Findings Of Fact Barkwood Square Condominium was developed by Mr. John Nell (Respondent). The declaration of condominium was filed on May 23, 1980, and transfer of control from Respondent to the condominium association took place at a meeting held on June 30, 1981. At the time of turnover, Bieder Management Company was Respondent's agent for the operation, maintenance and management of Barkwood Square. Bieder was accepted as the association's agent at turnover and continued in this capacity until February, 1982. No documents were produced at the transfer meeting, and all records and accounts then in existence remained in the hands of Bieder. In February, 1982, the condominium association became dissatisfied with Bieder and replaced it with Hotz Management Company. The records turned over to Hotz by Bieder at that time were incomplete, and the association then sought the assistance of Petitioner to obtain complete records and a financial accounting. Through its investigation in 1982, Petitioner and the condominium association obtained all records available. The testimony of Petitioner's investigator and two of the unit owners (who are also condominium association directors) established that no review of the financial records of the association had ever been conducted by an independent certified public accountant (CPA). The testimony of the unit owners-directors established that Respondent had not delivered any of the following items to the association within 60 days of turnover: Original or certified copy of the declaration of condominium. A certified copy of the articles of incorporation of the association. A copy of the bylaws. Minutes of association meetings. Resignation of officers and directors resulting from change of control. The investigation revealed that Respondent owes $4,138.32 in contributions to the condominium association. Respondent concedes that he owes this amount, which is based on common expenses incurred in excess of assessments to unit owners between July and October, 1980. Respondent paid certain association expenses with personal funds and was later reimbursed. Respondent concedes this procedure was not in keeping with good accounting practices. Respondent also failed to keep or turn over to the association the financial records pertaining to the period when he did not employ a management agent.
Recommendation Based on the foregoing, it is RECOMMENDED that Petitioner enter a Final Order directing Respondent to take the corrective action discussed herein as authorized by Subsection 718.501(1)(d)(2), F.S., and assessing a civil fine in the amount of $1,500 as authorized by Subsection 718.501(1)(d)4, F.S. DONE and ENTERED this 27th day of July, 1983, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of July, 1983. COPIES FURNISHED: Helen C. Ellis, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 N. Staten Bitting, Jr., Esquire 3835 Central Avenue Post Office Box 15339 St. Petersburg, Florida 33733 E. James Kearney, Director Division of Florida Land Sales and Condominiums Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Gary R. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue The issue to be resolved concerns whether the Petitioner was the victim of a discriminatory housing practice, by allegedly being denied the opportunity to rent an apartment from the Respondents, and by being falsely informed of its non- availability, based upon her race.
Findings Of Fact The Petitioner is an African-American female. In early January 2007, she learned of an apartment for rent, owned or managed by the Respondents. She called to inquire about the apartment and was told by the Respondent, Ms. Lindsay, that the rent would be $625.00 per month, with a one-month rent amount and security deposit due in advance. She was told that the Lessee of a neighboring apartment, Clint Cook, would have a key and would show her the apartment. She went to view the apartment, and decided that she wished to rent it. She then telephoned Ms. Lindsay, and Ms. Lindsey faxed an application to her to complete. In the conversation, she told Ms. Lindsay she would not have the required deposit money until Friday. This was on a Monday or Tuesday. Ms. Lindsay then told her securing the apartment was on a “first come-first-served” basis. The Petitioner never completed the application and never tendered the security deposit. Shortly after that telephone conversation, Ms. Lindsay was contacted by Stacey Edwards, while the apartment was still available for rent, concerning rental. Ms. Edwards, on behalf of herself and her boyfriend/husband, submitted an application to rent the apartment, together with the appropriate required deposit and rental amount on January 15, 2007. Ms. Lindsay leased the apartment to the couple. They had a planned move-in date of February 1, 2007. They are a mixed-race couple, and Ms. Lindsay was aware of that fact when renting to them. Sometime after January 15, 2007, the Petitioner called Ms. Lindsay a second time, and was told that the apartment had been rented (to the Edwards couple) and was no longer available. Testimony to this effect is corroborated by the Edwards rental application and deposit receipt, which are in evidence. The Edwards rental was documented on January 15, 2007. Later that month, the Petitioner noticed the “for rent" sign displayed, or displayed again, and she and/or her witness, Lynn Kliesch, called about the apartment’s availability. Ms. Lindsay again stated that it was rented. Indeed, it was, to the Edwards. The rental sign had been left up because the Edwards couple were not scheduled to move in until February 1, 2007. This communication between the parties occurred before Ms. Edwards informed Ms. Lindsay that they would not be moving in. Shortly before February 1,2007. Ms Edwards and her husband/boyfriend learned that his employment had ended (or he was transferred to another job location). They therefore informed Ms. Lindsay that they had to re-locate to South Florida and could not take the apartment. She charged them for the two weeks of rental, and refunded their deposit. She then placed the apartment back on the rental market. On January 31, 2007, Ms. Mari Ferguson inquired of Ms. Lindsay about the apartment’s availability. This was after Ms. Edwards had informed Ms. Lindsay that she would not be renting the apartment. Ms. Lindsay told Ms. Ferguson that the property was available and she rented it to Ms. Ferguson that same day. Ms. Ferguson and her boyfriend, who occupied the apartment with her, were also a mixed-race couple, with children. In fact, the boyfriend is the nephew of the Petitioner herein. Ms. Ferguson and family moved into the apartment. Some months later a hostile situation arose between the Respondents and Ms. Ferguson. Ms. Lindsay apparently received reports that “drug dealing” was occurring in the apartment. Ms. Ferguson and/or the other occupants were responsible for some damage, and Ms. Ferguson became several months behind on rental payments. The Respondents therefore, through legal process, had her evicted. The Respondent, Ms. Lindsay, through her firm, Elite Properties of Northwest Florida, Inc., manages some 37 rental properties in Escambia and Santa Rosa Counties. She is the president and broker for the firm and has no employees or agents. Among the rental property owners she and her firm represent is her Co-Respondent, Michael Houser. Both Ms. Lindsay and Elite Properties, as well as Mr. Houser, have a significant number of minority tenants, both Hispanic and African-American. A substantial number of those, both historically, and at the time of the hearing are single, African-American females, as heads of households. There is no evidence, aside from the Petitioner’s unsubstantiated opinion, that either the Respondent has ever refused to rent to the Petitioner or anyone else, based upon race, nor that they have falsely denied availability of a dwelling for rent or sale for that reason. There is no evidence that they have refused or attempted to avoid holding out a property for rent or sale for reasons based on racial animus.