15-007237 Stephen J. Byers vs. Antiquers Aerodrome, Inc. Status: Closed Recommended Order on Friday, February 24, 2017.

Summary: Respondent failed to include amended bylaws in revitalization packages to parcel owners and DEO, and failed to include all information in notices to owners. Recommended disapproval of revitalization of expired covenants and "other governing documents."

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ERICH NIKOROWIC Z,

Petitioner,

vs. Case No. 15 - 7236

ANTIQUERS AERODROME, INC.,

Respondent.

_______________________________/

STEPHEN J. BYERS ,

Petitioner,

vs. Case No. 15 - 7237

ANTIQUERS AEROD ROME, INC.,

Respondent.

_______________________________/

RECOMMENDED ORDER

These cases initially came before Administrative Law Judge

Darren A. Schwartz of the Division of Administrative Hearings for

final hearing on July 15 , 2016, in West Palm Beach, Florida. The

final hearing concluded on December 1, 2016, by video

teleconference with sites in West Palm Beach and Tallahassee,

Florida.

APPEARANCES

For Petitioner Erich Nikorowic z:

Donald Jo seph Thomas, Esquire

Lewis and Thomas

Suite 200

165 East Palmetto Park Road

Boca Raton, Florida 33432 - 4818

For Petitioner : Stephen J. Byers , pro se

7396 Skyline Drive

Delray Beach, Florida 33446

For Respondent: Keith F. Backer, Esquire

Ryan D. Poliakoff, Esquire

Backer, Aboud, Poliakoff, and Foelster, LLP

Suite 420

400 South Dixie Highway

Boca Raton, Florida 33432

STATEMENT OF THE ISSUE

Whether Respondent , Antiquers Aerodrome, Inc.

(ÐRespondentÑ) , properly revived its expired restrictive

covenants and othe r governing documents in accordance with

sections 720.403 - 40 7 , Florida Statutes (2015).

PRELIMINARY STATEMENT

On November 5, 2015, the Department of Economic Opportunity

(ÐDEOÑ) approved the proposed revitalization of RespondentÓs

restrictive covenants Ð a nd other governing documents. Ñ On

December 8, 2015, Petitioner Erich Nikorowicz (ÐNikorowiczÑ)

filed with DEO, a Petition for Administrative Proceedings,

challenging DEOÓs approval of the proposed revitalization. 1/ On

December 14, 2015, Petitioner Stephe n J. Byers (ÐByersÑ) filed

with DEO a Petition for Administrative Proceedings, challenging

DEOÓs approval of the proposed revitalization.

On December 18, 2015, DEO forwarded both petition s to the

Division of Administrative Hearings (ÐDOAHÑ) to assign an

Administrative Law Judge to conduct the final hearing. The

petition filed by Nikorowicz was assigned DOAH Case N o . 15 - 7236.

The petition filed by Byers was assigned DOAH Case No. 15 - 7237.

On December 29, 20 16, the undersigned entered an O rder

consolidat ing Case Nos. 15 - 7236 and 15 - 7237.

On December 31, 20 15, the undersigned entered an O rder

setting this matter for final hearing on March 4, 2016. On

February 11, 2016, Byers filed a n unopposed motion to continue

the final hearing. On February 12, 2016, the undersigned entered

an Order granting the motion and reset the final hearing for

April 27, 2016. On April 15, 2016, Nikorowicz filed an unopposed

motion to continue the final hearing. On April 26, 2016, the

undersigned entered an Order granting the m otion and reset the

final hearing for July 15, 2016.

On July 8, 2016, Nik orowicz and Respondent filed a joint

pre - h earing s tipulation. On July 8, 2016, Byers filed a

pre - hearing s tatement. On Jul y 12, 2016, Respondent filed a

supplemental p re - hearing s tipulation.

The hearing commenced as scheduled on July 15, 2016 , and

concluded on December 1, 2016. Nikorowicz did not appear at the

final hearing, but he was represented at the final hearing by his

counsel, David J. Thom as . Byers testified on his own behalf and

presented the additional testimony of Micha el Chinnici. ByersÓ

Exhibits 1 through 41 were received in evidence based on the

stipulation of the parties. Respondent did not appear at the

final hearing, but it was represented at the final hearin g by its

counsel, Keith F. Backer and Ryan D. Poliakoff. Respondent

presented the testimony of Robert Ba keris. RespondentÓs Exhibits

A through O were received in evidence based on the stipulation of

the parties.

