18-002776PL Department Of Business And Professional Regulation, Regulatory Council Of Commmunity Association Managers vs. James Michael Rossi Status: Closed Recommended Order on Thursday, September 27, 2018.

Summary: The Department did not prove by clear and convincing evidence that Respondent failed to maintain association records or fulfill his duties to the association in good faith.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND

PROFESSIONAL REGULATION,

REGULATORY COUNCIL OF COMMUNITY

ASSOCIATION MANAGERS,

Petitioner,

vs. Case No. 18 - 2776PL

JAMES MICHAEL ROSSI,

Respondent.

_______________________________ /

RECOMMENDED ORDER

A final hearing was held in this case on August 22, 2018,

in Tallahassee, Florida, before Suzanne Van Wyk, Administrative

Law Judge for the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Wayne Mitchell, Esquire

Michelle Snoberger, Qualified

Representative

Department of Business and Professional

Regulation

2601 Blair S tone Road

Tallahassee, Florida 32399 - 2202

For Respondent: H. Richard Bisbee, Esquire

Law Office of H. Richard Bisbee, P.A.

1882 Capital Circle Northeast, Suite 206

Tallahassee, Florida 32308

STATEMENT OF THE ISSUE S

Whether Respondent, James Michael Rossi, violated section

468.436(2)(b)2., Florida Statutes (2015), 1/ as alleged in the

Amended A dministrative Complaint; and, if so, what penalty

should be imposed.

PRELIMINARY STATEMENT

On May 9, 2018, the Department of Business and Professional

Regulation (Department) served an Administrative Complaint upon

Respondent alleging that Respondent had v iolated statutory

provisions governing community association managers;

specifically, that Respondent failed to maintain official

association records and comply with professional and statutory

standards in performance of community association management

ser vices. Respondent timely requested a formal hearing to

dispute the allegations, which was forwarded to the Division of

Administrative Hearings (Division) and scheduled by the

undersigned for final hearing on August 2, 2018.

On June 4, 2018, the Department moved to amend its

Administrative Complaint, which the undersigned denied. The

undersigned granted the DepartmentÓs Second Amended Motion for

Leave to Amend Complaint on June 14, 2018, and the Amended

Administrative Complaint was filed on June 21, 2018.

The undersigned granted a stipulated request to continue

the final hearing from August 2 to August 9, 2018, due to the

unavailability of a witness. The case was subsequently

consolidated with Case No. 18 - 3817RU, a n unadopted rule

challenge in which Respon dent alleged the Department relied on

an unadopted rule in pursuing its Amended Administrative

Complaint against Respondent. The cases were initially

consolidated, and the case continued again to August 22, 2018,

to allow the parties time to prepare the c onsolidated case for

final hearing.

The Department subsequently moved to dismiss the rule

challenge, which was denied with leave to amend. Respondent

filed an amended rule challenge petition on August 10, 2018.

The Department filed a Motion to Dismiss, w hich was granted and

the cases were severed. RespondentÓs August 13, 2018 Motion for

a Brief Continuance of the Final Hearing, the basis of which was

counselÓs own trial calendar, was denied.

The docket reflects a number of pre - hearing discovery

disputes which twice required the undersigned to grant the

DepartmentÓs Motions to Quash Improperly Issued Subpoenas and

issue protective orders. The undersigned took pains to remind

counsel of their professional obligations under the Rules of

Professional Conduct , as well as the Florida BarÓs

Professionalism Expectations. 2/

The final hearing commenced as rescheduled on August 22,

2018, in Tallahassee, Florida. The Department offered the

testimony of Amber Beasley, Dep artment Investigator

Specialist II; Valeria Le venseller, Department Investigator

Supervisor; Christopher Arnold; Amy Davis; George Korinsky; and

Dawn Warren, who was accepted as an expert in Community

Association Management. Petitioner proffered the testimony of

Kevin Obos, an attorney from whom Peti tioner sought opinion

testimony which was disallowed, as well as Exhibit P9.

PetitionerÓs Exhibits P1, P1a, P2 through P7, P8 as amended,

P10 as amended, and P14 through P17 were admitted in evidence.

Respondent offered the testimony of Gerald OÓReilly an d

Dawn Warren, and testified on his own behalf. RespondentÓs

Exhibit R28 was admitted in evidence.

