06-004481 Department Of Business And Professional Regulation, Division Of Florida Land Sales, Condominiums, And Mobile Homes vs. Eden Isles Condominium Association, Inc. Status: Closed Recommended Order on Friday, May 11, 2007.

Summary: Petitioner does not have jurisdiction to determine whether Respondent properly assessed unit owners for common expenses based on their proportionate shares as established in the condo declaration because there is controversy over its meaning.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) )

PROFESSIONAL REGULATION, )

DIVISION OF FLORIDA LAND SALES, )

CONDOMINIUMS, AND MOBILE HOMES, )

) Case No. 06-4481

Petitioner, )

)

vs. )

)

EDEN ISLES CONDOMINIUM )

ASSOCIATION, INC., )

)

Respondent. )

RECOMMENDED ORDER

This case came before Administrative Law Judge John G.

Van Laningham for final hearing by video teleconference on

February 1 and 2, 2007, at sites in Tallahassee and Lauderdale

Lakes, Florida.

APPEARANCES

For Petitioner: David J. Tarbert, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399-2202

For Respondent: Leonardo G. Renaud, Esquire

Leonardo G. Renaud, P.A.

8105 Northwest 155 Street

Miami Lakes, Florida 33016

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent condominium

association properly assessed unit owners for common expenses

based on their respective proportionate shares of such expenses

as set forth in the declaration of condominium.

PRELIMINARY STATEMENT

On February 3, 2006, Petitioner Department of Business and

Professional Regulation, Division of Florida Land Sales,

Condominiums, and Mobile Homes, entered a Notice to Show Cause

directing Respondent Eden Isles Condominium Association, Inc.,

to rebut the charge that it had assessed unit owners for common

expenses at rates different than those set forth in the

declaration of condominium, in violation of Section 718.115(2),

Florida Statutes. Respondent, which disputed the allegations,

timely requested a formal hearing.

On November 6, 2006, the case was referred to the Division

of Administrative Hearings ("DOAH"), where it was docketed as

Case No. 06-4481 and assigned to an administrative law judge

("ALJ"). The ALJ soon consolidated this case with DOAH Case

Nos. 06-4482 and 06-4483, finding that the parties and counsel

were the same in all three cases, which also presented similar

issues.

The final hearing respecting the consolidated cases took

place on February 1 and 2, 2007, as scheduled, with all parties

present. Petitioner called two witnesses, its employees Patrick

Flynn and Boyd McAdams, and introduced three composite exhibits,

which were received in evidence. Respondent presented three

witnesses: Louis Claps, a certified public accountant; Suzanna

Rockwell, an employee of Respondent; and Jonathon Marks, the

president of Respondent's Board of Directors. In addition,

Respondent's Exhibits 1 through 7 were admitted.

The two-volume final hearing transcript was filed on

February 28, 2007, making the Proposed Recommended Orders due on

March 30, 2007, pursuant to the schedule established at the

conclusion of the final hearing. At the parties' joint request,

this deadline was later enlarged, to April 20, 2007.

Thereafter, each party timely filed a Proposed Recommended

Order, and these were carefully considered during the

preparation of this Recommended Order.

Although the consolidated cases share a common evidentiary

record, the undersigned has elected to issue a separate

Recommended Order for each one.

Unless otherwise indicated, citations to the Florida

Statutes refer to the 2006 Florida Statutes.

FINDINGS OF FACT

1. Respondent Eden Isles Condominium Association, Inc.

("Association") is the entity responsible for operating the

common elements of the Eden Isles Condominium ("Condominium").

As such, the Association is subject to the regulatory

jurisdiction of Petitioner Division of Florida Land Sales,

Condominiums, and Mobile Homes ("Division").

2. The Condominium was created——and continues to be

governed by——a Declaration of Condominium ("Declaration"), which

has been amended at least once during the Condominium's

existence.

3. The Condominium comprises seven identical buildings.

Each four-story building contains 52 units. Each unit is laid

out according to one of three different floor plans.

4. The Declaration prescribes each unit's proportionate

share (expressed as a percentage, e.g. 2.16%, 2.08%, 1.64%,

etc.) of the common expenses. These percentages are used to

calculate the amounts assessed against each respective unit to

collect the funds needed to pay common expenses. For reasons

not revealed at hearing, the Declaration——at least in its

original form——established a separate and unique schedule of

percentages for each building in the Condominium, with the

result that similarly situated owners (i.e. those whose units

had the same floor plan and comparable locations) did not

necessarily pay the same proportionate share of the common

expenses.

