Findings Of Fact The Division is the administrative agency of this state empowered to ensure that condominium associations comply with the Condominium Act. The Association is the condominium association which manages and operates 12 separate condominiums known as the Pines of Delray, located in Delary Beach, Florida. This case involves a structure placed on the common elements of three of those condominiums: The Pines of Delray condominiums 5, 6, and 11. Condominium 5 has 64 units, 6 has 72 units, and 11 has 96 units. Initially, the 12 condominiums received television under a "Central Television Antenna System Lease" with the Pines of Delray CAT, an agent of the condominium developer. On November 1, 1979, the unit owners of 8 of the 12 condominiums, including condominiums 5, 6 and 11--by vote equal to or in excess of 75 percent of the unit owners in each of the 8 condominiums--voted to cancel or terminate the television system lease pursuant to Section 718.302, Florida Statutes. The leased television equipment was eventually removed by the owner. On February 1, 1982, the Association entered into a written agreement with A-I Quality TV, Inc. d/b/a Denntronics Cable to provide television service for the 12 condominiums. The agreement was authorized by the Association's board of directors; the unit owners were not given an opportunity to vote on the agreement. An addendum to the agreement was entered in December, 1982. The addendum authorized Denntronics to install a satellite receiving station or dish at an unspecified location on the property of the 12 condominiums. The addendum was authorized by the Association's board of directors, but again, a vote of the unit owners was not taken. The Board subsequently selected the site for the receiving dish, centrally locating it on common elements of condominiums 5, 6, and 11, between building no. 65 in condominium 6, no. 25 in condominium 5, and nos. 66 and 110 in condominium 11. On December 24, 1982, Denntronics, with the Board's authorization, entered the premises of the condominiums and cut down four full-grown pine trees on the site to allow construction of a concrete foundation or pad and erection of the satellite dish. The parties stipulate that this cutting of the trees was an alteration of the common elements and that it was not approved by the owners of 75 percent of the condominium units in the affected area. The pertinent declarations of condominiums provide a specific procedure for obtaining approval before altering or improving common elements of the condominium. Article 5.1(b) of each declaration states: 5 MAINTENANCE, ALTERATION AND IMPROVEMENT Responsibility for the maintenance of the condominium property and restrictions upon the alteration and improvement thereof shall be as follows: .1 Common Elements. (b) Alteration and Improvement. After the completion of the improvements included in the common elements which are contemplated in this Declaration, there shall be no alteration nor further improvement of common elements without prior approval, in writing, by record owners of 75 per cent of all apartments. The cost of such alteration or improve ment shall be a common expense and so assessed. After removing the trees, Denntronics poured the concrete pad and attached it to the realty. The pad measures 10 feet by 10 feet, has a depth of 18 inches, and is reinforced with no. 5 grade steel bars. The construction of this pad, as with the tree removal, was not approved or voted on by the condominium owners. Denntronics then anchored the satellite receiving dish to the concrete pad. The dish is approximately 16 feet in diameter, extending 20 to 25 feet in the air. It remains the property of Denntronics since it was only leased to the Association. It is not a fixture since it may be detached and removed from the concrete pad. The cutting of the trees, the construction of the concrete pad, and the erection of the satellite dish altered the common elements. The condition of the real property was changed and the satellite dish affected nearby residents' view and enjoyment of the park-like green space in which it was placed. The replacement of the trees with the concrete pad and satellite dish affected the appearance of the surrounding area. A park-like environment of grass and pine trees surrounds the condominiums; it was this feature which persuaded some residents to originally purchase condominiums at Pines of Delray. Both the name of the condominium and its accompanying description on the condominium documents, "A Condominium in the Woods" emphasize this aesthetic feature of the condominium. As shown by the photographs in evidence, the reinforced concrete pad with satellite dish is an intruding presence in a park- like, pristine area. It is an incongruous, even imposing structure, 1/ and, in the setting in which it was placed, is aesthetically displeasing. 