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations, determining that the Respondents did not commit a discriminatory housing practice based upon the Petitioner's race and that the Petition be dismissed in its entirety. DONE AND ENTERED this 16th day of April, 2009, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 April, 2009. COPIES FURNISHED: Sylvia Mims 3382 Greenbriar Circle, Apt. B Gulf Breeze, Florida 32561 Beverly Lindsay 5252 Springdale Drive Milton, Florida 32570 Michael Houser 3533 Edinburgh Drive Pace, Florida 32571 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Respondent A.R.M. Limited, Inc., is the developer of the residential condominium known as Trails at Royal Palm Beach, a phase condominium containing a total number of 230 units when completed, located in Royal Palm Beach, Florida. During 1981 Respondent submitted to Petitioner all documents required to properly register the condominium, including the Declaration of Condominium and the Contract for Sale. By letter dated June 16, 1981, Petitioner notified Respondent that the documents it had received were in acceptable form and that Respondent would soon be advised as to the results of the Petitioner's "content examination". By letter dated July 14, 1981, Petitioner notified Respondent that it had completed its examination, and the condominium documents were proper. On April 27, 1982, Respondent recorded the Declaration of Condominium for Phases I and II in the public records in Palm Beach County. The Offering Circular, the Declaration of Condominium, and the Contract for Sale contained a developer's guarantee of common expenses for a two-year period commencing with the recording of the Declaration of Condominium and guaranteeing that the unit owners' monthly assessment would not exceed $75 a month for the period of the guarantee. Accordingly, the initial guarantee period terminated April 27, 1984. Thereafter, the guarantee period was extended by the developer until April 27, 1985, and again until December 31, 1985. No evidence was offered to show that any unit owner objected to the extension of the guarantee period. However, no vote of the unit owners was taken regarding either of the two extensions, and no written agreement was obtained. During the period of time between the initial guarantee period and January 1, 1986, Respondent did not pay assessments on a regular basis but instead paid the difference between the association's expenses and income. In other words, the developer did fund all shortfalls through December 31, 1985. The Offering Circular approved by Petitioner in 1981 contained a copy of the Contract for Sale which was to be used, and in fact has been used, for the condominiums units. That Contract specifically provides for purchasers to pay an initial contribution to working capital in the amount of "$300 . . . which may be used by the Association for start-up expenses as well as ordinary expenses . . . " Pursuant to that contract, Respondent utilized start-up funds to off set common expenses of the condominium arising from the sale of 28 units between April 27, 1984 and April 27, 1985. Fourteen of those units were sold between April 27, 1984 and October 1, 1984, and 14 of those units were sold between October 1, 1984 and April 27, 1985. In a phase condominium, since the total number of units within the condominium increases as phases are added, the number of unit owners paying assessments for common expenses increases and, consequently the percentage of ownership of the common elements and percentage of common expenses liability changes per unit. When Respondent registered the condominium with Petitioner in 1981 Respondent filed all documents necessary for the entire project (including all phases) but only paid the filing fee related to Phases I and II at that time. As Respondent continued developing the condominium and selling additional units in subsequently-constructed phases, appropriate amendments to the original Declaration were recorded in the public records. Respondent, however, failed to file copies of those recorded amendments with Petitioner. By cover letter dated March 3, 1986, Respondent filed with Petitioner a developer's filing statement for subsequent phases and enclosed a check in the amount of $940 to cover filing fee requirements. According to an attachment to that filing, Respondent was filing Phases 900, 1000, 1100, 1200, 1300, 1400, 2000, 2100, 2200, 2400, and 2500, which in totality comprised 94 units. According to the same attachment, these Phases were added to the condominium through recordation of amendments to the original Declaration with such recordation occurring between 1983 and 1986. According to information submitted by Respondent to Petitioner, as of March 3, 1986, closings had taken place on 77 units in Phases 900, 1000, 1100, 1200, 1300, 1400, 2100, 2400, and 2500 prior to Respondent's filing the subsequent phase documents with Petitioner. There is no allegation that the documents when filed were improper or that Respondent failed to provide them to the unit owners at the time they were executed. In January of 1988 unit owners other than the developer elected a majority of the board of administration of the condominium association, and turnover of control of the association from developer control to control by unit owners other than the developer occurred.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it Is'; RECOMMENDED that a Final Order be entered: Finding Respondent guilty of the allegation contained within count one; Finding Respondent not guilty of the allegations contained within counts two and three of the Notice to Show Cause; Requiring Respondent to effectuate the financial review discussed in the Conclusions of Law section of this Recommended Order and pay to the condominium association any amount of unpaid assessments for the time period in question; and Assessing a fine against Respondent in the amount of $1000. DONE and RECOMMENDED this 20th day of May, 1988, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 1988. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 87-2917 Petitioner's proposed findings of fact numbered 1, 3, 5, 7, the first sentence of 9, the third sentence of 15, and 16-20 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 8 has been rejected as being immaterial to the issues under consideration herein. Petitioner's proposed findings of fact numbered 2, 4, 6, 9 except for the first sentence, 10-14, and 15 except for the third sentence have been rejected as not constituting findings of fact but rather as constituting conclusions of law, argument of counsel or recitations of the testimony. COPIES FURNISHED: Van B. Poole, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Karl M. Scheuerman, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 A.R.M. Limited, Inc. Trails at Royal Palm Beach Suite 315 1300 North Florida Mango Road West Palm Beach, Florida 33409 Dennis Powers, Esquire Suite 315 1300 North Florida Mango Road West Palm Beach, Florida 33409
The Issue The issue in this case is whether the Respondent committed an unlawful housing practice by discriminating against the Petitioner on the basis of race, in violation of the Florida Fair Housing Act, sections 760.20 through 760.37, Florida Statutes.
