The Issue The issues are whether Respondent, Bayhead Landings Property Owners Association, Inc.; Kimberly Lee, president; William Barthle, Architectural Review Committee (ARC) member; and Tony Kolka, ARC member, discriminated against John and Kimberly Whitt,1/ on the basis of Mr. Whitt's physical handicap in violation of the Florida Fair Housing Act (the Act), and, if so, the relief to which Petitioners are entitled.
Findings Of Fact Bayhead Landings Subdivision (Bayhead) is a deed- restricted community for which the Bayhead Landings Property Owners Association, Inc., was organized to operate and administer. Deed restrictions have been in place since 1990 and will continue in place until at least January 2031.4/ It remains unclear how many Bayhead parcels front the lake in question. There are four to five existing docks in that lake; however, none of those existing docks extend more than 80 to 100 feet into the lake. The Declaration of Covenants, Conditions, and Restrictions for Bayhead provide in pertinent part: 6.(a) For the purpose of further insuring the development of said land as a residential/agricultural area of highest quality and standard, and in order that all improvements on each lot shall present an attractive and pleasing appearance from all sides of view, there shall be a Committee consisting of no less than three (3) persons appointed to review plans and specifications, . . . . (b) The Committee reserves the exclusive power and discretion to control and approve all of the buildings, structures and other improvements on each lot or parcel in the manner and to the extent set forth herein. No residence, . . . or other structure or improvement, regardless of size or purpose . . . shall be commenced, placed, erected or allowed to remain on any lot or parcel, . . . unless and until building plans and specifications covering same showing the shape, height, size, location and orientation on the lot, floor plans, square footage, front, side and rear elevations, materials to be incorporated and exterior color schemes . . . have been submitted to and approved in writing by the Committee. * * * (d) As a prerequisite to consideration for approval, and prior to commencement of the contemplated work, a complete set of plans and specifications must be submitted to the Committee. . . . . The purpose of the ARC is to ensure that any development in Bayhead maintains the "community standards and deed restrictions" and is of the "highest quality and standard." To ensure that goal is met, the ARC is to receive a complete set of plans and specifications prior to the work starting. Mr. Whitt has a physical handicap as defined by the Act, section 760.22(7)(a). Mr. Whitt is confined to a wheelchair for mobility. The Whitts' backyard property has a significant slope downhill or drop-off towards the lake. The area between the house and the lake is muddy for a long distance, the terrain is uneven, and it is not suitable for a wheelchair to traverse. No evidence was received as to the actual distances between the house and either the drop-off area or where the terrain becomes uneven in the Whitts' backyard. The water level in the lake has been relatively low for some time; however, there is some water in it now. On September 7, 2010, Mr. Whitt submitted a proposed estimate and architectural review application to Respondents' ARC, seeking approval to construct a stationary dock on the Whitts' property (dock application). This dock application was the first received by the ARC in many years, and there is no evidence of any prior applications to build a stationary dock.5/ The dock application (Petitioners' Exhibit 3) included a three-page proposal (Proposal) from Coastal Construction; Gulfside Docks6/ that included the following "SPECIFICATIONS": Timber Piles 2.5CCA • Frame/Stringers/Caps 2" x 8" • Dock Lumber Pressure Treated .40 • Dock Bolts 5/8" HDG • SS Nails/Screws The Proposal also contained the following "STATIONARY DOCK" information: Construct new 300' x 5' dock with 20 x 16 head. We will add 2" x 2" lumber along perimeter of dock to act as bumper system Decking will be #1 pressure treated decking. Stainless Steel Screws will be used to secure deck boards The dock application did not contain any specific references to the dock being "wheelchair accessible"; however, it did contain information about a bumper system. The second proposal (Petitioners' Exhibit 10) contained the same "SPECIFICATIONS." The second proposal contained similar information regarding the "STATIONARY DOCK"; however, the language regarding the bumper system was altered to reflect "Install 2" x 2" wheel chair safety bumper around entire perimeter of dock - Approx. 663'LF. Stainless steel screws will be used as fasteners." On September 19, 2010, William Barthle, a member of the ARC, sent an e-mail to Mr. Whitt. The e-mail provided Mr. Whitt with a portion of Bayhead's deed restrictions and requested "WE NEED A DIAGRAM OF DOCKS [sic] PLACEMENT ON PROPERTY AS REFERENCED IN DOCS." On September 27, 2010, Mr. Whitt sent a plat map to the ARC with a hand-drawn dock sketched on it. The hand-drawing was not to scale and failed to provide detailed measurements of where the dock was to begin in relation to the residence or shed that were already on the property. Further, there was no rendering of what the dock itself would look like. On October 10, 2010, the ARC sent Mr. Whitt a letter requesting four specific items in order for the ARC to consider the dock application, including: Square footage of dock Height of dock The exact location of the dock on your property (distance from your house and distance from property line on each side, distance from any setback easement, or wetlands buffer boundary) A letter from Southwest Florida Water Management District approving the placement, length and location (starting/ending) of the dock Mr. Whitt's June 22, 2011, response letter (eight months later) to the request failed to provide the requested information. As of December 12, 2012, the Whitts had not provided the requested information. Mr. Barthle and Graeme Woodbrook both served on the ARC when the Whitts' dock application was submitted. Both gentlemen credibly testified that the Whitts' dock application failed to provide enough information to allow them to make a decision about it. Further, Mr. Woodbrook admitted he has some physical limitations and is sympathetic to people who have disabilities. While both men knew Mr. Whitt was confined to a wheelchair, neither knew why Mr. Whitt had to use it. Other ARC applications were admitted into evidence. These ARC applications involved: painting the exterior of a primary residence (two separate requests); landscaping in the front yard of a residence for a non-permanent 6' x 8' fish pond; replacing a playground set; resurfacing a pool deck, patio, and front porch entry; resurfacing a driveway; and extending a present screen porch. Of the three ARC applications that involved some type of new construction (fish pond, playground set, and porch extension), each contained pictures, dimensions, and/or diagrams sufficient for the reviewer to appreciate where the project was being constructed in relation to the house and property lines.7/ As of December 12, 2012, Respondent had neither approved nor rejected the Whitts' dock application. That application is simply not complete without the requested information. The dock application remains "pending," awaiting receipt of the requested information. The Whitts' position that they have provided everything that the builder has provided them is insufficient to provide the ARC with the requisite information to know where the dock will begin on the Whitts' property; how far out the dock will extend into the lake; and what the structure will look like.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief filed on behalf of Mr. and Mrs. Whitt. DONE AND ENTERED this 15th day of February, 2013, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 15th day of February, 2013.
Findings Of Fact Petitioner Benton and Respondent Maine own adjacent tracts on a dead- end, but navigable, oxbow of the Kissimmee River. The Bentons are weekend and vacation residents, and Maine operates a commercial RV-trailer campsite. To accommodate the needs of his guests for boat launching and landing facilities, Maine constructed a 60 foot pier into the river fronting his property in July, 1982. However, he had not obtained any permits for this construction, and later removed 18 feet of the pier at the direction of the U.S. Army Corps of Engineers. He has applied to DER to obtain after the fact approval of the existing 42 foot pier. He also seeks to extend this pier to 52 feet and to add a 12 foot side dock at the end of the extension. DER has studied the site and reviewed the proposed additional construction. There was no evidence to indicate that the existing pier or the proposed extension would harm the environment or create a navigational hazard. However, the extended pier would occupy fully half of this waterway, which is about 100 feet wide in this area. Petitioner objects to the proposed pier extension on esthetic grounds. Although the pier is constructed at a 90 degree angle to Maine's shoreline, it crosses directly in front of the Benton property. This situation results from the layout of the Benton and Maine tracts which intersect the river at approximately 45 degree angles. An imaginary extension of the Benton and Maine property lines into the river would place much of the existing pier and all of the proposed addition within the Benton extension. The proposed side dock would point toward the Benton property and further aggravate this intrusion. Since the location of the pier is close to the Benton-Maine property line, the proposed side dock's placement would require boats to be launched and landed directly across the Benton waterfront. The Benton property derives its principal value from its waterfront character. Therefore, the degradation of view caused by the pier extension along with the additional boat traffic near the side dock would adversely affect Petitioner's enjoyment of his property.
