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

Transcription

1 STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION TAX LIEN FUND, LLC, Petitioner, v. Case No LE MIRAGE ASSOCIATION, INC., Respondent. / SUMMARY FINAL ORDER This Summary Final Order is being entered pursuant to Rule 61B , Florida Administrative Code, which states: At any time after the filing of the answer, and if no disputed issues of material fact exist, the arbitrator shall summarily enter a final order awarding relief if the arbitrator finds that no meritorious defense exists, and that the petition is otherwise appropriate for relief. Statement of the Issue The issue in this case is whether Le Mirage Association, Inc. willfully failed to provide access to official records in violation of Section (12), Florida Statutes. Allegations and Procedural History On March 19, 2015, Petitioner, a unit owner and member of Le Mirage Association, Inc., (the Association ) filed a Petition for Non-Binding Arbitration alleging that the Association had willfully failed to timely allow Petitioner access to inspect the Association's official records. On March 26, 2015, an order requiring answer was Page 1 of 8

2 issued. The Association was duly served with the petition and order requiring answer on March 28, The Association filed a motion for enlargement of time to respond on April 15, 2015, which was granted in an order entered on March 15, On May 22, 2015, a default was entered against the Association for failing to respond to the petition and order requiring answer. The Association filed an answer to the petition and motion to vacate the default on June 1, The answer stated that the Association had been unaware of Petitioner s written request for documents and did not receive it; that the written request had been addressed to Patricia Harper, Secretary of the Association, but that Ms. Harper was not authorized to receive any correspondence on behalf of the Association; and that the address to which the request and pre-arbitration notice were sent, 1250 N.E. 119 th Street #3A, North Miami, FL 33161, 1 was incorrect, and that the Association s official address was 1290 NE 119 th Street #1B, North Miami, FL A case management conference was scheduled for June 25, 2015, and was rescheduled to July 9, 2015, at the request of the parties. At the case management conference, the parties appeared to be in the process of resolving the issues in dispute, and the case was placed in abeyance until August 10, 2015, to allow the parties time to continue settlement discussions. Petitioner was directed to file a status report by 1 This is the address listed for Patricia Harper, identified as Secretary of Le Mirage Association, Inc., within the Officer/Director section of the Florida Department of State, Division of Corporations website. This is also the address, c/o Ms. Harper, at which the Association was served with the petition for arbitration and the order requiring answer. 2 The actual address listed for Le Mirage Association, Inc., on the Florida Department of State, Division of Corporations website is 1250 N.E. 119 th Street #1B, North Miami, FL (emphasis added). Page 2 of 8

3 August 10, 2015, stating whether the matter had been settled and/or otherwise rendered moot. Petitioner filed a status report on August 10, 2015, stating, in summary, that the Association s counsel had not responded to Petitioner s counsel s written request to be informed as to which of the requested documents exist and which do not, and to be allowed access to the ones that do exist. As of the date of entry of this Summary Final Order, the Association has not filed any documents or correspondence with the office of the arbitrator to rebut Petitioner s status report. This Summary Final Order is entered accordingly. Findings of Fact 1. The Association is the governing body for the Le Mirage Condominium with the responsibility for the operation and maintenance of the condominium. Association. 2. Petitioner owns a unit in the condominium and is a member of the 3. On September 25, 2014, Petitioner made a written request to inspect the Association's official records. The requested documents are described as: Books and Records In accordance with FLA. STAT (12) or (5), we hereby request access to the following books and records within ten (10) working days from receipt of this letter Statement of Account related to the Unit for the last seven years; If you are demanding payment for any special assessments, a copy of the relevant Notice of Special Assessment provided to all unit owners; Lease with the current tenant (if applicable): Most current Accounts Receivables Aging/Delinquency Report [footnote omitted]; Contract or Retainer Agreements with legal counsel retained for collections of past due maintenance; Page 3 of 8

4 Attorney Invoice and itemized breakdown (including hours billed) of attorney s fees charged to the Unit (if applicable), Any form (and any formal procedures or documentation as to any formal procedures) necessary to record Manager as Owner s official representative; Most recent Financial Statements; Frequently Asked Questions and Answers (not applicable to Home Owners Associations); Application for Sale or Lease; Rules and Regulations; and, If there is a fee for the execution of an Estoppel Letter, any documentation (i) regarding same, and (ii) authorizing same, pursuant FLA. STAT (8) or (3). [sic] Please notify us of the procedure to obtain copies of these documents. Also, please inform us if it will be possible to send us copies of these documents via , facsimile or U.S. Mail, and any applicable charges that may apply to our request. If necessary, we will arrange to have these documents reviewed and copied or picked up from your office. Failure to provide access to these records within ten (10) working days from receipt of this letter will result in a claim for statutory damages as well as actual damages and attorney s fees as outlined in FLA. STAT (12) and (1) or (5) and (7). (emphasis added). 4. Petitioner s request was addressed to: Le Mirage Association, Inc. c/o Patricia Harper, Secretary of the Association 1250 N.E. 119 th Street #3A North Miami, FL The Association did not respond to Petitioner s request and did not make the requested documents available for inspection and copying. 6. The Association claims that it did not receive Petitioner s request, but does not deny that its Secretary received it. 7. The Association claims that its Secretary was not authorized to receive correspondence on behalf of the Association. Page 4 of 8