The two - volume final hearing Transcript was filed at DOAH on

December 18, 2016. The parties timely filed proposed recommended

orders, which were considered in the preparation of this

Recommended Order.

The partiesÓ pre - hearing stipulations have been incorporated

herein, to the extent indicate d below. Unless otherwise

indicated, references to the Florida Statutes are to the 2015

version.

FINDING S OF FACT

1. Respondent is a Florida for - profit corporation that

serves as the governing homeownersÓ association for the single -

family r esidential , Ðfly - in/fly - outÑ community , known as

Antiquers Aerod r ome. The community consists of 37 individual

parcels and a common airplane runway , located near Atlantic

Avenue, east of the Florida Turnpike, in Palm Beac h County,

Florida.

2. Petiti oners Nikorowicz and Byers are parcel owners in

the community.

3. Byers purchased his 2.2 acre parcel in October 2014. At

that time, there was a 5,000 - square - foot single - family home,

2,000 - square - foot airplane hanger , and a 2,000 - square - foot garage

on the property. Since then, Byers has had some chickens and a

honeybee colony operation on his property .

4 . RespondentÓs r estrictive c ovenants were recorded in the

public records of Palm Beach County at OR Book 1651, Page 151, on

April 21, 1968 . The r estrictive covenants have been amended and

restated from time to time. By operation of the Marketable

Record Title Act (ÐMRTAÑ) , c hapter 712, Florida Statutes, the

restrictive c ovenants expired April 21, 1998.

5 . Section s 720.403 - 407 provide the mechani sm by which a

homeownersÓ association, such as Respondent , may revitalize its

restrictive covenants because they expired by operation of MRTA.

6. In an effort to revitalize the expired restrictive

covenants pursuant to the requirements of sections 720.4 03 - 407,

Respondent prepared a Notice of Special Members Ó Meeting, an

Agenda, a Limited Proxy , and Instructions for Completing the

Limited Proxy (Ð r evitalization p ackageÑ) . The revitalization

package was sent to each parcel owner on J uly 24, 2015.

7 . Th e revitalization package sent to the parcel owners

failed to include RespondentÓs most recent bylaws -- the

November 7, 2010, amended bylaws. Instead, Respondent included

in the revitalization package its February 12, 1998, bylaws.

8 . By failing to incl ude the November 7, 2010, amended

bylaws in the revitalization package sent to the parcel owners,

Respondent failed to comply with section 720.405(3).

9 . The notice of the meeting , included within the

revitalization package , contained the name , addre ss , and

telephone number of each of the three member s of the

revitalization organizing committee. The notice advised each

parcel owner of an upcoming special membership meeting on

August 15, 2015, at which time each owner would vote on the

revitalization of the expired restricted covenants , either in

person at the meeting or by proxy.

10 . On July 30, 2015, Peggy Preiser, as a member of the

organizing committee and secretary of the Board of D irectors of

Respondent, sent a follow - up e - mail to the parcel ow ners,

reminding them of the upcoming meeting on August 15, 2015. Th is

e - mail reiterated the purpose of the upcoming special meeting --

Ðfor the purpose of voting to revitalize (restore) the

AssociationÓs Restrictive Covenants and Reservations as provided

by Sections 720.403 through 720.407, Florida Statutes.Ñ The

e - mail also reiterated that the revitalization package ha d been

distributed to all parcel owners in preparation for the

August 15, 2015, special meeting and vote. The e - mail did not

contain the name, address, and telephone number of each member of

the revitalization organizing committee.

1 1 . Ms. Preiser , as a member of the organizing committee

and secretary of the Board of D irectors of Respondent, also

posted on July 30, 2015, a nother notice o f the special meeting at

the front gate community bulletin board . Th is notice contained

the same information as the e - mail Ms. Preiser sent to the parcel

owners on July 30, 2015. As with the e - mail, the posting at the

front gate did not contain the name, address, and telephone

number of each member o f the revitalization organizing committee.

1 2 . The e - mail sent by Ms. Preiser and the posting at the

front gate were notices and documents provided by the committee

to parcel owners to be affected by the prop osed revived

declarations. By failing to provide the name, address, and

telephone number of each revitalization committee member in the

e - mail and front gate notices , Respondent failed to comply with

section 720.405(1). 2 /

1 3 . The special meeting was held on August 15, 2015. A

quorum was present with 26 of the total 37 lots represented in

person or by proxy. Byers did not attend the August 15, 2015,

meeting nor did he vote by proxy. Ni k orowicz did not attend the

meeting, but he voted by proxy against re vitalization of the

restrictive covenants .

