Findings Of Fact Background Respondents, John F. and Chere Kuller, were minority partners in a limited partnership which developed and constructed a seventeen unit condominium project known as Bahia East Condominium (project).2 Thee precise location of the project was not disclosed, but it is in the Fort Walton Beach area. Respondents, as developers, are subject to the regulatory requirements of petitioner, Department of Business Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes (Division). The project was completed in 1979, and its declaration was filed on September 28, 1979. Units immediately went on sale. Financing for these units we" arranged with a Pensacola lending institution, and based upon that institution's commitment, contracts for the sale of all seventeen units were executed by prospective buyers. When the institution experienced financial problems and could not honor its commitment, none of the buyers purchased units. Because of this, the first sale did not occur until October 4, 1980. A developer is required to adhere to a number of Division requirements, including the payment of monthly assess meets on developer-owned units, funding a repair reserve, and furnishing annual financial statements to all unit owners. This proceeding stems from a complaint filed by certain unit owners after the developers relinquished control of the project to the homeowners' association on May 11, 1984. Prior to that time, respondents controlled the board of directors of said association, and were responsible for the keeping of its books and records. Count I - Monthly Assessments As a general rule, a developer is not liable for the payment of monthly assessments on all unsold units until the first calendar date of the fourth month following the sale of the first unit. This ninety day grace period is commonly referred to as the election period. However, the developer may be excused from future payments if the developer guarantees to each purchaser that the monthly assessment will not increase, for a certain period of time, and obligates himself during this period of time to pay all common expenses incurred above the amount of assessments received from unit owners. In the case at bar, there was no written or oral guarantee by respondents to freeze the monthly assessments. This was confirmed through testimony of a unit owner, and evidenced by a monthly assessment increase that took effect in March, 1984, or prior to the turnover date. Between October, 1980 and March, 1984, the cost of the monthly assessment varied with the size of the unit, and ranged from $27.50 for the smallest unit, to $55.00 for a two bedroom, one bath unit, to $82.50 for the largest unit. Since no guarantee was made, respondents were obligated to begin paying assessments on their unsold units in February, 1981. However, they failed to do so. Instead, they calculated their other expenses in maintaining the project, and credited the amount of monthly assessments owed against these other expenses. Since other expenses always exceeded the amount of assessments owed, no funds were ever specifically earmarked into the monthly assessment account. Had such assessments been paid from February, 1981 through May 11, 1984, which is the turnover date, respondents' obligation would have been $15,948.64. This amount was derived from records given by respondents to the association at turnover and was not credibly contradicted. Count II - Reserves The complaint charges that respondents "failed to submit reserves annually nor fund reserves as required." According to Division requirements, a developer is required to establish and fund a reserve to cover future repairs from the date of declaration until the end of the election period. These funds are then turned over to the association. Beginning after the election period, a developer is required to establish and fund a reserve account in an amount prescribed by the project's declaration. In this case, the project's recorded declaration provided that the reserve had to equal 10% of the total annual monthly assessments paid by unit owners. Therefore, respondents were required to establish a reserve no later than February, 1981, and to fund it by setting aside 10% of the total monthly assessments. Such an account was timely established by respon- dents at a Pensacola bank in January, 1981 in the amount of $480. This amount was spent within three or four months on repairs to an air-conditioner generator and the purchase of reserved parking signs. No additional funds were placed in the reserve account after January, 1981. Each year a projected annual budget was prepared by the developers which included an amount for the reserve, but no funds were ever actually set aside for that purpose. Although this requirement can be waived by vote of the association, respondents conceded that the funding requirement was never waived. Respondents justified their course of action on the theory the association account into which the assessments were placed was running a deficit, and the developers had already guaranteed to cover all expenses. However, this procedure is not sanctioned by statute or rule. According to uncontradicted testimony, had appropriate reserves been funded as required, respondents would have funded $4,770.56 from February, 1981 until the turnover. Count III - Annual Financial Statements The final count involves an allegation that respondents "failed to furnish unit owners with an annual financial statement for the years 1980, 1981, 1982 and 1983." According to Division requirements, all non-developer unit owners must be furnished a copy of the project's "annual financial statement" each year. This document must be prepared and distributed by mail or personal delivery. Respondents claimed that this was done. However, petitioner presented the testimony of two unit owners for the purpose of showing that such statements were not distributed as required. One unit owner, William C. Naftel, received the 1982 statement, but could not recall one way or the other whether he received statements in the years 1981, 1983 and 1984. A second unit owner, Max C. Bolton, Jr., testified he "may have" received such a statement in 1982, but did not receive one for the years 1980, 1981 and 1983. Mitigation This project was respondents' first and only development venture in Florida. Respondents' lack of compliance with Division requirements did not appear to the undersigned to be intentional. Rather, it stemmed from a combination of poor outside advice and a failure on their part to make diligent inquiry as to what precise obligations the statutes and Division rules imposed upon them from an accounting and legal standpoint. At hearing, respondents claimed they have lost a considerable amount of money on the project, which amount far outweighs any claims advanced by the agency.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondents be found guilty of violating Subsections 718.115(2), 718.112(2)(k); and 718.111(13), Florida Statutes (1985), and that a $2,500 civil penalty be imposed; to be paid within thirty days from date of final order. DONE and ORDERED this 3rd day of June, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 1986.
