18-005526F Golden Horn Condominium Association, Inc. vs. Department Of Business And Professional Regulation, Division Of Florida Condominiums, Timeshares And Mobile Homes Status: Closed DOAH Final Order on Tuesday, January 15, 2019.

Summary: Association is not entitled to fees and costs under section 57.105. Association did not prevail in underlying case and the Association failed to demonstrate that the Division's claims were not supported by the material facts or application of law.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GOLDEN HORN CONDOMINIUM

ASSOCIATION, INC.,

Petitioner,

vs. Case No. 18 - 5526F

DEPARTMENT OF BUSINESS AND

PROFESSIONAL REGULATION,

DIVISION OF FLORIDA

CONDOMINIUMS, TIMESHARES AND

MOBILE HOMES,

Respondent.

_______________________________/

FINAL ORDER

This matter came before Administrative Law Judge Darren A.

Schwartz of the Division of Administrative Hearings for final

hearing on November 30, 2018, by video teleconference with sit es

in Tallahassee and Lauderdale Lakes, Florida.

APPEARANCES

For Petitioner: Joseph Pustizzi, Esquire

Law Office of Joseph Pustizzi, P.A.

3440 Hollywood Boulevard, Suite 415

Hollywood, Florida 33021

David Levine, Esquire

Levine Legal

9124 Griffin Road

Cooper City, Florida 33328

For Respondent: Megan S. Silver, Esquire

Department of Business and

Professional Regulation

2601 Blair Stone Road

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

Whether Petitioner, Golden Horn Condominium Association

( " Golden H orn " or "Association" ) , was the prevailing party

in DOAH Case No. 18 - 2739 and is entitled to an award of

attorneys ' fees and costs to be paid by Respondent, Department

of Business and Professional Regulation, Division of Florida

Condominiums, Timeshares, a nd Mobile Homes ( " D ivision " ), pursuant

to section 57.105, Florida Statutes (2018). 1/

PRELIMINARY STATEMENT

On August 24, 2018, the Association filed its Motion for

Sanctions during the pendency of the underlying case, DOAH Case

No . 18 - 2739. The Associatio n alleges that the Division ' s Second

Amended Notice to Show Cause , filed in DOAH Case No. 18 - 2739 on

July 13, 2018, was not supported by the material facts necessary

to establish the claims , or the application of the law to the

facts alleged in the claims. On August 30 , 2018, the Division

filed a response to the motion.

On October 4, 2018, the undersigned granted the Division ' s

motion to relinquish jurisdiction, DOAH Case No. 18 - 2739 was

closed, and jurisdiction was relinquished to the Division to

conduc t an informal proceeding pursuant to section 120.57(2) ,

Florida Statutes .

On October 19, 2018, this attorneys ' fee s case was opened.

On October 22, 2018, the undersigned entered an Order setting

this matter for final hearing on November 30, 2018. On

Nove mber 2, 2018, the Division filed an Amended Motion to Stay

and Hold Case in Abeyance because an informal hearing before the

Division was scheduled for November 29, 2018 . On November 6,

2018, the Association filed a response in opposition to the

motion. O n November 13, 2018, the undersigned enter ed an Order

denying the motion.

The final hearing in the instant case was held on

November 30, 2018. At the hearing, the Association ' s Exhibits A

through D and the Division ' s Exhibits 1 through 8 were received

in evidence based on the stipulation of the parties. Moreover,

the undersigned took official recognition of the filings in DOAH

Case No. 18 - 2739 based on the stipulation of the parties.

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

December 1 7 , 2018. The parties timely filed proposed final

orders, which were considered in the p reparation of this Final

Order.

FINDING S OF FACT

1. The Division is the state agency charged with enforcing

c hapter 718, Florida Statutes.

2. Golden Horn is a resident ial condominium association as

defined by section 718.103.

3. In Count I of the Second Amended Notice to Show Cause ,

the Division alleged that between July and November 2016, unit

owners Donna Rubin, Manuel Pack, John Riglesberger, and Charles

Volpe , III , made various deposits to the Association ' s bank

account and that the Association failed to post the payments to

the unit owners ' respective account ledgers until December 31,

2016. As a result, the Division alleged the Association failed

to maintain deta iled and accurate accounting records in violation

of Florida Administrative Code Rule 61B - 22.002.

4. In Count II of the Second Amended Notice to Show Cause,

the Division alleged that at least 40 days prior to the

2017 Association election, unit owners Don na Rubin and Manuel

Pack each submitted written notice s of intent to run for a seat

on the board, that they were each current in their monetary

obligations to the Association and were otherwise eligible

for candidacy, but that the Association excluded them from

the ballot in violation of Florida Administrative Code

Rule 61B - 23.0021(9)(a).

