Findings Of Fact Barkwood Square Condominium was developed by Mr. John Nell (Respondent). The declaration of condominium was filed on May 23, 1980, and transfer of control from Respondent to the condominium association took place at a meeting held on June 30, 1981. At the time of turnover, Bieder Management Company was Respondent's agent for the operation, maintenance and management of Barkwood Square. Bieder was accepted as the association's agent at turnover and continued in this capacity until February, 1982. No documents were produced at the transfer meeting, and all records and accounts then in existence remained in the hands of Bieder. In February, 1982, the condominium association became dissatisfied with Bieder and replaced it with Hotz Management Company. The records turned over to Hotz by Bieder at that time were incomplete, and the association then sought the assistance of Petitioner to obtain complete records and a financial accounting. Through its investigation in 1982, Petitioner and the condominium association obtained all records available. The testimony of Petitioner's investigator and two of the unit owners (who are also condominium association directors) established that no review of the financial records of the association had ever been conducted by an independent certified public accountant (CPA). The testimony of the unit owners-directors established that Respondent had not delivered any of the following items to the association within 60 days of turnover: Original or certified copy of the declaration of condominium. A certified copy of the articles of incorporation of the association. A copy of the bylaws. Minutes of association meetings. Resignation of officers and directors resulting from change of control. The investigation revealed that Respondent owes $4,138.32 in contributions to the condominium association. Respondent concedes that he owes this amount, which is based on common expenses incurred in excess of assessments to unit owners between July and October, 1980. Respondent paid certain association expenses with personal funds and was later reimbursed. Respondent concedes this procedure was not in keeping with good accounting practices. Respondent also failed to keep or turn over to the association the financial records pertaining to the period when he did not employ a management agent.
Recommendation Based on the foregoing, it is RECOMMENDED that Petitioner enter a Final Order directing Respondent to take the corrective action discussed herein as authorized by Subsection 718.501(1)(d)(2), F.S., and assessing a civil fine in the amount of $1,500 as authorized by Subsection 718.501(1)(d)4, F.S. DONE and ENTERED this 27th day of July, 1983, in Tallahassee, Florida. R. T. CARPENTER, 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 27th day of July, 1983. COPIES FURNISHED: Helen C. Ellis, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 N. Staten Bitting, Jr., Esquire 3835 Central Avenue Post Office Box 15339 St. Petersburg, Florida 33733 E. James Kearney, Director Division of Florida Land Sales and Condominiums Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Gary R. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue Whether the Respondent committed the violation alleged in Count II of the Administrative Complaint dated August 17, 1995, and, if so, the penalty which should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department of Business and Professional Regulation is the state agency charged with the responsibility for investigating and prosecuting complaints pursuant to Chapters 455, and 475, Florida Statutes. The Florida Real Estate Commission operates within the Department and is the entity directly responsible for licensing and disciplining persons licensed under Chapter 475. Section 475.02, Florida Statutes. The Division of Real Estate operates within the Department and assists the Commission in carrying out its statutory duties. Section 475.021, Florida Statutes. Randall F. Kladek has been licensed as a real estate salesperson since 1991, having been issued license number 0567643. His license has been periodically inactive either because he has failed to renew the license timely or because he was not employed by a broker. According to the Department's records, Mr. Kladek's license has been in involuntary inactive status since October 1, 1998, because it has not been renewed. With regard to the issues presented in this proceeding, Mr. Kladek's license expired on September 30, 1994, and his license was in an involuntary inactive status until it was renewed by the Department effective December 9, 1994. On or about October 16, 1994, Mr. Kladek approached Scott Betten, the broker for Income Real Estate, Inc., about possible employment with the agency. At that time, Mr. Betten checked with the Department to verify that Mr. Kladek had a current real estate salesperson license, and he learned that Mr. Kladek's license was inactive. Mr. Kladek had not renewed his salesperson license because he did not have the required continuing education credits. On or about October 30, 1994, Mr. Kladek returned to Income Real Estate, having completed the education requirements necessary for renewal of his salesperson license. At that time, Mr. Betten completed license renewal forms for Mr. Kladek, and he gave Mr. Kladek the completed renewal application and a form 400.5, which is used to register a licensed salesperson who has an active or an inactive license with an agency. Mr. Kladek mailed the forms to the Department on October 30, 1994, the day he received them from Mr. Betten. Mr. Betten was the broker who would supervise Mr. Kladek's activities as a real estate salesperson were he to be employed by Income Real