Recommendation From the foregoing, it is RECOMMENDED that the Department of Environmental Regulation issue a permit to John E. Maine approving his existing 42 foot pier in the Kissimmee River, subject to compliance with Section 253.77, Florida Statutes (1983). It is further RECOMMENDED that the application of John E. Maine insofar as he seeks to lengthen the existing pier be denied; but, that application for a side dock extension, if redesigned as stated herein, be approved. DONE and ENTERED this 23rd day of August, 1984, in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of August, 1984. COPIES FURNISHED: Vernon E. Benton 1280 North West 127 Street North Miami, Florida 33167 Douglas H. MacLaughlin, Esquire and Astrid L. Wistedt, Legal Intern Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 John E. Maine Route 1, Box 508 Lorida, Florida 33857 Bert J. Harris, III, Esquire Post Office Box 548 Lake Placid, Florida 33852 Victoria Tschinkel, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact Upon consideration of the Joint Prehearing Stipulation, the following relevant facts are found: At all times material hereto, Pinnacle Port Community Association (hereinafter referred to as PPCA) has been a not- for-profit corporation created under Chapter 617 Florida Statutes, and was the association, as defined in Section 718.103(2), Florida Statutes, which operated the four separate condominiums which together constitute the Pinnacle Port Resort. The Pinnacle Port Resort is located in Bay County, Florida and consists of four separate residential condominiums, identified as Phases I-A, I-B, I-C, I-D, and together these condominiums have a combined total of 408 units. Although each of the above condominiums was created by a separate recorded declaration of condominium, the declarations are, in all respects material to this proceeding and for all time periods relevant hereto, identical to the declaration for Phase I-B received into evidence as Joint Exhibit I. The Pinnacle Port Condominiums are located on a pie- shaped parcel of property which is bordered by the Gulf of Mexico on the south and there is a large lake, known as Lake Powell, located a short distance to the north of the condominium property. Immediately to the west of the condominium property, on land owned by a third party, Avondale Mills Corporation, there is a narrow channel, known as Phillips Inlet, that connects the Gulf of Mexico to Lake Powell. Because of fluctuating water levels in the channel and tidal action which regularly causes some shifting of sand around the channel, the current inlet does not provide trustworthy year round navigation for use by recreational boats between Lake Powell and the Gulf of Mexico. During 1983, several individuals owning land adjacent to Lake Powell, including Avondale Mills Corporation and certain unit owners at Pinnacle Port, decided to work together to investigate the possibility of stabilizing the inlet in order to provide a year round navigable channel between Lake Powell and the Gulf of Mexico. In March of 1984, the above land owners formed a not- for-profit corporation, known as Lake Powell Improvement Corporation, and through individual financial contributions by the members of this corporation began developing plans and conducting studies on the feasibility of stabilizing the Phillips Inlet. In May of 1984, the board of directors of Respondent adopted a resolution supporting the efforts of the Lake Powell Improvement Corporation and a non-binding straw vote of Pinnacle Port unit owners was conducted by the board of directors. The results of this vote were 232 votes in favor, 32 votes opposed, 6 votes requesting additional information and 138 unit owners did not respond. A true and correct copy of the correspondence which was sent to unit owners and representative samples of ballots returned from unit owners was received into evidence as Joint Exhibit 3. On or about August 11, 1984, at a meeting of the Respondent association, a majority of the voting interests present at the meeting for each of the four Pinnacle Port Condominiums approved a resolution "to participate in the stabilization of Phillips Inlet at the cost of no more than an average of $700.00 per unit." The resolution, which would authorize assessments in a total amount of $285,600.00, was passed by a vote of 179 votes in favor, of which 108 votes were by proxy; 81 votes against, of which 36 votes were by proxy; and 2 abstentions. The association is comprised of 408 members entitled to vote, in person or by proxy, and at least 205 members must be present, in person or by proxy, at a meeting of the association to satisfy quorum requirements. As part of the above resolution, the unit owners were advised that up to 50% of the proposed assessment would be used to obtain governmental permits required prior to beginning construction activities to stabilize the inlet and 50% of the assessments collected, plus any remaining funds collected previously for permitting purposes, would be used later for construction of the stabilized inlet if the governmental permits were granted. Based on the August 1984 resolution, the association has assessed as a common expense approximately $142,000.00 from unit owners and has contributed approximately $110,792.00 of these funds to the Lake Powell Improvement Corporation. In addition, the association is currently holding approximately $14,823.00 as interest on the funds collected for the Phillips Inlet projects. The Respondent has no written or formal agreement with Lake Powell Improvement Corporation. The funds were contributed to that corporation with the understanding that they would be used to conduct environmental and engineering studies and take other similar steps to obtain governmental permits which are necessary as a prerequisite to constructing the stabilized inlet. Respondent alleges that all of the funds spent have either been paid to Lake Powell Improvement Corporation or to third parties performing professional services for that corporation and that these funds have in fact been used to conduct environmental studies and to take other steps to obtain the necessary governmental permits. The Petitioner and the Intervenors do not dispute this statement in this proceeding. If the necessary governmental permits can be obtained, Lake Powell Improvement Corporation intends to dredge a new channel adjacent to the existing channel at Phillips Inlet and located on property owned exclusively by Avondale Mills Inc. The exact location of the proposed channel on the Avondale Mills property has not yet been determined. The Respondent expects the channel to be located approximately as shown on the maps included in the joint-application filed with the various agencies which have jurisdiction to issue the necessary permits. A true and correct copy of this joint application was received into evidence as Joint Exhibit 2. In order to complete the proposed channel, it will be essential that permits be obtained from the Florida, Department of Natural Resources and the Florida Department of Environmental Regulation and the United States Army Corps of Engineers. Although Lake Powell Improvement Corporation filed a joint application with both the above agencies in October of 1985, the permits have neither been granted nor denied. At the time of the August 1984 resolution, and continuing to the present, the property upon which the stabilized --inlet is proposed to be constructed was not a common element for -any of the Pinnacle Port Condominiums and the Respondent-Association does not have any contractual or property interest, existing or contingent, in this property. Although no agreement has previously been entered into between the members of Lake Powell Improvement Corporation concerning the future maintenance of the proposed channel, it is contemplated that an agreement will be entered into prior to the actual construction of the channel. The Respondent further contemplates contributing up to one third of the cost of maintenance, contingent upon unit owner approval, through further assessments against the unit owners. If the governmental permits applied for are granted and the inlet is constructed and maintained to a depth and width as proposed in the permit applications, the Pinnacle Port unit owners and their guests with boats, either docked at the Respondent's pier or launched at the boat ramp in Lake Powell, will have convenient access to the Gulf of Mexico. There are no existing boat ramps, piers, or docks located along the Gulf of Mexico or Pinnacle Port property. The Pinnacle Port condominiums have a rental program which advertises and rents owner's units on both a short and long term basis for owners who so desire. At the present time, 240 units participate in this rental program and an unknown number of additional owners occasionally rent their units independently. Based on the evidence produced at the hearing and the testimony of Randall Clark Chandler, the following finding of fact is made: Although it is reasonable to expect that the planned stabilization of Phillips Inlet would provide recreational benefit to some unit owners and might help to make the units at the resort more marketable, factors affecting the relative costs and benefits of the project (such as, whether necessary governmental permits are granted; the amount of future assessments which will be imposed against units to pay for construction and maintenance costs of the inlet; the possible imposition of restrictions or restrictive convenants on the use of the inlet or the adjoining lands; the effect of the inlet on water quality; and future market conditions are speculative at this time and make it impossible to quantify the value of the stabilization project or even to conclude that the project will clearly or substantially benefit unit owners.
Recommendation Based upon the Findings of Fact and Conclusions of Law recited herein, it is RECOMMENDED that: (1) Respondent immediately cease and desist any further collection of assessments based on the August, 1984 resolution at issue herein and immediately obtain and refund to unit owners, on a pro rata basis, any monies in its possession which were previously collected under this assessment; (2) Respondent refund, on a pro rata basis, all interest on the funds previously collected for the Phillips Inlet project and; (3) Respondent, in the future, strictly comply with the provisions of Chapter 718, Florida Statutes and any future violations of the statutes at issue here shall be considered as a basis for aggravating civil penalties should administrative action be necessary in the future. Respectfully submitted and entered this 20th day of October, 1986, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE, 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 20th day of October, 1986. COPIES FURNISHED: Richard Coats, Director Division of Florida Land Sales, Condominiums and Mobile Homes Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, FL 32301 James Rearney, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, FL 32301 John C. Courtney, Esq. Deputy General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32301-1927 Michael Reichman, Esq. Post Office Box 4 Monticello, FL 32344 Marshall Conrad, Esq. Post Office Box 39 Tallahassee, FL 32302 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner 1.-3. Adopted in Findings of Fact 1-3. 4. Rejected as immaterial and irrelevant. 5.-21. Adopted in Findings of Fact 4-19. 21. Adopted in Finding of Fact 20. Rulings on Proposed Findings of Fact Submitted by the Respondent 1.-19. Adopted in Findings of Fact 1-19. 20. Rejected as not comporting to the substantial competent evidence in the record. The Intervenors submitted a "Recommended Order" which adopted the Findings of Fact submitted by the Respondent in its Proposed Findings of Fact.
The Issue The issue is whether Respondent homeowners’ association properly revived its expired Declaration of Covenants, Conditions, and Restrictions in accordance with sections 720.403- 720.407, Florida Statutes.
