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

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1 STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION Jacob Radojcsics, Cathy Radojcsics and Kathy Bening, Petitioners, v. Case No Imperial House of Bradenton Beach Condominium Association, Inc., Respondent. / SUMMARY FINAL ORDER This final order is entered pursuant to rule 61B , Florida Administrative Code, which permits the arbitrator to enter a summary final order where there are no disputed issues of material fact. PROCEDURAL HISTORY On January 28, 2005, Jacob Radojcsics, Cathy Radojcsics and Kathy Bening, the petitioners, filed a petition for mandatory non-binding arbitration, naming the Imperial House of Bradenton Beach Condominium Association, Inc. as the respondent/association. In their petition, the petitioners raised six (6) issues alleging that the association violated its governing documents and/or the Florida Statutes. However, pursuant to the arbitrator s order requiring answer issued on March 3, 2005, disputes #4 and #5 were dismissed as ineligible for arbitration, pursuant to section , Florida Statutes, and the association was not required to file an answer 1

2 concerning those two disputes. Regarding the other four disputes that were deemed eligible for arbitration, three of those disputes involved an amendment to the association s declaration of condominium designating the condominium as a 55 and older community and the validity of this amendment and the association s enforcement of this provision against the petitioners. The final dispute raised by the petitioners alleged that the association failed to provide the petitioners with timely access to the association s governing documents and requested statutory damages for the denial of such access. Subsequent to filing a motion to dismiss, which was denied on June 24, 2005, the association filed its answer on July 14, 2005, wherein it denied the allegations raised in the petition. In response to the allegations presented in the petition and the defenses raised in the association s answer, the arbitrator conducted a case management conference on August 18, 2005, wherein it was determined that a new amendment to the declaration, recorded on May 4, 2005, changed the manner in which the association enforced the 55 and older regulations in that the petitioners were no longer affected by the amendment as they were unit owners prior to the date on which the amendment was deemed effective and were, thus, grandfathered. The attorneys representing the association confirmed that the new provisions would not be enforced against the petitioners. As three of the disputes enumerated in the petition were directly related to the validity and enforcement of the previous amendment, the new amendment operated to render those disputes moot and such were dismissed. 1 The issue 1 In her order dated August 19, 2005, the arbitrator pointed out that while the new amendment would not be enforced against the petitioners, as alleged in the petition for arbitration, whether the amendment could be enforced against any tenants of the petitioners was not at issue in this proceeding and would not 2

3 regarding the petitioners access to the association s official records remained eligible for arbitration and the parties were required to file supplemental information. The association provided its requested information on September 16, 2005, and the petitioners September 27, This order is entered upon full consideration of the entire record in this matter. CONCLUSIONS OF LAW According to the petition, petitioner Jacob Radojcsics alleges that he delivered a written letter to a board member Vince Bajor on December 7, 2003, requesting a complete set of the condominium documents, with $50.00 in cash to cover the copy costs. When informed that cash was not acceptable, Mr. Radojcsics delivered a check, in the amount of $50.00 to Mr. Bajor on or about December 11, 2003, but was not provided with the requested documents until January 6, In response thereto, the association submitted an affidavit from board member Vince Bajor which attested that Mr. Bajor received the petitioner s request, with $50.00 in cash, at the end of 2003 and within a couple of days forwarded the letter and payment to Barbara Hug, then secretary-treasurer, who informed him that cash was not accepted. Within a couple of days of that, Mr. Bajor returned the cash to the petitioner and requested a check and a few days later received a check from the petitioner and delivered such to Barbara Hug for copies to be provided to the petitioner. Affidavits executed by Barbara Hug and Barbara Miller were also provided. The petitioners responded to these allegations, in a be addressed. Such remains the case and the association s motion for leave to file supplemental information, filed on October 21, 2005, is hereby denied. 2 Between September 16, 2005 and October 7, 2005, the parties filed motions for attorney s fees and costs and responses thereto, however, attorney s fees will only be addressed if either party files an appropriate motion pursuant to rule 61B , Florida Administrative Code. 3