The Issue The issue is whether Riverwood Condominium Association, Inc., ("the Association") violated Section 718.112(2)(i), Florida Statutes (1984 Supp.) by collecting $18,625 as common element security deposits from October 1, 1984 through March 31, 1985 in connection with leases of condominium units. There is little dispute as to the facts; this matter turns on the meaning of the terms "charge" and "fee" in Section 718.112(2)(i), Florida Statutes (1984 Supp.). The refundable security deposit of $1,000 which tenants of condominium unit owners post at the beginning of a tenancy, and which is returned to the tenant on the termination of the tenancy, (less any amounts assessed as fines or for damage done to common property by the tenant), does not constitute a "charge" or a "fee" which is forbidden by Florida Condominium Act. The Notice to Show Cause should be dismissed.
Findings Of Fact The Respondent is an association, as that term is defined in Section 718.103(2), Florida Statutes (1984 SUPP.) which is responsible for the operation of the 128-unit Riverwood Condominium. The condominium has undergone a substantial demographic change from the time it first began operation. Originally it was occupied by unit owners. Now about 43% of the units are rented out by their owners. The Directors of the Association found it useful to institute the security deposit program because as the character of the residents of the condominium changed from owners to tenants, damage was caused to common elements by tenants and their children, including but not limited to the following: backing into fences with automobiles, causing damage; knocking down light posts with automobiles; maliciously attempting to set fires to the clubhouse; knocking over concrete stanchions in entrance ways appurtenant to the Condominium; causing damage to electrical connections servicing the common elements by performing unauthorized repairs to the common elements adjacent to units; malicious damage to items of personally belonging to the Association; clogging swimming pool filters; defecation in swimming pool; damaging grassy areas with automobiles, necessitating the replacement of sod; and discharging of B-B guns through windows of the clubhouse. Tenants have also violated Association rules, for which fines are prescribed in the rules. The Association found, however, that it paid $3,000 in legal fees to collect a $345 fine from a tenant. Owners and those for whom they are responsible also have damaged common elements. The Declaration of Condominium for the Riverwood Condominium provides that "[u]nits shall not be leased without the prior written approval of the Board of Directors. Notwithstanding the lease of his unit, the liability of the unit owner shall continue" (See Respondent's response to request for admissions, filed January 30, 1986.) The Association does take applications to screen prospective tenants, but it has never charged an administrative fee in connection with the processing of those applications (id.) A resolution enacted by the Board of Director of the Riverwood Condominium Association and adopted as a rule or regulation permits the Association to collect a $1,000 refundable security deposit from each new tenant who leases a unit at the Riverwood Condominium (id.). The Declaration of Condominium, Articles of Incorporation and By-Laws of the Association do not themselves provide for the collection of security deposits. Under the authority of the resolution, the Association has collected a $1,000 refundable security deposit for each new tenant who leases a unit at the Riverwood Condominium (id.). At the conclusion of a tenancy, the security deposit is refunded in full unless the tenant was found to have damaged common property or violated Association-rules (id.). During the period October 1984 through March 1985 the Association collected security deposits in the amount to $18,625.00 (id.) 1/. The $1,000 refundable security deposit is invested at interest, but the interest is maintained by the Association, in part to defray the cost of administering the security deposit program. In the event officers or employees of the Association believe that damage has been caused to a common element by a tenant or the tenant has violated a rule, the Association gives the tenant a written notice to appear before the Board of Directors of the Association. In the event the tenant does not appear at the meeting, a second notice is provided to appearing at the following Board meeting. When the tenant appears, the tenant is given the opportunity to answer the allegation. The Board determines upon the evidence presented at the Board meeting whether damage was caused by the tenant or a rule has been violated, the amount of any damage is determined, and that amount, or the prescribed fine, is deducted from the security deposit. No evidence was presented that a security deposit has been reduced without the tenant having the opportunity to be heard on whether he is responsible for damage or has violated a rule. As of the time of the hearing, the Association maintained over $50,000 in the interest-bearing security deposit account. While the $1,000 security deposit is not collected from unit owners at the condominium, it is collected from all tenants regardless of the length of tenancy, number of persons occupying the unit or the age of those occupants. The problems of finding a way to deal with misbehavior of tenants encountered by the Association is similar to problems experienced by other condominium associations in its geographical area.
