The Issue The issues are whether the Petitioner lawfully revoked John Brotherton’s exemption for the repair or replacement of a dock in submerged lands and whether Respondent timely requested a hearing.
Findings Of Fact Intervenor is the successor by merger with Bankers Real Estate Investment Company. References to Intervenor shall include Bankers Real Estate Investment Company. Intervenor submitted to condominium ownership the property that, following condominium construction, has become known as Sportsman’s Riverside Townhomes Association (Sportsman’s). This property borders the Homosassa River. Subject to the legal effect of the transactions described below, Sportsman’s owns the riparian rights to the area upon which a dock owned by Respondent is located. By warranty deed dated February 1, 1984, David J. Steward acquired Sportsman’s condominium unit five. The deed contains no reference to a dock, but conveys only unit number five and an undivided share in the common element. However, by letter to Mr. Steward dated June 19, 1984, the Chairman of Bankers Real Estate Investment Corp. agreed that, in consideration of Mr. Steward’s execution of amended condominium documents, the developer “will” assign Mr. Steward more parking spaces and “[y]our boat dock will remain permanently assigned to your unit as a limited common element reserved for use by your unit.” On October 12, 1990, David J. Steward conveyed Sportsman’s condominium unit number five to Respondent. The deed conveyed “items of personal property including the private dock thereon.” On April 20, 1993, Respondent applied to Petitioner for an exemption to repair the dock that Mr. Steward had sold him. The dock had been damaged in a storm the prior month. The application includes a copy of the warranty deed to Respondent. The deed reveals that Respondent owns only a single unit of a condominium project, but the application does not name the condominium association as an adjacent property owner. Respondent checked the form on the application stating that he was the record legal owner of the “property on which the proposed project is to be undertaken.” The application states that the dock is a floating dock for the private docking of Respondent’s boat. The application reports that the dock is 128 square feet in area. By letter dated June 1, 1993, Petitioner granted Respondent the requested exemption from permitting, “[b]ased solely upon the documents submitted to the Department ” The letter adds that the exemption constitutes “authorization from the Board of Trustees Pursuant to a Memorandum of Agreement entered into on November 23, 1992.” The letter warns that Petitioner may revoke the exemption determination “if the basis for the exemption is determined to be materially incorrect . . ..” The Memorandum of Agreement dated November 23, 1992, (MOA) is between the predecessor agency to Petitioner and the Board of Trustees of the Internal Improvement Trust Fund (Board of Trustees). In the MOA, the Board of Trustees authorizes the use of state-owned submerged lands for all activities (subject to irrelevant exceptions) for which Petitioner grants exemptions from environmental resource permitting. By letter dated April 24, 1996, Petitioner informed Respondent that it had learned that Respondent had supplied “materially incorrect” information in the application submitted with the April 20, 1993, letter. The April 24 letter explains that Respondent asserted in the application that it was the record owner of the property, but the warranty deed revealed that he was not. The April 24 letter gives Respondent 21 days from receipt within which to file a petition requesting a formal administrative hearing. Respondent timely filed his request for a hearing. The facts do not establish a waiver of Respondent's right to demand a hearing. Petitioner did not rely on Respondent’s representation that he was the owner of the property on which the dock was located. The warranty deed attached to the application clearly revealed that Respondent owned only a condominium unit and undivided interest in the common element. Petitioner also knew that the state owned the submerged land at the dock.
Recommendation It is RECOMMENDED that the Department of Environmental Protection enter a final order dismissing the proceeding seeking the revocation of the exemption from the Department and consent from the Board of Trustees. ENTERED in Tallahassee, Florida, on June 10, 1997. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings on June 10, 1997. COPIES FURNISHED: Perry Odom, General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Albert E. Ford, II, Esquire Mail Station 35 3000 Commonwealth Boulevard Tallahassee, Florida 32399-3000 John Brotherton 6304 North Otis Avenue Tampa, Florida 33604 Robert G. Southey, Esquire Delano & Southey Post Office Box 15707 St. Petersburg, Florida 33701-5707 Kathy Carter, Agency Clerk Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
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.
