Findings Of Fact Barkwood Square Condominium was developed by Mr. John Nell (Respondent). The declaration of condominium was filed on May 23, 1980, and transfer of control from Respondent to the condominium association took place at a meeting held on June 30, 1981. At the time of turnover, Bieder Management Company was Respondent's agent for the operation, maintenance and management of Barkwood Square. Bieder was accepted as the association's agent at turnover and continued in this capacity until February, 1982. No documents were produced at the transfer meeting, and all records and accounts then in existence remained in the hands of Bieder. In February, 1982, the condominium association became dissatisfied with Bieder and replaced it with Hotz Management Company. The records turned over to Hotz by Bieder at that time were incomplete, and the association then sought the assistance of Petitioner to obtain complete records and a financial accounting. Through its investigation in 1982, Petitioner and the condominium association obtained all records available. The testimony of Petitioner's investigator and two of the unit owners (who are also condominium association directors) established that no review of the financial records of the association had ever been conducted by an independent certified public accountant (CPA). The testimony of the unit owners-directors established that Respondent had not delivered any of the following items to the association within 60 days of turnover: Original or certified copy of the declaration of condominium. A certified copy of the articles of incorporation of the association. A copy of the bylaws. Minutes of association meetings. Resignation of officers and directors resulting from change of control. The investigation revealed that Respondent owes $4,138.32 in contributions to the condominium association. Respondent concedes that he owes this amount, which is based on common expenses incurred in excess of assessments to unit owners between July and October, 1980. Respondent paid certain association expenses with personal funds and was later reimbursed. Respondent concedes this procedure was not in keeping with good accounting practices. Respondent also failed to keep or turn over to the association the financial records pertaining to the period when he did not employ a management agent.
Recommendation Based on the foregoing, it is RECOMMENDED that Petitioner enter a Final Order directing Respondent to take the corrective action discussed herein as authorized by Subsection 718.501(1)(d)(2), F.S., and assessing a civil fine in the amount of $1,500 as authorized by Subsection 718.501(1)(d)4, F.S. DONE and ENTERED this 27th day of July, 1983, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of July, 1983. COPIES FURNISHED: Helen C. Ellis, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 N. Staten Bitting, Jr., Esquire 3835 Central Avenue Post Office Box 15339 St. Petersburg, Florida 33733 E. James Kearney, Director Division of Florida Land Sales and Condominiums Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Gary R. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue Whether Petitioner is entitled to attorney's fees and costs as a prevailing small business party pursuant to section 57.111, Florida Statutes (2015),1/ and, if so, in what amount.
Findings Of Fact The Division is the entity of the State of Florida empowered and required to ensure compliance with the Condominium Act, chapter 718, Florida Statutes, and implementing administrative rules. The Boca View Condominiums complex comprises 72 residential condominiums in Boca Raton, Florida. The Association operates Boca View Condominiums and is subject to the Condominium Act. The Association is not under developer control, but is controlled by the unit owners. Hurricane Wilma hit Florida in October of 2005. At that time, Mr. Alexander Boburka was a unit owner in Boca View Condominiums. Ms. Diana Kuka has lived in Boca View Condominiums since 1998 and was the president of the Association at the end of 2005. She testified that the Association is a non-profit business incorporated by the State of Florida. This testimony was supplemented by Department of State records showing the Association as a not-for-profit corporation whose principal place of business is in Boca Raton. She testified the Association had only two employees at the time of the Notice to Show Cause and a net worth of less than two million dollars. Boca View Condominium Association is a small business party. Ms. Kuka testified that the first time she learned that Mr. Boburka claimed that his unit had been damaged by Hurricane Wilma was on June 11, 2006, when Mr. Boburka sent an e-mail to her, stating: I am writing to ease my mind and assure myself that the Association litigation through the developer is responsible for the faulty roof that allowed rain water from Hurricane Wilma to enter my condo along pipes (common areas/elements?) and caused damage to both bathroom ceilings last year. I do not have wind coverage and have not yet repaired damage and do not plan to