Findings Of Fact The Respondents have, at all times material to this matter, been registered with the Florida Real Estate Commission as real estate brokers. During 1973 and 1974, the Respondent Sol Tomberg worked at Century Realty, Inc. as a salesman and a broker. He was primarily involved in selling condominium units in a project known as Century Village in Palm Beach County, Florida. Century Village is a large condominium project. Units were much in demand during the time that Respondent was engaged to sell them, and sales activity was brisk. During 1973, David Frank was seeking to purchase a condominium unit at Century Village. He asked a friend, a Mr. Helwitz, to assist him in locating a unit to purchase. On April 16, 1973, Helwitz called Frank, who was then living in New York. Helwitz introduced the Respondent Sol Tomberg who spoke to Mr. Frank. Tomberg advised Frank that a unit was available, but that another party had an option to purchase it. Tomberg advised Frank that if the other party were paid $500.00 they would be willing to give up their option, and Frank would be able to purchase the condominium unit from the developer. In accordance with Tomberg's instructions, Frank issued a check for $1,500.00 payable to Century Village to hold the condominium unit, and a check for $500.00 to Mr. Tomberg personally to arrange the payment to the party who held the option. Frank eventually closed the condominium transaction successfully. Tomberg deposited the $500.00 check that he received from Frank in his personal checking account. He testified that he distributed it in cash to the party who held the option. It is apparent from the evidence that another party did have an option to purchase the unit which Frank ultimately purchased. There is no evidence from which it could be concluded that Tomberg realized any secret profit on the transaction, or that he did other than distribute the $500.00 payment to the party who had the option to purchase. It does appear that an option to purchase was rescinded. The evidence does establish that Tomberg did not deposit the $500.00 he received from Frank into an escrow account. During 1973, Benny Teper was seeking to purchase a condominium unit at Century Village. He enlisted the assistance of a friend, Mr. Myers, an individual who had already purchased a unit at Century Village. Apparently Mr. Myers contacted the Respondent Tomberg, and on June 6, 1973, Tomberg contacted Teper. He advised Teper that a condominium unit could be obtained, but that another party (Tomberg's mother-in-law) had an option to purchase the unit. Tomberg advised Teper that the party would be willing to give up the option for $1,500.00. Teper bargained with Tomberg, and agreed to pay $1,200.00 for release of the option in addition to the purchase price of the condominium. Accordingly, Teper sent a deposit to Century Realty to hold the unit, and a check to Tomberg for $1,200.00 to obtain release of the option. Tomberg deposited the $1200.00 in his personal checking account. He testified that he distributed it at a later date. Teper successfully closed the transaction for the condominium unit. The evidence does not establish that Tomberg realized any secret profit on the Teper transaction, or that he did other with the $1,200.00 than obtain a release of an existing option. It does appear from the evidence that another party did hold an option to purchase the unit that Teper ultimately purchased, and that the option was released just prior to the time that Teper made a deposit to hold the unit. The evidence does establish that Tomberg deposited the $1,200.00 that he received from Teper in his personal checking account rather than in any trust or escrow account. During 1972 and 1973, Adelaide Ferraro was seeking to purchase a condominium unit in Century Village. She visited Tomberg's office, and was advised that no units were available, but that Tomberg's mother-in-law had an option to purchase a unit which she would release for $1,000.00 above the purchase price. Ferraro agreed to make such a payment. She made out a $200.00 check to Tomberg and later an $800.00 check to cover the $1,000.00. She also made out a check to Century Realty to place a hold on the unit. Tomberg deposited the $200.00 check and the $800.00 check in his personal checking account. Ferraro was able to successfully close on the transaction. Tomberg actually owned the option to purchase the unit which Ferraro ultimately purchased himself. When he failed to disclose this fact to Ferraro, he concealed from her the true facts involving the transaction. Tomberg did not deposit the $1,000.00 in any trust or escrow account. During 1973, Laura Katz was seeking to purchase a condominium unit in Century Village. She contacted Tomberg, who advised her that no units were available, but that a third party who had an option to purchase a unit would be willing to give up the option. Katz agreed to pay $2,100.55 to procure release of the option, and $345.00 for certain extras that the option holder had included in the unit (a refrigerator, a stove, and carpeting). She made out a check in the amount of $2,155.00 to Tomberg, and a check to Century Realty to place a hold on the unit. Tomberg deposited the check In his personal checking account. Katz successfully closed the transaction. Tomberg testified that he distributed the money to the party who held the option. It does appear from the evidence that a third party did possess an option on the unit that Katz ultimately purchased, and that the option was released shortly before Katz made her deposit to hold the unit. The evidence does not establish that Tomberg realized any secret profit on the transaction, that he misrepresented any facts with respect to it, or that he did other with the money deposited with him by Katz than to secure release of an option. The evidence does establish that Tomberg deposited the money he received from Katz in his personal checking account rather than in a trust or escrow account. No evidence was offered with respect to a transaction in which Edna Patrick allegedly purchased a unit at Century Village as alleged in Counts 17 through 20 of the administrative complaint filed by the Real Estate Commission.
