian Creek Club and Marina Condominium North. There were no closings held on any units prior to approval of the condominium documents by the Department. During the construction and sale of units in Indian Creek Club and Marina Condominium North, Richard Finvarb was in charge of construction, sales, and supervision of the Finst Development, Inc. office and personnel. Luis Stabinski's involvement was as an investor. The documents filed by Respondent with the Department were prepared by Paul Scherman, an associate in Mr. Stabinski's law firm. Mr. Scherman also attended all closings on units and received copies of contracts entered into by Respondent for the sale of units in the condominium. Mr. Scherman was aware that contracts were being entered into prior to the filing of the condominium documents described in Paragraph 2 above. Luis Stabinski has been a practicing attorney for 13 years. He represents individual condominium purchasers and has been involved as an investor in three other condominium projects prior to the Indian Creek Club and Marina North Condominium. Following the initial filing of the condominium documents, the Respondent promptly responded to and made the changes and corrections required by the Department in two Notices of Deficiencies. After being provided with the required documents, all but five or six of the purchasers who had entered into contracts prior to the filing of the documents closed on their units. The five or six that did not close are presently in litigation with the Respondent.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department enter a final order imposing a civil penalty of $7,500 and ordering the Respondent to cease and desist from any further violations of Chapter 718 or the rules promulgated thereunder. DONE and ENTERED this 8th day of June, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS, 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 9th day of June, 1983. COPIES FURNISHED: Thomas A. Bell, Esquire Staff Attorney Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Norman Funt, Esquire Stabinski & Funt, P.A. 757 N.W. 27th Avenue Third Floor Miami, Florida 33125 Mr. Gary Rutledge Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. E. James Kearney Director Division of Florida Land Sales and Condominiums 725 South Bronough Street Tallahassee, Florida 32301
The Issue The issues are whether the respondents committed the acts alleged in the Administrative Complaint; whether those acts violate Subsections 475.25(1)(b), (d)1., and (k), Florida Statutes (2007)1; and, if so, what penalty, if any, should be imposed in this proceeding.
Findings Of Fact Petitioner is the state agency responsible, in relevant part, for regulating persons licensed in Florida as real estate brokers. Respondent, Juan Carlos Sanchez (Mr. Sanchez), is licensed in Florida as a real estate broker pursuant to license numbers 3087282, 3135276, 3134695, 3202672, and 3196365.2 Respondent, Homefirst Realty Group, Inc. (Homefirst), is licensed as a real estate broker pursuant to license number CQ-1016872.3 Mr. Sanchez was licensed and was operating as the qualifying broker for Homefirst. Mr. Sanchez was the president and was in control of Homefirst at all times material to this proceeding. Homefirst is located at 2457 South Hiawassee Road, Suite A-280, Orlando, Florida 32825. In 2007, a company identified in the record as Studio Parc at Kirkman (Studio Parc) sold condominiums located at 4601 South Kirkman Road, Orlando, Florida 32811. Sometime before October 31, 2007, Studio Parc employed the respondents as the on-site brokers. On October 31, 2007, the respondents entered into a contract with Mr. Roman Segundo Bracho Mendez (Mr. Mendez) for the sale and purchase of Studio Parc condominium unit number 8205 (Unit 8205). Mr. Mendez was a citizen of Venezuela. Mr. Sanchez had made the sale pursuant to a sales plan he developed by which buyers were to make a 20 percent down-payment to a bank account in Venezuela that Mr. Sanchez established for that purpose but which was not an escrow or title company account. The plan called for Mr. Sanchez to effectuate a currency exchange, transfer the money to a title company in the United States, and proceed to closing. Mr. Sanchez sent a letter of instructions to his sales staff concerning the plan. However, Mr. Sanchez failed to maintain any procedures for controls that adequately monitored deposits and payouts of the account in Venezuela. Mr. Mendez deposited $10,000.00 into the account in Venezuela as a purchase deposit for Unit 8205. The contract for Unit 8205 did not close, and the respondents have not returned the deposit to Mr. Mendez. The cost of the investigation for Mr. Sanchez is $366.30. The cost of the investigation for Homefirst is $359.70.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Real Estate, enter a final order finding each of the respondents guilty of the charges alleged in the Administrative Complaint; ordering the respondents to severally pay one administrative fine of $5,000.00 and collectively pay investigative and administrative costs of $726.00; and revoking the broker licenses of the respondents that are at issue in this proceeding within 30 days of the date that this proceeding becomes final. DONE AND ENTERED this 4th day of May, 2010, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee 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 4th day of May, 2010.
