22-001558 Highland Ridge Homeowners&Apos; Association, Inc. vs. Department Of Economic Opportunity Status: Closed Recommended Order on Thursday, September 1, 2022.

Summary: Homeowners' association's organizing committee for revitalization of covenants did not fulfill requirement of section 720.405(1) that notices or documents from committee disclose members' name, address, and telephone number. Revitalization disapproved.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

H IGHLAND R IDGE H OMEOWNERS '

A SSOCIATION , I NC . ,

Petitioner ,

Case No. 22 - 1558

vs.

D EPARTMENT OF E CONOMIC

O PPORTUNITY ,

Respondent .

/

R ECOMMENDED O RDER

Administrative Law Judge John D. C. Newton, II, of the Division of

Administrative Hearings (DOAH), conducted the final hearing in this case on

July 22, 2022, in Tallahassee, Florida, by Zoom video conference.

A PPEARANCES

For Petitioner: Michelle. Reiss, Esquire

Appleton Reiss, PLLC

215 North Howard Avenue, Suite 200

Tampa, Florida 33606

For Respondent: Ashanti Danielle Breeden, Esquire

Valerie Frederique Josi Cantave, Esquire

Department of Economic Opportunity

107 East Madison Street

Tallahassee, Florida 32399

S TATEMENT OF T HE I SSUE

Did Petitioner, Highland Ridge Homeowners ' Association, Inc. (Association), a

homeownersÔ association, properly revive its extinguished restri ctive covenants in

accordance with sections 720.403 - 720.407, Florida Statutes (2021) ? 1

P RELIMINARY S TATEMENT

Respondent, Department of Economic Opportunity (Department) , determined

that the Proposed Revived Declaration and other governing documents for th e

Association did not comply with the requirements of c hapter 720, Part III.

Specifically , the Department concluded that the Association had not complied with

the requirement of section 720.405(1) that a proposal to revive a declaration of

covenants be "in itiated 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 [and that the] name, address, and telephone number of each

member of the organizing commi ttee must be included in any notice or other

document provided by the committee to parcel owners to be affected by the proposed

revived declaration." The Association filed a "Petition for Reversal of Denial of

Revitalization of the Governing Documents of H ighland Ridge." On May 25, 2022,

the Department referred the dispute to DOAH to conduct an evidentiary hearing.

The undersigned scheduled the hearing for July 22, 2022, and conducted it as

scheduled.

At 1:43 p.m. on July 21, 2022, the Association filed a Supplemental Witness and

Exhibit List. At the outset of the hearing, the Department's Motion to Strike the

Supplemental Witness and Exhibit List was granted.

Joint Exhibits 1A through 1H, and a separate Joint Exhibit 1 , were admitted.

Joint Exhibi t s 2 a nd Exhibit 3 were admitted. The Association presented the

1 All references to Florida Statutes are to the 2021 compilation unless otherwise noted.

testimony of Olivia Polk and Rozell McKay. Petitioner's E xhibit 1 was admitted into

evidence. The Department did not offer testimony or exhibits, other than the joint

exhibits and testimony elicite d from Ms. Polk and Mr. Rozell.

The T ranscript of the hearing was filed August 11, 2022. The parties timely filed

P roposed R ecommended O rders. They were considered in the preparation of this

Recommended Order.

F INDINGS OF F ACT

The parties stipulated to t he facts in findings 1 through 31, which quote the pre -

hearing stipulation.

1. The Department is the state agency responsible for reviewing (and approving

or denying) submissions from communities seeking to revive declarations of

covenants that have ceased to govern in the community.

2. The Department ' s role with respect to homeowners ' associations is limited to

deciding whether a revitalization submission complies with the requirements of the

Revitalization Act.

3. The Association is a Florida Not - For - Prof it Corporation that serves as the

governing body for the Highland Ridge community, which is located in Brandon,

Florida.

4. Sections 720.403 - 407 of the Florida Statutes provide the mechanism by which

a homeowners ' association, such as Petitioner, may revit alize its restrictive

covenants once extinguished as to at least one parcel by operation of the Marketable

Record Title Act ( " MRTA " ).

5. The Association is a homeowners ' association and is eligible to seek

revitalization.

6. The Association ' s restrictive c ovenants are set forth in the Declaration of

Easements, Covenants, Conditions and Restrictions for Highland Ridge

( " Declaration " ), which was originally recorded March 4, 1987 , at Official Records

Book 5056, Page 548 in the public records of Hillsborough Co unty, Florida, and

thereafter amended by amendments recorded in the public records of Hillsborough

County, Florida.

7. The First Amendment to Declaration of Easements, Covenants, Conditions,

and Restrictions for Highland Ridge ( " First Amendment " ) was recor ded on May 8,

1987 , at Official Records Book 5115, Page 1965 in the public records of Hillsborough

County, Florida.

8. The Second Amendment to Declaration of Easements, Covenants, Conditions,

and Restrictions for Highland Ridge ( " Second Amendment " ) was rec orded on

September 15, 1988 , at Official Records Book 5502, Page 1234 , in the public records

of Hillsborough County, Florida (collectively, the First Amendment and Second

Amendment are referred to as " Amendments " ).