Findings Of Fact Petitioners own residential properties in Bayhead Landings community (the “Community”). Petitioners are members of Respondent, Bayhead Landings Property Owners Association, Inc. (the “Association”). The Association has historically operated and governed the Community. The Declaration of Covenants, Conditions, and Restrictions of the Association (the “Declaration”), by its terms, provided that it would expire at the end of 2010, unless it was renewed in accordance with its terms. Because the Declaration was to expire, by its terms, at the end of 2010, the Association attempted to preserve the Declaration, prior to its expiration, on more than one occasion, the last of which was in the latter part of 2010. At that time, a membership vote to approve the preservation was conducted by written consents, pursuant to chapter 617, Florida Statutes. The membership vote resulted in 41 votes in favor and zero votes against preserving the Declaration, with six abstentions or non-votes. In the fall of 2013, Petitioners in this consolidated matter, with the exception of the Whitts, commenced a suit against the Association, seeking to invalidate the 2010 preservation and seeking a determination that the Declaration had expired, by its terms, and become void on December 31, 2010 (the “Declaratory Suit”). While the Whitts were not plaintiffs in the Declaratory Suit, they were parties to the pre-suit mediation demand and took part in the pre-suit mediation, prior to the filing of the Declaratory Suit. In their Petitions and in testimony at the final hearing in this matter by Petitioner, Daniel J. DiCiolla, Petitioners have continued to assert that the Declaration had expired and become void on December 31, 2010. In early 2014, the plaintiffs in the Declaratory Suit filed a motion for summary judgment, based on several arguments, one of which was that the Association had improperly conducted the 2010 preservation vote by written consent, instead of voting in person or by proxy at a duly noticed meeting. At the March 17, 2014, hearing on the Plaintiffs’ Motion for Summary Judgment, plaintiffs’ counsel, who is also the Petitioners’ counsel in this proceeding, argued that the Declarations “weren’t preserved” and that if the Association wanted to protect the property, it could always revitalize the Declaration. The court in the Declaratory Suit, by final judgment dated March 24, 2014, granted summary judgment in favor of the plaintiffs, holding that the 2010 preservation vote, because it was conducted by written consent, had been ineffective, and that the Declaration was therefore void, as of its expiration date on December 31, 2010. As of January 1, 2011, the Declarations were declared expired by the Pasco County Court in case number 2013-CC-003057. On April 2, 2014, the Association appealed the final judgment on various grounds. The trial court, on May 15, 2014, entered an order staying the effect of the final judgment pending the appeal (the “Stay Order”). The Stay Order was thereafter amended, on June 12, 2014 (the “Amended Stay Order”), to allow members, instead of paying their assessments to the Association, to pay such assessments to the escrow account of plaintiffs’ counsel, who is also counsel for Petitioners in this matter. The Association, prior to the Declaratory Suit, had incurred substantial legal costs in successfully defending two pieces of litigation. The Amended Stay Order, while providing that the Association could petition for the release of assessments paid into the escrow account held by plaintiffs’ counsel, provided, in paragraph 6, that no such funds could be released for payment of the Association’s past legal fees. The entry of the summary judgment and the Stay Order created confusion among the membership, as a result of which many members believed they had no continuing obligation to pay their assessments, and made no such payments. While the appeal was pending, the Association took steps to revive the Declaration, pursuant to sections 720.403- 720.407, Florida Statutes. The Board of Directors (the “Board”) for the Association appointed a committee (the “Organizing Committee”) to administer the revival of the Declaration. The appointment of the Organizing Committee was published to the membership of the Association at the annual members meeting held on May 10, 2014. Petitioners, Audie Childers and Daniel J. DiCiolla, were present at the May 10, 2014, annual members meeting at which the appointment of the Organizing Committee was announced to the membership. The Organizing Committee had no formal meetings, but met in a series of work sessions at which administrative functions, such as stuffing and placing postage on envelopes, making copies, mailing out letters, receiving letters, and counting ballots, were performed. Notice of these sessions was not provided to the members of the Association. The Organizing Committee never held a meeting at which a final decision was made regarding the expenditure of Association funds, and the Organizing Committee was never vested with the power to approve or disapprove architectural decisions with respect to a specific parcel of residential property owned by a member of the Community. In its effort to revive the Declaration, the Association obtained a majority vote of the membership in favor of revival, consisting of 26 affirmative votes, in accordance with section 720.405(6). The revival vote was conducted by written consent, in accordance with section 720.405(6). The revived Declaration was approved by the Florida Department of Economic Opportunity, by letter to the Association dated August 21, 2014. Once the revival was complete, the Association dismissed the appeal. Plaintiffs’ motion for attorney’s fees and costs remained for determination by the appellate court at the time of this hearing. The parcel owners of real property governed by Respondent are still subject to the stay and required to pay assessments and otherwise comply with the Declaration. The Bylaws governing Respondent were at all times in full force and effect, and the ruling in the Pasco County Court case did not invalidate the Bylaws. The Bylaws were written in 1990 before chapter 617, Florida Statutes, was revised to allow not-for-profit corporations to use written consents, and provided that the only method allowed for the membership to vote was either in person or by proxy at a duly noticed meeting. The Declaration and Bylaws were written and recorded in 1990, before sections 720.403-720.407 were enacted in 2004. Petitioners were at no time opposed to the preservation of the Declaration or the revival of the Declaration. Petitioners introduced no evidence in support of any damages suffered as a result of the Declaration being revived.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final order dismissing the Petitions and affirming its approval of Respondent’s revival. DONE AND ENTERED this 1st day of April, 2015, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 1st day of April, 2015. COPIES FURNISHED: Barbara Billiot Stage, Esquire Law Offices of Stage and Associates, P.A. 7635 Ashley Park Court Orlando, Florida 32835 (eServed) Gary M. Schaaf, Esquire Becker and Poliakoff, P.A. Suite 100 1511 North Westshore Boulevard Tampa, Florida 33607 (eServed) Robert N. Sechen, General Counsel Department of Economic Opportunity Caldwell Building, Mail Stop Code 110 107 East Madison Street Tallahassee, Florida 32399-4120 (eServed) Jesse Panuccio, Executive Director Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4120 (eServed) Katie Zimmer, Agency Clerk Department of Economic Opportunity Mail Stop Code 110, Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4120 (eServed)
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the respondent Division of Beverage issue the type 11-C license to petitioner without further delay. Respectfully submitted and entered this 24th day of March, 1976, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Charles A. Nuzum Division of Beverage Johns Building. Tallahassee, Florida
Findings Of Fact Petitioner is the state agency charged with the enforcement of the provisions of Part VIII of Chapter 468, Florida Statutes, and of Chapter 61B-55, Florida Administrative Code. At all times material to this proceeding Respondent, Robert Rosen, was licensed as a community association manager and held license number 3371 issued by Petitioner. At the time of the formal hearing, Respondent had been performing community association management services for approximately fifteen years. Respondent has had extensive participation in community association management education and training activities and was, at all times pertinent hereto, aware of the duties imposed on community association managers by statute and by rule. Part VIII of Chapter 468, consisting of Sections 468.431 - 468.437, Florida Statutes, pertain to the regulation and licensure of Community Association Management. Section 468.431, Florida Statutes, provides the following definitions pertinent to this proceeding: "Community association management" means any of the following practices requiring substantial specialized knowledge, judgment, and managerial skill when done for remuneration and for the public and when the association or associations served contain more than 50 units or have an annual budget or budgets in excess of $100,000: controlling or disbursing funds of a community association, preparing budgets or other financial documents for a community association, assisting in the noticing or conduct of community association meetings, and coordinating maintenance for the residential development and other day-to-day services involved with the operation of a community association. A person who performs clerical or ministerial functions under the direct supervision of a licensed manager or who is charged only with performing the maintenance of a community association and who does not assist in any of the management services described in this subsection is not required to be licensed under this part. "Community association manager" means a person who is licensed pursuant to this part to perform community association management services. A person performing community association management services to one or more associations containing more than 50 units or having an annual budget or budgets in excess of $100,000 must possess a community association manager's license. Licenses to act as a community association manager are issued by Petitioner to individual persons. Licenses are not issued to corporations. An individual who is a community association manager within the meaning of Section 468.431(3), Florida Statutes, is required by the provisions of Section 468.432(1), Florida Statutes, to be licensed by the Petitioner, as follows: A person shall not manage or hold himself out to the public as being able to manage a community association in this state unless he is licensed by the department in accordance with the provisions of this part. . . . Corporations that provide community association management services through licensed employees merely have to register with the Petitioner pursuant to Section 468.432(2), Florida Statutes, which provides, in pertinent part, as follows: Nothing in this part prohibits a corporation, partnership, trust, association, or other like organization from engaging in the business of community association management without being licensed if it employs licensed natural persons in the direct provision of community association services. Such corporation, partnership, trust, association, or other organization shall also file with the department a statement on a form approved by the department that it submits itself to the rules of the department and the provisions of this part which the department deems applicable. Petitioner has rule making authority pursuant to the provisions of Section 468.433(3), Florida