The Issue Whether Respondent, a condominium association, violated Section 718.112(2)(c), Florida Statutes; by holding board meetings on January 2, 7, and 16 or 17, 1985, which were not open to all unit owners and for which notice was not posted; If so, what sanctions should be imposed.
Findings Of Fact Petitioner, the Department of Business Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes, is the state agency charged with the duty of enforcing Chapter 718, Florida Statutes, the Florida Condominium Law. Respondent, Windsor Park Condominium Association, Inc., is the condominium association responsible for a 64-unit residential condominium known as the Windsor Park North Condominium ("Condominium") located at 120 Wettaw Lane, North Palm Beach, Florida. In their Prehearing Stipulations, the parties agreed that the disputed issues are whether the Association, contrary to law, held condominium board meetings on January 2, 6 and 16 and 17, 1985, which were not open to all unit owners and for which notice was not posted. The Association contends that if such meetings were, in fact, held, they were "emergency" meetings for which notice was not required under the statute. In December 1984, a five-member board of administration was elected by the members of the Association to run the condominium association in 1985; Muriel Siebern was elected President. Until November 1984, Respondent had contracted with a professional management company known as First Columbia Management to manage the Condominium. Norma Calhoun carried out those management duties on behalf of the company. When the contract expired in November 1984, Harry Christie (then President of the Association) signed a new one-year contract, on behalf of the Association, with Florida Management Professionals, Inc., a newly formed management company which was owned by Norma Calhoun. Until November 1984, the First Columbia Management hired, fired, and supervised employees, maintenance personnel and repairmen billed and collected assessments of common expenses paid Association bills prepared the annual budget and year-end financial statements communicated with the Association's attorney and, attended unit owner meetings. From November until early January, 1985, these functions continued to be performed by Norma Calhoun, on behalf of her newly formed management company. But in early January 1985, the newly elected board of administration terminated the Association's contract with Ms. Calhoun's company and began performing the management duties of the Association without the assistance of a professional management company. II. The newly elected board of administration of the Association held four meetings between January 2 and January 17, 1985. Advance notice of these meetings was not posted on the Condominium property; and no unit owners other than members of the present (or past) board attended. The first meeting was held on January 2, 1985, at the former management company's offices in North Palm Beach. Four members of the board (a quorum) were present: Muriel Siebern, President; Sue Day, Vice President; Fred Kelly, Treasurer; and Lori Powers, Member-at-Large. Ms. Calhoun, and Harry Christie, President of the outgoing board, were also present. One purpose of this meeting was to affect a turn-over of the Association's records to the new board. Mr. Christie, outgoing president, presented the key to the locker room, financial statements for the Association from January through October 1984, the book of minutes, a history of the names and addresses of all unit owners, and the results of the vote taken at the December 1984 annual meeting. The board, however, also discussed with Ms. Calhoun the nature and performance of her management duties, reviewed various contracts, and discussed with her a pending court hearing in a lawsuit in which the Association was a party. No emergency conditions surrounded this meeting which would have precluded the posting of notice at least 48 hours in advance. Ms. Siebern had called Ms. Calhoun five days before the meeting to ask her to attend. III. On January 7, 1985, Ms. Siebern and two other members of the board (a quorum) met in the offices of Richard Breithart (the attorney who now represents the Association) to discuss the management contract which Mr. Christie had signed with Florida Management Professionals, Inc., in November 1984. (The board members had discussed the contract on the way to attorney Breithart's offices and felt it was not binding.) After Mr. Breithart concurred, the board decided to fire Ms. Calhoun and terminate the contract with her management company. After polling the two absent board members (by telephone) and obtaining their concurrence, the three board members met with Ms. Calhoun that same day at First Columbia Management's offices, and informed her of their decisions. They