Findings Of Fact Petitioner, Dr. Rubye Johnson, is an African-American woman and, thus, is a member of a class protected under the Florida Fair Housing Act, sections 760.20 through 760.37, Florida Statutes. Respondent, Canongate Condominium Apartments No. One, Inc., is the condominium association responsible for operation of the Canongate Condominium Apartments No. One ("Canongate"). Petitioner is a resident of Canongate and currently resides in Unit 201. She previously owned and lived in Canongate Unit 207, the unit at issue in this proceeding.3 She no longer owns Unit 207. Petitioner could not recall precisely when she became a resident of Canongate.4 She testified that when she became a resident of Canongate she was a renter, and she rented Unit 207. The evidence indicates that she likely moved into Unit 207 sometime before February 4, 2000. On February 4, 2000, the Association voted to amend Canongate's Declaration of Condominium, Article VII, Paragraph G, Section i. This amendment (the "2000 Amendment") prohibits the leasing or rental of units in Canongate. Existing leases and tenants as of the amendment's effective date were grandfathered for the balance of the lease term; however, no lease extensions or renewals were allowed. Institutional mortgagees' existing rights under the Declaration of Condominium were expressly preserved. At some point after Petitioner began renting Unit 207, the unit owner told her that due to the 2000 Amendment, she either would have to purchase the unit or move out in five years' time. The owner told her he thought the 2000 Amendment was approved because Respondent's Board of Directors ("Board") did not want any more black residents in the building.5 Petitioner purchased Unit 207 in or about 2004. When she purchased the unit, she was aware of the 2000 Amendment. She acknowledged that the 2000 Amendment prohibits the leasing or rental of units in Canongate without regard to race or gender. Petitioner testified that when she came home one day, Laura Ochacher, who had owned Unit 210, approached her about renting one of her units. Ms. Ochacher told Petitioner that Unit 210 was the subject of foreclosure and that her family was being evicted. Petitioner saw the eviction notice. Ms. Ochacher told Petitioner that Canongate property manager Marsha Allen had found a company to purchase Unit 210, and that the company had allowed them to remain in and rent Unit 210. Through examining a document printed out from the Miami-Dade County Property Appraiser's Office website, Petitioner learned that Lansdowne Real Estate Holdings, LLC ("Lansdowne") owned Unit 210. From this information, Petitioner surmised that Lansdowne had purchased Unit 210 and rented it to the Ochachers. She believed that Ms. Allen and the Board were complicit in what she viewed as a rental arrangement that violated the 2000 Amendment. Her belief was based on her knowledge of the screening and approval process entailed in purchasing a unit in Canongate. Petitioner did not independently investigate the matters that Ms. Ochacher relayed to her. She did not ask Ms. Allen whether she had found a company to purchase Unit 210; whether Unit 210 was, in fact, being rented; or whether she or the Board knew of and allowed rental of the unit. Petitioner understood Lansdowne to be a land company that bought and sold land on a large scale. She did not know whether Lansdowne is white, black, or of any other race. Petitioner also heard rumors from other Canongate residents that other units were being rented. She identified these units as 618, 520, 602, 105, 309, 106, 115, 120, 315, 515, 313, 410, 430, 503, 514, "and perhaps more." She did not identify who told her about these units, nor did she independently investigate whether the units were, in fact, being rented. Following her discussion with Ms. Ochacher, Petitioner decided to ask the Board whether she could rent Unit 207. She sent a communication to the Board, dated April 11, 2009, entitled "Issues and Concerns."6 Item 12 of this communication states: 12. It is rumored that there are renters in the building and that the board of directors are [sic] sanctioning these arrangements. Is this true? If so, under what circumstance would the board of director's [sic] sanctions [sic] renters in the building? If not, do you have a clue how this perception has been generated? Petitioner's testimony regarding whether she had actually requested permission from the Board to rent her unit was inconsistent. In her deposition, she testified that she viewed the statement in Item 12 as a request to rent Unit 207, but conceded that the request was "implied." At the final hearing, she acknowledged that her statement in Item 12 did not constitute a specific request, but stated that she previously had sent letters asking to rent the unit. She was unable to recall any specific letters she sent, when she sent them, or to whom the letters were sent. No such letters were proffered or admitted into evidence. Petitioner claimed that she had orally asked Ms. Allen and various Board members, on numerous occasions, whether she could rent her unit. However, she could not recall who, other than Ms. Allen, she ostensibly had asked, nor did she recall the substance or details of such conversations. Petitioner testified that, "by the way they acted," she knew she was not allowed to rent her unit. She stated that she also had been informed, orally and in writing, that she could not rent her unit. However, she could not recall who informed her, or any details of those discussions. She did not provide any evidence of written refusal to allow her to rent her unit. Petitioner testified that she had discussed with Marsha Allen her concern that white unit owners were allowed to rent their units, while she was not. She acknowledged that no one had ever told her she was not allowed to rent her unit because she is black. Canongate property manager Marsha Allen testified on behalf of Respondent. Ms. Allen's duties as property manager include overseeing the day-to-day operation of Canongate, reporting to the Board, and serving as Respondent's records custodian. Ms. Allen testified that rental of units in Canongate is prohibited under the 2000 Amendment. She testified that neither she nor the Board have allowed Canongate owners to rent their units, and that whenever owners have asked, they have been denied permission because of the rental prohibition. Ms. Allen testified that none of the units Petitioner identified was, in fact, being rented. Ms. Allen stated that Petitioner never had asked her whether she could rent her unit. She was not aware of Petitioner ever having asked the Board or any Board member whether she could rent her unit. Ms. Allen did not interpret Item 12 of Petitioner's April 11, 2009, communication as constituting a request for permission to rent her unit. Ms. Allen also stated that she never had discussed Canongate's rental policy with Petitioner, and she never had refused a request from Petitioner to rent her unit. She testified that she never had been directed by the Board or any Board member to refuse to allow Petitioner to rent her unit. Ms. Allen testified that Petitioner never had complained to her that she was being discriminated against by not being allowed to rent her unit, while white owners were allowed to rent theirs. Lansdowne sent a letter dated October 30, 2008, to Ms. Allen. The letter asked her to inform the Board that Lansdowne had acquired title to Unit 210 through foreclosure and that they were entering into an agreement with the borrower, Laura Ochacher, to continue her occupancy for 12 months, during which she could redeem the property by paying the foreclosure judgment. The letter stated: "[t]his should not be considered a rental arrangement." The letter explained that Lansdowne had paid the past due assessments for the unit and would pay outstanding legal fees once the Board approved the occupancy agreement. Upon receiving the letter, Ms. Allen reviewed the Canongate Declaration of Condominium, specifically, Article VII, Paragraph H., to ensure that the occupancy agreement for Unit 210 did not violate the 2000 Amendment's rental prohibition. Article VII, Paragraph H., provides that if the mortgagee of a condominium unit subject to an institutional mortgage given as security becomes the owner of the unit, the owner has the unqualified right to sell, lease, or otherwise dispose of the unit. Ms. Allen determined that, based on this provision, the occupancy agreement did not violate the 2000 Amendment. Ms. Allen consulted with Respondent's legal counsel, who independently verified that the occupancy agreement did not violate the 2000 Amendment. Respondent also presented the testimony of Joyce Meade, who has served as Respondent's president since 2008. Ms. Meade's duties as President include enforcing Respondent's condominium documents, overseeing the Board, conducting meetings, and supervising Canongate's property manager. Ms. Meade testified that Petitioner did not ask her for permission to rent her unit. She also testified that, to the best of her knowledge, Petitioner did not ask the Board for permission to rent her unit, and the Board did not specifically refuse. Ms. Meade testified that had Petitioner asked to rent her unit, she would not have been allowed because all rental requests are refused due to the 2000 Amendment. Ms. Meade testified that Petitioner never complained to her that she was being discriminated against because she was not allowed to rent her unit, while white owners were allowed to rent theirs. She also was