Findings Of Fact The Declaration of Condominium for Oaks of Broward was filed by Margen, a Florida Partnership, in May, 1974 in the Public Records of Broward County and with the Petitioner. All documents required to be filed by Margen with Petitioner were filed and the fees paid. Simultaneously a recreational lease was filed of property adjacent to the condominium in which Barnett Bank of Hollywood was named as Trustee and Lessor, and The Oaks Condominium Association, Inc. of Broward as Lessee. Between May 1974 and early 1976 Margen sold to individuals 39 condominium units at Oaks of Broward. In early 1976, Housing Investment Corporation, mortgagee, began foreclosure proceedings which resulted in title to all of the Oaks condominium property, except for the 39 units previously sold, being taken by The Oaks of Broward, Inc., Respondent. Thereby Respondent became successor in title to the previously unsold 75 units in the building and to the position of the Lessor on the long-term recreational lease. On or about August 1977, Respondent offered for sale the 75 condominium units pursuant to prospectus admitted into evidence as Exhibit 2. In addition thereto and as part of the sales effort Respondent executed and recorded the Declaration Waiving Rents, a copy of which was admitted into evidence as Exhibit Neither of these documents was filed with Petitioner. The 75 units owned by Respondent were sold with the recreational lease rents waived. Pursuant to the terms of the recreational lease the original 39 buyers pay $20 per month, either to the Association or directly to the Lessor. This lease is a net/net lease, which means the Lessor performs no services except to provide the premises themselves. The Condominium Association is responsible for and pays all maintenance, taxes, upkeep and expenses for the operation of the Recreation Area. All condominium units, the original 39 as well as the remaining 75, pay to the Association, as part of the common expenses, their pro rate share of those operating expenses. It is this disparate treatment of the two groups of unit owners with respect to the recreational lease rent payment of $20 per month that is one subject of Petitioner's request for a cease and desist order. The second subject of the Petition for a cease and desist order is Petitioner's contention that Respondent is a Developer and is required to file documents and pay a $10 filing fee for each of the 75 condominiums sold, regardless of whether fees for these 75 units were paid by Respondent's predecessor in title.
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.
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.
The Issue Whether or not the Respondent, Michael H. Cohen, based on conduct set forth hereinafter in detail, is guilty of fraud, misrepresentation, false promises and breach of trust in a business transaction in the State of Florida, in violation of subsection 475.25(1)(b), Florida Statutes (1979). Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received, the transcript of the proceedings, and the entire record compiled herein, I hereby make the following relevant:
Findings Of Fact By its Administrative Complaint filed herein signed September 29, 1981, the Petitioner, Florida Real Estate Commission (herein called the "Commission" or "Petitioner") seeks to suspend, revoke, or take other disciplinary action against the Respondent as licensee, and against his license as a real estate broker under the laws of the State of Florida. Respondent is a licensed real estate broker who has been issued license No. 0209033. On February 17, 1978, Michael Rappaport sold ten townhouse units in Collonade Condominiums, 2275 N.E. 122nd Street, North Miami, FLORIDA, to the Respondent. The Respondent purchased the townhouses, by deed, in the name of his mother-in-law, Luz Sanabria. At the time of this conveyance, Michael Rappaport owed $2,400 in condominium assessments to the Collonade Condominium Association and, at that time, foreclosure proceedings by the mortgagee, Dade Federal Savings and Loan Association, were pending for failure to pay the mortgages (by Rappaport). Respondent, as agent for Ms. Sanabria, contacted the condominium association and made promises to pay the past due assessments. As stated, following transfer of the title to the Respondent, there remained owing to the condominium association past due assessments by the Respondent. The Respondent negotiated a settlement with the condominium association for payment of the delinquent assessments; however, the Respondent defaulted on the terms of the settlement for payment of the delinquent assessments. On September 25, 1979, Collonade Condominium Association obtained a judgment against Respondent for $7,094.40 which remained unsatisfied at the time of the hearing herein. It is based upon the above-referred to facts that the Petitioner contends that Respondent is guilty of fraud, misrepresentation, false promises and breach of trust in a business transaction in the State of