2/ It has adversely affected some residents' enjoyment of the grassy green space and has disturbed the scenic view which they enjoyed from their windows. Some residents now keep their window shades closed or no longer use the park-like surroundings. One resident was so upset by the sudden placement of the structure that she sold her condominium and moved away. Another nearby resident who purchased his unit, in large part, because of its proximity to the park-like green space, would not have purchased it if the pad and satellite dish had been there. Denntronics has a franchise application pending before the City of Delray Beach. If it is granted a franchise, Denntronics will remove the pad and satellite dish, and replace it with underground cable. If Denntronics is not granted a franchise, it intends to maintain and operate the satellite dish at least until June 30, 1987, when the agreement with the Association expires and is up for renewal. If the satellite dish is removed now, however, the Pines of Delray Condominium will not necessarily be without cable television service. Leadership Cable, the only cable T.V. company franchised by the City of Delray Beach, is willing and able to provide cable T.V. reception to the pines of Delray Condominiums.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Division of Florida Land Sales and Condominiums find the Association guilty of violating Section 718.113(2) and order it to cease and desist from further violations. Further, the order should require the Association to remove the concrete pad and satellite receiving dish within 10 days and restore the affected area, as nearly as possible, to its prior condition. Restoration should include the placing and maintenance of grass sod and at least four healthy trees, aesthetically pleasing and not less than 12 feet in height. DONE and ENTERED this 21st day of June, 1984, in Tallahassee, Florida. R. L. Caleen, Jr. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of June, 1984.
Findings Of Fact 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 The following findings of fact are made upon the stipulation of the parties in the Prehearing Stipulation and in the course of the hearing: Respondents are developers of a condominium as defined by Section 718.103(14), Florida Statutes. Respondents are developers of The Somerset, a condominium located in Naples, Florida. The declaration of condominium for The Somerset was recorded in the public records of Collier County on or about August 27, 1979. No turnover review as prescribed by Section 718.301(4)(c), Florida Statutes (1985), was provided by the developer to the association within 60 days after the date of transfer of control of the association to non-developer unit owners, or has yet been provided to the association. On or about January 29, 1985, unit owners other than the developer had elected a majority of the members of the board of administration for The Somerset condominium. Letters of annual financial reports of actual receipts and expenditures were not furnished to unit owners following the end of the calendar years 1980, 1981, 1982, 1983, and 1984. No vote of the unit owners was taken to waive reserve accounts for capital expenditures and deferred maintenance for each of the years 1980, 1981, 1982, 1983 and 1984. The following findings of fact are made upon the evidence adduced at hearing. The turnover review and report mandated by Section 718.301(4)(c), Florida Statutes, must be prepared by a certified public accountant. Respondents sought the necessary review from the firm of Rogers, Hill and Moon, which had done the association's accounting prior to the turnover. However, Rogers- Hill was unable to perform the review in the required time. Respondents consulted with two other accounting firms, but neither could provide the turnover report. Respondents suggested to the President of the association that they would pay $1,000 to the association in lieu of the turnover report. The association accepted the offer. Respondents paid $1,000 to the association and gave the association all of Respondents' books, ledgers and receipts. Respondents did not promulgate and mail to unit owners proposed budgets of common expenses for the fiscal years 1982, 1983 and 1984. Respondents guaranteed that the assessments for common expenses imposed upon each unit owner would not exceed $75.00 per month from the date of recording the declaration of condominium until the date of turnover of control of the association. There were no meetings of unit owners of The Somerset condominium until time of the turnover. According to the original proposed budget, the items designated as reserve items were roof replacement, resurfacing, and painting. While Respondents maintain that they properly waived the funding of the reserve account for 1980, 1981, 1982, 1983, and 1984, the only evidence offered to support their testimony is the minutes of the annual meeting for each year. However, the credibility of these documents is suspect. The minutes were admittedly all prepared by Respondents in 1985, well after the supposed annual meetings. For the years 1982, 1983 and 1984, David Davis II was a director. His name appears on the minutes as offered by Respondents. Yet, Davis says he did not attend an annual director's meeting in those 3 years. Davis also says that he never attended a director's meeting at which the funding of reserves was waived. In fact, Davis never attended a director's meeting at which a proposed budget was adopted. The minutes are inherently unreliable because they were created much