1 4 . A majority of 19 votes were required for the

revitalization of the restrictive covenants to be approved. At

the meeting, t he vote w as taken on whether the expired

restrictive covenants should be revital ized. The votes were

tallied w ith 22 votes for revitalization and 4 votes against

revitalization. Thus, a majority of the parcel owners were in

favor of revitalization of the restrictive covenants . The voting

results were certified by counsel for Respon dent, revitalization

of the restrictive covenants was approved, and the meeting was

adjourned.

1 5 . P etitioners conten d that the following proxies counted

at the August 15, 2015, meeting in favor of revitalization of the

restrictive covenants were invalid because the signers were not

authorized to vote on behalf of the parcel owners . Petitioners Ó

position is without merit.

1 6 . John Lumley and Carol Lumley signed a proxy. Pursuant

to a quit claim deed, they are trustees of the Carl J. Lumley

Revocable Trust dated May 31, 2005 , which owns the parcel. As

trustees of the trust, John Lumley and Carol Lumley were

authorized to sign the proxy.

1 7 . Mayda Balboa signed a proxy. Pursuant to a warranty

deed, she is the trustee of the Daoud Family Irre vocable Trust,

dated May 19, 2014, which owns the parcel. As trustee of the

trust, Mayda Balboa was authorized to sign the proxy.

1 8 . Shireen Bower and William Bower signed a proxy.

Pursuant to a quit claim deed, they are trustees of the William

and Shireen Bo wer Trust, dated 2/22/2002, which owns the parcel.

As trustees of the t rust, William and Shireen Bower were

authorized to sign the proxy.

1 9 . Mike Blake signed two proxies . Pursuant to a warranty

deed, he is the trustee of the Mike Blake Revocable Trus t under

Agreement dated December 22, 1997 , which owns the parcel s . As

trustee of the trust, Mike Blake was authorized to sign the

prox ies .

20 . Cecilia A. Walsh signed a proxy. She is a managing

member of 6814 Skyline, LLC, which owns the parcel. As a

managing member, Cecilia A. Walsh was authorized to sign the

proxy.

2 1 . Daniel Lunk signed a proxy. Pursuant to a warranty

deed, he is the trustee of the Daniel Junk Trust Under

Agreement dated July 26, 2013 , which owns the parcel. As the

trus tee of the trust, Daniel Lunk was authorized to sign the

proxy.

2 2 . Luis Claudia Maia Ferreira and Elaine Lignelli signed a

proxy. Pursuant to a warranty deed, Luiz Claudia Maia Ferreira

is the trustee of the Elaine Lignelli Irrevocable Trust dated

September 28, 2012, which owns the parcel . As a trustee of the

trust, Luiz Claudia Maia Ferreira had authority to sign the

proxy.

2 3 . After achieving a majority vote in favor of

revitalization of the restrictive covenants, Respondent submitted

a package to DEO on September 28, 2015, seeking approval of the

revitalization of the restrictive covenants (ÐDEO packageÑ).

2 4 . The DEO package contained an affidavit executed by

Ms. Preiser, as an organizing committee member and secretary of

Respondent. The a ffidavit purported to comply with the

requirements of section s 720.406(1)(a) through (f).

2 5 . The DEO package contained the full text of the proposed

revived restrictive covenants , including any amendments thereto.

2 6 . The DEO package contained the Cer tificate of

Incorporation of Respondent, together with any amendments

thereto.

2 7 . The DEO package contained a graphic depiction of the

affected properties in the community, and a legal description of

each parcel and the affected properties within the c ommunity.

2 8 . The DEO package contained verification of: a) the

written consents of the requisite number of the affected parcel

owners approving the revived declaration; b) a Notice of Special

MembersÓ meeting; and c) attendance and voting results.

2 9 . The DEO package contained the February 12, 1998,

bylaws.

30 . The DEO package did not contain the November 7, 2010,

amended bylaws.

3 1 . The November 7, 2010, amended bylaws were the current

and relevant bylaws of Respondent and governed Respondent in

2015, before and after the submittal of the revitalization

package and DEO package. 3 /

3 2 . By failing to include the November 7, 2010, amended

bylaws in the DEO package, Respondent failed to comply with

section 720.406(1)(b).

