18-001732 Stephen J. Byers And Erich Nikorowicz vs. Antiquers Aerodrome, Inc. Status: Closed Recommended Order on Wednesday, June 19, 2019.

Summary: Antiquers Aerodrome, Inc., followed the statutory process to revive its restricted covenants and properly submitted the revitalization package to Department of Economic Opportunity according to chapter 720, part III, Florida Statutes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STEPHEN J. BYERS AND

ERICH NIKOROWICZ,

Petitioners,

vs. Case No. 18 - 1732

ANTIQUERS AERODROME, INC.,

Respondent.

_______________________________/

RECOMMENDED ORDER

Administrativ e Law Judge June C. McKinney of the Division

of Administrative Hearings ( " DOAH " ) heard this case by video

teleconference at locations in Tallahassee and West Palm Beach,

Florida, on March 14, 2019.

APPEARANCES

For Petitioner Erich Nikorowicz :

Kevin P. Mason, Esquire

KPM Law Firm, P.A.

1900 Glades Road, Suite 270

Boca Raton, Florida 33431

For Petitioner: Stephen J. Byers, pro se

7396 Skyline Drive

Delr ay Beach, Florida 33446

For Respondent: Keith F. Backer, Esquire

Ryan D. Poliakoff, Esquire

Backer Aboud Poliakoff & Foelster, LLP

400 South Dixie Highway , Suite 420

Boca Raton, Florid a 33432

STATEMENT OF THE ISSUE

The issue is whether Respondent , Antiquers Aerodrome, Inc. ,

followed the statutory process to revive its restricted

covenants and properly submitted the revitalization package to

Department of Economic Opportunity accordi ng to c hapter 720,

Part III, Florida Statutes .

PRELIMINARY STATEMENT

On December 11, 2017, Respondent , Antiquers Aerodrome,

Inc. , submitted proposed revised declarations of covenants and

other governing documents to the Department of Economic

Opportunity ( " DEO " ) requesting revitalization approval . By

letter dated F ebruary 2, 2018, DEO advised Respondent that it

had determined that the submitted " documents revitalizing the

covenants and restrictions comply with the re quirements of

chapter 720, part III, Flo rida Statutes " and DEO approved the

revitalization .

On March 19, 2018 , Petitioners Stephen J. Byers ( " Byers " )

and Erich Nikorowicz ( " Nikorowicz " ) filed a Petition for

Administrative Proceedings with DEO challenging the validity of

the revitalization of t he restrictive convenants of Antiquers

Aerodrome, Inc.

On June 13, 2018, Respondent Antiquers Aerodrome, Inc. ,

filed Respondent ' s Antiquers Aerodrome, Inc. ' s Motion for a More

Definite Statement and Motion to Stay Discovery, which the

undersigned granted. Petitioners were ordered to file amended

petitions by July 30, 2018. After an extension of the filing

deadline, Petitioners filed timely amended petitions on

September 6, 2018.

On October 1, 2018, Petitioner Nikorowicz made a motion for

leave to file a second amended petition. On October 2, 2018,

Petitioner Byers joined the motion for leave to file a second

amended petition. On October 4, 2018, the undersigned granted

the motions and this case proceeded to final hearing on the

second amended petitions filed by Petitioners.

After several joint continuances for good cause , the final

administrative hearing was scheduled to start on March 14, 2019 ,

and the case proceeded as scheduled .

At hearing, Petitioners presented the testimony of four

witnesses: Peti tioners Nikorowicz and Byers; Daniel Riggin; and

Michael Downs. Respondent presented the testimony of one

witness: Michael Downs. Petitioners ' Exhibits numbered 1

through 11 were admitted into evidence. Respondent ' s Exhibits

numbered 1 through 6 were a dmitted into evidence.

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

DOAH on April 15, 2019. The parties submitted timely proposed

recommended orders on May 3, 2019 , which have been carefully

considered in the preparation of this Recommende d Order .

Unless otherwise noted, all statutory references are to the

Florida Statutes (2017).

