Findings Of Fact Petitioner herein is the State of Florida, Department of Business Regulation, Division of Florida Land Sales Condominiums and Mobile Homes. One Respondent in this matter is Tanwin Corporation (hereinafter "Tanwin") the developer of two residential condominiums known as Vista Del Lago Condominium I and Vista Del Lago Condominium II, located in West Palm Beach, Florida. The other Respondent is Vista Del Lago Condominium Association, Inc. (hereinafter "Association"), the condominium association for Vista Del Lago Condominiums I and II. Transition from developer control of the Association has not occurred, and at all times pertinent hereto, Respondent Tanwin has in fact controlled the operation of the Respondent Association. The Declaration of Condominium for Vista Del Lago Condominium I (hereinafter "Condo I") was recorded in the public records on December 12, 1980. The Declaration of Condominium for Vista Del Lago Condominium II (hereinafter "Condo II") was recorded in the public records on March 11, 1982. Condo I contains 16 units; and Condo II contains 18 units. Herbert and Judith Tannenbaum are the President and Secretary, respectively, of both Tanwin and the Association and are members of the Association's Board of Directors. The developer-controlled Association failed to provide a proposed budget of common expenses for Condo I for the fiscal year 1982. The developer-controlled Association failed to provide a proposed budget of common expenses for Condo I and Condo II for 1983 until the unit owner meeting in March or April of 1983. The budget provided at that time contained no provision for reserves. Although the document alleged to be the 1983 proposed budget admitted in evidence as Petitioner's Exhibit numbered 17 does contain an allocation for reserves, Petitioner's Exhibits numbered 17 is not the 1983 budget disseminated to unit owners at the annual meeting in 1983. In addition, the 1983 budget was received by the unit owners at the meeting at which the proposed budget was to be considered and not prior to the budget meeting. Statutory reserves were not waived during the period December, 1980 through December, 1983. The "start-up" budgets contained as exhibits to the Declarations of Condominium indicate that reserves were to be collected from unit owners at the rate of $15 per month per unit at least during the first year commencing December of 1980 with the first closing. Hence, reserves were not waived December, 1980 through December, 1981. From November, 1981 through December, 1983, no vote to waive reserves was taken by the unit owners. Although reserves were discussed at the 1983 meeting, no vote was taken during the period in question including 1983, to waive reserves. The developer as owner of unsold units; has failed to pay to the Association monthly maintenance for common expenses during the period December, 1980 through December, 1983. The developer Tanwin has, in the nature of an affirmative defense, alleged the existence of a guarantee of common expenses pursuant to Section 718.116(8), Florida Statutes, which purportedly ran from the inception of the condominiums to date. Accordingly, the initial issue for resolution is whether the developer pursuant to statute guaranteed common expenses. Section 718.116(8)(b) provides that a developer may be excused from payment of common expenses pertaining to developer-owned units for that period of time during which he has guaranteed to each purchaser in the declaration of condominium, purchase contract or prospectus, or by an agreement between the developer and a majority of unit owners other than the developer, that their assessments for common expenses would not increase over a stated dollar amount during the guarantee period and the developer agrees to pay any amount necessary for common expenses not produced by the assessments at the guaranteed level receivable from other unit owners, or "shortfall". Actual purchase agreements were admitted in evidence. Respondents seek to label certain unambiguous language in the purchase contracts as a guarantee. This language, uniform throughout all those contracts as well as the form purchase contract filed with Petitioner except that of Phillip May, provides as follows: 9. UNIT ASSESSMENTS. The Budget included in the Offering Circular sets forth Seller's best estimation of the contemplated expenses for operating and maintaining the Condominium during its initial year. Purchaser's monthly assessment under the aforementioned Budget is in the amount of $109.00. Until Closing of Title, Seller has the right (without affecting Purchaser's obligation to purchase in accordance with the provisions hereof, to modify the estimated Budget and assessments periodically if then current cost figures indicate that an updating of estimates is appropriate). [Emphasis added]. That portion of the purchase agreement set forth above does not constitute a guarantee. Instead, the purchase agreement simply includes a best estimation of expenses for the initial year. It does not govern assessments after the expiration of one year, and even as to the initial year, the language in the contract sets forth only a "best estimation" and not a guarantee that the assessments would not increase during the "guarantee period." Phillip May's purchase agreement reflects that he purchased his unit in August of 1983; after condominium complaints had been filed by the unit owners with the Florida Division of Land Sales Condominiums and Mobile Homes. His purchase agreement has been altered from the purchase agreement of earlier purchasers in that his purchase agreement expressly, by footnote contains a one- year guarantee running from closing. The guarantee contained in his purchase agreement was presented by the developer without any request from Mr. May for the inclusion of a guarantee in his purchase agreement. The guarantee language in this purchase agreement is useful for the purpose of comparing the language with those portions of the pre-complaint contracts which Respondents assert contain or constitute a guarantee. Similarly it is determined that no guarantee of common expenses exists in the Declarations of Condominium for Condo I and II or in the prospectus for Condo II. While Respondents seek to assert the existence of a guarantee in those documents, the portions of those unambiguous documents which according to Respondents contain a guarantee, have no relation to a guarantee or do not guarantee that the assessments for common expenses would not increase. Respondent Tanwin also seeks to prove the existence of an oral guarantee which was allegedly communicated to purchasers at the closing of their particular condominium units. However, purchasers were told by Herbert or Judith Tannenbaum only that assessments should remain in the amount of $109 per month per unit unless there existed insufficient funds in the Association to pay bills. This is the antithesis of a guarantee. During a guarantee period the developer in exchange for an exemption from payment of assessments on developer- owned units agrees to pay any deficits incurred by the condominium association. Accordingly, no guarantee was conveyed at the closing of condominium units. Further Respondent Tanwin's additional contention that an oral guarantee arose when the condominiums came into existence is plainly contradicted by the express language throughout the condominium documents and purchase agreements that there exist no oral representations and that no reliance can be placed on any oral representations outside the written agreements. Further, prior to December, 1983, no reference was ever made by the developer either inside or outside of unit owner meetings as to the existence of the alleged guarantee. Moreover, a comparison between on the one hand, the 1981 and 1982 financial statements prepared in March of 1983, and on the other hand, the 1983 financial statements, clearly reveals that even the accountant for Tanwin was unaware of the existence of a guarantee during the period in question. While the 1983 statements, prepared in 1984 after unit owners filed complaints with Petitioner contain references to a developer guarantee, the 1981 and 1982 statements fail to mention a guarantee. Instead, included in the 1981 and 1982 statements of the Association are references under the current liabilities portion of the balance sheets for those years, to a "Due to Tanwin Corporation" liability in the amounts of $2,138 for 1981 and $2,006 for 1982. Petitioner through Ronald DiCrescenzo, the C.P.A. for Tanwin, established that at a minimum, the $2,006 figure reflected in the 1982 balance sheet was in fact reimbursed to Tanwin. Section 7D-18.05(1),(c), Florida Administrative Code, entitled "Budgets" and effective on July 22, 1980, was officially recognized prior to the final hearing in this cause. That section requires each condominium filing to include an estimated operating budget which contains "[a] statement of any guarantee of assessments or other election and obligation of the developer pursuant to Section 718.116(8); Florida Statutes." The estimated operating budgets for Condo I and Condo II do not include a statement of any guarantee of assessments or other election or obligation of the developer. The testimony of Herbert Tannenbaum with regard to an oral (or written) guarantee is not credible. He first testified that an oral guarantee was communicated to purchasers at the closing of each unit. In contrast, Tannenbaum also testified that the first discussion he had regarding a guarantee occurred with his attorney after the filing of the Notice to Show Cause in this action. Tannenbaum further testified that he did not understand what a guarantee was until after this case had begun and was unaware of the existence of any guarantee prior to consulting with his attorney in regard to this case. Moreover, Ronald DiCrescenzo, the C.P.A. for Tanwin testified that it was Tannenbaum who informed DiCrescenzo of the existence of a guarantee but DiCrescenzo was unable or unwilling to specify the date on which this communication occurred. Respondent Tanwin also seeks to establish the existence of a guarantee through Petitioner's Exhibit numbered 5 which is a document signed by less than the majority of unit owners even including Tannenbaum and his son, and signed on an unknown date during 1984. The document provides: The undersigned Unit Owners at the Vista Del Lago Condominium do not wish to give up the benefits of the developer's continuing guarantee which has been in effect since the inception of the condominium and agreed to by a majority of unit owners and whereby the developer has continuously guaranteed a maintenance level of no more than $109.00 per month per unit, until control of the condominium affairs is turned over to the unit owners in accordance with Florida's Condominium law. According to Respondent Tanwin, Petitioner's Exhibit numbered 5 constitutes a memorandum signed by unit owners evidencing their belief that a continuous guarantee of the developer has been in effect. First, however, this document was never admitted into evidence for that purpose; rather the document was admitted only to establish the fact that a unit owner had signed the document. Second, this document, unlike the purchase agreements or other condominium documents is ambiguous and is not probative of the existence of a guarantee. Instead, the evidence is overwhelming that the document was prepared by the developer in the course of this litigation for use in this litigation. Moreover, unit owner testimony is clear regarding what Mr. and Mrs. Tannenbaum disclosed to unit owners as the purpose for the document when soliciting their signatures, to- wit: that the document was a petition evidencing the unit owners' desire that their monthly maintenance payments not be increased and that prior confusion as to whether reserves had been waived needed resolution. Respondent Tanwin did pay assessments on some developer-owned units during the period December, 1980 through December, 1983, a fact which is inconsistent with its position that a guarantee existed. Noteworthy is the statement by Ronald DiCrescenzo, the C.P.A. for Tanwin, in his August 16, 1983, letter to Herbert Tannenbaum wherein it is stated: "It is my understanding that you are doing the following: . . .