later in time and appear to directly conflict with the testimony of Davis. The minutes are also self-serving. Accordingly, it is found that Respondents did not properly waive the funding of the reserve account for the years 1980, 1981, 1982, 1983, and 1984. Respondents never disclosed to the unit owners that reserves were not funded. The reserve liability is $8,890.00, calculated at $8.75 per month per unit in Phase I (eight units) from August 31, 1979, and in Phase II (12 units) from November 13, 1981, plus all twenty units for the first quarter of 1985. The original budget allocates $8.75 of the assessments to reserves and the original documents (Section 8.2) specify that assessments are to be paid quarterly on January 1, April 1, July 1, and October 1. Since the turnover occurred on January 29, 1985, the assessments for the first quarter had already been paid to Respondents. Respondents expended money for reserve-type expenses. Their Exhibit 5 shows reserve-type expenditures totalling $8,164.78. However, certain of these expenditures do not qualify as reserve-type expenses and must be excluded. Specifically, payments of $485.00 to David Chalfant for repairs to leaking windows, of $560.00 to Roy Hutchinson for repairs to doors which rotted out from the rain, and of $470 Bayside Sandblasting to repair steel doors and to sandblast stains on the sidewalk, are not reserve items (roof replacement, resurfacing and painting). Therefore, Respondents established that they paid $6,649.78 for reserve-type expenses. Petitioner argues that other items should be eliminated because they are not reserve-type expenses or because they were paid after turnover. These arguments are rejected and it is found that $6,649.78 for reserve-type expenses is accurate and should be offset against the reserve liability. Respondents owe the Association $2,240.22 in reserve funds. Paragraph 8.3 of the declaration of condominium for The Somerset provides: The Board shall, in accordance with Bylaws of the Association, establish an annual budget in advance for each fiscal year, which shall correspond to the calendar year, which shall estimate all expenses for the forthcoming year required for the proper operation, management and maintenance of the condominium. . . . Upon adoption of each annual budget by the Board, copies thereof shall be delivered to each unit owner, and the assessment for each year shall be based upon such budget. . . The unit owners were not notified of any Board of Directors meeting at which a proposed annual budget would be considered or adopted. Further no unit owner received copies of proposed annual budgets, except for the budget set forth in the prospectus with the original condominium documents. In fact, no formal meeting of the Board was held to adopt an annual budget.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business Regulation, Division of Florida Land Sales, Condominium and Mobile Homes, enter a Final Order and therein order Respondents to take the following actions: Obtain and furnish to the Association a turnover review as required by Section 718.301(4)(c), Florida Statutes (1985). Pay to the Association the sum of $2,240.22 for Respondents' liability for reserves. Pay to the Petitioner a civil penalty of $5,000.00, pursuant to Section 718.501(1)(d)4, Florida Statutes. DONE and ORDERED this 10th day of December, 1986, in Tallahassee, Florida. DIANE K. KIESLING 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 10th day of December, 1986.
The Issue The issue in this case is whether Respondent condominium association properly assessed unit owners for common expenses based on their respective proportionate shares of such expenses as set forth in the declaration of condominium.
Findings Of Fact Respondent Eden Isles Condominium Association, Inc. ("Association") is the entity responsible for operating the common elements of the Eden Isles Condominium ("Condominium"). As such, the Association is subject to the regulatory jurisdiction of Petitioner Division of Florida Land Sales, Condominiums, and Mobile Homes ("Division"). The Condominium was created——and continues to be governed by——a Declaration of Condominium ("Declaration"), which has been amended at least once during the Condominium's existence. The Condominium comprises seven identical buildings. Each four-story building contains 52 units. Each unit is laid out according to one of three different floor plans. The Declaration prescribes each unit's proportionate share (expressed as a percentage, e.g. 2.16%, 2.08%, 1.64%, etc.) of the common expenses. These percentages are used to calculate the amounts assessed against each respective unit to collect the funds needed to pay common expenses. For reasons not revealed at hearing, the Declaration——at least in its original form——established a separate and unique schedule of percentages for each building in the Condominium, with the result that similarly situated owners (i.e. those whose units had the same floor plan and comparable locations) did not necessarily pay the same proportionate share of the common expenses. Not surprisingly, owners who were compelled to contribute more toward the common expenses than their similarly situated neighbors were