asked that she turn over to them all of the Association's records, including all financial statements. Some of those records were not immediately available since they were kept at the former management company's offices in Clearwater. Ms. Calhoun responded that she would retrieve the material, but that it would take several weeks to receive it. The board members asked her to call them when it was received. No one told Ms. Calhoun that an emergency existed or that there was an urgent or pressing need for the records. The board members also asked that the Association's checkbook be returned. Although the Association asserts that these were emergency meetings which excuse their failure to post 48 hours notices, no emergency has been shown. Prior to their January 7 meeting, the individual board members were given at least 24 hours notice. The ostensible "emergency" was based on the need to obtain the Association's complete records from Ms. Calhoun, but Mrs. Siebern and other members of the board became aware of the need to obtain the Association's records as early as December 1984. Moreover, the board members, thereafter, did not articulate a need to obtain the records on an emergency basis, which precluded 48 hours notice. (See letter of Ms. Siebern to Mr. Cassels, dated February 12, 1984, attached to Petitioner's Exhibit No. 2). The Association's answers to the Division's interrogatories also fail to mention the existence of an emergency. (Petitioner's Exhibit No. 3) Finally, the Association has not shown any likelihood of injury if it had delayed its January 7 meeting an additional 24 hours in order to post 48-hour notices to all unit owners. Although the board encountered delay in obtaining the Association's complete records from Ms. Calhoun, no injury was shown. There is no evidence or even allegation that Ms. Calhoun was guilty of misappropriation of funds or that the Condominium's bills were not being timely paid. IV. On January 16 or 17, 1985, three board members, including Ms. Siebern, met again at the offices of attorney Breithart. After obtaining concurrence (by telephone) of the two absent board members, the board decided to dispense with the services of attorney Levine, who had been representing the Association in the pending lawsuit, and hire attorney Breithart in his place. The Association asserts that an emergency existed (precluding the need to post notice in advance of the meeting) since a hearing in the pending lawsuit was imminent. This emergency, however, was self-induced even if it existed, it was brought about by the board's failure to timely act. (The board members were dissatisfied with attorney Levine as early as December 1984, when he advised the members at the annual meeting of the Association that they would not prevail on the merits of the pending lawsuit. The board members were aware--then--that a hearing would be scheduled in the lawsuit during the next several weeks.) Another reason for firing attorney Levine was his alleged charging of expensive fees. But it has not been shown why action could not be taken to resolve this concern after giving 48 hours notice, as required by the Condominium Law.
Recommendation Accordingly, based on the foregoing, it is RECOMMENDED: That the Association be found guilty of four violations of Section 718.112(2)(c), Florida Statutes; that it be required to submit a certified check for $4,000 to the Division; and that it be ordered to henceforth conduct all board meetings in accordance with the notice and open meeting requirements of the Condominium Law. DONE and ORDERED this 26th day of February, 1986, in Tallahassee, Florida. R. L. CALEEN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 1986. COPIES FURNISHED: Karl M. Scheuerman, Esq. 725 S. Bronough St. Tallahassee, FL 32301 Richard O. Breithart, Esq. 818 U.S. Highway One, Suite 8 North Palm Beach, FL 33408 APPENDIX RULINGS ON PETITIONER'S PROPOSED FINDINGS OF FACT 1-7. Approved, in substance. 8. Adopted, except the last nine lines are rejected as not supported by a preponderance of the evidence. 9-31. Adopted, in substance. RULINGS ON RESPONDENT'S PROPOSED FINDINGS OF FACT 1-2. Adopted, in substance. 3a-d; 4-7. Rejected as not supported by a preponderance of the evidence.
The Issue The ultimate issues to be resolved in this proceeding are whether the Respondent has committed violations of the Florida Condominium Act (Chapter 718, Florida Statutes) and, if so, whether a cease and desist order and/or civil fine should be imposed. Petitioner contends that the allegations of the Notice to Show Cause have been established and that a cease and desist order and civil fine are appropriate. The Respondent contends that to the extent any violations of the Act have been established, they are only of a technical sort, and do not justify the imposition of any sanction.