The two - volume Transcript of the proceedings was filed on

September 5, 2018. The parties timely filed Proposed

Recommended Orders on September 17, 2018, wh ich have been

considered by the undersigned in preparing this Recommended

Order.

FINDING S OF FACT

1. The Department is the state agency charged with

licensing and regulating Community Association Managers (CAMs),

pursuant to sections 468.433 and 486.436, Florida Statutes,

respectively.

2. At all times material hereto, Respondent was a licensed

Florida CAM, having been issued CAM license number 35631.

3. At all times relevant hereto, Respondent was the CAM

for Ocean Villa Condominium Association, Inc. (Oc ean Villa). At

times during RespondentÓs tenure as Ocean VillaÓs CAM,

Respondent provided CAM services to other associations.

4. During the relevant time period, Ocean Villa did not

establish a credit card in its name. RespondentÓs practice was

to purch ase goods for Ocean Villa using his personal credit

card, and reimburse himself via check from the Ocean Villa

checking account. Respondent submitted his credit card

statements and some receipts as backup for the reimbursement

checks.

5. In December 2016 , Ocean Villa obtained a debit card in

its name and Respondent ceased the practice of making purchases

on behalf of Ocean Villa using his personal credit card.

6. In the Amended Administrative Complaint, the Department

alleges as follows:

On or about the following dates: May 2014;

June 2014; March 2015; May 2015; and

September 2015, Respondent wrote checks to

himself from the AssociationÓs checking

account, for which Respondent failed to

maintain and/or provide the corresponding

receipts or invoices subst antiating the

total amount for each of those checks.

7. The parties stipulated to introduction of seven checks

Respondent wrote to himself allegedly in reimbursement for

expenditures made by him on behalf of Ocean Villa.

8. Check No. 1989 was written on May 13, 2014, in the

amount of $519.00. The check stub indicates the payment was

made for a Ðpaint striper roll master,Ñ a piece of equipment

used in striping parking lots.

9. As backup for the reimbursement, Respondent submitted

an email from sales@p aintsprayersplus.com to Respondent

confirming an order placed May 13, 2014, for ÐNewstripe

Rollmaster 1000 Parking Lot/Warehouse Line StriperÑ for a charge

of $519.00.

10. Under Ðpayment information,Ñ the email reads, ÐCREDIT

(Denied).Ñ The email further reads, ÐYour Credit Card payment

has been denied. If you do not have a customer account, please

contact [e-mail] for assistance.Ñ

11. Respondent also introduced his June 2014 U . S . Bank

credit card statement, which includes a charge on May 15, 2014,

to Paintsprayersplus in the amount of $519.00.

12. Respondent wrote Check No. 2043 on June 23, 2014, in

the amount of $362.98. The check stub describes the purpose as

ÐReimburse Expenses.Ñ

13. As backup for the reimbursement, Respondent produced

his June 2014 U . S . Bank credit card statement. The statement is

redacted to exclude personal charges. The statement includes

five separate charges at Office Depot, for a total amount of

$147.64; a charge of $9.00 for conference call services; th e

charge of $519.00 from P aintsprayersplus; and a charge of

$207.00 from Newstripe, Inc.

14. Respondent testified the Newstripe, Inc. charge was

for the paint used to restripe the parking lot at Ocean Villa.

15. The redacted credit card statement contain s

RespondentÓs handw ritten note next to the P aintsprayersplus

charge of $519.00 ÐPO 5 - 13 - 14 Ck# 1989 , Ñ indicating he

previously reimbursed himsel f for that charge via Check

No. 1989.

16. The redacted credit card statement also contains

RespondentÓs handwr itten note totaling t he unredacted charges

to $881.98, subtracting the $519.00 previously reimbursed for

the restriper, leaving a remainder of $362.98 to be reimbursed.

That amount matches the amount Respondent reimbursed himself via

Check No. 2043.

17. Respondent wrote Check No. 2361 on March 6, 2015, in

the amount of $108.70. The check stub lists two invoices both

dated March 6, 2015: $10.72 for ÐPhone cord for conference

calls,Ñ and $97.98 for ÐCopy paper and stamps.Ñ

18. As backup for the reimburse ment, Respondent produced a

receipt from Office Depot dated March 3, 2015, and a receipt

from Home Depot dated February 26, 2015.