Findings Of Fact Based upon the pleadings and responses thereto, an Order imposing sanctions for Respondent's failure to submit discovery as required by the undersigned dated October 15, 1986 and the entire record compiled herein, I hereby make the following relevant factual findings. Respondent is the developer of a condominium known as La Residence. As Presently developed, La Residence consists of sixty units. La Residence is located in Boca Raton, Florida. Respondent failed to meet the completion date for the subsequent phases of La Residence as is described in the declaration of condominium of La Residence. According to the Declaration of Condominiums for La Residence, the scheduled dates listed for construction of the subsequent phases of La Residence were June, 1982 for phase II; February, 1983 for phase III, and November, 1983 for phase IV. Amendments to the Declaration of Condominium of La Residence were recorded on June 30, 1981, March 22, 1982 and August 2, 1984. Respondent did not furnish the Division with copies of the above-referred amendments. Additionally, Respondent failed to provide purchasers of units within La Residence, copies of the above-referred amendments. Respondent failed to hold annual members meeting for the years 1981, 1982, 1983 and 1984. Respondent failed to call a members meeting to allow non-developer unit owners to elect a director after fifteen percent of the available units had been conveyed. Respondent failed to mail to unit owners, copies of the proposed annual budget for the years 1982, 1983, and 1984. Respondent failed to include the statutory reserves and the proposed annual budget as required for the years 1982, 1983 and 1984. Respondent failed to fund reserve accounts for the years 1982, 1983 and 1984. Respondent failed to provide unit owners with financial reports for fiscal years 1982, 1983 and 1984. Respondent failed to pay the developer's share of assessments due to be paid by the developer after June 30, 1982. The Declaration of Condominium for La Residence was recorded in the public records of Palm Beach County in 1981. Control of the Condominium Association was turned over to non-developer unit owners on February 16, 1985. No "turnover report" was prepared by a certified public accountant nor was such a report ever furnished to the Condominium Association by Respondent. Respondent has not provided the Condominium Association copies of all canceled checks and bank statements for the time period dating from the recordation in 1981 to January 31 1984. Respondent, or a representative on its behalf, did not appear at the hearing to refute or otherwise contest the alleged violations set forth in the Notice to Show Cause filed herein.
Recommendation Based on the foregoing Findings of Fact and Conclusions, of a Law, it is hereby RECOMMENDED Respondent pay to the Division, within thirty (30) days of issuance of the Division's Final Order, a civil penalty in the amount of ten thousand dollars ($10,000). Respondent secure the services of an independent certified public accountant who shall review the condominium records and submit a turnover review in accordance with the provisions of Section 718.301(4)(c), Florida Statutes (1985) and rule 7B-23.03(4)(5) and (6), Florida Administrative Code. Within thirty days of the Division's Final Order, it is recommended that the Division issue guidelines to Respondent to ensure that the condominium records are reviewed in accordance with the above-referenced statutory and rule provisions. Provided that monies are found to be due and owing the association based on the review, Respondent shall be directed to remit such amounts to La Residence of Boca Del Mar Condominium Association. Recommended this 23rd day of March, 1987, in Tallahassee, Florida. JAMES E. BRADWELL, 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 23rd day of March, 1987.
The Issue The issue in this case is whether Respondent condominium association properly assessed unit owners for common expenses based on their respective proportionate shares of such expenses as set forth in the declaration of condominium.
Findings Of Fact Respondent Eden Isles Condominium Association, Inc. ("Association") is the entity responsible for operating the common elements of the Eden Isles Condominium ("Condominium"). As such, the Association is subject to the regulatory jurisdiction of Petitioner Division of Florida Land Sales, Condominiums, and Mobile Homes ("Division"). The Condominium was created——and continues to be governed by——a Declaration of Condominium ("Declaration"), which has been amended at least once during the Condominium's existence. The Condominium comprises seven identical buildings. Each four-story building contains 52 units. Each unit is laid out according to one of three different floor plans. The Declaration prescribes each unit's proportionate share (expressed as a percentage, e.g. 2.16%, 2.08%, 1.64%, etc.) of the common expenses. These percentages are used to calculate the amounts assessed against each respective unit to collect the funds needed to pay common expenses. For reasons not revealed at hearing, the Declaration——at least in its original form——established a separate and unique schedule of percentages for each building in the Condominium, with the result that similarly situated owners (i.e. those whose units had the same floor plan and comparable locations) did not necessarily pay the same proportionate share of the common expenses. Not surprisingly, owners who were compelled to contribute more toward the common expenses than their similarly situated neighbors were wont to complain about the seeming unfairness of this. Some time in 2004 the Association's governing Board of Directors ("Board") was made aware of an amendment to the Declaration, which, among other things, had revised the appendix that specified each unit's proportionate share of the common expenses. Due to an absence of evidence, the undersigned cannot determine when this amendment took effect, yet neither its existence (a copy is in evidence) nor its authenticity is in doubt. There is, further, no evidence explaining why the Board had not previously been familiar with the amendment, but——for whatever reason(s)——it was not. After deliberating over the meaning and import of the amendment, the Board voted, during an open meeting, to construe the amendment as providing for the assessment of common expenses against all units in the Condominium according to the percentages assigned to the units located in "Building G," which was the last of the buildings in the Condominium to be completed. In other words, the Board interpreted the amendment as requiring that all similarly situated unit owners be assessed the same amount for common expenses, using only the most recent proportionate shares. Consequently, starting in 2005, the Association assessed unit owners for common expenses pursuant to the Board's interpretation of the amendment. While this course of action evidently pleased most residents, someone complained to the Division about the change. The Division investigated. Based on its own understanding of the amendment, which differs from the Board's, the Division determined that the Association was not properly assessing the unit owners; accordingly, it demanded that the Association remedy the situation. Under pressure from the Division, which was threatening to impose penalties against the Association for noncompliance with the Division's directives, and for some other reasons not relevant here, the Board eventually decided to "revert back" to the original proportionate shares, beginning in 2006. The Board continues to believe, however, that its interpretation of the amendment (as requiring similarly situated owners to be assessed at the same percentage) is correct.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division enter a final order rescinding the Notice to Show Cause and exonerating the Association of the charge of failing to assess for common expenses in the appropriate percentages as set forth in the Declaration, as amended. DONE AND ENTERED this 11th day of May, 2007, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 2007.
