The Issue Whether Respondent, a condominium association, violated Section 718.112(2)(c), Florida Statutes; by holding board meetings on January 2, 7, and 16 or 17, 1985, which were not open to all unit owners and for which notice was not posted; If so, what sanctions should be imposed.
Findings Of Fact Petitioner, the Department of Business Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes, is the state agency charged with the duty of enforcing Chapter 718, Florida Statutes, the Florida Condominium Law. Respondent, Windsor Park Condominium Association, Inc., is the condominium association responsible for a 64-unit residential condominium known as the Windsor Park North Condominium ("Condominium") located at 120 Wettaw Lane, North Palm Beach, Florida. In their Prehearing Stipulations, the parties agreed that the disputed issues are whether the Association, contrary to law, held condominium board meetings on January 2, 6 and 16 and 17, 1985, which were not open to all unit owners and for which notice was not posted. The Association contends that if such meetings were, in fact, held, they were "emergency" meetings for which notice was not required under the statute. In December 1984, a five-member board of administration was elected by the members of the Association to run the condominium association in 1985; Muriel Siebern was elected President. Until November 1984, Respondent had contracted with a professional management company known as First Columbia Management to manage the Condominium. Norma Calhoun carried out those management duties on behalf of the company. When the contract expired in November 1984, Harry Christie (then President of the Association) signed a new one-year contract, on behalf of the Association, with Florida Management Professionals, Inc., a newly formed management company which was owned by Norma Calhoun. Until November 1984, the First Columbia Management hired, fired, and supervised employees, maintenance personnel and repairmen billed and collected assessments of common expenses paid Association bills prepared the annual budget and year-end financial statements communicated with the Association's attorney and, attended unit owner meetings. From November until early January, 1985, these functions continued to be performed by Norma Calhoun, on behalf of her newly formed management company. But in early January 1985, the newly elected board of administration terminated the Association's contract with Ms. Calhoun's company and began performing the management duties of the Association without the assistance of a professional management company. II. The newly elected board of administration of the Association held four meetings between January 2 and January 17, 1985. Advance notice of these meetings was not posted on the Condominium property; and no unit owners other than members of the present (or past) board attended. The first meeting was held on January 2, 1985, at the former management company's offices in North Palm Beach. Four members of the board (a quorum) were present: Muriel Siebern, President; Sue Day, Vice President; Fred Kelly, Treasurer; and Lori Powers, Member-at-Large. Ms. Calhoun, and Harry Christie, President of the outgoing board, were also present. One purpose of this meeting was to affect a turn-over of the Association's records to the new board. Mr. Christie, outgoing president, presented the key to the locker room, financial statements for the Association from January through October 1984, the book of minutes, a history of the names and addresses of all unit owners, and the results of the vote taken at the December 1984 annual meeting. The board, however, also discussed with Ms. Calhoun the nature and performance of her management duties, reviewed various contracts, and discussed with her a pending court hearing in a lawsuit in which the Association was a party. No emergency conditions surrounded this meeting which would have precluded the posting of notice at least 48 hours in advance. Ms. Siebern had called Ms. Calhoun five days before the meeting to ask her to attend. III. On January 7, 1985, Ms. Siebern and two other members of the board (a quorum) met in the offices of Richard Breithart (the attorney who now represents the Association) to discuss the management contract which Mr. Christie had signed with Florida Management Professionals, Inc., in November 1984. (The board members had discussed the contract on the way to attorney Breithart's offices and felt it was not binding.) After Mr. Breithart concurred, the board decided to fire Ms. Calhoun and terminate the contract with her management company. After polling the two absent board members (by telephone) and obtaining their concurrence, the three board members met with Ms. Calhoun that same day at First Columbia Management's offices, and informed her of their decisions. They asked that she turn over to them all of the Association's records, including all financial statements. Some of those records were not immediately available since they were kept at the former management company's offices in Clearwater. Ms. Calhoun responded that she would retrieve the material, but that it would take several weeks to receive it. The board members asked her to call them when it was received. No one told Ms. Calhoun that an emergency existed or that there was an urgent or pressing need for the records. The board members also asked that the Association's checkbook be returned. Although the Association asserts that these were emergency meetings which excuse their failure to post 48 hours notices, no emergency has been shown. Prior to their January 7 meeting, the individual board members were given at least 24 hours notice. The ostensible "emergency" was based on the need to obtain the Association's complete records from Ms. Calhoun, but Mrs. Siebern and other members of the board became aware of the need to obtain the Association's records as early as December 1984. Moreover, the board members, thereafter, did not articulate a need to obtain the records on an emergency basis, which precluded 48 hours notice. (See letter of Ms. Siebern to Mr. Cassels, dated February 12, 1984, attached to Petitioner's Exhibit No. 2). The Association's answers to the Division's interrogatories also fail to mention the existence of an emergency. (Petitioner's Exhibit No. 3) Finally, the Association has not shown any likelihood of injury if it had delayed its January 7 meeting an additional 24 hours in order to post 48-hour notices to all unit owners. Although the board encountered delay in obtaining the Association's complete records from Ms. Calhoun, no injury was shown. There is no evidence or even allegation that Ms. Calhoun was guilty of misappropriation of funds or that the Condominium's bills were not being timely paid. IV. On January 16 or 17, 1985, three board members, including Ms. Siebern, met again at the offices of attorney Breithart. After obtaining concurrence (by telephone) of the two absent board members, the board decided to dispense with the services of attorney Levine, who had been representing the Association in the pending lawsuit, and hire attorney Breithart in his place. The Association asserts that an emergency existed (precluding the need to post notice in advance of the meeting) since a hearing in the pending lawsuit was imminent. This emergency, however, was self-induced even if it existed, it was brought about by the board's failure to timely act. (The board members were dissatisfied with attorney Levine as early as December 1984, when he advised the members at the annual meeting of the Association that they would not prevail on the merits of the pending lawsuit. The board members were aware--then--that a hearing would be scheduled in the lawsuit during the next several weeks.) Another reason for firing attorney Levine was his alleged charging of expensive fees. But it has not been shown why action could not be taken to resolve this concern after giving 48 hours notice, as required by the Condominium Law.
Recommendation Accordingly, based on the foregoing, it is RECOMMENDED: That the Association be found guilty of four violations of Section 718.112(2)(c), Florida Statutes; that it be required to submit a certified check for $4,000 to the Division; and that it be ordered to henceforth conduct all board meetings in accordance with the notice and open meeting requirements of the Condominium Law. DONE and ORDERED this 26th day of February, 1986, in Tallahassee, Florida. R. L. CALEEN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 1986. COPIES FURNISHED: Karl M. Scheuerman, Esq. 725 S. Bronough St. Tallahassee, FL 32301 Richard O. Breithart, Esq. 818 U.S. Highway One, Suite 8 North Palm Beach, FL 33408 APPENDIX RULINGS ON PETITIONER'S PROPOSED FINDINGS OF FACT 1-7. Approved, in substance. 8. Adopted, except the last nine lines are rejected as not supported by a preponderance of the evidence. 9-31. Adopted, in substance. RULINGS ON RESPONDENT'S PROPOSED FINDINGS OF FACT 1-2. Adopted, in substance. 3a-d; 4-7. Rejected as not supported by a preponderance of the evidence.
The Issue The issue presented by the Motion and supplemental Motion to Dismiss is whether the Golden Gate Area Taxpayers Association (Association) has standing to maintain this challenge to the applications for consumptive use permits sought by Collier County (County) and the City of Naples (City) from the South Florida Water Management District (District).
