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 for resolution in this proceeding is whether Respondent committed the violations alleged in the Notice to Show Cause: Failure to deliver to the association a review of financial records for the required period. Section 718.301(4)(c) F.S. (1981). Failure to fund reserves. Section 718.112(2)(k) F.S. (1981). Failure to turn over converter reserves. Section 718.301(4)(d) F.S. (1981). Charging the association $10,000 for management services without documentation of the contract for the services. Section 718.115(1) F.5. (1981). If it is determined that violations occurred, the remaining issue is what corrective action and civil penalties are appropriate.
Findings Of Fact The parties have stipulated to the following facts: Batura Enterprises, Inc. (Batura) is the developer, as defined in Section 718.103(13) F.S., of a residential conversion condominium known as English Park, in Melbourne, Florida. The condominium association for English Park was incorporated on December 2, 1980. The declaration of condominium for English Park was recorded in the public records on January 22, 1981. Turnover of control of the condominium association from control by the developer to control by unit owners other than the developer pursuant to Section 718.301 F.S., occurred on May 31, 1982. (Joint exhibit #1.) A review of financial statements dated January 19, 1983, was delivered to the condominium association. The review covers a ten-month period commencing August 1, 1981, and ending May 31, 1982. (Joint Exhibit #4.) A supplemental turnover review, performed during the course of this litigation and signed on February 7, 1987, covers the period from incorporation of the condominium association on December 2, 1980, through July 31, 1981. (Joint exhibit #6.) The function of the review is to provide an accounting during the time that the developer is responsible for the association, and to insure that assessments are charged and collected. (Testimony of Eric Larsen, C.P.A., qualified without objection as an expert in condominium accounting.) The proposed operating budget included $15,248.00 for an annual reserve account ($1,270 per month). (Joint exhibit *5, p. 83.) Based on this, the reserve account from the creation of the condominium, January 22, 1981, until the date of turnover, May 31, 1982 should have been $20,688.71 (sixteen months and nine days). The "election period" provided in Section 718.116(8)(a) F.S. (1979) is addressed in the Condominium documents, p. 31: F. Common Expenses payable by the Developer. Until the sale of the first Unit in the Condominium, Developer shall be solely responsible for all expenses of the Condominium. Following the first closing, the Unit Owner in whom title shall have been vested shall be responsible for his proportionate share of Common Expenses, based upon his percentage interest in the Common Elements. The Developer shall be excused from payment of the share of the Common Expenses and Assessments relating to the unsold units after the recording of this Declaration for a period of time which shall terminate on the first day of the fourth calendar month following the month in which the closing of the sale of the first unit occurs. The Developer shall pay the portion of expenses incurred during that period which exceeds the amount assessed against other Unit Owners. (Joint Exhibit #5.) The first units were sold in April 1981. (Joint Exhibit #2, p. 2). Therefore, the "election period" ended on August 1, 1981. The turnover review does not reflect the existence of the $20,688.71 reserve fund at the time of turnover on May 31, 1982. Instead, it reflects a certificate of deposit in the amount of $18,795.00 that was created as a "reserve for transition operations". This was derived from initial payments made by the owners to the association to provide working capital for the start- up phase. (Joint Exhibit #4., testimony of Philip Batura.) These "initial assessments" are addressed in the condominium documents: G. Initial Assessments. When the initial Board, elected or designated pursuant to these By-laws, takes office, it shall determine the budget as defined in this Section for the period cornencing 30 days after their election or designation and ending on the last day of the fiscal year in which their election or designation occurs. Assessment shall be levied against the Unit Owners during said period as provided in this Article. The Board will levy an "initial assessment" against the initial purchaser at the time he settles on his purchase contract. Such initial assessment shall be in an amount equal to two months regular assessments, and shall be utilized for commencing the business of the Association and providing the necessary working fund for it. In addition, the initial purchaser shall pay the pro-rated portions of the monthly assessments for the remaining balance of the month in which closing takes place. The initial assessment and other assessments herein provided shall be paid by each subsequent purchaser of a Unit; no Unit Owner shall be entitled to reimbursement from the Association for payment of the initial assessment. Developer shall not be liable to pay any initial assessment. (Emphasis added) (Joint Exhibit #5, p. 31.) Based on the above, it is apparent that none of the $18,975.00 was contributed by the developer. Between April 1, 1981, and August 1, 1981, 60 percent of the units were sold. (Testimony of Philip Batura. Joint exhibit #4, attachment C.) Therefore at any given point in time between those dates, at least 40 percent of the units were in the hands of the developer. Between August 1, 1981 and turnover at the end of May 1982, an additional 30 percent of the units were sold, for a total of 90 percent. (Testimony of Philip Batura.) This means a minimum of 10 percent of the units were in the hands of the developer at any point between those dates. While Philip Batura claims that reserves were waived by a majority of members pursuant to Section 718.1l2(2)(k), F.S. (1981), he produced no evidence of that. He admitted that the action is not reflected in association minutes. (Joint Exhibit #1.) Reserves are included in the proposed budget filed with the condominium documents. (Joint Exhibit #5.) Reserves are noted in the supplemental financial review provided by the developer: ENGLISH PARK CONDOMINIUM ASSOCIATION, INC. NOTES TO FINANCIAL STATEMENTS (UNAUDITED) (SEE ACCOUNTANT'S REVIEW REPORT) JULY 31, 1981. NOTE 1 SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES RESERVES - The Association's policy is to currently fund all expected replacements and major repairs of commonly owned assets. Should restricted funds available to meet future replacements and major repairs prove to be insufficient, the Association's Declaration provides that special assessments may be made against the unit owners. * * * (Joint Exhibit #6.) The purpose for a reserve account is to insure that funds are available in the future for replacements and deferred maintenance on the common elements. (Testimony of Eric Larsen) In addition to the statutorily-required reserves for exterior painting, roof replacement and repaving, the English Park proposed budget includes reserves for the swimming pool and "townhome hot water tanks". According to Philip Batura the budget was not amended prior to turnover. A separate reserve