do so until after this hurricane season ends. Please confirm my understanding of the situation as it occurred with other units above and below me. My condo insurance company said that my standard policy does not cover the damage due to the fact that the hurricane caused damages. Kindly respond at your convenience. It is not clear if Ms. Kuka ever responded to Mr. Boburka, but a few months later, he wrote two checks, each in the amount of $1,000.00, to the order of Ricardo Salinas: one dated September 12, 2006, and the other dated September 15, 2006. The checks had the notation "repairs" written in the "For" space. An e-mail from Mr. Boburka to Ms. Kuka dated August 2, 2007, referenced a conversation between them in Costco two weeks previously and stated that Mr. Boburka was "in the process of obtaining a breakdown of cost to repair damages in my unit bathrooms and kitchen." It stated that he had copies of checks paid to the contractor. Ms. Kuka testified at hearing that the Association will not issue a check to a unit owner without an invoice: And we do not, we do not, absolutely not issue a check unless we have a backup, unless we have an invoice. Everybody can give us a check. Everybody can say, I spent this or I spent that. so I made it clear, because the board wanted to have some backup, wanted to have – you know, if he can't provide proof of damages but at least give us – we wanted to, you know, like give him the benefit of the doubt, but at least give us some breakdown, like an invoice that said, I repaired such and such, and it cost such and such. Notwithstanding Ms. Kuka's testimony that a check would not be issued without an invoice, the Association did not follow that policy with respect to Mr. Boburka in this case. Mr. Boburka did not provide a breakdown to the Association. The Association paid Mr. Boburka the amount of $1,961.34 by check dated November 28, 2007. Although the Association argued at hearing that the payment to Mr. Boburka was "contingent" and subject to his later providing proof regarding the amount and cause of his damages, the evidence does not support this claim. About five and one-half years later, a letter from the Association to Mr. Boburka, dated June 14, 2013, referenced an attached copy of the reimbursement check given to him in 2007 and requested him to "advise, as soon as possible, in detail, the nature of this expense." An almost identical letter, with the addition of the words "Second Request," and dated July 3, 2013, was sent to Mr. Boburka. Mr. Boburka did not provide the requested information. An "expense adjustment" in the amount of $1,961.34 was entered upon Mr. Boburka's account ledger from the Association, dated May 2, 2014. A note indicated, "Charge back for monies recd from association due to hurricane damages used for others [sic] purposes." Mr. Boburka filed a complaint with the Division on May 12, 2014. He alleged that the Association improperly applied a charge of $1,961.34 to his account ledger. Case No. 2014020742 was opened and assigned to Ms. Sirlei Silveira, a financial examiner in the Division's Bureau of Compliance. In response to Division inquiries, counsel for the Association e-mailed Ms. Silveira on Monday, July 28, 2014, setting forth reasons that it was believed Mr. Boburka was not entitled to the money that the Association gave him earlier, alleging generally that the Association believed the original claim by Mr. Boburka in 2006 was fraudulent. A data entry was made on Ms. Silveira's case file at the Division dated May 11, 2015. It indicated "Closing Order" and reflected a Code of "368." About a month later, a notation was made in the case indicating "Memorandum Prepare/Revise/Review" dated June 16, 2015. On July 28, 2015, Mr. Boburka, through counsel, filed a complaint with the Division alleging that the Association failed to include him on the ballot for election to Association office, despite proper notice of his intent to be a candidate. Mr. Boburka alleged that the reason he was not permitted to be a candidate was that he had not paid the improper charge that had been posted to his account earlier. The Division opened Case No. 2015033369 and assigned it to Mr. Harry Hague, the lead investigator for the Miami and Fort Lauderdale sections for the Bureau of Compliance. An entry dated July 29, 2015, was made on Ms. Silveira's case indicating "Case File Review." An entry dated August 19, 2015, indicating "Case File Review" was also made. At some point Mr. Hague was directed to merge Ms. Silveira's case into his own, because, as Mr. Hague testified, "it was part and parcel" to his own case. Mr. Hague testified that "[w]e wouldn't maintain two active investigations with a single issue." An entry on September 2, 2015, indicates "Case Reassigned" and the note "case reassigned to Hague for combining with investigation 2015033369 and preparation of aa." After a few more data entries indicating further reviews, an entry dated October 19, 2015, on the earlier case indicates "Case Closed Duplicate." Ms. Silveira's case was not closed on May 11, 2015, based upon a