The Issue Whether Petitioner is entitled to attorney's fees and costs as a prevailing small business party pursuant to section 57.111, Florida Statutes (2015),1/ and, if so, in what amount.
Findings Of Fact The Division is the entity of the State of Florida empowered and required to ensure compliance with the Condominium Act, chapter 718, Florida Statutes, and implementing administrative rules. The Boca View Condominiums complex comprises 72 residential condominiums in Boca Raton, Florida. The Association operates Boca View Condominiums and is subject to the Condominium Act. The Association is not under developer control, but is controlled by the unit owners. Hurricane Wilma hit Florida in October of 2005. At that time, Mr. Alexander Boburka was a unit owner in Boca View Condominiums. Ms. Diana Kuka has lived in Boca View Condominiums since 1998 and was the president of the Association at the end of 2005. She testified that the Association is a non-profit business incorporated by the State of Florida. This testimony was supplemented by Department of State records showing the Association as a not-for-profit corporation whose principal place of business is in Boca Raton. She testified the Association had only two employees at the time of the Notice to Show Cause and a net worth of less than two million dollars. Boca View Condominium Association is a small business party. Ms. Kuka testified that the first time she learned that Mr. Boburka claimed that his unit had been damaged by Hurricane Wilma was on June 11, 2006, when Mr. Boburka sent an e-mail to her, stating: I am writing to ease my mind and assure myself that the Association litigation through the developer is responsible for the faulty roof that allowed rain water from Hurricane Wilma to enter my condo along pipes (common areas/elements?) and caused damage to both bathroom ceilings last year. I do not have wind coverage and have not yet repaired damage and do not plan to do so until after this hurricane season ends. Please confirm my understanding of the situation as it occurred with other units above and below me. My condo insurance company said that my standard policy does not cover the damage due to the fact that the hurricane caused damages. Kindly respond at your convenience. It is not clear if Ms. Kuka ever responded to Mr. Boburka, but a few months later, he wrote two checks, each in the amount of $1,000.00, to the order of Ricardo Salinas: one dated September 12, 2006, and the other dated September 15, 2006. The checks had the notation "repairs" written in the "For" space. An e-mail from Mr. Boburka to Ms. Kuka dated August 2, 2007, referenced a conversation between them in Costco two weeks previously and stated that Mr. Boburka was "in the process of obtaining a breakdown of cost to repair damages in my unit bathrooms and kitchen." It stated that he had copies of checks paid to the contractor. Ms. Kuka testified at hearing that the Association will not issue a check to a unit owner without an invoice: And we do not, we do not, absolutely not issue a check unless we have a backup, unless we have an invoice. Everybody can give us a check. Everybody can say, I spent this or I spent that. so I made it clear, because the board wanted to have some backup, wanted to have – you know, if he can't provide proof of damages but at least give us – we wanted to, you know, like give him the benefit of the doubt, but at least give us some breakdown, like an invoice that said, I repaired such and such, and it cost such and such. Notwithstanding Ms. Kuka's testimony that a check would not be issued without an invoice, the Association did not follow that policy with respect to Mr. Boburka in this case. Mr. Boburka did not provide a breakdown to the Association. The Association paid Mr. Boburka the amount of $1,961.34 by check dated November 28, 2007. Although the Association argued at hearing that the payment to Mr. Boburka was "contingent" and subject to his later providing proof regarding the amount and cause of his damages, the evidence does not support this claim. About five and one-half years later, a letter from the Association to Mr. Boburka, dated June 14, 2013, referenced an attached copy of the reimbursement check given to him in 2007 and requested him to "advise, as soon as possible, in detail, the nature of this expense." An almost identical letter, with the addition of the words "Second Request," and dated July 3, 2013, was sent to Mr. Boburka. Mr. Boburka did not provide the requested information. An "expense adjustment" in the amount of $1,961.34 was entered upon Mr. Boburka's account ledger from the Association, dated May 2, 2014. A note indicated, "Charge back for monies recd from association due to hurricane damages used for others [sic] purposes." Mr. Boburka filed a complaint with the Division on May 12, 2014. He alleged that the Association improperly applied a charge of $1,961.34 to his account ledger. Case No. 2014020742 was opened and assigned to Ms. Sirlei Silveira, a financial examiner in the Division's Bureau of Compliance. In response to Division inquiries, counsel for the Association e-mailed Ms. Silveira on Monday, July 28, 2014, setting forth reasons that it was believed Mr. Boburka was not entitled to the money that the Association gave him earlier, alleging generally that the Association believed the original claim by Mr. Boburka in 2006 was fraudulent. A data entry was made on Ms. Silveira's case file at the Division dated May 11, 2015. It indicated "Closing Order" and reflected a Code of "368." About a month later, a notation was made in the case indicating "Memorandum Prepare/Revise/Review" dated June 16, 2015. On July 28, 2015, Mr. Boburka, through counsel, filed a complaint with the Division alleging that the Association failed to include him on the ballot for election to Association office, despite proper notice of his intent