The Issue The issues in this case are whether the Respondent, Raul Aguilera, committed the violation alleged in an Administrative Complaint, DPBR Case Number 2007-065018, issued by Petitioner Department of Business and Professional Regulation on January 12, 2009, and, if so, the penalty that should be imposed.
Findings Of Fact The Parties. Petitioner, the Department of Business and Professional Regulation (hereinafter referred to as the "Department"), is the state agency charged with regulating the practice of community association management pursuant to Chapters 455 and 468, Florida Statutes. Raul Aguilera is and was at the times material to this proceeding a licensed Florida Community Association Manager (hereinafter referred to as a “CAM”), having been issued license number CAM 6844. At the times material to this proceeding, Mr. Aguilera’s address of record was 2200 Northwest 102nd Avenue, Apartment 5, Miami, Florida. Courts of Birdwood Condominium Association. At the times material to this proceeding, Mr. Aguilera served as the Manager of SPM Group, Inc., and as the CAM for the Courts of Birdwood Condominium Association (hereinafter referred to as the “Association”). The Association’s 2007 Election. On or about October 16, 2007, the Department received a petition package from residents of the Association requesting the appointment of an election monitor (hereinafter referred to as the “Petition”), an Association election that had been scheduled for November 7, 2007. The Petition was reviewed and determined to be complete. At the time of receipt of the Petition, Danielle Carroll was the Department’s “Condominium Ombudsmen.” See § 718.5011, Fla. Stat. Among other powers, Section 718.5012(5), Florida Statutes, grants the following power to the Condominium Ombudsmen: (5) To monitor and review procedures and disputes concerning condominium elections or meetings, including, but not limited to, recommending that the division pursue enforcement action in any manner where there is reasonable cause to believe that election misconduct has occurred. Section 718.5012(9), Florida Statutes, establishes the Condominium Ombudsmen’s authority with regard to elections disputes: (9) Fifteen percent of the total voting interests in a condominium association, or six unit owners, whichever is greater, may petition the ombudsman to appoint an election monitor to attend the annual meeting of the unit owners and conduct the election of directors. The ombudsman shall appoint a division employee, a person or persons specializing in condominium election monitoring, or an attorney licensed to practice in this state as the election monitor. All costs associated with the election monitoring process shall be paid by the association. The division shall adopt a rule establishing procedures for the appointment of election monitors and the scope and extent of the monitor's role in the election process. Pursuant to the foregoing quoted charge, Ms. Carroll first verified that 15 percent of the Association’s residents had signed the Petition requesting the appointment of a monitor. Once Ms. Carroll had verified that she was authorized and, indeed, required to appoint an election monitor for the Association, she sent a letter dated October 7, 2007, addressed to the “Board of Directors” of the Association notifying them that the Petition had been received, that it had been determined to be complete and sufficient, and that she had, pursuant to the authority of Section 718.5012(9), Florida Statutes, and Florida Administrative Code Rule 61B-00215, “appointed an election monitor to attend and conduct the election of directors at your association’s annual meeting.” Ms. Carroll also informed the Association that “all costs associated with the election monitoring process shall be paid by the association.” Once a request for an election monitor has been received and verified, the Condominium Ombudsmen will not cancel the monitor unless the scheduled election is cancelled. In response to Ms. Carroll’s October 7, 2007, letter, Mr. Aguilera spoke with Ms. Carroll by telephone on or about October 25, 2007. During this conversation, Mr. Aguilera told Ms. Carroll that “the Board members aren’t running for re- election and so there wasn’t going to be an election.” In fact, while the dispute that had led to the filing of the Petition had been resolved, the November 7, 2007, election had not been cancelled, which Mr. Aguilera was fully aware of. In a letter dated October 29, 2007, from Mr. Aguilera to Ms. Carroll, Mr. Aguilera confirmed that there would be no election: IN RESPONSE TO YOUR LETTER DATED OCTOBER 25, 2007 [NOT OFFERED AT HEARING], I MUST ADVISE THAT THERE WAS NO ELECTION BEING HELD DUE TO THE FACT THAT THE PRERSON THAT FILLED [SIC] PETITION FOR RLECTION MONITOR WILL BE ON THE BOARD OF DIRECTORS AUTOMATICALLY. NO MEMBERS OF THE PRIOR BOARD OF DIRECTORS SIGNEDUP FOR THE ELECTIONS [SIC]. . . . . Mr. Aguilera’s representation to Ms. Carroll in the October 29, 2007, letter was only partially