Florida in violation of subsection 475.25(1)(b), Florida Statutes (1979). Respondent takes the position that (1) he was not the real party in interest inasmuch as he was attempting to execute a favorable transaction on behalf of his mother-in-law, and (2) that he attempted to strike deals, negotiate settlements and that to do otherwise, either in his capacity as a real estate agent or as a son-in-law, he would be remiss. To support his position, Respondent points to the fact that he retained a knowledgeable mortgage broker to remove these properties from foreclosure proceedings and to attempt to renegotiate, restructure or otherwise put these mortgages, which were in foreclosure, back into current status. Additionally, Respondent avers that there is nothing improper respecting his attempt to negotiate a settlement with the condominium association, which was an everyday common practice. Respondent admits that he personally agreed to repay the condominium association, which agreement was defaulted and resulted in a judgment being entered against him. However, Respondent's position is that these were matters of a personal nature and were in no manner conduct amounting to fraud, misrepresentation, concealment and false promises, false pretenses, dishonest dealing by trick, scheme, or device or any other acts of conduct which subject him to disciplinary action pursuant to Section 475.25, Florida Statutes, Subsection 1(b) thereof.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Administrative Complaint filed herein be DISMISSED. RECOMMENDED this 22nd day of December, 1982, 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 22nd day of December, 1982. COPIES FURNISHED: Theodore J. Silver, Esquire 9445 Bird Road Miami Florida 33165 Walter F. McQuade, Esquire 700 Northeast 125th Street North Miami, Florida 33161 William Furlow, Esquire Department of Professional Regulation - Legal Section P.O. Box 1900 Orlando, Florida 32802 Mr. C. B. Stafford Executive Director Florida Real Estate Commission P.O. Box 1900 Orlando, Florida 32802 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether Respondents committed the unlawful housing discrimination practices alleged in the Housing Discrimination Complaint filed with the Florida Commission on Human Relations ("FCHR") and, if so, what relief should Petitioner be granted.
Findings Of Fact Petitioner is an African-American female. Petitioner is a "unit owner" of a condominium located at 210-174th Street #310, Sunny Isles Beach, Florida. Said unit is located in the Winston Towers 600 Condominium ("Condominium"). Respondent, the Association, is a Florida non-profit corporation and the entity responsible for the operation of the Condominium. Respondent, Board of Directors, possesses the powers and duties necessary for the administration of the affairs of the Condominium. Pursuant to the Association By-Laws, the affairs of the Association are to be governed by a board of initially three, and not less than three, nor more than nine directors. Respondent, Jorge Nunez, was the President of the Association's Board of Directors at all times material to the Complaint. During his tenure, Mr. Nunez was also the chairman of the financial committee.4/ Respondent, Monica Zarante, possesses a Florida Community Association Manager ("CAM") license and at all times material was the Association's manager. Condominium Facilities and Services Pursuant to the Condominium prospectus, the following facilities have been constructed in the Condominium, and form a part of the "common elements" of the Condominium and are to be used exclusively by the unit owners, their tenants, and guests: clubroom and entertainment areas (billiard room, library, men's and women's card rooms, meeting room and kitchen, bicycle room, and large screen television room); (b) main lobby; (c) mail room; (d) laundry room and vending machine room; (e) association office; (f) four elevators; (g) recreational facilities (tennis court, recreation pavilion, men and women's health clubs, party room, and sun deck); (h) L-shaped swimming pool; (i) jogging trail; (j) two shuffleboard courts; and (k) an irregularly-shaped reflecting pool. Pursuant to the Condominium prospectus, the following are the delineated utilities and services available to the Condominium: electricity, telephone service, waste disposal, domestic water supply, sanitary sewage, storm drainage, and master antenna service. Association Committees As noted above, Petitioner's Complaint alleges that, "sometime in 2012 she was denied her right to participate on Association committees because of her race." Association By-Law 5.2 addresses committees and provides as follows: Committees. The Board of Directors may designate one or more committees which shall have the powers of the Board of Directors for the management of the affairs and business of the Association to the extent provided in the resolution designating such a committee. Any such committee shall consist of at least three members of the