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ARNOLD BELKIN vs. FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES, 85-000828 (1985)
Division of Administrative Hearings, Florida Number: 85-000828 Latest Update: Apr. 09, 1986

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.

Florida Laws (6) 120.565718.103718.104718.301718.3025718.502
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DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES vs EDEN ISLES CONDOMINIUM ASSOCIATION, INC., 06-004481 (2006)
Division of Administrative Hearings, Florida Filed:Lauderdale Lakes, Florida Nov. 08, 2006 Number: 06-004481 Latest Update: Jul. 20, 2007

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.

Florida Laws (7) 120.569120.57718.11586.01186.02186.07186.101
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WILLIAM HOWARD vs EAST POINT TOWERS CONDOMINUM ASSOCIATION, 05-000404 (2005)
Division of Administrative Hearings, Florida Filed:Tallahassee, Florida Feb. 04, 2005 Number: 05-000404 Latest Update: Dec. 25, 2024
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STUART KAPLAN vs WILTON SHORES CONDO ASSOCIATION, 03-002258 (2003)
Division of Administrative Hearings, Florida Filed:Wilton Manors, Florida Jun. 18, 2003 Number: 03-002258 Latest Update: Dec. 25, 2024
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FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES vs. SUNTIDE CONDOMINIUM ASSOCIATION, INC., 80-000836 (1980)
Division of Administrative Hearings, Florida Number: 80-000836 Latest Update: Oct. 08, 1980

Findings Of Fact In 1974 the developer of Suntide Condominiums commenced marketing its 80 condominium units. The prospectus included the charter of the association (incorporated not for profit on October 22, 1974) and the proposed Declaration of Condominiums (executed June 24, 1975 and recorded July 30, 1975). These documents were given to purchasers at the time the contract to purchase was signed, with either party having the right to cancel the contract within 15 days. Two units were sold in the Spring of 1975, with closing occurring in August of that year. In the interim 711.14, Florida Statutes, 1973, was amended effective July 1, 1975, to change the method that may be used far assessing for common expenses from "according to the declaration" to "percent of ownership." Chapter 75-224, Laws of Florida, 1975. Subsequently all the units were sold and the control of the Association was transferred from the developer to the unit owners in March of 1977. The declaration has always provided that expenses involving the common elements be prorated at 1.25 percent for each unit. However, the percent of ownership of the common elements is based on the size of the owner's unit and varies from .9508 percent to 1.68444 percent. Of the owners of the 80 units in the condominium, 49 (61.25 percent) own less than 1.25 percent of the common elements, and 31 (38.75 percent) own more than 1.25 percent. Seventy-five percent of the unit owners are required to vote for a change in the method of assessing common expenses. Association attempts to conform the declaration to the law have failed.

Conclusions The Petitioner in its show cause requests an order requiring the Respondent to cease and desist the present method of assessing common expenses and to change the method of assessing common expenses, and any other affirmative relief that might be appropriate; the request for imposition of a civil penalty was withdrawn at the conclusion of the hearing. Petitioner's enforcement powers are found in Section 718.501 Florida Statutes (1979), which reads in pertinent part: The Division ... in addition to ... Chapter 478 ... [I]n performing its duties... shall have the following powers and duties: (b) Notwithstanding any other remedies ... the division may institute enforcement proceedings in its own name against any ... association ... as follows: The division may issue cease and desist orders pursuant to Section 478.171. The division may bring an action in circuit court for declaratory relief, in- junctive relief, or restitution on behalf of a class of unit owners or lessees. Respecting the cease and desist request, Section 478.171 [now found In Section 498.061, Florida Statutes (1979)] deals with the subject of: fraudulent practices in advertising, promoting or selling land; making substantial changes in registered subdivided lands without approval; or selling subdivided land which is not registered. There were no allegations of this type of impropriety in this case, therefore, cease and desist is not an appropriate remedy. The only other recommendation that can be made is that the Division proceed in the Circuit Court as requested by the Complainant. See also Peck Plaza Condominium v. Division of Florida Land Sales and Condominiums, 371 So.2d 152 (1 DCA Fla. 1979) It is therefore, RECOMMENDED: That the petition of the Division of Florida Land Sales and Condominiums be dismissed for lack of jurisdiction. DONE and ORDERED this 12th day of September, 1980, in Tallahassee, Florida. HAROLD E. SMITHERS Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Lawrence A. Farese, Esquire Special Counsel Department of Business Regulation 726 South Bronough Street The Johns Building Tallahassee, Florida 32301 Shields McManus, Esquire River Oak Center 401 Osceola Street Stuart, Florida 33494 ================================================================= AGENCY FINAL ORDER =================================================================

Florida Laws (2) 718.115718.501
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FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES vs. MAPLEWOOD TOWNHOUSE CONDOMINIUMS, INC., 83-002691 (1983)
Division of Administrative Hearings, Florida Number: 83-002691 Latest Update: Jul. 19, 1990

The Issue The issues presented for decision herein are (1) whether or not Respondent failed to pay its share of common expenses, and (2) whether Respondent failed to deliver to the condominium association a financial review as required.

Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and entire record compiled herein including the pre-hearing stipulation, I hereby make the following relevant factual findings. By its Amended Notice to Show Cause filed herein dared February 27, 1984, Petitioner seeks to impose a civil penalty against Respondent and order it to cease and desist from engaging in certain acts and to take certain affirmative action. As set forth in the pro-hearing stipulated facts, Petitioner herein is the State of Florida, Department of Business Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes. Respondent herein is Maplewood Townhouses, Inc., the developer as defined by Section 718.103(13), Florida Statutes, of a residential condominium known as the Maplewood Townhouses Condominium, located in Coral Springs, Florida. On or about August 5, 1983, the Petitioner served on Respondent its original Notice to Show Cause alleging a violation of Chapter 718, the Condominium Act. Or or about February 27, 1984, Petitioner filed a Motion to Amend its Notice to Show Cause to include two additional allegations. This motion was granted by Order of March 15, 1984. The declaration of condominium for Maplewood Townhouses Condominium was recorded in the public records on July 18, 1980. Maplewood Townhouses Condominium Association, Inc., the condominium association for Maplewood Townhouses Condominium, was incorporated on September 4, 1980. Turnover from developer control of the condominium association occurred pursuant to Section 718.301 on July 7, 1983. Phase II of Maplewood Townhouses Condominium was created after the effective date of Rule 18.05, Florida Administrative Code. 1/ A proposed budget must include reference to a guarantee if one exists pursuant to Rule 18.05, Florida Administrative Code. Certified copies of the proposed operating budgets for Phases I and II submitted by Respondent do not reference a guarantee. It is undisputed that Respondent failed to pay common expenses on developer-owned units from the period of the inception of the condominium through the time of the turnover. This procedure is acceptable where a developer-owner offers a guarantee which complies with the terms of Section 718.116(8)(b), Florida Statutes. The financial review introduced herein reveals that reserves were waived for the period in question by the Board of Directors, however, no claim was offered by Respondent to show that reserves were waived by the unit owners in Maplewood Townhouses Condominium. (See Petitioner's Exhibit 3, pages 6 and 7) Additionally, the putative guarantee fails to provide a stated dollar amount and provides no beginning or ending date for the guarantee. (Petitioner1s Exhibit 3 at page 7) Evidence adduced reveals that Respondent contributed approximately $19,000 to the operation of the condominium association for the period at issue herein. That amount would be the proper amount the developer would have been responsible for, assuming no guarantee existed, and if the calculation for assessments commence upon the date of issuance of the certificate of occupancy for each unit. That amount would not be sufficient if the correct computation was based on the date of recordation of the declaration of condominium. The financial review establishes that contributions to capital, which comprise the initial working capital of the condominium association, were used during the putative guarantee period to finance association expenses. (See Petitioner's Exhibit 4) In addition, the review does not mention either the inadequacy of the guarantee or point out that to the extent the guarantee fails, the reserve obligations become assessment of all unit owners.

Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED: That the Department of Business Regulation, Division of Florida Land Sales and Condominiums, enter a Final Order finding Respondent guilty of violating Section 718.115(2), 718.116(8), and 718.301(4)(c), Florida Statutes, and impose a civil penalty in the amount of $1,000. Further, Respondent shall immediately employ an independent certified public accountant to perform a turnover review consistent with Section 718.301(4)(c), Florida Statutes, and to pay any amount determined to be owed to the condominium association. RECOMMENDED this 21st day of January, 1985, in Tallahassee, Florida. JAMES E. BRADWELL 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 January, 1985.

Florida Laws (10) 120.57120.6817.05718.103718.104718.112718.115718.116718.301718.501
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DIVISION OF REAL ESTATE vs. WILLIAM F. CASLER, JR., 82-000842 (1982)
Division of Administrative Hearings, Florida Number: 82-000842 Latest Update: Aug. 17, 1982

The Issue The issues in this proceeding are whether the Respondent has violated provisions of the real estate licensing law and, if so, what disciplinary action should be taken against him. The Administrative Complaint is in two counts. The Petitioner is charged with failing to account and deliver a share of a real estate commission to a real estate salesman and with failing to keep the Petitioner advised as to the nature and location of his real estate activities. Respondent denies these allegations. There were conflicts in the testimony of the witnesses, specifically between the testimony of Sandra McCoy and the testimony of the Respondent. In resolving the inconsistencies, due regard has been given to the extent to which the witnesses' testimony is corroborated by other evidence and the demeanor of the witnesses at the hearing.