FINDING S OF FACT

1. Respondent Antiquers Aerodrome, Inc. ( " association " ) is

a Florida for - profit corporation that serves as the governing

body for the fami ly residential community known as Antiquers

Aerodrome ( " community " ).

2. Petitioners own a combination of four lots in the

community.

3. The Marketable Record Title Act caused a lapse in the

governing documents for some or all of the lots in the

com munity.

4. On June 19, 2017, during an association meeting, the

association moved forward to revive the expired Restrictive

Covenants and Reservations ( " Declarations " ) and assembled an

organizing committee ( " committee " ) . Michael Downs ( " Downs " ) ,

Joh n Van Lennep , and Michael Helm were chosen by vote as the

committee members .

5. The committee used the law firm of Backer, Aboud,

Poliakoff, and Foelster, LLP ( " firm " ) , to assist them through

the revitalization process for the community .

6. Attorney Ry an Poliakoff oversaw Respondent ' s

revitalization process and Attorney Danielle Riggin ( " Riggin " )

worked to develop and manage the revitalization package , as well

as guide the committee through the process so that the

revitalization package could be submitt ed to DEO for approval .

7. Riggin prepared the revitalization packages for the

committee by collecting the statutorily required materials

including a graphic depiction, printing out the materials,

compiling the revitalization packages, laying out the indi vidual

package s on the firm ' s conference room table, taking her list of

the parcel owner s ' mailing address es , and preparing an address

label and envelope containing a revitalization package for each

and every lot owner from the community . The firm placed a

mailing label for each community parcel owner from the mailing

list on each envelope .

8. During the organization of the packages for mailing,

Downs reviewed the list of parcel owners that would receive the

package . T he committee members also reviewed the package and

determined it was correct.

9. Downs drafted a memo used as the cover letter for the

revitalization package . The firm edited the letter and Downs

signed off on the final edited version of the letter for

distribution in the package.

10. Riggin included the memo in each of the community

parcel owners ' revitalization package s .

11. On behalf of the committee, Riggin sent the

revitalization package by regular U.S. mail on August 2, 2017,

( " August 2 Notice " ) to the parcel owners explaining the

revitalization process and seeking approval from each community

parcel owner by consent. The memo specifically requested each

parcel owner to sign and return the consent. The memo stated:

It is critical that a majority of the lot

owners execute the e nclosed " Parcel Owner

Consent. " The law provides that the

enclosed materials must be provided to the

parcel owners not less that fourteen (14)

days before the time that the consent of the

parcel owners is sought by the Committee.

Presumably, that portion of the law is

intended to give the parcel owners time to

consider the effect of agreeing t o the

revival of the Governing D ocuments.

Consis tent with the requirement, the

C ommittee is not asking you to sign the

enclosed " Parcel Owner Consent " until after

th e expiration of fourteen days from your

receipt of these materials.

12. Petitioners did not receive the August 2 Notice.

Parcel Owner Consents

13. Parcel owners were instructed to mail o wner consents

back to the firm . Riggin personally reviewed each of the

original consents. Upon receipt, she compared the consents to

the firm ' s list of parcel owners to keep up with the receipts.

14. The consent of Daniel Trunk, as trustee of the

Daniel Junk Trust Under Agreement , dated July 26, 2013, was

signed and dated August 3, 2017.

15. Two consents of Mike Black, as Trustee of the Mike

Black Revocable Trust U nder Ag reement , dated December 22, 1997,

were both signed and dated August 5, 2017.

16. The c onsent of Amer Rustom , which was signed and dated

August 8, 2017, was returned to th e firm responding to the

August 2 Notice.

17. Riggin discovered two errors in the August 2 Notice.

The August 2 Notice was sent with a misspell ed parcel owner ' s

last name and the package failed to correctly indicate in the

cha rt of lots that a portion of one of the properties had been

conveyed .

18. Riggin corrected the misspelled last name and the

chart of lots to reflect the conveyance of the portion of the

property from one community neighbor to the other neighbor .