5. Not surprisingly, owners who were compelled to

contribute more toward the common expenses than their similarly

situated neighbors were wont to complain about the seeming

unfairness of this.

6. Some time in 2004 the Association's governing Board of

Directors ("Board") was made aware of an amendment to the

Declaration, which, among other things, had revised the appendix

that specified each unit's proportionate share of the common

expenses. Due to an absence of evidence, the undersigned cannot

determine when this amendment took effect, yet neither its

existence (a copy is in evidence) nor its authenticity is in

doubt. There is, further, no evidence explaining why the Board

had not previously been familiar with the amendment, but——for

whatever reason(s)——it was not.

7. After deliberating over the meaning and import of the

amendment, the Board voted, during an open meeting, to construe

the amendment as providing for the assessment of common expenses

against all units in the Condominium according to the

percentages assigned to the units located in "Building G," which

was the last of the buildings in the Condominium to be

completed. In other words, the Board interpreted the amendment

as requiring that all similarly situated unit owners be assessed

the same amount for common expenses, using only the most recent

proportionate shares.

8. Consequently, starting in 2005, the Association

assessed unit owners for common expenses pursuant to the Board's

interpretation of the amendment. While this course of action

evidently pleased most residents, someone complained to the

Division about the change. The Division investigated. Based on

its own understanding of the amendment, which differs from the

Board's, the Division determined that the Association was not

properly assessing the unit owners; accordingly, it demanded

that the Association remedy the situation.

9. Under pressure from the Division, which was threatening

to impose penalties against the Association for noncompliance

with the Division's directives, and for some other reasons not

relevant here, the Board eventually decided to "revert back" to

the original proportionate shares, beginning in 2006. The Board

continues to believe, however, that its interpretation of the

amendment (as requiring similarly situated owners to be assessed

at the same percentage) is correct.

CONCLUSIONS OF LAW

10. DOAH has personal and subject matter jurisdiction in

this proceeding pursuant to Sections 120.569 and 120.57(1),

Florida Statutes.

11. Upon finding reasonable cause to believe that a

violation of the Condominium Act or any rule promulgated

thereunder has occurred, the Division is authorized to institute

an administrative enforcement proceeding through which various

coercive means of securing compliance may be imposed, including

"a civil penalty [of up to $5,000] against a developer or

association, or its assignee or agent . . . ."

§ 718.501(1)(d)4., Fla. Stat.

12. Because the imposition of a fine is (obviously)

punitive in nature and implicates significant property rights,

the Division has the burden, in an enforcement proceeding

brought for that purpose, of proving the alleged violation by

clear and convincing evidence. Department of Banking and

Finance, Div. of Securities and Investor Protection v. Osborne

Stern & Co. , 670 So. 2d 932, 935 (Fla. 1996).

13. Regarding the standard of proof, in Slomowitz v.

Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983), the Court of

Appeal, Fourth District, canvassed the cases to develop a

"workable definition of clear and convincing evidence" and found

that of necessity such a definition would need to contain "both

qualitative and quantitative standards." The court held that:

clear 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 testimony

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 a firm belief or

conviction, without hesitancy, as to the

truth of the allegations sought to be

established.

Id. The Florida Supreme Court later adopted the Fourth

District's description of the clear and convincing evidence

standard of proof. Inquiry Concerning a Judge No. 93-62 , 645

So. 2d 398, 404 (Fla. 1994). The First District Court of Appeal

also has followed the Slomowitz test, adding the interpretive

comment that "[a]lthough this standard of proof may be met where

the evidence is in conflict, . . . it seems to preclude evidence

that is ambiguous." Westinghouse Elec. Corp., Inc. v. Shuler

Bros., Inc. , 590 So. 2d 986, 988 (Fla. 1st DCA 1991), rev .

denied , 599 So. 2d 1279 (Fla. 1992)(citation omitted).