19. The Home Depot receipt is for a Ð50Ó white phone line

cordÑ at $9.97, for a total of $10.72 , after tax.

20. The Office D epot receipt lists three separate charges:

one for two boxes of 9 x 11 inch paper at $53.99 each;

two quantities of U.S. postage stamps at $49.00 e ach; and

another box of 9 x 11 inch paper at $53.99. All three boxes of

paper were discounted $8.00 each, a nd the total, after tax, for

the purchased items was $195.96.

21. Respondent hand wrote on the receipt after the total,

Ð/2 97.98 Half to OV & Half to TP.Ñ Respondent testified,

credibly, that the supplies were purchased for both Ocean Villa

and a second association for which he served as CAM.

22. Respondent wrote Check No. 2371 on March 19, 2015, in

the amount of $554.51. The check stub notes the purpose was

reimbursement for three separate invoices dated March 19, 2015,

for Ðoffice supplies.Ñ The amou nts corresponding with each

invoice are $120.34, $386.28, and $47.89, respectively.

23. As backup for the reimbursement, Respondent introduced

his redacted U . S . Bank credit card statements for January and

February 2015, as well as an Office Depot receipt dated March 7,

2015.

24. The February 2015 bank statement contains the

following unredacted charges:

01/16 Office Depot #2821 $24.48

01/18 Conf. Call Services $9.00

02/03 Office Depot #2821 $83.07

02/09 USPS $3.79

25. The total of the unred acted charges is $120.34, the

same amount as the first invoice for office supplies noted on

the check stub for February 10, 2015.

26. The January 2015 bank statement contains the following

unredacted charges:

12/10 Office Depot #2821 $28.20

12/11 USPS $134.33

12/15 Office Depot #2821 $49.00

12/24 Conf. Call Services $9.00

01/02 Lowes #02367 $22.00

01/ 0 6 Office Depot #2821 $143.75

27. The charges total $386.28, the same amount as the

second invoice for office supplies noted on the check stub for

January 12, 2015.

28. The March 7, 2015 rece ipt from Office Depot lists

two charges: No. 8 Envelopes at $36.99, and two of another item

(unidentifiable based on the receipt) at $3.99 each for a total

of $7.98. The total purchase, after tax, wa s $47.89, the same

amount as the third invoice for office supplies noted on the

check stub.

29. Respondent wrote Check No. 2378 on March 20, 2015, in

the amount $359.40. The check stub describes the purpose as

ÐMiscellaneous.Ñ

30. As backup documentat ion for the reimbursement,

Respondent introduced his March 2015 U.S. Bank credit card

statement, which lists the following unredacted charges:

02/19 Conf. Call Services $9.00

02/24 USPS $12.35

02/25 Amazon Marketplace $113.56

02/27 Amazon Marke tplace $176.60

03/07 Office Depot $47.89

31. Respondent testified, credibly, that the Amazon

Marketplace charges were for personalized uniform jackets for

Ocean Villa maintenance and security personnel, purchased at the

direction of the Board.

32. The unredacted charges total $359.40, the same amount

as reimbursement Check No. 2378.

33. Respondent wrote Check No. 2459 in the amount of

$2,364.74 on May 22, 2015. The check stub lists nine separate

purchases in April and May of 2015, including binder s for Ocean

VillaÓs financial statements, an external hard drive, file

folders, sun umbrellas and bases, and postage for certified

mail.

34. As backup in support of the reimbursements, Respondent

introduced nine receipts from a variety of vendors, includi ng

Office Depot, Home Depot, WalMart, SamÓs Club, and USPS.

35. The last check at issue is Check No. 2593 which

Respondent wrote on September 24, 2015, in the amount of

$471.50. The check stub lists four separate invoices for

postage.

36. As backup do cumentation for the reimbursement,

Respondent introduced four separate USPS receipts which match

the amount listed on the check stub for each invoice, and which

total $471.50.

37. In this case, the Department charges Respondent with

two counts pursuant t o section 468.436(2)(b)2., which subjects a

licensee to discipline for violating any rule adopted by the

Department.

