08-001211PL Department Of Business And Professional Regulation, Regulatory Council Of Community Association Managers vs. Robert Dugger Status: Closed Recommended Order on Thursday, January 22, 2009.

Summary: Respondent was convicted of crime relating to the ability to practice; failed to provide access to association records; and failed to maintain all records of association.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

REGULATORY COUNCIL OF COMMUNITY )

ASSOCIATION MANAGERS, )

)

Petitioner, )

)

vs. ) Case No. 08-1211PL

)

ROBERT DUGGER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case

before Larry J. Sartin, an Administrative Law Judge of the

Division of Administrative Hearings, on October 13 and 14, 2008,

in Tallahassee, Florida.

APPEARANCES

For Petitioner: Philip Francis Monte

Charles F. Tunnicliff

Assistants General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

For Respondent: Albert T. Gimbel, Esquire

E. Gary Early, Esquire

Messer, Caparello & Self, P.A.

2618 Centennial Place

Tallahassee, Florida 32308

STATEMENT OF THE ISSUES

The issues in this case are whether the Respondent, Robert

Dugger, committed the violations alleged in an Amended

Administrative Complaint, DPBR Case Number 2002-007094, filed by

the Petitioner Department of Business and Professional

Regulation on April 11, 2006, and, if so, the penalty that

should be imposed.

PRELIMINARY STATEMENT

On April 11, 2006, a six-count Amended Administrative

Complaint was filed with the Department of Business and

Professional Regulation in DPBR Case No. 2002-007094 against

Respondent, alleging that Respondent had committed violations of

Chapter 468, Florida Statutes, and pertinent rules adopted there

under. In particular, Petitioner alleged that Respondent, a

Florida licensed community association manager had violated the

following provisions of Florida law: Section 468.436(1)(a),

Florida Statutes, by violating Section 455.227(1)(c), Florida

Statutes (Count I); Section 468.436(1)(a), Florida Statutes, by

violating Section 455.227(1)(j), Florida Statutes (Count II);

Section 468.436(1)(b)5., Florida Statutes, by violating Florida

Administrative Code Rule 61-20.503(4)(b) (Count III); Section

458.436(1)(b)5., Florida Statutes, by violating Florida

Administrative Code Rule 61-20.503(6)(b) (Count IV); Section

458.436(1)(b)5., Florida Statutes, by violating Florida

Administrative Code Rule 61-20.503(6)(c) (Count V); and Section

458.436(1)(b)5., Florida Statutes, by violating Florida

Administrative Code Rule 61-20.503(6)(d) (Count VI).

On or about May 3, 2006, Respondent filed an Amended

“Petition for Formal Administrative Hearing Pursuant to Sections

120.569 and 120.57(1), Florida Statutes, and Rule 28-106.210,

Florida Administrative Code” requesting a formal hearing to

contest the allegations of fact contained in the Amended

Administrative Complaint.

Respondent's request for hearing was filed with the

Division of Administrative Hearings on March 11, 2008, with a

request that it be assigned to an administrative law judge. The

request was designated DOAH Case number 08-1211PL and was

assigned to the undersigned.

The final hearing of this matter was initially scheduled

for May 28 through 30, 2008, by Notice of Hearing entered

March 24, 2008. The final hearing was subsequently continued,

twice at the request of the parties and once due to Hurricane

Fay. By Order Re-Scheduling Hearing by Video Teleconference

entered September 15, 2008, the final hearing was scheduled for

October 13 and 14, 2008.

On September 22, 2008, the parties filed a Joint Prehearing

Stipulation. In the Joint Prehearing Stipulation, Petitioner

moved that Counts II, III, and V of the Amended Administrative

Complaint be dismissed. That request was granted at the

commencement of the final hearing.

The Joint Prehearing Stipulation also contained certain

facts which the parties had stipulated to the accuracy of. To

the extent relevant, those stipulated facts have been included

in this Recommended Order.

At the final hearing, Petitioner presented the testimony of

Miryam Ruiz, Respondent, and Morris Goodwin, Jr. The testimony

of Ms. Ruiz was taken by video teleconferencing between

Tallahassee and Miami, Florida. All other witnesses appeared in

Tallahassee. Petitioner's Exhibits numbered 1 through 25 were

admitted without objection. Respondent testified in his own

behalf and presented the testimony of Rachel Dugger, Claudette

Brinson, Nathaniel G. Miller, and Morris Goodwin, Jr.

Respondent’s Exhibits numbered 1 through 11 were admitted

without objection. Finally, Joint Exhibits 1 through 4 were

admitted.

A two-volume Transcript of the final hearing was filed with

the Division of Administrative Hearings on October 27, 2008. By

agreement of the parties, proposed recommended orders were to be

filed on or before December 5, 2008. Respondent filed a

Proposed Recommended Order on November 26, 2008. Petitioner

filed a Proposed Recommended Order and an Amended Proposed

Recommended Order on December 5, 2008. Petitioner’s Amended

Proposed Recommended Order and Respondent’s Proposed Recommended

Order have been fully considered in entering this Recommended

Order.