3 3 . In sum, the revitalizati on and DEO package s were

deficient because they failed to contain all of the required

documents , namely, the November 7, 2010, amended bylaws . The

e - mail and front gate notices prepared by Ms. Preiser were also

deficient because they failed to contain th e name, address , and

telephone number of each org anization committee member. 4 /

3 4 . On November 5, 2015, DEO approved the revitalization of

the restrictive covenants Ð and other governing documents. Ñ

3 5 . The revitalized restrictive covenants were recorde d in

the public records of Palm Beach County, Florida, at OR Book

27945, Page 1431, on November 23, 2015.

CONCLUSIONS OF LAW

3 6 . DOAH has jurisdiction over the parties to and subject

matter of this proceeding pursuant to sect ions 120.569 and

120.57(1), F lorida Stat utes .

3 7 . Petitioners have the burden of proving their claims by

a preponderance of the evidence. Fla. DepÓt of Transp. v .

J.W.C., Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981).

3 8 . The Florida Legislature enacted MRTA over 50 years ago

in or der to simplify and facilitate land transactions. Matissek

v. Waller , 51 So. 3d 625, 628 (Fla. 5th DCA 2011). Notably,

section 712.10 , Florida Statutues , expressly provides that MRTA :

s hall be liberally construed to effect the

legislative purpose of sim plifying and

facilitating land title transactions by

allowing persons to rely on a record title as

described in s. 712.02 subject only to such

limitations as appear in s. 712.03.

3 9 . Section 712.02 provides, in pertinent part:

Any person having the lega l capacity to own

land in this state, who, alone or together

with her or his predecessors in title, has

been vested with any estate in land of record

for 30 years or more, shall have a marketable

record title to such estate in said land,

which shall be fre e and clear of all claims

except the matters set forth as exceptions to

marketability in s. 712.03.

40 . In essence, restrictive covenants cease to be effective

as to lots governed by the restrictive covenants 30 years after

said restrictive coven ants have been referenced in a deed that

burdens each lot. Bylaws, which are not interests in real

property and do not run with the land, are not extinguished by

MRTA. Cirelli v. Ent. , 885 So. 2d 423 , 432 (Fla. 5th DCA

2004)(recognizing that ÐMRTA only e xtinguishes interests in real

property. Ñ ).

4 1 . As detailed above, Respondent concedes that the

restrictive covenants expired by operation of MRTA and were not

timely preserved pursuant to MRTA .

4 2 . If MRTA extinguishes a communityÓs restrict ive

covenants, Respondent may attempt to utilize the procedures set

forth in chapter 720, part III (s ections 720.403 - 407), to revive

the expired restrictive covenants. 5 /

4 3 . To effectuate this legislative purpose, section 720.403

provides:

( 1) Cons istent with required and optional

elements of local comprehensive plans and

other applicable provisions of the Community

Planning Act, homeowners are encouraged to

preserve existing residential communities,

promote available and affordable housing,

protect structural and aesthetic elements of

their residential community, and, as

applicable, maintain roads and streets,

easements, water and sewer systems,

utilities, drainage improvements,

conservation and open areas, recreational

amenities, and other infrastr ucture and

common areas that serve and support the

residential community by the revival of a

previous declaration of covenants and other

governing documents that may have ceased to

govern some or all parcels in the community.

(2) In order to preserve a residential

community and the associated infrastructure

and common areas for the purposes described

in this section, the parcel owners in a

community that was previously subject to a

declaration of covenants that has ceased to

govern one or more parcels in the community

may revive the declaration and the

homeownersÓ association for the community

upon approval by the parcel owners to be

governed thereby as provided in this act, and

upon approval of the declaration and the

other governing documents for the as sociation

by the Department of Economic Opportunity in

a manner consistent with this act.

4 4 . Section 720.404 further provides as follows:

720.404 Eligible residential communities;

requireme nts for revival of declaration. -

Parcel owners in a community are eligible to

seek approval from the Department of Economic

Opportunity to revive a declaration of

covenants under this act if all of the

following requirements are met:

(1) All parcels to be governed by the

revived declaration must have been once

gov erned by a previous declaration that has

ceased to govern some or all of the parcels

in the community;

(2) The revived declaration must be approved

in the manner provided in s. 720.405(6); and

(3) The revived declaration may not contain

covenants that are more restrictive on the

parcel owners than the covenants contained in

the previous declaration, except that the

declaration may:

(a) Have an effective term of longer

duration than the term of the previous

declaration;

(b) Omit restrictions cont ained in the

previous declaration;

(c) Govern fewer than all of the parcels

governed by the previous declaration;

(d) Provide for amendments to the

declaration and other governing documents;

and

(e) Contain provisions required by this

chapter for ne w declarations that were not

contained in the previous declaration.