correct, as Mr. Aguilera was fully aware. What had actually happened was that the Petition had been signed and filed because the residents who signed it were upset with the current Board of Directors. The persons on the Association’s Board of Directors who the residents signing the Petition were upset with decided not to run for re-election. This decision eliminated the concern which had generated the Petition. Additionally, Mr. Aguilera was concerned about the costs associated with having a monitor at the election. In an effort to avoid the costs of the monitor, Mr. Aguilera simply told Ms. Carroll that the election had been cancelled. Despite Mr. Aguilera’s representations to the contrary, the election of the Association’s Board of Directors was held as scheduled on November 7, 2007. Seven candidates were listed on the election ballot and five of those individuals were elected. Because the number of candidates exceeded the number of positions, the election was necessary. See § 719.112(2)(d)1., Fla. Stat. In a letter dated December 10, 2007, from Mr. Aguilera to the Department’s Bureau Chief-Investigations, Mr. Aguilera admitted that he “made a wrong decision and wrote a letter to give some answers to the (DPBR) request.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation enter a final order finding that Mr. Aguilera committed the violation described in this Recommended Order and imposing the following penalties: Probation for 12 months, beginning upon the entry of the final order in this case; Payment of an administrative fine in the amount of $750.00; Attendance at 12 hours of continuing education in CAM practice to be completed within his probation period; and Payment to the Department of costs of $316.12. DONE AND ENTERED this 10th day of June, 2009, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of June, 2009. COPIES FURNISHED: Philip F. Monte, III, Esquire Department of Business & Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202 Raul Aguilera 2200 Northwest 102nd Avenue Apartment 5 Miami, Florida 33172 Reginald Dixon, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Anthony B. Spivey, Executive Director Regulatory Council of Community Association of Managers Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondent discriminated against Petitioner because of his race, sex or religion.
Findings Of Fact Respondent owns and operates the Valu-Lodge Motel located at 4810 West Highway 98, Panama City Beach, Florida. The motel offers rooms for rent to the public and is a "transient public lodging establishment" within the meaning of Florida Statutes. Petitioner is a white male. His national origin is American. Although Petitioner’s complaint and petition indicate that Petitioner espouses to be a member of the Church of Christ, there was no evidence presented at the hearing regarding Petitioner’s religion. On September 9, 2004, Petitioner rented a motel room from Respondent at its Panama City Beach motel. The rental term was week to week. At some point, Respondent felt Petitioner had become disruptive to the operation of the hotel and to its guests. On November 25, 2005, Respondent informed Petitioner that it would no longer rent a room to Petitioner and hand-delivered a Notice of Termination of Lease to Petitioner. The Notice stated that Petitioner must vacate the premises by December 1, 2005. Petitioner refused to vacate the motel premises. On December 9, 2005, Respondent hand-delivered a Fifteen Day Notice for Possession of Premises to Petitioner. The Notice indicated that no further rent would be accepted. Petitioner again refused to vacate the premises. Petitioner also did not pay any further rent to Respondent. Respondent filed an eviction proceeding against Petitioner. The first and second eviction proceedings appear to have been dismissed for procedural reasons. However, the third eviction proceeding was successful. During that proceeding, Petitioner had the opportunity to defend against eviction based on the claims of discrimination raised in this matter. However, on June 22, 2007, after hearing, Respondent received a final judgment, awarding the Intown Companies, Inc., $19,213.18 in unpaid rent, plus interest. Respondent also received a Final Judgment of Eviction awarding the Company possession of the premises and court costs. A Writ of Possession was issued on June 25, 2007, and Petitioner vacated the premises on June 27, 2008. There was no evidence presented by Petitioner that demonstrated Respondent discriminated against Petitioner in any manner. There was absolutely no evidence of any racial, nationalistic or religious bias on the part of Respondent. Apparently, Petitioner believes that he is entitled to rent a room from Respondent simply because he is a member of the public and desires to rent a room from Respondent. Neither the facts, nor the law supports Petitioner’s misinformed view of the view of the law. Given the utter lack of evidence presented by Petitioner, the Petition for Relief should be dismissed.