to be a candidate. Mr. Boburka alleged that the reason he was not permitted to be a candidate was that he had not paid the improper charge that had been posted to his account earlier. The Division opened Case No. 2015033369 and assigned it to Mr. Harry Hague, the lead investigator for the Miami and Fort Lauderdale sections for the Bureau of Compliance. An entry dated July 29, 2015, was made on Ms. Silveira's case indicating "Case File Review." An entry dated August 19, 2015, indicating "Case File Review" was also made. At some point Mr. Hague was directed to merge Ms. Silveira's case into his own, because, as Mr. Hague testified, "it was part and parcel" to his own case. Mr. Hague testified that "[w]e wouldn't maintain two active investigations with a single issue." An entry on September 2, 2015, indicates "Case Reassigned" and the note "case reassigned to Hague for combining with investigation 2015033369 and preparation of aa." After a few more data entries indicating further reviews, an entry dated October 19, 2015, on the earlier case indicates "Case Closed Duplicate." Ms. Silveira's case was not closed on May 11, 2015, based upon a determination by the Division that there was no violation. Had that been done, the file would have reflected a "UF" disposition code, indicating that the charge was determined to be unfounded. Had the case actually been closed, the parties would have been notified of that fact. Contrary to the argument of the Association, Ms. Silveira's case was not closed because it was determined to be unfounded and then reopened by the Division as an act of retribution against the Association in response to other election concerns that had been the subject of an earlier complaint. The evidence did not show that the Division acted in bad faith. Mr. Hague prepared an investigative report dated September 1, 2015. The report concluded that the Association improperly posted a $1,961.34 charge to complainant Mr. Boburka's account ledger and improperly failed to include Mr. Boburka's name as an eligible candidate for the election of the Association's directors, in violation of provisions of chapter 718. On October 2, 2015, the Division filed a Notice to Show Cause against the Association regarding the $1,961.34 charge to Mr. Boburka's account ledger. The Notice to Show Cause provided the Association with a clear point of entry to request administrative proceedings, as it was required to do by law. The Association filed a "petition" requesting an administrative hearing on November 13, 2015. A little over one month later, on December 17, 2015, the Division filed a Motion to Dismiss the Petition and Cancel Hearing in DOAH Case No. 15-6768. The motion was granted. The Association was the prevailing small business party in DOAH Case No. 15-6768. The Association incurred attorney's fees and costs in defending against the Notice to Show Cause filed by the Division. The Association submitted an affidavit describing the nature and extent of attorney services and the costs incurred. Expert testimony by the Association's attorney provided additional detail and generally supported the reasonableness of the fees, except as further discussed below. The hourly rate of $375.00 was not contested by the Division's expert, and is found to be reasonable and customary. The Division presented the testimony of Mr. Peter Dunbar, accepted by the Association as an expert in reasonable and customary attorney's fees and in condominium association law. Mr. Dunbar's testimony as to reasonable and customary attorney's fees was credited on several matters of dispute. It would be reasonable and customary to bill only .6 hour for the telephone call from attorney Thomas Morton and computer communication to the client--the entry on the invoice dated October 19, 2015. On the entry dated November 9, 2015, to prepare and serve the response to the Administrative Complaint, 3.0 hours would be reasonable and customary, in addition to .4 hour to correct a mistake in the Petition. It is accepted that it was prudent for the Association to prepare a Motion to Dismiss as indicated on the invoice entry dated December 7, 2015, even though it seemed likely that Petitioner was going to dismiss without it, and in fact did so. However, Mr. Dunbar's contention that 3.9 hours to prepare the Motion to Dismiss was unreasonable is accepted. As Mr. Dunbar testified, the document substantially duplicated the content of the Petition Involving Disputed Issues of Material Fact that had been prepared earlier; no additional research was required. One hour is reasonable and customary. On the three entries dated December 9, 2015, related to preparation and service of subpoenas, this is a task customarily conducted by an assistant or paralegal; attorney time of .1 hour would be reasonable and customary to oversee this work. On the entry dated December 16, 2015, for an e-mail exchange with attorney Robin Smith, .1 hour would be reasonable and customary. On the three entries dated December 17, 2015, to prepare and serve routine Notices of Cancellation, .1 hour would be reasonable and customary. Finally, a reasonable and customary time to prepare a motion for prevailing party fees and affidavit from existing information, reflected in the January 4, 2016, entry, would be 1.5 hours. The Association showed that attorney's fees in the amount of $13,050.00 were reasonable and customary, based upon the adjusted total of 34.8 hours. With respect to costs, the claimed amount of $174.00 for "Electronic Records Fee" was vague and non-specific; it was not shown to be reasonable. The remaining costs, in the amount of $320.00, were proven by the Association. As the parties stipulated, no special circumstances exist that would make an award of fees and costs unjust. The action of the Division in filing the Notice to Show Cause was substantially justified on the facts and the law.