determination by the Division that there was no violation. Had that been done, the file would have reflected a "UF" disposition code, indicating that the charge was determined to be unfounded. Had the case actually been closed, the parties would have been notified of that fact. Contrary to the argument of the Association, Ms. Silveira's case was not closed because it was determined to be unfounded and then reopened by the Division as an act of retribution against the Association in response to other election concerns that had been the subject of an earlier complaint. The evidence did not show that the Division acted in bad faith. Mr. Hague prepared an investigative report dated September 1, 2015. The report concluded that the Association improperly posted a $1,961.34 charge to complainant Mr. Boburka's account ledger and improperly failed to include Mr. Boburka's name as an eligible candidate for the election of the Association's directors, in violation of provisions of chapter 718. On October 2, 2015, the Division filed a Notice to Show Cause against the Association regarding the $1,961.34 charge to Mr. Boburka's account ledger. The Notice to Show Cause provided the Association with a clear point of entry to request administrative proceedings, as it was required to do by law. The Association filed a "petition" requesting an administrative hearing on November 13, 2015. A little over one month later, on December 17, 2015, the Division filed a Motion to Dismiss the Petition and Cancel Hearing in DOAH Case No. 15-6768. The motion was granted. The Association was the prevailing small business party in DOAH Case No. 15-6768. The Association incurred attorney's fees and costs in defending against the Notice to Show Cause filed by the Division. The Association submitted an affidavit describing the nature and extent of attorney services and the costs incurred. Expert testimony by the Association's attorney provided additional detail and generally supported the reasonableness of the fees, except as further discussed below. The hourly rate of $375.00 was not contested by the Division's expert, and is found to be reasonable and customary. The Division presented the testimony of Mr. Peter Dunbar, accepted by the Association as an expert in reasonable and customary attorney's fees and in condominium association law. Mr. Dunbar's testimony as to reasonable and customary attorney's fees was credited on several matters of dispute. It would be reasonable and customary to bill only .6 hour for the telephone call from attorney Thomas Morton and computer communication to the client--the entry on the invoice dated October 19, 2015. On the entry dated November 9, 2015, to prepare and serve the response to the Administrative Complaint, 3.0 hours would be reasonable and customary, in addition to .4 hour to correct a mistake in the Petition. It is accepted that it was prudent for the Association to prepare a Motion to Dismiss as indicated on the invoice entry dated December 7, 2015, even though it seemed likely that Petitioner was going to dismiss without it, and in fact did so. However, Mr. Dunbar's contention that 3.9 hours to prepare the Motion to Dismiss was unreasonable is accepted. As Mr. Dunbar testified, the document substantially duplicated the content of the Petition Involving Disputed Issues of Material Fact that had been prepared earlier; no additional research was required. One hour is reasonable and customary. On the three entries dated December 9, 2015, related to preparation and service of subpoenas, this is a task customarily conducted by an assistant or paralegal; attorney time of .1 hour would be reasonable and customary to oversee this work. On the entry dated December 16, 2015, for an e-mail exchange with attorney Robin Smith, .1 hour would be reasonable and customary. On the three entries dated December 17, 2015, to prepare and serve routine Notices of Cancellation, .1 hour would be reasonable and customary. Finally, a reasonable and customary time to prepare a motion for prevailing party fees and affidavit from existing information, reflected in the January 4, 2016, entry, would be 1.5 hours. The Association showed that attorney's fees in the amount of $13,050.00 were reasonable and customary, based upon the adjusted total of 34.8 hours. With respect to costs, the claimed amount of $174.00 for "Electronic Records Fee" was vague and non-specific; it was not shown to be reasonable. The remaining costs, in the amount of $320.00, were proven by the Association. As the parties stipulated, no special circumstances exist that would make an award of fees and costs unjust. The action of the Division in filing the Notice to Show Cause was substantially justified on the facts and the law.