Findings Of Fact The County filed its application number 08158A with the District for modification of consumptive use permit number 11-00249-W, on or about August 15, 1988. The City filed its application number 08137-H with the District for modification of consumptive use permit numbers 11-00017-W & 11-00018-W, on or about August 15, 1988. After review, the District staff issued its recommendation to grant the County and City's consumptive use permit applications, with limiting conditions, on or about January 24 and 25, 1989. The Association filed its Petition and Amended Petition herein on February 8, 1989, and March 6, 1989, respectively, challenging the issuance of these consumptive use permits. The Association did not allege any basis upon which standing could be established in its Petition or Amended Petition. There is no allegation in either document which describes the Association, alleges its purpose, scope or interest, the number of members in the Association and the number of its members adversely affected by the issuance of these permits, or the reason why the relief sought is appropriate for it to receive. Discovery was allowed to proceed in order to determine if there was a basis, notwithstanding these deficiencies in the Petition and Amended Petition, upon which the Association could establish its standing at final hearing. The District preserved its right to renew its objection to the Association's standing throughout this proceeding, and timely sought a determination thereon, after discovery had been concluded, but before the commencement of final hearing. This action is specifically maintained by the Association, and not by individual members thereof, or non-member property owners. However, the Association has not asserted that its substantial interests will be adversely affected by issuance of these permits. The Association is not an existing legal user of water in Collier County. The Association does not own, lease or otherwise control lands impacted by the permits sought by the County and City. The membership of the Association varies throughout the year as members pay their annual dues. The current membership of the Association totals 59, according to its Amended Second Response to First Interrogatories from Respondent Collier County filed on October 30, 1989, but it had reached a total membership of approximately 200 at times, according to the President of the Association, as dues are paid each year. The Association alleged in the motion hearing held on October 30, 1989, that 13 of its current members are adversely affected by the proposed issuance of these permits. However, in response to Interrogatories served by Hearing Officer Donnelly, the Association indicated that only 5 members were affected, and in response the District's Interrogatories the Association indicated that 6 of its members were affected. Thus, the Association's estimate of the number of its members who would be affected by issuance of these permits is uncertain, inconsistent, unreliable and lacks credibility. The nature of that adverse effect is stated to be damage to domestic wells, degradation of water quality, and a decline in water quantity, according to affidavits filed by the Association on October 13, 1989, in response to Interrogatories from Hearing Officer Donnelly. The only provision in the Association's by-laws upon which it relies in this proceeding to support its standing is found at Article V, Section 4, which states, "The corporation reserves the right to seek judicial relief in the furtherance of its aims and purpose." The only provision in its articles of incorporation which have been relied upon by the Association in this regard were cited during the motion hearing on October 30, 1989, and provide generally that the Association's purpose is to inform its members about the ongoing activities of government, particularly local government. It is clear that the Association is a taxpayer's association which has taken action in the past regarding tax assessments, and represented the views of its members in matters relating thereto. There is no other allegation or explanation of record regarding the purpose, scope, or interest of the Association, or factors which would support a finding that the relief sought herein is appropriate for the Association to receive on behalf of its members. The Association's exhibit list and amended exhibit list filed herein do not contain any exhibits which would clarify or explain its purpose, scope or interest in these matters, its total membership and number of adversely affected members, or how the relief which it seeks in this proceeding is appropriate for it to receive.
Recommendation Based upon the foregoing, it is recommended that the District issue a Final Order dismissing the Petition, as amended, which has been filed herein by the Association, based upon the Association's lack of standing. DONE AND ENTERED this 22nd of November, 1989 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 22nd of November, 1989. APPENDIX (DOAH Case Number 89-2100) Ruling on the Respondents' Proposed Findings of Fact: 1. Adopted in Finding 6 2-4. Adopted in Finding 9. 5. Adopted in Finding 10. COPIES FURNISHED: Joseph L. Grimm, Director Golden Gate Area Taxpayers Association 3093 52nd Street, S.W. Naples, FL 33999 Mark G. Lawson, Esquire Assistant County Attorney Collier County Courthouse 3301 Tamiami Trail East, Building F Naples, FL 33962-4976 Elizabeth D. Ross, Esquire South Florida Water Management District P. O. Box 24680 West Palm Beach, FL 33416-4680 David W. Rynders, Esquire City of Naples 735 Eighth Street South Naples, FL 33940 John Wodraska Executive Director P. O. Box 24680 West Palm Beach, FL 33416-4680
The Issue Did the action of Respondent, in denying Petitioner the use of an emotional support dog in her condominium unit for her son, violate a legal duty to reasonably accommodate the needs of her son, A.C.?
Findings Of Fact The undersigned makes the following findings of relevant and material facts: Facts From Pre-hearing Stipulation Filed June 20, 2016 Petitioner was aware that the Association had a "no pet" policy and signed a document acknowledging same. Petitioner was sent a letter on February 24, 2014, from the Association's then property manager advising Petitioner that the Association had been advised that a dog was being kept in their unit, and reminding Petitioner of the Association's no pet policy. A Fines Committee hearing was scheduled for March 10, 2014, in regard to Petitioner's violation of the no pet policy. Petitioner was not issued a fine for violating the pet policy. Prior to the Fines Committee hearing, Petitioner made her first claim that her son had a disability and required an emotional support animal. Prior to the Fines Committee hearing, Petitioner made her first request to the Association for a reasonable accommodation. The Association's Board of Directors scheduled an interview with Petitioner on April 30, 2014, wherein Petitioner would be able to explain her request for a reasonable accommodation, the need for the emotional support animal, and her son's disability. The Association advised Petitioner, prior to the scheduled interview, that Petitioner may provide the Association with any documents Petitioner believes support her position. An interview and/or meeting occurred on April 30, 2014, between Petitioner, her husband, Yovani Cabreriza, Petitioner's attorney, and certain members of the Board of Directors, along with the Association's attorney, to discuss Petitioner's request for an accommodation. The Association determined that Petitioner was not in need of a reasonable accommodation and requested that the dog be removed via written correspondence dated May 19, 2014. The Association again requested that the subject dog be removed via written correspondence dated May 22, 2015, and advised Petitioner that an arbitration action would follow if the dog was not removed. A Petition for Arbitration was filed on June 4, 2015. Petitioner's response to the arbitration petition was filed on September 14, 2015. The arbitrator issued an order striking the complainants' defense and requiring proof of filing a Fair Housing Complaint. Petitioner filed her housing complaint with FCHR and Housing and Urban Development on November 2, 2015. On March 8, 2016, the FCHR housing investigator issued a "Notice of Determination of No Cause," concluding that reasonable cause does not exist to believe that a discriminatory housing practice has occurred. On April 8, 2016, FCHR received a Petition for Relief from an Unlawful Housing Practice from Petitioner. Findings of Fact From the Hearing This case involves a family who lives at Respondent's condominium complex, Arlen House Condominium, located at 300 Bayview Drive, Sunny Isles Beach, Florida 33160. Petitioner owns condominium unit PH05. Petitioner resides at this location with her husband and minor son, A.C. Petitioner's son was 11 years old in 2014. Her son has suffered from an anxiety disorder since he was a young boy. A.C.'s anxiety disorder problem became worse in 2012. He cried every morning and did not want to go to school. Apparently, he had difficulty breathing during anxiety or panic attacks. His mother described him as being "completely withdrawn" at school.1/ To help her son cope with his anxiety problem, Petitioner bought him a small dog, Jake, in the latter part of 2012. When