[Playing maintenance assessments on units completed but not sold." It is inconceivable that a developer during a "guarantee period" would pay assessments on some developer units as the purpose of the statutory guarantee is to exempt the developer from such assessments. The assessments for common expenses of unit owners other than the developer have increased during the purported guarantee period. At least some, if not all, unit owners paid monthly assessments of $128 - $130 for at least half of 1984. This fact is probative of the issue of whether a guarantee existed because unit owner assessments must remain constant during a guarantee period. At the Spring 1984 meeting chaired by Mr. Tannenbaum a vote was taken for the first time as to whether reserves should be waived. Although only 21 owners were present in person or by proxy; the vote was tabulated as 12 in favor and 12 opposed. Mr. Tannenbaum, therefore, announced an increase in monthly maintenance payments to fund reserves. Thereafter owners began paying an increased assessment. The fact that the developer-controlled Association collected increased assessments from unit owners during 1984, and had up to the time of the final hearing in this cause made no effort to redistribute those funds suggests that the developer-controlled Association and the developer considered themselves to be under no obligation to keep maintenance assessments at a constant level. There was no guarantee of assessments for common expenses by Tanwin from December, 1980, through at least December, 1983. Since there was no guarantee during the time period in question, Respondent Tanwin is liable to the Respondent Association for the amount of monthly assessments for common expenses on all developer-owned units for which monthly assessments have not been paid. In conjunction with the determination that Tanwin owes money to the Association (and not vice versa), Respondent Tanwin attempted to obtain an offset by claiming the benefit of a management contract between either Tannenbaum or Tanwin and the Association. No such management contract exists, either written or oral. Although a management contract is mentioned in one of the condominium documents there is no indication that one ever came into being, and no written contract was even offered in evidence. Likewise, no evidence was offered to show the terms of any oral contract; rather, Tannenbaum admitted that he may never have told any of the unit owners that there was a management contract. Tannenbaum's testimony is consistent with the fact that no budget or financial statement reflects any expense to the Association for a management contract with anyone. Likewise, the "budget" contained within Condo II's documents recorded on March 11, 1982, specifically states that any management fee expense was not applicable. Lastly, Tannenbaum's testimony regarding the existence of a management contract is contrary to the statement signed by him on February 10, 1981, which specifically advised Petitioner that the Association did not employ professional management. To the extent that Respondent Tanwin attempted to establish some quantum meruit basis for its claim of an offset, it is specifically found that no basis for any payment has been proven for the following reasons: Tannenbaum had no prior experience in managing a condominium, which is buttressed by the number of violations of the condominium laws determined herein; Tannenbaum does not know what condominium managers earn; no delineation was made as to specific duties performed by Tannenbaum on behalf of the Association as opposed to those duties performed by Tannenbaum on behalf of Respondent Tanwin; since there was no testimony as to duties performed for the Association, there was necessarily no testimony as to what duties were performed on behalf of the Association in Tannenbaum's capacity as President of the Association and member of the Association's Board of Directors as opposed to duties allegedly performed as a "manager." Tannenbaum's testimony as to the value of his "services" ranged from $10,000 to $15,000 a year to a lump sum of $60,000; it is interesting to note that the value of his services alone some years exceeded the Association's annual budget. Respondent Tanwin has failed to prove entitlement to an offset amount, either pursuant to contract or based upon quantum meruit. The financial statements of the Association--including balance sheets, statements of position, and statements of receipts and expenditures--for 1980-81 and for 1982 reveal consolidation of the records for Condo I and Condo II in these statements. Additionally, DiCrescenzo admitted that separate accounting records were not maintained for each condominium and Herbert Tannenbaum also admitted to maintaining consolidated records. Accordingly, the developer- controlled Association failed to maintain separate accounting records for each condominium it manages. The By-Laws of the Association provide: SECTION. 7. Annual Audit. An audit of the accounts of the Corporation shall be made annually by a Certified Public Accountant - and a copy of the Report shall be furnished to each member not later than April 1st of the year following the year in which the Report was made. The financial statement for 1981 bears the completion date of February 9, 1983. The 1982 financial statement contains a completion date of March 1, 1983. Both the 1981 and the 1982 statements were delivered to the unit owners in March or April, 1983. Accordingly, Respondents failed to provide the 1981 financial report of actual receipts and expenditures in compliance with the Association's By-Laws. As set forth hereinabove, statutory reserves were not waived during the period of December, 1980 through December, 1983. Being a common expense, reserves must be fully funded unless waived annually. In the instant case, Respondents, rather than arguing that reserves had in fact been fully funded, sought to prove that reserves had been waived during the years in question. The fact that reserves were not fully funded is established by reviewing the financial statements. In accordance with the start-up budgets, reserves were initially established at the level of $15.00 per unit per month. Therefore, during 1981, for Condo I containing sixteen units, the Association's reserve account should contain 16 multiplied by $15.00 per month multiplied by 12 months, or $2,880. Since the Declaration of Condominium for Condo II was not recorded until March 11, 1982, assessments for common expenses including allocations to reserves, were not collected from Condo II during 1981. Therefore, the balance in the reserve account as reflected in the balance sheet for the year 1981 should be no less than $2,880. The actual balance reflected in this account is $2,445. Both Tannenbaum and DiCrescenzo testified that most of the balance in that account was composed of purchaser contributions from the closing of each condominium unit "equivalent to 2 months maintenance to be placed in a special reserve fund" as called for in the purchase contracts. Tannenbaum further admitted that instead of collecting $15.00 per month per unit for reserves, the money that would have gone into the reserve account was used "to run the condominium." Similarly, for the year ending 1982, the balance in the reserve account also reflects that reserves were not being funded. First, the amount of reserves which should have been set aside in 1981 of $2,880 is added to the total amount of reserves which should have been collected for 1982 for Condo I ($2880), giving a total figure of $5,760. To this figure should be added the reserves which should have been collected from units in Condo II during 1982. This figure is derived by multiplying the total number of units in Condo II, 18 units, by $15.00 per unit multiplied by 8 months (since Condo II was recorded in March of 1982) to yield a figure for Condo II of $2,160. Adding total reserve assessments for Condo I and II, $2,160 plus $5,760 equals $7,920 the correct reserve balance at the close of 1982. The actual balance for the period ended December 31, 1982, is reflected to be $4,138. Similarly, the amount of reserves required for Condos I and II as of December 31, 1983, can be calculated using the same formula. Although the 1983 financial statement prepared in 1984 reflects the existence of a funded reserve account, both DiCrescenzo and Tannenbaum admitted there was no separate reserves account set up during the time period involved herein. Statutory reserves were not waived and were not fully funded for the period of December, 1980 through December, 1983. All parties hereto presented much evidence, unsupported by the books and records of the corporations, for the determination herein of the amounts of money owed by Respondent Tanwin to the Association to bring current the total amount which Tanwin should have been paying to the Association from the inception of each condominium for monthly maintenance on condominium units not yet sold by the developer, together with the amount owed by Tanwin to the Association so that a separate reserve account can be established and fully funded for all years in which the majority of unit owners including the developer have not waived reserves. No findings of fact determining the exact amount Tanwin owes to the Association will be made for several reasons: first, the determination of that amount requires an accounting between the two Respondents herein which is a matter that can only be litigated, if litigation is necessary, in the circuit courts of this state; second, the determination of the amount due between the private parties hereto is not necessary for the determination by Petitioner of the statutory violations charged in the Amended Notice to Show Cause; and third, where books and records exist; one witness on each side testifying as to conclusions reached from review of those records, even though the witnesses be expert, does not present either the quantity or the quality of evidence necessary to trace the income and outgo of specific moneys through different corporate accounts over a period of time, especially where each expert opinion is based upon questionable assumptions. It is, however, clear from the record in this cause that Respondent Tanwin owes money to the Respondent Association and further owes to the Respondent Association an accounting of all moneys on a specific item by item basis.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is, therefore, RECOMMENDED that a Final Order be entered: Finding Respondent Tanwin Corporation guilty of the allegations contained in Counts 1-7 of the Amended Notice to Show Cause; Dismissing with prejudice Count 8 of the Amended Notice to Show Cause; Assessing against Respondent Tanwin Corporation a civil penalty in the amount of $17,000 to be paid by certified check made payable to the Division of Florida Land Sales, Condominiums and Mobile Homes within 45 days from entry of the Final Order herein; Ordering Respondents to forthwith comply with all provisions of the Condominium Act and the rules promulgated thereunder; And requiring Tanwin Corporation to provide and pay for an accounting by an independent certified public accountant of all funds owed by the developer as its share of common expenses on unsold units and the amount for which Tanwin is liable in order that the reserve account be fully funded, with a copy of that accounting to be filed with Petitioner within 90 days of the date of the Final Order. DONE and RECOMMENDED this 9th day of August, 1985, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of August, 1985. COPIES FURNISHED: Karl M. Scheuerman, Esquire Thomas A. Bell, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Joseph S. Paglino, Esquire 88 Northeast 79th Street Miami, Florida 33138 E. James Kearney, Director Department of Business Regulation Division of Florida Land Sales Condominiums and Mobile Homes 725 South Bronough Street Tallahassee, Florida 32301 Richard B. Burroughs, Jr., Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL CONSENT ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF BUSINESS REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS AND MOBILE HOMES DEPARTMENT OF BUSINESS REGULATION, DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS AND MOBILE HOMES, Petitioner, CASE NO. 84-0437 DOCKET NO. 84001MVC TANWIN CORPORATION and VISTA DEL LAGO CONDOMINIUM ASSOCIATION, INC. Respondents. / FINAL CONSENT ORDER The Division of Florida Land Sales, Condominiums and Mobile Homes, (hereinafter the Division), Vista Del Lago Condominium Inc., (hereinafter the Association), and Tanwin Corporation, (hereinafter Tanwin), hereby stipulate and agree to the terms and issuance of this Final Consent Order as follows: WHEREAS, the Division issued a Notice to Show Cause directed to Respondents and, WHEREAS, after issuance of the Recommended Order in this cause, the parties amicably conferred for the purpose of achieving a settlement of the case, and WHEREAS, Tanwin is desirous of resolving the matters alleged in the Notice to Show Cause without engaging in further administrative proceedings or judicial review thereof, NOW, THEREFORE, it is stipulated and agreed as follows:
Findings Of Fact Respondent, Eric Ager, is a registered residential contractor in Florida, having been issued license number CR CA11771. Respondent held the license at all times referred to in these Findings Of Fact. Background While licensed and doing business as Ager Construction Company and Ager Homes, Inc., the Respondent has built 700 homes in Florida since 1975. There was no evidence of any prior disciplinary proceedings against him. Before 1983, the Respondent qualified and did business as Ager Construction Company. At about that time, the Respondent decided to retire and was given an opportunity to get his money out of the business when his older brother, Irwin, a Michigan licensed contractor since the early 1960's, offered to buy and operate the business. The Respondent agreed and sold his company to Ager Homes, Inc., the company his brother, Irwin, formed for this purpose. Since Irwin was not licensed in Florida, the Respondent agreed to stay on as the qualifying agent for Ager Homes, Inc., but his role was to be gradually phased out and eventually terminated when Irwin could replace him. Irwin was the sole shareholder and director of Ager Homes, Inc. He also was the president. The Respondent acted as vice-president for a time but later served only as resident agent for purposes of service of process for the company (as well as qualifying agent.) As qualifying agent for Ager Homes, Inc., the Respondent saw it as his job to be in the field and do the actual building. He and Irwin consulted before Irwin estimated a job, but otherwise all financial matters were handled exclusively by Irwin. When permanent financing on a job the Respondent was working on closed, Irwin would prepare an affidavit of no liens and an affidavit of no unpaid invoices. The affidavit of no liens also stated that "there have been no . . . services or material furnished to the property for which a valid lien could be filed, nor has there been material or services furnished to, or labor performed on said property for which there are unpaid bills." The Respondent generally did not sign or even see these affidavits. The DeSantis On July 6, 1985, Ager Homes, through Irwin, entered into a contract to sell the DeSantis an $89,000 house to be built on a lot in a subdivision called Coventry. The sales price included a swimming pool and screened pool area enclosure. On or about October 17, 1985, Ager Homes, through its foreman, Randy Martin, subcontracted with National Screen & Aluminum, Inc., for the screen enclosure. The original contract price was $4,169. Later, on Martin's recommendation, the DeSantis requested that the screen enclosure be enlarged and the roof gabled. Martin entered into an addendum for the additional work by National Screen, at an additional cost of $622. National Screen's work was completed the morning of the closing on October 30, 1985. Irwin left a signed affidavit of no liens and affidavit of no unpaid bills with the closing agent (along with the other papers he had to sign), and the transaction closed as scheduled. In accordance with the practice of Ager Homes, the Respondent knew nothing about the affidavits but assumed that they would be given at the closing, as usual. In fact, National Screen had not been paid in full, and there was still a balance due of $3,399 as of April 1986. National Screen filed a claim of lien, and its successor, Design Aluminum, sued in February 1986, to foreclose the lien. The DeSantis hired legal counsel, and a judgment was entered in the DeSantis' favor in May 1987, based on the technicality that National Screen's November 5, 1985, notice to owner was too late. The Respondent knew nothing about either the National Screen subcontract or the affidavits until after March 1986. In the fall of 1985, Irwin had begun to have financial difficulties. They stemmed from the development of the Coventry subdivision. Muck and ground problems required the unforeseen expenditure of $100,000 to $200,000. Irwin was unable to maintain a healthy cash flow. By March 1986, Irwin also had begun to have personal problems, including a death in the family. During the week of March 15, 1986, Irwin left Florida and abandoned Ager Homes. Irwin left the Respondent 70 to 80 unpaid invoices to deal with. The Respondent operated the business for some time and tried to get Ager Homes' bills paid. In the case of the National Screen lien, the Respondent believed the title company would pay the lien and sue Ager Homes far reimbursement, but the title company refused to pay on the ground that the lien was not a covered title defect. After this became apparent, the Respondent still did not arrange to have the debt paid. He vaguely understood from Irwin that the job had cost more than it should have, but he never investigated to learn the true facts and never denied that the debt was valid. The Schultzes On June 21, 1985, Ager Homes, through Irwin, contracted with the Schultzes to build a house on a lot in Coventry for a price of $115,000. On the Schultz job, there was a difficulty with the air conditioning. The air conditioning would not operate effectively. After much experimenting, it was decided that an additional unit would be necessary. The transaction closed on November 7, 1985, before the additional air conditioning unit was added. Irwin signed and provided an affidavit of no liens and affidavit of no unpaid invoices at the closing. In accordance with the practice of Ager Homes, the Respondent knew nothing about the affidavits but assumed they would be given at the closing, as usual. Ager Homes subcontracted the air conditioning system to Airtron, Inc. The original price was $2500. With the additional unit added after the closing, the total due to Airtron was $2781. This amount never was paid. In February 1986, the Respondent and Irwin gave Airtron a promissory note for $12,000, which included the $2,781 on the Schultz job. In April 1986, Airtron filed a claim of lien on the Schultz property. By August 1986, Irwin had left, and the Respondent had not kept Ager Homes current on new billings by Airtron. On August 7, 1986, the Respondent signed another promissory note to Airtron for the balance due, which by then had grown to $26,000. On October 31, 1986, the Schultzes paid the $2781 lien when they closed the resale of their house in Coventry. The Respondent has paid a total of approximately $5000 on the debt, leaving $18,600 due and owing. At first, the Respondent thought the title company would pay Airtron and sue Ager Homes for reimbursement. Eventually, it became apparent that the title company would not pay.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Construction Industry Licensing Board enter a final order: (1) suspending the residential contractor license of the Respondent, Eric Ager, until such time as he has paid Design Aluminum and Airtron, Inc., in full on the outstanding accounts of Ager Homes, Inc., and reimbursed the Schultzes what they paid to clear the Airtron lien from their property, up to a maximum suspension of two years; and (2) after the suspension, either (a) reinstating the license, subject to a one year probation, if the Respondent can demonstrate good faith, diligent efforts to pay the debts, or (b) revoking the license for failure to make good faith, diligent efforts to pay the debts. RECOMMENDED this 24th day of September 1987, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 24th day of September 1987. COPIES FURNISHED: W. D. Beason, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32399-0750 Eric Ager 3041 Xevlyn Ct. Safety Harbor, Florida 33572 Fred Seely Executive Director Construction Industry Licensing Board Department of Professional Regulation P. O. Box 2 Jacksonville, Florida 32201 Tom Gallagher, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
Findings Of Fact The following pertinent facts are found based upon the unrefuted testimony and evidence adduced by the Petitioner, the Respondent having failed to appear to put on its case. The Respondent, George May, is a licensed real estate broker, having been issued license number 18515. His principal place of business is located at 2300 West Oakland Park Boulevard, Fort Lauderdale, Florida. At all times pertinent to this case the Respondent was the active firm member for Commercial Equity Corporation, a corporate broker, with offices at the same address. The Respondent was also the principal officer and stockholder of Eight Villas Corporation. On July 15, 1977, Mrs. Graciela Holden approached the Respondent regarding her desire to sell an apartment complex she owned. She ultimately gave the Respondent a listing for the sale of her property described as: Lot 789, Block 19, Lauderdale-by-the-Sea according to a plat thereof recorded in plat book six, page two of the public records of Broward County, Florida, together with improvements thereon consisting of an apartment complex. Mrs. Holden had had previous real estate transactions with Commercial Equity Corporation and the Respondent, hence her reliance on the Respondent's services in this situation. She found herself in severe financial difficulty at this time and was becoming ever more delinquent on her mortgage payments on the subject property. She discussed with the Respondent the advisability and means by which she might sell that apartment complex. The Respondent recommended to her that she sell the property. On September 9, 1977, she entered into a deposit-receipt sales contract for the sale of the apartment complex to Enfo Inc., a Florida corporation. The Respondent negotiated and arranged for the contract and sale on behalf of Mrs. Holden. During the negotiation of the proposed sale the Respondent explained the details of the contract to Mrs. Holden and counseled her on the advisability of and method by which the sale could be consummated. During these negotiations and counseling sessions he became aware of her delinquent mortgage payments on the subject premises. After agreeing to the terms and conditions and entering into the contract, the seller and purchaser agreed to close the sale of the property on September 30, 1977. Errors became apparent in the preparation of certain mortgage assumption documents on the part of the purchaser, however, and therefore the mortgagee required re-submission of proper forms for assumption of the outstanding mortgage by the purchaser, which resulted in the scheduled closing being cancelled and the time for closing extended for two to three days. During the course of the negotiations with Enfo Inc., and after the contract was signed the seller and purchaser separately made requests through the Respondent to meet with each other. The Respondent, however, informed each on a number of occasions that the other party to the transaction did not wish such a meeting. In effect, then, the Respondent failed to communicate requests by either party to the other regarding their desires to have meetings to discuss terms and conditions of the proposed sale and in representing to each party that the other did not wish such a meeting, the Respondent knowingly made a false representation which was shown by the Petitioner to be material in effecting the ultimate abrogation of the contract. On September 30, 1977, the original date for closing, the Respondent advised the purchaser that the purchaser was in default on the contract because closing would not be on that previously agreed upon day and therefore the seller was declaring the contract void. Also on September 30, 1977, the Respondent informed his client, Mrs. Holden, that the purchaser did not wish to close the transaction and effect the sale. Shortly thereafter the Respondent informed Mrs. Holden that she would now likely lose the premises to mortgage foreclosure since she was three months delinquent on her mortgage payments and since she no longer had a contract of sale for the premises, on the strength of which the bank might forebear from foreclosure proceedings. The Respondent then advised Mrs. Holden that he would present her with a "new deal" to help her out of her financial predicament. On the following day, October 1, 1977, the Respondent again reminded Mrs. Holden that her loss of the premises by foreclosure was imminent and offered her a proposition whereby she would convey the subject apartment complex to the Respondent. Her equity in the premises was apparently calculated by the Respondent to be approximately $22,000. The Respondent, by way of exchange, would convey to her a single family home situated at 841 Southwest 13th Court, Pompano Beach, Florida, which he owned and in which he represented to her he had an equity of $22,000. The Respondent additionally assured Mrs. Holden that he would assist her with the mortgage payments on that house until she was able to obtain some financial stability and regular employment. The Respondent persuaded Mrs. Holden to believe that his offer was in her best interests and that in order to keep from "losing everything" she should act on his offer, which she did. As a result of these representations by the Respondent, Mrs. Holden executed a deed of conveyance of her apartment complex to Eight Villas Corporation that same day. That deed was recorded by the Respondent the next day. The Respondent in turn executed and gave to Mrs. Holden a quit-claim deed to the house known as 841 Southwest 13th Court, Pompano Beach, Florida. The Petitioner's evidence was unrefuted and demonstrates that the Respondent's statement to the purchaser, Enfo Inc., on September 30, 1977, to the effect that the purchaser was in default on the contract and that therefore the contract was going to be cancelled by the seller was made without the knowledge or consent of Mrs. Holden. Mrs. Holden at all times pertinent hereto wished to consummate and close the transaction with Enfo Inc., in order to relieve her financial problems and was not concerned with a slight delay in the original closing date. Similarly, the Respondent's statement to Mrs. Holden that the purchaser, Enfo Inc., did not wish to consummate the transaction and was therefore defaulting on the contract was also false and known by him at the time to be false. At all times pertinent hereto Enfo Inc., desired to close the transaction and had so advised the Respondent. Mrs. Holden believed the Respondent's representations in this regard and relied on his representations and guidance in her conduct of the proposed transaction with Enfo Inc., as well as the transaction with the Respondent himself. The value of the Respondent's Pompano Beach house for which he gave Mrs. Holden a quit claim deed was considerably less than Mrs. Holden's equity and value in the subject apartment complex. The conveyance of the apartment complex from Mrs. Holden to the Respondent's Eight Villas Corporation was induced by the representations of the Respondent, as the alter ego of the corporation, which he knew to be false at the time he made them. The Respondent thus fraudulently advised Mrs. Holden that it was in her best interest to transfer her property to him in exchange for one of lesser value and also falsely advised and misled her when he told her that unless she transferred her property to him in exchange for the house that she would lose the apartment complex and everything else she owned. The Respondent's real estate license which is the subject of this proceeding has already been revoked and the time for appeal of the Petitioner's final order has expired in DOAH Cases numbered 81-237 and 81-1149.