Findings Of Fact Respondent, Camino Real Village, is the joint venture and developer of a sixty-four unit condominium project known as Camino Real Village V (project) in Boca Raton, Florida. The project consists of two buildings (5751 and 5801) with thirty-two units each. Respondent, B&S Ventures, Inc. (B&S), a Florida corporation, is a partner in the joint venture. The other partner, Middlesex Development Corporation, a California corporation, was not named a respondent in this cause. Although the development consists of at least four separate condominium projects known as Camino Real Villages II, III, IV and V, only Camino Real Village V is in issue in this proceeding. Respondents, as the developer and partner of the joint venture, are subject to the regulatory requirements of petitioner, Department of Business Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes (Division). They are charged with violating various provisions of Chapter 718, Florida Statutes (1985), as set forth in greater detail in the Division's notice to show cause issued on July 17, 1986. The Camino Real project is considered to be a multi-condominium project. This means the development includes more than one condominium project but that all are operated by a common association. The parties agree that the project is not a phase condominium project. Under Division rules and applicable statutes, the developer of a multi-condominium project is required to file with the Division a set of "creating" documents at the inception of the project. The creating documents include, among other things, a prospectus, declaration of condominium, plans and survey, legal description, percentages of common ownership, surplus and expenses, articles of incorporation, by- laws, site plan, restrictions (if any), and the estimated operating budget for the first year. Such documents must be submitted for each condominium within the project. However, where the documents are identical to those submitted for another condominium, the developer may file a "certificate of identical documents" wherein the developer certifies that all disclosure items are identical with items for another condominium within the project which has been previously filed with the Division. After the creating documents are filed, the developer must thereafter file additional documents as new condominiums are constructed and completed. This is generally accomplished by filing an amendment to the original declaration for condominium. The amendment includes a surveyor's certificate attesting that the construction on the project has been completed. The purpose of the later filing is to inform the Division that construction on the new condominium has been substantially completed. On an undisclosed date in 1979, respondents filed their creating documents for certain condominiums in Camino Real Village. On November 19, 1980, they submitted their filing for the creation of Camino Real Village V. These documents were accepted as to "form" on December 11, 1980. They included a certificate of identical document signed by B&S' president which certified certain documents were identical to those previously submitted for Camino Real Village IV, a legal description of the property on which the condominium sits, sketches of the types of units to be built, a typical floor plan for Buildings 5751 and 5801, an estimated operating budget based on sixty-four units and common ownership percentages for each unit in the two buildings. Under Division requirements and state law, the documents should have contained a statement reflecting that the condominium was not substantially completed. 3/ However, they did not, and this omission was not detected by the Division when it reviewed and approved the initial filing. On October 23, 1984 respondents filed the declaration of condominium for Camino Real Village V in the local public records. The documents have been received in evidence as petitioner's composite exhibit 1. They reflected that the percentage of ownership in the common elements for both buildings equaled one hundred percent. Section 3(b) of the declaration provided for the creation of a condominium consisting of two buildings (5751 and 5801) containing thirty- two units each. The documents included a surveyor's certification that Building 5751 was substantially completed. However, as to Building 5801, which was not completed at that time, no statement reflecting its state of completion was filed. It is also noted that the declaration was not filed with the Division as required by law, and the Division did not learn of its existence until sometime later. Since the filing of the declaration, respondents have operated Camino Real Village V as a condominium. On October 23, 1984, respondents executed the closing documents on the sale of the first unit (Unit No. 106 in Building 5751) in Camino Real Village V. The warranty deed was later recorded in the local public records on November 1, 1984, and it is found this is the appropriate date on which the sale of the first unit occurred. This is consistent with the standard practice of parties executing documents prior to closing but not considering a unit sold until the money is actually transferred from the buyer to the seller. This date is significant since it may bear directly upon the date when the developer must begin paying common expenses on developer-owned units. On or about October 24, 1985 a "First Amendment to the