she bought the dog, she knew that the condominium had a "no pet policy," but failed to alert the condominium or request permission to keep the dog.2/ In early 2014, the Association discovered that the dog was being kept in violation of the Association's rules and regulations. It notified Petitioner in writing on February 24, 2014, and told her to remove the animal. Resp. Ex. 2(e). March 10, 2014, Meeting Petitioner met with the Association's Fine Committee on March 10, 2014. During the meeting, Petitioner presented, for the first time, a letter or letters from the child's doctor, Rasciel Socarras, M.D.3/ Resp. Ex. 2(f). After the meeting before the Fine Committee, counsel for the Association sent Petitioner's counsel a letter dated March 21, 2014. Resp. Ex. 2(g). Essentially, the letter reiterated the "no pet policy" and concluded that Petitioner had failed to demonstrate to the Fine Committee that her son had a disability that substantially limited a major life activity or that an accommodation was necessary to afford him an equal opportunity to use and enjoy their condominium unit. The letter also requested a meeting to help the Association "conduct a meaningful review of your client's request for an accommodation."4/ Prior to the next meeting between the parties on April 30, 2014, counsel for the Association sent a letter to Petitioner's counsel dated April 18, 2014. In that letter, counsel requested copies of any and all documents that may support the boy's disability and need for an accommodation, including but not limited to the medical records that demonstrate his disability.5/ April 30, 2014, Meeting As arranged, Petitioner and her husband, along with their legal counsel, met with the Board of Directors on April 30, 2014. At the meeting, Petitioner explained her son's anxiety problem.6/ Although the record was not clear on this point, based on the evidence and the reasonable inferences drawn from the evidence, the undersigned concludes that the two (2) letters (dated and undated) from Dr. Socarras were reviewed and discussed during the April 30, 2014, meeting with Petitioner.7/ The board members asked Petitioner several questions about her son's condition. Petitioner informed the Board of Directors that her son was not on any medication to treat his anxiety, nor was he receiving any mental health counseling or therapy. Petitioner told the Board of Directors that she had diagnosed the child as having problems with anxiety. The Board of Directors also asked her how her son was performing in school and learned that he was enrolled in the gifted learning program at his school.8/ As a result of the meeting, the Board of Directors concluded: (1) that it did not have enough information to determine whether the child was limited in his ability to live in the unit; (2) that he had a disability; or (3) that the pet was medically necessary for him. As a follow-up to that meeting, on May 19, 2014, the Association's counsel sent a letter to Petitioner. The letter outlined the Board of Directors' position and speaks for itself. See Resp. Ex. 2(i). The letter stated in relevant part: At this time, the Board of Directors can neither approve your request for an accommodation nor can it provide an exception to its "no pet" policy. You have been unable to provide information that supports that your son suffers from a physical or mental impairment that substantially limits one or more of his daily activities. There has been no documentation to support that your son has been diagnosed or treated for a disability. More importantly, you have not provided relevant information that your son has a disability or that the dog helps alleviate any identified symptoms. The letter concluded by demanding that the dog, Jake, be removed from the condominium unit no later than Monday, June 2, 2014.9/ Nearly a year of "radio silence" passed with no activity by either party. The Association did not check on the removal of the pet, and Petitioner did not remove the dog despite the demand by the Association. A year later, on May 15, 2015, the Association acted and sent another letter to Petitioner demanding that she remove the pet. Again, Petitioner did not remove the pet. On June 4, 2015, the Association filed a petition for mandatory non-binding arbitration with the Florida Department of Business and Professional Regulation. Ultimately, the arbitrator entered an order on November 19, 2015, staying the arbitration case until the resolution of the discrimination complaint filed by Petitioner with FCHR. Based on the evidence presented, the undersigned concludes that during the meeting on April 30, 2014, with the Board of Directors, that other than the letter(s) from Dr. Socarras, and an identification certificate for their pet dog Jake, there was no other medical information or documentation provided by Petitioner to assist Respondent in reviewing and evaluating her request for the accommodation to keep Jake in the unit.10/ As a related topic, the Board of Directors had previously approved service animals for at least two (2) other residents.11/ One resident had suffered a stroke and needed assistance to walk. Another resident had a serious medical condition and was allowed to keep a service animal which was trained to detect the onset of the person's medical condition. In both instances, the Board of Directors followed the same process followed in Petitioner's case. Letters were sent and meetings were held. However, in the cases where a service animal was approved, the Board of Directors requested and was provided medical records which it relied upon to conclude that a service animal was needed as a reasonable accommodation. Prior to this hearing before DOAH, the Board of Directors had not been informed, and no claim was made, that "learning" was a major life activity that was substantially impaired by A.C.'s anxiety.
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 complaint for discrimination. DONE AND ENTERED this 31st day of August, 2016, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE 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 31st day of August, 2016.
The Issue The issue in this case is whether the Respondent committed an unlawful housing practice by discriminating against the Petitioner on the basis of race, in violation of the Florida Fair Housing Act, sections 760.20 through 760.37, Florida Statutes.
Findings Of Fact Petitioner, Dr. Rubye Johnson, is an African-American woman and, thus, is a member of a class protected under the Florida Fair Housing Act, sections 760.20 through 760.37, Florida Statutes. Respondent, Canongate Condominium Apartments No. One, Inc., is the condominium association responsible for operation of the Canongate Condominium Apartments No. One ("Canongate"). Petitioner is a resident of Canongate and currently resides in Unit 201. She previously owned and lived in Canongate Unit 207, the unit at issue in this proceeding.3 She no longer owns Unit 207. Petitioner could not recall precisely when she became a resident of Canongate.4 She testified that when she became a resident of Canongate she was a renter, and she rented Unit 207. The evidence indicates that she likely moved into Unit 207 sometime before February 4, 2000. On February 4, 2000, the Association voted to amend Canongate's Declaration of Condominium, Article VII, Paragraph G, Section i. This amendment (the "2000 Amendment") prohibits the leasing or rental of units in Canongate. Existing leases and tenants as of the amendment's effective date were grandfathered for the balance of the lease term; however, no lease extensions or renewals were allowed. Institutional mortgagees' existing rights under the Declaration of Condominium were expressly preserved. At some point after Petitioner began renting Unit 207, the unit owner told her that due to the 2000 Amendment, she either would have to purchase the unit or move out in five years' time. The owner told her he thought the 2000 Amendment was approved because Respondent's Board of Directors ("Board") did not want any more black residents in the building.5 Petitioner purchased Unit 207 in or about 2004. When she purchased the unit, she was aware of the 2000 Amendment. She acknowledged that the 2000 Amendment prohibits the leasing or rental of units in Canongate without regard to race or gender. Petitioner testified that when she came home one day, Laura Ochacher, who had owned Unit 210, approached her about renting one of her units. Ms. Ochacher told Petitioner that Unit 210 was the subject of foreclosure and that her family was being evicted. Petitioner saw the eviction notice. Ms. Ochacher told Petitioner that Canongate property manager Marsha Allen had found a company to purchase Unit 210, and that the company had allowed them to remain in and rent Unit 210. Through examining a document printed out from the Miami-Dade County Property Appraiser's Office website, Petitioner learned that Lansdowne Real Estate Holdings, LLC ("Lansdowne") owned Unit 210. From this information, Petitioner surmised that Lansdowne had purchased Unit 210 and rented it to the Ochachers. She believed that Ms. Allen and the Board were complicit in what she viewed as a rental arrangement that violated the 2000 Amendment. Her belief was based on her knowledge of the screening and approval process entailed in purchasing a unit in Canongate. Petitioner did not independently investigate the