Estate. Mr. Betten believed, albeit mistakenly, that Mr. Kladek's license would be considered active once he mailed the renewal application to the Department. Accordingly, Mr. Betten permitted Mr. Kladek to begin his employment with Income Real Estate the day after Mr. Kladek mailed the renewal application and the form 400.5 to the Department. On or about November 13, 1994, the Department returned the application packet to Mr. Kladek because he had failed to sign an affidavit attesting to the fact that, if the Department ever asked, he would provide proof that he had completed the necessary continuing education credits. Mr. Kladek had included with his application a certificate showing that he had completed the credits, but the affidavit was a new requirement for license renewal of which neither Mr. Betten nor Mr. Kladek was aware. Mr. Kladek signed the affidavit and immediately returned the packet to the Department, which duly renewed his salesperson license effective December 9, 1994. On October 30, 1994, Mr. Kladek entered into an agreement with Jonathan Polisar, who owned several rental apartments in a condominium building in Miami's South Beach area. Nine of the apartments were located at 524 Washington on Miami Beach, and one of the apartments was located at Bay Harbor Islands. The agreement provided that Mr. Kladek would manage the apartments owned by Mr. Polisar, providing basic maintenance repair and cleaning services, arranging for more extensive repairs, collecting rent, evicting tenants if the need arose, and renting vacant apartments. The agreement provided that, in exchange for his services, Mr. Kladek would be allowed to rent an apartment from Mr. Polisar at a reduced rent, and he would receive a $50.00 decrease in his monthly rent for each apartment rented, for the duration of the rental, with a permanent $50.00 decrease in his monthly rent for each apartment sold. In November 1994, shortly after Mr. Kladek moved into the apartment, Mr. Polisar terminated the agreement and demanded that Mr. Kladek vacate the apartment. At the time Mr. Polisar entered into the agreement with Mr. Kladek, Income Real Estate had an agreement with Mr. Polisar pursuant to which it was to market, rent, and sell any condominium units Mr. Polisar might have available. Neither Mr. Betten nor Income Real Estate were parties to the agreement between Mr. Kladek and Mr. Polisar, and Mr. Betten notified Mr. Polisar in writing that any agreement between him and Mr. Kladek was personal and did not involve Income Real Estate. On November 4, 1994, Mr. Kladek executed on behalf of Income Real Estate a contract in which Vincenz Amaddeo agreed to purchase and Jonathan Polisar agreed to sell condominium unit number 205 at 524 Washington on Miami Beach, the same condominium building which was the subject of the October 30, 1994, agreement between Mr. Kladek and Mr. Polisar. There is no evidence in the record to establish whether this sale would result in a decrease in Mr. Kladek's rent pursuant to his agreement with Mr. Polisar, but Mr. Kladek did expect to get a portion of the five-percent commission which Income Real Estate would receive when the sale was completed. During the time his license was inactive, Mr. Kladek did not execute any contracts for sale on behalf of Income Real Estate other than the one he executed on November 4, 1994, although he did do some rentals and "different things." Although he was affiliated with Income Real Estate until September 30, 1996, Mr. Kladek was not very active as a real estate salesperson while he was associated with the agency. The evidence is uncontroverted that Mr. Kladek did not have an active real estate salesperson license from October 1, 1994, through December 8, 1994. The evidence presented by the Department is sufficient to establish that Mr. Kladek operated as a real estate salesperson without holding a current license when he executed on behalf of Income Real Estate the November 4, 1994, contract for the sale and purchase of unit 205 of the Washington Center condominium building. The evidence is also sufficient to establish that Mr. Kladek operated as a real estate salesperson with respect to the agreement he entered into with Mr. Polisar. That agreement clearly contemplated that Mr. Kladek would manage, rent, and sell apartments owned by Mr. Polisar in exchange for compensation, even though the compensation was in the form of a decrease in his rent rather than by commission. Finally, the evidence is uncontroverted that Mr. Betten, the broker for Income Real Estate, incorrectly advised Mr. Kladek that his license would be valid and current at the time he mailed the completed application to the Department on October 30, 1994. The evidence is also uncontroverted that Mr. Kladek relied on Mr. Betten's advice when he operated as a real estate salesperson prior to learning that his license was not, in fact, renewed on October 30, 1994.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order: Dismissing Count I of the Administrative Complaint; Finding Randall F. Kladek guilty of violating Section 475.42(1)(a), Florida Statutes (1993) and, therefore, Section 475.25(1)(e), Florida Statutes (Supp. 1994), as set forth in Count II of the Administrative Complaint; Suspending Mr. Kladek's real estate salesperson license for a period of thirty (30) days; Imposing an administrative fine against Mr. Kladek in the amount of $500.00; and Requiring Mr. Kladek to complete forty-five (45) hours of post-licensure real estate salesperson education, in addition to the continuing education requirements for renewal of his license. DONE AND ENTERED this 4th day of June, 1999, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 4th day of June, 1999.