Recommendation In consideration of the foregoing findings of fact and conclusions of law it is therefore recommended that Case No. 81-1503 be dismissed with prejudice. DONE AND ENTERED this 3rd day of March, 1982, in Tallahassee, Florida. P. MICHAEL RUFF, 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 3rd day of March, 1982. COPIES FURNISHED: Theodore Silver, Esquire 9445 Bird Road, Second Floor Miami, Florida 33165 Mr. George May Suite 202 2300 West Oakland Park Boulevard Fort Lauderdale, Florida 33311
The Issue The issue for consideration in this case is whether Petitioners should be granted approval by the City of Clearwater of their request for expansion of a six-bed group home facility, located at 1430 Palmetto Street in Clearwater, to eight beds.
Findings Of Fact Petitioners, Generosa T. Santos and Rose W. Milam, operate the White Palace, an assisted living facility, in a residence owned by Petitioner Milam, located at 1430 Palmetto Street in Clearwater. The facility is currently licensed for six residents and has been in operation for several years. The property in question is a single family residence located in an area zoned RS 8, (residential urban), on the north, east and west, and recreational/open space on the south. In actuality, all parcels, including the property in question, except for the golf course on the south, are occupied by single family residences. On December 15, 1996, Ms. Santos applied to the City's Planning and Zoning Board for a conditional use permit to expand the existing six bed Level I Group Care Facility to a maximum capacity of eight residents. The Petitioners' request was considered by the Board at its public meeting held on February 4, 1997. Prior to that time, the Petitioners' application was reviewed by Sandra E. Glatthorn, a planning administrator for the City who determined that the property, a single family residence, has been utilized since 1983 as an assisted living facility for six adults. In 1985, the facility was permitted for eight residents, but for two years thereafter, the facility did not operate as such and that permit lapsed. In March 1994, Ms. Santos requested zoning approval for six clients, which was approved. After her review of the application in issue, Ms. Glatthorn prepared a staff report which supported the request. This report was based on the matters submitted with the application. Her review indicated that the intended use for which the application was submitted appeared to be compatible with the neighborhood and the zoning requirements, but at the meeting of the Board held on February 4, 1997, several neighbors came forward to present evidence that the proposed use, based on demonstrated conditions, was not compatible with but had a negative impact on surrounding properties. An RS 8 zoning category is generally limited to single family residences or to family care facilities for up to six clients. Once the projected client population exceeds six residents, the category becomes Level I Group Care. Clients in either case can be elderly, physically or mentally handicapped, or non-dangerously mentally ill. Criminal or dangerous clients are not allowed within either category. Distance requirements between the residence in issue and surrounding properties are not in issue here. On reconsideration of this application, after the Board meeting, the planning staff now recommends denial. At the Board meeting, several neighbors expressed their opposition to the approval of the requested permit. They cited what they considered to be incidents of a nature inconsistent with the quiet enjoyment of their property, including aberrant and disconcerting behavior by residents of the existing facility which made them uncomfortable and precluded them from a worry-free occupancy of their property. Residents of the facility were seen to wander the neighborhood, to verbally abuse neighbors and shout out obscenities, to seek access to neighboring properties and to occasion a police response to complaints by neighbors. Mr. Santos opined that the neighborhood opposition to the increase in the number of beds is based on an opinion held that Petitioners are not capable of running the facility and on the Petitioners as a family. He rejects the contention by some neighbors that his children, who occupy the house along with their parents and the clients, are not being brought up in a good environment. This is not in issue. The decision to operate the home as an assisted living concept was not a spur of the moment decision by the Petitioners. They researched the possibility thoroughly before deciding to operate it. Mr. Santos asserts that the neighbors claim the residents at the facility are abandoned, but this is not so. The residents have families who visit them and who take the residents for off- facility visits. In addition, he claims, the residents are not violent. Before admission to the facility, potential residents are screened to insure they are not violent or dangerous. He contends he would not expose his family, which lives in the facility, to dangerous residents. The staff of the facility is made up of members of the Santos family. Any clients who created trouble at the facility have been removed from it at Mr. Santos' instigation. Though residents are not restricted to the facility grounds, if there is a problem with a resident, that resident is removed from the home in an effort to satisfy the neighbors. Though Mr. Santos believes he has a good relationship with most of the neighbors, he cannot seem to get through to the Popes. Ms. Santos and Ms. Milam are willing to work with the neighbors to alleviate their anxieties regarding the facility and, if that is what it takes to do so, will agree to limit the occupancy of the facility only to elderly clients. Only Mr. and Mrs. Pope appeared at the instant hearing. Both expressed substantial objection to the expansion of the facility. Their concerns are based on the fact that residents of the facility have come to their home next door and banged on the door seeking entrance; have screamed obscenities at them while they were in their back yard; and on the report that the owners will move out if the increase in resident authorization is approved and bring in other people to care for the residents. Neither Mr. nor Mrs. Pope have ever been in the facility. It appears, also, that on only one occasion did residents come to their home to seek entry. Mr. Pope admits to being quick to anger and to being prejudiced against Orientals. He served in the South Pacific during World War II. Mr. And Mrs. Santos are Orientals. Neither the Popes nor their neighbors who appeared at the Board's February 4 meeting want the facility in their residential community. Most of them have spent their entire lives working towards providing a comfortable and secure home for their retirement and they feel that the insertion of a group home, with the attendant additional activity, would be incompatible with the quiet enjoyment of their property and would adversely affect their property values, which make up a large portion of their financial worth. On the other hand, representatives of Directions For Mental Health, Inc., an agency devoted to the placement of disabled adults, primarily the mentally ill, consider the White Palace a much needed resource. They recommend the bed increase sought be granted.
Findings Of Fact The parties to this proceeding have stipulated to the correctness of the following facts: Respondent filed a Consent and Joinder simultaneously with the Declaration of Tuscany Place, a condominium, which was recorded in Official Records Dock 1281, Page 1833, Public Records of Seminole County, Florida, and was filed with the Division of Florida Land Sales and Condominiums under I.D. #80 CN5742. Respondent accepted deeds in lieu of foreclosure from the Developer, Goehring Development Corp., under paragraph number 16.5 of the Declaration of Condominiums which deeds were dated May 10 and May 12, 1982, and recorded in Official Records Book of Seminole County, Florida. (Copies of the deeds are attached [to the Stipulation as to Facts] and are self-explanatory.) Respondent sold Unit 16-E to Huey M. Napier. All remaining units were sold to Larry J. Whittle on January 31, 1983. Copies of contracts for the two purchases are attached [to the Stipulation as to Facts]. The term "developer" was defined in paragraph 21.7 of the Condominium Declaration and was approved for filing by the Division including the provision that any successor or alternate developer must indicate its consent to be treated as the developer. Respondent attempted to comply with oral and written communications from the Division as to the regulation relating to "Subsequent Developer," as Respondent could not locate Statutes or Division Rules requiring Subsequent Developer filing. Copies of letters from the Division are attached [to the Stipulation as to Facts]. Respondent admits the sales described above, but denies any liability under Statutes or Rules as a matter of Law. The above-numbered paragraphs constitute the facts stipulated between the parties. Attached to the parties' stipulation are a series of documents. These documents establish that the aforementioned sale from Respondent to Huey M. Napier occurred on or about October 22, 1982. This sale involved a single condominium unit. The remaining ten units obtained by Respondent from the original developer by virtue of a deed in lieu of foreclosure were sold on or about January 4, 1983. On or about November 29, 1982, representatives of Petitioner warned Respondent's counsel that failure to file as a second developer with Petitioner in accordance with Section 718.502, Florida Statutes, would place Respondent in violation of that law. Respondent subsequently filed with Petitioner in accordance with the requirements of Section 718.502, Florida Statutes, on or about January 14, 1983.
The Issue Whether Petitioners' Petition for Relief from a Discriminatory Housing Practice (Petition for Relief) filed against Respondents should be granted by the Florida Commission on Human Relations (Commission).
