03-003208 Department Of Business And Professional Regulation, Division Of Florida Land Sales, Condominiums, And Mobile Homes vs. Clarcona Resort Condominium Association, Inc.
 Status: Closed
Recommended Order on Monday, February 16, 2004.


View Dockets  
Summary: The minutes of a meeting are "records" and must be transcribed to permit access. Recommend that failure to provide access to records warrants a fine of $7,500.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8DEPARTMENT OF BUSINESS AND )

13PROFESSIONAL REGULATION, )

16DIVISION OF FLORIDA LAND SALES, )

22CONDOMINIUMS, AND MOBILE HOMES, )

27)

28Petitioner, )

30)

31vs. ) Case Nos. 03 - 3208

38) 03 - 3209

42CLARCONA RESORT CONDOMINIUM )

46ASSOCIATION, INC., )

49)

50Respondent. )

52)

53RECOMMENDED ORDER

55On December 19, 2003, an administrative hearing in these

64consolidated cases was held in Orlando, Florida, before

72William F. Qu attlebaum, Administrative Law Judge, Division of

81Administrative Hearings.

83APPEARANCES

84For Petitioner: Joseph S. Garwood, Esquire

90Department of Business and

94Professional Regulation

96The Augusta Bui lding, Suite 100

1028685 Northwest 53rd Terrace

106Miami, Florida 33166

109For Respondent: Robert L. Taylor, Esquire

115Taylor & Carls, P.A.

119850 Concourse Parkway, South

123Suit e 105

126Maitland, Florida 32751

129STATEMENT OF THE ISSUES

133The issues in the case are whether the allegations set

143forth in two separate Notices to Show Cause are correct, and, if

155so, what penalty, if any, should be imposed.

163PRELIMINARY STAT EMENT

166By Notice to Show Cause dated April 1, 2003 (DOAH Case No.

17803 - 3209, DBPR Case No. 2003040435), the Department of Business

189and Professional Regulation, Division of Florida Land Sales,

197Condominiums, and Mobile Homes (Petitioner), alleges that

204Clarcona Resort Condominium Association, Inc. (Respondent or

211Association), failed to provide a unit owner with timely access

221to requested association records. The Notice alleges that

229pursuant to Subsection 718.111(12)(b), Florida Statutes (2003),

236association recor ds are to be made available within five working

247days after receipt of a written request. The Notice alleges

257that the Respondent received unit owner Mike Sims' request on

267February 13, 2002, and that the records were not made available

278to Mr. Sims' represen tative, Curtis Faulk, until February 23,

2882002, eight working days after the request. The Notice also

298alleges that the Respondent further violated Subsections

305718.111(12)(b) and (c), Florida Statutes (2003), by failing

313during the February 23 meeting to pro vide Mr. Faulk with access

325to certain "accounts receivable" records or to a "reserve fund

335study."

336By Notice to Show Cause dated July 16, 2003 (DOAH Case No.

34803 - 3208, DBPR Docket No. 2003056262), the Petitioner alleges

358that the Respondent violated Subsecti ons 718.111(12)(b) and (c),

367Florida Statutes (2003), by failing to provide access to the

377minutes of the Association's annual meeting to unit owner Ansel

387Wood when Mr. Wood arrived, pursuant to a prior written request,

398to review records on February 26, 2003 . The Notice further

409alleges that Mr. Wood renewed his request on March 4, 2003, and

421that the access to the requested records was never provided to

432Mr. Wood.

434By Petitions for Hearing, the Respondent challenged the

442allegations of the Notices to Show Caus e. The Petitions were

453forwarded on September 8, 2003, to the Division of

462Administrative Hearings, which consolidated the cases and

469scheduled the matter for a November 14, 2003, hearing. The

479hearing was continued at the joint request of the parties and

490re scheduled for December 19, 2003.

496At the hearing, the Petitioner presented the testimony of

505three witnesses, and had Exhibits numbered 1 and 2 admitted into

516evidence. The Respondent presented the testimony of three

524witnesses, and had Exhibits numbered 1 through 6 admitted into

534evidence. Subsequent to the hearing, the Petitioner filed the

543deposition testimony of a fourth witness.

549No transcript of the hearing was filed. By stipulation of

559the parties, the Proposed Recommended Orders were filed prior to

569January 25, 2004.

572FINDINGS OF FACT

5751. The Respondent is the association governing the

583Clarcona Condominium in Apopka, Florida. The Clarcona

590Condominium is comprised of a total of 946 units.

