20-005373PL Department Of Business And Professional Regulation vs. Sherry Maycumber Raposo Status: Closed Recommended Order on Thursday, May 13, 2021.

Summary: Petitioner failed to prove that Respondent, a licensed community association manager, should be disciplined. Dismissal of all charges recommended.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

D EPARTMENT OF B USINESS A ND

P ROFESSIONAL R EGULATION ,

Petitioner ,

Case Nos. 20 - 5371PL

vs. 20 - 5372PL

20 - 5373PL

S HERRY M AYCUMBER R APOSO , 20 - 5374PL

Respondent .

/

R ECOMMENDED O RDER

The final hearing was held in this case by Zoom Video Conference in

Tallahassee, Florida, on March 9 and 10 , 2021, before Brian A. Newman, an

Ad ministrative Law Judge of the Division of Administrative Hearings

(DOAH).

A PPEARANCES

For Petitioner: James C. Richardson, Esquire

Eddy Laguerre, Esquire

Department Business and Professional Regulation

2601 Blairstone Road

Tallaha ssee, Florida 32399 - 6563

For Respondent: Sherry Maycumber Raposo , pro se

4067 Longworth Loop

Kissimmee, Florida 34744

S TATEMENT OF T HE I SSUE S

The issues in this case are whether Respondent committed the acts

alleged and violations charged in the Administrative Complaints, as

amended 1 ; and, if so, what discipline should be imposed.

P RELIMINARY S TATEMENT

On July 1, 2020, an Administrative Complaint was filed against

Respondent . Two more Administrative Complaints were issued against

Responde nt on July 29, 2020, and a fourth Administrative Complaint was

issued on O ctober 23, 2020 . T he Administrative Complaints alleged that

Respondent committed certain violations while she served as a licensed

c ommunity a ssociation m anager for the Turnberry Res erve Homeowner Ô s

Association. The four cases were forwarded to DOAH on December 10, 2020,

and were consolidated on January 5, 2021.

The final hearing was held on March 9 and 10, 2021. Petitioner presented

the testimony of Maria Napolitano, Oshmy Barbosa, Luz Franco, and

Respondent. Petitioner Ô s Exhibits 5, 12, 13, 32, 34, 44, and 50 were admitted

in evidence. Respondent presented the testimony of Sandra Diaz, Ahmed

Elwan , and Cliffie Kennedy.

The three - volume Transcript of the final hearing was filed on M arch 25,

2021. Respondent Ô s request to extend the deadline to submit proposed

recommended orders to April 15, 2021, was granted and the parties timely

filed Proposed Recommended Orders, which have been considered in

preparing this Recommended Order.

1 The Administrative Complaints in DOAH C ase No s . 20 - 5371PL, 20 - 5373 PL , and 20 - 5374 PL

were amended.

F IND INGS OF F ACT

1. Petitioner, the Department of Business and Professional Regulation , is

the state agency charged with regulating the practice of community

association management pursuant to c hapters 455 and 468, Florida Statutes.

2. Respondent , Sherry May cumber Raposo , is licensed in Florida as a

c ommunity a ssociation m anager (CAM), having been issued license number

CAM 39662.

3. At all times material to this proceeding, Respondent was the CAM for

Turnberry Reserve Homeowner Ô s Association, Inc. (Turnberry Reserve ).

Respondent provided CAM services to Turnberry Reserve through

Management 35 Firm , Inc., a company she owned.

Records Requ e sts

4 . Petitioner charges Respondent with the failure to provide certain

association records requested by Turnberry member s Luz Franco , Maria

Napolitano, and Oshmy Barbosa . Ms. Franco and Ms. Napolitano submitted

records requests to Respondent on identical forms requesting the following

records:

1. Financial Reports, reviews and audits for the

past three (3) years.

2. Itemiz ed and detailed records of all receipts and

expenditures.

3. 2018 & 2019 minutes of all meetings of the board

of directors & members.

4. Bids obtained over the past 12 months for any

work to be performed.

5. Management 35 association management

agreemen t.

6. Security service contract.

7. Current copy of all contracts to which the

association is a party to.

M s . Franco Ô s records request is dated May 10, 2019, and Ms. Napolitano Ô s

records request is dated May 24, 2019.

5 . Respondent testified, credibly, that all of the records requested were

available for inspection on the Tu r nberry Reserve website, and that

individuals were directed to the website to obtain these documents when any

such r equest was received .