matters that Ms. Ochacher relayed to her. She did not ask Ms. Allen whether she had found a company to purchase Unit 210; whether Unit 210 was, in fact, being rented; or whether she or the Board knew of and allowed rental of the unit. Petitioner understood Lansdowne to be a land company that bought and sold land on a large scale. She did not know whether Lansdowne is white, black, or of any other race. Petitioner also heard rumors from other Canongate residents that other units were being rented. She identified these units as 618, 520, 602, 105, 309, 106, 115, 120, 315, 515, 313, 410, 430, 503, 514, "and perhaps more." She did not identify who told her about these units, nor did she independently investigate whether the units were, in fact, being rented. Following her discussion with Ms. Ochacher, Petitioner decided to ask the Board whether she could rent Unit 207. She sent a communication to the Board, dated April 11, 2009, entitled "Issues and Concerns."6 Item 12 of this communication states: 12. It is rumored that there are renters in the building and that the board of directors are [sic] sanctioning these arrangements. Is this true? If so, under what circumstance would the board of director's [sic] sanctions [sic] renters in the building? If not, do you have a clue how this perception has been generated? Petitioner's testimony regarding whether she had actually requested permission from the Board to rent her unit was inconsistent. In her deposition, she testified that she viewed the statement in Item 12 as a request to rent Unit 207, but conceded that the request was "implied." At the final hearing, she acknowledged that her statement in Item 12 did not constitute a specific request, but stated that she previously had sent letters asking to rent the unit. She was unable to recall any specific letters she sent, when she sent them, or to whom the letters were sent. No such letters were proffered or admitted into evidence. Petitioner claimed that she had orally asked Ms. Allen and various Board members, on numerous occasions, whether she could rent her unit. However, she could not recall who, other than Ms. Allen, she ostensibly had asked, nor did she recall the substance or details of such conversations. Petitioner testified that, "by the way they acted," she knew she was not allowed to rent her unit. She stated that she also had been informed, orally and in writing, that she could not rent her unit. However, she could not recall who informed her, or any details of those discussions. She did not provide any evidence of written refusal to allow her to rent her unit. Petitioner testified that she had discussed with Marsha Allen her concern that white unit owners were allowed to rent their units, while she was not. She acknowledged that no one had ever told her she was not allowed to rent her unit because she is black. Canongate property manager Marsha Allen testified on behalf of Respondent. Ms. Allen's duties as property manager include overseeing the day-to-day operation of Canongate, reporting to the Board, and serving as Respondent's records custodian. Ms. Allen testified that rental of units in Canongate is prohibited under the 2000 Amendment. She testified that neither she nor the Board have allowed Canongate owners to rent their units, and that whenever owners have asked, they have been denied permission because of the rental prohibition. Ms. Allen testified that none of the units Petitioner identified was, in fact, being rented. Ms. Allen stated that Petitioner never had asked her whether she could rent her unit. She was not aware of Petitioner ever having asked the Board or any Board member whether she could rent her unit. Ms. Allen did not interpret Item 12 of Petitioner's April 11, 2009, communication as constituting a request for permission to rent her unit. Ms. Allen also stated that she never had discussed Canongate's rental policy with Petitioner, and she never had refused a request from Petitioner to rent her unit. She testified that she never had been directed by the Board or any Board member to refuse to allow Petitioner to rent her unit. Ms. Allen testified that Petitioner never had complained to her that she was being discriminated against by not being allowed to rent her unit, while white owners were allowed to rent theirs. Lansdowne sent a letter dated October 30, 2008, to Ms. Allen. The letter asked her to inform the Board that Lansdowne had acquired title to Unit 210 through foreclosure and that they were entering into an agreement with the borrower, Laura Ochacher, to continue her occupancy for 12 months, during which she could redeem the property by paying the foreclosure judgment. The letter stated: "[t]his should not be considered a rental arrangement." The letter explained that Lansdowne had paid the past due assessments for the unit and would pay outstanding legal fees once the Board approved the occupancy agreement. Upon receiving the letter, Ms. Allen reviewed the Canongate Declaration of Condominium, specifically, Article VII, Paragraph H., to ensure that the occupancy agreement for Unit 210 did not violate the 2000 Amendment's rental prohibition. Article VII, Paragraph H., provides that if the mortgagee of a condominium unit subject to an institutional mortgage given as security becomes the owner of the unit, the owner has the unqualified right to sell, lease, or otherwise dispose of the unit. Ms. Allen determined that, based on this provision, the occupancy agreement did not violate the 2000 Amendment. Ms. Allen consulted with Respondent's legal counsel, who independently verified that the occupancy agreement did not violate the 2000 Amendment. Respondent also presented the testimony of Joyce Meade, who has served as Respondent's president since 2008. Ms. Meade's duties as President include enforcing Respondent's condominium documents, overseeing the Board, conducting meetings, and supervising Canongate's property manager. Ms. Meade testified that Petitioner did not ask her for permission to rent her unit. She also testified that, to the best of her knowledge, Petitioner did not ask the Board for permission to rent her unit, and the Board did not specifically refuse. Ms. Meade testified that had Petitioner asked to rent her unit, she would not have been allowed because all rental requests are refused due to the 2000 Amendment. Ms. Meade testified that Petitioner never complained to her that she was being discriminated against because she was not allowed to rent her unit, while white owners were allowed to rent theirs. She also was not aware of any such complaints by Petitioner to the Board. Determinations of Ultimate Fact Petitioner failed to present persuasive evidence that she requested Respondent's permission to rent Unit 207. Petitioner subjectively may have believed that she requested permission in Item 12 of her April 11, 2009, communication, but that item cannot reasonably be read to constitute such a request. Item 12 merely asks if there are renters in Canongate and the circumstances under which the Board would allow renters. No other items in the April 11, 2009, communication constitute a request to rent the unit. Petitioner did not present any evidence that she submitted other written requests to rent her unit, and her testimony that she had orally requested to rent her unit was unpersuasive. Respondent's witnesses credibly testified that Petitioner had never requested, orally or in writing, to rent her unit. Petitioner also failed to establish that her request to rent her unit was refused. Her testimony on this point was unclear, imprecise, and unpersuasive, and she provided no evidence of written refusal to allow her to rent her unit. By contrast, Respondent's witnesses testified unequivocally that they had not refused to allow Petitioner to rent her unit. They also credibly testified that Petitioner never had complained to them that she was refused permission to rent her unit because she is black, while white owners were allowed to rent theirs. Petitioner did not establish that she was qualified and able to rent out her unit. The uncontroverted evidence established that the Canongate Declaration of Condominium prohibits leasing or rental of units. Accordingly, Petitioner could not have been allowed to rent her unit, even if had she asked. Petitioner did not present any competent substantial evidence establishing that Respondent allows similarly situated white unit owners to rent their units, while refusing to allow Petitioner to rent hers. Petitioner's testimony that Lansdowne was a purchaser and that the occupancy agreement for Unit 210 actually constituted a rental arrangement was merely her personal opinion, unsupported by any competent substantial evidence. Respondent showed that Lansdowne is an institutional mortgagee that took title through foreclosure and, therefore, was not similarly situated to Petitioner and the other owners who had purchased their units. Moreover, Petitioner presented no evidence that Lansdowne was white. In sum, there is no competent substantial evidence in the record to support a finding of unlawful housing discrimination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order finding Canongate Condominium Apartments No. One, Inc., not liable for housing discrimination and awarding no relief. DONE AND ENTERED this 9th day of August, 2011, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of August, 2011.