5992. The Respondent has an office located on the Clarcona

609pro perty where available records of the association are located.

619Notice to Show Cause dated April 1, 2003

627(DOAH Case No 03 - 3209, DBPR Docket No. 2003040435)

6373. By letter hand delivered to the Respondent's office on

647February 13, 2002, Mike Sims, a Clarcona unit owner, asked to

658review the Respondent's financial records, including accounts

665receivable and a "reserve study."

6704. Mr. Sims previously requested information and records

678from the association, and apparently received the information on

687a timely basi s.

6915. Subsequent to the February 13 request, Mr. Sims

700designated another resident, Curtis Faulk, to represent him in

709his records request.

7126. The Association manager made an appointment with

720Mr. Faulk for February 23, 2002, to review the requested

730records. During the appointment, Mr. Faulk reviewed some of the

740requested information.

7427. As of the February 13 request and, apparently,

751continuing through at least February 23, the Respondent's

759accounts receivable records were being converted from one t ype

769of software system to another. There was concern by the

779Association manager that the Association's accounts receivable

786records were not accurate. The only reserve study apparently

795available was a "draft" that had been prepared for review by an

807accoun tant for the Association manager.

8138. Because the Respondent was concerned about the accuracy

822of the accounts receivable records and the draft reserve study,

832the Respondent did not provide the accounts receivable or the

842draft reserve study for Mr. Faulk' s review.

8509. The evidence establishes that the requested accounts

858receivable and reserve study information were not provided

866within five working days of the Respondent's receipt of Mr.

876Sims' request.

878Notice to Show Cause dated July 16, 2003

886(DOAH Case No 03 - 3208, DBPR Docket No. 2003056262)

89610. By letter received on February 19, 2003, Clarcona unit

906owner Ansel Wood sought to review certain association records

915including the "unapproved minutes of the most recent meeting" of

925the Association membership. Mr . Wood and the Association

934manager set an appointment for February 26, 2003, to review the

945requested records.

94711. At the appointed time, Mr. Wood received access to

957some of the requested records, but not to the "unapproved

967minutes of the most recent meeti ng." At the time of the

979review by Mr. Wood, the meeting minutes had not been typed.

99012. The meeting referenced in Mr. Wood's letter of request

1000occurred in January 2003.

100413. The evidence establishes that the requested minutes of

1013the January 2003 meeti ng were not provided within five working

1024days of the Respondent's receipt of Mr. Wood's request.

103314. Mr. Wood sold his unit sometime in May 2003.

104315. The minutes of the meeting were not typed until

1053June 4, 2003. Mr. Wood did not receive access to the meeting

1065minutes prior to the sale of his unit.

1073CONCLUSIONS OF LAW

107616. The Division of Administrative Hearings has

1083jurisdiction over the parties to and subject matter of this

1093proceeding. § 120.57(1), Fla. Stat. (2003).

109917. The Petitioner has the burden of proving the

1108allegations in the Notices to Show Cause by a preponderance of

1119the evidence. Florida Department of Transportation v. J.W.C.

1127Company, Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981). In this

1139case, the burden has been met.

114518. In relevant part, S ection 718.111, Florida Statutes

1154(2003), provides as follows:

1158(12) OFFICIAL RECORDS. --

1162(a) From the inception of the association,

1169the association shall maintain each of the

1176following items, when applicable, which

1181shall constitute the official records of the

1188association:

11891. A copy of the plans, permits,

1196warranties, and other items provided by the

1203developer pursuant to s. 718.301 (4).

12092. A photocopy of the recorded declaration

1216of condominium of each condominium operated

1222by the association and of each am endment to

1231each declaration.

12333. A photocopy of the recorded bylaws of

1241the association and of each amendment to the

1249bylaws.

12504. A certified copy of the articles of

1258incorporation of the association, or other

1264documents creating the association, and of

1270each amendment thereto.

12735. A copy of the current rules of the

1282association.

12836. A book or books which contain the

1291minutes of all meetings of the association,

1298of the board of directors, and of unit

1306owners , which minutes shall be retained for

1313a period of not l ess than 7 years.