Recommendation The Notice to Show Cause should be dismissed. DONE AND ORDERED this 24th day of April 1986 in Tallahassee, Leon County, Florida. WILLIAM R. DORSEY, 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 24th day of April 1986.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following Findings of Fact: The Respondent, St. Lucie County Expressway Authority, was created by the Florida legislature in 1983, and is governed by Chapter 348, Florida Statutes. The Authority is composed of two members from the Board of County Commissioners of St. Lucie County, two members from the City Commission of Ft. Pierce, two members from the City Council of Port St. Lucie and three members appointed by the governor. Based on the anticipated future growth of St. Lucie County, there is a need for additional East-West traffic arteries in the southern portion of the county to ease expected traffic conditions. The St. Lucie County Expressway Authority employed consultants and conducted public hearings to determine the best location for such a roadway. Prior to selecting the location for the proposed East-West Expressway, the St. Lucie County Expressway Authority examined feasibility studies, traffic count reports and engineering and road design proposals on alternative alignments and found the proposed corridor to be the best choice from both an economic and environmental standpoint. The proposed expressway route connects Interstate 95 to U.S. Highway 1. Phase 1 of the project would begin in the southern portion of St. Lucie County at U.S. Highway 1 and continue east, following existing transmission lines owned by Florida Power and Light Company and extend to a point which is now called East Torino Parkway. The total length of Phase One of the project is approximately 2.6 miles. Phase Two would extend the project to Interstate 95. The St. Lucie County Expressway Authority expects to obtain funding for construction of the East-West Expressway from various sources including the State of Florida's Toll Facilities Revolving Trust Fund, the Florida Department of Transportation and state-backed revenue bonds. The use of state-backed revenue bonds would require St. Lucie County to pledge a certain portion of its gas tax revenue as security to cover the bonds in the event that the expressway did not generate enough money from tolls to pay back the bonds. A public hearing is scheduled for January, 1988 at which the St. Lucie County Commission will review updated feasibility studies and traffic count estimates to determine whether to pledge the necessary funds to support the bonds. Assuming that approval is obtained for state-backed revenue bonds, the letting of a contract to construct the East-West Expressway could be accomplished by July 1, 1989. The time period for construction of a project such as the East-West Expressway is approximately two (2) years from the date that the contract for construction is executed. Thus, under the most optimistic outlook and projections, the proposed East-West Expressway could be completed by July of 1991. However, difficulties in obtaining funding and/or necessary environmental permits could delay completion of the expressway for ten (10) years, or until 1997. In conjunction with the preparation of plans for construction of the East-West Expressway, the St. Lucie County Expressway Authority filed "right-of- way reservation maps" on October 13, 1986, in accordance with Section 337.241, Florida Statutes. The reservation maps were filed and approved by the St. Lucie County Expressway Authority in compliance with all applicable statutes and regulations. The purpose of filing the right-of-way reservation maps by the St. Lucie County Expressway Authority is to preclude development of properties within the proposed corridor of the East-West Expressway while final construction and engineering plans are being prepared, thereby preventing an increase in cost of acquisition of those properties pending eventual eminent domain proceedings. The right-of-way reservation maps will prohibit the granting of development permits, as defined in Section 380.031(4), Florida Statutes, by any governmental entity for a period of five (5) years from the date of recording of the reservation maps. This period may be extended for an additional five years at the option of the Expressway Authority pursuant to Section 337.241(2), Florida Statutes. The reservation maps do not prohibit sale, continued use of the property by its owners nor is any use prohibited which does not require a development permit as defined in Section 380.031(4), Florida Statutes. The engineering construction plans for the East-West Expressway encompass less area than the reservation maps. However, the larger reserved area will be utilized to facilitate construction of the project and for water retention on site. Thus, less private property will ultimately be taken than that which is included in the right-of-way reservation area. The property owned by Petitioners, T. L. Sloan, James Taylor and Bill Stewart (hereinafter referred to as the "Sloan property") consists of a front and rear parcel. The front parcel consists of 6.54 acres of which 2.28 are within the right-of-way reservation area. The rear parcel is physically separated from the front parcel by a drainage canal and consists of approximately 4.25 acres. The rear parcel is not within the reservation map area, but access to this parcel can only be gained by U.S. Highway 1 through the front property. The property owned by Petitioners Mark C. Walters and David J. Gonzalez (hereinafter referred to as the "Walters' property") measures approximately 55,450 square feet of which approximately 46,000 square feet are within the right-of-way reservation area. The Sloan and Walters' properties are located at the easternmost end of the proposed East-West Expressway and front the east side of U.S. Highway 1 in Ft. Pierce, Florida. Both properties were purchased in 1984 as investment property and are presently vacant, unimproved acreage. The front parcel of the Sloan property is zoned commercial general and the rear parcel is zoned multifamily residential at five units per acre. The Walters' property is zoned commercial general and is adjacent to the Florida Power and Light transmission lines. The St. Lucie County Expressway Authority intends to use the property within the reserved area for the construction of the entrance and exit ramps of the proposed expressway. The engineering design of the East-West Expressway was done with as little intrusion upon Petitioner's properties as practical and only that property absolutely necessary for construction will ultimately be taken. Pursuant to the right-of-way reservation maps, all of the highway frontage on U.S. Highway 1 for both properties has been reserved for the expressway construction. Because of existing regulations, the St. Lucie County zoning office will not issue any development permits for property which has no access to a public highway. Therefore, the local zoning office will not issue any development permits for any portion of the Petitioners' properties, whether included in the reservation area or not. Thus, all of the property owned by Petitioners has been affected by the right-of-way reservation maps. The Sloan property was listed for sale prior to the recording of the right-of-way reservation maps. The Walters' property was purchased with the intent to build a gun shop which is now operated by the present owners at another location. After the recording of the reservation maps, the Walters' property was actively listed for sale. After the recording of the reservation maps, purchase inquiries regarding the Sloan property began to rapidly decrease. Inquiries regarding the Walters' property have also been extremely slow. No written offers to purchase the subject properties have been submitted to any of the Petitioners. David