Findings Of Fact Nautico Bay Club, Inc., is the developer of the Nautico Bay Condominium, located at 6937 Bay Drive, Miami Beach, Florida. At all times material to this proceeding, Samuel Weintraub was the president of Nautico Bay Club, Inc., and was primarily responsible for conducting its day-to-day business activities. The Nautico Bay Club Condominium includes 48 residential units. The first units were sold on December 1, 1980. The final closing on the 48 units occurred on December 31, 1980. The Respondent failed to call an annual meeting of the unit owners at Nautico Bay Condominium during 1981. The Respondent was having some difficulty communicating with some of the unit owners because they lived outside of the country. Nonetheless, the Respondent did not give written notice to unit owners of an annual meeting during 1981, did not post notice of an annual meeting during 1981 on the condominium property, did not send a notice of an annual meeting during 1981 by mail to each unit owner, and did not retain a post office certificate of mailing as proof of mailing of notice to unit owners. No annual meeting of unit owners was conducted during 1981. As the developer who maintained control over condominium activities during 1981, the Respondent was obliged to call and conduct an annual meeting of unit owners. The Respondent retained a private public accounting firm to prepare a financial statement for the Nautico Bay Club Condominium for the year ending December 31, 1981. The statement was completed on February 10, 1982. The Respondent remained in charge of the administration of the condominium association at that time. The Respondent made no effort to provide copies of the financial statement by mail or personal delivery to each unit owner. While some unit owners may have obtained copies of the financial statement within 60 days of December 31, 1981, most did not. At least one unit owner did not receive a copy of the financial statement until sometime in November, 1982. On or about September 17, 1982, the Respondent turned over operation of the condominium association to the Nautico Bay Club Condominium Association. The Respondent's president, Mr. Weintraub, offered to have the financial records reviewed by the independent certified public accounting firm that he had utilized in the past. The unit owners protested and asked instead that he pay to have the documents reviewed by a firm of their choosing. The Respondent did not have the financial records and statements reviewed by an independent accounting firm. He offered to have them reviewed by the firm he had utilized in the past, but the unit owners declined that offer. In the prospectus that the Respondent offered to potential unit purchasers, an estimated monthly operating budget and an estimated annual operating budget for the condominium, and an estimated monthly operating budget and an estimated annual operating budget per unit were set out. No other proposed budget was issued for 1981, nor does it appear that one was required, since the first persons who purchased units did not do so until December, 1980. No proposed annual budget of common expenses was prepared for the 1982 calendar year. Instead, the Respondent merely utilized the estimated budgets that had been set out in the prospectus. These were never, however, presented as a proposed annual budget for 1982. The Respondent did not provide as a part of its budgets for 1981 or 1982 for reserve accounts for capital expenditures and deferred maintenance. Accounts were not established to reserve funds for roof replacement, building painting, pavement resurfacing, and the like. The estimated replacement costs of such items were not a part of any budget prepared by Respondent. The funds were neither established nor funded by the Respondent. Mr. Weintraub testified that the reason the accounts were not established is that he had difficulty collecting assessments from unit owners. It does not appear, however, that the Respondent made any effort to collect assessments from unit owners, nor that the accounts were established with such funds as could have been collected.
Findings Of Fact The Division is the administrative agency of this state empowered to ensure that condominium associations comply with the Condominium Act. The Association is the condominium association which manages and operates 12 separate condominiums known as the Pines of Delray, located in Delary Beach, Florida. This case involves a structure placed on the common elements of three of those condominiums: The Pines of Delray condominiums 5, 6, and 11. Condominium 5 has 64 units, 6 has 72 units, and 11 has 96 units. Initially, the 12 condominiums received television under a "Central Television Antenna System Lease" with the Pines of Delray CAT, an agent of the condominium developer. On November 1, 1979, the unit owners of 8 of the 12 condominiums, including condominiums 5, 6 and 11--by vote equal to or in excess of 75 percent of the unit owners in each of the 8 condominiums--voted to cancel or terminate the television system lease pursuant to Section 718.302, Florida Statutes. The leased television equipment was eventually removed by the owner. On February 1, 1982, the Association entered into a written agreement with A-I Quality TV, Inc. d/b/a Denntronics Cable to provide television service for the 12 condominiums. The agreement was authorized by the Association's board of directors; the unit owners were not given an opportunity to vote on the agreement. An