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 the Petition for Relief. DONE AND ENTERED this 3rd day of September 2008, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of September 2008. COPIES FURNISHED: Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 David Alan Johnson 20417 Panama City Beach Parkway No. 8 Panama City Beach, Florida 32413 Melton Harrell, Authorized Agent The Intown Companies, Inc. d/b/a Valu Lodge American Motel Management, Inc. 2200 Northlake Parkway S-277 Tucker, Georgia 30084-4023
The Issue The issues in the case are whether the allegations set forth in two separate Notices to Show Cause are correct, and, if so, what penalty, if any, should be imposed.
Findings Of Fact The Respondent is the association governing the Clarcona Condominium in Apopka, Florida. The Clarcona Condominium is comprised of a total of 946 units. The Respondent has an office located on the Clarcona property where available records of the association are located. Notice to Show Cause dated April 1, 2003 (DOAH Case No 03-3209, DBPR Docket No. 2003040435) By letter hand delivered to the Respondent's office on February 13, 2002, Mike Sims, a Clarcona unit owner, asked to review the Respondent's financial records, including accounts receivable and a "reserve study." Mr. Sims previously requested information and records from the association, and apparently received the information on a timely basis. Subsequent to the February 13 request, Mr. Sims designated another resident, Curtis Faulk, to represent him in his records request. The Association manager made an appointment with Mr. Faulk for February 23, 2002, to review the requested records. During the appointment, Mr. Faulk reviewed some of the requested information. As of the February 13 request and, apparently, continuing through at least February 23, the Respondent's accounts receivable records were being converted from one type of software system to another. There was concern by the Association manager that the Association's accounts receivable records were not accurate. The only reserve study apparently available was a "draft" that had been prepared for review by an accountant for the Association manager. Because the Respondent was concerned about the accuracy of the accounts receivable records and the draft reserve study, the Respondent did not provide the accounts receivable or the draft reserve study for Mr. Faulk's review. The evidence establishes that the requested accounts receivable and reserve study information were not provided within five working days of the Respondent's receipt of Mr. Sims' request. Notice to Show Cause dated July 16, 2003 (DOAH Case No 03-3208, DBPR Docket No. 2003056262) By letter received on February 19, 2003, Clarcona unit owner Ansel Wood sought to review certain association records including the "unapproved minutes of the most recent meeting" of the Association membership. Mr. Wood and the Association manager set an appointment for February 26, 2003, to review the requested records. At the appointed time, Mr. Wood received access to some of the requested records, but not to the "unapproved minutes of the most recent meeting." At the time of the review by Mr. Wood, the meeting minutes had not been typed. The meeting referenced in Mr. Wood's letter of request occurred in January 2003. The evidence establishes that the requested minutes of the January 2003 meeting were not provided within five working days of the Respondent's receipt of Mr. Wood's request. Mr. Wood sold his unit sometime in May 2003. The minutes of the meeting were not typed until June 4, 2003. Mr. Wood did not receive access to the meeting minutes prior to the sale of his unit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums, and Mobile Homes, enter a Final Order finding that the Respondent has violated Subsection 718.111(12)(b), Florida Statutes (2003), as set forth herein and assessing a penalty of $7,500. DONE AND ENTERED this 16th day of February, 2004, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of February, 2004. COPIES FURNISHED: Joseph S. Garwood, Esquire Department of Business and Professional Regulation The Augusta Building, Suite 100 8685 Northwest 53rd Terrace Miami, Florida 33166 Robert L. Taylor, Esquire Taylor & Carls, P.A. 850 Concourse Parkway, South Suite 105 Maitland, Florida 32751 Nancy Campiglia, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Ross Fleetwood, Division Director Division of Florida Land Sales, Condominiums, and Mobile Homes Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Respondent Henry Huggins is presently licensed by the Construction Industry Licensing Board as a certified general contractor under license number CO C003466. He first received his license in November of 1972 and has since been continuously licensed. His license was however suspended for a period of one year beginning on May 16, 1980. That suspension was by an Order of the Florida Construction Industry Licensing Board. In October of 1981 Mr. Huggins renewed his license on inactive status but changed it to active status in December 1981. His license continued to be active and he is the qualifying agent for Florida Petroleum Services, Inc., in Winter Park Florida. In the fall of 1980 Mr. Albert Dupre agreed to do some home renovation work for Dr. Charles Gill at