Fuller, a real property appraiser called as a witness by Petitioners, prepared an appraisal estimating the effects of recording the right-of-way reservation maps on the Sloan and Walters' property. The testimony of Mr. Fuller is accepted as more credible and pertinent to the issues involved in this cause than the testimony presented by Mr. Davis, the Respondent's expert appraiser. Mr. Davis admitted that the purpose of his appraisal was to estimate the fair market value of the property in fee simple, the part "taken" and damages to the remainder for the purpose of eminent domain. Mr. Davis' analysis is more appropriate for an action sounding in eminent domain. Mr. Fuller used the Sales Comparison or Market Approach combined with a discounted cash flow method of appraisal in determining the difference in the value of the properties before the recording of the right-of-way reservation maps, and the market value of the properties immediately after recording of the reservation maps. The value of real property is directly related to the use to which it can be put. Thus, a particular parcel may have several different value levels under alternative uses. In determining what, if any, substantial impact the record of the right-of-way reservation maps had on the market value of the Sloan and Walters' property, Fuller evaluated the difference in the value of the properties utilizing their highest and best use before the filing of the right- of-way reservation maps and the highest and best use after the recording of the maps. The highest and best use for the Sloan property without the encumbrance of the right-of-way maps would be to improve the front commercial zoned parcel with a commercial use consistent with neighborhood use trends (i.e., strip shopping centers, rental storage buildings and/or automobile dealerships) and improve the rear multifamily zoned parcel with a support use for the front commercial property. The highest and best use of the Sloan property after filing of the right-of-way reservation maps would be to hold the property as vacant until the right-of-way reservation map filing expires. Although the Sloan property could be sold with the right-of-way reservation, a majority of the potential market would be eliminated and the remaining market would require a discount to purchase the property knowing that the restrictions exist. The potential market in the neighborhood consists of generally three types of investors; (1) the owner occupant; (2) the real estate investor seeking income from an improved property; and (3), the short term land speculator. The owner occupant seeking to immediately build would not consider the property in question because the potential to immediately construct a new improvement is not available. Likewise, the investor seeking to build an income producing improvement, either immediately or in the next three years, would not be interested in the property. The short term land speculator would not be interested because there is no certainty that the property would be able to be developed to its highest potential market value within the next two to three years. The highest and best use for the Walters' property without the encumbrance of the right-of-way reservation maps would be to improve the parcel in approximately one to two years with a commercial use consistent with the neighborhood trends (i.e., owner occupied small business and/or mini-storage property). Improved uses such as an automobile dealership or shopping center could not be physically constructed on a site the size and shape of the Walters' property. The highest and best use of the Walters' property after filing of the right-of-way reservation maps would be to hold the parcel vacant until the reservation filing expires. As with the Sloan property, although the parcel could be sold, a majority of the potential market would be eliminated and the remaining market would require a discount to purchase the property knowing that the restrictions exist. Mr. Fuller stated that in his opinion, using the discounted cash flow model of appraisal, the Sloan properties suffered a total loss in value of approximately $441,450.00 on the date the reservation maps were filed. As to the Walters' property, the loss was calculated at $78,480.00. Mr. Fuller's financial calculations as to loss are misleading and not very useful because they were specifically calculated for a period of time of ten years. In other words, Mr. Fuller's total loss of value calculations are based on the assumption that the reservation map restrictions would exist for the full initial five (5) year period and that they would be extended for an additional five (5) year period. The ability to develop vacant and unimproved commercial property and to put the land to its highest and best use is a substantial beneficial ownership interest arising out of the ownership of commercial property. Both of the properties owned by Petitioners are fully capable of development and no other impediments to development exist except for the reservation maps. Substantial payments on the mortgages for the properties are being made by Petitioners each year totalling over $58,000.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that the St. Lucie County Expressway Authority enter a Final Order in favor of Petitioners after which the Authority shall have 180 days from the date of said order to acquire the Petitioners property or initiate appropriate acquisition proceedings pursuant to the requirements of Section 337.241, Florida Statutes. DONE and ORDERED this 2nd day of December, 1987, in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON 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 2nd day of December, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 87-2279, 87-2517 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 1. Adopted in Findings of Fact 7 and 8. Adopted in Finding of Fact 7. Adopted in Findings of Fact 11, 12 and 13. Adopted in Findings of Fact 11, 12, 13 and 14. Adopted in Finding of Fact 15. Adopted in Finding of Fact 16. Adopted in Findings of Fact 9, 17 and 18. Adopted in substance in Findings of Fact 23, 25 and 27. Partially adopted in Findings of Fact 6 and 26. Matters not contained therein are rejected as misleading and/or argument. Adopted in substance inn Finding of Fact 27. Addressed in Conclusions of Law section. Addressed in Conclusions of Law section. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 8. Adopted in Finding of Fact 7. Adopted in Finding of Fact 7. Adopted in Finding of Fact 13. Adopted in Finding of Fact 10. Adopted in Finding of Fact 3. Adopted in Finding of Fact 9. Rejected as subordinate and/or unnecessary. Adopted in Finding of Fact 11. Adopted in Finding of Fact 12. Adopted in Finding of Fact 13. Adopted in Findings of Fact 13 and 14. Adopted in Findings of Fact 13 and 14. Rejected as subordinate and/or unnecessary. Adopted in Finding of Fact 18. Adopted in Finding of Fact 9. Adopted in Finding of Fact 9. Adopted in Finding of Fact 15. Adopted in substance in Finding of Fact 10. Partially adopted in Finding of Fact 26. Matters not contained therein are rejected as misleading and/or not supported by the weight of the evidence. Rejected as contrary to the weight of the evidence. Adopted in substance in Finding of Fact 6. Rejected as misleading. The Petitioners' expert projected that "completion" and not "construction" could possibly take 10 years. Adopted in substance in Finding of Fact 9. COPIES FURNISHED: John T. Brennan, Esquire Post Office Box 3779 Ft. Pierce, Florida 33448-3779 Frank J. Lynch, Jr., Esquire Post Office Box 4027 Ft. Pierce, Florida 33448-4027 David Stuart Chairman St. Lucie County Expressway Authority Post Office Box 4027 Ft. Pierce, Florida 33448-4027
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint in the manner specified therein and, if so, what penalty should be imposed.