13227. A current roster of all unit owners and

1331their mailing addresses, unit

1335identifications, voting certifications, and,

1339if known, telephone numbers. The

1344association shall also maintain the

1349electronic mailing addresses and the numbers

1355des ignated by unit owners for receiving

1362notice sent by electronic transmission of

1368those unit owners consenting to receive

1374notice by electronic transmission. The

1379electronic mailing addresses and numbers

1384provided by unit owners to receive notice by

1392electronic transmission shall be removed

1397from association records when consent to

1403receive notice by electronic transmission is

1409revoked. However, the association is not

1415liable for an erroneous disclosure of the

1422electronic mail address or the number for

1429receiving elec tronic transmission of

1434notices.

14358. All current insurance policies of the

1442association and condominiums operated by the

1448association.

14499. A current copy of any management

1456agreement, lease, or other contract to which

1463the association is a party or under whic h

1472the association or the unit owners have an

1480obligation or responsibility.

148310. Bills of sale or transfer for all

1491property owned by the association.

149611. Accounting records for the association

1502and separate accounting records for each

1508condominium which th e association operates.

1514All accounting records shall be maintained

1520for a period of not less than 7 years. The

1530accounting records shall include, but are

1536not limited to:

1539a. Accurate, itemized, and detailed records

1545of all receipts and expenditures.

1550b. A current account and a monthly,

1557bimonthly, or quarterly statement of the

1563account for each unit designating the name

1570of the unit owner, the due date and amount

1579of each assessment, the amount paid upon the

1587account, and the balance due.

1592c. All audits, revie ws, accounting

1598statements, and financial reports of the

1604association or condominium.

1607d. All contracts for work to be performed.

1615Bids for work to be performed shall also be

1624considered official records and shall be

1630maintained for a period of 1 year.

163712. B allots, sign - in sheets, voting

1645proxies, and all other papers relating to

1652voting by unit owners, which shall be

1659maintained for a period of 1 year from the

1668date of the election, vote, or meeting to

1676which the document relates.

168013. All rental records, when t he

1687association is acting as agent for the

1694rental of condominium units.

169814. A copy of the current question and

1706answer sheet as described by s. 718.504.

171315. All other records of the association

1720not specifically included in the foregoing

1726which are related to the operation of the

1734association.

1735(b) The official records of the association

1742shall be maintained within the state. The

1749records of the association shall be made

1756available to a unit owner within 5 working

1764days after receipt of written request by the

1772board or its designee. This paragraph may

1779be complied with by having a copy of the

1788official records of the association

1793available for inspection or copying on the

1800condominium property or association

1804property. (emphasis supplied)

180719. As to Mr. Sims' reco rds request, the evidence

1817establishes that the Respondent failed to timely provide

1825requested records to Mr. Sims or to Mr. Faulk. The statute

1836clearly provides that such records are to be provided within

1846five working days of the Association's receipt of a written

1856request. The statute provides no exception to this requirement.

186520. The Respondent asserts that the requirement is

1873complied with by the fact that the records were located in the

1885Association's office on the condominium property. The statute

1893req uires that the records be available for inspection within

1903five working days after receipt of the request. The mere

1913presence of the records on condominium property is insufficient

1922to comply with the requirement of timely availability. The

1931evidence establi shes that some of the records were located on

1942the property, but they were not made available to Mr. Sims or

1954Mr. Faulk until after more than five working days had passed.

196521. The evidence further establishes that even after the

1974initial delay in making t he records available, the accounts

1984receivable records were not made available for review at the

1994appointed time. The Respondent's assertion that the records

2002were not accurate and were accordingly not made available, is

2012not persuasive. The Association is r equired to maintain

2021accurate records, and make them available according to the time

2031frames set forth in the statute. As to the "draft" reserve

2042study, once the accountant had completed the study and turned it

2053over to the Association’s management, the study should have been

2063available for review upon request of an owner. There is no

2074credible explanation as to why a study prepared by an accountant

2085employed by the Association would require review by the

2094Association manager before it could be made available to owners.

210422. The evidence also establishes that Mr. Wood was not

2114permitted timely review of the minutes of an association

2123meeting. Mr. Wood requested on February 19, 2003, to review the

2134minutes of a January 2003 meeting. The Respondent asserts that

2144the minutes were unavailable because they were not typed.

215323. The statute provides that the official records of an

2163association include a "book" which contain the "minutes of all

2173meetings of the association." Such a requirement indicates that

2182the minutes o f all association meetings must be typed within a

2194time frame sufficient to permit an association member to request

2204and review the written material according to the time frames set

2215forth in the statute. In other words, if a written request to

2227review the mi nutes is made on the day after an annual meeting,

2240the minutes should be transcribed and available for review

2249within five working days of the request as required by the

2260statute. More than four months passed after Mr. Wood's request

2270before the minutes were placed in a typed form and made

2281available for resident inspection.

