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

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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 ILAN WEISS, Petitioner, v. Case No INTERNATIONAL VILLAGE Case No ASSOCIATION, INC., Respondent. / SUMMARY FINAL ORDER Statement of the Issue The issue in this case is whether International Village Association, Inc. (the Association) improperly failed to provide access to certain official records of the Association. Procedural History On February 22, 2012, Ilan Weiss filed a Petition for Arbitration, Arb. Case No , against the Association, seeking production of Association records. On April 18, 2012, the Association filed an answer. On April 5, 2012 Petitioner filed a Petition for Arbitration, Arb. Case No , against the Association seeking production of additional Association records. On May 1, 2012, the Association filed an answer. On May 16, 2012, Petitioner filed a reply. On June 12, 2012, in an Order after a Case Management Conference, both cases were consolidated and the parties were ordered to file legal memoranda. On June 29, 2012, the Association requested an extension to file its memorandum. On July 1

2 10, 2012, the Association filed its memorandum. On July 27, 2012, Petitioner filed his memorandum. Findings of Fact 1. Petitioner owns several units in International Village Condominium. 2. The Association is the entity responsible for maintenance and operation of International Village Condominium. 3. The Association has promulgated rules regarding records requests On January 6, 2012, Petitioner sent a certified letter to the Association s registered agent. The letter was a mixture of record requests and questions. The Association did not respond to Petitioner s letter. 5. The Association claims that, pursuant to its rules, it does not have to respond to the January 6, 2012 request until November 1, 2012, because Petitioner had already made several requests before this request On January 18, 2012, Petitioner s attorney sent a facsimile to the Association s registered agent with a copy to the Association s attorney seeking additional documents. The Association did not respond to the request. 7. The Association claims that, pursuant to its rules, it does not have to respond to the January 18, 2012 request until December 1, 2012, because Petitioner had already made several requests before the January 18, 2012 request. 8. On February 23, 2012, Petitioner sent a certified letter to the Association s registered agent seeking additional documents. 9. The Association responded on March 12, 2012, claiming that, pursuant to 1 Petitioner disputes whether the rules were properly adopted. However, due to the findings in this order, it is unnecessary to make that determination. 2 These requests were the subject of other arbitration cases that were settled in mediation. 2

3 its rules, it does not have to respond to the February 23, 2012 request until February 1, 2013, because Petitioner had already made several requests before this request. 10. The Association has 832 units and employs a professional community association manager. 11. The Association s rules entitled International Village Association Rules and Regulations Governing Inspection and Copying of Association records include the following provisions: a. The unit owner is limited to one request a month. The Association has interpreted this provision to allow stacking of requests, which means if an owner has made three requests in a month, it can wait one month to respond to the second request and then another month to respond to the third request. b. If the Association determines that the request is to harass another unit owner, the Association or an Association director, it may deny the request. c. General requests for records are not permitted. A unit owner must specifically identify the record and may not ask for items such as All items pertaining to, or All correspondence from or All contracts for. d. The unit owner may not ask for another record while inspecting the records and is limited to the specific request in the unit owner s written request. e. The unit owner may not request to inspect or copy the same record within 12 calendar months. f. If the unit owner fails to comply with the rules, the Association may levy a fine against the unit owner. g. The Association, within two days of receipt of a non-complying request, 3

4 must notify the unit owner how the request does not comply with the rules. Conclusions of Law The Division has jurisdiction over this matter pursuant to Section , Florida Statutes. Because there is no issue of material fact in dispute after the filings provided to date by the parties, this case is appropriate for summary disposition pursuant to Rule 61B , Florida Administrative Code. Section (12)(b), Florida Statutes, provides in pertinent part: The official records of the association shall be maintained within the state for at least 7 years. The records of the association shall be made available to a unit owner within 45 miles of the condominium property or within the county in which the condominium property is located within 5 working days after receipt of a written request by the board or its designee. This paragraph may be complied with by having a copy of the official records of the association available for inspection or copying on the condominium property or association property or the association may offer the option of making the records available to a unit owner electronically via the Internet or by allowing the records to be viewed in electronic format on a computer screen and printed upon request. Section (12)(c), Florida Statutes, provides, The association may adopt reasonable rules regarding the frequency, time, location, notice, and manner of records inspections and copying. Whether a rule is reasonable or unreasonable depends on the facts and circumstances of each individual case. Wanda DiPaola Stephen Rinko General Partnership v. Beach Terrace Association, Inc., Arb. Case No , Final Order (February 7, 2008). The rule may not be so restrictive as to substantially erode or eliminate a unit owner s right of access. Porta Bella Yacht & Tennis Club Condominium Association, Inc. v. Mechler, Arb Case No , Final Order Dismissing Petition (April 17, 1998). 4