Riggin drafted, signed, and sent a second letter dated August 8,

2017 ( " August 8 Notice " ) , by U.S. mail to all the parcel owners

with Exhibit 1.

19. The August 8 Notice letter stated in part:

The Organizing C ommittee previously sent you

a R evival Documentation Package seeking your

approval to revitalize the Association ' s

governing documents . . . .

* * *

Enclosed with this correspondence is a

revised Exhibit " 1 " of the Revived

Restrictive Covenants and Reservations and

Other Governing Documents Relating to

Antiquers Aerodrome, Inc. ( " Exhibit 1 " ).

The enclosed Exhibit 1 corrects a

scrivener ' s error in the chart of lots and

Owners that was sent with the original

package. Please replace the chart that was

initially included as Exhibit " 1 " with the

enclose d revised Exhibit.

Please be sure that each parcel owner signs

the Parcel Owner Consent form that were

previously mailed and return s it to the

Revitalization Organizing Committee. . . .

The Parcel Owner C onsent is not being sought

any sooner than fourtee n (14) days from the

date you receive this correspondence with

the revised Exhibit 1.

20. The firm received nine more timely parcel owner

consents within 14 days of the August 8 Notice.

21. The consent of Luiz Claudio Maia Ferreira as Trustee

of the El aine Lignelli Irrevocable Trust dated September 28,

2012, was signed and dated August 10, 2017.

22. The consent of Richard Preiser and Peggy Sue Preiser

was signed and dated August 10, 2017.

23. The consent of William and Shireen Bower, as Trustees

of th e William and Shireen Bower T rust dated February 22, 2002 ,

was signed and dated August 11, 2011.

24. The consent of Thomas St out was signed and dated

August 14, 2017.

25. The consent of Brumardi Investments, LLC, which was

signed by Thomas Stout, was dat ed August 14, 2017.

26. The consent of Pamela and Robert Bakeris was signed

and dated August 15, 2017.

27. The consent of Mayda Ba lboa, as Trustee and not

individually or her Successors in Trust, and under the

Daoud Family Irrevocable Trust, dated May 1 9, 2014, and any

amendments or restatements there to, was signed and dated

August 15, 2017.

28. The consent of Michael Brito was signed August 21,

2017.

29. The consent of Patricia Mazzoni and William Mazzoni

was signed and dated August 15, 2017.

30. The remainder of the consents returned to the firm

were dated August 23, 2017; September 6, 2017; October 27

and 28, 2017; and November 15, 2017.

31. The last parcel consents received by the firm were all

dated November 15, 2017.

32. Petitioners did not re ceive the August 8 Notice.

33. Riggin learned that some community parcel owners

indicated that they still had not received the previously mailed

August 2 Notice and August 8 Notice.

34. Downs reviewed the address mailing checklist of parcel

owners to ver ify who had not returned their consents. He was

concerned about what to do about the nonresponses and the

persons that indicated they never received the prior notices.

35. To ensure all community parcel owners received the

package, o n November 25, 2017, Riggin resent revitalization

packages by certified mail ( " November 25 Notice " ) to the

18 parcel owners who had not returned a written consent.

36. Petitioners Nikorowicz and Byers were two of the

parcel owners the firm sent the revitalization package to b y

certified mail.

37. At the date of the hearing, Petitioners still had not

received the August 2 Notice, August 8 Notice, or November 25

Notice.

Graphic al Depiction

38. When preparing the revitalization packages, Riggin

included approximately 22 doc uments with similar representations

of the community property. Respondent ' s Exhibit AA010940, is

the image representation Riggin used as the graphical depiction

placed in the revitalization package to meet the statutory

mandate that a graphical depiction be included. The graphical

depiction adequately identified the property in the community

that is subject to the recorded covenants.

39. The graphical depiction contained in the

revitalization package a nd ultimately submitted to D E O for

approval was iden tical to the one included with the original

Declaration recorded in the public records of Palm Beach County

at Book 1651, page 151 on April 21, 1968.