The Issue This case concerns the issue of whether the Respondent offered condominium units for sale to the public and offered contracts for sale of those units in violation of Section 718.502(2)(a), Florida Statutes. The Respondent is charged with having offered units for sale and offered contracts prior to the time of filing the required condominium documents with the Division of Florida Land Sales and Condominiums as required by Section 718.502 and the rules promulgated thereunder. At the formal hearing, Petitioner called as its witness Luis Stabinski, an officer and 50 percent owner of the Respondent corporation. The Petitioner also presented testimony by the deposition of Luis Stabinski, which was entered into evidence as Petitioner's Exhibit 1, and the deposition of Paul Scherman, which was admitted into evidence as petitioner's Exhibit 2. Petitioner's Exhibit 3 was a deposition of William Hirsch, an investigator for the Department of Business Regulation. There was an objection made to the admissibility of the deposition of Mr. Hirsch by the Respondent on the grounds that Mr. Hirsch had previously investigated a prior development in which the owners and officers of Finst Development, Inc. were involved. The undersigned Hearing Officer took that objection under advisement and after having reviewed the deposition, overrules the objection and admits Petitioner's Exhibit 3, the deposition of William Hirsch. Petitioner also offered and had admitted Petitioner's Exhibits 4 - 9. Mr. Luis Stabinski was also called as a witness by the Respondent in the Respondent's case-in-chief. Respondent did not offer any exhibits into evidence. Counsel for the Petitioner and for the Respondent submitted proposed findings of fact and conclusions of law for consideration by the Hearing Officer. To the extent that those proposed findings of fact and conclusions of law are not adopted herein, they were considered by the undersigned Hearing Officer and determined to be irrelevant to the issues in this cause or not supported by the evidence.
Findings Of Fact Based upon a stipulation between Petitioner and Respondent, the following facts (a) through (b) are found: The condominium development which is the subject of this action is named Indian Creek Club and Marina Condominium North. Twenty-eight (28) contracts, other than Petitioner's Exhibit 8, for the purchase of units in the Indian Creek Club and Marina Condominium North bear dates or are dated by their terms prior to September 25, 1981. The Indian Creek Club and Marina Condominium North contains 52 units and was developed by the Respondent, Finst Development, Inc. Finst Development, Inc., is a Florida corporation for profit and is owned in equal shares by Mr. Luis Stabinski and Mr. Richard Finvarb. Mr. Finvarb was president of the corporation and Mr. Stabinski served as vice- president and secretary. On September 25, 1981, the Respondent, Finst Development, Inc., filed the following items with the Department of Business Regulation, the Division of Florida Land Sales and Condominiums: Condominium documents for Indian Creek Club and Marina Condominium North. Condominium filing statement. Condominium filing checklist. Check in the sum of $520.00, representing filing fee for the above-referenced condominium project. The Declaration of Condominium was executed by Richard Finvarb and Luis Stabinski on September 30, 1980. The Articles of Incorporation of Indian Creek Club and Marina Condominium Association North, Inc., were executed by Richard Finvarb, Bell Stabinski, and Luis Stabinski on August 12, 1981. The bylaws for Indian Creek Club and Marina Condominium North were executed on August 12, 1981. Each of these three documents is part of the required filing which was filed on September 25, 1981. On December 9, 1981, the Respondent was notified by Petitioner that the review of the documents filed by the Respondent in connection with Indian Creek Club and Marina Condominium North was complete. That notice also informed Respondent that the documents were considered proper for filing purposes and the developer "may close on contracts for sale or lease for a lease period of more than five years." (See Petitioner's Composite Exhibit 6.) Upon the insistence of Mr. Stabinski, his law firm, Stabinski, Funt, Levine, and Vega, P.A., did all the legal work in connection with the condominium. Specifically, Mr. Paul Scherman, an associate and employee of the firm, did the legal work for the condominium. Mr. Scherman worked under the direct supervision of Mr. Stabinski. Prior to the filing of the condominium documents on September 25, 1981, the fifty-two (52) units of the condominium were offered for ale to the public. Contracts for the purchase and sale of units in the condominium were also offered to the public. Prior to filing the condominium documents on September 25, 1981, the Respondent entered into 29 contracts for the purchase and sale of units in Indian Creek Club and Marina Condominium North. There were no closings held on any units prior to approval of the condominium documents by the Department. During the construction and sale of units in Indian Creek Club and Marina Condominium North, Richard Finvarb was in charge of construction, sales, and supervision of the Finst Development, Inc. office and personnel. Luis Stabinski's involvement was as an investor. The documents filed by Respondent with the Department were prepared by Paul Scherman, an associate in Mr. Stabinski's law firm. Mr. Scherman also attended all closings on units and received copies of contracts entered into by Respondent for the sale of units in the condominium. Mr. Scherman was aware that contracts were being entered into prior to the filing of the condominium documents described in Paragraph 2 above. Luis Stabinski has been a practicing attorney for 13 years. He represents individual condominium purchasers and has been involved as an investor in three other condominium projects prior to the Indian Creek Club and Marina North Condominium. Following the initial filing of the condominium documents, the Respondent promptly responded to and made the changes and corrections required by the Department in two Notices of Deficiencies. After being provided with the required documents, all but five or six of the purchasers who had entered into contracts prior to the filing of the documents closed on their units. The five or six that did not close are presently in litigation with the Respondent.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department enter a final order imposing a civil penalty of $7,500 and ordering the Respondent to cease and desist from any further violations of Chapter 718 or the rules promulgated thereunder. DONE and ENTERED this 8th day of June, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS, 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 9th day of June, 1983. COPIES FURNISHED: Thomas A. Bell, Esquire Staff Attorney Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Norman Funt, Esquire Stabinski & Funt, P.A. 757 N.W. 27th Avenue Third Floor Miami, Florida 33125 Mr. Gary Rutledge Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. E. James Kearney Director Division of Florida Land Sales and Condominiums 725 South Bronough Street Tallahassee, Florida 32301
The Issue The issues are whether Respondents are guilty of the following: (a) breach of fiduciary relationship in violation of Section 718.111(1)(a), Florida Statutes; (b) failure to respond in writing to written inquiries in violation of Section 718.112(2)(a)2., Florida Statutes; (c) failure to properly notice a meeting in which regular assessments were discussed in violation of Section 718.112(2)(c), Florida Statutes; (d) failure to proportionately excuse payment of common expenses for all units owners after doing so for one unit owner in violation of Section 718.116(9)(a), Florida Statutes; and (e) willfully and knowingly violating Chapter 718, Florida Statutes, in violation of Section 718.501(d)(4), Florida Statutes.