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Samari Lake East (Development) is a residential condominium apartment development located on approximately 16 or 17 acres of land in the City of Hialeah Gardens, Florida. It is one of the largest such developments in Miami-Dade County. The Development is home to a racially and ethnically diverse group of persons. Because of the diversity of its residents, it has been described, appropriately, as a "rainbow community." While the majority of the residents are of Hispanic origin and speak Spanish, many different countries and cultures are represented in the community. There are some, but not a relatively large number of, black and African-American residents. The exact number is difficult to ascertain. No records are kept which keep track of such information. Persons of all ages, including approximately 500 children, reside in the Development. There are no age restrictions barring children from living in the Development. Petitioners are an African-American married couple with eight children. They have owned a two-bedroom, two-bath unit in the Development since approximately 1990. They resided in the unit from approximately 1990 until early July of 2002 when they were forced to vacate because the premises became uninhabitable as a result of an overflow of water and waste materials from within the unit's plumbing system. When they moved into the unit in 1990, Petitioners had only one child and Ms. Williams was pregnant with the couple's second child. At the time that they had to move out of the unit, Petitioners and their children had the following living arrangements: Petitioners and their two youngest children shared the master bedroom; three children (all girls) shared the second bedroom; two children (both boys) shared the living room; and the oldest child (a boy) lived on the balcony, which was enclosed. The Development is comprised of eight five-story multi-family, elevatored buildings having a total of 635 units (60 of which have three bedrooms and two baths, 510 of which have two bedrooms and two baths, and 65 of which have one bedroom and one and a half baths). First-floor units have porches. Units above the first floor have balconies. Most of the balconies, unlike the balcony in Petitioners' unit, are "open."3 Access to the units are by common exterior corridors and catwalks. Pursuant to Section 14A of the Development's Declaration of Condominium, "[e]ach Unit shall be used only as a single family residence" and "[n]o separate part of a Unit may be rented and no short term tenants (i.e., tenants for less than one month) may be accommodated in any Unit." The Development has two phases. Phase I consists of Buildings 1, 2, 3, and 4, which together contain 330 units. One of these units is Petitioners' unit, Unit 2314, which is on the third floor in Building 4. Phase II consists of Buildings 5, 6, 7, and 8, which together contain 305 units. The buildings in Phase I were constructed more than a quarter of a century ago (in or around 1976 or 1977). The buildings in Phase II were constructed sometime later, and, as a result, they are in better general, overall condition than those in Phase I. Each phase has its own swimming pool and clubhouse. Residents and their guests are free to use the swimming pool from 9:00 a.m. to 8:00 p.m. Children under 12 years of age must be accompanied by an adult when at the pool. Persons who use the pool are expected to wear appropriate attire and refrain from activities that endanger themselves or others or that otherwise unreasonably interfere with others' peaceful enjoyment of the pool. The rules and regulations regarding the use of the pool are posted. In addition, individual copies of these rules and regulations are given to the residents. The clubhouse is available for use by residents (for a fee) for parties and similar functions. Residents, if they want to rent the clubhouse, must fill out a form in the management office in the Development and put down a refundable $100.00 rental deposit at least seven days in advance of the date of the desired rental date. If the clubhouse is available on the requested date, the resident will be permitted to use it. There is a $150.00 rental charge. There are parking areas in the Development for residents and visitors. These parking areas include spaces reserved for the handicapped. The resident parking area is closer to the buildings than is the visitor parking area. Each unit is assigned one primary reserved parking space. Since there are not enough parking spaces for each unit to be assigned a second reserved parking space, secondary reserved parking spaces are assigned on a "first come, first served basis." Unit owners fortunate enough to have a secondary reserved parking space must pay $30.00 for a parking sticker (with a bar code), as well as a monthly fee of $20.00. If they do not make these payments, they forfeit the space. Unit owners desiring to obtain a secondary reserved parking space must go to the management office in the Development and make a request that their names be placed on a "waiting list." There are 50 to 60 names on the list at any one time. When a secondary reserved parking space becomes available, the unit owner at the top of the list is awarded the space, provided that the unit's account is current. If the unit owner is delinquent in paying any assessed common expenses, the unit owner will be bypassed and the space will be given to the next non-delinquent unit owner on the list. The Development has a gated, two-lane entrance, at which there is a guardhouse manned 24 hours a day, seven days a week by at least one member of the Development's in-house security staff4 (whose members also patrol the Development on foot and in golf carts). All vehicles must pass through this gated entrance to enter the Development. Hundreds of vehicles pass through each day. The lane farthest from the guardhouse is for residents with reserved parking spaces and current parking stickers (with bar codes) affixed to their vehicles. If the equipment (which includes a laser bar code reader) is working properly, the gate arm will automatically rise when a vehicle with a properly affixed parking sticker is approaching. If the equipment malfunctions, the security guard stationed at the guardhouse will let the resident in (after asking for the resident's name and apartment number and confirming, from a list of current residents, which all security guards are required to carry with them, that the resident lives in the Development). Once inside the gate, the resident must park in his or her unit's assigned space. The lane closest to the guardhouse is for visitors. Visitors must stop at the guardhouse to be cleared for entry and given a yellow visitor's pass (which expires at midnight that day and is good only for that visit) by the security guard on duty. There is a switch inside the guardhouse that the security guard moves to raise the gate arm in the visitor's lane and let properly screened and authorized visitors into the Development. The "post orders" that the security guards are given contain the following instructions regarding their dealing with visitors at the entrance to the Development: The security officer should fill in visitor's pass completely. The unit number, telephone number and the vehicle tag must be written. Do not tear identification numbers off passes. In the future, the security officer will be required to announce all visitors before allowing entry to the property. The only person that can grant a visitor entry, is the person they are visiting. Night & Day shifts should call when there is low traffic, or when suspicion exists. Security must verify the telephone number by: Using a residents telephone list. Do not ask the visitor for the telephone number. In the event that a telephone number is not [o]n the list, you may ask visitor for the number. The officer will thereafter obtain entry clearance from the resident. Place the new telephone number on the list. File an entry in the logbook for building manager. If telephone happens to be disconnected Make an entry in the log and highlight for future follow up. Entry will not be granted without authorization of resident or person being visited. NO PHONE NO ENTRY. After clearance, for the guest, has been obtained, the Security Officer is to: Give visitor a Guest Pass; the pass should be h[u]ng [on] front rear view mirror. Advise guest that pass needs to be visible at all times and th[at] he/she needs to park in visitors parking. Have guest sign the pass on the back, which authorizes us to tow after 2359. Visitors must proceed directly to the visitor parking area (which is to the left of the guardhouse as one enters the Development). The resident parking area is off limits to visitors, except when they are dropping off an infant or a handicapped or elderly person. Security guards on patrol inside the Development attempt to make sure that no persons have entered the Development who do not belong there. It is not unusual for them, particularly in the pool areas in the Development (where uninvited guests have been discovered in the past) to stop and question persons with whom they are unfamiliar to find out if they are residents or invited guests. If a security guard determines that the person is an uninvited guest, the security guard will call the police to obtain a trespass warning against the person. Respondent Samari Lake East Condominium Association, Inc. (Association), was incorporated in August of 1977. Pursuant to the Development's Declaration of Condominium, the Association is responsible for the operation of the Development and the maintenance, repair and replacement of the common elements (that is all parts of the Development except for the units themselves), and unit owners are obligated to pay assessments (regular and special) imposed by the Association for the costs and expenses incurred by the Association in the performance of its duties. The amount of a unit owner's regular assessment (or maintenance fee, as it is sometimes called) is based on the number of bedrooms in the unit and the unit's square footage. It includes charges for water and sanitary sewer services. (The Association is billed by the City of Hialeah Gardens for water and sanitary sewer services provided all of the units in the Development.5 The city does not bill individual unit owners.) According to Section 10B, C, and D of the Development's Declaration of Condominium: Assessments that are unpaid for over fifteen (15) days after the due date shall bear interest at a rate equal to the lesser of (i) eight percent (8%) per annum, or (ii) the maximum legal rate permitted under controlling law, from the due date until paid. In the sole discretion of the Board of Directors, a late charge, in an amount determined by the Board of Directors from time to time, for Assessments not paid when due may be assessed against a delinquent Unit Owner. Regular Assessments shall be due and payable monthly on the first (1st) of each month, unless the Board of Directors shall otherwise determine. The Condominium Association shall have a lien on each Unit for any unpaid Assessments, together with interest thereon, owed by the Unit Owner of such Unit. Reasonable attorney's fees (including fees in appellate proceedings) incurred by the Condominium Association incident to the collection of any Assessment or the enforcement of such lien (whether or not suit is instituted), together with sums advanced or paid by the Condominium Association in order to preserve and protect its lien, shall be payable by the Unit Owner upon demand and shall be secured by such lien. The Board of Directors may take such action as it deems necessary to collect Assessments by personal action, or by enforcing and foreclosing such lien, and may settle and compromise the same, if it shall so determine. Such lien shall be effective from and after the recording of a claim or lien as and in the manner provided by the Condominium Act. The Condominium Association shall be entitled to bid at any sale held pursuant to a suit to foreclose an Assessment lien, and to apply as a cash credit against its bid all sums due the Condominium Association covered by the lien enforced. In case of such foreclosure, the Unit Owner shall be required to pay a reasonable rental for the Unit, and the plaintiff in such foreclosure shall be entitled to the appointment of a receiver to collect such rental from the Unit Owner and/or Occupant. To assist it in discharging its responsibility to maintain the common elements in the Development, the Association employs a maintenance supervisor. Cosme Rodriguez has been employed by the Association as the Development's maintenance supervisor since 1993. He and his wife (who is black) live in the Development. Unit owners have been instructed to come to the management office if they have a maintenance-related complaint. After such a complaint is made, Mr. Rodriguez is sent out to investigate and determine what action if any, the Association should take to address the problem. On occasion, a "specialist," such as a plumber in the case of a plumbing problem, is hired to help. If it is determined that the problem is within the boundaries of the unit (which includes, among other things, according to Section 3B4(e), (f) and (l) of the Development's Declaration of Condominium, "[a]ll plumbing fixtures located within [the unit]," "[a]ll piping, ducts and wiring serving only [the] [u]nit," and "[t]he fresh water pipes, discharge pipes and all other plumbing, pipes and conduits serving only [the] [u]nit"), the Association will not take any action other than to tell the unit owner of its determination. The Development is a much more desirable place to live today than it was in the mid-1990's, when units were selling for less than a third of their present value.6 By the mid-1990's, conditions in the Development had become, in a word, "deplorable," so bad that condemnation proceedings had commenced and one of the buildings (Building 5) had been ordered to be demolished. There were a number of fire code and building code violations, some of which were "life-threatening." The fire alarm system was not operational, and replacement parts could not be found because the system was "obsolete." There were railings on the exterior corridors and catwalks above the first floor that had rusted and were loose. Some railings had already fallen off. The elevators did not work. There were cracks and spalls in the walkways, fire stairs, and building exteriors. Water was leaking into the buildings through the roofs. The swimming pools were closed because the water (which had turned green) was no longer safe to swim in, and they had become a dumping ground for used tires and other unwanted items. Crime was rampant in the Development. Two gangs considered the Development their turf. Light bulbs and fixtures in common areas in the Development were constantly being broken, largely due to gang activity. Consequently, "[t]he place was dark at night." The parking lot was littered with abandoned and stolen vehicles, as well the parts of vehicles. A "clandestine" car repair business was being operated out of the parking lot. When there was a significant rain event, the parking lot would flood because of poor drainage. Sometimes the water would be knee deep. Visitors commonly and, with impunity, parked in residents' reserved parking spaces or elsewhere where they did not belong (such as on the sprinklers). Overpopulation was a serious problem. Notwithstanding the mandate in the Development's Declaration of Condominium that "[e]ach Unit shall be used only as a single family residence," some units were shared by more than one family and had as many as 15 occupants. There were instances where a single room in a unit (either a bedroom or the living room) was rented out by the family living in the unit to another family (or families7), in violation of the prohibition in the Development's Declaration of Condominium that "[n]o separate part of a Unit may be rented " The large number of residents overwhelmed, not only the Development's facilities, but also the Association's financial resources. The cost of water and sewage usage was more than the Association was able to pay. The Association was in arrears to the City of Hialeah Gardens approximately $350,000.00 for water and sanitary sewer services. The Association also owed money for trash removal services. Making it even more difficult for the Association to meet its financial obligations was that some unit owners (particularly the younger ones) were not paying their assessments. With the Association paralyzed by debt, unable to meet its responsibilities, "chaos" reigned in the Development. Finally, in 1995, a group of unit owners, led by Maria Colson, went to court and requested that the Association be placed in receivership and that the court, through a receiver, administer the Association. The request was granted by Miami- Dade County Circuit Court Judge Rosemary Usher Jones, who, in or around September of 1995, appointed Stanley Tate to serve as receiver for the Association.8 In or around November of 1995, Mr. Tate was succeeded as receiver by a team of three persons, one of whom later became the sole receiver. The plight of the unit owners and the Association had not improved appreciably by May of 1996, when Judge Jones appointed Respondent Rafael Penalver to serve as receiver for the Association. Mr. Penalver is a Florida-licensed attorney who has been practicing law since 1976. He presently is a partner in the law firm of Penalver and Penalver, P.A. Since high school, Mr. Penalver has been actively involved in civil rights activities. Among the most notable of these activities was his service as a member of the Commission for four years. Mr. Penalver began actively serving in his capacity as receiver for the Association on July 1, 1996. A couple of months later, Mr. Penalver, on behalf of the Association, contracted with SPM Group, Inc. (SPM), an established community association management firm, to provide a site manager for the Development to oversee the Association's day-to-day operations. The site manager that SPM provided was Respondent Carlos Reyes, one of its employees. Mr. Reyes is a Florida-licensed community association manager. The Association is still in receivership today. Mr. Reyes continues to act as site manager. Mr. Penalver remains the receiver, however, he now serves at the pleasure, and under the supervision, of Miami-Dade County Circuit Court Judge Michael Chavies, who was assigned the case in 1999.9 Judge Chavies is "very involved" in administering the Association. He holds hearings once or twice a month. Unit owners are given the opportunity to address Judge Chavies at these hearings and to air their concerns. Notices of the hearings before Judge Chavies are posted at various places in the Development. These notices are in both English and Spanish, as are all other notices that are posted by Respondents in the Development.10 Unit owners also have the opportunity to attend meetings conducted from time to time by Mr. Penalver and Mr. Reyes (including the annual meeting of unit members, at which Mr. Penalver presents them with a copy of the annual report that he prepares.) Spanish is spoken at these meetings; however, both Mr. Penalver and Mr. Reyes are fluent in Spanish and English,11 and they have never refused any request to serve as interpreter for English-speaking attendees who do not understand or speak Spanish. (Ms. Williams is not someone who would need such help from Mr. Penalver or Mr. Reyes. As she testified at hearing, while she does not read or write Spanish "very well," she does "speak it and understand it."12) The Development has experienced a "turn[] around" in the time that Mr. Penalver and Mr. Reyes have been there. Many physical improvements have been made, and, as a result, the condemnation proceedings that had been initiated before their arrival have been "halted." New railings have been installed.13 There is a new sprinkler system. Fire extinguishers are now properly located (every 75 feet) in the common exterior corridors. A new fire alarm system (including mini-horns in each unit), financed by a special assessment imposed in July 1999, has been installed. The project began in or around late 1999 or early 2000. Efforts to complete the project in a timely manner were stymied by unit owners who did not allow the contractor into their units when asked to do so. In some instances, court orders were needed to gain access. (The contractor experienced some problem, initially, in gaining access to Petitioners' unit.) Four buildings, including Building 4, Petitioners' building, have new elevators, and the elevators in all of the buildings now operate reliably. New lighting has been installed. The swimming pools are open and safe to use. The parking areas have been repaved and equipped with a new storm drainage system, which has alleviated the previous flooding problems. This project (which was first approved in 1995 or 1996, before Mr. Penalver was appointed receiver) was finished in September of 2001. The project cost $377,000.00 and was paid for with federal funds obtained through the Community Development Block Grants program. The recipient of the funds was the City of Hialeah Gardens, not the Association. The funds were administered by Miami-Dade County. Acosta Constructors, which performed work on the project pursuant to a contract with the City of Hialeah Gardens, posted signs (on barricades) in the parking areas, in Spanish, advising motorists as to where there was construction work ongoing and where they therefore could not park. The Association was required by law, after the project had been completed, to increase the size and number of handicapped spaces and to locate these spaces closer to the buildings in the Development than the old handicapped spaces had been. To comply with this requirement, the parking areas had to be reconfigured. The reconfiguration has resulted in a reduction of the total number of parking spaces in the Development, making an already tight parking situation worse. Before the project, there were a total of 953 parking spaces (including resident, visitor, and handicapped spaces). There are now a total of approximately 920 parking spaces, 870 of which are for residents. Of the 870 resident parking spaces, 635 are primary reserved parking spaces (one for each unit) and the remaining spaces are secondary reserved parking spaces. Unit owners had to be assigned new primary reserved parking spaces following the reconfiguration. Mr. Penalver enlisted the assistance of a unit owners' advisory committee to help him determine how these reassignments should be made. Taking into consideration the input he received from the unit owners' advisory committee, Mr. Penalver recommended to Judge Chavies that new primary reserved parking spaces be assigned based on "proximity" (distance from the unit), with first floor unit owners given the opportunity to park directly behind their units, where possible, so as to minimize the noise and other disturbances they had to contend with due to the location of their units and for the additional purpose of enhancing the value of these first-floor units (which have a lower value than comparable units on the floors above them). Judge Chavies adopted Mr. Penalver's recommendation at a hearing held on the matter (of which unit owners were given written notification, in both English and Spanish). Thereafter, Petitioners were assigned a new primary reserved parking space (space number 503), which is farther away from their unit than was their old space (304). Others owning units above the first floor, including Petitioners' next door neighbors (whose new primary reserved parking spaces are next to Petitioners') now also have to walk a greater distance to get from their primary reserved parking space to their unit than they did prior to the reconfiguration of the parking areas. Petitioners' race and familial status played no role in the assignment of their new primary reserved parking space. While much progress has been made, there are still physical improvements that need to made by the Association. The buildings' roofs still leak and need to be repaired. Steps, however, have been taken to fix the problem. A special assessment of approximately $2,000.00 per unit (approved by Judge Chavies) has been imposed for a roof replacement project and a contractor to do the work has been hired. There are still cracks and spalls in the walkways,14 fire stairs, and building exteriors. There are such cracks and spalls in the area outside of Petitioners' unit15 and elsewhere in the Development, including, most notably, in Buildings 1 and 2, which have the greatest number, and in the fire stairs in the Phase II buildings. The next major project the Association intends to undertake (following the completion of the roof replacement project) is the replacement of these fire stairs. After all structural repairs have been made, the buildings will be painted. Petitioners' race and familial status have played no role in the Association's prioritization of physical improvements. The Association's efforts to make physical improvements have been hampered by the failure of some unit owners to pay their assessments when due. Initially, Mr. Penalver simply "begged" delinquent unit owners to pay the money they owed and took no other action. After three years of employing this strategy, he started sending cases to a collection attorney, Michael Chadrow, Esquire, of the law firm of Bakalar, Brough & Chadrow, P. A. (Bakalar law firm) to take appropriate legal action. Since March of 1999, Mr. Chadrow and others in the Bakalar law firm have filed 112 foreclosure actions on behalf of the Association. Once a matter is turned over to the collection attorney, Mr. Penalver takes a "hands off approach" and lets the attorney handle all communications with the delinquent unit owner regarding the unit owner's arrearage. Petitioners were among the unit owners who did not pay their assessments and whose cases were sent by Mr. Penalver to the collection attorney. Petitioners' case was one of the last to be sent,16 even though their outstanding unpaid balance was greater than most, if not all, other delinquent unit owners. They had made no payments from August 31, 1996, until the time Mr. Penalver turned their case over to the collection attorney. As a consequence of being behind in their payments, Petitioners were unable to obtain a secondary reserved parking space. They had requested that their names be placed on the "waiting list" for such a space and they were next on the list when a space became available, but were bypassed because they were in arrears at the time. Petitioners' race and familial status played no role in their not being able to obtain a secondary reserved parking space. Mr. Penalver delayed in turning Petitioners' case over to the collection attorney because he thought that it might be difficult for Petitioners, due to the large size of their family, to meet their financial obligations to the Association. Before sending their case to the collection attorney, Mr. Penalver made an effort to speak with Petitioners. He went to their unit several times and knocked on the door, but no one answered. Mr. Penalver was finally able to make contact with Mr. Williams, when he spotted Mr. Williams outside of Petitioners' unit. Mr. Penalver asked if Williams would be willing to work out a "payment plan." Mr. Williams responded by telling Mr. Penalver that he would be filing a harassment action against Mr. Penalver. Petitioners' race and familial status played no role in Mr. Penalver's decision to send their case to the collection attorney (although their familial status was a factor in his not sending it sooner). Mr. Penalver believed that not pursuing legal action against Petitioners after having waited as long he did for Petitioners to bring their account current would have been unfair to the ninety percent or so of the unit owners who were up-to-date in their assessment payments. On May 1, 2001, a Final Summary Judgment of Foreclosure and Order Taxing Costs and Attorney's Fees was entered against Petitioners and in favor of the Association in