The Issue The issue framed by the Notice to Show Cause is whether Allison on the Ocean, Inc., violated Section 718.502(2)(a), Florida Statutes (1984 Supp.) by accepting a deposit of $85,000 and executing a "Memorandum of Agreement" with Hildagard Waltraud Bitton when that Memorandum of Agreement had not been approved for use as a reservation agreement form by the Division of Land Sales Condominium and Mobile Homes?
Findings Of Fact Allison on the Ocean, Inc., is an active, for profit Florida Corporation (PX 4). 1/ Ms. Chantal Fianson is the owner of all five hundred shares of authorized stock in Respondent (PX 4; testimony of Ms. Fianson). The Allison Hotel in Miami Beach, consisting of studio apartments, was leased by Ms. Fianson. She intended to convert it to condominium ownership. Apparently the lease was held in the name of Allison on the ocean, Inc. An attorney was retained by Ms. Fianson to prepare the necessary papers for the condominium conversion. In connection with that conversion application, a reservation deposit agreement had been submitted to the Department of Business Regulation, copy of which was entered into evidence as PX 2. After those conversion papers were submitted to the Division in Tallahassee, Ms. Fianson was informed in April 1954 that the condominium conversion would not be approved because although she had a long-term lease, a condominium project required ownership of the land on which the building stood (testimony of Ms. Fianson). Before the Department of Business Regulation declined to approve the condominium project as originally proposed by Ms. Fianson, on March 2, 1984, an agreement entitled "Memorandum of Agreement" was executed between Allison on the ocean, Inc., and Hildagard Waltraud Bitton by their respective representatives stating Ms. Bitton's intent to purchase or sublease three units in the property (PX 1). That memorandum shows by its terms that it was not intended to be the contract for the purchase and sale of the units. It provided for the cancellation of the agreement within ninety days, at the buyer's option, and stated that the validity and the interpretation of the agreement would be governed by Florida law (PX 1 paragraph 7). Ms. Bitton paid $85,000 to Allison on the Ocean, Inc., in connection with this Memorandum of Agreement, which money was then used for expenses related to the conversion of the building to a condominium (testimony of Ms. Fianson). Significantly, the prefatory "whereas" clauses in the agreement stated that "Developer is in the process of converting the Allison Hotel, located at 6261 Collins Avenue, Miami Beach, Florida to a Condominium . . ." after which by hand interlineation was written "or SUB LEASE" and the initials of the representatives of both parties appear. The memorandum expressed the intention of the parties that if the proposed condominium conversion were not approved, Ms. Bitten would receive not a fee ownership in condominium units, but a sublease of an unspecified term from the lessee-developer, under the long-term lease which the Respondent did have on the Allison Hotel. The attorney for the purchaser/lessee Ms. Bitten drew up the Memorandum of Agreement (PX 1), and it was not submitted to the Division for review before it was executed. After learning in April 1984 that the condominium project would not be approved, Ms. Fianson did arrange to purchase the land from its owner, and another lawyer was obtained to file condominium documents reflecting the fee ownership by the developer. In the interim, the condominium market became very bad, and ultimately the bank which had provided the Respondent the purchase money mortgage for the property foreclosed on the Allison Hotel. The evidence does not show whether the $85,000 which was used in the conversion process was ever returned to Ms. Bitton.
Recommendation It is recommended that the notice to show case issued in this case be dismissed. DONE AND ORDERED this 5th day of September 1986 in Tallahassee, Leon County, Florida. WILLIAM R. DORSEY Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 5th day of September 1986.
The Issue The issues in this case are whether Respondent, Juan C. Chavarriaga, committed the violations alleged in a four-count Administrative Complaint issued by Petitioner, the Department of Business and Professional Regulation, Division of Real Estate, on January 17, 2008, and, if so, what disciplinary action should be taken against his Florida real estate broker associate license.