Association, at least one of whom shall be a Director. The committee or committees shall have such name or names as may be determined from time to time by the Board of Directors, and any such committee shall keep regular minutes of its proceedings and report the same to the Board of Directors as required. The foregoing powers shall be exercised by the Board of Directors or its contractor, manager or employees, subject only to approval by Unit Owners when such is specifically required. Respondent Nunez credibly testified that the availability to participate on committees is open to all unit owners. If an owner wishes to be on a committee, he or she simply needs to communicate that desire to the particular committee chairperson. Mr. Nunez, at some point in time, was apparently the chairman of the financial committee. In Petitioner's direct examination of Respondent Nunez, the following exchange occurred: Q. Okay. Did you say, "You sit at this table with us, never?" A. Never. I can't say that. I can't say "never." I cannot reject anybody to belong to any committee. I can't. It's impossible. Q. Okay. A. I like you, I don't like you, you want to be on the committee, you have a right to be on the committee. Petitioner testified that she was denied access to the financial committee to which Mr. Nunez chaired. Petitioner failed, however, to present sufficient evidence for the undersigned to determine whether this alleged denial occurred during the time relevant to the allegations of Petitioner's Complaint. Even if relevant, outside of her bare assertion, which is not credited, Petitioner failed to present sufficient evidence to establish that she was ever denied the right to participate on any Association committee. As a subset, Petitioner argues that she was denied "meaningful participation" on the committees, and thus, in condominium decision-making. In support of this contention, Petitioner references the testimony from Association Board Member Audrey Bekoff. In response to Petitioner's question of "why did the Petitioner point her finger at you?," Ms. Bekoff responded as follows: I haven't got the slightest idea. When you get angry, you pull your hair, you scream, you yell, you wipe the things off Monica's desk. You knock the things off. Everybody knows you on the Board. When you come into the meeting, everybody leaves. Petitioner contends that the "refusal to allow her to participate arose from Respondents' extreme dislike for her, and this extreme dislike was likely based, at least in part, on her race." Petitioner's contention, however, is belied by the record evidence. Indeed, audio recordings of various Association meetings provide multiple examples of Petitioner's robust participation in a variety of condominium issues. Assuming, arguendo, that Petitioner provided evidence to support the position that she is not well-liked, aside from her bald allegation, she failed to present any evidence of discriminatory animus in regards to Association committee participation. Association Records Petitioner claims she was denied access to the Association's financial records (in general) and records related to a particular condominium unit, Unit 2007, on the basis of her race. Petitioner alleges that the records requests were made on July 30, 2012, and November 1, 2012. Monica Zerante testified that the Association's protocol for requesting records from the Association included submitting a request in writing, and, thereafter, the Association provides a copy of the requested document or the requesting party may be given access to find the document. She further explained that the Association's policy is to charge 25 cents per copy; however, that charge is frequently waived. Mr. Nunez provided the further detail that once the Association receives a records request, the Association has ten days to accommodate the request. Although the Association has established rules regarding the frequency and time of record inspections and copying, Mr. Nunez credibly testified that same were not enforced concerning Petitioner. It is undisputed that on at least one occasion, while Petitioner was present in the Association's office for the purpose of inspecting/reviewing Association documents, a conflict arose between Petitioner and Monica Zerante such that Ms. Zerante requested law enforcement assistance. In support of her contention that she was treated differently because of her race, Petitioner testified as follows: Okay. Mr. Nunez, while not on the Board, goes to the office and he gets a monthly statement of the Association operating budget on a monthly basis and he is entitled to that. I go and request the same thing and I'm told I have to pay for it. And if I object to paying for it, then the police is called. * * * Q. You have no evidence that Mr. Nunez, when he was off the Board, did not similarly have to pay for records, correct? A. I have seen with my eyes that he has not. Q. Well, you have no idea if he actually paid for those records separately, do you? A. I've