14. In this case, the Division has alleged that the

Association failed, in 2005, to assess unit owners based on the

proportionate shares set forth in the Declaration, in violation

of Section 718.115(2), Florida Statutes, which provides:

Except as otherwise provided by this

chapter, funds for payment of the common

expenses of a condominium shall be collected

by assessments against the units in that

condominium in the proportions or

percentages provided in that condominium's

declaration. In a residential condominium,

or mixed-use condominium created after

January 1, 1996, each unit's share of the

common expenses of the condominium and

common surplus of the condominium shall be

the same as the unit's appurtenant ownership

interest in the common elements.

15. To prevail, therefore, the Division must clearly prove

that the Association acted in contravention of the Declaration

in collecting common expenses in 2005. As found above, the

Association calculated the assessments according to the Board's

interpretation of the pertinent amendment, which means that the

Association complied with the statute——unless, that is, the

Board's interpretation can be overturned by an administrative

order. For its part, the Division contends that the amendment

unambiguously provides different schedules of proportionate

shares for each building; thus, it asserts that the Association

violated the statute by following the Board's allegedly

incorrect interpretation of the amendment.

16. In this situation, the question of whether the

Association violated Section 718.115(2) depends entirely on the

meaning of the amendment to the Declaration, a legal instrument

about whose interpretation the parties disagree. This

inevitably leads to the question——which the undersigned asked

the parties at hearing——whether the Division is authorized to

enforce its interpretation of the amendment though the

imposition of a monetary penalty against the Association, which

latter understands the amendment to have a different meaning.

Unless this question is answered yes , the Division's case (which

seeks precisely to enforce the Division's interpretation of the

amendment) is doomed.

17. Yet, if this question is to be answered in the

affirmative, it must first be concluded that the Division has

jurisdiction authoritatively to construe a legal instrument (and

hence declare the rights of the parties thereto), even though

such document is neither a statue nor a rule with whose

administration the Division has been charged. If the Division

were without such jurisdiction, then the undersigned would be

compelled to conclude, of course, that the pending charge

against the Association (which requires a finding that the

Association disobeyed the amendment) has not been proved,

because the dispute over the amendment's meaning could not be

decisively resolved in the instant administrative proceeding. i

Being thus potentially dispositive, this threshold matter

concerning the Division's authority to construe legal

instruments will be taken up straightaway.

18. The seminal case on this point is Peck Plaza

Condominium v. Division of Fla. Land Sales and Condos. , 371 So.

2d 152 (Fla. 1st DCA 1979), which happened to be the "first case

. . . to test the Division's enforcement powers respecting

Chapter 718, Condominium Act." Id. at 153. There, the Division

had ordered certain owners individually to pay the cost of

electricity for operating a particular elevator, ruling that,

under the condominium declaration, such cost was not a common

expense to be borne by all owners collectively. Id. at 153.

The aggrieved owners appealed, presenting for review a case in

which the "whole controversy," according to the court, was

"whether the Division [had] the authority to render a valid

interpretation of the articles, bylaws or declaration and

determine the intent of the parties as to who should bear the

cost of operating expenses for the . . . elevator[.]" Id. at

154. The court's answer to this question was, emphatically,

absolutely not .

19. The court began its analysis by criticizing the

hearing officer, who (we are told) had settled the question of

the Division's jurisdiction "to his own satisfaction" based on

the "interesting conclusion" that the Division was authorized to

enforce its interpretation of the ambiguous documents because

the substantially affected parties had not contested the

Division's authority to do so. ii Id. Following that, the court

delivered a short civics lesson:

It is still the law of the State of Florida

that government derives its power by consent

of the governed. Under our state system of

government the consent of the people is

either granted or not granted by their

legislative body.

Id.

20. Turning finally to the merits, the court wrote:

We find no provision in the condominium law

that would grant to the respondent Division

the authority to interpret and then to

enforce its interpretation of the provisions

of a condominium contract that is admittedly

ambiguous. Jurisdiction to interpret such

contracts is, under our system, vested

solely in the judiciary. It is to the

judiciary that the citizenry turns when

their rights under a document are unclear

and they desire an interpretation thereof.

Id. at 153-54 (emphasis added). Lest anyone miss the court's

point about which branch of government is boss when it comes to

construing private pacts, the court added the following

rhetorical exclamation point to its opinion, taking a parting

shot at the Division:

Such authority [to interpret and enforce the

conflicting and ambiguous provisions of a

declaration relating to a condominium] may

not be brought into existence by agency

ambition, insinuation or bureaucratic

osmosis.