Statutes. Petitioner has the authority to enforce its rules and statutes pursuant to the provisions of Section 468.436, Florida Statutes. Pursuant to its rule making authority, Petitioner has enacted Rule 61B- 55.007, Florida Administrative Code, which provides, in pertinent part, as follows: Standards of Professional Conduct. All licensees and registrants shall adhere to the following provisions and standards of professional conduct, and such provisions and standards shall be deemed automatically incorporated, as duties of all licensees and registrants, into any written or oral agreement for the rendition of community association management services, the violation of which shall constitute gross misconduct or gross negligence. Definitions. As used in this rule, the following definitions apply: The word "control" means the authority to direct or prevent the actions of another person or entity pursuant to law, contract, subcontract or employment relationship with a community association, its board of directors, any committee thereof or any member of any board or committee. "Licensee" means a person licensed pursuant to section 468.432(1), Florida Statutes. "Registrant" means an entity registered pursuant to section 468.432(2), Florida Statutes. The word "funds" as used in this rule includes money and negotiable instruments including checks, notes and securities. * * * (6) Records. (a) A licensee or registrant shall not withhold possession of any books, records, accounts, funds, or other property of a community association when requested by the community association to deliver the same to the association upon reasonable notice. It shall be presumed that reasonable notice shall extend no later than 7 business days after receipt of a written request from the association. The provisions of this rule apply regardless of any contractual or other dispute between the licensee and the community association, or between the registrant and the community association. It shall be considered gross misconduct, as provided by Section 468.436(2), Florida Statutes, for a licensee or registrant to violate the provisions of this subsection. The purpose of the community association manager licensing and regulation statute is to protect the public in general, and community association members in particular. Its primary goal is to ensure that managers who receive licenses from the state are trustworthy and have some degree of professional competence. Rosen Management Service, Inc., is a corporation that is not a party to this proceeding. Robert Rosen, in addition to being a licensed community association manager, is the president of Rosen Management Service, Inc. Throughout this proceeding, Robert Rosen acted through his corporation in providing community association management services to the associations involved in this proceeding. Prior to the termination of the management agreements between Rosen Management Service, Inc., and the six associations involved in this proceeding, Robert Rosen was a member of and an ex officio officer of each association. At all times pertinent to this proceeding, Rosen Management Service, Inc., employed licensed community association managers in addition to Robert Rosen. There was no evidence that any licensed community association manager employed by Rosen Management Service, Inc., other than Robert Rosen provided services to the six associations that are involved in this proceeding. At all times pertinent to this proceeding, Robert Rosen controlled the management of Rosen Management Service, Inc. The six separate community associations involved in this proceeding are located in Dade County, Florida. Rosen Management Service, Inc., began providing community association management services to each of these associations on January 1, 1991. The services provided to each association by Rosen Management Service, Inc., included the management and control of each association's finances. Those six associations are: Moors Master Maintenance Association, Inc. Moors Town Villas Maintenance Association, Inc. Moors Garden Homes Maintenance Association, Inc. Moors Pointe Condominium Association, Inc. Moors Village Homes Maintenance Association, Inc. Moors Patio Homes Maintenance Association, Inc. At issue in this proceeding are certain bank accounts that were opened in the Dadeland branch office of Southeast Bank by Rosen Management Service, Inc. Southeast Bank was acquired by First Union National Bank of Florida in 1992 after intervention by the Federal Deposit Insurance Corporation. The subject accounts became accounts in the Dadeland branch of the First Union National Bank after the acquisition. At the time these accounts were opened, Robert Rosen was a member of and ex officio officer of each association and had the authorization of each association to open each account in the manner in which it was opened. Moors Master Maintenance Association, Inc. The Moors Master Maintenance Association, Inc., and Rosen Management Service, Inc., entered into a management agreement that was effective January 1, 1991. By that agreement, Rosen Management Service, Inc., agreed to provide community association management services to the Moors Master Maintenance Association, Inc. The agreement provided for the termination of the agreement by either party with or without cause upon sixty days written notice. The agreement was executed by Robert Rosen as president of Rosen Management Service, Inc. On January 9, 1991, Robert Rosen caused an interest bearing checking account, account #018-690008, to be opened at the Dadeland branch of the Southeast Bank. The owner information was completed as follows: "Rosen Management Service, Inc., as agent for The Moors Master Maintenance Association, Inc." Robert Rosen was the only person authorized to sign on this account. The operating funds of the association were deposited into that account. On October 8, 1991, the Moors Master Maintenance Association, Inc., voted to terminate the management agreement with Rosen Management Service, Inc., and notified Robert Rosen of that action. On October 9, 1991, the attorneys representing the Moors Master Maintenance Association, Inc., notified Robert Rosen, as president of Rosen Management Service, Inc., that it had terminated the contract and demanded a return of the Association's books and records. This letter also stated: ". . . effective immediately no additional checks are to be written by you on any of the accounts at (sic) the Association." The Moors Master Maintenance Association, Inc., caused its attorneys to write a letter to Southeast Bank dated October 10, 1991, concerning account #018-690008 which stated, in pertinent part, as follows: . . . At a meeting of the Board of Directors held on Tuesday, October 8, 1991, the Board voted to terminate its management agent, Rosen Management Service, Inc. Accordingly, please be advised that effective immediately, no further activity with respect to the above referenced account is to be initiated by Rosen Management Service, Inc. and/or Robert Rosen. The Moors Master Maintenance Association, Inc., wrote to Southeast Bank a letter dated November 19, 1991, which stated, in pertinent part, as follows: This letter is to inform you that at a Board of Directors meeting held on Tuesday, October 8, 1991, the Board of Directors of the Moors Master Maintenance Association terminated their contract with Rosen Management. This refers to the contract that went into effect January 1, 1991. Rosen Management is no longer an agent of the above mentioned association. Please transfer all monies in the Associations' account #018-690008 to the new account we opened . . . On November 19, 1991, the president of the Moors Master Maintenance Association advised the Southeast Bank that it had opened a new account and requested that the funds in account #018-690008 be transferred to the new account. Moors Town Villas Maintenance Association, Inc. The Moors Town Villas Maintenance Association, Inc., and Rosen Management Service, Inc., entered into a management agreement that was effective January 1, 1991. By that agreement, Rosen Management Service, Inc., agreed to provide community association management services to the Moors Town Villas Maintenance Association, Inc. The agreement provided for the termination of the agreement by either party with or without cause upon sixty days written notice. The agreement was executed by Robert Rosen as president of Rosen Management Service, Inc. On January 9, 1991, Robert Rosen caused an interest bearing checking account, account #018-690024, to be opened at the Dadeland branch of the Southeast Bank. The owner information was completed as follows: "Rosen Management Service, Inc., as agent for The Moors Town Villa Homes Maintenance Association, Inc." Robert Rosen was the only person authorized to sign on this account. The operating funds of the association were deposited into that account. On October 22, 1991, the Moors Town Villas Maintenance Association, Inc., voted to terminate the management agreement with Rosen Management Service, Inc., and notified Robert Rosen of that action. By letter dated November 13, 1991, the association advised Robert Rosen, as president of Rosen Management Service, Inc., that all records, documents, files, contracts, and invoices belonging to the association should be turned over to the new management company. The Moors Town Villas Maintenance Association, Inc., wrote to Southeast Bank a letter dated November 21, 1991, which stated, in pertinent part, as follows: This letter is to inform you that at a Board of Directors meeting held on Tuesday, October 22, 1991, the Board of Directors of the Moors Town Villas Maintenance Association terminated their contract with Rosen Management. This refers to the contract that went into effect January 1, 1991. Rosen Management is no longer an agent of the above mentioned association. Please transfer all monies in the Associations' account #018-690024 to the new account we opened . . . Moors Garden Homes Maintenance Association, Inc. The Moors Garden Homes Maintenance Association, Inc., and Rosen Management Service, Inc., entered into a management agreement that was effective January 1, 1991. By that agreement, Rosen Management Service, Inc., agreed to provide community association management services to the Moors Garden Homes Maintenance Association, Inc. The agreement provided for the termination of the agreement by either party with or without cause upon sixty days written notice. The agreement was executed by Robert Rosen as president of Rosen Management Service, Inc. On January 9, 1991, Robert Rosen caused an interest bearing checking account, account #018-689992, to be opened at the Dadeland branch of the Southeast Bank. The owner information was completed as follows: "Rosen Management Service, Inc., as agent for The Garden Homes of the Moors Maintenance Association, Inc." Robert Rosen was the only person authorized to sign on this account. The operating funds of the association were deposited into that account. On October 24, 1991, the Moors Garden Homes Maintenance Association, Inc., voted to terminate the management agreement with Rosen Management Service, Inc., and notified Robert Rosen of that action. By letter dated November 7, 1991, the association advised Robert Rosen, as president of Rosen Management Service, Inc., that all records, documents, files, contracts, and invoices belonging to the association should be turned over to the new management company. The Moors Garden Homes Maintenance Association, Inc., wrote to Southeast Bank a letter dated November 21, 1991, which stated, in pertinent part, as follows: This letter is to inform you that at a Board of Directors meeting held on Tuesday, October 24, 1991, the Board of Directors of the Moors Garden Homes Maintenance Association terminated their contract with Rosen Management. This refers to the contract that