Miami-Dade County Circuit Court. As of June 29, 2001, Petitioners had not made any assessment payments since August 31, 1996, and their outstanding unpaid balance was $15,616.00. On that date, faced with the imminent public sale of their unit, they tendered payment to the Association, bringing their account current and satisfying the judgment that had been entered against them. By the next month, Petitioners were already in arrears again, and, in the following months, they continued to fail to make their assessment payments. A second foreclosure action was commenced by the Association against Petitioners in Miami-Dade County Circuit Court. A Final Judgment of Foreclosure was entered against Petitioners and in favor of the Association on October 18, 2002. A Clerk's Certificate of Satisfaction of Final Judgment of Foreclosure was issued on December 19, 2002. Petitioners corresponded in writing with the Bakalar law firm during the time the law firm was working on collecting the monies Petitioners owed the Association. In their correspondence to the law firm, after complaining about the conditions in the Development and the manner in which they and their family and friends had been treated by the Association and its agents, Petitioners expressed their willingness to "come to some type of agreement" with the Association. Following his routine practice, Mr. Penalver determined that the issues raised in the correspondence should be dealt with by the collection attorney handling the case. Despite not having the cooperation of all unit owners, the Association's financial situation is not nearly as bleak now as it was when Mr. Penalver became receiver. For example, the amount of the Association's indebtedness to the City of Hialeah Gardens is presently $35,000.00, a tenth of what it was at the start of Mr. Penalver's receivership. Like the Association's indebtedness, crime in the Development has also been reduced dramatically. A significant contributing factor to the reduction in crime in the community has been the Association's stepped-up efforts to prevent unauthorized persons from gaining entry to and loitering in the Development. The Association's first line of defense against intruders is the security guard stationed at the guardhouse, who is responsible for screening visitors seeking to enter the Development and instructing those permitted entry where to park. Ms. Williams' sister, Iris Thomas, was involved in an incident with security staff at the entrance to the Development on the evening of October 24, 2001. Ms. Thomas had been given a visitor's pass and allowed to enter the Development earlier in the day to pick up three of Petitioners' children. When she returned to the Development with the children,17 she got into a dispute with the security guard manning the entrance. She wanted to drive into the resident parking area closest to Petitioners' unit so she could quickly drop off the children and then leave. The security guard told her, however, that she had to park in the visitor parking area inasmuch as none of the children in the vehicle were infants. Ms. Thomas expressed her displeasure upon being told this. The security guard contacted his immediate supervisor (the shift supervisor that evening), Alexander Santiero, and asked him to come to the guardhouse to assist in dealing with Ms. Thomas. As he approached the guardhouse and started speaking with the security guard, Mr. Santiero saw one of the children in Ms. Thomas' vehicle exit the vehicle and go into the guardhouse. The child apparently touched the switch controlling the gate arm in the visitor's lane because the arm began to rise. Mr. Santiero reacted by getting a portable metal sign to drag over an "access sensor" on the pavement in front of Ms. Thomas' vehicle (on the other side of the gate) so that the arm would lower. As he moved in front of Ms. Thomas's vehicle with the sign in his hand, Ms. Thomas' vehicle lurched forward, hitting Mr. Santiero and injuring his ankle. In anger, Mr Santiero threw the sign that he was still holding onto at Ms. Thomas' vehicle. Police were called to the scene, but no arrests were made. The determination to deny Ms. Thomas access to the resident parking area was in keeping with reasonable Association policy and, like Mr. Santiero's reaction to being hit by Ms. Thomas' vehicle, was not based on racial or other impermissible considerations.18 The security guards who patrol the Development are responsible for checking to see that no unauthorized persons have been successful in gaining entry to the Development. It is also their responsibility to make sure that those who are authorized to be there (invited guests and residents) are acting in compliance with the Association's rules and regulations and, if they are not, to take appropriate action. Discharging these responsibilities frequently draw the security guards to the pool areas, which are magnets for uninvited outsiders who enter the Development by jumping over the fence that separates the Development from the property around it. Ms. Williams has had two encounters with security guards in the pool area (in Phase I) that have left her upset. The first encounter occurred in or around June of 1999. Ms. Williams was in the pool with her two-year old son, who was wearing only a diaper, when she was approached by a security guard asking that she change her son into shorts. Ms. Williams complied with the request. At no time was she told that she could not use the pool. The second encounter occurred in or around June of 2000. Ms. Williams was in the pool area with her children and other family members (her mother-in-law, her younger sister, and a nephew) when she got into a dispute with a security guard who had been dispatched to the area to investigate a complaint of excessive noise. Ms. Williams was unable to convince the security guard that she lived in the Development. Consequently, the security guard asked her and her family to leave. Ms. Williams became "outraged." The security guard contacted Mr. Reyes and asked him to come to the pool area. When he arrived on the scene, Mr. Reyes walked up to Ms. Williams, whom he recognized, and told her to calm down. He then spoke to the security guard and told him that Ms. Williams lived in the Development and that therefore she and her family were entitled to use the pool. The security guard responded by apologizing to Ms. Williams. After speaking with the security guard, Mr. Reyes turned his attention back to Ms. Williams. One of her sons, who appeared to Mr. Reyes to be between six and seven years of age, was naked. Mr. Reyes told Ms. Williams that she and her family could stay in the pool area, but that the young boy needed to have on appropriate attire. There is no indication in the evidentiary record in the instant case that the actions of the security guards and Mr. Reyes in the two pool area incidents related above involving Ms. Williams and her family were the product of any racial animus or any other illicit motivation. Petitioners and their family have not used the pool since the last of these two incidents. They have not done so, however, of their own choosing, not because they have been denied use of the pool. Another common facility that Petitioners have not used is the clubhouse. It cannot be said, though, that they have been unfairly denied use of the clubhouse inasmuch as, at no time, have they followed the established procedure to which all unit owners must adhere in order to be able to enjoy such use. The security guards are not the only ones who patrol the grounds of the Development. Mr. Penalver and Mr. Reyes do so as well. On the evening of March 22, 2001, at around 9:00 p.m., Mr. Penalver observed a young man in a ski cap pulled down to his eyes walking slowly on the "island" between two rows of parked vehicles in the resident parking area. It appeared to Mr. Penalver that the young man was looking inside the parked vehicles. This aroused Mr. Penalver's suspicion, particularly since there had been a car burglary in the Development a couple of nights before. Mr. Penalver approached the young man, whom he did not recognize, and asked him if he lived there. He asked no other questions, nor did he stop or detain the young man. The young man, it turned out, was Darrell Williams, Petitioners' teenage son. Darrell responded to Mr. Penalver's inquiry by calling Mr. Penalver a "racist." He then walked away, went up to his parents' unit, and told them about what had just happened. Mr. Williams decided to call the police "to put this on record" because he believed (erroneously) that Darrell had been unfairly harassed and discriminated against by Mr. Penalver. After contacting the police, Mr. Williams went downstairs to the resident parking area and confronted Mr. Penalver in a hostile manner. He informed Mr. Penalver that he had called the police and demanded that Mr. Penalver wait with him until the police arrived. Mr. Penalver remained with Mr. Williams, waiting for the police to respond to Mr. Williams' call. The police officer who responded to the scene spoke with Mr. Williams and Mr. Penalver, filled out paperwork, and then left. That evening, Mr. Penalver did not treat Darrell any differently than he would have treated anyone else, unfamiliar to him, doing what he observed Darrell doing. The reduction in the Association's indebtedness and in crime in the Development has coincided with a decrease in the number of persons residing in the Development. To address the overpopulation problem that plagued the Development at the time Mr. Penalver took over as receiver, the Association, in November of 1996, adopted, with court approval, the following reasonable occupancy limits, which are consistent with HUD guidelines: a maximum of two persons in a one-bedroom unit; a maximum of four persons in a two-bedroom unit; and a maximum of six persons in a three-bedroom unit. This policy was designed to reduce, not the number of families with children who lived in the Development,19 but the total number of persons of all ages who called the Development home. Notices of this policy are posted at the entrance to every building in the Development. The Association has issued anywhere from 50 to 100 notices of violation to unit owners in violation of this policy. In those instances where the unit having a greater number occupants than allowed is being used by more than one family, a fine has been imposed against the unit owner. The Association has not taken any other action to enforce its adopted occupancy limits. After receiving complaints from Petitioners' neighbors about the noise and the number of persons living in Petitioners' unit, Mr. Reyes, on March 29, 2001, sent Petitioners a notice of violation advising Petitioners that there were "too many people" in their unit. No fine was imposed, however. Although Petitioners continued to be in violation of the occupancy limit for a two-bedroom unit, no enforcement action was taken against them pursuant to Mr. Penalver's instructions. Mr. Penalver, however, did recommend to Petitioners, when there were three-bedroom units available, that they consider moving into such a unit,20 a recommendation Petitioners declined to follow. Mr. Penalver has been criticized by some unit owners for not strictly enforcing the Association's occupancy limits. He has endured this criticism since he "does not have the heart to force people out" due to the size of their families. In addition to the March 29, 2001, notice of violation for having "too many people" in their unit, Petitioners have received several other notices of violation during Mr. Penalver's receivership. Like the March 29, 2001, notice of violation, these other notices of violation were signed by Mr. Reyes (or for him, by his secretary) and contained the following advisement: If the above mentioned violation(s) is(are) true, then we respectfully request that you immediately correct them[.] [I]f you disagree [,] [p]lease notify us in writing within 7 days. If the violation(s) re- occurs, per Florida Statute 718.112[,] . . . you can be subjected to a fine of $50.00 per day up to $1,000.00. Your cooperation in observing the rules and regulations would be greatly appreciated[.] [T]his will help us in maintaining a peaceful and safe place to live. These other violations were based on reports received by Mr. Reyes of misconduct involving Petitioners' children. One notice of violation was dated January 24, 2000. It advised Petitioners that their "account ha[d] been fined $50.00." The violation alleged was "throwing a mustard bottle." Another notice of violation was dated February 7, 2000. The violation alleged was "breaking glass bottle, threatening other children." Mr. Reyes had been told about the incident by two or three young residents (approximately nine to 11 years of age). The children reported to Mr. Reyes that the incident took place on the grounds of the Development. The notice reflected that no fine was being imposed against Petitioners. A few days later, Petitioners received a notice of violation, signed by Mr. Reyes' secretary, advising them a second time of the violation that had been described in the February 7, 2000, notice of violation. This notice of violation, like the February 7, 2000, notice of violation, indicated that Petitioners were not being fined. There was a notice of violation dated February 10, 2000, advising Petitioners that their "account ha[d] been fined $100.00" for "threat[en]ing other kids, picking fights." Petitioners were fined because this was a repeat offense.21 Petitioners received another notice of violation dated February 10, 2000. The violation alleged was "jumping on vehicles." The notice reflected that Petitioners' "account ha[d] been fined $100.00." Earlier in the month, the Development's director of security, Pablo Diaz de la Rocha, had observed two of Petitioners' sons, Larry Williams, Jr., and Jordan Williams, jumping on the hoods of parked vehicles in the Development. Mr. de la Rocha took their names and wrote a report, which he subsequently sent to Mr. Reyes. He also entered into an agreement with Larry and Jordan, allowing them to perform "community