never seen him pay for that. Inconsistently, Petitioner subsequently testified that, at times, like Mr. Nunez, she was also provided documents free of charge. Petitioner failed to present sufficient evidence to establish that any document that the Association was required to maintain (and not prohibited from disclosure) was not, in fact, provided or made available for inspection. Respondents' witnesses credibly testified that Petitioner had access to all available documents, and their testimony was buttressed by the record evidence. Furthermore, a review of the record reveals that Respondents' legal counsel, on multiple occasions, provided written responses to Petitioner's document requests.5/ Even if Petitioner had presented sufficient evidence to establish that she was denied access to the Association's records, Petitioner failed to present sufficient evidence to establish that any such denial was due to any discriminatory animus on the basis of her race.6/ Access to Property Petitioner's Access The original Condominium Rules and Regulations provided that, "[a]utomobiles belonging to residents must at all times bear the identifying garage sticker provided by the Association." On July 27, 2011, Ms. Zarante, on behalf of the Condominium, authored a memorandum to all residents. The contents of the memorandum are as follows: DEAR RESIDENT, PLEASE BE INFORMED THAT AS OF TODAY, YOU MUST DISPLAY THE CAR BARCODE LABEL IN YOUR CARS AT ALL TIMES, WHILE COMING INTO THE BUILDING SO YOU CAN USE THE RESIDENT'S ENTRANCE GATE AND WHILE YOUR CAR IS PARKED IN YOUR ASSIGNED PARKING SPACE. ALSO, THE DRIVER SIDE OF THE CAR'S WINDSHIELD MUST DISPLAY THE WINSTON TOWERS LABEL SHOWING THE SPACE NUMBER. IN CASE YOU DO NOT HAVE THE BARCODE LABEL OR THE WINSTON TOWERS LABEL, PLEASE, STOP BY THE OFFICE IN ORDER TO GET THEM. IF YOU ALREADY HAVE THE CAR BARCODE LABEL DISPLAYED IN YOUR CAR, WE ASK YOU TO PLEASE REFRAIN FROM USING THE VISITOR'S GATE AND TO ALWAYS USE THE RESIDENT'S ENTRANCE GATE. On that same date, Ms. Zarante, on behalf of the Condominium, authored a memorandum to the gate security personnel. Said memorandum set forth the same information as above, and further advised the gate personnel to advise residents without the requisite barcode and label to stop by the office to obtain the same. The memorandum further instructed the security personnel as follows: SHOULD THE RESIDENT WITH A CAR BARCODE LABEL ALREADY PLACED IN THE CAR STILL DECIDES [sic] TO USE THE VISITOR'S GATE, PLEASE TELL THEM THAT YOU WILL ONLY OPEN THAT TIME FOR THEM, THAT IN THE FUTURE THEY MUST USE THE RESIDENT'S ENTRANCE GATE AS YOU WILL NOT OPEN FOR THEM. SHOULD THEY HAVE ANY PROBLEM WITH THE BARCODE LABEL, PLEASE TELL THEM TO STOP BY THE OFFICE. On September 8, 2011, the Board of Directors issued a memorandum to "Residents Using Visitor's Gate" entitled "FINAL NOTICE/RESIDENT BUILDING ACCESS." The memorandum advised the residents as follows: DEAR RESIDENT, PLEASE BE INFORMED THAT YOU MUST DISPLAY THE CAR BARCODE LABEL IN YOUR CARS AT ALL TIMES. YOU MUST USE THE CAR BARCODE LABEL AND USE THE RESIDENT'S ENTRANCE WHEN ENTERING OUR BUILDING. SHOULD YOU CONTINUE USING THE VISITOR'S GATE, WHICH IS FOR VISITORS AND DELIVERIES ONLY, YOU WILL NOT BE ADMITTED. AS AN OWNER/RESIDENT YOU WILL BE PERMITTED TO ENTER; HOWEVER, YOUR AUTOMOBILE WILL NOT. IF YOU LEAVE YOUR AUTOMOBILE IN THE VISITOR'S ENTRANCE THE POLICE WILL BE NOTIFIED AND YOUR AUTOMOBILE WILL BE TOWED. PLEASE, ABIDE BY THE RULES AND REGULATIONS TO AVOID FUTURE PROBLEMS. The Condominium maintained regular office hours of 9:00 a.m. to 5:00 p.m. for residents to obtain the aforementioned barcode/label. On or about September 14, 2011, Petitioner attempted to enter the Condominium using the visitors' gate. Despite being advised of the barcode/label requirement and the admonition against using the visitors' gate, Petitioner had not acquired the barcode/label. After the security officer advised Petitioner that he was not permitted to open the visitors' gate for residents, Petitioner entered the security gate house and opened the gate herself. As a result of her actions, law enforcement was called to the scene, and ultimately Petitioner gained access to the Condominium. Subsequently, as a result of Petitioner's actions, she was advised via correspondence that her actions were improper.7/ After obtaining the requisite barcode/label, there is no evidence that Petitioner experienced any further inconvenience regarding the gate. The undersigned finds that Petitioner was not denied access to her property. The undersigned further finds that Petitioner presented no evidence that any inconvenience regarding the gate was due to her race. Petitioner's Son Visitors of unit owners were required to pay $2.00 to park in the guest parking lot. Unit owners, like Petitioner, for the convenience of their guests, were permitted to pre-pay for a guest if the guest was anticipated to arrive that day. Carlos Devesa, a security guard at the front gate, testified