went into effect January 1, 1991. Rosen Management is no longer an agent of the above mentioned association. Please transfer all monies in the Associations' account #018-689992 to the new account we opened . . . Moors Pointe Condominium Association, Inc. The Moors Pointe Condominium Association, Inc., and Rosen Management Service, Inc., entered into a management agreement that was effective January 1, 1991. By that agreement, Rosen Management Service, Inc., agreed to provide community association management services to the Moors Pointe Condominium Association, Inc. The agreement provided for the termination of the agreement by either party with or without cause upon sixty days written notice. The agreement was executed by Robert Rosen as president of Rosen Management Service, Inc. On January 9, 1991, Robert Rosen caused an interest bearing checking account, account #018-689984, to be opened at the Dadeland branch of the Southeast Bank. The owner information was completed as follows: "Rosen Management Service, Inc., as agent for The Moors Pointe Condominium Association, Inc." Robert Rosen was the only person authorized to sign on this account. The operating funds of the association were deposited into that account. On October 24, 1991, the Moors Pointe Condominium Association, Inc., voted to terminate the management agreement with Rosen Management Service, Inc., and notified Robert Rosen of that action. The letter terminating the management agreement was dated October 31, 1991, and advised Robert Rosen, as president of Rosen Management Service, Inc., that all books and records for the association should be turned over to the new management company. The Moors Pointe Condominium Association, Inc., wrote to Southeast Bank a letter dated November 21, 1991, which stated, in pertinent part, as follows: This letter is to inform you that at a Board of Directors meeting held on Tuesday, October 25, 1991, the Board of Directors of the Moors Pointe Condominium Association terminated their contract with Rosen Management. This refers to the contract that went into effect January 1, 1991. Rosen Management is no longer an agent of the above mentioned association. Please transfer all monies in the Associations' account #018-689984 to the new account we opened . . . Moors Village Homes Maintenance Association, Inc. The Moors Village Homes Maintenance Association, Inc., and Rosen Management Service, Inc., entered into a management agreement that was effective January 1, 1991. By that agreement, Rosen Management Service, Inc., agreed to provide community association management services to the Moors Village Homes Maintenance Association, Inc. The agreement provided for the termination of the agreement by either party with or without cause upon sixty days written notice. The agreement was executed by Robert Rosen as president of Rosen Management Service, Inc. On January 9, 1991, Robert Rosen caused an interest bearing checking account, account #018-690032, to be opened at the Dadeland branch of the Southeast Bank. The owner information was completed as follows: "Rosen Management Service, Inc., as agent for The Moors Village Homes Maintenance Association, Inc." Robert Rosen was the only person authorized to sign on this account. The operating funds of the association were deposited into that account. On October 24, 1991, the Moors Village Homes Maintenance Association, Inc., voted to terminate the management agreement with Rosen Management Service, Inc., and notified Robert Rosen of that action. The Moors Village Homes Maintenance Association, Inc., wrote to Southeast Bank a letter dated November 21, 1991, which stated, in pertinent part, as follows: This letter is to inform you that at a Board of Directors meeting held on Tuesday, October 25, 1991, the Board of Directors of the Moors Village Homes Maintenance Association terminated their contract with Rosen Management. This refers to the contract that went into effect January 1, 1991. Rosen Management is no longer an agent of the above mentioned association. Please transfer all monies in the Associations' account #018-690032 to the new account we opened . . . Moors Patio Homes Maintenance Association, Inc. The Moors Patio Homes Maintenance Association, Inc., and Rosen Management Service, Inc., entered into a management agreement that was effective January 1, 1991. By that agreement, Rosen Management Service, Inc., agreed to provide community association management services to the Moors Patio Homes Maintenance Association, Inc. The agreement provided for the termination of the agreement by either party with or without cause upon sixty days written notice. The agreement was executed by Robert Rosen as president of Rosen Management Service, Inc. On January 9, 1991, Robert Rosen caused an interest bearing checking account, account #018-690016, to be opened at the Dadeland branch of the Southeast Bank. The owner information was completed as follows: "Rosen Management Service, Inc., as agent for The Moors Patio Homes Maintenance Association, Inc." Robert Rosen was the only person authorized to sign on this account. The operating funds of the association were deposited into that account. On October 22, 1991, the Moors Patio Homes Maintenance Association, Inc., voted to terminate the management agreement with Rosen Management Service, Inc., and notified Robert Rosen of that action. The letter terminating the management agreement was dated October 31, 1991, and advised Robert Rosen, as president of Rosen Management Service, Inc., that all books and records of the association should be turned over to the new management company. The Moors Patio Homes Maintenance Association, Inc., wrote to Southeast Bank a letter dated November 21, 1991, which stated, in pertinent part, as follows: This letter is to inform you that at a Board of Directors meeting held on Tuesday, October 22, 1991, the Board of Directors of the Moors Patio Homes Maintenance Association terminated their contract with Rosen Management. This refers to the contract that went into effect January 1, 1991. Rosen Management is no longer an agent of the above mentioned association. Please transfer all monies in the Associations' account #018-690016 to the new account we opened . . . The Collateral Litigation. In November 1991, Rosen Management Service, Inc., (plaintiff) brought suit against the Moors Master Maintenance Association, Inc., (defendant) in circuit court seeking compensatory damages in the amount of $927,553.24 and punitive damages in the minimum amount of $2,782,659.70. That proceeding was pending at the time of the formal hearing held in the instant proceeding. In December 1991, the six associations (plaintiffs) sued Rosen Management Service, Inc., and Robert Rosen (defendants) in circuit court seeking temporary and permanent injunctive relief requiring the defendants to turn over the books and records of the plaintiffs. On December 19, 1991, a special master was appointed in this circuit court proceeding. The special master was ordered to take possession of the books and records of the six associations, including the six bank accounts. The attorney for the defendants in that circuit court proceeding consented to the transfer of the control of the six bank accounts to the special master. Before the transfer could be effectuated, the circuit court proceeding was voluntarily dismissed by the plaintiffs. Consequently, the special master never took possession of the funds in these bank accounts. Robert Rosen was aware that the special master never took possession of these bank accounts. On or about March 31, 1993, a separate proceeding was filed in circuit court by the six associations (plaintiffs) against Rosen Management Service, Inc. That proceeding was pending at the time of the formal hearing held in the instant proceeding. The Manager of the Bank. In reaction to the letters from the six Moors associations and their attorneys, Diego Rodriguez, the manager of the Dadeland branch of the Southeast Bank, advised Mr. Rosen that he no longer had any authority over the account and that the bank would not take any instructions from him. This information was conveyed to Mr. Rosen by Mr. Rodriguez in October 1991, in April 1992, and on September 3, 1992. On September 3, 1992, Mr. Rodriguez wrote a letter to Sharon Malloy, Assistant Bureau Chief for Petitioner's Bureau of Condominiums. That letter corroborates the Respondent's testimony as to information provided to him by Mr. Rodriguez. That letter stated, in pertinent part, as follows: "All went fine [with the six accounts] until October 1991, when we received a certified letter from the Law Firm of Becker & Poliakoff stating that they represented the six Moors Associations, and instructed this banking center to remove Mr. Robert Rosen as an authorized signer on the six accounts. The letter further stated that this bank could no longer accept any instructions what- so-ever from Rosen and not to discuss any of these accounts with him. Ms. Malloy, our branch has done just that. We informed Mr. Rosen that he no longer had any control, custody, jurisdiction, or any other authority on these accounts. That was in October 1991, and we've told that to Mr. Rosen on at least a dozen occasions since then, including April 1992 when we confirmed this in writing to Mr. Rosen, and again today, September 3, 1992. We specifically told Mr. Rosen that in view of these circumstances, we would require a Court Order before we could accept any instructions from anyone as to these accounts. Your staff must have misinterpreted my letter of April 1992, which clearly stated that Mr. Rosen has been removed as a signer on these accounts. This doesn't mean he just can't sign; it means that he has no control, no custody, no jurisdiction, no power of any kind on these accounts. These accounts have each been coded so as not to allow Mr. Rosen either access to the funds or information on these accounts. This Bank will not take any instructions from him!!! (Emphasis in the original.) The Attorneys for the Bank. Southeast Bank, and later First Union Bank, asserted the position that it could not transfer the funds or otherwise release the funds in the six accounts without the written consent of a duly authorized representative of Rosen Management Service, Inc. On May 12, 1992, Steve Gillman, the attorney for First Union Bank advised the attorneys for the associations in writing that the transfer of the bank accounts established by Rosen Management Service, Inc., could be transferred to the new bank accounts established by the associations if an authorized representative of Rosen Management Service, Inc., as the account party executed an appropriate transfer request. On May 13, 1992, the attorneys for the associations forwarded to the attorney for the Respondent a copy of the May 12, 1992, letter from the bank's attorney. Enclosed with that letter was a simple, single page authorization form by which Robert Rosen, on behalf of Rosen Management Service, Inc., could consent to the transfer of the funds in the six association bank accounts to new bank accounts controlled by the associations. Robert Rosen received a copy of this letter and the enclosures. This letter of May 13, 1992, provided, in pertinent part, as follows: . . . As you can see an appropriate transfer request from your clients is all that is required to return the funds to their beneficial owners. Pursuant to the foregoing, we make final demand upon your clients to provide authorization to the bank to transfer the funds on deposit beneficially owned by the respective Moors associations to the new accounts at First Union/Southeast already established for the purpose of facilitating such a transfer. Toward this end, I have enclosed an authorization for your clients to sign forthwith. Robert Rosen knew that the six associations were unable to withdraw the funds from the six bank accounts because of