wont to complain about the seeming unfairness of this. Some time in 2004 the Association's governing Board of Directors ("Board") was made aware of an amendment to the Declaration, which, among other things, had revised the appendix that specified each unit's proportionate share of the common expenses. Due to an absence of evidence, the undersigned cannot determine when this amendment took effect, yet neither its existence (a copy is in evidence) nor its authenticity is in doubt. There is, further, no evidence explaining why the Board had not previously been familiar with the amendment, but——for whatever reason(s)——it was not. After deliberating over the meaning and import of the amendment, the Board voted, during an open meeting, to construe the amendment as providing for the assessment of common expenses against all units in the Condominium according to the percentages assigned to the units located in "Building G," which was the last of the buildings in the Condominium to be completed. In other words, the Board interpreted the amendment as requiring that all similarly situated unit owners be assessed the same amount for common expenses, using only the most recent proportionate shares. Consequently, starting in 2005, the Association assessed unit owners for common expenses pursuant to the Board's interpretation of the amendment. While this course of action evidently pleased most residents, someone complained to the Division about the change. The Division investigated. Based on its own understanding of the amendment, which differs from the Board's, the Division determined that the Association was not properly assessing the unit owners; accordingly, it demanded that the Association remedy the situation. Under pressure from the Division, which was threatening to impose penalties against the Association for noncompliance with the Division's directives, and for some other reasons not relevant here, the Board eventually decided to "revert back" to the original proportionate shares, beginning in 2006. The Board continues to believe, however, that its interpretation of the amendment (as requiring similarly situated owners to be assessed at the same percentage) is correct.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division enter a final order rescinding the Notice to Show Cause and exonerating the Association of the charge of failing to assess for common expenses in the appropriate percentages as set forth in the Declaration, as amended. DONE AND ENTERED this 11th day of May, 2007, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 2007.
The Issue Whether La Vita Condominium Association, acting through its Board of Directors, refused to allow Linda C. Andzulis, a member of the association, to fill a vacancy on the board because of her gender, and thereby committed a discriminatory housing practice in violation of the Florida Fair Housing Act?
Findings Of Fact The Parties Linda C. Andzulis is a resident of the La Vita Condominium. As the owner of the condominium unit in which she resides with her husband, Ms. Andzulis is also a member of the La Vita Condominium Association. She has never served on the Association’s Board of Directors, but she has a keen interest in the business of the association. She frequently attends board meetings. Ms. Joan Di Gregorio, past President of the Board sums up Ms. Andzulis’ participation at board meetings: Ms. Andzulis is a “strong individual . . . who has her agenda and she will bring it forward.” Described by some who live at the condominium as an “aggressive woman of integrity,” energetic, very intelligent, even “brilliant,” Ms. Andzulis' views and methods of expressing her views finds opposition among other association members. The La Vita Condominium Association is a Florida not- for-profit corporation. Organized pursuant to Chapter 617, Florida Statutes, the Association operates and administers the condominium officially known as “La Vita, a Condominium.” The condominium is located in Altamonte Springs, Florida. The Board and its HistoryComposition There are five seats on the Association’s board. In January of 1995, (the time at which the main act of discrimination on the basis of gender is claimed by Ms. Andzulis to have been committed by the board,) four of the five seats were filled, all by men: H. C. Roddenberry, then the president, Robert Shorthouse, Tom Anderson and a fourth man who had filled a vacancy on the board the month before but who did not attend the January, 1995 board meeting. At least six women have served on the board over the years, four prior to January, 1995, and two since January of 1995: Rosemary Anderson, Sue Bridwell, Joan di Gregorio, Brenda Herndon, Shirley Turner, and Patricia Schmidt. Several women have served as president of the board, including the board’s current president, Rosemary Anderson. These women have been encouraged to serve on the board by both Mr. Roddenberry and Mr. Shorthouse. In some cases they were not only nominated as candidates for the board by Mr. Roddenberry or Mr. Shorthouse, but were actually recruited to run for the board by either Mr. Roddenberry or Mr. Shorthouse, or both. Of these six female board members, Ms. Schmidt found it necessary to end her service on