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
Findings Of Fact Respondent, Graystone Fairways Corporation (GFC), is wholly owned by Louis Wingold, a Canadian developer. He is also its president. In January, 1979, GFC entered into a five-year joint venture with Tamway Corporation (Tamway), whose president was Harvey Kaliff. The agreement provided that GFC and Tamway would construct, develop and market a two phase condominium project in Tamarac, Florida known as Fairways of Tamarac III (Fairways or project). Each phase of the project was intended to have thirty units. To date only the first phase of the project has been constructed. Building permits for the second phase have been obtained, but no construction work has commenced. The project was apparently subject to registration requirements with petitioner, Department of Business Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes (Division). It is that agency which has initiated the complaint herein, of which two of three counts therein remain pending. Under the foregoing joint venture agreement, GFC generally provided the financing for the project while Tamway provided the site construction and sales of units. The agreement further designated Tamway as the managing partner to conduct the day-to-day business of the joint venture. Among other things, Tamway was authorized to enter into purchase and sale contracts for the sale of individual units in the project. Accordingly, Wingold had no active participation in the management of the project's day-to-day business, for the agreement provided that Kaliff would have that responsibility. After Fairways of Tamarac III was constructed, Kaliff hired Ron Settler and Victoria Falzone as salespersons to market and sell the individual units. The first unit was sold by Settler to Irving A. Goodman in November, 1982. Goodman was represented by counsel at the closing and, through counsel, received a packet of documents. In the summer of 1984 Goodman learned that he should have received a prospectus prior to closing, but did not. He was given a prospectus by the present project manager, Joan Nathanson, after asking for a copy. Two other units were purchased in July and September, 1983, respectively, by Sidney G. Resnick and Morton Tolmack. Both were sold by either Settler or Falzone. Tolmack was represented by counsel at closing while Resnick had no attorney. Although both executed receipts for condominium documents which reflected a prospectus was included in their packet of documents, their oral testimony to the contrary is accepted as being more credible and persuasive, and it is found that neither received a prospectus at or before closing. When they discovered at a later date they were supposed to have received one, they were given one by Nathanson. Wingold had no knowledge of Tamway's failure to give a prospectus to Goodman, Resnick and Tolmack. He first learned of this when the complaint herein was filed. Sometime in 1983 or early 1984, Wingold discovered that Kaliff was not fulfilling the terms of his obligation under the joint venture. Beginning in February, 1984, three circuit court actions were filed, and a settlement, the joint venture was dissolved, and GFC was given exclusive title and rights to the project by Tamway/Graystone. According to Wingold, Settler was convicted on 22 counts of theft from the project. He was dismissed from employment around May, 1984. During the course of the above litigation, no units could be sold because Kaliff would not agree to sign any documents conveying clear title to the purchaser. Consequently, no sales efforts could be made during this period of time. Except for the time when the litigation was pending, the unsold project units were being offered for sale by the developer in the ordinary course of business. When the settlement was executed on September 5, 1984, thirteen out of thirty units had been sold by Kaliff and Tamway. The last closing under Kaliff's management occurred in May, 1984. Wingold hired a new project manager that same month, and after the litigation was settled, began advertising in local newspapers in an effort to sell the remaining units. This included periodic advertising in two Fort Lauderdale newspapers in September and October, 1984 and January, 1985. This effort met with little or no success due to the then-existing "glut" of condominiums in South Florida. Wingold then searched for a broker to sell the units. Although he had a difficulty in finding a broker who was interested in marketing the units, in February, 1985 he executed a six-month agreement with Condovest, Inc., a firm in Miami that specializes in such sales. Since September, 1984 the developer has closed on six units and has four more