Declaration of Camino Real Village V" was recorded by respondents in the local public records. It amended the declaration previously executed on October 23, 1984 and included, among other things, a surveyor's certificate reflecting that Building 5801 had been substantially completed. It also attempted to submit Building 5801 to condominium ownership. Although the amendment and attached documents should have been filed with the Division, respondents neglected to do so. The Division first learned that the documents existed during the course of this proceeding. According to paragraph 15 of the declaration, common expenses can only be assessed by the Association against "each condominium parcel." A condominium parcel is defined in paragraph 4(c) as "the condominium unit, together with an undivided share in the common elements appurtenant thereto." A condominium unit in turn is defined in paragraph 4(a) as "the unit being a unit of space, designated 'condominium unit' on the sketch of survey and plans attached hereto and marked as Exhibit B." The latter exhibit, which is attached to the declaration, contains the plans and survey of the project, the surveyor's certification of substantial completion, and a graphic description of each finished unit within the project. Therefore, the above definitions evidenced an intent that common expenses could be assessed only against completed units. Pursuant to Subsections 718.116(1) and (8), Florida Statutes (1985), a developer is responsible for paying his pro- rata share of common expenses on all developer-owned units. The same law permits the declaration to provide that the developer is relieved of this per-unit obligation until the expiration of a ninety-day period after the first unit is sold. In this case, the declaration had such a provision in paragraph 14. It provided in part as follows: . . . for such time as the Developer continues to be a Unit Owner, but not exceeding ninety (90) days subsequent to the closing of the first condominium unit, the Developer shall only be required to contribute such sums to the common expenses of the Condominium, in addition to the total monthly common expense assessments paid by all other Unit Owners, as may be required for the Condominium Association to maintain the condominium as provided in said Declaration of Exhibits . . . Developer hereby reserves the option to guarantee the level of assessments to unit owners for a specified time interval and thereby limit its obligations to contribute to condominium maintenance in accordance with the provisions of Chapter 718.116(8), Florida Statutes. The parties agree that the monthly assessments for common expenses during the period relevant to this proceeding were as follows: Type A Units $135.20 Type B Units 138.64 Type C Units 163.96 The declaration also provides that ten percent interest must be added to any liability owed. The record reflects, and respondents concede, that such assessments were not paid on any units in Building 5801 until the following dates: Units 100-107 ----------- August 28, 1985 Units 200-207 ----------- September 5, 1985 Units 300-307 ----------- September 10, 1985 Units 400-407 ----------- September 18, 1985 The above dates are exactly ninety days after certificates of occupancy were issued for each of the four floors of Building 5801. Even though assessments were not paid by respondents until those dates, beginning on January 31, 1985 and continuing until such assessments were paid, other unit owners were charged and paid assessments based upon a budget for sixty-four units. As it turned out, the difference between the budget and annual common expenses actually incurred by the project was approximately $32,100, or the amount the Division contends respondents owe. In 1982-84, petitioner conducted an investigation of Camino Real Villages II, III and IV based upon complaints received from a certain unit owner. The complaint concerned allegations that access to association books was denied, that the declaration contained a developer guarantee, that maintenance expenses were not properly paid, and that improper assessments were levied on unit owners. The file was closed in November, 1984 after the Division's enforcement supervisor concluded that the allegations were either "unfounded" or could be resolved through voluntary compliance by the Association. As to the fourth issue, which was an allegation that the developer- controlled Association had improperly assessed unit owners from November, 1980 to January, 1982, the investigative report noted that the developer was "allocating them based on the completed units versus the total units filed for the entire community." The enforcement supervisor concluded that this was "the method chosen by the Association," and "absent specifics in the documents, we lack jurisdiction . . . to question this practice." There is no mention of the term "certificate of occupancy" in the report. However, uncontradicted testimony by respondents reflects that its use of the date of issuance of the certificate of occupancy to determine when assessments became