03-003209
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.
Recommended Order on Monday, February 16, 2004.
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 Associations 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.
- Date
- Proceedings
- PDF:
- Date: 03/25/2004
- Proceedings: Letter to C. Faulk from Judge Quattlebaum regarding participation in case.
- PDF:
- Date: 03/23/2004
- Proceedings: Letter to Judge Quattlebaum from C. Faulk advising as to the status of the case (filed via facsimile).
- 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 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: 01/20/2004
- 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.
- 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: 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: Notice of Hearing by Video Teleconference (video hearing set for November 14, 2003; 9:00 a.m.; Orlando and Tallahassee, FL).
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
-
Joseph Garwood, Esquire
Address of Record -
Robert L Taylor, Esquire
Address of Record -
Robert L. Taylor, Esquire
Address of Record