Findings Of Fact Respondent has been a Florida-licensed real estate sales associate since March 19, 1990. He holds license number SL-557575. His license has been in the name of his professional association (Frank Rhoden, P.A.), as allowed by Florida Administrative Code Rule 61J2-1.013(1)(f),4/ since January 11, 2007. At no time during the period that he has been licensed (from March 19, 1990, to present) has he ever been disciplined. Respondent (operating as a professional association) is now, and was at all times material to the instant case, affiliated with All Homes Realty, Inc. (All Homes), a Florida- registered brokerage corporation.5/ Since the late 1970's, Gina Brimmell, a now-retired school teacher,6/ has owned a condominium unit--Unit 305--located at 4311 Crystal Lake Drive, Pompano Beach, Florida (Subject Unit). In or around April 2009, Ms. Brimmell asked a representative of the community association management firm servicing the condominium association to which (by virtue of her ownership of the Subject Unit) she belonged (CAM Firm) to recommend a real estate professional to help her sell or rent the Subject Unit7/ and, in response to her request, was given Respondent's name.8/ Ms. Brimmell, who was then residing in North Carolina, thereafter contacted Respondent and, on April 28, 2009, met with him in person to discuss the possibility of her using him to market the Subject Unit, which at the time was unoccupied and vacant, except for a television and VCR belonging to Ms. Brimmell that she had left behind (on a built-in shelving unit (Shelving Unit)) when she had moved out of the Subject Unit. In introducing himself at the April 28, 2009, meeting, Respondent handed Ms. Brimmell his business card, which indicated that he was working for All Homes. After "interview[ing]" Respondent, an impressed Ms. Brimmell (who was aware of Respondent's affiliation with All Homes and that Respondent was not his own "boss"9/) let Respondent know that she wanted to use his services. Respondent thereupon presented to Ms. Brimmell, for her consideration and signature, the following Property Management Agreement (PMA): PROPERTY MANAGEMENT AGREEMENT: Owner of: 4311 Crystal Lake Drive, #305, Pompano Beach, Fl. 33064 Authorizes Frank Rhoden P.A. To manage, rent and maintain the above property for a fee of 10% of the annual rental and 10% per month of the rent for management services. Frank Rhoden PA will provide electricians, plumbers, painters, and ensure that property is well maintained and rent collected in a timely manner. Owner authorizes the payment of rental fees, management fees, repairs and maintenance out of rent collected. Frank Rhoden PA and Attorney will evict tenants who fail to pay rent in a timely manner, disturb the peace or fail to maintain the excellent condition of the condo as rented. Agreed to By: Owner Frank Rhoden PA After reviewing the PMA, Ms. Brimmell wrote the following handwritten language (Handwritten Addition) underneath the signature lines on the PMA: 10% fee up front to rent (equal to one month's rent) then 10% per month to manage property. Then, Ms. Brimmell and Respondent signed and dated the PMA (on the appropriate signature lines), and they both placed their initials beneath the Handwritten Addition.10/ During their meeting, Ms. Brimmell and Respondent also executed a listing agreement for the sale of the Subject Unit (Listing Agreement).11/ Before the meeting ended, Ms. Brimmell gave Respondent the key to the Subject Unit so that he would be able to show it to prospective buyers and renters. She instructed him to market the unit, which had been cleaned, "as is." At no time did she ask or authorize him to bring and leave any item in the unit, be it for staging the unit or for any other purpose. Respondent was not the only one, aside from Ms. Brimmell, in possession of a key to the Subject Unit. Ms. Brimmell had also given keys to the condominium association and to her good friend, William Russell. Mr. Russell resided year-round in a unit (Unit 309) down the hall from the Subject Unit. Ms. Brimmell had given him a key when she had moved away and asked him to, every now and then, go inside the Subject Unit to make sure nothing was amiss, a responsibility he had agreed to undertake. True to his word, every month or two following Ms. Brimmell's move to North Carolina, Mr. Russell inspected the inside of the Subject Unit. During one such visit on or about June 22, 2009, he observed numerous items in the Subject Unit that had not been there during his last inspection (Unfamiliar Items), including books, paintings, and "knickknacks" on the Shelving Unit; clothing and a suitcase in the unit's walk-in closet; bags, boxes, bins, and containers with various articles in them; and large, blue industrial-looking barrels or drums.12/ Although Mr. Russell did not know it at the time, Respondent was using the Subject Unit to store things (without Ms. Brimmell's knowledge or authorization). Later that same day, Mr. Russell telephoned Ms. Brimmell and told her about the Unfamiliar Items he had found in the Subject Unit, commenting that it looked like someone had moved in to the unit. Two days later, he went back into the Subject Unit, took digital photographs of the Unfamiliar Items, and electronically sent these photographs to Ms. Brimmell. After viewing the photographs, Ms. Brimmell telephoned the CAM Firm, All Homes,13/ and Respondent to find out what, if anything, they knew about the Unfamiliar Items' presence in the Subject Unit. Ms. Brimmell was unable to reach Respondent, so she left messages for him. After a time, Respondent called her back and spoke to her. During their discussion, Respondent admitted to Ms. Brimmell that he was "storing stuff" in the Subject Unit, and he apologized to her for doing so. Ms. Brimmell, who was "extremely upset," advised Respondent that she was terminating the PMA and the Listing Agreement (neither of which had produced the result Ms. Brimmell had hoped for--rental of the Subject Unit in the case of the PMA, and sale of the Subject Unit in the case of the Listing Agreement), and she demanded that he return the key to the Subject Unit she had given him. Some time shortly after Respondent's and Ms. Brimmell's telephone conversation, the Unfamiliar Items were removed from the Subject Unit.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Florida Real Estate Commission issue a Final Order (1) finding that, as alleged in Count Two of The Administrative Complaint, "Respondent violated [s]ection 475.25(1)(b), Florida Statutes, when Respondent moved personal property into the [Subject Unit]" and disciplining him therefor by fining him $1,500.00, suspending his license for a period of six months, and directing him to pay, pursuant to section 455.227(3)(a), investigative and non-attorney prosecutorial costs related to this violation in an appropriate amount to be determined in accordance with chapter 120; and (2) dismissing the remaining allegations of professional misconduct made in the Administrative Complaint. DONE AND ENTERED this 2nd day of May, 2012, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 2nd day of May, 2012.
