STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION A.S.D.M., LLC, Petitioner, v. Case No. 2015-00-8095 BEACH CLUB VILLAS CONDOMINIUM, INC., Respondent. / SUMMARY FINAL ORDER Statement of the Issue The issue in this case is whether Beach Club Villas Condominium, Inc. (the Association) failed to provide timely access to certain official records of the Association. Procedural History On February 20, 2015, A.S.D.M., LLC, (Petitioner) filed a Petition for Arbitration against the Association seeking production of Association records. On April 20, 2015, the Association filed an answer. On May 13, 2015, Petitioner filed a reply. On June 5, 2015, in an Order after Case Management Conference, the parties were ordered to file legal memoranda. On June 19, 2015, the parties filed their memoranda. On June 22, 2015 Petitioner filed a supplement. Findings of Fact 1. Petitioner owns a unit in Beach Club Villas Condominium. 2. The Association is the entity responsible for maintenance and operation of Beach Club Villas Condominium. Page 1 of 5
3. In a letter dated November 14, 2014, Doran Tal, who identified himself as the Asset Manager of A.S.D.M, LLC, submitted a request to inspect records to the Association s registered agent by first class mail, certified mail and email. 4. The Association did not respond to Mr. Tal s request. 5. In a letter dated December 9, 2014, Petitioner s attorney provided prearbitration notice to the Association s registered agent by first class mail, certified mail and email. 6. In an email dated December 9, 2014, the Association s attorney responded to Petitioner s attorney. In the email, the Association requested that Petitioner provide some indicia of authority for [Doran Tal] and I will direct my client to set the appointment to review records. The Association also refused to pay any statutory damages to Petitioner. 7. Petitioner did not respond to the Association s email. Petitioner filed the instant arbitration case. Conclusions of Law The Division has jurisdiction over this matter pursuant to Section 718.1255, 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-45.030, Florida Administrative Code. Section 718.111(12)(b), (c), Florida Statutes, provide in pertinent part: (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. Page 2 of 5
... (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 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. (emphasis supplied). The Association alleges that it was not required to respond to Mr. Tal s letter because he did not provide proof that he was the unit owner s authorized representative. The Association relies on Raz v. The Palms Condo. Ass n of Palm Bay, Arb. Case No. 2013-03-8370, Summary Final Order (March 4, 2014). In Raz, the unit owner had hired a rental agent to handle rental matters for the unit which included professional contact with the association and its manager. However, when the rental agent requested access to records, the association required written proof that the rental agent was authorized to access records on behalf of the unit owner. In Raz, the arbitrator determined that authority to manage rental of a unit did not include the authority to access association records, and the association could, within five days of the request, demand proof of authorization before complying with the request. However, in the instant case, the Association did not respond to Mr. Tal s letter at all. It did not request proof of authorization until after receipt of the pre-arbitration letter. If the Association had any doubts about Mr. Tal s authorization, it should have timely demanded proof in response to his records request instead of ignoring it. Page 3 of 5
Petitioner did not respond to the Association s belated offer of an appointment and request for proof of authorization. This fact is irrelevant because the only issue is whether the Association met its statutory obligation to provide access to its records within the time limits prescribed by the statute. Butler v. Majestic View Condo. Ass n, Inc., Arb. Case No. 2015-02-0502, Summary Final Order (August 4, 2015). The Association has not provided any proof to rebut the presumption the failure to timely comply was willful. Therefore, Petitioner is entitled to his requested statutory damages of $500.00. 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 $500.00. 3. The Association shall hereafter allow access to the official records, as required by Section 718.111(12), Florida Statutes. DONE AND ORDERED this 21st day of September, 2015, at Tallahassee, Leon County, Florida. Terri Leigh Jones, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida 32399-1030 Telephone (850) 414-6867 Facsimile (850) 487-0870 Page 4 of 5
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 718.1255, Florida Statutes. As provided by Section 718.1255, 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-45.048, Florida Administrative Code. 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 21st day of September, 2015: Guy M. Shir, Esq. Shir Law Group, P.A. 1800 N.W. Corporate Blvd. Suite 200 Boca Raton, FL 33431 Fax: 561-893-0999 Attorney for Petitioner Katie M. Merwin, Esq. Cole, Scott & Kissane, P.A. 1645 Palm Beach Lakes Blvd., 2 nd Floor West Palm Beach, FL 33401 Fax: 561-683-8977 Attorney for Respondent Terri Leigh Jones, Arbitrator Page 5 of 5