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 GARY QUITTSCHREIBER, Petitioner, v. Case No CRESTWOODE CONDOMINIUM ASSOCIATION, INC., n/k/a CRANE S COVE CONDOMINIUM, LTD., Respondent. / SUMMARY FINAL ORDER This Summary Final Order is entered pursuant to Rule 61B (3), Fla. Admin. Code, which provides that [a]t 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. Gary Quittschreiber, a unit owner, filed a petition for arbitration on July 8, 2004, naming Crestwoode Condominium Association, Inc., n/k/a Crane s Cove Condomium, Ltd. as the respondent. The petition alleges that Petitioner requested access to the association s official records by letter dated May 12, 2004, and that Respondent failed to provide access to the records as required by law. As relief, Petitioner requests an order directing Respondent to provide access to the official records for inspection and copying, awarding statutory damages of $500 pursuant to section (12), Fla. Stat., and awarding attorney s fees and costs. Attached to the petition is the letter of May 12, 2004, which requested access to the official records of the association; listed 1

2 the specific records included in the request (the same as those enumerated in section (12)(a)1.-15., Fla. Stat.); and asked Respondent to provide a date, time and location for the review of the records. On July 30, 2004, Petitioner supplemented the record with a copy of a letter sent to Respondent s counsel dated July 28, 2004, verifying Petitioner s status as a unit owner since The letter had a copy of Petitioner s warranty deed attached to it. In the letter, Petitioner s counsel hoped that the documents previously requested shall be forthcoming. 1 An Order Requiring Answer was issued on August 3, 2004, and was received by Evan Todd, Respondent s president and registered agent, on August 5, Respondent was directed to file its answer within twenty days of receipt of the order. On August 20, 2004, Mr. Todd requested an extension of time on behalf of Respondent, stating that Hurricane Charley had hit the office, there was a partial roof, and files were blown throughout the office. Mr. Todd indicated that Respondent s attorney s office also had been hit and, therefore, the attorney had been unable to file an answer. An extension of time was granted and Respondent was given until September 30, 2004, in which to file an answer. On September 3, 2004, Petitioner responded to the extension, stating that Petitioner simply wanted access to the documents requested and that he still had 1 The letter suggests that Respondent initially refused to honor the records request until Petitioner proved he was a unit owner. 2

3 not been provided access to those records. On September 30, 2004, Mr. Todd again requested an extension of time for filing Respondent s answer, this time because of the two hurricanes that hit the area after Hurricane Charley. Respondent s office had sustained damage and had been without power for fourteen days. Respondent had again been unable to consult with counsel. Due to the unusual circumstances, Respondent was granted an extension of time until October 30, Respondent was advised that no further extensions of time would be granted, that Respondent had to be represented by an attorney or qualified representative, and that the extension of time should not be viewed as an extension of time for providing Petitioner with access to the official records. On October 15, 2004, Petitioner filed a letter advising that the Respondent still had not provided access to the records. On Monday, November 1, 2004, Respondent filed its answer, along with a cover letter from its attorney. 2 In its answer, Respondent does not deny Petitioner s only factual allegations: that Petitioner requested access to the official records of the association by letter dated May 12, 2004, delivered by mail to Mr. Todd, Respondent s president and registered agent, and that Petitioner never received a response to the request. Respondent does not deny that it failed to provide to Petitioner access to the official records from the date the letter was received by the association until the date its answer was filed. In its answer, Respondent states that Petitioner can come to the association office and get a copy of the Declaration, a copy of the bylaws, a copy of the Articles of Incorporation, and a copy of the current rules. Respondent contends that the developer 2 In the letter, counsel states that he represents Mr. Todd, president of the association, and that Mr. Todd 3

4 did not leave a copy of the plans, permits, warranties or other items required to be maintained pursuant to section (12)(a)1., Fla. Stat., and that, for the items listed in section (12)(a)7.-15., the [r]ecords which have been adduced by Respondent are available in Respondent s office. It is difficult to know exactly what Respondent means by the last statement, but Respondent may be implying that the association records are not in pristine order and that it will produce those records that can be found and assembled in an orderly manner. Although the proper maintenance of association records is not at issue in this proceeding, the issue of Respondent s production of the official records for inspection by Petitioner is. Respondent may not excuse the failure to produce certain records on its own failure to properly keep them. Whether the records have been keep in an orderly fashion or not, Respondent must produce what it has. Respondent does not have to cull through all the records to try to find the records fitting a particular description, but Respondent does have to allow access to all of the records so that Petitioner can go through them. 3 See Cunningham v. Neptune Villas of Pompano Beach Waterfront Co-op Apts. on the Intercoastal, Arb. Case No , Final Order (February 6, 1996)(where the request was somewhat ambiguous, association does not have to cull out records which may or may not fit the definition; association satisfies its obligation when it makes its records available for owner to inspect). If Respondent is sure that it does not have certain required records, it must advise Petitioner that the records do not exist or were lost. has had a difficult time adducing the records relating to the association s records and activities, but that records can now be made available. Counsel also signed the answer on behalf of the association. 3 A unit owner also must be granted sufficient time to be reasonably assured of finding the records he is looking for, assuming they exist; if not granted a reasonable amount of time, a unit owner has not been granted "access" within the meaning of the law. Malone v. Pebble Springs Condo. Ass n, Arb. Case No , Final Order (October 9, 2000). 4