Findings Of Fact Petitioner, the Department of Business and Professional Regulation, Division of Real Estate (hereinafter referred to as the “Division”), is an agency of the State of Florida created by Section 20.165, Florida Statutes, and charged with the responsibility for the regulation of the real estate industry in Florida pursuant to Chapter 475, Florida Statutes. Respondent, Juan C. Chavarriaga, is, and was at the times material to this matter, the holder of a Florida real estate broker associate license, license number 3130017, issued by the Division. At all times relevant, Mr. Chavarriaga was employed as a real estate associate with Ocampo & Alvarez Realty LLC. On or about March 30, 2006, Mr. Chavarriaga rented real property (hereinafter referred to as the “Subject Property”) to Carlos Alvarez for an annual lease amount of $18,000.00 or $1,500.00 per month (Pre-hearing Stipulation). The Subject Property was rented pursuant to a Residential Lease for Single Family Home and Duplex agreement (hereinafter referred to as the “Lease”) which was entered into on or about March 30, 2006 (Petitioner’s Exhibit 5). Mr. Chavarriaga, according to an admission he made to Veronica Hardy, a Division investigator, received rent paid for the rental of the Subject Property pursuant to the Lease. According to an admission of Mr. Chavarriaga, the Subject Property was owned by Claudia Mejia. Mr. Chavarriaga’s real estate broker employer was unaware of the Lease or Mr. Chavarriaga’s involvement therein. The Lease was entered into without written permission from Ms. Mejia, according to another admission of Mr. Chavarriaga. The evidence failed to prove, however, that Ms. Mejia was unaware of the Lease or that she had not verbally authorized Mr. Chavarriaga to rent the Subject Property on her behalf. Mr. Chavarriaga also admitted to Ms. Hardy that he received rents pursuant to the Lease which were deposited with a company named Maux Management. What Maux Management is was not proved. Nor was it proved that Mr. Chavarriagag owned Maux Management. As to what was done with moneys received pursuant to the Lease, the only competent substantial evidence again consists of an admission by Mr. Chavarriaga: he told Ms. Hardy that the rents were deposited with Maux Management, which then paid part of the proceeds for reasonable expenses related to the Lease and deposited the remainder in the account of Ms. Mejia.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Business and Professional Regulation, Division of Real Estate: Dismissing Counts I and II of the Administrative Complaint; Finding that Mr. Chavarriaga is guilty of the violation alleged in Counts III and IV of the Administrative Complaint; and Suspending Mr. Chavarriaga’s real estate associate license for a period of one year and requiring that he pay an administrative fine of $1,000.00. DONE AND ENTERED this day of 8th day of September, 2008, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of September, 2008. COPIES FURNISHED: Patrick J. Cunningham, Esquire Department of Business and Professional Regulation 400 West Robinson Street Hurston Building-North Tower, Suite N801 Orlando, Florida 32801 Alan A. Glenn, Esquire 14629 Southwest 104 Street, No. 432 Miami, Florida 33186 Thomas W. O’Bryant, Jr., Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Hurston Building-North Tower, Suite N802 Orlando, Florida 32801 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact In 1974 the developer of Suntide Condominiums commenced marketing its 80 condominium units. The prospectus included the charter of the association (incorporated not for profit on October 22, 1974) and the proposed Declaration of Condominiums (executed June 24, 1975 and recorded July 30, 1975). These documents were given to purchasers at the time the contract to purchase was signed, with either party having the right to cancel the contract within 15 days. Two units were sold in the Spring of 1975, with closing occurring in August of that year. In the interim 711.14, Florida Statutes, 1973, was amended effective July 1, 1975, to change the method that may be used far assessing for common expenses from "according to the declaration" to "percent of ownership." Chapter 75-224, Laws of Florida, 1975. Subsequently all the units were sold and the control of the Association was transferred from the developer to the unit owners in March of 1977. The declaration has always provided that expenses involving the common elements be prorated at 1.25 percent for each unit. However, the percent of ownership of the common elements is based on the size of the owner's unit and varies from .9508 percent to 1.68444 percent. Of the owners of the 80 units in the condominium, 49 (61.25 percent) own less than 1.25 percent of the common elements, and 31 (38.75 percent) own more than 1.25 percent. Seventy-five percent of the unit owners are required to vote for a change in the method of assessing common expenses. Association attempts to conform the declaration to the law have failed.
Conclusions The Petitioner in its show cause requests an order requiring the Respondent to cease and desist the present method of assessing common expenses and to change the method of assessing common expenses, and any other affirmative relief that might be appropriate; the request for imposition of a civil penalty was withdrawn at the conclusion of the hearing. Petitioner's enforcement powers are found in Section 718.501 Florida Statutes (1979), which reads in pertinent part: The Division ... in addition to ... Chapter 478 ... [I]n performing its duties... shall have the following powers and duties: (b) Notwithstanding any other remedies ... the division may institute enforcement proceedings in its own name against any ... association ... as follows: The division may issue cease and desist orders pursuant to Section 478.171. The division may bring an action in circuit court for declaratory relief, in- junctive relief, or restitution on behalf of a class of unit owners or lessees. Respecting the cease and desist request, Section 478.171 [now found In Section 498.061, Florida Statutes (1979)] deals with the subject of: fraudulent practices in advertising, promoting or selling land; making substantial changes in registered subdivided lands without approval; or selling subdivided land which is not registered. There were no allegations of this type of impropriety in this case, therefore, cease and desist is not an appropriate remedy. The only other recommendation that can be made is that the Division proceed in the Circuit Court as requested by the Complainant. See also Peck Plaza Condominium v. Division of Florida Land Sales and Condominiums, 371 So.2d 152 (1 DCA Fla. 1979) It is therefore, RECOMMENDED: That the petition of the Division of Florida Land Sales and Condominiums be dismissed for lack of jurisdiction. DONE and ORDERED this 12th day of September, 1980, in Tallahassee, Florida. HAROLD E. SMITHERS Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Lawrence A. Farese, Esquire Special Counsel Department of Business Regulation 726 South Bronough Street The Johns Building Tallahassee, Florida 32301 Shields McManus, Esquire River Oak Center 401 Osceola Street Stuart, Florida 33494 ================================================================= AGENCY FINAL ORDER =================================================================
The Issue The issues are whether Respondent engaged in a discriminatory housing practice, in violation of the Florida Fair Housing Act, Sections 760.20 through 760.37, Florida Statutes (2007),1 by refusing to grant an accommodation which would have allowed Ms. Rose Marie Owens to keep a comfort cat in her condominium, and, if so, the amount of damages suffered by Ms. Owens.