6 . Respondent Ô s testimony was corroborated by Sandra Diaz and Cliffie

Kennedy, former board members of Turnberry Reserve . Ms. Diaz was a

Turnberry Reserve board member from 2016 through 2018, and Mr. Kennedy

was a Turnberry Reserve board member from 2019 through 2020. Ms. Diaz

and Mr. Kennedy testifi ed that the official records of Turnberry Reserve ,

including the latest financial reports and a copy of the contract with

Management 35 Firm, Inc., were maintained on the Turnberry Reserve

website as a matter of course , and were available for member inspec tion

through the website.

7 . Ms. Franco and Ms. Napolitano testified that their access to the

Turnberry Reserve website was suspended for non - payment of fines levied

against them by the Turnberry Reserve board, leaving them unable to access

the records t hey requested. Respondent testified that the Turnberry Reserve

board suspended member access to the ir individual financial ledgers when

fines were delinquent , but did not suspend access to official association

documents maintained on the website. Responden t Ô s testimony was

corroborated by Ms. Diaz and Mr. Kennedy, and is accepted where it conflicts

with the testimony of Ms. Franco and Ms. Napolitano . The records requested

by Ms. Franco, Ms. Napolitano, and Mr. Barbosa were available to them on

the Turnberry website. As such, Respondent did not delay or deny access to

association records.

Attempt to Videotape a CEC Meeting

8 . Ms. Napolitano requested a meeting before the Turnberry Reserve

Covenant Enforcement Committee (CEC) to appeal a fine that had been

lev ied by the Turnberry Reserve board. Ms. Napolitano Ô s meet ing before the

CEC was held on August 31, 2019. The participants at the meeting were the

three Turnberry Reserve homeowners who were appointed to serve on the

CEC , Respondent , and Ms. Napolitano. No other Turnberry Reserve members

were allowed to attend . The CEC members did not serve on the Turnberry

Reserve board , no Turnberry Reserve board members attended the CEC

meeting.

9 . Ms. Napolitano attempted to videotape the CEC meeting on her cell

phone an d was told by Respondent that she was not allowed to do so. Ahmed

Elwan, a member of the CEC, testified that the CEC asked that the meeting

not be videotaped because the appeals by individual members who had been

fined were private meetings and the CEC did no t want the meetings posted

on social media. Mr. Elwan testified that the CEC voted to reschedule the

meeting because Ms. Napolitano became irate and started yelling when she

was told she could not videotape the meeting. Mr. Elwan Ô s testimony was

credibl e and is accepted.

10 . Article III, section 9 of the Turnberry Reserve bylaws states , in

pertinent part , that Ñ [a]ny Lot Owner may tape record or videotape meetings

of the Board of Directors and meetings of the Members. Ò Petitioner contends

that Ms. Napol itano had a right to videotape her meeting before the CEC

because it was a special meeting of the association members and therefore

constitutes a meeting of the m embers .

11 . T he Turnberry Reserve bylaws authorize the board to appoint a

committee, like th e CEC, to carry out association business. T he CEC meeting

was no t a meeting open to all members ; i t was a private meeting between

Ms. Napolitano and the three unit owners appointed by the board to serve on

the CEC . The CEC meeting was not a meeting of the Turnberry Reserve

board, because none of the CEC members served on the board. Thus, the CEC

meeting was not a meeting of the board or a meeting of the members, and

Ms. Napolitano had no right to videotape the CEC meeting under the

Turnberry Reserve bylaws .

1 2 . Petitioner also charges Respondent with making a Ñ deceptive, untrue,

or fraudulent representation Ò because she told Ms. Napolitano that she could

not videotape the CEC meeting. As found above, the Turnberry Reserve

bylaws did not confer a ny right to videotape a CEC meeting, and this charge

was therefore unproven for this reason alone.

Candidate Forms for 2018 Annual Meeting

1 3 . Petitioner contends that Responden t failed to send out candidate

forms soliciting candidates for the 2019 Turnberry Reserve b oard, resulting

in the cancellation of the 2018 annual meeting which was to be held to elect

the 2019 Turnberry Reserve board. Petitioner alleges this failure constitutes

the failure to serve as a liaison between the Turnberry Reserve board and

unit owners and tampering with the Turnberry Reserve 2018 annual election .

1 4 . Respondent testified that candidate forms soliciting candidates for the

2019 board were mailed to all 373 Turnberry Reserve unit owners in advance

of the 2018 annual meeting. Ms. Diaz , M r. Elwan, and Mr. Kennedy

corroborated Respondent Ô s testimony, stating that they all received candidate

form s in advance of the 2018 annual meeting .