All references to Florida Statutes and the Florida

Administrative Code in this Recommended Order are to the

versions applicable to this matter unless otherwise indicated.

FINDINGS OF FACT

A. The Parties .

1. Petitioner, the Department of Business and Professional

Regulation (hereinafter referred to as the "Department"), is the

state agency charged with regulating the practice of community

association management pursuant to Chapters 455 and 468, Florida

Statutes. (Stipulated Fact).

2. Robert Dugger, is and was at the times material to this

proceeding a licensed Florida Community Association Manager

number CAM 1148. (Stipulated Fact).

3. At the times material to this proceeding, Mr. Dugger’s

address of record was 7401 Beach View Drive, North Bay Village,

Florida 33141.

B. Miramar Gardens .

4. At the times material to this proceeding, Mr. Dugger

was employed by Timberlake Group, Inc. (hereinafter referred to

as “Timberlake”). In his capacity with Timberlake, Mr. Dugger

served as the CAM for 30 homeowners’ associations.

5. In particular, Mr. Dugger served as the CAM for Miramar

Gardens Townhouse Homeowners’ Association, Inc. (hereinafter

referred to as the “Association”). (Stipulated Fact). The

Association is made up of approximately 350 homeowner members.

6. The Association was initially created by the Miramar

Gardens Townhouse Homeowners Association, Inc., Declaration of

Covenants, Conditions and Restrictions adopted on or about

December 16, 1975.

7. By-Laws for the Association were also adopted on

December 16, 1975. Article X of the By-Laws provides the

following homeowners’ rights concerning the books and records of

the Association:

The books, records and papers of the

Association shall at all times, during

reasonable business hours, be subject to

inspection by any Member. The Declaration,

the Articles and these By-Laws shall be

available for inspection by any Member at

the principal office of the Association,

where copies may be purchased at reasonable

cost.

8. Prior to 2001, the Association, along with Vista Verde

Townhome Homeowners Association (hereinafter referred to as

“Vista Verde”), an adjacent community association, had been

placed in receivership and was managed by a civilian board.

These events came about due to the dismal state the two

communities were in. Crime was rampant, there were no street

signs or lights, common areas and alleys were unkempt, there

were abandoned vehicles, and the associations for both areas

were essentially non-existent. Miami-Dade County had taken over

ownership of many homes in the community by foreclosure.

9. Mr. Dugger became involved early with the

reorganization and revitalization of the Association and Vista

Verde. In 1997, Mr. Dugger was appointed by the receiver as the

CAM for the Association and Vista Verde.

10. At the end of 2000, the Association was ready to

govern itself. Toward that end, on or about December 21, 2000,

the Association and Timberlake, entered into a Management

Agreement (hereinafter referred to as the “Management

Agreement”). Pursuant to the Management Agreement, Timberlake

was designated as the “Exclusive Managing Agent” for the

Association commencing January 1, 2001. Among the duties

assumed by Timberlake, are the following:

2) MAINTENANCE OF ASSOCIATION FILES: The

Manager will collect, organize and maintain

in the office of the Manager, all

Association information, including but not

limited to the Articles of Incorporation,

By-Laws, Declaration of, [sic] Covenants,

Conditions and Restrictions, site plans,

owner lists, correspondence, rules and

regulations, blue prints, specifications,

corporate minutes, all maintenance and

service contracts in effect and the

necessary administrative financial

information related to the Association.

8) ASSISTANCE TO THE BOARD OF DIRECTORS:

The Manager will provide administrative

support services to the Board of Directors,

to include notifying Directors of Board

meetings, circulating minutes of the

preceding meeting, as prepared by the

Secretary . . . .

11. Timberlake has continued to provide the services of

Mr. Dugger as CAM since 2001. During his tenure, street signs

and lights have been installed, the common areas have been

cleared, and the community has greatly improved. Proposed

findings of fact 14 through 19 of Mr. Dugger’s Proposed

Recommended Order generally describe Mr. Dugger’s efforts as

CAM, the improvement of the community, and Mr. Dugger’s

reputation as CAM.

C. Count I: Criminal Violations .

12. During 2003, Mr. Dugger served as a city commissioner

for the City of North Bay Village, Florida (hereinafter referred

to as the “Village”).

13. On or about December 12, 2003, Mr. Dugger was charged

with eight criminal violations in an Information issued in case

number F03-33076, in the Circuit Court of the Eleventh Judicial

Circuit in and for Miami-Dade County, Florida. The alleged

violations arose out of Mr. Dugger’s activities as a city

commissioner for the Village.

14. Two of the criminal charges, Counts 2 and 8, are of

pertinence to this matter: (a) Count 2 alleges a violation of

Section 2-11.1(d), Miami-Dade County Code, and Section 125.69,

Florida Statutes; and (b) Count 8 alleges a violation of Section

2-11.1(i), Miami-Dade County Code, and Section 125.69, Florida

Statutes.