The Issue Whether Respondents' Florida real estate licenses should be disciplined based on allegations that they were guilty of fraud, misrepresentation, false promises, false pretenses, dishonest dealings by trick, scheme or device, culpable negligence or breach of trust in a business transaction; failed to account or deliver trust funds; placed, or caused to be placed any contract, assignment, deed, will, mortgage, affidavit or other writing which purports to affect the title of, or encumber, any real property if the same is known to be false or not authorized to be placed of record, maliciously or for the purpose of collecting a commission, or to coerce the payment of money to the broker or salesman or other person or for any unlawful purpose; failed to maintain trust funds in the real estate brokerage account or some other depository until properly disbursed; had funds in an escrow account which were personal funds; failed to preserve and make available to Petitioner, books, records and supporting documents of all trust fund transactions; and used an identification of an organization having to do with real estate when it was not authorized to do so all in violation of Subsections 475.25(1)(a), (b), (d), (e), (k) and 475.42(1)(j), Florida Statutes and rule sections 21V-14.008 and 21V-10.027, Florida Administrative Code.
Findings Of Fact Petitioner, Department of Professional Regulation, Division of Real Estate, is the state licensing and regulatory agency in Florida charged with the responsibility and duty to prosecute administrative complaints in the field of real estate. Respondent, Affirmative Realty, Inc., is now and was at all times material hereto, a corporation registered as a real estate broker in Florida having been issued licensed No. 0267334 and the last license issued was at the address of 4815 East Busch Boulevard, Suite 201F, Tampa, Florida. During times material, Respondent, Sharon Ann Rozelle, was licensed and operating as qualifying broker and officer of Respondent, Affirmative Realty, Inc. having been issued license No. 0541685. On October 26, 1990, Respondents solicited and obtained a property management agreement with Mark Clesi to manage rental units that he owned (a duplex) located at 10118 North 14th Street in Tampa. On June 17, 1991, Respondents solicited and obtained a tenant for Unit A of Clesi's duplex. The lease reflected $300.00 as monthly rent with a $200.00 security deposit to be held in trust by Respondents. On October 12, 1991, Respondents obtained a tenant for Unit B of Clesi's duplex. The lease reflected $280.00 per month as rent with a $200.00 security deposit which was also held in trust by Respondents. The property management agreement in effect between Respondents and Clesi required Respondents to obtain prior approval before making repairs to Clesi's property. The agreement also called for repairs to be made "as needed". Also, Respondent was required to send monthly reports advising Clesi of monies expended toward the apartment for repairs, management fees and rents collected. During June, 1991, Clesi was not receiving reports on a timely basis and therefore requested that Respondent forward such reports in order that he could timely review them. During the period when Respondent served as property manager for Clesi's property, it became necessary for Respondent Rozelle to evict a tenant. The eviction came about as a result of the tenant failing to pay rent. In an effort to force the tenant from the property, Clesi turned off the water service to the property for a period of approximately three months. Clesi did so in an effort to informally evict the tenant. When Clesi's effort proved unsuccessful, Respondent initiated formal eviction proceedings. Throughout the course of the eviction proceedings, Respondent made at least six (6) trips to attend various hearings and motions. For her efforts, Respondent charged Clesi a $300.00 service fee which appears reasonable. After the tenant was evicted, the apartment was extensively damaged and required extensive repairs to make it suitable for human occupancy. Clesi approved the repairs that were necessary to enable the duplex to be rented. Based on the condition of the apartment after the tenant was evicted, it appeared that the evicted tenant had cooked over a charcoal fire for months inside the duplex. Also, there was raw human excrement over the entire bathroom and walls throughout the apartment. The entire apartment had to be sterilized and repainted prior to releasing. The Hillsborough County Health Department issued a notice which banned the duplex from human occupancy until certain specified violations were corrected. Respondent made the necessary repairs and charged Respondent for making them. Although Clesi maintains that he did not authorize all of the repairs that Respondent made, it is more probable than not that he, in fact, authorized the repairs as he was desirous of repairing the property so that he could rent the apartment again. The maintenance company which performed the repairs was "Rozelle's maintenance", a company which was owned by Respondent. There was no effort on Respondent's part to hide the fact that she owned the company as the invoices sent to Clesi clearly reflected the fact that the repair work was done by Rozelle's maintenance. Although it is clear that Respondent and Clesi had disagreements on the extent of repairs needed to make the duplex suitable for human occupancy, Clesi paid for all of the repairs with the exception of a kitchen sink which he contends was replaced simply because it was not shiny. On the other hand, Respondent credibly testified that it was more than the appearance of the sink which needed repairs i.e., the drain was leaking, it was rusty and was causing further damage to the cabinets in the kitchen. Despite the fact that Respondent replaced the sink and Clesi refused to pay, Respondent deducted the amount charged for replacing the sink from Clesi's bill and did not remove it from the unit. Clesi filed a civil claim in Hillsborough County Court seeking $1,411.04 contending that Respondent sent him invoices for unauthorized maintenance charges and fees between June of 1991 and February of 1992. Clesi was unsuccessful in that lawsuit as it was judicially determined that Respondent did not owe Clesi any money based on his claim. On