4 5 . Section 720.405 describes the proce dure and documents

required to be provided to the parcel owners in order to obtain

parcel owner approval with respect to the r eviv al of expired

restrictive covenants. Section 720.405 provides as follows:

720.405 Organizing committee; parcel owner

approval. -

( 1) The proposal to revive a declaration of

covenants and a homeownersÓ association for a

community under the terms of this act shall

be initiated by an organizing committee

consisting of not less than three parcel

owners located in the community that is

proposed to be governed by the revived

declaration. The name, address, and

telephone number of each member of the

organizing committee mu st be included in any

notice or other document provided by the

committee to parcel owners to be affected by

the proposed revived declaration.

(2) The organizing committee shall prepare

or cause to be prepared the complete text of

the proposed revised d eclaration of covenants

to be submitted to the parcel owners for

approval. The proposed revived documents

must identify each parcel that is to be

subject to the governing documents by its

legal description, and by the name of the

parcel owner or the perso n in whose name the

parcel is assessed on the last completed tax

assessment roll of the county at the time

when the proposed revived declaration is

submitted for approval by the parcel owners.

( 3) The organizing committee shall prepare

the full text of the proposed articles of

incorporation and bylaws of the revived

homeownersÓ association to be submitted to

the parcel owners for approval, unless the

association is then an existing corporation,

in which case the organizing committee shall

prepare the exi sting articles of

incorporation and bylaws to be submitted to

the parcel owners .

(4) The proposed revived declaration and

other governing documents for the community

shall:

(a) Provide that the voting interest of each

parcel owner shall be the same a s the voting

interest of the parcel owner under the

previous governing documents;

(b) Provide that the proportional - assessment

obligations of each parcel owner shall be the

same as proportional - assessment obligations

of the parcel owner under the previo us

governing documents;

(c) Contain the same respective amendment

provisions as the previous governing

documents or, if there were no amendment

provisions in the previous governing

document, amendment provisions that require

approval of not less than tw o - thirds of the

affected parcel owners;

(d) Contain no covenants that are more

restrictive on the affected parcel owners

than the covenants contained in the previous

governing documents, except as permitted

under s. 720.404(3); and

(e) Comply with th e other requirements for a

declaration of covenants and other governing

documents as specified in this chapter.

(5) A copy of the complete text of the

proposed revived declaration of covenants,

the proposed new or existing articles of

incorporation and b ylaws of the homeownersÓ

association, and a graphic depiction of the

property to be governed by the revived

declaration shall be presented to all of the

affected parcel owners by mail or hand

delivery not less than 14 days before the

time that the consent of the affected parcel

owners to the proposed governing documents is

sought by the organizing committee.

(6) A majority of the affected parcel owners

must agree in writing to the revived

declaration of covenants and governing

documents of the homeowners Ó association or

approve the revived declaration and governing

documents by a vote at a meeting of the

affected parcel owners noticed and conducted

in the manner prescribed by s. 720.306.

Proof of notice of the meeting to all

affected owners of the meetin g and the

minutes of the meeting recording the votes of

the property owners shall be certified by a

court reporter or an attorney licensed to

practice in this state.

4 6 . Section 720.406 describes the procedure and documents

required to be submitted t o DEO in order to revive expired

restrictive covenants. Section 720.406 provides as follows:

720.406 Department of Economic Opportunity;

submission; review and determination. Ï

( 1) No later than 60 days after the date the

proposed revived declaration and other

governing documents are approved by the

affected parcel owners, the organizing

committee or it s designee must submit the

proposed revived governing documents and

supporting materials to the Department of

Economic Opportunity to review and determine

whether to approve or disapprove of the

proposal to preserve the residential

community. The submissi on to the department

must include:

(a) The full text of the proposed revived

declaration of covenants and articles of

incorporation and bylaws of the homeownersÓ

association;

(b) A verified copy of the previous

declaration of covenants and other previo us

governing documents for the community,

including any amendments thereto;