15. As to Count 2 of the Information, it was more

specifically alleged, in pertinent part, as follows:

. . . ROBERT A. DUGGER SR., on or about

April 08, 2003, in the County and State

aforesaid, being a member of THE NORTH BAY

VILLAGE COMMISSION, in Miami-Dade County,

did vote on a matter presented to said

COMMISSION, to wit: ITEM 7A, AN ORDINANCE

AMENDING SECTION 152.029 OF THE NORTH BAY

VILLAGE CODE OF ORDINANCES (FIRST READING),

when said defendant would or might, directly

or indirectly, profit or be enhanced by this

action of said COMMISSION on said matter, in

violation of Miami-Dade County Code

s.2.11.1(d) and s. 125.69, Fla. Stat. . . .

16. As to Count 8 of the Information, it was more

specifically alleged, in pertinent part, as follows:

. . . ROBERT A. DUGGER SR., on or about

July 01, 2003, in the County and State

aforesaid, being a MUNICIAL OFFICAL to wit:

MEMBER OF THE NORTH BAY VILLAGE COMMISSION,

in Miami-Dade County, did fail to comply

with the financial disclosure requirements

of Chapter 112 (Part III) of the Florida

Statutes by failing to DISCLOSE ALL

LIABILITIES IN PART E. OF FORM 1 STATEMENT

OF FINANCIAL INTERESTS FOR 2002, filed with

the City Clerk of THE CITY OF NORTH BAY

VILLAGE, in violation of Miami-Dade County

Code s. 2-11.1(i) and s. 125.69, Fla. Stat.

. . .

17. Counts 2 and 8 were based upon the following

allegations of the Complaint/Arrest Affidavit:

Robert A. Dugger was elected Village

Commissioner for the City of North Bay

Village on November 19, 2002. On

September 21, 2002, Mr. Robert Dugger filed

his Statement of Financial Interest for the

calendar year 2001, as required by Miami-

Dade County ordinance. In Part E of the

Statement of Financial Interest (this

section is designated for Liabilities –

major debts-and asks for the name and

address of creditor), Mr. Dugger marked N/A

in this section.

Commissioner Robert Dugger has substantial

indebtedness to Al Coletta that was incurred

when Al Coletta assumed the mortgage on one

of Dugger’s properties and paid off the

mortgage on another. Rachael Dugger

admitted these debts under oath during her

sworn statement. Commissioner Dugger failed

to report these debts on his Statement of

Financial Interest.

Additionally, on March 15, 2001, a Summary

Final Judgement of Foreclosure was ordered

and adjudged on behalf International

Financial Bank, against Tomin Incorporated,

and Robert Dugger and Rachael Dugger

personally, in the amount of $1,154,427.50.

Following the Judgement on March 15, 2001,

title of the property in question was

acquire by International Finance Bank on

Mary [sic] 2, 2001 and sold to a third party

on June 1, 2001. The sale amount of the

property was $750,000. A short fall of

$404,427.50 remained after the sale and is

still unpaid. Commissioner Dugger also

failed to report this debt on his Statement

of Financial Interest for the year 2001.

. . . .

Based on Commissioner Robert Dugger’s

indebtedness to Al Coletta, he had a

Conflict of Interest by voting on matters

involving Al Coletta, that came before the

North Bay Village Commission, each vote is a

separate violation of the Miami-Dade Code,

Section 2-11.1(d), a second [degree]

misdemeanor.

Commissioner Dugger violated the

aforementioned Section 2-11.1(d), of the

Miami-Dade Code on the following occasions:

1. April 8, 2002, Item 7A, Page 7 of

the Regular City Commission Meeting

Minutes:

A zoning amendment concerning property

owned by Al Coletta. Page 14 of the

Regular City Commission Meeting

Minutes, Commissioner Dugger voted –

yes, for approval of the ordinance.

. . . .

. . . . This action is in violation of

Miami-Dade Code, Section 2-11.1(d), a

second-degree misdemeanor . . . .

Additionally, Commissioner Dugger is in

violation of Section 2-11.1(i)(3), Miami-

Dade County Conflict of Interest and Code of

Ethics Ordinance. This Section required

that candidates for County and municipal

office must comply with the filing

requirements, under Chapter 112, Florida

State Statutes. This is a second-degree

misdemeanor. . . .

18. Section 2-11.1(d) of the Miami-Dade County Code,

prohibits, in pertinent part, the following:

Additionally, no person included in the

term defined in subsection (b)(1) shall vote

on or participate in any way in any matter

presented to the Board of County

Commissioners if said person has any of the

following relationships with any of the

persons or entities which would be or might

be directly or indirectly affected by any

action of the Board of County Commissioners:

(i) officer, director, partner, of counsel,

consultant, employee, fiduciary or

beneficiary; or (ii) stockholder,

bondholder, debtor, or creditor, if in any

instance the transaction or matter would

affect the person defined in subsection

(b)(a) in a manner distinct from the manner

in which it would affect the public

generally. . . .

19. Section 2-11.1(i)(3), of the Miami-Dade County Code,

requires that candidates for County and municipal elective

office meet the filing requirements of Chapter 112, Part III,

Florida Statutes, “at the same time that candidate files

qualifying papers.”

20. Section 125.69, Florida Statutes, which provides

procedures for the prosecution of county ordinances, states that

they are to be prosecuted “in the same manner as misdemeanors

are prosecuted.”