addendum to the agreement was entered in December, 1982. The addendum authorized Denntronics to install a satellite receiving station or dish at an unspecified location on the property of the 12 condominiums. The addendum was authorized by the Association's board of directors, but again, a vote of the unit owners was not taken. The Board subsequently selected the site for the receiving dish, centrally locating it on common elements of condominiums 5, 6, and 11, between building no. 65 in condominium 6, no. 25 in condominium 5, and nos. 66 and 110 in condominium 11. On December 24, 1982, Denntronics, with the Board's authorization, entered the premises of the condominiums and cut down four full-grown pine trees on the site to allow construction of a concrete foundation or pad and erection of the satellite dish. The parties stipulate that this cutting of the trees was an alteration of the common elements and that it was not approved by the owners of 75 percent of the condominium units in the affected area. The pertinent declarations of condominiums provide a specific procedure for obtaining approval before altering or improving common elements of the condominium. Article 5.1(b) of each declaration states: 5 MAINTENANCE, ALTERATION AND IMPROVEMENT Responsibility for the maintenance of the condominium property and restrictions upon the alteration and improvement thereof shall be as follows: .1 Common Elements. (b) Alteration and Improvement. After the completion of the improvements included in the common elements which are contemplated in this Declaration, there shall be no alteration nor further improvement of common elements without prior approval, in writing, by record owners of 75 per cent of all apartments. The cost of such alteration or improve ment shall be a common expense and so assessed. After removing the trees, Denntronics poured the concrete pad and attached it to the realty. The pad measures 10 feet by 10 feet, has a depth of 18 inches, and is reinforced with no. 5 grade steel bars. The construction of this pad, as with the tree removal, was not approved or voted on by the condominium owners. Denntronics then anchored the satellite receiving dish to the concrete pad. The dish is approximately 16 feet in diameter, extending 20 to 25 feet in the air. It remains the property of Denntronics since it was only leased to the Association. It is not a fixture since it may be detached and removed from the concrete pad. The cutting of the trees, the construction of the concrete pad, and the erection of the satellite dish altered the common elements. The condition of the real property was changed and the satellite dish affected nearby residents' view and enjoyment of the park-like green space in which it was placed. The replacement of the trees with the concrete pad and satellite dish affected the appearance of the surrounding area. A park-like environment of grass and pine trees surrounds the condominiums; it was this feature which persuaded some residents to originally purchase condominiums at Pines of Delray. Both the name of the condominium and its accompanying description on the condominium documents, "A Condominium in the Woods" emphasize this aesthetic feature of the condominium. As shown by the photographs in evidence, the reinforced concrete pad with satellite dish is an intruding presence in a park- like, pristine area. It is an incongruous, even imposing structure, 1/ and, in the setting in which it was placed, is aesthetically displeasing. 2/ It has adversely affected some residents' enjoyment of the grassy green space and has disturbed the scenic view which they enjoyed from their windows. Some residents now keep their window shades closed or no longer use the park-like surroundings. One resident was so upset by the sudden placement of the structure that she sold her condominium and moved away. Another nearby resident who purchased his unit, in large part, because of its proximity to the park-like green space, would not have purchased it if the pad and satellite dish had been there. Denntronics has a franchise application pending before the City of Delray Beach. If it is granted a franchise, Denntronics will remove the pad and satellite dish, and replace it with underground cable. If Denntronics is not granted a franchise, it intends to maintain and operate the satellite dish at least until June 30, 1987, when the agreement with the Association expires and is up for renewal. If the satellite dish is removed now, however, the Pines of Delray Condominium will not necessarily be without cable television service. Leadership Cable, the only cable T.V. company franchised by the City of Delray Beach, is willing and able to provide cable T.V. reception to the pines of Delray Condominiums.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Division of Florida Land Sales and Condominiums find the Association guilty of violating Section 718.113(2) and order it to cease and desist from further violations. Further, the order should require the Association to remove the concrete pad and satellite receiving dish within 10 days and restore the affected area, as nearly as possible, to its prior condition. Restoration should include the placing and maintenance of grass sod and at least four healthy trees, aesthetically pleasing and not less than 12 feet in height. DONE and ENTERED this 21st day of June, 1984, in Tallahassee, Florida. R. L. Caleen, Jr. 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 21st day of June, 1984.