(c) The legal description of each parcel to

be subject to the revived declaration and

other governing documents and a plat or other

graphic depiction of the affected properties

i n the community;

(d) A verified copy of the written consents

of the requisite number of the affected

parcel owners approving the revived

declaration and other governing documents or,

if approval was obtained by a vote at a

meeting of affected parcel owne rs, verified

copies of the notice of the meeting,

attendance, and voting results;

(e) An affidavit by a current or former

officer of the association or by a member of

the organizing committee verifying that the

requirements for the revived declaration se t

forth in s. 720.404 have been satisfied; and

(f) Such other documentation that the

organizing committee belie ves is supportive

of the policy of preserving the residential

community and operating, managing, and

maintaining the infrastructure, aesthetic

character, and common areas serving the

residential community.

(2) No later than 60 days after receiving

the su bmission, the department must determine

whether the proposed revived declaration of

covenants and other governing documents

comply with the requirements of this act.

(a) If the department determines that the

proposed revived declaration and other

governin g documents comply with the act and

have been approved by the parcel owners as

required by this act, the department shall

notify the organizing committee in writing of

its approval.

(b) If the department determines that the

proposed revived declaration a nd other

governing documents do not comply with this

act or have not been approved as required by

this act, the department shall notify the

organizing committee in writing that it does

not approve the governing documents and shall

state the reasons for the disapproval.

47. T he relevant statutory provisions are clear and

unambiguous. Section 720.405(3) expressly requires, in pertinent

part, that Ðthe full text of the proposed articles of

incorporation and bylaws of the revived homeownersÓ association

. . . be submitted to the parcel owners for approval. Ñ Section

720.406(1)(b) expressly require s that the submission to DEO must

include a verified copy of the previous declaration of covenants

and other previous governing documents for the community,

includi ng any amendments thereto. The phrase Ðgoverning

documentsÑ means :

(a) The recorded declaration of covenants

for a community and all duly adopted and

recorded amendments, supplements, and

recorded exhibits thereto;

(b) The articles of incorporation and bylaws

of the homeownersÓ association and any duly

adopted amendments thereto; and

(c) Rules and regulations adopted under the

authority of the recorded declaration,

articles of incorporation, or bylaws and duly

adopted amendments thereto.

§ § 720.301( 8 )(a) - (c), Fla. Stat.

48. Section 720.405(1) expressly requires that: [Ð t ] he

name, address, and telephone number of each member of the

organizing committee must be included in any notice or other

document provided by the committee to parcel owners to be

a ffected by the proposed revived declaration. Ñ

4 9 . As detailed above, Respondent complied with m any of the

requirements of 720.403 - 407. Respondent obtained a majority of

votes in favor of revitalization at the August 15, 2015,

meeting. 6 / Respondent pro vided virtually all of the required

documents to the parcel owners and DEO. However, Respondent

failed to comply with sections 720.405(3) and 720.406(1)(b) by

not including the November 7, 2010, amended bylaws in the

revitalization package and DEO package . Respondent also violated

section 720.405(1) by failing to provide the name, address, and

telephone number of each revitalization committee member in the

e - mail and front gate posting. 7 /

5 0 . It is not the prerogative of the undersigned to

construe the u nambiguous language of statutes differently from

the plain language of the words employed. Nor is the wisdom of

the statutes within the ambit of the undersignedÓs authority.

Wright v. City of Miami Gardens , 200 So. 3d 765, 773 - 774 (Fla.

2016). An admini strative agency simply cannot interpret a

statute in a fashion which would result in the provision being

voided by administrative fiat. DepÓt of Educ . v. Educ. Charter

Found. of Fla. Inc. , 177 So. 3d 1036, 1039 (Fla. 1st DCA 2015).

To excuse RespondentÓs actions in this case in failing to submit

all of the required documents in the revitalization package and

DEO package and not includ ing all of the information in the

required notices, would amount to an administrative waiver of the

statutory requirements. 8 /

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Economic

Opportunity enter a Final Order disapproving the revitalization

of RespondentÓs expired restrictive covenants and other governing

documents.

DONE AND ENTERED this 24th day of February , 2017 , in

Tallahassee, Leon County, Florida.

S

DARREN A. SCHWARTZ

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Ap alachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 24th day of February , 2017 .

ENDNOTE S

1/ The previous style of this case mistakenly identified

Petitioner Nikorowicz as Nikorowiez.