that a special exception was made for Petitioner, wherein she was allowed to accept a deposit for her guests for a longer period of time. Petitioner testified that on one occasion, a security guard, who is not an employee of the Condominium or the Association, delivered a package to Petitioner's son at the front gate. Petitioner extrapolates that benefit into a denial of access to her property: Security was trying to be nice by greeting him off the property with a package that was left on the property for him. Q. Okay. What evidence do you have that was based on race? A. In the case of my son, again, he was denied access to come to the property. It wasn't because of parking, so maybe you should have been asking security what was his motivation. Q. I'm asking you because you made the allegation. A. Well, I believe that he met him out at the street because he wanted to interfere with his right to come on the property. The undersigned finds that Petitioner's son was not denied access to Petitioner's property. The undersigned further finds that Petitioner failed to present any evidence that Petitioner's son's access to Petitioner's property was denied due to her or his race. Lien Between the twelfth and fifteenth day of each month, the Association runs a "delinquency report." If it is determined that a unit owner or resident is delinquent (in maintenance fees, assessments, etc.) an initial letter is issued reminding of the delinquency. If the delinquency is not then satisfied, a thirty (30) day certified letter is issued. Thereafter, if the delinquency is not cured, the Association ceases to be involved and refers the matter to the Association's legal counsel for further handling. It is undisputed that Petitioner became delinquent in maintenance fees. Following the above protocol, a lien was ultimately placed on Petitioner's unit. Thereafter, Petitioner satisfied the maintenance fees; however, she refused to pay the attorneys' fees associated with the legal process. Petitioner contends that she was treated differently in the lien process due to her race. In support of her position, Petitioner believes that Unit 2007 was not subject to the same protocol. The evidence establishes that Unit 2007 was delinquent for a longer period of time than Petitioner's unit prior to being sent to the Association's counsel. Unlike Petitioner's unit, however, Unit 2007 was placed in foreclosure, and was ultimately sold through a foreclosure sale. The undersigned finds that a lien was placed on Petitioner's unit. The undersigned finds that Petitioner presented no evidence to establish that the lien process was initiated due to her race.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 17th day of July, 2014, in Tallahassee, Leon County, Florida. S TODD P. RESAVAGE 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 17th day of July, 2014.
Findings Of Fact At all times relevant hereto, respondent, Ezell Realty, Inc., was a licensed corporate real estate broker having been issued license number 0231943 by petitioner, Department of Professional Regulation, Division of Real Estate. Respondent, Winfield Ezell, Sr., held real estate broker's license number 0309739 issued by petitioner and was the sole qualifying broker and officer of Ezell Realty, Inc. The firm is located at 1512 West Gore Street, Orlando, Florida. Grover Crawford was an acquaintance of Ezell who was interested in purchasing certain rental property on Coretta Way in Orlando, Florida. When he was unable to purchase the property Crawford told Ezell to let him know if anything else became available in that area. Ezell happened to own a rental house at 1121 Coretta Way which he had just purchased several months earlier in a foreclosure proceeding, and the two eventually began discussions concerning a possible sale. At all times relevant thereto, the house was rented to tenants, and Crawford intended the property to remain as investor-owned property rather than owner-occupied property. Ezell initially agreed to sell the property for $70,000 and the two entered into a contract on January 8, 1983, using this sales price. However, the lender's appraisal of the residence came in far below this figure, and the parties eventually agreed on a sales price of $55,450. A second contract for sale and purchaser was executed on June 22, 1983. Although the contract provided that Crawford would pay a cash deposit of $2,300 to be held in escrow by Ezell Realty, none was paid since Ezell was given $2,300 by the tenants of the house to make needed repairs to the property prior to the sale. This arrangement was agreeable with Crawford. The contract also required the seller (Ezell) to pay all closing coats. Therefore, Crawford was not required to pay any "up front" costs in order to buy the property. Under the terms of the second contract, Crawford was to obtain FHA financing on the property in the amount of $53,150. This type of financing is the most desirable from an investor standpoint since the mortgage can be