was required at the time of turnover because this was a condominium converted from apartments. (Testimony of Philip Batura) The only converter reserve applicable was a reserve for roofing in the amount of $6,114.00. (Joint exhibit #2, p. 2 of 11.) The Respondent has admitted its failure to turn over this reserve, but claims the obligation is offset by $10,000 in management fees which it asserts the association owes. (Joint Exhibit #1, p. 2 of 6.) Philip Batura is President of Batura Enterprises, Inc. He was elected or designated to the association board of directors at some point prior to turnover and remained on the board at turnover as he still owned some units. He mostly ran the association until the turnover in May 1982. (Testimony of Philip Batura.) Batura claims that there was an oral agreement for management services for $1,000.00 per month, commencing on August 1, 1981, between the association and Batura Enterprises, Inc. He said this was never paid by the association as there was not enough income to cover the costs of operation. The financial review covering the period August 1, 1981 to May 30, 1982, addresses the accrual of a management fee of $10,000, "...per the proposed operating budget which was recorded in the original declaration." (Joint Exhibit #4.) It is unclear where this figure was derived, as the budget does not reflect a $1,000.00 per month expense line item for management services. Included in the condominium documents is a proposed contract between the association and Eussel G. Hurren for management services. Both the fee and the term of the contract are left blank. The contract form that was filed is not signed, nor was a contract with this individual ever signed. (Testimony of Philip Batura.) The Declaration of Condominium permits a contract with a professional managing agent, including the developer. (Joint - Exhibit #5, p. 25.) No competent evidence was adduced by either party that this provision was ever fulfilled.
Recommendation Final hearing in the above-styled action was held on February 10, 1987, in Cocoa, Florida, before Mary Clark, Hearing Officer of the Division of Administrative Hearings. The parties were represented as follows: For Petitioner: Karl M. Scheuerman, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 For Respondent: James S. Cheney, Esquire Post Office Drawer 10959 Melbourne, Florida 32902-1959
Findings Of Fact Based on the stipulations of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at the hearing, I make the following findings of fact. Facts stipulated to by the parties Winston Towers 600 condominium was created by Winston Capital, Inc., which still owns units for sale in the condominium. Control of the association has been relinquished by the creator/developer and turned over by it to the unit owners including joint intervenors. In May of 1983, six Michigan limited partnerships each purchased a number of units in the condominium from Winston Capital, Inc. In March of 1984, four Texas limited partnerships each purchased a number of units in the condominium from Winston Capital, Inc. The joint intervenors consist of the six Michigan limited partnerships and the four Texas limited partnerships. The number of units so purchased gives the joint intervenors, as a block, a controlling interest in the condominium association. The association is controlled by the joint intervenors, who elected two of the three directors of the association. The association hired Hall Management Company, Kent Security Services, Inc., and an unnamed cleaning company. Records of the Secretary of State reveal that among other officers of Hall Management Company are Craig Hall, President and Director, and Christine Erdody, Vice-President. The records of the Secretary of State reveal no entity known as the Hall Real Estate Group. The public records of Dade County, Florida, reveal no fictitious name affidavit for any entity trading as the Hall Real Estate Group. The records of the Division of Florida Land Sales, Condominiums and Mobile Homes reflect that Winston Towers 600 is a residential condominium, located in Dade County, Florida. The joint intervenors are not now offering and have not ever offered condominium units for sale. The joint intervenors are not now offering and have not ever offered condominium units for lease for periods in excess of five years. Winston Towers 600 Condominium Association, Inc., is the non-profit condominium association established to maintain and operate the condominium. In July, 1984, a meeting of the condominium association was held upon instructions of the developer, Winston Capital, Inc. Winston Capital, Inc., scheduled and held the condominium association meeting in July 1984, under the good faith impression and belief that the threshold requirements in Section 718.301 mandating turnover of control of the association board of directors had been met. Joint intervenors, collectively, own more than 50 per cent of the units in the condominium. Joint intervenors, as developers, did not turn over control of the condominium association in July 1984. The declaration of condominium for the condominium and the Florida Statutes grant certain rights and privileges to the developers. The joint intervenors have a substantial economic investment in the condominium. The joint intervenors desire to have the condominium operated and maintained by competent professional management so as to protect and enhance the condominium project. The annual fee being paid to Hall Management Company for management of the condominium is the same fee as had been previously paid by the developer, Winston Capital, Inc., to the prior manager, Keyes Management Company. The names of the board of directors elected to the board of administrators of the association on July 16, 1985, were Ms. Christine Erdody, Mr. James Sherry, and Mr. Joseph Pereira. Ms. Christine Erdody and Mr. James Sherry are general partners in each of the ten limited partnerships. Mr. Craig Hall is President and Ms. Christine Erdody is Vice- President. Other findings based on evidence Adduced at hearing At the turnover meeting in July of 1984, Ms. Erdody cast votes on behalf of each of the ten limited partnerships, voting once for each unit owned by all ten of the limited partnerships. There has never been a meeting of the unit owners in which the limited partnerships turned over control of the association to unit owners other than the ten limited partnerships. The ten limited partnerships have no business ventures or income producing activities other than attempting to offset expenses of operations by leasing the units owned by the limited partnerships and attempting to increase their equity in the condominium units. The units acquired by the joint intervenors were not acquired for their own occupancy. The limited partnerships, while in control of the association, employed Hall Management Company, pursuant to contract, to manage the condominium and to lease the units owned by the limited partnerships. The rental office used by the management company consists of a unit owned by one of the limited partnerships. The contract specifically requires that Hall Management Company attempt to lease those condominiums units owned by the limited partnerships. The limited partnerships have no income producing mechanism other than the disposition of condominium units owned by the