228524. Florida Administrative Code Rule 61B - 21.003 sets forth

2295the methodology utilized to determine a penalty appropriate to

2304the facts of this case. Pursuant to Florida Administrative Code

2314Rule 61B - 21.003(7)(a), the violations here are defined as

"2324minor," and the Rule provides that the Petitioner shall impose

2334a penalty of between one dollar and five dollars per unit for

2346each minor violation. The Rule provides that the penalty shall

2356be asse ssed in the middle of the range and adjusted up or down

2370based on the existence of mitigating factors, and that in no

2381event shall a penalty of more than $2,500 be imposed for a

2394single violation. There are no mitigating or aggravating

2402factors sufficient to warrant adjustment of the penalty from the

2412middle of the range, which is three dollars. There are 946

2423units in the Clarcona Condominium, which would result in a

2433penalty of $2838, but for the maximum penalty of $2,500 per

2445single violation. There are thr ee counts set forth in the

2456Notices to Show Cause, resulting in a total penalty of $7,500.

246825. Although the Notices to Show Cause in these cases also

2479cite Subsection 718.111(12)(c), Florida Statutes (2003), as

2486additional grounds for discipline in this case , the cited

2495section does not appear to provide grounds for enforcement by

2505the Petitioner of the requirement that records be made available

2515to the association members on a timely basis, but rather

2525provides a private civil remedy available to individual

2533asso ciation members who are denied timely access to association

2543records.

2544RECOMMENDATION

2545Based on the foregoing Findings of Fact and Conclusions of

2555Law, it is

2558RECOMMENDED that the Department of Business and Professional

2566Regulation, Division of Florida Land S ales, Condominiums, and

2575Mobile Homes, enter a Final Order finding that the Respondent has

2586violated Subsection 718.111(12)(b), Florida Statutes (2003), as

2593set forth herein and assessing a penalty of $7,500.

2603DONE AND ENTERED this 16th day of February, 2004, in

2613Tallahassee, Leon County, Florida.

2617S

2618WILLIAM F. QUATTLEBAUM

2621Administrative Law Judge

2624Division of Administrative Hearings

2628The DeSoto Building

26311230 Apalachee Parkway

2634Tallahassee, Florida 32399 - 3060

2639(850) 488 - 9675 SUN COM 278 - 9675

2648Fax Filing (850) 921 - 6847

2654www.doah.state.fl.us

2655Filed with the Clerk of the

2661Division of Administrative Hearings

2665this 16th day of February, 2004.

2671COPIES FURNISHED :

2674Joseph S. Garwood, Esquire

2678Department of Business and

2682Professional Regulati on

2685The Augusta Building, Suite 100

26908685 Northwest 53rd Terrace

2694Miami, Florida 33166

2697Robert L. Taylor, Esquire

2701Taylor & Carls, P.A.