Count I

38. In Count I of the Amended Administrative Complaint,

the Department alleges Respondent violated Florida

Administrative Code Rul e 61E14 - 2.001(3)(d), which requires

maintenance of the Ðofficial recordsÑ of an association as

required by section 718.111(12) , Florida Statutes .

Specifically, the Department charges Respondent with failure to

maintain Ð[a]ccurate, itemized, and detailed records of all

receipts and expenditures,Ñ as required by section 718.111(12).

39. The Department introduced the testimony of Dawn

Warren, a 16 - year licensed CAM, who has been employed as CAM for

two separate condominium associations, served as presiden t of a

condominium association complex for 15 years, and previously

served on the Regulatory Council of Community Association

Managers for eight years (three years as Chair).

40. Through Ms. WarrenÓs testimony, the Department

attempted to establish that a CAM must keep vendor receipts of

each purchase in order to comply with the statutory requirement

to maintain Ð[a]ccurate, itemized, and detailed records of all

receipts and expenditures.Ñ Ms. Warren testified consistently

that the vendor receipt was the only appropriate record of what

was purchased by, or on behalf of, the association.

41. The Department admitted, through Ms. WarrenÓs

testimony, that the backup documentation for Check Nos. 2361,

2459 , 3/ and 2593 were appropriate itemized records of what was

purchased on behalf of the association.

42. The DepartmentÓs allegations on Count I can be

narrowed to whether Respondent failed to maintain Ð[a]ccurate,

itemized, and detailed records of all receipts and

expenditures,Ñ based on the records associated with four checks:

1989, 2043, 2371, and 2378.

43. Ms. WarrenÓs opinion that itemized receipts for each

purchase are required hinges on her interpretation of the

statute, summarized as follows:

Well, right in 718, it does say itemized

receipts and expend itures. So an itemized

receipt would be something thatÓs itemized,

which you Î which I and anyone that I know

thatÓs a CAM turns in a receipt, and it

itemizes what they bought. [ 4/ ]

44. Despite Ms. WarrenÓs depth of experience as a CAM, her

testimony was not persuasive. Ms. WarrenÓs read of the statute

is incorrect. It does not read, Ðitemized receipts,Ñ it reads,

Ðitemized and detailed records of all receipts and

expenditures.Ñ

45. Further, Ms. WarrenÓs opinion that the vendor receipt

is required beca use it is the only record of what was actually

purchased, is not credible. With regard to Check No. 2361,

Ms. Warren testified that, based on the receipt, she could

identify that the three purchases were, in order, envelopes,

postage, and paper. The firs t and third items on the receipt

have the exact same produc t ID and description -- 196517 PPR,X -

9.11Ñ .10. Yet, Ms. Warren testified that the first charge on

the receipt was for No. 10 envelopes, while the last item on the

receipt was for paper. She subseq uently testified as to the

first charge, ÐI donÓt know what it is exactly.Ñ

46. Ms. WarrenÓs opinion that the vendorÓs itemized

receipt is the only allowable record of expenditures, because it

is Ðthe record of what was purchased,Ñ was undercut by her ow n

inability to identify from the vendor itemized receipt

specifically what was purchased on behalf of the association.

47. The DepartmentÓs focus on receipts is misplaced. As

correctly identified by Respondent, the items purchased by him

on behalf of Oc ean Villa are expenditures , not receipts. The

statute requires Ocean Villa, through its CAM, to maintain

Ðitemized and detailed records of all . . . expenditures.Ñ

48. Respondent testified, credibly, that he maintains

copies of all Ocean Villa expenditur es organized by both date

(month, day, and year) and by vendor, as well as QuickBooks

records of all Ocean Villa documents.

49. Further, with the e xception of Check Nos. 2043

and 2378, the checkstubs entered into evidence are itemized as

to the date of purchase, the amount paid, and a description of

the item purchased. These are detailed, itemized records of the

expenditures made.

50. The check stub for Check No. 2043 lists an invoice

dated June 23, 2014, in the amount of $362.98 to ÐReimburse

Expenses ,Ñ followed up with a redacted credit card statement

listing five separate Office Depot charges, a charge from

Newstripe, Inc., and a $9.00 charge for conference call

services.