Findings Of Fact Ms. Owens was a resident owner of a condominium in Longboat Harbour Condominiums (Longboat Harbour) during the alleged unlawful housing practice. Ms. Owens was a seasonal resident of the condominium from sometime in July 1987 through March 2007. Ms. Owens still owns the condominium at Longboat Harbour with Mr. Hank Airth, her husband. However, Ms. Owens and Mr. Airth purchased a second condominium after the alleged unlawful housing practice, and Ms. Owens and Mr. Airth no longer reside in the Longboat Harbour condominium. Longboat Harbour is a covered, multifamily dwelling unit within the meaning of Subsection 760.22(2). The Longboat Harbour condominium owned by Ms. Owens and Mr. Airth was a dwelling defined in Subsection 760.22(4) at the time of the alleged unlawful housing practice. Respondent is the entity responsible for implementing the rules and regulations of the Longboat Harbour condominium association. Relevant rules and regulations prohibit residents from keeping cats in their condominiums. Sometime in May 2006, Ms. Owens requested Respondent to permit her to keep a comfort cat, identified in the record as “KPooh,” as an accommodation for an alleged handicap. Respondent refused the requested accommodation, and this proceeding ensued. In order to prevail in this proceeding, Petitioner must first show that Ms. Owens is handicapped. Neither Petitioner nor Ms. Owens made a prima facie showing that Ms. Owens is handicapped within the meaning of Subsection 760.22(7). Cross-examination of Ms. Owens showed that Ms. Owens suffers from a cardiovascular ailment, osteoarthritis, and a trigeminal nerve condition. Surgery performed sometime in the 1990s improved the nerve condition. After the surgery, all of the medical conditions of Ms. Owens have been successfully treated with various medications, with no significant modification of the medications before and after Ms. Owens acquired KPooh in 2000. The testimony of Ms. Owens during cross-examination shows that Ms. Owens has never been diagnosed as suffering from depression. Nor does that testimony show that Ms. Owens has ever been diagnosed with panic disorders or panic attacks. Finally, the testimony of Ms. Owens during cross-examination shows that Ms. Owens has never been diagnosed with an emotional or psychiatric condition. A preponderance of the evidence does not show that any of the health problems suffered by Ms. Owens substantially limits one or more major life activities. Nor does Respondent regard Ms. Owens as having a physical or mental impairment. Ms. Owens and others testified concerning the medical conditions of Ms. Owens. None of that testimony showed that the medical conditions substantially limit one or more major life activities for Ms. Owens. Mr. Airth drives the vehicle for Ms. Owens most of the time and prepares most of the meals at home. However, Mr. Airth performs both life activities because he wishes to perform them. Neither Mr. Airth nor Ms. Owens testified that Ms. Owens is unable to perform either life activity. Part of the therapy medically prescribed for Ms. Owens is a special bicycle for exercises that will improve some of the medical conditions of Ms. Owens. However, as Ms. Owens testified, “I have not submitted to that . . . [because] I hate exercise.” Ms. Owens admits that exercise therapy would improve some of her medical conditions. Ms. Owens first took possession of KPooh in 2000. KPooh was a stray cat that showed up at the primary residence of Ms. Owens and Mr. Airth in Maryland. KPooh was hungry. Ms. Owens gave KPooh food and adopted KPooh. Petitioner attempts to evidence the alleged handicap of Ms. Owens, in relevant part, with two letters from the primary care physician for Ms. Owens. Each letter was admitted into evidence without objection as Petitioner’s Exhibits 3 and 4. The first letter, identified in the record as Petitioner’s Exhibit 3, is dated May 4, 2006. The text of the letter states in its entirety: Mrs. Owens has been a patient of mine since 1990. I know her very well. It is my opinion that she would suffer severe emotional distress if she were forced to get rid of her cat. I request an exception to the “No Pet” rule in her particular case. I understand that the cat is confined to her home, and that it is not allowed outside to disturb other residents. Petitioner’s Exhibit 3 (P-3). The first letter contains no diagnosis of an existing physical or mental impairment. Nor does the first letter evidence a limitation of a major life activity that is caused by a physical or mental impairment. The first letter opines that Ms. Owens, like many pet owners, would suffer severe emotional distress if she were required to get rid of her pet. However, the letter contains no evidence that the potential for severe emotional distress, if it were to occur, would substantially limit one or more major life activities for Ms. Owens. The second letter, identified in the record as Petitioner’s Exhibit 4, is dated January 2, 2007. The text of the letter consists of the following three paragraphs: Mrs. Rose Marie Owens is my patient. She has been under my care since 1990. I am very familiar with her history and with her functional limitations imposed by her medical conditions. She meets the definition of disability under the various Acts passed by the Congress of the United States since 1973. Mrs. Owens has certain limitations related to stress and anxiety. In order to help alleviate these limitations, and to enhance her ability to live independently, and to use and enjoy fully the unit she owns at Longboat Harbour Condominium, I have prescribed her cat, K-Pooh, as an emotional support animal. This should assist Mrs. Owens to cope with her disability. I am familiar with the literature about the therapeutic benefits of assistance animals for people with disabilities. Should you have questions concerning my recommendation for an emotional support animal for Mrs. Owens, please contact me in writing. P-4. The second letter does not identify a specific physical or mental impairment. The letter does not disclose what health conditions comprise Ms. Owens “medical conditions.” The letter does not describe the “functional limitations” that the doctor concludes, as a matter of law, satisfy the legal definition of a disability. Nor does the letter specify what major life activities are limited by the patient’s