STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION MORRIS AMSEL, Petitioner, v. Case No. 2003-04-2792 CONDOMINIUM ASSOCIATION OF GATEWAY HOUSE APARTMENTS, INC., Respondent. / follows: SUMMARY FINAL ORDER Comes now, the undersigned arbitrator, and enters this final order as The petitioner, Morris Amsel, filed his petition for arbitration on February 21, 2003, alleging that the respondent/association, the Condominium Association of Gateway House Apartments, Inc., denied him timely access to its official records. The petitioner seeks an award of statutory damages and an order compelling the association to produce the official records he requested. The association filed an answer on June 6, 2003, in which it denied any willful violation of section 718.111(12), Florida Statutes. However, the association argues that on February 25, 2003, it responded to the petitioner s February 5, 2003, request to inspect the official records, and that it indicated to the petitioner that the records would be made available to him on February 27, 2003, or during the first week of March. 1
The association further alleges that on March 3, 2003, its management company notified the petitioner that the records would not be available during the first week of March and that the association would need two weeks notice prior to providing the petitioner access to the records. The parties have filed legal arguments and rebuttals since the filing of the answer. The association argues that it needed a two-week delay because the association s accountant had custody of the subject records. Section 718.111(12)(b), Florida Statutes (2002), provides that: The official records of the association shall be maintained within the state. The records of the association shall be made available to a unit owner within 5 working days after receipt of 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. (emphasis supplied). Based upon the provisions of this section, the association has failed to provide the petitioner with timely access to the association s official records. The record reflects that the petitioner asked the association for permission to inspect the official records of the association on February 5, 2003. The petitioner requested that he be allowed access to the records on or before February 27, 2003. The association responded by informing him that the records would be available to him on March 6, 2003. Subsequently, the association informed the petitioner that the records would not be available on March 6, 2003, and that the association would need two additional weeks notice before providing the petitioner access to the records. While the parties are free to negotiate a time frame in which the records of an association will be made available, the petitioner 2
requested access on February 5, 2003, and access was not provided until after March 6, 2003. This time period for providing the official records is in excess of the five business days specified by section 718.111(12)(b), Florida Statutes (2002) and was not shown to be otherwise agreed to by the parties. The association s defense, that the records were unavailable to the petitioner because they were in the possession of its accountant, is not a proper exception to the time requirements of section 718.111(12)(b), Florida Statutes. Section 718.111(12)(b), provides in pertinent part that the provisions of this paragraph may be complied with by having a copy of the official records of the association available for inspection. To accept the association s defense that it permissibly placed its official records in the possession of its accountant (resulting in a delay over two weeks long), would effectively permit the association to circumvent the time requirements provisions of this statute and, defeat its plain and obvious purpose. Associations routinely transfer some of their financial documents to their CPA for preparation of year-end financial statements; it is incumbent upon the association to make some provisions allowing for access to these records by owners during that period that may well extend for a period of months. Therefore, the association has willfully failed to provide the petitioner with timely access to its official records as required by Florida Statute. The association is hereby required to provide the petitioner access to the official records within 5 business days of receipt of this order, and can fulfill this requirement by providing access to copies of the records. 3
The petitioner seeks an award of statutory damages for the association s failure to provide timely access to the official records. Pursuant to Section 718.111(12)(c), Florida Statutes, 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. Because the association s failure extended for over two weeks, the maximum amount of damages allowable, $500.00, will be awarded WHEREFORE, the association is found to have willfully denied petitioner access to the official records and it shall pay to the petitioner the sum of $500.00 within 30 days of the entry of this order. Furthermore, the association shall within 5 business days of the date of this final order allow the petitioner access to all official non-privileged records of the association. DONE AND ORDERED this 24 th day of July 2003, at Tallahassee, Leon County, Florida. RIGHT TO TRIAL DE NOVO Richard M. Coln, Arbitrator Arbitration Section Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1029 PURSUANT TO SECTION 718.1255, FLORIDA STATUTES, THIS DECISION SHALL BE BINDING ON THE PARTIES UNLESS A COMPLAINT FOR TRIAL DE 4
NOVO IS FILED BY AN ADVERSELY AFFECTED PARTY IN A COURT OF COMPETENT JURISDICTION IN THE CIRCUIT IN WHICH THE CONDOMINIUM IS LOCATED WITHIN 30 DAYS OF THE DATE OF MAILING OF THIS ORDER. THIS FINAL ORDER DOES NOT CONSTITUTE FINAL AGENCY ACTION AND IS NOT APPEALABLE TO THE DISTRICT COURTS OF APPEAL. ATTORNEY S FEES As provided by s. 718.1255, 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-45.048, 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-45.048, 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. CERTIFICATE OF MAILING I hereby certify that a true and correct copy of the foregoing summary final order was mailed by U.S. mail, postage prepaid, this 24 th day of July 2003, to: F. Blane Carneal, Esq. P.O. Box 30129 Ft. Lauderdale, FL 33303 Attorney for Petitioner (954) 527-0408 Fax Laura M. Manning, Esquire 201 Alhambra Circle Suite 1102 Coral Gables, FL 33134 Attorney for Respondent (305) 443-3292 Fax Richard M. Coln, Arbitrator 5