51. At hearing, it was established that the $9.00 charge

for conference call s ervices was a recurring monthly charge to

the association. It was also established that the $200 .00

charge to Newstripe, Inc., was for the paint used to restripe

the Ocean Villa parking lot. The record does not support a

finding of what specifically was purchased at Office Depot for a

total of $146.74.

52. The check stub for Check No. 2378 lists one invoice in

the amount of $359.40 for ÐMiscellaneousÑ expenses, to which

Respondent attached his unredacted March 2015 credit card

statement. The statement l ists unredacted charges of $9.00 for

conference call services, $12.35 for postage, $47.89 for

purchases at Office Depot, and the Amazon Marketplace charges

for uniform jackets totaling $290.16. Respondent introduced the

March 7, 2015 Office Depot itemized receipt showing two

purchases: one for envelopes at $36.99, and one for an

unidentified product 5/ at $3.99 each, for a total of $47.89.

53. The record does not support a finding of what

specifically was charged at Office Depot for $3.99 x 2.

54. The De partment did not prove Respondent failed to

maintain Ð[a]ccurate, itemized, and detailed records of receipts

and expenditures.Ñ At most, the Department proved that

Respondent reimbursed himself, through Check Nos. 2043 and 2378,

for expenditures totaling $154.72 without a written itemized

account of what was purchased.

Count II

55. In Count II of the Amended Administrative Complaint,

the Department alleges Respondent violated r ule 61E14 -

2.001(2)(c), which requires a CAM to Ðperform all community

associati on management services . . . to professional standards

and to the standards established by Section 468.4334(1), F.S.Ñ

56. The Department argues Respondent failed to meet

undefined Ðprofessional standardsÑ by reimbursing himself for

expenses incurred on b ehalf of the association without itemized

vendor receipts for each expense.

57. Ms. Warren testified repeatedly that Respondent did

not submit itemized receipts to support reimbursement checks to

himself for purchase s made on behalf of Ocean Villa. She

e xpressed her opinion that a CAMÓs reimbursement records should

include the itemized receipts for purchases for which

reimbursement is sought, and that, in her 15 years as an

association president, she would never sign a check to reimburse

a CAM without the itemized receipt for the purchases made.

58. Ms. WarrenÓs opinion was based solely on her practice

and not on any standards or guidelines established by a

professional organization. Ms. WarrenÓs testimony did not

establish that her practice constituted recognized Ðprofessional

standards,Ñ because she was not able to identify at hearing the

specific items purchased based on the Office Depot itemized

receipt.

59. Section 468.4334(1) requires, in pertinent part, as

follows:

A [CAM] and a [CAM] firm shall discharge

duties performed on behalf of the association

as authorized by this chapter loyally,

skillfully, and diligently; dealing honestly

and fairly; in good faith; with care and full

disclosure to the community association;

accounting for all funds; and not charging

unreasonable or excessive fees.

60. In an apparent effort to prove Respondent violated the

specific professional standards captured in section 468.4334(1),

the Department introduced RespondentÓs management services

contracts with Ocean Vill a, and testimony regarding his

performance of his duties pursuant to the contracts.

61. The testimony suggested that the checks at issue were

reimbursement for expenses Respondent did not have Board

approval to incur. For example, Christopher Arnold, who became

Ocean Villa President in October 2017, testified that Respondent

was limited by the contract to i ncur expenses for repairs up

to $500 .00 without Board approval. Mr. Arnold argued that, as

none of the expenditures for which Respondent reimbursed hi mself

were for repairs, Respondent did not deal honestly and fairly,

or with good faith, in reimbursing himself for the expenses

because he did not have Board approval to incur them.

62. Mr. ArnoldÓs testimony was neither credible nor

persuasive. Paragra ph 4 of RespondentÓs contract in effect

beginning in June 2015, titled ÐReimbursement of Expenses,Ñ

requires the association to reimburse the CAM for costs incurred

Ðin providing services, material, and supplies to, or for the

direct benefit of,Ñ the assoc iation. Paragraph 4 contains no

monetary limit on the amount of costs t o be reimbursed. In

contrast, p aragraph 5.H. of the contract, upon which Mr. Arnold

relied, requires the CAM to make repairs and perform other

functions in order to Ðmaintain and oper ate the Association,Ñ

and limits expenditures for repairs to $500 without Ðprior

consent from the BoardÓs representative unless it is a budgeted

item.Ñ

63. The Department did not introduce any credible evidence

that RespondentÓs reimbursements at issue in this case were

contrary to any term of RespondentÓs contract with Ocean Villa.