Id. 154. iii

21. A case somewhat similar to Peck arrived in the Fourth

District Court of Appeal about five years later. Styled Point

Management, Inc. v. Department of Bus. Regulation , 449 So. 2d

306 (Fla. 4th DCA 1984), this case arose from a final order of

the Division directing a condominium association to stop

collecting greens fees from the golfers who used the

condominium's two golf courses and to start assessing unit

owners their proportionate shares of the costs associated with

the courses, which the Division had found to be "common

expenses" under the condominium documents. Id. at 306.

22. Relying on Peck , the appellant urged that the Division

was without authority to enforce its interpretation of the

condominium documents, which included, among other instruments,

a settlement agreement that had been reached a few years earlier

in compromise of "complex litigation" comprising three separate

lawsuits in the circuit court. Id. at 307. The court agreed

that the Division had gone too far, explaining:

The Division construed and interpreted all

of these documents in reaching its

conclusion in the present administrative

proceeding, and in doing so exceeded its

jurisdiction as announced in [Peck ]. The

rationale of the Peck case is that courts

rather than administrative bodies construe

contracts. A settlement agreement between

parties to litigation is in fact a contract.

Id. (emphasis added). The court believed that the case before

it was "even stronger than the Peck situation" because of the

contractual settlement. Id. Finding that "ambiguities existed

[in the documents] as to the issues in [dispute]," the court

vacated the Division's final order. Id.

23. While the jurisdictional issue might have seemed

fairly settled after Point Management , such was not the case.

Rather, having once staked a claim to exclusive judicial

authority over matters involving contract interpretation, the

Fourth District would later cede some of this jurisdictional

turf to the Division, in RIS Inv. Group v. Department of Bus.

and Professional Regulation , 695 So. 2d 357 (Fla. 4th DCA 1997).

The issue in RIS was whether the developer of a condominium was

required, pursuant to the declaration of condominium, to pay

assessments on "raw land," which term broadly referred to

developer-owned units at any stage of construction before the

issuance of a certificate of occupancy. The Division had

construed the declaration as requiring the developer (RIS) to

pay assessments on raw land and ordered RIS to remit payments

purportedly due for the preceding eight years. Id. 357-58.

24. The court devoted the bulk of its opinion to analyzing

the pertinent provisions of the declaration, which, the court

ultimately found, "could have been more precise" but

nevertheless did not "appear" to have "ever meant" to make the

developer liable for assessments on raw land. Id. at 359. The

court therefore reversed the Division's order. Then the court

added:

We would point out, however, that our

decision to reverse is not based on RIS's

claim that the [Division] did not have

jurisdiction to resolve this issue because

it involves the interpretation of a

contract, which is a judicial function. We

believe the [Division] was acting within its

authority to enforce the Condominium Act.

Id.

25. Although the court must have been familiar with Peck

and Point Management , it made no attempt to distinguish these

seemingly contrary cases or otherwise to explain the legal

reasoning and rationale behind its summary disposition of the

jurisdictional issue. This is unfortunate, because the point is

not self-evident that the Division is empowered to

authoritatively construe instruments——especially in light of

Peck and Point Management ——and hence it would be helpful to know

what was behind the court's conclusion in this regard. iv

26. Interestingly, a couple of years later, the Fourth

District rediscovered Peck , which it followed in Grippe v.

Florida Dep't of Bus. and Prof'l Regulation , 729 So. 2d 459

(Fla. 4th DCA 1999). In Grippe , the court affirmed the

Division's denial of a petition requesting interpretation of

certain language in a declaration of condominium. "The Division

correctly found it lacked authority to interpret ambiguous

provisions of a condominium contract," said the court, citing

Peck ——and making no mention of RIS . Id. at 459.

27. The undersigned concludes that Peck and Point

Management , on the one hand, and RIS , on the other, are

irreconcilable with regard to the jurisdictional issue at hand.

It is further concluded that Peck and Point Management were

better reasoned and correctly state the applicable law. The

courts in those cases, unlike the RIS court, adhered to the

axiom that the only subjects which "an agency may hear and

determine [are those] within the framework of the powers

conferred upon the agency." Vincent J. Fasano, Inc. v. School

Bd. of Palm Beach, County, Fla. , 436 So. 2d 201, 202-03 (Fla.