40. The graphical depiction included a recorder ' s memo

that st ates, " Legibility of W riting, typing or pri nting

unsatisfactory in this document when received. "

41. The graphical depiction illustrates two roads, Sims

and Hagen, not subject to the covenants and adjacent to the

community. The current names of the roads are Lake Ida Road and

Hagen Ranch Road.

42 . The graphical depiction failed to delineate Oriole

Road on the fourth side of the property outside the community.

43. The graphical depiction was not to scale and does not

illustrate the shortening of the runway since origination in

1968.

44. The dra wing also neither ha s a legend nor legal

descriptions of the property lots in the community .

45. The graphical depiction fails to detail all the lot

lines, borders, and roads, or identify single lots from the

double lots . Additionally, the words are di fficult to read on

the drawing.

46. At the final hearing, Petitioner Byers made a vague

reference that s ome of the land on the graphical depiction is no

longer governed by the covenants because of an eminent domain

taking , but no competent substantial evi dence was provided to

demonstrate such an allegation.

Affidavit

47. Riggin was responsible for collecting all the

documents needed for Respondent ' s submission to DEO.

48. During the process of collecting the materials for

revitalization submission, Dow ns visited the firm several times

to review consents and other documents . He also had telephonic

meetings with the firm where the proposed revitalization

submission status was updated by the lawyers working on the

process .

49. The firm prepared the affid avit of verification and

emailed it to Downs for review.

50. In Down ' s affidavit, he attests to the following: the

requirements for reviving the Declaration have been satisfied;

the articles of incorporation, bylaws and the amendments to the

bylaws , and other documents are true and correct copies; written

consents of parcel owners are true and correct copies; and the

affidavit " is made with the intention of fulfilling the

requirements set forth in Sections 720.405 and 720.406, Fla.

Stat. "

51. Downs read the affidavit, agreed with its content, and

verified it with his signature. The affidavit was notarized and

given back to the firm to submit with the association ' s

revitalization package.

52. On December 11, 2017, the firm submitted the proposed

revise d declaration and other governing documents on behalf of

the association to the DEO to review and determine approv al or

disapprov al of the proposal.

53. On February 2, 2018, DEO ' s Bureau of Community

Planning and Growth determined that the association had com plied

with the requirements of c hapter 720, Part III, Florida Statutes

and the revitalization of the homeowners ' documents and

covenants were approved.

54. Petitioners contest DEO ' s approval. Since neither

Petitioner received any notice, they were not able to

participate in a discussion of the proposed revitalization with

other parcel owners before it was approved . Petitioners contend

that the process is tainted and contrary to the statutory

requirements for the Florida revitalization procedure .

CO NCLUSIONS OF LAW

55. DOAH has jurisdiction over the subject matter of this

proceeding and the parties thereto pursuant to sections 120.569

and 120.57(1), Florida Statutes.

56. The burden of pro of in this proceeding is on

Petitioners to prove by the prepo nderance of the evidence their

claim for relief in this matter. See Fla. Dep ' t of Transp. v .

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

" Preponderance of the evidence " is evidence that more likely

than not tends to prove the proposition set fo rth by the

proponent. Gross v. Lyons , 763 So. 2d 276 (Fla. 2000).

57. Petitioners have challenged generally two aspects of

the proposed revitalization , the process and submission. The

decision in this case ultimately turns on the proper application

of s ections 720.405 and 720.406 .

58. Section 720.405(5) provides in pertinent part:

A copy of the complete text of the proposed

revised declaration of covenants, the

proposed new or existing articles of

incorporation and bylaws of the association,

and a graph ic 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 gov erning documents is sought by

the organizing committee .

Presentment

59. Petitioners maintain that section 720.405(5) requires

receipt and Respondent failed to meet the presentment criteria

because all the parcel owners , including Petitioners , did not

rec eive the revitalization package information by mail. The

undersigned rejects Petitioners ' argument as an unreasonable

interpretation because there is simply no language within the

text of the statute which suggests mandatory receipt.