the repeated demands of the associations. Prior to the position asserted by the bank as reflected by Mr. Gillman's letter of May 1992, there was some confusion as to what Respondent could or should do to transfer these accounts. This situation was exacerbated by the collateral litigation filed by Rosen Management Service, Inc., and by the associations, the voluntary dismissal of the suit by the associations after the special master had been appointed, and by the erroneous advice given by Mr. Rodriguez. Notwithstanding the position asserted by Mr. Rodriguez, Mr. Rosen knew after he received copies of the letters from Mr. Gillman, that his authorization was all that was required to transfer the funds from the old accounts to the new accounts. Robert Rosen failed to execute that simple authorization form until August 18, 1993, thereby blocking access by the associations to their funds in these bank accounts. There was a meeting on July 1, 1992, involving the Respondent, his attorney and attorneys and representatives of the six associations. During that meeting, Respondent was again asked to sign the consent form necessary to transfer the funds in the six accounts at issue in this proceeding to accounts controlled by the respective associations. Despite repeated demands for him to do so, Respondent did not sign the consent form that he knew was required to transfer the funds in the six bank accounts to the respective associations until August 1993. As a result of Robert Rosen's failure to sign the consent form in his capacity of President of Rosen Management Service, Inc., or to instruct some other qualified representative of Rosen Management Service, Inc., sign the form, these six associations were deprived of access to their funds until August 1993. Robert Rosen testified that he delivered an executed copy of this form to the First Union Bank Dadeland branch office shortly after he received it in May 1992. This self-serving testimony lacks credibility and is rejected as being contrary to the clear and convincing evidence that he did not execute the consent form until the first day of the formal hearing. On August 18, 1993, the first day of the formal hearing that was held in this proceeding, Robert Rosen signed the one-page document that authorized the transfer of all six association bank accounts to the respective associations. This authorization form was the same one-page document that had been forwarded to Respondent's counsel, and subsequently to Respondent, on May 13, 1992. Respondent had been repeatedly asked to execute this authorization form. On August 19, 1993, the funds that had been in account #018-690008 were transferred to a new account of the Moors Master Maintenance Association, Inc. The balance in the account at the time of the transfer was approximately $108,000.00. On August 19, 1993, the funds that had been in account #018-690024 were transferred to a new account of the Moors Town Villas Maintenance Association. The balance in the account at the time of the transfer was in excess of $100,000. On August 19, 1993, the funds that had been in account #018-689992 were transferred to a new account of the Moors Garden Homes Maintenance Association. The balance in the account at the time of the transfer was in excess of $100,000. On August 19, 1993, the funds that had been in account #018-689984 were transferred to a new account of the Moors Pointe Condominium Association The balance in the account at the time of the transfer was approximately $40,000. On August 19, 1993, the funds that had been in account #018-690032 were transferred to a new account of the Moors Village Homes Maintenance Association. The balance in the account at the time of the transfer was approximately $41,000. On August 19, 1993, the funds that had been in account #018-690016 were transferred to a new account of the Moors Patio Homes Maintenance Association, Inc. The balance in the account at the time of the transfer was approximately $75,000. Robert Rosen did not turn over and did not cause his corporation to turn over the funds of the six associations to those associations within seven business days of a written request to do so. Robert Rosen did not execute and did not cause his corporation to execute the written authorization form that was required to transfer the funds to the six associations within seven business days of a written request to do so. Because the six associations did not have access to their funds during the approximately two years that this matter was in dispute, the associations had to impose special assessments on their members, had to delay paying bills, and had to use reserve funds for operating bills. The associations also incurred attorneys' fees in attempting to secure the return of their funds. Robert Rosen has not been previously disciplined by the Petitioner. At all times pertinent to this proceeding, the funds were in interest bearing accounts. All funds in the six association accounts, including accrued interest, were turned over to the respective associations on August 19, 1993.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the licensure of Robert Rosen as a community association manager be revoked. DONE AND ORDERED this 1st day of February 1994 in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of February 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-0344 The following rulings are made on the proposed findings of fact submitted by Petitioner. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 24, 25, 28, 29, 31, 32, 33, 43 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 22, 30, 34, 35, 36, 37, 38, 39, 40, 41, 42, 44, 45, 46, 47, 48, 49, 50 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraph 23 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraphs 26 and 27 are adopted in part by the Recommended Order. The proposed findings in the last sentence of each paragraph are rejected as being argument as to the interpretation of written documents and unnecessary to the conclusions reached. The proposed findings of fact in paragraph 36 are adopted in part by the Recommended Order, and are subordinate in part to the findings made. The proposed findings of fact in paragraphs 51, 52, 53, 54 are subordinate to the conclusions reached. The following rulings are made on the proposed findings of fact submitted by Respondent. The following references are to paragraphs 1-14 contained in Respondent's Proposed Recommended Order in the section styled "General Findings of Fact and Conclusions of Law." The conclusions in paragraph 1 are rejected as being unnecessary as findings of fact and as being contrary to the conclusions reached. The proposed findings of fact and conclusions in paragraphs 2, 7, and 10 are rejected as being contrary to the conclusions reached or as being contrary to the conclusions reached. Findings of fact are made in the Recommended Order as to how the respective bank accounts were opened. The proposed findings of fact in paragraph 3 are adopted to the extent that the proposed findings are consistent with the findings made. The remainder of paragraph 3 is rejected as being contrary to the conclusions reached or to the findings made. The proposed findings of fact in paragraph 4 are adopted in material part by the Recommended Order or are subordinate to the findings made. Paragraph 5 consists of argument that is inappropriate as findings of fact. The proposed findings of fact in paragraph 6 are adopted in material part by the Recommended Order or are subordinate to the findings made. Paragraphs 7, 8 and 9 consist of argument or conclusions that are rejected as being contrary to the conclusions reached or to the findings made. The proposed findings of fact in paragraph 10 are adopted in part by the Recommended Order by the findings that Rosen Management Service, Inc., authorized the transfer of the funds to the special master. The proposed findings are otherwise rejected as being contrary to the findings made. Findings are made in the Recommended Order as to contacts Respondent made with the bank. The proposed findings of fact in paragraphs 11 and 12 are adopted to the extent the proposed findings are consistent with the findings made, but are otherwise rejected as being unnecessary to the conclusions reached since it was not established that Respondent's inquiries were directed toward returning the funds to the associations. The reference to December 1990 is unnecessary to the conclusions reached and apparently a misreading of the letter sent by Mr. Rodriguez to Ms. Malloy dated September 3, 1992. Findings are made in the Recommended Order pertaining to the collateral litigation. The proposed findings of fact in paragraph 13 are adopted to the extent the proposed findings are consistent with the findings made, but are otherwise rejected as being contrary to the greater weight of the evidence or as being contrary to the conclusions reached. The remainder of paragraph 13 consists of argument that is rejected as being contrary to the conclusions reached or as being unnecessary to the conclusions reached. Paragraph 14 consists of argument that is rejected as unnecessary as findings of fact and, in part, contrary to the conclusions reached. The following references are to paragraphs 1-15 contained in Respondent's Proposed Recommended Order in the section styled "Findings of Fact and Conclusions of Law on Termination of Agency Issue and Other Issues Relating to Charges." The proposed findings of fact in paragraphs 1, 2, 5 are adopted in material part by the Recommended Order. Paragraph 3 consists of argument or conclusions that are unnecessary as findings of fact. Paragraph 4 consists of argument or conclusions that are contrary to the findings or to the conclusions reached. The proposed findings of fact in paragraphs 6 and 7 are adopted in part by the Recommended Order or are subordinate to the findings made. The proposed findings of fact in paragraphs 6 and 7 are rejected to the extent they are inconsistent with the findings made in the Recommended Order. The proposed findings of fact in paragraph 8 are adopted in part by the Recommended Order. The remainder of paragraph 8 consists of argument that is unnecessary as findings of fact. Paragraph 9 consists of argument that is unnecessary as findings of fact. The proposed findings of fact in paragraph 10 are subordinate to the findings made. The proposed findings of fact in paragraph 11 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 12 are adopted in part by the Recommended Order. The remainder of paragraph 12 is rejected as being unnecessary to the findings made and to the conclusions reached. The proposed findings of fact contained in paragraphs 13 and 14 are either adopted by the Recommended Order or are subordinate to the findings made. The remainder of both paragraphs consists of argument that is inappropriate to incorporate as findings of fact. The proposed findings of fact in Paragraph 15-1 are adopted in material part by the Recommended Order. The remainder of paragraph of paragraph 15 is rejected as being predicated on self-serving testimony that lacks credibility and is contrary to the clear and convincing evidence presented by Petitioner. COPIES FURNISHED: Jeanne M. L. Player, Esquire Department of Business and Professional Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Franklin D. Kreutzer, Esquire 3041 Northwest 7th Street, Suite 100 Miami, Florida 33125 Henry M. Solares, Director Division of Florida Land Sales, Condominiums and Mobile Homes 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, Acting General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether disciplinary action should be taken against Respondent's license to practice contracting, license number CG C033931, based on the violations of Section 489.129(1), Florida Statutes, as charged in the Administrative Complaint filed against Respondent in this proceeding.