due was the focus of the investigation, and that respondents relied upon those statements in continuing their practice of not paying assessments until ninety days after a certificate of occupancy was issued on a unit. They did so, at least in part, on the theory that the Association did not assume responsibility for expenses until that time. Respondents point out that the filing documents submitted to the Division in November, 1980 were defective in that the surveyor's certificate was incorrect. They go on to suggest that, because of this deficiency, the filing might be invalidated by a court and therefore the statutory assessment provision would not apply. However, no person has ever challenged the validity of the filing, and the general law contains a curative provision for any initial filing errors. They also assert that, if any liability is in fact owed, they are entitled to set-offs for expenses incurred by the developer while the project was being constructed. These include payments for real estate taxes, utility bills, Boca Del Mar Improvement Association, Inc. fees, trash removal, insurance, security service, assessments and maintenance and are itemized in attachments to respondents' exhibit 1. However, there is no rule or statutory provision which authorizes this type of set-off to be applied against common expenses. Therefore, the expenses itemized in respondents' exhibit 1 are deemed to be irrelevant.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the respondents be found guilty of violating Section 718.116, Florida Statutes (1985), as charged in the notice to show cause, and that they be required to pay the Association for past due common expenses on developer-owned units in Building 5801 as set forth in paragraph 8 of the conclusions of law plus ten percent interest to and including the date of payment. DONE AND ORDERED this 30th day of March, 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 1988.
Findings Of Fact Respondent A.R.M. Limited, Inc., is the developer of the residential condominium known as Trails at Royal Palm Beach, a phase condominium containing a total number of 230 units when completed, located in Royal Palm Beach, Florida. During 1981 Respondent submitted to Petitioner all documents required to properly register the condominium, including the Declaration of Condominium and the Contract for Sale. By letter dated June 16, 1981, Petitioner notified Respondent that the documents it had received were in acceptable form and that Respondent would soon be advised as to the results of the Petitioner's "content examination". By letter dated July 14, 1981, Petitioner notified Respondent that it had completed its examination, and the condominium documents were proper. On April 27, 1982, Respondent recorded the Declaration of Condominium for Phases I and II in the public records in Palm Beach County. The Offering Circular, the Declaration of Condominium, and the Contract for Sale contained a developer's guarantee of common expenses for a two-year period commencing with the recording of the Declaration of Condominium and guaranteeing that the unit owners' monthly assessment would not exceed $75 a month for the period of the guarantee. Accordingly, the initial guarantee period terminated April 27, 1984. Thereafter, the guarantee period was extended by the developer until April 27, 1985, and again until December 31, 1985. No evidence was offered to show that any unit owner objected to the extension of the guarantee period. However, no vote of the unit owners was taken regarding either of the two extensions, and no written agreement was obtained. During the period of time between the initial guarantee period and January 1, 1986, Respondent did not pay assessments on a regular basis but instead paid the difference between the association's expenses and income. In other words, the developer did fund all shortfalls through December 31, 1985. The Offering Circular approved by Petitioner in 1981 contained a copy of the Contract for Sale which was to be used, and in fact has been used, for the condominiums units. That Contract specifically provides for purchasers to pay an initial contribution to working capital in the amount of "$300 . . . which may be used by the Association for start-up expenses as well as ordinary expenses . . . " Pursuant to that contract, Respondent utilized start-up funds to off set common expenses of the condominium arising from the sale of 28 units between April 27, 1984 and April 27, 1985. Fourteen of those units were sold between April 27, 1984 and October 1, 1984, and 14 of those units were sold between October 1, 1984 and April 27, 1985. In a phase condominium, since the total number of units within the condominium increases as phases are added, the number of unit owners paying assessments for common expenses increases and, consequently the percentage of ownership of the common elements and percentage of common expenses liability changes per unit. When Respondent registered the condominium with Petitioner in 1981 Respondent filed all documents necessary for the entire