60. Even though " p resent " is not defined in

section 720.405, the L egislature specifically provided that " the

revived declaration shall be presented to all the affected

parcel owners by mail. " When looking at the actual language of

the statute and applying its plain meaning , the undersigned is

without the authority to construe an unambiguous statute in a

way which would extend or modify the terms of a statute. See

Holly v. Auld , 450 So. 2d 217, 219 (Fla. 1984) . Therefore, the

record is clear that Respondent complied with section 720.405(5)

by having its designe e, the firm, mail the information to the

approximate 37 parcel owners at least twice without a receipt,

and a third time by certified mail to the 18 parcel owners who

did not return the previously mailed consents.

Fourteen - Day Requirement

61. As stated above, section 720.405(5) also requires

" delivery not less than 14 days bef ore the time that consent

. . . is sought by the organizing committee. "

62. Petitioners contend in their Proposed Recommended

Order that the August 8 Noti ce failed to conform to

section 720.405(5) when the committee s olicited and received

13 consents from the August 8 Notice within a 14 - day period.

Petitioners further contend that the 13 consents were untimely

and should be removed from the 21 total consents that were sent

to DE O. Without the 13 consents, Petitioners assert Respondent

fails to have a majority of consents needed for approval of the

proposed revitalization.

63. Even though section 720.405(5) is poorly worded, it

provides that the committee has to give at least 14 days ' notice

before the committee ' s action. The statute does not prohibit

acceptance within the 14 days. Therefore, parcel owners can

sign and return their consents upon their decision being made

within the 14 - day period. The u nrebutted evidence shows the

13 parcel owner consents were timely. Therefore, Re spondent did

not violate the 14 - day statutory requirement of section

720.405(5).

Graphical Depiction

64. Petitioners raised a number of objections to the

graphical depiction utilized in the revitaliz ation package and

submitted to DEO. Although the drawing is not to scale, does

not have a legend, is hard to read, has an original recorded

stamp " illegible, " names roads that have since been renamed,

fails to show details of the borders, identifies roads outside

the community, and does not have an updated shortened runway,

section 720.405(5) does not require any of those details to be

in a graphical depiction.

65. The general rule is that where the legislature has not

defined words or phrases used in a statute, they must be

" construed in accordance with [their] common and ordinary

meaning. " Donato v. AT&T , 767 So. 2d 1146, 1154 (Fla. 2000).

" [T]he plain and ordinary meaning of [a] word can be ascertained

by reference to a dictionary. " Green v . State , 604 S o. 2d 471,

473 (Fla. 1992). The dictionary defines the adjective

" graphical " as " written or transmitted in a (specified) way . "

Merriam - Webster Dictionary , "graphical," https://www.merriam

- webster.com/dictionary/graphical (last visited June 18 , 201 9).

Additionally, " depiction " is defined as " a representation in

words or images of someone or something. " Merriam - Webster

Dictionary , "depiction," https://www.merriam - webster.com/

dictionary /depiction (last visited June 18, 2019). In this

cause, Respon dent provided representation of the community as an

image that identified the property that is going to be subject

to the recorded covenants. Accordingly, Respondent met the

statutory guidelines by providing a drawing, although imperfect,

of what the comm unity looks like that is going to be governed by

the revised Declarations.

Affidavit

66. Section 720.406(1) provides :

720.406 Department of Economic Opportunity;

submis sion; review and determination.

(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 its 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 submission to the department

must include:

(a) The full text of the proposed revived

declaration of covenants and articles of

incorporation and bylaws of the homeowners '

association;

(b) A verified copy of the previous

declaration of covenants and other previous

governing documents for the communit y,

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 in 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 owners, verified

copies of the notice of th e 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 set

forth in s. 720.404 have been satisfied[.]