64. Moreover, RespondentÓs prior contract with Ocean

Villa -- which preceded the June 2015 contract -- required the

association to reimburse the CAM Ðfor all reasonable expenses

i ncurred by the [CAM] in the course of its engagement.Ñ The

Department did not introduce any evidence that RespondentÓs

reimbursements were not for Ðreasonable expenses incurred.Ñ The

record es tablished that neither the Ocean Villa Board nor its

P resident in office d uring 2014 and 2015 ever questioned

RespondentÓs reimbursements.

65. The Department did not prove RespondentÓs

reimbursement of expenses by Check Nos. 2361, 2371, 2378, 2459,

and 2593, 6/ violated any professional standard, including those

set forth in section 468.4334(1).

CONCLUSIONS OF LAW

66 . The Division has jurisdiction over both the subject

matter of, and the parties to, this proceeding under the

provisions of s ections 120.569 and 120.57(1), Florida Statutes

(2018) .

67 . This is a procee ding in which Petitioner seeks to

discipline RespondentÓs license as a CAM . Because disciplinary

proceedings are considered to be penal in nature, Petitioner is

required to prove the allegations in the Administrative

Complaint by clear and convincing evid ence. DepÓt of Banking &

Fin. v. Osborne Stern and Co. , 670 So. 2d 932 (Fla. 1996);

Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

68 . As stated by the Florida Supreme Court:

Clear and convincing evidence requires that

the evidence must be found to b e 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.

In re Davey , 645 So. 2d 398, 404 (Fla. 1994) (quoting, with

approval, Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla . 4th DCA

1983)); see also In re Henson , 913 So. 2d 579, 590 (Fla. 2005).

ÐAlthough this standard of proof may be met where the evidence

is in conflict, it seems to preclude evidence that is

ambiguous.Ñ Westinghouse Elec. Corp., Inc. v. Shuler Bros.,

Inc . , 590 So. 2d 986, 989 (Fla. 1st DCA 1991).

69 . Section 468.436 is penal in nature, and must be

strictly construed, with any ambiguity construed against

Petitioner. Penal statutes must be construed in terms of their

literal meaning, and words used by th e Legislature may not be

expanded to broaden the application of such statutes. Elmariah

v. DepÓt of Bus. & ProfÓl Reg. , 574 So. 2d 164, 165 (Fla. 1st

DCA 1990); see also Beckett v. DepÓt of Fin. Serv s. , 982 So. 2d

94, 100 (Fla. 1st D CA 2008); Whitaker v. DepÓt of Ins. , 680 So.

2d 528, 531 (Fla. 1st DCA 1996); Dyer v. DepÓt of Ins. & Treas . ,

585 So. 2d 1009, 1013 (Fla. 1st DCA 1991).

70 . Moreover, the allegations against Respondent must be

measured against the l aw in effect at the time of the commission

of the acts alleged to warrant imposition of discipline.

McCloskey v. DepÓt of Fin. Servs. , 115 So. 3d 441 (Fla. 5th DCA

2013).

71. The Department seeks to discipline Respondent

pursuant to section 468.436(2)(b) 2., which provides that

Ðviolation of any lawful . . . rule . . . adopted by the

department or the councilÑ constitutes grounds for disciplinary

action.

Count I

72. The Department alleges Respondent violated r ule

61E14 - 2.001(3)(d) by Ðfail[ing] to maintai n the records of a

community association manager or management firm or the

official records of any applicable association, as required by

[s]ection 718.111(12).Ñ

73. The Department did not carry its burden to prove, by

clear and convincing evidence, that Respondent failed to

maintain Ðaccurate, itemized, and detailed records of all

receipts and expendituresÑ for Ocean Villa. The evidence did

not leave the undersigned with a firm conviction in her mind

that RespondentÓs recordkeeping on behalf of Ocean Vil la failed

to meet the requirements of 718.111(12)(a)11.a.; thus the

Department did not prove Respondent violated rule 61E14 -

2.001(3)(d).