Findings Of Fact At all times material to this proceeding, the Respondent has been licensed by the Petitioner as a real estate broker. During November, 1979, the Respondent was the broker for a condominium project located in Seminole, Florida, known as Seminole Country Green. Sandra McCoy was a real estate salesman licensed by Petitioner. She obtained her license in May, 1979, and between then and November, 1979, practiced in general real estate sales. She was interested in working in on-site condominium sales. She applied for positions with the Respondent and with several other brokers. A few days prior to November 11, 1979, McCoy went to work with the Respondent. It was the Respondent's intention, communicated to McCoy, that she not immediately engage in sales of condominium units, but rather that she serve as a receptionist and take time to study the various condominium documents and to learn about the units that she would be selling. On November 1, 1979, Joyce Clifton, a real estate salesman who worked with another firm, visited the Seminole Country Green project. Clifton had clients who were interested in purchasing a condominium. Clifton had read about Seminole Country Green and felt that it might be the sort of property that her clients desired. When she arrived at the project on November 11, Clifton, accompanied by her husband, was met by Sandra McCoy. McCoy spent approximately 45 minutes showing the project and several condominium units to the Cliftons. Mrs. Clifton filled out a registration card listing her clients in order to assure that she would be entitled to receive her appropriate share of any real estate commission that ultimately resulted. On the next day, November 12, Mrs. Clifton returned to the project with her clients. She asked for Sandra McCoy, but McCoy was not present. Clifton showed her clients around the project unaccompanied by any of Respondent's employees. On November 13, Clifton's clients returned to the project and entered into a contract to purchase a unit. The contract was prepared by McCoy, and McCoy's signature appears as a witness to the signature of the purchasers. It was the Respondent's practice to have new salesmen serve a training period whereupon he would enter into an employment contract. Such a contract, which would have been effective November 15, 1979, was presented to Sandra McCoy. McCoy declined to sign the contract, stating that she wished to have it examined by an attorney. Actually, McCoy had employment applications pending with other brokers. After working with Respondent for approximately ten days, she was offered a position at a larger condominium project by one of these brokers, and she accepted it. She notified the Respondent and left Seminole Country Green immediately. This occurred within a few days of November 13, 1979. In order to close on the transaction with Clifton's clients, a salesman at Seminole Country Green had many responsibilities beyond merely drafting a contract. Carpeting, wallpaper, and appliance selections needed to be made, and numerous details needed to be arranged. McCoy performed none of these functions. They were performed by the Respondent personally, who was shorthanded due to McCoy's leaving the project. Respondent and McCoy never entered into any contract whereby McCoy would serve as a real estate salesman. While such a contract was offered her, she did not sign it. No implied contract arose between the parties. While McCoy performed services in the transaction with Clifton's clients which would ordinarily be performed by a real estate salesman, she was not serving in that capacity at that time with the Respondent. Rather, she was working as a trainee. She was not authorized to show apartments and to prepare sales documents. The amount of commission that the Respondent received in the transaction with Mrs. Clifton's clients was not made a matter of evidence. It is charged in the Administrative Complaint that the Respondent failed to keep the Petitioner apprised of the nature and location of his business during 1981. One of the Petitioner's investigators sought to locate Respondent during July or August, 1981, using what he considered to be the most current address from the petitioner's file. It is apparent that wherever the investigator obtained an address, it was not the most current material on file with Petitioner. The evidence reveals that Respondent did business during 1981 in several different capacities at several different locations. The evidence also reveals that he submitted several change of status and change of address forms to Petitioner. The evidence does not reveal that Respondent was at any time other than current in registering his business status and location with Petitioner.

Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered by the Department of Professional Regulation, Florida Real Estate Commission, dismissing the Administrative Complaint filed against William F. Casler, Jr. RECOMMENDED this 17th day of August, 1982, in Tallahassee, Florida. G. STEVEN PFEIFFER Assistant Director 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 17th day of August, 1982. COPIES FURNISHED: Theodore R. Gay, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 William F. Casler, Sr., Esquire 7217 Gulf Boulevard, Suite 14 St. Petersburg Beach, Florida 33706 Fred Wilsen, Esquire Department of Professional Regulation 400 West Robinson Orlando, Florida 32801 Mr. C. B. Stafford Executive Director Florida Real Estate Commission P. O. Box 1900 Orlando, Florida 32802 Mr. Samuel R. Shorstein Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301

Florida Laws (3) 120.57475.22475.25
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FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES vs. THE PINES OF DELRAY, 83-003134 (1983)
Division of Administrative Hearings, Florida Number: 83-003134 Latest Update: Jun. 21, 1984

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.

Florida Laws (4) 120.57718.113718.302718.501
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