not aware of any such complaints by Petitioner to the Board. Determinations of Ultimate Fact Petitioner failed to present persuasive evidence that she requested Respondent's permission to rent Unit 207. Petitioner subjectively may have believed that she requested permission in Item 12 of her April 11, 2009, communication, but that item cannot reasonably be read to constitute such a request. Item 12 merely asks if there are renters in Canongate and the circumstances under which the Board would allow renters. No other items in the April 11, 2009, communication constitute a request to rent the unit. Petitioner did not present any evidence that she submitted other written requests to rent her unit, and her testimony that she had orally requested to rent her unit was unpersuasive. Respondent's witnesses credibly testified that Petitioner had never requested, orally or in writing, to rent her unit. Petitioner also failed to establish that her request to rent her unit was refused. Her testimony on this point was unclear, imprecise, and unpersuasive, and she provided no evidence of written refusal to allow her to rent her unit. By contrast, Respondent's witnesses testified unequivocally that they had not refused to allow Petitioner to rent her unit. They also credibly testified that Petitioner never had complained to them that she was refused permission to rent her unit because she is black, while white owners were allowed to rent theirs. Petitioner did not establish that she was qualified and able to rent out her unit. The uncontroverted evidence established that the Canongate Declaration of Condominium prohibits leasing or rental of units. Accordingly, Petitioner could not have been allowed to rent her unit, even if had she asked. Petitioner did not present any competent substantial evidence establishing that Respondent allows similarly situated white unit owners to rent their units, while refusing to allow Petitioner to rent hers. Petitioner's testimony that Lansdowne was a purchaser and that the occupancy agreement for Unit 210 actually constituted a rental arrangement was merely her personal opinion, unsupported by any competent substantial evidence. Respondent showed that Lansdowne is an institutional mortgagee that took title through foreclosure and, therefore, was not similarly situated to Petitioner and the other owners who had purchased their units. Moreover, Petitioner presented no evidence that Lansdowne was white. In sum, there is no competent substantial evidence in the record to support a finding of unlawful housing discrimination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order finding Canongate Condominium Apartments No. One, Inc., not liable for housing discrimination and awarding no relief. DONE AND ENTERED this 9th day of August, 2011, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 9th day of August, 2011.
The Issue The issues in this matter concern an Administrative Complaint/Notice to Show Cause, which has been brought by the Petitioner against the Respondent charging various violations of Chapter 718, Florida Statutes. Those accusations are more completely described in the conclusions of law.
Findings Of Fact The parties in the person of their counsel entered into a written prehearing stipulation, by which certain facts were agreed to. Those facts are as follows: Stipulated Statement of Facts: The Petitioner herein is the State of Florida, Department of Business Regulation, Division of Florida Land Sales and Condominiums. The Respondent in this matter is Sujac Enterprises, Inc., the developer of a residential condominium known as Ginger Park Condominium located in Jacksonville, Florida. Mr. Jackson M. Jobe is the president of the developer corporation. Transition from developer control of the condominium association occurred pursuant to Section 718.301, Florida Statutes, on November 1, 1983. Prior to this date, Respondent Sujac Enterprises, Inc., was in control of the condominium association. On April 18, 1983, The Division received a condominium complaint from unit owner, Cynthia A. Doallas, filed against Sujac Enterprises, developer of the Ginger Park Condominium. The Division investigation file was opened on April 20 and this investigation was assigned to Janice Snover, specialist and investigator. The Declaration of Condominium was recorded March 12, 1982. The condominium association was incorporated February 16, 1982. Section 8.4 of the declaration of condominium provides for an assessment guarantee for so long as the developer shall own any condominium units within the condominium. At the time of this stipulation, the developer still owns at least one condominium unit within the condominium. The developer controlled association failed to maintain the accounting records provided by Section 718.111(7)(a), (b), Florida Statutes, during the period beginning with the incorporation of the association through at least March 1983. Accounting records were assembled after March of 1983. Mr. Phillip DiStefano was elected to the board of administration in March of 1983 in accordance with Section 718.301(1) , which provides that when unit owners other than the developer own 15 percent or more of the units, the unit owners other than the developer shall be entitled to elect no less than one-third of the members of the board of administration. Mr. DiStefano was elected by unit owners other than the developer. The developer through its president instituted recall procedures pursuant to the procedure as outlined in Section 718.112(2)(g), Florida Statutes, against board member Phillip DiStefano, by circulating a form entitled "Removal of Director or Directors." Mr. Jobe solicited signatures for the agreement, and further, voted the developer corporation's unsold unit votes in favor of the recall. Mr. DiStefano was recalled, with a sufficient number of unit owners other than the developer voting in favor of recall to approve the recall. The developer controlled condominium association failed to provide to unit owners a financial statement of actual receipts and expenditures for the fiscal/calendar year ending December 21, 1982, within 60 days of the end of the year. This financial statement was, however, provided to unit owners approximately three months after the 60 day time period provided in Section 718.111(13), Florida Statutes, had elapsed. The following additional facts are found based upon the presentation made at the final hearing: At the point of the final hearing, the developer still owned a condominium unit within the condominium. The developer had allowed other persons to take charge of the accounting procedures of the condominium association from the inception of the association through March 1983. Those other persons operated on the basis of a checkbook in which check stubs were maintained and deposit slips kept. Some invoices were also maintained. These records, in addition to not being maintained by the developer when the developer was serving as the association in this period through March 1983, were not in accordance with good accounting practices. Moreover, they did not contain an account for each unit, designating the name and current mailing address for the unit owner, with the amount of each assessment, the dates and the amounts in which the assessments came due and the amount paid upon these individual accounts, with the balance due being reflected. As revealed by an audit which the developer had requested of an accountant which it hired, this audit dating from June 7, 1983, there was a deficit in the reserve account on that date. This discovery was made prior to the transfer of the accounting records from the developer to other condominium unit owners. In effect, on June 7, 1983, the reserve account for capital expenditures and maintenance was insufficiently funded. The exact amount of deficit was not shown in the course of the hearing. Therefore, it has not been demonstrated that the deficit of June 7, 1983, corresponds to the deficit in the reserve account in the amount of $1,186.18, effective December 31, 1983 as found by Petitioner's accountant. Respondent in its efforts to refute responsibility for the reserve deficit has failed to demonstrate, by way of defense, that charges incurred on behalf of other condominium unit owners should reduce the developer's deficit responsibility. This pertains to its reference to prepaid insurance, pest control and construction costs related to a fence. The reserve account for capital expenditures and maintenance is a common expense. The developer, pursuant to Section 8.4 of the declaration of condominium is responsible for the deficit in the reserve account as reflected on June 7, 1983, in keeping with the assessment guarantee set forth in that section. That guarantee continued until the account was tranferred to the other condominium unit owners. Features of the aforementioned guarantee related to responsibility to insure against additional assessments attributable to deficits other than those in the reserve account, i.e. for other forms of common expenses, developer's share, only would occur at the point of sale of the last condominium unit. That contingency had not occurred at the time of the conduct of the final hearing. The developer kept the accounting records from April 1983 until June 1983. Subsequently when the records were turned over to the other condominium unit owners as a part of the transition of association control, the developer failed to have a transitional review conducted by an independent accountant related to financial records of the association.