5 8. The Association does not claim to have adopted any rule(s) pertaining to records requests that would require such requests to be delivered only to a specific person. Conclusions of Law 1. Delivery of Petitioner s Request for Official Records While the Association does not deny that its Secretary received Petitioner s request for official records, it claims that the Association itself did not receive them. It apparently bases this claim on two grounds: First, it claims that the address to which Petitioner s request for official records was sent, i.e. the address provided for the Association s Secretary on the Division of Corporations website, was not the Association s official address. Second, the Association claims that its Secretary was not authorized to receive any correspondence on behalf of the Association. The petition for arbitration and order requiring answer were also sent to the Association s Secretary at the address provided for her on the Division of Corporations website, and the Association acknowledged their receipt by filing a motion for enlargement of time and an answer to the petition. Section , Florida Statutes, states, in pertinent part: Service of process, notice, or demand on a corporation. (1) Process against any corporation may be served in accordance with chapter 48 or chapter 49. (2) Any notice to or demand on a corporation made pursuant to this act may be made to the chair of the board, the president, any vice president, the secretary, the treasurer, the registered agent of the corporation at the registered office of the corporation in this state, or any address in this state that is in fact the principal office of the corporation in this state... (emphasis added). Page 5 of 8

6 Article 5, Section 5.2 of the By-Laws of Le Mirage Association, Inc., states: SECRETARY. The Secretary shall keep the minutes of all proceedings of the Directors and the members, attend to the giving and serving of all notices to the members and directors, have custody of the seal of the ASSOCIATION and affix the same to instruments requiring a seal when duly signed, keep the non-financial records of the ASSOCIATION, and shall perform all other duties incident to the office of Secretary of an association and as may be required by the Directors or President. The Assistant Secretary, if any, shall perform the duties of Secretary when the Secretary is absent. (emphasis added). Section (2), Florida Statutes, and the Association s own bylaws indicate that the Association s Secretary is an appropriate officer to whom a request for records may be directed. Based on the foregoing, the undersigned arbitrator concludes that regardless of whether the board of directors had specifically authorized the Association s Secretary to receive any correspondence on behalf of the Association, by virtue of her position she had the inherent authority by law to do so. 2. Access to Association Records Sections (12)(b) and (c), Florida Statutes, provide, in pertinent parts: (b) The official records of the association must 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 (c) The official records of the association are open to inspection by any association member or the authorized representative of such member at all reasonable times. The right to inspect the records includes the right to make or obtain copies, at the reasonable expense, if any, of the member. The association may adopt reasonable rules regarding the frequency, time, location, notice, and manner of record inspections and copying. 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 Page 6 of 8

7 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 (emphasis added). All records listed in Petitioner s September 25, 2014 request are official records that the Association is required to maintain pursuant to Section (12), Florida Statutes. The Association has raised no legally cognizable defense as to why it has not provided access to the records within the statutory timeframe or why it should not be required to provide access to these records. The undersigned arbitrator, therefore, concludes that the Association failed to provide Petitioner with access to the Association s records within 10 working days of Petitioner s written request to review them. The Association failed to rebut the presumption that its non-compliance with Section (12)(c), Florida Statutes, was willful, in that it acknowledged that it did not provide access to the records in response to Petitioner s request and has not contested Petitioner s claim that it had still not provided access as of August 10, Therefore, the undersigned finds that the Association willfully failed to comply with Section (12)(c), Florida Statutes. Petitioner has not submitted any evidence of actual damages. Therefore, the arbitrator is limited to the minimum damages of $50.00 dollars per calendar day up to 10 days. Based upon the foregoing, it is ORDERED: The following relief requested by Petitioner is GRANTED: a. On or before October 2, 2015, the Association shall pay to Petitioner the sum of $ as damages pursuant to Section (12)(c), Florida Statutes. Page 7 of 8

8 b. If it has not already done so, the Association shall make available all the official records requested by Petitioner in this case, and at all times in the future, shall make available official records requested by Petitioner in accordance with Section (12), Florida Statutes. DONE AND ORDERED this 8 th day of September, 2015, at Tallahassee, Leon County, Florida. Leslie O. Anderson-Adams, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Suite 16 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. Certificate of Service I hereby certify that a true and correct copy of the foregoing final order has been sent by U.S. Mail, electronic mail and facsimile to the following person on this 8 th day of September, 2015: Steven B. Herzberg, Esq. SOUTH FLORIDA COUNSEL 1108 Kane Concourse, Ste. 309 Bay Harbor Islands, FL Fax: (321) steven@sflcounsel.com Attorney for Petitioner Francisco Jose Aguero, Esq Le Jeune Rd., PHI-D Coral Gables, FL Fax: (305) service@aguerolaw.com Attorney for Respondent Leslie O. Anderson-Adams, Arbitrator Page 8 of 8