21. On July 29, 2005, Mr. Dugger entered a plea of nolo

contendere to Counts 2 and 8 of the Information, in case number

F03-33076, both second-degree misdemeanor violations of Section

2-11.1 of the Miami-Dade County Code, and Section 125.69,

Florida Statutes. (Stipulation of Fact).

22. Mr. Dugger was adjudicated guilty of the violations

alleged in Counts 2 and 8, and was ordered to pay $468.00 in

fines and costs.

23. Mr. Dugger was, therefore, adjudicated guilty of

having voted on a matter in which he had a conflict of interest

because the matter involved an individual to whom he was

indebted; and of having failed to fully disclose liabilities on

financial disclosure forms he was required to file pursuant to

Florida law at the time he qualified to run for public office.

24. Neither of the convictions directly involved Mr.

Dugger’s practice as a CAM. Nor has the Department made such an

argument. Instead, the Department presented expert testimony in

support of its position that at least one of the convictions

relates to Mr. Dugger’s ability to practice as a CAM. That

testimony was convincing.

25. All CAMs are involved in a fiduciary relationship with

the associations they manage. It takes little expert testimony

to support a finding that such a fiduciary relationship requires

trust and integrity. CAMs must be trusted to handle association

money, maintain the records of the association, and to deal on

behalf of the association with potential and existing vendors.

The association must be able to assume that a CAM will fully

disclose any possible conflict the CAM may have with the

association’s vendors.

26. Mr. Dugger is responsible for billing, writing checks,

paying insurance premiums, and maintaining a payment book for

the Association. Paragraph 10 of the Management Agreement

specifically provides that Timberlake “shall provide financial

management services to the Association . . . .” Paragraph

D(11)(a) authorizes Timberlake to “solicit and analyze bids for

necessary insurance coverage.” Mr. Dugger has similar

responsibilities with Vista Verde. Clearly, the Association

must be able to trust that Mr. Dugger will carry out all these

duties without having any conflict of interest. The Association

must be able to assume that Mr. Dugger is acting in its best

interest and not his own.

27. In his defense as to the voting of interest conflict

charge, Mr. Dugger, prior to the pertinent vote, made disclosure

of his relationship with Mr. Coletta, the owner of the property

which was the subject of the vote, to the attorney for the City

of the Village. The Department failed to prove that Mr. Dugger

did not make full disclosure. Mr. Dugger was advised that no

conflict existed. Mr. Dugger cast his vote after receiving this

advice.

28. Subsequent to the vote, Mr. Dugger sought an opinion

from the Miami-Dade County Commission on Ethics & Public Trust

like the city attorney, opined in writing that no conflict of

interest existed.

29. Mr. Dugger entered his plea on the two charges in

order to avoid the cost of litigation. The evidence, however,

failed to prove why prosecutors agreed to accept a plea on only

two of the eight counts.

D. Count IV: Alleged Denial of Access to the Records of

the Association .

30. During 2003, Miryam Ruiz lived in Miramar Gardens

Township and was a member of the Association. While she had

been in arrears for 2001 and 2002, presumably in her association

dues, she became current when she paid all outstanding dues in

March 2003.

31. On March 14, 2003, during normal business hours,

Ms. Ruiz went to the office of Timberlake and requested that she

be allowed to inspect certain records of the Association. She

made her request verbally and in writing, leaving Petitioner’s

Exhibit 13 with a Timberlake employee, apparently the

receptionist, which listed the documents she wanted to inspect.

She was told by the receptionist that she could not see the

documents until she had made an appointment to do so.

32. By letter dated Thursday, March 27, 2003, Ms. Ruiz was

informed by Mr. Dugger’s wife, Rachel, that Ms. Ruiz could

review the documents. She was also told that, “[i]f you would

like, call us to make an appointment at your convenience.”

33. On the morning of Monday, March 31, 2003, not having

received Ms. Dugger’s March 27th letter, Ms. Ruiz sent a letter

by facsimile to Timberlake stating that she would be at the

office at 11:00 a.m. that morning to “pick up” the documents.

34. When Ms. Ruiz arrived at the Timberlake office at

11:00 a.m. she was again told that she could not review the

documents because she had no appointment. Ms. Ruiz left the

office. Later that day, Ms. Ruiz sent a second facsimile letter

addressed to Ms. Dugger. Ms. Ruiz ended the letter by informing

Ms. Dugger that she would be at the office the next day,

April 1, 2003, “for the inspection and copying of records at

9:30 a.m.”

35. On April 1, 2003, Ms. Ruiz returned to the Timberlake

office and was again told that the records were not available

because no appointment had been made. Ms. Ruiz told the

receptionist that she would return on Friday, April 4, 2003, at

9:30 a.m. to inspect the documents. In a letter to Ms. Dugger

dated April 1, 2003, she stated that she was confirming the date

and time. The evidence failed to prove whether the letter was

received prior to April 4, 2003.

36. When Ms. Ruiz arrived at the Timberlake office on

April 4, 2003, she was again denied access to the documents and

was told by Ms. Dugger that she had no appointment because the

date and time suggested by Ms. Ruiz had not been confirmed by

Timberlake. Ms. Ruiz left the office.