1 5 . There was no evidence to the contrary. Ms. Napolitano testified that

she does not know whether anyone returned candidate forms to Respondent

in advance of the 2018 annual election. Ms. Franco testified that she had

received candidate forms in years past, but could not recall whether she

received a candidate form in advance of the 2018 annual election.

Mr. Barbosa was not asked about the candidate form.

1 6 . The testimony of Respon d e n t, Ms. Diaz, Mr. Elwan, and Mr. Kennedy

was credible and is accepted. Respondent mailed candidate forms to the

Turnberry Reserve u nit owners in advance of the 2018 annual electio n.

Respondent did not fail to serve as a liaison between the Turnberry Reserve

board and unit owners and did not tamper with the 2018 annual election .

C ONCLUSIONS OF L AW

1 7 . The Division of Administrative Hearings has jurisdiction over the

parties and the subject matter of this proceeding. §§ 120.569 and 120.57(1),

Fla. Stat. (20 20 ).

1 8 . In this proceeding, Petitioner seeks to discipline Respondent Ô s license .

Petitioner bears the burden of proving the allegations in the Administrative

Complaint s by clear a nd convincing evidence. Dep Ô t of Banking & Fin. v.

Osborne Stern & Co. , 670 So. 2d 932, 935 (Fla. 1996); Ferris v. Turlington ,

510 So. 2d 292 (Fla. 1987). As stated by the Florida Supreme Court:

Clear and convincing evidence requires that the

evidence mus t be found to be credible; the facts to

which the witnesses testify must be distinctly

remembered; the testimony must be precise and

explicit and the witnesses must be lacking in

confusion as to the facts in issue. The evidence

must be of such weight that it produces in the mind

of the trier of fact a firm belief or conviction,

without hesitancy, as to the truth of the allegations

sought to be established.

In re Henson , 913 So. 2d 579, 590 (Fla. 2005) (quoting Slomowitz v. Walker ,

492 So. 2d 797, 800 (Fla . 4th DCA 1983)). Accord Westinghouse Elec . Corp.,

Inc. v. Shuler Bros., Inc. , 590 So. 2d 986, 988 (Fla. 1st DCA 1991) ( Ñ Although

this standard of proof may be met where the evidence is in conflict, ... it

seems to preclude evidence that is ambiguous. Ò ).

Case No. 20 - 5371PL

19 . In this case, Petitioner charges Respondent with violating s ection

468.4334(1), Florida Statutes (2018) , by violating one of the Standards of

Professional Conduct regulating community association management

services. Specifically, Pe titioner alleges that Respondent violated Florida

Administrative Code Rule 61E14 - 2.001(3)(b) by delaying or denying

Mr. Barbosa access to Turnberry Reserve official r ecords. Section 468.4334(1)

provides:

A community association manager or a community

asso ciation management firm is deemed to act as

agent on behalf of a community association as

principal within the scope of authority authorized

by a written contract or under this chapter. A

community association manager and a community

association management 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 al l funds;

and not charging unreasonable or excessive fees.

Rule 61E14 - 2.001(3)(b) provides , in pertinent part , that a community

association manager shall not Ñ [d] eny or delay access to association official

records to an owner or his or her authorized repre sentative who is entitled to

access È . Ò

20 . Petitioner failed to prove, with certainty, what records M r. Barbosa

requested or when he requested the records. Nevertheless, Mr. Barbosa, and

all other members of Turnberry Reserve , had access to the official records of

the association at all times material to this case. Thus, Respondent did not

violate r ule 61E14 - 2.001(3)(b) as to any records that may have been

requested by Mr. Barbosa .

Case No. 20 - 5372PL

21 . In this case, Petitioner charges Respondent with d elaying or denying

Ms. Franco access to official records of Turnberry Reserve in violation of

s ection 468.4334(1) and r ule 61E14 - 2.001(3)(b) .

22 . Although Ms. Franco Ô s access to her association ledger was suspended

due to delinquent fines, her access to t he official association records was not

suspended. Thus, Respondent did not violate r ule 61E14 - 2.001(3)(b) as to any

records that were requested by M s . Franco.

Case No. 20 - 5373PL

23 . In this case , Petitioner charges Respondent with delaying or denying

Ms . Napolitano access to official records of Turnberry Reserve in violation of

s ection 468.4334(1) and r ule 61E14 - 2.001(3)(b) .