the board at one point because she was being bothered by a member of the association. There is nothing to indicate that the harassment was on the basis of gender. Furthermore, the harassment was from an individual and not in any way the result of any action by the association or the board, itself. Ms. Schmidt’s experience is all too typical for condominium association board members in this state, particularly when the association is plagued with the intra-association conflict, internal dissension, and turmoil that afflicts La Vita. None of the six women who have served as members of the board, including Ms. Schmidt, recount any trouble with any board member on account of their gender. In fact, all state that they have never been treated by male members of the board in any way other than with courtesy. They have been comfortable serving on the board with the board’s male members and relate that they have been treated “just the same as any other board member.” In short, they report that during their tenures on the board they have been accorded the respect due each and every member willing to be subjected to the rigor of running for the board and, if elected, to assume the demanding, often thankless, task of serving on the association’s board of directors. b. Issues Confronting the Board As is typical of condominium associations in Florida, particularly those with retired residents on fixed incomes, the Board of Directors of the La Condominium Association has faced many tough issues over its lifetime. One of the most difficult issues for the board has been the roofing system at the condominium. Not long after Hurricane Andrew struck South Florida, Central Florida was hit with a number of serious storms. During this time, La Vita Condominium suffered numerous roof leaks. It was difficult to obtain bids from licensed roofing contractors, let alone find a qualified roofing contractor to actually provide necessary repairs and roof replacements, because so many local roofing contractors were in South Florida in response to the tremendous demand for roofing services in the aftermath of Andrew. Roofers who remained in Central Florida were tied up with local business created by the demand for roofing services in the wake of the serious storms of 1992-93. The board of directors did the best it could, including frequently seeking the consult of legal counsel, with a difficult roofing situation. Ms. Andzulis, however, among others, felt the board had not handled the situation properly. She was not shy about bringing her opinion on the matter to the attention of the board at its regularly scheduled meetings. Another difficult problem with which the board has been and continues to be beset is the association’s relationship to the developer of La Vita and the developer’s refusal to pay assessments for “phantom” units, unbuilt units in phases of the condominium not yet constructed. The Board has struggled with the issue for many years. Again, it has sought the advice of counsel and gone to the length of bringing suit against the developer. None of the attempts to resolve the developer’s refusal to pay assessments have borne fruit. As one board member stated, the developer has more attorneys, threatens or commences bankruptcy proceedings and always seems to be “one step ahead” of the board. Just as Ms. Andzulis has not been satisfied with the board’s attempts to address the association’s roofing problems, she has not been satisfied with the association’s attempts to deal effectively with the developer. Again, she has not been shy to make her feelings known at the board meetings. While there are certain members of the Association who support Ms. Andzulis’ views on these matters, her participation at board meetings has reached the point where a number of observers feel that she has monopolized time at the board meetings to the detriment of the board being able to accomplish the business of the association. Achieving Board Membership There are three ways to become a member of a board of directors of a condominium association in Florida. The first and most obvious is by election. The latter two are without election: (a) when time for nomination for candidates in an election closes and the number of nominated candidates do not exceed the number of seats up for election; and, (b) by filling a vacancy on the board that occurs before the expiration of the vacant seat’s term. There is a critical difference between the two ways of taking a seat without election. As explained by Mr. Peter McGrath, who has served as legal counsel to the Board in the past, if there are only as many candidates for election to the board as there are seats, by operation of law, those candidates automatically become members of the board. In other words, the election is dispensed with as unnecessary. The reason for dispensing with an election and seating the candidates automatically is the difficulty many condominium associations have experienced, particularly the longer they have existed and the more intractable the problems they have faced, in finding association members willing to serve on the association’s board. In such a case, any qualified and duly-nominated party willing to serve takes a seat on the