medical conditions. The second letter opines that KPooh will enhance the ability of Ms. Owens to live independently. The letter does not opine that KPooh is necessary for Ms. Owens to live independently. There is no evidence that KPooh is trained as a service animal. The two letters from the primary care physician of Ms. Owens are conclusory and invade the province of the trier- of-fact. The two letters do not provide specific and precise factual accounts of the medical conditions of Ms. Owens and the limitations that those conditions impose on major life activities. The two letters deprive the fact-finder of the opportunity to review and evaluate the specific and precise facts underlying the medical and legal opinions reached by the doctor. The two letters deprive the ALJ of the opportunity to independently decide the legal significance of any medical findings, which are not disclosed in either of the letters.2 Petitioner called as one of its witnesses a member of the Board of Directors (Board) for Respondent who had recommended that the Board approve the accommodation requested by Ms. Owens. Petitioner presumably called the witness, in relevant part, to bolster the two letters from the treating physician for Ms. Owens. The witness testified that his recommendation placed great weight on the fact that the doctor who authored the two letters is a psychiatrist. The undisputed fact is that the doctor specializes in internal medicine, not psychiatry. Petitioner attempted to show that Respondent’s stated reasons for denial of the accommodation were a pretext. Petitioner relied on evidence that arguably showed Respondent did not adequately investigate the alleged handicap of Ms. Owens before denying her request for an accommodation. Respondent made adequate inquiry into the alleged handicap when Ms. Owens requested an accommodation. Respondent requested a letter from the treating physician, which resulted in the letter that became Petitioner’s Exhibit 3. Finding that letter less than instructive, Respondent requested a second letter that became Petitioner’s Exhibit 4. Respondent properly determined that letter to be inadequate. In any event, this proceeding is not an appellate review of the past conduct of Respondent. This proceeding is a de novo proceeding. Counsel for Respondent fully investigated the medical conditions and alleged handicap of Ms. Owens prior to the final hearing. The investigation included pre-hearing discovery through interrogatories and requests for medical records.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 26th day of June, 2009, 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 26th day of June, 2009.
The Issue Whether or not Respondent's registration as a real estate salesman should be revoked for violation of Section 475.25(2), F.S. The Hearing Officer explained to the Respondent the nature of the hearing and his rights under the Administrative Procedure Act, including the right to be represented by counsel at his own expense if he so desired. It was also explained to the Respondent that he could testify in his own behalf, that he is not required to do so, and that if he did so testify, he could be cross-examined by counsel for Petitioner. Respondent acknowledged understanding of these rights and elected not to testify in his own behalf.
Findings Of Fact 1. Counsel for Petitioner introduced into evidence Respondent's application for registration as a real estate salesman (Petitioner's Exhibit 1) and rested his case. No evidence was introduced in support of the allegation against the Respondent.
Findings Of Fact The Respondent holds Real Estate Salesman's License No. 0355517 issued by the Board of Real Estate. Petitioner is employed as a real estate salesman at Norma Star Realty, Key Largo, Florida. During October, 1980, the Respondent applied for licensure as a real estate salesman with the Board of Real Estate. His application was approved, and the Respondent was admitted to the examination, which he passed. The Board of Real Estate issued a real estate salesman's license to the Respondent during December, 1980. In applying for licensure, the Respondent filled out the Board of Real Estate's standard application form. Paragraph 6 of the form sets out the following inquiry: Have you ever been arrested for, or charged with, the commission of an offense against the laws of any municipality, state or nation including traffic offenses (but not parking, speeding, inspection or traffic signal violations) without regard to whether convicted, sentenced, pardoned or paroled? The Respondent answered "No" to this inquiry. The Respondent has been arrested on several occasions. On July 29, 1964, he was arrested in Las Vegas, Nevada, on a charge of sodomy. On August 6, 1964, he was arrested in Las Vegas, Nevada, on a charge of rape. On May 22, 1966, he was arrested in Las Vegas, Nevada, on the charge of notorious cohabitation. On January 31, 1969, he was arrested in Miami, Florida, on the charge of board bill fraud. All of these charges were ultimately dismissed. The Respondent was neither tried nor convicted in connection with any of the charges. The Respondent had been licensed as a real estate salesman in the State of Michigan. While in Michigan, he retained counsel, now deceased, who advised him that all of the Las Vegas arrests had been expunged from the Respondent's record, and that the Respondent could respond in the negative to inquiries as to whether he had ever been arrested.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby RECOMMENDED: That a final order be entered by the Department of Professional Regulation, Board of Real Estate, dismissing the Administrative Complaint filed against the Respondent, Michael Timothy McKee. RECOMMENDED this 10th day of December, 1981, in Tallahassee, Florida. G. STEVEN PFEIFFER Assistant Director 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 10th day of December, 1981. COPIES FURNISHED: Harold W. Braxton, Esquire 45 S.W. 36th Court Miami, Florida 33135 Arthur L. Miller, Esquire 9101 S.W. 66th Terrace Miami, Florida 33173 Mr. Samuel R. Shorstein Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Frederick H. Wilsen, Esquire Assistant General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Carlos B. Stafford Executive Director Board of Real Estate Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802