project (including all phases) but only paid the filing fee related to Phases I and II at that time. As Respondent continued developing the condominium and selling additional units in subsequently-constructed phases, appropriate amendments to the original Declaration were recorded in the public records. Respondent, however, failed to file copies of those recorded amendments with Petitioner. By cover letter dated March 3, 1986, Respondent filed with Petitioner a developer's filing statement for subsequent phases and enclosed a check in the amount of $940 to cover filing fee requirements. According to an attachment to that filing, Respondent was filing Phases 900, 1000, 1100, 1200, 1300, 1400, 2000, 2100, 2200, 2400, and 2500, which in totality comprised 94 units. According to the same attachment, these Phases were added to the condominium through recordation of amendments to the original Declaration with such recordation occurring between 1983 and 1986. According to information submitted by Respondent to Petitioner, as of March 3, 1986, closings had taken place on 77 units in Phases 900, 1000, 1100, 1200, 1300, 1400, 2100, 2400, and 2500 prior to Respondent's filing the subsequent phase documents with Petitioner. There is no allegation that the documents when filed were improper or that Respondent failed to provide them to the unit owners at the time they were executed. In January of 1988 unit owners other than the developer elected a majority of the board of administration of the condominium association, and turnover of control of the association from developer control to control by unit owners other than the developer occurred.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it Is'; RECOMMENDED that a Final Order be entered: Finding Respondent guilty of the allegation contained within count one; Finding Respondent not guilty of the allegations contained within counts two and three of the Notice to Show Cause; Requiring Respondent to effectuate the financial review discussed in the Conclusions of Law section of this Recommended Order and pay to the condominium association any amount of unpaid assessments for the time period in question; and Assessing a fine against Respondent in the amount of $1000. DONE and RECOMMENDED this 20th day of May, 1988, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 1988. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 87-2917 Petitioner's proposed findings of fact numbered 1, 3, 5, 7, the first sentence of 9, the third sentence of 15, and 16-20 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 8 has been rejected as being immaterial to the issues under consideration herein. Petitioner's proposed findings of fact numbered 2, 4, 6, 9 except for the first sentence, 10-14, and 15 except for the third sentence have been rejected as not constituting findings of fact but rather as constituting conclusions of law, argument of counsel or recitations of the testimony. COPIES FURNISHED: Van B. Poole, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Karl M. Scheuerman, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 A.R.M. Limited, Inc. Trails at Royal Palm Beach Suite 315 1300 North Florida Mango Road West Palm Beach, Florida 33409 Dennis Powers, Esquire Suite 315 1300 North Florida Mango Road West Palm Beach, Florida 33409
The Issue The issue in this case is whether Respondent committed a discriminatory housing practice in violation of chapter 760, Florida Statutes (2010). All statutory references will be to Florida Statutes (2010), unless otherwise indicated.
Findings Of Fact On or about November 18, 2010, Petitioner filed a Housing Discrimination Complaint. The complaint was the second or third of such complaints filed encompassing the same or similar issue: Petitioner's desire to have a laundry within his personal condominium unit. Pursuant to FCHR procedure, an investigation of the matter was completed that resulted in a Notice of Determination of No Cause. Essentially, FCHR found that based upon the allegations raised by Petitioner, there was no cause from which it could be found that Respondent had violated the Florida Fair Housing Act. Thereafter, Petitioner elected to file a Petition for Relief to challenge the determination and to seek administrative relief against Respondent for the alleged violation. FCHR then forwarded the matter to DOAH for formal proceedings. Petitioner and his wife own and reside in a condominium unit on the second floor of the Ocean Park Condominium complex. The property is located in Brevard County, Florida, and is subject to covenants and restrictions adopted at the time the unit was converted from an apartment to a condominium. There is no elevator to service Petitioner's second-story unit. Previously, the building and all units therein were designed and occupied as rental apartments. Although the property was converted several years ago, the basic structure of the building was not materially changed. The condominium complex has amenities that include a commonly owned laundry facility. At all times material to the allegations of this case, Petitioner