2 / RespondentÓs contention that Ms. Preiser sent the e - mail and

posted the notice at the gate in her capacity as secretary of

Respondent, only, and not as a n organizing committee member, is

not credited and is rejected as unpersuasive.

3 / The 1998 bylaws were not extinguished by MRTA.

4 / Notably, there are only two differences between the

February 12, 1998, bylaws and the November 7, 2010, amended

bylaws. The 1998 bylaws provided that t he annual meeting shall

be held on the third Sunday of November. If that date fell on a

legal holiday, then the meeting would be held on the following

Sunday. The 2010 amended bylaws provide that the annual meeting

is changed from the third Sunday of Nov ember to the first Sunday

in November.

The 2010 amended bylaws provide that dissolution of

Respondent and/or the airport operations it sup ports will only

occur with a 91 - percent vote of the shareholders of Respondent at

a properly called and notice d meeting for that expressed purpose.

The 1998 bylaws did not address this issue.

5 / MRTA defines a Ðhomeowners Ó associationÑ to mean a homeownersÓ

association as defined in section 720.301, or an association of

parcel owners which is authorized to enfor ce use restrictions

that are imposed on the parcels. § 712.01(4), Fla. Stat. As

detailed above, Respondent is a homeowners Ó association pursuant

to this definition.

6 / A trustee is authorized to vote on behalf of a trust which

owns real property. § § 689.073(1) and 736.0816 , Fla. Stat. A

member of a limited liability company (ÐLLCÑ) is also authorized

to vote on behalf of the LLC. § 605.04073, Fla. Stat.

7 / Notably, even if the 1998 bylaws were extinguished by MRTA

(which they were not), the u nambiguous and plain language of the

applicable statutory provisions required that Respondent include

the amended 2010 bylaws in the revitalization package and DEO

package.

8 / Petitioners contended for the first time at hearing, and

subsequently in t heir proposed recommended orders, that because

the vote at the meeting and pre - meeting notices did not refer

specifically to a proposed revitalization of any documents other

than the expired restrictive covenants, t hat DEO improperly

granted RespondentÓs r equest to revitalize the revised

restrictive covenants Ðand other governing documents.Ñ Although

Petitioners are factually correct that the vote and pre - meeting

notices did not refer specifically to a proposed revitalization

of any documents other than th e expired restrictive covenants ,

Petitioners waived this argument by failing to allege it in their

petitions or in their pre - hearing stipulations/statement.

Moreover, Petitioners never requested leave to amend their

petitions to assert this issue. Holmes v. Mernah , 427 So. 2d

378, 379 (Fla. 4th DCA 1983).

ByersÓ argument that his property is exempt from

revitalization pursuant to the Florida Right to Farm Act is

rejected. The Florida Right to Farm Act , section 823.14, Florida

Statutes, prohibits local government regulation that conflicts

with farming activities. The Florida Right to Farm Act has no

application to the instant administrative proceeding. Wilson v.

Palm Beach Co. , 62 So. 3d 1247 (Fla. 4th DCA 2011).

In any event, because the undersigned h as determined that

revitalization must fail for the reasons stated above, it is

unnecessary to specifically address all of PetitionersÓ other

arguments against revitalization. However, the undersigned has

considered PetitionersÓ other arg uments , and they are all

rejected as without merit.

COPIES FURNISHED:

Ryan D. Poliakoff, Esquire

Backer, Aboud, Poliakoff, and Foelster, LLP

Suite 420

400 South Dixie Highway

Boca Raton, Florida 33432

(eServed)

Stephen J. Byers

7396 Skyline Drive

De lray Beach, Florida 33446

(eServed)

Donald Joseph Thomas, Esquire

Lewis and Thomas

Suite 200

165 East Palmetto Park Road

Boca Raton, Florida 33432 - 4818

(eServed)

Katie Zimmer, Agency Clerk

Department of Economic Opportunity

Caldwell Building

107 East M adison Street

Tallahassee, Florida 32399 - 4128

(eServed)

James W. Poppell, General Counsel

Department of Economic Opportunity

Caldwell Building , MSC 110

107 East Madison Street

Tallahassee, Florida 32399 - 4128

(eServed)

Cissy Proctor, Executive Director

Department of Economic Opportunity

Caldwell Building

107 East Madison Street

Tallahassee, Florida 32399 - 4128

(eServed)

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.