listed partnerships pursuant to the contract with the Hall Management Company. A regular, normal, and common activity of each of the ten limited partnerships is to offer to lease and to enter into leases of the condominium units owned by the limited partnerships. They typically engage in this activity through their agent, the Hall Management Company. None of the ten limited partnerships have ever offered any of their units for sale. None of the ten limited partnerships have ever offered any of their condominium units for leases in excess of five years. Ultimately, all of the ten limited partnerships intend to sell all of their condominium units. There is no relationship or affiliation between the creator/developer, Winston Capital, Inc., and any of the joint intervenors. Each of the joint intervenors is a separate limited partnership. However, due to the facts that each of the joint intervenors have a common purpose, each has at least several general partners in common, each has entered into a management contract with a closely related management company, and each has acted in concert with the others in prior matters concerning the condominium facility and the association, for all practical purposes relevant to this case, the joint intervenors may be regarded as a single entity. This is true even though there is no agreement or contract between the joint intervenors requiring them to act collectively in any matter involving or affecting their vote in condominium association matters at Winston Towers 600 Condominium. In all the actions of the joint intervenors in voting their interests at association meetings, they have never thought or acted on the understanding that the joint intervenors were developers of the condominium. The unit owners other than the joint intervenors have selected one-third of the Board of Directors of the Association. The right to vote for a majority of the board of directors of the condominium association is a significant and valuable right which the joint intervenors believed they would be entitled to upon purchasing a majority of the units in the condominium. A substantial number of the purchasers of Florida condominium units are non-residents of Florida. A substantial number of purchasers of condominium units intend to rent their condominiums under leases with a duration of two years or less.
Recommendation On the basis of all of the foregoing, it is recommended that the Division of Florida Land Sales, Condominiums and Mobile Homes issue a declaratory statement to the following effect: That the joint intervenors, individually and collectively, constitute concurrent and successor developers, and that as such concurrent and successor developers who collectively own more than fifty per cent but less than eighty-five per cent of the units, they are entitled to appoint two-thirds of the members of the board of administration of the condominium association. The statement should also note that the joint intervenors should comply with Section 718.3025(1)(e), Florida Statutes, by disclosing any financial or ownership interest which the joint intervenors have, if any, in Hall Management Company That the issue of whether the joint intervenors may have violated the provisions of the declaration of condominium is not a proper subject for a declaratory statement. DONE AND ORDERED this 9th day of April, 1986, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 1986. COPIES FURNISHED: Mr. Arnold Belkin Apartment 912 210 - 174 Street Miami, Florida 33160 Thomas A. Bell, Esquire Deputy General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Karl M. Scheuerman, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 323301 Joseph D. Bolton, Esquire Stephen Gillman, Esquire SHUTTS & BOWEN 1500 Edward Ball Building Miami Center 100 Chopin Plaza Miami, Florida 33131 Linda McMullen, Esquire McFARLAIN, BOBO, STERNSTEIN, WILEY & CASSEDY P. O. Box 2174 Tallahassee, Florida 32301 James Kearney, Jr., Acting Director Division of Florida Land Sales, Condominiums and Mobile Homes Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 James Kearney, Jr., Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 APPENDIX The Following are my specific rulings on each of the proposed findings of fact submitted by all of the parties. Rulings on findings proposed by the Division Paragraphs 1 through 23 of the Division's proposed findings are accepted and incorporated into the findings in this Recommended order. Paragraph 24 is rejected as irrelevant and as not supported by persuasive competent substantial evidence. Paragraph 25 is rejected as irrelevant in part and is redundant in part. The substance of paragraph 26 is accepted with the deletion of certain redundant information. The substance of paragraphs 27, 28, 29, 30, 31, 32, and 33 is accepted with some modifications in the interest of clarity and accuracy and with the deletion of certain redundant information. Rulings on findings proposed by the Joint Intervenors Paragraphs 1 through 12 of the Joint Intervenors' proposed findings are accepted and incorporated into the findings in this Recommended Order. Paragraph 13 is rejected as irrelevant, subordinate, and not supported by competent substantial evidence. Paragraphs 14 and 15 are accepted. Paragraphs 16 and 17 are accepted with additional findings for the purpose of clarity and accuracy. The substance of paragraphs 18, 19, 23, and 26 is accepted. Paragraphs 20, 21, 22, 24, 25, and 27 are accepted. Rulings on findings proposed by Petitioner Paragraphs 1, 2, 3, and 4 of Petitioner's proposed findings are accepted in substance. Paragraph 5 is rejected as irrelevant. Paragraphs 6, 7, 8, 9, and 10 are accepted in substance with the deletion of the reference to the Hall Group of real estate limited partnerships. Paragraph 11 is rejected in part because it is subordinate, in part because not supported by competent substantial evidence and in part because it is a conclusion of law. Paragraphs 12, 13, 14, and 15 are accepted in substance. Paragraph 16 is rejected because it is not supported by competent substantial evidence. Paragraph 17 is rejected because it is irrelevant and subordinate. Paragraphs 18, 19, and 20 are accepted in substance. Paragraphs 21 and 22 are rejected because they constitute argument or conclusions of law and are not supported by competent substantial evidence. Paragraph 23 is rejected because it is irrelevant to the issues to be decided in this case and because portions of it are not supported by competent substantial evidence. Paragraph 24 is accepted. Paragraph 25 is rejected because it is irrelevant to the issues to be decided in this case, because portions of it are not supported by competent substantial evidence, and because portions of it constitute argument or conclusions of law. Paragraph 26 is rejected because it is not supported by competent substantial evidence. Paragraph 27 is rejected because it constitutes argument. Paragraph 28 is rejected because it is irrelevant and redundant. Paragraphs 29 and 30 are rejected because they constitute argument or conclusions of law. Paragraphs 31 and 32 are rejected because they are not supported by competent substantial evidence. Paragraph 33 is rejected because it constitutes argument or conclusions of law. Paragraphs 34 and 35 are rejected because they are irrelevant and because they constitute argument.