4th DCA 1983)(breach of contract claims are ordinarily matters

for judicial rather than administrative or quasi-judicial

consideration); cf. Fleischman v. Department of Professional

Regulation , 441 So. 2d 1121, 1122-23 (Fla. 3d DCA 1983)("It is

well-settled . . . that, absent clear legislative authorization

to the contrary, violations of mere contractual rights are

concerns only of the courts, and may not be enforced by

disciplinary action undertaken by a regulatory agency . . . ."). v

28. The undersigned's conclusions that Peck and Point

Management constitute good law, are applicable, and should be

followed are reinforced by the observation that, in the instant

case, the Division's putatively authoritative interpretation of

the amendment is indistinguishable, in its effect, from a

declaratory judgment. vi Broadly speaking, declaratory relief is

available "to settle and to afford relief from insecurity and

uncertainty with respect to rights, status, and other equitable

or legal relations . . . ." § 86.101, Fla. Stat. Among other

purposes, declaratory relief is appropriately sought when the

meaning of a legal instrument, such as a declaration of

condominium, is in dispute:

Any person claiming to be interested or who

may be in doubt about his or her rights

under a deed, will, contract, or other

article, memorandum, or instrument in

writing or whose rights, status, or other

equitable or legal relations are affected by

a statute, or any regulation made under

statutory authority, or by municipal

ordinance, contract, deed, will, franchise,

or other article, memorandum, or instrument

in writing may have determined any question

of construction or validity arising under

such statute, regulation, municipal

ordinance, contract, deed, will, franchise,

or other article, memorandum, or instrument

in writing, or any part thereof, and obtain

a declaration of rights, status, or other

equitable or legal relations thereunder.

§ 86.021, Fla. Stat. Jurisdiction to render declaratory

judgments is vested exclusively in the courts. § 86.011, Fla.

Stat.

29. Where, as here, there exists between interested

parties a bona fide, present dispute about the rights, powers,

or privileges obtaining under an instrument in writing, an

action for declaratory judgment is maintainable. See , e.g. ,

Lambert v. Justus , 335 So. 2d 818, 821 (Fla. 1976)(quoting May

v. Holley , 59 So. 2d 636 (Fla. 1952)). Moreover, to state a

claim for declaratory relief, it need not be alleged that the

instrument at issue is ambiguous. See , e.g. , American Equity

Ins. Co. v. Van Ginhoven , 788 So. 2d 388, 392 (Fla. 5th DCA

2001)("Because we hold that the policy exclusions are clear and

unambiguous, [the insurer] should have prevailed in its

declaratory judgment action."). Rather, if the instrument were

determined to be clear and unambiguous, then that ruling,

together with the exposition of the writing's clear meaning,

would comprise the merits of the declaration. vii Id.

30. Among the enumerated powers of the Division is the

authority to "bring an action in circuit court on behalf of a

class of unit owners, lessees, or purchasers for declaratory

relief , injunctive relief, or restitution." § 718.501(1)(d)3.,

Fla. Stat. (emphasis added). Thus, before initiating the

instant proceeding, the Division could have——and should have———

brought an action for declaratory relief on behalf of the

malcontents who opposed the Board's interpretation of the

amendment. By skipping that step and relying on its own

unwarranted, unenforceable interpretation of the amendment as a

predicate for vindicating Section 718.115(2), the Division has

presented a fatally defective case.

31. The bottom line, then, is as follows. The Division

has the authority to prosecute the instant enforcement

proceeding against the Association. In other words, this case

is within the Division's (and DOAH's) jurisdiction. The

Division, however, has failed to carry its burden of proving

that the Association acted in contravention of the Condominium's

Declaration, as amended, because there exists a bona fide

controversy over the meaning of the applicable instrument, which

dispute the Division is without jurisdiction to resolve. Absent

a judicial determination of the "proportions or percentages

provided in [the] condominium's declaration," as amended, it

cannot be concluded, in this administrative proceeding, that the

Association violated Section 718.115(2), Florida Statutes, in

the year 2005, when it assessed unit owners for common expenses

in accordance with the Board's interpretation of the pertinent

amendment.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Division enter a final order

rescinding the Notice to Show Cause and exonerating the

Association of the charge of failing to assess for common

expenses in the appropriate percentages as set forth in the

Declaration, as amended.