Findings Of Fact Ocean Gate is a unit-owner controlled condominium located in St. Augustine, Florida. A three-member board of directors governs Ocean Gate. However, Article V of Ocean Gate's Articles of Incorporation states as follows in relevant part: This corporation shall have three (3) directors initially. Thereafter, the number of directors may be increased from time to time in the manner provided by the Bylaws, but shall never be fewer than three. Ocean Gate's original developer was Robert Laurence/Ocean Gate Development, Inc. On or about June 16, 1999, the developer recorded Ocean Gate's Declaration of Condominium in the official record book 1417, page 1932, of the public records of St. Johns County, Florida. At that time, Ocean Gate's directors, as set forth in the Articles of Incorporation, were Roger W. McClain, Leslie Gallagher, and Robert J.L. Laurence. The property at issue includes two buildings (2.1 and 2.2) containing a total of 10 units. Units 600, 604, 608, 612, 616, and 620 are located in Ocean Gate's 2.1 building. Units 605, 609, 613, and 617 are located in Ocean Gate's 2.2 building. On June 16, 1999, the following deeds were recorded in the official record book of St. Johns County, Florida: (a) unit 600 to Mr. and Mrs. Grissom (later sold to the Mr. Barrow/Flag Development Corporation); (b) unit 604 to Mr. and Mrs. McNeely; (c) unit 608 to Dr. and Mrs. Blankenship; (d) unit 612 to Mr. and Mrs. Klinehoffer; (e) unit 616 to Mr. and Mrs. Pittman (later sold to Mr. and Mrs. Weaver); and (f) unit 620 to Mr. and Mrs. Carabetta. The unit owners in the 2.1 building had to lend the developer funds to complete the construction of their units. Even so, these unit owners had to foreclose on that loan and spend additional funds to complete the construction on their units. On or about July 1, 1999, Ocean Gate issued a Notice of Owners Meeting. The meeting was scheduled for July 17, 1999. The agenda attached to the notice included the following: (a) call to order; (b) establish a quorum; (c) waiver of 60-day notice; (d) introduction of May Management Services, Inc. (May Management); (e) official approval of management contract; (f) discussion of board members; (g) discussion of contract; and (h) adjournment. Ocean Gate held its first unit owners' meeting on July 17, 1999. Mr. Klinehoffer, Mr. and Mrs. Pittman, Dr. and Mrs. Blankenship, Mr. and Mrs. McNeely, Mr. Grissom, and Mr. and Mrs. Carabetta attended the meeting. The developer did not attend the meeting. During the July 17, 1999, meeting, the unit owners accepted the resignation of Les R. Gallagher, as a director, and elected the following directors/officers: Mr. Grissom, president; Mr. Kleinhoffer, vice president; and Mrs. Pittman, secretary/treasurer. The representative of May Management announced that the developer had turned over $8,308.44 to the unit owners. Ocean Gate conducted a unit owners meeting on December 4, 1999. Mr. Grissom and Dr. Blankenship attended the meeting. Mrs. Pittman attended by proxy. A representative of the developer was also in attendance. During the meeting, the unit owners approved Ocean Gate's 2000 operating budget. On or about January 14, 2000, Mrs. Pittman resigned as a director and secretary/treasurer. A unit owners meeting took place on January 29, 2000. Mr. Grissom, Dr. and Mrs. Blankenship, Mr. Carabetta, Mr. and Mrs. McNeely, and Mr. Weaver were in attendance. In a notice dated March 22, 2000, Ocean Gate scheduled a unit owners meeting for April 15, 2000. The agenda included the following: (a) call to order; (b) establish a quorum; (c) approval of minutes of January 29, 2000; (d) financial report; (e) old business (release of lien payment for John M. Williams); (f) new business, including election of director; (g) date of next meeting; and (h) adjournment. During the meeting, Mr. Weaver was elected to fill a vacancy on Ocean Gate's board of directors. The Carabettas' unit, which is located in the 2.1 building, is the largest unit on the property. Mr. Carabetta refused to pay some of Ocean Gate's assessments because he did not believe Ocean Gate was properly maintaining his unit. In time, he filed at least one lawsuit against Ocean Gate and its board of directors. He also filed defamation and discrimination lawsuits against some of the unit owners in their individual capacities. Mr. Carabetta testified at hearing that Ocean Gate failed to maintain his unit while expending funds to maintain the units of the Weavers, the Blankenships, the McNeelys, and the Klinehoffers. There is no persuasive evidence that the directors of Ocean Gate improperly refused to pay for maintenance/repair of the common elements in the 2.1 building, including the limited common elements directly affecting Mr. Carabetta's unit. The 2.2 building was the subject of a foreclosure suit. It was sold on the courthouse steps to Flag Development Corporation on June 13, 2000. Pursuant to that sale, Flag Development Corporation also bought two additional condominium developments, Ocean Gate Phase II and Ocean Gate Phase III, which are not a part of the property at issue here. The record contains a Certificate of Title conveying real and personal property to Flag Development Corporation. The certificate refers to a description of real and personal property, "Exhibit A," which is not attached to the copy of the certificate in the record. John Williams and Mr. Barrow are business associates affiliated with Flag Development Corporation. After receiving title to the 2.2 building, their company did nothing more than clean up the property. They did no construction, maintenance, or repair work. In two letters, Jones & Pellicer, Inc., civil engineers and land surveyors, responded to Mr. Weaver's request for a survey to determine the square footage for each unit. The first letter dated May 31, 2000, referred to the survey of units 600, 604, 608, 612, 616, and 620 in the 2.1 building. The second letter dated July 31, 2000, referred to the survey of units 605, 609, 613, and 617 in the 2.2 building. According to the letters, the surveys determined the square footage for each unit using the floor area, as defined by Section 4.7-Unit Boundaries "A" and "B" in the Ocean Gate Declaration of Condominium. Mr. Walters purchased the four units in Ocean Gate's 2.2 building from John Williams/Flag Development Corporation in late July or early August 2000. The purchase price was approximately one million dollars. The record contains a copy of the corporate warranty deed conveying the 2.2 building to Mr. Walters. The deed states that the transfer of title is "subject to taxes for the current year, covenants, restrictions, and easements of record, if any." The attachments to the deed describing the property include Schedule A, Exhibit A, and Exhibit A Continued. The document identified as Exhibit A Continued, and which appears to be signed by the original developer, is not legible. When Mr. Walters bought the four units, the 2.2 building had a roof, windows, walls, and doors from which the square footage of each unit could be determined. The building was about 45 percent complete but not sufficiently complete to qualify any of the units in the building for a certificate of occupancy. Mr. Walters hired a contractor to complete the construction on his units. The construction, which involved a considerable sum of money, included work on the common elements and the interior of the units. There were liens on the 2.2 building for Ocean Gate's assessments when Mr. Walters purchased his four units. Mr. Walters refused to pay any past or ongoing assessments on his four units. In turn, Ocean Gate refused to expend any funds to maintain or repair the 2.2 building. Ocean Gate continued to impose assessments on all unit owners, including Mr. Walters and Mr. Carabetta. Ocean Gate also had to impose special assessments on some unit owners to make up the shortfall when Mr. Walters and/or Mr. Carabetta refused to pay their regular assessments. On October 17, 2000, Ocean Gate filed a Revised Claim of Lien against Mr. Walters for unpaid assessments and late charges. The Revised Claim of Lien alleged that Mr. Walters owed Ocean Gate a balance of $20,983.42. In a letter dated October 18, 2000, Ocean Gate advised Mr. Walters that a foreclosure suit would be instituted if he did not pay the assessments and charges. Early in 2001, Ocean Gate filed a Complaint seeking foreclosure of the liens against Mr. Walters in Case No. CA-01- 85, in the Circuit Court, Seventh Judicial Circuit, in and for St. Johns County, Florida. On or about March 1, 2001, Mr. Walters filed a Motion to Dismiss in Case No. CA-01-85, in the Circuit Court, Seventh Judicial Circuit, in and for St. Johns County, Florida. Mr. Walters took the position that he was not obliged to pay condominium assessment until a certificate of occupancy was issued and that the original developer had never relinquished control of Ocean Gate. Mr. Walters and Mr. Carabetta together owned over 51 percent of the total square footage in all units. Therefore, they controlled a majority of Ocean Gate's voting interests, which are directly proportional to the square footage in each unit. Specifically, Mr. Walters controlled a total of 