under constract at the present time. This leaves seven unsold units, all of which are now rented except one which is used as a model apartment and office. The office is open only on week-days except by special appointment. The unsold units were rented by Wingold due to a large monthly payment ($15,000) on the construction loan. Such units were offered for rent in local newspaper advertisements and at one time on a sign appearing at the front entrance to the property. The rents are used to cover the debt service until the units are sold. The oldest lease agreement expires in May, 1986. Therefore, only the model unit is immediately available for occupancy by a buyer. All others must be sold subject to the lease. Even so, four units are now under contract subject to the leases, and Wingold continues to seek buyers for the remaining rented units. Subsection 718.503(2), Florida Statutes (Supp. 1984), requires that a prospectus be given to purchasers of condominium units prior to closing. Goodman, Resnick and Tolmack were not given such documents as required by law. This finding is based upon the testimony of the three unit owners which is accepted as being the more persuasive evidence on this issue. However, there is no evidence that any of the three was harmed or disadvantaged by their failure to receive copies of the prospectus until 1984 or 1985, particularly since two were represented by counsel at closing. Subsection 718.301(2), Florida Statutes (Supp. 1984), also requires that a meeting be called to allow unit owners to elect a majority of the members of the board of administration when none of the unsold units in the project are being "offered for sale by the developer in the ordinary course of business." There is no evidence of record as to how the agency construes that term, or what is the generally accepted meaning within the condominium industry. It is undisputed that no meeting has yet been called by Wingold. However, Wingold has not done so nor is he required to do so since units have been and are still being offered for sale in the ordinary course of business. Besides this, he fears that he cannot fulfill the terms of the four pending purchase and sell contracts if control of the project is turned over to the present unit owners.3 But this concern is irrelevant to a determination of the issue presented herein.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty as charged in Count II of the amended notice to show cause, and that it be fined $500.00 to be paid within thirty days from date of the Final Order in this Cause. Count I should be DISMISSED, with prejudice. DONE and ORDERED this l6th day of December, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER 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 16th day of December, 1985.
Findings Of Fact At all times pertinent to these Findings of Fact, the Respondent has been a licensed real estate broker in the State of Florida having been issued license number 0317497. In 1985, the Respondent operated his own real estate brokerage firm, Kline Real Estate, Inc., which acted as a marketing agent for Majestic Builders, a construction company. Both Kline Real Estate, Inc., and Majestic Builders did business in and around the Spring Hill, Hernando County, Florida, area. Majestic Builders was owned by George Orlando. In early 1985, Majestic Builders' qualifying general contractor was Stephen Cannon. In early 1985, the Respondent was contacted by the Whitmarshes of Lynchburg, Virginia, who expressed interest in having a modified version of a Majestic Builders model home built on a piece of property in Spring Hill, Florida. Eventually, the Whitmarshes selected a lot on which to have the residence built, and the Respondent brokered the purchase of the lot (from a third party) and the construction contract. Both contracts were entered into on or about April 27, 1985. Both contracts required that the Whitmarshes make a deposit, $1,000 on the lot purchase and $5,000 on the construction contract. Both deposits were made into the escrow account maintained by Kline Real Estate, Inc. The $1,000 deposit was disbursed without incident at the closing of the lot purchase on or about May 7, 1985. The construction contract between the Whitmarshes and Majestic Builders provided in connection with the deposit: DEPOSIT TO FIX HOME PRICE FOR PERIOD OF 6 MOS. [MONTHS), DURING WHICH COMMENCEMENT MAY BEGIN WITHIN 30 DAYS OF NOTIFICATION AND INITIAL PAYMENT OF 30% OF BALANCE. SHOULD COMMENCEMENT BE AFTER 6 MOS., DEPOSIT WILL STILL APPLY BUT TO NEW PURCHASE PRICE OF MODEL AT TIME OF CONSTRUCTION. For the balance of the spring and summer of 1985, the Whitmarshes continued to consult with the Respondent and, primarily through