5. On October 4, 2018, during a telephonic hearing on

Golden Horn ' s Motion for Summary Final Order and the Division ' s

m otion to r elinquish jurisdiction in DOAH Case No. 1 8 - 2739,

counsel for the parties stipulated that there was no genuine

issue as to any material fact; that the undersigned should

relinquish jurisdiction to the Division; and that upon

relinquishment, the Division would conduct an informal proceeding

pursuan t to section 120.57(2) to resolve disputed issues of

law. Accordingly, on October 4, 2018, the undersigned granted

the Division ' s motion to relinquish jurisdiction, DOAH Case

No. 18 - 2739 was closed, and jurisdiction was relinquished to the

Division to con duct an informal proceeding pursuant to

section 120.57(2).

6. As of the date of this Final Order, the Division has not

entered a final order resulting from the informal proceeding.

CONCLUSIONS OF LAW

7 . DOAH has jurisdiction over the subject matter and

p arties pursuant to sections 120.569, 120.57(1), and 57.105(5),

Florida Statutes.

8. Section 57.105(1) provides in pertinent part:

(1) Upon the court ' s initiative or motion of

any party, the court shall award a reasonable

attorney ' s fee, including pre judgment

interest, to be paid to the prevailing party

in equal amounts by the losing party and the

losing party ' s attorney on any claim or

defense at any time during a civil proceeding

or action in which the court finds that the

losing party or the losing party ' s attorney

knew or should have known that a claim or

defense when initially presented to the court

or at any time before trial:

(a) Was not supported by the material facts

necessary to establish the claim or defense;

or

(b) Would not be supported by the

application of then - existing law to those

material facts.

9. Section 57.105 must be strictly construed because

statutes providing for attorneys ' fees are in abrogation of the

common law. Johnson v. Dep ' t of Corr. , 191 So. 3d 965, 968

(Fla. 1st DCA 2016).

10. As indicated above, t he Association must be a

" prevailing party " in order to obtain attorneys ' fees pursuant to

section 57.1 05. Prevailing party refers to the party who defeats

any claim or defense. Bridgestone/Firestone, Inc. v. Herron ,

828 So. 2d 414, 418 (Fla. 1st DCA 2002).

11. In the instant case, the Association has not

demonstrated that it is the prevailing party on C ounts I and II

of the Second Amended Notice to Show Cause. The issues of law in

DOAH Case No. 18 - 2739 are before a Hearing Officer of the

Department of Business and Professional Regulation, and a final

order has not been entered on either of the two count s.

Accordingly, it is undetermined at this time whether the

Association or the Division is the prevailing party.

12. Even if the Association was a prevailing party,

however, the Association failed to demonstrate that the Second

Amended Notice to Show Cau se w as not supported by the material

facts necessary to establish the claim s , or that the claims would

not be supported by the application of then - existing law to those

material facts.

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, i t is ORDERED that the Association ' s Motion fo r Sanctions is

DENIED.

DONE AND ORDERED this 15th day of January , 2019 , in

Tallahassee, Leon County, Florida.

S

DARREN A. SCHWARTZ

Administrative Law Judge

Division of Administ rative Hearings

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 15th day of January, 2019 .

END NOTE

1/ Unless otherwise indicated, all references to the Florida

Statutes and administrative rules are to the 2018 codifications.

COPIES FURNISHED:

David Levine, Esquire

Levine Legal

9124 Griffin Road

Cooper City, Florida 33328

(eServed)

Joseph Pu stizzi, Esquire

Law Office of Joseph Pustizzi, P.A.

3440 Hollywood Boulevard , Suite 415

Hollywood, Florida 33021

(eServed)

Megan S. Silver, Esquire

Department of Business and

Professional Regulation

2601 Blair Stone Road

Tallahassee, Florida 32399

(eS erved)

Chevonne T. Christian, Esquire

Department of Business and

Professional Regulation

2601 Blair Stone Road

Tallahassee, Florida 32399

(eServed)

Halsey Beshears, Secretary

Department of Business and

Professional Regulation

Capital Commerce Cente r

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

Jason Maine, General Counsel

Department of Business and

Professional Regulation

Capital Commerce Center

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

(eServed)

Kevin Stanfield, Director

Division of Florida Condominiums,

Timeshares, and Mobile Homes

Department of Business and

Professional Regulation

Capital Commerce Center

2601 Blair Stone Road

Tallahassee, Florida 32399

(eServed)

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled

to judicial review pursuant to section 120.68, Florida Statutes.

Review proceedings are governed by the Florida Rules of Appellate

Procedure. Such proceedings are commenced by filing the original

notice of administrative appeal with the agency clerk of the

Divisi on of Administrative Hearings within 30 days of rendition

of the order to be reviewed, and a copy of the notice,

accompanied by any filing fees prescribed by law, with the clerk

of the District Court of Appeal in the appellate district where

the agency mai ntains its headquarters or where a party resides or

as otherwise provided by law.