4 September 27, 2005, pleading, affirming that Mr. Radojcsics provided Mr. Bajor with his written request for the association s official records on December 10, 2003, at a board meeting. While neither party can confirm what date the petitioner delivered a check for the copying charges, the petitioner indicates that the check was deposited on December 18, Thus, the association received the check no later than December 18 th. Pursuant to section (12), Florida Statutes, an association is permitted 5 working days in which to provide a unit owner with access to its official records when provided with a written request. If the owner is not provided with access to the records within 10 working days, a rebuttable presumption of willfulness attaches and the association can be liable for statutory damages. Upon the 11 th working day after a written request has been delivered to the board, an owner is entitled to a statutory damage award of $50.00 per day, up to 10 days, for the association s willful denial of access to its official records. In this case, the association argues that because the petitioner s request was submitted just prior to the Christmas and New Year s holidays and required copying rather than solely access, the association delivered the documents as soon as practicably possible and did not willfully deny access to the petitioner. Base on the foregoing, the arbitrator finds that the association failed to timely provide access to its official records to the petitioner. However, as the requested records were delivered on January 6, 2004, just subsequent to back-to-back holidays, and because the petitioner demanded copies and not merely access, the association has successfully rebutted the presumption that access was denied in a willful manner 3 Some of the above referenced dates conflict with dates provided by the petitioners in a pleading submitted on September 27, As such, the dates in the September 27 th pleading will be the dates 4

5 and statutory damages will not be awarded. Even if the arbitrator found the association s actions to be willful, based on the dates confirmed by the petitioners in their September 27, 2005, pleading, the petitioners did not provide payment for copy charges to the association until December 18 th and when calculating a damage award, the petitioner would only be eligible for one day of statutory damages when considering the non-business holidays of Christmas Day and New Year s Day. However, this is not relevant because the facts of this case do not support an award of statutory damages for the association s violation of section (12), Florida Statutes. It is therefore ORDERED: The disputes regarding the validity and application of amendments to the declaration of condominium concerning the 55 and older status of the community are hereby dismissed as moot. In regard to petitioner s access to the association s official records, the association has violated section (12), Florida Statutes, by failing to provide access in a timely manner. As the association s actions are not found to be willful, the petitioners will not be awarded statutory damages. The association shall ensure that it complies fully with section (12), Florida Statutes, in the future. DONE AND ORDERED this 23 rd day of December 2005, at Tallahassee, Leon County, Florida. addressed in the remainder of this order. Melissa Mnookin, Arbitrator Department of Business and Professional Regulation Arbitration Section 5

6 Northwood Centre 1940 North Monroe Street Tallahassee, Florida Certificate of Service I hereby certify that a true and correct copy of the foregoing final order has been sent by U.S. Mail to the following persons on this 23 rd day of December 2005: David Paul Montgomery, Esq. The Montgomery Law Firm 2103 Manatee Avenue West Bradenton, Florida Mary R. Hawk, Esq. Porges, Hamlin, Knowles, Prouty, Thompson & Najmy, P.A Manatee Avenue West P.O. Box 9320 Bradenton, Florida Melissa Mnookin, Arbitrator Right to Appeal As provided by section , F.S., this final order may be appealed by filing a complaint for trial de novo with a court of competent jurisdiction in the circuit in which the condominium is located, within 30 days of the entry and mailing of this final order. This order does not constitute final agency action and is not appealable to the district courts of appeal. If this final order is not timely appealed, it will become binding on the parties and may be enforced in the courts. Attorney s Fees 6

7 As provided by s , F.S., the prevailing party in this proceeding is entitled to have the other party pay its reasonable costs and attorney s fees. Rule 61B , F.A.C. requires that a party seeking an award of costs and attorney s fees must file a motion seeking the award not later than 45 days after rendition of this final order. The motion must be actually received by the Division within this 45 day period and must conform to the requirements of rule 61B , F.A.C. The filing of an appeal by trial de novo of this final order tolls the time for the filing of a motion seeking prevailing party costs and attorney s fees until 45 days following the conclusion of the de novo appeal proceeding and any subsequent appeal. 7