67. Petitioners further assert that Resp ondent ' s DEO

submission failed to comply with the statutory requirements of

section 720.406(1) because Downs lacked personal knowledge of

the affidavit ' s contents and the submission was more than

60 days after consents were signed. Specifically, Petitione rs

contest that since Downs never possessed the consents and the

revitalization process was delegated to the firm, Downs lacked

personal knowledge of the affidavit ' s content.

68. In this matter, the firm served as the committee ' s

agent. An attorney is ge nerally viewed as the agent of his

client. An act done by an agent on behalf of the client within

the scope of the agency is not the act of the attorney, but of

the client by whose direction it is done . Johnson v. Estate of

Fraedrich, 472 So. 2d 1266, 19 85 (Fla. 1st DCA 1985).

69. In addition, the competent evidence taken as a whole

demonstrates that the firm kept Downs abreast of the process.

Downs made several visits to the office where he reviewed

revitalization information and had multiple telephone meetings

with the firm for updates. Downs even credibly testified during

hearing that he was aware of what he verified in the affidavit.

The affidavit tracks section 720.406(1). Accordingly, the

affidavit complied with the verification mandate of

sectio n 720.406(1).

Sixty - Day Prohibition

70. As stated above, sectio n 720.406(1) also requires a

60 - day restriction.

71. Petitioners claim that Respondent submitted the

revitalization package to DEO more than 60 days after the

consents were signed , contrar y to section 720.406(1), which

requires the committee to submit the proposed revitalization

package to DEO no later than 60 days after the revitalization

package is approved by the affected parcel owners. Petitioners

focus on the three - and - a - half month pe riod to which the consents

were collected in this cause and contend that starting to

collect consents in August and the submission taking place in

December is well beyond the 60 days.

72. The undersigned is not persuaded by Petitioners '

calculations and t imeline. Section 720.406(1) specifically

provides language establishing the date that triggers the time

to start counting the 60 days. It is " upon approval. " In this

case, approval was by consent and the last consents that

completed the majority approva l process are dated November 15,

2017. Counting backwards 60 days from the December submission

date, as required by the statute is October 12, 2017. The last

consents were received by the firm dated November 15, 2017, a

date between October 12, 2017, and December 11, 2017.

Accordingly, the revitalization su bmission was well within the

60 - day mandated deadline and R espondent complied with

section 720.406(1).

73. In summary, based on the findings of fact herein,

Pet itioners have failed to meet their burde n in this matter and

DEO ' s determination is valid.

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 dismissing Petition ers ' second

amended pet itions and affirming the approval of Respondent ' s

revival.

DONE AND ENTERED this 19th day of June , 2019 , in

Tallahassee, Leon County, Florida.

S

JUNE C. MCKINNEY

Administrative Law Judge

Division of Administrative Hearing s

The DeSoto Building

1230 Apalachee 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 19th day of June , 2019 .

COPIES FURNISHED:

Stephen J. Byers

7396 Skyline Drive

Delray Beach, Florida 33446

(eServed)

Ryan D. Poliakoff, Esquire

Backer Aboud Poliakoff & Foelster, LLP

400 South Dixie Highway , Suite 420

Boca Raton, Florida 33432

(eServed)

Kevin P. Mason, Esquire

KPM Law Firm, P.A .

1900 Glades Road , Suite 270

Boca Raton, Florida 33431

(eServed)

William Chorba, General Counsel

Department of Economic Opportunity

Caldwell B ui ld ing , MSC 110

107 East Madison Street

Tallahassee, Florida 32399 - 4128

(eServed)

Ken Lawson, Executive Dir ector

Department of Economic Opportunity

Caldwell Building

107 East Madison Street

Tallahassee, Florida 32399 - 4128

(eServed)

Stephanie Webster, Agency Clerk

Department of Economic Opportunity

Caldwell Building

107 East Madison Street

Tallahassee, Florida 32399 - 4128

(eServed)

Keith F. Backer

Backer Aboud Poliakoff & Foelster, LLP

400 South Dixie Highway, Suite 420

Boca Raton, Florida 33432

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.