board. No one has any power to refuse to seat the candidate. In contrast, Mr. McGrath, as an expert in condominium law, explained that when there is a vacancy on the board mid- term, a person who offers his or her services does not automatically assume the position. The board may legitimately refuse to seat a qualified person who seeks the seat. The reason for the difference in approach when an entirely new board is seated as opposed to when a vacancy mid- term occurs is timing. A board that has been in existence when a vacancy occurs may have embarked on a certain course of action. Or an individual member of the board may have hopes of convincing other members that a certain direction should be pursued. Members of the board are allowed to consider whether a volunteer for board service will support that course or direction. In undertaking consideration of the volunteer’s offer it is legitimate to examine the volunteer’s statements and opinions as to the board’s direction. It is completely legitimate for a board member to vote against a volunteer on the basis that he or she would be an impediment to the board’s adopted course or to the direction the director chooses to pursue and hopes the board will pursue. Ms. Andzulis Expresses Interest in Membership on the Board On July 12, 1994, Ms. Andzulis had a conversation with Mr. Shorthouse, then a member of the board of directors. Ms. Andzulis told Mr. Shorthouse that she hoped to serve on the board since the board had asked for volunteers the previous June 7, following the occurrence of one or more vacancies. Ms. Andzulis left the discussion thinking that Mr. Shorthouse would place her name in nomination at the next board meeting on August 9, 1994. Neither Mr. Shorthouse nor anyone else nominated Ms. Andzulis to fill a vacancy on the board at the August 9, 1994 meeting. Ms. Andzulis did not step up at the meeting to volunteer. The next morning, August 10, 1994, Ms. Andzulis confronted Mr. Shorthouse. At hearing, Ms. Andzulis attempted to prove that Mr. Shorthouse said to her on the morning of August 10, 1994, that the board did not want women on the board. Other than the association’s presentation of Mr. Shorthouse’s testimony, neither party presented any witnesses to this conversation. Ms. Andzulis attempted to prove her version of the conversation through witnesses to a second conversation she had with Mr. Shorthouse following a board meeting months later. She asked these witnesses whether she had stated to Mr. Shorthouse that he had told her during the August 10, 1994 meeting that the board did not want women on the board and Mr. Shorthouse, in the presence of these witnesses, did not deny the accusation. Each of the three witnesses answered in the affirmative. In his testimony, however, Mr. Shorthouse, adamantly denied that he ever made any such statement. Ms. Andzulis, the only person other than Mr. Shorthouse who heard the August 10, 1994 conversation, did not testify at the hearing. This second conversation in the presence of witnesses took place following a board meeting on January 10, 1997. At this meeting, Ms. Andzulis again had hopes that she would be accepted to fill a vacant seat on the board. Prior to the January 10, 1997 board meeting, Ms. Andzulis asked Mr. Roddenberry, then president of the board, if he would meet with her. He agreed. Their meeting took place on January 5, 1996. They discussed Ms. Andzulis’ interest in filling a vacancy on the board. During the discussion Mr. Roddenberry pointed out the many difficulties of serving on the board. He asked Ms. Andzulis, in light of those difficulties, if she was sure she wanted to be on the board. Mr. Roddenberry left the meeting with the expectation that if Ms. Andzulis continued to be interested in being on the board, she would raise her hand during the meeting to indicate her interest. Mr. Roddenberry was hoping against hope that Ms. Andzulis would not volunteer at the meeting. He could not support her candidacy and he did not want her to know that he would vote against her. He did not want her to know because he feared repercussions both to himself and any other board member, repercussions that he believed would be brought by Ms. Andzulis. Ultimately, Mr. Roddenberry was concerned about what might happen to the association and the business of the condominium should Ms. Andzulis’ offer be turned down by the board. Normally at La Vita, when an association member offers to fill a vacancy on the board, the wish is made known at the opening of the meeting and a vote is immediately taken so that if the volunteer is approved by vote of the board then the new director will be able to participate in the business conducted at the meeting. At the January 10, 1995, board meeting this procedure was not followed. It was not followed because Ms. Andzulis did not make her wish to be on the board known at the opening of the meeting and because Mr. Roddenberry was not then certain whether Ms. Andzulis wanted to fill the vacancy or not. As the meeting came to a close, however, Ms. Andzulis raised her hand. For the first time in the meeting, Mr. Roddenberry realized Ms. Andzulis had made up her mind; she wanted to fill the vacancy. Mr. Roddenberry, as president of