Recommendation It is recommended that a final order be entered which imposes a penalty in the amount of $2,500 for those violations established pertaining to Count I, IV and V and that Counts II and III be dismissed. DONE AND ORDERED this 3rd day of July 1984, in Tallahassee, Florida. CHARLES C. ADAMS 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 July, 1984. COPIES FURNISHED: Karl M. Scheuerman, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Jerry A. Funk, Esquire 1020 Atlantic Bank Building Jacksonville, Florida 32202 E. James Kearney, Director Division of Land Sales and Condominiums The Johns Building 725 South Bronough Street Tallahassee, Florida 32301 Gary Rutledge, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32301 =================================================================
Findings Of Fact The following findings of fact are made upon the stipulation of the parties in the Prehearing Stipulation and in the course of the hearing: Respondents are developers of a condominium as defined by Section 718.103(14), Florida Statutes. Respondents are developers of The Somerset, a condominium located in Naples, Florida. The declaration of condominium for The Somerset was recorded in the public records of Collier County on or about August 27, 1979. No turnover review as prescribed by Section 718.301(4)(c), Florida Statutes (1985), was provided by the developer to the association within 60 days after the date of transfer of control of the association to non-developer unit owners, or has yet been provided to the association. On or about January 29, 1985, unit owners other than the developer had elected a majority of the members of the board of administration for The Somerset condominium. Letters of annual financial reports of actual receipts and expenditures were not furnished to unit owners following the end of the calendar years 1980, 1981, 1982, 1983, and 1984. No vote of the unit owners was taken to waive reserve accounts for capital expenditures and deferred maintenance for each of the years 1980, 1981, 1982, 1983 and 1984. The following findings of fact are made upon the evidence adduced at hearing. The turnover review and report mandated by Section 718.301(4)(c), Florida Statutes, must be prepared by a certified public accountant. Respondents sought the necessary review from the firm of Rogers, Hill and Moon, which had done the association's accounting prior to the turnover. However, Rogers- Hill was unable to perform the review in the required time. Respondents consulted with two other accounting firms, but neither could provide the turnover report. Respondents suggested to the President of the association that they would pay $1,000 to the association in lieu of the turnover report. The association accepted the offer. Respondents paid $1,000 to the association and gave the association all of Respondents' books, ledgers and receipts. Respondents did not promulgate and mail to unit owners proposed budgets of common expenses for the fiscal years 1982, 1983 and 1984. Respondents guaranteed that the assessments for common expenses imposed upon each unit owner would not exceed $75.00 per month from the date of recording the declaration of condominium until the date of turnover of control of the association. There were no meetings of unit owners of The Somerset condominium until time of the turnover. According to the original proposed budget, the items designated as reserve items were roof replacement, resurfacing, and painting. While Respondents maintain that they properly waived the funding of the reserve account for 1980, 1981, 1982, 1983, and 1984, the only evidence offered to support their testimony is the minutes of the annual meeting for each year. However, the credibility of these documents is suspect. The minutes were admittedly all prepared by Respondents in 1985, well after the supposed annual meetings. For the years 1982, 1983 and 1984, David Davis II was a director. His name appears on the minutes as offered by Respondents. Yet, Davis says he did not attend an annual director's meeting in those 3 years. Davis also says that he never attended a director's meeting at which the funding of reserves was waived. In fact, Davis never attended a director's meeting at which a proposed budget was adopted. The minutes are inherently unreliable because they were created much later in time and appear to directly conflict with the testimony of Davis. The minutes are also self-serving. Accordingly, it is found that Respondents did not properly waive the funding of the reserve account for the years 1980, 1981, 1982, 1983, and 1984. Respondents never disclosed to the unit owners that reserves were not funded. The reserve liability is $8,890.00, calculated at $8.75 per month per unit in Phase I (eight units) from August 31, 1979, and in Phase II (12 units) from November 13, 1981, plus all twenty units for the first quarter of 1985. The original budget allocates $8.75 of the assessments to reserves and the original documents (Section 8.2) specify that assessments are to be paid quarterly on January 1, April 1, July 1, and October 1. Since the turnover occurred on January 29, 1985, the assessments for the first quarter had already been paid to Respondents. Respondents expended money for reserve-type expenses. Their Exhibit 5 shows reserve-type expenditures totalling $8,164.78. However, certain of these expenditures do not qualify as reserve-type expenses and must be excluded. Specifically, payments of $485.00 to David Chalfant for repairs to leaking windows, of $560.00 to Roy Hutchinson for repairs to doors which rotted out from the rain, and of $470 Bayside Sandblasting to repair steel doors and to sandblast stains on the sidewalk, are not reserve items (roof replacement, resurfacing and painting). Therefore, Respondents established that they paid $6,649.78 for reserve-type expenses. Petitioner argues that other items should be eliminated because they are not reserve-type expenses or because they were paid after turnover. These arguments are rejected and it is found that $6,649.78 for reserve-type expenses is accurate and should be offset against the reserve liability. Respondents owe the Association $2,240.22 in reserve funds. Paragraph 8.3 of the declaration of condominium for The Somerset provides: The Board shall, in accordance with Bylaws of the Association, establish an annual budget in advance for each fiscal year, which shall correspond to the calendar year, which shall estimate all expenses for the forthcoming year required for the proper operation, management and maintenance of the condominium. . . . Upon adoption of each annual budget by the Board, copies thereof shall be delivered to each unit owner, and the assessment for each year shall be based upon such budget. . . The unit owners were not notified of any Board of Directors meeting at which a proposed annual budget would be considered or adopted. Further no unit owner received copies of proposed annual budgets, except for the budget set forth in the prospectus with the original condominium documents. In fact, no formal meeting of the Board was held to adopt an annual budget.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business Regulation, Division of Florida Land Sales, Condominium and Mobile Homes, enter a Final Order and therein order Respondents to take the following actions: Obtain and furnish to the Association a turnover review as required by Section 718.301(4)(c), Florida Statutes (1985). Pay to the Association the sum of $2,240.22 for Respondents' liability for reserves. Pay to the Petitioner a civil penalty of $5,000.00, pursuant to Section 718.501(1)(d)4, Florida Statutes. DONE and ORDERED this 10th day of December, 1986, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of December, 1986.