the Respondent, with George Orlando regarding the modifications the Whitmarshes desired to make to the Majestic Builders model, but they were not particularly anxious to commence construction for personal, family health reasons. In addition, they understood and knew from the contract provision and from conversation with the Respondent that their $5,000 deposit was supposed to be credited to the price of the home they eventually built even if commencement was more than six months from the contract date. On or about November 11, 1985, the Respondent advised the Whitmarshes by telephone, confirmed in writing: This [is] notification, that in accordance with your contract, you are legally in default. This letter is written out of legal necessity and has no bearing on your deposit which will bw [sic] applied to the agreed upon purchase price of a Majestic Home. The default merely is to state the builder is no longer held to the prices quoted. And any changes either up or down will be reflected in the new contract price. (Emphasis added.) Notwithstanding his November 11 letter, the Respondent withdrew the Whitmarshes' $5,000 deposit from the Kline Real Estate, Inc., escrow account and deposited it in the Kline Real Estate, Inc. operating account. Of the $5,000, $1,000 was used the purchase of a building lot for Majestic Builders, and $1,500 was paid directly to George Orlando, to whom the Respondent believed the $5,000 belonged. 1/ The Respondent is unable to account for the balance of the $5,000. 2/ On or about March 21, 1986, the Respondent received a letter from Mr. Whitmarsh stating: "With this letter I authorize you to use $500 from my escrow account to obtain a new floor plan and prepare a cost estimate for my revised version of your Wind and Wildfire Model Home." The Respondent, who had had a heart attack in September, 1985, and was in the process of closing out Kline Real Estate, Inc., and getting out of the real estate business, passed the letter on to George Orlando. Orlando balked at the request, taking the position that the purpose of the $5,000 was not for use to draw up revised plans. But it is the Respondent's understanding that Orlando eventually relented and agreed not to require the Whitmarshes to pay for the revised plans with new money. It is unclear from the evidence whether revised plans ever were drawn. 3/ In approximately June or July, 1986, the Respondent closed Kline Real Estate, Inc., and got out of the real estate business. He never heard anything else from the Whitmarshes about the transaction and assumed that Orlando and the Whitmarshes had satisfactorily concluded their business dealings. But in fact in approximately early 1987, the Whitmarshes received information that Majestic Builders was not a licensed contractor. Although, on checking, they learned that Majestic Builders then had a licensed qualifying contractor, the Whitmarshes still did not feel comfortable with Orlando and Majestic Builders. In about April, 1987, the Whitmarshes decided to hire another builder and asked Orlando for the return of their deposit. Orlando refused, saying that the Respondent had the money. 4/ Nonetheless, the Whitmarshes never contacted the Respondent for the return of the deposit. Later, the Whitmarshes and Orlando became involved in another dispute arising out of the alleged improper use of Orlando's Wind and Wildfire drawings by the Whitmarshes and the builder they eventually hired, Stephen Cannon, who had been Majestic Builders' qualifying general contractor but had left to start his own construction company with the understanding that Cannon would not use any of Majestic Builders' drawings. The Respondent had no knowledge of any of these disputes between Orlando and the Whitmarshes until he was interviewed by a Department of Professional Regulation (DPR) investigator in August, 1988. The DPR had begun an investigation of Orlando on the Whitmarshes' complaint of alleged violations of the laws regulating construction contractors and learned that the dispute involved a deposit that had been held in trust by a licensed real estate broker. DPR then began an investigation of the Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Real Estate Commission enter a final order finding the Respondent, Ronold E. Kline, guilty of violating portions of paragraph (b) and paragraphs (d) and (k) of Sections 475.25(1), Florida Statutes (1987), and suspending his license for a period of one year. RECOMMENDED this 15th day of December, 1989, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 1989.
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.
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 ================================================================ =