service" (by taking to the bus bench, outside the Development's entrance, shopping carts that had been brought into the Development from a nearby supermarket) in lieu of their parents' having to pay a fine for their misconduct. To Mr. de la Rocha's knowledge, Larry and Jordan did not live up to their end of the bargain. It was only after being advised by Mr. de la Rocha of the brothers' noncompliance that Mr. Reyes sent Petitioners the notice of violation described above. Mr. Reyes has not issued a notice of violation every time he has received a complaint about the conduct of Petitioners' children. The notices of violation he has sent to Petitioners (which number no more than seven or eight) represent a very small percentage of the total number of notices he has issued since becoming site manager. Other families whose children have engaged in misconduct of which Mr. Reyes has been made aware have also received notices of violation. Petitioners have not been unfairly singled out. No notice of violation has been sent to Petitioners, nor has any fine been imposed upon them, based on racial considerations or on their familial status. Unfortunately, Petitioners are not able to enjoy the overall improved conditions in the Development because the conditions inside their unit are such that they can no longer live in it. The unit has been uninhabitable since on or about Saturday, July 6, 2002. On that day, Ms. Williams and her children, upon returning to their unit, discovered the unit "ankle deep" in water and waste materials. Ms. Williams telephoned the guardhouse and advised the security guard on duty of the situation. The family then left, taking with them what they could. That same day, Mr. Rodriguez was asked by Mr. Reyes to check out a "plumbing problem" in Petitioners' unit. Mr. Rodriguez went to Petitioners' unit to investigate. It was his routine practice, as maintenance supervisor, to check out all maintenance-related problems referred to him, regardless of who the unit owner was complaining about the problem. He treated Petitioners' complaints no differently than those made by other unit owners. Mr. Rodriguez knocked on the door to Petitioners' unit, but no one answered. He then went up to the roof. Using a motorized snake, he made sure that the main lines servicing Petitioners' unit and the units beneath and above Petitioners' unit (which main lines are common elements that the Association is responsible for maintaining) were unclogged. He then returned to his unit, thinking "everything was okay." The following Monday (July 8, 2002), Mr. Rodriguez was asked to look into a complaint from Petitioners' next door neighbor (in unit 2316) that water was leaking into her unit from Petitioners' unit. Mr. Rodriguez went back to Petitioners' unit. Mr. Williams was there. He let Mr. Rodriguez in and showed him the flooding in the unit. Mr. Rodriguez then returned to the roof. He put the snake down the main lines and found no obstructions. Mr. Rodriguez reported back to Mr. Reyes, telling him that the flooding in Petitioners' unit did not appear to be caused by any problem in the main lines. After obtaining Mr. Penalver's approval, Mr. Reyes hired a plumber to determine the cause of the flooding in Petitioners' unit. The plumber Mr. Reyes hired was Ricardo Frankie. Mr. Frankie has worked as a plumber for the past 23 years. Mr. Frankie came out to the Development the same day he was called (July 8, 2002). After conducting the tests he typically performs to determine the source of a overflow problem in a multi-story building, Mr. Frankie concluded that there was a blockage, not in the main lines, but in a pipe or pipes serving only Petitioners' unit. Before leaving, Mr. Frankie verbally advised Mr. Rodriguez of his conclusion. He subsequently provided a written report. Mr. Rodriquez informed Mr. Williams that, because the obstruction was within the interior boundaries of Petitioners' unit, it was Petitioners', not the Association's, responsibility to take care of the problem. On July 11, 2002, Mr. Williams contacted the Miami- Dade County Health Department complaining that there was "sewage backup throughout [his] building." A Health Department inspector, Paul Silvestri, was dispatched to the Development that same day, but Mr. Silvestri was unable to make contact with Petitioners. Another Health Department inspector, Seidel Sanchez, went to the Development the following day. Based on what he observed and the information he obtained from speaking with Mr. Rodriguez, with Mr. Williams, and with others, Mr. Sanchez decided to issue Mr. Williams an Official Notice to Abate a Sanitary Nuisance, which directed Mr. Williams to abate, within 48 hours, the "unsanitary condition existing on property under [his] control," to wit: "sewage water inside unit 2314, also [going] into unit 2316 closet and room." Petitioners had a plumber, Lee Allen, come to their unit that same day to look at the problem. The Association's failure to take any further action to address the flooding problem in Petitioners' unit was based on the reasonable belief that the Association was under no legal obligation to take such action. Petitioners' race and familial status played no role in the Association's failure to act. In summary, there has been no showing of any acts of commission or omission by Respondents the purpose or effect of which was to disadvantage Petitioners based on their race or familial status.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission issue a final order finding that Respondents are not guilty of any "discriminatory housing practice" and dismissing Petitioners' Petition for Relief based on such finding. DONE AND ENTERED this 29th day of April, 2003, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 29th day of April, 2003.
The Issue The issue in this case is whether Respondents, The Fourth Bayshore Condominium Association, Inc. (“Bayshore”), Karl Stemmler (“Stemmler”), and/or Richard Grove (“Grove”), discriminated against Petitioner, Robert Pagano (“Pagano"), on the basis of his physical handicap in violation of the Florida Fair Housing Act.
Findings Of Fact Pagano is a Caucasian male who is handicapped by virtue of medical complications which resulted in the amputation of his left leg in March 2008. He has been confined to a wheelchair since that time. At all times relevant hereto, Pagano was renting a condominium unit at Bayshore. In January 2012, Pagano saw another unit at Bayshore advertised for rent. He called Grove, listed as the owner of the unit, and inquired about renting the property. Grove told Pagano that a key to the unit would be left under a mat between the screen door and front door on January 19, 2012. On that day, Pagano went to inspect the unit, accompanied by a friend, Philip Saglimebene. Upon arrival at the unit, Pagano and his friend began looking for the hidden key, but could not find it. They apparently made some noise while searching for the key, because they were confronted by Stemmler. According to Pagano, Stemmler began asking them in unfriendly terms who they were and what they were doing at the unit. The friend then told Stemmler they were looking for a key so they could go in and inspect the unit as Pagano was interested in renting it from Grove. Stemmler, supposedly identifying himself as a “building representative,” said there was no key to be found. He also reputedly told Pagano and his friend that they would not need a key anyway, “because you are not moving in.” When the friend explained that the unit was for Pagano, not him, Stemmler allegedly said that Pagano was not moving in either because he was an “undesirable.” When asked to explain that comment, Stemmler purportedly said, “He just is; that’s all you need to know.” (None of Stemmler’s comments were verified by competent evidence and, without verification or support, cannot be relied upon to make a finding of fact in this case.) Pagano believes Stemmler’s purported comments were based on the fact that he (Pagano) has long hair and a beard and does not fit into the conventional norm at Bayshore. He also believes that his handicap served as a basis for Stemmler’s alleged comments. There was no credible evidence presented at final hearing to substantiate Pagano’s suppositions. Grove had put his condominium unit up for rent at the beginning of the year. When Pagano called to inquire about it, Grove – who lives out-of-state – notified a friend to leave a key under the mat, as described above. That friend simply forgot to leave a key at the unit on the designated date. Grove knew nothing about Pagano’s interaction with Stemmler. Grove had not spoken to Stemmler prior to the day he and Pagano had their interaction. Stemmler had no authority to speak for Grove or to make a decision concerning to whom Grove would rent his condominium unit. Subsequent to the day Pagano visited the unit, Grove took the unit off the rental market because his wife decided to use the unit to house family and friends rather than renting it out to someone else. It took several weeks for the rental advertisement for the unit to be removed from a locked bulletin board at Bayshore. Grove said that if the unit ever went back on the market, he would call Pagano first about renting it, i.e., Grove had no opposition whatsoever to Pagano’s being a tenant. Van Buren, president of Bayshore, explained that the condominium association utilizes the support of voluntary building representatives to assist with security and minor maintenance at Bayshore. The volunteers, who are generally seasonal residents at Bayshore, do not hold keys to individual units and have no authority to grant or deny an applicant’s request to rent a unit. Stemmler is one of many building representatives who resides part-time at Bayshore. Pagano does not know of any non-handicapped individual who was allowed to rent a unit at Bayshore to the exclusion of himself or any other handicapped person. In fact, Pagano currently resides in another unit at Bayshore; he is already a resident there.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief filed by Robert Pagano in its entirety. DONE AND ENTERED this 5th day of September, 2012, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 5th day of September, 2012.
Findings Of Fact Respondent is a Florida limited partnership which developed a 230-unit condominium in Orlando, Florida, by conversion of existing rental apartments. The condominium was registered with Petitioner, and Respondent received written notice of approval of the condominium documents in January, 1980. Respondent recorded the Declaration of Condominium in June, 1980, and closed the first sale of a condominium unit in September, 1980. The condominium documents prepared by Respondent and approved by Petitioner in January, 1980, included an estimated operating budget for the condominium Association for the year 1980. This budget proved sufficiently accurate that it was used for the years 1981 and 1982 without amendment or republication. This budget established a reserve for replacement of $1,500 per month. Paragraph 20 of the Declaration of Condominium provides: The Developer shall not be liable for the payment of ordinary common expenses on units which it owns. Unless and until the Developer elects to pay the regular assessments for common expenses charged against all other unit owners, the Developer guarantees that: (1) monthly assessments for common expenses shall not increase over the amounts set forth in Schedule B and (2) it will pay all actual ordinary common operating expenses in excess of the amounts collected from unit owners other than the Developer at the amount stated above. Pursuant to the developer's understanding of this provision, no payments were made by the developer for any unit which it owned, i.e., which remained unsold. However, as the units were sold, common expenses were charged to each new owner. No separate agreement was entered into between the developer and the unit owners regarding the former's contribution to the common expenses. Reserves for replacement are a necessary expense for the operation of improved real estate. Here, where the building was not newly constructed but converted from an existing apartment building, the remaining life of the building is shorter than would be the life of a new building, therefore a greater need exists for immediately commencing the funding for replacement than would exist with a new building. Respondent made no contribution to the reserve account for those units it owned before they were sold, but commenced charging the new owners for those expenses as soon as the units were purchased. In February, 1983, Respondent turned over control of the condominium Association to the unit purchasers. At this time there was $24,228.15 in the Association's bank account. Although the unit owners approved a proposed 1983 budget in June, 1982, no proposed budget was submitted to the unit owners in 1980 or 1981 for use in 1981 and 1982. The initial operating budget was used for 1981 and 1982, and this same budget was approved by the unit owners for use in 1983. Respondent failed to provide an annual accounting to each unit owner within 60 days of the end of fiscal years 1980 and 1981. No unit owner requested such an accounting until May of 1982, at which time Respondent' prepared an accounting for the operations of the condominium Association from its inception and delivered it to those two unit owners. Respondent fully accounted for all receipts and expenditures accruing to the Association from its inception until turned over to the unit owners in February, 1983. Petitioner did not audit the books and records of the Association until late in 1982 when the alleged discrepancies were noted.
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
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondents be found guilty of violating Subsection 718.301(4)(c) , Florida Statutes, and that a $500 civil penalty be imposed; the remaining charge should be DISMISSED. DONE and ENTERED this 12th day of January, 1983 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 12th day of January, 1983.