37. The following day, April 5, 2003, Ms. Ruiz sent a

letter by certified mail addressed to Mr. Dugger describing the

events leading up to that moment and asking what it would take

for her to be allowed to inspect the records. Mr. Dugger did

not respond to this letter.

38. In response to Ms. Ruiz’ April 5th letter, a letter

dated April 22, 2003, was sent by Ms. Dugger. That letter

indicated that the records would be available for inspection at

1:00 p.m. on Tuesday, May 6, 2003. The letter, which was

postmarked May 2, 2003, ten days after the date of the letter,

was not received by Ms. Ruiz prior to May 6th.

39. Sometime during the month of May 2003, approximately

two months after first attempting to review the records of the

Association, Ms. Ruiz was finally allowed to inspect the

records.

40. Ms. Ruiz, without doubt, had the right to review the

records of the Association she had requested. Pursuant to the

Management Agreement, Mr. Dugger was required to collect,

organize and maintain the records of the Association. The

Management Agreement also required that Mr. Dugger was to assist

the Board of Directors in their enforcement of the provisions of

the “Association documents and rules and regulations . . . .”

Pursuant to Article X of the By-Laws of the Association, also

quoted, supra , gives Association members the right to inspect

and copy all Association documents

41. The right to inspect association documents is not an

unfettered one. In light of the duty and responsibility of a

CAM to “maintain” records, it is not unreasonable for a CAM to

set reasonable safeguards for a member’s review of those

records. The Department did not produce evidence to refute the

evidence presented by Mr. Dugger concerning the reasonableness

of a CAM insisting on being present during the inspection of

documents.

42. The evidence also failed to prove that, given the fact

that Mr. Dugger is the CAM for as many as 30 associations, he is

not always available at his office to supervise a review of

documents.

43. The procedure followed with regard to reviews of the

Association’s had been announced at an Association meeting.

Members were told that anyone who wished to review records could

contact the Timberlake office and make an appointment so

Mr. Dugger could be present during an inspection, or that a copy

of a document could be obtained upon payment for the document.

44. It is clear that not all of the requests to Timberlake

made by Ms. Ruiz were totally reasonable: (a) her first request

on April 14, 2003, was without any notice; (b) her notice of

March 31, 2003, gave only three hours notice; (c) her request

for review on April 1, 2003, gave only one day notice; and (d)

her request for review on April 4, 2003, gave only 3 days

notice.

45. While Ms. Ruiz eventually was allowed to review the

documents, it took approximately two months after her initial

request had been made. It is also clear that, although she did

not always give reasonable notice for appointments she

announced, Mr. Dugger (and his employees) could and should have

done more to remedy the situation. Mr. Dugger first became

aware of the request on March 14, 2003. It took 13 days to

respond to that request. When Ms. Ruiz mailed a certified

letter to Mr. Dugger dated April 5, 2003, it was not until

May 2, almost a month later that a letter in response to that

letter was post-marked.

46. Based upon the foregoing, while neither Ms. Ruiz nor

Mr. Dugger did much to ameliorate the situation, for at least

part of the two months it took Ms. Ruiz to obtain access to the

records of the Association, Mr. Dugger “denied” Ms. Ruiz access

to the records of the Association.

E. Count VI: Alleged Failure to Maintain Association

Records .

47. Pursuant to the Management Agreement entered into by

Mr. Dugger with Miramar Gardens, at paragraph D(2), quoted,

supra , Mr. Dugger agreed to collect, organize, and maintain all

Association documents in the offices of Timberlake.

48. Beginning in 2001, the minutes of meetings of the

Association (held jointly with the meeting of Vista Verde) were

usually taken by Claudette Brinson, president of the

Association. On occasions, they were taken by others.

49. Minutes taken by Ms. Brinson were written by hand and,

after the meeting, were taken home with her. On some occasions,

Ms. Brinson would ensure that her hand-written minutes were

typed at various locations, including Mr. Dugger’s office. When

typed at Mr. Dugger’s office, a copy was retained by Mr. Dugger

and maintained with the records of the Association.

50. Ms. Brinson’s testimony at hearing as to whether

Mr. Dugger was given a copy of all minutes was in conflict. She

initially testified that she had provided him with a copy of all

minutes. When recalled by Mr. Dugger, she testified that on

some occasions, when she did not have the minutes typed at

Mr. Dugger’s office, while maintaining a copy at her home, she

did not always provide him with a copy. While the latter

testimony was more convincing and has been credited, the bottom

line is that Mr. Dugger did not maintain a copy of the minutes

from all meetings of the Association.

51. At hearing, Mr. Dugger admitted that when he was

served an Investigative Subpoena Duces Tecum issued by the

Department on or about August 30, 2004, he realized that he did

not have all the records the subpoena sought. In particular,

Mr. Dugger did not have all of the documents requested in item

number 5 of the subpoena: “[t]he minutes of all meetings of the

board of directors and of the members of Miramar Gardens

Townhouse Homeowners Association, Inc.” Mr. Dugger, therefore,

contacted Ms. Brinson and asked her if she could provide a copy

of the minutes of Association meetings that he did not have.