Findings Of Fact Respondent is a Florida limited partnership which developed a 230-unit condominium in Orlando, Florida, by conversion of existing rental apartments. The condominium was registered with Petitioner, and Respondent received written notice of approval of the condominium documents in January, 1980. Respondent recorded the Declaration of Condominium in June, 1980, and closed the first sale of a condominium unit in September, 1980. The condominium documents prepared by Respondent and approved by Petitioner in January, 1980, included an estimated operating budget for the condominium Association for the year 1980. This budget proved sufficiently accurate that it was used for the years 1981 and 1982 without amendment or republication. This budget established a reserve for replacement of $1,500 per month. Paragraph 20 of the Declaration of Condominium provides: The Developer shall not be liable for the payment of ordinary common expenses on units which it owns. Unless and until the Developer elects to pay the regular assessments for common expenses charged against all other unit owners, the Developer guarantees that: (1) monthly assessments for common expenses shall not increase over the amounts set forth in Schedule B and (2) it will pay all actual ordinary common operating expenses in excess of the amounts collected from unit owners other than the Developer at the amount stated above. Pursuant to the developer's understanding of this provision, no payments were made by the developer for any unit which it owned, i.e., which remained unsold. However, as the units were sold, common expenses were charged to each new owner. No separate agreement was entered into between the developer and the unit owners regarding the former's contribution to the common expenses. Reserves for replacement are a necessary expense for the operation of improved real estate. Here, where the building was not newly constructed but converted from an existing apartment building, the remaining life of the building is shorter than would be the life of a new building, therefore a greater need exists for immediately commencing the funding for replacement than would exist with a new building. Respondent made no contribution to the reserve account for those units it owned before they were sold, but commenced charging the new owners for those expenses as soon as the units were purchased. In February, 1983, Respondent turned over control of the condominium Association to the unit purchasers. At this time there was $24,228.15 in the Association's bank account. Although the unit owners approved a proposed 1983 budget in June, 1982, no proposed budget was submitted to the unit owners in 1980 or 1981 for use in 1981 and 1982. The initial operating budget was used for 1981 and 1982, and this same budget was approved by the unit owners for use in 1983. Respondent failed to provide an annual accounting to each unit owner within 60 days of the end of fiscal years 1980 and 1981. No unit owner requested such an accounting until May of 1982, at which time Respondent' prepared an accounting for the operations of the condominium Association from its inception and delivered it to those two unit owners. Respondent fully accounted for all receipts and expenditures accruing to the Association from its inception until turned over to the unit owners in February, 1983. Petitioner did not audit the books and records of the Association until late in 1982 when the alleged discrepancies were noted.
Findings Of Fact Petitioner, Division of Florida Land Sales and Condominiums of the Department of Business Regulation, is seeking by a Cease and Dosist Order to enforce the provisions of Chapter 718, Florida Statutes, the "Condominium Act," pursuant to the authority granted in Sections 718.501(1) and 498.051, Florida Statutes, alleging that it has evidence that Respondent has violated Section 718.401(8), Florida Statutes, by binding an owner of a condominium parcel in Covered Bridge Condominium Phase 18 to the provisions of a long-term lease that contains an escalation clause. Respondent, Hovnanian Florida, Inc., is a "developer" as defined in Section 718.103(13), Florida Statutes. Kevork S. Hovnanian is the President of the corporation. Covered Bridge Condominium Association, Inc., incorporated on June 8, 1971, is an "association" as defined in Section 718.103(2) subscribed to by Kevork S. Hovnanian, Lawrence Dombrowski and John R. Langly (Respondent's Exhibit A). Covered Bridge Condominium No. 18 was created by a "Declaration of Condominium," as defined in Section 718.103(12) and filed on December 14, 1978. Attached as "Exhibit 3" and expressly made a part of Covered Bridge Condominium No. 18 is a "Lease Agreement" dated July 8, 1971 in which Respondent was the lessor and Covered Bridge Condominium Association, Inc. is a lessee (Petitioner's Exhibit 1). Kevork S. Hovnanian is the assignee of the Lease Agreement by assignment from Respondent on June 24, 1974 (Respondent's Exhibit C). Covered Bridge Condominium Association, Inc. is the association responsible for operation of the condominium, Covered Bridge Condominium No. 18. Paragraph IX of the foregoing Declaration, The Operating Entity, states in C.(9) in part that "Every owner of a Condominium Parcel, whether he has acquired his ownership by gift, conveyance or transfer by operation of law, or otherwise, shall be bound by the Bylaws of the Association (Exhibit 2), the provisions of this Declaration and the Long-Term Lease" (Exhibit 3). (Petitioner's Exhibit 1) IX A. provides in part: "Covered Bridge Condominium Association, Inc. shall administer, supervise and shall act by and on behalf of the owners of the family units in Covered Bridge Condominium No. 18 in accordance with this instrument, the Bylaws of the Association annexed hereto as 'Exhibit No. 2' and in accordance with the Condominium Act of the State of Florida, its supplements and amendments." Paragraph XIX of the Declaration, Long-Term Lease, requires each original purchaser from the Developer to execute a copy of the Long-Term Lease to secure the unit owner's (original purchaser's) obligation to pay his share of the common expenses as to the Long-Term Lease. The Long-Term Lease referred to in Paragraphs VIII, IX, X, XI, XII, XV, XVII, XIX, XX and XII of the Declaration was attached as "Exhibit 3" and is the aforesaid Lease Agreement of July 8, 1971 in which the Respondent is the lessor and the Developer, and Kevork S. Hovnanian is the assignee. Paragraph XXI, Miscellaneous Provisions, Section G, provides: "If any of the provisions of this Declaration, or of the Bylaws, or of the Long-Term Lease attached hereto, or of the Condominium Act, or any section, sentence, clause, phrase, or work, or the application