easily transferred to another buyer for a small transfer fee without lender approval. After executing the first contract on January 8, 1983, Ezell and Crawford executed an "Addendum to Contract For Sale and Purchase" on the same date which provided in pertinent part: This contract is for the sole purpose of having the buyer obtain an assumable FHA mortgage for the seller and reconveying title to the seller. The seller hereby irrevocably assumes the said FHA mortgage from the buyer immediately after closing and the buyers hereby agree to that assumption. For this, Crawford was to receive $1,000. The parties agreed that this addendum would apply to the second contract executed on June 22, 1983. At the suggestion of Ezell, Crawford made application for a $53.150 FHA loan with Residential Financial Corporation (RFC) in Maitland, Florida, a lending institution which Ezell had done business with on a number of prior occasions. However, Ezell was not present at any meetings between Crawford and RFC. When Crawford applied for the mortgage, he indicated the property would be used for investment purposes and would not be owner-occupied. For some reason, RFC assumed the property would be owner-occupied and structured the-loan in that manner. Because of this, Crawford's down payment was slightly less than 5% of the value of the property with the remainder being financed by the institution. Had RFC treated the loan as an investor-loan, the down payment would have been increased to around 15%. Neither Crawford or Ezell advised RFC of the Addendum to the contract which required Crawford to reconvey the property to Ezell for $1,000 once the FHA mortgage was obtained. Had RFC known of this it would not have approved the loan. There was no competent evidence that such an agreement was illegal or violated any federal laws or contravened any real estate industry standard or ethical consideration. The loan was eventually approved, and a closing held on September 22, 1983. After closing, Crawford retained the property in his name with Ezell making all payments from the rent proceeds. This was consistent with an oral agreement between the two that such an arrangement would last for an indefinite period as long as the payments were current. When Crawford later received several notices from the lender stating that mortgage payments were in arrears, he hired an attorney and demanded that Ezell fulfill the terms of the Addendum. He also filed a complaint against Ezell with petitioner which precipitated the instant proceeding. After the closing, Ezell had intended for the tenants to assume the mortgage since they had expressed an interest in buying the property. However, such a sale never materialized. In July, 1984, the property was reconveyed to Ezell, and Ezell paid Crawford $1,000 as required by the Addendum.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the administrative complaint be dismissed, with prejudice. DONE and ORDERED this 7th day of August, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, FL 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of August, 1985. COPIES FURNISHED: Arthur R. Shell, Jr., Esq. P. O. Box 1900 Orlando, FL 32802 Julius L. Williams, Esq. P. O. Box 2629 Orlando, FL 32802 ================================================================ =
Findings Of Fact Petitioner is authorized statutorily to license and regulate real estate salesmen and brokers. At all times material to these charges, Donald J. Munch was a licensed real estate salesman holding license number 045938. From December, 1987 through May 30, 1989, Munch was licensed as a salesman with Active One Realty, Inc., Winter Park, Florida. He now holds a broker's license. Sand Dollar Condominium Association was an association of condominium owners who owned apartments in Sand Dollar Condominiums. Owners of apartments in the condominium had entered into agreements with the association to rent out their apartments. This agreement provided that the association would receive 20% of the rents received. Munch was the owner of Four Seasons Properties (Four Seasons), a property management company, which contracted with Sand Dollar Condominium Association (Sand Dollar) from December 13, 1987 until May 30, 1989 to provide various management services, including but not limited to, recruiting, hiring and supervising all personnel; installing and maintaining an electronic bookkeeping system; collecting monthly assessments; maintaining a bank account; preparing and mailing delinquent notices; auditing accounts and records; and collecting delinquencies; negotiating outside contracts for Sand Dollar; and supervising a rental program organization with advertising, printing, electronic bookkeeping, rotation scheduling and mailings. Although not specifically stated, Four Seasons was to collect for the rental of apartments. Four Seasons was to be paid for its management services $2,000.00 per month payable on the first of every month during the duration of the contract. It is uncontroverted