She was not able to do so within the time Mr. Dugger had to

respond to the subpoena.

52. In a letter to the Department dated September 17,

2004, Mr. Dugger indicted the following with regard to the

minutes requested in item number 5 of the subpoena: “The

Minutes in our possession. Original minute meetings are in the

hands of the Receiver, which were retained for his records.

Some additional minutes are in the hands of Board members, which

we will attempt to locate.”

53. During calendar year 2002, minutes had been kept for

meetings held during February, March, April, May, June, July,

October, and December. During calendar year 2003, minutes had

been kept for meetings held during January, February, March,

May, June, July, August, September, October, and November.

Finally, during calendar year 2004, minutes were kept for

meetings held in January, February, March, April, July, August

and September. Mr. Dugger at the time of responding to the

Department’s subpoena did not have minutes for all of these

meetings. For example, for 2002 he only had minutes for the

meetings held in February, March, and June, and for 2003, he

only had minutes for the meetings held in January and December.

54. While Ms. Brinson adequately explained why she was not

always able to provide a copy of meeting minutes to Mr. Dugger,

Mr. Dugger did not provide an adequate explanation as to why he

had not made sure that he obtained a copy of all minutes so that

he could fulfill his obligation under the Management Agreement.

55. No evidence was presented to suggest that Mr. Dugger’s

failure to maintain all minutes was the result of bad faith or

any intent on the part of Mr. Dugger to circumvent the rules of

the Department or the requirements of the Management Agreement.

F. Prior Discipline Against Mr. Dugger’s CAM License .

56. Mr. Dugger’s CAM license was disciplined in DBPR Case

Number 00-02226, pursuant to a Stipulation entered into by the

Department and Mr. Dugger which was accepted by Final Order

entered on April 9, 2001.

57. The Stipulation provides that Mr. Dugger “neither

admits or denies the . . . facts alleged in the Administrative

Complaint . . . .”

CONCLUSIONS OF LAW

A. Jurisdiction .

58. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to Sections 120.569 and 120.57(1),

Florida Statutes (2008).

B. The Burden and Standard of Proof .

59. In the Amended Administrative Complaint, the

Department seeks to impose penalties against Mr. Dugger,

including suspension or revocation of his license and/or the

imposition of an administrative fine. The Department,

therefore, has the burden of proving the allegations of the

Amended Administrative Complaint by clear and convincing

evidence. Department of Banking and Finance, Division of

Securities and Investor Protection v. Osborne Stern and Co. , 670

So. 2d 932 (Fla. 1996); Ferris v. Turlington , 510 So. 2d 292

(Fla. 1987); and Nair v. Department of Business & Professional

Regulation , 654 So. 2d 205, 207 (Fla. 1st DCA 1995).

60. In Evans Packing Co. v. Department of Agriculture and

Consumer Services , 550 So. 2d 112, 116, n. 5 (Fla. 1st DCA

1989), the court defined "clear and convincing evidence" as

follows:

[C]lear and convincing evidence requires

that the evidence must be found to be

credible; the facts to which the witnesses

testify must be distinctly remembered; the

evidence must be precise and explicit and

the witnesses must be lacking in confusion

as to the facts in issue. The evidence must

be of such weight that it produces in the

mind of the trier of fact the firm belief or

conviction, without hesitancy, as to the

truth of the allegations sought to be

established. Slomowitz v. Walker , 429 So.

2d 797, 800 (Fla. 4th DCA 1983).

C. The Charges Against Mr. Dugger .

61. The remaining charges in this matter involve alleged

violations of Sections 468.436(1)(a), and 468.436(1)(b)5.,

Florida Statutes.

62. Section 468.436(1)(a), Florida Statutes, provides that

disciplinary action may be taken against the license of a CAM if

it is found that the CAM has violated any provision of Section

455.227(1), Florida Statutes. In Count I of the Amended

Administrative Complaint, it is alleged that Mr. Dugger violated

Section 468.436(1)(a), Florida Statutes, by violating Section

455.227(1)(c), Florida Statutes.

63. Section 468.436(1)(b)5., Florida Statutes, provides

that disciplinary action may be taken against the license of a

CAM if it is found that the CAM is guilty of “[c]omitting acts

of gross misconduct or gross negligence in connection with the

profession.” Florida Administrative Code Rule 61-20.503,

defines “Standards of Professional Conduct” applicable to CAMs

and provides that the violation of any of those standards

constitutes an “act of gross misconduct or gross negligence.”

64. In Count IV of the Amended Administrative Complaint,

it is alleged that Mr. Dugger violated Section 468.436(1)(b)5.,

by having violated Florida Administrative Code Rule 61-

20.503(6)(b). In Count VI of the Amended Administrative

Complaint, it is alleged that Mr. Dugger violated Section

468.436(1)(b)5., by having violated Florida Administrative Code

Rule 61-20.503(6)(d).