DONE AND ENTERED this 11th day of May, 2007, in

Tallahassee, Leon County, Florida.

___________________________________

JOHN G. VAN LANINGHAM

Administrative Law Judge

Division of Administrative Hearings

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 11th day of May, 2007.

ENDNOTES

i / If the Division lacks jurisdiction to declare the meaning of

the amendment, so too does DOAH, whose role in a case such as

this is to make a recommendation to the referring agency

regarding the appropriate disposition of the dispute. Plainly,

DOAH cannot properly recommend that the Division exercise

authority that the Division does not possess.

ii / The court did not say whether the appellants——who had

conceded the Division's jurisdiction at the trial level——raised

the jurisdictional issue on appeal.

iii / The court's tone hints at a certain displeasure over what

it apparently perceived as a flagrant usurpation of judicial

authority.

iv / While one can only speculate, it is possible that the RIS

court believed Peck and Point Management were inapposite because

the documents at issue in those cases were determined to be

ambiguous, whereas in RIS the document was (perhaps) found

unambiguous. (The court never explicitly ruled, one way or the

other, on the question of ambiguity, but it found the relevant

language to be, despite a lack of precision, susceptible of

application without resort to principles of interpretation,

which is consistent with a conclusion of unambiguity. On the

other hand, the Division had studied the same "clear and

unambiguous" document and reached a much different conclusion

about its meaning.) This would not have been a meaningful or

persuasive distinction, however, for reasons that will be

discussed later.

v / The undersigned is mindful that at stake here is more than an

alleged violation of "mere" contractual rights. This is because

Section 718.115(2), Florida Statutes, requires that assessments

for common expenses be made in accordance with the proportions

set forth in the declaration. Thus, if an association makes

assessments in percentages other than the ones provided in the

declaration, it not only violates the "mere" contractual rights

of unit owners (arising under the declaration), but also a

statutory duty. However, the contractual rights must be fixed

before a violation of the statutory duty can be found to exist,

and determining contractual rights, where such are in doubt, is

a concern only of the courts. Indeed, where, as in this case,

the party charged with a violation of § 718.115(2) does not

dispute its duty to comply therewith but only opposes the

Division's interpretation of the condominium's declaration,

there is really no need to "enforce" the statute, which is the

nominal purpose of the regulatory proceeding; in such event,

rather, all that the Division would enforce, as a practical

matter, are the "mere" contractual rights of the dissenting

owners.

vi / The procedure that the Division followed in arriving at the

interpretation, however, differed markedly from a declaratory

judgment action. For one thing, the Association was not given

an opportunity to be heard on the question of interpretation, as

such, apart from the instant regulatory enforcement proceeding,

which rests on the Division's interpretation of the operative

document. And even if the Association had been afforded a

hearing specifically to contest the question of interpretation,

no jury trial would have been available under any circumstances,

as it might be in a declaratory judgment action. See § 86.071,

Fla. Stat. With such considerations in view, it is worth noting

that if, contrary to the undersigned's conclusion herein, the

Division possesses the authority to decisively interpret an

instrument such as the amendment, then all persons having rights

and interests arising under the instrument should be given a

clear point of entry to challenge the Division's interpretation

thereof qua interpretation before the initiation of an

administrative proceeding to enforce such interpretation. That

way, judicial review of the agency's interpretation can be had

ahead of the imposition of sanctions for failure to comply with

the agency's interpretation of the operative instrument.

vii / Thus, even if, in RIS , the only reasonable understanding of

the subject document was that which the appellate court

articulated, declaratory relief in a court of law would have

been no less available to the parties there as to those in Peck

and Point Management . For that reason, RIS cannot effectively

be distinguished from Peck and Point Management on the ground

that the document at issue in RIS , unlike those under

consideration in the other cases, was clear and unambiguous.

COPIES FURNISHED :

David J. Tarbert, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399-2202

Ned Luczynski, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

Leonardo G. Renaud, Esquire

Leonardo G. Renaud, P.A.

8105 Northwest 155 Street

Miami Lakes, Florida 33016

Michael Cochran, Division Director

Department of Business and

Professional Regulation

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.