thereof, in any circumstance, is held invalid, the validity of the remainder of this Declaration, the Bylaws, the Long-Term Lease or the Condominium Act, and of the application of any such provision, action, sentence, clause, phrase, or word, in other circumstances, shall not be affected thereby." XXI K. provides: "The captions used in this Declaration of Condominium and Exhibits annexed hereto, are inserted solely as a matter of convenience and shall not be relied upon and/or used in construing the effect or meaning of any of the text of this Declaration or Exhibits hereto annexed." XXI N. provides in part: "By way of clarification as to Article XIX of this Declaration, the Long-Term Lease may be amended by an instrument in writing, executed by the Lessor and the Condominium Association, by and through its Board of Directors except there shall be no Amendment affecting the Long- Term Lease which would change a unit owner's rent under the Long-Term Lease nor the manner of sharing common expenses under the Long-Term Lease, nor impair the rights of unit owners to the use and enjoyment of the recreational facilities, without the unit owners so affected, and all record owners of Institutional Mortgages thereon, joining in the execution of said Amendment." The Bylaws in Article XIV, Rules and Regulations, Section 4, "Recreation Area and Facilities," establish rules for the recreational facilities. Section 5, "Conflict," provides that should conflict arise the Condominium Act shall prevail (Respondent's Exhibit B). Section IX, Improvements, of the Lease Agreement provides in part: "The Lessor covenants and warrants unto the Lessee that it has constructed, or is in the process of constructing upon the aforedescribed premises, at Lessor's cost and expense, certain recreational facilities, consisting of a swimming pool and sundeck areas, shuffleboard courts, Community Center Building which will include and provide for a meeting area, cardroom, space for arts and crafts, sewing, and billiards, together with equipment and personalty contained therein, and such other improvements and personalty as Lessor determines in its sole discretion." Section XXIV, Rent Adjustment, provides in part: "Lessor and Lessee herein covenant and agree that the rental payments Provided for in Article III above, shall be adjusted, higher or lower, based upon the Cost of Living Index, as hereinafter defined and provided in this Paragraph at one (1) year intervals, commencing January 1st, 1972, and continuing yearly thereafter throughout the term of this Lease" (Petitioner's Exhibit 1). On September 26, 1979 Respondent sold by Warranty Deed a condominium in Covered Bridge Condominium No. 18 to Mr. and Mrs. Milton Marcus. The deed recited the fact of the assignment of the recreational facilities and further recited: "The Long-Term Lease as to the recreational facilities ... has been contemporaneously entered into by the Grantee(s) herein." On the same date the parties executed an "Acknowledgement of Lease Agreement" which recited their covenant to be bound by the 1979 Long-Term Lease Agreement (Petitioner's Exhibit 2). On October 15, 1979 Respondent sold another condominium in Covered Bridge Condominium No. 18 to Mr. and Mrs. Saul Schwartz with similar recitations and with a similar lease acknowledgement agreement (Petitioner's Composite Exhibit 3) Rental payments attributed to the escalation clause in the Long-Term Lease were paid by Covered Bridge Condominium Association, Inc. subsequent to June 4, 1975, the effective date of Section 718.401(8), Florida Statutes, which declared that public policy precludes the inclusion or enforcement of escalation clauses (Stipulation) On June 5, 1979 Petitioner Division of Florida Land Sales and Condominiums served a Notice to Show Cause why a cease and desist order should not issue on Respondent Hovnanian Florida, Inc. alleging: Covered Bridge, Phase 18, is a condominium created pursuant to the provisions of Chapter 718, Florida Statutes. The Respondent is offering for sale and has closed on contracts for sale of condominium parcels in the condominium. Article IX of the Declaration of Condominium binds the owner of a condominium parcel to the provisions of a long-term lease, attached to the Declaration of Condominium as Exhibit 3. Section XXIV of said long-term lease contains an escalation clause as defined and prohibited by Section 718.701(8)(a), Florida Statutes (1978 Supp.). On July 17, 1979 Petitioner requested an administrative hearing. A Notice of Hearing was mailed by the Division of Administrative Hearings on August 6, 1979 notifying the parties that a formal hearing would be held October 24, 1979 in West Palm Beach, Florida. The notice recited: ISSUES: Whether a cease and desist order should be entered against the Respondent for an escala- tion clause prohibited by statute. AUTHORITY: Chapters 120 and 718, F.S. Sections 718.401 and 718.501(b), F.S.; Section 478.171(1), F.S. The hearing was rescheduled and then continued numerous times but went to hearing on April 15, 1980. In the initial stage of the formal hearing on that date the parties jointly moved for a Continuance on the basis of an attached Stipulation, infra, which it was stated would change the character of the hearing and limit the necessity for an extended hearing. The Stipulation is set forth in full for clarity: "Stipulation A Declaration of Condominium creating Covered Bridge Condominium No. 18, address 7240 Covered Bridge Boulevard, Lake Worth, Florida, 33463, was filed and recorded on December 14, 1978, in the Circuit Court of Palm Beach County. Section XI, entitled "Assessments" of the Declaration states that "the portion of the common expenses under the Long-Term Lease shall be fixed and determined by the Lessor as provided under said Lease." Common expenses are defined in Section IH of the Declaration as "the expenses for which the unit owners are liable to the Association." Section XIX of the Declaration, entitled "Long-Term Lease" refers to a Lease and Assignment "... attached hereto as Exhibit 3 and made a part hereof, just as though said Lease were fully set forth herein." Payments under the lease are declared to be common expenses in Section XIX. By the above- referenced language, the Long-Term Lease is incorporated in and made a part of the Declaration of Condominium. Section XIX requires that each unit owner execute a copy of the Long-Term Lease attached as Exhibit 3, and that such lease be recorded in the Public Records of Palm Beach County, together with the deed conveying the unit to the owners. Exhibit No. 3 of the Declaration entitled "Lease Agreement" is an agreement between Hovnanian Florida, Inc., lessor, and Covered Bridge Condominium Association, Inc., lessee, the