the board, called for a secret ballot on whether the Board should seat Ms. Andzulis. Unbeknown to Mr. Roddenberry at the time, and apparently to everyone else present (including Ms. Andzulis since she did not make an issue of it at the meeting,) secret votes by a condominium association are in violation of the Condominium Act. Mr. Roddenberry called for the secret ballot, not because he had any intention of violating the condominium law, but because Mr. Roddenberry, for the reasons stated earlier, did not want Ms. Andzulis to know how he would vote. As it turned out, all three board members present voted against seating Ms. Andzulis on the board. The secret nature of the ballot was short-lived. Soon after the result of the vote was announced, it was also announced that all three members of the board present had voted against seating Ms. Andzulis. The March 6, 1996 Emergency Meeting On March 6, 1996, a duly-noticed emergency meeting of the board was convened. Mr. Roddenberry read a statement to all assembled. The statement reviewed Mr. Roddenberry’s tenure as President of the association and his accomplishments. After relating that he had enjoyed the challenges confronting the association and did not regret the time spent participating in the business of the condominium, the statement concluded as follows: Since the January board meeting, the association has had to deal with a homeowner’s onslaught of insurance claims, a complaint filed with the State of Florida, a complaint filed with the board of directors, all of which has significantly increased the amount of time that I must devote to association business . . . The final act of this homeowner was to file a housing discrimination complaint based on sex discrimination against the three board members who voted against her being on the board. I feel that this claim is a malicious attack on my integrity. If this is what a board member must be subjected to, then I respectfully submit my resignation to the Board of Directors effective immediately and I also am withdrawing my name from nomination at the annual meeting. Petitioner’s Ex. No. 8, page 1 of 3. The homeowner to whom Mr. Roddenberry referred in this statement is Ms. Andzulis. Mr. Roddenberry’s resignation was greeted generally by the members of the association with dismay. As a person of considerable business, financial and accounting experience, he had been instrumental while serving on the board in setting up a new accounting system and had been invaluable in many ways to the association in the conduct of its business. He was well- respected and his resignation was a great loss to La Vita. In her Petition for Relief from a Discriminatory Housing Practice, which serves as the foundation of this proceeding, Ms. Andzulis refers to the March 6 emergency meeting as “retaliatory.” The meeting was not retaliatory. It was for Mr. Roddenberry to resign effective immediately, nothing more, nothing less. His resignation, as is evident from the statement read at the meeting, was because of the numerous issues he had had to deal with subsequent to the board’s vote to turn down Ms. Andzulis' offer to fill a vacancy.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That the Florida Commission on Human Relations enter a Final Order concluding that the La Vita Condominium Association, through the action of its board or otherwise, did not commit a discriminatory housing practice by refusing to allow Linda C. Andzulis to fill a vacancy on the association’s board of directors. DONE AND ENTERED this 1st day of April, 1997, in Tallahassee, Florida. DAVID M. MALONEY 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 this 1st day of April, 1997. COPIES FURNISHED: Linda M. Skipper, Esquire Paul L. Wean, P.A. 1305 East Robinson Street, Suite C Orlando, Florida 32801 Linda C. Anzulis, pro se 546-202 Via Fontana Drive Altamonte Springs, Florida 32714 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
Findings Of Fact Respondent A.R.M. Limited, Inc., is the developer of the residential condominium known as Trails at Royal Palm Beach, a phase condominium containing a total number of 230 units when completed, located in Royal Palm Beach, Florida. During 1981 Respondent submitted to Petitioner all documents required to properly register the condominium, including the Declaration of Condominium and the Contract for Sale. By letter dated June 16, 1981, Petitioner notified Respondent that the documents it had received were in acceptable form and that Respondent would soon be advised as to the results of the Petitioner's "content examination". By letter dated July 14, 1981, Petitioner notified Respondent that it had completed its examination, and the condominium documents were proper. On April 27, 1982, Respondent recorded the Declaration of Condominium for Phases I and II in the public records in Palm Beach County. The Offering Circular, the Declaration of Condominium, and the Contract for Sale contained a developer's guarantee of common expenses for a two-year period commencing with the recording of the Declaration of Condominium and guaranteeing that the unit owners' monthly assessment would not exceed $75 a month for the period of the guarantee. Accordingly, the initial