5 The facts in this case are not disputed. Petitioner requested access to the records and Respondent failed to provide access to the records. In its answer, Respondent reserves the right to assert defenses in detail within 15 days from date hereof. There is no right to assert defenses after the answer is due and filed. Respondent has received liberal extensions of time in which to file its answer -- more than enough time to file a thorough and complete answer. 4 Section (12)(c), Florida Statutes, provides, in part: 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 association 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 ten working days after receipt of a written request shall create 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 with this paragraph. The 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. Respondent has not alleged any facts that would rebut the presumption that Respondent willfully failed to provide Petitioner access to the records. Petitioner first requested the records by letter dated May 12, Respondent waited until October 30, 2004, when it filed its answer, before notifying Petitioner that he would be permitted access to the records Respondent is required to maintain pursuant to section 4 Respondent s reservation of the right to assert defenses, treated as a motion for extension of time, is denied. 5

6 (12)(a) and Petitioner is allowed to inspect and copy pursuant to section (12)(b)-(c), Florida Statutes. An association is obligated to provide an owner with access to the official records within five working days of receiving a request to view the records (12)(b), Fla. Stat. When an association waits more than ten days before providing access to the records, a presumption arises that the association is willfully disregarding the statutory requirement to provide access to the records. In this case, well over twenty working days had passed between Respondent s receipt of the petitioner's initial request 5 and the October 30th answer offering Petitioner access to the records. Since Respondent has failed to rebut the presumption created by section (12)(c), Florida Statutes, it must be concluded that the denial of access to the records was willful. It is concluded that Respondent did not comply with Petitioner's request for access to the official records of the association and that the failure to comply was willful. Because actual damages were neither pled nor established, Petitioner is entitled to only the statutory minimum damages, which are capped at $500 per incident (12)(c), Fla. Stat. Based on the foregoing, it is ORDERED: 1) The relief requested in the petition is GRANTED. The respondent shall, within five (5) working days from the date of this order, provide access to all of the 5 Although the Petitioner did not allege the specific date when the May 12th letter was received by Respondent, the record stands unrebutted that Petitioner s letter was mailed to the association by regular and certified mail on that date, and Respondent has never disputed the fact that it was received. 6

7 official records of the association as requested. If any of the specific records requested have not been maintained by the association as required by statute, Respondent shall so advise the Petitioner. 6 Petitioner. 2) Respondent shall, within 30 days of the date of this order, pay $ to DONE AND ORDERED this day of November, 2004, at Tallahassee, Leon County, Florida. Diane A. Grubbs, Arbitrator Dept of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida RIGHT OF APPEAL In accordance with Section , Florida Statutes, a party adversely affected by this final order may appeal from the order by filing, within 30 days of entry and mailing of the order, a complaint for trial de novo with a court of competent jurisdiction within the circuit in which the condominium is located. This order does not constitute final agency action and is not appealable to the district courts of appeal. ATTORNEY S FEES As provided by Section , Florida Statutes, 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 of this order does not toll the time for the filing of a motion seeking prevailing party costs and attorney s fees. 6 After this order was written, a letter from petitioner s counsel was received. Some of the concerns voiced in that letter have been addressed herein. However, Petitioner s counsel states that he does not agree to waive a formal hearing until all of the documents have been produced. This final order grants petitioner the relief he requested. There is nothing more to be done in this proceeding. 7

8 CERTIFICATE OF MAILING I HEREBY CERTIFY that a true and correct copy of the foregoing Summary Final Order was sent by US Mail, postage prepaid, on this day of November, 2004, to the following: John L. Di Masi, Esquire Law Offices of John L. Di Masi, P.A. 207 E. Livingston Street Orlando, Florida John Palumbo, Esquire 2018 Port Marnock Lane Orlando, Florida Diane A. Grubbs, Arbitrator 8