9. The Articles of Incorporation ( " Articl es " ) and Bylaws ( " Bylaws " ) of the

Association were recorded on June 18, 2021 , at Official Records Instrument

#2021307307 in the public records of Hillsborough County, Florida. The

Declaration, Articles, and Bylaws are referred to herein as the " Proposed Re vived

Documents . "

10. The Association determined MRTA may have extinguished its restrictive

covenants as to at least one parcel in the community and, as a result, sought to

revitalize its previous governing documents.

11. The Association formed an organizi ng committee which initiated the

proposal to revive the governing documents.

12. The organizing committee consisted of the members of the Board of Directors

in office at the time the organizing committee was formed. [ 2 ]

13. The proposal to revive the govern ing documents was initiated by the

organizing committee by written notice to owners on September 28, 2021

( " November Meeting Notice " ).

14. In accordance with section 720.405(5), Florida Statutes, the November

Meeting Notice included:

2 There is no evidence or claim that the membership of the board chan ged during the relevant time

period.

a. notice of a special membership meeting to be held on November 2, 2021;

b. the names, addresses, and phone numbers of the organizing committee

members;

c. a copy of the complete text of the Proposed Revived Documents;

d. a list of the lots in the community; and

e. a graphic d epiction of the property.

15. The November Meeting Notice complied with sections 720.405(1), 720.405(5),

720.405(6), and 720.306(5), Florida Statutes.

16. The special membership meeting to approve revitalization convened on

November 2, 2021 , and was contin ued to January 20, 2022 ( " Continued Meeting " ).

17. Notice of the Continued Meeting was announced on the record at the

November 2, 2021 , meeting.

18. The Association also noticed the Continued Meeting by providing the

Continued Meeting Notice (which also in cluded notice of the Association ' s annual

membership meeting) to the parcel owners.

19. The notices of the Continued Meeting complied with section 720.306, Florida

Statutes.

20. The Continued Meeting convened on January 20, 2022, and was further

continued to January 29, 2022 (the " Second Continued Meeting " ). The date for the

Second Continued Meeting was announced on the record at the first Continued

Meeting.

21. The notice of the Second Continued Meeting complied with section 720.306,

Florida Statutes.

22. The Association obtained majority approval of the Proposed Revived

Documents by vote held at the Second Continued Meeting on January 29, 2022 , in

accordance with section 720.405(6), Florida Statutes.

23. The Department received Petitioner ' s timely Revitali zation Submission on

February 25, 2022.

24. Petitioner ' s Revitalization Submission included the Continued Meeting

Notice and an affidavit of Notice and Voting Results ( " Notice Affidavit " ), signed and

dated by Olivia Polk on February 24, 2022.

25. The Not ice Affidavit asserts that the Continued Meeting Notice was mailed

to all of the owners and that a true and correct copy of the Continued Meeting

Notice was attached with the Notice Affidavit.

26. The Continued Meeting Notice did not include the name, addr ess, and

telephone number of each member of the organizing committee.

27. Petitioner ' s Revitalization Submission to the Department did not include the

Amendments.

28. The Department did not request copies of the Amendments prior to issuing

the Determinatio n.

29. Petitioner sent certified copies of the Amendments to the Department via

email on July 12, 2022.

30. The Proposed Revived Documents complied with section 720.404(3), Florida

Statutes, and section 720.405(4), Florida Statutes. The Department did not have the

opportunity to review the Amendments to determine if the Amendments complied

with section 720.404(3), Florida Statutes, and section 720.405(4), Florida Statutes.

31. The agency action subject to review is the Department ' s Determination,

denying th e Association ' s Revitalization Submission by letter dated April 22, 2022.

32. The September 28, 2021, notice of the November 2, 2021, meeting was the

only notice or document given to the Association's owners related to the proposed

revitalization documents that provided the name , address, and telephone number of

each member of the organizing committee. It was also the only notice of any

meeting at which the documents were to be considered that provided the name ,

address, and telephone number of each member of the organizing committee.

33. The Continued Meeting N otice incorporated in the Notice of Annual Meeting,

dated November 23, 2021, is the only written notice of the continued meeting given

to parcel owners . The only mention of the continued revitalizatio n meeting in the

one - page Notice of Annual Meeting reads: "6:30 Ï 7:00: Continuance of the

Revitalization Meeting." The next statement on the Notice is "7:00 Ï 8:00: The

Annual Meeting of the Highland Ridge Homeowners Association will be held on

January 20 , 2022."

34. The remainder of the Notice of Annual Meeting goes on to provide the

location of the annual meeting, the purpose of the annual meeting, the agenda for

the annual meeting, an announcement of the amount of the 2022 assessment, and

information a bout proxy voting and the conduct of the annual meeting. There is no

indication that any documents were provided with the Notice of Annual Meeting .