Findings Of Fact Based on the stipulations of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at the hearing, I make the following findings of fact. Facts stipulated to by the parties Winston Towers 600 condominium was created by Winston Capital, Inc., which still owns units for sale in the condominium. Control of the association has been relinquished by the creator/developer and turned over by it to the unit owners including joint intervenors. In May of 1983, six Michigan limited partnerships each purchased a number of units in the condominium from Winston Capital, Inc. In March of 1984, four Texas limited partnerships each purchased a number of units in the condominium from Winston Capital, Inc. The joint intervenors consist of the six Michigan limited partnerships and the four Texas limited partnerships. The number of units so purchased gives the joint intervenors, as a block, a controlling interest in the condominium association. The association is controlled by the joint intervenors, who elected two of the three directors of the association. The association hired Hall Management Company, Kent Security Services, Inc., and an unnamed cleaning company. Records of the Secretary of State reveal that among other officers of Hall Management Company are Craig Hall, President and Director, and Christine Erdody, Vice-President. The records of the Secretary of State reveal no entity known as the Hall Real Estate Group. The public records of Dade County, Florida, reveal no fictitious name affidavit for any entity trading as the Hall Real Estate Group. The records of the Division of Florida Land Sales, Condominiums and Mobile Homes reflect that Winston Towers 600 is a residential condominium, located in Dade County, Florida. The joint intervenors are not now offering and have not ever offered condominium units for sale. The joint intervenors are not now offering and have not ever offered condominium units for lease for periods in excess of five years. Winston Towers 600 Condominium Association, Inc., is the non-profit condominium association established to maintain and operate the condominium. In July, 1984, a meeting of the condominium association was held upon instructions of the developer, Winston Capital, Inc. Winston Capital, Inc., scheduled and held the condominium association meeting in July 1984, under the good faith impression and belief that the threshold requirements in Section 718.301 mandating turnover of control of the association board of directors had been met. Joint intervenors, collectively, own more than 50 per cent of the units in the condominium. Joint intervenors, as developers, did not turn over control of the condominium association in July 1984. The declaration of condominium for the condominium and the Florida Statutes grant certain rights and privileges to the developers. The joint intervenors have a substantial economic investment in the condominium. The joint intervenors desire to have the condominium operated and maintained by competent professional management so as to protect and enhance the condominium project. The annual fee being paid to Hall Management Company for management of the condominium is the same fee as had been previously paid by the developer, Winston Capital, Inc., to the prior manager, Keyes Management Company. The names of the board of directors elected to the board of administrators of the association on July 16, 1985, were Ms. Christine Erdody, Mr. James Sherry, and Mr. Joseph Pereira. Ms. Christine Erdody and Mr. James Sherry are general partners in each of the ten limited partnerships. Mr. Craig Hall is President and Ms. Christine Erdody is Vice- President. Other findings based on evidence Adduced at hearing At the turnover meeting in July of 1984, Ms. Erdody cast votes on behalf of each of the ten limited partnerships, voting once for each unit owned by all ten of the limited partnerships. There has never been a meeting of the unit owners in which the limited partnerships turned over control of the association to unit owners other than the ten limited partnerships. The ten limited partnerships have no business ventures or income producing activities other than attempting to offset expenses of operations by leasing the units owned by the limited partnerships and attempting to increase their equity in the condominium units. The units acquired by the joint intervenors were not acquired for their own occupancy. The limited partnerships, while in control of the association, employed Hall Management Company, pursuant to contract, to manage the condominium and to lease the units owned by the limited partnerships. The rental office used by the management company consists of a unit owned by one of the limited partnerships. The contract specifically requires that Hall Management Company attempt to lease those condominiums units owned by the limited partnerships. The limited partnerships have no income producing mechanism other than the disposition of condominium units owned by the listed partnerships pursuant to the contract with the Hall Management Company. A regular, normal, and common activity of each of the ten limited partnerships is to offer to lease and to enter into leases of the condominium units owned by the limited partnerships. They typically engage in this activity through their agent, the Hall Management Company. None of the ten limited partnerships have ever offered any of their units for sale. None of the ten limited partnerships have ever offered any of their condominium units for leases in excess of five years. Ultimately, all of the ten limited partnerships intend to sell all of their condominium units. There is no relationship or affiliation between the creator/developer, Winston Capital, Inc., and any of the joint intervenors. Each of the joint intervenors is a separate limited partnership. However, due to the facts that each of the joint intervenors have a common purpose, each has at least several general partners in common, each has entered into a management contract with a closely related management company, and each has acted in concert with the others in prior matters concerning the condominium facility and the association, for all practical purposes relevant to this case, the joint intervenors may be regarded as a single entity. This is true even though there is no agreement or contract between the joint intervenors requiring them to act collectively in any matter involving or affecting their vote in condominium association matters at Winston Towers 600 Condominium. In all the actions of the joint intervenors in voting their interests at association meetings, they have never thought or acted on the understanding that the joint intervenors were developers of the condominium. The unit owners other than the joint intervenors have selected one-third of the Board of Directors of the Association. The right to vote for a majority of the board of directors of the condominium association is a significant and valuable right which the joint intervenors believed they would be entitled to upon purchasing a majority of the units in the condominium. A substantial number of the purchasers of Florida condominium units are non-residents of Florida. A substantial number of purchasers of condominium units intend to rent their condominiums under leases with a duration of two years or less.