entity responsible for the operation of the condominium. Therein, it is stated that any reference to an obligation of a "lessee" shall be deemed to include Covered Bridge Condominium Association, Inc., and all individual lessees, jointly and severally. The Long-Term Lease, in Section III C states that rent due under it shall be the obliga- tion of the Individual Lessees and the Lessee-Association. Section XXIV of the Long-Term Lease provides that rental payments due under the lease shall be adjusted yearly. Such adjustment is computed by utilizing a nationally recognized comodity or consumer price index. Such lease was assigned to KEVORK S. HOVNANIAN by HOVNANIAN FLORIDA, INC., on June 24, 1974. Subsequent to the recordation of the Declara- tion of Covered Bridge Condominium No. 18, the developer did sell units to purchasers, and close on such sales. Purchasers were required to and did sign acknowledgements of Lease Agreement, in which purchasers have agreed to be bound by all the terms, covenants and conditions, set forth in the Long-Term Lease, and acknowledged that their signatures constituted an acknowledgement of the Long- Term Lease Agreement and their covenant to be bound by it. Such purchasers purchased sub- sequent to June 4, 1975. In 1975, Section 711.231, Florida Statutes, became effective on June 4, 1975. That act declared that the public policy of this state precludes the inclusion or enforcement of escalation clauses in leases for recreational facilities on other commonly used facilities serving residential condominiums. That statute has since been renumbered and is now Section 718.401(8), Florida Statutes. It is the position of the developer that all rents, including portions due under the esca- lation clause, are and remain the obligation of the association--lessees and the association remains bound to assess unit owners amounts necessary to pay such rents. The lessor has demanded such amounts from the lessee(s), and the lessee Association has refused to pay them. Rental payments attributed to the escalation clause were paid by the association to the lessor subsequent to June 4, 1975. It is stipulated that the following documents are placed before the Hearing Officer for con- sideration in deciding this matter, subject to the recitals in #13 relating to the determina- tion of the relevancy and admissability in this cause For petitioner: Warranty Deed - Hovnanian, Inc. to Saul, Shirly & Schwartz Acknowledgement & Acceptance by Grantee, Saul, Shirly & Schwartz Acknowledgement of Lease Agreement Milton & Rose Marcus Warranty Deed Hovnanian, Inc. to Milton & Rose Marcus Amendment to Declaration of Condominium Covered Bridge No. 18 Recorded August 31, 1979 Amendment to Declaration of Condominium Covered Bridge No. 18 Recorded April 26, 1977 Amendment to Declaration of Condominium Covered Bridge No. 18 Recorded February 21, 1979 Declaration of Condominium Covered Bridge No. 18, with Exhibits Recorded December 14, 1978 Complaint for Damages and Declaratory Relief, Case No. 79-306, 15th Judicial Circuit. Answer, Affirmative Defenses and Counterclaim, Case No. 79-306, 15th Judicial Circuit. Offering Circulars Without Exhibits For Respondent: All documents listed by Petitioner: Bylaws of Covered Bridge Condominium Association, Inc., as recorded in Official Record Book 1913 at pages 1025 through 1054 and in official Record Book 1013 at pages 1085 and 1086 of the Public Records of Palm Beach County. Assignment of Lease dated June 24, 1974 as duly recorded in Official Record Book 2320 at pages 1096 through 1100 of the Public Records of Palm Beach County, Florida. Covered Bridge Plat #1, as recorded in Plat Book 29 on Page 44 of the Public Records of Palm Beach County, Florida. Covered Bridge Plat #2 as recorded in Plat Book 29 on page 79 of the Public Records of Palm Beach County, Florida. 1976 Settlement Agreement entered into between Kevork Hovnanian, Hov- nanian Florida, Inc. and Covered Bridge Condominium Association, Inc. Exhibit 4, Offering Circular Petitioner and Respondent agree and stipulate that the facts recited in this stipulation and the documents are true and accurate. The parties reserve the right to present legal arguments directed to the relevancy and/or materiality of any and all facts and documentary evidence, or the contents thereof, to this action. This stipulation is contingent upon the Hearing Officer granting a Motion for Con- tinuance of the hearing scheduled in this matter for April 15 and 16, 1980. The parties agree that this stipulation will not be intro- duced into evidence in any proceeding or used in any manner unless and until the above- referenced Motion for Continuance is granted and, in the event the Motion for Continuance is denied, this stipulation is null and void. In no event will this stipulation be used in any other proceeding. The parties agree that should the stipu- lation be accepted and the hearing continued by the Hearing Officer no witnesses will be called in this cause at any future time, and additional documentary evidence will be placed before the Hearing Officer only upon the agreement of both the Petitioner and Respon- dent to such admission. Petitioner and Respondent agree that the sole remaining matters to be placed before the Hearing Officer shall consist of legal arguments re- lating to the admissability of evidence as stated above, and argument pertinent to the disposition of this cause." The hearing was continued and rescheduled to be heard June 24, 1980. The Notice of Hearing was in the same form and showed the same issue and authorities as stated in each of the previous notices, but with the addition: "issues involved in Stipulation filed April 15, 1980." Thereafter, a Motion to Dismiss for failure to state a course of action was denied. At the commencement of the formal hearing rescheduled for June 24, 1980, Petitioner moved to amend the complaint on the grounds that Article IX (9) of the Declaration was cited in error in the complaint rather than Article XIX (19). The Motion to Amend was orally granted. A Motion for Continuance was then presented by Respondent on the grounds that since the Motion for Amendment had been granted the Respondent had insufficient time to prepare a defense to the amended charge and had not been informed of the issue involved in the case. Believing that the Notice to Show Cause, both original and as amended, together with the Stipulation filed at the previous hearing and the issue and authorities stated in the numerous Notices of Hearing, the Motions and Memoranda filed by Respondent, and the length of time from the inception of the case to the date of hearing had given Respondent adequate notice of the issues involved in the case and the time to prepare, the Hearing Officer