5 One Request per Month and Stacking Requests The Association argues that limiting unit owners to one request a month is reasonable. It points to Section (2)(a)(2), Florida Statutes, that specifically allows a condominium association to adopt rules that limit a unit owner to one written inquiry a month and Section (5)(c), Florida Statutes, which allows a homeowner s association to adopt a rule that limits frequency of requests to inspect records to not less than one 8-hour business day per month. Therefore, the Association asserts its limitation of one request per month falls in line with other provisions in the law. However, this argument is not persuasive. A written inquiry requires the board to give the unit owner a substantive response. This is a heavier administrative burden to the Association than giving access to records to a unit owner. It is also clear from the homeowner s association provision that the legislature was concerned with balancing the administrative burden on the association with the homeowner s right to access. It has determined that a minimum of eight hours of access a month strikes a reasonable balance between the two competing interests. 3 The legislature has limited the frequency restriction permitted by Section (5) by guaranteeing the minimal amount of the hours a homeowner is entitled to inspect records in a month. The legislature has therefore defined frequency not in the terms of the number of requests, but the amount of time the Association must devote to accommodate the requests. In the instant cases, Petitioner s requests could take only five minutes to fulfill but 3 It must be noted that the administrative burden on an average homeowners association is different than an average condominium association. Indeed, the legislature recognizes the difference as it has given a homeowners association ten days to respond to a records request as opposed to a condominium association which only has five days to respond. 5

6 the Association s rules would block his access for months. The Association has a very little administrative burden compared to the burden placed on Petitioner. The Association has provided no proof that Petitioner s requests were so burdensome that it would take days of its resources to fulfill the requests. Given the size of this condominium and the fact that it is managed by a professional community association manager, the limitation of one request per month is so restrictive that it substantially erodes the unit owner s right to access. Additionally, stacking requests to months in the future violates Petitioner s right to timely access. See Nevin v. Tennis Club McLouglin Condominium Association, Inc., Arb. Case No , Summary Final Order (May 8, 2012)(Creating a schedule of access which creates a delay of 2 years, 7 months and 11 days to fully granting petitioner s request for access is unreasonable). The Association has delayed Petitioner s access for almost one year. This provision in the rules limiting unit owners to one request a month and stacking the requests must be stricken. Motivation for the Request The Association s rule that if it determines the unit owner s motivation for requesting the records is to harass another person, the Association may refuse the request is clearly a violation of the statute. Section (12)(c), Florida Statutes, provides that the official records of an association are open for inspection by any association member at all reasonable times. The Association is only permitted to adopt rules regarding the frequency, time, location, notice and the manner or record inspections and copying. The Association is not permitted by the statute to create a rule that tests the motivation of the requestor. This provision must be stricken. 6

7 General Requests The Association prohibits general requests. A unit owner must specifically identify the record and may not ask for items such as All items pertaining to, or All correspondence from or All contracts for. This provision clearly violates the statute, as it is not reasonable. How is Petitioner to identify a specific letter unless he has actual knowledge of its existence? This restriction is not permitted by the statute because it creates an unreasonable restriction on access, as it virtually guarantees that the unit owner will not have open access to the records. This provision must be stricken. Additional Request While Inspecting Records The Association prohibits a unit owner from requesting another record while he or she is inspecting the records. The statute does not authorize the Association to ban additional requests while the unit owner is inspecting records. While the Association does not have to respond immediately, as it has five days to provide access for a new request, it may not prohibit the unit owner from tendering the request. Indeed, it is completely reasonable that the inspection of a record may lead to the need to inspect other records. This provision must be stricken. Records Already Provided in Last 12 Months The rule denying Petitioner access to the official records already provided in the last 12 months, once again creates an unacceptable restriction on his right of access. See Kilgore et. al v. Ciega Verde Unit Owners Association, Inc., Arb. Case. No , Summary Final Order (July 3, 2000)(an association cannot refuse access to official records on the ground that access was previously provided). 7

8 Fines Under its rules, the Association may fine a unit owner for not following the rules. Not only is this provision not authorized by the statute, it creates an unreasonable chilling effect on the unit owner s right of access to records. A unit owner may be deterred from asking for a record out of fear of a fine. This is an unacceptable restriction and this provision must be stricken. Overall Rules Taken as a whole, the entire set of rules promulgated by the Association greatly inhibits access rather than allowing the access required by Section (12), Florida Statutes. These rules appear to be designed to frustrate the right of access rather than to alleviate the administrative burden of the Association. Therefore, the entire set of rules must be considered void and unenforceable. Damages Section (12)(c), Florida Statutes, provides in pertinent part: 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 are $50 per calendar day for up to 10 days, beginning on the 11th working day after receipt of the written request. It is undisputed that the Association did not provide access to the records within ten working days after Petitioner s three separate requests. The Association alleges that even if its rules were invalid, it reasonably relied on them, and therefore it has rebutted the presumption that the failure to comply was willful. This contention is without merit. Not only did the Association willfully enact the invalid rules, it did not follow its own rules 8

9 because it did not give notice to Petitioner that his request did not comply with the rules within two days of the requests. Petitioner is entitled to the maximum damages of $ for each request for a total of $1, Based on the foregoing, it is ORDERED: 1. The relief requested by the Petitioner is GRANTED. 2. Within 30 days of the date of this order, the Association shall pay to the Petitioner the sum of $1, The Association shall hereafter allow access to the official records, as required by Section (12), Florida Statutes. DONE AND ORDERED this 19th day of September, 2012, at Tallahassee, Leon County, Florida. Terri Leigh Jones, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida Telephone (850) Facsimile (850) 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 Rule 61B , F.A.C 9

10 Certificate of Service I hereby certify that a true and correct copy of the foregoing summary final order has been sent by U.S. Mail and facsimile to the following persons on this 19th day of September, 2012: F. Blane Carneal, Esq. P.O. Box 747 Orange Park, FL Fax: Attorney for Petitioner Christopher M. Trapani, Esq Taft Street, Suite 106 Hollywood, Fl Fax: Attorney for Respondent Terri Leigh Jones, Arbitrator 10