65. Being penal in nature, Section 468.436, Florida

Statutes, “must be construed strictly, in favor of the one

against whom the penalty would be imposed.” Munch v. Department

of Professional Regulation, Div. of Real Estate , 592 So. 2d

1136, 1143 (Fla. 1st DCA 1992).

D. Count I; Violation of Section 468.436(1)(a), Florida

Statutes, by violating Section 455.227(1)(c), Florida Statutes .

66. Section 455.227(1)(c), Florida Statutes, provides the

following:

(1) The following acts shall constitute

grounds for which the disciplinary actions

specified in subsection (2) may be taken:

. . . .

(c) Being convicted or found guilty of,

or entering a plea of nolo contendere to,

regardless of adjudication, a crime in any

jurisdiction which relates to the practice

of, or the ability to practice, a licensee's

profession.

67. The Department has alleged that Mr. Dugger has been

“convicted or found guilty of, or entering a plea of nolo

contendere to, regardless of adjudication, a crime in any

jurisdiction which relates to the practice of, or the ability to

practice, a licensee's profession” by having been adjudicated

guilty of Counts 2 and 8 of the Information.

68. Obviously, neither of the convictions relate to, or

arose out of, Mr. Dugger’s practice as a CAM. The issue,

therefore, is whether the convictions relate to Mr. Dugger’s

ability to practice as a CAM. The testimony in support of the

Department’s position was convincing as to the relation of

Mr. Dugger’s adjudication of guilt as to Count 2 and its

relation to his ability to practice as a CAM.

69. Mr. Dugger’s integrity must be above reproach in order

for him to effectively carry out his fiduciary and contractual

responsibilities to the Association and the other 29

associations he represents. The adjudication of guilt as to

Count 2 of the Information raises questions about Mr. Dugger’s

ability to do so.

70. Mr. Dugger’s efforts to ensure that there was no

voting conflict of interest may, when viewed alone, justify a

finding that his conviction of Count 2 of the Information does

not constitute a breach of trust and his fiduciary duty to the

Association and, therefore, does not relate to his ability to

practice his profession. It must be recalled, however, that

Mr. Dugger was charged with more than the one count for which he

was ultimately convicted. It must also be remembered that the

statute turns, not on whether an individual is actually guilty

of an offense, but simply on whether there a CAM was convicted

or found guilty of, or entered a plea of nolo contendere to the

crime. Clearly there was such a conviction in this case.

Mr. Dugger’s efforts do not, therefore, support a finding that

the Department has not met its burden of proof. His efforts,

however, clearly mitigate against any harsh penalty being

imposed on Mr. Dugger for this violation.

71. As to the adjudication of guilt on Count 8 of the

Information, little in the way of evidence was presented to

support the Department’s position that the offense involves

Mr. Dugger’s ability to practice as a CAM. Nor has the

Department explained in its post-hearing submittal how Count 8

relates to his ability to practice as a CAM.

72. Based upon the foregoing, it is found that the

Department has proved clearly and convincingly that Mr. Dugger

violated Section 468.436(1)(a), Florida Statutes, by having

violated Section 455.227(1)(c), Florida Statutes, due to his

adjudication of guilt as to Count 2 of the Information. The

Department failed to do so, however, as to his conviction of

Count 8.

E. Count IV; Violation of Section 468.436(1)(b)5., Florida

Statutes, by violating Florida Administrative Code Rule 61-

20.503(6)(b) .

73. Florida Administrative Code Rule 61-20.503(6)(b)

provides the following standard of professional conduct with

regards to “records”:

A licensee or registrant shall not deny

access to association records, for the

purpose of inspecting or photocopying the

same, to a person entitled to such by law,

to the extent and under the procedures set

forth in the applicable law.

74. Clearly, Ms. Ruiz was denied access to documents of

the Association which she was entitled to inspect, at least for

close to two weeks. It is also clear, however, that not all of

the requests made by Ms. Ruiz were totally reasonable.

Ultimately, despite the fact that Ms. Ruiz did not always give

reasonable notice for appearances she made at the offices of

Timberlake, Mr. Dugger could and should have done more to remedy

the situation. Mr. Dugger first became aware of the request on

March 14, 2003. It took 13 days to respond to that request.

When Ms. Ruiz mailed a certified letter to Mr. Dugger dated

April 5, 2003, it took until May 2, almost a month later, for

Timberlake to respond to that letter.

75. Based upon the foregoing, while neither Ms. Ruiz nor

Mr. Dugger did much to ameliorate the situation, for at least

part of the two months it took Ms. Ruiz to obtain access to the

It is, therefore, concluded that the Department proved clearly

and convincingly that Mr. Dugger violated Section

458.436(1)(b)5., Florida Statutes, by violating Florida

Administrative Code Rule 61-20.503(6)(b) as alleged in Count IV.

F. Count VI; Section 458.436(1)(b)5., Florida Statutes, by

violating Florida Administrative Code Rule 61-20.503(6)(d).

76. Florida Administrative Code Rule 61-20.503(6)(d).

provides the following standard of professional conduct with

regards to “records”:

A licensee or registrant shall not, to the

extent charged with the responsibility of

maintaining records, fail to maintain his or

its records, and the records of any

applicable community association, in

accordance with the laws and documents

requiring or governing the records.