Findings Of Fact Based on the evidence and testimony of the witnesses presented and the entire record in this proceeding, the following facts are found: Reeves is a Florida State certified general contractor, having been issued license number CG C033931 by the Florida Construction Industry Licensing Board (CILB). Licensure status is "Active Issued." Reeves is registered or certified with the CILB as an individual. The Scope of the Project Sometime prior to October 1998, Beach retired, came to Florida, and needed a place to live, so she decided to ultimately reside in a trailer. Beach has health problems, which require special living accommodations and changes to the trailer she purchased, including ramps and a bathroom to facilitate the needs of a handicapped person. Beach was unfamiliar with trailer life and wanted to ensure that her trailer was "fastened securely to the ground." Based on suggestions made by three (3) different contractors, Beach decided to design a "roof over coming out eight feet on either side of the existing trailer and tying it to the ground securely so that the trailer was then encased in the roofing over." Beach developed the plans for the project, which were approved by the local planning and zoning department. After discussing the matter with Reeves, Beach also decided to have porches on both sides of the trailer, "taking advantage of the overhang that the roofing-over afforded." Beach and Reeves discussed other details, such as the need for a walk- in closet off of the bedroom, a whirlpool tub, replacement of the upper kitchen cupboards, improvement of the duct work in the kitchen and living areas, screening of the front porch and windows on the back porch (a sun room), enlargement of the bathroom and made "handicap-accessible," and replacement of the doors and ramps. The Written Proposal and "Extras" On or about November 2, 1998, Reeves entered into a written contractual agreement, i.e., the "Proposal" dated October 26, 1998, with Beach, to construct addition(s) and other items to her trailer-home located at 2170 Maryland Street, Lanark Village, Florida. The written Proposal states in material part: We will supply all labor and materials to complete the following at your residence: Build a new freestanding roof over existing trailer and extend roofline to cover front and back porches. Build a new front porch with approximately an 8' x 24' screen section and ramp on opposite end. Rebuild back porch to 8' x 24' and install windows. Enlarge bathroom and make a walk-in closet. Inspect and improve existing duct work for better air flow. Enclose gable ends of new roof and tie in to existing trailer. Install new upper cabinets in kitchen (allowance $500.00). WE WILL PERFORM THIS WORK FOR THE SUM OF $20,900.00) (TWENTY THOUSAND NINE HUNDRED DOLLARS). Beach agreed to make payments "as work progresses." The original contract price for the additions to the trailer was $20,900.00. The Proposal contained no language of access to the Construction Industry Licensing Fund. At the time of executing the Proposal, Reeves told Beach that a subcontractor was not necessary for the electrical and plumbing work. Reeves and Beach also discussed several "extras" which were added to the Proposal. Beach and Reeves made a verbal agreement for additions or extras to the original Proposal that included siding ($2,700.00), a fireplace, and an extension of one of the ramps, in exchange for not replacing the cabinets. These changes increased the total contract price to $24,200.00, which was paid by Beach. See Finding of Fact 33. Also in November 1998, and before she signed the Proposal, Beach prepared a list, in her handwriting, of plumbing and kitchen items she saw at Home Depot, which she needed for the job and she gave the list to Reeves. According to Beach, Reeves "followed through and got everything [on the list] except for the shower door." Reeves applied with the Franklin County Building and Zoning Department for permits to perform the work on the Beach trailer and the permits were issued. The Franklin County Building Code requires inspections, but does not state when they are to be performed. It is not unusual to perform more than one inspection at a time, especially where, like Franklin County, there is only one inspector for the entire County. Reeves did not ask for an inspection of the work done on the trailer. Work begins on the trailer and problems arise After the Proposal was signed and the verbal additional items agreed to, on November 4, 1998, Reeves commenced work on the project. At this time, Beach was living in a motor home. The roof line built by Reeves covered the back and front porches. Reeves built a new front porch with an approximately an eight foot by twenty-four foot screen porch and a ramp on the opposite end as required by the Proposal. He also added three other ramps, which are not mentioned in the Proposal. By letter dated April 15, 1999, Beach responded to an invoice submitted to her by Reeves. The record does not contain a copy of the invoice, which seems to have been dated March 31, 1999. However, Beach's letter indicates that Reeves submitted a bill for an additional $4,240.00 (which did not include $2,700.00 for siding), above the original Proposal price of $20,900.00. Beach says that only $975.00 are valid charges for "verbally agreed upon additions to the contract." (Beach says that she paid Reeves $600.00 for the extras which was included in her check of December 16, 1998, for $5,000.00.) Reeves' invoice was the first bill for any extras discussed by Beach and Reeves. According to Beach, they discussed the necessity of having additional ramps, and Reeves did not say there would be an additional charge, and it was discussed "as if it was part of the ongoing project." According to Beach, work progressed through November and slowed during Thanksgiving week. Into December, Beach says that Reeves came to the work site "less and less" and the workmen did not have either the necessary materials or equipment and also came "less and less." She tried to contact Reeves. According to Pendleton, who worked for Reeves on the Beach project, for the first three weeks to a month after commencing the project, Reeves was on-site every day. According to Pendleton, the job took longer than expected because of the many changes requested by Beach. For example, after the trailer was "roofed," Beach "wanted her outside ceiling closed into her trailer." They added "a furnace on the back porch," "put marble sills in her window of her trailer," and "furred out her whole wall to put paneling on the trailer." The original plans called for one ramp, but three were added. As work progressed, Beach expressed objections to Reeves regarding the workmanship on the screened-in porch and floorboards and the need to eliminate bugs from entry. They also discussed the build-up of heat in the roof because the roof was "trapping hot air in." Reeves treated the roof area, an extra, which Beach acknowledges. Beach reported other problems to Reeves, including but not limited to, a leak in the shower and an unsealed drain in the shower, which caused a flood in the bathroom, and "a two-foot hole cut in the floor around the plumbing that was left open to the outside." This was on the punch list she gave to Reeves. She pled with Reeves to finish the job, but he said that "[t]his w[ould] be the last day [he would] be coming" and that "he had other things he had to do." According to Beach, "things deteriorated," and she saw very little of Reeves into January and did not see much of him at all by the end of January. Beach was frightened and did not know what to do but "struggled along with [Reeves'] workmen," i.e., Richard Norman (Norman) and Pendleton, the main workmen, who did the plumbing for the shower. When Reeves was no longer on-site daily or all day, Norman and Pendleton were on-site. Another worker, Bob Lanceford quit because of the changes requested by Beach and her "flip- flopping." At some point in time after the trailer roof-over was completed and other work performed, including work on the back porch, Reeves and Beach discussed the punch lists written by both and that he had given the list to his workmen. Beach recalls the conversation and that Reeves said it was going to be his last day there. Beach recalls Norman staying to finish the skirting and Jody Fechera putting the siding on the inside of the sun porch, but that "the guys really didn't work on [the punch list] that much." Beach felt that she had to supervise Pendleton regarding hooking up the shower during this two-week period. Pendleton says that he and the others were working off of the list Reeves gave him during the last couple of weeks he was on the Beach job. Pendleton could not get the work done on the list because Beach "stood over [them] telling [them] to do other things and [they] never could get to that list." The list included adding hurricane clips and exterior work. None of these tasks were completed. Pendleton recalls Reeves telling him that he and "Rich" would have to leave the Beach site in a couple of days and to make Beach happy because they could not return until Edwards returned. Pendleton understood that they were to return to the Beach site and finish the job after Edwards finished the plumbing and electrical work. There is a dispute whether, during a two-week period after the punch lists were written, Beach was supervising Reeves' workmen including Pendleton. In or around the end of February 1999, Reeves advised Beach of problems he was having with the bathtub and needed Edwards "to do it." Reeves also needed Edwards, licensed to do plumbing and electrical work, to move the electrical panel box, which was accomplished. According to Beach, this was the first time Reeves advised Beach that he could not do plumbing or electrical work. Beach says that Reeves told her on the day they signed the Proposal that he would not have to subcontract for any of the plumbing and electrical work. Reeves admitted to doing plumbing and electrical work on this and other projects, although both of these types of work require specific licenses. Reeves recommended to Beach that Edwards perform these tasks. According to Pendleton, Edwards was "to come over and do all of the plumbing and wiring." It took Edwards quite a while to get to the Beach project. Edwards "pulled the permit for the electrical unit." He "made the old panel hot." He installed the breaker box and connected it to Beach's trailer. Edwards fixed the shower head and the drain plug, which was a major leak. He also fixed the plumbing. Edwards fixed some other problems he noticed, but he did not know whether these problems pre-dated Reeves' tenure on the project. In October 1998 and prior to Reeves' commencing work on the Proposal, Beach had a man drilling a well on her property. In February or March of 1999, Beach "got the idea of moving the tank back . . .." Edwards came to the Beach trailer on March 10, 1999, and installed the electrical panel and moved the tank at the same time. It took Edwards a few weeks to accomplish these tasks from the time Reeves and Beach discussed these items. Beach paid Edwards to move the electrical panel to the end of the house and move the water tank and installing it under the carport and some electrical and plumbing repairs. Beach paid Edwards $1,580.00, of which $700.00 of the bill, according to Beach, was for correcting plumbing and electrical errors made by Reeves or his workmen. In early March 1999, Ron Jackson (Jackson) advised Beach that Reeves had "run up a $9,435[.00] bill" at Ace Hardware in her name which remained unpaid and that a lien would be filed on her house. At this time, Beach filed a complaint with the local building department and hired an attorney to assist her with the lien. Apparently the lien was not timely filed and not successfully pursued. Beach also filed a complaint with the Department. Beach was unaware of any amount still owed on her job to others, which Reeves performed and did not