The Association 's b oard of d irectors (Board) caused the Notice to be issued. The

members of the Board are al so members of the organizing Committee. In addition,

the reasonable and rational inference from the record is that the organizing

committee must have authorized the Board to provide notice of the continued

meetings.

35. The Notice of Annual Meeting was th e only document distributed to

Association owners that mentioned the continuation of the November revitalization

meeting. It did not provide the name, address, and telephone number of each

member of the organizing committee.

C ONCLUSIONS OF L AW

36. Section s 120.569 and 120.57(1) , Florida Statutes, grant DOAH jurisdiction of

the parties and subject matter of this proceeding.

37. This is a de novo proceeding to be determined upon the stipulations and the

evidence admitted in the final hearing. § 120.57(1)(k), Fla. Stat.

38. The Association bears the burden of proving its claims by a preponderance of

the evidence. See Fla. Dep ' t of Transp. v. J.W.C. Co., Inc. , 396 So. 2d 778 (Fla. 1st

DCA 1981).

39. Chapter 720, Part III, establishes a process for revitalizing covenants of a

homeowners ' association. The Department is the state agency responsible for

reviewing applications for covenant revitalization submitted by a homeowners '

association.

40. If a homeowners ' association determines MRTA has extinguished one or

m ore of its restrictive covenants as to at least one parcel, the association may utilize

the procedures set forth in Part III to revive the extinguished covenants.

41. MRTA defines a " property owners ' association " to mean a homeowners '

association as define d in section 720.301, a corporation or other entity responsible

for the operation of property in which the voting membership is made up of the

owners of the property or their agents, or a combination thereof, and in which

membership is a mandatory conditio n of property ownership, or an association of

parcel owners which is authorized to enforce a community covenant or restriction

that is imposed on the parcels.

42. Section 720.405(1) requires that an organizing committee of at least three

parcel owners init iate any proposal to revive a declaration of covenant. It also

requires that "[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 organizing committee to parc el owners to be affected by the proposed revised

declaration."

43. The language of the statute is plain. It requires an organizing committee to

provide specific information about its membership with "any notice or other

document provided" to parcel owners affected by the proposed revised declaration.

The plain language should be applied as written. McCloud v. State , 260 So. 3d 911

(Fla. 2018).

44. The written notice of the continued meeting of January 20 , 2022, and the

verbal notice of the continued meeting held January 29, 2022, 3 did not include the

required information. The se notices were notices provided by the organizing

committee since the membership of the organizing committee and the Board was

the same and because

3 The verbal notice also went only to the members attending the annual meeting.

the organizing committee authorized the Board to provide notice of continued

meetings.

45. The Association argues that the notices of the first and second continued

meetings were from the board of directors, not the organizing committee, and

therefore did not have to satisfy the requiremen ts of section 720.405(1).

4 6 . Th e Association's interpretation of the statute would mean that the

organizing committee would never have to provide the committee member

information so long as another body issued the notice of the meeting. This

interpretati on violates the principle that statutes should be interpreted to give all

provisions effect. Palm Beach C n ty . Canvassing Bd. v. Harris , 772 So. 2d 1273, 1285

(Fla. 2000) . It also violates the principle that common sense should be applied to

statutory inter pretation. Sch. Bd. v. Survivors Charter Schs., Inc. , 3 So. 3d 1220,

1235 (Fla. 2009) .

4 7 . The Association did not satisfy the requirements of section 720.405(1).

Consequently , the Department properly denied its revitalization proposal. Kravitz,

Jr. v. Ven etian Isles Homeowners Assoc., Inc. and Fla. Dept. of Econ . Opportunity ,

Case No. 20 - 1703 (Fla. DOAH August 17, 2020; Fla. DEO November 16, 2020).

4 8 . In this proceeding the Department asserts for the first time that the

revitalization proposal should be d enied because the Association did not provide a

verified copy of the previous declaration of covenants and other previous governing

documents for the community, including any amendments, as required by section

720.406(1)(b). This failing was not the basis of the Department's decision to deny

approval of the revitalization proposal.

4 9 . Addressing this issue is not necessary in light of the inadequate notices of

the continued meetings requiring disapproval of the revitalization of the covenants.

R ECOMMENDAT ION

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

R ECOMMENDED that the Department of Economic Opportunity enter a final order

disapproving the revitalization of the covenants of the Highland Ridge Homeowners

Association, Inc.

D ONE A ND E NTERED this 1st day of September , 2022 , in Tallahassee, Leon

County, Florida.

S

J OHN D. C. N EWTON , II

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

D ivision of Administrative Hearings

this 1st day of September , 2022 .

C OPIES F URNISHED :

Jaiden Foss, Agency Clerk Michelle Reiss, Esquire

(eServed) (eServed)

Ashanti Danielle Breeden, Esquire Valerie Frederique Josi Cantave, Esquire

(eServed) (eServed)

Dane Eagle, Executive Director Karen Gates, General Counsel

(eServed) (eServed)

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 thi s Recommended Order should be

filed with the agency that will issue the Final Order in this case.