2705850 Concourse Parkway, South

2709Suite 105

2711Maitland, Florida 32751

2714Nancy Campiglia, General Counsel

2718Department of Business a nd

2723Professional Regulation

2725Northwood Centre

27271940 North Monroe Street

2731Tallahassee, Florida 32399 - 2202

2736Ross Fleetwood, Division Director

2740Division of Florida Land Sales,

2745Condominiums, and Mobile Homes

2749Department of Business and

2753Professional Regulatio n

2756Northwood Centre

27581940 North Monroe Street

2762Tallahassee, Florida 32399 - 0792

2767NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

2773All parties have the right to submit written exceptions within

278315 days from the date of this Recommended Order. Any exceptions

2794to this Rec ommended Order should be filed with the agency that

2806will issue the Final Order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 05/07/2004
Proceedings: Final Order filed.
PDF:
Date: 05/03/2004
Proceedings: Agency Final Order
PDF:
Date: 04/12/2004
Proceedings: Other
PDF:
Date: 04/12/2004
Proceedings: Notice of Filing (filed by Faulk & Sims via facsimile)
PDF:
Date: 03/25/2004
Proceedings: Letter to C. Faulk from Judge Quattlebaum regarding participation in case.
PDF:
Date: 03/25/2004
Proceedings: Notice of Ex-Parte Communication.
PDF:
Date: 03/24/2004
Proceedings: Petitioner`s Response to Exceptions (filed via facsimile).
PDF:
Date: 03/23/2004
Proceedings: Letter to Judge Quattlebaum from C. Faulk requesting status of the case (filed via facsimile).
PDF:
Date: 03/08/2004
Proceedings: Other
PDF:
Date: 03/08/2004
Proceedings: Order on Motion for Clarification (amending Paragraph 17 of the Recommended Order).
PDF:
Date: 03/04/2004
Proceedings: Motion for Clarification and Amendment of the Recommended Order (filed by Petitioner via facsimile).
PDF:
Date: 02/16/2004
Proceedings: Recommended Order
PDF:
Date: 02/16/2004
Proceedings: Recommended Order (hearing held December 19, 2003). CASE CLOSED.
PDF:
Date: 02/16/2004
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 02/02/2004
Proceedings: Letter to R. Taylor from J. Garwood regarding the enclosed letter as exhibits to the deposition filed.
PDF:
Date: 01/23/2004
Proceedings: Letter to Judge Wetherell from C. Faulk regarding the summary of the case (with exhibits) filed.
PDF:
Date: 01/23/2004
Proceedings: (Proposed) Final Judgment (filed by R. Taylor via facsimile).
PDF:
Date: 01/22/2004
Proceedings: Petitioner`s Proposed Recommended Order (filed via facsimile).
PDF:
Date: 01/20/2004
Proceedings: Letter to Judge Wetherell from C. Faulk regarding the summary of the case (filed via facsimile).
PDF:
Date: 01/09/2004
Proceedings: Letter to Judge Quattlebaum from R. Taylor regarding deposition of Mr. Ansel Wood filed.
PDF:
Date: 12/24/2003
Proceedings: Deposition (of Ansel Wood) filed.
Date: 12/19/2003
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 12/18/2003
Proceedings: Notice of Filing Affidavit of Service of Subpoena Ad Testificandum on Paul Bishop (filed by R. Taylor via facsimile).
PDF:
Date: 12/18/2003
Proceedings: Notice of Filing Affidavit of Service of Subpoena Ad Testificandum on Ronald A. Cole (filed by R. Taylor via facsimile).
PDF:
Date: 12/10/2003
Proceedings: (Joint) Pre-Hearing Stipulation (filed via facsimile).
PDF:
Date: 11/25/2003
Proceedings: Notice of Taking Deposition Via Telephone in Lieu of Live Testimony at Hearing (A. Wood) filed via facsimile.
PDF:
Date: 11/24/2003
Proceedings: Notice of Taking Deposition Duces Tecum (2), (M. Snyder and W. Sanborn filed.
PDF:
Date: 11/05/2003
Proceedings: Notice of Hearing (hearing set for December 19, 2003; 9:00 a.m.; Orlando, FL).
PDF:
Date: 11/03/2003
Proceedings: Response to Order Granting Continuance (filed by Respondent via facsimile).
PDF:
Date: 10/27/2003
Proceedings: Order Granting Continuance (parties to advise status by November 5, 2003).
PDF:
Date: 10/27/2003
Proceedings: Joint Motion for Continuance (filed by J. Garwood via facsimile).
PDF:
Date: 10/20/2003
Proceedings: Letter to DOAH from DPBR enclosing J. Garwood`s new address and requesting subpoenas (filed via facsimile).
PDF:
Date: 10/08/2003
Proceedings: Letter to Judge Wetherell from J. Garwood (response to Initial Order) filed.
PDF:
Date: 09/24/2003
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 09/24/2003
Proceedings: Notice of Hearing by Video Teleconference (video hearing set for November 14, 2003; 9:00 a.m.; Orlando and Tallahassee, FL).
PDF:
Date: 09/23/2003
Proceedings: Order of Consolidation. (consolidated cases are: 03-003208, 03-003209)
PDF:
Date: 09/19/2003
Proceedings: Response to Initial Order (filed by Respondent via facsimile).
PDF:
Date: 09/09/2003
Proceedings: Initial Order.
PDF:
Date: 09/08/2003
Proceedings: Notice to Show Cause filed.
PDF:
Date: 09/08/2003
Proceedings: Petition for a DOAH Hearing filed.
PDF:
Date: 09/08/2003
Proceedings: Agency referral filed.

Case Information

Judge:
WILLIAM F. QUATTLEBAUM
Date Filed:
09/08/2003
Date Assignment:
12/11/2003
Last Docket Entry:
05/07/2004
Location:
Orlando, Florida
District:
Middle
Agency:
ADOPTED IN TOTO
 

Counsels

Related Florida Statute(s) (4):