pay. By letter dated March 30, 1999, Reeves apologized to Beach for not paying Jackson timely and told Beach he intended to pay Jackson, whether Beach paid him or not. On March 17, and April 21, 1999, a hearing was held before the Franklin County Construction Industry Licensing Board. This Board issued a verbal warning to Reeves "for operating outside his scope of work in the field of electrical and plumbing." Reeves advised the Board that he would not "do any electrical or plumbing until he is licensed to do the work or he will hire license[d] people." On April 7, 1999, Beach, having been living in a motor home during this time, decided to live in the trailer and discovered the flooding problems in the bathroom; everything in the kitchen leaked; and the commode was unsteady and leaked. Reeves returned to "stabilize it," but apparently Beach had to pay Edwards to repair the leaks in the bathroom. At some time after March, Reeves ceased performing on the project altogether. The project was not complete. Beach pays Reeves By check, Beach paid Reeves $4,000.00 on November 11, 1998, to get started; $10,000.00 on November 12, 1998; $2,500.00 on November 20, 1998; $5,000.00 (which included an estimated cost of $600.00 for extras according to Beach) on December 16, 1998; and $2,700.00 (for siding which was an agreed-upon extra) on January 28, 1999, for a total of $24,200.00. Beach had to estimate how much the extra work performed would cost based on the verbal price given by Reeves. The January check was the price for constructing a new one-sided exterior portion, along with the insulation, of the trailer. Beach paid out-of-pocket expenses on repairs and estimates for work which arguably should have been done pursuant to the Proposal and agreed-upon extras. These total approximately $2,560.29. See (Pet. Exh. 5- $990.29; Pet. Exh. 7- $120.00; Pet. Exh. 8- $750.00; and, Pet. Exh. 13- $700.00). Beach also paid for other estimates and repairs as noted herein which were not proven to be directly connected to work performed or not performed by Reeves. See, e.g., Findings of Fact 37-38. Problems identified with the condition of the trailer During the final hearing, Beach identified several photographs, she took over a period of time-April through June, 1999-of her trailer from the inside and outside and identified various problems with the workmanship performed or not performed by Reeves. According to Beach, the photographs show the trailer "after Mr. Reeves finished the project, or Mr. Reeves worked on the house." These problems included an outside electrical switch installed with wires exposed; exposed receptacle outlet; unfinished bathroom trim, which was minor according to Beach; fan cover left hanging on the kitchen ceiling; exposed hole around light fixture in the closet, which Norman could not repair; a fan hanging down in the bathroom, with hole cut too large; water running out from the shower because of an improper drain installation; unsealed shower drain; shower door leak-not caulked; no cutoff valve on the toilet; unsteady commode; no insulation and unprotected plumbing coming up through a hole where the bath tub is located; marble skirt to whirlpool tub destroyed by Edwards' men who had to cut through the marble in order to access the tub; panel to tub which is open and allows air and bugs to enter; tub motor not plugged into a ground fault receptacle; drywall in the bedroom closet, which was new construction, which had to be torn out to repair; wet carpeting which had to be removed; leak in the shower caused by brass plug in plastic line; support posts under the roof not nailed and without hurricane clips (photographs taken in August 1999 after Summerhill and some of the neighbors told her there were no nails on that side of the house holding the roof down); and exposed rafters which allowed squirrels to run down the chimney. Beach asked Greg Mathis, a licensed (City of Tallahassee) plumber, to determine the extent of repairs which were required on her trailer. On or about November 18, 1999, Mathis examined the plumbing in the Beach trailer and gave Beach an estimate for the repairs and charged $135.00 for the estimate, which included his travel time to the Beach trailer in Carrabelle. Mathis charged Beach $670.00 for the repairs including $445.00 for labor and $225.00 for materials. The repairs included applying putty and installing a Delta repair kit on a new faucet in the kitchen; repair of a "fairly new drain" which was leaking in the lavatory; resetting of the toilet which was wobbling and application of caulk; replacement of the whirlpool stopper; repairing the "whole tub waste"; and connection of a drain to a bar sink, which had hot and cold water to it. Mathis also gave Beach an estimate of $185.29 to repair the shower drain and valve. Mathis was unaware who did the plumbing he saw. Brian Will has a State certified building license. Beach asked him to inspect her trailer and give her an estimate of the costs for repair. Will performed a site visit to Beach's trailer on November 22, 1999, and charged Beach $175.00, after a $175.00 Christmas discount, for the inspection and written report dated December 16, 1999. After inspecting the trailer, Will identified problems with the trailer, including a recommendation that Beach secure an engineering report on the foundation, roof framing and uplift connections; installation of a "properly ducted and vented (range termination kit) range hood" in the kitchen; insulate ceiling; improvement to the fireplace clearance; increase vent attic space; and other items. The fireplace issue and "wind loading connection" could be life safety issues. The estimated cost was $9,375.00, although Will stated he is "seldom the low bid guy." Will did not review the Proposal nor the plans and specifications. Will did not know what Reeves and his workmen did or did not do on the Beach trailer. He made no assumptions as to who did any of the work on the trailer. Beach told him that someone added some additional hurricane clips and installed a gable vent or fan. She did not comment to him whether Reeves finished the job. Will identified portions of the trailer that did not appear to him to be finished and that did not meet the building code. Robert J. Pietras, while not a licensed contractor, is a self-employed laborer and has experience in construction, "everything from footers on up to trim carpentry." In or around September 1999, Beach asked him to inspect the trailer and determine what was necessary to make the trailer stronger for hurricane resistance. He found eleven (11) hurricane clips missing and a support post holding up a carrying beam that was not nailed. Some hurricane clips had been placed and set right on the rafters, but the job was incomplete. There were no uplift straps on any of the exterior beams. However, he felt he needed to remove the paneling on the back porch to add the clips from the inside. Pietras could not say whether there were hurricane clips on the outside soffitt. He made the changes. Pietras was also told, by John Summerhill, there was insufficient ventilation in the attic or roof-over, so he added a commercial louver and also framed up to add a fan to draw excess heat. Pietras agreed that if the new enclosed roof-over, constructed by Reeves, had not been enclosed, there would not have been any ventilation problem. He was paid $30.00 for adding the hurricane clips and the tie-down straps. He was not paid approximately $90.00 for work done. Any additional work he recommended was put on hold. Summerhill has air conditioning and electrical licenses and has been in business in Franklin County since 1991. Beach asked him to inspect her trailer and identify electrical problems in or around September 1999. Summerhill did not see the Beach/Reeves Proposal and was unaware of the scope of Reeves' work, including what Reeves did or did not do regarding any electrical problems perceived by Summerhill. However, Beach told him that Reeves did all of the electrical and plumbing. He noticed the absence of hurricane clips on the outside and that a four-by-four post on the south corner did not have nails in the top. He charged Beach $150.00 to install an exhaust in the attic for ventilation which Beach paid. Summerhill also noticed other problems with, for example, waterproof covers needed for the receptacle and switch on the porch, need for ground fault receptacles, and other items. He quoted $600.00 for labor and materials to make these repairs and replace needed items. Summary of work left undone and repairs needed The Department proved by clear and convincing evidence that Beach and Reeves agreed to the terms of the Proposal and several extras; that Beach paid Reeves $24,200.00, which exceeded the amount originally quoted in the Proposal, i.e., $20,900.00, and included payment for extras, including $2,700.00 for siding and $600.00/$5,000.00 for other extras; that the workmanship performed by Reeves, and others on his behalf, was incomplete and in some cases poorly done which required repairs by others; that Beach paid for repairs; that Reeves left the project with work outstanding; that Reeves, and or his workmen, performed electrical and plumbing services while not being licensed; and that Reeves did not refer to the Construction Industry Recovery Fund in the written Proposal. The Department also proved by clear and convincing evidence that the Beach trailer is in need of substantial repairs and further inspections. See, e.g., Findings of Fact 37-38. However, and in particular, Will, who performed a major inspection of the trailer, did not review the Proposal or the plans and specifications and did not know what Reeves and his workmen did nor did not do on the Beach trailer. Therefore, the Department did not prove by clear and convincing evidence that Reeves was responsible for the repairs suggested by Will. Mitigation Reeves has built several State Housing Initiative Partnership (SHIP) homes for the SHIP program in Franklin County to the satisfaction of the County's SHIP administrator, Ms. Shirley Walker. Ms. Walker was not aware of any complaints with Reeves' work over the past four (4) years. Probable Cause is found by the CILB On September 27, 2000, a two-member panel of the CILB found probable cause against Reeves. There was no finding of "no probable cause" by the CILB regarding the Reeves and Beach matter which is the subject of this proceeding. Reeves' prior disciplinary history Reeves has a prior disciplinary history with the CILB and the Department regarding his license. On October 8, 1992, in Case No. 91-11103, the CILB imposed an administrative fine of $1,700.00. On October 24, 1996, the CILB, in Case No. 95-07490, imposed an administrative fine of $2,000.00, restitution of $28,501.39 based on an unsatisfied civil judgment, $119.53 in costs, and two (2) years of probation. Both cases were resolved without a final evidentiary hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be rendered as follows: Suspending Reeves' licenses to practice contracting for six (6) months, requiring Reeves to pay an administrative fine in the amount of $5,000.00, and requiring Reeves to complete continuing education, with the subjects and hours to be determined by the CILB. Assessing costs of investigation and prosecution, excluding costs associated with an attorney’s time, in the amount of $1,302.91. Requiring Reeves to pay restitution to Beach in the amount of $2,560.29, representing the amounts paid by Beach for estimates and for work performed or ill-performed by Reeves which, on this record, are attributable to Reeves. DONE AND ENTERED this 13th day of June, 2001, in Tallahassee, Leon County, Florida. CHARLES A. STAMPELOS 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 13th day of June, 2001. COPIES FURNISHED: Patrick Creehan, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32308 Danny L. Reeves 267 Carroll Street Eastpoint, Florida 32328 Kathleen O'Dowd, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