guarantee period terminated April 27, 1984. Thereafter, the guarantee period was extended by the developer until April 27, 1985, and again until December 31, 1985. No evidence was offered to show that any unit owner objected to the extension of the guarantee period. However, no vote of the unit owners was taken regarding either of the two extensions, and no written agreement was obtained. During the period of time between the initial guarantee period and January 1, 1986, Respondent did not pay assessments on a regular basis but instead paid the difference between the association's expenses and income. In other words, the developer did fund all shortfalls through December 31, 1985. The Offering Circular approved by Petitioner in 1981 contained a copy of the Contract for Sale which was to be used, and in fact has been used, for the condominiums units. That Contract specifically provides for purchasers to pay an initial contribution to working capital in the amount of "$300 . . . which may be used by the Association for start-up expenses as well as ordinary expenses . . . " Pursuant to that contract, Respondent utilized start-up funds to off set common expenses of the condominium arising from the sale of 28 units between April 27, 1984 and April 27, 1985. Fourteen of those units were sold between April 27, 1984 and October 1, 1984, and 14 of those units were sold between October 1, 1984 and April 27, 1985. In a phase condominium, since the total number of units within the condominium increases as phases are added, the number of unit owners paying assessments for common expenses increases and, consequently the percentage of ownership of the common elements and percentage of common expenses liability changes per unit. When Respondent registered the condominium with Petitioner in 1981 Respondent filed all documents necessary for the entire project (including all phases) but only paid the filing fee related to Phases I and II at that time. As Respondent continued developing the condominium and selling additional units in subsequently-constructed phases, appropriate amendments to the original Declaration were recorded in the public records. Respondent, however, failed to file copies of those recorded amendments with Petitioner. By cover letter dated March 3, 1986, Respondent filed with Petitioner a developer's filing statement for subsequent phases and enclosed a check in the amount of $940 to cover filing fee requirements. According to an attachment to that filing, Respondent was filing Phases 900, 1000, 1100, 1200, 1300, 1400, 2000, 2100, 2200, 2400, and 2500, which in totality comprised 94 units. According to the same attachment, these Phases were added to the condominium through recordation of amendments to the original Declaration with such recordation occurring between 1983 and 1986. According to information submitted by Respondent to Petitioner, as of March 3, 1986, closings had taken place on 77 units in Phases 900, 1000, 1100, 1200, 1300, 1400, 2100, 2400, and 2500 prior to Respondent's filing the subsequent phase documents with Petitioner. There is no allegation that the documents when filed were improper or that Respondent failed to provide them to the unit owners at the time they were executed. In January of 1988 unit owners other than the developer elected a majority of the board of administration of the condominium association, and turnover of control of the association from developer control to control by unit owners other than the developer occurred.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it Is'; RECOMMENDED that a Final Order be entered: Finding Respondent guilty of the allegation contained within count one; Finding Respondent not guilty of the allegations contained within counts two and three of the Notice to Show Cause; Requiring Respondent to effectuate the financial review discussed in the Conclusions of Law section of this Recommended Order and pay to the condominium association any amount of unpaid assessments for the time period in question; and Assessing a fine against Respondent in the amount of $1000. DONE and RECOMMENDED this 20th day of May, 1988, at Tallahassee, Florida. LINDA M. RIGOT, 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 20th day of May, 1988. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 87-2917 Petitioner's proposed findings of fact numbered 1, 3, 5, 7, the first sentence of 9, the third sentence of 15, and 16-20 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 8 has been rejected as being immaterial to the issues under consideration herein. Petitioner's proposed findings of fact numbered 2, 4, 6, 9 except for the first sentence, 10-14, and 15 except for the third sentence have been rejected as not constituting findings of fact but rather as constituting conclusions of law, argument of counsel or recitations of the testimony. COPIES FURNISHED: Van B. Poole, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Karl M. Scheuerman, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 A.R.M. Limited, Inc. Trails at Royal Palm Beach Suite 315 1300 North Florida Mango Road West Palm Beach, Florida 33409 Dennis Powers, Esquire Suite 315 1300 North Florida Mango Road West Palm Beach, Florida 33409