that, in addition to this compensation, Four Seasons also received 15% of the 20% of receipts from the rental of apartments which were payable to Sand Dollar by the owners of apartments who participated in the rental program provided by the association and managed by Four Seasons. It is uncontroverted that, when Four Seasons began management of the condominium, the condominium was over $10,000.00 in arrears with regard to money used by the association for upkeep of the condominium which had been taken from the rental escrow accounts. Four Seasons, through its owner Munch, rented apartments for the association, collected fees from owners, rents from lessees, deposited the proceeds into the bank account of Four Seasons maintained in accordance with its contract with the association, and accounted periodically to the association and owners during the period of its management. The Respondent's broker knew of the Respondent's activities and did not expect commissions or deposits to his account from the Respondent. Four Seasons and Munch assert that Sand Dollar owed Four Seasons $7,100.00 when their contract was terminated. Four Seasons provided Sand Dollar a complete financial statement and a check for $10,079.92 to Sand Dollar. Four Seasons retained $7,100.00, the amount which it claimed it was owed by Sand Dollar. Subsequently, Sand Dollar sued Four Seasons over the $7,100.00 claim and Munch paid the money into Sand Dollar's attorney's trust account.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Administrative Complaint be dismissed. DONE AND ENTERED this 15th day of August, 1990, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of August, 1990. COPIES FURNISHED: Janine A. Bamping, Esq. Senior Attorney Department of Professional Regulation Division of Real Estate 400 West Robinson Street P.O. Box 1900 Orlando, FL 32802 Howard Hadley, Esq. 2352 Carolton Road Maitland, FL 32751 Kenneth E. Easley, Esq. General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Darlene F. Keller Division Director Division of Real Estate Department of Professional Regulation 400 West Robinson Street P.O. Box 1900 Orlando, FL 32801 ================================================================= AGENCY FINAL ORDERS ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION FLORIDA REAL ESTATE COMMISSION DEPARTMENT OF PROFESSIONAL REGULATION, DIVISION OF REAL ESTATE, Petitioner, vs. CASE NO. 0164284 DOAH NO. 90-0709 DONALD J. MUNCH Respondent. /
Findings Of Fact The parties to this proceeding have stipulated to the correctness of the following facts: Respondent filed a Consent and Joinder simultaneously with the Declaration of Tuscany Place, a condominium, which was recorded in Official Records Dock 1281, Page 1833, Public Records of Seminole County, Florida, and was filed with the Division of Florida Land Sales and Condominiums under I.D. #80 CN5742. Respondent accepted deeds in lieu of foreclosure from the Developer, Goehring Development Corp., under paragraph number 16.5 of the Declaration of Condominiums which deeds were dated May 10 and May 12, 1982, and recorded in Official Records Book of Seminole County, Florida. (Copies of the deeds are attached [to the Stipulation as to Facts] and are self-explanatory.) Respondent sold Unit 16-E to Huey M. Napier. All remaining units were sold to Larry J. Whittle on January 31, 1983. Copies of contracts for the two purchases are attached [to the Stipulation as to Facts]. The term "developer" was defined in paragraph 21.7 of the Condominium Declaration and was approved for filing by the Division including the provision that any successor or alternate developer must indicate its consent to be treated as the developer. Respondent attempted to comply with oral and written communications from the Division as to the regulation relating to "Subsequent Developer," as Respondent could not locate Statutes or Division Rules requiring Subsequent Developer filing. Copies of letters from the Division are attached [to the Stipulation as to Facts]. Respondent admits the sales described above, but denies any liability under Statutes or Rules as a matter of Law. The above-numbered paragraphs constitute the facts stipulated between the parties. Attached to the parties' stipulation are a series of documents. These documents establish that the aforementioned sale from Respondent to Huey M. Napier occurred on or about October 22, 1982. This sale involved a single condominium unit. The remaining ten units obtained by Respondent from the original developer by virtue of a deed in lieu of foreclosure were sold on or about January 4, 1983. On or about November 29, 1982, representatives of Petitioner warned Respondent's counsel that failure to file as a second developer with Petitioner in accordance with Section 718.502, Florida Statutes, would place Respondent in violation of that law. Respondent subsequently filed with Petitioner in accordance with the requirements of Section 718.502, Florida Statutes, on or about January 14, 1983.