knew or should have known that a laundry could not be located within his unit as no owner may lawfully have a laundry. Further, it was evident to Petitioner that his unit was located on the second floor accessed only by stairs at the time he purchased the condominium. Although Petitioner's unit is plumbed and wired for a washer and dryer, the laundry connections were not constructed in accordance with, or approved by, condominium rules and regulations. Should Petitioner attempt to connect a washer and/or dryer within the unit, Respondent would take legal action to enforce the condominium rules and seek an injunction prohibiting the use of the appliances. Respondent does not believe the units were constructed so that each unit could have laundry facilities. Additionally, Respondent will take legal action to remove laundry facilities found in any unit of the complex. Petitioner is 90+ years old and announced that hauling laundry from his second-story unit to the common laundry facility is difficult, if not impossible for him to continue to do. Petitioner has numerous medical conditions that make climbing stairs and carrying laundry very difficult. Additionally, Petitioner's wife has medical issues that preclude her from transferring the laundry down and back to the condominium unit. Although the medical evidence submitted by Petitioner is hearsay, it is accepted that Petitioner and his wife have great difficulty navigating to their second-story unit. It is also accepted that carrying laundry to and from the laundry facilities would be a great burden to them. Petitioner previously filed a complaint against Respondent and asked for relief based upon disability or handicap, since neither he nor his wife can do laundry as prescribed by the condominium. In settlement of the prior complaint with FCHR, Respondent agreed to provide an aide to Petitioner who will carry the laundry down from Petitioner's unit to the condominium laundry, and return the laundry up to the apartment. Petitioner must do the actual work of loading, unloading, and preparing the laundry for return to the unit. The parties voluntarily executed a Conciliation Agreement that provided, in pertinent part: It is understood that this Agreement does not constitute an admission on the part of the Respondent that it violated the Fair Housing Act of 1983, as amended. Complainant agrees to waive and release any and all claims against the Respondent with respect to any matters which were or might have been alleged in the complaint filed with the Commission or with the United States Secretary of Housing and Urban Development, and agrees not to institute a lawsuit based on the issues alleged in these complaints under any applicable ordinance or statute in any court of appropriate jurisdiction as of the date of this Agreement. Said waiver and release are subject to Respondent’s performance of the premises and representations contained in 1a, 1b, and 2b herein. After entering into the conciliation agreement, Petitioner, his wife, and Respondent executed a Settlement of Laundry Complaint. Petitioner did not employ a lawyer to give him legal advice before signing the conciliation agreement or the settlement agreement. The settlement outlines the terms upon which Respondent is to provide assistance to Petitioner to facilitate laundry duties. Petitioner claims the only acceptable remedy at this time, is to allow Petitioner to connect a washer and dryer within his unit so that he and his wife may do laundry without leaving their home, and at such times as they may wish to perform the laundry. Petitioner maintains that this remedy will eliminate the expense of paying the aide to assist him and will be an overall savings to the condominium association. Respondent maintains that it is willing to abide by the terms of the settlement agreement previously reached with Petitioner and that the terms of the settlement control the instant case. Further, Respondent asserts no facts support a legal basis for setting aside the agreement. The only changes in circumstances since the execution of the settlement are: Petitioner is older, Petitioner and his wife are more infirm, and Petitioner does not want to have to schedule the laundry as previously agreed, due to medical appointments. With the exception of the number of medical appointments, all of the "changed circumstances" were reasonably foreseeable at the time the settlement was signed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing Petitioner's claim of discrimination, but reminding Respondent of the terms of the parties' agreement regarding accommodation for Petitioner's laundry needs. DONE AND ENTERED this 3rd day of May, 2011, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of May, 2011. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Sebastian Barbagallo 311 Taylor Avenue, Apartment G19 Cape Canaveral, Florida 32920 Joe Teague Caruso, Esquire The Law Offices of Caruso, Swerbilow & Camerota, P.A. 190 Fortenberry Road, Suite 107 Merritt Island, Florida 32952 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