February 7, 1992, Respondent Rozelle filed a claim of lien with the Hillsborough County Circuit Court against Clesi's property for payment of services and Respondent's management of Clesi's duplex. Additionally, Respondent filed five other claims of lien against other owners for property management services. All of these claims of lien have since been released and were done forthwith when Respondent was advised that, despite legal advice to the contrary, it was improper and unlawful for her to do so since the claim of lien included a management fee. On March 14, 1991, Petitioner's investigator, Marjorie G. May, conducted an office inspection and audit of Respondent's escrow accounts based upon records provided (by Respondents). At the time, Respondent's security deposit escrow account maintained at First Union National Bank in Tampa had a trust liability of $350.00 and a bank balance of $270.00 indicating a shortage of approximately $80.00. This shortage came about based on the fact that, unbeknowst to Respondent, her bank debited her account a fee for checks. When these fees came to Respondent's knowledge, she immediately replaced the $79.97 which restored the account to a non-shortage status. The audit also revealed that Respondent's rental distribution escrow account had a zero trust liability but contained $633.00 which appeared to have been Respondent's personal funds. Part of the overage came about based on the fact that Respondent made a required $200.00 initial deposit (her personal money) to keep the account open and maintained at the bank. The remaining balance was part of a shared commission which Respondent was in the process of disbursing to the proper real estate agent. Respondents failed to prepare signed written monthly escrow statement- reconciliations comparing total trust liability with reconciled bank balances of all trust accounts. These reconciliation statements were not filed as charges against Respondents inasmuch as Respondents were new brokers. As such, these matters are not at issue in this proceeding. On April 2, 1992, Petitioner's investigator, J. L. Graham (Scholtz), scheduled an office inspection and audit for Respondent's brokerage activities. This audit was not conducted as Respondent had car trouble on that day and was unable to reschedule it prior to the time that Investigator Graham appeared at Respondent's office. Approximately three weeks later, April 23, 1992, Investigator Graham made on unscheduled visit at Respondent's office. The audit revealed that some of the bank and accounting records which investigator Graham needed were not at the office as Respondent had taken some of the bank and accounting records to her home after the office was burglarized. Another audit inspection was to be conducted two days later but Respondent was unable to keep that appointment because of a scheduling conflict with an appointment with her attorney. On April 21, 1991, Respondent resigned from the Greater Tampa Association of Realtors (the Association). Respondent's name continued to be carried on the Association's roll because her dues were paid through the end of the 1991 calendar year. Respondent utilized the Association's stationery after her resignation during 1991 but whited out the association's letterhead designation on most of the correspondence which left her office. On occasion, a few letters were inadvertently sent out with the Association's letterhead however there was no attempt by Respondent to defraud or otherwise hold herself out as a member of the Association.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Respondent Rozelle be required to pay a fine of $500.00 payable within thirty days of the entry of the Final Order herein. This recommendation is premised on the finding herein that Respondents filed unlawful liens affecting the title to Clesi's property in violation of Section 475.25(1)(a) and 475.42(1)(j), Florida Statutes. DONE AND ENTERED this 2nd day of September, 1993, in Tallahassee, Florida. JAMES E. BRADWELL 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 2nd day of September, 1993. COPIES FURNISHED: Jack McRay, Acting General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Darlene F. Keller, Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Steven W. Johnson, Senior Attorney Department of Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Mark A. Neumaier, Esquire Post Office Box 8623 Tampa, Florida 33674-8623
The Issue Whether Respondent, IMT-LB Central Florida Portfolio, LLC (Respondent), committed a discriminatory practice in violation of Chapter 760, Florida Statutes (2009).1
Findings Of Fact Respondent owns and/or operates a residential rental property located at 4400 Martin’s Way, Orlando, Florida. The property, identified in this record as Village Park Apartments (Village Park), consisted of a two-story, multi-building, multi- apartment complex. Sometime in late October 2009, Petitioner leased an apartment at Village Park. Petitioner’s apartment was on the second floor and no other apartments were above his. Petitioner’s lease agreement required that Petitioner obtain and provide public utilities for his apartment. Although Petitioner claims he did not timely receive a copy of his lease in order to be on notice of this provision, the record is clear that after Petitioner became aware of the provision, he did not obtain public utilities for the apartment. Shortly after Petitioner received a bill for utility service for his apartment from Respondent in December 2009, Petitioner complained to governmental authorities about conditions at the apartment complex. With regard to the conditions of his living unit, Petitioner maintained there was a roof leak, a vanity pipe leak, and a non-working toilet. Ms. Johnson, an inspector for the City, came out to Village Park and inspected the unit. She found that the toilet and vanity required repair. She further determined that Respondent would need to get a certified roofing person to verify the condition of the roof, and to certify to the City that the roof was water tight. It was Ms. Johnson’s position that water damage was evident on the ceiling in Petitioner’s unit, and that Respondent would need to get a certified roofing person to verify the condition of the roof, as well as someone to restore the interior of Petitioner’s unit by repairing and/or