denied Respondent's Motion for Continuance of the administrative hearing then in process. Exerpts from the voluminous documentary evidence which was introduced at the hearing are hereinbefore detailed, but a capsule summary of the facts follows: Covered Bridge Condominium Association, Inc. and the plats of the property show that it was anticipated in June of 1971 that Covered Bridge Condominium No. 18 might be erected on said corporate property and that when erected, purchasers of the' condominium units would become members of the Association. The Bylaws in 1971 authorized the Board of Directors of the Association to enter into long-term leases of recreational facilities. The Developer entered into the subject lease agreement that contained an escalation clause with the Association in July of 1971. The lease provided that common expenses would be assessed against all condominium units. Respondent created Covered Bridge Condominium No. 18 by "Declaration of Condominium" on December 13, 1978 "pursuant to Chapter 718, Florida Statutes (1976)." It incorporated the lease agreement of 1971 by reference as well as the Bylaws of 1971 and provided that the operating entity of 1971 should be Covered Bridge Condominium Association, Inc. The Declaration stated under "Operating-Entity" that Covered Bridge Condominium No. 18 should be administered under Covered Bridge Condominium Association, Inc., its Bylaws and "in accordance with the Condominium Act of the State of Florida, its supplements and amendments." Respondent expressly sought to tie the owners to the long-term lease which contained an escalation clause. When the new units in the condominium created in 1978 were sold in 1979, the deeds bound the purchasers to the 1971 lease agreement which provided recreational facilities to the condominium parcel. The parties submitted proposed findings of fact and memoranda of law, and Respondent submitted a proposed recommended order. These instruments were considered in the writing of this order. To the extent the proposed findings of fact have not been adopted in or are inconsistent with factual findings in this order, they have been specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that an order be entered requiring Respondent Hovnanian Florida, Inc. to cease and desist from enforcing the escalation clause in the "Lease Agreement" of 1971 as it pertains to the condominium created in 1978, Covered Bridge Condominium No. 18, and the purchasers of units in said condominium. DONE and ORDERED this 29th day of August, 1980, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of September, 1980. COPIES FURNISHED: Mary Jo M. Gallay, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Samuel Spector, Esquire Cynthia S. Tunnicliff, Esquire Guyte P. McCord, III, Esquire SPECTOR & TUNNICLIFF, P. A. Suite 750 Barnett Bank Building Post Office Box 82 Tallahassee, Florida 32302
Findings Of Fact Margaret Cline is an applicant for licensure as an employment agency/agent. Cline meets all qualifications for licensure except the experience requirements, which are the subject of this proceeding. Cline was employed until December, 1975, with the Ramada Inn. The Department recognizes that her experience in this employment was equivalent that of an employment clerk. Cline was unemployed for a period of four to five months immediately following the termination of her employment with the Ramada Inn. From May until September, 1976, she was sales director for a condominium. She admits that her employment was not as an employment clerk or its equivalent. From September, 1976, until September, 1977, she was employed in establishing a bookkeeping system in another condominium company. She admits that the duties of her employment were not those of an employment clerk or its equivalent. Cline was employed from September, 1977, until February, 1978, by Gulf Terrace Condominium. She asserts, and the agency does not deny, that her employment was as an employment clerk or its equivalent. Cline was employed from February, 1978, until September, 1978, with Seascape Inn. She asserts, and the agency does not deny, that her employment during this period was as an employment clerk or its equivalent. Since September, 1978, Cline has been involved in preparing to open or in operating an employment agency. She currently operates an employment agency in Dothan, Alabama, and has done so since November, 1978. Cline has been continuously employed as an employment clerk or its equivalent since September of 1977, or approximately 18 months.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that the application of Margaret Cline be denied. DONE and ORDERED this 16th day of February, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of February, 1979. COPIES FURNISHED: Gerald Curington, Esquire Department of State The Capitol Tallahassee, Florida Margaret Cline 940 Santa Rosa Boulevard Fort Walton Beach, Florida
Findings Of Fact The Division is the administrative agency of this state empowered to ensure that condominium associations comply with the Condominium Act. The Association is the condominium association which manages and operates 12 separate condominiums known as the Pines of Delray, located in Delary Beach, Florida. This case involves a structure placed on the common elements of three of those condominiums: The Pines of Delray condominiums 5, 6, and 11. Condominium 5 has 64 units, 6 has 72 units, and 11 has 96 units. Initially, the 12 condominiums received television under a "Central Television Antenna System Lease" with the Pines of Delray CAT, an agent of the condominium developer. On November 1, 1979, the unit owners of 8 of the 12 condominiums, including condominiums 5, 6 and 11--by vote equal to or in excess of 75 percent of the unit owners in each of the 8 condominiums--voted to cancel or terminate the television system lease pursuant to Section 718.302, Florida Statutes. The leased television equipment was eventually removed by the owner. On February 1, 1982, the Association entered into a written agreement with A-I Quality TV, Inc. d/b/a Denntronics Cable to provide television service for the 12 condominiums. The agreement was authorized by the Association's board of directors; the unit owners were not given an opportunity to vote on the agreement. An addendum to the agreement was entered in December, 1982. The addendum authorized Denntronics to install a satellite receiving station or dish at an unspecified location on the property of the 12 condominiums. The addendum was authorized by the Association's board of directors, but again, a vote of the unit owners was not taken. The Board subsequently selected the site for the receiving dish, centrally locating it on common elements of condominiums 5, 6, and 