36.207 percent of the membership voting interests and Mr. Carabetta controlled a total of 15.990 percent of the membership voting interests. Mr. Weaver was Ocean Gate's president in September 2001. Mr. McNeely and Mr. Klinehoffer were also directors/officers. All three of the directors were named as defendants in one or more of Mr. Carabetta's lawsuits. On or about September 26, 2001, Mr. Weaver issued the second notice of Ocean Gate's annual meeting of unit owners. The notice included the following agenda items: (a) roll call; (b) reading of minutes of last meeting; (c) reports of officers; (d) election of directors; (e) unfinished business; (f) original resolutions and new business; and (g) adjournment. The annual meeting of Ocean Gate's unit owners took place on October 27, 2001. During the meeting Mr. Walters and Mr. Carabetta, in concert with one additional unit owner, used their majority voting interests to elect themselves as directors. Mr. Walters and Mr. Carabetta received 64 percent of the votes. Dr. Blankenship, receiving 84.69 percent of the votes, became Ocean Gate's third director and "acting" president. After the election of the directors, Mr. Walters expressed his frustration about the liens on his property and the pending foreclosure action involving at that time approximately $50,000 in assessments and interest. In an effort to resolve the conflict, Dr. Blankenship proposed the following as a global concept: Homer Barrow and the newly elected Ocean Gate Phase I Condo Association Board will attempt to satisfy the concerns of the Carabetta's [sic] with regard to correction of deficiencies on their unit. The Carabettas will dismiss all lawsuits and complaints against other unit owners and boards and pay overdue assessments. Richard Walters will contribute $10,000 to the Phase I Association as final settlement of lien/foreclosure action. Unit owners will end foreclosure action against Richard Walters and forgive existing liens against Richard Walters. It is understood that the above action and commitments are interdependent and sequential in the order listed above. Minutes of Meeting of the Unit Owners, October 27, 2001. Mr. Walters initially objected to paying the $10,000. However, John Williams persuaded Mr. Walters to join in the proposed agreement. After Dr. Blankenship's motion regarding the proposed agreement was seconded, the unit owners who were present at the October 27, 2001, meeting verbally approved the proposed agreement. The unit owners never reduced the proposed agreement to writing. They never signed a copy of the minutes containing the proposed agreement. Mr. Klinehoffer was the only unit owner who was not present at the meeting. Mr. Klinehoffer had not given Mr. Weaver or any other unit owner his proxy to vote in favor of a settlement of the pending litigation against Mr. Walters. More importantly, the consideration of assessments and a settlement agreement regarding the foreclosure suit were not included as agenda items in the notice of the unit owners' meeting. On November 17, 2001, Ocean Gate's directors held another meeting. They elected the following officers: Dr. Blankenship, president; Mr. Walters, vice-president; and Mr. Carabetta, secretary/treasurer. During the November 17, 2001, meeting, Mr. Walters wanted to discuss implementing the proposed settlement agreement from the October 27, 2001, unit owners' meeting. In other words, Mr. Walters wanted Ocean Gate to drop the foreclosure suit against him in exchange for $10,000. However, the minority unit owners asserted that Mr. Carabetta had not dropped his lawsuits against Ocean Gate and the other unit owners in the 2.1 building. Mr. Weaver took the position that the proposed settlement agreement was not valid unless it was implemented sequentially beginning with coming to terms with Mr. Carabetta and Mr. Carabetta dropping all of his lawsuits. Mr. McNeely asserted that he would not agree to participate in the global agreement. Mr. Klinehoffer stated that he did not agree to the global agreement and specifically objected to any change in Mr. Walters' assessment responsibilities or liabilities. On December 10, 2001, Mr. Walters and Mr. Carabetta conducted a board of directors meeting. A facsimile transmission had been sent to Dr. Blankenship as notice of the meeting, but he was out of town and had no actual prior knowledge about the meeting or its agenda. The notice for the December 10, 2001, board of directors meeting was posted on Ocean Gate's property 48 hours in advance of the meeting. The agenda attached to the notice made reference to a non-specific item identified as "approval of resolutions" without reference to the subject matter and without mention of assessments or settlement agreements. During the December 10, 2001, board of directors meeting, Mr. Walters proposed a resolution to allow him to pay $10,000 in lieu of his past due assessments, to release the liens on his four units, and to dismiss the foreclosure action. After Mr. Walters proposed the resolution, Mr. Carabetta provided a second and voted to pass the resolution. Mr. Weaver and Mr. McNeely protested that Mr. Walters could not vote due to a conflict of interest and that without Mr. Walters' vote, the board of directors did not have a quorum. Mr. Walters then recused himself. Next Mr. Weaver contacted Dr. Blankenship by telephone. However, on faulty advice from Mr. Carabetta's personal attorney, Mr. Walters and Mr. Carabetta refused to let Dr. Blankenship vote on the resolution. Mr. Walters and Mr. Carabetta also refused to let Ocean Gate's attorney, Roseanne Perrine, participate in the meeting by telephone. Before the meeting adjourned, Mr. Walters declared that the resolution had passed and the matter was closed based on Mr. Carabetta's sole affirmative vote. Next, Mr. Walters proposed that Ocean Gate terminate its contract with May Management. Mr. Walters then introduced a representative of Coastal Realty and Property Management, Inc. (Coastal). Over Mr. Weaver's objections, Mr. Walters and Mr. Carabetta voted to replace May Management with Coastal. The greater weight of the evidence indicates that May Management was a reputable company with no major complaints from the unit owners. In a letter dated December 11, 2001, Ms. Perrine reminded Mr. Walters and Mr. Carabetta that her firm represented Ocean Gate in the foreclosure action against Mr. Walters. She claimed that the resolution passed on December 10, 2001, was invalid. She asserted that she would withdraw as counsel of record if requested to dismiss the lawsuit based on the December 10, 2001, resolution. In a letter dated December 12, 2001, Mr. Carabatta enclosed a copy of a check made payable to Ocean Gate in the amount of $8,062.54. According to the letter, the check represented the amount of Mr. Carabetta's assessments though year 2001. The letter stated that the check had been delivered to Coastal for deposit into an operating account for Ocean Gate. Finally, the letter demanded that May Management stop all foreclosure proceedings against Mr. Carabetta and release the lien of record against his property. On December 12, 2001, Mr. Carabetta authorized Coastal to open new bank accounts for Ocean Gate using his check as an initial deposit. Dr. Blankenship wrote a letter dated December 13, 2001, to Mr. Walters and Mr. Carabetta. In the letter, Mr. Blankenship objected to the lack of notice regarding the December 10, 2001, board of directors meeting and its agenda. Dr. Blankenship's letter complained that he had not been allowed to vote when he was called during the meeting. On or about December 16, 2001, the Circuit Court Judge in Case No.: CA-01-85, in the Seventh Judicial Circuit, in and for St. Johns County, Florida, entered an Order Granting in Part and Denying in Part Defendants Motion to Dismiss. The order states as follows in pertinent part: Third, the Defendants assert the Plaintiff is without standing to assess maintenance fees, file liens, or foreclose any lien because the developer never turned over control of the association to the unit owners pursuant to Article 8.5 of the Declaration of Condominium of Ocean Gate Phase I, A Condominium. Nothing contained in Article 8.5 of the Declaration supports the Defendant's assertion. The Association was given the authority to assess fees in Paragraph 7 of the Declaration, not Article 8.5. Paragraph 7 states: Assessments. To provide the funds necessary for proper operation and maintenance of the Condominium, the Phase I Association has been granted the right to make, levy, and collect Assessments and Special Assessments against all Unit Owners and Units. Fourth, the Defendants' assert the condominium association had no authority to charge condominium fees since the buildings have not yet been completed, nor have certificates of occupancy been issued. According to Ris Investment Group, Inc. v. Dep't of Business and Professional Regulation, 695 So. 2d 357 (Fla. 4th DCA 1997), the question before the Court is whether, in accordance with the Declaration, the term "unit" was intended to encompass raw land and/or condominiums which had not yet been purchased, or just land upon which the condominium units had already been built