The Issue The issue in this case is whether Respondent condominium association properly assessed unit owners for common expenses based on their respective proportionate shares of such expenses as set forth in the declaration of condominium.
Findings Of Fact Respondent Eden Isles Condominium Association, Inc. ("Association") is the entity responsible for operating the common elements of the Eden Isles Condominium ("Condominium"). As such, the Association is subject to the regulatory jurisdiction of Petitioner Division of Florida Land Sales, Condominiums, and Mobile Homes ("Division"). The Condominium was created——and continues to be governed by——a Declaration of Condominium ("Declaration"), which has been amended at least once during the Condominium's existence. The Condominium comprises seven identical buildings. Each four-story building contains 52 units. Each unit is laid out according to one of three different floor plans. The Declaration prescribes each unit's proportionate share (expressed as a percentage, e.g. 2.16%, 2.08%, 1.64%, etc.) of the common expenses. These percentages are used to calculate the amounts assessed against each respective unit to collect the funds needed to pay common expenses. For reasons not revealed at hearing, the Declaration——at least in its original form——established a separate and unique schedule of percentages for each building in the Condominium, with the result that similarly situated owners (i.e. those whose units had the same floor plan and comparable locations) did not necessarily pay the same proportionate share of the common expenses. Not surprisingly, owners who were compelled to contribute more toward the common expenses than their similarly situated neighbors were wont to complain about the seeming unfairness of this. Some time in 2004 the Association's governing Board of Directors ("Board") was made aware of an amendment to the Declaration, which, among other things, had revised the appendix that specified each unit's proportionate share of the common expenses. Due to an absence of evidence, the undersigned cannot determine when this amendment took effect, yet neither its existence (a copy is in evidence) nor its authenticity is in doubt. There is, further, no evidence explaining why the Board had not previously been familiar with the amendment, but——for whatever reason(s)——it was not. After deliberating over the meaning and import of the amendment, the Board voted, during an open meeting, to construe the amendment as providing for the assessment of common expenses against all units in the Condominium according to the percentages assigned to the units located in "Building G," which was the last of the buildings in the Condominium to be completed. In other words, the Board interpreted the amendment as requiring that all similarly situated unit owners be assessed the same amount for common expenses, using only the most recent proportionate shares. Consequently, starting in 2005, the Association assessed unit owners for common expenses pursuant to the Board's interpretation of the amendment. While this course of action evidently pleased most residents, someone complained to the Division about the change. The Division investigated. Based on its own understanding of the amendment, which differs from the Board's, the Division determined that the Association was not properly assessing the unit owners; accordingly, it demanded that the Association remedy the situation. Under pressure from the Division, which was threatening to impose penalties against the Association for noncompliance with the Division's directives, and for some other reasons not relevant here, the Board eventually decided to "revert back" to the original proportionate shares, beginning in 2006. The Board continues to believe, however, that its interpretation of the amendment (as requiring similarly situated owners to be assessed at the same percentage) is correct.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division enter a final order rescinding the Notice to Show Cause and exonerating the Association of the charge of failing to assess for common expenses in the appropriate percentages as set forth in the Declaration, as amended. DONE AND ENTERED this 11th day of May, 2007, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 2007.
Findings Of Fact At all times relevant to this case, the Respondent, Pebble Springs Condominium Association of Bradenton, Inc., was the condominium association for Pebble Springs Condominium VI in Bradenton, Florida. Matthew Ford is and, at all times relevant to this complaint, was a unit owner at Pebble Springs Condominium VI and a member of the condominium association. Matthew Ford requested to inspect the Respondent's records, hereafter described in paragraph 4 and referred to as Exhibits A and B, which were prepared and provided by the law firm of Becker, Poliakoff and Streitfeld, P.A., to the Respondent as a bill for legal services rendered in the Respondent's suit against Ford. At the time that Ford made his request for Inspection of the Respondent's records pursuant to Section 718.111(7), Florida Statutes, he was the defendant in a circuit court lawsuit in which the Respondent was plaintiff. Said court case is currently on appeal. Joint Exhibits A and B constitute the entirety of said law firm's bill to the Respondent. Joint Exhibit B describes each instance of attorney's service to the Respondent and the amount of time attributed to said service. The parties stipulate that the information contained in the document sought by Ford is the same as that reported in Exhibit B. The data in Exhibit B is reported in four columns, as follows: date, attorney, time, and actions. The information listed under "actions" includes the following listings: (03/14/83) Telephone conversation with bank officers and association officers re unfreezing of association funds. (03/14/83) Preparation for meeting with board members and witnesses; preparation of counterclaim. (03/14/83) Research concerning mandamus and other injunctive relief; preparation of counterclaim. (03/15/83) . . . preparation of counterclaim and motions to strike. (03/16/83) Preparation of counter-claim; . . . filing of counterclaim and coordination of service. (04/06/83) Preparation of motion to dismiss or for more definite statement and motion to strike on behalf of firm and Daniel J. Lobeck. (04/07/83) Memorandum to Alan E. Tannenbaum re Murley contempt of court order. (04/08/83) Receipt and review of motion to dismiss filed on behalf of board by insurance counsel; . . . (04/12/83) Preparation of motion to hold [deleted in exhibit] in contempt. (04/13/53) Correspondence to auto owners; correspondence to [deleted]; amendment of motion for contempt; setting of contempt hearing. (04/15/83) Review of motion to appoint special master and notice of bearing; telephone conference with Alan Tannenbaum re same. (04/18/83) Conference with Daniel J. Lobeck re: motion to appoint receiver. (04/19/83) Preparation of proposed order dismissing motion to appoint special master; research and preparation for hearing on motion; hearing on motion; telephone conferences with clients re hearing and order. Ford's request as to Joint Exhibit B was refused by the Respondent, which did provide him with Joint Exhibit A which states the sum due for legal services together with stated costs and total balance due. The Respondent also provided for Ford's inspection the Respondent's ledgers and checkbooks, which displayed the sums paid each month by the Respondent to the law firm. In the course of the litigation between the Respondent and Ford, Ford sought the production of documents from the Respondent as evidenced by Exhibit C. In the context of the hearing for attorney fees in the litigation between the Respondent and Ford, the Respondent has offered to provide Ford with the information which he had previously sought. During March or April 1983, Ford filed a complaint with the Petitioner alleging that he was being denied access to the Respondent's books and records contrary to Section 718.111(7), Florida Statutes. The Petitioner conducted an investigation of Ford's complaint, which resulted in the issuance by the Petitioner of a Notice to Show Cause to the Respondent issued May 9, 1983. The Respondent requested a formal hearing by petition dated June 1, 1983, which request was granted.
