STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES AND MOBILE HOMES SUMMARY FINAL ORDER

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1 STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION OTYLIA H. HARRISON, Petitioner, v. Case No CASTLE #11 CONDOMINIUM, INC., Respondent. / SUMMARY FINAL ORDER On December 6, 2010, Petitioner Otylia H. Harrison filed a Petition for Mandatory Non-Binding Arbitration naming Castle #11 Condominium, Inc. (the Association) as Respondent. The petition alleges that the Association failed to permit access by Petitioner to the Association s official records and requests an Order requiring access and an award of statutory damages. An Order Requiring Answer was entered on December 15, The Association filed a motion for an extension of time until January 19, 2011, to respond to the petition, because the parties were in settlement negotiations. The motion was granted. On January 19, 2011, the Association filed an Answer, including affirmative defenses. On January 25, 2011, an Order to Show Cause was entered requiring Petitioner to Show Cause why the case should not be dismissed as moot. Findings of Fact 1. Castle #11 Condominium, Inc. is the corporate entity responsible for the operation of Castle #11 Condominium. 1

2 2. Petitioner is the owner of Unit 519 within the condominium. 3. The website for Florida Secretary of State, Division of Corporations, shows the registered agent name and address for the Association as follows: Robert Kaye and Associates, PA 6261 NW 6 th Way Ste 103 Fort Lauderdale, FL The website for the Florida Bar shows there is only one individual with the name Robert Kaye eligible to practice law in Florida. The address for that person is as follows: Robert L. Kaye Kaye & Bender PL 1200 Park Central Blvd S Pompano Beach, Florida The petition was accompanied by copies of six (6) letters written by Petitioner to Robert Kaye at the Pompano Beach address. Two of the letters, one dated September 9, 2010, and one dated November 16, 2010, specifically request an appointment to view the official records of the Association and to copy the unit owner ledger between specified dates. Each letter is accompanied by a copy of U.S. Certified Mail Return Receipt documentation showing Petitioner s request was received by Kaye & Bender, PL at 1200 Park Central Blvd S, Pompano Beach, Florida In the Affirmative Defenses in the Answer, the Association: a. Admits Robert Kaye, Esq. is the registered agent for the Association. b. Alleges Petitioner is involved in a foreclosure action with the Association and that Robert Kaye, Esq. represents the Association in the foreclosure matter. 2

3 c. States, Any delay in responding to Petitioner s records request was not intentional as Castle #11 responded to the requests request [sic] when it received same and Petitioner has been provided the requested records. 7. The January 25, 2011 Order to Show Cause required Petitioner to Show Cause why the access to records claim should not be dismissed as moot, because the Association alleged that it had provided access to the records requested. The Order provided that if Petitioner did not respond, the access to records dispute would be determined to be moot without further notice. Petitioner has not responded to the Order to Show Cause. Conclusions of Law The Association is an association within the meaning of Section , Florida Statutes. Pursuant to Section , Florida Statutes, the undersigned has jurisdiction over the parties to, and the subject matter of, this dispute. If no disputed issues of material fact exist, the arbitrator may enter a summary final order. Fla. Admin. Code R. 61B In pertinent part, Section (12), Florida Statutes, provides, (b)... The records of the association shall be made available to a unit owner... within 5 working days after receipt of a written request by the board or its designee. (c)... The failure of an association to provide the records within 10 working days after receipt of a written request creates a rebuttable presumption that the association willfully failed to comply with this paragraph. A unit owner who is denied access to official records is entitled to the actual damages or minimum damages for the association s willful failure to comply. Minimum damages shall be $50 per calendar day up to 10 days, the calculation to begin on the 11th working day after receipt of the written request. 3

4 In the Answer, the Association alleges that it has provided access to the requested records. Because Petitioner has not responded to the Order to Show Cause why the access to records dispute should not be determined to be moot, the access to records dispute in the case at hand is moot. However, the Association does not allege that the records were provided to Petitioner within 10 working days of Petitioner s request. In fact, it is clear from Petitioner s request to schedule access to the Association s records that access was not scheduled for at least a month. While the Association alleges the delay was not intentional, the Association has offered nothing to support this allegation other than its mere assertion. Therefore, the presumption of willful failure has not been rebutted. The Association also does not allege that the foreclosure proceedings involving Petitioner s unit have concluded and that the unit is titled in other than Petitioner s name. The Association in the case at hand acknowledges Porter v. Embassy Condo. Apts. Ass n, Inc., Arb. Case No , Summary Final Order (Sept. 28, 2008). In Porter, the arbitrator rejected the argument the records request was contrary to the statute because the request was made to the Association s registered agent. Citing Ronan v. Imperial Apts. Ass n, Inc., Arb. Case No , Final Order (Dec. 12, 2007), the Association argues Petitioner improperly sent her access to records request to the Association s collections attorney, Robert Kaye. Ronan cites Halley v. Park Lake Condo. Ass n, Inc., Arb. Case No , Summary Final Order (July 22, 2005) for the proposition that service of a records request was improper when the request was served only on the Association s collections attorney, who was not authorized to receive such requests. 4

5 However, the arbitrator in Ronan distinguished Halley because in Ronan the records request also was sent to the Association s property manager. Further, the Association in the instant case fails to recognize the case of Walters v. Walnut Creek Condo. Ass n, Inc., Arb. Case No , Final Order (May 4, 2006), discussed in both Porter and Ronan. In Walters, the arbitrator found that where a records request was directed to the Association s management office and apparently lost, but a copy of the request also was mailed to the Association s registered agent, the Association s time to comply with the request commenced at least upon the date the registered agent received the copy of the request. In the case at hand, the Association s attorney wears two hats - registered agent and collections attorney. The Association s attorney cannot simply doff his registered agent hat and ignore an access to records to request just because the attorney also is the Association s collections attorney. Based upon the foregoing, it is ORDERED: 1. The access to records dispute in this case is moot. 2. The Association s other affirmative defenses are DENIED. 3. On or before March 2, 2011, the Association shall pay $ in statutory damages to Petitioner. 4. Any factual disputes regarding the prevailing party for the purpose of awarding costs and attorney s fees may be determined in a subsequent proceeding should a party seek reimbursement of its costs and attorney s fees pursuant to Rule 61B , Florida. Administrative Code. DONE AND ORDERED this 16 th day of February, 2011, at Tallahassee, Leon 5

6 County, Florida. Glenn Lang, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida Telephone: Facsimile: Trial de novo and Attorney s Fees This decision shall be binding on the parties unless a complaint for trial de novo is filed in accordance with section , Florida Statutes. As provided by section , Florida Statutes, the prevailing party in this proceeding is entitled to have the other party pay reasonable costs and attorney s fees. Any such request must be filed in accordance with Fla. Admin. Code R. 61B Certificate of Service I hereby certify that a true and correct copy of the foregoing final order has been sent by facsimile and U.S. Mail to the following persons on this 16 th day of February 2011: F. Blane Carneal, Esq. F. Blane Carneal, P.A. Post Office Box 747 Orange Park, FL Karen M. Nissen, Esq. Vernis & Bowling of Palm Beach, P.A. 884 U.S. Highway One North Palm Beach, FL Glenn Lang, Arbitrator 6