painting the ceiling. An inspector from the Orange County Health Department also visited Village Park concerning a complaint about rats at the dumpster. Respondent timely addressed the rodent issue and the property is under contract with an extermination company that provides appropriate rodent deterrence. Respondent timely repaired the vanity leak and the toilet issue in Petitioner’s apartment. The roof issue, however, was not quickly resolved. Initially, Petitioner refused to allow Respondent into the unit to repair the ceiling. Ms. Johnson advised Petitioner that he would have to allow Respondent entry in order for them to be able to fix the ceiling and restore it to an appropriate condition. According to Ms. Johnson, the ceiling in Petitioner’s unit did not collapse as alleged by Petitioner. Ms. Johnson also noted that there was debris around the dumpster at Village Park. She was favorably impressed with the speed with which the maintenance crew cleaned up the mess at the dumpster site. Despite some delays in getting the roof inspection completed to Ms. Johnson’s satisfaction, all issues with Petitioner’s unit were resolved to the City’s satisfaction. Concurrent with the repair timeline to Petitioner’s unit, Respondent filed an eviction proceeding against Petitioner. That action progressed through the court, through mediation, and resulted in a stipulated settlement agreement. The Landlord/Tenant Stipulation was executed on January 27, 2010, and provided, in pertinent part: Defendant [Petitioner] agrees to place utilities in his own name at OUC no later than Feb. 3, 2010. * * * Defendant agrees to allow Plaintiff [Respondent] to enter his apartment for repairs on Feb. 1, 2010 between 9:00 a.m. and 5:00 p.m. Petitioner failed to abide by the terms of the stipulation. Ultimately the court issued a Final Judgment for Possession and Writ of Possession for Petitioner’s unit. Petitioner's claim that the eviction process was retaliation for the complaints made to the county and city authorities, belies the fact that Petitioner failed to honor the terms of the lease, and the stipulation reached in the eviction proceeding. Petitioner’s race was not directly or indirectly involved in any manner. Nor was Petitioner treated less favorably than a similarly situated party not of Petitioner’s race.
The Issue The issues in the case are whether the allegations set forth in two separate Notices to Show Cause are correct, and, if so, what penalty, if any, should be imposed.
Findings Of Fact The Respondent is the association governing the Clarcona Condominium in Apopka, Florida. The Clarcona Condominium is comprised of a total of 946 units. The Respondent has an office located on the Clarcona property where available records of the association are located. Notice to Show Cause dated April 1, 2003 (DOAH Case No 03-3209, DBPR Docket No. 2003040435) By letter hand delivered to the Respondent's office on February 13, 2002, Mike Sims, a Clarcona unit owner, asked to review the Respondent's financial records, including accounts receivable and a "reserve study." Mr. Sims previously requested information and records from the association, and apparently received the information on a timely basis. Subsequent to the February 13 request, Mr. Sims designated another resident, Curtis Faulk, to represent him in his records request. The Association manager made an appointment with Mr. Faulk for February 23, 2002, to review the requested records. During the appointment, Mr. Faulk reviewed some of the requested information. As of the February 13 request and, apparently, continuing through at least February 23, the Respondent's accounts receivable records were being converted from one type of software system to another. There was concern by the Association manager that the Association's accounts receivable records were not accurate. The only reserve study apparently available was a "draft" that had been prepared for review by an accountant for the Association manager. Because the Respondent was concerned about the accuracy of the accounts receivable records and the draft reserve study, the Respondent did not provide the accounts receivable or the draft reserve study for Mr. Faulk's review. The evidence establishes that the requested accounts receivable and reserve study information were not provided within five working days of the Respondent's receipt of Mr. Sims' request. Notice to Show Cause dated July 16, 2003 (DOAH Case No 03-3208, DBPR Docket No. 2003056262) By letter received on February 19, 2003, Clarcona unit owner Ansel Wood sought to review certain association records including the "unapproved minutes of the most recent meeting" of the Association membership. Mr. Wood and the Association manager set an appointment for February 26, 2003, to review the requested records. At the appointed time, Mr. Wood received access to some of the requested records, but not to the "unapproved minutes of the most recent meeting." At the time of the review by Mr. Wood, the meeting minutes had not been typed. The meeting referenced in Mr. Wood's letter of request occurred in January 2003. The evidence establishes that the requested minutes of the January 2003 meeting were not provided within five working days of the Respondent's receipt of Mr. Wood's request. Mr. Wood sold his unit sometime in May 2003. The minutes of the meeting were not typed until June 4, 2003. Mr. Wood did not receive access to the meeting minutes prior to the sale of his unit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums, and Mobile Homes, enter a Final Order finding that the Respondent has violated Subsection 718.111(12)(b), Florida Statutes (2003), as set forth herein and assessing a penalty of $7,500. DONE AND ENTERED this 16th day of February, 2004, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 16th day of February, 2004. COPIES FURNISHED: Joseph S. Garwood, Esquire Department of Business and Professional Regulation The Augusta Building, Suite 100 8685 Northwest 53rd Terrace Miami, Florida 33166 Robert L. Taylor, Esquire Taylor & Carls, P.A. 850 Concourse Parkway, South Suite 105 Maitland, Florida 32751 Nancy Campiglia, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Ross Fleetwood, Division Director Division of Florida Land Sales, Condominiums, and Mobile Homes Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