Recommendation Having found the Respondent not guilty of the allegations contained in the Administrative Complaint, it is recommended that the Administrative Complaint filed against Respondent be dismissed. DONE and RECOMMENDED this 5th day of March, 1984, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 5th day of March, 1984. COPIES FURNISHED: Karl M. Scheuerman, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Daniel J. Lobeck, Esquire 1343 Main Street, Suite 204 Sarasota, Florida 33577 Gary Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact Respondent, Camino Real Village, is the joint venture and developer of a sixty-four unit condominium project known as Camino Real Village V (project) in Boca Raton, Florida. The project consists of two buildings (5751 and 5801) with thirty-two units each. Respondent, B&S Ventures, Inc. (B&S), a Florida corporation, is a partner in the joint venture. The other partner, Middlesex Development Corporation, a California corporation, was not named a respondent in this cause. Although the development consists of at least four separate condominium projects known as Camino Real Villages II, III, IV and V, only Camino Real Village V is in issue in this proceeding. Respondents, as the developer and partner of the joint venture, are subject to the regulatory requirements of petitioner, Department of Business Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes (Division). They are charged with violating various provisions of Chapter 718, Florida Statutes (1985), as set forth in greater detail in the Division's notice to show cause issued on July 17, 1986. The Camino Real project is considered to be a multi-condominium project. This means the development includes more than one condominium project but that all are operated by a common association. The parties agree that the project is not a phase condominium project. Under Division rules and applicable statutes, the developer of a multi-condominium project is required to file with the Division a set of "creating" documents at the inception of the project. The creating documents include, among other things, a prospectus, declaration of condominium, plans and survey, legal description, percentages of common ownership, surplus and expenses, articles of incorporation, by- laws, site plan, restrictions (if any), and the estimated operating budget for the first year. Such documents must be submitted for each condominium within the project. However, where the documents are identical to those submitted for another condominium, the developer may file a "certificate of identical documents" wherein the developer certifies that all disclosure items are identical with items for another condominium within the project which has been previously filed with the Division. After the creating documents are filed, the developer must thereafter file additional documents as new condominiums are constructed and completed. This is generally accomplished by filing an amendment to the original declaration for condominium. The amendment includes a surveyor's certificate attesting that the construction on the project has been completed. The purpose of the later filing is to inform the Division that construction on the new condominium has been substantially completed. On an undisclosed date in 1979, respondents filed their creating documents for certain condominiums in Camino Real Village. On November 19, 1980, they submitted their filing for the creation of Camino Real Village V. These documents were accepted as to "form" on December 11, 1980. They included a certificate of identical document signed by B&S' president which certified certain documents were identical to those previously submitted for Camino Real Village IV, a legal description of the property on which the condominium sits, sketches of the types of units to be built, a typical floor plan for Buildings 5751 and 5801, an estimated operating budget based on sixty-four units and common ownership percentages for each unit in the two buildings. Under Division requirements and state law, the documents should have contained a statement reflecting that the condominium was not substantially completed. 3/ However, they did not, and this omission was not detected by the Division when it reviewed and approved the initial filing. On October 23, 1984 respondents filed the declaration of condominium for Camino Real Village V in the local public records. The documents have been received in evidence as petitioner's composite exhibit 1. They reflected that the percentage of ownership in the common elements for both buildings equaled one hundred percent. Section 3(b) of the declaration provided for the creation of a condominium consisting of two buildings (5751 and 5801) containing thirty- two units each. The documents included a surveyor's certification that Building 5751 was substantially completed. However, as to Building 5801, which was not completed at that time, no statement reflecting its state of completion was filed. It is also noted that the declaration was not filed with the Division as required by law, and the Division did not learn of its existence until sometime later. Since the filing of the declaration, respondents have operated Camino Real Village V as a condominium. On October 23, 1984, respondents executed the closing documents on the sale of the first unit (Unit No. 106 in Building 5751) in Camino Real Village V. The warranty deed was later recorded in the local public records on November 1, 1984, and it is found this is the appropriate date on which the sale of the first unit occurred. This is consistent with the standard practice of parties executing documents prior to closing but not considering a unit sold until the money is actually transferred from the buyer to the seller. This date is significant since it may bear directly upon the date when the developer must begin paying common expenses on developer-owned units. On or about October 24, 1985 a "First Amendment to the Declaration of Camino Real Village V" was recorded by respondents in the local public records. It amended the declaration previously executed on October 23, 1984 and included, among other things, a surveyor's certificate reflecting that Building 5801 had been substantially completed. It also attempted to submit Building 5801 to condominium ownership. Although the amendment and attached documents should have been filed with the Division, respondents neglected to do so. The Division first learned that the documents existed during the course of this proceeding. According to paragraph 15 of the declaration, common expenses can only be assessed by the Association against "each condominium parcel." A condominium parcel is defined in paragraph 4(c) as "the condominium unit, together with an undivided share in the common elements appurtenant thereto." A condominium unit in turn is defined in paragraph 4(a) as "the unit being a unit of space, designated 'condominium unit' on the sketch of survey and plans attached hereto and marked as Exhibit B." The latter exhibit, which is attached to the declaration, contains the plans and survey of the project, the surveyor's certification of substantial completion, and a graphic description of each finished unit within the project. Therefore, the above definitions evidenced an intent that common expenses could be assessed only against completed units. Pursuant to Subsections 718.116(1) and (8), Florida Statutes (1985), a developer is responsible for paying his pro- rata share of common expenses on all developer-owned units. The same law permits the declaration to provide that the developer is relieved of this per-unit obligation until the expiration of a ninety-day period after the first unit is sold. In this case, the declaration had such a provision in paragraph 14. It provided in part as follows: . . . for such time as the Developer continues to be a Unit Owner, but not exceeding ninety (90) days subsequent to the closing of the first condominium unit, the Developer shall only be required to contribute such sums to the common expenses of the Condominium, in addition to the total monthly common expense assessments paid by all other Unit Owners, as may be required for the Condominium Association to maintain the condominium as provided in said Declaration of Exhibits . . . Developer hereby reserves the option to guarantee