73. Because the Department did not prove Respondent

violated the rule, the Department did not establish grounds for

di sciplinary action against Respondent pursuant to section

468.436(2)(b)2.

Count II

74. The Department alleges Respondent violated rule 61E14 -

2.001(2)(c) by Ðfailing to perform all [CAM] services required by

the licenseeÓs contract to professional standard s and to

standards established by Section 468.4334(1), F.S.Ñ

75. The Department did not establish by clear and

convincing evidence that Respondent failed to account for all

Ocean Villa funds, or otherwise fail to discharge his duties

loyally, skillfully, diligently; dealing honestly and fairly; and

in good faith; with care and in full disclosure, to Ocean Villa.

76. Because the Department failed to prove Respondent

violated 468.4334(1), the Department did not prove by clear and

convincing evidence Respond ent violated rule 61E14 - 2.001(2)(c).

77. Because the Department did not prove Respondent

violated the rule, the Department did not establish grounds for

disciplinary action against Respondent pursuant to

468.436(2)(b)2.

RECOMMENDATION

Based upon the foreg oing Findings of Fact and Conclusions

of Law, it is RECOMMENDED that the Department of Business and

Professional Regulation dismiss DBPR Case No. 2017 - 043696

against James Michael Rossi.

DONE AND ENTERED this 27th day of September , 2018 , in

Tallahassee , Leon County, Florida.

S

SUZANNE VAN WYK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

w ww.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 27th day of September , 2018 .

ENDNOTE S

1/ Except as otherwise provided herein, all references to the

Florida Statutes are to the 2015 version, which was in effect

when the most recent alleged statutory violations occurred.

Some violations are alleged to have occurred when the 2013

and 2014 version of the statutes were in effect, but there is no

substantive difference between the 2013, 2014, and 2015 versions

of sec tions: 468.436(2)(b)2. and 718.111(12)(a)11.a. Section

468.4334(1) was not promulgated until 2014 and cannot form the

basis for discipline for alleged violations occurring prior to

July 1, 2014.

2/ If counsel for the parties had taken as much time in

pr ofessional communications with one another as they did

preparing motions to compel and q uash , and responses thereto,

many of the discovery disputes could have been avoided, or at

least resolved without the undersignedÓs intervention.

3/ This admission was made with one caveat: the SamÓs Club

receipt for umbrellas and bases dated May 12, 2015, was $50 less

than the amount reimbursed for that purchase. As explained by

Ms. Warren, the receipt is insufficient documentation to support

that reimbursement becau se it is less than the reimbursed

amount.

Respondent testified, credibly, that the ov erpayment was an

honest mistake -- the receipt is for $521.36 and he listed $571.36

on the check stub. Respondent subsequently reimbursed Ocean

Villa $50 for the overpaymen t.

4/ T.192:6 - 10.

5/ Ms. Warren testified that the March 7, 2015 receipt was a

sufficient record of the items purchased to justify

reimbursement to Respondent. Ms. Warren was not asked to, and

did not, identify what items were purchased based on the

re ceipt. There is insufficient evidence in the record to find

what specifically was purchased in addition to the envelopes.

6/ Check Nos. 1989 and 2043 are not included in this list

because they were written prior to July 1, 2014, the date on

which section 468.4334 took effect. Respondent cannot be

disciplined for failing to comply with Ðprofessional standardsÑ

that were not in effect when those checks were written.

COPIES FURNISHED:

H. Richard Bisbee, Esquire

Law Office of H. Richard Bisbee, P.A.

Suite 206

1882 Capital Circle Northeast

Tallahassee, Florida 32308

(eServed)

Wayne Mitchell, Esquire

Department of Business

and Professional Regulation

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

(eServed)

Michelle Snoberger

Department of Busine ss

and Professional Regulation

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

Jason L. Maine, General Counsel

Department of Business and

Professional Regulation

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

(eServed)

Robyn Bari neau, Executive Director

Division of Professions

Regulatory Council of Community Association

of Managers

Department of Business and Professional Regulation

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

(eServed )

NOTICE OF RIGHT TO SUBMIT EXCEP TIONS

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.