11, between building no. 65 in condominium 6, no. 25 in condominium 5, and nos. 66 and 110 in condominium 11. On December 24, 1982, Denntronics, with the Board's authorization, entered the premises of the condominiums and cut down four full-grown pine trees on the site to allow construction of a concrete foundation or pad and erection of the satellite dish. The parties stipulate that this cutting of the trees was an alteration of the common elements and that it was not approved by the owners of 75 percent of the condominium units in the affected area. The pertinent declarations of condominiums provide a specific procedure for obtaining approval before altering or improving common elements of the condominium. Article 5.1(b) of each declaration states: 5 MAINTENANCE, ALTERATION AND IMPROVEMENT Responsibility for the maintenance of the condominium property and restrictions upon the alteration and improvement thereof shall be as follows: .1 Common Elements. (b) Alteration and Improvement. After the completion of the improvements included in the common elements which are contemplated in this Declaration, there shall be no alteration nor further improvement of common elements without prior approval, in writing, by record owners of 75 per cent of all apartments. The cost of such alteration or improve ment shall be a common expense and so assessed. After removing the trees, Denntronics poured the concrete pad and attached it to the realty. The pad measures 10 feet by 10 feet, has a depth of 18 inches, and is reinforced with no. 5 grade steel bars. The construction of this pad, as with the tree removal, was not approved or voted on by the condominium owners. Denntronics then anchored the satellite receiving dish to the concrete pad. The dish is approximately 16 feet in diameter, extending 20 to 25 feet in the air. It remains the property of Denntronics since it was only leased to the Association. It is not a fixture since it may be detached and removed from the concrete pad. The cutting of the trees, the construction of the concrete pad, and the erection of the satellite dish altered the common elements. The condition of the real property was changed and the satellite dish affected nearby residents' view and enjoyment of the park-like green space in which it was placed. The replacement of the trees with the concrete pad and satellite dish affected the appearance of the surrounding area. A park-like environment of grass and pine trees surrounds the condominiums; it was this feature which persuaded some residents to originally purchase condominiums at Pines of Delray. Both the name of the condominium and its accompanying description on the condominium documents, "A Condominium in the Woods" emphasize this aesthetic feature of the condominium. As shown by the photographs in evidence, the reinforced concrete pad with satellite dish is an intruding presence in a park- like, pristine area. It is an incongruous, even imposing structure, 1/ and, in the setting in which it was placed, is aesthetically displeasing. 2/ It has adversely affected some residents' enjoyment of the grassy green space and has disturbed the scenic view which they enjoyed from their windows. Some residents now keep their window shades closed or no longer use the park-like surroundings. One resident was so upset by the sudden placement of the structure that she sold her condominium and moved away. Another nearby resident who purchased his unit, in large part, because of its proximity to the park-like green space, would not have purchased it if the pad and satellite dish had been there. Denntronics has a franchise application pending before the City of Delray Beach. If it is granted a franchise, Denntronics will remove the pad and satellite dish, and replace it with underground cable. If Denntronics is not granted a franchise, it intends to maintain and operate the satellite dish at least until June 30, 1987, when the agreement with the Association expires and is up for renewal. If the satellite dish is removed now, however, the Pines of Delray Condominium will not necessarily be without cable television service. Leadership Cable, the only cable T.V. company franchised by the City of Delray Beach, is willing and able to provide cable T.V. reception to the pines of Delray Condominiums.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Division of Florida Land Sales and Condominiums find the Association guilty of violating Section 718.113(2) and order it to cease and desist from further violations. Further, the order should require the Association to remove the concrete pad and satellite receiving dish within 10 days and restore the affected area, as nearly as possible, to its prior condition. Restoration should include the placing and maintenance of grass sod and at least four healthy trees, aesthetically pleasing and not less than 12 feet in height. DONE and ENTERED this 21st day of June, 1984, in Tallahassee, Florida. R. L. Caleen, Jr. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of June, 1984.
Findings Of Fact Eden Isles Condominiums are residential condominiums consisting of 7 identical buildings with 52 units in each building. Each building has a separate Declaration of Condominium which declaration is identical with the other 6 Declarations of Condominiums except as to the identification of the condominium. There are 4 swimming pools, parking areas, etc., the expenses for which are shared by the 7 condominiums. The Declarations of Condominiums provide for the percentage of the common ownership and expense associated with each unit in the condominium. The Declarations provide that the affairs of each condominium will be managed by the Eden Isles Condominium Association, Inc., Respondent. Duties of the Association include the preparation of budgets, collection of assessments for expense of maintaining common elements from each unit owner, maintenance of all common elements and generally conducting all of the business dealings associated with the common elements. From the inception of the Association in 1972 a common budget has been prepared for the 7 condominiums which is assessed against unit owners by taking total expenses for the common elements of the 7 buildings, dividing this by 7 and then allocating to each of the 52 unit owners in each building his pro rata share of those expenses. This has the effect of requiring the unit owners housed in Building D to share the cost for the replacement of an elevator in Building P or the replacement of a roof on Building C. The net result of the consolidated budget is to treat the 7 condominiums as one for the purpose of maintaining the common elements. When built and the Declarations of Condominiums recorded, Eden Isles was not a phased development.