the level of assessments to unit owners for a specified time interval and thereby limit its obligations to contribute to condominium maintenance in accordance with the provisions of Chapter 718.116(8), Florida Statutes. The parties agree that the monthly assessments for common expenses during the period relevant to this proceeding were as follows: Type A Units $135.20 Type B Units 138.64 Type C Units 163.96 The declaration also provides that ten percent interest must be added to any liability owed. The record reflects, and respondents concede, that such assessments were not paid on any units in Building 5801 until the following dates: Units 100-107 ----------- August 28, 1985 Units 200-207 ----------- September 5, 1985 Units 300-307 ----------- September 10, 1985 Units 400-407 ----------- September 18, 1985 The above dates are exactly ninety days after certificates of occupancy were issued for each of the four floors of Building 5801. Even though assessments were not paid by respondents until those dates, beginning on January 31, 1985 and continuing until such assessments were paid, other unit owners were charged and paid assessments based upon a budget for sixty-four units. As it turned out, the difference between the budget and annual common expenses actually incurred by the project was approximately $32,100, or the amount the Division contends respondents owe. In 1982-84, petitioner conducted an investigation of Camino Real Villages II, III and IV based upon complaints received from a certain unit owner. The complaint concerned allegations that access to association books was denied, that the declaration contained a developer guarantee, that maintenance expenses were not properly paid, and that improper assessments were levied on unit owners. The file was closed in November, 1984 after the Division's enforcement supervisor concluded that the allegations were either "unfounded" or could be resolved through voluntary compliance by the Association. As to the fourth issue, which was an allegation that the developer- controlled Association had improperly assessed unit owners from November, 1980 to January, 1982, the investigative report noted that the developer was "allocating them based on the completed units versus the total units filed for the entire community." The enforcement supervisor concluded that this was "the method chosen by the Association," and "absent specifics in the documents, we lack jurisdiction . . . to question this practice." There is no mention of the term "certificate of occupancy" in the report. However, uncontradicted testimony by respondents reflects that its use of the date of issuance of the certificate of occupancy to determine when assessments became due was the focus of the investigation, and that respondents relied upon those statements in continuing their practice of not paying assessments until ninety days after a certificate of occupancy was issued on a unit. They did so, at least in part, on the theory that the Association did not assume responsibility for expenses until that time. Respondents point out that the filing documents submitted to the Division in November, 1980 were defective in that the surveyor's certificate was incorrect. They go on to suggest that, because of this deficiency, the filing might be invalidated by a court and therefore the statutory assessment provision would not apply. However, no person has ever challenged the validity of the filing, and the general law contains a curative provision for any initial filing errors. They also assert that, if any liability is in fact owed, they are entitled to set-offs for expenses incurred by the developer while the project was being constructed. These include payments for real estate taxes, utility bills, Boca Del Mar Improvement Association, Inc. fees, trash removal, insurance, security service, assessments and maintenance and are itemized in attachments to respondents' exhibit 1. However, there is no rule or statutory provision which authorizes this type of set-off to be applied against common expenses. Therefore, the expenses itemized in respondents' exhibit 1 are deemed to be irrelevant.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the respondents be found guilty of violating Section 718.116, Florida Statutes (1985), as charged in the notice to show cause, and that they be required to pay the Association for past due common expenses on developer-owned units in Building 5801 as set forth in paragraph 8 of the conclusions of law plus ten percent interest to and including the date of payment. DONE AND ORDERED this 30th day of March, 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 30th day of March, 1988.
Findings Of Fact M. G., Incorporated, a real estate developer in Brevard County, Florida, caused to be constructed The Bello Rio Condominium complex at 255 South Tropical Trail, Merritt Island, Florida. On January 25, 1979, the Chief, Bureau of Condominiums, Department of Business Regulation, State of Florida, advised the attorney for the Developer that, pursuant to Rule 7D-17.05, Florida Administrative Code, the condominium documents submitted for approval for the project in question here had been reviewed and were considered proper for filing, and that the Developer could lawfully close sales contracts on units within the project. Units were sold; and on September 1, 1981, the project was "turned over" by the Developer to the association. At the meeting held for this purpose, several documents were delivered by the Developer to the association's Board of Administration (Board) in the person of Faye Shaffer, a resident of the development. These documents consisted of: Three (3) checks totaling $1,800; The association seal; The original recorded copy of the Declaration; The original copy of the Articles of Incorporation; A condominium insurance policy; A flood insurance renewal declaration; and Certificates of Occupancy for twelve (12) units. All plans and specifications in the hands of the Developer were released to the association's attorney sometime in that general time frame. Further, because there were no common areas covered by warranties, none were available to turn over. Either at the time of turnover or shortly thereafter, during the month of September, 1981, Mrs. Shaffer also received from the Developer five sheets of check ledger paper reflecting the following categories of entries: Date of check; Payee; Check number; Amount of check; Lawn maintenance; Utilities; Insurance; Garbage pickup; Bank service charge; Miscellaneous; and Management fee (10 percent). These ledger sheets were not certified as reviewed by a certified public accountant and constituted the only financial records turned over to the association by the Developer at any time. The accounting and bookkeeping functions for this project were accomplished initially in the offices of the Developer. Thereafter, the Developer retained Guest Realty, Inc., to manage the facility, including the collection of maintenance fees and making payments as required for utilities, etc. During the period of that company's stewardship, all accounting for funds and bank statement reconciliations were handled by Guest Realty, Inc. Any deficiencies resulting between fees collected and expenses paid during that period were made up by the Developer, and Guest Realty, Inc., received a fee of 10 percent of the maintenance fees received for its services. Any bills, receipts, cancelled checks, or other records kept during the period are now in storage; and Mr. Guest, on behalf of Respondent, M. G., Incorporated, will not make the effort to retrieve them unless required to do so by some competent authority.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent be assessed a penalty of $500 under the provisions of Section 718.501(1)(d)4, Florida Statutes (1981) RECOMMENDED this 13th of May, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 13th day of May, 1983. COPIES FURNISHED: Helen C. Ellis, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 William C. Irvin, Esquire Post Office Box 606 Cocoa Beach, Florida 32931 Mr. Gary R. Rutledge Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. E. James Kearney Director Division of Florida Land Sales and Condominiums Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER =================================================================