Dr. Gill's residence located at 2193 Turkey Run, Winter Park, Florida. Mr. Dupre completed the work and shortly thereafter in the spring of 1981 he and Dr. Gill entered into another oral contract whereby Mr. Dupre would construct an upstairs addition to Dr. Gill's home. The addition included the installation of a bathroom and another bedroom. In exchange for these services Dr. Gill "traded off" dental work for Mr. Dupre's wife and agreed to pay an additional $12,000 or $13,000. At Mr. Dupre's request the construction permit for the upstairs addition was obtained by the Respondent Henry L. Huggins. At all times material Albert Dupre has held no contracting licenses authorizing him to individually perform the work called for by his agreement with Dr. Gill. During the time in question, that is April 1981, Respondent did not himself have an active contractor's license due to his suspension by the Construction Industry Licensing Board. He was authorized by the qualifying agent for Roberts Insurance Contractors to obtain building permits under the qualifying agent's license in order to undertake building projects for Roberts. Roberts Insurance Contractors was not a party to the agreement between Dr. Gill and Mr. Dupre for the up stairs addition to Dr. Gill's home. On April 7, 1981 Respondent obtained building permit number 7487 from the City of Winter Park, Florida, which authorized the construction of a bedroom and bathroom addition on the property of Dr. Charles Gill in Winter Park, Florida. Respondent obtained that permit on behalf of Mr. Dupre because of their friendship and their previous business associations dating back to the mid- 1970's Respondent did not supervise or otherwise participate in the construction of Dr. Gill's addition until the work was complete and Dr. Gill made a complaint to several regulatory bodies about Mr. Dupre's work. This complaint centered around the earlier air conditioning project; but once notified that there were difficulties concerning the project, Respondent, along with Mr. Dupre, completed all unfinished items and corrected all defects. As a result of Respondent's willingness to remedy those defects Dr. Gill has requested that all charges against Mr. Huggins here be dropped.
Recommendation Based on the foregoing Findings of Fact and Conclusions Law, it is RECOMMENDED: That the Construction Industry Licensing Board enter a Final Order suspending the license of Henry L. Huggins as a certified general contractor for a period of two (2) years from the date of the Board's Final Order. DONE and RECOMMENDED this 17th day of February, 1984, in Tallahassee, Florida. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9673 Filed with the Clerk of the Division of Administrative Hearings this 17th day of February, 1984.
Findings Of Fact The parties to this proceeding have stipulated to the correctness of the following facts: Respondent filed a Consent and Joinder simultaneously with the Declaration of Tuscany Place, a condominium, which was recorded in Official Records Dock 1281, Page 1833, Public Records of Seminole County, Florida, and was filed with the Division of Florida Land Sales and Condominiums under I.D. #80 CN5742. Respondent accepted deeds in lieu of foreclosure from the Developer, Goehring Development Corp., under paragraph number 16.5 of the Declaration of Condominiums which deeds were dated May 10 and May 12, 1982, and recorded in Official Records Book of Seminole County, Florida. (Copies of the deeds are attached [to the Stipulation as to Facts] and are self-explanatory.) Respondent sold Unit 16-E to Huey M. Napier. All remaining units were sold to Larry J. Whittle on January 31, 1983. Copies of contracts for the two purchases are attached [to the Stipulation as to Facts]. The term "developer" was defined in paragraph 21.7 of the Condominium Declaration and was approved for filing by the Division including the provision that any successor or alternate developer must indicate its consent to be treated as the developer. Respondent attempted to comply with oral and written communications from the Division as to the regulation relating to "Subsequent Developer," as Respondent could not locate Statutes or Division Rules requiring Subsequent Developer filing. Copies of letters from the Division are attached [to the Stipulation as to Facts]. Respondent admits the sales described above, but denies any liability under Statutes or Rules as a matter of Law. The above-numbered paragraphs constitute the facts stipulated between the parties. Attached to the parties' stipulation are a series of documents. These documents establish that the aforementioned sale from Respondent to Huey M. Napier occurred on or about October 22, 1982. This sale involved a single condominium unit. The remaining ten units obtained by Respondent from the original developer by virtue of a deed in lieu of foreclosure were sold on or about January 4, 1983. On or about November 29, 1982, representatives of Petitioner warned Respondent's counsel that failure to file as a second developer with Petitioner in accordance with Section 718.502, Florida Statutes, would place Respondent in violation of that law. Respondent subsequently filed with Petitioner in accordance with the requirements of Section 718.502, Florida Statutes, on or about January 14, 1983.