24 . Although Ms. Napolitano Ô s access to her association ledger was

suspended due to delinquent fines, her access to the official as sociation

records was not suspended. Thus, Respondent did not violate rule 61E14 -

2.001(3)(b) as to any records that were requested by Ms. Napolitano .

25 . Petitioner also charges Respondent with violating rule 61E14 -

2.001 (2)(a) when she told Ms. Napolitano that she could not videotape the

CEC meeting held August 31, 2019. Rule 61E14 - 2.001(2)(a) requires

Respondent to Ñ [c] omply with the requirements of the governing documents

by which a community association is created or operated. Ò The governing

document at issue here is the Turnberry Reserve bylaws . The Turnberry

Reserve bylaws do not c reate any right to videotape CEC meetings . 2 Thus,

Respondent did not violate the Turnberry Reserve bylaws or rule 61E14 -

2.001(2)(a) when she told Ms. Napolitano that she coul d not videotape the

CEC meeting on August 31, 2019.

26 . Petitioner also charges Respondent with Ñ [m]aking deceptive, untrue,

or fraudulent representations in or related to the practice of a profession or

employing a trick or scheme in or related to the pra ctice of a profession Ò in

violation of section 455.227(1)(m) , Florida Statutes (2019) , when she told

Ms. Napolitano that she could not videotape the CEC meeting on August 31,

2019 . Assuming, arguendo , that telling a unit owner that she cannot

2 There is no ambi guity as to whether the Turnberry Reserve bylaws confer a right to

videotape CEC meetings; the bylaws clearly do not. That said, the right to videotape under

the bylaws would have to be clear and unmistakable to serve as adequate notice to

Respondent that prohibiting Ms. Napolitano from videotaping the CEC meeting would

subject Respondent to discipline. See Griffis v. Fish & Wildlife Conser. CommÔn , 57 So. 3d

929, 931 (Fla. 1st DCA 2011); Munch v. DepÔt of ProfÔl Reg., Div. of Real Estate , 592 So. 2d

1136, 1143 (Fla. 1st DCA 1992); and McClung v. Crim. Just. Stnds. & Training CommÔn , 458

So. 2d 887, 888 (Fla. 5th DCA 1984).

videotape a meeting could constitute a violation of this statutory provision

under the circumstances present here , Ms . Napolitano had no right to

videotape the CEC meeting under the Turnberry Reserve bylaws , and this

charge was likewise unproven for this reason alone .

Case No. 20 - 5374

27. In this case, Petitioner charges Respondent with the failure to

Ñ discharge duties performed on behalf of the association as authorized by this

chapter loyally, skillfully, and diligently Ò in violation of section 468.433 4 (1)

because she allegedly failed to solicit candidates for the 2019 Turnberry

Reserve board in advance of the 2018 annual meeting. Petitioner also alleges

that Respondent violated rule 61E14 - 2.001(2)(a) for the same reason.

28 . Respondent did, however, mail candidate forms to all Turnberry

Reserve unit owners in advance of the 2018 annual election. Thus, Petitioner

failed to prove a violation of section 468.433 4 (1) or rule 61E14 - 2.001(2)(a) .

29 . Finally, Petitioner again charges Respondent with a violation of rule

61 E14 - 2.001 (3)(a) by suspending online access to Turnberry Reserve official

records to unit owners with delinquent fines. As stated above, only unit

owner access to their individual ledgers was suspended. Petitioner failed to

prove that Respondent violated r ule 61E14 - 2.001(3)(a) .

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that a final order be entered dismissing the Administrative

Complaints at issue in this consolidated proceeding.

D ONE A ND E NTERED thi s 13th day of May , 2021 , in Tallahassee, Leon

County, Florida.

S

B RIAN A. N EWMAN

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 13th day of May , 2021 .

C OPIES F URNISHED :

Sherry Maycumber Raposo Eddy Laguerre, Esquire

4067 Longworth Loop Department of Business

Kissimmee, Florida 34744 and Professional Regulation

2601 Bla ir Stone Road

James C. Richardson, Esquire Tallahassee, Florida 32399 - 6563

Department Business and

Professional Regulation Krista Woodard, Executive Director

2601 Blairstone Road Regulatory Council of Community

Tallahassee, Florida 32399 - 6563 Association of Managers

Department of Business

David Axelman, General Counsel and Professional Regulation

Office of the General Counsel 2601 Blair Stone Road

Department Business and Tallahassee, Florida 32399

Professional Regulation

2601 Blair Stone Road Julie I. Br own, Secretary

Tallahassee, Florida 32399 - 2202 Department of Business

and Professional Regulation

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

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.