Recommendation On the basis of all of the foregoing, it is recommended that the Division of Florida Land Sales, Condominiums and Mobile Homes issue a declaratory statement to the following effect: That the joint intervenors, individually and collectively, constitute concurrent and successor developers, and that as such concurrent and successor developers who collectively own more than fifty per cent but less than eighty-five per cent of the units, they are entitled to appoint two-thirds of the members of the board of administration of the condominium association. The statement should also note that the joint intervenors should comply with Section 718.3025(1)(e), Florida Statutes, by disclosing any financial or ownership interest which the joint intervenors have, if any, in Hall Management Company That the issue of whether the joint intervenors may have violated the provisions of the declaration of condominium is not a proper subject for a declaratory statement. DONE AND ORDERED this 9th day of April, 1986, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 1986. COPIES FURNISHED: Mr. Arnold Belkin Apartment 912 210 - 174 Street Miami, Florida 33160 Thomas A. Bell, Esquire Deputy General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Karl M. Scheuerman, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 323301 Joseph D. Bolton, Esquire Stephen Gillman, Esquire SHUTTS & BOWEN 1500 Edward Ball Building Miami Center 100 Chopin Plaza Miami, Florida 33131 Linda McMullen, Esquire McFARLAIN, BOBO, STERNSTEIN, WILEY & CASSEDY P. O. Box 2174 Tallahassee, Florida 32301 James Kearney, Jr., Acting Director Division of Florida Land Sales, Condominiums and Mobile Homes Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 James Kearney, Jr., Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 APPENDIX The Following are my specific rulings on each of the proposed findings of fact submitted by all of the parties. Rulings on findings proposed by the Division Paragraphs 1 through 23 of the Division's proposed findings are accepted and incorporated into the findings in this Recommended order. Paragraph 24 is rejected as irrelevant and as not supported by persuasive competent substantial evidence. Paragraph 25 is rejected as irrelevant in part and is redundant in part. The substance of paragraph 26 is accepted with the deletion of certain redundant information. The substance of paragraphs 27, 28, 29, 30, 31, 32, and 33 is accepted with some modifications in the interest of clarity and accuracy and with the deletion of certain redundant information. Rulings on findings proposed by the Joint Intervenors Paragraphs 1 through 12 of the Joint Intervenors' proposed findings are accepted and incorporated into the findings in this Recommended Order. Paragraph 13 is rejected as irrelevant, subordinate, and not supported by competent substantial evidence. Paragraphs 14 and 15 are accepted. Paragraphs 16 and 17 are accepted with additional findings for the purpose of clarity and accuracy. The substance of paragraphs 18, 19, 23, and 26 is accepted. Paragraphs 20, 21, 22, 24, 25, and 27 are accepted. Rulings on findings proposed by Petitioner Paragraphs 1, 2, 3, and 4 of Petitioner's proposed findings are accepted in substance. Paragraph 5 is rejected as irrelevant. Paragraphs 6, 7, 8, 9, and 10 are accepted in substance with the deletion of the reference to the Hall Group of real estate limited partnerships. Paragraph 11 is rejected in part because it is subordinate, in part because not supported by competent substantial evidence and in part because it is a conclusion of law. Paragraphs 12, 13, 14, and 15 are accepted in substance. Paragraph 16 is rejected because it is not supported by competent substantial evidence. Paragraph 17 is rejected because it is irrelevant and subordinate. Paragraphs 18, 19, and 20 are accepted in substance. Paragraphs 21 and 22 are rejected because they constitute argument or conclusions of law and are not supported by competent substantial evidence. Paragraph 23 is rejected because it is irrelevant to the issues to be decided in this case and because portions of it are not supported by competent substantial evidence. Paragraph 24 is accepted. Paragraph 25 is rejected because it is irrelevant to the issues to be decided in this case, because portions of it are not supported by competent substantial evidence, and because portions of it constitute argument or conclusions of law. Paragraph 26 is rejected because it is not supported by competent substantial evidence. Paragraph 27 is rejected because it constitutes argument. Paragraph 28 is rejected because it is irrelevant and redundant. Paragraphs 29 and 30 are rejected because they constitute argument or conclusions of law. Paragraphs 31 and 32 are rejected because they are not supported by competent substantial evidence. Paragraph 33 is rejected because it constitutes argument or conclusions of law. Paragraphs 34 and 35 are rejected because they are irrelevant and because they constitute argument.