77. Pursuant to the Management Agreement, Mr. Dugger was

unequivocally charged with the responsibility to “collect,

organize and maintain in [Mr. Dugger’s office] all Association

information, including but not limited to . . . corporate

minutes . . . .”

78. The evidence proved clearly and convincingly that

Mr. Dugger failed to “collect, organize, and maintain” minutes

of meetings of the Association consistent with his

responsibility under the Management Agreement.

79. Based upon the foregoing, the Department proved

clearly and convincingly that Mr. Dugger violated Section

468.436(1)(b)5., Florida Statutes, by having violated Florida

Administrative Code Rule 61-20.503(6)(d)., as alleged in

Count VI of the Amended Administrative Complaint. Mr. Dugger’s

argument that he did not commit this violation because the

Association failed to provide him with a copy of the minutes

ignores the fact that his responsibility under the Management

Agreement also included the duty to “collect” those minutes.

G. The Appropriate Penalty .

80. The only issue remaining for consideration is the

appropriate disciplinary action which should be taken by the

Department against Mr. Dugger for the violations that have been

proved. To resolve this issue it is necessary to consult the

"disciplinary guidelines" of Florida Administrative Code Rule

61-20.010. Those guidelines effectively place restrictions and

limitations on the exercise of the Department’s disciplinary

authority in this case. See Parrot Heads, Inc. v. Department of

Business and Professional Regulation , 741 So. 2d 1231, 1233

(Fla. 5th DCA 1999)("An administrative agency is bound by its

own rules . . . creat[ing] guidelines for disciplinary

penalties."); and § 455.2273(5), Fla. Stat.

81. The Department has proved that Mr. Dugger violated

Section 468.436(1)(a), Florida Statutes, by violating Section

455.227(1)(c), Florida Statutes as alleged, in part, in Count I

of the Amended Administrative Complaint. The penalty guideline

for this violation ranges from a suspension of one year, a

$1,000.00 fine, and costs, to revocation, a $5,000.00 fine, and

costs.

82. The Department also proved that Mr. Dugger committed

two violations of Section 468.436(1)(b)5., Florida Statutes.

These are Mr. Dugger’s second and third violations of this

provision. The penalty guideline for a single violation of this

statutory provision ranges from a $2,500.00 fine and costs, to

revocation, a $5,000.00 fine, and costs.

83. In addition to considering the adopted penalty ranges,

Florida Administrative Code Rule 61-20.010(2), provides for a

consideration of certain aggravating and mitigating

circumstances:

(a) Danger to the public;

(b) Physical or financial harm resulting

from the violation;

(c) Prior violations committed by the

subject;

(d) Length of time the registrant or

licensee has practiced;

(e) Deterrent effect of the penalty;

(f) Correction or attempted correction of

the violation;

(g) Effect on the registrant’s or

licensee’s livelihood;

(h) Any efforts toward rehabilitation;

(i) Any other aggravating or mitigating

factor which is directly relevant under the

circumstances.

84. The Department has recognized in its post-hearing

submittal, the contribution that Mr. Dugger made to the

Association during troubling times and his relationship with the

leadership of the Association and Vista Verde.

85. As an aggravating factor, the Department has argued

that Ms. Ruiz was “needlessly put to undue aggravation and

frustration for simply attempting to review the Association

records of her community.” While this suggestion has some

merit, this aggravating circumstance is mitigated by Ms. Ruiz’

own actions, which were not always reasonable.

86. As to Count I of the Amended Administrative Complaint,

an additional mitigating factor not considered by the Department

is the effort that Mr. Dugger made to avoid committing the

violation for which he as ultimately adjudicated guilty.

87. Finally, as to Count VI of the Amended Administrative

Complaint, while Mr. Dugger failed to maintain records he was

suppose to have been collecting, those minutes had been

prepared, were maintained by the President of the Association

and were ultimately available.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Business and

Professional Regulation enter a final order finding that

Mr. Dugger committed the violations described in this

Recommended Order and imposing the following penalties:

1. A stayed suspension of his license for six months, with

the stay being lifted should Mr. Dugger be found to have

committed any additional violation with regard to his CAM

license within two years of the issuance of the final order in

this case;

2. An administrative fine in the amount of $1,500.00;

3. Attendance at continuing education classes in records

maintenance in an amount to be determined by the Department; and

4. Payment of the costs of this matter.

DONE AND ENTERED this 22nd day of January, 2009, in

Tallahassee, Leon County, Florida.

___________________________________

LARRY J. SARTIN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 22nd day of January, 2009.

COPIES FURNISHED :

Charles Tunnicliff, Esquire

Department of Business &

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

Philip F. Monte, Esquire

Department of Business &

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399-2202

E. Gary Early, Esquire

Messer, Caparello & Self, P.A.

2618 Centennial Place

Tallahassee, Florida 32308

Ned Luczynski, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Anthony B. Spivey, Executive Director

Regulatory Council of Community

Association of Managers

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions

to this recommended order should be filed with the agency that

will issue the final order in this case.