and/or purchased. A review of the pertinent portion of the Declaration is necessary to answer the foregoing questions. Paragraph 7 of the Declarations states: Assessments. To provide the funds necessary for proper operation and maintenance of the Condominium, the Phase I Association has been granted the right to make, levy, and collect Assessments and Special Assessments against all Unit Owners and Units. Paragraph 3 of the Declaration states: Definitions. ‘Unit’ means a part of the Condominium Property, which is to be subject to exclusive private ownership as defined in the Condominium Act. ‘Condominium Property’ means the parcel of real property described in Exhibit "A" attached hereto, together with all improvements built or to be built thereon, and the easements and rights appurtenant thereto. A review of Exhibit ‘A’ and ‘A-1’ reveals that the term "Condominium Property" refers to the entire condominium complex, not just one unit. Reading the pertinent portions of the Declaration, in toto, it appears as though the parties intended that the Association could assess fees from "units" which encompass any portion of the condominium property, whether improvements have been built or are to be built thereon. Accordingly the Defendant's assertion is without merit and the Motion to Dismiss in this regard is denied. Around the first of January 2002, Mr. Walters tendered a check to Ocean Gate in the amount of $10,000. The front side of Mr. Walter's check, number 652, indicates that it was for association dues in full through December 31, 2001. The backside of the check states, "Endorsement of this instrument constitutes payment in full for association dues on 605, 609, 613, and 617, Mediterranean Way, thru December 31, 2001." There is no evidence that the $10,000 check was deposited to Ocean Gate's bank account. After the December 2001 meeting, the Weavers, McNeelys, Klinehoffers, and Blankenships sent numerous letters by certified mail to Mr. Walters and Mr. Carabetta. The letters protested the manner in which Mr. Walters and Mr. Carabetta had conducted the December 10, 2001, and subsequent meetings, demanding that they remove themselves as directors, and inquiring about many other matters relating to the operation and management of Ocean Gate. Many of the letters specifically requested Mr. Walters and Mr. Carabetta to respond in writing within 30 days as required by Section 718.112(2)(a)2., Florida Statutes. Mr. Carabetta responded to one of the complaint letters. All subsequent complaint letters were referred to Alan Scott, Esquire. Mr. Scott did not provide a written response to the letters unless specifically directed to do so by Mr. Walters and/or Mr. Carabetta. Mr. Scott responded to one complaint letter. On or about January 24, 2002, Mr. Scott, writing on behalf of Mr. Walters and Mr. Carabetta, sent a letter to Dr. Blankenship and May Management. The letter stated that a majority of Ocean Gate's voting interests (Mr. Walters and Mr. Carabetta) had entered into written agreements to remove Dr. Blankenship from his position as a director. On January 29, 2002, Mr. Carabetta filed a Notice of Voluntary Dismissal without Prejudice in one of his lawsuits naming Ocean Gate as defendant. That case was Case No. CA01-858 in the Circuit Court, Seventh Judicial Circuit, in and for St. Johns County, Florida. Competent evidence indicates the Mr. Carabetta dismissed all of his lawsuits against his neighbors after the December 2001 meeting. Ocean Gate's directors issued a notice dated February 4, 2002. The notice indicated that the directors would meet on February 7, 2002. The agenda for that meeting included the following: (a) call to order; (b) roll call; (c) appointment of new director; (d) fill officer vacancies; (e) consider discharge of association attorneys and appointment of new association legal counsel; (f) consider discharge of May Management and appointment of Coastal; and (g) consider change of association mailing address and resident agent. During the directors' meeting on February 7, 2002, Mr. Walters and Mr. Carabetta appointed Mr. Barrow as a director. The directors then elected Mr. Walters as president, Mr. Barrow as vice-president, with Mr. Carabetta retaining his office as secretary/treasurer. Next, the directors voted to make the following changes: (a) to fire May Management and hire Coastal as Ocean Gate's management company; (b) to discharge Ms. Perrine and retain Mr. Scott as Ocean Gate's attorney; and (c) to update the corporate report data showing Mr. Scott as registered agent. In a letter dated February 8, 2002, Mr. Klinehoffer, Mr. Weaver, Mr. McNeely, and Dr. Blankenship advised Mr. Walters and Mr. Carabetta that the February 7, 2002, directors' meeting had not been properly noticed. The letter alleged that the notice had not been posted on the property 48 hours in advance of the meeting and that none of the minority unit owners had received notice by fax, phone, or letter. By letter dated March 1, 2002, Mr. Walters, Mr. Carabetta and Mr. Barrows advised Ms. Perrine's law firm that her services as counsel for Ocean Gate were terminated. The letter directed Mr. Perrine to turn over her foreclosure file to Mr. Scott, who would replace her as counsel for Ocean Gate. By letter dated March 25, 2002, the minority unit owners objected to the termination of Ms. Perrine as Ocean Gate's attorney. During an April 10, 2002, directors' meeting, Mr. Carabetta and Mr. Barrows voted to accept Mr. Walters' payment of $10,000 in satisfaction of his past due assessments, penalties and interest. Thereafter, Mr. Walters tendered his check for $10,000 on the same day that Ocean Gate's new attorney, Mr. Scott, dismissed the foreclosure suit against Mr. Walters. In a letter dated April 17, 2002, Mr. Weaver protested the actions taken by Mr. Walters, Mr. Carabetta, and Mr. Barrows during the April 10, 2002, directors' meeting. Additionally, the minority unit owners continued to send Mr. Walters, Mr. Carabetta, and Mr. Barrow letters complaining about various problems in the management of Ocean Gate and requesting a response within 30 days. The minority unit owners did not receive any responses to these letters. In a letter dated April 17, 2002, Petitioner's investigator, Eurkie McLemore, advised Mr. Walters about the complaints filed against him and Mr. Carabetta by the minority unit owners. Ms. McLemore requested a response to the allegations by April 30, 2002. The letter contained the following warning: Please note that if you as a MEMBER OF THE BOARD OF DIRECTORS AND OFFICER OF THE ASSOCIATION fail to respond to this letter, or if another complaint is received, the Division will pursue an enforcement resolution, which may result in civil penalties of up to $5,000 per violation. Therefore, you are urged to respond appropriately to this warning letter and to use your best efforts to comply with sections 718.111(1)(a), 718.116(9)(a), 718.112(2)(c), 718.112(2)(a)2., Florida Statutes, now and in the future. By letter dated April 30, 2002, Ocean Gate's attorney, Mr. Scott, responded to Ms. McLemore's letter. According to the letter, Mr. Walters and Mr. Carabetta denied the allegations and did not indicate that any corrective action would be taken. In June 2002 Ocean Gate's directors authorized Mr. Scott, as Ocean Gate's counsel, to file a voluntary dismissal with prejudice in the foreclosure suit against Mr. Walters. Mr. Walters sold his units at an on-site auction in July 2002. Mr. Walters executed warranty deeds for the three successful bidders in August 2002. As of January 31, 2002, Mr. Walters owed Ocean Gate past-due assessments plus interest in the amount of $62,943.56. The accrued interest on that amount as of June 16, 2003, was $15,767.36. Mr. Walters paid his quarterly assessments at the end of March and June 2002. He also paid Ocean Gate $10,000 when the foreclosure suit was dismissed in June 2002. Therefore, the total amount that Mr. Walters owed Ocean Gate as of June 16, 2003, was $68,710.92 During the hearing, Mr. Walters presented evidence that he was entitled to an offset for his expense in maintaining and repairing the 2.2 building. However, the evidence presented is insufficient to determine whether Mr. Walters' expenses were related to maintenance and repair of common elements. The greater weight of the evidence indicates that Mr. Walters is not entitled to an offset.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED: That Petitioner issue a final order imposing a civil penalty on Respondents in the amount of $10,000 each and requiring Mr. Walters to make restitution to Ocean Gate in the amount of $68,710.92 plus interest on this amount from June 16, 2003, until the date payment is made. DONE AND ENTERED this 8th day of August, 2003, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 8th day of August, 2003. COPIES FURNISHED: John B. Bamberg, Esquire Post Office Box 2210 St. Augustine, Florida 32085 Joseph S. Garwood, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Ross Fleetwood, Division Director Division of Florida Land Sales, Condominiums, and Mobile Homes Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0892 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
